Consti Bill of Rights Sec2

G.R. No.
82585 November 14, 1988

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

jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the
petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain the status
quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated
in the Resolution dated April 26, 1988 is LIFTED.
____________
1. The Government Service Insurance System (the GSIS, for short) filed two separate
criminal complaints against petitioner Roman A. Cruz, Jr., a former public official who
used to be the President and General Manager of the GSIS and, also, the President of
the Manila Hotel, for violation of Section 3(e) of Republic Act No. 3019, as amended.
The first complaint against petitioner was filed with the Office of the Special
Prosecutor (the OSP, for short) and docketed as OSP-88-02028 while the second,
which involved the same set of facts, was filed with the Presidential Commission on
Good Government (the PCGG, for short) but which was later endorsed to the Office of
the Ombudsman and docketed as OMB-0-91-0986. . . .
2. A preliminary investigation was conducted by the PCGG where petitioner duly
submitted his counter-affidavit. As a consequence of said investigation, an Information
was filed with the first Division of the Sandiganbayan, docketed as Criminal Case No.
14134, charging petitioner with violation of Section 3(e) of Republic Act No. 3019. . . .
3. During the proceedings before the OSP, petitioner moved to dismiss the complaint.
The OSP, however, denied the motion and filed with the Third Division of the
Sandiganbayan an Information charging petitioner with Estafa through Falsification of
Public Documents (Articles 171 and 315 of the Revised Penal Code), docketed as
Criminal Case No. 14252. Petitioner was deemed by the OSP to have waived his right
to submit a counter-affidavit and supporting evidence. . . .
SECOND DIVISION
G.R. No. 110436 June 27, 1994
ROMAN A. CRUZ, JR., petitioner,
vs.
PEOPLE OF THE PHILIPPINES, THE SANDIGANBAYAN (First Division), and
OFFICE OF THE OMBUDSMAN,respondents.
REGALADO, J.:
The present original action for certiorari, prohibition and mandamus seeks the reversal
of the Orders issued by respondent Sandiganbayan in Criminal Case No. 14252, dated
February 17, 1993 1 and May 12, 1993, 2 denying petitioners Omnibus Motion and
Motion for Reconsideration, respectively.
The facts are summarized in the Memorandum of public respondents as follows:
4. As a result of the filing of two informations with respondent Sandiganbayan

involving the same accused (herein petitioner) and the same set of facts, Criminal Case
No. 14252 was consolidated with Criminal Case No. 14134 which was pending before
the First Division of respondent Sandiganbayan. . . .
5. Respondent Sandiganbayan, however, remanded the consolidated cases against
petitioner to the Office of the Ombudsman for reinvestigation inasmuch as:
a) the Information in Criminal Case No. 14134 was ordered dismissed in compliance
with the ruling of the Supreme Court in Cojuangco, Jr. vs. PCGG, et al., G.R. Nos.
92319-20, October 2, 1990, which declared null and void the preliminary
investigations conducted by the PCGG in all criminal cases involving matters which
were the subject matter of civil cases earlier filed; and
b) the Information in Criminal Case No. 14252 was correctly assailed by petitioner as
having been filed without the proper preliminary investigation. . . .
6. During the preliminary investigation conducted anew by the Office of the

Ombudsman, petitioner submitted his counter-affidavit and supporting documents.
After the completion of said investigation, Prosecutor Leonardo P. Tamayo of the
Office of the Ombudsman prepared a Resolution dated February 11, 1992, which
recommended the withdrawal of the Information in Criminal Case No. 14252. . . .
7. Respondent Ombudsman, however, despite the above recommendation of the
investigating prosecutor ordered the prosecution to proceed under the existing
Information in Criminal Case No. 14252 on his observation, viz:
Let us not do the defending for the accused. The explanations offered are too strained
to be believed. At best they are matters of defense for the accused to prove at the trial.
The alleged character of the funds involved being confidential and requires no auditing
is totally immaterial. It could even explain why this anomaly was committed. . . .
8. Petitioner thus filed with respondent Sandiganbayan (First Division) an Omnibus
Motion to Quash the Information, dated September 17, 1992, wherein he prayed ". . .
for the production of (the) record of the preliminary investigation), and that the
information be quashed outright or the disapproval of the Ombudsman set aside, or in
the alternative, that the Office of the Ombudsman be ordered to conduct further
proceedings, particularly the handwriting analysis prayed for by the petitioner which
would establish who committed the alleged falsification. . . .
On February 17, 1993, respondent Sandiganbayan promulgated a Resolution dated
February 15, 1993, the dispositive portion of which reads:
WHEREFORE, the Omnibus Motion of accused Roman A. Cruz, Jr. is DENIED for
lack of merit. . . .
10. A Motion for Reconsideration, dated April 12, 1993, of the aforequoted Resolution
was filed by petitioner . . . .
11. On May 12, 1993, respondent Sandiganbayan promulgated a Resolution, the
dispositive portion of which reads:
WHEREFORE, the Motion for Reconsideration of accused Roman A. Cruz, Jr. of this
Courts Resolution dated February 17, 1993 is DENIED for lack of merit. . . .
12. Hence, petitioner filed the instant petition. 3

Petitioner contends that respondent Sandiganbayan committed a grave abuse of
discretion:
1. In not dismissing the information considering that the Ombudsmans approval of the
order dismissing the complaint did not state the factual or legal basis therefor;
2. In not requiring the production of the record of the preliminary investigation in
wanton disregard of petitioners right to due process;
3. In not dismissing the information considering that, as found by the investigating
prosecutor, the money received by petitioner was a cash advance; and
4. In not requiring the Office of the Ombudsman to conduct further proceedings.
We do not find the instant petition to be impressed with merit as to warrant the
extraordinary writs prayed for.
The information filed against herein petitioner charging him with estafa through
falsification of public documents and for which he stands to be tried before respondent
court alleges:
That on or about or during the period from March 26, 1984 to May 11, 1984, or
sometime prior or subsequent thereto, at the City of Manila, Philippines, and within the
jurisdiction of this Honorable Court, Roman Cruz, Jr., then President and General
Manager of the Government Service Insurance System (GSIS) and likewise President
of the Manila Hotel, hence a public official having been duly appointed/elected and
qualified as such, taking advantage of his position, by means of deceit, committing an
offense in relation to his office, did then and there wilfully, unlawfully and feloniously
falsify Manila Hotel Invoices, Transportation, Charge, Cash, Budget for Food and
Drinks vouchers in the aggregate amount of P350,000.00 and then make it appear that
the GSIS management and staff had a five-day coordination meeting at the Manila
Hotel from March 23 to 30, 1984 at the cost of P350,000.00, for which reason the
GSIS paid/issued its check with No. 039511 dated May 11, 1984 in the amount of
P350,000.00 which check was deposited to the account of the Manila Hotel, and
thereafter cause the Manila Hotel to issue its check with No. 007272 dated May 11,
1984 in the amount of P350,000.00 payable to Roman Cruz, Jr. or himself, when in
truth and in fact, as the accused well knew that there was no such five-day GSIS
management and staff coordination meeting conducted/held at the Manila Hotel; and
further thereafter convert and appropriate to his own personal use and benefit/deposit
the said check to his own personal account with the Far East Bank and Trust Co. the
said check/amount of P350,000.00 to the damage and prejudice of the GSIS and/or
Manila Hotel and/or the government in the said amount of P350,000.00. 4
I. Petitioner initially submits that respondent Sandiganbayan acted with grave abuse of
discretion in not dismissing the information considering that the Ombudsmans
disapproval of the order dismissing the complaint did not state the factual or legal basis
therefor, in violation of the cardinal rules set forth in Ang Tibay, et al. vs. CIR, et
al. 5 The submission is premised on the theory that said rules apply to a preliminary
investigation which is to be considered quasi-judicial in nature. Petitioner avers that it
is the duty of the Ombudsman to assess the evidence and defenses of the respondent in
deciding a case, a failure wherein constitutes a violation of ones right to due process of
law. He further claims that "while the duty to deliberate does not impose the obligation
to decide right, it does imply a necessity which cannot be disregarded, namely, that of
having something to support the decision. The Ombudsman in this case not only failed
to decide right but has nothing at all to support his decision." 6
Respondents, on the other hand, aver that the Office of the Ombudsman is not
exercising quasi-judicial or quasi-legislative powers because "it does not act as a court"
when it conducts preliminary investigation of cases falling under its jurisdiction.
It is settled that the conduct of a preliminary investigation, which is defined as "an
inquiry or proceeding for the purpose of determining whether there is sufficient ground
to engender a well-founded belief that a crime cognizable by the Regional Trial Court
has been committed and that the respondent is probably guilty thereof, and should be
held for trial," 7 is, like court proceedings, subject to the requirements of both
substantive and procedural due process. This is because, a preliminary investigation is
considered as a judicial proceeding wherein the prosecutor or investigating officer, by
the nature of his functions, acts as a quasi-judicial officer. As we held in Cojuangco, Jr.
vs. PCGG, et al.: 8
. . . It must be undertaken in accordance with the procedure provided in Section 3, Rule
112 of the 1985 Rules of Criminal Procedure. This procedure is to be observed in order
to assure that a person undergoing such preliminary investigation will be afforded due
process.
As correctly pointed out by petitioner, an indispensable requisite of due process is that

the person who presides and decides over a proceeding, including a preliminary
investigation, must possess the cold neutrality of an impartial judge.
Although such a preliminary investigation is not a trial and is not intended to usurp the
function of the trial court, it is not a casual affair. The officer conducting the same
investigates or inquires into the facts concerning the commission of the crime with the
end in view of determining whether or not an information may be prepared against the
accused. Indeed, a preliminary investigation is in effect a realistic judicial appraisal of
the merits of the case. Sufficient proof of the guilt of the accused must be adduced so
that when the case is tried, the trial court may not be bound as a matter of law to order
an acquittal. A preliminary investigation has then been called a judicial inquiry. It is a
judicial proceeding. An act becomes judicial when there is opportunity to be heard and
for the production and weighing of evidence, and a decision is rendered thereon.
The authority of a prosecutor or investigating officer duly empowered to preside or to
conduct a preliminary investigation is no less than that of a municipal judge or even a
regional trial court judge. While the investigating officer, strictly speaking is not a
"judge," by the nature of his functions he is and must be considered to be a quasijudicial officer.
In the present case, petitioner asserts that his right to due process was violated in that
respondent Ombudsman failed to assess and consider the evidence presented by
petitioner in disapproving the recommendation for dismissal of the case by the
investigating prosecutor, and his ruling is not supported by the evidence on record. The
argument is specious.
His submission that he was deprived of his right to due process hinges on the erroneous
assumption that the order of the Ombudsman for the filing of the necessary information
is lacking in any factual or legal basis. Such a conclusion, however, stems from the fact
that said order did not entail a discussion of the rationale for the Ombudsmans action.
It may seem that the ratio decidendi for the Ombudsmans order may be wanting but
this is not a case of a total absence of factual and legal bases nor a failure to appreciate
the evidence presented. What is actually involved here is merely a review of the
conclusion arrived at by the investigating prosecutor as a result of his study and
analysis of the complaint, counter-affidavits, and the evidence submitted by the parties
during the preliminary investigation. The Ombudsman here is not conducting anew
another investigation but is merely determining the propriety and correctness of the
recommendation given by the investigating prosecutor, that is, whether probable cause
actually exists or not, on the basis of the findings of fact of the latter. Verily, it is
discretionary upon the Ombudsman if he will rely mainly on the findings of fact of the
investigating prosecutor in making a review of the latters report and recommendation,
as the Ombudsman can very well make his own findings of fact. There is nothing to
prevent him from acting one way or the other. As a matter of fact, Section 4, Rule 112
of the Rules of Court provides that "where the investigating assistant fiscal
recommends the dismissal of the case but his findings are reversed by the provincial or
city fiscal or the chief state prosecutor on the ground that a probable cause exists, the
latter may, by himself, file the corresponding information against the respondent or
direct any other assistant fiscal or state prosecutor to do so, without conducting another
preliminary investigation. 9
With more reason may the Ombudsman not be faulted in arriving at a conclusion
different from that of the investigating prosecutor on the basis of the same set of facts.
It cannot be said that the Ombudsman committed a grave abuse of discretion simply
because he opines contrarily to the prosecutor that, under the facts obtaining in the
case, there is probable cause to believe that herein petitioner is guilty of the offense
charged.
As aptly pointed out by respondent court in its resolution denying petitioners motion
for reconsideration, "to the Ombudsman, the narration of facts by Prosecutor Tamayo, .
. . demonstrated adequate cause to prosecute the accused Cruz." 10 Furthermore, public
respondents, in their Memorandum, correctly observed that "(f)rom the tenor of
respondent Ombudsmans statement, it is clear that he agreed with the findings of
facts of the investigating prosecutor butdisagreed with the latters conclusion on
the import and significance of said findings. On the basis of the findings of facts of the
investigating prosecutor, which were not disputed by petitioner, respondent
Ombudsman believed that there was sufficient ground to engender a well-founded
belief that a crime had been committed and that petitioner is probably guilty thereof." 11
Petitioner argues that the indication of disapproval by the Ombudsman which consists
merely of two paragraphs fails to point out the issues and relevant facts and is
consequently whimsical, capricious and arbitrary. Such proposition is fallacious. The
mere fact that the order to file an information against petitioner consists only of two
paragraphs is not sufficient to impute arbitariness or caprice on the part of the
Ombudsman, absent a clear showing that he gravely abused his discretion in
disapproving the recommendation of the investigating prosecutor. Neither is it tainted
with vindictiveness or oppression. He disapproved the recommendation of the special
prosecutor because he sincerely believed that there is sufficient evidence to indict the
accused. This is an exercise of the Ombudsmans power based upon constitutional

mandate, and the courts should not interfere in such exercise.
The rule is based not only upon the investigatory and prosecutory powers granted by
the Constitution to the Office of the Ombudsman but upon practicality as well.
Otherwise, the functions of the courts will be grievously hampered by innumerable
petitions assailing the dismissal of investigatory proceedings conducted by the Office
of the Ombudsman with regard to complaints filed before it, in much the same way that
the courts would be extremely swamped if they could be compelled to review the
exercise of discretion on the part of the prosecuting attorneys each time they decide to
file an information in court or dismiss a complaint by a private complaint. 12
II. Petitioner next avers that the error of respondent court in not requiring the
production of the record of the preliminary investigation is two-fold. First, it was in
violation of the constitutional right against arbitrary arrests because probable cause was
not "personally determined by the judge," considering that the records of the
preliminary investigation were not elevated to the judge for examination. Second, it
was in violation of petitioners right to due process of law since he was deprived of the
opportunity to examine the evidence against him and prepare his defense.
On the first issue, petitioner relies on the ruling in Lim, Sr., et al. vs. Felix, et
al. 13 which held that
If a judge relies entirely on the certification of the prosecutor as in this case where all
the records of the investigation are in Masbate, he or she has not personally determined
probable cause. The determination is made by the Provincial Prosecutor. The
constitutional requirement has not been satisfied. The judge commits a grave abuse of
discretion.
The conduct of a preliminary investigation should be distinguished as to whether it is
an investigation for the determination of a sufficient ground for the filing of the
information or one for the determination of a probable cause for the issuance of a
warrant of arrest. The first aspect of preliminary investigation is executive in nature. It
is part of the prosecutions job. The second kind of preliminary investigation, which is
more properly called preliminary examination, is judicial in nature and is lodged with
the judge. 14
For the latter, in the exercise of the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause for the issuance of a warrant
of arrest, the judge is not required to personally examine the complainant and his
witnesses. Following established doctrine and procedure, he shall: (1) personally
evaluate the report and the supporting documents submitted by the fiscal regarding the
existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if
on the basis thereof he finds no probable cause, he may disregard the fiscals report and
require the submission of supporting affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause. 15
Coming now to the case at bar, contrary to petitioners thesis, respondent court, in its
resolution promulgated on February 17, 1993 denying petitioners motion to quash the
information, found the existence of probable cause after making a deliberate and
exhaustive review of the facts obtaining in the case. Thus:
All of the above logical process, which is supported both by the finding of fact in the
Resolution and by admissions in the Motion of the accused, lead to the conclusion that
probable cause exists against accused Roman Cruz, Jr., for acts described in the
Information in the instant case.
The narration of facts culled from the record (as affirmed by both parties) support the
narration of facts in the Information. The superficial analysis of the admissions made
above indicate that the elements of Article 315 of the Revised Penal Code as well as of
Articles 171 and 172 thereof may probably be established.
It is true that the Manila Hotel eventually treated the P350,000.00 as a "cash advance"
to him. Accused Cruz, however, does not claim that there were cash advances made by
him as a consequence of which he received this sum. Nor has accused Roman Cruz
said that he had obtained a loan or cash advance from the Manila Hotel for a particular
purpose for which he was expected to subsequently render an accounting. All that
Manila Hotels subsequent description of this amount as a "cash advance," in fact, says
is that when it turned out that P350,000.00 could not be properly accounted for, it had
to be treated as an amount which accused Cruz had to pay back; thus, accountingwise,
a cash advance.
For accused to have received such a large amount from a company of which he was the
President required him to sign a receipt which would specify clearly what he was
receiving it for. If he received the sum as a cash advance for some future expense, the
Manila Hotel documents would clearly so demonstrate. If he received it as a cash
advance (against his salaries or other benefits), it would appear as a loan in Manila
Hotels books. Accused Cruz, however, has said no such thing in any of his pleadings
nor apparently has he so stated during the preliminary investigation.
In other words, accused Cruz as President of the Manila Hotel and, therefore, in a
position of great fiduciary nature received P350,000.00 in 1984 either for a nonexistent reason or for a false reason.
He may have an explanation. As of this time, however, if the evidence on record is
actually presented at trial, enough evidence would exist to put accused Roman A. Cruz,
Jr. at peril of his liberty and would require him to explain his side of the matter.
A case has, therefore, been demonstrated in the record and in the averment of accused
Cruz himself that the crime charged has probably been committed and that the accused
is probably guilty thereof.(Emphasis supplied.) 16
Petitioner would have respondent court order the production of the records of the
preliminary investigation in its determination of the existence of probable cause for the
issuance of the warrant of arrest. First and foremost, as hereinabove stated, in a
preliminary examination for the issuance of a warrant of arrest, the court is not tasked
to review in detail the evidence submitted during the preliminary investigation. It is
sufficient that the judge personally evaluates the report and supporting documents
submitted by the prosecution in determining probable cause. 17This is precisely what
respondent court did. In resolving the issue of probable cause, respondent court made
an in-depth analysis of the findings of fact of Prosecutor Tamayo, as well as the
Omnibus Motion submitted by petitioner. The correctness of these facts was not even
questioned by herein petitioner but, on the contrary was expressly affirmed in the
latters Omnibus Motion dated September 17, 1992 wherein it was stated that "(t)he
Order issued by the investigating prosecutor . . . contains a lucid narration of the
relevant facts."
The case of Lim cited by petitioner is not applicable to the present case because, in the
former, a warrant of arrest was issued by the respondent judge therein without
conducting his own personal evaluation of the case even if only on the basis of the
report submitted by the fiscal. Instead, the respondent therein simply declared:
"Considering that both the two competent officers to whom such duty was entrusted by
law have declared the existence of probable cause, each information is complete in
form and substance, and there is no visible defect on its face, this Court finds it just and
proper to rely on the prosecutors certification in each information . . . . This is far from
what actually transpired before the Sandiganbayan as reflected by the records in this
case. Hence, the ruling in Lim cannot be properly invoked.
of the permission must be filed by the defense for this purpose, with notice to all
parties. 18
As to the second issue, petitioner relies on the provisions of Section 8, Rule 112 of the
1985 Rules on Criminal Procedure, to wit:
It will be noted at the outset that precisely, as suggested by public respondents, herein
petitioner, in asking for the production of the records of the preliminary investigation in
order to enable him to prepare for his defense and for trial, is actually trying to avail of
this mode of discovery. There was good cause shown for the motion to produce the
records, that is, so that they may be introduced as evidence by the party requesting for
their production, which is one of the grounds provided for under Section 8, Rule 112 of
the Rules of Court.
Sec. 8. Record of preliminary investigation. The record of the preliminary

investigation whether conducted by a judge or a fiscal, shall not form part of the record
of the case in the Regional Trial Court. However, the said court, on its own initiative or
that of any party, may order the production of the record or any part thereof whenever
the same shall be necessary in the resolution of the case or any incident therein, or shall
be introduced as evidence by the party requesting for its production.
Public respondents contend that the production of the record of the preliminary
examination is not necessary since petitioner can always resort to any of the modes of
discovery available to an accused under the Rules of Court, specifically citing Section
11 of Rule 116, which provides:
It is true that the granting of permission lies within the discretion of the court.
However, respondent court in this case has failed to sufficiently justify its refusal to
have the records of the preliminary investigation produced before it so that petitioner
may use them for his defense, either in its resolutions denying petitioners Omnibus
Motion and Motion for Reconsideration, or in the pleadings and Memorandum filed by
herein respondents before this Court. Consequently, we find no reason to deny
petitioner the right to avail of such mode of discovery. If only for the reason that
petitioner should be given the opportunity to inspect the evidence presented during the
preliminary investigation solely for the purpose of enabling him to prepare for his
defense and for trial, this questioned resolution of respondent Sandiganbayan should be
modified.
Sec. 11. Production or inspection of material evidence in possession of prosecution.

On motion of the accused showing good cause and with notice to all parties, the court,
in order to prevent surprise, suppression, or alteration, may order the prosecution to
produce and permit the inspection and copying or photographing, of any written
statements given by the complainant and other witnesses in any investigation of the
offense conducted by the prosecution or any other investigating officers, as well as of
any designated documents, papers, books, accounts, letters, photographs, objects or
tangible things, not otherwise privileged, which constitute or contain evidence material
to any matter involved in the case, and which are in the possession or under the control
of the prosecution, the police, or any other law investigating agencies.
III. It is likewise contended that respondent court abused its discretion in not
dismissing the information considering that, as found by the investigating prosecutor,
the money received by petitioner was a cash advance for which he can only be held
civilly liable, but which civil liability has already been extinguished. Citing the case
of Yong Chan Kim vs. People, et al., 19 which held that a cash advance is in the form of
a loan and, therefore, there can be no estafa committed, petitioner argues that he only
incurred civil liability for the cash advance he obtained from the Manila Hotel.
However, he contends that such liability had allegedly been extinguished when his
leave credits and other benefits were withheld, the total of which was more than
sufficient to liquidate the advance made.
This rule refers to the right of the accused to move for production or inspection of
material evidence in the possession of the prosecution. It authorizes the defense to
inspect, copy or photograph any evidence of the prosecution in its possession after
obtaining the permission of the court. A motion showing good reasons for the granting
Also, it is argued that petitioner was denied due process when respondent court failed
to remand the case to the Ombudsman for further proceedings for the purpose of
determining the persons who actually forged the questioned documents by conducting
a handwriting analysis. This would have secured him from hasty and malicious
prosecution, and would even have led to the discovery of the true culprit, if indeed
documents had been fabricated.
Petitioners prayer for the production of the record is intended not only for proper
observance of the constitutional requirement that probable cause be determined
personally by the judge, but also to enable him to examine the evidence and prepare his
defenses and for trial.
It must here be stressed that a preliminary investigation is merely inquisitorial, and it is

often the only means of discovering the persons who may be reasonably charged with a
crime, to enable the prosecutor to prepare his complaint or information. It is not a trial
of the case on the merits and has no purpose except that of determining whether a
crime has been committed and whether there is probable cause to believe that the
accused is guilty thereof, and it does not place the persons against whom it is taken in
jeopardy. 20
The established rule is that a preliminary investigation is not the occasion for the full
and exhaustive display of the parties evidence; it is for the presentation of such
evidence only as may engender a well-grounded belief that an offense has been
committed and that the accused is probably guilty thereof. 21
Petitioner cannot be unaware that the Supreme Court is not a trier of facts, more so in
the consideration of the extraordinary writ of certiorari where neither questions of fact
nor even of law are entertained, but only questions of lack or excess of jurisdiction or
grave abuse of discretion. 25 Insofar as this third issue is concerned, therefore, we find
that no grave abuse of discretion has been committed by respondents which would
warrant the granting of the writ of certiorari.
WHEREFORE, the resolutions appealed from are hereby AFFIRMED, with the
modification that respondent Ombudsman is DIRECTED to produce the pertinent
records of the preliminary investigation before the Sandiganbayan at the proper
juncture of the proceedings therein and on sufficient justification therefor.
SO ORDERED.
Conformably therewith, the arguments raised by herein petitioner that the cash advance
is actually in the form of a loan and therefore no criminal liability attaches, and that
respondent court should have remanded the case for further investigation to determine
the true identity of the forgers, are all matters of defense which are best presented
during the trial before respondent court for its consideration.
_______________
The main function of the government prosecutor during the preliminary investigation is
merely to determine the existence of probable cause, and to file the corresponding
information if he finds it to be so. And, probable cause has been defined as the
existence of such facts and circumstances as would excite the belief, in a reasonable
mind, acting on the facts within the knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was prosecuted. 22
In the case at bar, the Ombudsman found that there was sufficient ground to believe
that petitioner is guilty of the crime charged on the basis of the factual findings of
Prosecutor Tamayo in the latters Order dated February 11, 1992 which were arrived at
after taking into consideration the evidence presented by the parties. A cursory perusal
of the records of this case will show that the findings of fact by the Office of the
Ombudsman are supported by substantial evidence, hence the same should be
considered conclusive. 23
Furthermore, the Ombudsmans findings are essentially factual in nature. Accordingly,
in assailing said findings on the contention that the Ombudsman committed a grave
abuse of discretion in holding that petitioner is liable for estafa through falsification of
public documents, petitioner is clearly raising questions of fact here. 24 His arguments
are anchored on the propriety of or error in the Ombudsmans appreciation of facts.
EN BANC
G.R. Nos. 94054-57 February 19, 1991
VICENTE LIM, SR. and MAYOR SUSANA LIM, petitioners,
vs.
HON. NEMESIO S. FELIX and HON. ANTONIO ALFANE, respondents.
G.R. Nos. 94266-69 February 19, 1991

JOLLY T. FERNANDEZ, FLORENCIO T. FERNANDEZ, JR., NONILON A.
BAGALIHOG, MAYOR NESTOR C. LIM and MAYOR ANTONIO
KHO, petitioners,
vs.
HON. NEMESIO S. FELIX and PROSECUTOR ANTONIO C.
ALFANE, respondents.
. . . after weighing the affidavits and answers given by the witnesses for the prosecution
during the preliminary examination in searching questions and answers, concludes that
a probable cause has been established for the issuance of a warrant of arrest of named
accused in the amended complaint, namely, Jimmy Cabarles, Ronnie Fernandez,
Nonilon Bagalihog, Jolly Fernandez, Florencio Fernandez, Jr., Vicente Lim, Sr., Susana
Lim, Nestor Lim, Antonio Kho, Jaime Liwanag, Zaldy Dumalag and Rene
Tualla alias Tidoy. (Rollo, p. 58, G.R. Nos. 94054-57)
xxx xxx xxx
GUTIERREZ, JR., J.:p

May a Judge without ascertaining the facts through his own personal determination and
relying solely on the certification or recommendation of a prosecutor that a probable
cause exists issue a warrant of arrest?
On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport
road of the Masbate Domestic Airport, located at the municipality of Masbate province
of Masbate, Congressman Moises Espinosa, Sr. and his security escorts, namely
Provincial Guards Antonio Cortes, Gaspar Amaro, and Artemio Fuentes were attacked
and killed by a lone assassin. Dante Siblante another security escort of Congressman
Espinosa, Sr. survived the assassination plot, although, he himself suffered a gunshot
wound.
An investigation of the incident then followed.
Thereafter, and for the purpose of preliminary investigation, the designated
investigator, Harry O. Tantiado, TSg, of the PC Criminal Investigation Service at Camp
Bagong Ibalon Legazpi City filed an amended complaint with the Municipal Trial
Court of Masbate accusing, among others, Vicente Lim, Sr., Mayor Susana Lim of
Masbate (petitioners in G.R. Nos. 9405457), Jolly T. Fernandez, Florencio T.
Fernandez, Jr., Nonilon A. Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho
(petitioners in G.R. Nos. 94266-69) of the crime of multiple murder and frustrated
murder in connection with the airport incident. The case was docketed as Criminal
Case No. 9211.
After conducting the preliminary investigation, the court issued an order dated July 31,
1989 stating therein that:
In the same Order, the court ordered the arrest of the petitioners and recommended the
amount of P200,000.00 as bail for the provisional liberty of each of the accused.
Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of
bail which was granted by the court and they were allowed to post bail in the amount of
P150,000.00 each. Except for Jimmy Cabarles, all the rest of the accused posted bail at
P200,000.00 each.
On August 29, 1989, the entire records of the case consisting of two hundred sixty one
(261) pages were transmitted to the Provincial Prosecutor of Masbate. Respondent
Acting Fiscal Antonio C. Alfane was designated to review the case.
On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding
of a prima facie case against the petitioners but differed in the designation of the crime
in that the ruled that ". . . all of the accused should not only be charged with Multiple
Murder With Frustrated Murder" but for a case of MURDER for each of the killing of
the four victims and a physical injuries case for inflicting gunshot wound on the
buttocks of Dante Siblante." (Annex "H", Comment of Fiscal Alfane, p. 186, Rollo,
G.R. Nos. 94054-57) A motion to reconsider the Resolution filed by petitioners Vicente
Lim, Sr. and Mayor Susana Lim was denied.
On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate,
four (4) separate informations of murder against the twelve (12) accused with a
recommendation of no bail.
On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a
verified petition for change of venue. (Case No. A.M. No. 89-11-1270-MTC, formerly,
G.R. Nos. 90587-90)
On December 14, 1989, we issued an en banc Resolution authorizing the change of

venue from the Regional Trial Court of Masbate to the Regional Trial Court of Makati
to avoid a miscarriage of justice, to wit:
On July 5, 1990, the respondent court issued an order denying for lack of merit the
motions and manifestations and issued warrants of arrest against the accused including
the petitioners herein. The respondent Judge said:
Acting on the petition for change of venue of the trial of Criminal Cases Nos. 5811,
5812, 5813, and 5814 from the Regional Trial Court, Masbate, Masbate to any of the
Regional Trial Courts at Quezon City or Makati, the Court Resolved to (a) GRANT the
aforesaid petition for transfer of venue in order to avoid miscarriage of justice (Article
VIII, Section 5(4) of the Philippine Constitution); (b) DIRECT the Clerk of Court,
Regional Trial Court, Masbate, Masbate to transmit the records of the aforesaid cases
to the Executive Judge, Regional Trial Court, Makati, for raffling among the other
branches of the court; and (c) ORDER the Regional Trial Court of Masbate, Masbate to
desist from further taking cognizance of the said cases until such time that the petition
is finally resolved.
In the instant cases, the preliminary investigation was conducted by the Municipal Trial
Court of Masbate, Masbate which found the existence of probable cause that the
offense of multiple murder was committed and that all the accused are probably guilty
thereof, which was affirmed upon review by the Provincial Prosecutor who properly
filed with the Regional Trial Court four separate informations for murder. Considering
that both the two competent officers to whom such duty was entrusted by law have
declared the existence of probable cause, each information is complete in form and
substance, and there is no visible defect on its face, this Court finds it just and proper
to rely on the prosecutor's certification in each information which reads: (pp. 1920, Rollo, G.R Nos. 94054-57; Emphasis supplied)
The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix.
xxx xxx xxx
Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several
motions and manifestations which in substance prayed for the following:
The petitioners then filed these consolidated petitions questioning the July 5, 1990
Order.
1. An order be issued requiring the transmittal of the initial records of the preliminary
inquiry or investigation conducted by the Municipal Judge Barsaga of Masbate for the
best enlightenment of this Honorable Court in its personal determination of the
existence of a probable cause or prima facieevidence as well as its determination of the
existence of guilt, pursuant to the mandatory mandate of the constitution that no
warrant shall issue unless the issuing magistrate shall have himself been personally
convinced of such probable cause.
In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued ". . . a
TEMPORARY RESTRAINING ORDER, effective immediately and continuing until
further orders from this Court, ordering the respondent judge or his duly authorized
representatives or agents to CEASE and DESIST from enforcing or implementing the
warrant of arrest without bail issued against the petitioners in his Order dated July 5,
1990 in Criminal Cases Nos. 5811-14.
In another Resolution dated July 31, 1990 in G.R. Nos. 94266-69, we resolved:
2. Movants be given ample opportunity to file their motion for preliminary

investigation as a matter of right; and
3. In the event that this court may later be convinced of the existence of a probable
cause, to be allowed to file a motion for reduction of bail or for admission of bail. (p.
17, Rollo, G.R. Nos. 94054-57)
In another manifestation, the Lims reiterated that the court conduct a hearing to
determine if there really exists aprima facie case against them in the light of documents
which are recantations of some witnesses in the preliminary investigation. The motions
and manifestations were opposed by the prosecution.
xxx xxx xxx

. . . To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering
and directing the respondent judge to recall/set aside and/or annul the legal effects of
the warrants of arrest without bail issued against and served upon herein petitioners
Jolly T. Fernandez, Florencio T. Fernandez, Jr. and Nonilon Bagalihog and release
them from confinement at PC-CIS Detention Center, Camp Crame, Quezon City; and
(2) TEMPORARY RESTRAINING ORDER, effective immediately and continuing
until further orders from this Court, ordering the respondent judge or his duly
authorized representatives or agents, to CEASE AND DESIST from enforcing or
implementing the warrants of arrest without bail issued against petitioners Mayors
Nestor C. Lim and Antonio T. Kho.
The primary issue in these consolidated petitions centers on whether or not a judge
may issue a warrant of arrest without bail by simply relying on the prosecution's
certification and recommendation that a probable cause exists.
This is not a novel question. In the case of Placer v. Villanueva (126 SCRA 463
[1983]), we ruled that a judge may rely upon the fiscal's certification of the existence of
probable cause and, on the basis thereof, issue a warrant of arrest. However, the
certification does not bind the judge to come out with the warrant of arrest. This
decision interpreted the "search and seizure" provision of the 1973 Constitution which
provides:
. . . no search warrant or warrant of arrest shall issue except upon probable cause to be
determined by the judge, or such other responsible officer as may be authorized by law,
after examination under oath or affirmation of the complainant and the witnesses he
may produce . . .
We ruled:
. . . The issuance of a warrant is not a mere ministerial function; it calls for the exercise
of judicial discretion on the part of the issuing magistrate. This is clear from the
following provisions of Section 6, Rule 112 of the Rules of Court.
Warrant of arrest, when issued. If the judge be satisfied from the preliminary
examination conducted by him or by the investigating officer that the offense
complained of has been committed and that there is reasonable ground to believe that
the accused has committed it, he must issue a warrant or order for his arrest.
Under this section, the judge must satisfy himself of the existence of probable cause
before issuing a warrant or order of arrest. If on the face of the information the judge
finds no probable cause, he may disregard the fiscal's certification and require the
submission of the affidavits of witnesses to aid him in arriving at a conclusion as to the
existence of a probable cause. This has been the rule since U.S. v. Ocampo (18 Phil. 1)
and Amarga v. Abbas (98 Phil. 739). And this evidently is the reason for the issuance
by respondent of the questioned orders of April 13, 15, 16, 19, 1982 and July 13, 1982.
Without the affidavits of the prosecution witnesses and other evidence which, as a
matter of long-standing practice had been attached to the information filed in his sala,
respondent found the informations inadequate bases for the determination of probable
cause. For as the ensuing events would show, after petitioners had submitted the
required affidavits, respondent wasted no time in issuing the warrants of arrest in the
case where he was satisfied that probable cause existed.
The case of Soliven v. Makasiar (167 SCRA 393 [19881) was decided after the
effectivity of the 1987 Constitution. We stated:
The second issue, raised by petitioner Beltran, calls for an interpretation of the
constitutional provision on the issuance of warrants of arrest. The pertinent provision
reads:
Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the deletion of
the grant of authority by the 1973 Constitution to issue warrants to "other respondent
officers as may be authorized by law", has apparently convinced petitioner Beltran that
the Constitution now requires the judge to personally examine the complainant and his
witnesses in his determination of probable cause for the issuance of arrest. This is not
an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause. In satisfying himself
of the existence of probable cause for the issuance of a warrant of arrest, the judge is
not required to personally examine the complainant and his witnesses. Following
established doctrine and procedures, he shall: (1) personally evaluate the report and the
supporting documents submitted by the fiscal regarding the existence of probable cause
and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds
no probable cause, he may disregard the fiscal's report and require the submission of
supporting affidavits of witnesses to aid him in arriving at a conclusion as to the
existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examinations and investigation of criminal complaints instead of
concentrating on hearing and deciding cases filed before their courts.
The decision in People v. Honorable Enrique B. Inting, et al. (G.R. No. 88919, July 25,
1990), reiterated the above interpretation of "personal" determination by the Judge:
We emphasize important features of the constitutional mandate that ". . . no search
warrant or warrant of arrest shall issue except 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 for the 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 the determination of probable cause. The Judge does not
have to follow what the Prosecutor presents to him. By itself, the Prosecutor's
certification of probable cause is ineffectual. It is the report, the affidavits, the
transcripts of stenographic notes (if any), and all other supporting documents behind
the Prosecutor's certification which are material in assisting the Judge to make his
determination.
And third, Judges and Prosecutors alike should distinguish the preliminary inquiry
which determines probable cause for the issuance of a warrant of arrest from the
preliminary investigation proper which ascertains whether the offender should be held
for trial or released. Even if the two inquiries are conducted in the course of one and
the same proceeding, there should be no confusion about the objectives. The
determination of probable cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged and, therefore, whether or not
he should be subjected to the expense, rigors and embarrassment of trial is the
function of the Prosecutor.
The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [19891):
Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have
authority to conduct preliminary investigations. That authority, at one time reposed in
them under Sections 13, 14 and 16, Rule 112 of the Rules of Court of 1964, ( See Sec.
4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran,
Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the
1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated on
November 11, 1984) which deleted all provisions granting that power to said Judges.
We had occasion to point tills out 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 the prosecution's
job, a function of the executive," (2) that whenever "there are enough his or prosecutors
to 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
necessary mean that it should be indiscriminately 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 not restore that authority to Judges of Regional Trial Courts;
said amendments did not in fact deal at all with the 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 make a preliminary examination for the purpose of determining whether
probable cause exists to justify the issuance of a warrant of arrest (or search warrant).
Such a power indeed, it is as much a duty as it is a power has been and remains
vested in every judge by the provisions in the Bill of Rights in the 1935, the 1973 and
the present [1987] Constitutions securing the people against unreasonable searches and
seizures, thereby placing it beyond the competence of mere Court Rule or Statute to
revoke. The distinction must, therefore, be made clear while an RTC Judge may no
longer conduct preliminary investigations to ascertain whether there is sufficient
ground for the filing of a criminal complaint or information, he retains the authority,
when such a pleading is filed with his court, to determine whether there is probable
cause justifying the issuance of a warrant of arrest. It might be added that this
distinction accords, rather than conflicts, with the rationale of Salta because both law
and rule, in restricting to judges the authority to order arrest, recognize the function to
be judicial in nature.
We reiterate that preliminary investigation should be distinguished as to whether it is
an investigation for the determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a probable cause for the
issuance of a warrant of arrest. The first kind of preliminary investigation is executive
in nature. It is part of the prosecution's job. The second kind of preliminary
investigation which is more properly called preliminary examination is judicial in

nature and is lodged with the Judge. . . .
constitutional requirement has not been satisfied. The Judge commits a grave abuse of
discretion.
Finally in the recent case of People v. Delgado, et al. (G.R. Nos. 93419-32, September
18, 1990) there is a statement that the judge may rely on the resolution of COMELEC
to file the information by the same token that it may rely on the certification made by
the prosecutor who conducted the preliminary investigation in the issuance of the
warrant of arrest. We, however, also reiterated that ". . . the court may require that the
record of the preliminary investigation be submitted to it to satisfy itself that there is
probable cause which will warrant the issuance of a warrant of arrest." (Section 2,
Article III, Constitution). Reliance on the COMELEC resolution or the Prosecutor's
certification presupposes that the records of either the COMELEC or the Prosecutor
have been submitted to the Judge and he relies on the certification or resolution
because the records of the investigation sustain the recommendation. The warrant
issues not on the strength of the certification standing alone but because of the records
which sustain it.
The records of the preliminary investigation conducted by the Municipal Court of

Masbate and reviewed by the respondent Fiscal were still in Masbate when the
respondent Fiscal issued the warrants of arrest against the petitioners. There was no
basis for the respondent Judge to make his own personal determination regarding the
existence of a probable cause for the issuance of a warrant of arrest as mandated by the
Constitution. He could not possibly have known what transpired in Masbate as he had
nothing but a certification. Significantly, the respondent Judge denied the petitioners'
motion for the transmittal of the records on the ground that the mere certification and
recommendation of the respondent Fiscal that a probable cause exists is sufficient for
him to issue a warrant of arrest.
It is obvious from the present petition that notwithstanding the above decisions, some
Judges are still bound by the inertia of decisions and practice under the 1935 and 1973
Constitutions and are sadly confused or hesitant. Prosecutors are also interested in a
clear cut ruling. We will, therefore, restate the rule in greater detail and hopefully
clearer terms.
There is no problem with search warrants which are relatively fewer and far between
and where there is no duplication of work between the Judge and the Prosecutor. The
problem lies with warrants of arrest especially in metropolitan or highly urban areas. If
a Judge has to personally question each complainant and witness or go over the records
of the Prosecutor's investigation page by page and word for word before he acts on
each of a big pile of applications for arrest warrants on his desk, he or she may have no
more time for his or her more important judicial functions.
At the same time, the Judge cannot ignore the clear words of the 1987 Constitution
which requires ". . . probable cause to be personally determined by the judge . . .", not
by any other officer or person.
If a Judge relies solely on the certification of the Prosecutor as in this case where all the
records of the investigation are in Masbate, he or she has not personally determined
probable cause. The determination is made by the Provincial Prosecutor. The
We reiterate the ruling in Soliven v. Makasiar that the Judge does not have to
personally examine the complainant and his witnesses. The Prosecutor can perform the
same functions as a commissioner for the taking of the evidence. However, there
should be a report and necessary documents supporting the Fiscal's bare certification.
All of these should be before the Judge.
The extent of the Judge's personal examination of the report and its annexes depends
on the circumstances of each case. We cannot determine beforehand how cursory or
exhaustive the Judge's examination should be. The Judge has to exercise sound
discretion for, after all, the personal determination is vested in the Judge by the
Constitution. It can be as brief or as detailed as the circumstances of each case require.
To be sure, the Judge must go beyond the Prosecutor's certification and investigation
report whenever necessary. He should call for the complainant and witnesses
themselves to answer the court's probing questions when the circumstances of the case
so require.
It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the
respondent Judge documents of recantation of witnesses whose testimonies were used
to establish a prima facie case against them. Although, the general rule is that
recantations are not given much weight in the determination of a case and in the
granting of a new trial (Tan Ang Bun v. Court of Appeals, et al. G.R. No. L-47747,
February 15, 1990, People v. Lao Wan Sing, 46 SCRA 298 [1972]) the respondent
Judge before issuing his own warrants of arrest should, at the very least, have gone
over the records of the preliminary examination conducted earlier in the light of the
evidence now presented by the concerned witnesses in view of the "political
undertones" prevailing in the cases. Even the Solicitor General recognized the
significance of the recantations of some witnesses when he recommends a

reinvestigation of the cases, to wit:
It must be pointed out, however, that among the documents attached to this Petition are
affidavits of recantation subsequently executed by Jimmy Cabarles and Danilo Lozano
and an affidavit executed by one, Camilo Sanano, father of the complainant's
witnesses, Renato and Romeo Sanano. It was precisely on the strength of these earlier
written statements of these witnesses that the Municipal Trial Court of Masbate found
the existence of a prima facie case against petitioners and accordingly recommended
the filing of a Criminal Information. Evidently, the same written statements were also
the very basis of the "Fiscal's Certification", since the attached affidavits of recantation
were not yet then available. Since the credibility of the prosecution witnesses is now
assailed and put in issue and, since the petitioners have not yet been arraigned, it would
be to the broader interest of justice and fair play if a reinvestigation of this case be had
to secure the petitioners against hasty prosecution and to protect them from an open
and public accusation of crime, from the trouble, expense and anxiety of a public trial,
and also to protect the State from useless and expensive trials (Salonga v. Pao G.R.
No. 59524, February 18,1985). (Rollo of G.R. Nos. 94054-56, pp. 200-201)
We reiterate that in making the required personal determination, a Judge is not
precluded from relying on the evidence earlier gathered by responsible officers. The
extent of the reliance depends on the circumstances of each case and is subject to the
Judge's sound discretion. However, the Judge abuses that discretion when having no
evidence before him, he issues a warrant of arrest.
Indubitably, the respondent Judge committed a grave error when he relied solely on the
Prosecutor's certification and issued the questioned Order dated July 5, 1990 without
having before him any other basis for his personal determination of the existence of a
probable cause.
WHEREFORE, the instant petitions are hereby GRANTED. The questioned Order of
respondent Judge Nemesio S. Felix of Branch 56, Regional Trial Court of Makati dated
July 5, 1990 is declared NULL and VOID and SET ASIDE. The Temporary
Restraining Orders and Preliminary Mandatory Injunction issued in the instant
Petitions are made PERMANENT.
SO ORDERED.
_____________
SECOND DIVISION
G.R. No. 150185
May 27, 2004
TERESITA TANGHAL OKABE, petitioner,

vs.
HON. PEDRO DE LEON GUTIERREZ, in his capacity as Presiding Judge of
RTC, Pasay City, Branch 119; PEOPLE OF THE PHILIPPINES; and CECILIA
MARUYAMA, respondents.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari, under Rule 45 of the Rules of Court, as
amended, that part of the Decision1 of the Court of Appeals in CA-G.R. SP No. 60732
dismissing her petition for certiorari under Rule 65 of the Rules of Court, as amended,
for the nullification of the August 25 and 28, 2000 Orders of the respondent judge in
Criminal Case No. 00-0749.
The Antecedents
Cecilia Maruyama executed a fifteen-page affidavit-complaint 2 and filed the same with
the Office of the City Prosecutor of Pasay City, on December 29, 1999, charging Lorna
Tanghal and petitioner Teresita Tanghal Okabe, a.k.a. Shiela Okabe, with estafa. In her
affidavit, Maruyama alleged, inter alia, that on December 11, 1998, she
entrusted Y11,410,000 with the peso equivalent of P3,993,500 to the petitioner, who
was engaged in the business of "door-to-door delivery" from Japan to the Philippines.
It was alleged that the petitioner failed to deliver the money as agreed upon, and, at
first, denied receiving the said amount but later returned only US$1,000 through Lorna
Tanghal.
During the preliminary investigation, the complainant, respondent Maruyama,
submitted the affidavit of her witnesses, namely, Hermogena Santiago, Wilma Setsu
and Marilette G. Izumiya and other documentary evidence. In her affidavit, Setsu
alleged that the money which was entrusted to the petitioner for delivery to the
Philippines belonged to her and her sister Annie Hashimoto, and their mother
Hermogena Sanchez-Quicho, who joined respondent Maruyama in her complaint
against petitioner Okabe and Tanghal. Respondent Maruyama, likewise, submitted a
reply3 to the petitioners counter-affidavit. After the requisite preliminary investigation,
2nd Assistant City Prosecutor Joselito J. Vibandor came out with a resolution dated
March 30, 2000, finding probable cause forestafa against the petitioner.4 Attached to
the resolution, which was submitted to the city prosecutor for approval, was the
Information5 against the petitioner and Maruyamas affidavit-complaint. The city
prosecutor approved the resolution and the Information dated March 30, 2000 attached
thereto.6
On May 15, 2000, an Information against the petitioner was filed in the Regional Trial
Court of Pasay City, docketed as Criminal Case No. 00-0749. The case was raffled to
Branch 119 of the court presided by Judge Pedro de Leon Gutierrez. 7 The accusatory
portion of the Information reads:
That on or about December 12, 1998 in Pasay City, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused defrauded
Cecilia Maruyama and Conchita Quicho, complainant herein, in the following manner,
to wit: said accused received in trust from Cecilia Maruyama the amount of Japanese
Yen 1141 (sic) with peso equivalent to P3,839,465.00 under obligation to deliver the
money to Conchita Quicho at the NAIA International Airport, Pasay City, immediately
upon accused arrival from Japan, but herein accused once in possession of the same,
did, then and there willfully, unlawfully and feloniously misappropriate and convert to
her own personal benefit the said amount, and despite demands accused failed and
refused to do so, to the damage and prejudice of the complainants in the aforesaid
amount.
Contrary to law.8
Appended to the Information was the affidavit-complaint of respondent Maruyama and
the resolution of Investigating Prosecutor Vibandor. On May 19, 2000, the trial court
issued a warrant for the arrest of the petitioner with a recommended bond of P40,000.
On June 15, 2000, the petitioner posted a personal bail bond in the said amount, duly
approved by Judge Demetrio B. Macapagal, the Presiding Judge of Branch 79 of the
RTC of Quezon City, who forthwith recalled the said warrant. The approved personal
bail bond of the petitioner was transmitted to the RTC of Pasig City on June 21, 2000.
Upon her request, the petitioner was furnished with a certified copy of the Information,
the resolution and the criminal complaint which formed part of the records of the said
case. The petitioner left the Philippines for Japan on June 17, 2000 without the trial
courts permission, and returned to the Philippines on June 28, 2000. She left the
Philippines anew on July 1, 2000, and returned on July 12, 2000.
On July 14, 2000, the trial court issued an Order setting the petitioners arraignment
and pre-trial at 2:00 p.m. of July 16, 2000. On the same day, the private prosecutor
filed an urgent ex parte motion for the issuance of the hold departure order, alleging as
follows:
3. It has come to the knowledge of private complainant that there is an impending
marriage within the Philippines of either the son or daughter of the above-named
accused and that the above-named accusedwho has businesses in Japan, and is
presently in Japanwill soon exit Japan and enter the Philippines to precisely attend
said wedding;
4. Given [a] the bail was fixed at merely P40,000.00 and [b] the considerable financial
capability of the accused, it is a foregone conclusion that the above-named accused
will, upon arrest, readily and immediately post bond, and leave for Japanthereby
frustrating and rendering inutile the administration of criminal justice in our country.
The speed with which accused Teresita Sheila Tanghal Okabe can post bond and leave
for Japaneffectively evading arraignment and pleathus necessitates the immediate
issuance of a Hold Departure Order even before her arrival here in the Philippines;9
The trial court issued an order on the same day, granting the motion of the private
prosecutor for the issuance of a hold departure order and ordering the Commission on
Immigration and Deportation (CID) to hold and prevent any attempt on the part of the
petitioner to depart from the Philippines.10 For her part, the petitioner filed on July 17,
2000 a verified motion for judicial determination of probable cause and to defer
proceedings/arraignment, alleging that the only documents appended to the
Information submitted by the investigating prosecutor were respondent Maruyamas
affidavit-complaint for estafa and the resolution of the investigating prosecutor; the
affidavits of the witnesses of the complainant, the respondents counter-affidavit and
the other evidence adduced by the parties were not attached thereto. The petitioner
further alleged that the documents submitted by the investigating prosecutor were not
enough on which the trial court could base a finding of probable cause for estafaagainst
her. She further averred that conformably to the rulings of this Court in Lim v.
Felix11 and Roberts, Jr. v. Court of Appeals,12 it behooved the investigating prosecutor
to submit the following to the trial court to enable it to determine the presence or
absence of probable cause: (a) copies of the affidavits of the witnesses of the
complainant; (b) the counter-affidavit of Okabe and those of her witnesses; (c) the
transcripts of stenographic notes taken during the preliminary investigation; and, (d)
other documents presented during the said investigation.
On July 19, 2000, the petitioner filed a Very Urgent Motion To Lift/Recall Hold
Departure Order dated July 17, 2000 and/or allow her to regularly travel to Japan
alleging, thus:
3. Accused is (sic) widow and the legitimate mother of three (3) children, two (2) of
whom are still minors, namely:
3.1. Okabe, Jeffrey-18 years old born on 13 August 1981.
3.2. Okabe, Masatoshi-14 years old and born on 16 October 1985, 3rd year High
School student at Hoshikuki, Chiba City, Matsugaoka, High School, residing at Chiba
City, Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804.
3.3. Okabe, Tomoki-13 years old and born on 13 March 1986, 2nd year High School
student at Hoshikuki, Chiba City, Matsugaoka, High School, residing at Chiba City,
Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804.
3.4. The accused has to attend the Parents Teachers Association (PTA) at the Hoshikuki
High School where her two (2) minor sons aforesaid are presently enrolled and
studying because Okabe, Masatoshis graduation will take place on 26 July 2000.
3.5. The two (2) minor children of the accused absolutely depend their support (basic
necessities) for foods, clothings, medicines, rentals, schooling and all other expenses
for their survival to their legitimate mother who is the accused herein.
3.6. The issuance of the hold departure order (HDO) will impair the inherent custodial
rights of the accused as the legitimate mother over these two (2) minor children which
is repugnant to law.
3.7. The issuance of the hold departure order (HDO) will unduly restrict the accused to
her custodial rights and visitation over her aforesaid minor children who are
permanently living in Japan.
3.8. The issuance of the hold departure order (HDO) will unduly deprived (sic) these
minor children to their right to obtain education and survival.
4. Accuseds only source of income and livelihood is door-to-door delivery from Japan
to the Philippines and vice versa which has been taking place for a very long period of
time and in the process she has been constantly departing from the Philippines on a
weekly basis and arriving in Japan on the same frequency, as evidenced by xerox
copies of the pages of her Philippine Passports which are hereto attached as Annexes
"A," "A-1," "A-2" up to "A-30," respectively. To deprive her of this only source of her
livelihood to which the aforesaid two (2) minor children are deriving their very
survival in a foreign land will (sic) tantamount to oppression rather than prosecution
and depriving the said minor sons of their right to live even before trial on the merits of
this case that will (sic) tantamount to the destruction of the future of these minor
children.13
The private prosecutor opposed the petitioners motions during the hearing on July 21,
2000 which was also the date set for her arraignment. The hearing of the motions as
well as the arraignment was reset to 2:00 p.m. of July 26, 2000. On the said date, the
petitioner filed a manifestation objecting to her arraignment prior to the resolution of
her pending motions. She alleged that her arraignment for the crime charged should not
be made a condition for the granting of her motion to recall the hold departure order
issued against her. The arraignment of the petitioner was again reset to 2:00 p.m. of
August 28, 2000, pending the resolution of her two motions. On August 25, 2000, the
petitioner filed a motion for the postponement of her arraignment alleging that, in case
the trial court ruled adversely thereon, she would refuse to enter a plea and seek relief
from the appellate court. The court denied the petitioners motions on the following
grounds:
(a) Based on its personal examination and consideration of the Information, the
affidavit-complaint of respondent Maruyama and the resolution of the investigating
prosecutor duly approved by the city prosecutor, the court found probable cause for the
petitioners arrest. Since the petitioners motion for a determination of probable cause
was made after the court had already found probable cause and issued a warrant for the
petitioners arrest, and after the latter filed a personal bail bond for her provisional
liberty, such motion was a mere surplusage;
(b) When the petitioner posted a personal bail bond for her provisional liberty, she
thereby waived her right to question the courts finding of the existence of probable
cause for her arrest and submitted herself to the jurisdiction of the court, more so when
she filed the motion for the lifting of the hold departure order the court issued, and the
motion to defer the proceedings and her arraignment; and
(c) The hold departure order issued by the trial court was in accord with Supreme Court
Circular No. 39-97 dated June 19, 1997, as well as the ruling of this Court in Manotoc,
Jr. v. Court of Appeals.14
When the case was called for the petitioners arraignment at 2:00 p.m., on August 28,
2000, she refused to plead. 15 Her counsel advised her, in open court, not to enter a plea
and, with leave of court, left the courtroom. The court then entered a not guilty plea for
the petitioner.16 It also issued an order, on the said date, setting the pre-trial and initial
presentation of the evidence of the prosecution at 8:30 a.m. of September 20, 2000.17
The petitioner then filed with the Court of Appeals a petition for certiorari under Rule
65 of the Rules of Court with a plea for a writ of preliminary injunction. The case was
docketed as CA-G.R. SP No. 60732. The petitioner ascribed the following errors to the
trial court:
On January 31, 2001, the CA rendered a Decision 19 partially granting the petition in
that the assailed order of the trial court denying the petitioners motion to lift/recall the
hold departure order was set aside. However, the petitioners motion for
reconsideration of the trial courts decision was denied and her petition for the
nullification of the August 25, 2000 Order of the respondent judge was dismissed. The
CA ruled that by posting bail and praying for reliefs from the trial court, the petitioner
waived her right to assail the respondent judges finding of the existence of probable
cause. The appellate court cited the ruling of this Court in Cojuangco, Jr. v.
Sandiganbayan.20 Thus, the appellate court affirmed the assailed order of the RTC,
based on the respondent judges personal examination of respondent Maruyamas
affidavit-complaint, the resolution of the investigating prosecutor and the Information
approved by the city prosecutor, a finding of probable cause was in order. However, the
appellate court allowed the petitioner to travel to Japan under the following conditions:
I. RESPONDENT COURT GRAVELY ERRED WHEN IT ISSUED WARRANT OF

ARREST DESPITE OF (SIC) LACK OF PROBABLE CAUSE
(1) That petitioner post a bond double the amount of her alleged monetary liability
under the Information filed against her, as recommended by the Office of the Solicitor
General;
II. RESPONDENT COURT HAS VIOLATED THE RIGHT OF THE PETITIONER

TO DUE PROCESS
(2) That petitioner inform respondent Court of each and all of her travel itinerary prior
to leaving the country;
III. RESPONDENT COURT HAS ALREADY PRE-JUDGED THE CONVICTION

OF THE PETITIONER FOR ESTAFA
(3) That petitioner make periodic reports with respondent Court;
IV. RESPONDENT COURT HAS EXHIBITED ITS APPARENT PARTIALITY

TOWARDS THE PROSECUTION AND AGAINST THE PETITIONER
V. RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE
MOTION FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE
PURSUANT TO THE DOCTRINE OF ROBERTS, JR.
VI. RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE
LIFTING/RECALL OF THE HDO AND/OR ALLOWING THE PETITIONER TO
TRAVEL TO JAPAN REGULARLY FOR HUMANITARIAN CONSIDERATION
VII. RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION WHEN IT ISSUED THE
QUESTIONED ORDERS18
(4) That petitioner furnish respondent Court with all the addresses of her possible place
of residence, both here and in Japan; and
(5) Such other reasonable conditions which respondent Court may deem appropriate
under the circumstances.21
The appellate court did not resolve the issue of whether the trial court had prejudged
the case and was partial to the prosecution. The decretal portion of the decision of the
CA reads:
WHEREFORE, premises considered, the instant special civil action for certiorari is
hereby PARTIALLY GRANTED insofar as the denial of petitioners Motion to
Lift/Recall Hold Departure Order dated 14 July, 2000 and/or Allow the accused to
Regularly Travel to Japan is concerned. In all other respect, the same is
hereby DENIED.
SO ORDERED.22
(f) ORDERING the private respondent to pay the costs of this suit.
On March 6, 2001, the petitioner filed a motion for a partial reconsideration of the
decision of the CA contending that the appellate court erred in applying the ruling of
this court in Cojuangco, Jr. v. Court of Appeals23 instead of Section 26, Rule 114 of the
Revised Rules on Criminal Procedure. The petitioner posited that the said rule, which
took effect on December 1, 2000, before the court rendered its decision, had
superseded the ruling of this Court in the Cojuangco case. However, the appellate court
held that Section 26, Rule 114 of the Revised Rules on Criminal Procedure cannot be
applied retroactively, because the petitioner had posted bail on June 15, 2000 before the
Revised Rules on Criminal Procedure took effect.
(g) Petitioner further prays for such other reliefs just and equitable under the
premises.24
Hence, the instant petition for review on certiorari for the reversal of the decision and
resolution of the CA and praying that after due proceedings, judgment be rendered in
her favor, thus:
The petitioner asserts that the CA committed the following reversible errors:
I
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR
WHEN IT COMPLETELY DISREGARDED THE APPLICATION OF SECTION 26,
RULE 114 OF THE REVISED RULES ON CRIMINAL PROCEDURE WHICH
TOOK EFFECT ON 01 DECEMBER 2000 WHICH IS FAVORABLE TO THE
PETITIONER/ACCUSED.
II
WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that after

due proceedings judgment be rendered in favor of the petitioner and against the
respondents as follows:
(a) GIVING DUE COURSE to the instant petition;
(b) ORDERING the REVERSAL and PARTIALLY SETTING ASIDE of the Decision
promulgated on 31 January 2001 (Annex "A" hereof) of the Honorable Court of
Appeals in CA-G.R. SP No. 60732 as well as its Resolution promulgated on 27
September 2001 (Annex "B" hereof);
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN

RULING THAT "WHATEVER INFIRMITY THERE WAS IN THE ISSUANCE OF
THE WARRANT OF ARREST, THE SAME WAS CURED WHEN PETITIONER
VOLUNTARILY SUBMITTED TO THE RESPONDENT COURTS JURISDICTION
WHEN SHE POSTED BAIL AND FILED MOTIONS SEEKING AFFIRMATIVE
RELIEF SUCH AS MOTION TO LIFT/RECALL HOLD DEPARTURE ORDER AND
TO ALLOW PETITIONER TO TRAVEL REGULARLY TO JAPAN (Last paragraph,
Page 9 DECISION dated 31 January 2001)."
III
(c) ORDERING the DISMISSAL of Crim. Case No. 00-0749 for lack of probable
cause;
(d) DECLARING the entire proceedings in Crim. Case No. 00-0749 as null and void;

WHEN IT RELIED UPON THE RULING IN THE CASE OF COJUANGCO, JR. VS.
SANDIGANBAYAN, [300 SCRA 367 (1998)] WHEN IN FACT SAID RULING IS
NOW OBSOLETE AND NO LONGER APPLICABLE.
(e) ORDERING the private respondents to pay the petitioners the following amount:
IV
(i) at least P1,000,000.00 as moral damages;
(ii) at least P1,000,000.00 as exemplary damages;
(iii) at least P500,000.00 as attorneys fees and for other expenses of litigation.
THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN

RULING
THAT RESPONDENT
COURT
COMPLIED
WITH
THE
CONSTITUTIONAL REQUIREMENTS ON THE ISSUANCE OF WARRANT OF
ARREST WITHOUT PROBABLE CAUSE, WHEN THE RESPONDENT COURT
MERELY RELIED ON [THE] (i) COMPLAINT-AFFIDAVIT OF CECILIA

MARUYAMA; (ii) RESOLUTION OF THE INVESTIGATING PROSECUTOR;
AND (iii) CRIMINAL INFORMATION.
IV. The Court of Appeals did not commit a reversible error in finding that respondent
Judge complied with the constitutional requirements on the issuance of a warrant of
arrest.
V. The Court of Appeals did not commit a reversible error when it did not rule on the
partiality of the respondent Judge in handling Criminal Case No. 00-0749.

WHEN IT FAILED TO RULE ON THE PARTIALITY OF THE RESPONDENT
JUDGE IN HANDLING THE CASE BELOW WHICH IS VIOLATIVE OF THE
PETITIONERS RIGHT TO DUE PROCESS.
VI. The Honorable Court of Appeals did not commit a reversible error when it did not
rule on petitioners claim of forum shopping.26
The Court shall resolve the assigned errors simultaneously as they are interrelated.
VI
THE FILING OF CRIM. CASE NO. 4297 (MTC, ANGAT, BULACAN) FOR
ESTAFA ENTITLED "PEOPLE VS. SHEILA OKABE"; CIVIL CASE NO. 331-M-98
(RTC, MALOLOS, BULACAN) FOR SUM OF MONEY WITH PRELIMINARY
ATTACHMENT ENTITLED "CONCHITA SANCHEZ-QUICHO VS. SHEILA
TERESITA TANGHAL OKABE"; AND CRIM. CASE NO. 00-07-19 (RTC, PASAY
CITY, BRANCH 119) ENTITLED "PEOPLE VS. TERESITA TANGHAL OKABE"
CONSTITUTE A VIOLATION OF THE RULE ON NON-FORUM SHOPPING.25
By way of comment, the Office of the Solicitor General refuted the petitioners
assigned errors, contending as follows:
I. The Court of Appeals did not commit a reversible error in not applying Section 26,
Rule 114 of the Revised Rules on Criminal Procedure.
II. The Court of Appeals did not commit a reversible error in ruling that the infirmity,
if any, in the issuance by the respondent Judge of the warrant of arrest against
petitioner was cured when petitioner voluntarily submitted to the trial courts
jurisdiction when she posted bail and filed motions seeking for affirmative reliefs from
the trial court, such as the motion to lift/recall Hold Departure Order (HDO) and to
allow petitioner to travel regularly to Japan.
III. The Court of Appeals did not commit a reversible error in applying the ruling in
the Cojuangco case.
The petitioner asserts that the respondent judge could not have determined the
existence of probable cause for her arrest solely on the resolution of the investigating
prosecutor and the undated affidavit-complaint of respondent Maruyama. She posits
that the respondent judge should have ordered the investigating prosecutor to submit
the affidavits of the witnesses of respondent Maruyama and the latters documentary
evidence, as well as the counter-affidavit of the petitioner and the transcripts of the
stenographic notes, if any, taken during the preliminary investigation. The petitioner
adds that the respondent judge should have personally reviewed the said documents,
conformably to the rulings of this Court in Lim v. Felix,27 Roberts, Jr. v. Court of
Appeals28 and Ho v. People,29 before determining the presence or absence of probable
cause. She posits that the respondent judge acted with grave abuse of discretion
amounting to excess or lack of jurisdiction in denying her motion for a determination
of probable cause, and the alternative motion for a dismissal of the case against her for
lack of probable cause.
The petitioner further asserts that the appellate court erred in affirming the ruling of the
respondent judge that, by posting a personal bail bond for her provisional liability and
by filing several motions for relief, she thereby voluntarily submitted herself to the
jurisdiction of the trial court and waived her right to assail the infirmities that infected
the trial courts issuance of the warrant for her arrest. She avers that the appellate
courts reliance on the ruling of this Court in Cojuangco, Jr. v. Sandiganbayan30 is
misplaced, and submits that the appellate court should have applied Section 26, Rule
114 of the Revised Rules of Court retroactively, as it rendered the ruling of this Court
in the Cojuangco, Jr. case obsolete.
The Office of the Solicitor General, on the other hand, asserts that the respondent judge
did not commit any grave abuse of discretion when he found probable cause against the
petitioner for estafa, and thereafter issued a warrant for her arrest. It argues that the
respondent judge personally determined the existence of probable cause independently
of the certification of the investigating prosecutor, and only after examining the
Information, the resolution of the investigating prosecutor, as well as the affidavitcomplaint of the private complainant. It asserts that such documents are sufficient on
which to anchor a finding of probable cause. It insists that the appellate court correctly
applied the ruling of this Court in the Cojuangco, Jr. v. Court of Appeals case, and that
the respondent judge complied with both the requirements of the constitution and those
set forth in the Rules of Court before issuing the said warrant.31
We agree with the contention of the petitioner that the appellate court erred in not
applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure, viz:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary
investigation. An application for or admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the warrant issued therefor, or
from assailing the regularity or questioning the absence of a preliminary investigation
of the charge against him, provided that he raises them before entering his plea. The
court shall resolve the matter as early as practicable but not later than the start of the
trial of the case.
It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal Procedure
is a new one, intended to modify previous rulings of this Court that an application for
bail or the admission to bail by the accused shall be considered as a waiver of his right
to assail the warrant issued for his arrest on the legalities or irregularities thereon. 32 The
new rule has reverted to the ruling of this Court in People v. Red.33 The new rule is
curative in nature because precisely, it was designed to supply defects and curb evils in
procedural rules. Hence, the rules governing curative statutes are applicable. Curative
statutes are by their essence retroactive in application. 34Besides, procedural rules as a
general rule operate retroactively, even without express provisions to that effect, to
cases pending at the time of their effectivity, in other words to actions yet
undetermined at the time of their effectivity.35 Before the appellate court rendered its
decision on January 31, 2001, the Revised Rules on Criminal Procedure was already in
effect. It behooved the appellate court to have applied the same in resolving the
petitioners petition for certiorari and her motion for partial reconsideration.
Moreover, considering the conduct of the petitioner after posting her personal bail
bond, it cannot be argued that she waived her right to question the finding of probable
cause and to assail the warrant of arrest issued against her by the respondent judge.
There must be clear and convincing proof that the petitioner had an actual intention to
relinquish her right to question the existence of probable cause. 36 When the only proof
of intention rests on what a party does, his act should be so manifestly consistent with,
and indicative of, an intent to voluntarily and unequivocally relinquish the particular
right that no other explanation of his conduct is possible. 37 In this case, the records
show that a warrant was issued by the respondent judge in Pasay City for the arrest of
the petitioner, a resident of Guiguinto, Bulacan. When the petitioner learned of the
issuance of the said warrant, she posted a personal bail bond to avert her arrest and
secure her provisional liberty. Judge Demetrio B. Macapagal of the RTC of Quezon
City approved the bond and issued an order recalling the warrant of arrest against the
petitioner. Thus, the posting of a personal bail bond was a matter of imperative
necessity to avert her incarceration; it should not be deemed as a waiver of her right to
assail her arrest. So this Court ruled in People v. Red:38
The present defendants were arrested towards the end of January, 1929, on the
Island and Province of Marinduque by order of the judge of the Court of First Instance
of Lucena, Tayabas, at a time when there were no court sessions being held in
Marinduque. In view of these circumstances and the number of the accused, it may
properly be held that the furnishing of the bond was prompted by the sheer necessity of
not remaining in detention, and in no way implied their waiver of any right, such as the
summary examination of the case before their detention. That they had no intention of
waiving this right is clear from their motion of January 23, 1929, the same day on
which they furnished a bond, and the fact that they renewed this petition on February
23, 1929, praying for the stay of their arrest for lack of the summary examination; the
first motion being denied by the court on January 24, 1929 (G.R. No. 33708, page 8),
and the second remaining undecided, but with an order to have it presented in Boac,
Marinduque.
Therefore, the defendants herein cannot be said to have waived the right granted to
them by section 13, General Order No. 58, as amended by Act No. 3042.39
Moreover, the next day, or on June 16, 2000, the petitioner, through counsel, received
certified true copies of the Information, the resolution of the investigating prosecutor,
the affidavit-complaint of the private complainant, respondent Maruyama, and a
certification from the branch clerk of court that only the Information, resolution and
affidavit-complaint formed part of the entire records of the case. The next day, June 17,
2000, the petitioner, through counsel, filed a verified motion for judicial determination
of probable cause and to defer the proceedings and her arraignment. All the foregoing
are inconsistent with a waiver of her right to assail the validity of her arrest and to
question the respondent judges determination of the existence of probable cause for
her arrest.
Neither can the petitioners filing of a motion for the lifting of the hold departure order
and for leave to go to Japan be considered a waiver of her right to assail the validity of
the arrest warrant issued by the respondent judge. It bears stressing that when the
petitioner filed the motion to lift the hold departure order issued against her by the
respondent judge, her motion for a determination of probable cause was still
unresolved. She sought a lifting of the hold departure order on July 14, 2000 and filed a
motion for leave to go to Japan, to give the respondent judge an opportunity to
reconsider the said order, preparatory to assailing the same in the appellate court in
case her motion was denied.
The issue that now comes to fore is whether or not the respondent judge committed a
grave abuse of his discretion amounting to excess or lack of jurisdiction in issuing his
August 25, 2000 Order. By grave abuse of discretion is meant such patent and gross
abuse of discretion as to amount to an evasion of positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reasons of passion or
personal hostility.40 Hence, when the court has jurisdiction over the case, its questioned
acts, even if its findings are not correct, would at most constitute errors of law and not
abuse of discretion correctible by the extraordinary remedy of certiorari.41
We agree with the petitioner that before the RTC judge issues a warrant of arrest under
Section 6, Rule 112 of the Rules of Court 42 in relation to Section 2, Article III of the
1987 Constitution, the judge must make a personal determination of the existence or
non-existence of probable cause for the arrest of the accused. The duty to make such
determination is personal and exclusive to the issuing judge. He cannot abdicate his
duty and rely on the certification of the investigating prosecutor that he had conducted
a preliminary investigation in accordance with law and the Rules of Court, as amended,
and found probable cause for the filing of the Information.
from the evidence presented, there is a reasonable ground to believe that the offense
charged has been committed and that the accused is probably guilty thereof. Such
certification of the investigating prosecutor is, by itself, ineffective. It is not binding on
the trial court. Nor may the RTC rely on the said certification as basis for a finding of
the existence of probable cause for the arrest of the accused.44
In contrast, the task of the presiding judge when the Information is filed with the court
is first and foremost to determine the existence or non-existence of probable cause for
the arrest of the accused. Probable cause is meant such set of facts and circumstances
which would lead a reasonably discreet and prudent man to believe that the offense
charged in the Information or any offense included therein has been committed by the
person sought to be arrested.45 In determining probable cause, the average man weighs
facts and circumstances without resorting to the calibrations of the rules of evidence of
which he has no technical knowledge. He relies on common sense. 46 A finding of
probable cause needs only to rest on evidence showing that more likely than not a
crime has been committed and that it was committed by the accused. Probable cause
demands more than bare suspicion, it requires less than evidence which would justify
conviction.47
The purpose of the mandate of the judge to first determine probable cause for the arrest
of the accused is to insulate from the very start those falsely charged of crimes from the
tribulations, expenses and anxiety of a public trial:
Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating
prosecutor, in conducting a preliminary investigation of a case cognizable by the RTC,
is tasked to determine whether there is sufficient ground to engender a well-founded
belief that a crime has been committed and the respondent therein is probably guilty
thereof and should be held for trial. A preliminary investigation is for the purpose of
securing the innocent against hasty, malicious and oppressive prosecution, and to
protect him from an open and public accusation of a crime, from the trouble, expense
and anxiety of a public trial.43
It must be stressed, however, that in these exceptional cases, the Court took the
extraordinary step of annulling findings of probable cause either to prevent the misuse
of the strong arm of the law or to protect the orderly administration of justice. The
constitutional duty of this Court in criminal litigations is not only to acquit the
innocent after trial but to insulate, from the start, the innocent from unfounded
charges. For the Court is aware of the strains of a criminal accusation and the stresses
of litigation which should not be suffered by the clearly innocent. The filing of an
unfounded criminal information in court exposes the innocent to severe distress
especially when the crime is not bailable. Even an acquittal of the innocent will not
fully bleach the dark and deep stains left by a baseless accusation for reputation once
tarnished remains tarnished for a long length of time. The expense to establish
innocence may also be prohibitive and can be more punishing especially to the poor
and the powerless. Innocence ought to be enough and the business of this Court is to
shield the innocent from senseless suits right from the start.48
If the investigating prosecutor finds probable cause for the filing of the Information
against the respondent, he executes a certification at the bottom of the Information that
In determining the existence or non-existence of probable cause for the arrest of the
accused, the RTC judge may rely on the findings and conclusions in the resolution of
the investigating prosecutor finding probable cause for the filing of the Information.
After all, as the Court held in Webb v. De Leon,49 the judge just personally reviews the
initial determination of the investigating prosecutor finding a probable cause to see if it
is supported by substantial evidence. 50 However, in determining the existence or nonexistence of probable cause for the arrest of the accused, the judge should not
rely solely on the said report.51 The judge should consider not only the report of the
investigating prosecutor but also the affidavit/affidavits and the documentary evidence
of the parties, the counter-affidavit of the accused and his witnesses, as well as the
transcript of stenographic notes taken during the preliminary investigation, if any,
submitted to the court by the investigating prosecutor upon the filing of the
Information.52 Indeed, in Ho v. People,53 this Court held that:
If the judge is able to determine the existence or non-existence of probable cause on the
basis of the records submitted by the investigating prosecutor, there would no longer be
a need to order the elevation of the rest of the records of the case. However, if the judge
finds the records and/or evidence submitted by the investigating prosecutor to be
insufficient, he may order the dismissal of the case, or direct the investigating
prosecutor either to submit more evidence or to submit the entire records of the
preliminary investigation, to enable him to discharge his duty.55 The judge may even
call the complainant and his witness to themselves answer the courts probing
questions to determine the existence of probable cause. 56 The rulings of this Court in
Soliven v. Makasiar57 andLim v. Felix58 are now embodied in Section 6, Rule 112 of the
Revised Rules on Criminal Procedure, with modifications, viz:
Lastly, it is not required that the complete or entire records of the case during the
preliminary investigation be submitted to and examined by the judge. We do not intend
to unduly burden trial courts by obliging them to examine the complete records of
every case all the time simply for the purpose of ordering the arrest of an accused.
What is required, rather, is that the judge must have sufficient supporting documents
(such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or
transcripts of stenographic notes, if any) upon which to make his independent judgment
or, at the very least, upon which to verify the findings of the prosecutor as to the
existence of probable cause. The point is: he cannot rely solely and entirely on the
prosecutors recommendation, as Respondent Court did in this case. Although the
prosecutor enjoys the legal presumption of regularity in the performance of his official
duties and functions, which in turn gives his report the presumption of accuracy, the
Constitution, we repeat, commands the judge to personally determine probable cause in
the issuance of warrants of arrest. This Court has consistently held that a judge fails in
his bounden duty if he relies merely on the certification or the report of the
investigating officer.54
SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within
ten (10) days from the filing of the complaint or information, the judge shall personally
evaluate the resolution of the prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to a warrant issued
by the judge who conducted the preliminary investigation or when the complaint or
information was filed pursuant to section 7 of this Rule. In case of doubt on the
existence of probable cause, the judge may order the prosecutor to present additional
evidence within five (5) days from notice and the issue must be resolved by the court
within thirty (30) days from the filing of the complaint of information.
The rulings of this Court are now embedded in Section 8(a), Rule 112 of the Revised
Rules on Criminal Procedure which provides that an Information or complaint filed in
court shall be supported by the affidavits and counter-affidavits of the parties and their
witnesses, together with the other supporting evidence of the resolution:
SEC. 8. Records. (a) Records supporting the information or complaint. An
information or complaint filed in court shall be supported by the affidavits and counteraffidavits of the parties and their witnesses, together with the other supporting evidence
and the resolution on the case.
In this case, the investigating prosecutor submitted to the respondent judge only his
resolution after his preliminary investigation of the case and the affidavit-complaint of
the private complainant, and failed to include the affidavits of the witnesses of the
private complainant, and the latters reply affidavit, the counter-affidavit of the
petitioner, as well as the evidence adduced by the private complainant as required by
case law, and now by Section 8(a), Rule 112 of the Revised Rules on Criminal
Procedure. The aforecited affidavits, more specifically the fax message of Lorna
Tanghal and the document signed by her covering the amount of US$1,000, are of vital
importance, as they would enable the respondent judge to properly determine the
existence or non-existence of probable cause.
First. When respondent Maruyama handed the money to the petitioner, she did not
require the latter to sign a document acknowledging receipt of the amount. The
petitioner avers that it is incredible that Maruyama would entrust P3,993,500 in
Japanese Yen to her without even requiring her to sign a receipt therefor, especially
since respondent Maruyama was not even the owner of the money;
Second. The affidavit of Hermogena Santiago, a witness of the respondent, is

unreliable, because it is based on information relayed to her by Lorna Tanghal that she
(Tanghal) saw the petitioner carrying a Louis Vuitton bag while on board a Mitsubishi
L300 van with the petitioner. It appears that Tanghal failed to submit any counteraffidavit to the investigating prosecutor;
Third. The affidavit of Marilette G. Izumiya, another witness of the respondent, is also
unreliable, as it was based on information relayed to her by Thelma Barbiran, who used
to work for the petitioner as a housemaid, that she (Barbiran) had in her possession a
fax message from Lorna Tanghal, implicating the petitioner in the crime charged.
Barbiran did not execute any affidavit;
Fourth. There is no indication in the resolution of the investigating prosecutor that the
petitioner received the fax message of Lorna Tanghal;
In view of the foregoing disquisitions, there is no more need to resolve the other issues
raised by the petitioner.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed
decision of the Court of Appeals isREVERSED and SET ASIDE. The assailed Orders
dated August 25 and 28, 2000 and the Warrant of Arrest issued by the respondent judge
in Criminal Case No. 00-0749 are SET ASIDE. The records are REMANDED to the
Regional Trial Court of Pasay City, Branch 119. The respondent judge is
hereby DIRECTED to determine the existence or non-existence of probable cause for
the arrest of the petitioner based on the complete records, as required under Section
8(a), Rule 112 of the Revised Rules on Criminal Procedure.
SO ORDERED.
_____________
Fifth. The private complainant claims that the petitioner tried to reimburse
the P3,993,500 by remitting US$1,000 to her. However, the latter admitted in her
affidavit-complaint that the document evidencing the remittance was signed by Lorna
Tanghal, not by the petitioner. The petitioner claimed that Lorna Tanghal had to remit
US$1,000 to respondent Maruyama because the latter made it appear to Tanghal that
the police authorities were about to arrest the petitioner, and Tanghal was impelled to
give the amount to respondent Maruyama to avert her arrest and incarceration;
Sixth. In her counter-affidavit, the petitioner alleged that respondent Maruyama had no
case against her because the crime charged in the latters affidavit-complaint was the
same as that filed against her in the Metropolitan Trial Court of Bulacan, which was
withdrawn by the complainant herself;
Seventh. The investigating prosecutor stated in his resolution that the private
complainant established the element of deceit. However, the crime charged against the
petitioner as alleged in the Information is estafa with abuse of confidence.
In sum, then, we find and so declare that the respondent judge committed a grave abuse
of his discretion amounting to excess or lack of jurisdiction in finding probable cause
for the petitioners arrest in the absence of copies of the affidavits of the witnesses of
the private complainant and her reply affidavit, the counter-affidavit of the petitioner,
and the evidence adduced during the preliminary investigation before the investigating
prosecutor.
HON. JUDGE VIVENCIO M. RUIZ, MISAEL P. VERA, in his capacity as

Commissioner of Internal Revenue, ARTURO LOGRONIO, RODOLFO DE
LEON, GAVINO VELASQUEZ, MIMIR DELLOSA, NICANOR ALCORDO,
JOHN DOE, JOHN DOE, JOHN DOE, and JOHN DOE, Respondents.
DECISION
VILLAMOR, J.:
This is an original action of certiorari, prohibition and mandamus, with prayer for a
writ of preliminary mandatory and prohibitory injunction. In their petition Bache & Co.
(Phil.), Inc., a corporation duly organized and existing under the laws of the
Philippines, and its President, Frederick E. Seggerman, pray this Court to declare null
and void Search Warrant No. 2-M-70 issued by respondent Judge on February 25,
1970; to order respondents to desist from enforcing the same and/or keeping the
documents, papers and effects seized by virtue thereof, as well as from enforcing the
tax assessments on petitioner corporation alleged by petitioners to have been made on
the basis of the said documents, papers and effects, and to order the return of the latter
to petitioners. We gave due course to the petition but did not issue the writ of
preliminary injunction prayed for therein.
The pertinent facts of this case, as gathered from record, are as follows:
On February 24, 1970, respondent Misael P. Vera, Commissioner of Internal Revenue,
wrote a letter addressed to respondent Judge Vivencio M. Ruiz requesting the issuance
of a search warrant against petitioners for violation of Section 46(a) of the National
Internal Revenue Code, in relation to all other pertinent provisions thereof, particularly
Sections 53, 72, 73, 208 and 209, and authorizing Revenue Examiner Rodolfo de Leon,
one of herein respondents, to make and file the application for search warrant which
was attached to the letter.
EN BANC
[G.R. No. L-32409. February 27, 1971.]
BACHE & CO. (PHIL.), INC. and FREDERICK E. SEGGERMAN, Petitioners, v.
In the afternoon of the following day, February 25, 1970, respondent De Leon and his
witness, respondent Arturo Logronio, went to the Court of First Instance of Rizal. They
brought with them the following papers: respondent Veras aforesaid letter-request; an
application for search warrant already filled up but still unsigned by respondent De
Leon; an affidavit of respondent Logronio subscribed before respondent De Leon; a
deposition in printed form of respondent Logronio already accomplished and signed by
him but not yet subscribed; and a search warrant already accomplished but still
unsigned by respondent Judge.
At that time respondent Judge was hearing a certain case; so, by means of a note, he
instructed his Deputy Clerk of Court to take the depositions of respondents De Leon
and Logronio. After the session had adjourned, respondent Judge was informed that the
depositions had already been taken. The stenographer, upon request of respondent
Judge, read to him her stenographic notes; and thereafter, respondent Judge asked
respondent Logronio to take the oath and warned him that if his deposition was found
to be false and without legal basis, he could be charged for perjury. Respondent Judge
signed respondent de Leons application for search warrant and respondent Logronios
deposition, Search Warrant No. 2-M-70 was then sign by respondent Judge and
accordingly issued.
Three days later, or on February 28, 1970, which was a Saturday, the BIR agents served
the search warrant petitioners at the offices of petitioner corporation on Ayala Avenue,
Makati, Rizal. Petitioners lawyers protested the search on the ground that no formal
complaint or transcript of testimony was attached to the warrant. The agents
nevertheless proceeded with their search which yielded six boxes of documents.
On March 3, 1970, petitioners filed a petition with the Court of First Instance of Rizal
praying that the search warrant be quashed, dissolved or recalled, that preliminary
prohibitory and mandatory writs of injunction be issued, that the search warrant be
declared null and void, and that the respondents be ordered to pay petitioners, jointly
and severally, damages and attorneys fees. On March 18, 1970, the respondents, thru
the Solicitor General, filed an answer to the petition. After hearing, the court, presided
over by respondent Judge, issued on July 29, 1970, an order dismissing the petition for
dissolution of the search warrant. In the meantime, or on April 16, 1970, the Bureau of
Internal Revenue made tax assessments on petitioner corporation in the total sum of
P2,594,729.97, partly, if not entirely, based on the documents thus seized. Petitioners
came to this Court.
The petition should be granted for the following reasons:
1. Respondent Judge failed to personally examine the complainant and his witness.
The pertinent provisions of the Constitution of the Philippines and of the Revised Rules
of Court are:
"(3) The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and 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, and
particularly describing the place to be searched, and the persons or things to be seized."
(Art. III, Sec. 1, Constitution.)
"SEC. 3. Requisites for issuing search warrant. A search warrant shall not issue but
upon probable cause in connection with one specific offense to be determined by the
judge or justice of the peace after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.
"No search warrant shall issue for more than one specific offense.
"SEC. 4. Examination of the applicant. The judge or justice of the peace must,
before issuing the warrant, personally examine on oath or affirmation the complainant
and any witnesses he may produce and take their depositions in writing, and attach
them to the record, in addition to any affidavits presented to him." (Rule 126, Revised
Rules of Court.)
The examination of the complainant and the witnesses he may produce, required by
Art. III, Sec. 1, par. 3, of the Constitution, and by Secs. 3 and 4, Rule 126 of the
Revised Rules of Court, should be conducted by the judge himself and not by others.
The phrase "which shall be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce," appearing in the
said constitutional provision, was introduced by Delegate Francisco as an amendment
to the draft submitted by the Sub-Committee of Seven. The following discussion in the
Constitutional Convention (Laurel, Proceedings of the Philippine Constitutional
Convention, Vol. III, pp. 755-757) is enlightening:
"SR. ORENSE. Vamos a dejar compaero los piropos y vamos al grano.
En los casos de una necesidad de actuar inmediatamente para que no se frusten los
fines de la justicia mediante el registro inmediato y la incautacion del cuerpo del delito,
no cree Su Seoria que causaria cierta demora el procedimiento apuntado en su
enmienda en tal forma que podria frustrar los fines de la justicia o si Su Seoria
encuentra un remedio para esto casos con el fin de compaginar los fines de la justicia
con los derechos del individuo en su persona, bienes etcetera, etcetera.
"SR. FRANCISCO. No puedo ver en la practica el caso hipottico que Su Seoria
pregunta por la siguiente razon: el que solicita un mandamiento de registro tiene que
hacerlo por escrito y ese escrito no aparecer en la Mesa del Juez sin que alguien vaya el
juez a presentar ese escrito o peticion de sucuestro. Esa persona que presenta el registro
puede ser el mismo denunciante o alguna persona que solicita dicho mandamiento de
registro. Ahora toda la enmienda en esos casos consiste en que haya peticion de
registro y el juez no se atendra solamente a sea peticion sino que el juez examiner a ese
denunciante y si tiene testigos tambin examiner a los testigos.
"SR. ORENSE. No cree Su Seoria que el tomar le declaracion de ese denunciante por
escrito siempre requeriria algun tiempo?.
"SR. FRANCISCO. Seria cuestio de un par de horas, pero por otro lado minimizamos
en todo lo posible las vejaciones injustas con la expedicion arbitraria de los
mandamientos de registro. Creo que entre dos males debemos escoger. el menor.
x
"MR. LAUREL. . . . The reason why we are in favor of this amendment is because we
are incorporating in our constitution something of a fundamental character. Now,
before a judge could issue a search warrant, he must be under the obligation to examine
personally under oath the complainant and if he has any witness, the witnesses that he
may produce . .
The implementing rule in the Revised Rules of Court, Sec. 4, Rule 126, is more
emphatic and candid, for it requires the judge, before issuing a search warrant, to
"personally examine on oath or affirmation the complainant and any witnesses he may
produce . . ."
Personal examination by the judge of the complainant and his witnesses is necessary to
enable him to determine the existence or non-existence of a probable cause, pursuant to
Art. III, Sec. 1, par. 3, of the Constitution, and Sec. 3, Rule 126 of the Revised Rules of
Court, both of which prohibit the issuance of warrants except "upon probable cause."
The determination of whether or not a probable cause exists calls for the exercise of
judgment after a judicial appraisal of facts and should not be allowed to be delegated in
the absence of any rule to the contrary.
In the case at bar, no personal examination at all was conducted by respondent Judge of
the complainant (respondent De Leon) and his witness (respondent Logronio). While it
is true that the complainants application for search warrant and the witness printedform deposition were subscribed and sworn to before respondent Judge, the latter did
not ask either of the two any question the answer to which could possibly be the basis
for determining whether or not there was probable cause against herein petitioners.
Indeed, the participants seem to have attached so little significance to the matter that
notes of the proceedings before respondent Judge were not even taken. At this juncture
it may be well to recall the salient facts. The transcript of stenographic notes (pp. 6176, April 1, 1970, Annex J-2 of the Petition) taken at the hearing of this case in the
court below shows that per instruction of respondent Judge, Mr. Eleodoro V. Gonzales,
Special Deputy Clerk of Court, took the depositions of the complainant and his
witness, and that stenographic notes thereof were taken by Mrs. Gaspar. At that time
respondent Judge was at the sala hearing a case. After respondent Judge was through
with the hearing, Deputy Clerk Gonzales, stenographer Gaspar, complainant De Leon
and witness Logronio went to respondent Judges chamber and informed the Judge that
they had finished the depositions. Respondent Judge then requested the stenographer to
read to him her stenographic notes. Special Deputy Clerk Gonzales testified as follows:
"A And after finishing reading the stenographic notes, the Honorable Judge requested
or instructed them, requested Mr. Logronio to raise his hand and warned him if his
deposition will be found to be false and without legal basis, he can be charged
criminally for perjury. The Honorable Court told Mr. Logronio whether he affirms the
facts contained in his deposition and the affidavit executed before Mr. Rodolfo de
Leon.
"Q And thereafter?
"A And thereafter, he signed the deposition of Mr. Logronio.
"Q Who is this he?
"A The Honorable Judge.
"Q The deposition or the affidavit?
"A The affidavit, Your Honor."
Thereafter, respondent Judge signed the search warrant.
The participation of respondent Judge in the proceedings which led to the issuance of
Search Warrant No. 2-M-70 was thus limited to listening to the stenographers readings
of her notes, to a few words of warning against the commission of perjury, and to
administering the oath to the complainant and his witness. This cannot be consider a
personal examination. If there was an examination at all of the complainant and his
witness, it was the one conducted by the Deputy Clerk of Court. But, as stated, the
Constitution and the rules require a personal examination by the judge. It was precisely
on account of the intention of the delegates to the Constitutional Convention to make it
a duty of the issuing judge to personally examine the complainant and his witnesses
that the question of how much time would be consumed by the judge in examining
them came up before the Convention, as can be seen from the record of the
proceedings quoted above. The reading of the stenographic notes to respondent Judge
did not constitute sufficient compliance with the constitutional mandate and the rule;
for by that manner respondent Judge did not have the opportunity to observe the
demeanor of the complainant and his witness, and to propound initial and follow-up
questions which the judicial mind, on account of its training, was in the best position to
conceive. These were important in arriving at a sound inference on the all-important
question of whether or not there was probable cause.
2. The search warrant was issued for more than one specific offense.
Search Warrant No. 2-M-70 was issued for" [v]iolation of Sec. 46(a) of the National
Internal Revenue Code in relation to all other pertinent provisions thereof particularly
Secs. 53, 72, 73, 208 and 209." The question is: Was the said search warrant issued "in
connection with one specific offense," as required by Sec. 3, Rule 126?
To arrive at the correct answer it is essential to examine closely the provisions of the
Tax Code referred to above. Thus we find the following:
Sec. 46(a) requires the filing of income tax returns by corporations.
Sec. 53 requires the withholding of income taxes at source.
Sec. 72 imposes surcharges for failure to render income tax returns and for rendering
false and fraudulent returns.
Sec. 73 provides the penalty for failure to pay the income tax, to make a return or to
supply the information required under the Tax Code.
(failure to make a return of receipts, sales, business or gross value of output actually
removed or to pay the tax due thereon). Even in their classification the six abovementioned provisions are embraced in two different titles: Secs. 46(a), 53, 72 and 73
are under Title II (Income Tax); while Secs. 208 and 209 are under Title V (Privilege
Tax on Business and Occupation).
Respondents argue that Stonehill, Et. Al. v. Diokno, Et Al., L-19550, June 19, 1967 (20
SCRA 383), is not applicable, because there the search warrants were issued for
"violation of Central Bank Laws, Internal Revenue (Code) and Revised Penal Code;"
whereas, here Search Warrant No 2-M-70 was issued for violation of only one code,
i.e., the National Internal Revenue Code. The distinction more apparent than real,
because it was precisely on account of the Stonehill incident, which occurred sometime
before the present Rules of Court took effect on January 1, 1964, that this Court
amended the former rule by inserting therein the phrase "in connection with one
specific offense," and adding the sentence "No search warrant shall issue for more than
one specific offense," in what is now Sec. 3, Rule 126. Thus we said in Stonehill:
"Such is the seriousness of the irregularities committed in connection with the disputed
search warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the
former Rules of Court that a search warrant shall not issue but upon probable cause in
connection with one specific offense. Not satisfied with this qualification, the Court
added thereto a paragraph, directing that no search warrant shall issue for more than
one specific offense."
3. The search warrant does not particularly describe the things to be seized.
Sec. 208 penalizes" [a]ny person who distills, rectifies, repacks, compounds, or
manufactures any article subject to a specific tax, without having paid the privilege tax
therefore, or who aids or abets in the conduct of illicit distilling, rectifying,
compounding, or illicit manufacture of any article subject to specific tax . . .," and
provides that in the case of a corporation, partnership, or association, the official and/or
employee who caused the violation shall be responsible.
Sec. 209 penalizes the failure to make a return of receipts, sales, business, or gross
value of output removed, or to pay the tax due thereon.
The search warrant in question was issued for at least four distinct offenses under the
Tax Code. The first is the violation of Sec. 46(a), Sec. 72 and Sec. 73 (the filing of
income tax returns), which are interrelated. The second is the violation of Sec. 53
(withholding of income taxes at source). The third is the violation of Sec. 208
(unlawful pursuit of business or occupation); and the fourth is the violation of Sec. 209
The documents, papers and effects sought to be seized are described in Search Warrant
No. 2-M-70 in this manner:
"Unregistered and private books of accounts (ledgers, journals, columnars, receipts and
disbursements books, customers ledgers); receipts for payments received; certificates
of stocks and securities; contracts, promissory notes and deeds of sale; telex and coded
messages; business communications, accounting and business records; checks and
check stubs; records of bank deposits and withdrawals; and records of foreign
remittances, covering the years 1966 to 1970."
The description does not meet the requirement in Art III, Sec. 1, of the Constitution,
and of Sec. 3, Rule 126 of the Revised Rules of Court, that the warrant should
particularly describe the things to be seized.
In Stonehill, this Court, speaking thru Mr. Chief Justice Roberto Concepcion, said:
"The grave violation of the Constitution made in the application for the contested
search warrants was compounded by the description therein made of the effects to be
searched for and seized, to wit:
Books of accounts, financial records, vouchers, journals, correspondence, receipts,
ledgers, portfolios, credit journals, typewriters, and other documents and/or paper
showing all business transactions including disbursement 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 petitioners herein, regardless of whether the transactions were
legal or illegal. The warrants sanctioned the seizure of all records of the petitioners and
the aforementioned corporations, whatever their nature, thus openly contravening the
explicit command of our Bill of Rights that the things to be seized be particularly
described as well as tending to defeat its major objective: the elimination of general
warrants."
While the term "all business transactions" does not appear in Search Warrant No. 2-M70, the said warrant nevertheless tends to defeat the major objective of the Bill of
Rights, i.e., the elimination of general warrants, for the language used therein is so allembracing as to include all conceivable records of petitioner corporation, which, if
seized, could possibly render its business inoperative.
In Uy Kheytin, Et. Al. v. Villareal, etc., Et Al., 42 Phil. 886, 896, this Court had
occasion to explain the purpose of the requirement that the warrant should particularly
describe the place to be searched and the things to be seized, to wit:
". . . Both the Jones Law (sec. 3) and General Orders No. 58 (sec. 97) specifically
require that a search warrant should particularly describe the place to be searched and
the things to be seized. The evident purpose and intent of this requirement is to limit
the things to be seized to those, and only those, particularly described in the search
warrant to leave the officers of the law with no discretion regarding what articles
they shall seize, to the end that unreasonable searches and seizures may not be made,
that abuses may not be committed. That this is the correct interpretation of this
constitutional provision is borne out by American authorities."
The purpose as thus explained could, surely and effectively, be defeated under the
search warrant issued in this case.
A search warrant may be said to particularly describe the things to be seized when the
description therein is as specific as the circumstances will ordinarily allow (People v.
Rubio; 57 Phil. 384); or when the description expresses a conclusion of fact not of
law by which the warrant officer may be guided in making the search and seizure
(idem., dissent of Abad Santos, J.,); or when the things described are limited to those
which bear direct relation to the offense for which the warrant is being issued (Sec. 2,
Rule 126, Revised Rules of Court). The herein search warrant does not conform to any
of the foregoing tests. If the articles desired to be seized have any direct relation to an
offense committed, the applicant must necessarily have some evidence, other than
those articles, to prove the said offense; and the articles subject of search and seizure
should come in handy merely to strengthen such evidence. In this event, the description
contained in the herein disputed warrant should have mentioned, at least, the dates,
amounts, persons, and other pertinent data regarding the receipts of payments,
certificates of stocks and securities, contracts, promissory notes, deeds of sale,
messages and communications, checks, bank deposits and withdrawals, records of
foreign remittances, among others, enumerated in the warrant.
Respondents contend that certiorari does not lie because petitioners failed to file a
motion for reconsideration of respondent Judges order of July 29, 1970. The
contention is without merit. In the first place, when the questions raised before this
Court are the same as those which were squarely raised in and passed upon by the court
below, the filing of a motion for reconsideration in said court before certiorari can be
instituted in this Court is no longer a prerequisite. (Pajo, etc., Et. Al. v. Ago, Et Al., 108
Phil., 905). In the second place, the rule requiring the filing of a motion for
reconsideration before an application for a writ of certiorari can be entertained was
never intended to be applied without considering the circumstances. (Matutina v.
Buslon, Et Al., 109 Phil., 140.) In the case at bar time is of the essence in view of the
tax assessments sought to be enforced by respondent officers of the Bureau of Internal
Revenue against petitioner corporation, On account of which immediate and more
direct action becomes necessary. (Matute v. Court of Appeals, Et Al., 26 SCRA 768.)
Lastly, the rule does not apply where, as in this case, the deprivation of petitioners
fundamental right to due process taints the proceeding against them in the court below
not only with irregularity but also with nullity. (Matute v. Court of Appeals, Et Al.,
supra.)
It is next contended by respondents that a corporation is not entitled to protection
against unreasonable search and seizures. Again, we find no merit in the contention.
"Although, for the reasons above stated, we are of the opinion that an officer of a
corporation which is charged with a violation of a statute of the state of its creation, or
of an act of Congress passed in the exercise of its constitutional powers, cannot refuse
to produce the books and papers of such corporation, we do not wish to be understood
as holding that a corporation is not entitled to immunity, under the 4th Amendment,
against unreasonable searches and seizures. A corporation is, after all, but an
association of individuals under an assumed name and with a distinct legal entity. In
organizing itself as a collective body it waives no constitutional immunities appropriate
to such body. Its property cannot be taken without compensation. It can only be
proceeded against by due process of law, and is protected, under the 14th Amendment,
against unlawful discrimination . . ." (Hale v. Henkel, 201 U.S. 43, 50 L. ed. 652.)
"In Linn v. United States, 163 C.C.A. 470, 251 Fed. 476, 480, it was thought that a
different rule applied to a corporation, the ground that it was not privileged from
producing its books and papers. But the rights of a corporation against unlawful search
and seizure are to be protected even if the same result might have been achieved in a
lawful way." (Silverthorne Lumber Company, Et. Al. v. United States of America, 251
U.S. 385, 64 L. ed. 319.)
In Stonehill, Et. Al. v. Diokno, Et Al., supra, this Court impliedly recognized the right
of a corporation to object against unreasonable searches and seizures, thus:
"As regards the first group, we hold that petitioners herein have no cause of action to
assail the legality of the contested warrants and of the seizures made in pursuance
thereof, for the simple reason that said corporations have their respective personalities,
separate and distinct from the personality of herein petitioners, regardless of the
amount of shares of stock or the interest of each of them in said corporations, whatever,
the offices they hold therein may be. Indeed, it is well settled that the legality of a
seizure can be contested only by the party whose rights have been impaired thereby,
and that the objection to an unlawful search and seizure is purely personal and cannot
be availed of by third parties. 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 to
the admission of said papers in evidence belongs exclusively to the corporations, to
whom the seized effects belong, and may not be invoked by the corporate officers in
proceedings against them in their individual capacity . . ."
here stands on a different footing from the corporations in Stonehill.

The tax assessments referred to earlier in this opinion were, if not entirely as
claimed by petitioners at least partly as in effect admitted by respondents
based on the documents seized by virtue of Search Warrant No. 2-M-70. Furthermore,
the fact that the assessments were made some one and one-half months after the search
and seizure on February 25, 1970, is a strong indication that the documents thus seized
served as basis for the assessments. Those assessments should therefore not be
enforced.
PREMISES CONSIDERED, the petition is granted. Accordingly, Search Warrant No.
2-M-70 issued by respondent Judge is declared null and void; respondents are
permanently enjoined from enforcing the said search warrant; the documents, papers
and effects seized thereunder are ordered to be returned to petitioners; and respondent
officials the Bureau of Internal Revenue and their representatives are permanently
enjoined from enforcing the assessments mentioned in Annex "G" of the present
petition, as well as other assessments based on the documents, papers and effects
seized under the search warrant herein nullified, and from using the same against
petitioners in any criminal or other proceeding. No pronouncement as to costs.
_______________
In the Stonehill case only the officers of the various corporations in whose offices
documents, papers and effects were searched and seized were the petitioners. In the
case at bar, the corporation to whom the seized documents belong, and whose rights
have thereby been impaired, is itself a petitioner. On that score, petitioner corporation
JOSEFINO S. ROAN, petitioner,

vs.
THE HONORABLE ROMULO T. GONZALES, PRESIDING JUDGE,
REGIONAL TRIAL COURT OF MARINDUQUE, BRANCH XXXVIII; THE
PROVINCIAL FISCAL OF MARINDUQUE; THE PROVINCIAL
COMMANDER, PC-INP MARINDUQUE, respondents.
CRUZ, J:
Once again we are asked to annul a search warrant on the ground that it violates the
Constitution. As we can do no less if we are to be true to the mandate of the
fundamental law, we do annul.
One of the most precious rights of the citizen in a free society is the right to be left
alone in the privacy of his own house. That right has ancient roots, dating back through
the mists of history to the mighty English kings in their fortresses of power. Even then,
the lowly subject had his own castle where he was monarch of all he surveyed. This
was his humble cottage from which he could bar his sovereign lord and all the forces of
the Crown.
That right has endured through the ages albeit only in a few libertarian regimes. Their
number, regrettably, continues to dwindle against the onslaughts of authoritarianism.
We are among the fortunate few, able again to enjoy this right after the ordeal of the
past despotism. We must cherish and protect it all the more now because it is like a
prodigal son returning.
That right is guaranteed in the following provisions of Article IV of the 1973
Constitution:
EN BANC
SEC. 3. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall not be violated, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other responsible officer as may
be authorized by law, after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched,
and the persons or things to be seized.
G.R. No. 71410 November 25, 1986

SEC. 4. (1) The privacy of communication and correspondence shag be inviolable
except upon lawful order of the court, or when public safety and order require
otherwise.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
Invoking these provisions, the petitioner claims he was the victim of an illegal search
and seizure conducted by the military authorities. The articles seized from him are
sought to be used as evidence in his prosecution for illegal possession of firearms. He
asks that their admission be temporarily restrained (which we have) 1 and thereafter
permanently enjoined.
The challenged search warrant was issued by the respondent judge on May 10,
1984. 2 The petitioner's house was searched two days later but none of the articles listed
in the warrant was discovered. 3 However, the officers conducting the search found in
the premises one Colt Magnum revolver and eighteen live bullets which they
confiscated. They are now the bases of the charge against the petitioner. 4
To be valid, a search warrant must be supported by probable cause to be determined by
the judge or some other authorized officer after examining the complainant and the
witnesses he may produce. No less important, there must be a specific description of
the place to be searched and the things to be seized, to prevent arbitrary and
indiscriminate use of the warrant. 5
Probable cause was described by Justice Escolin in Burgos v. Chief of Staff 6 as
referring to "such facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed and that the objects sought
in connection with the offense are in the place sought to be searched." As held in a long
line of decisions, the probable cause must refer to only one specific offense. 7
The inclusion of the requirement for the "examination under oath or affirmation of the
complainant and the witnesses he may produce" was a refinement proposed by
Delegate Vicente J. Francisco in the1934 Constitutional Convention. His purpose was
the strengthening of the guaranty against unreasonable searches and seizures. Although
the condition did not appear in the corresponding provision of the federa Constitution
of the United States which served as our model it was then already embodied in the
Code of Criminal Procedure. Nevertheless, Delegate Jose P. Laurel, Chairman of the
Committee on the Bill of Rights of that body, readily accepted the proposal and it was
thereafter, following a brief debate, approved by the Convention. 8
Implementing this requirement, the Rules of Court provided in what was then Rule
126:
SEC. 4. Examination of the applicant. The municipal or city judge must, before
issuing the warrant, personally examine on oath or affirmation the complainant and any
witnesses he may produce and take their depositions in writing, and attach them to the
record, in addition to any affidavits presented to him.
The petitioner claims that no depositions were taken by the respondent judge in
accordance with the above rule, but this is not entirely true. As a matter of fact,
depositions were taken of the complainant's two witnesses in addition to the affidavit
executed by them. 9 It is correct to say, however, that the complainant himself was not
subjected to a similar interrogation.
Commenting on this matter, the respondent judge declared:
The truth is that when PC Capt. Mauro P. Quinosa personally filed his application for a
search warrant on May 10, 1984, he appeared before me in the company of his two (2)
witnesses, Esmael Morada and Jesus Tohilida, both of whom likewise presented to me
their respective affidavits taken by Pat. Josue V. Lining, a police investigator assigned
to the PC-INP command at Camp Col. Maximo Abad. As the application was not yet
subscribed and sworn to, I proceeded to examine Captain Quillosa on the contents
thereof to ascertain, among others, if he knew and understood the same. Afterwards, he
subscribed and swore to the same before me. 10
By his own account, an he did was question Captain Quillosa on the contents of his
affidavit only "to ascertain, among others, if he knew and understood the same," and
only because "the application was not yet subscribed and swom to." The suggestion is
that he would not have asked any questions at all if the affidavit had already been
completed when it was submitted to him. In any case, he did not ask his own searching
questions. He limited himself to the contents of the affidavit. He did not take the
applicant's deposition in writing and attach them to the record, together with the
affidavit presented to him.
As this Court held in Mata v. Bayona: 11
Mere affidavits of the complainant and his witnesses are thus not sufficient. The
examining Judge has to take depositions in writing of the complainant and the
witnesses he niay produce and attach them to the record. Such written deposition is
necessary in order that the Judge may be able to properly determine the existence or
non-existence of the probable cause, to hold liable for perjury the person giving it if it
wifl 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 essential requisites of taking the depositions in writing and
attaching them to the record, rendering the search warrant invalid.
The respondent judge also declared that he "saw no need to have applicant Quillosa's
deposition taken considering that he was applying for a search warrant on the basis of
the information provided by the aforenamed witnesses whose depositions as
aforementioned had already been taken by the undersigned." 12
In other words, the applicant was asking for the issuance of the search warrant on the
basis of mere hearsay and not of information personally known to him, as required by
settled jurisprudence." 13 The rationale of the requirement, of course, is to provide a
ground for a prosecution for perjury in case the applicant's declarations are found to be
false. His application, standing alone, was insufficient to justify the issuance of the
warrant sought. It was therefore necessary for the witnesses themselves, by their own
personal information, to establish the apphcant's claims. 14
Even assuming then that it would have sufficed to take the depositions only of the
witnesses and not of the applicant himself, there is still the question of the sufficiency
of their depositions.
It is axiomatic that the examination must be probing and exhaustive, not merely
routinary or pro-forma, if the claimed probable cause is to be established. The
examining magistrate must not simply rehash the contents of the affidavit but must
make his own inquiry on the intent and justification of the application. 15
A study of the depositions taken from witnesses Esmael Morada and Jesus Tohilida,
who both claimed to be "intelligence informers," shows that they were in the main a
mere restatement of their allegations in their affidavits, except that they were made in
the form of answers to the questions put to them by the respondent judge. Significantly,
the meaningful remark made by Tohilida that they were suspicious of the petitioner
because he was a follower of the opposition candidate in the forthcoming election (a
"Lecarista") 16 did not excite the respondent judge's own suspicions. This should have
put him on guard as to the motivations of the witnesses and alerted him to possible
misrepresentations from them.
The respondent judge almost unquestioningly received the witnesses' statement that
they saw eight men deliver arms to the petitioner in his house on May 2, 1984. 17 This
was supposedly done overtly, and Tohilida said he saw everything through an open
window of the house while he was near the gate. 18 He could even positively say that
six of the weapons were.45 caliber pistols and two were.38 caliber revolvers. 19
One may well wonder why it did not occur to the respondent judge to ask how the
witness could be so certain even as to the caliber of the guns, or how far he was from
the window, or whether it was on the first floor or a second floor, or why his presence
was not noticed at all, or if the acts related were really done openly, in the full view of
the witnesses, considering that these acts were against the law. These would have been
judicious questions but they were injudiciously omitted. Instead, the declarations of the
witnesses were readily accepted and the search warrant sought was issued forthwith.
The above-discussed defects have rendered the search warrant invalid. Nonetheless, the
Solicitor General argues that whatever defect there was, was waived when the
petitioner voluntarily submitted to the search and manifested his conformity in
writing. 20
We do not agree. What we see here is pressure exerted by the military authorities, who
practically coerced the petitioner to sign the supposed waiver as a guaranty against a
possible challenge later to the validity of the search they were conducting. Confronted
with the armed presence of the military and the presumptive authority of a judicial writ,
the petitioner had no choice but to submit. This was not, as we held in a previous
case, 21 the manifestation merely of our traditional Filipino hospitality and respect for
authority. Given the repressive atmosphere of the Marcos regime, there was here, as we
see it, an intimidation that the petitioner could not resist.
The respondents also argue that the Colt Magnum pistol and the eighteen have bullets
seized from the petitioner were illegal per se and therefore could have been taken by
the military authorities even without a warrant. Possession of the said articles, it is
urged, was violative of P.D. 1866 and considered malum prohibitum. Hence, the Wegal
articles could be taken even without a warrant.
Prohibited articles may be seized but only as long as the search is valid. In this case, it
was not because: 1) there was no valid search warrant; and 2) absent such a warrant,
the right thereto was not validly waived by the petitioner. In short, the military officers
who entered the petitioner's premises had no right to be there and therefore had no right
either to seize the pistol and bullets.
It does not follow that because an offense is malum prohibitum, the subject thereof is
necessarily illegal per se.Motive is immaterial in mala prohibita, but the subjects of
this kind of offense may not be summarily seized simply because they are prohibited. A
search warrant is still necessary. If the rule were otherwise, then the military authorities
could have just entered the premises and looked for the guns reportedly kept by the
petitioner without bothering to first secure a search warrant. The fact that they did
bother to do so indicates that they themselves recognized the necessity of such a
warrant for the seizure of the weapons the petitioner was suspected of possessing.
It is true that there are certain instances when a search may be validly made without
warrant and articles may be taken validly as a result of that search. For example, a
warrantless search may be made incidental to a lawful arrest, 22 as when the person
being arrested is frished for weapons he may otherwise be able to use against the
arresting officer. Motor cars may be inspected at borders to prevent smuggling of aliens
and contraband 23 and even in the interior upon a showing of probable cause. 24 Vessels
and aircraft are also traditionally removed from the operation of the rule because of
their mobility and their relative ease in fleeing the state's jurisdiction. 25The individual
may knowingly agree to be searched or waive objections to an illegal search. 26 And it
has also been held that prohibited articles may be taken without warrant if they are
open to eye and hand and the peace officer comes upon them inadvertently. 27
Clearly, though, the instant case does not come under any of the accepted exceptions.
The respondents cannot even claim that they stumbled upon the pistol and bullets for
the fact is that these things were deliberately sought and were not in plain view when
they were taken. Hence, the rule having been violated and no exception being
applicable, the conclusion is that the petitioner's pistol and bullets were confiscated
illegally and therefore are protected by the exclusionary principle.
Stonehill v. Diokno established this rule which was later expressly affirmed in the 1973
Constitution. While conceding that there may be occasions when the criminal might be
allowed to go free because "the constable has blundered," Chief Justice Concepcion
observed that the exclusionary rule was nonetheless "the only practical means of
enforcing the constitutional injunction" against abuse. The decision cited Judge
Learned Hand's justification that "only in case the prosecution which itself controls the
seizing officials, know that it cannot profit by their wrong, will the wrong be repressed.
"
The pistol and bullets cannot, of course, be used as evidence against the petitioner in
the criminal action against him for illegal possession of firearms. Pending resolution of
that case, however, the said articles must remain incustodia legis.
Finally, it is true that the petitioner should have, before coming to this Court, filed a
motion for the quashal of the search warrant by the respondent judge in accordance
with the normal procedure. But as we said and did in Burgos, "this procedural flaw
notwithstanding, we take cognizance of this petition in view of the seriousness and
urgency of the constitutional issues raised. 28
WHEREFORE, Search Warrant No. 1-84 issued by the respondent judge on May 10,
1984, is hereby declared null and void and accordingly set aside. Our restraining order
of August 6,1985, is made permanent. No costs.
SO ORDERED.
__________________
EN BANC
G.R. No. L-45358
January 29, 1937
NARCISO
ALVAREZ, petitioner,
vs.
THE COURT OF FIRST INSTANCE OF TAYABAS and THE ANTI-USURY
BOARD, respondents.
IMPERIAL, J.:
The petitioner asks that the warrant of June 3, 1936, issued by the Court of First
Instance of Tayabas, ordering the search of his house and the seizure, at any time of the
day or night, of certain accounting books, documents and papers belonging to him in
his residence situated in Infanta, Province of Tayabas, as well as the order of a later
date, authorizing the agents of the Anti-Usury Board to retain the articles seized, be
declared illegal and set aside, and prays that all the articles in question be returned to
him.
On the date above-mentioned, the chief of the secret service of the Anti-Usury Board,
of the Department of Justice, presented to Judge Eduardo Gutierrez David then
presiding over the Court of First Instance of Tayabas, an affidavit alleging that
according to reliable information, the petitioner kept in his house in Infanta, Tayabas,
books, documents, receipts, lists, chits and other papers used by him in connection with
his activities as a money-lender charging usurious rates of interest in violation of the
law. In his oath at the and of the affidavit, the chief of the secret service stated that his
answers to the questions were correct to the best of his knowledge and belief. He did
not swear to the truth of his statements upon his own knowledge of the facts but upon
the information received by him from a reliable person. Upon the affidavit in question
the Judge, on said date, issued the warrant which is the subject matter of the petition,
ordering the search of the petitioner's house at nay time of the day or night, the seizure
of the books and documents above-mentioned and the immediate delivery thereof to
him to be disposed of in accordance with the law. With said warrant, several agents of
the Anti-Usury Board entered the petitioner's store and residence at seven o'clock on
the night of June 4, 1936, and seized and took possession of the following articles:
internal revenue licenses for the years 1933 to 1936, one ledger, two journals, two
cashbooks, nine order books, four notebooks, four checks stubs, two memorandums,
three bankbooks, two contracts, four stubs, forty-eight stubs of purchases of copra, two
inventories, two bundles of bills of lading, one bundle of credit receipts, one bundle of
stubs of purchases of copra, two packages of correspondence, one receipt book
belonging to Luis Fernandez, fourteen bundles of invoices and other papers many
documents and loan contracts with security and promissory notes, 504 chits,
promissory notes and stubs of used checks of the Hongkong & Shanghai Banking
Corporation. The search for and a seizure of said articles were made with the
opposition of the petitioner who stated his protest below the inventories on the ground
that the agents seized even the originals of the documents. As the articles had not been
brought immediately to the judge who issued the search warrant, the petitioner, through
his attorney, filed a motion on June 8, 1936, praying that the agent Emilio L. Siongco,
or any other agent, be ordered immediately to deposit all the seized articles in the office
of the clerk of court and that said agent be declared guilty of contempt for having
disobeyed the order of the court. On said date the court issued an order directing
Emilio L. Siongco to deposit all the articles seized within twenty-four hours from the
receipt of notice thereof and giving him a period of five (5) days within which to show
cause why he should not be punished for contempt of court. On June 10th, Attorney
Arsenio Rodriguez, representing the Anti-Usury Board, filed a motion praying that the
order of the 8th of said month be set aside and that the Anti-Usury Board be authorized
to retain the articles seized for a period of thirty (30) days for the necessary
investigation. The attorney for the petitioner, on June 20th, filed another motion
alleging that, notwithstanding the order of the 8th of said month, the officials of the
Anti-Usury Board had failed to deposit the articles seized by them and praying that a
search warrant be issued, that the sheriff be ordered to take all the articles into his
custody and deposit of the Anti-Usury Board be punished for contempt of court. Said
attorney, on June 24th, filed an ex parte petition alleging that while agent Emilio L.
Siongco had deposited some documents and papers in the office of the clerk of court,
he had so far failed to file an inventory duly verified by oath of all the documents
seized by him, to return the search warrant together with the affidavit it presented in
support thereof, or to present the report of the proceedings taken by him; and prayed
that said agent be directed to filed the documents in question immediately. On the 25th
of said month the court issued an order requiring agent Emilio L. Siongco forthwith to
file the search warrant and the affidavit in the court, together with the proceedings
taken by him, and to present an inventory duly verified by oath of all the articles
seized. On July 2d of said year, the attorney for the petitioner filed another petition
alleging that the search warrant issue was illegal and that it had nit yet been returned to
date together with the proceedings taken in connection therewith, and praying that said
warrant be cancelled, that an order be issued directing the return of all the articles
seized to the petitioner, that the agent who seized them be declared guilty of contempt
of court, and that charges be filed against him for abuse of authority. On September 10,
1936, the court issued an order holding: that the search warrant was obtained and
issued in accordance with the law, that it had been duly complied with and,
consequently, should not be cancelled, and that agent Emilio L. Siongco did not
commit any contempt of court and must, therefore, be exonerated, and ordering the
chief of the Anti-Usury Board in Manila to show case, if any, within the unextendible
period of two (2) days from the date of notice of said order, why all the articles seized
appearing in the inventory, Exhibit 1, should not be returned to the petitioner. The
assistant chief of the Anti-Usury Board of the Department of Justice filed a motion
praying, for the reasons stated therein, that the articles seized be ordered retained for
the purpose of conducting an investigation of the violation of the Anti-Usury Law
committed by the petitioner. In view of the opposition of the attorney for the petitioner,
the court, on September 25th, issued an order requiring the Anti-Usury Board to
specify the time needed by it to examine the documents and papers seized and which of
them should be retained, granting it a period of five (5) days for said purpose. On the
30th of said month the assistant chief of the Anti-Usury Board filed a motion praying
that he be granted ten (10) days to comply with the order of September 25th and that
the clerk of court be ordered to return to him all the documents and papers together
with the inventory thereof. The court, in an order of October 2d of said year, granted
him the additional period of ten(10) days and ordered the clerk of court to send him a
copy of the inventory. On October 10th, said official again filed another motion
alleging that he needed sixty (60) days to examine the documents and papers seized,
which are designated on pages 1 to 4 of the inventory by Nos. 5, 1016, 23, 25, 26, 27,
30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, and praying that he be granted said
period of sixty (60) days. In an order of October 16th, the court granted him the period
of sixty (60) days to investigate said nineteen (19) documents. The petitioner alleges,
and it is not denied by the respondents, that these nineteen (19)documents continue in
the possession of the court, the rest having been returned to said petitioner.
I. A search warrant is an order in writing, issued in the name of the People of the
Philippine Islands, signed by a judge or a justice of the peace, and directed to a peace
officer, commanding him to search for personal property and bring it before the court
(section 95, General Orders. No. 58, as amended by section 6 of Act No. 2886). 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 papers from the inspection and scrutiny of others (In
re Pacific Railways Commission, 32 Fed., 241; Interstate Commerce Commission vs
Brimson, 38 Law. ed., 1047; Broyd vs. U. S., 29 Law. ed., 746; Carollvs. U. S., 69 Law.
ed., 543, 549). While the power to search and seize is necessary to the public welfare,
still it must be exercised and the law enforced without transgressing the constitutional
rights or citizen, for the enforcement of no statue is of sufficient importance to justify
indifference to the basis principles of government (People vs. Elias, 147 N. E., 472).
II. As the protection of the citizen and the maintenance of his constitutional right is one
of the highest duties and privileges of the court, these constitutional guaranties should
be given a liberal construction or a strict construction in favor of the individual, to
prevent stealthy encroachment upon, or gradual depreciation on, the rights secured by
them(State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237
Pac., 373). Since the proceeding is a drastic one, it is the general rule that statutes
authorizing searches and seizure or search warrants must be strictly construed
(Rose vs. St. Clair, 28 Fed., [2d], 189; Leonard vs.U. S., 6 Fed. [2d], 353; Perry vs. U.
S. 14 Fed. [2d],88; Cofer vs. State, 118 So., 613).
III. The petitioner claims that the search warrant issued by the court is illegal because it
has been based upon the affidavit of agent Mariano G. Almeda in whose oath he
declared that he had no personal knowledge of the facts which were to serve as a basis
for the issuance of the warrant but that he had knowledge thereof through mere
information secured from a person whom he considered reliable. To the question "What
are your reason for applying for this search warrant", appearing in the affidavit, the
agent answered: "It has been reported to me by a person whom I consider to be reliable
that there are being kept in said premises, books, documents, receipts, lists, chits, and
other papers used by him in connection with his activities as a money-lender, charging
a usurious rate of interest, in violation of the law" and in attesting the truth of his
statements contained in the affidavit, the said agent states that he found them to be
correct and true to the best of his knowledge and belief.
Section 1, paragraph 3, of Article III of the Constitution, relative to the bill of rights,
provides that "The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and 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, and particularly describing the place top be searched, and the persons or
things to be seized." Section 97 of General Orders, No. 58 provides that "A search
warrant shall not issue except for probable cause and upon application supported by
oath particularly describing the place to be searched and the person or thing to be
seized." It will be noted that both provisions require that there be not only probable
cause before the issuance of a search warrant but that the search warrant must be based
upon an application supported by oath of the applicant ands the witnesses he may
produce. In its broadest sense, an oath includes any form of attestation by which a party
signifies that he is bound in conscience to perform an act faithfully and truthfully; and
it is sometimes defined asan outward pledge given by the person taking it that his
attestation or promise is made under an immediate sense of his responsibility to God
(Bouvier's Law Dictionary; State vs. Jackson, 137 N. W., 1034; In re Sage, 24 Oh. Cir.
Ct. [N. S.], 7; Pumphery vs. State, 122 N. W., 19; Priest vs. State, 6 N. W., 468;
State vs. Jones, 154 Pac., 378; Atwood vs. State, 111 So., 865). The oath required must
refer to the truth of the facts within the personal knowledge of the petitioner or his
witnesses, because the purpose thereof is to convince the committing magistrate, not
the individual making the affidavit and seeking the issuance of the warrant, of the
existence of probable cause (U. S. vs.Tureaud, 20 Fed., 621; U. S. vs. Michalski, 265
Fed., 8349; U. S. vs. Pitotto, 267 Fed., 603; U. S. vs. Lai Chew, 298 Fed., 652). The
true test of sufficiency of an affidavit to warrant issuance of a search warrant is whether
it has been drawn in such a manner that perjury could be charged thereon and affiant be
held liable for damages caused (State vs. Roosevelt Country 20th Jud. Dis. Ct., 244
Pac., 280; State vs. Quartier, 236 Pac., 746).
It will likewise be noted that section 1, paragraph 3, of Article III of the Constitution
prohibits unreasonable searches and seizure. Unreasonable searches and seizures are a
menace against which the constitutional guarantee afford full protection. The term
"unreasonable search and seizure" is not defined in the Constitution or in General
Orders No. 58, and it is said to have no fixed, absolute or unchangeable meaning,
although the term has been defined in general language. All illegal searches and seizure
are unreasonable while lawful ones are reasonable. What constitutes a reasonable or
unreasonable search or seizure in any particular case is purely a judicial question,
determinable from a consideration of the circumstances involved, including the
purpose of the search, the presence or absence or probable cause, the manner in which
the search and seizure was made, the place or thing searched, and the character of the
articles procured (Go-Bart Importing Co. vs. U. S. 75 Law. ed., 374; Peru vs. U. S., 4
Fed., [2d], 881;U. S. vs. Vatune, 292 Fed., 497; Angelo vs. U. S. 70 Law, ed., 145;
Lambert vs. U. S. 282 Fed., 413; U. S. vs.Bateman, 278 Fed., 231; Mason vs. Rollins,
16 Fed. Cas. [No. 9252], 2 Biss., 99).
In view of the foregoing and under the above-cited authorities, it appears that the
affidavit, which served as the exclusive basis of the search warrant, is insufficient and
fatally defective by reason of the manner in which the oath was made, and therefore, it
is hereby held that the search warrant in question and the subsequent seizure of the
books, documents and other papers are illegal and do not in any way warrant the
deprivation to which the petitioner was subjected.
IV. Another ground alleged by the petitioner in asking that the search warrant be
declared illegal and cancelled is that it was not supported by other affidavits aside from
that made by the applicant. In other words, it is contended that the search warrant
cannot be issued unless it be supported by affidavits made by the applicant and the
witnesses to be presented necessity by him. Section 1, paragraph 3, of Article III of the
Constitution provides that 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. Section 98 of General Orders, No. 58 provides that
the judge or justice must, before issuing the warrant, examine under oath the
complainant and any witnesses he may produce and take their depositions in writing. It
is the practice in this jurisdiction to attach the affidavit of at least the applicant or
complainant to the application. It is admitted that the judge who issued the search
warrant in this case, relied exclusively upon the affidavit made by agent Mariano G.
Almeda and that he did not require nor take the deposition of any other witness.
Neither the Constitution nor General Orders. No. 58 provides that it is of imperative
necessity to take the deposition of the witnesses to be presented by the applicant or
complainant in addition to the affidavit of the latter. The purpose of both in requiring
the presentation of depositions is nothing more than to satisfy the committing
magistrate of the existence of probable cause. Therefore, if the affidavit of the applicant
or complainant is sufficient, the judge may dispense with that of other witnesses.
Inasmuch as the affidavit of the agent in this case was insufficient because his
knowledge of the facts was not personal but merely hearsay, it is the duty of the judge
to require the affidavit of one or more witnesses for the purpose of determining the
existence of probable cause to warrant the issuance of the search warrant. When the
affidavit of the applicant of the complaint contains sufficient facts within his personal
and direct knowledge, it is sufficient if the judge is satisfied that there exist probable
cause; when the applicant's knowledge of the facts is mere hearsay, the affidavit of one
or more witnesses having a personal knowledge of the fact is necessary. We conclude,
therefore, that the warrant issued is likewise illegal because it was based only on the
affidavit of the agent who had no personal knowledge of the facts.
V. The petitioner alleged as another ground for the declaration of the illegality of the
search warrant and the cancellation thereof, the fact that it authorized its execution at
night. Section 101 of General Orders, No. 58 authorizes that the search be made at
night when it is positively asserted in the affidavits that the property is on the person or
in the place ordered to be searched. As we have declared the affidavits insufficient and
the warrant issued exclusively upon it illegal, our conclusion is that the contention is
equally well founded and that the search could not legally be made at night.
VI. One of the grounds alleged by the petitioner in support of his contention that the
warrant was issued illegally is the lack of an adequate description of the books and
documents to be seized. Section 1, paragraphs 3, of Article III of the Constitution, and
section 97 of General Orders, No. 58 provide that the affidavit to be presented, which
shall serve as the basis for determining whether probable cause exist and whether the
warrant should be issued, must contain a particular description of the place to be
searched and the person or thing to be seized. These provisions are mandatory and
must be strictly complied with (Munchvs. U. S., 24 Fed. [2d], 518; U. S. vs. Boyd, 1
Fed. [2d], 1019; U. S. vs. Carlson, 292 Fed., 463; U. S. vs.Borkowski, 268 Fed., 408; In
re Tri-State Coal & Coke Co., 253 Fed., 605; People vs. Mayen, 188 Cal., 237;
People vs. Kahn, 256 Ill. App., 4125); but where, by the nature of the goods to be
seized, their description must be rather generally, it is not required that a technical
description be given, as this would mean that no warrant could issue (People vs. Rubio,
57 Phil., 284; People vs. Kahn, supra). The only description of the articles given in the
affidavit presented to the judge was as follows: "that there are being kept in said
premises books, documents, receipts, lists, chits and other papers used by him in
connection with his activities as money-lender, charging a usurious rate of interest, in
violation of the law." Taking into consideration the nature of the article so described, it
is clear that no other more adequate and detailed description could have been given,
particularly because it is difficult to give a particular description of the contents
thereof. The description so made substantially complies with the legal provisions
because the officer of the law who executed the warrant was thereby placed in a
position enabling him to identify the articles, which he did.
VII. The last ground alleged by the petitioner, in support of his claim that the search
warrant was obtained illegally, is that the articles were seized in order that the AntiCONSTI II (Art. III, Sec. 2 )| 37
Usury Board might provide itself with evidence to be used by it in the criminal case or
cases which might be filed against him for violation of the Anti-usury Law. At the
hearing of the incidents of the case raised before the court it clearly appeared that the
books and documents had really been seized to enable the Anti-Usury Board to conduct
an investigation and later use all or some of the articles in question as evidence against
the petitioner in the criminal cases that may be filed against him. The seizure of books
and documents by means of a search warrant, for the purpose of using them as
evidence in a criminal case against the person in whose possession they were found, is
unconstitutional because it makes the warrant unreasonable, and it is equivalent to a
violation of the constitutional provision prohibiting the compulsion of an accused to
testify against himself (Uy Kheytin vs.Villareal, 42 Phil,, 886; Brady vs. U. S., 266 U.
S., 620; Temperani vs. U. S., 299 Fed., 365; U. S. vs.Madden, 297 Fed., 679;
Boyd vs. U. S.,116 U. S., 116; Caroll vs. U. S., 267 U. S., 132). Therefore, it appearing
that at least nineteen of the documents in question were seized for the purpose of using
them as evidence against the petitioner in the criminal proceeding or proceedings for
violation against him, we hold that the search warrant issued is illegal and that the
documents should be returned to him.
The Anti-Usury Board insinuates in its answer that the petitioner cannot now question
the validity of the search warrant or the proceedings had subsequent to the issuance
thereof, because he has waived his constitutional rights in proposing a compromise
whereby he agreed to pay a fine of P200 for the purpose of evading the criminal
proceeding or proceedings. We are of the opinion that there was no such waiver, first,
because the petitioner has emphatically denied the offer of compromise and, second,
because if there was a compromise it reffered but to the institution of criminal
proceedings fro violation of the Anti-Usury Law. The waiver would have been a good
defense for the respondents had the petitioner voluntarily consented to the search and
seizure of the articles in question, but such was not the case because the petitioner
protested from the beginning and stated his protest in writing in the insufficient
inventory furnished him by the agents.
Said board alleges as another defense that the remedy sought by the petitioner does not
lie because he can appeal from the orders which prejudiced him and are the subject
matter of his petition. Section 222 of the Code of Civil Procedure in fact provides
that mandamus will not issue when there is another plain, speedy and adequate remedy
in the ordinary course of law. We are of the opinion, however, that an appeal from said
orders would have to lapse before he recovers possession of the documents and before
the rights, of which he has been unlawfully deprived, are restored to him
(Fajardo vs. Llorente, 6 Phil., 426; Manotoc vs. McMicking and Trinidad, 10 Phil., 119;
Cruz Herrera de Lukban vs. McMicking, 14 Phil., 641; Lamb vs. Phipps, 22 Phil., 456).
Summarizing the foregoing conclusions, we hold:

1. That the provisions of the Constitution and General Orders, No. 58, relative to search
and seizure, should be given a liberal construction in favor of the individual in order to
maintain the constitutional guaranties whole and in their full force;
2. That since the provisions in question are drastic in their form and fundamentally
restrict the enjoyment of the ownership, possession and use of the personal property of
the individual, they should be strictly construed;
3. That the search and seizure made are illegal for the following reasons: (a) Because
the warrant was based solely upon the affidavit of the petitioner who had no personal
knowledge of the facts of probable cause, and (b) because the warrant was issued for
the sole purpose of seizing evidence which would later be used in the criminal
proceedings that might be instituted against the petitioner, for violation of the AntiUsury Law;
4. That as the warrant had been issued unreasonably, and as it does not appear
positively in the affidavit that the articles were in the possession of the petitioner and in
the place indicated, neither could the search and seizure be made at night;
5. That although it is not mandatory to present affidavits of witnesses to corroborate the
applicant or a complainant in cases where the latter has personal knowledge of the
facts, when the applicant's or complainant's knowledge of the facts is merely hearsay, it
is the duty of the judge to require affidavits of other witnesses so that he may determine
whether probable cause exists;
6. That a detailed description of the person and place to be searched and the articles to
be seized is necessary, but whereby, by the nature of the articles to be seized, their
description must be rather general, but is not required that a technical description be
given, as this would mean that no warrant could issue;
7. That the petitioner did not waive his constitutional rights because the offer of
compromise or settlement attributed to him, does not mean, if so made, that he
voluntarily tolerated the search and seizure; and
8. That an appeal from the orders questioned by the petitioner, if taken by him, would
not be an effective, speedy or adequate remedy in the ordinary course of law, and,
consequently, the petition for mandamusfiled by him, lies.
For the foregoing considerations, the search warrant and the seizure of June 3, 1936,
and the orders of the respondent court authorizing the relation of the books and
documents, are declared illegal and are set aside, and it is ordered that the judge
presiding over the Court of First Instance of Tayabas direct the immediate return to the
petitioner of the nineteen (19) documents designated on pages 1 to 4 of the inventory
by Nos. 5, 10, 16, 23, 25,26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45,
without special pronouncement as to costs. So ordered.
Avancea, C.J., Villa-Real, Diaz and Concepcion, JJ., concur.
Separate Opinions
ABAD SANTOS, J., concurring:
My views on the fundamental questions involved in this case are fully set forth in my
dissenting opinion filed inPeople vs. Rubio (57 Phil., 384, 395). I am gratified to see
that, in the main, those views have now prevailed. I therefore concur in the decision of
the court herein.
LAUREL, J., concurring:
I subscribe to the views expressed in the foregoing carefully prepared opinion, with the
reservation now to be stated. To my mind, the search warrant in this case does not
satisfy the constitutional requirement regarding the particularity of the description of
"the place to be searched and the persons or things to be seized" (par. 3, sec. 1, Art. III,
Constitution of the Philippines). Reference to "books, documents, receipts, lists, chits
and other papers used by him in connection with his activities as money-lender,
charging usurious rates of interest in violation of the law" in the search warrant is so
general, loose and vague as to confer unlimited discretion upon the officer serving the
warrant to choose and determine for himself just what are the "books, documents,
receipts, lists, chits and other papers" used by the petitioner in connection with his
alleged activities as money-lender. The evident purpose and intent of the constitutional
requirement is to limit the things to be seized to those, and only
those,particularly described in the search warrant, to the end that unreasonable
searches and seizures may not be made, that abuses may not be committed (Uy
Kheytin vs. Villareal, 42 Phil., 886).
_______________________________________
FIRST DIVISION
G.R. No. 140946
On 2 September 1996, Maxicorp filed a motion to quash the search warrants alleging
that there was no probable cause for their issuance and that the warrants are in the form
of "general warrants." The RTC denied Maxicorps motion on 22 January 1997. The
RTC also denied Maxicorps motion for reconsideration.
September 13, 2004
MICROSOFT
CORPORATION
CORPORATION, petitioners,
vs.
MAXICORP, INC., respondent.
and
LOTUS
DEVELOPMENT
DECISION
The RTC found probable cause to issue the search warrants after examining NBI Agent
Samiano, John Benedict Sacriz ("Sacriz"), and computer technician Felixberto Pante
("Pante"). The three testified on what they discovered during their respective visits to
Maxicorp. NBI Agent Samiano also presented certifications from petitioners that they
have not authorized Maxicorp to perform the witnessed activities using petitioners
products.
CARPIO, J.:
The Case
This petition for review on certiorari 1 seeks to reverse the Court of Appeals
Decision2 dated 23 December 1998 and its Resolution dated 29 November 1999 in CAG.R. SP No. 44777. The Court of Appeals reversed the Order 3of the Regional Trial
Court, Branch 23, Manila ("RTC"), denying respondent Maxicorp, Inc.s ("Maxicorp")
motion to quash the search warrant that the RTC issued against Maxicorp. Petitioners
are the private complainants against Maxicorp for copyright infringement under
Section 29 of Presidential Decree No. 49 ("Section 29 of PD 49") 4 and for unfair
competition under Article 189 of the Revised Penal Code ("RPC").5
On 24 July 1997, Maxicorp filed a petition for certiorari with the Court of Appeals
seeking to set aside the RTCs order. On 23 December 1998, the Court of Appeals
reversed the RTCs order denying Maxicorps motion to quash the search warrants.
Petitioners moved for reconsideration. The Court of Appeals denied petitioners motion
on 29 November 1999.
The Court of Appeals held that NBI Agent Samiano failed to present during the
preliminary examination conclusive evidence that Maxicorp produced or sold the
counterfeit products. The Court of Appeals pointed out that the sales receipt NBI Agent
Samiano presented as evidence that he bought the products from Maxicorp was in the
name of a certain "Joel Diaz."
Antecedent Facts
Hence, this petition.
On 25 July 1996, National Bureau of Investigation ("NBI") Agent Dominador

Samiano, Jr. ("NBI Agent Samiano") filed several applications for search warrants in
the RTC against Maxicorp for alleged violation of Section 29 of PD 49 and Article 189
of the RPC. After conducting a preliminary examination of the applicant and his
witnesses, Judge William M. Bayhon issued Search Warrants Nos. 96-451, 96-452, 96453 and 96-454, all dated 25 July 1996, against Maxicorp.
The Issues
Armed with the search warrants, NBI agents conducted on 25 July 1996 a search of
Maxicorps premises and seized property fitting the description stated in the search
warrants.
Petitioners seek a reversal and raise the following issues for resolution:
1. WHETHER THE PETITION RAISES QUESTIONS OF LAW;
2. WHETHER PETITIONERS HAVE LEGAL PERSONALITY TO FILE THE
PETITION;
3. WHETHER THERE WAS PROBABLE CAUSE TO ISSUE THE SEARCH
WARRANTS;
4. WHETHER THE SEARCH WARRANTS ARE "GENERAL WARRANTS."

The Ruling of the Court
The petition has merit.
On Whether the Petition Raises Questions of Law
Maxicorp assails this petition as defective since it failed to raise questions of law.
Maxicorp insists that the arguments petitioners presented are questions of fact, which
this Court should not consider in a Rule 45 petition for review. Petitioners counter that
all the issues they presented in this petition involve questions of law. Petitioners point
out that the facts are not in dispute.
A petition for review under Rule 45 of the Rules of Court should cover questions of
law.6 Questions of fact are not reviewable. As a rule, the findings of fact of the Court of
Appeals are final and conclusive and this Court will not review them on
appeal,7 subject to exceptions as when the findings of the appellate court conflict with
the findings of the trial court.8
The distinction between questions of law and questions of fact is settled. A question of
law exists when the doubt or difference centers on what the law is on a certain state of
facts. A question of fact exists if the doubt centers on the truth or falsity of the alleged
facts. Though this delineation seems simple, determining the true nature and extent of
the distinction is sometimes problematic. For example, it is incorrect to presume
that all cases where the facts are not in dispute automatically involve purely questions
of law.
There is a question of law if the issue raised is capable of being resolved without need
of reviewing the probative value of the evidence.9 The resolution of the issue must rest
solely on what the law provides on the given set of circumstances. Once it is clear that
the issue invites a review of the evidence presented, the question posed is one of
fact.10 If the query requires a re-evaluation of the credibility of witnesses, or the
existence or relevance of surrounding circumstances and their relation to each other,
the issue in that query is factual. 11 Our ruling inPaterno v. Paterno12 is illustrative on
this point:
Such questions as whether certain items of evidence should be accorded probative
value or weight, or rejected as feeble or spurious, or whether or not the proofs on one
side or the other are clear and convincing and adequate to establish a proposition in
issue, are without doubt questions of fact. Whether or not the body of proofs presented
by a party, weighed and analyzed in relation to contrary evidence submitted by adverse
party, may be said to be strong, clear and convincing; whether or not certain documents
presented by one side should be accorded full faith and credit in the face of protests as
to their spurious character by the other side; whether or not inconsistencies in the body
of proofs of a party are of such gravity as to justify refusing to give said proofs weight
all these are issues of fact.
It is true that Maxicorp did not contest the facts alleged by petitioners. But this
situation does not automatically transform all issues raised in the petition into
questions of law. The issues must meet the tests outlined in Paterno.
Of the three main issues raised in this petition the legal personality of the petitioners,
the nature of the warrants issued and the presence of probable cause only the first two
qualify as questions of law. The pivotal issue of whether there was probable cause to
issue the search warrants is a question of fact. At first glance, this issue appears to
involve a question of law since it does not concern itself with the truth or falsity of
certain facts. Still, the resolution of this issue would require this Court to inquire into
the probative value of the evidence presented before the RTC. For a question to be one
of law, it must not involve an examination of the probative value of the evidence
presented by the litigants or any of them.13
Yet, this is precisely what the petitioners ask us to do by raising arguments requiring an
examination of the TSNs and the documentary evidence presented during the search
warrant proceedings. In short, petitioners would have us substitute our own judgment
to that of the RTC and the Court of Appeals by conducting our own evaluation of the
evidence. This is exactly the situation which Section 1, Rule 45 of the Rules of Court
prohibits by requiring the petition to raise only questions of law. This Court is not a
trier of facts. It is not the function of this court to analyze or weigh evidence. 14 When
we give due course to such situations, it is solely by way of exception. Such exceptions
apply only in the presence of extremely meritorious circumstances.15
Indeed, this case falls under one of the exceptions because the findings of the Court of
Appeals conflict with the findings of the RTC.16 Since petitioners properly raised the
conflicting findings of the lower courts, it is proper for this Court to resolve such
contradiction.
On Whether Petitioners have the Legal Personality to File this Petition
Maxicorp argues that petitioners have no legal personality to file this petition since the
proper party to do so in a criminal case is the Office of the Solicitor General as
representative of the People of the Philippines. Maxicorp states the general rule but the
exception governs this case.17 We ruled in Columbia Pictures Entertainment, Inc. v.
Court of Appeals18 that the petitioner-complainant in a petition for review under Rule
45 could argue its case before this Court in lieu of the Solicitor General if there is grave
error committed by the lower court or lack of due process. This avoids a situation
where a complainant who actively participated in the prosecution of a case would
suddenly find itself powerless to pursue a remedy due to circumstances beyond its
control. The circumstances in Columbia Pictures Entertainment are sufficiently
similar to the present case to warrant the application of this doctrine.
the purpose thereof is to convince the committing magistrate, not the individual making
the affidavit and seeking the issuance of the warrant, of the existence of probable
cause."21 The applicant must have personal knowledge of the circumstances. "Reliable
information" is insufficient.22 Mere affidavits are not enough, and the judge must
depose in writing the complainant and his witnesses.23
On Whether there was Probable Cause to Issue the Search Warrants
The offense charged against Maxicorp is copyright infringement under Section 29 of

PD 49 and unfair competition under Article 189 of the RPC. To support these charges,
petitioners presented the testimonies of NBI Agent Samiano, computer technician
Pante, and Sacriz, a civilian. The offenses that petitioners charged Maxicorp
contemplate several overt acts. The sale of counterfeit products is but one of these acts.
Both NBI Agent Samiano and Sacriz related to the RTC how they personally saw
Maxicorp commit acts of infringement and unfair competition.
Petitioners argue that the Court of Appeals erred in reversing the RTC based on the fact
that the sales receipt was not in the name of NBI Agent Samiano. Petitioners point out
that the Court of Appeals disregarded the overwhelming evidence that the RTC
considered in determining the existence of probable cause. Maxicorp counters that the
Court of Appeals did not err in reversing the RTC. Maxicorp maintains that the entire
preliminary examination that the RTC conducted was defective.
The Court of Appeals based its reversal on two factual findings of the RTC. First, the
fact that the sales receipt presented by NBI Agent Samiano as proof that he bought
counterfeit goods from Maxicorp was in the name of a certain "Joel Diaz." Second, the
fact that petitioners other witness, John Benedict Sacriz, admitted that he did not buy
counterfeit goods from Maxicorp.
The Court of Appeals reversal of the findings of the RTC centers on the fact that the
two witnesses for petitioners during the preliminary examination failed to prove
conclusively that they bought counterfeit software from Maxicorp. The Court of
Appeals ruled that this amounted to a failure to prove the existence of a connection
between the offense charged and the place searched.
During the preliminary examination, the RTC subjected the testimonies of the
witnesses to the requisite examination. NBI Agent Samiano testified that he saw
Maxicorp display and offer for sale counterfeit software in its premises. He also saw
how the counterfeit software were produced and packaged within Maxicorps premises.
NBI Agent Samiano categorically stated that he was certain the products were
counterfeit because Maxicorp sold them to its customers without giving the
accompanying ownership manuals, license agreements and certificates of authenticity.
We rule that the Court of Appeals erred in reversing the RTCs findings.
Probable cause means "such reasons, supported by facts and circumstances as will
warrant a cautious man in the belief that his action and the means taken in prosecuting
it are legally just and proper."19 Thus, probable cause for a search warrant requires such
facts and circumstances that would lead a reasonably prudent man to believe that an
offense has been committed and the objects sought in connection with that offense are
in the place to be searched.20
The judge determining probable cause must do so only after personally examining
under oath the complainant and his witnesses. The oath required must refer to "the truth
of the facts within the personal knowledge of the petitioner or his witnesses, because
Sacriz testified that during his visits to Maxicorp, he witnessed several instances when
Maxicorp installed petitioners software into computers it had assembled. Sacriz also
testified that he saw the sale of petitioners software within Maxicorps premises.
Petitioners never authorized Maxicorp to install or sell their software.
The testimonies of these two witnesses, coupled with the object and documentary
evidence they presented, are sufficient to establish the existence of probable cause.
From what they have witnessed, there is reason to believe that Maxicorp engaged in
copyright infringement and unfair competition to the prejudice of petitioners. Both NBI
Agent Samiano and Sacriz were clear and insistent that the counterfeit software were
not only displayed and sold within Maxicorps premises, they were also produced,
packaged and in some cases, installed there.
The determination of probable cause does not call for the application of rules and
standards of proof that a judgment of conviction requires after trial on the merits. As
implied by the words themselves, "probable cause" is concerned with probability, not
absolute or even moral certainty. The prosecution need not present at this stage proof
beyond reasonable doubt. The standards of judgment are those of a reasonably prudent
man,24 not the exacting calibrations of a judge after a full-blown trial.
No law or rule states that probable cause requires a specific kind of evidence. No
formula or fixed rule for its determination exists. 25 Probable cause is determined in the
light of conditions obtaining in a given situation. 26Thus, it was improper for the Court
of Appeals to reverse the RTCs findings simply because the sales receipt evidencing
NBI Agent Samianos purchase of counterfeit goods is not in his name.
For purposes of determining probable cause, the sales receipt is not the only proof that
the sale of petitioners software occurred. During the search warrant application
proceedings, NBI Agent Samiano presented to the judge the computer unit that he
purchased from Maxicorp, in which computer unit Maxicorp had pre-installed
petitioners software.27 Sacriz, who was present when NBI Agent Samiano purchased
the computer unit, affirmed that NBI Agent Samiano purchased the computer
unit.28 Pante, the computer technician, demonstrated to the judge the presence of
petitioners software on the same computer unit. 29 There was a comparison between
petitioners genuine software and Maxicorps software pre-installed in the computer
unit that NBI Agent Sambiano purchased. 30 Even if we disregard the sales receipt
issued in the name of "Joel Diaz," which petitioners explained was the alias NBI Agent
Samiano used in the operation, there still remains more than sufficient evidence to
establish probable cause for the issuance of the search warrants.
This also applies to the Court of Appeals ruling on Sacrizs testimony. The fact that
Sacriz did not actually purchase counterfeit software from Maxicorp does not eliminate
the existence of probable cause. Copyright infringement and unfair competition are not
limited to the act of selling counterfeit goods. They cover a whole range of acts, from
copying, assembling, packaging to marketing, including the mere offering for sale of
the counterfeit goods. The clear and firm testimonies of petitioners witnesses on such
other acts stand untarnished. The Constitution and the Rules of Court only require that
the judge examine personally and thoroughly the applicant for the warrant and his
witnesses to determine probable cause. The RTC complied adequately with the
requirement of the Constitution and the Rules of Court.
Probable cause is dependent largely on the opinion and findings of the judge who
conducted the examination and who had the opportunity to question the applicant and
his witnesses.31 For this reason, the findings of the judge deserve great weight. The
reviewing court should overturn such findings only upon proof that the judge
disregarded the facts before him or ignored the clear dictates of reason. 32 Nothing in the
records of the preliminary examination proceedings reveal any impropriety on the part
of the judge in this case. As one can readily see, here the judge examined thoroughly
the applicant and his witnesses. To demand a higher degree of proof is unnecessary and
untimely. The prosecution would be placed in a compromising situation if it were
required to present all its evidence at such preliminary stage. Proof beyond reasonable
doubt is best left for trial.
On Whether the Search Warrants are in the Nature of General Warrants
A search warrant must state particularly the place to be searched and the objects to be
seized. The evident purpose for this requirement is to limit the articles to be seized only
to those particularly described in the search warrant. This is a protection against
potential abuse. It is necessary to leave the officers of the law with no discretion
regarding what articles they shall seize, to the end that no unreasonable searches and
seizures be committed.33
In addition, under Section 4, Rule 126 of the Rules of Criminal Procedure, a search
warrant shall issue "in connection with one specific offense." The articles described
must bear a direct relation to the offense for which the warrant is issued. 34 Thus, this
rule requires that the warrant must state that the articles subject of the search and
seizure are used or intended for use in the commission of a specific offense.
Maxicorp argues that the warrants issued against it are too broad in scope and lack the
specificity required with respect to the objects to be seized. After examining the
wording of the warrants issued, the Court of Appeals ruled in favor of Maxicorp and
reversed the RTCs Order thus:
Under the foregoing language, almost any item in the petitioners store can be seized
on the ground that it is "used or intended to be used" in the illegal or unauthorized
copying or reproduction of the private respondents software and their manuals.35
The Court of Appeals based its reversal on its perceived infirmity of paragraph (e) of
the search warrants the RTC issued. The appellate court found that similarly worded
warrants, all of which noticeably employ the phrase "used or intended to be used,"
were previously held void by this Court.36 The disputed text of the search warrants in
this case states:
a) Complete or partially complete reproductions or copies of Microsoft software
bearing the Microsoft copyrights and/or trademarks owned by MICROSOFT
CORPORATION contained in CD-ROMs, diskettes and hard disks;
b) Complete or partially complete reproductions or copies of Microsoft instruction
manuals and/or literature bearing the Microsoft copyrights and/or trademarks owned by
MICROSOFT CORPORATION;
c) Sundry items such as labels, boxes, prints, packages, wrappers, receptacles,
advertisements and other paraphernalia bearing the copyrights and/or trademarks
owned by MICROSOFT CORPORATION;
d) Sales invoices, delivery receipts, official receipts, ledgers, journals, purchase orders
and all other books of accounts and documents used in the recording of the
reproduction and/or assembly, distribution and sales, and other transactions in
connection with fake or counterfeit products bearing the Microsoft copyrights and/or
trademarks owned by MICROSOFT CORPORATION;
e) Computer hardware, including central processing units including hard disks,
CD-ROM drives, keyboards, monitor screens and diskettes, photocopying
machines and other equipment or paraphernalia used or intended to be used in
the illegal and unauthorized copying or reproduction of Microsoft software and
their manuals, or which contain, display or otherwise exhibit, without the
authority of MICROSOFT CORPORATION, any and all Microsoft trademarks
and copyrights; and
f) Documents relating to any passwords or protocols in order to access all computer
hard drives, data bases and other information storage devices containing unauthorized
Microsoft software.37 (Emphasis supplied)
It is only required that a search warrant be specific as far as the circumstances will
ordinarily allow.38 The description of the property to be seized need not be technically
accurate or precise. The nature of the description should vary according to whether the
identity of the property or its character is a matter of concern. 39 Measured against this
standard we find that paragraph (e) is not a general warrant. The articles to be seized
were not only sufficiently identified physically, they were also specifically identified
by stating their relation to the offense charged. Paragraph (e) specifically refers to those
articles used or intended for use in the illegal and unauthorized copying of petitioners
software. This language meets the test of specificity.40
The cases cited by the Court of Appeals are inapplicable. In those cases, the Court
found the warrants too broad because of particular circumstances, not because of the
mere use of the phrase "used or intended to be used." InColumbia Pictures, Inc. v.
Flores, the warrants ordering the seizure of "television sets, video cassette recorders,
rewinders and tape cleaners x x x" were found too broad since the defendant there was
a licensed distributor of video tapes. 41 The mere presence of counterfeit video tapes in
the defendants store does not mean that the machines were used to produce the
counterfeit tapes. The situation in this case is different. Maxicorp is not a licensed
distributor of petitioners. In Bache & Co. (Phil.), Inc., et al. v. Judge Ruiz, et al., the
Court voided the warrants because they authorized the seizure of records pertaining to
"all business transactions" of the defendant. 42 And in 20th Century Fox Film Corp. v.
Court of Appeals, the Court quashed the warrant because it merely gave a list of
articles to be seized, aggravated by the fact that such appliances are "generally
connected with the legitimate business of renting out betamax tapes."43
However, we find paragraph (c) of the search warrants lacking in particularity.
Paragraph (c) states:
c) Sundry items such as labels, boxes, prints, packages, wrappers, receptacles,
advertisements and other paraphernalia bearing the copyrights and/or trademarks
owned by MICROSOFT CORPORATION;
The scope of this description is all-embracing since it covers property used for personal
or other purposes not related to copyright infringement or unfair competition.
Moreover, the description covers property that Maxicorp may have bought legitimately
from Microsoft or its licensed distributors. Paragraph (c) simply calls for the seizure of
all items bearing the Microsoft logo, whether legitimately possessed or not. Neither
does it limit the seizure to products used in copyright infringement or unfair
competition.
Still, no provision of law exists which requires that a warrant, partially defective in
specifying some items sought to be seized yet particular with respect to the other items,
should be nullified as a whole. A partially defective warrant remains valid as to the
items specifically described in the warrant. 44 A search warrant is severable, the items
not sufficiently described may be cut off without destroying the whole warrant. 45 The
exclusionary rule found in Section 3(2) of Article III of the Constitution renders
inadmissible in any proceeding all evidence obtained through unreasonable searches
and seizure. Thus, all items seized under paragraph (c) of the search warrants, not
falling under paragraphs a, b, d, e or f, should be returned to Maxicorp.
WHEREFORE, we PARTIALLY GRANT the instant petition. The Decision of the
Court of Appeals dated 23 December 1998 and its Resolution dated 29 November 1999
in CA-G.R. SP No. 44777 are REVERSED and SET ASIDE except with respect to
articles seized under paragraph (c) of Search Warrants Nos. 96-451, 96-452, 96-453
and 96-454. All articles seized under paragraph (c) of the search warrants, not falling
under paragraphs a, b, d, e or f, are ordered returned to Maxicorp, Inc. immediately.
SO ORDERED.
________
EN BANC
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 judgment 1 of the Regional Trial Court (RTC)
of Baguio City, Branch 6, dated September 17, 1999, in Criminal Cases Nos. 15800-R
and 15822-R, involving violations of Section 8, Article II, of the Dangerous Drugs
Law.2 Since appellant was acquitted in the second case, we focus on the first case,
where appellant has been found guilty and sentenced to death and fined one million
pesos.
The decretal portion of the trial courts 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 the offense 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 and sentences him to
the supreme penalty of death and to pay a fine of 1 million pesos without subsidiary
imprisonment in case of insolvency.
The 591.81 kilos of marijuana contained in 26 boxes and one yellow sack (Exhibits U1 to U-27) are ordered forfeited 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 Modesto Tee beyond reasonable doubt and hereby acquits him of the
charge of illegal possession of marijuana in violation of Section 8, Art. 2 of RA 6425 as
amended by Section 13 of RA 7659 as charged in the Information since the marijuana
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 ordered forfeited in favor of the State to be
destroyed immediately in accordance with law considering that they are prohibited
articles.
The City Jail Warden is, therefore, directed to release the accused Modesto Tee in
connection with Crim. Case No. 15822-R unless held on other charges.
COST(S) DE OFFICIO.
2. One hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-three (23)
bags of dried flowering tops separately 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 twentysix (boxes) and a yellow sack, weighing 591.81 kilograms,
all having a grand total weight of 928.74 kilograms, a prohibited drug, without the
authority of law to possess, in violation 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 marijuana were seized in two (2) different places."5
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 (PNP NARCOM) 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 NBI had 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 as Criminal Case No. 15800-R, the City Prosecutor of Baguio City
charged Modesto Tee, alias "Estoy Tee," with illegal possession of marijuana, allegedly
committed as follows:
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 knowingly have in his possession the
following, to wit:
- Six hundred two (602) bricks of dried flowering tops separately contained in twentysix (26) boxes and a yellow sack, weighing 591.81 kilograms
a prohibited drug, without the authority of law to possess, in violation of the abovecited provision of law.
That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and
following, to wit:
CONTRARY TO LAW.6
1. Ninety-two (92) bricks of dried flowering tops separately contained in four (4)
boxes; and
That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and
following, to wit:
A separate amended information docketed as Criminal Case No. 15822-R was likewise
filed, the accusatory portion of which reads:
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 flowering tops 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 abovecited provision of law.
CONTRARY TO LAW.7
On September 4, 1998, the trial court denied the motion to quash the search warrant
and ordered appellants arraignment.
When arraigned in Criminal Cases Nos. 15800-R and 15822-R, appellant refused to
enter a plea. The trial court entered a plea 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 acquainted with each other, since Abratiques wife is the sister of
Tees sister-in-law.9
Sometime in late June 1998, appellant asked Abratique to find him a place for the
storage of smuggled cigarettes.10 Abratique brought appellant to his friend, Albert
Ballesteros, who had a house for rent in Bakakeng, Baguio City. After negotiating the
terms and conditions, Ballesteros agreed to rent out his place to appellant. Appellant
then brought 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 but marijuana. Fearful of being involved, Ballesteros
informed Abratique. Both later prevailed upon appellant to remove them from the
premises.11
Appellant then hired Abratiques taxi and transported the boxes of cannabis from the
Ballesteros place to appellants residence 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 transporting strawberries. Upon reaching La Trinidad,
however, appellant directed Abratique to proceed to Sablan, Benguet, where appellant
proceeded to load several sacks of marijuana in Abratiques taxi. He then asked
Abratique to find him a place where he could store the contraband.13
Abratique brought appellant to his grandmothers house at No. 27 Dr. Cario St., QM
Subdivision, Baguio City, which was being managed by Abratiques aunt, Nazarea
Abreau. Nazarea agreed to rent a room to appellant. Abratique and appellant 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 to her daughter, Alice Abreau Fianza, about their
predicament. As Alice Fianzas brother-in-law, Edwin Fianza, was an NBI agent, 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. Cario St. While the NBI agents were conducting
their surveillance, they noticed that several PNP NARCOM personnel were also
watching the place.17 The NBI then learned that the PNP NARCOM had received a tip
from one of their informers regarding the presence of a huge amount 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 could be jeopardized. They sought the
permission of Nazarea Abreau to enter the room rented by appellant. She acceded and
allowed them entry. The NBI team then searched the rented premises and found four
(4) boxes and thirteen (13) sacks of marijuana, totaling 336.93 kilograms.18
Later that evening, NBI Special Agent Darwin Lising, with Abratique as his witness,
applied for a search warrant from RTC Judge Antonio Reyes at his residence. 19 Judge
Reyes ordered the NBI agents to fetch the Branch Clerk of Court, Atty. Delilah Muoz,
so the proceedings could be properly recorded. After Atty. Muoz arrived, Judge Reyes
questioned Lising and Abratique. Thereafter, the judge issued a warrant directing the
NBI to search appellants residence at Km. 6, Dontogan, Green Valley, Baguio City for
marijuana.20
The NBI operatives, with some PNP NARCOM personnel in tow, proceeded to
appellants residence where they served the 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 and a sack of dried marijuana24 in the water tank, garage, and
storeroom of appellants residence. 25 The total weight of the haul 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 Madrigal conducted the tests. Detailed microscopic and
chromatographic examinations of the items taken from appellants rented room at No.
27, Dr. Cario 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 the products of an unlawful search, hence inadmissible.
Appellant insisted that the search warrant was too general and the process by which
said warrant was acquired did not satisfy the constitutional requirements for the
issuance of a valid search warrant. Moreover, Abratiques testimony, which was
heavily relied upon by the judge who issued the warrant, was hearsay.
In Criminal Case No. 15822-R, the trial court agreed with appellant that the taking of
the 336.93 kilograms of marijuana was the result of an illegal search and hence,
inadmissible in evidence against appellant. Appellant was accordingly acquitted of the
charge. However, the trial court found that the prosecutions evidence was more than
ample to prove appellants 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:
1UPHOLDING THE LEGALITY OF THE SEARCH WARRANT DESPITE LACK
OF COMPLIANCE OF (sic) SEVERAL REQUIREMENTS BEFORE IT SHOULD
HAVE BEEN ISSUED AND IT BEING A GENERAL WARRANT;
2.GRAVELY ABUSED ITS DISCRETION IN REOPENING THE CASE AND
ALLOWING ABRITIQUE TO TESTIFY AGAINST APPELLANT;
3GIVING CREDENCE TO THE TESTIMONY OF ABRITIQUE;

4. NOT ACQUITTING THE ACCUSED IN BOTH CASES AND SENTENCING
HIM TO DEATH DESPITE THE ILLEGALLY 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 the appellants residence; (2) the alleged prejudice caused by
the reopening of the case and absences of the prosecution witness, on appellants right
to speedy trial; (3) the sufficiency of the prosecutions evidence to sustain a finding of
guilt with 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 undetermined amount of marijuana," was too general and
hence, void for vagueness. He insists that Abratique could already estimate the amount
of marijuana supposed to be found at appellants residence since Abratique helped to
transport the same.
For the appellee, the Office of the Solicitor General (OSG) counters that a search
warrant is issued if a judge finds probable cause that the place to be searched contains
prohibited drugs, and not that he believes the place contains a specific amount of it.
The OSG points out that, as the trial court observed, it is impossible beforehand to
determine the exact 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 the requirement of Article III, Section 2 29 of the
Constitution that the things to be seized must be particularly described. Appellants
contention, in our view, has no leg to stand on. The constitutional requirement of
reasonable particularity of description of the things to be seized is primarily meant to
enable the law enforcers serving the warrant to: (1) readily identify the properties to be
seized and thus prevent them from seizing the wrong items; 30 and (2) leave said peace
officers with no discretion regarding the articles to be seized and thus prevent
unreasonable searches and seizures.31 What the Constitution seeks to avoid are search
warrants of broad or general characterization or sweeping descriptions, which will
authorize police officers to undertake a fishing expedition to seize and confiscate any
and all kinds of evidence or articles relating to an offense. 32However, it is not required
that technical precision of description be required, 33 particularly, where by the nature of
the goods to be seized, their description must be rather general, since the requirement
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 general warrant. 35 Nor is the description "any and all
narcotics" and "all implements, paraphernalia, articles, papers and records pertaining
to" the use, possession, or sale of narcotics or dangerous drugs so broad as to be
unconstitutional.36 A search warrant commanding peace officers to seize "a quantity of
loose heroin" has been held sufficiently particular.37
Tested against the foregoing precedents, the description "an undetermined amount of
marijuana" must be held to satisfy the requirement for particularity in a search warrant.
Noteworthy, what is to be seized in the instant case is property of a specified
character, i.e., marijuana, an illicit drug. By reason of its character and the
circumstances under which it would be found, said article is illegal. A further
description would be unnecessary and ordinarily impossible, except as to such
character, the place, and the circumstances. 38 Thus, this Court has held that the
description "illegally in possession of undetermined quantity/amount of dried
marijuana leaves and Methamphetamine Hydrochloride (Shabu) and sets of
paraphernalia" particularizes the things to be seized.39
The search warrant in the present case, given its nearly similar wording, "undetermined
amount of marijuana or Indian hemp," in our view, has satisfied the Constitutions
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 the peace officers may be guided in making the search and seizure; and
(3) limits the things to be seized to those which bear direct relation to the offense for
which the warrant is being issued.40 Said warrant imposes a meaningful restriction
upon the objects to be seized by the officers serving the warrant. Thus, it prevents
exploratory searches, which might be violative 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 of Republic Act No. 6425. Appellant claims that this is a
sweeping statement as said statute lists a number of offenses with respect 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 control marijuana 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 for violation of R.A.
6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as further
amended by R.A. 7659 has been and is being committed by one MODESTO TEE a.k.a.
ESTOY TEE of Km. 6, Dontogan Bgy., Green Valley, Sto. Tomas, Baguio City by
having in his possession and control an UNDETERMINED AMOUNT OF
MARIJUANA or INDIAN HEMP in violation of the aforementioned law." 43 In an
earlier case, we held that though the specific section of the Dangerous Drugs Law is
not pinpointed, "there is no question at all of the specific offense alleged to have been
committed as a basis for the finding of probable cause." 44Appellants averment is,
therefore, baseless. Search Warrant No. 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 the applicant and his witness. Appellant points out that
said magistrate should not have swallowed all of Abratiques statements hook, line,
and sinker. He points out that since Abratique consented to assist in the transport of the
marijuana, the examining judge should have elicited from Abratique his participation in
the crime and his motive for squealing on appellant. Appellant further points out that
the evidence of the NBI operative who applied for the warrant is merely hearsay and
should not have been given credit at all by Judge Reyes.
Again, the lack of factual basis for appellants contention is apparent. The OSG points
out that Abratique personally assisted appellant in loading and transporting the
marijuana to the latters house and to appellants rented room at No. 27 Dr. Cario St.,
Baguio City. Definitely, this indicates personal knowledge on Abratiques part. Law
enforcers cannot themselves be eyewitnesses to every crime; they are allowed to
present witnesses before an examining judge. In this case, witness Abratique personally
saw and handled the marijuana. Hence, the NBI did not rely on hearsay information in
applying for a search warrant but on personal knowledge of the witness, Abratique.
Before a valid search warrant is issued, both the Constitution 45 and the 2000 Revised
Rules of Criminal Procedure46 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
instant case, it is not disputed that Judge Antonio Reyes personally examined NBI
Special Investigator III Darwin A. Lising, the applicant for the search warrant as well
as his witness, Danilo G. Abratique. Notes of the proceedings were taken by Atty.
Delilah Muoz, Clerk of Court, RTC of Baguio City, Branch 61, whom Judge Reyes
had ordered to be summoned. In the letter of transmittal of the Clerk of Court of the
RTC of Baguio City, Branch 61 to Branch 6 of said court, mention is made of "notes"
at "pages 7-11."48 We have thoroughly perused the records of Search Warrant No. 415
(7-98) and nowhere find said "notes." The depositions of Lising and Abratique were
not attached to Search Warrant No. 415 (7-98) as required by the Rules of Court. We
must stress, however, that the purpose of the Rules in requiring depositions to be taken
is to satisfy the examining magistrate as to the existence of probable cause. 49 The Bill
of Rights does not make it an imperative necessity that depositions be attached to the
records of an application for a search warrant. Hence, said omission is not necessarily
fatal, for as long as there is evidence on the record showing what testimony was
presented.50 In the testimony of witness Abratique, Judge Reyes required Abratique to
confirm the contents of his affidavit;51 there were instances when Judge Reyes
questioned him extensively.52 It is presumed that a judicial function has been regularly
performed,53 absent a showing to the contrary. A magistrates determination of probable
cause for the issuance of a search warrant is paid great deference by a reviewing
court,54 as long as there was substantial basis for that determination. 55 Substantial basis
means 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 offense sought 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 to quash before the trial court. Instead, his motion
contained vague generalities that Judge Reyes failed to ask searching questions of the
applicant and his witness. Belatedly, however, he now claims that Judge Reyes
perfunctorily examined said 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,
otherwise they are deemed waived.57
In this case, NBI Special Investigator Lisings knowledge of the illicit drugs stored in
appellants house was indeed hearsay. But he had a witness, Danilo Abratique, who had
personal knowledge about said drugs and their particular location. Abratiques
statements to the NBI and to Judge Reyes contained credible and reliable details. As
the NBIs witness, Abratique was a person on whose statements Judge Reyes could
rely. His detailed description of appellants activities with respect to the seized drugs
was substantial. In relying on witness Abratique, Judge Reyes was not depending 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 has been drawn in such a manner that perjury could be charged
thereon and affiant be held liable for damages caused.58
Appellant argues that the address indicated in the search warrant did not clearly
indicate the place to be searched. The OSG points out that the address stated in the
warrant is as specific as can be. The NBI even submitted a detailed sketch of 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 effort, ascertain and identify the place intended 59 and distinguish it
from other places in the community.60 A designation or description that points out the
place to be searched to the exclusion of all others, and on inquiry unerringly leads the
peace 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 fails, however, to point to any evidentiary matter in the
record to support his contention. Defense witness Cipriana Tee, appellants mother,
testified on the search conducted but she said nothing that indicated the use of force on
the part of the NBI operatives who conducted the search and seizure. 61 What the record
discloses is that the warrant was served on appellant, 62 who was given time to read
it,63 and the search was witnessed by the barangay officials, police operatives, members
of the media, and appellants kith and kin.64 No breakage or other damage to the place
searched is shown. No injuries sustained by appellant, or any witness, appears on
record. The execution of the warrant, in our view, has been orderly and peaceably
performed.
2. On The Alleged Violation of Appellants Substantive Rights
Appellant insists that the prosecutions unjustified and willful delay in presenting
witness Abratique unduly delayed the resolution of his case. He points out that a total
of eight (8) scheduled hearings had to be reset due to the failure or willful refusal of
Abratique to testify against him. Appellant insists that said lapse on the prosecutions
part violated Supreme Court Circular No. 38-98. 65 Appellant now alleges that the
prosecution deliberately resorted to delaying the case to cause him untold miseries.
the efforts exerted by the defendant to assert his right, as well as the prejudice and
damage caused to the accused.74
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 amount to a violation of appellants right to a speedy trial. A
trial is always subject to reasonable delays or postponements, but absent any showing
that these delays are capricious and oppressive, the State should not be deprived of a
reasonable opportunity to prosecute the criminal action.
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 mathematical computation of
the number of postponements of the scheduled hearings of the case. 76 The right to a
speedy trial is deemed violated only when: (1) the proceedings are attended by
vexatious, capricious, and oppressive delays; 77 or (2) when unjustified postponements
are asked for and secured;78 or (3) when without cause or justifiable motive a long
period of time is allowed to elapse without the party having his case tried.79
On record, the trial court found that prosecution witness Danilo G. Abratique failed to
appear in no less than eighteen (18) hearings, 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 in 1999. 66 No
less than four (4) warrants of arrest were issued against him to compel him to
testify.67 The NBI agent who supposedly 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 regarding the failure of the Bureaus agents to bring
Abratique to court.69Nothing on record discloses the reason for Abratiques aforecited
absences. On the scheduled hearing of June 7, 1999, he was again absent thus causing
the trial court to again order his arrest for the fifth time.70 He also failed to show up at
the hearing of June 8, 1999.71
In the present case, although the absences of prosecution witness Abratique totaled
twenty (20) hearing days, there is no showing whatsoever that prosecution capriciously
caused Abratiques absences so as to vex or oppress appellant and deny him his rights.
On record, after Abratique repeatedly failed to show up for the taking of his testimony,
the prosecution went to the extent of praying that the trial court order the arrest of
Abratique to compel his attendance at trial. The prosecution likewise tried to get the
NBI to produce Abratique as the latter was in the Bureaus custody, but to no avail.
Eventually, the trial court ordered the prosecution to waive its right to present
Abratique and rest its case on the evidence already offered.80
Appellant now stresses that the failure of Abratique to appear and testify on twenty
(20) hearing dates violated appellants constitutional 72 and statutory right to a speedy
trial.
Nor do we find a delay of twenty (20) hearing days to be an unreasonable length of

time. Delay of less than two months has been found, in fact, to be not an unreasonably
lengthy period of time.81
A speedy trial means a trial conducted according to the law of criminal procedure and
the rules and regulations, free from vexatious, capricious, and oppressive
delays.73 In Conde v. Rivera and Unson, 45 Phil. 650, 652 (1924), the Court held that
"where a prosecuting officer, without good cause, secures postponements of the trial of
a defendant against his protest beyond a reasonable period of time, as in this instance,
for more than a year, the accused is entitled to relief by a proceeding in mandamus to
compel a dismissal of the information, or if he be restrained of his liberty, by habeas
corpus to obtain his freedom."
Moreover, nothing on record shows that appellant Modesto Tee objected to the inability
of the prosecution to produce its witness. Under the Rules, appellant could have moved
the trial court to require that witness Abratique post bail to ensure that the latter would
testify when required.82 Appellant could have moved to have Abratique found in
contempt and duly sanctioned. Appellant did neither. It is a bit too late in the day for
appellant to invoke now his right to speedy trial.
The concept of speedy trial is necessarily relative. A determination as to whether the

right has been violated involves the weighing of several factors such as the length of
the delay, the reason for the delay, the conduct of the prosecution and the accused, and
No persuasive reason supports appellants claim that his constitutional right to speedy
trial was violated. One must take into account that a trial is always subject to
postponements and other causes of delay. But in the absence of a showing that delays
were unreasonable and capricious, the State should not be deprived of a reasonable
opportunity of prosecuting an accused.83
Appellant next contends that the trial court gravely abused its discretion, and exhibited
partiality, when it allowed the reopening of the case after the prosecution had failed to
present Abratique on several occasions and had been directed to rest its case. Appellant
stresses that the lower courts order to reopen the case to receive Abratiques further
testimony is an indication that the trial court favored the prosecution and unduly
prejudiced appellant.
On appellees behalf, the Solicitor General points out that the trial courts order was in
the interest of substantial justice and hence, cannot be termed as an abuse of discretion.
The OSG points out that the prosecution had not formally rested its case and had yet to
present its formal offer of evidence, hence, the submission of additional testimony by
the same witness cannot be prejudicial to the accused, it being but the mere
continuation of an uncompleted testimony. Furthermore, appellant did not properly
oppose the prosecutions 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 in effect. There was no specific provision at that
time governing motions to reopen. 84 Nonetheless, long and established usage has led to
the recognition and acceptance of a motion to reopen. In view of the absence of a
specific procedural rule, the only controlling guideline governing a motion to reopen
was the paramount interests of justice. As a rule, the matter of reopening of a case for
reception of further evidence after either prosecution or defense has rested its case is
within the discretion of the trial court. 85 However, a concession to a reopening must not
prejudice the accused or deny him the opportunity to introduce counter evidence.86
Strictly speaking, however, there was no reopening of the cases in the proceedings
below. A motion to reopen may properly 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 of the prosecution on April 16, 1999 that
should they fail to produce witness Abratique on the next scheduled hearing the
prosecution would rest its case. 89 On April 19, 1999, which was the next scheduled
hearing after April 16, 1999, Abratique was absent notwithstanding notices, orders, and
warrants of arrest. However, on April 27, 1999, or before the prosecution had formally
offered its evidence, Abratique was brought to the trial court by the NBI. In its order of
said date, the trial court pointed out that the prosecution could move to "reopen" the
case for the taking of Abratiques testimony.90 On May 7, 1999, the prosecution so
moved, stressing that it had not yet formally offered its evidence and that the
substantial rights of the accused would not be prejudiced inasmuch as the latter had yet
to present his evidence. Appellant filed no opposition to the motion. The trial court
granted the motion six days later. Plainly, there was nothing to reopen, as the
prosecution had not formally rested its case. Moreover, the taking of Abratiques
testimony was not for the purpose of presenting additional evidence, but more properly
for the completion of his unfinished testimony. In U.S. vs. Base,91 we held 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 the case submitted for decision, by the calling of additional witnesses or
recalling of witnesses so as to satisfy the judges mind with reference to particular facts
involved in the case. A judge cannot be faulted should he require a material witness to
complete his testimony, which is what happened in this case. It is but proper that the
judges mind be satisfied on any and all questions presented during the trial, in order to
serve the cause of justice.
Appellants claim that the trial courts concession to "reopen" the case unduly
prejudiced him is not well taken. We note that appellant had every opportunity to
present his evidence to support his case or to refute the prosecutions evidence pointby-point, after the prosecution had rested its case. In short, appellant was never
deprived of his day in court. A day in court is the touchstone of the right to due process
in criminal justice.92 Thus, we are unable to hold that a grave abuse of discretion was
committed by the trial court when it ordered the so-called "reopening" in order to
complete the testimony of a prosecution witness.
3. On the Sufficiency of the Prosecutions Evidence
In bidding for acquittal, appellant assails the credibility of Abratique as a witness.
Appellant insists that Abratiques testimony is profuse with lies, contrary to human
nature, hence incredible. According to appellant, Abratique was evasive from the outset
with respect to certain questions of the trial court. He adds that it appeared the court
entertained in particular the suspicion that witness Abratique had conspired with
appellant in committing the crime charged. Appellant questions Abratiques motive in
informing the NBI about his activities related to the marijuana taking, transfer, and
warehousing.
The OSG contends that Abratiques testimony, taken as a whole, is credible. It points
out that Abratique testified in a straightforward manner as to his knowledge of the huge
cache of prohibited drugs stashed by appellant in two different places. His testimony,
said the OSG, when fused with the physical evidence consisting of 591.81 kilograms of
marijuana found by law enforcers at appellants residence, inexorably leads to the
inculpation of appellant.
It is the bounden duty of the courts to test the prosecution evidence rigorously, so that
no innocent person is made to suffer 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 thin line between innocence and feeling guilty, with certain portions of his
story tending to be self-exculpatory. However, his whole testimony could not be
discredited. The established rule is that testimony of a witness may be believed in part
and disbelieved 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 huge amounts of marijuana to appellants rented room at
No. 27 Dr. Cario St., Baguio City and to appellants residence at Km. 6, Dontogan,
Green Valley, Sto. Tomas, Baguio City. He also declared on the witness stand that out
of fear of being involved, he decided to divulge his knowledge of appellants
possession of large caches of marijuana to the NBI. When the places referred to by
Abratique were searched by the authorities, marijuana in staggering quantities was
found and seized by the law enforcers. Stated plainly, the physical evidence in this case
corroborated Abratiques testimony on material points.
Appellant imputes questionable motives to Abratique in an effort to discredit him. He
demands that Abratique should likewise be prosecuted. However, by no means is the
possible guilt of Abratique a tenable defense for appellant. Nor would Abratiques
prosecution mean appellants absolution.
to be marijuana. These articles were seized pursuant to a valid search warrant and
hence, fully admissible in evidence.
In People v. de los Reyes, 239 SCRA 439 (1994), we held that the Dangerous Drugs
Act applies generally to all persons and proscribes the sale of dangerous drugs by any
person, and no person is authorized to sell such drugs. Said doctrine is equally
applicable with respect to possession of prohibited drugs. Republic Act No. 6425,
which penalizes the possession of prohibited drugs, applies equally to all persons in
this jurisdiction and no person is authorized to possess said articles, without authority
of law.
Anent the third element, we have held that to warrant conviction, possession of illegal
drugs must be with knowledge of the accused or that animus possidendi existed
together with the possession or control of said articles. 96 Nonetheless, this dictum must
be read in consonance with our ruling that possession of a prohibited drug per
se constitutes prima facie evidence of knowledge or animus possidendi sufficient to
convict an accused absent a satisfactory explanation of such possession. 97 In effect,
the onus probandi is shifted to accused to explain the absence of knowledge or animus
possidendi98 in this situation.
Appellant Modesto Tee opted not to testify in his defense. Instead, he presented his
mother as his lone witness, who testified on matters totally irrelevant to his case. We
can only conclude that, failing to discharge the burden of the evidence on the
possession of prohibited drug, appellants guilt in Criminal Case No. 15800-R was
established beyond reasonable doubt.
4. On The Proper Penalty
In a prosecution for illegal possession of dangerous drugs, the following facts must be
proven with moral certainty: (1) that the accused is in possession of the object
identified as prohibited or regulated drug; (2) that such possession is not authorized by
law; and (3) that the accused freely and consciously possessed the said drug.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 appellants residence served to prove appellants possession of a
prohibited drug. Tests conducted by the NBI forensic chemist proved the seized articles
Under Republic Act No. 6425 as amended by Republic Act No. 7659, the penalty
of reclusion perpetua to death and a fine ranging from five hundred thousand pesos
(P500,000.00) to ten million pesos (P10,000,000.00) 99 shall be imposed if the quantity
of marijuana involved in a conviction for possession of marijuana or Indian hemp shall
be 750 grams or more.100
In the present case, the quantity of marijuana involved has been shown by the
prosecution to be far in excess of 750 grams, 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 first brought to the court, it took hours to load them on the truck
and hours also to unload them prompting the court to direct that the boxes and sack of
marijuana be instead kept at the NBI office in Baguio. And the identification of said
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
reclusion perpetua. The fine of ONE MILLION (P1,000,000.00) PESOS imposed on

him is sustained. Appellant is likewise directed to pay the costs of suit.
SO ORDERED.
_____________
In sentencing appellant to death, the trial court noted not only the huge quantity of
marijuana bales involved, but also "the acts of accused of hiding them in different
placesand transferring them from place to place and making them appear as boxes of
cigarettes to avoid and evade apprehension and detection." They showed his being a
big supplier, said the trial court, [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 where the quantity involved exceeds those stated in
Section 20 of Republic Act No. 6425 the maximum penalty of death shall
automatically be imposed.103 The statute prescribes two indivisible penalties: reclusion
perpetua and death. Hence, the penalty to be imposed must conform with Article
63104 of the Revised Penal Code. As already held, the death penalty law, Republic Act
No. 7659 did not amend Article 63 of the Revised Penal Code. 105 The rules in Article
63 apply although the prohibited 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, appellants possession of
591.81 kilograms of 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 subsidiary imprisonment in case of insolvency. The
imposition of a fine is mandatory in cases of conviction of possession of illegal drugs.
This being within the limits allowed by the law, the amount of the fine must be
sustained. All these sanctions might not remedy all the havoc wrought by prohibited
drugs on the moral fiber of our society, especially the youth. 107 But these penalties
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-R, convicting 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
PEOPLE OF THE PHILIPPINES, 2ND ASSISTANT PROVINCIAL

PROSECUTOR GLORIA LASTIMOSA MARCOS and HON. CICERO U.
QUERUBIN in his capacity as Presiding Judge of the Regional Trial Court of
Negros Occidental, Branch 44, Bacolod City, respondents.
QUIASON, J.:
This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of
Court to set aside the Order dated July 20, 1989 of the Regional Trial Court (RTC),
Branch 44, Bacolod City in Civil Case No. 5331, which nullified the order earlier
issued by the Municipal Trial Circuit Court (MTCC) of the City of Bacolod. The
MTCC Order directed the return to petitioner of the amount of P14,000.00 which had
been seized by the police.
I
On August 31, 1988, P/Sgt. Flumar Natuel applied for the issuance of a search warrant
from the MTCC, alleging that he received information that petitioner had in his
possession at his house at the North Capitol Road, Bacolod City, "M-16 Armalite Rifles
(Mags & Ammos), Hand Grenades, .45 Cal. Pistols (Mags & Ammos), Dynamite
Sticks and Subversive Documents," which articles were "used or intended to be used"
for illegal purposes (Rollo, p. 14). On the same day, the application was granted by the
MTCC with the issuance of Search Warrant No. 365, which allowed the seizure of the
items specified in the application (Rollo, p. 15).
At around 6:30 P.M. of September 9, 1988, a police team searched the house of
petitioner and seized the following articles:
(1) Two (2) envelopes containing cash in the total amount of P14,000.00 (one envelope
P10,000.00 and another P4,000.00);
(2) one (1) AR 280 handset w/antenae (sic) SN-00485;
FIRST DIVISION
G.R. No. 89103 July 14, 1995
LEON TAMBASEN, petitioner,
vs.
(3) one (1) YAESU FM Transceiver FT 23R w/Antenae (sic);

(4) one (1) ALINCO ELH 230D Base;
(5) one (1) DC Regulator Supply 150 V. 13.8 V 12 AMP 128 VAC;
(6) one (1) brown Academy Notebook & Assorted papers; and
(7) Four (4) handsets battery pack (Rollo, p. 16).
On September 19, 1988, the MTCC, acting on petitioner's urgent motion for the return
of the seized articles, issued an order directing Sgt. Natuel to make a return of the
search warrant. The following day, Sgt. Natuel submitted a report to the court. Not
considering the report as a "return in contemplation of law," petitioner filed another
motion praying that Sgt. Natuel be required to submit a complete and verified
inventory of the seized articles. Thereafter, Sgt. Natuel manifested that although he was
the applicant for the issuance of the search warrant, he was not present when it was
served.
On October 7, 1988, petitioner filed before the MTCC a motion praying that the search
and seizure be declared illegal and that the seized articles be returned to him. In his
answer to the motion, Lt. Col. Nicolas Torres, the station commander of the Bacolod
City Police, said that the amount of P14,000.00 had been earmarked for the payment of
the allowance of the Armed City Partisan (ACP) and other "known NPA personalities"
operating in the City of Bacolod.
On December 23, 1988, the MTCC issued an order directing Lt. Col. Torres to return
the money seized to petitioner. The court opined that in the implementation of the
search warrant, any seizure should be limited to the specific items covered thereby. It
said that the money could not be considered as "subversive documents"; it was neither
stolen nor the effects of gambling.
Three months later, the Solicitor General filed before the RTC, Branch 44, Bacolod
City a petition for certiorariseeking the annulment of the order of the MTCC (Civil
Case No. 5331). The petition alleged that assuming that the seizure of the money had
been invalid, petitioner was not entitled to its return citing the rulings in Alih v. Castro,
151 SCRA 279 (1987) and Roan v. Gonzales, 145 SCRA 687 (1986). In those cases,
the Court held that pending the determination of the legality of the seizure of the
articles, they should remain in custodia legis. The petition also averred that a criminal
complaint for "any of the crimes against public order as provided under Chapter I, Title
III of the Revised Penal Code" had been filed with the City Fiscal (BC I.S. No. 881239) and therefore, should the money be found as having been earmarked for
subversive activities, it should be confiscated pursuant to Article 45 of the Revised
Penal Code.
On July 20, 1989, RTC, Branch 44 issued an order granting the petition
for certiorari and directing the clerk of court to return to the MTCC the money pending
the resolution of the preliminary investigation being conducted by the city prosecutor
on the criminal complaint. In said order, the RTC held:
The Court observed that private respondent Leon Tambasen never questioned the
validity of the search warrant issued by respondent Judge Demosthenes L. Magallanes.
A perusal of private respondent's "Motion to Declare Search and Seizure Illegal and to
Return Seized Properties" dated October 7, 1988 shows that respondent Tambasen
questions not the validity of the search warrant issued by respondent Judge
Demosthenes Magallanes, but rather, the execution or implementation of the said
warrant principally on the ground that the articles seized are not allegedly mentioned in
the search warrant. However, the question thus raised involves matters determinative of
the admissibility in evidence and the legality of the articles seized. These matters, it is
submitted, go beyond the immediate and limited jurisdiction of the respondent Judge to
inquire into the validity of the search warrant he issued. These issues which relate
exclusively or principally with the intrinsic and substantive merits of the case or cases
which are being prepared against respondent Tambasen, and insofar as Tambasen is
concerned involve matters of defense which should be properly raised at the criminal
action or actions that may be filed against respondent Leon Tambasen (see DOH v. Sy
Chi Siong Co., Inc. et. al., G.R. No. 85289, Feb. 20, 1989). They cannot be addressed
to the respondent Judge because the respondent Judge has no jurisdiction over the said
issue. It is clear therefore that respondent Judge has transcended the boundaries of his
limited jurisdiction and had in effect encroached upon the jurisdiction of the
appropriate trial court or courts that will try the criminal case or cases against
respondent Leon Tambasen, in issuing the assailed order dated December 23, 1988.
Ostensibly, the assailed order, if not corrected, will unduly deprive the prosecution of
its right to present the evidence in question and, consequently, will improperly oust the
trial court, which will try the criminal case or cases against private respondent Leon
Tambasen of its original and exclusive jurisdiction to rule on the admissibility and
legality of the said evidence. This order of respondent court is tantamount to a denial of
due process. It may be considered as a grave abuse of discretion reviewable
by certiorari (Esparagoza
v.
Tan,
94
Phil.
749)
(Rollo,
pp.
47-48).
Consequently, petitioner filed the instant petition for certiorari and prohibition praying
for the issuance of a temporary restraining order commanding the city prosecutor to
cease and desist from continuing with the preliminary investigation in BC I.S. No. 881239 and the RTC from taking any step with respect to Civil Case No. 5331. He also
prayed that Search Warrant No. 365 and the seizure of his personal effects be declared
illegal and that the Order of July 20, 1989 be reversed and annulled.
Petitioner contended that the search warrant covered three offenses: "(1) illegal
possession of armalite rifle and .45 cal. pistol; (2) illegal possession of hand grenade
and dynamite sticks; and (3) illegal possession of subversive documents" (Rollo, pp. 34) in violation of Section 3 of Rule 126 of the Revised Rules of Court. He assailed the
legality of the seizure of the articles which were not mentioned in the search warrant.
Moreover, since a complaint against him was filed only after his house had been
searched, petitioner claimed that the police were "on a fishing expedition."
During the pendency of the instant petition, a series of events related to the questioned
search and seizure transpired. At around 10:30 P.M. of March 1, 1990, petitioner, who
was then on board a passenger vehicle, was arrested by intelligence operatives in
Barangay Mandalagan, Bacolod City and forthwith detained. On the strength of sworn
statements of two rebel returnees, the police filed a complaint for subversion against
petitioner with the Office of the City Prosecutor. The following day, the City
Prosecutor filed an information for violation of the Anti-Subversion Law against
petitioner with RTC, Branch 42, Bacolod City (Criminal Case No. 8517). An order for
the arrest of petitioner was issued on March 2, 1990.
On March 6, 1990, petitioner filed a motion to quash the information in Criminal Case
No. 8517.
On March 15, 1990, RTC, Branch 42 granted petitioner's motion to quash and recalled
the warrant of arrest. The court also directed the City Prosecutor to resolve BC-I.S.
Case No. 88-1239.
On March 20, 1990, Assistant Provincial Prosecutor Gloria Lastimosa Marcos
manifested before RTC, Branch 42 that petitioner had been "dropped" from BC-I.S.
No. 88-1239. However, the City Prosecutor had, by then, filed a motion for the
reconsideration of said Resolution of March 15, 1990. The motion was denied.
Under this factual matrix, this Court is confronted with the question of whether RTC,
Branch 44 gravely abused its discretion in directing that the money seized from
petitioner's house, specifically the amount of P14,000.00, be retained and kept
in custodia legis.
On its face, the search warrant violates Section 3, Rule 126 of the Revised Rules of
Court, which prohibits the issuance of a search warrant for more than one specific
offense. The caption of Search Warrant No. 365 reflects the violation of two special
laws: P.D. No. 1866 for illegal possession of firearms, ammunition and explosives; and
R.A. No. 1700, the Anti-Subversion Law. Search Warrant No. 365 was therefore a
"scatter-shot warrant" and totally null and void (People v. Court of Appeals, 216 SCRA
101 [1992]).
Moreover, by their seizure of articles not described in the search warrant, the police
acted beyond the parameters of their authority under the search warrant. Section 2,
Article III of the 1987 Constitution requires that a search warrant should particularly
describe the things to be seized. "The evident purpose and intent of the requirement is
to limit the things to be seized to those, and only those, particularly described in the
search warrant to leave the officers of the law with no discretion regarding what
articles they should seize, to the end that unreasonable searches and seizures may not
be made and that abuses may not be committed" (Corro v. Lising, 137 SCRA 541, 547
[1985]); Bache & Co. [Phil.] Inc. v. Ruiz, 37 SCRA 823 [1971]; Uy Kheytin v.
Villareal, 42 Phil. 886 [1920]). The same constitutional provision is also aimed at
preventing violations of security in person and property and unlawful invasions of the
sanctity of the home, and giving remedy against such usurpations when attempted
(People v. Damaso, 212 SCRA 547 [1992] citing Alvero v. Dizon, 76 Phil. 637, 646
[1946]).
Clearly then, the money which was not indicated in the search warrant, had been
illegally seized from petitioner. The fact that the members of the police team were
doing their task of pursuing subversives is not a valid excuse for the illegal seizure. The
presumption juris tantum of regularity in the performance of official duty cannot by
itself prevail against the constitutionally protected rights of an individual (People v.
Cruz, 231 SCRA 759 [1994]; People v. Veloso, 48 Phil. 169, 176 [1925]). Although
public welfare is the foundation of the power to search and seize, such power must be
exercised and the law enforced without transgressing the constitutional rights of the
citizens (People v. Damaso, supra, citing Rodriguez v. Evangelista, 65 Phil. 230, 235
[1937]). As the Court aptly puts it inBagalihog v. Fernandez, 198 SCRA 614 (1991),
"[z]eal in the pursuit of criminals cannot ennoble the use of arbitrary methods that the
Constitution itself abhors."
For the retention of the money seized by the police officers, approval of the court
which issued the search warrant is necessary (People v. Gesmundo, 219 SCRA 743
[1993]). In like manner, only the court which issued the search warrant may order their
release (Temple v. Dela Cruz, 60 SCRA 295 [1974]; Pagkalinawan v. Gomez, 21

SCRA 1275 [1967]).
Section 3(2) of Article III of the 1987 Constitution provides that evidence obtained in
violation of the right against unreasonable searches and seizures shall be inadmissible
for any purpose in any proceeding.
The information in Criminal Case No. 8517, with petitioner as the sole accused, was
ordered quashed by the trial court and the prosecution's motion for the reconsideration
of the quashal order had been denied. Even in BC I.S. Case No. 88-1239, which was
being investigated by Assistant Provincial Prosecutor Marcos, petitioner was dropped
as a respondent. Hence, there appears to be no criminal prosecution which can justify
the retention of the seized articles in custodia legis.
A subsequent legal development added another reason for the return to him of all the
seized articles: R.A. No. 1700, the Anti-Subversion Law, was repealed by R.A. No.
7636 and, therefore, the crimes defined in the repealed law no longer exist.
WHEREFORE, the petition is GRANTED and the People of the Philippines is
ORDERED to RETURN the money seized to petitioner.
EN BANC
G.R. No. L-23051
October 20, 1925
SO ORDERED.
________________
THE PEOPLE OF THE PHILIPPINES ISLANDS, plaintiff-appellant,

vs.
JOSE MA. VELOSO, defendant-appellant.
MALCOLM, J.:
This is an appeal from a judgment of the Court of First Instance of Manila finding the
accused, Jose Ma. Veloso, guilty of the crime of resistance of the agents of the
authority, in violation of article 252 of the Penal Code, and sentencing him to four
months and one day imprisonment, arresto mayor, with the accessory penalties, to pay
a fine of P200, with the corresponding subsidiary imprisonment in case of insolvency,
and to pay the costs. The errors assigned by counsel for the accused as appellant, go to
the proposition that the resistance of the police was justifiable on account of the
illegality of the John Doe search warrant.
In May, 1923, the building located at No. 124 Calle Arzobispo, City of Manila, was
used by an organization known as the Parliamentary Club. Jose Ma. Veloso was at that
time a member of the House of Representative of the Philippine Legislature. He was

also the manager of the club.
The police of Manila had reliable information that the so-called Parliamentary Club
was nothing more than a gambling house. Indeed, on May 19, 1923, J. F. Townsend,
the chief of the gambling squad, had been to the club and verified this fact. As a result,
on May 25, 1923, Detective Andres Geronimo of the secret service of the City of
Manila, applied for, and obtained a search warrant from Judge Garduo of the
municipal court. Thus provided, the police attempted to raid the Parliamentary Club a
little after three in the afternoon of the date above- mentioned. They found the doors to
the premises closed and barred. Accordingly, one band of police including policeman
Rosacker, ascended a telephone pole, so as to enter a window of the house. Other
policemen, headed by Townsend, broke in the outer door.
Once inside the Parliamentary Club, nearly fifty persons were apprehended by the
police. One of them was the defendant Veloso. Veloso asked Townsend what he
wanted, and the latter showed him the search warrant. Veloso read it and told
Townsend that he was Representative Veloso and not John Doe, and that the police had
no right to search the house. Townsend answered that Veloso was considered as John
Doe. As Veloso's pocket was bulging, as if it contained gambling utensils, Townsend
required Veloso to show him the evidence of the game. About five minutes was
consumed in conversation between the policemen and the accused the policemen
insisting on searching Veloso, and Veloso insisting in his refusal to submit to the
search.
In the municipal court of the City of Manila, the persons arrest in the raid were accused
of gambling. All of them were eventually acquitted in the Court of First Instance for
lack of proof, with the sole exception of Veloso, who was found guilty of maintaining a
gambling house. This case reached the appellate court where the accused was finally
sentenced to pay a fine of P500. (No. 22163. 1 )
The foregoing are the principal facts taken mainly from the findings of the trial judge,
the Honorable Vicente Nepomuceno. Counsel for the appellant makes no effort to
impugn these findings, except that he stresses certain points as more favorable to the
case of his client. The defense, as previously indicated, is planted squarely on the
contention that since the name of Veloso did not appear in the search warrant, but
instead the pseudonym John Doe was used, Veloso had a legal right to resist the police
by force. The nature of this defense makes it advisable to set forth further facts, relating
particularly to the search warrant, before passing to the law.
There are found in the record the application for search warrant, the affidavit for search
warrant, and the search warrant. The application reads:
UNITED STATES OF AMERICA
PHILIPPINE ISLANDS
IN THE MUNICIPAL COURT OF THE CITY OF MANILA
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff, vs. JOHN DOE, Defendant.
At last the patience of the officers was exhausted. So policeman Rosacker took hold of
Veloso only to meet with his resistance. Veloso bit Rosacker in the right forearm, and
gave him a blow in another part of the body, which injured the policeman quite
severely. Through the combined efforts of Townsend and Rosacker, Veloso was finally
laid down on the floor, and long sheets of paper, of reglas de monte, cards, cardboards,
and chips were taken from his pockets.
APPLICATION FOR
SEARCH WARRANT
All of the persons arrested were searched and then conducted to the patrol wagons.
Veloso again refused to obey and shouted offensive epithets against the police
department. It was necessary for the policemen to conduct him downstairs. At the door,
Veloso resisted so tenaciously that three policemen were needed to place him in the
patrol wagon. 1awph!l.net
Q. What is your name, residence and occupation? A. Andres Geronimo, No. 47

Revellin, detective.
(G)
Testimony taken before Hon. L. Garduo, Judge, Municipal Court, Manila.

Andres Geronimo, being duly sworn, testifies as follows:
Q. Are you the applicant of this search warrant? A. Yes, sir.

Q. Do you know the premises situated at No. 124 Calle Arzobispo, District of W. C.,
City of Manila? A. Yes. sir.
Q. Do you know who occupies said premises? A. I do not know. According to the
best of my information the house is occupied by John Doe.
The People of the Philippine Islands, to any member of the

Police Force of the City of Manila.
Q . What are your reasons for applying for this search warrant? A. It has been
reported to me by a person whom I consider to be reliable that in said premises there
are instruments and devices used in gambling games, such as cards, dice, chips, lottery
tickets, lists of drawing and lists used in prohibited games kept. It has been reported to
me by a person whom I consider to be reliable that there are or there will be gambling
conducted in said premises. The aforesaid premises are known as gambling house. I
have watched the foregoing premises and believed it to be a gambling house and a
place where instruments and devices used in gambling games, such as cards, dice,
chips, lottery tickets, lists of drawing and lists used in prohibited games are kept.
I, Andres Geronimo, being duly sworn, depose and say that I have read the foregoing
questions and answers and that I find the same to correct and true to the best of my
knowledge and belief.
Subscribed and sworn to before me this 25th day of May, 1923.

L. GARDUO
Proof by affidavit having this day been made before me by Andres Geronimo that he
has good reason to believe and does believe that John Doe has illegally in his
possession in the building occupied by him and which is under his control, namely in
the building numbered 124 Calle Arzobispo, City of Manila, Philippines Islands,
certain devices and effects used in violation of the Gambling Law, to wit: money, cards,
chips, reglas, pintas, tables and chairs and other utensils used in connection with the
game commonly known as monte and that the said John Doe keeps and conceals said
devices and effects with the illegal and criminal intention of using them in violation of
the Gambling Law.
Now therefore, you are hereby commanded that at any time in the day or night within
ten (10) days on or after this date to make a search on the person of said John Doe and
in the house situated at No. 124 Calle Arzobispo, City of Manila, Philippine Islands, in
quest of the above described devices and effects and if you find the same or any part
thereof, you are commanded to bring it forthwith before me as provided for by law.
(Sgd.) ANDRES GERONIMO
(Sgd.)
GREETING:
Judge, Municipal Court

Given under my hand, this 25th day of May, 1923.
The affidavit and the search warrant are so nearly alike that it will suffice to copy the
search warrant alone. This document reads:
UNITED
PHILIPPINE ISLANDS
STATES
OF
IN THE MUNICIPAL COURT OF THE CITY OF MANILA

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff,
vs.
JOHN DOE, Defendant.
SEARCH WARRANT
(G)
(Sgd.)
Judge, Municipal Court
L.
GARDUO
AMERICA
Coming now to the legal aspects of the case it is first worthy of mention that by reason
of the Fourth Amendment to the United States Constitution and the eleventh and
eighteenth paragraphs of the Philippine Bill of Rights, as found in the present Organic
Act, the security of the dwelling and the person is guaranteed. The organic act provides
"that the right to be secured against unreasonable searches and seizures shall not be
violated." It further provides "that no warrant shall issue but upon probable cause,
supported by oath or affirmation and particularly describing the place to be searched
and the person or things to be seized."
In the Philippine Code of Criminal Procedure are found provisions of the same import
although naturally entering more into detail. It is therein provided, among other things,
that "a search warrant shall not issue except for probable cause and upon application
supported by oath particularly describing the place to be searched and the person of
thing to be seized." (Section 97.) After the judge or justice shall have examined on oath
the complainant and any witnesses he may produce, and shall have taken their
depositions in writing (section 98), and after the judge or justice is satisfied of the
existence of facts upon which the application is based, or that there is probable cause to
believe that they exist, he must issue the warrant which must be substantially in the
following form:
xxx
xxx
xxx
. . . You are, therefore, commanded, . . . to make immediate search on the person

of ............................, or in the house situated ...................................... (describing it or
any other place to be searched with reasonable particularity, as the case may be) for the
following property: . . . ." (Section 99.) It is finally provided that "a person charged
with a crime may be searched for dangerous weapons or anything which may be used
as proof of the commission of the crime. (Section 105).
Warrant for apprehension of unnamed party, or containing a wrong name for the party
to be apprehended is void, except in those cases where it contains a descriptio personae
such as will enable the officer to identify the accused.
Name and description of the accused should be inserted in the body of the warrant and
where the name is unknown there must be such a description of the person accused as
will enable the officer to identify him when found.
xxx
xxx
xxx
xxx
xxx
xxx
A search warrant must conform strictly to the requirements of the constitutional and
statutory provisions under which it is issued. Otherwise it has rightly been held, must
be absolutely legal, "for there is not a description of process known to the law, the
execution of which is more distressing to the citizen. Perhaps there is none which
excites such intense feeling in consequence of its humiliating and degrading effect."
The warrant will always be construed strictly without, however, going the full length of
requiring technical accuracy. No presumptions of regularity are to be invoked in aid of
the process when an officer undertakes to justify under it. (24 R. C. L., pp. 711, et seq.;
Reed vs. Rice [1829], 2 J. J. Marshall [Ky.] 44; 19 Am. Dec., 122; Smith vs. McDuffee
[1914], 72 Ore., 276; Ann. Cas. 1916 D, 947.)
John Doe' Warrants. It follows, on principle, from what has already been said
regarding the essential requirements of warrants for the apprehension of persons
accused, and about blank warrants, that a warrant for the apprehension of a person
whose true name is unknown, by the name of "John Doe" or "Richard Roe," "whose
other or true name in unknown," is void, without other and further descriptions of the
person to be apprehended, and such warrant will not justify the officer in acting under
it. Such a warrant must, in addition, contain the best descriptio personae possible to be
obtained of the person or persons to be apprehended, and this description must be
sufficient to indicate clearly the proper person or persons upon whom the warrant is to
be served; and should state his personal appearance and peculiarities, give his
occupation and place of residence, and any other circumstances by means of which he
can be identified.
The search warrant has been likened to a warrant of arrest. Although apprehending that
there are material differences between the two, in view of the paucity of authority
pertaining to John Doe search warrants we propose to take into consideration the
authorities relied upon by the appellant, thus following the precedent of Uy Kheytin vs.
Villareal ([1920], 42 Phil., 886), where the regularity of the issuance of the search
warrant was also questioned.
Person apprehended in act of committing a crime, under a "John Doe" warrant, on the
other hand, the apprehension will not be illegal, or the officer liable, because under
such circumstances it is not necessary that a warrant should have been issued.
In the lower court, and again in this court, the attorneys for the defense quoted from
Wharton's Criminal Procedure. In that text at pages 51, 52, 54, 55, and 56 of volume 1
of the Tenth Edition, is found the following:
Form and Sufficiency of Warrant. Technical accuracy is not required. . . .
The authority most often cited to sustain the text, and quoted with approval by the
United States Supreme Court, is the case of Commonwealth vs. Crotty ([1865], 10
Allen [Mass.], 403). It there appeared that one Peaslee had made a complaint to the
police court Lee, charging that "John Doe or Richard Roe, whose other or true name is
to your complainant unknown," had committed an assault and battery upon him; upon
which complaint a warrant was issued against "John Doe or Richard Roe, whose other
or true name is to your complainant unknown, named in the foregoing complaint."
Neither the complaint nor the warrant contained any further description or means of
identification of the person to be arrested. Crotty resisted the arrest upon the ground
that the warrant was invalid. Mr. Chief Justice Bigelow, as the organ of the Supreme
Court of Massachusetts, said:
We cannot entertain a doubt that the warrant on which the officer attempted to arrest
one of the defendant at the time of the alleged riot was insufficient, illegal and void. It
did not contain the name of the defendant, nor any description or designation by which
he could be known and identified as the person against whom it was issued. It was in
effect a general warrant, upon which any other individual might as well have been
arrested, as being included in the description, as the defendant himself. Such a warrant
was contrary to elementary principles, and in direct violation of the constitutional right
of the citizen, as set forth in the Declaration of Rights, article 14, which declares that
every subject has a right to be secure from all unreasonable searches and seizures of his
person, and that all warrants, therefore, are contrary to this right, if the order in the
warrant to a civil officer to arrest one or more suspected persons or to seize their
property be not accompanied with a special designation of the persons or objects of
search, arrest or seizure. This is in fact only a declaration of an ancient common law
right. It was always necessary to express the name or give some description of a party
to be arrested on a warrant; and if one was granted with the name in blank, and without
other designation of the person to be arrested, it was void. (1 Hale P. C. 577. 2 Ib. 119.
Foster, 312. 7 Dane Ab. 248. 1 Chit. Crim. Law, 39. Mead vs. Haws, 7 Cow., 332, and
cases cited.)
This rule or principle does not prevent the issue and service of a warrant against a party
whose name is unknown. In such case the best description possible of the person to be
arrested is to be given in the warrant; but it must be sufficient to indicate clearly on
whom it is to be served, by stating his occupation, his personal appearance and
peculiarities, the place of his residence, or other circumstances by which he can be
identified. (1 Chit. Crim. Law, 39, 40.)
The warrant being defective and void on its face, the officer had no right to arrest the
person on whom he attempted to serve it. He acted without warrant and was a
trespasser. The defendant whom he sought to arrest had a right to resist by force, using
no more than was necessary to resist the unlawful acts of the officer . . .
The defendants, therefore, in resisting the officer in making an arrest under the warrant
in question, if they were guilty of no improper or excessive force or violence, did not
do an unlawful act by lawful means, or a lawful act by unlawful means, and so could
not be convicted of the misdemeanor of a riot, with which they are charged in the
indictment.
Appellant's argument, as based on these authorities, runs something like this. The law,
constitutional and statutory, requires that the search warrant shall not issue unless the
application "particularly" describe the person to be seized. A failure thus to name the
person is fatal to the validity of the search warrant. To justify search and arrest, the
process must be legal. Illegal official action may be forcibly resisted.
For the prosecution, however, as the arguments are advanced by the Attorney-General,
and as the law was summarized by the trial judge, there is much to be said. Careful and
logical reflection brings forth certain points of paramount force and exercising a
decisive influence. We will now make mention of them by correlating the facts and the
law.
In the first place, the affidavit for the search warrant and the search warrant itself
described the building to be searched as "the building No. 124 Calle Arzobispo, City of
Manila, Philippine Islands." This, without doubt, was a sufficient designation of the
premises to be searched. It is the prevailing rule that a description of a place to be
searched is sufficient if the officer with the warrant can, with reasonable effort,
ascertain and identify the place intended. (Steele vs. U. S. [1925], U. S. Supreme Court
Advance Opinions 1924-1925; 69 Law. ed., 757). The police officers were accordingly
authorized to break down the door and enter the premises of the building occupied by
the so-called Parliamentary Club. When inside, they then had the right to arrest the
persons presumably engaged in a prohibited game, and to confiscate the evidence of
the commission of the crime. It has been held that an officer making an arrest may take
from the person arrested any money or property found upon his person, which was
used in the commission of the crime or was the fruit of the crime, or which may furnish
the person arrested with the means of committing violence or of escaping, or which
may be used as evidence on the trial of the cause, but not otherwise. (Moreno vs. Ago
Chi [1909], 12 Phil., 439.)
Proceeding along a different line of approach, it is undeniable that the application for
the search warrant, the affidavit, and the search warrant failed to name Jose Ma. Veloso
as the person to be seized. But the affidavit and the search warrant did state that "John
Doe has illegally in his possession in the building occupied by him, and which is under
his control, namely, in the building numbered 124 Calle Arzobispo, City of Manila,
Philippine Islands, certain devices and effects used in violation of the Gambling Law."
Now, in this connection, it must not be forgotten that the Organic Act requires a
particular description of the place to be searched, and the person or things to be seized,
and that the warrant in this case sufficiently described the place and the gambling
apparatus, and, in addition, contained a description of the person to be seized. Under
the authorities cited by the appellant, it is invariably recognized that the warrant for the
apprehension of an unnamed party is void, "except in those cases where it contains a

description personae such as will enable the officer to identify the accused." The
description must be sufficient to indicate clearly the proper person upon whom the
warrant is to be served. As the search warrant stated that John Doe had gambling
apparatus in his possession in the building occupied by him at No. 124 Calle
Arzobispo, City of Manila, and as this John Doe was Jose Ma. Veloso, the manager of
the club, the police could identify John Doe as Jose Ma. Veloso without difficulty.
Again, it must be remembered that No. 124 Calle Arzobispo was supposed to be used
for club purposes. It was not the home of Veloso; not the place of abode of the family,
which the law carefully protects in all of its sanctity. It was a club partially public in
nature. It was, moreover, a camouflaged club with a high sounding name calculated to
mislead the police, but intended for nefarious practices. In a club of such a character,
unlike in the home, there would commonly be varying occupancy, a number of John
Does and Richard Roes whose names would be unknown to the police.
It is also borne out by the authorities that, in defense of himself, any member of his
family or his dwelling, a man has a right to employ all necessary violence. But even in
the home, and much less so in a club or public place, the person sought to be arrested
or to be searched should use no more force than is necessary to repel the unlawful act
of the officers. To authorize resistance to the agents of the authority, the illegality of the
invasion must be clearly manifest. Here, there was possibly a proper case for protest.
There was no case for excessive violence to enforce the defendant's idea of a debatable
legal question. (Commonwealth vs. Crotty, supra; People vs. Chan Fook [1921], 42
Phil., 230; 3 Groizard, Codigo Penal, pp. 456, 457.)
We agree with the trial judge and with the Attorney-General in their conclusions to the
effect that the search warrant was valid, and that the defendant has been proved guilty
beyond a reasonable doubt, of the crime of resistance of the agents of the authority.
The information alleges that at the time of the commission of the crime, the accused
was a member of the House of Representatives. The trial court was led to consider this
allegation in relation with the facts as an aggravating circumstance, and to sentence the
accused accordingly. We doubt, however, that advantage was taken by the offender of
his public position when he resisted the officers of the law. The offender did not
necessarily make use of the prestige of his office as a means to commit a crime.
Undoubtedly, Jose Ma. Veloso, as Juan de la Cruz, would have resisted the police just
as stoutly, as the Honorable Jose Ma. Veloso did. The penalty, accordingly, falls within
the medium of that provided by the Penal Code.
Finding present no reversible error, agreeing in all respects with the findings of facts as
made by the trial judge, and concurring with the trial judge in his legal conclusion, with
one exception, it results that the judgment appealed from must be, as it is hereby,
affirmed, with the sole modification that the defendant and appellant shall be sentenced
to two months and one day imprisonment, arresto mayor, with the costs of this instance
against him. Let the corresponding order to carry this judgment into effect issue.
_________________-
The trial judge deduced from the searched warrant that the accused Veloso was
sufficiently identified therein. Mention was made by his Honor of the code provision
relating to a complaint or information, permitting a fictitious name to be inserted in the
complaint or information, in lieu of the true name. The Attorney-General adds to this
the argument that the police were authorized to arrest without a warrant since a crime
was being committed. We find it unnecessary to comment on this contention.
John Doe search warrants should be the exception and not the rule. The police should
particularly describe the place to be searched and the person or things to be seized,
wherever and whenever it is feasible. The police should not be hindered in the
performance of their duties, which are difficult enough of performance under the best
of conditions, by superficial adherence to technicality or far fetched judicial
interference.
After their arrest, petitioners filed a motion for bail. However, the resolution of the
same was held in abeyance by the trial court pending the presentation of evidence by
the prosecution to enable the court to determine whether or not the evidence of guilt is
strong. Upon formal offer by the prosecution of its evidence consisting of Exhibits "A"
to "UU", petitioners objected to the same for being inadmissible. In its Order dated
February
7,
2
1996, the trial court admitted all the exhibits being offered by the prosecution for
whatever purpose that it may be worth. Subsequently, the trial court issued the Order
dated February 19, 1996 3 denying petitioners motion for bail on the ground that the
law under which petitioners are charged prescribes a penalty of reclusion perpetua and
that the evidence of guilt is strong.
FIRST DIVISION
G.R. No. 126859 November 24, 1998
YOUSEF AL-GHOUL, ISAM MOHAMMAD ABDULHADI, WAIL RASHID ALKHATIB,
NABEEL
NASSER
AL-RIYAMI,
ET
AL, petitioners,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
RESOLUTION
QUISUMBING, J.:
This resolves petitioners' Motion for Clarification or Partial Lifting of Temporary
Restraining Order on the Motion for Bail which was filed on May 25, 1998.
Herein petitioners are detention prisoners who were arrested and charged with illegal
possession of firearms, ammunitions and explosives under Sections 1 and 3 of
Presidential Decree No. 1866 before the Regional Trial Court of Kalookan City, Branch
123, 1 as a consequence of the search conducted pursuant to the search warrants issued
by the RTC of Kalookan City, Branch 125.
Thereafter, petitioners proceeded to file a petition for certiorari before the Court of
Appeals, 4 assailing the aforementioned orders issued by the trial court admitting the
evidence of the prosecution and denying petitioners' motion for bail. In its Decision
dated September 30, 1996 5 the Court of Appeals dismissed the petition
for certiorari and affirmed the assailed orders of trial court pursuant to Section 6 of
Rule 114 of the 1985 Rules on Criminal Procedure, as amended by Supreme Court
Administrative Circular No. 12-94.
Aggrieved, petitioners filed before this Court the instant petition for certiorari under
Rule 65, seeking the reversal of the September 30, 1996 decision of respondent Court
of Appeals for having been issued with grave abuse of discretion tantamount to lack of
or in excess of jurisdiction. Additionally, petitioners prayed for the issuance of a
temporary restraining order enjoining the trial court from proceeding with the trial of
the criminal cases.
On November 20, 1996, the Court, without giving due course to the petition, resolved
to require the respondents to file its comment to the petition and at the same time
issued the temporary restraining order prayed for, effective during the entire period that
the case is pending or until further orders from the Court. 6
On October 30, 1997, petitioners filed a Manifestation 7 alleging that with the
enactment of Republic Act No. 8294, amending P.D. 1866, the penalty for the offenses
under which petitioners are being charged has been reduced from the penalty ranging
from reclusion temporal to reclusion perpetua, to only the penalty ranging
from prision mayor to reclusion temporal, hence, petitioners are now entitled to bail
regardless of the strength of evidence against them.
On May 25, 1998, petitioner, through a new counsel, filed the instant Motion for
Clarification or Partial Lifting of TRO on the Matter of Bail, 8 seeking the partial lifting
of the temporary restraining order issued by this Court to allow the trial court to
proceed with the hearing on petitioners' motion for bail in view of the amendment
introduced by RA 8294.
On July 6, 1998, the Court required the respondents to file their Comment to
petitioners' motion. 9 compliance therewith, the Office of the Solicitor General
manifested that it is not interposing any objection to petitioners' motion for the partial
lifting of the temporary restraining order issued by this Court to enable the trial court to
hear and resolve petitioners motion for bail, considering the amendment introduced by
RA 8294 which reduced the penalties for illegal possession of firearms, ammunitions
and explosives, thereby entitling petitioners to be admitted to bail a matter of right
before conviction by the trial court, in accordance with Section 4 of SC Administrative
Circular No. 12-94. 10
Consequent to the enactment of RA 8294, the penalty prescribed in Section 1 and 3 of
P.D. 1866 for illegal possession of firearms, ammunitions and explosives under which
petitioners were charged, has now been reduced to prision mayor in its minimum
period 11 and prision
mayor in
its
maximum
period
to reclusion
temporal, 12 respectively. Evidently, petitioners are now entitled to bail as a matter of
right prior to their conviction by the trial court pursuant to Section 4 of SC
Administrative Circular No. 12-94 which provides as follows:
Sec. 4. Bail, a matter of right. . . . (b) before conviction by the Regional Trial Court
of an offense not punishable by death, reclusion perpetua or life imprisonment be
admitted to bail as a matter of right, with sufficient sureties, or be released on
recognizance as prescribed by law or this Rule.
WHEREFORE, the petitioners' motion is hereby GRANTED. The Temporary
Restraining Order issued by this Court in the Resolution of November 20, 1996 is
hereby PARTIALLY LIFTED in so far as petitioners' pending motion for bail before
the RTC of Kalookan City, Branch 123 is concerned. The trial court is hereby ordered
to proceed with the hearing of the motion for bail and resolve the same with dispatch.
SO ORDERED.
______________-
On 30 September 1993, a certain Rodrigo Abos reported to the Bureau of Internal

Revenue (BIR) that petitioners Unifish Packing Corporation and Uy Chin
Ho alias Frank Uy were engaged in activities constituting violations of the National
Internal Revenue Code. Abos, who claimed to be a former employee of Unifish,
executed an Affidavit[1] stating:
1. He has personal knowledge that UNIFISH PACKING CORPORATION (hereinafter
referred to as UNIFISH), a canning factory located at Hernan Cortes Street, under the
active management of UY CHIN HO alias Frank Uy [,] is selling by the thousands of
[sic] cartons of canned sardines without issuing receipt. This is in violation of Sections
253 and 263 of the Internal Revenue Code.
2. This grand scale tax fraud is perpetrated through the following scheme:
(1) Uy Chin Ho a director of UNIFISH buys in bulk from the company;
(2) Being a director, Uy Chin Ho has a lot of clout in the distribution of the canned
sardines processed by UNIFISH;
(3) Uy Chin Ho dictates the value of canned sardines that he orders and buys from
UNIFISH without any receipt of his purchases;
(4) The moment he has the quantity he wants, UNIFISH through Uy Chin Ho delivers
to the different supermarkets such as White Gold, Gaisano, etc.;
(5) Payments made by these tax evading establishments are made by checks drawn
payable to cash and delivered to Uy Chin Ho; These payments are also not receipted
(sic);
(6) Uy Chin Ho will then pay UNIFISH for the quantity of sardines he had withdrawn
from the corporation;
FIRST DIVISION
[G.R. No. 129651. October 20, 2000]
FRANK UY and UNIFISH PACKING CORPORATION, petitioners, vs. BUREAU
OF
INTERNAL
REVENUE
and
HON.
MERCEDES
GOZODADOLE,respondents.
DECISION
KAPUNAN, J.:
Petitioners assail the validity of the warrants issued for the search of the premises of
the Unifish Packing Corporation, and pray for the return of the items seized by virtue
thereof.
3. Another fraudulent practice perpetrated by UNIFISH through Uy Chin Hos

direction is the sale of imported oil locally to different customers. This is a case of
smuggling in the sense that UNIFISH, being an export company registered with the
Board of Investments, is enjoying certain exemptions in their importation of oil as one
of the raw materials in its processing of canned tuna for export. These tax exemptions
are granted by the government on the condition that the oil is to be used only in the
processing of tuna for export and that it is not to be sold unprocessed as is to local
customers.
4. Another fraudulent practice involves the sales of unused cans; UNIFISH also enjoys
tax exemptions in its purchases of tin cans subject to the condition that these are to be
used as containers for its processed tuna for export. These cans are never intended to be
sold locally to other food processing companies.
5. Prior to 1990, that is from 1980 to 1990, the factory of the UNIFISH PACKING
CORPORATION was then run by the PREMIER INDUSTRIAL & DEVELOPMENT
CORPORATION (hereinafter referred to as PREMIER) [,] which corporation was
being controlled by the same majority stockholders as those now running and
controlling UNIFISH; [a]t that time, PREMIER was also committing the same
fraudulent acts as what is being perpetrated by UNIFISH at present.
6. The records containing entries of actual volume of production and sales, of both
UNIFISH AND PREMIER, are found in the office of the corporation at its factory site
at H. Cortes Street, Mandaue City. The particular place or spot where these records
[official receipts, sales invoices, delivery receipts, sales records or sales books, stock
cards, accounting records (such as ledgers, journals, cash receipts books, and check
disbursements books)] are kept and may be found is best described in the herein
attached sketch of the arrangement of the offices furniture and fixture of the
corporation which is made an integral part hereof and marked as Annex A,
7. He is executing this affidavit to attest under oath the veracity of the foregoing
allegations and he is reserving his right to claim for reward under the provisions of
Republic Act No. 2338.
UY CHIN HO alias FRANK UY,

Unifish Packing Corporation
Hernan Cortes St., Cebu City
x-------------------------/
(with sketch)
SEARCH WARRANT
TO ANY PEACE OFFICER:
G R E E T I N G S:
It appearing to the satisfaction of the undersigned, after examination underoath (sic),
Nestor N. Labaria, Asst. Chief, Special Investigation Branch, BIR and witness Rodrigo
Abos that there is a (sic) probable cause to believe that the crime of violation of
Section 253 - attempt to evade or defeat the tax has been committed and there is good
and sufficient reason to believe that Uy Chin Ho c/o Unifish Packing Corporation,
Hernan Cortes St., Mandaue City has in his possession, care and control, the following:
On 1 October 1993, Nestor N. Labaria, Assistant Chief of the Special Investigation

Branch of the BIR, applied for search warrants from Branch 28 of the Regional Trial
Court of Cebu. The application sought permission to search the premises of Unifish.
1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar Books, Cash

Register Books, Sales Books or Records; Provisional & Official Receipts;
After hearing the depositions of Labaria and Abos, Judge Mercedes Gozo-Dadole
issued the disputed search warrants. The first[2] is docketed as SEARCH WARRANT
NO. 93-10-79 FOR:VIOLATION OF SECTION 253 ("Search Warrant A-1"), and
consists of two pages. A verbatim reproduction of Search Warrant A-1 appears below:
3. Unregistered Delivery Receipts;
REPUBLIC OF THE PHILIPPINES
6. Corporate Financial Records; and
REGIONAL TRIAL COURT OF CEBU
7. Bank Statements/Cancelled Checks
7th Judicial Region
Mandaue City
You are hereby commanded to make an immediate search at any time of day or night of
said premises and its immediate vicinity and to forthwith seize and take possession of
the articles above-mentioned and other properties relative to such violation and bring
said properties to the undersigned to be dealt with as the law directs.
THE PEOPLE OF THE PHILIPPINES,
WITNESS MY HAND this 1st day of October, 1993.
Plaintiff,
(sgd.)
- versus - SEARCH WARRANT NO. 93-10-79
MERCEDES GOZO-DADOLE
FOR: VIOLATION OF SEC. 253
Judge
Branch 28
2. Production Record Books/Inventory Lists [,] Stock Cards;
4. Unregistered Purchase & Sales Invoices;

5. Sales Records, Job Order;
The second warrant[3]is similarly docketed as SEARCH WARRANT 93-10-79

FOR: VIOLATION OF SEC. 253 ("Search Warrant A-2"). Search Warrant A-2,
reproduced below, is almost identical in content to Search Warrant A-1, save for the
portions indicated in bold print. It consisted of only one page.
REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT OF CEBU
7th Judicial Region
Mandaue City
You are hereby commanded to make an immediate search at any time of day or night of
said premises and its immediate vicinity and to forthwith seize and take possession of
the articles above-mentioned and other properties relative to such violation and bring
said properties to the undersigned to be dealt with as the law directs.
THE PEOPLE OF THE PHILIPPINES,
WITNESS MY HAND this 1st day of October, 1993.
Plaintiff,
(sgd.)
- versus - SEARCH WARRANT NO. 93-10-79
MERCEDES GOZO-DADOLE
FOR: VIOLATION OF SEC. 253
Judge
UY CHIN HO alias FRANK UY, and
Judge Gozo-Dadole issued a third warrant, [4] which was docketed as SEARCH
WARRANT 93-10-80 FOR: VIOLATION OF SEC. 238 in relation to SEC. 263
(hereinafter, "Search Warrant B"). Except for the docket number and the designation of
the crime in the body of the warrant (Section 238 in relation to Sec. 263 - nonissuance of sales invoice and use and possession of unregistered delivery receipts
and/or sales invoices), Search Warrant B is a verbatim reproduction of Search Warrant
A-2.
Branch 28
Unifish Packing Corporation

Hernan Cortes St., Mandaue City
x-------------------------/
(with sketch)
SEARCH WARRANT
G R E E T I N G S:
It appearing to the satisfaction of the undersigned, after examination underoath [sic],
Nestor N. Labaria, Asst. Chief, Special Investigation Branch, BIR and witness Rodrigo
Abos that there is a [sic] probable cause to believe that the crime of violation of
Section 253 - attempt to evade or defeat the tax has been committed and there is good
and sufficient reason to believe that Uy Chin Ho alias Frank Uy and Unifish Packing
Corporation, Hernan Cortes St., Mandaue City has in his possession, care and control,
the following:

On the strength of these warrants, agents of the BIR, accompanied by members of the
Philippine National Police, on 2 October 1993, searched the premises of the Unifish
Packing Corporation. They seized, among other things, the records and documents of
petitioner corporation. A return of said search was duly made by Nestor Labaria with
the RTC of Cebu , Branch 28.
On 8 February 1995, the BIR filed against petitioners a case before the Department of
Justice. The records, however, do not reveal the nature of this case.
On 31 March 1995, petitioners filed motions to quash the subject search warrants with
Branch 28 of the Cebu RTC.
The RTC, however, denied petitioners' motions to quash as well as their subsequent
motion for reconsideration, prompting petitioners to file a petition for certiorari with
the Court of Appeals (CA). The CA dismissed their petition, holding that petitioners

failed to comply with Section 2(a), Rule 6 of the Revised Internal Rules of the Court of
Appeals (RIRCA), which states:
a. What Should be Filed. - The petition shall be filed in seven (7) legible copies and a
copy thereof shall be served on each of the respondents, and must be accompanied by a
certified true copy of the decision or order complained of and true copies of the
pleadings and other pertinent documents and papers. (As amended by S.Ct. Res., dated
November 24, 1992).
The CA found that petitioners did not submit certified true copies of (1) the Motions to
Quash, (2) the Motion for Reconsideration, and (3) the Affidavit of Rodrigo Abos.
The CA also held that certiorari was not the proper remedy to question the resolution
denying the motion to quash.
In this case now before us, the available remedies to the petitioners, assuming that the
Department of Justice will eventually file the case, are: a petition for reinvestigation;
the right to post bail; a Motion to Quash the Information; and in case of denial, an
appeal, after judgment on the merits, or after the case shall have been tried. This brings
us to the case of Lai vs. Intermediate 220 SCRA 149 and the pronouncement, thus:
Criminal Procedure: Certiorari: Certiorari should not be allowed where petitioner has
other remedies available. -- Anent the remedy resorted to by petitioners (referring to
the petition for certiorari) from the Regional Trial Court of Negros Oriental presided by
Judge Diez, the same should not have been granted. Petitioners were not without plain,
speedy and adequate remedies in the ordinary course of law against Judge Lomeda's
order for their arrest. These remedies are as enumerated by respondent appellate court
in its decision: "1. they can post bail for their provisional release; 2. They can ask the
Provincial Fiscal for a reinvestigation of the charge against them. If unsatisfied with the
fiscal's resolution they can ask for a review by the Minister of Justice; (Sec. 1(), RA
5180
as
amended
by
P.D.
911); 3. if their petition for review does not prosper, they can file a motion toquash the
information in the trial court. (Rule
117,
Rules
of
Court). 4. If the motion is denied, they can appeal the judgment of the court after the ca
se shall have been tried on the merits.
x x x Where motion to quash is denied, remedy is not certiorari, but to go to
trial.-- Moreover, in the case of Acharon vs. Purisima, this Court held
that when a motion to quash a criminal case is denied, the remedy is notcertiorari but to
go to trial without prejudice to reiterating the special defenses involved in said Motion.
In the event that an adverse decision is rendered after trial on the
merits, an appeal therefrom should be the next legal step.
In this case now before Us, there is no pretention [sic] that the Court issued the Search
Warrants without jurisdiction. On the contrary, it had jurisdiction. The argument
therefore that the Court committed an error in not describing the persons or things to be
searched; that the Search Warrants did not describe with particularity the things to be
seized/taken; the absence of probable cause; and for having allegedly condoned the
discriminating manner in which the properties were taken, to us, are merely errors in
the Court's finding, certainly not correctible by certiorari, but instead thru an appeal.[5]
In any event, the CA ruled, no grave abuse of discretion amounting to lack of
jurisdiction was committed by the RTC in the issuance of the warrants.
As petitioners' motion for reconsideration proved futile, petitioners filed the instant
petition for review.
Petitioners claim that they did submit to the CA certified true copies of the pleadings
and documents listed above along with their Petition, as well as in their Motion for
Reconsideration. An examination of the CA Rollo, however, reveals that petitioners
first submitted the same in their Reply, after respondents, in their Comment, pointed
out petitioners failure to attach them to the Petition.
Nevertheless, the CA should not have dismissed the petition on this ground although, to
its credit, it did touch upon the merits of the case. First, it appears that the case could
have been decided without these pleadings and documents. Second, even if the CA
deemed them essential to the resolution of the case, it could have asked for the records
from the RTC. Third, in a similar case, [6] we held that the submission of a document
together with the motion for reconsideration constitutes substantial compliance with
Section 3, Rule 46 of the Rules of Court, requiring the submission of a certified true
copy of material portions of the record as are referred to [in the petition], and other
documents relevant or pertinent thereto along with the petition. So should it be in this
case, especially considering that it involves an alleged violation of a constitutionally
guaranteed right. The rules of procedure are not to be applied in a very rigid, technical
sense; rules of procedure are used only to help secure substantial justice. If a technical
and rigid enforcement of the rules is made, their aim could be defeated.[7]
The CA likewise erred in holding that petitioners cannot avail of certiorari to question
the resolution denying their motions to quash the subject search warrants. We note that
the case of Lai vs. Intermediate, cited by the appellate court as authority for its ruling
does not appear in 220 SCRA 149. The excerpt of the syllabus quoted by the court,
as observed by petitioners,[8] appears to have been taken from the case of Yap vs.
Intermediate Appellate Court, 220 SCRA 245 (1993). Yap, however, is inapplicable
since that case involved a motion to quash a complaint for qualified theft, not a motion
to quash a search warrant.
xxx
The applicable case is Marcelo vs. De Guzman,[9] where we held that the issuing
judges disregard of the requirements for the issuance of a search warrant constitutes
grave abuse of discretion, which may be remedied by certiorari:
Expressly announced in Section 1, Rule 65 of the Rules of Court is the general rule that
certiorari is available where a tribunal or officer exercising judicial functions has
acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary
course of law.
In the light of the findings of the lower court, herein above quoted, it is indisputable
that Judge de Guzman gravely abused his discretion in issuing the said search
warrant. Indeed, he acted whimsically and capriciously when he ignored the explicit
mandate of Section 3, Rule 126 of the Rules of Court that a search warrant shall not
issue but upon probable cause in connection with one specific offense to be determined
by the municipal or city judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized; and that no search warrant shall
issue for more than one specific offense.
The utter disregard by Judge de Guzman of the requirements laid down by the said rule
renders the warrant in question absolutely null and void. It has been held that where the
order complained of is a patent nullity, a petition for certiorari and mandamus may
properly be entertained despite the existence of the remedy of appeal.
Moreover, an appeal from the order of Judge de Guzman would neither be an adequate
nor speedy remedy to relieve appellee of the injurious effects of the warrant. The
seizure of her personal property had resulted in the total paralization of the articles and
documents which had been improperly seized. Where the remedy of appeal cannot
afford an adequate and expeditious relief, certiorari can be allowed as a mode of
redress to prevent irreparable damage and injury to a party.
This Court had occasion to reiterate the above pronouncement in Silva vs.
Presiding Judge, RTC of Negros Oriental, Br. XXXIII,[10] which also involved a special
civil action for certiorari:[11]
Thus, in issuing a search warrant, the judge must strictly comply with the constitutional
requirement that he must determine the existence of probable cause by examining the
applicant and his witnesses in the form of searching questions and answers. His failure
to comply with this requirement constitutes grave abuse of discretion. As declared
in Marcelo vs. De Guzman, G.R. No. L-29077, June 29, 1982, 114 SCRA 657, the
capricious disregard by the judge in not complying with the requirements before
issuance of search warrants constitutes grave abuse of discretion.
In this case, petitioners alleged in their petition before the CA that the issuing judge
violated the pertinent provisions of the Constitution and the Rules of Court in issuing
the disputed search warrants, which, if true, would have constituted grave abuse of
discretion. Petitioners also alleged that the enforcers of the warrants seized almost all
the records and documents of the corporation thus resulting in the paralysis of its
business. Appeal, therefore, would not be an adequate remedy that would afford
petitioners expeditious relief.
We now proceed to the merits of the case.
Section 2, Article III of the Constitution guarantees the right of the people against
unreasonable searches and seizures:
The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
In relation to the above provision, Rule 126 of the Rules of Court provides:
SEC. 3. Requisite for issuing search warrant. - A search warrant shall not issue but
upon probable cause in connection with one specific offense to be determined
personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched
and the things to be seized.
SEC. 4. Examination of complainant; record. - The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in writing
and under oath the complainant and any witnesses he may produce on facts personally
known to them and attach to the record their sworn statements together with any
affidavits submitted.
A search warrant must conform strictly to the requirements of the foregoing
constitutional and statutory provisions. These requirements, in outline form, are:
(1) the warrant must be issued upon probable cause;
(2) the probable cause must be determined by the judge himself and not by the
applicant or any other person;
(3) in the determination of probable cause, the judge must examine, under oath or
affirmation, the complainant and such witnesses as the latter may produce; and
(4) the warrant issued must particularly describe the place to be searched and persons
or things to be seized.[12]
The absence of any of these requisites will cause the downright nullification of the
search warrants.[13] The proceedings upon search warrants must be absolutely legal,
for there is not a description of process known to the law, the execution of which is
more distressing to the citizen. Perhaps there is none which excites such intense feeling
in consequence of its humiliating and degrading effect. The warrants will always be
construed strictly without, however, going the full length of requiring technical
accuracy. No presumptions of regularity are to be invoked in aid of the process when
an officer undertakes to justify under it.[14]
Petitioners contend that there are several defects in the subject warrants that command
their nullification. They point out inconsistencies in the description of the place to be
searched in Search Warrant A-1, as well as inconsistencies in the names of the persons
against whom Search Warrants A-1 and A-2 were issued. That two search warrants
(Search Warrants A-1 and A-2) were issued for the same crime, for the same place, at a
single occasion is cited as another irregularity. Petitioners also dispute the existence of
probable cause that would justify the issuance of the warrants. Finally, they claim that
the things to be seized were not described with particularity. These defects, according
to petitioners, render the objects seized inadmissible in evidence. [15]
Inconsistencies in the description of the place to be searched
Petitioners observe that the caption of Search Warrant A-1 indicates the address of Uy
Chin Ho alias Frank Uy as Hernan Cortes St., Cebu City while the body of the same
warrant states the address as Hernan Cortes St., Mandaue City. Parenthetically,
Search Warrants A-2 and B consistently state the address of petitioner as Hernan
Cortes St., Mandaue City.
The Constitution requires, for the validity of a search warrant, that there be a particular
description of the place to be searched and the persons of things to be seized. [16] The
rule is that a description of a place to be searched is sufficient if the officer with the
warrant can, with reasonable effort, ascertain and identify the place intended [17]and
distinguish it from other places in the community.[18] Any designation or description
known to the locality that points out the place to the exclusion of all others, and on
inquiry leads the officers unerringly to it, satisfies the constitutional requirement.
[19]
Thus, in Castro vs. Pabalan,[20] where the search warrant mistakenly identified the
residence of the petitioners therein as Barrio Padasil instead of the adjoining
Barrio MariaCristina, this Court "admitted that the deficiency in the writ is not of
sufficient gravity to call for its invalidation."
In this case, it was not shown that a street similarly named Hernan Cortes could be
found in Cebu City. Nor was it established that the enforcing officers had any difficulty
in locating the premises of petitioner corporation. That Search Warrant A-1, therefore,
inconsistently identified the city where the premises to be searched is not a defect that
would spell the warrants invalidation in this case.
Inconsistencies in the description of the persons named in the two warrants
Petitioners also find fault in the description of the names of the persons in Search
Warrants A-1 and A-2. Search Warrant A-1 was issued solely against Uy Chin Ho
alias Frank Uy. Search Warrant A-2, on the other hand, was directed against UY
CHIN HO alias FRANK UY, and Unifish Packing Corporation.
These discrepancies are hardly relevant.
In Miller v. Sigler,[21] it was held that the Fourth Amendment of the United States
Constitution, from which Section 2, Article III of our own Constitution is historically
derived, does not require the warrant to name the person who occupies the described
premises. Where the search warrant is issued for the search of specifically described
premises only and not for the search of a person, the failure to name the owner or
occupant of such property in the affidavit and search warrant does not invalidate the
warrant; and where the name of the owner of the premises sought to be searched is
incorrectly inserted in the search warrant, it is not a fatal defect if the legal description
of the premises to be searched is otherwise correct so that no discretion is left to the
officer making the search as to the place to be searched.[22]
Since, in the case at bar, the warrant was issued not for search of the persons owning or
occupying the premises, but only a search of the premises occupied by them, the search
could not be declared unlawful or in violation of the constitutional rights of the owner
or occupants of the premises, because of inconsistencies in stating their names.[23]
Two warrants issued at one time for one crime and one place
In any event, Search Warrant A-1 should be deemed superseded by Search Warrant A2.
Two warrants, Search Warrants A-1 and A-2, were actually issued by the trial court for
the same crime (violation of SEC. 253 of the National Internal Revenue Code). It
appears, however, that Search Warrant A-2 was issued merely to correct the
inconsistencies in the address in Search Warrant A-1, as well as to include Unifish
Packing Corporation as a party against whom the warrant was issued. Search Warrant
A-2 was evidently an attempt by the issuing judge to be more precise in the names of
the persons against whom the warrant was issued and in the description of the place to
be searched. Indeed, it would be absurd for the judge to issue on a single occasion two
warrants authorizing the search of a single place for a single offense. Inasmuch as the
apparent intent in issuing Search Warrant A-2 was to supersede Search Warrant A-1,
the latter should be deemed revoked by the former.
The alleged absence of probable cause
Petitioners claim there was no probable cause for Judge Gozo-Dadole to issue the
subject search warrants.
Probable cause is defined as such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been committed and
that the objects sought in connection with the offense are in the place sought to be
searched.[24]
In the determination of probable cause, the Constitution and the Rules of Court require
an examination of the witnesses under oath. The examination must be probing and
exhaustive, not merely routine or pro forma. The examining magistrate must not
simply rehash the contents of the affidavit but must make his own inquiry on the intent
and justification of the application.[25] Asking of leading questions to the deponent in an
application for search warrant, and conducting of examination in a general manner,
would not satisfy the requirements for issuance of a valid search warrant. [26]
The witnesses, in turn, must testify under oath to facts of their own personal
knowledge. The oath required must refer to the truth of the facts within the personal
knowledge of the petitioner or his witnesses, because the purpose thereof is to convince
the committing magistrate, not the individual making the affidavit and seeking the
issuance of the warrant, of the existence of probable cause. [27] Search warrants are not
issued on loose, vague or doubtful basis of fact, nor on mere suspicion or belief. [28]
It may be recalled that before issuing the warrants, the judge deposed two witnesses,
namely, Nestor Labaria of the BIR, and Rodrigo Abos, who claimed to be an old
employee of Unifish.Petitioners claim that the testimonies of Labaria and Abos are
hearsay. We agree with this contention, but only as to the testimony of Labaria, who
stated during the examination:
A. Because of that information we received that they are using only delivery receipts
instead of the legal sales invoices. It is highly indicative of fraud.
Q. From where did you get that information?
A. From our informer, the former employee of that establishment.[29]
The above portion of the transcript shows that Labarias knowledge of the alleged
illegal activities of petitioners was acquired not through his own perception but was
merely supplied by Abos. Therefore, the deposition of Labaria, which is based on
hearsay, standing alone, cannot justify the issuance of the search warrants. [30]
The application for the warrants, however, is not based solely on Labarias deposition
but is supported by that of Abos, whose knowledge of petitioners alleged illegal
practices was apparently obtained during his employment with Unifish. In his
deposition, Abos detailed the schemes employed by Frank Uy and Unifish to evade the
payment of taxes, and described the place where the documents supposedly evidencing
these schemes were located:
Q Do you know Frank Uy?
A Yes.
Q Why do you know him?
A Because I were (sic) an employee of his from 1980 until August of 1993.
Q Where is this Unifish Packing Corporation located?
A Hernan Cortes St.
Q What is it being engaged of?
A It is engaged in canning of fish.
Q You have executed an affidavit here to the effect that it seems that in his business
dealings that he is actually doing something that perpetrated tax evasion. Is that
correct?
Q. Do you know of a certain Uy Chin Ho alias Frank Uy?
A Yes.
A. No.
Q How is it done?
Q. Do you know his establishment known as Unifish Packing Corporation?
A As an officer, he is an active member of the corporation who is at the same time

making his authority as appointing himself as the distributor of the company's
products. He sells these products thru supermarkets in Visayas and Mindanao, in fact,
the whole Philippines. He makes it appear that it is the company which is selling when
actually it is him selling the goods and he does not issue any invoices.
A. I have only heard of that thru the affidavit of our informer, Mr. Abos.
Q. Why are you applying for search warrant in the premises of Unifish Packing
Corporation?
Q Since he does not issue any invoices, how is it done?

A Thru delivery receipts.
Q Is the delivery receipt official?
A No. It is unregistered.
Q For how long has this been going on?
A As far as I know, it is still in 1986 since we started producing the sardines.
Q When was the last time that you observed that that is what he is doing?
A August, 1993, last month.
Q How did you happen to know about this last month?
A Because he delivered to certain supermarkets and the payments of that supermarket
did not go directly to the company. It went to him and he is the one who paid the
company for the goods that he sold.
Q Can you tell this Court the name of that certain supermarkets?
A White Gold and Gaisano.
Q How did you know this fact?
Q In that books of account, is it reflected that they have made some deliveries to
certain supermarkets?
A Yes.
Q For the consumption of the BIR what are the papers that they show?
A It is the private accounting firm that prepares everything.
Q Based on what?
A Based on some fictitious records just as they wish to declare.
Q In your affidavit you stated that there are sales invoices, official receipts, delivery
receipts, sales records, etc. These documents are records that you have stated, in your
affidavit, which are only for the consumption of the company?
A Yes, not for the BIR.
Q Where are they kept now?
A They are kept on the table which I have drawn in the sketch. This is the bird's
eyeview (sic) of the whole office. When you enter thru the door this Gina Tan is the
one recording all the confidential transactions of the company. In this table you can
find all the ledgers and notebooks.
A As a manager of the company I have access to all the records of that company for the
last three years. I was the Operating Chief.
Q This sketch is a blow-up of this portion, Exh. "A"?
Q Until now?
In this blow-up there are four personnel plus one new personnel. Gina Tan collects all
the records from this girl and this girl makes the statements. This first girl delivers the
receipts. The second girl prepares the bill of lading. The third girl keeps the inventory
of all the stocks.
A No. I was separated already.

Q When?
A August, 1993.
Q How does he do this manipulation?
A Yes. Exh. "B" is the blow-up of Exh. "A" inside the office.
This sketch here is the bodega where the records are kept. The records from these
people are stored in this place which is marked as "C".
A He sells the goods to the supermarkets afterwhich the company, Unifish will deliver
to his customers, then his customers will pay directly to him and in turn, he pays to the
company.
Q So what you want to impress on that now is that only current records are kept by
Gina because according to you the whole records are already placed in the bodega?
Q And these transactions, were they reflected in their books of account or ledger or
whatever?
Q But how can you enter the bodega?
A It is written but it is supposed to be a secret transaction. It is not for the public, not
for the BIR but it is only for the purpose of keeping the transactions between the
company and him. It is not made to be shown to the BIR.
A Yes.
A Here, from the main entrance there is a door which will lead to this part here. If you
go straight there is a bodega there and there is also a guard from this exit right after
opening the door.
Q The problem is that, when actually in August have you seen the current records kept
by Gina?
Q In other words, this soya oil should have to be used by Unifish but instead they are
seeling (sic) it?
A I cannot exactly recall but I have the xerox copies of the records.
A Yes, at a profit.
Q Where are they now?
Q You also said that there is tax evasion in the selling of cans. What do you mean by
this?
A They are in my possession (witness handling [sic] to the Court a bunch of records).
Q The transactions that are reflected in these xerox copies that you have given me,
especially this one which seems to be pages of a ledger, they show that these are for the
months of January, February, March, April and May. Are these transactions reflected in
these xerox copies which appear in the ledger being shown to the BIR?
A As far as I know, it did not appear.
Q What about this one which says Columnar Book Cash Receipt for the month of
January, what does it show?
A It shows that Frank Uy is the one purchasing from the company and these are his
customers.
Q Do these entries appear in the columnar books which are the basis for the report to
the BIR?
A As far as I know, it does not reflect.
Q What are these xerox copies of checks?
A I think we cannot trace it up. These ones are the memos received by Unifish for
payment of sardines. This is the statement of the company given to Uy Chin Ho for
collection.
Q It is also stated in your affidavit that the company imported soya oil. How is it done?
A The company imports soya oil to be used as a component in the processing of
canned tuna for export. The company enjoys certain BOI privilege and so it is tax
free. As far as I know, they profit more to dispose the product locally. Whatever excess
of this soya oil are sold to another company.
Q Is that fact reflected in the xerox copies?
A No. I have the actual delivery receipt.
Q In other words, the company imports soya oil supposedly to be used as a raw
material but instead they are selling it locally?
A Yes. ([W]itness showing DR No. 3053 dated November 13, 1991.) This delivery
receipt was the delivery receipt to Celebes Canning Corp. of the 90 grams soya oil.
A There is another privileged [sic] by the BOI for a special price given to packaging
materials. When you export the product there is a 50% price difference. Now, taking
that advantage of that exemption, they sold it to certain company here, again to
Virginia Farms.
Q Do you have proof to that effect?
A No, but we can get it there.
Q Will that fact be shown in any listed articles in the application for search warrant
since according to you, you have seen this manipulation reflected on the books of
account kept by Gina? Are you sure that these documents are still there?
A Yes. I have received information.
COURT: Alright.[31]
Abos stated that, as former Operating Chief of Unifish, he had access to the company
records, and even showed the issuing judge photocopies thereof. Thus, we reject the
contention that this witness did not have personal knowledge of the facts to which he
testified. The contents of the deposition clearly demonstrate otherwise.
The deposition also shows that, contrary to petitioners submission, the inquiries made
by the judge were far from leading or being a rehash of the witness affidavit. We find
such inquiries to be sufficiently probing.
Alleged lack of particularity in the description of the things seized
Petitioners note the similarities in the description of the things to be seized in the
subject warrants and those in Stonehill vs. Diokno,[32] Bache & Co. (Phil.), Inc. vs. Ruiz,
[33]
and Asian Surety & Insurance Co., Inc. vs. Herrera.[34]
In Stonehill, the effects to be searched and seized were described as:
Books of accounts, financial records, vouchers, journals correspondence, receipts,
ledgers, portfolios, credit journals, typewriters, and other documents and/or papers
showing all business transactions including disbursement receipts, balance sheets and
related profit and loss statements.
This Court found that the foregoing description failed to conform to the requirements
set forth by the Constitution since:
x x x the warrants authorized the search for and seizure of records pertaining to all
business transactions of petitioners herein, regardless of whether the transactions
were legal or illegal. The warrants sanctioned the seizure of all records of the
petitioners and the aforementioned corporations, whatever their nature, thus openly
contravening the explicit command of our Bill of Rights - that the things to be seized
be particularly described - as well as tending to defeat its major object: the elimination
of general warrants.
In Bache & Co., this Court struck down a warrant containing a similar description as
those in Stonehill:
The documents, papers, and effects sought to be seized are described in Search Warrant
No. 2-M-70 in this manner:
Unregistered and private books of accounts (ledgers, journals, columnars, receipts and
disbursements books, customers' ledgers); receipts for payments received; certificates
of stocks and securities; contracts, promissory notes and deeds of sale; telex and coded
messages; business communications; accounting and business records; checks and
check stubs; records of bank deposits and withdrawals; and records of foreign
remittances, covering the years 1966 to 1970.
The description does not meet the requirement in Art. III, Sec. 1, of the Constitution,
and of Sec. 3, Rule 126 of the Revised Rules of Court, that the warrant should
particularly describe the things to be seized.
xxx
In Uy Kheytin, et al. vs. Villareal, etc., et al., 42 Phil. 886, 896, this Court had occasion
to explain the purpose of the requirement that the warrant should particularly describe
the place to be searched and the things to be seized, to wit:
x x x Both the Jones Law (sec. 3) and General Orders No. 68 (sec. 97) specifically
require that a search warrant should particularly describe the place to be searched and
the things to be seized. The evident purpose and intent of this requirement is to limit
the things to be seized to those, and only those, particularly described in the search
warrant - to leave the officers of the law with no discretion regarding what articles they
shall seize, to the end that unreasonable searches and seizures may not be made, - that
abuses may not be committed. That is the correct interpretation of this constitutional
provision borne out by the American authorities.
The purpose as thus explained could, surely and effectively, be defeated under the
search warrant issued in this case.
A search warrant may be said to particularly describe the things to be seized when the
description therein is as specific as the circumstances will ordinarily allow (People vs.
Rubio, 57 Phil, 384); or when the description expresses a conclusion of fact - not of
law - by which the warrant officer may be guided in making the search and seizure
(idem., dissent of Abad Santos, J.,); or when the things described are limited to those
which bear direct relation to the offense for which the warrant is being issued (Sec. 2,
Rule 126, Revised Rules of Court). The herein search warrant does not conform to any
of the foregoing tests. If the articles desired to be seized have any direct relation to an
offense committed, the applicant must necessarily have some evidence, other than
those articles, to prove the said offense; and the articles subject of search and seizure
should come in handy merely to strengthen such evidence. In this event, the description
contained in the herein disputed warrant should have mentioned, at least, the dates,
amounts, persons, and other pertinent data regarding the receipts of payments,
certificates of stocks and securities, contracts, promissory notes, deeds of sale,
messages and communications, checks, bank deposits and withdrawals, records of
foreign remittances, among others, enumerated in the warrant.
In Asian Surety & Insurance Co., Inc. vs. Herrera, the description of the things to be
seized, i.e., Fire Registers, Loss, Bordereau, Adjusters' Report, including subrogation
receipts and proof of loss, Loss Registers, Book of Accounts including cash receipts
and disbursements and general ledger, etc. was held to be an omnibus description
and, therefore, invalid:
x x x Because of this all embracing description which includes all conceivable records
of petitioner corporation, which if seized x x x, could paralyze its business, petitioner
in several motions filed for early resolution of this case, manifested that the seizure of
TWO carloads of their papers has paralyzed their business to the grave prejudice of not
only the company, its workers, agents, employees but also of its numerous insured and
beneficiaries of bonds issued by it, including the government itself, and of the general
public. And correlating the same to the charges for which the warrant was issued, We
have before Us the infamous general warrants of old.
In the case at bar, the things to be seized were described in the following manner:

We agree that most of the items listed in the warrants fail to meet the test of
particularity, especially since witness Abos had furnished the judge photocopies of the
documents sought to be seized. The issuing judge could have formed a more specific
description of these documents from said photocopies instead of merely employing a
generic description thereof. The use of a generic term or a general description in a
warrant is acceptable only when a more specific description of the things to be seized is
unavailable. The failure to employ the specificity available will invalidate a general
description in a warrant.[35] The use by the issuing judge of the terms multiple sets of
books of accounts, ledgers, journals, columnar books, cash register books, sales books
or records, provisional & official receipts, production record books/inventory lists,
stock cards, sales records, job order, corporate financial records, and bank
statements/cancelled checks is therefore unacceptable considering the circumstances
of this case.
As regards the terms unregistered delivery receipts and unregistered purchase &
sales invoices, however, we hold otherwise. The Solicitor General correctly argues
that the serial markings of these documents need not be specified as it is not possible to
do so precisely because they are unregistered. [36] Where, by the nature of the goods to
be seized, their description must be rather general, it is not required that a technical
description be given, as this would mean that no warrant could issue. Taking into
consideration the nature of the articles so described, it is clear that no other more
adequate and detailed description could have been given, particularly because it is
difficult to give a particular description of the contents thereof. [37] Although it appears
that photocopies of these unregistered documents were among those handed by Abos to
the issuing judge, it would be impractical to require the latter to specify each and every
receipt and invoice, and the contents thereof, to the minutest detail.
The general description of most of the documents listed in the warrants does not render
the entire warrant void. Insofar as the warrants authorize the search and seizure of
unregistered delivery receipts and unregistered purchase and sales invoices, the
warrants remain valid. The search warrant is severable, and those items not particularly
described may be cut off without destroying the whole warrant. In United States v.
Cook,[38] the United States Court of Appeals (Fifth Circuit) made the following
pronouncement:
x x x. The leading decision is Aday v. Superior Court, 53 Cal.2d 789, 362 P.2d 47, 13
Cal.Rptr. 415 (1961). In Aday, a warrant was issued authorizing the seizure of two
particularly described books and myriad other generally described items. On appeal,
the California Supreme Court held that only the books were particularly described in
the warrant and lawfully seized. The court acknowledged that the warrant was flawed,
but rather than suppress everything seized, the court chose to sever the defective
portions of the warrant and suppress only those items that were not particularly
described.
Although the warrant was defective x x x it does not follow that it was invalid as a
whole. Such a conclusion would mean that the seizure of certain articles, even though
proper if viewed separately, must be condemned merely because the warrant was
defective with respect to other articles. The invalid portions of the warrant are
severable from the authorization relating to the named books x x x. The search for and
seizure of these books, if otherwise valid, were not rendered illegal by the defects
concerning other articles.
xxx
x x x We agree with the reasoning of the Supreme Court of California and the majority
of state courts that have considered this question and hold that in the usual case the
district judge should sever the infirm portion of the search warrant as passes
constitutional muster. See United States v. Giresi, 488 F.Supp. 445, 459-60
(D.N.J.1980). Items that were not described with the requisite particularity in the
warrant should be suppressed, but suppression of all of the fruits of the search is hardly
consistent with the purposes underlying exclusion. Suppression of only the items
improperly described prohibits the Government from profiting from its own wrong and
removes the court from considering illegally obtained evidence. Moreover, suppression
of only those items that were not particularly described serves as an effective deterrent
to those in the Government who would be tempted to secure a warrant without the
necessary description. As the leading commentator has observed, it would be harsh
medicine indeed if a warrant which was issued on probable cause and which did
particularly describe certain items were to be invalidated in toto merely because the
affiant and the magistrate erred in seeking and permitting a search for other items as
well. 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 4.6(f)
(1978).
Accordingly, the items not particularly described in the warrants ought to be returned to
petitioners.
Petitioners allege that the following articles, though not listed in the warrants, were
also taken by the enforcing officers:
1. One (1) composition notebook containing Chinese characters,
2. Two (2) pages writing with Chinese characters,
3. Two (2) pages Chinese character writing,

4. Two (2) packs of chemicals,
5. One (1) bound gate pass,
6. Surety Agreement.[39]
In addition, the searching party also seized items belonging to the Premier Industrial
and Development Corporation (PIDC), which shares an office with petitioner Unifish.
The things belonging to petitioner not specifically mentioned in the warrants, like those
not particularly described, must be ordered returned to petitioners. In order to comply
with the constitutional provisions regulating the issuance of search warrants, the
property to be seized under a warrant must be particularly described therein and no
other property can be taken thereunder.[40] In Tambasen vs. People,[41] it was held:
Moreover, by their seizure of articles not described in the search warrant, the police
acted beyond the parameters of their authority under the search warrant. Section 2,
Article III of the 1987 Constitution requires that a search warrant should particularly
describe the things to be seized. The evident purpose and intent of the requirement is
to limit the things to be seized to those, and only those, particularly described in the
search warrant, to leave the officers of the law with no discretion regarding what
articles they should seize, to the end that unreasonable searches and seizures may not
be made and that abuses may not be committed (Corro v. Lising, 137 SCRA 541, 547
[1985]); Bache & Co. [Phil.], Inc. v. Ruiz, 37 SCRA 823 [1971]; Uy Kheytin v.
Villareal, 42 Phil. 886 [1920]). The same constitutional provision is also aimed at
preventing violations of security in person and property and unlawful invasions of the
sanctity of the home, and giving remedy against such usurpations when attempted
(People v. Damaso, 212 SCRA 547 [1992] citing Alvero v. Dizon, 76 Phil. 637, 646
[1946]).
The seizure of the items not specified in the warrants cannot be justified by the
directive in the penultimate paragraph thereof to "seize and take possession of other
properties relative to such violation," which in no way can be characterized as a
particular description of the things to be seized.
As regards the articles supposedly belonging to PIDC, we cannot order their return in
the present proceedings. The legality of a seizure can be contested only by the party
whose rights have been impaired thereby, and the objection to an unlawful search and
seizure is purely personal and cannot be availed of by third parties.[42]
WHEREFORE, the Resolutions of respondent Court of Appeals dated 27 June 1996
and 14 May 1987, affirming the Order of the Regional Trial Court dated 17 July 1995,
are hereby AFFIRMED insofar as said Resolutions upheld the validity of the subject
Search Warrants authorizing the seizure of the unregistered delivery receipts and
unregistered purchase and sales invoices, but REVERSED with respect to the rest of
the articles subject of said warrants. The respondent Bureau of Internal Revenue is
hereby ordered to return to petitioners all items seized from the subject premises and
belonging to petitioners, except the unregistered delivery receipts and unregistered
purchase and sales invoices.
SO ORDERED.
_________________
Clearly then, the money which was not indicated in the search warrant, had been
illegally seized from petitioner. The fact that the members of the police team were
doing their task of pursuing subversives is not a valid excuse for the illegal
seizure. The presumption juris tantum of regularity in the performance of official duty
cannot by itself prevail against the constitutionally protected right of an individual
(People v. Cruz, 231 SCRA 759 [1994]; People v. Veloso, 48 Phil. 169, 176
[1925]). Although public welfare is the foundation of the power to search and seize,
such power must be exercised and the law enforced without transgressing the
constitutional rights of the citizens (People v. Damaso, supra, citing Rodriguez v.
Evangelista, 65 Phil. 230, 235 [1937]). As the Court aptly puts it in Bagahilog v.
Fernandez, 198 SCRA 614 (1991), [z]eal in the pursuit of criminals cannot ennoble
the use of arbitrary methods that the Constitution itself abhors.
Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is a
one-way street and started travelling in the opposite or "wrong" direction. At the corner
of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly bumped each
other. Petitioner alighted from his car, walked over and shot Maguan inside his car.
Petitioner then boarded his car and left the scene. A security guard at a nearby
restaurant was able to take down petitioner's car plate number. The police arrived
shortly thereafter at the scene of the shooting and there retrieved an empty shell and
one round of live ammunition for a 9 mm caliber pistol. Verification at the Land
Transportation Office showed that the car was registered to one Elsa Ang Go.
The following day, the police returned to the scene of the shooting to find out where
the suspect had come from; they were informed that petitioner had dined at Cravings
Bake Shop shortly before the shooting. The police obtained a facsimile or impression
of the credit card used by petitioner from the cashier of the bake shop. The security
guard of the bake shop was shown a picture of petitioner and he positively identified
him as the same person who had shot Maguan. Having established that the assailant
was probably the petitioner, the police launched a manhunt for petitioner.
EN BANC
G.R. No. 101837 February 11, 1992
ROLITO GO y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding
Judge, Branch 168, Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF
THE PHILIPPINES, respondents.
FELICIANO, J.:
According to the findings of the San Juan Police in their Investigation Report, 1 on 2
July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro
On 8 July 1991, petitioner presented himself before the San Juan Police Station to
verify news reports that he was being hunted by the police; he was accompanied by
two (2) lawyers. The police forthwith detained him. An eyewitness to the shooting,
who was at the police station at that time, positively identified petitioner as the
gunman. That same day, the police promptly filed a complaint for frustrated
homicide 2 against petitioner with the Office of the Provincial Prosecutor of Rizal. First
Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed
petitioner, in the presence of his lawyers, that he could avail himself of his right to
preliminary investigation but that he must first sign a waiver of the provisions of
Article 125 of the Revised Penal Code. Petitioner refused to execute any such waiver.
On 9 July 1991, while the complaint was still with the Prosecutor, and before an
information could be filed in court, the victim, Eldon Maguan, died of his gunshot
wound(s).
Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for
frustrated homicide, filed an information for murder 3 before the Regional Trial Court.
No bail was recommended. At the bottom of the information, the Prosecutor certified
that no preliminary investigation had been conducted because the accused did not
execute and sign a waiver of the provisions of Article 125 of the Revised Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the
Prosecutor an omnibus motion for immediate release and proper preliminary
investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and that
no preliminary investigation had been conducted before the information was filed.
Petitioner also prayed that he be released on recognizance or on bail. Provincial
Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last page of the
motion itself that he interposed no objection to petitioner being granted provisional
liberty on a cash bond of P100,000.00.
On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order
to expedite action on the Prosecutor's bail recommendation. The case was raffled to the
sala of respondent Judge, who, on the same date, approved the cash bond 6 posted by
petitioner and ordered his release. 7 Petitioner was in fact released that same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave
to conduct preliminary investigation 8 and prayed that in the meantime all proceedings
in the court be suspended. He stated that petitioner had filed before the Office of the
Provincial Prosecutor of Rizal an omnibus motion for immediate release and
preliminary investigation, which motion had been granted by Provincial Prosecutor
Mauro Castro, who also agreed to recommend cash bail of P100,000.00. The
Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11
July 1991.
Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct
preliminary investigation and cancelling the arraignment set for 15 August 1991 until
after the prosecution shall have concluded its preliminary investigation.
On 17 July 1991, however, respondent Judge motu proprio issued an
Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail was
recalled; petitioner was given 48 hours from receipt of the Order to surrender himself;
(2) the 16 July 1991 Order which granted leave to the prosecutor to conduct
preliminary investigation was recalled and cancelled; (3) petitioner's omnibus motion
for immediate release and preliminary investigation dated 11 July 1991 was treated as a
petition for bail and set for hearing on 23 July 1991.
On 19 July 1991, petitioner filed a petition for certiorari, prohibition
and mandamus before the Supreme Court assailing the 17 July 1991 Order, contending
that the information was null and void because no preliminary investigation had been
previously conducted, in violation of his right to due process. Petitioner also moved for
suspension of all proceedings in the case pending resolution by the Supreme Court of
his petition; this motion was, however, denied by respondent Judge.
On 23 July 1991, petitioner surrendered to the police.
By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari,
prohibition and mandamus to the Court of Appeals.
On 16 August 1991, respondent Judge issued an order in open court setting the
arraignment of petitioner on 23 August 1991.
On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his
arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the
Provincial Warden of Rizal to admit petitioner into his custody at the Rizal Provincial
Jail. On the same date, petitioner was arraigned. In view, however, of his refusal to
enter a plea, the trial court entered for him a plea of not guilty. The Trial court then set
the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and
17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11
On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of
Appeals. He alleged that in view of public respondent's failure to join issues in the
petition for certiorari earlier filed by him, after the lapse of more than a month, thus
prolonging his detention, he was entitled to be released on habeas corpus.
On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The
petition for certiorari, prohibition and mandamus, on the one hand, and the petition
for habeas corpus, upon the other, were subsequently consolidated in the Court of
Appeals.
The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's
motion to restrain his arraignment on the ground that that motion had become moot and
academic.
On 19 September 1991, trial of the criminal case commenced and the prosecution
presented its first witness.
On 23 September 1991, the Court of Appeals rendered a consolidated

decision 14 dismissing the two (2) petitions, on the following grounds:
a. Petitioner's warrantless arrest was valid because the offense for which he was
arrested and charged had been "freshly committed." His identity had been established
through investigation. At the time he showed up at the police station, there had been an
existing manhunt for him. During the confrontation at the San Juan Police Station, one
witness positively identified petitioner as the culprit.
b. Petitioner's act of posting bail constituted waiver of any irregularity attending his
arrest. He waived his right to preliminary investigation by not invoking it properly and
seasonably under the Rules.
c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order
because the trial court had the inherent power to amend and control its processes so as
to make them conformable to law and justice.
d. Since there was a valid information for murder against petitioner and a valid
commitment order (issued by the trial judge after petitioner surrendered to the
authorities whereby petitioner was given to the custody of the Provincial Warden), the
petition for habeas corpus could not be granted.
On 3 October 1991, the prosecution presented three (3) more witnesses at the trial.
Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the trial court,
with petitioner's conformity.
On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14
October 1991, the Court issued a Resolution directing respondent Judge to hold in
abeyance the hearing of the criminal case below until further orders from this Court.
In this Petition for Review, two (2) principal issues need to be addressed: first, whether
or not a lawful warrantless arrest had been effected by the San Juan Police in respect of
\petitioner Go; and second, whether petitioner had effectively waived his right to
preliminary investigation. We consider these issues seriatim.
In respect of the first issue, the Solicitor General argues that under the facts of the case,
petitioner had been validly arrested without warrant. Since petitioner's identity as the
gunman who had shot Eldon Maguan on 2 July 1991 had been sufficiently established
by police work, petitioner was validly arrested six (6) days later at the San Juan Police
Station. The Solicitor General invokes Nazareno v. Station Commander, etc., et

al., 16 one of the seven (7) cases consolidated with In the Matter of the Petition for
Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17 where a majority of the Court
upheld a warrantees arrest as valid although effected fourteen (14) days after the killing
in connection with which Nazareno had been arrested. Accordingly, in the view of the
Solicitor General, the provisions of Section 7, Rule 112 of the Rules of Court were
applicable and because petitioner had declined to waive the provisions of Article 125 of
the Revised Penal Code, the Prosecutor was legally justified in filing the information
for murder even without preliminary investigation.
On the other hand, petitioner argues that he was not lawfully arrested without warrant
because he went to the police station six (6) days after the shooting which he had
allegedly perpetrated. Thus, petitioner argues, the crime had not been "just committed"
at the time that he was arrested. Moreover, none of the police officers who arrested him
had been an eyewitness to the shooting of Maguan and accordingly none had the
"personal knowledge" required for the lawfulness of a warrantees arrest. Since there
had been no lawful warrantless arrest. Section 7, Rule 112 of the Rules of Court which
establishes the only exception to the right to preliminary investigation, could not apply
in respect of petitioner.
The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the
circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the
Court sustained the legality of the warrantless arrests of petitioners made from one (1)
to fourteen days after the actual commission of the offenses, upon the ground that such
offenses constituted "continuing crimes." Those offenses were subversion, membership
in an outlawed organization like the New People's Army, etc. In the instant case, the
offense for which petitioner was arrested was murder, an offense which was obviously
commenced and completed at one definite location in time and space. No one had
pretended that the fatal shooting of Maguan was a "continuing crime."
Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the
instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on
Criminal Procedure which provides as follows:
Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may,
without warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and
provided in the corresponding rule and the investigation must be terminated within
fifteen (15) days from its inception.
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one confinement
to another.
If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing of
the information, ask for a preliminary investigation with the same right to adduce
evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied)
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceed against in accordance with Rule 112, Section 7.
is also not applicable. Indeed, petitioner was not arrested at all. When he walked into
San Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself at
the disposal of the police authorities. He did not state that he was "surrendering"
himself, in all probability to avoid the implication he was admitting that he had slain
Eldon Maguan or that he was otherwise guilty of a crime. When the police filed a
complaint for frustrated homicide with the Prosecutor, the latter should have
immediately scheduled a preliminary investigation to determine whether there was
probable cause for charging petitioner in court for the killing of Eldon Maguan.
Instead, as noted earlier, the Prosecutor proceed under the erroneous supposition that
Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of
Article 125 of the Revised Penal Code as a condition for carrying out a preliminary
investigation. This was substantive error, for petitioner was entitled to a preliminary
investigation and that right should have been accorded him without any conditions.
Moreover, since petitioner had not been arrested, with or without a warrant, he was also
entitled to be released forthwith subject only to his appearing at the preliminary
investigation.
Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The
"arresting" officers obviously were not present, within the meaning of Section 5(a), at
the time petitioner had allegedly shot Maguan. Neither could the "arrest" effected six
(6) days after the shooting be reasonably regarded as effected "when [the shooting had]
in fact just been committed" within the meaning of Section 5(b). Moreover, none of the
"arresting" officers had any "personal knowledge" of facts indicating that petitioner
was the gunman who had shot Maguan. The information upon which the police acted
had been derived from statements made by alleged eyewitnesses to the shooting one
stated that petitioner was the gunman; another was able to take down the alleged
gunman's car's plate number which turned out to be registered in petitioner's wife's
name. That information did not, however, constitute "personal knowledge." 18
It is thus clear to the Court that there was no lawful warrantless arrest of petitioner
within the meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112,
which provides:
Sec. 7 When accused lawfully arrested without warrant. When a person is lawfully
arrested without a warrant for an offense cognizable by the Regional Trial Court the
complaint or information may be filed by the offended party, peace officer or fiscal
without a preliminary investigation having been first conducted, on the basis of the
affidavit of the offended party or arresting office or person
However, before the filing of such complaint or information, the person arrested may
ask for a preliminary investigation by a proper officer in accordance with this Rule, but
he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as
amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a
responsible person of his choice. Notwithstanding such waiver, he may apply for bail as
Turning to the second issue of whether or not petitioner had waived his right to
preliminary investigation, we note that petitioner had from the very beginning
demanded that a preliminary investigation be conducted. As earlier pointed out, on the
same day that the information for murder was filed with the Regional Trial Court,
petitioner filed with the Prosecutor an omnibus motion for immediate release and
preliminary investigation. The Solicitor General contends that that omnibus motion
should have been filed with the trial court and not with the Prosecutor, and that the
petitioner should accordingly be held to have waived his right to preliminary
investigation. We do not believe that waiver of petitioner's statutory right to
preliminary investigation may be predicated on such a slim basis. The preliminary
investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It
is true that at the time of filing of petitioner's omnibus motion, the information for
murder had already been filed with the Regional Trial Court: it is not clear from the
record whether petitioner was aware of this fact at the time his omnibus motion was
actually filed with the Prosecutor. In Crespo v. Mogul, 19 this Court held:
The preliminary investigation conducted by the fiscal for the purpose of determining
whether a prima facie case exists to warranting the prosecution of the accused is
terminated upon the filing of the information in the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal action against the
accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the
case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted to
the Court for appropriate action. While it is true that the fiscal has the quasijudicial discretion to determine whether or not a criminal case should be filed in court
or not, once the case had already been brought to Court whatever disposition the fiscal
may feel should be proper in the case thereafter should be addressed for the
consideration of the Court. The only qualification is that the action of the Court must
not impair the substantial rights of the accused., or the right of the People to due
process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case [such] as its dismissal or the conviction or acquittal
of the accused rests in the sound discretion of the Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even while the case is already
in Court he cannot impose his opinion on the trial court. The Court is the best and sole
judge on what to do with the case before it. . . . 20 (Citations omitted; emphasis
supplied)
Nonetheless, since petitioner in his omnibus motion was asking for preliminary
investigation and not for a re-investigation (Crespo v. Mogul involved a reinvestigation), and since the Prosecutor himself did file with the trial court, on the 5th
day after filing the information for murder, a motion for leave to conduct preliminary
investigation (attaching to his motion a copy of petitioner's omnibus motion), we
conclude that petitioner's omnibus motion was in effect filed with the trial court. What
was crystal clear was that petitioner did ask for a preliminary investigation on the very
day that the information was filed without such preliminary investigation, and that the
trial court was five (5) days later apprised of the desire of the petitioner for such
preliminary investigation. Finally, the trial court did in fact grant the Prosecutor's
prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken)
supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the
Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112
must be held to have been substantially complied with.
We believe and so hold that petitioner did not waive his right to a preliminary
investigation. While that right is statutory rather than constitutional in its fundament,
since it has in fact been established by statute, it is a component part of due process in
criminal justice. 21 The right to have a preliminary investigation conducted before being
bound over to trial for a criminal offense and hence formally at risk of incarceration or
some other penalty, is not a mere formal or technical right; it is a substantive right. The
accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation,
humiliation, not to speak of expense; the right to an opportunity to avoid a process
painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny
petitioner's claim to a preliminary investigation would be to deprive him the full
measure of his right to due process.
The question may be raised whether petitioner still retains his right to a preliminary
investigation in the instant case considering that he was already arraigned on 23 August
1991. The rule is that the right to preliminary investigation is waived when the accused
fails to invoke it before or at the time of entering a plea at arraignment.22 In the instant
case, petitioner Go had vigorously insisted on his right to preliminary
investigation before his arraignment.At the time of his arraignment, petitioner was
already before the Court of Appeals on certiorari, prohibition and mandamusprecisely
asking for a preliminary investigation before being forced to stand trial.
Again, in the circumstances of this case, we do not believe that by posting bail
petitioner had waived his right to preliminary investigation. In People
v. Selfaison, 23 we did hold that appellants there had waived their right to preliminary
investigation because immediately after their arrest, they filed bail and proceeded to
trial "without previously claiming that they did not have the benefit of a preliminary
investigation." 24 In the instant case, petitioner Go asked for release on recognizance or
on bail and for preliminary investigation in one omnibus motion. He had thus claimed
his right to preliminary investigation before respondent Judge approved the cash bond
posted by petitioner and ordered his release on 12 July 1991. Accordingly, we cannot
reasonably imply waiver of preliminary investigation on the part of petitioner. In fact,
when the Prosecutor filed a motion in court asking for leave to conduct preliminary
investigation, he clearly if impliedly recognized that petitioner's claim to preliminary
investigation was a legitimate one.
We would clarify, however, that contrary to petitioner's contention the failure to accord
preliminary investigation, while constituting a denial of the appropriate and full
measure of the statutory process of criminal justice, did not impair the validity of the
information for murder nor affect the jurisdiction of the trial court. 25
It must also be recalled that the Prosecutor had actually agreed that petitioner was
entitled to bail. This was equivalent to an acknowledgment on the part of the
Prosecutor that the evidence of guilt then in his hands was not strong. Accordingly, we
consider that the 17 July 1991 order of respondent Judge recalling his own order
granting bail and requiring petitioner to surrender himself within 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 recall of his order issued just five (5) days before. It follows that
petitioner was entitled to be released on bail as a matter of right.
The final question which the Court must face is this: how does the fact that, in the
instant case, trial on the merits has already commenced, the Prosecutor having already
presented four (4) witnesses, impact upon, firstly, petitioner's right to a preliminary
investigation and, secondly, petitioner's right to be released on bail? Does he continue
to be entitled to have a preliminary investigation conducted in respect of the charge
against him? Does petitioner remain entitled to be released on bail?
Turning first to the matter of preliminary investigation, we consider that petitioner
remains entitled to a preliminary investigation although trial on the merits has already
began. Trial on the merits should be suspended or held in abeyance and a preliminary
investigation forthwith accorded to petitioner. 26 It is true that the Prosecutor might, in
view of the evidence that he may at this time have on hand, conclude that probable
cause exists; upon the other hand, the Prosecutor conceivably could reach the
conclusion that the evidence on hand does not warrant a finding of probable cause. In
any event, the constitutional point is that petitioner was not accorded what he was
entitled to by way of procedural due process. 27 Petitioner was forced to undergo
arraignment and literally pushed to trial without preliminary investigation, with
extraordinary haste, to the applause from the audience that filled the courtroom. If he
submitted to arraignment at trial, petitioner did so "kicking and screaming," in a
manner of speaking . During the proceedings held before the trial court on 23 August
1991, the date set for arraignment of petitioner, and just before arraignment, counsel
made very clear petitioner's vigorous protest and objection to the arraignment precisely
because of the denial of preliminary investigation. 28 So energetic and determined were
petitioner's counsel's protests and objections that an obviously angered court and
prosecutor dared him to withdraw or walkout, promising to replace him with
counsel de oficio. During the trial, before the prosecution called its first witness,
petitioner through counsel once again reiterated his objection to going to trial without
preliminary investigation: petitioner's counsel made of record his "continuing
objection." 29 Petitioner had promptly gone to the appellate court oncertiorari and
prohibition to challenge the lawfulness of the procedure he was being forced to
undergo and the lawfulness of his detention. 30 If he did not walk out on the trial, and if
he cross-examined the prosecution's witnesses, it was because he was extremely loath
to be represented by counsel de oficio selected by the trial judge, and to run the risk of
being held to have waived also his right to use what is frequently the only test of truth
in the judicial process.
In respect of the matter of bail, we similarly believe and so hold that petitioner remains
entitled to be released on bail as a matter of right. Should the evidence already of
record concerning petitioner's guilt be, in the reasonable belief of the Prosecutor,
strong, the Prosecutor may move in the trial court for cancellation of petitioner's bail. It
would then be up to the trial court, after a careful and objective assessment of the
evidence on record, to grant or deny the motion for cancellation of bail.
To reach any other conclusions here, that is, to hold that petitioner's rights to a
preliminary investigation and to bail were effectively obliterated by evidence
subsequently admitted into the record would be to legitimize the deprivation of due
process and to permit the Government to benefit from its own wrong or culpable
omission and effectively to dilute important rights of accused persons well-nigh to the
vanishing point. It may be that to require the State to accord petitioner his rights to a
preliminary investigation and to bail at this point, could turn out ultimately to be
largely a ceremonial exercise. But the Court is not compelled to speculate. And, in any
case, it would not be idle ceremony; rather, it would be a celebration by the State of the
rights and liberties of its own people and a re-affirmation of its obligation and
determination to respect those rights and liberties.
ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari.
The Order of the trial court dated 17 July 1991 is hereby SET ASIDE and
NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991
hereby REVERSED.
The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a
preliminary investigation of the charge of murder against petitioner Go, and to
complete such preliminary investigation within a period of fifteen (15) days from
commencement thereof. The trial on the merits of the criminal case in the Regional
Trial Court shall be SUSPENDED to await the conclusion of the preliminary
investigation.
Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash
bail bond of One Hundred Thousand Pesos (P100,000.00). This release shall be without
prejudice to any lawful order that the trial court may issue, should the Office of the
Provincial Prosecutor move for cancellation of bail at the conclusion of the preliminary
investigation.
No pronouncement as to costs. This Decision is immediately executory.
SO ORDERED.
________________
THIRD DIVISION
G.R. No. 121917 March 12, 1997
ROBIN CARIO PADILLA @ ROBINHOOD PADILLA, petitioner,
vs COURT OF APPEALS and PEOPLE of the PHILIPPINES, respondents.
FRANCISCO, J.:
On October 26, 1992, high-powered firearms with live ammunitions were found in the
possession of petitioner Robin Padilla @ Robinhood Padilla, i.e.:
(1)
One .357 Caliber revolver, Smith and Wesson, SN-32919 with six (6) live
ammunitions;
(2)
One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1)
short magazine with ammunitions;
(3)
and
One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8) ammunitions;
(4)
Six additional live double action ammunitions of .38 caliber revolver. 1

Petitioner was correspondingly charged on December 3, 1992, before the Regional

Trial Court (RTC) of Angeles City with illegal possession of firearms and ammunitions
under P.D. 1866 2 thru the following Information: 3
That on or about the 26th day of October, 1992, in the City of Angeles, Philippines, and
there willfully, unlawfully and feloniously have in his possession and under his custody
and control one (1) M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and
one (1) short magazines with ammunitions, one (1) .357 caliber revolver Smith and
Wesson, SN-32919 with six (6) live ammunitions and one (1) .380 Pietro Beretta, SNA35723Y with clip and eight (8) ammunitions, without having the necessary authority
and permit to carry and possess the same.
ALL CONTRARY TO LAW. 4
The lower court then ordered the arrest of petitioner, 5 but granted his application for
bail. 6 During the arraignment on January 20, 1993, a plea of not guilty was entered for
petitioner after he refused, 7 upon advice of counsel, 8 to make any plea. 9 Petitioner
waived in writing his right to be present in any and all stages of the case. 10
After trial, Angeles City RTC Judge David Rosete rendered judgment dated April 25,
1994 convicting petitioner of the crime charged and sentenced him to an
"indeterminate penalty from 17 years, 4 months and 1 day of reclusion temporal as
minimum, to 21 years of reclusion perpetua, as maximum". 11 Petitioner filed his
notice of appeal on April 28, 1994. 12 Pending the appeal in the respondent Court of
Appeals, 13 the Solicitor-General, convinced that
the conviction shows strong evidence of guilt, filed on December 2, 1994 a motion to
cancel petitioner's bail bond. The resolution of this motion was incorporated in the now
assailed respondent court's decision sustaining petitioner's conviction 14 the dispositive
portion of which reads:
WHEREFORE, the foregoing circumstances considered, the appealed decision is
hereby AFFIRMED, and furthermore, the P200,000.00 bailbond posted by accusedappellant for his provisional liberty, FGU Insurance Corporation Bond No. JCR (2)
6523, is hereby cancelled. The Regional Trial Court, Branch 61, Angeles City, is
directed to issue the Order of Arrest of accused-appellant and thereafter his transmittal
to the National Bureau of Prisons thru the Philippine National Police where the said
accused-appellant shall remain under confinement pending resolution of his appeal,
should he appeal to the Supreme Court. This shall be immediately executory. The
Regional Trial Court is further directed to submit a report of compliance herewith.
SO ORDERED. 15
Petitioner received a copy of this decision on July 26, 1995. 16 On August 9, 1995 he
filed a "motion for reconsideration (and to recall the warrant of arrest)" 17 but the same
was denied by respondent court in its September 20, 1995 Resolution 18 copy of which
was received by petitioner on September 27, 1995. The next day, September 28,
petitioner filed the instant petition for review on certiorari with application for bail 19
followed by two "supplemental petitions" filed by different counsels, 20 a "second
supplemental petition" 21 and an urgent motion for the separate resolution of his
application for bail. Again, the Solicitor-General 22 sought the denial of the application
for bail, to which the Court agreed in a Resolution promulgated on July 31, 1996. 23
The Court also granted the Solicitor-General's motion to file a consolidated comment
on the petitions and thereafter required the petitioner to file his reply. 24 However, after
his vigorous resistance and success on the intramural of bail (both in the respondent
court and this Court) and thorough exposition of petitioner's guilt in his 55-page Brief
in the respondent court, the Solicitor-General now makes a complete turnabout by
filing a "Manifestation In Lieu Of Comment" praying for petitioner's acquittal. 25
The People's detailed narration of facts, well-supported by evidence on record and
given credence by respondent court, is as follows: 26
At about 8:00 o'clock in the evening of October 26, 1992, Enrique Manarang and his
compadre Danny Perez were inside the Manukan sa Highway Restaurant in Sto. Kristo,
Angeles City where they took shelter from the heavy downpour (pp. 5-6, TSN,
February 15, 1993) that had interrupted their ride on motorcycles (pp 5-6, ibid.) along
McArthur Highway (ibid). While inside the restaurant, Manarang noticed a vehicle, a
Mitsubishi Pajero, running fast down the highway prompting him to remark that the
vehicle might get into an accident considering the inclement weather. (p. 7, Ibid) In the
local vernacular, he said thus: "Ka bilis na, mumuran pa naman pota makaaksidente
ya." (p. 7, ibid). True enough, immediately after the vehicle had passed the restaurant,
Manarang and Perez heard a screeching sound produced by the sudden and hard
braking of a vehicle running very fast (pp. 7-8, ibid) followed by a sickening sound of
the vehicle hitting something (p. 8, ibid). Danny Cruz, quite sure of what had
happened, remarked "oy ta na" signifying that Manarang had been right in his
observation (pp. 8-9, ibid).
Manarang and Cruz went out to investigate and immediately saw the vehicle occupying
the edge or shoulder of the highway giving it a slight tilt to its side (pp. 9-10, ibid).
Manarang, being a member of both the Spectrum, a civic group and the Barangay
Disaster Coordinating Council, decided to report the incident to the Philippine National
Police of Angeles City (p. 10, ibid). He took out his radio and called the Viper, the
radio controller of the Philippine National Police of Angeles City (p. 10, ibid). By the
time Manarang completed the call, the vehicle had started to leave the place of the
accident taking the general direction to the north (p. 11, ibid).
hanging in front of the vehicle bore the identifying number PMA 777 and he followed
it (p. 15, ibid) towards the Abacan bridge.
Manarang went to the location of the accident and found out that the vehicle had hit
somebody (p. 11, ibid).
Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda of Mobile No. 3
(p. 10, TSN, February 23, 1993). When the vehicle was about twelve (12) meters away
from their position, the two police officers boarded their Mobile car, switched on the
engine, operated the siren and strobe light and drove out to intercept the vehicle (p. 11,
ibid). They cut into the path of the vehicle forcing it to stop (p. 11, ibid).
He asked Cruz to look after the victim while he went back to the restaurant, rode on his
motorcycle and chased the vehicle (p. 11 ibid). During the chase he was able to make
out the plate number of the vehicle as PMA 777 (p. 33, TSN, February 15, 1193). He
called the Viper through the radio once again (p. 34, ibid) reporting that a vehicle
heading north with plate number PMA 777 was involved in a hit and run accident (p.
20, TSN, June 8, 1993). The Viper, in the person of SP02 Ruby Buan, upon receipt of
the second radio call flashed the message to all units of PNP Angeles City with the
order to apprehend the vehicle (p. 20, ibid). One of the units of the PNP Angeles City
reached by the alarm was its Patrol Division at Jake Gonzales Street near the Traffic
Division (pp. 5-7, TSN, February 23, 1993). SPO2 Juan C. Borja III and SPO2
Emerlito Miranda immediately borded a mobile patrol vehicle (Mobile No. 3) and
positioned themselves near the south approach of Abacan bridge since it was the only
passable way going to the north (pp. 8-9, ibid). It took them about ten (10) seconds to
cover the distance between their office and the Abacan bridge (p. 9, ibid).
Another PNP mobile patrol vehicle that responded to the flash message from SPO2
Buan was Mobile No. 7 of the Pulongmaragal Detachment which was then conducting
patrol along Don Juico Avenue (pp. 8-9, TSN, March 8, 1993). On board were SPO
Ruben Mercado and SPO3 Tan and SPO2 Odejar (p. 8, ibid). SPO Ruben Mercado
immediately told SPO3 Tan to proceed to the MacArthur Highway to intercept the
vehicle with plate number PMA 777 (p. 10, ibid).
In the meantime, Manarang continued to chase the vehicle which figured in the hit and
run incident, even passing through a flooded portion of the MacArthur Highway two
(2) feet deep in front of the Iglesia ni Kristo church but he could not catch up with the
same vehicle (pp. 11-12, February 15, 1993). When he saw that the car he was chasing
went towards Magalang, he proceeded to Abacan bridge because he knew
Pulongmaragal was not passable (pp. 12-14, ibid). When he reached the Abacan bridge,
he found Mobile No. 3 and SPO2 Borja and SPO2 Miranda watching all vehicles
coming their way (p. 10, TSN, February 23, 1993). He approached them and informed
them that there was a hit and run incident (p. 10, ibid). Upon learning that the two
police officers already knew about the incident, Manarang went back to where he came
from (pp. 10-11; ibid). When Manarang was in front of Tina's Restaurant, he saw the
vehicle that had figured in the hit and run incident emerging from the corner adjoining
Tina's Restaurant (p. 15, TSN, February 15, 1993). He saw that the license plate
SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (P. 12, TSN, February 23,
1993). SPO2 Miranda went to the vehicle with plate number PMA 777 and instructed
its driver to alight (p. 12, ibid). The driver rolled down the window and put his head out
while raising both his hands. They recognized the driver as Robin C. Padilla, appellant
in this case (p. 13, ibid). There was no one else with him inside the vehicle (p. 24). At
that moment, Borja noticed that Manarang arrived and stopped his motorcycle behind
the vehicle of appellant (p. 14, ibid). SPO2 Miranda told appellant to alight to which
appellant complied. Appellant was wearing a short leather jacket (p. 16, TSN, March 8,
1993) such that when he alighted with both his hands raised, a gun (Exhibit "C")
tucked on the left side of his waist was revealed (p. 15, TSN, February 23, 1993), its
butt protruding (p. 15, ibid). SPO2 Borja made the move to confiscate the gun but
appellant held the former's hand alleging that the gun was covered by legal papers (p.
16, ibid). SPO2 Borja, however, insisted that if the gun really was covered by legal
papers, it would have to be shown in the office (p. 16, ibid). After disarming appellant,
SPO2 Borja told him about the hit and run incident which was angrily denied by
appellant (p. 17, ibid). By that time, a crowd had formed at the place (p. 19, ibid).
SPO2 Borja checked the cylinder of the gun and find six (6) live bullets inside (p. 20,
ibid).
While SPO2 Borja and appellant were arguing, Mobile No. 7 with SPO Ruben
Mercado, SPO3 Tan and SPO2 Odejar on board arrived (pp. 11-12, TSN, March 8,
1993). As the most senior police officer in the group, SPO Mercado took over the
matter and informed appellant that he was being arrested for the hit and run incident (p.
13, ibid). He pointed out to appellant the fact that the plate number of his vehicle was
dangling and the railing and the hood were dented (p. 12, ibid). Appellant, however,
arrogantly denied his misdeed and, instead, played with the crowd by holding their
hands with one hand and pointing to SPO3 Borja with his right hand saying "iyan,
kinuha ang baril ko" (pp. 13-15, ibid). Because appellant's jacket was short, his gesture
exposed a long magazine of an armalite rifle tucked in appellant 's back right, pocket
(p. 16, ibid). SPO Mercado saw this and so when appellant turned around as he was
talking and proceeding to his vehicle, Mercado confiscated the magazine from
appellant (pp. 16-17, ibid). Suspecting that appellant could also be carrying a rifle
inside the vehicle since he had a magazine, SPO2 Mercado prevented appellant from
going back to his vehicle by opening himself the door of appellant's vehicle (16-17,
ibid). He saw a baby armalite rifle (Exhibit D) lying horizontally at the front by the
driver 's seat. It had a long magazine filled with live bullets in a semi-automatic mode
(pp. 17-21, ibid). He asked appellant for the papers covering the rifle and appellant
answered angrily that they were at his home (pp. 26-27, ibid). SPO Mercado modified
the arrest of appellant by including as its ground illegal possession of firearms (p. 28,
ibid). SPO Mercado then read to appellant his constitutional rights (pp. 28-29, ibid).
The police officers brought appellant to the Traffic Division at Jake Gonzales
Boulevard (pp. 31-32, ibid) where appellant voluntarily surrendered a third firearm, a
pietro berreta pistol (Exhibit "L") with a single round in its chamber and a magazine
(pp. 33-35, ibid) loaded with seven (7) other live bullets. Appellant also voluntarily
surrendered a black bag containing two additional long magazines and one short
magazine (Exhibits M, N, and O, pp. 36-37, ibid). After appellant had been
interrogated by the Chief of the Traffic Division, he was transferred to the Police
Investigation Division at Sto. Rosario Street beside the City Hall Building where he
and the firearms and ammunitions were turned over to SPO2 Rene Jesus Gregorio (pp.
5-10, TSN, July 13, 1993). During the investigation, appellant admitted possession of
the firearms stating that he used them for shooting (p. 14, ibid). He was not able to
produce any permit to carry or memorandum receipt to cover the three firearms (pp.
16-18, TSN, January 25, 1994).
On November 28, 1992, a certification (Exhibit "F") was issued by Captain, Senior
Inspector Mario Espino, PNP, Chief, Record Branch of the Firearms and Explosives
Office (pp. 7-8, TSN, March 4, 1993). The Certification stated that the three firearms
confiscated from appellant, an M-16 Baby armalite rifle SN-RP 131280, a .357 caliber
revolver Smith and Wesson SN 32919 and a .380 Pietro Beretta SN-A35720, were not
registered in the name of Robin C. Padilla (p. 6, ibid). A second Certification dated
December 11, 1992 issued by Captain Espino stated that the three firearms were not
also registered in the name of Robinhood C. Padilla (p. 10, ibid).
Petitioner's defenses are as follows: (1) that his arrest was illegal and consequently, the
firearms and ammunitions taken in the course thereof are inadmissible in evidence
under the exclusionary rule; (2) that he is a confidential agent authorized, under a
Mission Order and Memorandum Receipt, to carry the subject firearms; and (3) that the
penalty for simple illegal possession constitutes excessive and cruel punishment
proscribed by the 1987 Constitution.
After a careful review of the records 27 of this case, the Court is convinced that
petitioner's guilt of the crime charged stands on terra firma, notwithstanding the
Solicitor-General's change of heart.
Anent the first defense, petitioner questions the legality of his arrest. There is no
dispute that no warrant was issued for the arrest of petitioner, but that per se did not
make his apprehension at the Abacan bridge illegal.
Warrantless arrests are sanctioned in the following instances: 28
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person
may, without a warrant, arrest a person:
(a)
When, in his presence, the person to be arrested has committed, is actually
(b)
When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it.
(c)
When the person to be arrested is a prisoner who has escaped from a penal
to another.
Paragraph (a) requires that the person be arrested (i) after he has committed or while he
is actually committing or is at least attempting to commit an offense, (ii) in the
presence of the arresting officer or private person. 29 Both elements concurred here, as
it has been established that petitioner's vehicle figured in a hit and run an offense
committed in the "presence" of Manarang, a private person, who then sought to arrest
petitioner. It must be stressed at this point that "presence" does not only require that the
arresting person sees the offense, but also when he "hears the disturbance created
thereby AND proceeds at once to the scene." 30 As testified to by Manarang, he heard
the screeching of tires followed by a thud, saw the sideswiped victim (balut vendor),
reported the incident to the police and thereafter gave chase to the erring Pajero vehicle
using his motorcycle in order to apprehend its driver. After having sent a radio report to
the PNP for assistance, Manarang proceeded to the Abacan bridge where he found
responding policemen SPO2 Borja and SPO2 Miranda already positioned near the
bridge who effected the actual arrest of petitioner. 31
Petitioner would nonetheless insist on the illegality of his arrest by arguing that the
policemen who actually arrested him were not at the scene of the hit and run. 32 We
beg to disagree. That Manarang decided to seek the aid of the policemen (who
admittedly were nowhere in the vicinity of the hit and run) in effecting petitioner's
arrest, did not in any way affect the propriety of the apprehension. It was in fact the
most prudent action Manarang could have taken rather than collaring petitioner by
himself, inasmuch as policemen are unquestionably better trained and well-equipped in
effecting an arrest of a suspect (like herein petitioner) who, in all probability, could
have put up a degree of resistance which an untrained civilian may not be able to
contain without endangering his own life. Moreover, it is a reality that curbing
lawlessness gains more success when law enforcers function in collaboration with
private citizens. It is precisely through this cooperation, that the offense herein
involved fortunately did not become an additional entry to the long list of unreported
and unsolved crimes.
It is appropriate to state at this juncture that a suspect, like petitioner herein, cannot
defeat the arrest which has been set in motion in a public place for want of a warrant as
the police was confronted by an urgent need to render aid or take action. 33 The
exigent circumstances of hot pursuit, 34 a fleeing suspect, a moving vehicle, the
public place and the raining nighttime all created a situation in which speed is
essential and delay improvident. 35 The Court acknowledges police authority to make
the forcible stop since they had more than mere "reasonable and articulable" suspicion
that the occupant of the vehicle has been engaged in criminal activity. 36 Moreover,
when caught in flagrante delicto with possession of an unlicensed firearm (Smith &
Wesson) and ammunition (M-16 magazine), petitioner's warrantless arrest was proper
as he was again actually committing another offense (illegal possession of firearm and
ammunitions) and this time in the presence of a peace officer. 37
Besides, the policemen's warrantless arrest of petitioner could likewise be justified
under paragraph (b) as he had in fact just committed an offense. There was no
supervening event or a considerable lapse of time between the hit and run and the
actual apprehension. Moreover, after having stationed themselves at the Abacan bridge
in response to Manarang's report, the policemen saw for themselves the fast
approaching Pajero of petitioner, 38 its dangling plate number (PMA 777 as reported
by Manarang), and the dented hood and railings thereof. 39 These formed part of the
arresting police officer's personal knowledge of the facts indicating that petitioner's
Pajero was indeed the vehicle involved in the hit and run incident. Verily then, the
arresting police officers acted upon verified personal knowledge and not on unreliable
hearsay information. 40
Furthermore, in accordance with settled jurisprudence, any objection, defect or
irregularity attending an arrest must be made before the accused enters his plea. 41
Petitioner's belated challenge thereto aside from his failure to quash the information,
his participation in the trial and by presenting his evidence, placed him in estoppel to
assail the legality of his arrest. 42 Likewise, by applying for bail, petitioner patently
waived such irregularities and defects. 43
We now go to the firearms and ammunitions seized from petitioner without a search
warrant, the admissibility in evidence of which, we uphold.
The five (5) well-settled instances when a warrantless search and seizure of property is
valid, 44 are as follows:
1. warrantless search incidental to a lawful arrest recognized under Section 12, Rule
126 of the Rules of Court 45 and by prevailing jurisprudence 46,
2. Seizure of evidence in "plain view", the elements of which are: 47
(a).
a prior valid intrusion based on the valid warrantless arrest in which the police
are legally present in the pursuit of their official duties;
(b).
the evidence was inadvertently discovered by the police who had the right to
be where they are;
(c).
the evidence must be immediately apparent, and
(d).
"plain view" justified mere seizure of evidence without further search. 48
3. search of a moving vehicle. 49 Highly regulated by the government, the vehicle's

inherent mobility reduces expectation of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that
the occupant committed a criminal activity. 50
4. consented warrantless search, and
5. customs search.
In conformity with respondent court's observation, it indeed appears that the authorities
stumbled upon petitioner's firearms and ammunitions without even undertaking any
active search which, as it is commonly understood, is a prying into hidden places for
that which is concealed. 51 The seizure of the Smith & Wesson revolver and an M-16
rifle magazine was justified for they came within "plain view" of the policemen who
inadvertently discovered the revolver and magazine tucked in petitioner's waist and
back pocket respectively, when he raised his hands after alighting from his Pajero. The
same justification applies to the confiscation of the M-16 armalite rifle which was
immediately apparent to the policemen as they took a casual glance at the Pajero and
saw said rifle lying horizontally near the driver's seat. 52 Thus it has been held that:
(W)hen in pursuing an illegal action or in the commission of a criminal offense, the . . .
police officers should happen to discover a criminal offense being committed by any
person, they are not precluded from performing their duties as police officers for the
apprehension of the guilty person and the taking of the, corpus delicti. 53
Objects whose possession are prohibited by law inadvertently found in plain view are
subject to seizure even without a warrant. 54
With respect to the Berreta pistol and a black bag containing assorted magazines,
petitioner voluntarily surrendered them to the police. 55 This latter gesture of petitioner
indicated a waiver of his right against the alleged search and seizure 56, and that his
failure to quash the information estopped him from assailing any purported defect. 57
Even assuming that the firearms and ammunitions were products of an active search
done by the authorities on the person and vehicle of petitioner, their seizure without a
search warrant nonetheless can still be justified under a search incidental to a lawful
arrest (first instance). Once the lawful arrest was effected, the police may undertake a
protective search 58 of the passenger compartment and containers in the vehicle 59
which are within petitioner's grabbing distance regardless of the nature of the offense.
60 This satisfied the two-tiered test of an incidental search: (i) the item to be searched
(vehicle) was within the arrestee's custody or area of immediate control 61 and (ii) the
search was contemporaneous with the arrest. 62 The products of that search are
admissible evidence not excluded by the exclusionary rule. Another justification is a
search of a moving vehicle (third instance). In connection therewith, a warrantless
search is constitutionally permissible when, as in this case, the officers conducting the
search have reasonable or probable cause to believe, before the search, that either the
motorist is a law-offender (like herein petitioner with respect to the hit and run) or the
contents or cargo of the vehicle are or have been instruments or the subject matter or
the proceeds of some criminal offense. 63
Anent his second defense, petitioner contends that he could not be convicted of
violating P.D. 1866 because he is an appointed civilian agent authorized to possess and
carry the subject firearms and ammunition as evidenced by a Mission Order 64 and
Memorandum Receipt duly issued by PNP Supt. Rodialo Gumtang, the deputy
commander of Task Force Aguila, Lianga, Surigao del Sur. The contention lacks merit.
In crimes involving illegal possession of firearm, two requisites must be established,
viz.: (1) the existence of the subject firearm and, (2) the fact that the accused who
owned or possessed the firearm does not have the corresponding license or permit to
possess. 65 The first element is beyond dispute as the subject firearms and
ammunitions 66 were seized from petitioner's possession via a valid warrantless search,
identified and offered in evidence during trial. As to the second element, the same was
convincingly proven by the prosecution. Indeed, petitioner's purported Mission Order
and Memorandum Receipt are inferior in the face of the more formidable evidence for
the prosecution as our meticulous review of the records reveals that the Mission Order
and Memorandum Receipt were mere afterthoughts contrived and issued under
suspicious circumstances. On this score, we lift from respondent court's incisive
observation. Thus:
Appellant's contention is predicated on the assumption that the Memorandum Receipts

and Mission Order were issued before the subject firearms were seized and confiscated
from him by the police officers in Angeles City. That is not so. The evidence adduced
indicate that the Memorandum Receipts and Mission Order were prepared and
executed long after appellant had been apprehended on October 26, 1992.
Appellant, when apprehended, could not show any document as proof of his authority
to possess and carry the subject firearms. During the preliminary investigation of the
charge against him for illegal possession of firearms and ammunitions he could not,
despite the ample time given him, present any proper document showing his authority.
If he had, in actuality, the Memorandum Receipts and Missions Order, he could have
produced those documents easily, if not at the time of apprehension, at least during the
preliminary investigation. But neither appellant nor his counsel inform the prosecutor
that appellant is authorized to possess and carry the subject firearms under
Memorandum Receipt and Mission Order. At the initial presentation of his evidence in
court, appellant could have produced these documents to belie the charged against him.
Appellant did not. He did not even take the witness stand to explain his possession of
the subject firearms.
Even in appellant's Demurrer to Evidence filed after the prosecution rested contain no
allegation of a Memorandum Receipts and Mission Order authorizing appellant to
possess and carry the subject firearms.
At the initial presentation of appellant's evidence, the witness cited was one James
Neneng to whom a subpoena was issued. Superintendent Gumtang was not even
mentioned. James Neneng appeared in court but was not presented by the defense.
Subsequent hearings were reset until the defense found Superintendent Gumtang who
appeared in court without subpoena on January 13, 1994. 67
The Court is baffled why petitioner failed to produce and present the Mission Order
and Memorandum Receipt if they were really issued and existing before his
apprehension. Petitioner's alternative excuses that the subject firearms were intended
for theatrical purposes, or that they were owned by the Presidential Security Group, or
that his Mission Order and Memorandum Receipt were left at home, further compound
their irregularity. As to be reasonably expected, an accused claiming innocence, like
herein petitioner, would grab the earliest opportunity to present the Mission Order and
Memorandum Receipt in question and save himself from the long and agonizing public
trial and spare him from proffering inconsistent excuses. In fact, the Mission Order
itself, as well as the Letter-Directive of the AFP Chief of Staff, is explicit in providing
that:
VIII. c. When a Mission Order is requested for verification by enforcement

units/personnels such as PNP, Military Brigade and other Military Police Units of AFP,
the Mission Order should be shown without resentment to avoid embarrassment and/or
misunderstanding.
IX. d. Implicit to this Mission Order is the injunction that the confidential instruction
will be carried out through all legal means and do not cover an actuation in violation of
laws. In the latter event, this Mission Order is rendered inoperative in respect to such
violation. 68
which directive petitioner failed to heed without cogent explanation.
The authenticity and validity of the Mission Order and Memorandum Receipt,
moreover, were ably controverted. Witness for the prosecution Police Supt. Durendes
denied under oath his signature on the dorsal side of the Mission Order and declared
further that he did not authorize anyone to sign in his
behalf. 69 His surname thereon, we note, was glaringly misspelled as
"Durembes." 70 In addition, only Unit Commanders and Chief of Offices have the
authority to issue Mission Orders and Memorandum Receipts under the Guidelines on
the Issuance of MOs, MRs, & PCFORs. 71 PNP Supt. Rodialo Gumtang who issued
petitioner's Mission Order and Memorandum Receipt is neither a Unit Commander nor
the Chief of Office, but a mere deputy commander. Having emanated from an
unauthorized source, petitioner's Mission Order and Memorandum Receipt are infirm
and lacking in force and effect. Besides, the Mission Order covers "Recom 1-12Baguio City," 72 areas outside Supt. Gumtang's area of responsibility thereby needing
prior approval "by next higher Headquarters" 73 which is absent in this case. The
Memorandum Receipt is also unsupported by a certification as required by the March
5, 1988 Memorandum of the Secretary of Defense which pertinently provides that:
No memorandum receipt shall be issued for a CCS firearms without corresponding
certification from the corresponding Responsible Supply Officer of the appropriate
AFP unit that such firearm has been officially taken up in that units property book, and
that report of such action has been reported to higher AFP authority.
Had petitioner's Memorandum Receipt been authentic, we see no reason why he cannot
present the corresponding certification as well.
What is even more peculiar is that petitioner's name, as certified to by the Director for
Personnel of the PNP, does not even appear in the Plantilla of Non-Uniform Personnel
or in the list of Civilian Agents or Employees of the PNP which could justify the
issuance of a Mission Order, a fact admitted by petitioner's counsel. 74 The
implementing rules of P.D. 1866 issued by the then PC-INP Chief and Director-General
Lt. Gen. Fidel V. Ramos are clear and unambiguous, thus:
No Mission Order shall be issued to any civilian agent authorizing the same to carry
firearms outside residence unless he/she is included in the regular plantilla of the
government agency involved in law enforcement and is receiving regular compensation
for the services he/she is rendering in the agency. Further, the civilian agent must be
included in a specific law enforcement/police/intelligence project proposal or special
project which specifically required the use of firearms(s) to insure its accomplishment
and that the project is duly approved at the PC Regional Command level or its
equivalent level in other major services of the AFP, INP and NBI, or at higher levels of
command. 75 Circular No. 1, dated January 6, 1986, of the then Ministry of Justice
likewise provides as follows:
If mission orders are issued to civilians (not members of the uniformed service), they
must be civilian agents included in the regular plantilla of the government agency
involved in law enforcement and are receiving regular compensation for the service
they are rendering.
That petitioner's Mission Order and Memorandum Receipt were fabricated pieces of
evidence is accentuated all the more by the testimony and certification of the Chief of
the Records Branch of the firearms and Explosives Office of the PNP declaring that
petitioner's confiscated firearms are not licensed or registered in the name of the
petitioner. 76 Thus:
Q.
In all these files that you have just mentioned Mr. Witness, what did you find,
if any?
A.
I found that a certain Robin C. Padilla is a licensed registered owner of one 9
mm pistol, Smith and Wesson with Serial No. TCT 8214 and the following firearms
being asked whether it is registered or not, I did not find any records, the M-16 and the
caliber .357 and the caliber .380 but there is a firearm with the same serial number
which is the same as that licensed and/or registered in the name of one Albert
Villanueva Fallorina.
Q.
So in short, the only licensed firearms in the name of accused Robin C. Padilla
is a pistol, Smith and Wesson, caliber 9 mm with Serial No. TCT 8214?
A.
Yes, sir.
Q.
And the firearms that were the subject of this case are not listed in the names
of the accused in this case?
A.
Yes, sir. 77
xxx
xxx
xxx
And the certification which provides as follows:

Republic of the Philippines
Department of the Interior and Local Government
GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE
FIREARMS AND EXPLOSIVES OFFICE
Camp Crame, Quezon City
PNFEO5
28 November 1992
C E R T I F I C AT I O N
TO WHOM IT MAY CONCERN:
THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon City is a
licensed/registered holder of Pistol Smith and Wesson Cal 9mm with serial number
TCT8214 covered by License No. RL M76C4476687.
Further certify that the following firearms are not registered with this Office per
verification from available records on file this Office as of this date:
M16 Baby Armalite SN-RP131120
Revolver Cal 357 SN-3219
Pistol Cal 380 Pietro Beretta SN-35723
However, we have on file one Pistol Cal 380, Beretta with serial number 35723Y,
licensed/registered to one Albert Villanueva Fallorina of 29 San Juan St., Capitol Pasig,
MM under Re-Registered License.
This certification is issued pursuant to Subpoena from City of Angeles.
FOR THE CHIEF, FEO:
(Sgd.)
JOSE MARIO M. ESPINO
Sr. Inspector, PNP
Chief, Records Branch 78
In several occasions, the Court has ruled that either the testimony of a representative
of, or a certification from, the PNP Firearms and Explosives Office (FEO) attesting that
a person is not a licensee of any firearm would suffice to prove beyond reasonable
doubt the second element of illegal possession of firearm. 79 In People vs. Tobias, 80
we reiterated that such certification is sufficient to show that a person has in fact no
license. From the foregoing discussion, the fact that petitioner does not have the license
or permit to possess was overwhelmingly proven by the prosecution. The certification
may even be dispensed with in the light of the evidences 81 that an M-16 rifle and any
short firearm higher than a .38 caliber pistol, akin to the confiscated firearms, cannot be
licensed to a civilian, 82 as in the case of petitioner. The Court, therefore, entertains no
doubt in affirming petitioner's conviction especially as we find no plausible reason, and
none was presented, to depart from the factual findings of both the trial court and
respondent court which, as a rule, are accorded by the Court with respect and finality.
83
Anent his third defense, petitioner faults respondent court "in applying P.D. 1866 in a
democratic ambience (sic) and a non-subversive context" and adds that respondent
court should have applied instead the previous laws on illegal possession of firearms
since the reason for the penalty imposed under P.D. 1866 no longer exists. 84 He
stresses that the penalty of 17 years and 4 months to 21 years for simple illegal
possession of firearm is cruel and excessive in contravention of the Constitution. 85
The contentions do not merit serious consideration. The trial court and the respondent
court are bound to apply the governing law at the time of appellant's commission of the
offense for it is a rule that laws are repealed only by subsequent ones. 86 Indeed, it is
the duty of judicial officers to respect and apply the law as it stands. 87 And until its
repeal, respondent court can not be faulted for applying P.D. 1866 which abrogated the
previous statutes adverted to by petitioner.
Equally lacking in merit is appellant's allegation that the penalty for simple illegal
possession is unconstitutional. The penalty for simple possession of firearm, it should
be stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary to
appellant's erroneous averment. The severity of a penalty does not ipso facto make the
same cruel and excessive.
It takes more than merely being harsh, excessive, out of proportion, or severe for a
penalty to be obnoxious to the Constitution. "The fact that the punishment authorized
by the statute is severe does not make it cruel and unusual." (24 C.J.S., 1187-1188).
Expressed in other terms, it has been held that to come under the ban, the punishment
must be "flagrantly and plainly oppressive", "wholly disproportionate to the nature of
the offense as to shock the moral sense of the community" 88
It is well-settled that as far as the constitutional prohibition goes, it is not so much the
extent as the nature of the punishment that determines whether it is, or is not, cruel and
unusual and that sentences of imprisonment, though perceived to be harsh, are not cruel
or unusual if within statutory limits. 89
Moreover, every law has in its favor the presumption of constitutionality. The burden
of proving the invalidity of the statute in question lies with the appellant which burden,
we note, was not convincingly discharged. To justify nullification of the law, there
must be a clear and unequivocal breach of the Constitution, not a doubtful and
argumentative implication, 90 as in this case. In fact, the constitutionality of P.D. 1866
has been upheld twice by this Court. 91 Just recently, the Court declared that "the
pertinent laws on illegal possession of firearms [are not] contrary to any provision of
the Constitution. . . " 92 Appellant's grievances on the wisdom of the prescribed
penalty should not be addressed to us. Courts are not concerned with the wisdom,
efficacy or morality of laws. That question falls exclusively within the province of
Congress which enacts them and the Chief Executive who approves or vetoes them.
The only function of the courts, we reiterate, is to interpret and apply the laws.
With respect to the penalty imposed by the trial court as affirmed by respondent court
(17 years 4 months and 1 day of reclusion temporal, as minimum, to 21 years of
reclusion perpetua, as maximum), we reduce the same in line with the fairly recent case
of People v. Lian 93 where the Court en banc provided that the indeterminate penalty
imposable for simple illegal possession of firearm, without any mitigating or
aggravating circumstance, should be within the range of ten (10) years and one (1) day
to twelve years (12) of prision mayor, as minimum, to eighteen (18) years, eight (8)
months and one (1) day to twenty (20) of reclusion temporal, as maximum. This is
discernible from the following explanation by the Court:
In the case at bar, no mitigating or aggravating circumstances have been alleged or
proved, In accordance with the doctrine regarding special laws explained in People v.
Simon, 94 although Presidential Decree No. 1866 is a special law, the penalties therein
were taken from the Revised Penal Code, hence the rules in said Code for graduating
by degrees or determining the proper period should be applied. Consequently, the
penalty for the offense of simple illegal possession of firearm is the medium period of
the complex penalty in said Section 1, that is, 18 years, 8 months and 1 day to 20 years.
This penalty, being that which is to be actually imposed in accordance with the rules
therefor and not merely imposable as a general prescription under the law, shall be the
maximum of the range of the indeterminate sentence. The minimum thereof shall be
taken, as aforesaid, from any period of the penalty next lower in degree, which is,
prision mayor in its maximum period to reclusion temporal in its medium
period. 95
WHEREFORE, premises considered, the decision of the Court of Appeals sustaining
petitioner's conviction by the lower court of the crime of simple illegal possession of
firearms and ammunitions is AFFIRMED EXCEPT that petitioner's indeterminate
penalty is MODIFIED to "ten (10) years and one (1) day, as minimum, to eighteen (18)
years, eight (8) months and one (1) day, as maximum.
SO ORDERED.
_________________
THIRD DIVISION
G.R. No. 120431 April 1, 1998
RODOLFO
ESPANO, accused-petitioner,
vs.
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 16, 1995, 1 which affirmed in toto the judgment of the Regional
Trial Court of Manila, Branch 1, convincing petitioner Rodolfo Espano for violation of
Article II, Section 8 of Republic Act No. 6425, as amended, otherwise known as the
Dangerous Drugs 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 to possess or use any prohibited drug, did then and there
willfully, unlawfully and knowingly have in his possession and under his custody and
control 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 about 12:30 a.m., he and other police officers, namely,
Pat. Wilfredo Aquino, Simplicio Rivera, and Erlindo Lumboy of the Western Police
District (WPD), Narcotics Division went to Zamora and Pandacan Streets, Manila to
confirm reports of drug pushing in the area. They saw petitioner selling "something" to
another person. After the alleged buyer left, they approached petitioner, identified
themselves as policemen, and frisked him. The search yielded two plastic cellophane
tea bags of marijuana. When asked if he had more marijuana, he replied that there was
more in his house. The policemen went to his residence where they found ten more
cellophane tea bags of marijuana. Petitioner was brought to the police headquarters
where he was charged with possession of prohibited drugs. On July 24, 1991, petitioner
posted bail 3 and the trial court issued his order of release on July 29, 1991. 4
WHEREFORE there being proof beyond reasonable doubt, the court finds the accused
Rodolfo Espano y Valeria guilty of the crime of violation of Section 8, Article II, in
relation to Section 2 (e-L) (I) of Republic Act No. 6425 as amended by Batas
Pambansa Blg. 179, and pursuant to law hereby sentences him to suffer imprisonment
of six (6) years and one (1) day to twelve (12) years and to pay a fine of P6,000.00 with
subsidiary imprisonment in case of default plus costs.
The marijuana is declared forfeited in favor of government and shall be turned over to
the Dangerous Drugs Board without delay.
SO ORDERED. 5
Petitioner appealed the decision to the Court of Appeals. The appellate court, however,
affirmed the decision of the trial court in toto.
Hence, this petition.
Petitioner contends that the trial and appellate courts erred in convicting him on the
basis of the following: (a) the pieces of evidence seized were inadmissible; (b) the
superiority of his constitutional right to be presumed innocent over the doctrine of
presumption of regularity, (c) he was denied the constitutional right of confrontation
and to compulsory process; and (d) his conviction was based on evidence which was
irrelevant and not properly identified.
Annabelle Alip, forensic chemist of the WPD Criminal Investigation Laboratory

Section, testified that the articles sent to her by Pat. Wilfredo Aquino regarding the
apprehension of a certain Rodolfo Espano for examination tested positive for
marijuana, with a total weight of 5.5 grams.
After a careful examination of the records of the case, this Court finds no compelling
reason sufficient to reverse the decisions of the trial and appellate courts.
By way of defense, petitioner testified that on said evening, he was sleeping in his
house and was awakened only when the policemen handcuffed him. He alleged that the
policemen were looking for his brother-in-law Lauro, and when they could not find the
latter, he was instead brought to the police station for investigation and later indicted
for possession of prohibited drugs. His wife Myrna corroborated his story.
First, it is a well settled doctrine that findings of trial courts on the credibility of
witnesses deserve a high degree of respect. Having observed the deportment of
witnesses during the trial, the trial judge is in a better position to determine the issue of
credibility and, thus, his findings will not be disturbed during appeal in the absence of
any clear showing that he had overlooked, misunderstood or misapplied some facts or
circumstances of weight and substance which could have altered the conviction of the
appellants. 6
The trial court rejected petitioner's, defense as a "mere afterthought" and found the
version of the prosecution "more credible and trustworthy."
Thus, on August 14, 1992, the trial court rendered a decision, convicting petitioner of
the crime charged, the dispositive portion of which reads:
In this case, the findings of the trial court that the prosecution witnesses were more
credible than those of the defense must stand. Petitioner failed to show that Pat.
Pagilagan, in testifying against him, was motivated by reasons other than his duty to
curb drug abuse and had any intent to falsely impute to him such a serious crime as
possession of prohibited drugs. In the absence of such ill motive, the presumption of
regularity 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 duty which provides:
. . . Appellant failed to establish that Pat. Godoy and the other members of the buy-bust
team are policemen engaged in mulcting or other unscrupulous activities who were
motivated either by the desire to extort money or exact personal vengeance, or by sheer
whim and caprice, when they entrapped her. And in the absence of proof of any intent
on the part of the police authorities to falsely impute such a serious crime against
appellant, as in this case, the presumption of regularity in the performance of official
duty, . . . , must prevail over the self-serving and uncorroborated claim of appellant that
she had been framed. 8
Furthermore, the defense set up by petitioner does not deserve any consideration. He
simply contended that he was in his house sleeping at the time of the incident. This
Court has consistently held that alibi is the weakest of all defenses; and for it to
prosper, the accused has the burden of proving that he was not at the scene of the crime
at the time of its commission and that it was physically impossible for him to be there.
Moreover, the "claim of a 'frame-up', like alibi, is a defense that has been invariably
viewed by the Court with disfavor for it can just as easily be concocted but difficult to
prove, and is a common and standard line of defense in most prosecutions arising from
violations of the Dangerous Drugs Act." 9 No clear and convincing evidence was
presented by petitioner to prove his defense of alibi.
Second, petitioner contends that the prosecution's failure to present the alleged
informant in court cast a reasonable doubt which warrants his acquittal. This is again
without merit, since failure of the prosecution to produce the informant in court is of no
moment especially when he is not even the best witness to establish the fact that a buybust operation had indeed been conducted. In this case, Pat. Pagilagan, one of the
policemen who apprehended petitioner, testified on the actual incident of July 14, 1991,
and identified him as the one they caught in possession of prohibited drugs. Thus,
We find that the prosecution had satisfactorily proved its case against appellants. There
is no compelling reason for us to overturn the finding of the trial court that the
testimony of Sgt. Gamboa, the lone witness for the prosecution, was straightforward
spontaneous and convincing. The testimony of a sole witness, if credible and positive
and satisfies the court beyond reasonable doubt, is sufficient to convict. 10
Thus on the basis of Pat. Pagilagan's testimony, the prosecution was able to prove that
petitioner indeed committed the crime charged; consequently, the finding of conviction
was proper.
Lastly, the issue on the admissibility of the marijuana seized should likewise be ruled
upon. Rule 113 Section 5(a) of the Rules of Court provides:
A peace officer or a private person may, without a warrant, arrest a person:
a. when, in his presence, the person to be arrested has committed, is actually
xxx xxx xxx
Petitioner's arrest falls squarely under the aforecited rule. He was caught in flagranti as
a result of a buy-bust operation conducted by police officers on the basis of information
received regarding the illegal trade of drugs within the area of Zamora and Pandacan
Streets, Manila. The police officer saw petitioner handing over something to an alleged
buyer. After the buyer left, they searched him and discovered two cellophanes of
marijuana. His arrest was, therefore, lawful and the two cellophane bags of marijuana
seized were admissible in evidence, being the fruits of the crime.
As for the ten cellophane bags of marijuana found at petitioner's residence, however,
the same are inadmissible in evidence.
The 1987 Constitution guarantees freedom against unreasonable searches and seizures
under Article III, Section 2 which provides:
The right of the people to be secure in their persons, houses, papers and effects against
An exception to the said rule is a warrantless search incidental to a lawful arrest for
dangerous weapons or anything which may be used as proof of the commission of an
offense. 11 It may extend beyond the person of the one arrested to include the premises
or surroundings under his immediate control. In this case, the ten cellophane bags of
marijuana seized at petitioner's house after his arrest at Pandacan and Zamora Streets
do not fall under the said exceptions.
In the case of People v. Lua, 12 this Court held:
As regards the brick of marijuana found inside the appellant's house, the trial court
correctly ignored it apparently in view of its inadmissibility. While initially the arrest as
well as the body search was lawful, the warrantless search made inside the appellant's
house became unlawful since the police operatives were not armed with a search
warrant. Such search cannot fall under "search made incidental to a lawful arrest," the
same being limited to body search and to that point within reach or control of the
person arrested, or that which may furnish him with the means of committing violence
or of escaping. In the case at bar, appellant was admittedly outside his house when he
was arrested. Hence, it can hardly be said that the inner portion of his house was within
his reach or control.
WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of
Appeals in C.A.-G.R. CR No. 13976 dated January 16, 1995 is AFFIRMED with the
MODIFICATION that petitioner Rodolfo Espano is sentenced to suffer an
indeterminate penalty of TWO (2) months and ONE (1) day of arresto mayor, as
minimum to TWO (2) years, FOUR (4) months and ONE (1) day of prision
correccional, as maximum.
SO ORDERED.
_____________
The articles seized from petitioner during his arrest were valid under the doctrine of
search made incidental to a lawful arrest. The warrantless search made in his house,
however, which yielded ten cellophane bags of marijuana became unlawful since the
police officers were not armed with a search warrant at the time. Moreover, it was
beyond the reach and control of petitioner.
In sum, this Court finds petitioner Rodolfo Espano guilty beyond reasonable doubt of
violating Article II, Section 8, in relation to Section 2 (e-L) (I) of Republic Act No.
6425, as amended. Under the said provision, the penalty imposed is six years and one
day to twelve years and a fine ranging from six thousand to twelve thousand pesos.
With the passage of Republic Act No. 7659, which took effect on December 31, 1993,
the imposable penalty shall now depend on the quantity of drugs recovered. Under the
provisions of Republic Act No. 7629, Section 20, and as interpreted in People
v. Simon 13 and People v. Lara, 14 if the quantity of marijuana involved is less than 750
grams, the imposable penalty ranges from prision correccional to reclusion temporal.
Taking into consideration that petitioner is not a habitual delinquent, the amendatory
provision is favorable to him and the quantity of marijuana involved is less than 750
grams, the penalty imposed under Republic Act No. 7659 should be applied. There
being no mitigating nor aggravating circumstances, the imposable penalty shall
be prision correccional in its medium period. Applying the Indeterminate Sentence
Law, the maximum penalty shall be taken from the medium period of prision
correccional, which is two (2) years, four (4) months and one (1) day to four (4) years
and two (2) months, while the minimum shall be taken from the penalty next lower in
degree, which is one (1) month and one (1) day to six (6) months of arresto mayor.
The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of

Presidential Decree No. 1866, committed as follows:
FIRST DIVISION
G.R. No. 87059 June 22, 1992
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROGELIO MENGOTE y TEJAS, accused-appellant.
CRUZ, J.:
Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on
the strength mainly of the stolen pistol found on his person at the moment of his
warrantless arrest. In this appeal, he pleads that the weapon was not admissible as
evidence against him because it had been illegally seized and was therefore the fruit of
the poisonous tree. The Government disagrees. It insists that the revolver was validly
received in evidence by the trial judge because its seizure was incidental to an arrest
that was doubtless lawful even if admittedly without warrant.
The incident occurred shortly before noon of August 8, 1987, after the Western Police
District received a telephone call from an informer that there were three suspiciouslooking persons at the corner of Juan Luna and North Bay Boulevard in Tondo, Manila.
A surveillance team of plainclothesmen was forthwith dispatched to the place. As later
narrated at the trial by Patrolmen Rolando Mercado and Alberto Juan, 1 they there saw
two men "looking from side to side," one of whom was holding his abdomen. They
approached these persons and identified themselves as policemen, whereupon the two
tried to run away but were unable to escape because the other lawmen had surrounded
them. The suspects were then searched. One of them, who turned out to be the accusedappellant, was found with a .38 caliber Smith and Wesson revolver with six live bullets
in the chamber. His companion, later identified as Nicanor Morellos, had a fan knife
secreted in his front right pants pocket. The weapons were taken from them. Mengote
and Morellos were then turned over to police headquarters for investigation by the
Intelligence Division.
That on or about August 8, 1987, in the City of Manila, Philippines, the said accused
did then and there wilfully, unlawfully and knowingly have in his possession and under
his custody and control a firearm, to wit:
one (1) cal. 38 "S & W" bearing
Serial No. 8720-T
without first having secured the necessary license or permit therefor from the proper
authorities.
Besides the police officers, one other witness presented by the prosecution was
Rigoberto Danganan, who identified the subject weapon as among the articles stolen
from him during the robbery in his house in Malabon on June 13, 1987. He pointed to
Mengote as one of the robbers. He had duly reported the robbery to the police,
indicating the articles stolen from him, including the revolver. 2 For his part, Mengote
made no effort to prove that he owned the firearm or that he was licensed to possess it
and claimed instead that the weapon had been "Planted" on him at the time of his
arrest. 3
The gun, together with the live bullets and its holster, were offered as Exhibits A, B,
and C and admitted over the objection of the defense. As previously stated, the weapon
was the principal evidence that led to Mengote's conviction for violation of P.D. 1866.
He was sentenced to reclusion perpetua. 4
It is submitted in the Appellant's Brief that the revolver should not have been admitted
in evidence because of its illegal seizure. no warrant therefor having been previously
obtained. Neither could it have been seized as an incident of a lawful arrest because the
arrest of Mengote was itself unlawful, having been also effected without a warrant. The
defense also contends that the testimony regarding the alleged robbery in Danganan's
house was irrelevant and should also have been disregarded by the trial court.
The following are the pertinent provision of the Bill of Rights:
On August 11, 1987, the following information was filed against the accused-appellant
before the Regional Trial Court of Manila:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly
Sec. 3 (1). The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order requires otherwise
as prescribed by law.
There is no question that evidence obtained as a result of an illegal search or seizure is
inadmissible in any proceeding for any purpose. That is the absolute prohibition of
Article III, Section 3(2), of the Constitution. This is the celebrated exclusionary rule
based on the justification given by Judge Learned Hand that "only in case the
prosecution, which itself controls the seizing officials, knows that it cannot profit by
their wrong will the wrong be repressed." The Solicitor General, while conceding the
rule, maintains that it is not applicable in the case at bar. His reason is that the arrest
and search of Mengote and the seizure of the revolver from him were lawful under
Rule 113, Section 5, of the Rules of Court reading as follows:
Sec. 5. Arrest without warrant when lawful. A peace officer or private person may,
without a warrant, arrest a person;
to another.
In cases failing under paragraphs (a) and (b) hereof, the person arrested without a
proceeded against in accordance with Rule 112, Section 7.
We have carefully examined the wording of this Rule and cannot see how we can agree
with the prosecution.
Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a
penal institution when he was arrested. We therefore confine ourselves to determining
the lawfulness of his arrest under either Par. (a) or Par. (b) of this section.
Par. (a) requires that the person be arrested (1) after he has committed or while he is
actually committing or is at least attempting to commit an offense, (2) in the presence
of the arresting officer.
These requirements have not been established in the case at bar. At the time of the
arrest in question, the accused-appellant was merely "looking from side to side" and
"holding his abdomen," according to the arresting officers themselves. There was
apparently no offense that had just been committed or was being actually committed or
at least being attempted by Mengote in their presence.
The Solicitor General submits that the actual existence of an offense was not necessary
as long as Mengote's acts "created a reasonable suspicion on the part of the arresting
officers and induced in them the belief that an offense had been committed and that the
accused-appellant had committed it." The question is, What offense? What offense
could possibly have been suggested by a person "looking from side to side" and
"holding his abdomen" and in a place not exactly forsaken?
These are certainly not sinister acts. And the setting of the arrest made them less so, if
at all. It might have been different if Mengote bad been apprehended at an ungodly
hour and in a place where he had no reason to be, like a darkened alley at 3 o'clock in
the morning. But he was arrested at 11:30 in the morning and in a crowded street
shortly after alighting from a passenger jeep with I his companion. He was not skulking
in the shadows but walking in the clear light of day. There was nothing clandestine
about his being on that street at that busy hour in the blaze of the noonday sun.
On the other hand, there could have been a number of reasons, all of them innocent,
why his eyes were darting from side to side and be was holding his abdomen. If they
excited suspicion in the minds of the arresting officers, as the prosecution suggests, it
has nevertheless not been shown what their suspicion was all about. In fact, the
policemen themselves testified that they were dispatched to that place only because of
the telephone call from the informer that there were "suspicious-looking" persons in
that vicinity who were about to commit a robbery at North Bay Boulevard. The caller
did not explain why he thought the men looked suspicious nor did he elaborate on the
impending crime.
this only after he had been searched and the investigation conducted later revealed that
he was not its owners nor was he licensed to possess it.
In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless arrest of
the accused because there was a bulge in his waist that excited the suspicion of the
arresting officer and, upon inspection, turned out to be a pouch containing hashish.
In People v. Claudio, 6 the accused boarded a bus and placed the buri bag she was
carrying behind the seat of the arresting officer while she herself sat in the seat before
him. His suspicion aroused, be surreptitiously examined the bag, which he found to
contain marijuana. He then and there made the warrantless arrest and seizure that we
subsequently upheld on the ground that probable cause had been sufficiently
established.
Before these events, the Peace officers had no knowledge even of Mengote' identity, let
alone the fact (or suspicion) that he was unlawfully carrying a firearm or that he was
involved in the robbery of Danganan's house.
The case before us is different because there was nothing to support the arresting
officers' suspicion other than Mengote's darting eyes and his hand on his abdomen. By
no stretch of the imagination could it have been inferred from these acts that an offense
had just been committed, or was actually being committed, or was at least being
attempted in their presence.
This case is similar to People v. Aminnudin, 7 where the Court held that the warrantless
arrest of the accused was unconstitutional. This was effected while be was coming
down a vessel, to all appearances no less innocent than the other disembarking
passengers. He had not committed nor was be actually committing or attempting to
commit an offense in the presence of the arresting officers. He was not even acting
suspiciously. In short, there was no probable cause that, as the prosecution incorrectly
suggested, dispensed with the constitutional requirement of a warrant.
In the landmark case of People v. Burgos, 9 this Court declared:

Under Section 6(a) of Rule 113, the officer arresting a person who has just committed,
is committing, or is about to commit an offense must have personal knowledge of the
fact. The offense must also be committed in his presence or within his view. (Sayo v.
Chief of Police, 80 Phil. 859). (Emphasis supplied)
xxx xxx xxx
In arrests without a warrant under Section 6(b), however, it is not enough that there is
reasonable ground to believe that the person to be arrested has committed a crime. A
crime must in fact or actually have been committed first. That a crime has actually
been committed is an essential precondition. It is not enough to suspect that a crime
may have been committed. The fact of the commission of the offense must be
undisputed. The test of reasonable ground applies only to the identity of the perpetrator.
(Emphasis supplied)
This doctrine was affirmed in Alih v. Castro, 10 thus:
Par. (b) is no less applicable because its no less stringent requirements have also not
been satisfied. The prosecution has not shown that at the time of Mengote's arrest an
offense had in fact just been committed and that the arresting officers had personal
knowledge of facts indicating that Mengote had committed it. All they had was hearsay
information from the telephone caller, and about a crime that had yet to be committed.
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 falsification. Parenthetically, it
may be observed that under the Revised Rule 113, Section 5(b), the officer making the
arrest must have personal knowledge of the ground therefor as stressed in the recent
case of People v. Burgos. (Emphasis supplied)
The truth is that they did not know then what offense, if at all, had been committed and
neither were they aware of the participation therein of the accused-appellant. It was
only later, after Danganan had appeared at the Police headquarters, that they learned of
the robbery in his house and of Mengote's supposed involvement therein. 8 As for the
illegal possession of the firearm found on Mengote's person, the policemen discovered
It would be a sad day, indeed, if any person could be summarily arrested and searched
just because he is holding his abdomen, even if it be possibly because of a stomachache, or if a peace officer could clamp handcuffs on any person with a shifty look on
suspicion that he may have committed a criminal act or is actually committing or
attempting it. This simply cannot be done in a free society. This is not a police state
where order is exalted over liberty or, worse, personal malice on the part of the
arresting officer may be justified in the name of security.
There is no need to discuss the other issues raised by the accused-appellant as the
ruling we here make is sufficient to sustain his exoneration. Without the evidence of
the firearm taken from him at the time of his illegal arrest, the prosecution has lost its
most important exhibit and must therefore fail. The testimonial evidence against
Mengote (which is based on the said firearm) is not sufficient to prove his guilt beyond
reasonable doubt of the crime imputed to him.
We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the
accused-appellant not only in the brief but also in the reply brief, which she did not
have to file but did so just the same to stress the constitutional rights of her client. The
fact that she was acting only as a counsel de oficio with no expectation of material
reward makes her representation even more commendable.
The Court feels that if the peace officers had been more mindful of the provisions of
the Bill of Rights, the prosecution of the accused-appellant might have succeeded. As it
happened, they allowed their over-zealousness to get the better of them, resulting in
their disregard of the requirements of a valid search and seizure that rendered
inadmissible the vital evidence they had invalidly seized.
This should be a lesson to other peace officers. Their impulsiveness may be the very
cause of the acquittal of persons who deserve to be convicted, escaping the clutches of
the law because, ironically enough, it has not been observed by those who are supposed
to enforce it.
RUDY CABALLES y TAIO, petitioner,

vs.
PUNO, J.:
This is an appeal by certiorari from the decision1 of respondent Court of Appeals dated
September 15, 1998 which affirmed the judgment rendered by the Regional Trial Court
of Santa Cruz, Laguna, finding herein petitioner, Rudy Caballes y Taio, guilty beyond
reasonable doubt of the crime of theft, and the resolution 2 dated November 9, 1998
which denied petitioner's motion for reconsideration.
In an 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 Province of Laguna, and within the jurisdiction of this Honorable
Court, the above-named accused, with intent of gain, and without the knowledge and
consent of the owner thereof, the NATIONAL POWER CORPORATION, did then and
there wilfully, unlawfully and feloniously take, steal and carry away about 630-kg of
Aluminum Cable Conductors, valued at P27, 450.00, belonging to and to the damage
and prejudice of said owner National Power Corp., in the aforesaid amount.
CONTRARY TO LAW."
During the arraignment, petitioner pleaded not guilty and hence, trial on the merits
ensued.
WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accusedappellant is ACQUITTED and ordered released immediately unless he is validly
detained for other offenses. No costs.
The facts are summarized by the appellate court as follows:
SO ORDERED.
"[At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino Noceja and Pat. Alex de Castro,
while on a routine patrol in Barangay Sampalucan, Pagsanjan, Laguna, spotted a
passenger jeep unusually covered with "kakawati" leaves.
______________
Suspecting that the jeep was loaded with smuggled goods, the two police officers
flagged down the vehicle. The jeep was driven by appellant. When asked what was
loaded on the jeep, he did not answer; he appeared pale and nervous.
FIRST DIVISION
G.R. No. 136292
January 15, 2002

With appellant's consent, the police officers checked the cargo and they discovered
bundles of 3.08 mm aluminum/galvanized conductor wires exclusively owned by
National Power Corporation (NPC). The conductor wires weighed 700 kilos and valued
at P55, 244.45. Noceja asked appellant where the wires came from and appellant
answered that they came from Cavinti, a town approximately 8 kilometers away from
Sampalucan. Thereafter, appellant and the vehicle with the high-voltage wires were
brought to the Pagsanjan Police Station. Danilo Cabale took pictures of the appellant
and the jeep loaded with the wires which were turned over to the Police Station
Commander of Pagsanjan, Laguna. Appellant was incarcerated for 7 days in the
Municipal jail.
In defense, appellant interposed denial and alibi. He testified that he is a driver and
resident of Pagsanjan, Laguna; a NARCOM civilian agent since January, 1988
although his identification card (ID) has already expired. In the afternoon of June 28,
1989, while he was driving a passenger jeepney, he was stopped by one Resty
Fernandez who requested him to transport in his jeepney conductor wires which were
in Cavinti, Laguna. He told Resty to wait until he had finished his last trip for the day
from Santa Cruz, Laguna. On his way to Santa Cruz, Laguna, he dropped by the
NARCOM headquarters and informed his superior, Sgt. Callos, that something
unlawful was going to happen. Sgt. Callos advised him to proceed with the loading of
the wires and that the former would act as back-up and intercept the vehicle at the
Sambat Patrol Base in Pagsanjan.
After receiving those instructions, he went back to see Resty. Although Resty had his
own vehicle, its tires were old so the cable wires were loaded in appellant's jeep and
covered with kakawati leaves. The loading was done by about five (5) masked men. He
was promised P1,000.00 for the job. Upon crossing a bridge, the two vehicles separated
but in his case, he was intercepted by Sgt. Noceja and Pat. De Castro. When they
discovered the cables, he told the police officers that the cables were loaded in his jeep
by the owner, Resty Fernandez. But despite his explanation, he was ordered to proceed
to police headquarters where he was interrogated. The police officers did not believe
him and instead locked him up in jail for a week."4
On April 27, 1993, the court a quo rendered judgment5 the dispositive portion of which
reads:
"WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of
Theft of property worthP55,244.45, the Court hereby sentences him to suffer
imprisonment from TWO (2) [YEARS], FOUR (4) MONTHS, and ONE (1) DAY of
Prision Correccional, as minimum, to TEN (10) YEARS of Prision Mayor, as
maximum, to indemnify the complainant National Power Corporation in the amount

of P55, 244.45, and to pay the costs."
On appeal, the Court of Appeals affirmed the judgment of conviction but deleted the
award for damages on the ground that the stolen materials were recovered and
modified the penalty imposed, to wit:
"WHEREFORE, the appealed decision is hereby AFFIRMED with the modification
that appellant RUDY CABALLES is found guilty beyond reasonable doubt as principal
in theft, defined and penalized under Articles 308 and 309, par. 1, Revised Penal Code,
and there being no modifying circumstances, he is hereby meted an indeterminate
penalty of Four (4) years, Nine (9) months and Eleven (11) days of prision
correccional, as minimum term, to Eight (8) years, Eight (8) months and one (1) day of
prision mayor, as maximum term. No civil indemnity and no costs."6
Petitioner comes before us and raises the following issues:
"(a) Whether or not the constitutional right of petitioner was violated when the police
officers searched his vehicle and seized the wires found therein without a search
warrant and when samples of the wires and references to them were admitted in
evidence as basis for his conviction;
(b) Whether or not respondent Court erred in rejecting petitioner's defense that he was
engaged in an entrapment operation and in indulging in speculation and conjecture in
rejecting said defense; and
(c) Whether or not the evidence of the prosecution failed to establish the guilt of
petitioner beyond reasonable doubt and thus failed to overcome the constitutional right
of petitioner to presumption of innocence."
The conviction or acquittal of petitioner hinges primarily on the validity of the
warrantless search and seizure made by the police officers, and the admissibility of the
evidence obtained by virtue thereof.
In holding that the warrantless search and seizure is valid, the trial court ruled that:
"As his last straw of argument, the accused questions the constitutionality of the search
and validity of his arrest on the ground that no warrant was issued to that effect. The
Court cannot again sustain such view. In the case of People v. Lo Ho [Wing], G.R. No.
88017, January 21, 1991, it has been held that 'considering that before a warrant can be
obtained, the place, things and persons to be searched must be described to the
satisfaction of the issuing judge - a requirement which borders on the impossible in the
case of smuggling effected by the use of a moving vehicle that can transport
contraband from one place to another with impunity, a warrantless search of a moving
vehicle is justified on grounds of practicability.' The doctrine is not of recent vintage. In
the case of Valmonte vs. de Villa, G.R. No. 83988, May 24, 1990 (Resolution on
Motion for Reconsideration, September 29, 1989), it was ruled that 'automobiles
because of their mobility may be searched without a warrant upon facts not justifying
warrantless search of a resident or office. x x x To hold that no criminal can, in any
case, be arrested and searched for the evidence and tokens of his crime without a
warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the
most expert, and the most depraved of criminals, facilitating their escape in many
instances' (Ibid.). In Umil v. Ramos, 187 SCRA 311, and People vs. Ortiz, 191 SCRA
836, the Supreme Court held that a search may be made even without a warrant where
the accused is caught in flagrante. Under the circumstances, the police officers are not
only authorized but are also under obligation to arrest the accused even without a
warrant."7
Petitioner contends that the flagging down of his vehicle by police officers who were
on routine patrol, merely on "suspicion" that "it might contain smuggled goods," does
not constitute probable cause that will justify a warrantless search and seizure. He
insists that, contrary to the findings of the trial court as adopted by the appellate court,
he did not give any consent, express or implied, to the search of the vehicle. Perforce,
any evidence obtained in violation of his right against unreasonable search and seizure
shall be deemed inadmissible.
Enshrined in our Constitution is the inviolable right of the people to be secure in their
persons and properties against unreasonable searches and seizures, as defined under
Section 2, Article III thereof, which reads:
"Sec. 2. The right of the people to be secure in their persons, houses, papers, and
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized."
The exclusionary rule under Section 3(2), Article III of the Constitution bars the
admission of evidence obtained in violation of such right.
The constitutional proscription against warrantless searches and seizures is not absolute
but admits of certain exceptions, namely: (1) warrantless search incidental to a lawful
arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing
jurisprudence;8 (2) seizure of evidence in plain view; 9 (3) search of moving
vehicles;10 (4) consented warrantless search;11 (5) customs search; (6) stop and frisk
situations (Terry search);12and (7) exigent and emergency circumstances.13
In cases where warrant is necessary, the steps prescribed by the Constitution and
reiterated in the Rules of Court must be complied with. In the exceptional events where
warrant is not necessary to effect a valid search or seizure, or when the latter cannot be
performed except without a warrant, what constitutes a reasonable or unreasonable
search or seizure is purely a judicial question, determinable from the uniqueness of the
circumstances involved, including the purpose of the search or seizure, the presence or
absence of probable cause, the manner in which the search and seizure was made, the
place or thing searched and the character of the articles procured. 14
It is not controverted that the search and seizure conducted by the police officers in the
case at bar was not authorized by a search warrant. The main issue is whether the
evidence taken from the warrantless search is admissible against the appellant. Without
said evidence, the prosecution cannot prove the guilt of the appellant beyond
reasonable doubt.1wphi1.nt
I. Search of moving vehicle
Highly regulated by the government, the vehicle's inherent mobility reduces
expectation of privacy especially when its transit in public thoroughfares furnishes a
highly reasonable suspicion amounting to probable cause that the occupant committed
a criminal activity.15 Thus, the rules governing search and seizure have over the years
been steadily liberalized whenever a moving vehicle is the object of the search on the
basis of practicality. This is so considering that before a warrant could be obtained, the
place, things and persons to be searched must be described to the satisfaction of the
issuing judge a requirement which borders on the impossible in the case of
smuggling effected by the use of a moving vehicle that can transport contraband from
one place to another with impunity. We might add that a warrantless search of a
moving vehicle is justified on the ground that it is not practicable to secure a warrant
because the vehicle can be quickly moved out of the locality or jurisdiction in which
the warrant must be sought.16 Searches without warrant of automobiles is also allowed
for the purpose of preventing violations of smuggling or immigration laws, provided
such searches are made at borders or 'constructive borders' like checkpoints near the
boundary lines of the State.17
The mere mobility of these vehicles, however, does not give the police officers
unlimited discretion to conduct indiscriminate searches without warrants if made
within the interior of the territory and in the absence of probable cause. 18 Still and all,
the important thing is that there was probable cause to conduct the warrantless search,
which must still be present in such a case.
Although the term eludes exact definition, probable cause signifies a reasonable ground
of suspicion supported by circumstances sufficiently strong in themselves to warrant a
cautious man's belief that the person accused is guilty of the offense with which he is
charged; or the existence of such facts and circumstances which could lead a
reasonably discreet and prudent man to believe that an offense has been committed and
that the items, articles or objects sought in connection with said offense or subject to
seizure and destruction by law is in the place to be searched. 19 The required probable
cause that will justify a warrantless search and seizure is not determined by a fixed
formula but is resolved according to the facts of each case.20
One such form of search of moving vehicles is the "stop-and-search" without warrant
at military or police checkpoints which has been declared to be not illegal per se, 21 for
as long as it is warranted by the exigencies of public order 22 and conducted in a way
least intrusive to motorists.23 A checkpoint may either be a mere routine inspection or it
may involve an extensive search.
Routine inspections are not regarded as violative of an individual's right against
unreasonable search. The search which is normally permissible in this instance is
limited to the following instances: (1) where the officer merely draws aside the curtain
of a vacant vehicle which is parked on the public fair grounds; 24 (2) simply looks into a
vehicle;25 (3) flashes a light therein without opening the car's doors; 26 (4) where the
occupants are not subjected to a physical or body search; 27 (5) where the inspection of
the vehicles is limited to a visual search or visual inspection; 28 and (6) where the
routine check is conducted in a fixed area.29
None of the foregoing circumstances is obtaining in the case at bar. The police officers
did not merely conduct a visual search or visual inspection of herein petitioner's
vehicle. They had to reach inside the vehicle, lift the kakawati leaves and look inside
the sacks before they were able to see the cable wires. It cannot be considered a simple
routine check.
In the case of United States vs. Pierre,30 the Court held that the physical intrusion of a
part of the body of an agent into the vehicle goes beyond the area protected by the
Fourth Amendment, to wit:
"The Agent . . . stuck his head through the driver's side window. The agent thus
effected a physical intrusion into the vehicle. . . [W]e are aware of no case holding that
an officer did not conduct a search when he physically intruded part of his body into a
space in which the suspect had a reasonable expectation of privacy. [The] Agent['s] . . .
physical intrusion allowed him to see and to smell things he could not see or smell
from outside the vehicle. . . In doing so, his inspection went beyond that portion of the
vehicle which may be viewed from outside the vehicle by either inquisitive passersby
or diligent police officers, and into the area protected by the Fourth amendment, just as
much as if he had stuck his head inside the open window of a home."
On the other hand, when a vehicle is stopped and subjected to an extensive search, such
a warrantless search would be constitutionally permissible only if the officers
conducting the search have reasonable or probable cause to believe, before the search,
that either the motorist is a law-offender or they will find the instrumentality or
evidence pertaining to a crime in the vehicle to be searched.31
This Court has in the past found probable cause to conduct without a judicial warrant
an extensive search of moving vehicles in situations where (1) there had emanated
from a package the distinctive smell of marijuana; (2) agents of the Narcotics
Command ("Narcom") of the Philippine National Police ("PNP") had received a
confidential report from informers that a sizeable volume of marijuana would be
transported along the route where the search was conducted; (3) Narcom agents had
received information that a Caucasian coming from Sagada, Mountain Province, had in
his possession prohibited drugs and when the Narcom agents confronted the accused
Caucasian, because of a conspicuous bulge in his waistline, he failed to present his
passport and other identification papers when requested to do so; (4) Narcom agents
had received confidential information that a woman having the same physical
appearance as that of the accused would be transporting marijuana; 32 (5) the accused
who were riding a jeepney were stopped and searched by policemen who had earlier
received confidential reports that said accused would transport a large quantity of
marijuana; and (6) where the moving vehicle was stopped and searched on the basis of
intelligence information and clandestine reports by a deep penetration agent or spy one who participated in the drug smuggling activities of the syndicate to which the
accused belonged - that said accused were bringing prohibited drugs into the country.33
In the case at bar, the vehicle of the petitioner was flagged down because the police
officers who were on routine patrol became suspicious when they saw that the back of
the vehicle was covered with kakawati leaves which, according to them, was unusual
and uncommon.
Pat. Alex de Castro recounted the incident as follows:
"ATTY. SANTOS
Q
Now on said date and time do you remember of any unusual incident while you
were performing your duty?
A
Yes, sir, at that time and date myself and Police Sgt. Noceja were conducting
patrol in the said place when we spotted a suspicious jeepney so we stopped the
jeepney and searched the load of the jeepney and we found out (sic) these conductor
wires.
Q
You mentioned about the fact that when you saw the jeepney you became
suspicious, why did you become suspicious?
A
Because the cargo was covered with leaves and branches, sir.
Q
When you became suspicious upon seeing those leaves on top of the load what
did you do next, if any?
A
We stopped the jeepney and searched the contents thereof, sir."34
The testimony of Victorino Noceja did not fare any better:

"ATTY SANTOS
Q
When you saw the accused driving the said vehicle, what did you do?
A
Because I saw that the vehicle being drawn by Caballes was covered by
kakawati leaves, I became suspicious since such vehicle should not be covered by
those and I flagged him, sir."35
We hold that the fact that the vehicle looked suspicious simply because it is not
common for such to be covered with kakawati leaves does not constitute "probable
cause" as would justify the conduct of a search without a warrant.
In People vs. Chua Ho San, 36 we held that the fact that the watercraft used by the
accused was different in appearance from the usual fishing boats that commonly cruise
over the Bacnotan seas coupled with the suspicious behavior of the accused when he
attempted to flee from the police authorities do not sufficiently establish probable
cause. Thus:
"In the case at bar, the Solicitor General proposes that the following details are
suggestive of probable cause - persistent reports of rampant smuggling of firearm and
other contraband articles, CHUA's watercraft differing in appearance from the usual
fishing boats that commonly cruise over the Bacnotan seas, CHUA's illegal entry into
the Philippines x x x, CHUA's suspicious behavior, i.e., he attempted to flee when he
saw the police authorities, and the apparent ease by which CHUA can return to and
navigate his speedboat with immediate dispatch towards the high seas, beyond the
reach of Philippine laws.
This Court, however, finds that these do not constitute "probable cause." None of the
telltale clues, e.g., bag or package emanating the pungent odor of marijuana or other
prohibited drug, confidential report and/or positive identification by informers of
courier of prohibited drug and/or the time and place where they will transport/deliver
the same, suspicious demeanor or behavior, and suspicious bulge in the waist accepted by this Court as sufficient to justify a warrantless arrest exists in this case.
There was no classified information that a foreigner would disembark at Tammocalao
beach bearing prohibited drug on the date in question. CHUA was not identified as a
drug courier by a police informer or agent. The fact that the vessel that ferried him
to shore bore no resemblance to the fishing boats of the area did not automatically
mark him as in the process of perpetrating an offense. x x x." (emphasis supplied)
In addition, the police authorities do not claim to have received any confidential report
or tipped information that petitioner was carrying stolen cable wires in his vehicle
which could otherwise have sustained their suspicion. Our jurisprudence is replete with
cases where tipped information has become a sufficient probable cause to effect a
warrantless search and seizure.37 Unfortunately, none exists in this case.
II. Plain view doctrine
It cannot likewise be said that the cable wires found in petitioner's vehicle were in plain
view, making its warrantless seizure valid.
Jurisprudence is to the effect that an object is in plain view if the object itself is plainly
exposed to sight. Where the object seized was inside a closed package, the object itself
is not in plain view and therefore cannot be seized without a warrant. However, if the
package proclaims its contents, whether by its distinctive configuration, its
transparency, or if its contents are obvious to an observer, then the contents are in plain
view and may be seized. In other words, if the package is such that an experienced
observer could infer from its appearance that it contains the prohibited article, then the
article is deemed in plain view. It must be immediately apparent to the police that the
items that they observe may be evidence of a crime, contraband or otherwise subject to
seizure.38
circumstances.43 Relevant to this determination are the following characteristics of the

person giving consent and the environment in which consent is given: (1) the age of the
defendant; (2) whether he was in a public or secluded location; (3) whether he objected
to the search or passively looked on;44 (4) the education and intelligence of the
defendant; (5) the presence of coercive police procedures; (6) the defendant's belief
that no incriminating evidence will be found; 45 (7) the nature of the police questioning;
(8) the environment in which the questioning took place; and (9) the possibly
vulnerable subjective state of the person consenting. 46 It is the State which has the
burden of proving, by clear and positive testimony, that the necessary consent was
obtained and that it was freely and voluntarily given.47
In the case at bar, Sgt. Victorino Noceja testified on the manner in which the search
was conducted in this wise:
It is clear from the records of this case that the cable wires were not exposed to sight
because they were placed in sacks39 and covered with leaves. The articles were neither
transparent nor immediately apparent to the police authorities. They had no clue as to
what was hidden underneath the leaves and branches. As a matter of fact, they had to
ask petitioner what was loaded in his vehicle. In such a case, it has been held that the
object is not in plain view which could have justified mere seizure of the articles
without further search.40
"WITNESS
III. Consented search
Q
After conducting the patrol operation, do you remember of any unusual incident
on said date and time?
Petitioner contends that the statement of Sgt. Victorino Noceja that he checked the
vehicle "with the consent of the accused" is too vague to prove that petitioner
consented to the search. He claims that there is no specific statement as to how the
consent was asked and how it was given, nor the specific words spoken by petitioner
indicating his alleged "consent." At most, there was only an implied acquiescence, a
mere passive conformity, which is no "consent" at all within the purview of the
constitutional guarantee.
Doubtless, the constitutional immunity against unreasonable searches and seizures is a
personal right which may be waived. The consent must be voluntary in order to
validate an otherwise illegal detention and search, i.e., the consent is unequivocal,
specific, and intelligently given, uncontaminated by any duress or coercion. 41 Hence,
consent to a search is not to be lightly inferred, but must be shown by clear and
convincing evidence.42 The question whether a consent to a search was in fact
voluntary is a question of fact to be determined from the totality of all the
On June 28, 1989, where were you?
We were conducting patrol at the poblacion and some barangays, sir.
xxx
xxx
xxx
Yes, sir.
What is that incident?
A
While I was conducting my patrol at barangay Sampalucan, I saw Rudy Caballes
driving a vehicle and the vehicle contained aluminum wires, sir.
xxx
Q
xxx
xxx
When you saw the accused driving the said vehicle, what did you do?
A
Because I saw that the vehicle being driven by Caballes was covered by
kakawati leaves, I became suspicious since such vehicle should not be covered by
those and I flagged him, sir.
Did the vehicle stop?
A
Yes, sir, and after said vehicle stop[ped], I removed the cover of said vehicle
and by so doing, I saw the aluminum wires.
Q
acts should properly be construed as a clear waiver of his right. In People vs.
Omaweng,54 the police officers asked the accused if they could see the contents of his
bag to which the accused said "you can see the contents but those are only clothings."
Then the policemen asked if they could open and see it, and accused answered "you
can see it." The Court said there was a valid consented search.1wphi1.nt
Before you saw the aluminum wires, did you talk to the accused?
Yes, sir, I asked him what his load was.
What was the answer of Caballes?
A
He did not answer and I observed him to be pale, "nagpapamutla" (sic), so I
told him I will look at the contents of his vehicle and he answered in the positive.
Q
And after you saw for yourself the aluminum wires loaded on the jeep, what did
you do?
A
I asked him where those wires came from and he answered those came from the
Cavinti area, sir."48
This Court is not unmindful of cases upholding the validity of consented warrantless
searches and seizure. But in these cases, the police officers' request to search personnel
effects was orally articulated to the accused and in such language that left no room for
doubt that the latter fully understood what was requested. In some instance, the accused
even verbally replied to the request demonstrating that he also understood the nature
and consequences of such request.49
In Asuncion vs. Court of Appeals,50 the apprehending officers sought the permission
of petitioner to search the car, to which the latter agreed. Petitioner therein himself
freely gave his consent to said search. In People vs. Lacerna,51 the appellants who
were riding in a taxi were stopped by two policemen who asked permission to search
the vehicle and the appellants readily agreed. In upholding the validity of the consented
search, the Court held that appellant himself who was "urbanized in mannerism and
speech" expressly said that he was consenting to the search as he allegedly had nothing
to hide and had done nothing wrong. In People vs. Cuizon,52 the accused admitted that
they signed a written permission stating that they freely consented to the search of their
luggage by the NBI agents to determine if they were carrying shabu. In People vs.
Montilla,53 it was held that the accused spontaneously performed affirmative acts of
volition by himself opening the bag without being forced or intimidated to do so, which
In case of consented searches or waiver of the constitutional guarantee against

obtrusive searches, it is fundamental that to constitute a waiver, it must first appear that
(1) the right exists; (2) that the person involved had knowledge, either actual or
constructive, of the existence of such right; and (3) the said person had an actual
intention to relinquish the right.55
In the case at bar, the evidence is lacking that the petitioner intentionally surrendered
his right against unreasonable searches. The manner by which the two police officers
allegedly obtained the consent of petitioner for them to conduct the search leaves much
to be desired. When petitioner's vehicle was flagged down, Sgt. Noceja approached
petitioner and "told him I will look at the contents of his vehicle and he answered
in the positive." We are hard put to believe that by uttering those words, the police
officers were asking or requesting for permission that they be allowed to search the
vehicle of petitioner. For all intents and purposes, they were informing, nay,
imposing upon herein petitioner that they will search his vehicle. The "consent" given
under intimidating or coercive circumstances is no consent within the purview of the
constitutional guaranty. In addition, in cases where this Court upheld the validity of
consented search, it will be noted that the police authorities expressly asked, in no
uncertain terms, for the consent of the accused to be searched. And the consent of the
accused was established by clear and positive proof. In the case of herein petitioner, the
statements of the police officers were not asking for his consent; they
were declaring to him that they will look inside his vehicle. Besides, it is doubtful
whether permission was actually requested and granted because when Sgt. Noceja was
asked during his direct examination what he did when the vehicle of petitioner stopped,
he answered that he removed the cover of the vehicle and saw the aluminum wires. It
was only after he was asked a clarificatory question that he added that he told petitioner
he will inspect the vehicle. To our mind, this was more of an afterthought. Likewise,
when Pat. de Castro was asked twice in his direct examination what they did when they
stopped the jeepney, his consistent answer was that they searched the vehicle. He never
testified that he asked petitioner for permission to conduct the search.56
Neither can petitioner's passive submission be construed as an implied acquiescence to
the warrantless search. InPeople vs. Barros,57 appellant Barros, who was carrying a
carton box, boarded a bus where two policemen were riding. The policemen inspected
the carton and found marijuana inside. When asked who owned the box, appellant
denied ownership of the box and failed to object to the search. The Court there struck
down the warrantless search as illegal and held that the accused is not to be presumed
to have waived the unlawful search conducted simply because he failed to object,
citing the ruling in the case of People vs. Burgos,58 to wit:
"As the constitutional guaranty is not dependent upon any affirmative act of the citizen,
the courts do not place the citizens in the position of either contesting an officer's
authority by force, or waiving his constitutional rights; but instead they hold that a
peaceful submission to a search or seizure is not a consent or an invitation thereto, but
is merely a demonstration of regard for the supremacy of the law."
Casting aside the cable wires as evidence, the remaining evidence on record are
insufficient to sustain petitioner's conviction. His guilt can only be established without
violating the constitutional right of the accused against unreasonable search and
seizure.
WHEREFORE, the impugned decision is REVERSED and SET ASIDE, and
accused Rudy Caballes is herebyACQUITTED of the crime charged. Cost de oficio.
SO ORDERED.
_______________
In an Information dated April 11, 1988, 1 Petitioner Alain Manalili y Dizon was charged
by Assistant Caloocan City Fiscal E. Juan R. Bautista with violation of Section 8,
Article II of Republic Act No. 6425, allegedly committed as follows: 2
That on or about the 11th day of April 1988 in Caloocan City, MM, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused without any
authority of law, did then and there wilfully, unlawfully and feloniously have in his
custody, possession and control crushed marijuana residue, which is a prohibited drug
and knowing the same to be such.
Contrary to Law.
THIRD DIVISION
G.R. No. 113447 October 9, 1997
ALAIN MANALILI y DIZON, petitioner,
vs
PANGANIBAN, J.:
When dealing with a rapidly unfolding and potentially criminal situation in the city
streets where unarguably there is no time to secure an arrest or a search warrant,
policemen should employ limited, flexible responses like "stop-and-frisk" which
are graduated in relation to the amount of information they possess, the lawmen being
ever vigilant to respect and not to violate or to treat cavalierly the citizen's
constitutional rights against unreasonable arrest, search and seizure.
The Case
This rule is reiterated as we resolve this petition for review on certiorari under Rule 45
of the Rules of Court, seeking the reversal of the Decision of the Court of Appeals
dated April 19, 1993 and its Resolution dated January 20, 1994 in CA G.R. CR No.
07266, entitled "People of the Philippines vs. Alain Manalili y Dizon."
Upon his arraignment on April 21, 1988, appellant pleaded "not guilty" to the
charge. 3 With the agreement of the public prosecutor, appellant was released after
filing a P10,000.00 bail bond. 4 After trial in due course, the Regional Trial Court of
Caloocan City, Branch 124, acting as a Special Criminal Court, rendered on May 19,
1989 a decision 5 convicting appellant of illegal possession of marijuana residue. The
dispositive portion of the decision reads: 6
WHEREFORE, in view of all the foregoing, this Court finds the accused ALAIN
MANALILI Y DIZON guilty beyond reasonable doubt of violation of Section 8,
Article II, of Republic Act No. 6425, as amended (Illegal Possession of Marijuana
residue), and hereby 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 affirming the trial
court: 10
ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby
AFFIRMED in all respects. Costs against appellant.
Respondent Court 11 denied reconsideration via its assailed Resolution dated January
20, 1994, disposing:
ACCORDINGLY, accused-appellant's motion for reconsideration is, as is hereby

DENIED.
Exhibit "E-3". The residue was originally wrapped in a smaller sheet of folded paper.
(Exhibit "E-4").
The Facts
Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic Chemistry
Section requesting a chemical analysis of the subject marijuana residue (Exhibit "D").
Cpl. Tamondong thereafter prepared a Joint Affidavit of the apprehending policemen
(Exhibit "A"). Pat. Angel Lumabas handcarried the referral slip (Exhibit "D") to the
National Bureau of Investigation (NBI), including the subject marijuana residue for
chemical analysis. The signature of Pat. Lumabas appears on the left bottom corner of
Exhibit "D".
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 AntiNarcotics Unit of the Kalookan City Police Station were conducting a surveillance
along A. Mabini street, Kalookan City, in front of the Kalookan City Cemetery. The
policemen were Pat. Romeo Espiritu and Pat. Anger Lumabas and a driver named
Arnold Enriquez was driving a Tamaraw vehicle which was the official car of the
Police Station of Kalookan City. The surveillance was being made because of
information that drug addicts were roaming the area in front of the Kalookan City
Cemetery.
Upon reaching the Kalookan City Cemetery, the policemen alighted from their vehicle.
They then chanced upon a male person in front of the cemetery who appeared high on
drugs. The male person was observed to have reddish eyes and to be walking in a
swaying manner. When this male person tried to avoid the policemen, the latter
approached him and introduced themselves as police officers. The policemen then
asked the male person what he was holding in his hands. The male person tried to
resist. Pat Romeo Espiritu asked the male person if he could see what said male person
had in his hands. The latter showed the wallet and allowed Pat. Romeo Espiritu to
examine the same. Pat. Espiritu took the wallet and examined it. He found suspected
crushed marijuana residue inside. He kept the wallet and its marijuana contents.
The male person was then brought to the Anti-Narcotics Unit of the Kalookan City
Police Headquarters and was turned over to Cpl. Wilfredo Tamondong for
investigation. Pat. Espiritu also turned over to Cpl. Tamondong the confiscated wallet
and its suspected marijuana contents. The man turned out to be the accused ALAIN
MANALILI y DIZON.
Upon receipt of the confiscated suspected marijuana residue from Pat. Espiritu, Cpl.
Tamondong wrapped the same with a white sheet of paper on which he wrote
"Evidence "A" 4/11/88 Alain Manalili". The white sheet of paper was marked as
The Forensic Chemistry Section of the NBI received the aforesaid referral slip and the
subject marijuana residue at 7:40 o'clock in the evening of April 11, 1988 as shown on
the stamped portion of Exhibit "D".
It was NBI Aida Pascual who conducted the microscopic and chemical examinations of
the
specimen
which
she
identified.
(Exhibit
13
"E") Mrs. Pascual referred to the subject specimen as "crushed marijuana leaves" in
her Certification dated April 11, 1988 (Exhibit "F"). 14 These crushed marijuana leaves
gave positive results for marijuana, according to the Certificate.
Mrs. Pascual also conducted a chromatographic examination of the specimen. In this
examination, she also found that the "crushed marijuana leaves" gave positive results
for marijuana. She then prepared a Final Report of her examinations (Exhibit "G").
After conducting the examinations, Ms. Pascual placed the specimen in a white letterenvelope and sealed it. (Exhibit "E"). She then wrote identification notes on this letterenvelope. (Exhibit "E-1").
Pat. Lumabas carried the Certification marked as Exhibit "F" from the NBI Forensic
Chemistry Section to Cpl. Tamondong. Upon receipt thereof, Cpl. Tamondong prepared
a referral slip addressed to the City Fiscal of Kalookan City. (Exhibit "C")
On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was
walking in front of the cemetery when he was apprehended. 15
Version of the Defense
The trial court summarized the testimonies of the defense witnesses as follows: 16
At about 2:00 o'clock in the afternoon of April 11, 1988, the accused ALAIN
MANALILI was aboard a tricycle at A. Mabini street near the Kalookan City Cemetery
on the way to his boarding house. Three policemen ordered the driver of the tricycle to
stop because the tricycle driver and his lone passenger were under the influence of
marijuana. The policemen brought the accused and the tricycle driver inside the Ford
Fiera which the policemen were riding in. The policemen then bodily searched the
accused and the tricycle driver. At this point, the accused asked the policemen why he
was being searched and the policemen replied that he (accused) was carrying
marijuana. However, nothing was found on the persons of the accused and the driver.
The policemen allowed the tricycle driver to go while they brought the accused to the
police headquarters at Kalookan City where they said they would again search the
accused.
On the way to the police headquarters, the accused saw a neighbor and signalled the
latter to follow him. The neighbor thus followed the accused to the Kalookan City
Police Headquarters. Upon arrival thereat, the accused was asked to remove his pants
in the presence of said neighbor and another companion. The policemen turned over
the pants of the accused over a piece of bond paper trying to look for marijuana.
However, nothing was found, except for some dirt and dust. This prompted the
companion of the neighbor of the accused to tell the policemen to release the accused.
The accused was led to a cell. The policemen later told the accused that they found
marijuana inside the pockets of his pants.
At about 5:00 o'clock in the afternoon on the same day, the accused was brought
outside the cell and was led to the Ford Fiera. The accused was told by the policemen
to call his parents in order to "settle" the case. The policemen who led the accused to
the Ford Fiera were Pat. Lumabas, Pat. Espiritu and Cpl. Tamondong. Pat. Lumabas
was the policeman who told the accused to call his parents. The accused did not call his
parents and he told the policemen that his parents did not have any telephone.
At about 5:30 o'clock in the afternoon of the same day, the accused was brought in the
office of an inquest Fiscal. There, the accused told the Fiscal that no marijuana was
found on his person but the Fiscal told the accused not to say anything. The accused
was then brought back to the Kalookan City Jail.
Loreto Medenilla, the tricycle driver who was allegedly with the accused when he and
the accused were stopped by policemen and then bodily searched on April 11, 1988,
testified. He said that the policemen found nothing either on his person or on the
person of the accused when both were searched on April 11, 1988.
Roberto Abes, a neighbor of the accused, testified that he followed the accused at the
Kalookan City Police Headquarters on April 11, 1988. He said that the police searched
the accused who was made to take off his pants at the police headquarters but no
marijuana was found on the body of the accused.
Appellant, who was recalled to the stand as sur-rebuttal witness, presented several
pictures showing that tricycles were allowed to ply in front of the Caloocan
Cemetery. 17
The Rulings of the Trail and the Appellate Courts
The trial court convicted petitioner of illegal possession of marijuana residue largely on
the strength of the arresting officers' testimony. Patrolmen Espiritu and Lumabas were
"neutral and disinterested" witnesses, testifying only on what transpired during the
performance of their duties. Substantially they asserted that the appellant was found to
be in possession of a substance which was later identified as crushed marijuana
residue.
The trial court disbelieved appellant's defense that this charge was merely "trumped
up," because the appellant neither took any legal action against the allegedly erring
policemen nor moved for a reinvestigation before the city fiscal of Kalookan City.
On appeal, Respondent Court found no proof that the decision of the trial court was
based on speculations, surmises or conjectures. On the alleged "serious" discrepancies
in the testimonies of the arresting officers, the appellate court ruled that the said
inconsistencies were insubstantial to impair the essential veracity of the narration. It
further found petitioner's contention that he could not be convicted of illegal
possession of marijuana residue to be without merit, because the forensic chemist
reported that what she examined were marijuana leaves.
Issues
Petitioner assigns the following errors on the part of Respondent Court:
I
The Court of Appeals erred in upholding the findings of fact of the trial court.
II
The Court of Appeals erred in upholding the conviction of (the) accused (and) in ruling
that the guilt of the accused had been proved (beyond) reasonable doubt.
III
The Court of Appeals erred in not ruling that the inconsistencies in the testimonies of
the prosecution witnesses were material and substantial and not minor.
IV
The Court of Appeals erred in not appreciating the evidence that the accused was
framed for the purpose of extorting money.
V
The Court of Appeals erred in not acquitting the accused when the evidence presented
is consistent with both innocence and guilt.
VI
The Court of Appeals erred in admitting the evidence of the prosecution which are
inadmissible in evidence.
Restated more concisely, petitioner questions (1) the admissibility of the evidence
against him, (2) the credibility of prosecution witnesses and the rejection by the trial
and the appellate courts of the defense of extortion, and (3) the sufficiency of the
prosecution evidence to sustain his conviction.
The Court's Ruling
The petition has no merit.
First
Issue:
Admissibility
During a Stop-and-Frisk
of
the
Evidence
Seized
Petitioner protests the admission of the marijuana leaves found in his possession,
contending that they were products of an illegal search. The Solicitor General, in his
Comment dated July 5, 1994, which was adopted as memorandum for respondent,
counters that the inadmissibility of the marijuana leaves was waived because petitioner
never raised this issue in the proceedings below nor did he object to their admissibility
in evidence. He adds that, even assuming arguendo that there was no waiver, the search
was legal because it was incidental to a warrantless arrest under Section 5 (a), Rule 113
of the Rules of Court.
We disagree with petitioner and hold that the search was valid, being akin to a stopand-frisk. In the landmark case of Terry vs. Ohio, 18 a stop-and-frisk was defined as the
vernacular designation of the right of a police officer to stop a citizen on the street,
interrogate him, and pat him for weapon(s):
. . . (W)here a police officer observes an unusual conduct which leads him reasonably
to conclude in light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous, where in the
course of investigating this behavior he identified himself as a policeman and makes
reasonable inquiries, and where nothing in the initial stages of the encounter serves to
dispel his reasonable fear for his own or others' safety, he is entitled for the protection
of himself and others in the area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons which might be used to
assault him. Such a search is a reasonable search under the Fourth Amendment, and
any weapon seized may properly be introduced in evidence against the person from
whom they were taken. 19
In allowing such a search, the United States Supreme Court held that the interest of
effective crime prevention and detection allows a police officer to approach a person,
in appropriate circumstances and manner, for purposes of investigating possible
criminal behavior even though there is insufficient probable cause to make an actual
arrest. This was the legitimate investigative function which Officer McFadden
discharged in that case, when he approached petitioner and his companion whom he
observed to have hovered alternately about a street corner for an extended period of
time, while not waiting for anyone; paused to stare in the same store window roughly
24 times; and conferred with a third person. It would have been sloppy police work for
an officer of 30 years' experience to have failed to investigate this behavior further.
In admitting in evidence two guns seized during the stop-and-frisk, the US Supreme
Court held that what justified the limited search was the more immediate interest of the
police officer in taking steps to assure himself that the person with whom he was
dealing was not armed with a weapon that could unexpectedly and fatally be used
against him.
It did not, however, abandon the rule that the police must, whenever practicable, obtain
advance judicial approval of searches and seizures through the warrant procedure,
excused only by exigent circumstances.
In Philippine jurisprudence, the general rule is that a search and seizure must be
validated by a previously secured judicial warrant; otherwise, such search and seizure
is unconstitutional and subject to challenge. 20Section 2, Article III of the 1987
Constitution, gives this guarantee:
Any evidence obtained in violation of the mentioned provision is legally inadmissible
in evidence as a "fruit of the poisonous tree," falling under the exclusionary rule:
Sec. 3. . . .
(2) Any evidence obtained in violation of . . . the preceding section shall be
Stop-and-frisk has already been adopted as another exception to the general rule
against a search without a warrant. In Posadas vs. Court of Appeals, 24 the Court held
that there were many instances where a search and seizure could be effected without
necessarily being preceded by an arrest, one of which was stop-and-frisk. In said case,
members of the Integrated National Police of Davao stopped petitioner, who was
carrying a buri bag and acting suspiciously. They found inside petitioner's bag one .38cal. revolver with two rounds of live ammunition, two live ammunitions for a .22-cal.
gun and a tear gas grenade. In upholding the legality of the search, the Court said that
to require the police officers to search the bag only after they had obtained a search
warrant might prove to be useless, futile and much too late under the circumstances. In
such a situation, it was reasonable for a police officer to stop a suspicious individual
briefly in order to determine his identity or to maintain the status quo while obtaining
more information, rather than to simply shrug his shoulders and allow a crime to occur.
In the case at hand, Patrolman Espiritu and his companions observed during their
surveillance that appellant had red eyes and was wobbling like a drunk along the
Caloocan City Cemetery, which according to police information was a popular hangout
of drug addicts. From his experience as a member of the Anti-Narcotics Unit of the
Caloocan City Police, such suspicious behavior was characteristic of drug addicts who
were "high." The policemen therefore had sufficient reason to stop petitioner to
investigate if he was actually high on drugs. During such investigation, they found
marijuana in petitioner's possession: 25
FISCAL RALAR:
21
This right, however, is not absolute. The recent case of People

vs. Lacerna enumerated five recognized exceptions to the rule against warrantless
search and seizure, viz.: "(1) search incidental to a lawful arrest, (2) search of moving
vehicles, (3) seizure in plain view, (4) customs search, and (5) waiver by the accused
themselves of their right against unreasonable search and seizure." 22 In People
vs. Encinada, 23 the Court further explained that "[i]n these cases, the search and seizure
may be made only with probable cause as the essential requirement. Although the term
eludes exact definition, probable cause for a search is, at best, defined as a reasonable
ground of suspicion, supported by circumstances sufficiently strong in themselves to
warrant a cautious man in the belief that the person accused is guilty of the offense
with which he is charged; or the existence of such facts and circumstances which could
lead a reasonably discreet and prudent man to believe that an offense has been
committed and that the item(s), article(s) or object(s) sought in connection with said
offense or subject to seizure and destruction by law is in the place to be searched."
Q And why were you conducting surveillance in front of the Caloocan Cemetery,
Sangandaan, Caloocan City?
A Because there were some informations that some drug dependents were roaming
around at A. Mabini Street in front of the Caloocan Cemetery, Caloocan City.
xxx xxx xxx
Q While you were conducting your surveillance, together with Pat. Angel Lumabas and
one Arnold Enriquez, what happened, if any?
A We chanced upon one male person there in front of the Caloocan Cemetery then
when we called his attention, he tried to avoid us, then prompting us to approach him
and introduce ourselves as police officers in a polite manner.
xxx xxx xxx
A He allowed me to examine that something in his hands, sir.
Q Could you describe to us the appearance of that person when you chanced upon him?
xxx xxx xxx
A That person seems like he is high on drug.
Q What was he holding?
Q How were you able to say Mr. Witness that that person that you chanced upon was
high on drug?
A He was holding his wallet and when we opened it, there was a marijuana (sic)
crushed residue.
A Because his eyes were red and he was walking on a swaying manner.
A In a polite manner, sir.
Furthermore, we concur with the Solicitor General's contention that petitioner

effectively waived the inadmissibility of any evidence illegally obtained when he failed
to raise this issue or to object thereto during the trial. A valid waiver of a right, more
particularly of the constitutional right against unreasonable search, requires the
concurrence of the following requirements: (1) the right to be waived existed; (2) the
person waiving it had knowledge, actual or constructive, thereof; and (3) he or she had
an actual intention to relinquish the right. 26Otherwise, the Courts will indulge every
reasonable presumption against waiver of fundamental safeguards and will not deduce
acquiescence from the failure to exercise this elementary right. In the present case,
however, petitioner is deemed to have waived such right for his failure to raise its
violation before the trial court. In petitions under Rule 45, as distinguished from an
ordinary appeal of criminal cases where the whole case is opened for review, the appeal
is generally limited to the errors assigned by petitioner. Issues not raised below cannot
be pleaded for the first time on appeal. 27
Q What did you say when you introduced yourselves?
Second Issue: Assessment of Evidence
A We asked him what he was holding in his hands, sir.
Petitioner also contends that the two arresting officers' testimony contained "polluted,
irreconcilable and unexplained" contradictions which did not support petitioner's
conviction.
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?
Q And what was the reaction of the person when you asked him what he was holding in
his hands?
A He tried to resist, sir.
Q When he tried to resist, what did you do?
A I requested him if I can see what was he was (sic) holding in his hands.
Q What was the answer of the person upon your request?
We disagree. Time and again, this Court has ruled that the trial court's assessment of
the credibility of witnesses, particularly when affirmed by the Court of Appeals as in
this case, is accorded great weight and respect, since it had the opportunity to observe
their demeanor and deportment as they testified before it. Unless substantial facts and
circumstances have been overlooked or misappreciated by the trial court which, if
considered, would materially affect the result of the case, we will not countenance a
departure from this rule. 28
We concur with Respondent Court's ruling:
(e)ven assuming as contended by appellant that there had been some inconsistencies in
the prosecution witnesses' testimonies, We do not find them substantial enough to
impair the essential veracity of their narration. In People vs. Avila, it was held that
"As long as the witnesses concur on the material points, slight differences in their
remembrance of the details, do not reflect on the essential veracity of their statements.
However, we find that, aside from the presumption of regularity in the performance of
duty, the bestowal of full credence on Pat. Espiritu's testimony is justified by tangible
evidence on record. Despite Pat. Lumabas' contradictory testimony, that of Espiritu is
supported by the Joint Affidavit 29 signed by both arresting policemen. The question of
whether the marijuana was found inside petitioner's wallet or inside a plastic bag is
immaterial, considering that petitioner did not deny possession of said substance.
Failure to present the wallet in evidence did not negate that marijuana was found in
petitioner's possession. This shows that such contradiction is minor and does not
destroy Espiritu's credibility.30
The Proper Penalty

The trial and the appellate courts overlooked the Indeterminate Sentence Law (Act No.
4103, as amended) by sentencing petitioner to a straight penalty of six years and one
day of imprisonment, aside from the imposed fine of six thousand pesos. This Act
requires the imposition of an indeterminate penalty:
Sec. 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised
Penal Code, or its amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be that which, in view of the
attending circumstances, could be properly imposed under the rules of the said Code,
and the minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is punished by any other law,
the court shall sentence the accused to an indeterminate sentence, the maximum term
of which shall not exceed the maximum fixed by said law and the minimum shall not be
less than the minimum term prescribed by the same. (As amended by Act No. 4225.)
Third Issue: Sufficiency of Evidence

The elements of illegal possession of marijuana are: (a) the accused is in possession of
an item or object which is identified to be a prohibited drug; (b) such possession is not
authorized by law; and (c) the accused freely and consciously possessed the said
drug. 31
The substance found in petitioner's possession was identified by NBI Forensic Chemist
Aida Pascual to be crushed marijuana leaves. Petitioner's lack of authority to possess
these leaves was established. His awareness thereof was undeniable, considering that
petitioner was high on drugs when stopped by the policemen and that he resisted when
asked to show and identify the thing he was holding. Such behavior clearly shows that
petitioner knew that he was holding marijuana and that it was prohibited by law.
Furthermore, like the trial and the appellate courts, we have not been given sufficient
grounds to believe the extortion angle in this case. Petitioner did not file any
administrative or criminal case against the arresting officers or present any evidence
other than his bare claim. His argument that he feared for his life was lame and
unbelievable, considering that he was released on bail and continued to be on bail as
early as April 26, 1988. 32Since then, he could have made the charge in relative safety,
as he was no longer in the custody of the police. His defense of frame-up, like alibi, is
viewed by this Court with disfavor, because it is easy to concoct and fabricate. 33
Sec. 2. This Act shall not apply to persons convicted of offenses punished with death
penalty or life-imprisonment; to those convicted of treason; to those convicted of
misprision of treason, rebellion, sedition or espionage; to those convicted of piracy; to
those who are habitual delinquents; to those who shall have escaped from confinement
or evaded sentence; to those who having been granted conditional pardon by the Chief
Executive shall have violated the terms thereof; to those whose maximum term of
imprisonment does not exceed one year, not to those already sentenced by final
judgment at the time of approval of this Act, except as provided in Section 5 hereof.
(Emphasis supplied)
The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the following
penalty for illegal possession of marijuana:
Sec. 8. . . . .
The penalty of imprisonment ranging from six years and one day to twelve years and a
fine ranging from six thousand to twelve thousand pesos shall be imposed upon any
person who, unless authorized by law, shall possess or use Indian hemp.
Prescinding from the foregoing, the Court holds that the proper penalty is an
indeterminate sentence of imprisonment ranging from six years and one day to twelve
years. 34
WHEREFORE, the assailed Decision and Resolution are hereby AFFIRMED with
MODIFICATION. Petitioner is sentenced to suffer IMPRISONMENT of SIX (6)
YEARS, as minimum, to TWELVE (12) YEARS, as maximum, and to PAY a FINE of
SIX THOUSAND PESOS. Costs against petitioner.
SO ORDERED.
________________
EN BANC
G.R. No. 123595 December 12, 1997

SAMMY MALACAT y MANDAR, petitioner,
vs.
COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents.
DAVIDE, JR., J.:
In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748 before the
Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar
was charged with violating Section 3 of Presidential Decree No. 1866, 2 as follows:
That on or about August 27, 1990, in the City of Manila, Philippines, the said accused
did then and there willfully, unlawfully and knowingly keep, possess and/or acquire a
hand grenade, without first securing the necessary license and/or permit therefor from
the proper authorities.
At arraignment 3 on 9 October 1990, petitioner, assisted by counsel de oficio, entered a
plea of not guilty.
At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A1," and "A-2," 4 while the prosecution admitted that the police authorities were not
armed with a search warrant nor warrant of arrest at the time they arrested petitioner. 5
At trial on the merits, the prosecution presented the following police officers as its
witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the investigating
officer; and Orlando Ramilo, who examined the grenade.
Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated
National Police, Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990,
at about 6:30 p.m., in response to bomb threats reported seven days earlier, he was on
foot patrol with three other police officers (all of them in uniform) along Quezon
Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They
chanced upon two groups of Muslim-looking men, with each group, comprised of three
to four men, posted at opposite sides of the corner of Quezon Boulevard near the
Mercury Drug Store. These men were acting suspiciously with "[t]heir eyes. . . moving
very fast." 6
Yu and his companions positioned themselves at strategic points and observed both
groups for about thirty minutes. The police officers then approached one group of men,
who then fled in different directions. As the policemen gave chase, Yu caught up with
and apprehended petitioner. Upon searching petitioner, Yu found a fragmentation
grenade tucked inside petitioner's "front waist line." 7 Yu's companion, police officer
Rogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was
recovered. Petitioner and Casan were then brought to Police Station No. 3 where Yu
placed an "X" mark at the bottom of the grenade and thereafter gave it to his
commander. 8
On cross-examination, Yu declared that they conducted the foot patrol due to a report
that a group of Muslims was going to explode a grenade somewhere in the vicinity of
Plaza Miranda. Yu recognized petitioner as the previous Saturday, 25 August 1990,
likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to detonate a
grenade. The attempt was aborted when Yu and other policemen chased petitioner and
his companions; however, the former were unable to catch any of the latter. Yu further
admitted that petitioner and Casan were merely standing on the corner of Quezon
Boulevard when Yu saw them on 27 August 1990. Although they were not creating a
commotion, since they were supposedly acting suspiciously, Yu and his companions
approached them. Yu did not issue any receipt for the grenade he allegedly recovered
from petitioner. 9
Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a
certain Abdul Casan were brought in by Sgt. Saquilla 10 for investigation. Forthwith,
Serapio conducted the inquest of the two suspects, informing them of their rights to
remain silent and to be assisted by competent and independent counsel. Despite
Serapio's advice, petitioner and Casan manifested their willingness to answer questions
even without the assistance of a lawyer. Serapio then took petitioner's uncounselled
confession (Exh. "E"), there being no PAO lawyer available, wherein petitioner
admitted possession of the grenade. Thereafter, Serapio prepared the affidavit of arrest
and booking sheet of petitioner and Casan. Later, Serapio turned over the grenade to
the Intelligence and Special Action Division (ISAD) of the Explosive Ordinance
Disposal Unit for examination. 11
On cross-examination, Serapio admitted that he took petitioner's confession knowing it
was inadmissible in evidence. 12
Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties
included, among other things, the examination of explosive devices, testified that on 22
March 1991, he received a request dated 19 March 1991 from Lt. Eduardo Cabrera and
PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed an orange tag
on the subject grenade detailing his name, the date and time he received the specimen.
During the preliminary examination of the grenade, he "[f]ound that [the] major
components consisting of [a] high filler and fuse assembly [were] all present," and
concluded that the grenade was "[l]ive and capable of exploding." On even date, he
issued a certification stating his findings, a copy of which he forwarded to Diotoy on
11 August 1991. 13
Petitioner was the lone defense witness. He declared that he arrived in Manila on 22
July 1990 and resided at the Muslim Center in Quiapo, Manila. At around 6:30 in the
evening of 27 August 1990, he went to Plaza Miranda to catch a breath of fresh air.
Shortly after, several policemen arrived and ordered all males to stand aside. The
policemen searched petitioner and two other men, but found nothing in their
possession. However, he was arrested with two others, brought to and detained at
Precinct No. 3, where he was accused of having shot a police officer. The officer
showed the gunshot wounds he allegedly sustained and shouted at petitioner "[i]to ang
tama mo sa akin." This officer then inserted the muzzle of his gun into petitioner's
mouth and said, "[y]ou are the one who shot me." Petitioner denied the charges and
explained that he only recently arrived in Manila. However, several other police
officers mauled him, hitting him with benches and guns. Petitioner was once again
searched, but nothing was found on him. He saw the grenade only in court when it was
presented. 14
quo momentarily
while
the
police
officer
seeks
to
obtain
more
information." 15 Probable cause was not required as it was not certain that a crime had
been committed, however, the situation called for an investigation, hence to require
probable cause would have been "premature." 16 The RTC emphasized that Yu and his
companions were "[c]onfronted with an emergency, in which the delay necessary to
obtain a warrant, threatens the destruction of evidence" 17and the officers "[h]ad to act
in haste," as petitioner and his companions were acting suspiciously, considering the
time, place and "reported cases of bombing." Further, petitioner's group suddenly ran
away in different directions as they saw the arresting officers approach, thus "[i]t is
reasonable for an officer to conduct a limited search, the purpose of which is not
necessarily to discover evidence of a crime, but to allow the officer to pursue his
investigation without fear of violence." 18
The trial court then ruled that the seizure of the grenade from petitioner was incidental
to a lawful arrest, and since petitioner "[l]ater voluntarily admitted such fact to the
police investigator for the purpose of bombing the Mercury Drug Store," concluded
that sufficient evidence existed to establish petitioner's guilt beyond reasonable doubt.
In its decision 19 dated 10 February 1994 but promulgated on 15 February 1994, the
trial court thus found petitioner guilty of the crime of illegal possession of explosives
under Section 3 of P.D. No. 186, and sentenced him to suffer:
[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND
ONE (1) DAY OFRECLUSION TEMPORAL, as minimum, and not more than THIRTY
(30) YEARS OF RECLUSION PERPETUA, as maximum.
On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was
appealing to this Court. However, the record of the case was forwarded to the Court of
Appeals which docketed it as CA-G.R. CR No. 15988 and issued a notice to file
briefs. 21
In his Appellant's Brief 22 filed with the Court of Appeals, petitioner asserted that:
1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE
PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED
HANDGRENADE FROM HIM "WAS AN APPROPRIATE INCIDENT TO HIS
ARREST."
The trial court ruled that the warrantless search and seizure of petitioner was akin to it
a "stop and frisk," where a "warrant and seizure can be effected without necessarily
being preceded by an arrest" and "whose object is either to maintain the status
2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST

ACCUSED-APPELLANT THE HANDGRENADE ALLEGEDLY SEIZED FROM
HIM AS IT WAS A PRODUCT OF AN UNREASONABLE AND ILLEGAL
SEARCH.
In sum, petitioner argued that the warrantless arrest was invalid due to absence of any
of the conditions provided for in Section 5 of Rule 113 of the Rules of Court,
citing People vs. Mengote. 23 As such, the search was illegal, and the hand grenade
seized, inadmissible in evidence.
In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial
court and prayed that its decision be affirmed in toto. 24
In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial court,
noting, first, that petitioner abandoned his original theory before the court a quo that
the grenade was "planted" by the police officers; and second, the factual finding of the
trial court that the grenade was seized from petitioner's possession was not raised as an
issue. Further, respondent court focused on the admissibility in evidence of Exhibit
"D," the hand grenade seized from petitioner. Meeting the issue squarely, the Court of
Appeals ruled that the arrest was lawful on the ground that there was probable cause
for the arrest as petitioner was "attempting to commit an offense," thus:
We are at a loss to understand how a man, who was in possession of a live grenade and
in the company of other suspicious character[s] with unlicensed firearm[s] lurking in
Plaza Miranda at a time when political tension ha[d] been enkindling a series of
terroristic activities, [can] claim that he was not attempting to commit an offense. We
need not mention that Plaza Miranda is historically notorious for being a favorite bomb
site especially during times of political upheaval. As the mere possession of an
unlicensed grenade is by itself an offense, Malacat's posture is simply too preposterous
to inspire belief.
In so doing, the Court of Appeals took into account petitioner's failure to rebut the
testimony of the prosecution witnesses that they received intelligence reports of a
bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner two days prior to
the latter's arrest, or on 27 August 1990; and that petitioner and his companions acted
suspiciously, the "accumulation" of which was more than sufficient to convince a
reasonable man that an offense was about to be committed. Moreover, the Court of
Appeals observed:
The police officers in such a volatile situation would be guilty of gross negligence and
dereliction of duty, not to mention of gross incompetence, if they [would] first wait for
Malacat to hurl the grenade, and kill several innocent persons while maiming numerous
others, before arriving at what would then be an assured but moot conclusion that there
was indeed probable cause for an arrest. We are in agreement with the lower court in
saying that the probable cause in such a situation should not be the kind of proof
necessary to convict, but rather the practical considerations of everyday life on which a
reasonable and prudent mind, and not legal technicians, will ordinarily act.
Finally, the Court of Appeals held that the rule laid down in People
v. Mengote, 26 which petitioner relied upon, was inapplicable in light of "[c]rucial
differences," to wit:
[In Mengote] the police officers never received any intelligence report that someone
[at] the corner of a busy street [would] be in possession of a prohibited article. Here the
police officers were responding to a [sic] public clamor to put a check on the series of
terroristic bombings in the Metropolis, and, after receiving intelligence reports about a
bomb threat aimed at the vicinity of the historically notorious Plaza Miranda, they
conducted foot patrols for about seven days to observe suspicious movements in the
area. Furthermore, in Mengote, the police officers [had] no personal knowledge that the
person arrested has committed, is actually committing, or is attempting to commit an
offense. Here, PO3 Yu [had] personal knowledge of the fact that he chased Malacat in
Plaza Miranda two days before he finally succeeded in apprehending him.
Unable to accept his conviction, petitioner forthwith filed the instant petition and
assigns the following errors:
1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE
TRIAL COURT THAT THE WARRANTIES ARREST OF PETITIONER WAS
VALID AND LEGAL.
2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING
IN PEOPLE VS.MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT
CASE.
In support thereof, petitioner merely restates his arguments below regarding the
validity of the warrantless arrest and search, then disagrees with the finding of the
Court of Appeals that he was "attempting to commit a crime," as the evidence for the
prosecution merely disclosed that he was "standing at the corner of Plaza Miranda and
Quezon Boulevard" with his eyes "moving very fast" and "looking at every person that
come (sic) nearer (sic) to them." Finally, petitioner points out the factual similarities
between his case and that ofPeople v. Mengote to demonstrate that the Court of
Appeals miscomprehended the latter.
In its Comment, the Office of the Solicitor General prays that we affirm the challenged
decision..
We then set aside the decision of the Court of Appeals for having been rendered
without jurisdiction, and consider the appeal as having been directly brought to us, with
the petition for review as petitioner's Brief for the Appellant, the comment thereon by
the Office of the Solicitor General as the Brief for the Appellee and the memoranda of
the parties as their Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves convinced that the
prosecution failed to establish petitioner's guilt with moral certainty.
For being impressed with merit, we resolved to give due course to the petition.
The challenged decision must immediately fall on jurisdictional grounds. To repeat, the
penalty imposed by the trial court was:
[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY
OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS
OF RECLUSION PERPETUA, as maximum.
The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall
unlawfully possess grenades is reclusion temporal in its maximum period to reclusion
perpetua.
For purposes of determining appellate jurisdiction in criminal cases, the maximum of
the penalty, and not the minimum, is taken into account. Since the maximum of the
penalty is reclusion perpetua, the appeal therefrom should have been to us, and not the
Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of 1980
(B.P. Blg. 129), 27 in relation to Section 17 of the Judiciary Act of 1948, 28 Section 5(2)
of Article VIII of the Constitution 29 and Section 3(c) of Rule 122 of the Rules of
Court. 30 The term "life imprisonment" as used in Section 9 of B.P. Blg. 129, the
Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to include reclusion
perpetua in view of Section 5(2) of Article VIII of the Constitution.
Petitioner's Notice of Appeal indicated that he was appealing from the trial court's
decision to this Court, yet the trial court transmitted the record to the Court of Appeals
and the latter proceeded to resolve the appeal.
First, serious doubt surrounds the story of police officer Yu that a grenade was found in
and seized from petitioner's possession. Notably, Yu did not identify, in court, the
grenade he allegedly seized. According to him, he turned it over to his commander
after putting an "X" mark at its bottom; however, the commander was not presented to
corroborate this claim. On the other hand, the grenade presented in court and identified
by police officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera
and police officer Diotoy not immediately after petitioner's arrest, but nearly seven (7)
months later, or on 19 March 1991; further, there was no evidence whatsoever that
what Ramilo received was the very same grenade seized from petitioner. In his
testimony, Yu never declared that the grenade passed on to Ramilo was the grenade the
former confiscated from petitioner. Yu did not, and was not made to, identify the
grenade examined by Ramilo, and the latter did not claim that the grenade he examined
was that seized from petitioner. Plainly, the law enforcement authorities failed to
safeguard and preserve the chain of evidence so crucial in cases such as these.
Second, if indeed petitioner had a grenade with him, and that two days earlier he was
with a group about to detonate an explosive at Plaza Miranda, and Yu and his fellow
officers chased, but failed to arrest them, then considering that Yu and his three fellow
officers were in uniform and therefore easily cognizable as police officers, it was then
unnatural and against common experience that petitioner simply stood there in
proximity to the police officers. Note that Yu observed petitioner for thirty minutes and
must have been close enough to petitioner in order to discern petitioner's eyes "moving
very fast."
Finally, even assuming that petitioner admitted possession of the grenade during his
custodial investigation by police officer Serapio, such admission was inadmissible in
evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of
the Constitution, which provide as follows:
Sec. 12 (1). Any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall
be inadmissible in evidence against him.
Serapio conducted the custodial investigation on petitioner the day following his arrest.
No lawyer was present and Serapio could not have requested a lawyer to assist
petitioner as no PAO lawyer was then available. Thus, even if petitioner consented to
the investigation and waived his rights to remain silent and to counsel, the waiver was
invalid as it was not in writing, neither was it executed in the presence of counsel.
Even granting ex gratia that petitioner was in possession of a grenade, the arrest and
search of petitioner were invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a warrant is needed in
order to validly effect the same. 31 The Constitutional prohibition against unreasonable
arrests, searches and seizures refers to those effected without a validly issued
warrant, 32 subject to certain exceptions. As regards valid warrantless arrests, these are
found in Section 5, Rule 113 of the Rules of Court, which reads, in part:
Sec. 5. Arrest, without warrant; when lawful A peace officer or a private person
(c) When the person to be arrested is a prisoner who has escaped . . .
A warrantless arrest under the circumstances contemplated under Section 5(a) has been
denominated as one "in flagrante delicto," while that under Section 5(b) has been
described as a "hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the following: (1) customs
searches; (2) search of moving vehicles; (3) seizure of evidence in plain view; (4)
consent searches; 33 (5) a search incidental to a lawful arrest; 34and (6) a "stop and
frisk." 35
In the instant petition, the trial court validated the warrantless search as a "stop and
frisk" with "the seizure of the grenade from the accused [as an appropriate incident to
his arrest," hence necessitating a brief discussion on the nature of these exceptions to
the warrant requirement.
At the outset, we note that the trial court confused the concepts of a "stop-and-frisk"
and of a search incidental to a lawful arrest. These two types of warrantless searches
differ in terms of the requisite quantum of proof before they may be validly effected
and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity
of the incidental search, the legality of the arrest is questioned in a large majority of
these cases, e.g., whether an arrest was merely used as a pretext for conducting a
search. 36 In this instance, the law requires that there first be a lawful arrest before a
search can be made the process cannot be reversed. 37 At bottom, assuming a valid
arrest, the arresting officer may search the person of the arrestee and the area within
which the latter may reach for a weapon or for evidence to destroy, and seize any
money or property found which was used in the commission of the crime, or the fruit
of the crime, or that which may be used as evidence, or which might furnish the
arrestee with the means of escaping or committing violence. 38
Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding
the search in light of the lack of personal knowledge on the part of Yu, the arresting
officer, or an overt physical act, on the part of petitioner, indicating that a crime had
just been committed, was being committed or was going to be committed.
Having thus shown the invalidity of the warrantless arrest in this case, plainly, the
search conducted on petitioner could not have been one incidental to a lawful arrest.
We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a

"limited protective search of outer clothing for weapons," as laid down in Terry, thus:
We merely hold today that where a police officer observes unusual conduct which leads
him reasonably to conclude in light of his experience that criminal activity may be
afoot and that the persons with whom he is dealing may be armed and presently
dangerous, where in the course of investigating this behavior he identifies himself as a
policeman and makes reasonable inquiries, and where nothing in the initial stages of
the encounter serves to dispel his reasonable fear for his own or others' safety, he is
entitled for the protection of himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons in an attempt to discover weapons
which might be used to assault him. Such a search is a reasonable search under the
Fourth Amendment . . . 39
Second, there was nothing in petitioner's behavior or conduct which could have
reasonably elicited even mere suspicion other than that his eyes were "moving very
fast" an observation which leaves us incredulous since Yu and his teammates were
nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner
and his companions were merely standing at the corner and were not creating any
commotion or trouble, as Yu explicitly declared on cross-examination:
Q And what were they doing?
A They were merely standing.
Q You are sure of that?
A Yes, sir.
Other notable points of Terry are that while probable cause is not required to conduct a
"stop and frisk," 40it nevertheless holds that mere suspicion or a hunch will not validate
a "stop and frisk." A genuine reason must exist, in light of the police officer's
experience and surrounding conditions, to warrant the belief that the person detained
has weapons concealed about him. 41 Finally, a "stop-and-frisk" serves a two-fold
interest: (1) the general interest of effective crime prevention and detection, which
underlies the recognition that a police officer may, under appropriate circumstances and
in an appropriate manner, approach a person for purposes of investigating possible
criminal behavior even without probable cause; and (2) the more pressing interest of
safety and self-preservation which permit the police officer to take steps to assure
himself that the person with whom he deals is not armed with a deadly weapon that
could unexpectedly and fatally be used against the police officer.
Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid:
First, we harbor grave doubts as to Yu's claim that petitioner was a member of the
group which attempted to bomb Plaza Miranda two days earlier. This claim is neither
supported by any police report or record nor corroborated by any other police officer
who allegedly chased that group. Aside from impairing Yu's credibility as a witness,
this likewise diminishes the probability that a genuine reason existed so as to arrest and
search petitioner. If only to further tarnish the credibility of Yu's testimony, contrary to
his claim that petitioner and his companions had to be chased before being
apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon
arrival of five (5) other police officers, petitioner and his companions were
"immediately collared."
Q And when you saw them standing, there were nothing or they did not create any
commotion.
A None, sir.
Q Neither did you see them create commotion?
A None, sir. 42
Third, there was at all no ground, probable or otherwise, to believe that petitioner was
armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged
grenade was "discovered" "inside the front waistline" of petitioner, and from all
indications as to the distance between Yu and petitioner, any telltale bulge, assuming
that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact,
as noted by the trial court:
When the policemen approached the accused and his companions, they were not yet
aware that a handgrenade was tucked inside his waistline. They did not see any bulging
object in [sic] his person.43
What is unequivocal then in this case are blatant violations of petitioner's rights
solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution.
WHEREFORE, the challenged decision of the Seventeenth Division of the Court of

Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part
of said Court and, on ground of reasonable doubt, the decision of 10 February 1994 of
Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner SAMMY
MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately
released from detention, unless his further detention is justified for any other lawful
cause.
Costs de oficio.
SO ORDERED.
__________________
THIRD DIVISION
G.R. No. 96177 January 27, 1993
PEOPLE
OF
THE
vs.
MARI MUSA y HANTATALU, accused-appellant.
ROMERO, J.:
The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated
August 31, 1990, 1 of the Regional Trial Court (RTC) of Zamboanga City, Branch XII,
finding him guilty of selling marijuana in violation of Article II, Section 4 of 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
of
this
Honorable
Court,
the
above-named accused, not being authorized by law, did then and there, wilfully,
unlawfully and feloniously sell to one SGT. AMADO ANI, two (2) wrappers
containing dried marijuana leaves, knowing the 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 the buy-bust operation; and (3) Athena Elisa P. Anderson, the
Document Examiner and Forensic Chemist of PC-INP Crime Laboratory of Regional
Command (RECOM) 9. The evidence of the prosecution was summarized by the trial
court as follows:
Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus
Belarga, leader of a NARCOTICS 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 City. Information received from civilian
informer was that this Mari Musa was engaged in selling marijuana in said place. So
Sgt. Amado Ani, another NARCOM agent, proceeded to Suterville, in company with a
NARCOM civilian informer, to the house of Mari Musa to which house the civilian
informer had guided him. The same civilian informer had also described to him the
appearance of Mari Musa. Amado Ani was able to buy one newspaper-wrapped dried
marijuana (Exh. "E") for P10.00. Sgt. Ani returned to the NARCOM office and turned
over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga 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 was assigned as the poseur buyer for which purpose he was given P20.00
(with
SN
GA955883)
by
Belarga.
The
buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali
Mihasun, Chief of Investigation Section, and for which Belarga signed a receipt (Exh.
"L" & "L-l" ) The team under Sgt. Foncargas was assigned as back-up security. A prearranged signal was arranged consisting of Sgt. Ani's raising his right hand, after he
had succeeded to buy the marijuana. The two NARCOM teams proceeded to 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.
Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest
of the NARCOM group 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. Ani approached Mari Musa, who came out
of his house, and asked Ani what he wanted. Ani said he wanted some more stuff. Ani
gave Mari Musa the P20.00 marked money. After receiving the money, Mari Musa
went back to his house and came back and gave Amado Ani two newspaper wrappers
containing dried marijuana. 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 teams, riding the two civilian vehicles,
sped towards Sgt. Ani. Ani joined Belarga's team and returned to the house.
At the time Sgt. Ani first approached Mari Musa, there were four persons inside his
house: Mari Musa, another boy, and two women, one of whom Ani and Belarga later
came to know to be Mari Musa's wife. The second time, Ani with the NARCOM team
returned to Mari Musa's house, the woman, who was later known as Mari Musa's wife,
slipped away from the house. Sgt. Belarga frisked Mari Musa but could not find the
P20.00 marked money with him. Mari Musa was then asked where the P20.00 was and
he told the NARCOM team he has given the money to his wife (who had slipped
away). Sgt. Belarga also found a plastic bag containing dried marijuana inside it
somewhere in the kitchen. Mari Musa was then placed under arrest and brought to the
NARCOM office. At Suterville, Sgt. Ani turned over to Sgt. Belarga the two
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 true name Mari Musa. T/Sgt. Jesus Belarga turned over the two
newspaper-wrapped marijuana (bought at the buy-bust), the one newspaper-wrapped
marijuana (bought at the test-buy) and the plastic bag containing more marijuana
(which had been taken by Sgt. Lego inside the kitchen of Mari Musa) to the PC Crime
Laboratory, Zamboanga City, for laboratory examination. The turnover of the
marijuana specimen 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 the marijuana specimens subjecting the same to her three tests. All submitted
specimens she examined gave positive results for the presence of marijuana. Mrs.
Anderson reported the results of her examination in her 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 the
buy-bust on December 14, 1989, through her initial and the weight of each specimen
written with red ink on each wrapper (Exhs. "C-1" and "D-1"). She also identified the
one newspaper-wrapped marijuana bought at the test-buy on December 13, 1989,
through her markings (Exh. "E-1"). Mrs. Anderson also identified 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 also identified the receipt of the P20 marked money
(with SN GA955883) (Exh. "L"), dated December 14, 1989, and his signature thereon
(Exh.
"L-1"). He also identified the letter-request, dated December 14, 1989, addressed to the
PC Crime Laboratory (Exh. "B") and his signature thereon (Exh. "B-2") and the stamp
of the PC Crime Laboratory marked "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, his wife. 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
Suterville, Zamboanga City. With him were his wife, Ahara Musa, known as Ara, his
one-year old child, a woman manicurist, and a male cousin named Abdul Musa. About
1:30 that afternoon, while he was being manicured at one hand, his wife was inside the
one room of their house, putting their child to sleep. Three NARCOM agents, who
introduced themselves as NARCOM agents, dressed in civilian clothes, got inside Mari
Musa's house whose door was open. The NARCOM agents did not ask permission to
enter the house but simply announced that they were NARCOM agents. The
NARCOM agents searched Mari Musa's house and Mari Musa asked them if they had
a search warrant. The NARCOM agents were just silent. The NARCOM agents found a
red plastic bag whose contents, Mari Musa said, he did not know. He also did not know
if the plastic bag belonged to his brother, Faisal, who was living with him, or his father,
who was living in another house about ten arms-length away. Mari Musa, then, was
handcuffed and when Mari Musa asked why, the NARCOM agents told him for
clarification.
Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at
Calarian, Zamboanga City. Inside the NARCOM Office, Mari Musa was investigated
by one NARCOM agent which investigation was reduced into writing. The writing or
document was interpreted to Mari Musa in Tagalog. The document stated that the
marijuana belonged to Mari Musa and Mari Musa was asked to sign it. But Mari Musa
refused to sign because the marijuana did not belong to him. Mari Musa said he was
not told that he was entitled to the assistance of counsel, although he himself told the
NARCOM agents he wanted to be assisted by counsel.
Mari Musa said four bullets were then placed between the fingers of his right hand and
his fingers were pressed which felt very painful. The NARCOM agents boxed him and
Mari Musa lost consciousness. While Mari Musa was maltreated, he said his wife was
outside the NARCOM building. The very day he was arrested (on cross-examination
Mari Musa said it was on the next day), Mari Musa was brought to the Fiscal's Office
by three NARCOM agents. The fiscal asked him if the marijuana was owned by him
and he said "not." After that single question, Mari Musa was brought to the City Jail.
Mari Musa said he did not tell the fiscal that he had been maltreated by the NARCOM
agents because he was afraid he might be maltreated in the fiscal's office.
Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of
marijuana to them; that he had received from them a P20.00 bill which he had given to
his wife. He did not sell marijuana because he was afraid that was against the law and
that the person selling marijuana was caught by the authorities; and he had a wife and a
very small child to support. Mari Musa said he had not been arrested for selling
marijuana before. 5
After trial, the trial court rendered the assailed decision with the following disposition:
WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable
doubt of selling marijuana and pursuant to Sec. 4, Art II of Rep. Act No. 6425, he is
sentenced to life imprisonment and to pay the fine of P20,000.00, the latter imposed
without subsidiary imprisonment. 6
In this appeal, the appellant contends that his guilt was not proved beyond reasonable
doubt and impugns the credibility of the prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible
because: (1) prior to the buy-bust operation, neither Sgt. Ani nor the other NARCOM
agents were personally known by the appellant or vice-versa; and (2) there was no
witness to the alleged giving of the two wrappers of marijuana by the appellant to Sgt.
Ani.
Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga,
he conducted a test-buy operation on the appellant whereby he bought one wrapper of
marijuana for P15.00 from the latter. 7 He reported the successful operation to T/Sgt.
Belarga on the same day. 8 Whereupon, T/Sgt. Belarga conducted a conference to
organize a buy-bust operation for the following day. 9
On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed
by T/Sgt. Belarga and a certain Sgt. Foncardas went to the place of operation, which
was the appellant's house located in Laquian Compound, Suterville, Zamboanga City.
Sgt. Ani was with the team of T/Sgt. Belarga, whose other members were Sgts. Lego
and Biong. 10 Sgt. Ani was given a marked P20.00 bill by T/Sgt. Belarga, which was to
be used in the operation.
Upon reaching the place, the NARCOM agents positioned themselves at strategic
places. 11 Sgt. Ani approached the house. Outside the house, the appellant asked Sgt.
Ani what he wanted. Sgt. Ani asked him for some more marijuana. 12 Sgt. Ani gave him
the marked P20.00 bill and the appellant went inside the house and brought back two
paper wrappers containing marijuana which he handed to Sgt. Ani. 13 From his position,
Sgt. Ani could see that there were other people in the house. 14
After the exchange, Sgt. Ani approached the other NARCOM agents and made the prearranged signal of raising his right hand. 15 The NARCOM agents, accompanied by Sgt.
Ani, went inside the house and made the arrest. The agents searched the appellant and
unable to find the marked money, they asked him where it was. The appellant said that
he gave 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, which resulted 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 without merit. The day before the
buy-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 marijuana to Sgt.
Ani the following day, during the buy-bust operation. Moreover, the Court has held that
what matters is not an existing familiarity between the buyer and the seller, for quite
often, the parties to the transaction may be strangers, but their 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 sell marijuana while his wife, cousin and manicurist
were present. But the place of the commission of the crime of selling prohibited drugs
has been held to be not crucial 18 and the presence of other people apart from the buyer
and seller will not necessarily prevent the consummation of the illegal sale. As the
Court observed in People v. Paco, 19 these factors may sometimes camouflage the
commission of the crime. In the instant case, the fact that the other people inside the
appellant's house are known to the appellant may have given him some assurance that
these people will not report him to the authorities.
The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of
T/Sgt. Belarga. The appellant submits that since T/Sgt. Belarga admitted that he was
about 90 meters away from Sgt. Ani and the appellant, he could not 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 marijuana cigarette from ordinary ones by the type of
rolling done on the cigarette sticks. And since T/Sgt. Belarga allegedly did not see the
sale, the appellant contends that the uncorroborated testimony of Sgt. Ani can not stand
as basis for his conviction.
People v. Ale does not apply here because the policeman in that case testified that he
and his companion were certain that the appellant therein handed marijuana cigarettes
to the poseur-buyer based on the appearance of the cigarette sticks. The Court rejected
this claim, stating that:
This Court cannot give full credit to the testimonies of the prosecution witnesses
marked as they are with contradictions and tainted with inaccuracies.
Bian testified that they were able to tell that the four cigarettes were marijuana
cigarettes because according 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/Sgt. Belarga'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)?
A Yes, ma'am.
Q Could you please tell us?
A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt. Biong were
boarded, I saw that Sgt. Ani proceeded to the house near the road and he was met by
one 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 Musa
and 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 appellant was marijuana because of the distance, his testimony,
nevertheless, corroborated the direct evidence, which the Court earlier ruled to be
convincing, presented by Sgt. Ani on the following material points: (1) T/Sgt. Belarga
instructed Sgt. Ani to conduct a surveillance and test-buy operation on the appellant at
Suterville, Zamboanga City on December 13, 1989; 23 (2) later that same day, Sgt. Ani
went back to their office and reported a successful operation and turned over to T/Sgt.
Belarga one wrapper of marijuana; 24 (3) T/Sgt. Belarga then organized a team to
conduct a buy-bust operation the following 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 buybust operation; 27 (6) upon the arrival of the NARCOM agents in Suterville,
Zamboanga City, Sgt. Ani proceeded to the house of the appellant while some agents
stayed in the vehicles and others positioned themselves in strategic places; 28 the
appellant 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 Court has ruled that the fact that the police officers who
accompanied the poseur-buyer were unable to see exactly what the appellant gave the
poseur-buyer because of their distance or position will not be fatal to the prosecution's
case 30 provided there exists other evidence, direct or circumstantial, e.g., the testimony
of the poseur-buyer, which is sufficient to prove the 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 the NARCOM agents found in the appellant's kitchen. It
appears that after Sgt. Ani gave the pre-arranged signal to the other NARCOM agents,
the latter moved in and arrested the appellant inside the house. They searched him to
retrieve the marked money but didn't find it. Upon being questioned, the appellant said
that he gave the marked money to his wife. 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 contents but failing to get a response, they opened it and found dried marijuana
leaves. At the trial, the appellant questioned the admissibility of the plastic bag and the
marijuana it contains but the trial court issued an Order ruling that these are admissible
in evidence. 33
Built into the Constitution are guarantees on the freedom of every individual against
unreasonable searches and seizures by providing in Article III, Section 2, the
following:
The right of the people to be secure in their persons, houses, papers, and effects against
affirmation of the complainant and the witness he may produce, and particularly
Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v.
Diokno, 34 declares inadmissible, any 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 rule are recognized. Thus, in Alvero v. Dizon, 36 the Court
stated that. "[t]he most important exception to the necessity for a search warrant is the
right of search and seizure as an incident to a lawful arrest." 37
Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search
and seizure incident to a lawful arrest, thus:
Sec. 12. Search incident to lawful arrest. A person lawfully arrested may be
searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant.
There is no doubt that the warrantless search incidental to a lawful arrest authorizes the
arresting officer to make a search upon the person of the person arrested. As early as
1909, the Court has ruled that "[a]n officer making an arrest may take from the person
arrested any money or property found upon his person which was used in the
commission of the crime or was the fruit of the crime or which might furnish the
prisoner
with
the
means
of
committing
violence or of escaping, or which may be used as evidence in the trial of the cause . . .
" 38 Hence, in a buy-bust operation conducted to entrap a drug-pusher, the law

enforcement agents may seize the marked money found on the person
of 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 found nothing. 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 one arrested 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 husband was selling marijuana from his apartment,
obtained from the building manager a passkey to defendants' apartment, and entered it.
There they found the defendant husband in the living room. The defendant wife
emerged from the kitchen, and one of the officers, after identifying himself, observed
through the open doorway of the kitchen, a small scale atop the kitchen sink, upon
which lay a brick-shaped package containing green leafy substance which he
recognized as marijuana. The package of marijuana was used as evidence in
prosecuting defendants for violation of the Narcotic Law. The admissibility of the
package was challenged before the U.S. Supreme Court, which held, after observing
that it was not unreasonable for the officer to walk to the doorway of the adjacent
kitchen on seeing the defendant wife emerge therefrom, that "the discovery of the brick
of marijuana did not constitute a search, since the officer merely saw what was placed
before him in full view. 43The U.S. Supreme Court ruled that the warrantless seizure of
the marijuana was legal on the 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 to extend a general exploratory search made solely to find
evidence of defendant's guilt. The "plain view" doctrine is usually applied where a
police officer is not searching for evidence against the accused, but nonetheless
inadvertently comes across an incriminating object. 45 Furthermore, the U.S. Supreme
Court stated the following limitations on the application of the doctrine:
What the "plain view" cases have in common is that the police officer in each of them
had a prior justification for an intrusion in the course of which he came inadvertently
across a piece of evidence incriminating the accused. The doctrine serves to
supplement the prior justification whether it be a warrant for another object, hot
pursuit, search incident to lawful arrest, or some other legitimate reason for being
present unconnected with a search directed against the accused and permits the
warrantless seizure. Of course, the extension of the original justification is legitimate
only where it is immediately apparent to the police that they have evidence before
them; the "plain view" doctrine may not be used to extend a general exploratory search
from one object to another until something incriminating at last emerges. 46
It has also been suggested that even if an object is observed in "plain view," the "plain
view" doctrine will not justify the seizure of the object where the incriminating nature
of the object is not apparent from the "plain view" of the object. 47 Stated differently, it
must be immediately apparent to the police that the items that they observe may be
evidence of a crime, contraband, or otherwise subject to seizure.
We, therefore, hold that under the circumstances of the case, the "plain view" doctrine
does not apply and the marijuana contained 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 pieces of 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 two wrappings of marijuana sold by the appellant to Sgt. Ani, among
other pieces of evidence, the guilt of the appellant of the crime charged has been
proved beyond reasonable doubt.
WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial
Court AFFIRMED.
SO ORDERED.
In the instant case, the appellant was arrested and his person searched in the living
room. Failing to retrieve the marked money which they hoped to find, the NARCOM
agents searched the whole house and found the plastic bag in the kitchen. The plastic
bag was, therefore, not within their "plain view" when they arrested the appellant as to
justify its seizure. The NARCOM agents had to move from one portion of the house to
another before they sighted the plastic bag. Unlike Ker vs. California, where the police
officer had reason to walk to the doorway of the adjacent kitchen and from which
position he saw the marijuana, the NARCOM agents in this case went from room to
room with the obvious intention of fishing for more evidence.
_____________
Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the
kitchen, they had no clue as to its contents. They had to ask the appellant what the bag
contained. When the appellant refused to respond, they opened it and found the
marijuana. Unlike Ker v. California, where the marijuana was visible to the police
officer's eyes, the NARCOM agents in this case could not have discovered the
inculpatory nature of the contents of the bag had they not forcibly opened it. Even
assuming then, that the NARCOM agents inadvertently came across the plastic bag
because it was within their "plain view," what may be said to be the object in their
"plain view" was just the plastic bag and not the marijuana. The incriminating nature of
the contents of the plastic bag was not immediately apparent from the "plain view" of
said object. It cannot be claimed that the plastic bag clearly betrayed its contents,
whether by its distinctive configuration, its transprarency, or otherwise, that its contents
are obvious to an observer. 48
SECOND DIVISION
G.R. No. 133254-55
April 19, 2001
THE
PEOPLE
OF
THE
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, finding accused-appellant Roberto Salanguit y Ko
guilty of violation of 16 of Republic Act No. 6425, as amended, and sentencing him
accordingly to suffer imprisonment ranging from six (6) months of arresto mayor, as
minimum, to four (4) years and two (2) months of prision correccional, as maximum,
and of 8 of the same law and sentencing him for such violation to suffer the penalty
of reclusion perpetua and to pay a fine of P700, 000.00.
Charges against accused-appellant for violations of R.A. No. 6425 were filed on
December 28, 1995. In Criminal Case No. Q-95-64357, the information alleged:
That on or about the 26th day of December 1995, in Quezon City, Philippines, the said
accused, did then and there willfully, unlawfully and knowingly possess and/or use
11.14 grams of Methamphetamine Hydrochloride (Shabu) a regulated drug, without the
necessary license and/or prescription therefor, in violation of said law.
CONTRARY TO LAW .2
In Criminal Case No. Q-95-64358, the information charged:
That on or about the 26th day of December 1995, in Quezon City, Philippines, the said
accused not being authorized by law to possess or use any prohibited drug, did, then
and there willfully, unlawfully and knowingly have in his possession and under his
custody and control 1,254 grams of Marijuana, a prohibited drug.
CONTRARY TO LAW ,3
When arraigned on May 21, 1996, accused-appellant pleaded not guilty 4 whereupon he
was tried.
Three witnesses were presented by the prosecution: P/Insp. Sonia S. Ludovico, forensic
chemist and chief of the Physical Science Branch of the Philippine National Police
Crime Laboratory, Senior Inspector Rodolfo Aguilar of the Narcotics Command, Camp
Crame, Quezon City, and PO3 Rolando Duazo of Station 10, Kamuning, Quezon City,
a field operative. The prosecution evidence established the following:
On December 26, 1995, Sr. Insp. Aguilar applied for a warrant 5 in the Regional Trial
Court, Branch 90, Dasmariias, Cavite, to search the residence of accused-appellant
Robert Salanguit y Ko on Binhagan St., Novaliches, Quezon City. He presented as his
witness SPO1 Edmund Badua, who testified that as a poseur-buyer, he was able to
purchase 2.12 grams of shabu from accused-appellant. The sale took place in accusedappellant's room, and Badua saw that the shabu was taken by accused-appellant from a
cabinet inside his room. The application was granted, and a search warrant was later
issued by Presiding Judge Dolores L. Espaol.
At about 10:30 p.m. of December 26, 1995, a group of about 10 policemen, along with
one civilian informer, went to the residence of accused-appellant to serve the warrant. 6
The police operatives knocked on accused-appellants door, but nobody opened it.
They heard people inside the house, apparently panicking. The police operatives then
forced the door open and entered the house.7
After showing the search warrant to the occupants of the house, Lt. Cortes and his
group started searching the house.8 They found 12 small heat-sealed transparent plastic
bags containing a white crystalline substance, a paper clip box also containing a white
crystalline substance, and two bricks of dried leaves which appeared to be marijuana
wrapped in newsprint9 having a total weight of approximately 1,255 grams. 10 A receipt
of the items seized was prepared, but the accused-appellant refused to sign it. 11
After the search, the police operatives took accused-appellant with them to Station 10,
EDSA, Kamuning, Quezon City, along with the items they had seized.12
PO3 Duazo requested a laboratory examination of the confiscated evidence. 13 The
white crystalline substance with a total weight of 2.77 grams and those contained in a
small box with a total weight of 8.37 grams were found to be positive for
methamphetamine hydrochloride. On the other hand, the two bricks of dried leaves,
one weighing 425 grams and the other 850 grams, were found to be marijuana.14
For the defense, accused-appellant testified in his own behalf. His testimony was
corroborated by his mother-in-law, Soledad Arcano.
Accused-appellant testified that on the night of December 26, 1995, as they were about
to leave their house, they heard a commotion at the gate and on the roof of their house.
Suddenly, about 20 men in civilian attire, brandishing long firearms, climbed over the
gate and descended through an opening in the roof.15
When accused-appellant demanded to be shown a search warrant, a piece of paper
inside a folder was waved in front of him. As accused-appellant fumbled for his
glasses, however, the paper was withdrawn and he had no chance to read it.16
Accused-appellant claimed that he was ordered to stay in one place of the house while
the policemen conducted a search, forcibly opening cabinets and taking his bag
containing money, a licensed .45 caliber firearm, jewelry , and canned goods.17
The policemen left at around 12:30 a.m. of December 27, 1995, and, after putting
handcuffs on accused-appellant, took him with them to the NARCOM on EDSA,
Quezon City, where accused-appellant was detained.18
Accused-appellant's mother-in law, Soledad Arcano, corroborated his testimony.
Arcano testified that the policemen ransacked their house, ate their food, and took
away canned goods and other valuables. 19
After hearing, the trial court rendered its decision, the dispositive portion of which
reads:
WHEREFORE, judgment is hereby rendered:
1. In Criminal Case No. Q-95-64357, for violation of Sec. 16, Republic Act No. 6425,
as amended, finding the accused ROBERTO SALANGUIT y KO guilty beyond
reasonable doubt of the crime charged and he is hereby accordingly sentenced to suffer
an indeterminate sentence with a minimum of six (6) months ofarresto mayor and a
maximum of four (4) years and two (2) months of prision correccional; and,
2. In Criminal Case No. Q-95-64358, for violation of Sec. 8, Republic Act No. 6425, as
amended, finding the accused ROBERTO SALANGUIT y KO guilty beyond
reasonable doubt of the crime charged and he is hereby accordingly sentenced to
suffer reclusion perpetua and to pay a fine of P700,000.00.
The accused shall further pay the costs of suit.
The 11.14 grams of methamphetamine hydrochloride and the 1,254 grams of marijuana
bricks are hereby confiscated and condemned for disposition according to law. The
evidence custodian of this Court is hereby directed to turn such substances over to the
National Bureau of Investigation pursuant to law.
First. Rule 126, 4 of the Revised Rules on Criminal Procedure 21 provides that a search
warrant shall not issue except upon probable cause in connection with one specific
offense to be determined personally by the judge after examination under oath or
describing the place to be searched and the things to be seized which may be anywhere
in the Philippines.
In issuing a search warrant, judges must comply strictly with the requirements of the
Constitution and the Rules of Criminal Procedure. No presumption of regularity can be
invoked in aid of the process when an officer undertakes to justify its
issuance.22 Nothing can justify the issuance of the search warrant unless all the legal
requisites are fulfilled.
SO ORDERED.20
In this case, the search warrant issued against accused-appellant reads:
Hence this appeal. Accused-appellant contends that THE COURT A QUO GRAVELY ERRED IN DECLARING THE SEARCH
WARRANT VALID
SEARCH
NO.160 For: Violation of RA 6425
WARRANT
SEARCH WARRANT
THE COURT A QUO ERRED IN CONVICTING ACCUSED-APPELLANT FOR
ILLEGAL
POSSESSION
OF
METHAMPHETAMINE
HYDROCHLORIDE(SHABU)

G R E E T I N G S:
THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSSEDAPPELLANT FOR VIOLATION 8, R.A. No. 6425
THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE TWO (2)
BRICKS OF MARIJUANA
THE COURT A QUO ERRED IN NOT FINDING THAT THE POLICEMEN USED
EXCESSIVE FORCE IN ENFORCING THE SEARCH WARRANT.
Accused-appellant is contesting his conviction on three grounds. First, the admissibility
of the shabu allegedly recovered from his residence as evidence against him on the
ground that the warrant used in obtaining it was invalid. Second, the admissibility in
evidence of the marijuana allegedly seized from accused-appellant pursuant to the
"plain view" doctrine. Third, the employment of unnecessary force by the police in the
execution of the warrant.
It appearing to the satisfaction of the undersigned after examining under oath SR.
INSP. RODOLFO V. AGUILAR, PNP and his witness SPO1 EDMUND M. BADUA,
PNP that there is probable cause to believe that ROBERT SALANGUIT has in his
possession and control in his premises Binhagan St., San Jose, Quezon City as shown
in Annex "A", the properties to wit:
UNDETERMINED QUANTITY OF SHABU AND DRUG PARAPHERNALIA
which should be seized and brought to the undersigned.
You are hereby commanded to make an immediate search anytime of the day/night of
the premises above-described and forthwith seize and take possession of the abovestated properties and bring said properties to the undersigned to be dealt with as the law
directs.
GIVEN UNDER MY HAND this 26th day of December 1995 at Imus, Cavite,
Philippines.
(SGD.) DOLORES L. ESPAOL
Q Are you familiar with that place?

A Yes, sir, as part of my surveillance, I was able to penetrate inside the area and
established contract with ROBERT SALANGUIT alias Robert through my friend who
introduced me to the former.
Judge
Q In what particular occasion did you meet ROBERT SALANGUIT alias Robert?
Accused-appellant assails the validity of the warrant on three grounds: (1) that there
was no probable cause to search for drug paraphernalia; (2) that the search warrant was
issued for more than one specific offense; and (3) that the place to be searched was not
described with sufficient particularity.
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?
Existence of Probable Cause

A Yes, sir.
The warrant authorized the seizure of "undetermined quantity of shabu and drug
paraphernalia." Evidence was presented showing probable cause of the existence of
methamphetamine hydrochloride or shabu. Accused-appellant contends, however, that
the search warrant issued is void because no evidence was presented showing the
existence of drug paraphernalia and the same should not have been ordered to be seized
by the trial court.23
The contention has no merit. To be sure, SPO1 Edmund Badua, the intelligence officer
who acted as a poseur-buyer, did not testify in the proceedings for the issuance of a
search warrant on anything about drug paraphernalia. He stated:
Q How much if you can still remember the amount involved?

A I was able to buy two point twelve (2.12) grams of shabu in the amount of Two
Thousand Seven Hundred Fifty (P2,750.00) pesos, sir .
Q Having established contact with ROBERT SALANGUIT @ Robert, do you know
where the stuff (shabu) were being kept?
A Yes, sir, inside a cabinet inside his room.
Q -Being a member of the Intelligence and Operation Section, NMDU, NARCOM, do

you remember if you were assigned into a monitoring or surveillance work?
Q How were you able to know the place where he kept the stuff?
A -Yes, sir.
A When I first bought the 2.12 grams of shabu from him, it was done inside his room
and I saw that the shabu was taken by him inside his cabinet.
Q Of what particular assignment or area were you assigned for monitoring or

surveillance?
Q Do you know who is in control of the premises?
A Its within the Quezon City area particularly a house without a number located at
Binhagan St., San Jose Quezon City, Sir.
Q Do You know the person who occupies the specific place?
A Yes, sir, he is ROBERT SALANGUIT @ Robert.
A Yes, sir, it was ROBERT SALANGUIT @ Robert.

Q How sure are you, that the shabu that you bought from ROBERT SALANGUIT @
Robert is genuine shabu?
A After I left the house of ROBERT SALANGUIT @ Robert, I proceeded back to
our office and reported the progress of my mission to our Chief and presented to him
the 2.12, grams of shabu I bought from the subject. Then afterwards, our Chief
formally requested the Chief PNP Central Crime Laboratory Services, NPDC, for
Technical Analysis which yielded positive result for shabu, a regulated drug as shown
in the attached certification of PNP CLS result No. D-414-95 dated 19 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 of shabu, he is willing to transact to me on cash basis at his
price of One Thousand Seven Hundred Fifty (P1,750.00) pesos per gram.
Q Are you willing to sign your statement freely and voluntarily?
A Yes, sir.24
However, the fact that there was no probable cause to support the application for the
seizure of drug paraphernalia does not warrant the conclusion that the search warrant is
void. This fact would be material only if drug paraphernalia was in fact seized by the
police. The fact is that none was taken by virtue of the search warrant issued. If at all,
therefore, the search warrant is void only insofar as it authorized the seizure of drug
paraphernalia, but it is valid as to the seizure of methamphetamine hydrochloride as to
which evidence was presented showing probable cause as to its existence. Thus,
in Aday v. Superior Court,25 the warrant properly described two obscene books but
improperly described other articles. It was held:
Although the warrant was defective in the respects noted, it does not follow that it was
invalid as a whole. Such a conclusion would mean that the seizure of certain articles,
even though proper if viewed separately, must be condemned merely because the
warrant was defective with respect to other articles. The invalid portions of the warrant
are severable from the authorization relating to the named books, which formed the
principal basis of the charge of obscenity. The search for and seizure of these books, if
otherwise valid, were not rendered illegal by the defects concerning other articles. ...In
so holding we do not mean to suggest that invalid portions "of a warrant will be treated
as severable under all circumstances. We recognize the danger that warrants might be
obtained which are essentially general in character but as to minor items meet the
requirement of particularity, and that wholesale seizures might be made under them, in
the expectation that the seizure would in any event be upheld as to the property
specified. Such an abuse of the warrant procedure, of course, could not be tolerated.
It would be a drastic remedy indeed if a warrant, which was issued on probable cause
and particularly describing the items to be seized on the basis thereof, is to be
invalidated in toto because the judge erred in authorizing a search for other items not
supported by the evidence.26 Accordingly, we hold that the first part of the search
warrant, authorizing the search of accused-appellant's house for an undetermined
quantity of shabu, is valid, even though the second part, with respect to the search for
drug paraphernalia, is not.
Specificity of the Offense Charged
Accused-appellant contends that the warrant was issued for more than one specific
offense because possession or use of methamphetamine hydrochloride and possession
of drug paraphernalia are punished under two different provisions of R.A. No.
6425.27 It will suffice to quote what this Court said in a similar case to dispose of this
contention:
While it is true that the caption of the search warrant states that it is in connection with
"Violation of R.A. 6425, otherwise known as the Dangerous Drugs Act of 1972," it is
clearly recited in the text thereof that "There is probable cause to believe that Adolfo
Olaes alias 'Debie' and alias 'Baby' of No.628 Comia St., Filtration, Sta. Rita, Olongapo
City, has in their session and control and custody of marijuana dried stalks/leaves/
seeds/cigarettes and other regulated/prohibited and exempt narcotics preparations
which is the subject of the offense stated above." Although the specific section of the
Dangerous Drugs Act is not pinpointed, there is no question at all of the specific
offense alleged to have been committed as a basis for the finding of probable cause.
The search warrant also satisfies the requirement in the Bill of Rights of the
particularity of the description to be made of the "place to be searched and the persons
or things to be seized." 28
Indeed, in People v. Dichoso29 the search warrant was also for "Violation of R.A.
6425," without specifying what provisions of the law were violated, and it authorized
the search and seizure of "dried marijuana leaves and methamphetamine
hydrochloride (shabu) and sets of paraphernalias (sic)." This Court, however, upheld
the validity of the warrant:
Appellant's contention that the search warrant in question was issued for more than (1)
offense, hence, in violation of Section 3, Rule 126 of the Rules of Court, is
unpersuasive. He engages in semantic juggling by suggesting that since illegal
possession of shabu, illegal possession of marijuana and illegal possession of
paraphernalia are covered by different articles and sections of the Dangerous Drugs Act
of 1972, the search warrant is clearly for more than one (1) specific offense. In short,
following this theory, there should have been three (3) separate search warrants, one for
illegal possession of shabu, the second for illegal possession of marijuana and the third
for illegal possession of paraphernalia. This argument is pedantic. The Dangerous
Drugs Act of 1972 is a special law that deals specifically with dangerous drugs which
are subsumed into "prohibited" and "regulated" drugs and defines and penalizes
categories of offenses which are closely related or which belong to the same class or
species. Accordingly, one (1) search warrant may thus be validly issued for the said
violations of the Dangerous Drugs Act. 30
Similarly, in another case,31 the search warrant was captioned: "For Violation of P .D.
No.1866 (Illegal Possession of Firearms, etc.)." The validity of the warrant was
questioned on the ground that it was issued without reference to any particular
provision in P.D. No.1866, which punished several offenses. We held, however, that
while illegal possession of firearms is penalized under 1 of P.D. No.1866 and illegal
possession of explosives is penalized under 3 thereof, the decree is a codification of
the various laws on illegal possession of firearms, ammunitions, and explosives which
offenses are so related as to be subsumed within the category of illegal possession of
firearms, etc. under P.D. No.1866. Thus, only one warrant was necessary to cover the
violations under the various provisions of the said law.
Particularly of the Place
Accused-appellant contends that the search warrant failed to indicate the place to be
searched with sufficient particularity.
This contention is without merit. As the Solicitor General states:
.....While the address stated in the warrant is merely "Binhagan St., San Jose, Quezon
City," the trial court took note of the fact that the records of Search Warrant Case
No.160 contained several documents which identified the premises to be searched, to
wit: 1) the application for search warrant which stated that the premises to be searched
was located in between No.7 and 11 at Binhagan Street, San Jose, Quezon City; 2) the
deposition of witness which described the premises as "a house without a number
located at Binhagan St., San Jose, Quezon City; and 3) the pencil sketch of the location
of the premises to be searched. In fact, the police officers who raided appellant's house
under the leadership of Police Senior Inspector Rodolfo Aguilar could not have been
mistaken as Inspector Aguilar resides in the same neighborhood in Binhagan where
appellant lives and in fact Aguilar's place is at the end of appellant's place in Binhagan.
Moreover, the house raided by Aguilar's team is undeniably appellant'.s house and it
was really appellant who was the target. The raiding team even first ascertained
through their informant that appellant was inside his residence before they actually
started their operation.32
The rule is that a description of the place to be searched is sufficient if the officer with
the warrant can, with reasonable effort, ascertain and identify the place intended to be
searched.33 For example, a search warrant authorized a search of Apartment Number 3
of a building at 83 Pleasant Street, Malborough, Massachusetts. As it turned out, there
were five apartments in the basement and six apartments on both the ground and top
floors and that there was an Apartment Number 3 on each floor. However, the
description was made determinate by a reference to the affidavit supporting the warrant
that the apartment was occupied by the accused "Morris Ferrante of 83 Pleasant Street,
Malboro Mass."34 In this case, the location of accused-appellant's house being indicated
by the evidence on record, there can be no doubt that the warrant described the place to
be searched with sufficient particularity.1wphi1.nt
In sum, we hold that with respect to the seizure of shabu from accused-appellant's
residence, Search Warrant No.160 was properly issued, such warrant being founded on
probable cause personally determined by the judge under oath or affirmation of the
deposing witness and particularly describing the place to be searched and the things to
be seized.
Second. The search warrant authorized the seizure of methamphetamine hydrochloride
or shabu but not marijuana. However, seizure of the latter drug is being justified on the
ground that the drug was seized within the "plain view" of the searching party. This is
contested by accused-appellant.
Under the "plain view doctrine," unlawful objects within the "plain view" of an officer
who has the right to be in the position to have that view are subject to seizure and may
be presented in evidence.35 For this doctrine to apply, there must be: (a) prior
justification; (b ) inadvertent discovery of the evidence; and (c) immediate apparent
illegality of the evidence before the police. 36 The question is whether these requisites
were complied with by the authorities in seizing the marijuana in this case.
Prior Justification and Discovery by Inadvertence
Because the location of the shabu was indicated in the warrant and thus known to the
police operatives, it is reasonable to assume that the police found the packets of
the shabu first. Once the valid portion of the search warrant has been executed, the
"plain view doctrine" can no longer provide any basis -for admitting the other items
subsequently found. As has been explained:
What the 'plain view' cases have in common is that the police officer in each of them
had a prior justification for an intrusion in the course of which he came inadvertently
across a piece of evidence incriminating the accused. The doctrine serves to
supplement the prior justification -whether it be a warrant for another object, hot
pursuit, search incident to lawful arrest, or some other legitimate reason for being
present unconnected with a search directed against the accused -and permits the
warrantless seizure. Of course, the extension of the original justification is legitimate
only where it is immediately apparent to the police that they have evidence before
them; the 'plain view' doctrine may not be used to extend a general exploratory search
from one object to another until something incriminating at last emerges.37
The only other possible justification for an intrusion by the police is the conduct of a
search pursuant to "accused-appellant's lawful arrest for possession of shabu. However,
a search incident to a lawful arrest is limited to the person of the one arrested and the
premises within his immediate control.18 The rationale for permitting such a search is to
prevent the person arrested from obtaining a weapon to commit violence, or to reach
for incriminatory evidence and destroy it.
The police failed to allege in this case the time when the marijuana was
found, i.e., whether prior to, or contemporaneous with, the shabu subject of the
warrant, or whether it was recovered on accused-appellant's person or in an area within
his immediate control. Its recovery, therefore, presumably during the search conducted
after the shabu had been recovered from the cabinet, as attested to by SPO1 Badua in
his depostion, was invalid.
Apparent Illegality of the Evidence
The marijuana bricks were wrapped in newsprint. There was no apparent illegality to
justify their seizure. This case is similar to People. v. Musa39 in which we declared
inadmissible the marijuana recovered by NARCOM agents because the said 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 clue as to its contents. They had to ask the appellant what the bag
contained. When the appellant refused to respond, they opened it and found the
marijuana. Unlike Ker v. California, where the marijuana was visible to the police
officer's eyes, the NARCOM agents in this case could not have discovered the
inculpatory nature of the contents of the bag had they not forcibly opened it; Even
assuming then, that the NARCOM agents inadvertently came across the plastic bag
because it was within their "plain view," what may be said to be the object in their
"plain view" was just the plastic bag and not the marijuana. The incriminating nature of
the contents of the plastic bag was not immediately apparent from the "plain view" of
said object. It cannot be claimed that the plastic bag clearly betrayed its contents,
whether by its distinctive configuration, is transparency, or otherwise, that its contents
are obvious to an observer .40
No presumption of regularity may be invoked by an officer in aid of the process when
he undertakes to justify an encroachment of rights secured by the Constitution. 41 In this
case, the marijuana allegedly found in the possession of accused-appellant was in the
form of two bricks wrapped in newsprint. Not being in a transparent container, the
contents wrapped in newsprint could not have been readily discernible as marijuana.
Nor was there mention of the time or manner these items were discovered.
Accordingly, for failure of the prosecution to prove that the seizure of the marijuana
without a warrant was conducted in accordance with the "plain view doctrine," we hold
that the marijuana is inadmissible in evidence against accused-appellant. However, the
confiscation of the drug must be upheld.
Third. Accused-appellant claims that undue and unnecessary force was employed by
the searching party in effecting the raid.
Rule 126, 7 of the Revised Rules on Criminal Procedure42 provides:
Right to break door or window to effect search. - The officer, if refused admittance to
the place of directed search after giving notice of his purpose and authority, may break
open any outer or inner door or window of a house or any part of a house or anything
therein to execute the warrant or liberate himself or any person lawfully aiding him
when unlawfully detained therein.
Accused-appellant's claim that the policemen had clambered up the roof of his house to
gain entry and had broken doors and windows in the process is unsupported by reliable
and competent proof. No affidavit or sworn statement of disinterested persons, like the
barangay officials or neighbors, has been presented by accused-appellant to attest to the

truth of his claim.
In contrast, Aguilar and Duano's claim that they had to use some force in order to gain
entry cannot be doubted. The occupants of the house, especially accused-appellant,
refused to open the door despite the fact that the searching party knocked on the door
several times. Furthermore, the agents saw the suspicious movements of the people
inside the house. These circumstances justified the searching party's forcible entry into
the house, founded as it is on the apprehension that the execution of their mission
would be frustrated unless they do so.
WHEREFORE, in Criminal Case No. Q-95-64357, the decision of the Regional Trial
Court, Branch 96, Quezon City, finding accused-appellant Roberto Salanguit y Ko
guilty of possession of illegal drugs under 16 of R.A. No.6425, otherwise known as
the Dangerous Drugs Act, as amended, and sentencing him to suffer a prison term
ranging from six (6) months of arresto mayor, as minimum, and four (4) years and two
(2) months of prision correccional, as maximum, and ordering the confiscation of
11.14 grams of methamphetamine hydrochloride is AFFIRMED .
In Criminal Case No. Q-95-64358, the decision of the same court finding accusedappellant Roberto Salanguit y Ko guilty of possession of prohibited drugs under 8 of
R.A. No. 6425, as amended, and sentencing him to suffer the penalty of reclusion
perpetua and to pay a fine of 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 11.14 grams of methamphetamine
hydrochloride, and its disposition as ordered by the trial court is AFFIRMED .
SO ORDERED.
_______________
FIRST DIVISION
G.R.No. 74869 July 6, 1988

PEOPLE
OF
THE
vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.
CRUZ, J.:
The accused-appellant claimed his business was selling watches but he was nonetheless
arrested, tried and found guilty of illegally transporting marijuana. The trial court,
disbelieving him, held it was high time to put him away and sentenced him to life
imprisonment plus a fine of P20,000.00. 1
Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the
M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who were in
fact waiting for him simply accosted him, inspected his bag and finding what looked
liked marijuana leaves took him to their headquarters for investigation. The two
bundles of suspect articles were confiscated from him and later taken to the NBI
laboratory for examination. When they were verified as marijuana leaves, an
information for violation of the Dangerous Drugs Act was filed against him. 2 Later, the
information was amended to include Farida Ali y Hassen, who had also been arrested
with him that same evening and likewise investigated. 3 Both were arraigned and
pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge
against Ali on the basis of a sworn statement of the arresting officers absolving her
after a 'thorough investigation." 5The motion was granted, and trial proceeded only
against the accused-appellant, who was eventually convicted . 6
According to the prosecution, the PC officers had earlier received a tip from one of
their informers that the accused-appellant was on board a vessel bound for Iloilo City
and was carrying marijuana. 7 He was Identified by name. 8 Acting on this tip, they
waited for him in the evening of June 25, 1984, and approached him as he descended
from the gangplank after the informer had pointed to him. 9 They detained him and
inspected the bag he was carrying. It was found to contain three kilos of what were
later analyzed as marijuana leaves by an NBI forensic examiner, 10 who testified that
she conducted microscopic, chemical and chromatographic tests on them. On the basis
of this finding, the corresponding charge was then filed against Aminnudin.
In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag
was his clothing consisting of a jacket, two shirts and two pairs of pants. 11 He alleged
that he was arbitrarily arrested and immediately handcuffed. His bag was confiscated
without a search warrant. At the PC headquarters, he was manhandled to force him to
admit he was carrying the marijuana, the investigator hitting him with a piece of wood
in the chest and arms even as he parried the blows while he was still handcuffed. 12 He
insisted he did not even know what marijuana looked like and that his business was
selling watches and sometimes cigarettes. 13 He also argued that the marijuana he was
alleged to have been carrying was not properly Identified and could have been any of
several bundles kept in the stock room of the PC headquarters. 14
The trial court was unconvinced, noting from its own examination of the accused that
he claimed to have come to Iloilo City to sell watches but carried only two watches at
the time, traveling from Jolo for that purpose and spending P107.00 for fare, not to
mention his other expenses. 15 Aminnudin testified that he kept the two watches in a
secret pocket below his belt but, strangely, they were not discovered when he was
bodily searched by the arresting officers nor were they damaged as a result of his
manhandling. 16 He also said he sold one of the watches for P400.00 and gave away the
other, although the watches belonged not to him but to his cousin, 17 to a friend whose
full name he said did not even know. 18 The trial court also rejected his allegations of
maltreatment, observing that he had not sufficiently proved the injuries sustained by
him. 19
because it came under Rule 113, Section 6(b) of the Rules of Court on warrantless
arrests. This made the search also valid as incidental to a lawful arrest.
It is not disputed, and in fact it is admitted by the PC officers who testified for the
prosecution, that they had no warrant when they arrested Aminnudin and seized the bag
he was carrying. Their only justification was the tip they had earlier received from a
reliable and regular informer who reported to them that Aminnudin was arriving in
Iloilo by boat with marijuana. Their testimony varies as to the time they received the
tip, one saying it was two days before the arrest, 20 another two weeks 21 and a third
"weeks before June 25." 22 On this matter, we may prefer the declaration of the chief of
the arresting team, Lt. Cipriano Querol, Jr., who testified as follows:
Q You mentioned an intelligence report, you mean with respect to the coming of Idel
Aminnudin on June 25, 1984?
A Yes, sir.
Q When did you receive this intelligence report?
A Two days before June 25, 1984 and it was supported by reliable sources.
There is no justification to reverse these factual findings, considering that it was the
trial judge who had immediate access to the testimony of the witnesses and had the
opportunity to weigh their credibility on the stand. Nuances of tone or voice,
meaningful pauses and hesitation, flush of face and dart of eyes, which may reveal the
truth or expose the lie, are not described in the impersonal record. But the trial judge
sees all of this, discovering for himself the truant fact amidst the falsities.
Q Were you informed of the coming of the Wilcon 9 and the possible trafficking of
marijuana leaves on that date?
The only exception we may make in this case is the trial court's conclusion that the
accused-appellant was not really beaten up because he did not complain about it later
nor did he submit to a medical examination. That is hardly fair or realistic. It is possible
Aminnudin never had that opportunity as he was at that time under detention by the PC
authorities and in fact has never been set free since he was arrested in 1984 and up to
the present. No bail has been allowed for his release.
Q You said you received an intelligence report two days before June 25, 1984 with
respect to the coming of Wilcon 9?
There is one point that deserves closer examination, however, and it is Aminnudin's
claim that he was arrested and searched without warrant, making the marijuana
allegedly found in his possession inadmissible in evidence against him under the Bill of
Rights. The decision did not even discuss this point. For his part, the Solicitor General
dismissed this after an all-too-short argument that the arrest of Aminnudin was valid
A Yes, sir, two days before June 25, 1984 when we received this information from that
particular informer, prior to June 25, 1984 we have already reports of the particular
operation which was being participated by Idel Aminnudin.
A Yes, sir.
Q Did you receive any other report aside from this intelligence report?
A Well, I have received also other reports but not pertaining to the coming of Wilcon 9.
For instance, report of illegal gambling operation.
COURT:
Q Previous to that particular information which you said two days before June 25,
1984, did you also receive daily report regarding the activities of Idel Aminnudin
A Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin.
A Before June 23,1984, I, in my capacity, did not know that he was coming but on June
23, 1984 that was the time when I received the information that he was coming.
Regarding the reports on his activities, we have reports that he was already
consummated the act of selling and shipping marijuana stuff.
Q What were those activities?
COURT:
A Purely marijuana trafficking.
Q And as a result of that report, you put him under surveillance?
Q From whom did you get that information?
A Yes, sir.
A It came to my hand which was written in a required sheet of information, maybe for
security reason and we cannot Identify the person.
Q In the intelligence report, only the name of Idel Aminnudin was mentioned?
A Yes, sir.
Q But you received it from your regular informer?

Q Are you sure of that?
A Yes, sir.
A On the 23rd he will be coming with the woman.
ATTY. LLARIZA:
Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is coming
with drugs?
Q So that even before you received the official report on June 23, 1984, you had
already gathered information to the effect that Idel Aminnudin was coming to Iloilo on
June 25, 1984?
A Marijuana, sir.
A Only on the 23rd of June.
Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana
was received by you many days before you received the intelligence report in writing?
Q You did not try to secure a search warrant for the seizure or search of the subject
mentioned in your intelligence report?
A Not a report of the particular coming of Aminnudin but his activities.
A No, more.
Q You only knew that he was coming on June 25,1984 two days before?
Q Why not?
A Yes, sir.
A Because we were very very sure that our operation will yield positive result.
Q You mean that before June 23, 1984 you did not know that minnudin was coming?
Q Is that your procedure that whenever it will yield positive result you do not need a
search warrant anymore?
A Search warrant is not necessary. 23
That last answer is a cavalier pronouncement, especially as it comes from a mere

lieutenant of the PC. The Supreme Court cannot countenance such a statement. This is
still a government of laws and not of men.
The mandate of the Bill of Rights is clear:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
In the case at bar, there was no warrant of arrest or search warrant issued by a judge
after personal determination by him of the existence of probable cause. Contrary to the
averments of the government, the accused-appellant was not caught in flagrante nor
was a crime about to be committed or had just been committed to justify the
warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency
could not be invoked to dispense with the obtention of the warrant as in the case of
Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are subject to
warrantless searches and seizures for violation of the customs law because these
vehicles may be quickly moved out of the locality or jurisdiction before the warrant
can be secured.
The present case presented no such urgency. From the conflicting declarations of the
PC witnesses, it is clear that they had at least two days within which they could have
obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the
M/V Wilcon 9. His name was known. The vehicle was Identified. The date of its arrival
was certain. And from the information they had received, they could have persuaded a
judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet
they did nothing. No effort was made to comply with the law. The Bill of Rights was
ignored altogether because the PC lieutenant who was the head of the arresting team,
had determined on his own authority that a "search warrant was not necessary."
In the many cases where this Court has sustained the warrantless arrest of violators of
the Dangerous Drugs Act, it has always been shown that they were caught red-handed,
as a result of what are popularly called "buy-bust" operations of the narcotics
agents. 25 Rule 113 was clearly applicable because at the precise time of arrest the
accused was in the act of selling the prohibited drug.
In the case at bar, the accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or that he had just
done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and
there was no outward indication that called for his arrest. To all appearances, he was
like any of the other passengers innocently disembarking from the vessel. It was only
when the informer pointed to him as the carrier of the marijuana that he suddenly
became suspect and so subject to apprehension. It was the furtive finger that triggered
his arrest. The Identification by the informer was the probable cause as determined by
the officers (and not a judge) that authorized them to pounce upon Aminnudin and
immediately arrest him.
Now that we have succeeded in restoring democracy in our country after fourteen years
of the despised dictatorship, when any one could be picked up at will, detained without
charges and punished without trial, we will have only ourselves to blame if that kind of
arbitrariness is allowed to return, to once more flaunt its disdain of the Constitution and
the individual liberties its Bill of Rights guarantees.
While this is not to say that the accused-appellant is innocent, for indeed his very own
words suggest that he is lying, that fact alone does not justify a finding that he is guilty.
The constitutional presumption is that he is innocent, and he will be so declared even if
his defense is weak as long as the prosecution is not strong enough to convict him.
Without the evidence of the marijuana allegedly seized from Aminnudin, the case of
the prosecution must fall. That evidence cannot be admitted, and should never have
been considered by the trial court for the simple fact is that the marijuana was seized
illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase.
The search was not an incident of a lawful arrest because there was no warrant of arrest
and the warrantless arrest did not come under the exceptions allowed by the Rules of
Court. Hence, the warrantless search was also illegal and the evidence obtained thereby
was inadmissible.
The Court strongly supports the campaign of the government against drug addiction
and commends the efforts of our law-enforcement officers against those who would
inflict this malediction upon our people, especially the susceptible youth. But as
demanding as this campaign may be, it cannot be more so than the compulsions of the
Bill of Rights for the protection of the liberty of every individual in the realm,
including the basest of criminals. The Constitution covers with the mantle of its
protection the innocent and the guilty alike against any manner of high- handedness
from the authorities, however praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in disregarding the rights
of the individual in the name of order. Order is too high a price for the loss of liberty.
As Justice Holmes, again, said, "I think it a less evil that some criminals should escape
than that the government should play an ignoble part." It is simply not allowed in the
free society to violate a law to enforce another, especially if the law violated is the
Constitution itself.
We find that with the exclusion of the illegally seized marijuana as evidence against the
accused-appellant, his guilt has not been proved beyond reasonable doubt and he must
therefore be discharged on the presumption that he is innocent.
ACCORDINGLY, the decision of the trial court is REVERSED and the accusedappellant is ACQUITTED. It is so ordered.
Narvasa, Gancayco and Medialdea, JJ., concur.
Separate Opinions
AQUINO, J., dissenting:

I respectfully dissent. I hold that the accused was caught in flagrante, for he was
carrying marijuana leaves in his bag at the moment of his arrest. He was not
"innocently disembarking from the vessel." The unauthorized transportation of
marijuana (Indian hemp), which is a prohibited drug, is a crime. (Sec. 4, Rep. Act No.
6425). Since he was committing a crime, his arrest could be lawfully effected without a
warrant (Sec. 6a, Rule 113, Rules of Court), and the search of his bag (which yielded
the marijuana leaves) without a search warrant was also lawful (Sec. 12, Rule 126,
Rules of Court). I vote to affirm the judgment of the trial court finding him guilty of
illegally transporting marijuana.
________________
On December 13, 1988, P/Lt. Abello was tipped off by his informant, known only as
Benjie, that a certain "Aling Rosa" would be arriving from Baguio City the following
day, December 14, 1988, with a large volume of marijuana. Acting on said tip, P/Lt.
Abello assembled a team composed of P/Lt. Jose Domingo, Sgt. Angel Sudiacal, Sgt.
Oscar Imperial, Sgt. Danilo Santiago and Sgt. Efren Quirubin.
THIRD DIVISION
G.R. No. 120915 April 3, 1998
vs.
ROSA ARUTA y MENGUIN, accused-appellant.
ROMERO, J.:
With the pervasive proliferation of illegal drugs and its pernicious effects on our
society, our law enforcers tend at times to overreach themselves in apprehending drug
offenders to the extent of failing to observe well-entrenched constitutional guarantees
against illegal searches and arrests. Consequently, drug offenders manage to evade the
clutches of the law on mere technicalities.
Accused-appellant Rosa Aruta y Menguin was arrested and charged with violating
Section 4, Article II of Republic Act No. 6425 or the Dangerous Drugs Act. The
information reads:
That on or about the fourteenth (14th) day of December, 1988, in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, without being lawfully authorized, did then and there willfully, unlawfully and
knowingly engage in transporting approximately eight (8) kilos and five hundred (500)
grams of dried marijuana packed in plastic bag marked "Cash Katutak" placed in a
traveling bag, which are prohibited drugs.
Upon arraignment, she pleaded "not guilty." After trial on the merits, the Regional Trial
Court of Olongapo City convicted and sentenced her to suffer the penalty of life
imprisonment and to pay a fine of twenty thousand (P20,000.00) pesos. 1
The prosecution substantially relied on the testimonies of P/Lt. Ernesto Abello, Officerin-Charge of the Narcotics Command (NARCOM) of Olongapo City and P/Lt. Jose
Domingo. Based on their testimonies, the court a quo found the following:
Said team proceeded to West Bajac-Bajac, Olongapo City at around 4:00 in the
afternoon of December 14, 1988 and deployed themselves near the Philippine National
Bank (PNB) building along Rizal Avenue and the Caltex gasoline station. Dividing
themselves into two groups, one group, made up of P/Lt. Abello, P/Lt. Domingo and
the informant posted themselves near the PNB building while the other group waited
near the Caltex gasoline station.
While thus positioned, a Victory Liner Bus with body number 474 and the letters BGO
printed on its front and back bumpers stopped in front of the PNB building at around
6:30 in the evening of the same day from where two females and a male got off. It was
at this stage that the informant pointed out to the team "Aling Rosa" who was then
carrying a traveling bag.
Having ascertained that accused-appellant was "Aling Rosa," the team approached her
and introduced themselves as NARCOM agents. When P/Lt. Abello asked "Aling
Rosa" about the contents of her bag, the latter handed it to the former.
Upon inspection, the bag was found to contain dried marijuana leaves packed in a
plastic bag marked "Cash Katutak." The team confiscated the bag together with the
Victory Liner bus ticket to which Lt. Domingo affixed his signature. Accused-appellant
was then brought to the NARCOM office for investigation where a Receipt of Property
Seized was prepared for the confiscated marijuana leaves.
Upon examination of the seized marijuana specimen at the PC/INP Crime Laboratory,
Camp Olivas, Pampanga, P/Maj. Marlene Salangad, a Forensic Chemist, prepared a
Technical Report stating that said specimen yielded positive results for marijuana, a
prohibited drug.
After the presentation of the testimonies of the arresting officers and of the above
technical report, the prosecution rested its case.
Instead of presenting its evidence, the defense filed a "Demurrer to Evidence" alleging
the illegality of the search and seizure of the items thereby violating accusedappellant's constitutional right against unreasonable search and seizure as well as their
inadmissibility in evidence.
The said "Demurrer to Evidence" was, however, denied without the trial court ruling on
the alleged illegality of the search and seizure and the inadmissibility in evidence of the
items seized to avoid pre-judgment. Instead, the trial court continued to hear the case.
In view of said denial, accused-appellant testified on her behalf. As expected, her
version of the incident differed from that of the prosecution. She claimed that
immediately prior to her arrest, she had just come from Choice Theater where she
watched the movie "Balweg." While about to cross the road, an old woman asked her
help in carrying a shoulder bag. In the middle of the road, Lt. Abello and Lt. Domingo
arrested her and asked her to go with them to the NARCOM Office.
During investigation at said office, she disclaimed any knowledge as to the identity of
the woman and averred that the old woman was nowhere to be found after she was
arrested. Moreover, she added that no search warrant was shown to her by the arresting
officers.
After the prosecution made a formal offer of evidence, the defense filed a "Comment
and/or Objection to Prosecution's Formal Offer of Evidence" contesting the
admissibility of the items seized as they were allegedly a product of an unreasonable
search and seizure.
Not convinced with her version of the incident, the Regional Trial Court of Olongapo
City convicted accused-appellant of transporting eight (8) kilos and five hundred (500)
grams of marijuana from Baguio City to Olongapo City in violation of Section 4,
Article 11 of R.A. No. 6425, as amended, otherwise known as the Dangerous Drugs
Act of 1972 and sentenced her to life imprisonment and to pay a fine of twenty
thousand (P20,000.00) pesos without subsidiary imprisonment in case of insolvency. 2
In this appeal, accused-appellant submits the following:
1. The trial court erred in holding that the NARCOM agents could not apply for a
warrant for the search of a bus or a passenger who boarded a bus because one of the
requirements for applying a search warrant is that the place to be searched must be
specifically designated and described.
2. The trial court erred in holding or assuming that if a search warrant was applied for
by the NARCOM agents, still no court would issue a search warrant for the reason that
the same would be considered a general search warrant which may be quashed.
3. The trial court erred in not finding that the warrantless search resulting to the arrest
of accused-appellant violated the latter's constitutional rights.
4. The trial court erred in not holding that although the defense of denial is weak yet
the evidence of the prosecution is even weaker.
These submissions are impressed with merit.
In People v. Ramos, 3 this Court held that a search may be conducted by law enforcers
only on the strength of a search warrant validly issued by a judge as provided in Article
III, Section 2 of the Constitution which provides:
This constitutional guarantee is not a blanket prohibition against all searches and
seizures as it operates only against "unreasonable" searches and seizures. The plain
import of the language of the Constitution, which in one sentence prohibits
unreasonable searches and seizures and at the same time prescribes the requisites for a
valid warrant, is that searches and seizures are normally unreasonable unless
authorized by a validly issued search warrant or warrant of arrest. Thus, the
fundamental protection accorded by the search and seizure clause is that between
person and police must stand the protective authority of a magistrate clothed with
power to issue or refuse to issue search warrants or warrants of arrest. 4
Further, articles which are the product of unreasonable searches and seizures are
inadmissible as evidence pursuant to the doctrine pronounced in Stonehill
v. Diokno. 5 This exclusionary rule was later enshrined in Article III, Section 3(2) of the
Constitution, thus:
Sec. 3(2). Any evidence obtained in violation of this or the preceding section shall be
inadmissible in evidence for any purpose in any proceeding.
4. Consented warrantless search;

5. Customs search; 9
From the foregoing, it can be said that the State cannot simply intrude indiscriminately
into the houses, papers, effects, and most importantly, on the person of an individual.
The constitutional provision guaranteed an impenetrable shield against unreasonable
searches and seizures. As such, it protects the privacy and sanctity of the person
himself against unlawful arrests and other forms of restraint. 6
Therewithal, the right of a person to be secured against any unreasonable seizure of his
body and any deprivation of his liberty is a most basic and fundamental one. A statute,
rule or situation which allows exceptions to the requirement of a warrant of arrest or
search warrant must perforce be strictly construed and their application limited only to
cases specifically provided or allowed by law. To do otherwise is an infringement upon
personal liberty and would set back a right so basic and deserving of full protection and
vindication yet often violated. 7
The following cases are specifically provided or allowed by law:
1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule
126 of the Rules of Court 8 and by prevailing jurisprudence;
6. Stop and Frisk; 10 and

7. Exigent and Emergency Circumstances. 11
The above exceptions, however, should not become unbridled licenses for law
enforcement officers to trample upon the constitutionally guaranteed and more
fundamental right of persons against unreasonable search and seizures. The essential
requisite of probable cause must still be satisfied before a warrantless search and
seizure can be lawfully conducted.
Although probable cause eludes exact and concrete definition, it generally signifies a
reasonable ground of suspicion supported by circumstances sufficiently strong in
themselves to warrant a cautious man to believe that the person accused is guilty of the
offense with which he is charged. It likewise refers to the existence of such facts and
circumstances which could lead a reasonably discreet and prudent man to believe that
an offense has been committed and that the item(s), article(s) or object(s) sought in
connection with said offense or subject to seizure and destruction by law is in the place
to be searched. 12
2. Seizure of evidence in "plain view," the elements of which are:

(a) a prior valid intrusion based on the valid warrantless arrest in which the police are
legally present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who had the right to be
where they are;
(c) the evidence must be immediately apparent, and
(d) "plain view" justified mere seizure of evidence without further search;
3. Search of a moving vehicle. Highly regulated by the government, the vehicle's
inherent mobility reduces expectation of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that
the occupant committed a criminal activity;
It ought to be emphasized that in determining probable cause, the average man weighs
facts and circumstances without resorting to the calibrations of our rules of evidence of
which his knowledge is technically nil. Rather, he relies on the calculus of common
sense which all reasonable men have in abundance. The same quantum of evidence is
required in determining probable cause relative to search. Before a search warrant can
be issued, it must be shown by substantial evidence that the items sought are in fact
seizable by virtue of being connected with criminal activity, and that the items will be
found in the place to be searched. 13
In searches and seizures effected without a warrant, it is necessary for probable cause
to be present. Absent any probable cause, the article(s) seized could not be admitted
and used as evidence against the person arrested. Probable cause, in these cases, must
only be based on reasonable ground of suspicion or belief that a crime has been
committed or is about to be committed.
In our jurisprudence, there are instances where information has become a sufficient
probable cause to effect a warrantless search and seizure.
In People v. Tangliben, 14 acting on information supplied by informers, police
officers conducted a surveillance at the Victory Liner Terminal compound in San
Fernando, Pampanga against persons who may commit misdemeanors and also on
those who may be engaging in the traffic of dangerous drugs. At 9:30 in the evening,
the policemen noticed a person carrying a red traveling bag who was acting
suspiciously. They confronted him and requested him to open his bag but he refused.
He acceded later on when the policemen identified themselves. Inside the bag were
marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the
activities of Tangliben on the night of his arrest.
In instant case, the apprehending officers already had prior knowledge from their
informant regarding Aruta's alleged activities. In Tangliben policemen were confronted
with an on-the-spot tip. Moreover, the policemen knew that the Victory Liner
compound is being used by drug traffickers as their "business address". More
significantly, Tangliben was acting suspiciously. His actuations and surrounding
circumstances led the policemen to reasonably suspect that Tangliben is committing a
crime. In instant case, there is no single indication that Aruta was acting suspiciously.
In People v. Malmstedt, 15 the Narcom agents received reports that vehicles coming
from Sagada were transporting marijuana. They likewise received information that a
Caucasian coming from Sagada had prohibited drugs on his person. There was no
reasonable time to obtain a search warrant, especially since the identity of the suspect
could not be readily ascertained. His actuations also aroused the suspicion of the
officers conducting the operation. The Court held that in light of such circumstances, to
deprive the agents of the ability and facility to act promptly, including a search without
a warrant, would be to sanction impotence and ineffectiveness in law enforcement, to
the detriment of society.
Note, however, the glaring differences of Malmstedt to the instant case. In present case,
the police officers had reasonable time within which to secure a search warrant.
Second, Aruta's identity was priorly ascertained. Third, Aruta was not acting
suspiciously. Fourth, Malmstedt was searched aboard a moving vehicle, a legally
accepted exception to the warrant requirement. Aruta, on the other hand, was searched
while about to cross a street.
In People v. Bagista, 16 the NARCOM officers had probable cause to stop and search all
vehicles coming from the north to Acop, Tublay, Benguet in view of the confidential
information they received from their regular informant that a woman having the same
appearance as that of accused-appellant would be bringing marijuana from up north.
They likewise had probable cause to search accused-appellant's belongings since she
fitted the description given by the NARCOM informant. Since there was a valid
warrantless search by the NARCOM agents, any evidence obtained in the course of
said search is admissible against accused-appellant. Again, this case differs from Aruta
as this involves a search of a moving vehicle plus the fact that the police officers
erected a checkpoint. Both are exceptions to the requirements of a search warrant.
In Manalili v. Court of Appeals and People, 17 the policemen conducted
a surveillance in an area of the Kalookan Cemetery based on information that drug
addicts were roaming therein. Upon reaching the place, they chanced upon a man in
front of the cemetery who appeared to be "high" on drugs. He was observed to have
reddish eyes and to be walking in a swaying manner. Moreover, he appeared to be
trying to avoid the policemen. When approached and asked what he was holding in his
hands, he tried to resist. When he showed his wallet, it contained marijuana. The Court
held that the policemen had sufficient reason to accost accused-appellant to determine
if he was actually "high" on drugs due to his suspicious actuations, coupled with the
fact that based on information, this area was a haven for drug addicts.
In all the abovecited cases, there was information received which became the bases for
conducting the warrantless search. Furthermore, additional factors and circumstances
were present which, when taken together with the information, constituted probable
causes which justified the warrantless searches and seizures in each of the cases.
In the instant case, the determination of the absence or existence of probable cause
necessitates a reexamination of the facts. The following have been established: (1) In
the morning of December 13, 1988, the law enforcement officers received information
from an informant named "Benjie" that a certain "Aling Rosa" would be leaving for
Baguio City on December 14, 1988 and would be back in the afternoon of the same
day carrying with her a large volume of marijuana; (2) At 6:30 in the evening of
December 14, 1988, accused-appellant alighted from a Victory Liner Bus carrying a
traveling bag even as the informant pointed her out to the law enforcement officers; (3)
The law enforcement officers approached her and introduced themselves as NARCOM
agents; (4) When asked by Lt. Abello about the contents of her traveling bag, she gave
the same to him; (5) When they opened the same, they found dried marijuana leaves;
(6) Accused-appellant was then brought to the NARCOM office for investigation.
This case is similar to People v. Aminnudin where the police received information two
days before the arrival of Aminnudin that the latter would be arriving from Iloilo on
board the M/V Wilcon 9. His name was known, the vehicle was identified and the date
of arrival was certain. From the information they had received, the police could have
persuaded a judge that there was probable cause, indeed, to justify the issuance of a
warrant. Instead of securing a warrant first, they proceeded to apprehend Aminnudin.
When the case was brought before this Court, the arrest was held to be illegal; hence
any item seized from Aminnudin could not be used against him.
the suspect. The NARCOM agents would not have apprehended accused-appellant
were it not for the furtive finger of the informant because, as clearly illustrated by the
evidence on record, there was no reason whatsoever for them to suspect that accusedappellant was committing a crime, except for the pointing finger of the informant. This
the Court could neither sanction nor tolerate as it is a clear violation of the
constitutional guarantee against unreasonable search and seizure. Neither was there any
semblance of any compliance with the rigid requirements of probable cause and
warrantless arrests.
Another recent case is People v. Encinada where the police likewise received
confidential information the day before at 4:00 in the afternoon from their informant
that Encinada would be bringing in marijuana from Cebu City on board M/V Sweet
Pearl at 7:00 in the morning of the following day. This intelligence information
regarding the culprit's identity, the particular crime he allegedly committed and his
exact whereabouts could have been a basis of probable cause for the lawmen to secure
a warrant. This Court held that in accordance with Administrative Circular No. 13 and
Circular No. 19, series of 1987, the lawmen could have applied for a warrant even after
court hours. The failure or neglect to secure one cannot serve as an excuse for violating
Encinada's constitutional right.
Consequently, there was no legal basis for the NARCOM agents to effect a warrantless
search of accused-appellant's bag, there being no probable cause and the accusedappellant not having been lawfully arrested. Stated otherwise, the arrest being
incipiently illegal, it logically follows that the subsequent search was similarly illegal,
it being not incidental to a lawful arrest. The constitutional guarantee against
unreasonable search and seizure must perforce operate in favor of accused-appellant.
As such, the articles seized could not be used as evidence against accused-appellant for
these are "fruits of a poisoned tree" and, therefore, must be rejected, pursuant to Article
III, Sec. 3(2) of the Constitution.
In the instant case, the NARCOM agents were admittedly not armed with a warrant of
arrest. To legitimize the warrantless search and seizure of accused-appellant's bag,
accused-appellant must have been validly arrested under Section 5 of Rule 113 which
provides inter alia:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person
(a) When in his presence, the person to be arrested has committed, is actually
xxx xxx xxx
Accused-appellant Aruta cannot be said to be committing a crime. Neither was she
about to commit one nor had she just committed a crime. Accused-appellant was
merely crossing the street and was not acting in any manner that would engender a
reasonable ground for the NARCOM agents to suspect and conclude that she was
committing a crime. It was only when the informant pointed to accused-appellant and
identified her to the agents as the carrier of the marijuana that she was singled out as
Emphasis is to be laid on the fact that the law requires that the search be incidental to a
lawful arrest, in order that the search itself may likewise be considered legal.
Therefore, it is beyond cavil that a lawful arrest must precede the search of a person
and his belongings. Where a search is first undertaken, and an arrest effected based on
evidence produced by the search, both such search and arrest would be unlawful, for
being contrary to law. 18
As previously discussed, the case in point is People v. Aminnudin 19 where, this Court
observed that:
. . . accused-appellant was not, at the moment of his arrest, committing a crime nor was
it shown that he was about to do so or that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9 and there was no outward indication
that called for his arrest. To all appearances, he was like any of the other passengers
innocently disembarking from the vessel. It was only when the informer pointed to him
as the carrier of the marijuana that he suddenly became suspect and so subject to
apprehension. It was the furtive finger that triggered his arrest. The identification by
the informer was the probable cause as determined by the officers (and not a judge)
that authorized them to pounce upon Aminnudin and immediately arrest him.
In the absence of probable cause to effect a valid and legal warrantless arrest, the
search and seizure of accused-appellant's bag would also not be justified as seizure of
evidence in "plain view" under the second exception. The marijuana was obviously not
immediately apparent as shown by the fact that the NARCOM agents still had to
request accused-appellant to open the bag to ascertain its contents.
When one voluntarily submits to a search or consents to have it made on his person or
premises, he is precluded from complaining later thereof. (Cooley, Constitutional
Limitations, 8th ed., [V]ol. I, p. 631.) The right to be secure from unreasonable search
may, like every right, be waived and such waiver may be made either expressly or
impliedly.
Neither would the search and seizure of accused-appellant's bag be justified as a search
of a moving vehicle. There was no moving vehicle to speak of in the instant case as
accused-appellant was apprehended several minutes after alighting from the Victory
Liner bus. In fact, she was accosted in the middle of the street and not while inside the
vehicle.
In support of said argument, the Solicitor General cited the testimony of Lt. Abello,
thus:
People v. Solayao, 20 applied the stop and frisk principle which has been adopted
in Posadas v. Court of Appeals. 21 In said case, Solayao attempted to flee when he and
his companions were accosted by government agents. In the instant case, there was no
observable manifestation that could have aroused the suspicion of the NARCOM
agents as to cause them to "stop and frisk" accused-appellant. To reiterate, accusedappellant was merely crossing the street when apprehended. Unlike in the
abovementioned cases, accused-appellant never attempted to flee from the NARCOM
agents when the latter identified themselves as such. Clearly, this is another indication
of the paucity of probable cause that would sufficiently provoke a suspicion that
accused-appellant was committing a crime.
A We followed her and introduced ourselves as NARCOM agents and confronted her
with our informant and asked her what she was carrying and if we can see the bag she
was carrying.
The warrantless search and seizure could not likewise be categorized under exigent and
emergency
circumstances,
as
applied
in People
v. De
Gracia. 22 In said case, there were intelligence reports that the building was being used
as headquarters by the RAM during a coup d' etat. A surveillance team was fired at by
a group of armed men coming out of the building and the occupants of said building
refused to open the door despite repeated requests. There were large quantities of
explosives and ammunitions inside the building. Nearby courts were closed and
general chaos and disorder prevailed. The existing circumstances sufficiently showed
that a crime was being committed. In short, there was probable cause to effect a
warrantless search of the building. The same could not be said in the instant case.
The only other exception that could possibly legitimize the warrantless search and
seizure would be consent given by the accused-appellant to the warrantless search as to
amount to a waiver of her constitutional right. The Solicitor General argues that
accused-appellant voluntarily submitted herself to search and inspection citingPeople
v. Malasugui 23 where this Court ruled:
Q When this informant by the name of alias Benjie pointed to Aling Rosa, what
happened after that?
Q What was her reaction?

A She gave her bag to me.
Q So what happened after she gave the bag to you?
A I opened it and found out plastic bags of marijuana inside. 24
This Court cannot agree with the Solicitor General's contention for the Malasugui case
is inapplicable to the instant case. In said case, there was probable cause for the
warrantless arrest thereby making the warrantless search effected immediately
thereafter equally lawful. 25 On the contrary, the most essential element of probable
cause, as expounded above in detail, is wanting in the instant case making the
warrantless arrest unjustified and illegal. Accordingly, the search which accompanied
the warrantless arrest was likewise unjustified and illegal. Thus, all the articles seized
from the accused-appellant could not be used as evidence against her.
Aside from the inapplicability of the abovecited case, the act of herein accusedappellant in handing over her bag to the NARCOM agents could not be construed as
voluntary submission or an implied acquiescence to the unreasonable search. The
instant case is similar to People v. Encinada, 26 where this Court held:
[T]he Republic's counsel avers that appellant voluntarily handed the chairs containing
the package of marijuana to the arresting officer and thus effectively waived his right
against the warrantless search. This he gleaned from Bolonia's testimony.
into his house does not amount to a permission to make a search therein (Magoncia v.
Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de
Garcia v. Locsin (supra):
Q: After Roel Encinada alighted from the motor tricycle, what happened next?
xxx xxx xxx
A: I requested to him to see his chairs that he carried.
. . . As the constitutional guaranty is not dependent upon any affirmative act of the
citizen, the courts do not place the citizen in the position of either contesting an
officer's authority by force, or waiving his constitutional rights; but instead they hold
that a peaceful submission to a search or seizure is not a consent or an invitation
thereto, but is merely a demonstration of regard for the supremacy of the law. (Citation
omitted).
Q: Are you referring to the two plastic chairs?

A: Yes, sir.
Q: By the way, when Roel Encinada agreed to allow you to examine the two chairs that
he carried, what did you do next?
A: I examined the chairs and I noticed that something inside in between the two chairs.
We are not convinced. While in principle we agree that consent will validate an
otherwise illegal search, we believe that appellant based on the transcript quoted
above did not voluntarily consent to Bolonia's search of his belongings. Appellant's
silence should not be lightly taken as consent to such search. The implied acquiescence
to the search, if there was any, could not have been more than mere passive conformity
given under intimidating or coercive circumstances and is thus considered no consent
at all within the purview of the constitutional guarantee. Furthermore, considering that
the search was conducted irregularly, i.e., without a warrant, we cannot appreciate
consent based merely on the presumption of regularity of the performance of duty."
(Emphasis supplied)
We apply the rule that: "courts indulge every reasonable presumption against waiver of
fundamental constitutional rights and that we do not presume acquiescence in the loss
of fundamental rights." 28 (Emphasis supplied)
To repeat, to constitute a waiver, there should be an actual intention to relinquish the
right. As clearly illustrated inPeople v. Omaweng, 29 where prosecution witness Joseph
Layong testified thus:
PROSECUTOR AYOCHOK:
Q When you and David Fomocod saw the travelling bag, what did you do?
A When we saw that traveling 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?
Thus, accused-appellant's lack of objection to the search is not tantamount to a waiver

of her constitutional rights or a voluntary submission to the warrantless search. As this
Court held in People v. Barros: 27
A He said "you can see the contents but those are only clothings" (sic).
Q When he said that, what did you do?
. . . [T]he accused is not to be presumed to have waived the unlawful search conducted
on the occasion of his warrantless arrest "simply because he failed to object"
. . . To constitute a waiver, it must appear first that the right exists; secondly, that the
person involved had knowledge, actual or constructive, of the existence of such right;
and lastly, that said person had an actual intention to relinquish the right (Pasion Vda.
de Garcia v. Locsin, 65 Phil. 698). The fact that the accused failed to object to the entry
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.
Search warrants to be valid must particularly describe the place to be searched and the
persons or things to be seized. The purpose of this rule is to limit the things to be seized
to those and only those, particularly described in the warrant so as to leave the officers
of the law with no discretion regarding what articles they shall seize to the end that
unreasonable searches and seizures may not be made. 30
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. (Emphasis supplied)
In the above-mentioned case, accused was not subjected to any search which may be
stigmatized as a violation of his Constitutional right against unreasonable searches and
seizures. 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." He willingly gave prior consent to the
search and voluntarily agreed to have it conducted on his vehicle and traveling bag,
which is not the case with Aruta.
In an attempt to further justify the warrantless search, the Solicitor General next argues
that the police officers would have encountered difficulty in securing a search warrant
as it could be secured only if accused-appellant's name was known, the vehicle
identified and the date of its arrival certain, as in the Aminnudin case where the
arresting officers had forty-eight hours within which to act.
This argument is untenable.
Article IV, Section 3 of the Constitution provides:
. . . [N]o search warrant or warrant of arrest shall issue except upon probable cause to
be determined by the judge, or such other responsible officer as may be authorized by
law, after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched and the persons or
things to be seized. (Emphasis supplied)
Had the NARCOM agents only applied for a search warrant, they could have secured
one without too much difficulty, contrary to the assertions of the Solicitor General. The
person intended to be searched has been particularized and the thing to be seized
specified. The time was also sufficiently ascertained to be in the afternoon of
December 14, 1988. "Aling Rosa" turned out to be accused-appellant and the thing to
be seized was marijuana. The vehicle was identified to be a Victory Liner bus. In fact,
the NARCOM agents purposely positioned themselves near the spot where Victory
Liner buses normally unload their passengers. Assuming that the NARCOM agents
failed to particularize the vehicle, this would not in any way hinder them from securing
a search warrant. The above particulars would have already sufficed. In any case, this
Court has held that the police should particularly describe the place to be searched and
the person or things to be seized, wherever and whenever it is feasible. 31 (Emphasis
supplied)
While it may be argued that by entering a plea during arraignment and by actively
participating in the trial, accused-appellant may be deemed to have waived objections
to the illegality of the warrantless search and to the inadmissibility of the evidence
obtained thereby, the same may not apply in the instant case for the following reasons:
1. The waiver would only apply to objections pertaining to the illegality of the arrest as
her plea of "not guilty" and participation in the trial are indications of her voluntary
submission to the court's jurisdiction. 32 The plea and active participation in the trial
would not cure the illegality of the search and transform the inadmissible evidence into
objects of proof. The waiver simply does not extend this far.
2. Granting that evidence obtained through a warrantless search becomes admissible
upon failure to object thereto during the trial of the case, records show that accusedappellant filed a Demurrer to Evidence and objected and opposed the prosecution's
Formal Offer of Evidence.
It is apropos to quote the case of People v. Barros, 33 which stated:
It might be supposed that the non-admissibility of evidence secured through an invalid

warrantless arrest or a warrantless search and seizure may be waived by an accused
person. The a priori argument is that the invalidity of an unjustified warrantless arrest,
or an arrest effected with a defective warrant of arrest may be waived by applying for
and posting of bail for provisional liberty, so as to estop an accused from questioning
the legality or constitutionality of his detention or the failure to accord him a
preliminary investigation. We do not believe, however, that waiver of the latter
necessarily constitutes, or carries with it, waiver of the former an argument that the
Solicitor General appears to be making impliedly. Waiver of the non-admissibility of
the "fruits" of an invalid warrantless arrest and of a warrantless search and seizure is
not casually to be presumed, if the constitutional right against unlawful searches and
seizures is to retain its vitality for the protection of our people. In the case at bar,
defense counsel had expressly objected on constitutional grounds to the admission of
the carton box and the four (4) kilos of marijuana when these were formally offered in
evidence by the prosecution. We consider that appellant's objection to the admission of
such evidence was made clearly and seasonably and that, under the circumstances, no
intent to waive his rights under the premises can be reasonably inferred from his
conduct before or during the trial. (Emphasis supplied).
transgressing the constitutional rights of the citizens, for the enforcement of no statute
is of sufficient importance to justify indifference to the basic principles of
government. 36
In fine, there was really no excuse for the NARCOM agents not to procure a search
warrant considering that they had more than twenty-four hours to do so. Obviously, this
is again an instance of seizure of the "fruit of the poisonous tree," hence illegal and
inadmissible subsequently in evidence.
_________________
Those who are supposed to enforce the law are not justified in disregarding the rights
of the individual in the name of order. Order is too high a price to pay for the loss of
liberty. As Justice Holmes declared: "I think it is less evil that some criminals escape
than that the government should play an ignoble part." It is simply not allowed in free
society to violate a law to enforce another, especially if the law violated is the
Constitution itself. 37
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court,
Branch 73, Olongapo City, is hereby REVERSED and SET ASIDE. For lack of
evidence to establish her guilt beyond reasonable doubt, accused-appellant ROSA
ARUTA Y MENGUIN is hereby ACQUITTED and ordered RELEASED from
confinement unless she is being held for some other legal grounds. No costs.
SO ORDERED.
The exclusion of such evidence is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizure. The nonexclusionary rule is contrary to the letter and spirit of the prohibition against
unreasonable searches and seizures. 34
While conceding that the officer making the unlawful search and seizure may be held
criminally and civilly liable, theStonehill case observed that most jurisdictions have
realized that the exclusionary rule is "the only practical means of enforcing the
constitutional injunction" against abuse. This approach is based on the justification
made by Judge Learned Hand that "only in case the prosecution which itself controls
the seizing officials, knows that it cannot profit by their wrong, will the wrong be
repressed." 35
Unreasonable searches and seizures are the menace against which the constitutional
guarantees afford full protection. While the power to search and seize may at times be
necessary to the public welfare, still it may be exercised and the law enforced without
Sagada, accused took a Skyline bus with body number 8005 and Plate number AVC
902. 1
EN BANC
G.R. No. 91107 June 19, 1991
vs.
MIKAEL MALMSTEDT, *defendant-appellant.
PADILLA, J.:p
In an information dated 15 June 1989, accused-appellant Mikael Malmstedt
(hereinafter referred to as the accused) was charged before the Regional Trial Court
(RTC) of La Trinidad, Benguet, Branch 10, in Criminal Case No. 89-CR-0663, for
violation of Section 4, Art. II of Republic Act 6425, as amended, otherwise known as
the Dangerous Drugs Act of 1972, as amended. The factual background of the case is
as follows:
Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third
time in December 1988 as a tourist. He had visited the country sometime in 1982 and
1985.
In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in
the morning of the following day, he took a bus to Sagada and stayed in that place for
two (2) days.
At around 7:00 o'clock in the morning of 11 May 1989, accused went to the
Nangonogan bus stop in Sagada to catch the first available trip to Baguio City. From
Baguio City, accused planned to take a late afternoon trip to Angeles City, then proceed
to Manila to catch his flight out of the country, scheduled on 13 May 1989. From
At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen
Vasco, the Commanding Officer of the First Regional Command (NARCOM) stationed
at Camp Dangwa, ordered his men to set up a temporary checkpoint at Kilometer 14,
Acop, Tublay, Mountain Province, for the purpose of checking all vehicles coming
from the Cordillera Region. The order to establish a checkpoint in the said area was
prompted by persistent reports that vehicles coming from Sagada were transporting
marijuana and other prohibited drugs. Moreover, information was received by the
Commanding Officer of NARCOM, that same morning, that a Caucasian coming from
Sagada had in his possession prohibited drugs. 2
The group composed of seven (7) NARCOM officers, in coordination with Tublay
Police Station, set up a checkpoint at the designated area at about 10:00 o'clock in the
morning and inspected all vehicles coming from the Cordillera Region.
At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped.
Sgt. Fider and CIC Galutan boarded the bus and announced that they were members of
the NARCOM and that they would conduct an inspection. The two (2) NARCOM
officers started their inspection from the front going towards the rear of the bus.
Accused who was the sole foreigner riding the bus was seated at the rear thereof.
During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the
bulge on accused's waist to be a gun, the officer asked for accused's passport and other
identification papers. When accused failed to comply, the officer required him to bring
out whatever it was that was bulging on his waist. The bulging object turned out to be a
pouch bag and when accused opened the same bag, as ordered, the officer noticed four
(4) suspicious-looking objects wrapped in brown packing tape, prompting the officer to
open one of the wrapped objects. The wrapped objects turned out to contain hashish, a
derivative of marijuana.
Thereafter, accused was invited outside the bus for questioning. But before he alighted
from the bus, accused stopped to get two (2) travelling bags from the luggage carrier.
Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear
was found in each bag. Feeling the teddy bears, the officer noticed that there were
bulges inside the same which did not feel like foam stuffing. It was only after the
officers had opened the bags that accused finally presented his passport.
Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La
Trinidad, Benguet for further investigation. At the investigation room, the officers
opened the teddy bears and they were found to also contain hashish. Representative
samples were taken from the hashish found among the personal effects of accused and
the same were brought to the PC Crime Laboratory for chemical analysis.
WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond
reasonable doubt, this Court finds him GUILTY of violation of Section 4, Article 11 of
Republic Act 6425, as amended, and hereby sentences him to suffer the penalty of life
imprisonment and to pay a fine of Twenty Thousand Pesos (P20,000.00), with
subsidiary imprisonment in case of insolvency and to pay the costs.
In the chemistry report, it was established that the objects examined were hashish. a
prohibited drug which is a derivative of marijuana. Thus, an information was filed
against accused for violation of the Dangerous Drugs Act.
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.
During the arraignment, accused entered a plea of "not guilty." For his defense, he
raised the issue of illegal search of his personal effects. He also claimed that the
hashish was planted by the NARCOM officers in his pouch bag and that the two (2)
travelling bags were not owned by him, but were merely entrusted to him by an
Australian couple whom he met in Sagada. He further claimed that the Australian
couple intended to take the same bus with him but because there were no more seats
available in said bus, they decided to take the next ride and asked accused to take
charge of the bags, and that they would meet each other at the Dangwa Station.
SO ORDERED. 4
Likewise, accused alleged that when the NARCOM officers demanded for his passport
and other Identification papers, he handed to one of the officers his pouch bag which
was hanging on his neck containing, among others, his passport, return ticket to
Sweden and other papers. The officer in turn handed it to his companion who brought
the bag outside the bus. When said officer came back, he charged the accused that there
was hashish in the bag. He was told to get off the bus and his picture was taken with
the pouch bag placed around his neck. The trial court did not give credence to accused's
defense.
The claim of the accused that the hashish was planted by the NARCOM officers, was
belied by his failure to raise such defense at the earliest opportunity. When accused was
investigated at the Provincial Fiscal's Office, he did not inform the Fiscal or his lawyer
that the hashish was planted by the NARCOM officers in his bag. It was only two (2)
months after said investigation when he told his lawyer about said claim, denying
ownership of the two (2) travelling bags as well as having hashish in his pouch bag.
In a decision dated 12 October 1989, the trial court found accused guilty beyond
reasonable doubt for violation of the Dangerous Drugs Act, specifically Section 4, Art.
II of RA 6425, as amended. 3 The dispositive portion of the decision reads as follows:
Seeking the reversal of the decision of the trial court finding him guilty of the crime
charged, accused argues that the search of his personal effects was illegal because it
was made without a search warrant and, therefore, the prohibited drugs which were
discovered during the illegal search are not admissible as evidence against him.
The Constitution guarantees the right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures. 5 However,
where the search is made pursuant to a lawful arrest, there is no need to obtain a search
warrant. A lawful arrest without a warrant may be made by a peace officer or a private
person under the following circumstances. 6
Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed is actually
to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
proceeded against in accordance with Rule 112, Section 7. (6a 17a).
Accused was searched and arrested while transporting prohibited drugs (hashish). A
crime was actually being committed by the accused and he was caught in flagrante
delicto. Thus, the search made upon his personal effects falls squarely under paragraph
(1) of the foregoing provisions of law, which allow a warrantless search incident to a
lawful arrest. 7
While it is true that the NARCOM officers were not armed with a search warrant when
the search was made over the personal effects of accused, however, under the
circumstances of the case, there was sufficient probable cause for said officers to
believe that accused was then and there committing a crime.
Probable cause has been defined as such facts and circumstances which could lead a
reasonable, discreet and prudent man to believe that an offense has been committed,
and that the objects sought in connection with the offense are in the place sought to be
searched. 8 The required probable cause that will justify a warrantless search and
seizure is not determined by any fixed formula but is resolved according to the facts of
each case. 9
Warrantless search of the personal effects of an accused has been declared by this
Court as valid, because of existence of probable cause, where the smell of marijuana
emanated from a plastic bag owned by the accused, 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 transporting marijuana and other prohibited drugs, their Commanding
Officer also received information that a Caucasian coming from Sagada on that
particular day had prohibited drugs in his possession. Said information was received by
the Commanding Officer of NARCOM the very same morning that accused came
down by bus from Sagada on his way to Baguio City.
When NARCOM received the information, a few hours before the apprehension of
herein accused, that a Caucasian travelling from Sagada to Baguio City was carrying
with him prohibited drugs, there was no time to obtain a search warrant. In
the Tangliben case, 13 the police authorities conducted a surveillance at the Victory
Liner Terminal located at Bgy. San Nicolas, San Fernando Pampanga, against persons
engaged in the traffic of dangerous drugs, based on information supplied by some

informers. Accused Tangliben who was acting suspiciously and pointed out by an
informer was apprehended and searched by the police authorities. It was held that when
faced with on-the-spot information, the police officers had to act quickly and there was
no time to secure a search warrant.
It must be observed that, at first, the NARCOM officers merely conducted a routine
check of the bus (where accused was riding) and the passengers therein, and no
extensive search was initially made. It was only when one of the officers noticed a
bulge on the waist of accused, during the course of the inspection, that accused was
required to present his passport. The failure of accused to present his identification
papers, when ordered to do so, only managed to arouse the suspicion of the officer that
accused was trying to hide his identity. For is it not a regular norm for an innocent man,
who has nothing to hide from the authorities, to readily present his identification papers
when required to do so?
The receipt of information by NARCOM that a Caucasian coming from Sagada had
prohibited drugs in his possession, plus the suspicious failure of the accused to produce
his passport, taken together as a whole, led the NARCOM officers to reasonably
believe that the accused was trying to hide something illegal from the authorities. From
these circumstances arose a probable cause which justified the warrantless search that
was made on the personal effects of the accused. In other words, the acts of the
NARCOM officers in requiring the accused to open his pouch bag and in opening one
of the wrapped objects found inside said bag (which was discovered to contain hashish)
as well as the two (2) travelling bags containing two (2) teddy bears with hashish
stuffed inside them, were prompted by accused's own attempt to hide his identity by
refusing to present his passport, and by the information received by the NARCOM that
a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive
the NARCOM agents of the ability and facility to act accordingly, including, to search
even without warrant, in the light of such circumstances, would be to sanction
impotence and ineffectiveness in law enforcement, to the detriment of society.
WHEREFORE, premises considered, the appealed judgment of conviction by the trial
court is hereby AFFIRMED. Costs against the accused-appellant.
SO ORDERED.
______________
EN BANC
G.R. No. L-27360
February 28, 1968
HON. RICARDO G. PAPA, as Chief of Police of Manila; HON. JUAN PONCE

ENRILE, as Commissioner of Customs; PEDRO PACIS, as Collector of Customs
of the Port of Manila; and MARTIN ALAGAO, as Patrolman of the Manila Police
Department, petitioners,
vs.
REMEDIOS MAGO and HILARION U. JARENCIO, as Presiding Judge of
Branch 23, Court of First Instance of Manila, respondents.
ZALDIVAR, J.:
This is an original action for prohibition and certiorari, with preliminary
injunction filed by Ricardo Papa, Chief of Police of Manila; Juan once Enrile,
Commissioner of Customs; Pedro Pacis, Collector of Customs of the Port of Manila;
and Martin Alagao, a patrolman of the Manila Police Department, against Remedios
Mago and Hon. Hilarion Jarencio, Presiding Judge of Branch 23 of the Court of First
Instance of Manila, praying for the annulment of the order issued by respondent Judge
in Civil Case No. 67496 of the Court of First Instance of Manila under date of March 7,
1967, which authorized the release under bond of certain goods which were seized and
held by petitioners in connection with the enforcement of the Tariff and Customs Code,
but which were claimed by respondent Remedios Mago, and to prohibit respondent
Judge from further proceeding in any manner whatsoever in said Civil Case No. 67496.
Pending the determination of this case this Court issued a writ of preliminary
injunction restraining the respondent Judge from executing, enforcing and/or
implementing the questioned order in Civil Case No. 67496 and from proceeding with
said case.
Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila
Police Department, acting upon a reliable information received on November 3, 1966
to the effect that a certain shipment of personal effects, allegedly misdeclared and
undervalued, would be released the following day from the customs zone of the port of
Manila and loaded on two trucks, and upon orders of petitioner Ricardo Papa, Chief of
Police of Manila and a duly deputized agent of the Bureau of Customs, conducted
surveillance at gate No. 1 of the customs zone. When the trucks left gate No. 1 at about
4:30 in the afternoon of November 4, 1966, elements of the counter-intelligence unit
went after the trucks and intercepted them at the Agrifina Circle, Ermita, Manila. The
load of the two trucks consisting of nine bales of goods, and the two trucks, were
seized on instructions of the Chief of Police. Upon investigation, a person claimed
ownership of the goods and showed to the policemen a "Statement and Receipts of
Duties Collected in Informal Entry No. 147-5501", issued by the Bureau of Customs in
the name of a certain Bienvenido Naguit.
Claiming to have been prejudiced by the seizure and detention of the two trucks
and their cargo, Remedios Mago and Valentin B. Lanopa filed with the Court of First
Instance of Manila a petition "for mandamus with restraining order or preliminary
injunction, docketed as Civil Case No. 67496, alleging, among others, that Remedios
Mago was the owner of the goods seized, having purchased them from the Sta. Monica
Grocery in San Fernando, Pampanga; that she hired the trucks owned by Valentin
Lanopa to transport, the goods from said place to her residence at 1657 Laon Laan St.,
Sampaloc, Manila; that the goods were seized by members of the Manila Police
Department without search warrant issued by a competent court; that anila Chief of
Police Ricardo Papa denied the request of counsel for Remedios Mago that the bales be
not opened and the goods contained therein be not examined; that then Customs
Commissioner Jacinto Gavino had illegally assigned appraisers to examine the goods
because the goods were no longer under the control and supervision of the
Commissioner of Customs; that the goods, even assuming them to have been
misdeclared and, undervalued, were not subject to seizure under Section 2531 of the
Tariff and Customs Code because Remedios Mago had bought them from another
person without knowledge that they were imported illegally; that the bales had not yet
been opened, although Chief of Police Papa had arranged with the Commissioner of
Customs regarding the disposition of the goods, and that unless restrained their
constitutional rights would be violated and they would truly suffer irreparable injury.
Hence, Remedios Mago and Valentin Lanopa prayed for the issuance of a restraining
order, ex parte, enjoining the above-named police and customs authorities, or their
agents, from opening the bales and examining the goods, and a writ of mandamus for
the return of the goods and the trucks, as well as a judgment for actual, moral and
exemplary damages in their favor.
On November 10, 1966, respondent Judge Hilarion Jarencio issued an order ex
parte restraining the respondents in Civil Case No. 67496 now petitioners in the
instant case before this Court from opening the nine bales in question, and at the
same time set the hearing of the petition for preliminary injunction on November 16,
1966. However, when the restraining order was received by herein petitioners, some
bales had already been opened by the examiners of the Bureau of Customs in the
presence of officials of the Manila Police Department, an assistant city fiscal and a
representative of herein respondent Remedios Mago.
Under date of November 15, 1966, Remedios Mago filed an amended petition in
Civil Case No. 67496, including as party defendants Collector of Customs Pedro Pacis
of the Port of Manila and Lt. Martin Alagao of the Manila Police Department. Herein
petitioners (defendants below) filed, on November 24, 1966, their "Answer with
Opposition to the Issuance of a Writ of Preliminary Injunction", denying the alleged
illegality of the seizure and detention of the goods and the trucks and of their other
actuations, and alleging special and affirmative defenses, to wit: that the Court of First
Instance of Manila had no jurisdiction to try the case; that the case fell within the
exclusive jurisdiction of the Court of Tax Appeals; that, assuming that the court had
jurisdiction over the case, the petition stated no cause of action in view of the failure of
Remedios Mago to exhaust the administrative remedies provided for in the Tariff and
Customs Code; that the Bureau of Customs had not lost jurisdiction over the goods
because the full duties and charges thereon had not been paid; that the members of the
Manila Police Department had the power to make the seizure; that the seizure was not
unreasonable; and the persons deputized under Section 2203 (c) of the Tariff and
Customs Code could effect search, seizures and arrests in inland places in connection
with the enforcement of the said Code. In opposing the issuance of the writ of
preliminary injunction, herein petitioners averred in the court below that the writ could
not be granted for the reason that Remedios Mago was not entitled to the main reliefs
she prayed for; that the release of the goods, which were subject to seizure proceedings
under the Tariff and Customs Code, would deprive the Bureau of Customs of the
authority to forfeit them; and that Remedios Mago and Valentin Lanopa would not
suffer irreparable injury. Herein petitioners prayed the court below for the lifting of the
restraining order, for the denial of the issuance of the writ of preliminary injunction,
and for the dismissal of the case.
At the hearing on December 9, 1966, the lower Court, with the conformity of the
parties, ordered that an inventory of the goods be made by its clerk of court in the
presence of the representatives of the claimant of the goods, the Bureau of Customs,
and the Anti-Smuggling Center of the Manila Police Department. On December 13,
1966, the above-named persons filed a "Compliance" itemizing the contents of the nine
bales.
Herein respondent Remedios Mago, on December 23, 1966, filed an ex
parte motion to release the goods, alleging that since the inventory of the goods seized
did not show any article of prohibited importation, the same should be released as per
agreement of the patties upon her posting of the appropriate bond that may be
determined by the court. Herein petitioners filed their opposition to the motion,
alleging that the court had no jurisdiction to order the release of the goods in view of
the fact that the court had no jurisdiction over the case, and that most of the goods, as
shown in the inventory, were not declared and were, therefore, subject to forfeiture. A
supplemental opposition was filed by herein petitioners on January 19, 1967, alleging
that on January 12, 1967 seizure proceedings against the goods had been instituted by
the Collector of Customs of the Port of Manila, and the determination of all questions
affecting the disposal of property proceeded against in seizure and forfeiture
proceedings should thereby be left to the Collector of Customs. On January 30, 1967,
herein petitioners filed a manifestation that the estimated duties, taxes and other
charges due on the goods amounted to P95,772.00. On February 2, 1967, herein
respondent Remedios Mago filed an urgent manifestation and reiteration of the motion
for the release under bond of the goods.
On March 7, 1967, the respondent Judge issued an order releasing the goods to
herein respondent Remedios Mago upon her filing of a bond in the amount of
P40,000.00, and on March 13, 1967, said respondent filed the corresponding bond.
On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed a
motion for reconsideration of the order of the court releasing the goods under bond,
upon the ground that the Manila Police Department had been directed by the Collector
of Customs of the Port of Manila to hold the goods pending termination of the seizure
proceedings.
Without waiting for the court's action on the motion for reconsideration, and
alleging that they had no plain, speedy and adequate remedy in the ordinary course of
law, herein petitioners filed the present action for prohibition and certiorari with
preliminary injunction before this Court. In their petition petitioners alleged, among
others, that the respondent Judge acted without jurisdiction in ordering the release to
respondent Remedios Mago of the disputed goods, for the following reasons: (1) the
Court of First Instance of Manila, presided by respondent Judge, had no jurisdiction
over the case; (2) respondent Remedios Mago had no cause of action in Civil Case No.
67496 of the Court of First Instance of Manila due to her failure to exhaust all
administrative remedies before invoking judicial intervention; (3) the Government was
not estopped by the negligent and/or illegal acts of its agent in not collecting the correct
taxes; and (4) the bond fixed by respondent Judge for the release of the goods was
grossly insufficient.
In due time, the respondents filed their answer to the petition for prohibition
and certiorari in this case. In their answer, respondents alleged, among others: (1) that
it was within the jurisdiction of the lower court presided by respondent Judge to hear
and decide Civil Case No. 67496 and to issue the questioned order of March 7, 1967,
because said Civil Case No. 67496 was instituted long before seizure, and
identification proceedings against the nine bales of goods in question were instituted by
the Collector of Customs; (2) that petitioners could no longer go after the goods in
question after the corresponding duties and taxes had been paid and said goods had left
the customs premises and were no longer within the control of the Bureau of Customs;
(3) that respondent Remedios Mago was purchaser in good faith of the goods in
question so that those goods can not be the subject of seizure and forfeiture
proceedings; (4) that the seizure of the goods was affected by members of the Manila
Police Department at a place outside control of jurisdiction of the Bureau of Customs
and affected without any search warrant or a warrant of seizure and detention; (5) that
the warrant of seizure and detention subsequently issued by the Collector of Customs is
illegal and unconstitutional, it not being issued by a judge; (6) that the seizing officers
have no authority to seize the goods in question because they are not articles of
prohibited importation; (7) that petitioners are estopped to institute the present action
because they had agreed before the respondent Judge that they would not interpose any
objection to the release of the goods under bond to answer for whatever duties and
taxes the said goods may still be liable; and (8) that the bond for the release of the
goods was sufficient.
The principal issue in the instant case is whether or not, the respondent Judge
had acted with jurisdiction in issuing the order of March 7, 1967 releasing the goods in
question.
The Bureau of Customs has the duties, powers and jurisdiction, among others,
(1) to assess and collect all lawful revenues from imported articles, and all other dues,
fees, charges, fines and penalties, accruing under the tariff and customs laws; (2) to
prevent and suppress smuggling and other frauds upon the customs; and (3) to enforce
tariff and customs laws. 1 The goods in question were imported from Hongkong, as
shown in the "Statement and Receipts of Duties Collected on Informal Entry". 2 As long
as the importation has not been terminated the imported goods remain under the
jurisdiction of the Bureau of customs. Importation is deemed terminated only upon the
payment of the duties, taxes and other charges upon the articles, or secured to be paid,
at the port of entry and the legal permit for withdrawal shall have been granted. 3 The
payment of the duties, taxes, fees and other charges must be in full. 4
The record shows, by comparing the articles and duties stated in the aforesaid
"Statement and Receipts of Duties Collected on Informal Entry" with the manifestation
of the Office of the Solicitor General 5 wherein it is stated that the estimated duties,
taxes and other charges on the goods subject of this case amounted to P95,772.00 as
evidenced by the report of the appraiser of the Bureau of Customs, that the duties, taxes
and other charges had not been paid in full. Furthermore, a comparison of the goods on
which duties had been assessed, as shown in the "Statement and Receipts of Duties
Collected on Informal Entry" and the "compliance" itemizing the articles found in the
bales upon examination and inventory, 6 shows that the quantity of the goods was
underdeclared, presumably to avoid the payment of duties thereon. For example,
Annex B (the statement and receipts of duties collected) states that there were 40
pieces of ladies' sweaters, whereas Annex H (the inventory contained in the
"compliance") states that in bale No. 1 alone there were 42 dozens and 1 piece of
ladies' sweaters of assorted colors; in Annex B, only 100 pieces of watch bands were
assessed, but in Annex H, there were in bale No. 2, 209 dozens and 5 pieces of men's
metal watch bands (white) and 120 dozens of men's metal watch band (gold color), and
in bale No. 7, 320 dozens of men's metal watch bands (gold color); in Annex B, 20
dozens only of men's handkerchief were declared, but in Annex H it appears that there
were 224 dozens of said goods in bale No. 2, 120 dozens in bale No. 6, 380 dozens in
bale No. 7, 220 dozens in bale No. 8, and another 200 dozens in bale No. 9. The
articles contained in the nine bales in question, were, therefore, subject to forfeiture
under Section 2530, pars. e and m, (1), (3), (4), and (5) of the Tariff and Customs Code.
And this Court has held that merchandise, the importation of which is effected contrary
to law, is subject to forfeiture, 7 and that goods released contrary to law are subject to
seizure and forfeiture. 8
Even if it be granted, arguendo, that after the goods in question had been brought
out of the customs area the Bureau of Customs had lost jurisdiction over the same,
nevertheless, when said goods were intercepted at the Agrifina Circle on November 4,
1966 by members of the Manila Police Department, acting under directions and orders
of their Chief, Ricardo C. Papa, who had been formally deputized by the
Commissioner of Customs, 9 the Bureau of Customs had regained jurisdiction and
custody of the goods. Section 1206 of the Tariff and Customs Code imposes upon the
Collector of Customs the duty to hold possession of all imported articles upon which
duties, taxes, and other charges have not been paid or secured to be paid, and to dispose
of the same according to law. The goods in question, therefore, were under the custody
and at the disposal of the Bureau of Customs at the time the petition for mandamus,
docketed as Civil Case No. 67496, was filed in the Court of First Instance of Manila on
November 9, 1966. The Court of First Instance of Manila, therefore, could not exercise
jurisdiction over said goods even if the warrant of seizure and detention of the goods
for the purposes of the seizure and forfeiture proceedings had not yet been issued by
the Collector of Customs.
The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et al.,"
G.R. No. L-24037, decided by this Court on April 27, 1967, is squarely applicable to
the instant case. In the De Joya case, it appears that Francindy Commercial of Manila
bought from Ernerose Commercial of Cebu City 90 bales of assorted textiles and rags,
valued at P117,731.00, which had been imported and entered thru the port of Cebu.
Ernerose Commercial shipped the goods to Manila on board an inter-island vessel.
When the goods where about to leave the customs premises in Manila, on October 6,
1964, the customs authorities held them for further verification, and upon examination
the goods were found to be different from the declaration in the cargo manifest of the
carrying vessel. Francindy Commercial subsequently demanded from the customs
authorities the release of the goods, asserting that it is a purchaser in good faith of those
goods; that a local purchaser was involved so the Bureau of Customs had no right to
examine the goods; and that the goods came from a coastwise port. On October 26,
1964, Francindy Commercial filed in the Court of First Instance of Manila a petition
for mandamus against the Commissioner of Customs and the Collector of Customs of
the port of Manila to compel said customs authorities to release the goods.
Francindy Commercial alleged in its petition for mandamus that the Bureau of
Customs had no jurisdiction over the goods because the same were not imported to the
port of Manila; that it was not liable for duties and taxes because the transaction was
not an original importation; that the goods were not in the hands of the importer nor
subject to importer's control, nor were the goods imported contrary to law with its
(Francindy Commercial's) knowledge; and that the importation had been terminated.
On November 12, 1964, the Collector of Customs of Manila issued a warrant of seizure
and identification against the goods. On December 3, 1964, the Commissioner of
Customs and the Collector of Customs, as respondents in the mandamus case, filed a
motion to dismiss the petition on the grounds of lack of jurisdiction, lack of cause of
action, and in view of the pending seizure and forfeiture proceedings. The Court of
First Instance held resolution on the motion to dismiss in abeyance pending decision on
the merits. On December 14, 1964, the Court of First Instance of Manila issued a
preventive and mandatory injunction, on prayer by Francindy Commercial, upon a
bond of P20,000.00. The Commissioner of Customs and the Collector of Customs
sought the lifting of the preliminary and mandatory injunction, and the resolution of
their motion to dismiss. The Court of First Instance of Manila, however, on January 12,
1965, ordered them to comply with the preliminary and mandatory injunction, upon the
filing by Francindy Commercial of an additional bond of P50,000.00. Said customs
authorities thereupon filed with this Court, on January 14, 1965, a petition
for certiorari and prohibition with preliminary injunction. In resolving the question
raised in that case, this Court held:
This petition raises two related issues: first, has the Customs bureau jurisdiction
to seize the goods and institute forfeiture proceedings against them? and (2) has the
Court of First Instance jurisdiction to entertain the petition for mandamus to compel the
Customs authorities to release the goods?
Francindy Commercial contends that since the petition in the Court of first
Instance was filed (on October 26, 1964) ahead of the issuance of the Customs warrant
of seizure and forfeiture (on November 12, 1964),the Customs bureau should yield the
jurisdiction of the said court.
The record shows, however, that the goods in question were actually seized on
October 6, 1964, i.e., before Francindy Commercial sued in court. The purpose of the
seizure by the Customs bureau was to verify whether or not Custom duties and taxes
were paid for their importation. Hence, on December 23, 1964, Customs released 22
bales thereof, for the same were found to have been released regularly from the Cebu
Port (Petition Annex "L"). As to goods imported illegally or released irregularly from
Customs custody, these are subject to seizure under Section 2530 m. of the Tariff and
Customs Code (RA 1957).
The Bureau of Customs has jurisdiction and power, among others to collect
revenues from imported articles, fines and penalties and suppress smuggling and other
frauds on customs; and to enforce tariff and customs laws (Sec. 602, Republic Act
1957).
The goods in question are imported articles entered at the Port of Cebu. Should
they be found to have been released irregularly from Customs custody in Cebu City,
they are subject to seizure and forfeiture, the proceedings for which comes within the
jurisdiction of the Bureau of Customs pursuant to Republic Act 1937.
Said proceeding should be followed; the owner of the goods may set up defenses
therein (Pacis v. Averia, L-22526, Nov. 20, 1966.) From the decision of the
Commissioner of Customs appeal lies to the Court of Tax Appeals, as provided in Sec.
2402 of Republic Act 1937 and Sec. 11 of Republic Act, 1125. To permit recourse to
the Court of First Instance in cases of seizure of imported goods would in effect render
ineffective the power of the Customs authorities under the Tariff and Customs Code
and deprive the Court of Tax Appeals of one of its exclusive appellate jurisdictions. As
this Court has ruled in Pacis v. Averia,supra, Republic Acts 1937 and 1125 vest
jurisdiction over seizure and forfeiture proceedings exclusively upon the Bureau of
Customs and the Court of Tax Appeals. Such law being special in nature, while the
Judiciary Act defining the jurisdiction of Courts of First Instance is a general
legislation, not to mention that the former are later enactments, the Court of First
Instance should yield to the jurisdiction of the Customs authorities.
It is the settled rule, therefore, that the Bureau of Customs acquires exclusive
jurisdiction over imported goods, for the purposes of enforcement of the customs laws,
from the moment the goods are actually in its possession or control, even if no warrant
of seizure or detention had previously been issued by the Collector of Customs in
connection with seizure and forfeiture proceedings. In the present case, the Bureau of
Customs actually seized the goods in question on November 4, 1966, and so from that
date the Bureau of Customs acquired jurisdiction over the goods for the purposes of the
enforcement of the tariff and customs laws, to the exclusion of the regular courts. Much
less then would the Court of First Instance of Manila have jurisdiction over the goods
in question after the Collector of Customs had issued the warrant of seizure and
detention on January 12, 1967. 10 And so, it cannot be said, as respondents contend, that
the issuance of said warrant was only an attempt to divest the respondent Judge of
jurisdiction over the subject matter of the case. The court presided by respondent Judge
did not acquire jurisdiction over the goods in question when the petition
for mandamus was filed before it, and so there was no need of divesting it of
jurisdiction. Not having acquired jurisdiction over the goods, it follows that the Court
of First Instance of Manila had no jurisdiction to issue the questioned order of March 7,
1967 releasing said goods.
Respondents also aver that petitioner Martin Alagao, an officer of the Manila
Police Department, could not seize the goods in question without a search warrant.
This contention cannot be sustained. The Chief of the Manila Police Department,
Ricardo G. Papa, having been deputized in writing by the Commissioner of Customs,
could, for the purposes of the enforcement of the customs and tariff laws, effect
searches, seizures, and arrests,11 and it was his duty to make seizure, among others, of
any cargo, articles or other movable property when the same may be subject to
forfeiture or liable for any fine imposed under customs and tariff laws. 12 He could
lawfully open and examine any box, trunk, envelope or other container wherever found
when he had reasonable cause to suspect the presence therein of dutiable articles
introduced into the Philippines contrary to law; and likewise to stop, search and
examine any vehicle, beast or person reasonably suspected of holding or conveying
such article as aforesaid. 13 It cannot be doubted, therefore, that petitioner Ricardo G.
Papa, Chief of Police of Manila, could lawfully effect the search and seizure of the
goods in question. The Tariff and Customs Code authorizes him to demand assistance
of any police officer to effect said search and seizure, and the latter has the legal duty
to render said assistance. 14 This was what happened precisely in the case of Lt. Martin
Alagao who, with his unit, made the search and seizure of the two trucks loaded with
the nine bales of goods in question at the Agrifina Circle. He was given authority by
the Chief of Police to make the interception of the cargo. 15
Petitioner Martin Alagao and his companion policemen had authority to effect
the seizure without any search warrant issued by a competent court. The Tariff and
Customs Code does not require said warrant in the instant case. The Code authorizes
persons having police authority under Section 2203 of the Tariff and Customs Code to
enter, pass through or search any land, inclosure, warehouse, store or building, not
being a dwelling house; and also to inspect, search and examine any vessel or aircraft
and any trunk, package, or envelope or any person on board, or to stop and search and
examine any vehicle, beast or person suspected of holding or conveying any dutiable or
prohibited article introduced into the Philippines contrary to law, without mentioning
the need of a search warrant in said cases. 16 But in the search of a dwelling house, the
Code provides that said "dwelling house may be entered and searched only upon
warrant issued by a judge or justice of the peace. . . ." 17 It is our considered view,
therefor, that except in the case of the search of a dwelling house, persons exercising
police authority under the customs law may effect search and seizure without a search
warrant in the enforcement of customs laws.
Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R.,
790, 799, wherein the court, considering a legal provision similar to Section 2211 of
the Philippine Tariff and Customs Code, said as follows:
Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L.231, 232, chap.
94), it was made lawful for customs officers not only to board and search vessels
within their own and adjoining districts, but also to stop, search and examine any
vehicle, beast or person on which or whom they should suspect there was merchandise
which was subject to duty, or had been introduced into the United States in any manner
contrary to law, whether by the person in charge of the vehicle or beast or otherwise,
and if they should find any goods, wares, or merchandise thereon, which they had
probably cause to believe had been so unlawfully brought into the country, to seize and
secure the same, and the vehicle or beast as well, for trial and forfeiture. This Act was
renewed April 27, 1816 (3 Sta. at L. 315, chap. 100), for a year and expired. The Act of
February 28, 1865, revived 2 of the Act of 1815, above described, chap. 67, 13 Stat.
at L. 441. The substance of this section was re-enacted in the 3d section of the Act of
July 18, 1866, chap. 201, 14 Stat. at L. 178, and was thereafter embodied in the
Revised Statutes as 3061, Comp. Stat. 5763, 2 Fed. Stat. Anno. 2d ed. p. 1161.
Neither 3061 nor any of its earlier counterparts has ever been attacked as
unconstitutional. Indeed, that section was referred to and treated as operative by this
court in Von Cotzhausen v. Nazro, 107 U.S. 215, 219, 27 L. ed. 540, 541, 2 Sup. Ct.
Rep. 503. . . .
In the instant case, we note that petitioner Martin Alagao and his companion
policemen did not have to make any search before they seized the two trucks and their
cargo. In their original petition, and amended petition, in the court below Remedios
Mago and Valentin Lanopa did not even allege that there was a search. 18 All that they
complained of was,
That while the trucks were on their way, they were intercepted without any
search warrant near the Agrifina Circle and taken to the Manila Police Department,
where they were detained.
But even if there was a search, there is still authority to the effect that no search
warrant would be needed under the circumstances obtaining in the instant case. Thus, it
has been held that:
Thus contemporaneously with the adoption of the 4th Amendment, we find in the
first Congress, and in the following second and fourth Congresses, a difference made
as to the necessity for a search warrant between goods subject to forfeiture, when
concealed in a dwelling house of similar place, and like goods in course of
transportation and concealed in a movable vessel, where readily they could be put out
of reach of a search warrant. . . .
The guaranty of freedom from unreasonable searches and seizures is construed

as recognizing a necessary difference between a search of a dwelling house or other
structure in respect of which a search warrant may readily be obtained and a search of a
ship, motorboat, wagon, or automobile for contraband goods, where it is not
practicable to secure a warrant because the vehicle can be quickly moved out of the
locality or jurisdiction in which the warrant must be sought. (47 Am. Jur., pp. 513-514,
citing Carroll v. United States, 267 U.S. 132, 69 L. ed., 543, 45 S. Ct., 280, 39 A.L.R.,
790; People v. Case, 320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686.)
In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686),
the question raised by defendant's counsel was whether an automobile truck or an
automobile could be searched without search warrant or other process and the goods
therein seized used afterwards as evidence in a trial for violation of the prohibition
laws of the State. Same counsel contended the negative, urging the constitutional
provision forbidding unreasonable searches and seizures. The Court said:
. . . Neither our state nor the Federal Constitution directly prohibits search and
seizure without a warrant, as is sometimes asserted. Only "unreasonable" search and
seizure is forbidden. . . .
. . . The question whether a seizure or a search is unreasonable in the language of
the Constitution is a judicial and not a legislative question; but in determining whether
a seizure is or is not unreasonable, all of the circumstances under which it is made must
be looked to.
The automobile is a swift and powerful vehicle of recent development, which has
multiplied by quantity production and taken possession of our highways in battalions
until the slower, animal-drawn vehicles, with their easily noted individuality, are rare.
Constructed as covered vehicles to standard form in immense quantities, and with a
capacity for speed rivaling express trains, they furnish for successful commission of
crime a disguising means of silent approach and swift escape unknown in the history of
the world before their advent. The question of their police control and reasonable
search on highways or other public places is a serious question far deeper and broader
than their use in so-called "bootleging" or "rum running," which is itself is no small
matter. While a possession in the sense of private ownership, they are but a vehicle
constructed for travel and transportation on highways. Their active use is not in homes
or on private premises, the privacy of which the law especially guards from search and
seizure without process. The baffling extent to which they are successfully utilized to
facilitate commission of crime of all degrees, from those against morality, chastity, and
decency, to robbery, rape, burglary, and murder, is a matter of common knowledge.
Upon that problem a condition, and not a theory, confronts proper administration of our
criminal laws. Whether search of and seizure from an automobile upon a highway or
other public place without a search warrant is unreasonable is in its final analysis to be
determined as a judicial question in view of all the circumstances under which it is
made.
Having declared that the seizure by the members of the Manila Police
Department of the goods in question was in accordance with law and by that seizure
the Bureau of Customs had acquired jurisdiction over the goods for the purpose of the
enforcement of the customs and tariff laws, to the exclusion of the Court of First
Instance of Manila, We have thus resolved the principal and decisive issue in the
present case. We do not consider it necessary, for the purposes of this decision, to
discuss the incidental issues raised by the parties in their pleadings.
WHEREFORE, judgment is hereby rendered, as follows:
(a) Granting the writ of certiorari and prohibition prayed for by petitioners;
(b) Declaring null and void, for having been issued without jurisdiction, the
order of respondent Judge Hilarion U. Jarencio, dated March 7, 1967, in Civil Code
No. 67496 of the Court of First Instance of Manila;
(c) Declaring permanent the preliminary injunction issued by this Court on
March 31, 1967 restraining respondent Judge from executing, enforcing and/or
implementing his order of March 7, 1967 in Civil Case No. 67496 of the Court of First
Instance of Manila, and from proceeding in any manner in said case;
(d) Ordering the dismissal of Civil Case No. 67496 of the Court of First Instance
of Manila; and1wph1.t
(e) Ordering the private respondent, Remedios Mago, to pay the costs.
It is so ordered.
________________
FIRST DIVISION
G.R. No. 88017 January 21, 1991
THE
PEOPLE
OF
THE
vs.
LO HO WING alias PETER LO, LIM CHENG HUAT alias ANTONIO LIM and
REYNALDO TIA y SANTIAGO, defendants. LO HO WING alias PETER
LO, defendant-appellant.
GANCAYCO, J.:p
This case involves the unlawful transport of metamphetamine, a regulated drug under
Republic Act No. 6425, as amended. One of its derivatives is metamphetamine
hydrochloride, notoriously known in street parlance as "shabu" or "poor man's
cocaine."
Appellant Peter Lo, together with co-accused Lim Cheng Huat alias Antonio Lim and
Reynaldo Tia, were charged with a violation of Section 15, Article III of the
aforementioned statute otherwise known as the Dangerous Drugs Act of 1972, before
Branch 114 of the Regional Trial Court of Pasay City. Only appellant and co-accused
Lim Cheng Huat were convicted. They were sentenced to suffer life imprisonment, to
pay a fine of P25,000.00 each, and to pay the costs. Their co-accused Reynaldo Tia was
discharged as a state witness. The pertinent portion of the information reads as follows:
That on or about the 6th day of October, 1987, in Pasay City, Metro Manila, and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping one another, without authority of law, did
then and there willfully, unlawfully and feloniously deliver, dispatch or transport 56
teabags of Metamphetamine, a regulated drug.
Contrary to law. 1
The antecedent facts of the case as found by the trial court are as follows:
In July 1987, the Special Operations Group, a unit of the Criminal Investigation
Service (CIS) of the Philippine Constabulary (PC), received a tip from one of its
informers about an organized group engaged in the importation of illegal drugs,
smuggling of contraband goods, and gunrunning. After an evaluation of the
information thus received, a project codenamed "OPLAN SHARON 887" was created
in order to bust the suspected syndicate.
As part of the operations, the recruitment of confidential men and "deep penetration
agents' was carried out to infiltrate the crime syndicate. One of those recruited was the
discharged accused, Reynaldo Tia (hereinafter referred to as Tia).
Tia was introduced to his co-accused Lim Cheng Huat (hereinafter referred to as Lim)
by another confidential agent named George on August 3, 1987. Lim expressed a desire
to hire a male travelling companion for his business nips abroad. Tia offered his
services and was hired.
Lim and Tia met anew on several occasions to make arrangements for a trip to China.
In the course of those meetings, Tia was introduced to Peter Lo (hereinafter referred to
as appellant), whom Tia found out to be the person he was to accompany to China in
lieu of Lim.
As a "deep penetration agent," Tia regularly submitted reports of his undercover
activities on the suspected criminal syndicate. Meanwhile, the officer-in-charge of
OPLAN SHARON 887, Captain Luisito Palmera, filed with his superiors the reports
submitted to him, and officially informed the Dangerous Drugs Board of Tia's
activities.
On October 4, 1987, appellant and Tia left for Hongkong on board a Philippine Airlines
flight. Before they departed, Tia was able to telephone Captain Palmera to inform him
of their expected date of return to the Philippines as declared in his round-trip plane
ticket-October 6, 1987 at two o'clock in the afternoon.
The day after they arrived in Hongkong, Tia and appellant boarded a train bound for
Guangzhou, in the People's Republic of China. Upon arriving there, they checked in at
a hotel, and rested for a few hours. The pair thereafter went to a local store where
appellant purchased six (6) tin cans of tea. Tia saw the paper tea bags when the cans
were opened for examination during the purchase. Afterwards, they returned to the
hotel. Appellant kept the cans of tea in his hotel room. That evening, Tia went to
appellant's room to talk to him. Upon entering, he saw two other men with appellant.
One was fixing the tea bags, while the other was burning substance on a piece of
aluminum foil using a cigarette lighter. Appellant joined the second man and sniffed the
smoke emitted by the burning substance. Tia asked the latter what they would be
bringing back to the Philippines. He was informed that their cargo consisted of Chinese
drugs. Tia stayed in the room for about twenty minutes before going back to his room
to sleep.
The next day, October 6,1987, the two returned to Manila via a China Airlines flight.
Appellant had with him his red traveling bag with wheels. Before departing from
Guangzhou however, customs examiners inspected their luggage. The tin cans of tea
were brought out from the traveling bag of appellant. The contents of the cans were not
closely examined, and appellant was cleared along with Tia.
The plane landed at the Ninoy Aquino International Airport (NAIA), then named
Manila International Airport, on schedule. Lim met the newly-arrived pair at the arrival
area. Lim talked to appellant, while Tia, upon being instructed, looked after their
luggage. After Lim and appellant finished their conversation, the latter hailed a taxicab.
Appellant and Tia boarded the taxicab after putting their luggage inside the back
compartment of the vehicle. Lim followed in another taxi cab.
Meanwhile, a team composed of six operatives headed by Captain Palmera was formed
to act on the tip given by Tia. On the expected date of arrival, the team proceeded to
the NAIA. Captain Palmera notified the Narcotics Command (NARCOM) Detachment
at the airport for coordination. After a briefing, the operatives were ordered to take
strategic positions around the arrival area. Two operatives stationed just outside the
arrival area were the first ones to spot the suspects emerging therefrom. Word was
passed on to the other members of the team that the suspects were in sight. Appellant
was pulling along his red traveling bag while Tia was carrying a shoulder bag. The
operatives also spotted Lim meeting their quarry.
Upon seeing appellant and Tia leave the airport, the operatives who first spotted them
followed them. Along Imelda Avenue, the car of the operatives overtook the taxicab
ridden by appellant and Tia and cut into its path forcing the taxi driver to stop his
vehicle. Meanwhile, the other taxicab carrying Lim sped away in an attempt to escape.
The operatives disembarked from their car, approached the taxicab, and asked the
driver to open the baggage compartment. Three pieces of luggage were retrieved from
the back compartment of the vehicle. The operatives requested from the suspects
permission to search their luggage. A tin can of tea was taken out of the red traveling
bag owned by appellant. Sgt. Roberto Cayabyab, one of the operatives, pried the lid
open, pulled out a paper tea bag from the can and pressed it in the middle to feel its
contents. Some crystalline white powder resembling crushed alum came out of the bag.
The sergeant then opened the tea bag and examined its contents more closely.
Suspecting the crystalline powder to be a dangerous drug, he had the three traveling
bags opened for inspection. From the red traveling bag, a total of six (6) tin cans were
found, including the one previously opened. Nothing else of consequence was
recovered from the other bags. Tia and appellant were taken to the CIS Headquarters in
Quezon City for questioning.
Meanwhile, the second taxicab was eventually overtaken by two other operatives on
Retiro Street, Quezon City. Lim was likewise apprehended and brought to the CIS
Headquarters for interrogation.
During the investigation of the case, the six tin cans recovered from the traveling bag
of appellant were opened and examined. They contained a total of fifty-six (56) paper
tea bags with white crystalline powder inside instead of tea leaves.
The tea bag opened by Sgt. Cayabyab during the search and seizure was sent to the PCINP Crime Laboratory for preliminary examination. Tests conducted on a sample of the
crystalline powder inside the tea bag yielded a positive result that the specimen
submitted was metamphetamine. Samples from each of the fifty-six (56) tea bags were
similarly tested. The tests were also positive for metamphetamine. Hence, the three
suspects were indicted.
In rendering a judgment of conviction, the trial court gave full credence to the
testimonies of the government anti-narcotics operatives, to whom the said court applied
the well-settled presumption of regularity in the performance of official duties.
Appellant now assigns three errors alleged to have been committed by the trial court,
namely:
I.
THE TRIAL COURT ERRED IN NOT DECLARING THE SEARCH AND SEIZURE
ON THE ACCUSED AS ILLEGAL.
II.
THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY OF

DELIVERING, DISPATCHING OR TRANSPORTING METAMPHETAMINE, A
REGULATED DRUG.
search of a moving vehicle is justified on the ground that "it is not practicable to secure
a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in
which the warrant must be sought." 5
III.
In the instant case, it was firmly established from the factual findings of the trial court
that the authorities had reasonable ground to believe that appellant would attempt to
bring in contraband and transport it within the country. The belief was based on
intelligence reports gathered from surveillance activities on the suspected syndicate, of
which appellant was touted to be a member. Aside from this, they were also certain as
to the expected date and time of arrival of the accused from China. But such
knowledge was clearly insufficient to enable them to fulfill the requirements for the
issuance of a search warrant. Still and all, the important thing is that there was probable
cause to conduct the warrantless search, which must still be present in such a case.
THE TRIAL COURT ERRED IN DISCHARGING REYNALDO TIA TO TESTIFY

FOR THE PROSECUTION. 2
We affirm.
Anent the first assignment of error, appellant contends that the warrantless search and
seizure made against the accused is illegal for being violative of Section 2, Article III
of the Constitution. He reasons that the PC-CIS officers concerned could very well
have procured a search warrant since they had been informed of the date and time of a
arrival of the accused at the NAIA well ahead of time, specifically two (2) days in
advance. The fact that the search and seizure in question were made on a moving
vehicle, appellant argues, does not automatically make the warrantless search herein
fall within the coverage of the well-known exception to the rule of the necessity of a
valid warrant to effect a search because, as aforementioned, the anti-narcotics agents
had both time and opportunity to secure a search warrant.
The contentions are without merit. As correctly averred by appellee, that search and
seizure must be supported by a valid warrant is not an absolute rule. There are at least
three (3) well-recognized exceptions thereto. As set forth in the case of Manipon, Jr. vs.
Sandiganbayan, 3 these are: [1] a search incidental to an arrest, [2] a search of a
moving vehicle, and [3] seizure of evidence in plain view (emphasis supplied). The
circumstances of the case clearly show that the search in question was made as regards
a moving vehicle. Therefore, a valid warrant was not necessary to effect the search on
appellant and his co-accused.
In this connection, We cite with approval the averment of the Solicitor General, as
contained in the appellee's brief, that the rules governing search and seizure have over
the years been steadily liberalized whenever a moving vehicle is the object of the
search on the basis of practicality. This is so considering that before a warrant could be
obtained, the place, things and persons to be searched must be described to the
satisfaction of the issuing judgea requirement which borders on the impossible in the
case of smuggling effected by the use of a moving vehicle that can transport
contraband from one place to another with impunity. 4 We might add that a warrantless
The second assignment of error is likewise lacking in merit. Appellant was charged and
convicted under Section 15, Article III of Republic Act No. 6425, as amended, which
reads:
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, dispose, deliver, transport or distribute any regulated drug (emphasis
supplied).
The information charged the accused of delivering, transporting or dispatching fifty-six
(56) tea bags containing metamphetamine, a regulated drug. The conjunction "or' was
used, thereby implying that the accused were being charged of the three specified acts
in the alternative. Appellant argues that he cannot be convicted of "delivery" because
the term connotes a source and a recipient, the latter being absent under the facts of the
case. It is also argued that "dispatching' cannot apply either since appellant never sent
off or disposed of drugs. As for "transporting," appellant contends that he cannot also
be held liable therefor because the act of transporting necessarily requires a point of
destination, which again is nonexistent under the given facts.
The contentions are futile attempts to strain the meaning of the operative acts of which
appellant and his co-accused were charged in relation to the facts of the case. There is
no doubt that law enforcers caught appellant and his co-accused in flagrante delicto of
transporting a prohibited drug. The term "transport" is defined as "to carry or convey
from one place to another." 6 The operative words in the definition are "to carry or
convey." The fact that there is actual conveyance suffices to support a finding that the
act of transporting was committed. It is immaterial whether or not the place of

destination is reached. Furthermore, the argument of appellant gives rise to the illogical
conclusion that he and his co- accused did not intend to bring the metamphetamine
anywhere, i.e. they had no place of destination.
The situation in the instant case is one where the transport of a prohibited drug was
interrupted by the search and arrest of the accused. Interruption necessarily infers that
an act had already been commenced. Otherwise, there would be nothing to interrupt.
Therefore, considering the foregoing, since the information included the acts of
delivery, dispatch or transport, proof beyond reasonable doubt of the commission
of any of the acts so included is sufficient for conviction under Section 15, Article III
of Republic Act No. 6425, as amended.
Finally, appellant alleges that the testimony of Sgt. Roberto Cayabyab regarding the
facts surrounding the commission of the offense proves that the discharge of accused
Tia is unnecessary. The allegation is baseless. Appellant himself admits that the
sergeant's testimony corroborates the testimony of the discharged accused. The fact of
corroboration of the testimonies bolsters the validity of the questioned discharge
precisely because paragraph (a) of the aforequoted rule on discharge requires that the
testimony be substantially corroborated in its material points. The corroborative
testimony of the PC-CIS operative does not debunk the claim of the prosecution that
there is absolute necessity for the testimony of accused Tia.
WHEREFORE, the decision appealed from is hereby AFFIRMED in toto and the
appeal is thereby DISMISSED. No costs.
SO ORDERED.
Moreover, the act of transporting a prohibited drug is a malum prohibitum because it is

punished as an offense under a special law. It is a wrong because it is prohibited by law.
Without the law punishing the act, it cannot be considered a wrong. As such, the mere
commission of said act is what constitutes the offense punished and suffices to validly
charge and convict an individual caught committing the act so punished, regardless of
criminal intent. 7
______________
As to the third assigned error, appellant contests the discharge of accused Reynaldo Tia
to testify for the prosecution on the ground that there was no necessity for the same.
Appellant argues that deep penetration agents such as Tia "have to take risks and accept
the consequences of their actions." 8 The argument is devoid of merit. The discharge of
accused Tia was based on Section 9, Rule 119 of the Rules of Court, which reads in
part:
Sec. 9. Discharge of the accused to be state witness. When two or more persons are
jointly charged with the commission of any offense, upon motion of the prosecution
before resting its case,the court may direct one or more of the accused to be discharged
with their consent so that they may be witnesses for the state . . . (emphasis supplied).
As correctly pointed out by the Solicitor General, the discharge of an accused is left to
the sound discretion of the lower court. The trial court has the exclusive responsibility
to see that the conditions prescribed by the rule exist. 9In the instant case, appellant
does not allege that any of the conditions for the discharge had not been met by the
prosecution. Therefore, the discharge, as ordered by the trial court, stands.
PEOPLE
OF
THE
vs.
ANDRE MARTI, accused-appellant.
PHILIPPINES, plaintiff-appellee
BIDIN, J.:p
This is an appeal from a decision * rendered by the Special Criminal Court of Manila
(Regional Trial Court, Branch XLIX) convicting accused-appellant of violation of
Section 21 (b), Article IV in relation to Section 4, Article 11 and Section 2 (e) (i),
Article 1 of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs
Act.
The facts as summarized in the brief of the prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law
wife, Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders"
in the Pistang Pilipino Complex, Ermita, Manila, carrying with them four (4) gift
wrapped packages. Anita Reyes (the proprietress and no relation to Shirley Reyes)
attended to them. The appellant informed Anita Reyes that he was sending the
packages to a friend in Zurich, Switzerland. Appellant filled up the contract necessary
for the transaction, writing therein his name, passport number, the date of shipment and
the name and address of the consignee, namely, "WALTER FIERZ, Mattacketr II, 8052
Zurich, Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and inspect the packages.
Appellant, however, refused, assuring her that the packages simply contained books,
cigars, and gloves and were gifts to his friend in Zurich. In view of appellant's
representation, Anita Reyes no longer insisted on inspecting the packages. The four (4)
packages were then placed inside a brown corrugated box one by two feet in size (1' x
2'). Styro-foam was placed at the bottom and on top of the packages before the box was
sealed with masking tape, thus making the box ready for shipment (Decision, p. 8).
THIRD DIVISION
G.R. No. 81561 January 18, 1991
Before delivery of appellant's box to the Bureau of Customs and/or Bureau of

Posts, Mr. Job Reyes (proprietor) and husband of Anita (Reyes), following standard
operating procedure, opened the boxes for final inspection. When he opened
appellant's box, a peculiar odor emitted therefrom. His curiousity aroused, he squeezed
one of the bundles allegedly containing gloves and felt dried leaves inside. Opening
one of the bundles, he pulled out a cellophane wrapper protruding from the opening of
one of the gloves. He made an opening on one of the cellophane wrappers and took
several grams of the contents thereof (tsn, pp. 29-30, October 6, 1987; Emphasis
supplied).
Thereafter, an Information was filed against appellant for violation of RA 6425,

otherwise known as the Dangerous Drugs Act.
Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting
a laboratory examination of the samples he extracted from the cellophane wrapper (tsn,
pp. 5-6, October 6, 1987).
After trial, the court a quo rendered the assailed decision.
He brought the letter and a sample of appellant's shipment to the Narcotics Section of
the National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of
that date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics Section.
Job Reyes informed the NBI that the rest of the shipment was still in his office.
Therefore, Job Reyes and three (3) NBI agents, and a photographer, went to the Reyes'
office at Ermita, Manila (tsn, p. 30, October 6, 1987).
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY

SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.
Job Reyes brought out the box in which appellant's packages were placed and, in the
presence of the NBI agents, opened the top flaps, removed the styro-foam and took out
the cellophane wrappers from inside the gloves. Dried marijuana leaves were found to
have been contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987;
Emphasis supplied).
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE

EXPLANATION OF THE APPELLANT ON HOW THE FOUR PARCELS CAME
INTO HIS POSSESSION (Appellant's Brief, p. 1;Rollo, p. 55)
The package which allegedly contained books was likewise opened by Job Reyes. He
discovered that the package contained bricks or cake-like dried marijuana leaves. The
package which allegedly contained tabacalera cigars was also opened. It turned out that
dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6,
1987).
The NBI agents made an inventory and took charge of the box and of the contents
thereof, after signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 23, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated
address in his passport being the Manila Central Post Office, the agents requested
assistance from the latter's Chief Security. On August 27, 1987, appellant, while
claiming his mail at the Central Post Office, was invited by the NBI to shed light on the
attempted shipment of the seized dried leaves. On the same day the Narcotics Section
of the NBI submitted the dried leaves to the Forensic Chemistry Section for laboratory
examination. It turned out that the dried leaves were marijuana flowering tops as
certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).
In this appeal, accused/appellant assigns the following errors, to wit:
THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE

UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE
UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.
1. Appellant contends that the evidence subject of the imputed offense had been
obtained in violation of his constitutional rights against unreasonable search and
seizure and privacy of communication (Sec. 2 and 3, Art. III, Constitution) and
therefore argues that the same should be held inadmissible in evidence (Sec. 3 (2), Art.
III).
Sections 2 and 3, Article III of the Constitution provide:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order requires otherwise
as prescribed by law.
Our present constitutional provision on the guarantee against unreasonable search and
seizure had its origin in the 1935 Charter which, worded as follows:
The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue
but uponprobable cause, to be determined by the judge after examination under oath or
describing the place to be searched, and the persons or things to be seized. (Sec. 1 [3],
Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the United
States Constitution. As such, the Court may turn to the pronouncements of the United
States Federal Supreme Court and State Appellate Courts which are considered
doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal
Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court,
in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any evidence
obtained by virtue of a defective search and seizure warrant, abandoning in the process
the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948]) wherein the
admissibility of evidence was not affected by the illegality of its seizure. The 1973
Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried over
up to the present with the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule and has struck
down the admissibility of evidence obtained in violation of the constitutional safeguard
against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37
SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144
SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon.
Achacoso, et al., GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so obtained
were invariably procured by the State acting through the medium of its law enforcers
or other authorized government agencies.
On the other hand, the case at bar assumes a peculiar character since the evidence
sought to be excluded was primarily discovered and obtained by a private person,
acting in a private capacity and without the intervention and participation of State
authorities. Under the circumstances, can accused/appellant validly claim that his
constitutional right against unreasonable searches and seizure has been violated? Stated
otherwise, may an act of a private individual, allegedly in violation of appellant's
constitutional rights, be invoked against the State?
We hold in the negative. In the absence of governmental interference, the liberties
guaranteed by the Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against unreasonable search and seizure) refers to the
immunity of one's person, whether citizen or alien, from interference by government,
included in which is his residence, his papers, and other possessions. . . .
. . . There the state, however powerful, does not as such have the access except under
the circumstances above noted, for in the traditional formulation, his house, however
humble, is his castle. Thus is outlawed any unwarranted intrusion by government,
which is called upon to refrain from any invasion of his dwelling and to respect the
privacies of his life. . . . (Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v.
United States, 116 US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court
there in construing the right against unreasonable searches and seizures declared that:
(t)he Fourth Amendment gives protection against unlawful searches and seizures, and
as shown in previous cases, its protection applies to governmental action. Its origin and
history clearly show that it was intended as a restraint upon the activities of sovereign
authority, and was not intended to be a limitation upon other than governmental
agencies; as against such authority it was the purpose of the Fourth Amendment to
secure the citizen in the right of unmolested occupation of his dwelling and the
possession of his property, subject to the right of seizure by process duly served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a
parking attendant who searched the automobile to ascertain the owner thereof found
marijuana instead, without the knowledge and participation of police authorities, was
declared admissible in prosecution for illegal possession of narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the
search and seizure clauses are restraints upon the government and its agents, not upon
private individuals (citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892
(1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938
(1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there
said:
The search of which appellant complains, however, was made by a private citizen
the owner of a motel in which appellant stayed overnight and in which he left behind a
travel case containing the evidence*** complained of. The search was made on the
motel owner's own initiative. Because of it, he became suspicious, called the local
police, informed them of the bag's contents, and made it available to the authorities.
The fourth amendment and the case law applying it do not require exclusion of
evidence obtained through a search by a private citizen. Rather, the amendment only
proscribes governmental action."
The contraband in the case at bar having come into possession of the Government
without the latter transgressing appellant's rights against unreasonable search and
seizure, the Court sees no cogent reason why the same should not be admitted against
him in the prosecution of the offense charged.
Appellant, however, would like this court to believe that NBI agents made an illegal
search and seizure of the evidence later on used in prosecuting the case which resulted
in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days. In both
instances, the argument stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition that
NBI agents conducted an illegal search and seizure of the prohibited merchandise.
Records of the case clearly indicate that it was Mr. Job Reyes, the proprietor of the
forwarding agency, who made search/inspection of the packages. Said inspection was
reasonable and a standard operating procedure on the part of Mr. Reyes as a
precautionary measure before delivery of packages to the Bureau of Customs or the
Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp.
119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he took
samples of the same to the NBI and later summoned the agents to his place of business.
Thereafter, he opened the parcel containing the rest of the shipment and entrusted the
care and custody thereof to the NBI agents. Clearly, the NBI agents made no search
and seizure, much less an illegal one, contrary to the postulate of accused/appellant.
Second, the mere presence of the NBI agents did not convert the reasonable search
effected by Reyes into a warrantless search and seizure proscribed by the Constitution.
Merely to observe and look at that which is in plain sight is not a search. Having
observed that which is open, where no trespass has been committed in aid thereof, is
not search (Chadwick v. State, 429 SW2d 135). Where the contraband articles are
identified without a trespass on the part of the arresting officer, there is not the search
that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927];
Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429
SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the
property was taken into custody of the police at the specific request of the manager and
where the search was initially made by the owner there is no unreasonable search and
seizure within the constitutional meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked against
acts of private individuals finds support in the deliberations of the Constitutional
Commission. True, the liberties guaranteed by the fundamental law of the land must
always be subject to protection. But protection against whom? Commissioner Bernas in
his sponsorship speech in the Bill of Rights answers the query which he himself posed,
as follows:
First, the general reflections. The protection of fundamental liberties in the essence of
constitutional democracy. Protection against whom? Protection against the state. The
Bill of Rights governs the relationship between the individual and the state. Its concern
is not the relation between individuals, between a private individual and other
individuals. What the Bill of Rights does is to declare some forbidden zones in the
private sphere inaccessible to any power holder. (Sponsorship Speech of
Commissioner Bernas , Record of the Constitutional Commission, Vol. 1, p. 674; July
17, 1986; Emphasis supplied)
The constitutional proscription against unlawful searches and seizures therefore applies
as a restraint directed only against the government and its agencies tasked with the
enforcement of the law. Thus, it could only be invoked against the State to whom the
restraint against arbitrary and unreasonable exercise of power is imposed.
If the search is made upon the request of law enforcers, a warrant must generally be
first secured if it is to pass the test of constitutionality. However, if the search is made
at the behest or initiative of the proprietor of a private establishment for its own and
private purposes, as in the case at bar, and without the intervention of police
authorities, the right against unreasonable search and seizure cannot be invoked for
only the act of private individual, not the law enforcers, is involved. In sum, the
protection against unreasonable searches and seizures cannot be extended to acts
committed by private individuals so as to bring it within the ambit of alleged unlawful
intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has been
modified by the present phraseology found in the 1987 Charter, expressly declaring as
inadmissible any evidence obtained in violation of the constitutional prohibition
against illegal search and seizure, it matters not whether the evidence was procured by
police authorities or private individuals (Appellant's Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the
principles of the government and fundamental liberties of the people, does not govern
relationships between individuals. Moreover, it must be emphasized that the
modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to the
issuance of either a search warrant or warrant of arrest vis-a-vis the responsibility of
the judge in the issuance thereof (SeeSoliven v. Makasiar, 167 SCRA 393 [1988];
Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The
modifications introduced deviate in no manner as to whom the restriction or inhibition
against unreasonable search and seizure is directed against. The restraint stayed with
the State and did not shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may only be
invoked against the State by an individual unjustly traduced by the exercise of
sovereign authority. To agree with appellant that an act of a private individual in
violation of the Bill of Rights should also be construed as an act of the State would
result in serious legal complications and an absurd interpretation of the constitution.
Similarly, the admissibility of the evidence procured by an individual effected through
private seizure equally applies, in pari passu, to the alleged violation, nongovernmental as it is, of appellant's constitutional rights to privacy and communication.
2. In his second assignment of error, appellant contends that the lower court erred in
convicting him despite the undisputed fact that his rights under the constitution while
under custodial investigation were not observed.
Again, the contention is without merit, We have carefully examined the records of the
case and found nothing to indicate, as an "undisputed fact", that appellant was not
informed of his constitutional rights or that he gave statements without the assistance
of counsel. The law enforcers testified that accused/appellant was informed of his
constitutional rights. It is presumed that they have regularly performed their duties
(See. 5(m), Rule 131) and their testimonies should be given full faith and credence,
there being no evidence to the contrary. What is clear from the records, on the other
hand, is that appellant refused to give any written statement while under investigation
as testified by Atty. Lastimoso of the NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here,
did you investigate the accused together with the girl?
WITNESS:
Yes, we have interviewed the accused together with the girl but the accused availed of
his constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p.
62; Original Records, p. 240)
The above testimony of the witness for the prosecution was not contradicted by the
defense on cross-examination. As borne out by the records, neither was there any proof
by the defense that appellant gave uncounselled confession while being
investigated. What is more, we have examined the assailed judgment of the trial court
and nowhere is there any reference made to the testimony of appellant while under
custodial investigation which was utilized in the finding of conviction. Appellant's
second assignment of error is therefore misplaced.
3. Coming now to appellant's third assignment of error, appellant would like us to
believe that he was not the owner of the packages which contained prohibited drugs but
rather a certain Michael, a German national, whom appellant met in a pub along
Ermita, Manila: that in the course of their 30-minute conversation, Michael requested
him to ship the packages and gave him P2,000.00 for the cost of the shipment since the
German national was about to leave the country the next day (October 15, 1987, TSN,
pp. 2-10).
ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is
therefore estopped to claim otherwise.
Rather than give the appearance of veracity, we find appellant's disclaimer as

incredulous, self-serving and contrary to human experience. It can easily be fabricated.
An acquaintance with a complete stranger struck in half an hour could not have pushed
a man to entrust the shipment of four (4) parcels and shell out P2,000.00 for the
purpose and for appellant to readily accede to comply with the undertaking without
first ascertaining its contents. As stated by the trial court, "(a) person would not simply
entrust contraband and of considerable value at that as the marijuana flowering tops,
and the cash amount of P2,000.00 to a complete stranger like the Accused. The
Accused, on the other hand, would not simply accept such undertaking to take custody
of the packages and ship the same from a complete stranger on his mere say-so"
(Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand, appellant
failed to explain. Denials, if unsubstantiated by clear and convincing evidence, are
negative self-serving evidence which deserve no weight in law and cannot be given
greater evidentiary weight than the testimony of credible witnesses who testify on
affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174
SCRA 237 [1989]).
Premises considered, we see no error committed by the trial court in rendering the
assailed judgment.
WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable
doubt of the crime charged is hereby AFFIRMED. No costs.
SO ORDERED.
__________
Appellant's bare denial is even made more suspect considering that, as per records of
the Interpol, he was previously convicted of possession of hashish by the Kleve Court
in the Federal Republic of Germany on January 1, 1982 and that the consignee of the
frustrated shipment, Walter Fierz, also a Swiss national, was likewise convicted for
drug abuse and is just about an hour's drive from appellant's residence in Zurich,
Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244; Decision, p.
21; Rollo, p. 93).
Evidence to be believed, must not only proceed from the mouth of a credible witness,
but it must be credible in itself such as the common experience and observation of
mankind can approve as probable under the circumstances (People v. Alto, 26 SCRA
342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172
SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]); Castaares v. CA, 92
SCRA 567 [1979]). As records further show, appellant did not even bother to ask
Michael's full name, his complete address or passport number. Furthermore, if indeed,
the German national was the owner of the merchandise, appellant should have so
indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the
contrary, appellant signed the contract as the owner and shipper thereof giving more
weight to the presumption that things which a person possesses, or exercises acts of
EN BANC
G.R. No. 143944
July 11, 2002

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, in Criminal Case No. 06-7542, finding accused Basher
Bongcarawan y Macarambon guilty beyond reasonable doubt of violation of Section
16, Article III of Republic Act No. 64252 as amended, and sentencing him to suffer the
penalty of reclusion perpetua, and to pay a fine of Five Hundred Thousand Pesos
(P500,000.00) without subsidiary imprisonment in case of insolvency.1wphi1.nt
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 Honorable Court, the said accused, without authority of law, did
then and there wilfully, unlawfully and feloniously have in his possession, custody and
control eight (8) packs of Methamphetamine Hydrochloride, a regulated drug
commonly known as Shabu, weighing approximately 400 grams, without the
corresponding license or prescription.
Contrary to and in violation of Section 16, Article III of RA 6425, otherwise known as
the Dangerous Drugs Act of 1972, as amended by RA 7659."3
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, sailed from Manila to Iligan City. At about 3:00 a.m. on
March 13, 1999, the vessel was about to dock at the port of Iligan City when its
security officer, Mark Diesmo, received a complaint from passenger Lorena Canoy
about her missing jewelry. Canoy suspected one of her co-passengers at cabin no. 106
as the culprit. Diesmo and four (4) other members of the vessel security force
accompanied Canoy to search for the suspect whom they later found at the economy
section.4 The suspect was identified as the accused, Basher Bongcarawan. The accused
was informed of the complaint and was invited to go back to cabin no. 106. With his
consent, he was bodily searched, but no jewelry was found. He was then escorted by
two (2) security agents back to the economy section to get his baggage. The accused
took a Samsonite suitcase and brought this back to the cabin. When requested by the
security, the accused opened the suitcase, revealing a brown bag and small plastic
packs containing white crystalline substance. Suspecting the substance to be "shabu,"
the security personnel immediately reported the matter to the ship captain and took
pictures of the accused beside the suitcase and its contents. They also called the
Philippine Coast Guard for assistance. 5 At about 6:00 a.m., Lt. Robert Patrimonio, YN
Aurelio Estoque, CD2 Phoudinie Lantao and RM3 Merchardo De Guzman of the
Philippine Coast Guard arrived and took custody of the accused and the seized items-the Samsonite suitcase, a brown bag 6 and eight (8) small plastic packs of white
crystalline substance.7 When asked about the contraband articles, the accused explained
that he was just requested by a certain Alican "Alex" Macapudi to bring the suitcase to
the latter's brother in Iligan City.8 The accused and the seized items were later turned
over by the coast guard to the Presidential Anti-Organized Crime Task Force
(PAOCTF). Chief Inspector Graciano Mijares and his men brought the accused to the
PAOCTF Headquarters,9 while the packs of white crystalline substance were sent to the
NBI Regional Office in Cagayan de Oro City for laboratory examination. NBI Forensic
Chemist Nicanor Cruz later confirmed the substance to be methamphetamine
hydrochloride, commonly known as "shabu," weighing 399.3266 grams.10
The accused testified and proffered his own version. On March 11, 1999, at about
10:00 p.m., he was in Quiapo, Manila where he met Alican "Alex" Macapudi, a
neighbor who has a store in Marawi City. He was requested by Macapudi to bring a
Samsonite suitcase containing sunglasses and watches to Iligan City, and to give it to
Macapudi's brother at the Iligan port. He boarded the M/V Super Ferry 5 on the same
night, carrying a big luggage full of clothes, a small luggage or "maleta" containing the
sunglasses and brushes he bought from Manila, and the Samsonite suitcase of
Macapudi.11 He stayed at cabin no. 106. At about 4:00 a.m of March 13, 1999, as the
vessel was about to dock at the Iligan port, he took his baggage and positioned himself
at the economy section to be able to disembark ahead of the other passengers. There, he
met a friend, Ansari Ambor. While they were conversing, five (5) members of the
vessel security force and a woman whom he recognized as his co-passenger at cabin
no. 106 came and told him that he was suspected of stealing jewelry. He voluntarily
went with the group back to cabin no. 106 where he was frisked. Subsequently, he was
asked to get his baggage, so he went back to the economy section and took the big
luggage and Macapudi's Samsonite suitcase. He left the small "maleta" containing
sunglasses and brushes for fear that they would be confiscated by the security
personnel. When requested, he voluntarily opened the big luggage, but refused to do
the same to the Samsonite suitcase which he claimed was not his and had a secret
combination lock. The security personnel forcibly opened the suitcase and found packs
of white crystalline substance inside which they suspected to be "shabu." They took
pictures of him with the merchandise, and asked him to sign a turn over receipt which
was later given to the Philippine Coast Guard, then to the PAOCTF.12
On December 27, 1999, the trial court rendered judgment, the dispositive portion of
which reads:
"WHEREFORE, the court finds the accused Basher Bongcarawan y Macarambon
GUILTY beyond reasonable doubt as principal of the offense of violation of Section
16, Art. III, R.A. No. 6425 as amended by R.A. No. 7659 and hereby imposes upon
him the penalty of RECLUSION PERPETUA and a fine of FIVE HUNDRED
THOUSAND (P500,000.00) PESOS, without subsidiary imprisonment in case of
insolvency.
Having been under preventive imprisonment since March 13, 1999 until the present,
the period of such preventive detention shall be credited in full in favor of the accused
in the service of his sentence.
The 399.3266 grams of methamphetamine hydrochloride or shabu is hereby ordered
delivered to the National Bureau of Investigation for proper disposition.
THE COURT A QUO ERRED IN SO HOLDING THAT THE APPELLANT OWNED

THE CONFISCATED EVIDENCE AND THEREFORE ADMISSIBLE IN
EVIDENCE AGAINST HIM."14
On the first assignment of error, the accused-appellant contends that the Samsonite
suitcase containing the methamphetamine hydrochloride or "shabu" was forcibly
opened and searched without his consent, and hence, in violation of his constitutional
right against unreasonable search and seizure. Any evidence acquired pursuant to such
unlawful search and seizure, he claims, is inadmissible in evidence against him. He
also contends thatPeople v. Marti15 is not applicable in this case because a vessel
security personnel is deemed to perform the duties of a policeman.
The contentions are devoid of merit.
The right against unreasonable search and seizure is a fundamental right protected by
the Constitution.16Evidence acquired in violation of this right shall be inadmissible for
any purpose in any proceeding.17 Whenever this right is challenged, an individual may
choose between invoking the constitutional protection or waiving his right by giving
consent to the search and seizure. It should be stressed, however, that protection is
against transgression committed by the government or its agent. As held by this Court
in the case of People v. Marti,18 "[i]n the absence of governmental interference,
liberties guaranteed by the Constitution cannot be invoked against the State." 19 The
constitutional proscription against unlawful searches and seizures applies as a restraint
directed only against the government and its agencies tasked with the enforcement of
the law. Thus, it could only be invoked against the State to whom the restraint against
arbitrary and unreasonable exercise of power is imposed.20
SO ORDERED."13
Hence, this appeal where the accused raises the following assignment of errors:
"I.
THE COURT A QUO ERRED IN SO HOLDING THAT THE DRUG CONFISCATED
IS ADMISSIBLE IN EVIDENCE AGAINST THE ACCUSED/APPELLANT.
II.
In the case before us, the baggage of the accused-appellant was searched by the vessel
security personnel. It was only after they found "shabu" inside the suitcase that they
called the Philippine Coast Guard for assistance. The search and seizure of the suitcase
and the contraband items was therefore carried out without government intervention,
and hence, the constitutional protection against unreasonable search and seizure does
not apply.
There is no merit in the contention of the accused-appellant that the search and seizure
performed by the vessel security personnel should be considered as one conducted by
the police authorities for like the latter, the former are armed and tasked to maintain
peace and order. The vessel security officer in the case at bar is a private employee and
does not discharge any governmental function. In contrast, police officers are agents of
the state tasked with the sovereign function of enforcement of the law. Historically and
until now, it is against them and other agents of the state that the protection against
unreasonable searches and seizures may be invoked.
On the second assignment of error, the accused-appellant contends that he is not the
owner of the Samsonite suitcase and he had no knowledge that the same contained
"shabu." He submits that without knowledge or intent to possess the dangerous drug,
he cannot be convicted of the crime charged.21
We are not persuaded.
In a prosecution for illegal possession of dangerous drugs, the following facts must be
proven beyond reasonable doubt, viz: (1) that the accused is in possession of the object
identified as a prohibited or a regulated drug; (2) that such possession is not authorized
by law; and (3) that the accused freely and consciously possessed the said drug. 22 The
first two elements were sufficiently proven in this case, and were in fact undisputed.
We are left with the third.
As early as 1910 in the case of United States v. Tan Misa,23 this Court has ruled that to
warrant conviction, the possession of dangerous drugs must be with knowledge of the
accused, or that animus possidendi existed together with the possession or control of
such articles.24 It has been ruled, however, that possession of dangerous drugs
constitutes prima facie evidence of knowledge or animus possidendi sufficient to
convict an accused in the absence of a satisfactory explanation of such
possession.25 Hence, the burden of evidence is shifted to the accused to explain the
absence of knowledge or animus possidendi.26
In this respect, the accused-appellant has utterly failed. His testimony, uncorroborated,
self-serving and incredulous, was not given credence by the trial court. We find no
reason to disagree. Well-settled is the rule that in the absence of palpable error or grave
abuse of discretion on the part of the trial judge, the trial court's evaluation of the
credibility of witnesses will not be disturbed on appeal. 27 Moreover, evidence must be
credible in itself to deserve credence and weight in law. In this case, the accusedappellant admits that when he was asked to get his baggage, he knew it would be
inspected.28 Why he got the Samsonite suitcase allegedly not owned by him and which
had a combination lock known only to the owner remains unclear. He also claims that
he did not present his small "maleta" for inspection for fear that its contents consisting
of expensive sunglasses and brushes would be confiscated, 29 but he brought the
Samsonite suitcase which is not his and also contained expensive sunglasses, and even
watches.30
The things in possession of a person are presumed by law to be owned by him. 31 To
overcome this presumption, it is necessary to present clear and convincing evidence to
the contrary. In this case, the accused points to a certain Alican "Alex" Macapudi as the
owner of the contraband, but presented no evidence to support his claim. As aptly
observed by the trial judge:
"First, who is Alex Macap[u]di aka Ali[c]an Macap[u]di? Does he really exist or
simply a figment of the imagination? He says that Alex Macap[u]di is a friend and a
fellow businessman who has a stall selling sunglasses in Marawi City. But no witnesses
were presented to prove that there is such a living, breathing, flesh and blood person
named Alex Macap[u]di who entrusted the Samsonite to the accused. Surely, if he does
exist, he has friends, fellow businessmen and acquaintances who could testify and
support the claim of the accused."32
Mere denial of ownership will not suffice especially if, as in the case at bar, it is the
keystone of the defense of the accused-appellant. Stories can easily be fabricated. It
will take more than bare-bone allegations to convince this Court that a courier of
dangerous drugs is not its owner and has no knowledge or intent to possess the
same.1wphi1.nt
WHEREFORE, the decision of the Regional Trial Court of Iligan City, Branch 06, in
Criminal Case No. 06-7542, convicting accused-appellant Basher Bongcarawan of
violation of Section 16, Article III of Republic Act No. 6425, as amended, and
sentencing him to suffer the penalty of Reclusion Perpetua and to pay a fine of Five
Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of
insolvency, is AFFIRMED.
Costs against the accused-appellant.

SO ORDERED.

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G.R. No.

82585 November 14, 1988

CONSTI II (Art. III, Sec. 2 )| 1

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

CONSTI II (Art. III, Sec. 2 )| 2

4. As a result of the filing of two informations with respondent Sandiganbayan

CONSTI II (Art. III, Sec. 2 )| 3

6. During the preliminary investigation conducted anew by the Office of the

12. Hence, petitioner filed the instant petition. 3

As correctly pointed out by petitioner, an indispensable requisite of due process is that

accused. This is an exercise of the Ombudsmans power based upon constitutional

CONSTI II (Art. III, Sec. 2 )| 7

Sec. 8. Record of preliminary investigation. The record of the preliminary

Sec. 11. Production or inspection of material evidence in possession of prosecution.

CONSTI II (Art. III, Sec. 2 )| 8

It must here be stressed that a preliminary investigation is merely inquisitorial, and it is

G.R. Nos. 94266-69 February 19, 1991

GUTIERREZ, JR., J.:p

On December 14, 1989, we issued an en banc Resolution authorizing the change of

xxx xxx xxx

2. Movants be given ample opportunity to file their motion for preliminary

xxx xxx xxx

CONSTI II (Art. III, Sec. 2 )| 12

investigation which is more properly called preliminary examination is judicial in

The records of the preliminary investigation conducted by the Municipal Court of

significance of the recantations of some witnesses when he recommends a

May 27, 2004

TERESITA TANGHAL OKABE, petitioner,

CONSTI II (Art. III, Sec. 2 )| 17

I. RESPONDENT COURT GRAVELY ERRED WHEN IT ISSUED WARRANT OF

II. RESPONDENT COURT HAS VIOLATED THE RIGHT OF THE PETITIONER

III. RESPONDENT COURT HAS ALREADY PRE-JUDGED THE CONVICTION

(3) That petitioner make periodic reports with respondent Court;

IV. RESPONDENT COURT HAS EXHIBITED ITS APPARENT PARTIALITY

WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that after

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN

MERELY RELIED ON [THE] (i) COMPLAINT-AFFIDAVIT OF CECILIA

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR

Second. The affidavit of Hermogena Santiago, a witness of the respondent, is

CONSTI II (Art. III, Sec. 2 )| 24

HON. JUDGE VIVENCIO M. RUIZ, MISAEL P. VERA, in his capacity as

here stands on a different footing from the corporations in Stonehill.

JOSEFINO S. ROAN, petitioner,

G.R. No. 71410 November 25, 1986

CONSTI II (Art. III, Sec. 2 )| 33

January 29, 1937

Summarizing the foregoing conclusions, we hold:

CONSTI II (Art. III, Sec. 2 )| 39

September 13, 2004

Hence, this petition.

On 25 July 1996, National Bureau of Investigation ("NBI") Agent Dominador

4. WHETHER THE SEARCH WARRANTS ARE "GENERAL WARRANTS."

On Whether there was Probable Cause to Issue the Search Warrants

The offense charged against Maxicorp is copyright infringement under Section 29 of

CONSTI II (Art. III, Sec. 2 )| 42

January 20, 2003

confiscated have to be excluded in evidence as a product of unreasonable search and

CONSTI II (Art. III, Sec. 2 )| 46

3GIVING CREDENCE TO THE TESTIMONY OF ABRITIQUE;

Nor do we find a delay of twenty (20) hearing days to be an unreasonable length of

The concept of speedy trial is necessarily relative. A determination as to whether the

CONSTI II (Art. III, Sec. 2 )| 51