(People v. Marti, G.R. No. 81561, January 4. ID.; ID.; ID.

; GUARANTEE AGAINST
18, 1991) UNREASONABLE SEARCH AND SEIZURE;
CASE AT BAR. The contraband in the case at
bar having come into possession of the
THIRD DIVISION Government without the latter transgressing
[G.R. No. 81561. January 18, 1991.] appellant's rights against unreasonable search
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, and seizure, the Court sees no cogent reason why
vs. ANDRE MARTI, accused-appellant. the same should not be admitted against him in
The Solicitor General for plaintiff-appellee. the prosecution of the offense charged. If the
Reynaldo B . Tatoy and Abelardo E . Rogacion for search is made upon the request of law enforcers,
accused-appellant. a warrant must generally be first secured if it is to
pass the test of constitutionality. However, if the
SYLLABUS search is made at the behest or initiative of the
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; proprietor of a private establishment for its own
GUARANTEE AGAINST UNREASONABLE and private purposes, as in the case at bar, and
SEARCHES AND SEIZURES; without the intervention of police authorities, the
PRONOUNCEMENT OF UNITED STATES right against unreasonable search and seizure
FEDERAL SUPREME COURT AND STATE cannot be invoked for only the act of private
APPELLATE COURTS, DOCTRINAL IN THIS individual, not the law enforcers, is involved. In
JURISDICTION. Our present constitutional sum, the protection against unreasonable
provision on the guarantee against unreasonable searches and seizures cannot be extended to acts
search and seizure had its origin in the 1935 committed by private individuals so as to bring it
Charter which was in turn derived almost within the ambit of alleged unlawful intrusion by
verbatim from the Fourth Amendment to the the government.
United States Constitution. As such, the Court
may turn to the pronouncements of the United 5. ID.; ID.; ID.; ID.; MERE PRESENCE OF NBI
States Federal Supreme Court and State AGENTS TO OBSERVE AND LOOK AT WHICH
Appellate Courts which are considered doctrinal IS IN PLAIN SIGHT IS NOT A SEARCH. The
in this jurisdiction. mere presence of the NBI agents did not convert
the reasonable search effected by Reyes into a
2. REMEDIAL LAW; EVIDENCE; warrantless search and seizure proscribed by the
ADMISSIBILITY; EXCLUSIONARY RULE ON Constitution. Merely to observe and look at that
EVIDENCE OBTAINED IN VIOLATION OF THE which is in plain sight is not a search. Having
GUARANTEE AGAINST UNREASONABLE observed that which is open, where no trespass
SEARCHES AND SEIZURES. In a number of has been committed in aid thereof, is not search
cases, the Court strictly adhered to the (Chadwick v. State, 429 SW2d 135). Where the
exclusionary rule and has struck down the contraband articles are identified without a
admissibility of evidence obtained in violation of trespass on the part of the arresting officer, there
the constitutional safeguard against is not the search that is prohibited by the
unreasonable searches and seizures. (Bache & constitution (US v. Lee 274 US 559, 71 L.Ed. 1202
Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim [1927]; Ker v. State of California 374 US 23, 10 L.
v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Ed. 2d. 726 [1963]; Moore v. State, 429 SW2d 122
Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, [1968]).
145 SCRA 687 [1987]; See also Salazar v. Hon.
Achacoso, et al., GR No. 81510, March 14, 1990). 6. ID.; CONSTITUTION; DOES NOT GOVERN
RELATIONSHIP BETWEEN INDIVIDUALS.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; The constitution, in laying down the principles of
LIBERTIES MAY BE INVOKED ONLY AGAINST the government and fundamental liberties of the
THE STATE, NOT UPON PRIVATE people, does not govern relationships between
INDIVIDUALS. In the absence of individuals.
governmental interference, the liberties
guaranteed by the Constitution cannot be 7. REMEDIAL LAW; EVIDENCE;
invoked against the State. As this Court held in ADMISSIBILITY; EVIDENCE PROCURED BY
Villanueva v. Querubin (48 SCRA 345 [1972]: 1. INDIVIDUALS EFFECTED THROUGH PRIVATE
This constitutional right (against unreasonable SEIZURE, ADMISSIBLE. Similarly, the
search and seizure) refers to the immunity of admissibility of the evidence procured by an
one's person, whether citizen or alien, from individual effected through private seizure
interference by government, included in which is equally applies, in pari passu, to the alleged
his residence, his papers, and other violation, non-governmental as it is, of appellant's
possessions . . . That the Bill of Rights embodied constitutional rights to privacy and
in the Constitution is not meant to be invoked communication.
against acts of private individuals finds support in
the deliberations of the Constitutional 8. ID.; ID.; CREDIBILITY; SELF-SERVING
Commission. The constitutional proscription DENIALS, DESERVE NO WEIGHT IN LAW.
against unlawful searches and seizures therefore Denials, if unsubstantiated by clear and
applies as a restraint directed only against the convincing evidence, are negative self-serving
government and its agencies tasked with the evidence which deserve no weight in law and
enforcement of the law. Thus, it could only be cannot be given greater evidentiary weight than
invoked against the State to whom the restraint the testimony of credible witnesses who testify on
against arbitrary and unreasonable exercise of affirmative matters (People v. Esquillo, 171 SCRA
power is imposed. 571 [1989]; People vs. Sariol, 174 SCRA 237
[1989]).

1|CONSTI2_Searchers and Seizures

9. ID.; ID.; ID.; REQUISITE FOR EVIDENCE TO
BE BELIEVED. 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.
10. ID.; ID.; BURDEN OF PROOF AND
PRESUMPTIONS; THINGS WHICH A PERSON
POSSESSES ARE PRESUMED OWNED BY HIM;
CASE AT BAR. 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. 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 ownership over,
are owned by him (Sec. 5 [j], Rule 131). At this
point, appellant is therefore estopped to claim
otherwise.
DECISION
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 II and Section 2 (e)
(i), Article I 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). LLpr
"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
2|CONSTI2_Searchers and Seizures
appellant's box, a peculiar odor emitted
therefrom. His curiosity 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).
"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).
"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).
"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 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. 2-3, 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).
Thereafter, an Information was filed against
appellant for violation of RA 6425, otherwise
known as the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed
decision.
In this appeal, accused/appellant assigns the
following errors, to wit:
"THE LOWER COURT ERRED IN ADMITTING IN
EVIDENCE THE ILLEGALLY SEARCHED AND SEIZED
OBJECTS CONTAINED IN THE FOUR PARCELS.
"THE LOWER COURT ERRED IN CONVICTING
APPELLANT DESPITE THE UNDISPUTED FACT THAT
HIS RIGHTS UNDER THE CONSTITUTION WHILE
UNDER CUSTODIAL PROCEEDINGS WERE NOT
OBSERVED. cdphil
"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)
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 (Secs. 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:
"Section 2. The right of the people to be secure in
their persons, houses, papers and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the persons or things to be seized.
"Section 3. (1) The privacy of communication and
correspondence shall be inviolable except upon
lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.
"(2) Any evidence obtained in violation of this or
the preceding section shall be inadmissible for
any purpose in any proceeding."
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 upon
probable cause, to be determined by the judge
after examination under oath or affirmation of the
complainant and the witnesses he may produce,
". . . There the state, however powerful, does not
and particularly describing the place to be
as such have the access except under the
circumstances above noted, for in the traditional
3|CONSTI2_Searchers and Seizures
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 2d
[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. LLpr
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 . . .
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. LLphil
4|CONSTI2_Searchers and Seizures
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 parcels 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.
cdphil
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 (See Soliven 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.
Corollarily, 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
5|CONSTI2_Searchers and Seizures
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, non-governmental 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 (Sec. 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. cdphil
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 Premises considered, we see no error committed
the next day (October 15, 1987, TSN, pp. 2-10). by the trial court in rendering the assailed
judgment.
Rather than give the appearance of veracity, we
find appellant's disclaimer as incredulous, self- WHEREFORE, the judgment of conviction finding
serving and contrary to human experience. It can appellant guilty beyond reasonable doubt of the
easily be fabricated. An acquaintance with a crime charged is hereby AFFIRMED. No costs.
complete stranger struck in half an hour could
not have pushed a man to entrust the shipment SO ORDERED.
of four (4) parcels and shell out P2,000.00 for the
purpose and for appellant to readily accede to Fernan, C.J., Gutierrez, Jr . and Feliciano, JJ.,
comply with the undertaking without first concur.
ascertaining its contents. As stated by the trial
court, "(a) person would not simply entrust (Stonehill v. Diokno, G.R. No. L-19550, June
contraband and of considerable value at that as 19, 1967)
the marijuana flowering tops, and the cash
amount of P2,000.00 to a complete stranger like EN BANC
the Accused. The Accused, on the other hand, [G.R. No. L-19550. June 19, 1967.]
would not simply accept such undertaking to take HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN
custody of the packages and ship the same from J. BROOKS and KARL BECK, petitioners, vs. HON.
a complete stranger on his mere say-so" JOSE W. DIOKNO, in his capacity as SECRETARY
(Decision, p. 19, Rollo, p. 91). As to why he OF JUSTICE, JOSE LUKBAN, in his capacity as
readily agreed to do the errand, appellant failed Acting Director of the National Bureau of
to explain. Denials, if unsubstantiated by clear Investigation; SPECIAL PROSECUTORS PEDRO D.
and convincing evidence, are negative self- CENZON, EFREN I. PLANA and MANUEL
serving evidence which deserve no weight in law VILLAREAL, JR. and ASST. FISCAL MANASES G.
and cannot be given greater evidentiary weight REYES, JUDGE AMADO ROAN, Municipal Court of
than the testimony of credible witnesses who Manila, JUDGE ROMAN CANSINO, Municipal Court
testify on affirmative matters (People v. Esquillo, of Manila, JUDGE HERMOGENES CALUAG, Court of
171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA First Instance of Rizal-Quezon City Branch, and
237 [1989]). JUDGE DAMIAN JIMENEZ, Municipal Court of
Quezon City, respondents.
Appellant's bare denial is even made more Paredes, Poblador, Cruz & Nazareno and Meer,
suspect considering that, as per records of the Meer & Meer and Juan T . David for petitioners.
Interpol, he was previously convicted of Solicitor General Arturo A. Alafriz, Assistant
possession of hashish by the Kleve Court in the Solicitor General Pacifico P. de Castro, Assistant
Federal Republic of Germany on January 1, 1982 Solicitor General Frine C . Zaballero, Solicitor
and that the consignee of the frustrated Camilo D. Quiason and Solicitor C . Padua for
shipment, Walter Fierz, also a Swiss national, was respondents.
likewise convicted for drug abuse and is just
about an hour's drive from appellant's residence SYLLABUS
in Zurich, Switzerland (TSN, October 8, 1987, p. 1. CONSTITUTIONAL LAW; SEARCH AND
66; Original Records, p. 244; Decision, p. 21; SEIZURE; WHO MAY CONTEST LEGALITY
Rollo, p. 93). THEREOF CASE AT BAR. It is well settled that
the legality of a seizure can be contested only by
Evidence to be believed, must not only proceed the party whose rights have been impaired
from the mouth of a credible witness, but it must thereby (Lewis vs. U.S., 6 F. 2d. 22) and that the
be credible in itself such as the common objection to an unlawful search and seizure is
experience and observation of mankind can purely personal and cannot be availed of by third
approve as probable under the circumstances parties (In. re Dooley, 48 F. 2d. 121: Rouda vs.
(People v. Alto, 26 SCRA 342 [1968], citing U.S., 10 F. 2d. 916; Lusco vs. U.S., 287 F. 69;
Daggers v. Van Dyke, 37 N.J. Eg. 130; see also Ganci vs. U.S., 287 F, 60; Moriz vs. U.S., 26 F. 2d.
People v. Sarda, 172 SCRA 651 [1989]; People v. 444). Consequently, petitioner in the case at bar
Sunga, 123 SCRA 327 [1983]); Castaares v. CA, may not validly object to the use in evidence
92 SCRA 567 [1979]). As records further show, against them of the document, papers, and
appellant did not even bother to ask Michael's full things seized from the offices and premises of the
name, his complete address or passport number. corporation adverted to, since the right to object
Furthermore, if indeed, the German national was to the admission of said papers in evidence
the owner of the merchandise, appellant should belongs exclusively to the corporations, to whom
have so indicated in the contract of shipment the seized effects belong, and may not be
(Exh. "B", Original Records, p. 40). On the invoked by the corporate officers in proceedings
contrary, appellant signed the contract as the against them in their individual capacity U.S., vs.
owner and shipper thereof giving more weight to Gaas, 17 F. 2d. 997; People vs. Rubio, 57 Phil.,
the presumption that things which a person 384).
possesses, or exercises acts of ownership over,
are owned by him (Sec. 5 [j], Rule 131). At this
2. ID.; ID.; REQUISITES FOR ISSUANCE OF
point, appellant is therefore estopped to claim
SEARCH WARRANT. Two points must be
otherwise. LexLib stressed in connection with this constitutional
mandate, namely: (1) that no warrant issue but
upon probable cause, to be determined by the
judge in the manner set forth in said provision;
and (2) that the warrant shall particularly
describe the things to be seized. None of these
6|CONSTI2_Searchers and Seizures
requirements has been complied with in the
contested warrants. Indeed, the same were
issued upon applications stating that the natural
and juridical persons therein named had
committed a "violation of Central Bank Laws,
Tariff and Customs Laws, Internal Revenue (Code)
and Revised Penal Code." In other words, no
specific offense had been alleged in said
applications. The averments thereof with respect
to the offense committed were abstract. As a
consequence, it was impossible for the judges
who issued the warrants to have found the
existence of probable cause, for the same
presupposes the introduction of competent proof
that the party against whom it is sought has
performed particular acts, or committed specific
omissions, violating a given provision of our
criminal laws. As a matter of fact, the applications
involved in the case at bar do not allege any
specific acts performed by herein petitioners. It
would be a legal heresy, of the highest order, to
convict anybody of a "violation of Central Bank
Laws, Tariff and Customs Laws, Internal Revenue
(Code) and Revised Penal Code", as alleged in
aforementioned applications without reference
to any determine provision of said laws or coders.
3. ID.; ID.; ID.; GENERAL WARRANTS ARE
OUTLAWED BY THE CONSTITUTION. To
uphold the validity of the warrants in question,
would be to wipe out completely one of the most
fundamental rights guaranteed in our
Constitution, for it would place the sanctity of the
domicile and the privacy of communication and
correspondence at the mercy of the victims,
caprice or passion of peace officers. This is
precisely the evil sought to be remedied by the
constitutional provision Sec. 1, par. 3 Art. III,
Const.) to outlaw the so-called general
warrants. It is not difficult to imagine what would
happen, in times of keen political strife, when the
party in power feels that the minority is likely to
wrest it, even though by legal means. 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, by
providing in its counterpart, under the Revised
Rules of Court (Sec. 3, Rule 126) 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 paragraph, directing that "no search
warrant shall issue for more than one specific
offense."
4. ID.; ID.; ID.; ID.; CASE AT BAR. 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 papers, 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 petitioners herein,
regardless of whether the transaction were legal
or illegal. The warrants sanctioned the seizure of
all records of the petitioners and the
7|CONSTI2_Searchers and Seizure
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.
5. ID.; ID.; ID.; NON-EXCLUSIONARY RULE
CONTRAVENES THE CONSTITUTIONAL
PROHIBITIONS AGAINST UNREASONABLE
SEARCH AND SEIZURES. Indeed, the non-
exclusionary rule is contrary, not only to the
letter, but also to the spirit of the constitutional
injunction against unreasonable searches and
seizures. To be sure, if the applicant for a search
warrant has competent evidence to establish
probable cause of the commission of a given
crime by the party against whom the warrant is
intended, then there is no reason why the
applicant should not comply with the
requirements of the fundamental law. Upon the
other hand, if he has no such competent
evidence, then it is not possible for the Judge to
find that there is probable cause and only
possible for the Judge to find that there is
probable cause and hence, no justification for the
issuance of the warrant. The only possible
explanation (not justification) for its issuance is
the necessity of fishing evidence of the
commission of crime. But when this fishing
expedition is indicative of the absence of
evidence to establish a probable cause.
6. ID.; ID.; ID.; ID.; PROSECUTION OF THOSE
WHO SECURE ILLEGAL SEARCH WARRANT
OR MAKE UNREASONABLE SEARCH OR
SEIZURE IS NO EXCUSE. The theory that the
criminal prosecution of those who secure an
illegal search warrant and/or make unreasonable
searches or seizures would suffice to protect the
constitutional guarantee under consideration,
overlooks the fact that violations thereof are, in
general, committed by agents of the party in
power, for certainly, those belonging to the
minority could not possibly abuse a power they
do not have. Regardless of the handicap under
which the minority usually but understandably
finds itself in prosecuting agents of the majority,
one must not lose sight of the fact that the
psychological and moral effect of the possibility
of securing their conviction, is watered down by
the pardoning power of the party for whose
benefit the illegality had been committed.
7. ID.; ID.; ID.; MONCADO DOCTRINE
ABANDONED. The doctrine adopted in the
Moncado case must be, as it is hereby,
abandoned; the warrants for the search of 3
residences of petitioners, as specified in the
Resolution of June 29, 1962, are null and void; the
searches and seizures therein made are illegal.
DECISION
CONCEPCION, C .J p:
Upon application of the officers of the
government named on the margin 1
hereinafter referred to as Respondent-Prosecutors
several judges 2 hereinafter referred to as
Respondent-Judges issued, on different dates,
3 a total of 42 search warrants against petitioners
herein 4 and/or the corporations of which they
were officers, 5 directed to any peace officer, to
search the persons above-named and/or the
s
premises of their offices, warehouses and/or
residences, and to seize and take possession of
the following personal property to wit:
"Books of accounts, financial records, vouchers,
correspondence, receipts, ledgers, journals,
portfolios, credit journals, typewriters, and other
documents and/or papers showing all business
transactions including disbursements receipts,
balance sheets and profit and loss statements
and Bobbins (cigarette wrappers)."
as "the subject of the offense; stolen or
embezzled and proceeds or fruits of the offense,"
or "used or intended to be used as the means of
committing the offense," which is described in
the applications adverted to above as "violation
of Central Bank Laws, Tariff and Customs Laws,
Internal Revenue (Code) and the Revised Penal
Code."
Alleging that the aforementioned search warrants
are null and void, as contravening the
Constitution and the Rules of Court because,
inter alia: (1) they do not describe with
particularity the documents, books and things to
be seized; (2) cash money, not mentioned in the
warrants, were actually seized; (3) the warrants
were issued to fish evidence against the
aforementioned petitioners in deportation cases
filed against them; (4) the searches and seizures
were made in an illegal manner; and (5) the
documents, papers and cash money seized were
not delivered to the courts that issued the
warrants, to be disposed of in accordance with
law on March 20, 1962, said petitioners filed
with the Supreme Court this original action for
certiorari, prohibition, mandamus and injunction,
and prayed that, pending final disposition of the
present case, a writ of preliminary injunction be
issued restraining Respondent-Prosecutors, their
agents and or representatives from using the
effects seized as aforementioned, or any copies
thereof, in the deportation cases already
adverted to, and that, in due course, thereafter,
decision be rendered quashing the contested
search warrants and declaring the same null and
void, and commanding the respondents, their
agents or representatives to return to petitioners
herein, in accordance with Section 3, Rule 67, of
the Rules of Court, the documents, papers, things
and cash moneys seized or confiscated under the
search warrants in question.
In their answer, respondents-prosecutors alleged
6 (1) that the contested search warrants are valid
and have been issued in accordance with law; (2)
that the defects of said warrants, if any, were
cured by petitioners' consent; and (3) that, in any
event, the effects seized are admissible in
evidence against herein petitioners, regardless of
the alleged illegality of the aforementioned
searches and seizures.
With respect to the documents, papers and things
On March 22, 1962, this Court issued the writ of
seized in the residences of petitioners herein, the
preliminary injunction prayed for in the petition.
aforementioned resolution of June 29, 1962,
However, by resolution dated June 29, 1962, the
denied the lifting of the writ of preliminary
writ was partially lifted or dissolved, insofar as
injunction previously issued by this Court, 12
the papers, documents and things seized from
thereby, in effect, restraining herein Respondent-
the offices of the corporations above mentioned
are concerned; but, the Prosecutors from using them in evidence against
injunction was
petitioners herein.
8|CONSTI2_Searchers and Seizures
maintained as regards the papers, documents
and things found and seized in the residences of
petitioners herein. 7
Thus, the documents, papers, and things seized
under the alleged authority of the warrants in
question may be split into (2) major groups,
namely: (a) those found and seized in the offices
of the aforementioned corporations and (b) those
found seized in the residences of petitioners
herein.
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 of
the interest of each of them in said corporations,
and whatever the offices they hold therein may
be. 8 Indeed, it is well settled that the legality of
a seizure can be contested only by the party
whose rights have been impaired thereby, 9 and
that the objection to an unlawful search and
seizure is purely personal and cannot be availed
of by third parties. 10 Consequently, petitioners
herein may not validly object to the use in
evidence against them of the documents, papers
and things seized from the offices and premises
of the corporations adverted to above, since the
right to object 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. 11 Indeed, it has been held:
". . . that the Government's action in gaining
possession of papers belonging to the corporation
did not relate to nor did it affect the personal
defendants. If these papers were unlawfully
seized and thereby the constitutional rights of or
any one were invaded, they were the rights of the
corporation and not the rights of the other
defendants. Next, it is clear that a question of the
lawfulness of a seizure can be raised only by one
whose rights have been invaded. Certainly, such
a seizure, if unlawful, could not affect the
constitutional rights of defendants whose
property had not been seized or the privacy of
whose homes had not been disturbed; nor could
they claim for themselves the benefits of the
Fourth Amendment, when its violation, if any, was
with reference to the rights of another. Remus vs.
United States (C.C.A.) 291 F. 501, 511. It follows,
therefore, that the question of the admissibility of
the evidence based on an alleged unlawful search
and seizure does not extend to the personal
defendants but embraces only the corporation
whose property was taken . . ." (A. Guckenheimer
& Bros. Co. vs. United States, [1925] 3 F. 2d, 786,
789, Emphasis supplied.)

In connection with said documents, papers and
things, two (2) important questions need be
settled, namely: (1) whether the search warrants
in question, and the searches and seizures made
under the authority thereof, are valid or not; and
(2) if the answer to the preceding question is in
the negative, whether said documents, papers
and things may be used in evidence against
petitioners herein.
Petitioners maintain that the aforementioned
search warrants are in the nature of general
warrants and that, accordingly, the seizures
effected upon the authority thereof are null and
void. In this connection, the Constitution 13
provides:
"The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable 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."
Two points must be stressed in connection with
this constitutional mandate, namely: (1) that no
warrant shall issue but upon probable cause, to
be determined by the judge in the manner set
forth in said provision; and (2) that the warrant
shall particularly describe the things to be seized.
None of these requirements has been complied
with in the contested warrants. Indeed, the same
were issued upon applications stating that the
natural and juridical persons therein named had
committed a "violation of Central Bank Laws,
Tariff and Customs Laws, Internal Revenue (Code)
and Revised Penal Code." In other words, no
specific offense had been alleged in said
applications. The averments thereof with respect
to the offense committed were abstract. As a
consequence, it was impossible for the judges
who issued the warrants to have found the
existence of probable cause, for the same
presupposes the introduction of competent proof
that the party against whom it is sought has
performed particular acts, or committed specific
omissions, violating a given provision of our
criminal laws. As a matter of fact, the applications
involved in this case do not allege any specific
acts performed by herein petitioners. It would be
a legal heresy, of the highest order, to convict
anybody of a "violation of Central Bank Laws,
Tariff and Customs Laws, Internal Revenue (Code)
and Revised Penal Code," as alleged in the
aforementioned applications without reference
to any determinate provision of said laws or
codes.
To uphold the validity of the warrants in question
would be to wipe out completely one of the most
fundamental rights guaranteed in our
Constitution, for it would place the sanctity of the
domicile and the privacy of communication and
correspondence at the mercy of the whims,
caprice or passion of peace officers. This is
precisely the evil sought to be remedied by the
constitutional provision above quoted to
9|CONSTI2_Searchers and Seizure
outlaw the so-called general warrants. It is not
difficult to imagine what would happen, in times
of keen political strife, when the party in power
feels that the minority is likely to wrest it, even
though by legal means.
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
14 by providing in its counterpart, under the
Revised Rules of Court 15 that "a search warrant
shall not issue 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."
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 papers 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.
Relying upon Moncado vs. People's Court (80 Phil.
1), Respondent- Prosecutors maintain that, even
if the searches and seizures under consideration
were unconstitutional, the documents, papers
and things thus seized are admissible in evidence
against petitioners herein. Upon mature
deliberation, however, we are unanimously of the
opinion that the position taken in the Moncado
case must be abandoned. Said position was in
line with the American common law rule, that the
criminal should not be allowed to go free merely
"because the constable has blundered," 16 upon
the theory that the constitutional prohibition
against unreasonable searches and seizures is
protected by means other than the exclusion of
evidence unlawfully obtained, 17 such as the
common-law action for damages against the
searching officer, against the party who procured
the issuance of the search warrant and against
those assisting in the execution of an illegal
search, their criminal punishment, resistance,
without liability to an unlawful seizure, and such
other legal remedies as may be provided by other
laws.
However, most common law jurisdictions have
already given up this approach and eventually
adopted the exclusionary rule, realizing that this
s
is the only practical means of enforcing the
constitutional injunction against unreasonable
searches and seizures. In the language of Judge
Learned Hand:
"As we understand it, the reason for the exclusion
of evidence competent as such, which has been
unlawfully acquired, is that exclusion is the only
practical way of enforcing the constitutional
privilege. In earlier times the action of trespass
against the offending official may have been
protection enough; but that is true no longer.
Only in case the prosecution which itself controls
the seizing officials, knows that it cannot profit by
their wrong, will that wrong be repressed". 18
In fact, over thirty (30) years before, the Federal
Supreme Court had already declared:
"If letters and private documents can thus be
seized and held and used in evidence against a
citizen accused of an offense, the protection of
the 4th Amendment, declaring his rights to be
secure against such searches and seizures, is of
no value, and, so far as those thus placed are
concerned, might as well be stricken from the
Constitution. The efforts of the courts and their
officials to bring the guilty to punishment,
praiseworthy as they are, are not to be aided by
the sacrifice of those great principles established
by years of endeavor and suffering which have
resulted in their embodiment in the fundamental
law of the land." 19
This view was, not only reiterated, but, also,
broadened in subsequent decisions of the same
Federal Court. 20 After reviewing previous
decisions thereon, said Court held, in Mapp vs.
Ohio (supra.):
". . . Today we once again examine the Wolf's
constitutional documentation of the right of
privacy free from unreasonable state intrusion,
and, after its dozen years on our books, are led
by it to close the only courtroom door remaining
open to evidence secured by official lawlessness
in flagrant abuse of that basic right, reserved to
all persons as a specific guarantee against that
very same unlawful conduct. We held that all
evidence obtained by searches and seizures in
violation of the Constitution is, by that same
authority, inadmissible in a State court.
"Since the Fourth Amendment's right of privacy
has been declared enforceable against the States
through the Due Process Clause of the
Fourteenth, it is enforceable against them by the
same sanction of exclusion as it used against the
Federal Government. Were it otherwise, then just
as without the Weeks rule the assurance against
unreasonable federal searches and seizures
would be 'a form of words', valueless and
undeserving of mention in a perpetual charter of
inestimable human liberties, so too, 'without that
rule the freedom from state invasions of privacy
would be so ephemeral and so neatly severed
from its conceptual nexus with the freedom from
all brutish means of coercing evidence as not to
permit this Court's high regard as a freedom
implicit in the concept of ordered liberty.' At the
10 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
time that the Court held in Wolf that the
Amendment was applicable to the States through
the Due Process Clause, the cases of this Court as
we have seen, had steadfastly held that as to
federal officers the Fourth Amendment included
the exclusion of the evidence seized in violation
of its provisions. Even Wolf 'stoutly adhered' to
that proposition. The right to privacy, when
conceded operatively enforceable against the
States, was not susceptible of destruction by
avulsion of the sanction upon which its protection
and enjoyment had always been deemed
dependent under the Boyd, Weeks and
Silverthorne Cases. Therefore, in extending the
substantive protections of due process to all
constitutionally unreasonable searches state or
federal it was logically and constitutionally
necessary that the exclusion doctrine an
essential part of the right to privacy be also
insisted upon as an essential ingredient of the
right newly recognized by the Wolf Case. In short,
the admission of the new constitutional right by
Wolf could not consistently tolerate denial of its
most important constitutional privilege, namely,
the exclusion of the evidence which an accused
had been forced to give by reason of the unlawful
seizure. To hold otherwise is to grant the right but
in reality to withhold its privilege and enjoinment.
Only last year the Court itself recognized that the
purpose of the exclusionary rule 'is to deter to
compel respect for the constitutional guaranty in
the only effectively available way by removing
the incentive to disregard it.' . . .
"The ignoble shortcut to conviction left open to
the State tends to destroy the entire system of
constitutional restraints on which the liberties of
the people rest. Having once recognized that the
right to privacy embodied in the Fourth
Amendment is enforceable against the States,
and that the right to be secure against rude
invasions of privacy by state officers is, therefore
constitutional in origin, we can no longer permit
that right to remain an empty promise. Because it
is enforceable in the same manner and to like
effect as other basic rights secured by the Due
Process Clause, we can no longer permit it to be
revocable at the whim of any police officer who,
in the name of law enforceable itself, chooses to
suspend its enjoinment. Our decision, founded on
reason and truth, gives to the individual no more
than that which the Constitution guarantees him,
to the police officer no less than that to which
honest law enforcement is entitled, and, to the
courts, that judicial integrity so necessary in the
true administration of justice." (Emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not
only to the letter, but, also, to spirit of the
constitutional injunction against unreasonable
searches and seizures. To be sure, if the applicant
for a search warrant has competent evidence to
establish probable cause of the commission of a
given crime by the party against whom the
warrant is intended, then there is no reason why
the applicant should not comply with the
requirements of the fundamental law. Upon the
other hand, if he has no such competent
evidence, then it is not possible for the judge to
find that there is probable cause, and, hence, no
justification for the issuance of the warrant. The
only possible explanation (not justification) for its
issuance is the necessity of fishing evidence of
the commission of a crime. But, then, this fishing
expedition is indicative of the absence of
evidence to establish a probable cause.
Moreover, the theory that the criminal
prosecution of those who secure an illegal search
warrant and/or make unreasonable searches or
seizures would suffice to protect the
constitutional guarantee under consideration,
overlooks the fact that violations thereof are, in
general, committed by agents of the party in
power, for, certainly, those belonging to the
minority could not possibly abuse a power they
do not have. Regardless of the handicap under
which the minority usually but, understandably
finds itself in prosecuting agents of the
majority, one must not lose sight of the fact that
the psychological and moral effect of the
possibility 21 of securing their conviction, is
watered down by the pardoning, power of the
party for whose benefit the illegality had been
committed.
In their Motion for Reconsideration and
Amendment of the Resolution of this Court dated
June 29, 1962, petitioners allege that Room Nos.
81 and 91 of Carmen Apartments, House No.
2008, Dewey Boulevard, House No. 1436,
Colorado Street, and Room No. 304 of the Army-
Navy Club, should be included among the
premises considered in said Resolution as
residences of herein petitioners, Harry S.
Stonehill, Robert P. Brook, John J. Brooks and Karl
Beck, respectively, and that, furthermore, the
records, papers and other effects seized in the
offices of the corporations above referred to
include personal belongings of said petitioners
and other effects under their exclusive possession
and control, for the exclusion of which they have
a standing under the latest rulings of the federal
courts of the United States. 22
We note, however, that petitioners' theory,
regarding their alleged possession of and control
over the aforementioned records, papers and
effects, and the alleged "personal" nature
thereof, has been advanced, not in their petition
or amended petition herein, but in the Motion for
Reconsideration and Amendment of the
Resolution of June 29, 1962. In other words, said
theory would appear to be a readjustment of that
followed in said petitions, to suit the approach
intimated in the Resolution sought to be
reconsidered and amended. Then, too, some of
the affidavits or copies of alleged affidavits
attached to said motion for reconsideration, or
submitted in support thereof, contain either
inconsistent allegations, or allegations
inconsistent with the theory now advanced by
petitioners herein.
Upon the other hand, we are not satisfied that the
allegations of said petitions and motion for
reconsideration, and the contents of the
aforementioned affidavits and other papers
submitted in support of said motion, have
sufficiently established the facts or conditions
contemplated in the cases relied upon by the
petitioners, to warrant application of the views
therein expressed, should we agree thereto. At
any rate, we do not deem it necessary to express
our opinion thereon, it being best to leave the
11 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
matter open for determination in appropriate
cases in the future.
We hold, therefore, that the doctrine adopted in
the Moncado case must be, as it is hereby,
abandoned; that the warrants for the search of
three (3) residences of herein petitioners, as
specified in the Resolution of June 29, 1962 are
null and void; that the searches and seizures
therein made are illegal; that the writ of
preliminary injunction heretofore issued, in
connection with the documents, papers and other
effects thus seized in said residences of herein
petitioners is hereby made permanent, that the
writs prayed for are granted, insofar as the
documents, papers and other effects so seized in
the aforementioned residences are concerned;
that the aforementioned motion for
Reconsideration and Amendment should be, as it
is hereby, denied; and that the petition herein is
dismissed and the writs prayed for denied, as
regards the documents, papers and other effects
seized in the twenty-nine (29) places, offices and
other premises enumerated in the same
Resolution, without special pronouncement as to
costs.
It is so ordered.
Reyes, J .B.L., Dizon, Makalintal, Bengzon, J .P.,
Zaldivar and Sanchez, JJ ., concur.
(Soliven v. Makasiar, G.R. No. 82585, 82827,
83979 (Resolution), November 14, 1988)
EN BANC
[G.R. No. 82585. November 14, 1988.]
MAXIMO V. SOLIVEN, ANTONIO V. ROCES,
FREDERICK K. AGCAOILI, and GODOFREDO L.
MANZANAS, petitioners, vs. THE HON. RAMON P.
MAKASIAR, Presiding Judge of the Regional Trial
Court of Manila, Branch 35, UNDERSECRETARY
SILVESTRE BELLO III, of the Department of Justice,
LUIS C. VICTOR, THE CITY FISCAL OF MANILA AND
PRESIDENT CORAZON C. AQUINO, respondents.
[G.R. No. 82827. November 14, 1988.]
LUIS D. BELTRAN, petitioner, vs. THE HON. RAMON
P. MAKASIAR, Presiding Judge of Branch 35 of the
Regional Trial Court, at Manila, THE HON. LUIS
VICTOR CITY FISCAL OF MANILA, PEOPLE OF THE
PHILIPPINES, SUPERINTENDENT OF THE WESTERN
POLICE DISTRICT, AND THE MEMBERS OF THE
PROCESS SERVING UNIT AT THE REGIONAL TRIAL
COURT OF MANILA, respondents.
[G.R. No. 83979. November 14, 1988.]
LUIS D. BELTRAN, petitioner, vs. EXECUTIVE
SECRETARY CATALINO MACARAIG, SECRETARY OF
JUSTICE SEDFREY ORDOEZ, UNDERSECRETARY
OF JUSTICE SILVESTRE BELLO III, THE FISCAL OF
MANILA JESUS F. GUERRERO, AND JUDGE RAMON
P. MAKASIAR, Presiding Judge of Branch 35 of the
Regional Trial Court, at Manila, respondents.
Angara, Abello, Concepcion, Regala and Cruz for
petitioners in G.R. No. 82585.
Perfecto V . Fernandez, Jose P. Fernandez and
Cristobal P. Fernandez for petitioner in G.R. No.
82827 and 83979.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS;
DUE PROCESS OF LAW; RESPONDENT IN A
CRIMINAL CASE NEED NOT FILE HIS
COUNTER-AFFIDAVITS BEFORE PRELIMINARY
INVESTIGATION IS DEEMED COMPLETED.
Due process of law does not require that the
respondent in a criminal case actually file his
counter-affidavits before the preliminary
investigation is deemed completed. All that is
required is that the respondent be given the
opportunity to submit counter-affidavits if he is so
minded.
2. ID.; ID.; RIGHT OF THE PEOPLE TO BE
SECURE IN THEIR PERSONS, HOUSES,
PAPERS AND EFFECTS; ISSUANCE OF
WARRANT OF ARREST; PROBABLE CAUSE;
THE JUDGE HAS EXCLUSIVE AND PERSONAL
RESPONSIBILITY TO DETERMINE EXISTENCE
OF; THE PRESIDENT. This case is not a
simple prosecution for libel. We have as
complainant a powerful and popular President
who heads the investigation and prosecution
service and appoints members of appellate courts
but who feels so terribly maligned that she has
taken the unorthodox step of going to court
inspite of the invocations of freedom of the press
which would inevitably follow.
3. ID.; ID.; ID.; ID.; HARASSMENT INHERENT
IN ANY CRIMINAL PROSECUTION; SUPREME
COURT SHOULD DRAW THE DEMARCATION
LINE WHERE HARASSMENT GOES BEYOND
USUAL DIFFICULTIES ENCOUNTERED BY ANY
ACCUSED. There is always bound to be
harassment inherent in any criminal prosecution.
Where the harassment goes beyond the usual
difficulties encountered by any accused and
results in an unwillingness of media to freely
criticize government or to question government
handling of sensitive issues and public affairs,
this Court and not a lower tribunal should draw
the demarcation line.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS;
FREEDOM OF SPEECH; WHILE DEFAMATION
IS NOT AUTHORIZED, CRITICISM IS TO BE
EXPECTED AND SHOULD BE BORNE FOR THE
COMMON GOOD. As early as March 8, 1918,
the decision in United States v. Bustos (37 Phil.
731) stated that "(c)omplete liberty to comment
on the conduct of public men is a scalpel in the
case of free speech. The sharp incision of its
probe relieves the abscesses of officialdom. Men
in public life may suffer under a hostile and unjust
accusation; the wound can be assuaged with the
balm of a clear conscience." The Court pointed
out that while defamation is not authorized,
criticism is to be expected and should be borne
for the common good.
5. REMEDIAL LAW; CRIMINAL PROCEDURE;
PROSECUTION OF OFFENSES; LIBEL; RULES
THEREON SHOULD BE EXAMINED FROM
VARIOUS PERSPECTIVES IF DIRECTED AT A
HIGH GOVERNMENT OFFICIAL; THE
SUPREME COURT SHOULD DRAW A FINE
LINE INSTEAD OF LEAVING IT TO A LOWER
TRIBUNAL. In fact, the Court observed that
high official position, instead of affording
immunity from slanderous and libelous charges
would actually invite attacks by those who desire
to create sensation. It would seem that what
12 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
would ordinarily be slander if directed at the
typical person should be examined from various
perspectives if directed at a high government
official. Again, the Supreme Court should draw
this fine line instead of leaving it to lower
tribunals.
6. ID.; ID.; FREEDOM OF EXPRESSION;
SAFEGUARDS IN THE NAME THEREOF
SHOULD BE FAITHFULLY APPLIED IN TRIAL
OF LIBEL CASE. In the trial of the libel case
against the petitioners, the safeguards in the
name of freedom of expression should be
faithfully applied.
GUTIERREZ, JR., J., concurring:
1. REMEDIAL LAW; CRIMINAL PROCEDURE;
MOTION TO QUASH; COURT SHOULD NOT
HESITATE TO QUASH A CRIMINAL
PROSECUTION IN INTEREST OF MORE
ENLIGHTENED AND SUBSTANTIAL JUSTICE.
Consistent with our decision in Salonga v. Cruz
Pao (134 SCRA 438 [1985]), the Court should
not hesitate to quash a criminal prosecution in
the interest of more enlightened and substantial
justice where it is not alone the criminal liability
of an accused in a seemingly minor libel case
which is involved but broader considerations of
governmental power versus a preferred freedom.
2. ID.; ID.; PROSECUTION OF OFFENSES;
LIBEL; CASE NOT A SIMPLE PROSECUTION
THEREFOR WHERE COMPLAINANT IS THE
PRESIDENT; JUDGE NOT REQUIRED TO
PERSONALLY EXAMINE COMPLAINANT AND
HIS WITNESSES. What the Constitution
underscores is the exclusive and personal
responsibility of the issuing judge to satisfy
himself the existence of probable cause. In
satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the
judge is not required to personally examine the
complainant and his witnesses. Following
established doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting
documents submitted by the fiscal regarding the
existence of probable cause and, on the basis
thereof, issue a warrant of arrest; or (2) if on the
basis thereof he finds no probable cause, he may
disregard the fiscal's report and require the
submission of supporting affidavits of witnesses
to aid him in arriving at a conclusion as to the
existence of probable cause.
3. ID.; EXECUTIVE DEPARTMENT; PRESIDENT;
IMMUNITY FROM SUIT; RATIONALE. The
rationale for the grant to the President of the
privilege of immunity from suit is to assure the
exercise of Presidential duties and functions free
from any hindrance or distraction, considering
that being the Chief Executive of the Government
is a job that, aside from requiring all of the office-
holder's time, also demands undivided attention.
4. ID.; ID.; ID.; ID.; PRIVILEGE PERTAINS TO
PRESIDENT BY VIRTUE OF THE OFFICE AND
MAY BE INVOKED ONLY BY HOLDER OF
OFFICE. But this privilege of immunity from
suit, pertains to the President by virtue of the
office and may be invoked only by the holder of
the office; not by any other person in the
President's behalf. Thus, an accused in a criminal
case in which the President is complainant cannot
raise the presidential privilege as a defense to
prevent the case from proceeding against such
accused.
5. ID.; ID.; ID.; ID.; EXERCISE OF PRIVILEGE
IS SOLELY THE PRESIDENT'S PREROGATIVE.
Moreover, there is nothing in our laws that
would prevent the President from waiving the
privilege. Thus, if so minded the President may
shed the protection afforded by the privilege and
submit to the court's jurisdiction. The choice of
whether to exercise the privilege or to waive it is
solely the President's prerogative. It is a decision
that cannot be assumed and imposed by any
other person.
RESOLUTION
PER CURIAM p:
In these consolidated cases, three principal issues
were raised: (1) whether or not petitioners were
denied due process when informations for libel
were filed against them although the finding of
the existence of a prima facie case was still under
review by the Secretary of Justice and,
subsequently, by the President; (2) whether or
not the constitutional rights of Beltran were
violated when respondent RTC judge issued a
warrant for his arrest without personally
examining the complainant and the witnesses, if
any, to determine probable cause; and (3)
whether or not the President of the Philippines,
under the Constitution, may initiate criminal
proceedings against the petitioners through the
filing of a complaint-affidavit.
Subsequent events have rendered the first issue
moot and academic. On March 30, 1988, the
Secretary of Justice denied petitioners' motion for
reconsideration and upheld the resolution of the
Undersecretary of Justice sustaining the City
Fiscal's finding of a prima facie case against
petitioners. A second motion for reconsideration
filed by petitioner Beltran was denied by the
Secretary of Justice on April 7, 1988. On appeal,
the President, through the Executive Secretary,
affirmed the resolution of the Secretary of Justice
on May 2, 1988. The motion for reconsideration
was denied by the Executive Secretary on May
16, 1988. With these developments, petitioner's
contention that they have been denied the
administrative remedies available under the law
has lost factual support.
It may also be added that with respect to
petitioner Beltran, the allegation of denial of due
process of law in the preliminary investigation is
negated by the fact that instead of submitting his
counter-affidavits, he filed a "Motion to Declare
Proceeding Closed", in effect waiving his right to
refute the complaint by filing counter-affidavits.
Due process of law does not require that the
respondent in a criminal case actually file his
counter-affidavits before the preliminary
investigation completed. All that is required is
that the respondent be given the opportunity to
submit counter-affidavits if he is so minded.
The second issue, raised by petitioner Beltran,
calls for an interpretation of the constitutional
provision on the issuance of warrants of arrest.
The pertinent provision reads:
13 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
Art. III, Sec. 2. The right of the people to be
secure in their persons, houses, papers and
effects against unreasonable searches and
seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable
cause to be determined personally by the judge
after examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the persons or things to be seized.
The addition of the word "personally" after the
word "determined" and the deletion of the grant
of authority by the 1973 Constitution to issue
warrants to "other responsible officers as may be
authorized by law", has apparently convinced
petitioner Beltran that the Constitution now
requires the judge to personally examine the
complainant and his witnesses determination of
probable cause for the issuance of warrants of
arrest. This is not an accurate interpretation.
What the Constitution underscores is the
exclusive and personal responsibility of the
issuing judge to satisfy himself the existence of
probable cause. In satisfying himself of the
existence of probable cause for the issuance of a
warrant of arrest, the judge is not required to
personally examine the complainant and his
witnesses. Following established doctrine and
procedure, he shall: (1) personally evaluate the
report and the supporting documents submitted
by the fiscal regarding the existence of probable
cause and, on the basis thereof, issue a warrant
of arrest; or (2) if on the basis thereof he finds no
probable cause, he may disregard the fiscal's
report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause.
Sound policy dictates this procedure, otherwise
judges would be unduly laden with the
preliminary examination and investigation of
criminal complaints instead of concentrating on
hearing and deciding cases filed before their
courts.
On June 30, 1987, the Supreme Court
unanimously adopted Circular No. 12, setting
down guidelines for the issuance of warrants of
arrest. The procedure therein provided is
reiterated and clarified in this resolution.
It has not been shown that respondent judge has
deviated from the prescribed procedure. Thus,
with regard to the issuance of the warrants of
arrest, a finding of grave abuse of discretion
amounting to lack or excess of jurisdiction cannot
be sustained.
Anent the third issue, petitioner Beltran argues
that "the reasons which necessitate presidential
immunity from suit impose a correlative disability
to file suit". He contends that if criminal
proceedings ensue by virtue of the President's
filing of her complaint-affidavit, she may
subsequently have to be a witness for the
prosecution, bringing her under the trial court's
jurisdiction. This, continues Beltran, would in an
indirect way defeat her privilege of immunity
from suit, as by testifying on the witness stand,
she would be exposing herself to possible
contempt of court or perjury.
The rationale for the grant to the President of the
privilege of immunity from suit is to assure the
exercise of Presidential duties and functions free
from any hindrance or distraction, considering
that being the Chief Executive of the Government
is a job that, aside from requiring all of the office-
holder's time, also demands undivided attention.
But this privilege of immunity from suit, pertains
to the President by virtue of the office and may
be invoked only by the holder of the office; not by
any other person in the President's behalf Thus,
an accused in a criminal case in which the
President is complainant cannot raise the
presidential privilege as a defense to prevent the
case from proceeding against such accused.
Moreover, there is nothing in our laws that would
prevent the President from waiving the privilege.
Thus, if so minded the President may shed the
protection afforded by the privilege and submit to
the court's jurisdiction. The choice of whether to
exercise the privilege or to waive it is solely the
President's prerogative. It is a decision that
cannot be assumed and imposed by any other
person.
As regards the contention of petitioner Beltran
that he could not be held liable for libel because
of the privileged character or the publication, the
Court reiterates that it is not a trier of facts and
that such a defense is best left to the trial court
to appreciate after receiving the evidence of the
parties.
As to petitioner Beltran's claim that to allow the
libel case to proceed would produce a "chilling
effect" on press freedom, the Court finds no basis
at this stage to rule on the point.
The petitions fail to establish that public
respondents, through their separate acts, gravely
abused their discretion as to amount to lack of
jurisdiction. Hence, the writs of certiorari and
prohibition prayed for cannot issue.
WHEREFORE, finding no grave abuse of discretion
amounting to excess or lack of jurisdiction on the
part of the public respondents, the Court
Resolved to DISMISS the petitions in G. R. Nos.
82585, 82827 and 83979. The Order to maintain
status quo contained in the Resolution of the
Court en banc dated April 7, 1988 and reiterated
in the Resolution dated April 26, 1988 is LIFTED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz,
Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Grio-Aquino, Medialdea and
Regalado, JJ., concur.
14 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
(Silva v. Presiding Judge, RTC of Negros
Oriental, Br. XXXIII, Dumaguete City, G.R.
No. 81756, October 21, 1991)
THIRD DIVISION
[G.R. No. 81756. October 21, 1991.]
NICOMEDES SILVA @ "Comedes", MARLON SILVA
@ "Tama" and ANTONIETA SILVA, petitioners, vs.
THE HONORABLE PRESIDING JUDGE,
REGIONAL TRIAL COURT OF NEGROS
ORIENTAL, BRANCH XXXIII, DUMAGUETE CITY,
respondent.
Marcelo G. Flores for petitioners.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS;
RIGHT AGAINST UNLAWFUL SEARCH AND
SEIZURE; PURPOSE. The purpose of the
constitutional provision against unlawful searches
and seizures is to prevent violations of private
security in person and property, and unlawful
invasion of the sanctity of the home, by officers
of the law acting under legislative or judicial
sanction, and to give remedy against such
usurpations when attempted. (Alvero vs. Dizon,
76 Phil. 637 [1946]).
2. ID.; ID.; ID.; SEARCH WARRANT;
REQUISITES FOR ISSUANCE THEREOF.
Based on Section 2, Article III of the 1987
Constitution and Sections 3 and 4, Rule 126 of
the Rules of Court, the judge must, before issuing
a search warrant, determine whether there is
probable cause by examining the complainant
and witnesses through searching questions and
answers.
3. ID.; ID.; ID.; ID.; ID.; PROBABLE CAUSE;
DEFINED. In the case of Prudente vs. Dayrit,
G.R. No. 82870, December 14, 1989, 180 SCRA
69, 767 this Court defined "probable cause" as
follows: "The 'probable cause' for a valid search
warrant, has been 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 objects
sought in connection with the offense are in the
place sought to be searched'. This probable cause
must be shown to be within the personal
knowledge of the complainant or the witnesses
he may produce and not based on mere hearsay."
4. ID.; ID.; ID.; ID.; ID.; DUTY OF JUDGE TO
PERSONALLY EXAMINE THE APPLICANT AND
THE WITNESSES; EFFECT OF FAILURE TO
COMPLY. In issuing a search warrant, the
judge must strictly comply with the constitutional
and statutory requirement that he must
determine the existence of probable cause by
personally 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 667,
"the capricious disregard by the judge in not
complying with the requirements before issuance
of search warrants constitutes abuse of
discretion".
5. ID.; ID.; ID.; ID.; SEIZURE OF PROPERTY
NOT SPECIFIED IN THE WARRANT; RULE.
The officers implementing the search warrant
clearly abused their authority when they seized
the money of Antonieta Silva. This is highly
irregular considering that Antonieta Silva was not
even named as one of the respondents, that the
warrant did not indicate the seizure of money but
only of marijuana leaves, cigarettes and joints,
and that the search warrant was issued for the
seizure of personal property (a) subject of the
offense and (b) used or intended to be used as
means of committing an offense and NOT for
personal property stolen or embezzled or other
proceeds of fruits of the offense.
DECISION
FERNAN, C.J p:
In this special civil action for certiorari, petitioners
seek the nullification of Search Warrant No. 1
issued by respondent Judge as well as the return
of the money in the amount of P1,231.00 seized
from petitioner Antonieta Silva.
The antecedent facts are as follows:
On June 13, 1986, M/Sgt. Ranulfo Villamor, Jr., as
chief of the PC Narcom Detachment in
Dumaguete City, Negros Oriental, filed an
"Application for Search Warrant" with the
Regional Trial Court, Branch XXXIII, Dumaguete
City against petitioners Nicomedes Silva and
Marlon Silva. 1 This application was accompanied
by a "Deposition of Witness" executed by Pfc.
Arthur M. Alcoran and Pat. Leon T. Quindo, also
dated June 13, 1986. 2
On the same day, Judge Nickarter A. Ontal, then
Presiding Judge of the Regional Trial Court, Branch
XXXIII, Dumaguete City, pursuant to the said
"Application for Search Warrant" and "Deposition
of Witness", issued Search Warrant No. 1,
directing the aforesaid police officers to search
the room of Marlon Silva in the residence of
Nicomedes Silva for violation of REPUBLIC ACT
NO. 6425, otherwise known as the Dangerous
Drugs Act of 1972, as amended. Pertinent
portions of Search Warrant No. 1 read as follows:
prLL
"It appearing to the satisfaction of the
undersigned after examining oath (sic) MSGT.
Ranulfo T. Villamor, Jr. and his witnesses (sic) Pfc.
Arthur M. Alcoran and Pat. Leon T. Quindo that
there is probable cause to believe that possession
and control of Marijuana dried leaves, cigarettes,
joint has been committed or is about to be
committed and that there are good and sufficient
reasons to believe that marijuana dried leaves,
cigarettes, joint has in possession and/or control
at Tama's Room (Rgt. side 1st Floor) located at
Nono-Limbaga Drive, Tanjay, Neg. Or. which
is/are:
"X (Subject of the offense stated above
(Stolen or embezzled or other proceeds of fruits
of the offense;
"X (Used or intended to be used as means of
committing an offense.
"You are hereby commanded to make an
immediate search at any time of the day (night)
of the room of Tama Silva residence of his father
Comedes Silva to open (sic) aparadors, lockers,
15 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
cabinets, cartoons, containers, forthwith seize
and take possession of the following property
Marijuana dried leaves, cigarettes, joint and bring
the said property to the undersigned to be dealt
with as the law directs." 3
In the course of the search, the serving officers
also seized money belonging to Antonieta Silva in
the amount of P1,231.40.
On June 16, 1986, Antonieta Silva filed a motion
for the return of the said amount on the grounds
that the search warrant only authorized the
serving officers to seize marijuana dried leaves,
cigarettes and joint, and that said officers failed
or refused to make a return of the said search
warrant in gross violation of Section 11, Rule 126
of the Rules of Court. 4
Acting on said motion, Judge Ontal issued an
Order dated July 1, 1986, stating that the court
"holds in abeyance the disposition of the said
amount of P1,231.40 pending the filing of
appropriate charges in connection with the search
warrant." 5
On July 28, 1987, petitioners filed a motion to
quash Search Warrant No. 1 on the grounds that
(1) it was issued on the sole basis of a
mimeographed "Application for Search Warrant"
and "Deposition of Witness", which were
accomplished by merely filling in the blanks and
(2) the judge failed to personally examine the
complainant and witnesses by searching
questions and answers in violation of Section 3,
Rule 126 of the Rules of Court. 6
On August 11, 1987, respondent trial court,
through Judge Eugenio M. Cruz, who, by then, had
replaced retired Judge Ontal, issued an Order
denying the motion for lack of merit, finding the
requisites necessary for the issuance of a valid
search warrant duly complied with. 7
A motion for reconsideration dated September 1,
1987 filed by petitioners was likewise denied by
Judge Cruz in an order dated October 19, 1987.
Hence, this special civil action for certiorari.
Petitioners allege that the issuance of Search
Warrant No. 1 was tainted with illegality and that
respondent Judge should be viewed to have acted
without or in excess of jurisdiction, or committed
grave abuse of discretion amounting to lack of
jurisdiction when he issued the Order dated
August 11, 1987, denying their motion to quash
Search Warrant No. 1.
We rule for petitioners.
Section 2, Article III (Bill of Rights) of the 1987
Constitution guarantees the right to personal
liberty and security of homes against
unreasonable searches and seizures. This section
provides: LLpr
"SECTION 2. The right of the people to be secure
in their persons, houses, papers, and effects
against unreasonable searches and seizures of
whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to
be determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the persons or things to be seized."
The purpose of the constitutional provision
against unlawful searches and seizures is to
prevent violations of private security in person
and property, and unlawful invasion of the
sanctity of the home, by officers of the law acting
under legislative or judicial sanction, and to give
remedy against such usurpations when
attempted. 8
Thus, Sections 3 and 4, Rule 126 of the Rules of
Court provide for the requisites for the issuance
of a search warrant, to wit:
"SECTION 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.
"SECTION 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."
Based on the aforecited constitutional and
statutory provisions, the judge must, before
issuing a search warrant, determine whether
there is probable cause by examining the
complainant and witnesses through searching
questions and answers.
In the case of Prudente vs. Dayrit, G.R. No.
82870, December 14, 1989, 180 SCRA 69, 767
this Court defined "probable cause" as follows:
"The 'probable cause' for a valid search warrant,
has been 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 objects
sought in connection with the offense are in the
place sought to be searched'. This probable cause
must be shown to be within the personal
knowledge of the complainant or the witnesses
he may produce and not based on mere hearsay."
In the case at bar, we have carefully examined
the questioned search warrant as well as the
"Application for Search Warrant" and "Deposition
of Witness", and found that Judge Ontal failed to
comply with the legal requirement that he must
examine the applicant and his witnesses in the
form of searching questions and answers in order
to determine the existence of probable cause.
The joint "Deposition of Witness" executed by Pfc.
Alcoran and Pat. Quindo, which was submitted
together with the "Application for Search
16 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
Warrant" contained, for the most part, suggestive
questions answerable by merely placing "yes" or
"no" in the blanks provided thereon. In fact there
were only four (4) questions asked, to wit:
"Q Do you personally know M/Sgt. Ranulfo
Villamor, Jr. the applicant for a search warrant?"
A Yes, sir.
"Q Do you have personal knowledge that the said
premises subject of the offense stated above, and
other proceeds of fruit of the offense, used or
obtain (sic) or intended to be used as means of
committing an offense?"
A Yes, sir. LexLib
"Q Do you know personally who is/are the person
who has have the property in his/their possession
and control?"
A Yes, sir.
"Q How did you know all this (sic) things?"
A Through discreet surveillance." 9
The above deposition did not only contain leading
questions but it was also very broad. The
questions propounded to the witnesses were in
fact, not probing but were merely routinary. The
deposition was already mimeographed and all
that the witnesses had to do was fill in their
answers on the blanks provided.
In the case of Nolasco vs. Pao, G.R. No. 69803,
October 8, 1986, 139 SCRA 152, 163, this Court
held:
"The 'probable cause' required to justify the
issuance of a search warrant comprehends such
facts and circumstances as will induce a cautious
man to rely upon them and act in pursuant
thereof Of the 8 questions asked, the 1st, 2nd
and 4th pertain to identity. The 3rd and 5th are
leading not searching questions. The 6th, 7th and
8th refer to the description of the personalities to
be seized, which is identical to that in the Search
Warrant and suffers from the same lack of
particularity. The examination conducted was
general in nature and merely repetitious of the
deposition of said witness. Mere generalization
will not suffice and does not satisfy the
requirements or probable cause upon which a
warrant may issue."
Likewise, in the Prudente case cited earlier, this
Court declared the search warrant issued as
invalid due to the failure of the judge to examine
the witness in the form of searching questions
and answers. Pertinent portion of the decision
reads:
"Moreover, a perusal of the deposition of P/Lt.
Florencio Angeles shows that it was too brief and
short. Respondent Judge did not examine him 'in
the form of searching questions and answers'. On
the contrary, the questions asked were leading as
they called for a simple 'yes' or 'no' answer. As
held in Quintero vs. NBI, 'the questions
propounded by respondent Executive Judge to the
applicant's witness are not sufficiently searching
to establish probable cause. 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." 10
Thus, in issuing a search warrant, the judge must
strictly comply with the constitutional and
statutory requirement that he must determine
the existence of probable cause by personally
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 667, "the capricious
disregard by the judge in not complying with the
requirements before issuance of search warrants
constitutes abuse of discretion".
The officers implementing the search warrant
clearly abused their authority when they seized
the money of Antonieta Silva. This is highly
irregular considering that Antonieta Silva was not
even named as one of the respondents, that the
warrant did not indicate the seizure of money but
only of marijuana leaves, cigarettes and joints,
and that the search warrant was issued for the
seizure of personal property (a) subject of the
offense and (b) used or intended to be used as
means of committing an offense and NOT for
personal property stolen or embezzled or other
proceeds of fruits of the offense. Thus, the then
presiding Judge Ontal likewise abused his
discretion when he rejected the motion of
petitioner Antonieta Silva seeking the return of
her seized money.
WHEREFORE, the petition is granted. Search
Warrant No. 1 is hereby declared null and void.
Respondent Judge of the Regional Trial Court of
Negros Oriental, Branch XXXIII is directed to order
the return to petitioner Antonieta Silva of the
amount of P1,231.40 which had earlier been
seized from her by virtue of the illegal search
warrant. This decision is immediately executory.
No costs. LexLib
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ.,
concur.
(Morano v. Vivo, G.R. No. L-22196, June 30,
1967)
EN BANC
[G.R. No. L-22196. June 30, 1967.]
ESTEBAN MORANO, CHAN SAU WAH and FU YAN
FUN, petitioners-appellants, vs. HON.
MARTINIANO VIVO, in his capacity as Acting
Commissioner of Immigration, respondent-
appellant.
Engracio Fabre Law Office for petitioners-
appellants.
Solicitor General Arturo A. Alafriz, and Solicitor A.
M. Amores for respondent-appellant.
SYLLABUS
1. CITIZENSHIP; MARRIAGE OF AN ALIEN
WOMAN TO A FILIPINO CITIZEN; EFFECT
THEREOF; CASE AT BAR. In a series of cases,
17 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
this Court has declared that the marriage of an
alien woman to a Filipino citizen does not ipso
facto make her a Filipino citizen. She must
satisfactorily show that she has all the
qualifications and none of the disqualifications
required by the Naturalization Law. Considering
that in the additional stipulation of facts of July 3,
1963, petitioners admit that Chan-Sau Wah is not
possessed of all the qualifications required by the
Naturalization Law there can be no doubt that
petitioner Chan Sau Wah did not become a
Filipino citizen.
2. DEPORTATION PROCEEDINGS; SECTION
I(3) ARTICLE III OF THE CONSTITUTION NOT
APPLICABLE. The constitutional guarantee
set forth in Section 1(3), Article III of the
Constitution, requiring that the issue of probable
cause be determined by a judge, does not extend
to deportation proceedings (Tu Chuan Hai vs.
Commissioner of Immigration, 55 Off. Gaz., No.
28, pp. 681-683).
3. ID.; RULE AS TO TEMPORARY VISITORS
UPON EXPIRATION OF PERIOD OF STAY.
The law is to the effect that temporary visitors
who do not depart upon the expiration of the
period of stay granted' them are subject to
deportation by the Commissioner of Immigration,
for having violated the limitation or condition
under which they were admitted as non-
immigrants (Immigration Law, Sec. 37 (a),
subsection (7); C.A. 613, as amended.
4. ID.; ID.; CHANGE OF STATUS; REQUISITES
THEREFOR. This Court in a number of cases
has ruled, and consistently too, that an alien
admitted as a temporary visitor cannot change
his or her status without first departing from the
country and complying with the requirements of
Section 9 of the Immigration Act. Thus, the
marriage of a temporary alien visitor to a Filipino
does not ipso facto make her a permanent
resident in this country.
5. ID.; CITIZENSHIP; MEANING OF "CHILD" IN
SECTION 15 PARAGRAPH 3, Commonwealth
Act 473. The word child we are certain means
legitimate child, not a step-child. Thus, when the
Constitution provides that "those whose fathers
are citizens of the Philippines are citizens thereof"
the fundamental charter intends "those" to apply
to legitimate children. In another case, the term
"minor children" or "minor child" in Section 15 of
the Revised Naturalization Law was interpreted to
refer only to legitimate children of Filipino
citizens.
6. ID.; BONDS; RULE REQUIRING OFFICIAL
APPROVAL THEREOF MERELY DIRECTORY.
The provision requiring official approval of a bond
is merely directory. "Irregularity or entire failure in
this respect does not affect the validity of the
bond." (9 C.J., p. 25).
7. ID.; ID.; ID.; ESTOPPEL ON EQUITABLE
CONSIDERATIONS. Equitable consideration
will stop petitioners from pleading invalidity of
the bond. They offered that bond to enable them
to enter and stay in this country. They enjoyed
benefits therefrom. They cannot "in law and good
conscience be allowed to reap the fruits" of that
bond, and then jettison the same. They are
"precluded from attacking the validity" of such
bond.
DECISION
SANCHEZ, J p:
Chan Sau Wah, a Chinese citizen born in Fukien,
China on January 6, 1932, arrived in the
Philippines on November 23, 1961 to visit her
cousin, Samuel Lee Malaps. She left in mainland
China two of her children by a first marriage: Fu
Tse Haw and Fu Yan Kai. With her was Fu Yan Fun,
her minor son also by the first marriage, born in
Hongkong on September 11, 1957.
Chan Sau Wah and her minor son Fu Yan Fun were
permitted entry into the Philippines under a
temporary visitor's visa for two (2) months and
after they posted a cash bond of P4,000.00.
On January 24, 1962, Chan Sau Wah married
Esteban Morano, a native-born Filipino citizen.
Born to this union on September 16, 1962 was
Esteban Morano, Jr.
To prolong their stay in the Philippines, Chan Sau
Wah and Fu Yan Fun obtained several extensions.
The last extension expired on September 10,
1962.
In a letter dated August 31, 1962, the
Commissioner of Immigration ordered Chan Sau
Wah and her son, Fu Yan Fun, to leave the country
on or before September 10, 1962 with a warning
that upon failure to do so, he will issue a warrant
for their arrest and will cause the confiscation of
their bond.
Instead of leaving the country, on September 10,
1962, Chan Sau Wah (with her husband Esteban
Morano) and Fu Yan Fun petitioned the Court of
First Instance of Manila for mandamus to compel
the Commissioner of Immigration to cancel
petitioner's Alien Certificates of Registration;
prohibition to stop the Commissioner from issuing
warrants of arrest pending resolution of this case.
1 The trial court, on November 3, 1962, issued
the writ of preliminary injunction prayed for, upon
a P2,000-bond. After trial and the stipulations of
facts filed by the parties, the Court of First
Instance rendered judgment, viz:
"IN VIEW OF ALL THE FOREGOING, judgment is
hereby rendered as follows:
(a) Granting this petition for Mandamus and
Prohibition with respect to petitioner CHAN SAU
WAH, who is hereby declared a citizen of the
Philippines; ordering the respondent to cancel her
Alien Certificate of Registration and other
immigration papers upon the payment of proper
dues; and declaring the preliminary injunction
with respect to her permanent admission,
prohibiting the respondent, his representatives or
subordinates from arresting and/or deporting said
petitioner;
(b) Dismissing this petition with respect to
petitioner FU YAN FUN, and dissolving the writ of
preliminary injunction issued herein, restraining
the respondent, his representatives or
subordinates from arresting and/or deporting said
petitioner;
18 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
(c) Authorizing respondent Commissioner to
forfeit the bond filed by herein petitioners CHAN
SAU WAH and FU YAN FUN in the amount of
P4,000.00; and
(d) Denying, for lack of merit, the prayer to
declare Sec. 37 (a) of the Philippine Immigration
Act of 1940 unconstitutional
Without pronouncement as to costs."
Petitioners and respondent Commissioner both
appealed.
We will deal with the claims of both appellants in
their proper sequence.
1. The Solicitor General's brief assails the trial
court's declaration that Chan Sau Wah is a citizen
of the Philippines. The court a quo took the
position that "Chan Sau Wah became, by virtue
of, and upon, her marriage to Esteban Morano, a
natural-born Filipino, a Filipino citizen." 2
Placed to the fore is paragraph 1, Section 15 of
Commonwealth Act 473 [Revised Naturalization
Act], which reads:
'Sec. 15. Effect of the naturalization on wife and
children. Any woman who is now or may
hereafter be married to a citizen of the
Philippines, and who might herself be lawfully
naturalized shall be deemed a citizen of the
Philippines."
To apply this provision, two requisites must
concur: (a) a valid marriage of an alien woman to
a citizen of the Philippines; and (b) the alien
woman herself might be lawfully naturalized.
We may concede that the first requisite has been
properly met. The validity of the marriage is
presumed.
But can the same be said of the second requisite?
This question by all means is not new. In a series
of cases, this court has declared that the
marriage of an alien woman to a Filipino citizen
does not ipso facto make her a Filipino citizen.
She must satisfactorily show that she has all the
qualifications and none of the disqualifications
required by the Naturalization Law. 3 Ly Giok Ha
alias Wy Giok Ha, et al. vs. Emilio Galang, L-
21332, March 18, 1966, clearly writes down the
philosophy behind the rule in the following
expressive language, viz:
"Reflection will reveal why this must be so. The
qualifications prescribed under section 2 of the
Naturalization Act, and the disqualifications
enumerated in its section 4, are not mutually
exclusive; and if all that were to be required is
that the wife of a Filipino be not disqualified
under section 4, the result might well he that
citizenship would be conferred upon persons in
violation of the policy of the statute. For example,
section 4 disqualified only
(c) Polygamists or believers in the practice of
polygamy; and
(d) Persons convicted of crimes involving moral
turpitude',

so that a blackmailer, or a maintainer of gambling
or bawdy houses, not previously convicted by a
competent court, would not be thereby
disqualified; still, it is certain that the law did not
intend such a person to be admitted as a citizen
in view of the requirement of section 2 that an
applicant for citizenship 'must be of good moral
character'.
Similarly, the citizen's wife might be a convinced
believer in racial supremacy, in government by
certain selected classes, in the right to vote
exclusively by certain "herrenvolk', and thus
disbelieve in the principles underlying the
Philippine Constitution; yet she would not be
disqualified under section 4, as long as she is not
'opposed to organized government', nor affiliated
to groups 'upholding or teaching doctrines
opposing all organized governments', nor
'defending or teaching the necessity or propriety
of violence, personal assault or assassination for
the success or predominance of their ideas'. Et
sic de caeteris."
Upon the principle of selective citizenship, we
cannot afford to depart from the wise precept
affirmed and reaffirmed in the cases heretofore
noted.
In the additional stipulation of facts of July 3,
1963, petitioners admit that Chan Sau Wah is not
possessed of all the qualifications required by the
Naturalization Law.
Because of all these, we are left under no doubt
that petitioner Chan Sau Wah did not become a
Filipino citizen.
2. Squarely put in issue by petitioners is the
constitutionality of Section 37(a) of the
Immigration Act of 1940, which reads:
"Sec. 37. (a) The following aliens shall be arrested
upon the warrant of the Commissioner of
Immigration or of any other officer designated by
him for the purpose and deported upon the
warrant of the Commission of Immigration after a
determination by the Board of Commissioners of
the existence of the ground for deportation as
charged against the alien:
xxx xxx xxx
(7) Any alien who remains in the Philippines in
violation of any limitation or condition under
which he was admitted as a nonimmigrant."
Petitioners argue that the legal precept just
quoted trenches upon the constitutional mandate
in Section 1 (3), Article III [Bill of Right] of the
Constitution, to wit:
"(3) The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures shell 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
19 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
searched, and the persons or things to be
seized."
They say that the Constitution limits to judges the
authority to issue warrants of arrest and that the
legislative delegation of such power to the
Commissioner of Immigration is thus violative of
the Bill of Rights.
Section 1 (3), Article III of the Constitution, we
perceive, does not require judicial intervention in
the execution of a final order of deportation
issued in accordance with law. The constitutional
limitation contemplates an order of arrest in the
exercise of judicial power 4 as a step preliminary
or incidental to prosecution or proceedings for a
given offense or administrative action, not as a
measure indispensable to carry out a valid
decision by a competent official, such as a legal
order of deportation, issued by the Commissioner
of Immigration, in pursuance of a valid legislation.
The following from American Jurisprudence, 5 is
illuminating:
"It is thoroughly established that Congress has
power to order the deportation of aliens whose
presence in the country it deems hurtful. Owing
to the nature of the proceeding, the deportation
of an alien who is found in this country in
violation of law is not a deprivation of liberty
without due process of law. This is so, although
the inquiry devolves upon executive officers, and
their findings of fact, after A fair though summary
hearing, are made conclusive."
xxx xxx xxx
"The determination of the propriety of
deportation is not a prosecution for, or a
conviction of, crime; nor is the deportation a
punishment, even though the facts underlying
the decision may constitute a crime under local
law. The proceeding is in effect simply a refusal
by the government to harbor persons whom it
does not want. The coincidence of local penal law
with the policy of congress is purely accidental,
and, though supported by the same facts, a
criminal prosecution and a proceeding for
deportation are separate and independent."
In consequence, the constitutional guarantee set
forth in Section 1(3), Article III of the Constitution
aforesaid requiring that the issue of probable
cause be determined by a judge, does not extend
to deportation proceedings. 6
The view, we, here express funds support in the
discussions during the constitutional convention.
The convention recognized, as sanctioned by due
process, possibilities and cases of deprivation of
liberty, other than by order of a competent court.
7
Indeed, the power to deport or expel aliens is an
attribute of sovereignty. Such power is planted on
the "accepted maxim of international law, that
every sovereign nation has the power, as
inherent in sovereignty, and essential to self-
preservation, to forbid the entrance of foreigners
within its dominions." 8 So it is, that this Court
once aptly remarked that there can be no
controversy on the fact that where aliens are
admitted as temporary visitors, "the law is to the
effect that temporary visitors who do not depart
upon the expiration of the period of stay granted
them are subject to deportation by the
Commissioner of Immigration, for having violated
the limitation or condition under which they were
admitted as non-immigrants (Immigration Law,
Sec. 37(a), subsection (7) C.A. 613, as amended)"
9 child under twenty- one years of age of a
And, in a case directly in point, where the power
of the Commissioner to issue warrants of arrest
was challenged as unconstitutional because
"such power is only vested in a judge by Section
1, paragraph 3, Article III of our Constitution", this
Court declared
"This argument overlooks the fact that the stay of
appellant Ng Hua To as temporary visitor is
subject to certain contractual stipulations as
contained in the cash bond put up by him, among
them, that in case of breach the Commissioner
may require the recommitment of the person in
whose favor the bond has been filed. The
Commissioner did nothing but to enforce such
condition. Such a step is necessary to enable the
Commissioner to prepare the ground for his
deportation under section 37 (a) of
Commonwealth Act 613. A contrary interpretation
would render such power nugatory to the
detriment of the State." 10
It is in this context that we rule that Section 37
(a) of the Immigration Act of 1940 is not
constitutionally proscribed.
3. A sequel to the question just discussed is the
second error set forth in the government's brief.
The Solicitor General balks at the lower court's
ruling that petitioner Chan Sau Wah is entitled to
permanent residence in the Philippines without
first complying with the requirements of Sections
9 and 13 of the Immigration Act of 1940, as
amended by Republic Act 503.
We first go to the law, viz:
"SEC. 9 [last paragraph]
An alien who is admitted as a nonimmigrant
cannot remain in the Philippines permanently. To
obtain permanent admission, a nonimmigrant
alien must depart voluntarily to some foreign
country and procure from the appropriate
Philippine consul the proper visa and thereafter
undergo examination by the officers of the
Bureau of Immigration at a Philippine port of
entry for determination of his admissibility in
accordance with the requirements of this Act."
xxx xxx xxx
"Sec. 13. Under the conditions set forth in this
Act, there may be admitted into the Philippines
immigrants, termed 'quota immigrants' not in
excess of fifty (50) of any one nationality or
without nationality for any one calendar year,
except that the following immigrants, termed
'nonquota immigrants, may be admitted without
regard to such numerical limitations.
The corresponding Philippine Consular
representative abroad shall investigate and
certify the eligibility of a quota immigrant
previous to his admission into the Philippines.
Qualified and desirable aliens who are in the
20 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
Philippines under temporary stay may be
admitted within the quota, subject to the
provision of the last paragraph of section 9 of this
Act.
(a) The wife or the husband or the unmarried
Philippine citizen, if accompanying or following to
join such citizen:
(b) A child of alien parents born during the
temporary visit abroad of the mother, the mother
having been previously lawfully admitted into the
Philippines for permanent residence, if the child is
accompanying or coming to join a parent and
applies for admission within five years from the
date of its birth;"
Concededly, Chan Sau Wah entered the
Philippines on a tourist temporary visitor's visa.
She is a non-immigrant. Under Section 15 just
quoted, she may therefore be admitted if she
were a qualified and desirable alien and subject
to the provisions of the last paragraph of Section
9. Therefore, first, she must depart voluntarily to
some foreign country; second, she must procure
from the appropriate consul the proper visa; and
third, she must thereafter undergo examination
by the officials of the Bureau of Immigration at
the port of entry for determination of her
admissibility in accordance with the requirements
of the Immigration Act.
This Court in a number of cases has ruled, and
consistently too, that an alien admitted as a
temporary visitor cannot change his or her status
without first departing from the country and
complying with the requirements of Section 9 of
the Immigration Act. 11
The gravamen of petitioner's argument is that
Chan Sau Wah has, since her entry, married in
Manila a native-born Filipino, Esteban Morano. It
will not particularly help analysis for petitioners to
appeal to family solidarity in an effort to thwart
her deportation. Chan Sau Wah, seemingly is not
one who has a high regard for such solidarity.
Proof: She left two of her children by the first
marriage, both minors, in the care of neighbors in
Fukien, China.
Then, the wording of the statute heretofore
adverted to is a forbidding obstacle which will
prevent this Court from writing into the law an
additional provision that marriage of a temporary
alien visitor to a Filipino would ipso facto make
her a permanent resident in this country. This is a
field closed to judicial action. No breadth of
discretion is allowed us. We cannot insulate her
from the State's power of deportation.
Really, it would be an easy matter for an alien
woman to enter the Philippines as a temporary
visitor, go through a mock marriage, but actually
live with another man as husband and wife, and
thereby skirt the provisions of our immigration
law. Also, a woman of undesirable character may
enter this country, ply a pernicious trade, marry a
Filipino, and again throw overboard Sections 9
and 13 of the Act. Such a flanking movement, we
are confident, is impermissible.
Recently we confirmed the rule that an alien wife
of a Filipino may not stay permanently without
first departing from the Philippines. Reason:
Discourage entry under false pretenses. 12
The ruling of the trial court on this score should
be reversed.
4. It is petitioner's turn to point as error the
dismissal of the petition for mandamus and
prohibition with respect to petitioner Fu Yan Fun.
Petitioner's line of thought is this: Fu Yan Fun
follows the citizenship of his mother. They cite
Section 15, paragraph 3, Commonwealth Act 473,
which says that:
"A foreign-born minor child, if dwelling in the
Philippines at the time of the naturalization of the
parent, shell automatically be come a Philippine
citizen. . . ."
Petitioner's position is based on the assumption
that Chan Sau Wah, the mother, is a Filipino
citizen. We have held that she is not. At best, Fu
Yan Fun is a step-son of Esteban Morano, husband
of Chan Sau Wah. A step-son is not a foreign-born
child of the step-father. The word child, we are
certain, means legitimate child, not a step- child.
We are not wanting in precedents. Thus, when
the Constitution provides that "[t]hose whose
fathers are citizens of the Philippines" are citizens
thereof, 13 the fundamental charter intends
"those" to apply to legitimate children. 14 In
another case, the term "minor children" or "minor
child" in Section 15 of the Revised Naturalization
Law refers only to legitimate children of Filipino
citizens. This Court, thru Mr. Chief Justice Roberto
Concepcion, there said: 15
"It is claimed that the phrases 'minor children'
and 'minor child', used in these provisions,
include adopted children. The argument is
predicated upon the theory that an adopted child
is, for all intents and purposes, a legitimate child.
Whenever, the word 'children' or 'child' is used in
statutes, it is generally understood, however, to
refer to legitimate children, unless the context of
the law and its spirit indicate clearly the contrary.
Thus, for instance, when the Constitution
provides that 'those whose fathers are citizens of
the Philippines', and 'those whose mothers are
citizens of the Philippines' who shall elect
Philippine citizenship upon reaching the age of
majority are citizens of the Philippines Article IV,
Section 1, subdivisions [3] and (4]), our
fundamental law clearly refers to legitimate
children (Chiongbian vs. De Leon, 46 Off. Gaz.,
3652-3654; Serra vs. Republic, L-4223, May 12,
1952)."
At any rate, Fu Yan Fun entered the Philippines as
a temporary visitor. The status of a temporary
visitor cannot be converted into that of a
permanent resident, as we have heretofore held,
without first complying with Section 9 of the
Immigration Law.
5. Petitioners finally aver that the lower court
erred in authorizing respondent Commissioner to
21 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
forfeit the bond filed by petitioners Chan Sau Wah
and Fu Yan Fun in the amount of P4,000.00.
Here is petitioner's posture. They enjoyed their
stay in the Philippines upon a bond. Now they
come to court and say that as the prescribed
form of this bond was not expressly approved by
the Secretary of Justice in accordance with
Section 3 of Commonwealth Act 613, which reads
"Sec. 3. . . . He [Commissioner of Immigration]
shall, subject to the approval of the Department
Head, such rules and regulations and prescribe
such forms of bond, reports, and other papers,
and shall issue from time to time such instruction,
not inconsistent with law, as he shall deem best
calculated to carry out the provisions of the
immigration laws . . ." that bond is void.
Reasons there are which prevent us from giving
our imprimatur to this argument.
The provision requiring official approval of a bond
is merely directory. "Irregularity or entire failure in
this respect does not affect the validity of the
bond." 16 The reason for the rule is found in 9
C.J., p. 26 (footnote), which reads:
"(a) Reason for rule. 'Statutes requiring bonds
to be approved by certain officials are not for the
purpose of protecting the obligors in the bond,
but are aimed to protect the public, to insure
their solvency, and to create evidence of an
unimpeachable character of the fact of their
execution. When they are executed for a legal
purpose, before a proper tribunal, and are in fact
accepted and approved by the officer or body,
whose duty it was to approve them, it could serve
no useful purpose of the law to hold them invalid,
to release all the obligation thereon, and to
defeat every purpose of its execution, simply
because the fact of approval was not indorsed
precisely as had been directed by the
Legislature.' American Book Co., vs. Wells, 83 SW
622, 627, 26 Kyl 1159." (emphasis supplied)
And another. This bond was accepted by the
government. It has been there. The form of the
bond here used is of long continued usage. If the
government did not question the form of the
bond at all, then we must assume that it counted
with the Secretary's approval. For the
presumption is that official duty has been legally
performed.
Surely enough, equitable considerations will stop
petitioners from pleading invalidity of the bond.
They offered that bond to enable them to enter
and stay in this country. They enjoyed benefits
therefrom. They cannot, "in law and good
conscience, be allowed to reap the fruits" of that
bond, and then jettison the same. They are
"precluded from attacking the validity" of such
bond. 17
Actually, to petitioners the bond was good while
they sought entry into the Philippines; they
offered it as security for the undertaking that
they "will actually depart from the Philippines"
when their term of stay expires. Now that the
bond is being confiscated because they
overstayed, they make an about-face and say
that such bond is null and void. They shall not
profit from this inconsistent position. Their bond
should be confiscated.
Conformably to the foregoing, the judgment
under review is hereby modified as follows:
(1) The portion thereof which reads:
"(a) Granting this petition for Mandamus and
Prohibition with respect to petitioner CHAN SAU
WAH, who is hereby declared a citizen of the
Philippines; ordering the respondent to cancel her
Alien Certificate of Registration and other
immigration papers, upon the payment of proper
dues; and declaring the preliminary injunction
with respect to her permanent, prohibiting the
respondent, his representatives or subordinates
from arresting and/or deporting said petitioner;"
is hereby reversed; and, in consequence
The petition for mandamus and prohibition with
respect to petitioner Chan Sau Wah is hereby
denied; and the judgment declaring her a citizen
of the Philippines, directing respondent to cancel
her Alien Certificate of Registration and other
immigration papers, and declaring the
preliminary injunction with respect to her
permanent, are all hereby set aside; and
(2) In all other respects, the decision appealed
from is hereby affirmed.
No costs. So ordered.
Concepcion, C .J ., Reyes, J .B.L., Makalintal,
Bengzon, J .P., Zaldivar and Castro, JJ ., concur.
(In re: Harvey v. Santiago, G.R. No. 82544,
June 28, 1988)
SECOND DIVISION
[G.R. No. 82544. June 28, 1988.]
IN THE MATTER OF THE PETITION FOR HABEAS
CORPUS OF: ANDREW HARVEY, JOHN SHERMAN
and ADRIAAN VAN DEL ELSHOUT, petitioners, vs.
HONORABLE COMMISSIONER MIRIAM DEFENSOR
SANTIAGO, COMMISSION ON IMMIGRATION AND
DEPORTATION, respondent.
DECISION
MELENCIO-HERRERA, J p:
A petition for Habeas Corpus.
Petitioners Andrew Harvey and John Sherman, 52
and 72 years, respectively, are both American
nationals residing at Pagsanjan, Laguna, while
Adriaan Van Den Elshout, 58 years old, is a Dutch
citizen also residing at Pagsanjan, Laguna.
The case stems from the apprehension of
petitioners on 27 February 1988 from their
respective residences by agents of the
Commission on Immigration and Deportation
(CID) by virtue of Mission Orders issued by
respondent Commissioner Miriam Defensor
Santiago of the CID. Petitioners are presently
detained at the CID Detention Center.
Petitioners were among the twenty-two (22)
suspected alien pedophiles who were
apprehended after three months of close
22 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
surveillance by CID agents in Pagsanjan, Laguna.
Two (2) days after apprehension, or on 29
February 1988, seventeen (17) of the twenty-two
(22) arrested aliens opted for self-deportation and
have left the country. One was released for lack of
evidence; another was charged not for being a
pedophile but for working without a valid working
visa. Thus, of the original twenty two (22), only
the three petitioners have chosen to face
deportation.
Seized during petitioners' apprehension were rolls
of photo negatives and photos of the suspected
child prostitutes shown in salacious poses as well
as boys and girls engaged in the sex act. There
were also posters and other literature advertising
the child prostitutes.
The "Operation Report" on Andrew Harvey and
Richard Sherman dated 29 February 1988 stated:
xxx xxx xxx
"ANDREW MARK HARVEY was found together with
two young boys.
"RICHARD SHERMAN was found with two naked
boys inside his room."
In respect of Van Den Elshout, the "After Mission
Report," dated 27 February 1988 read in part:
"Noted:
There were two (2) children ages 14 & 16 which
subject readily accepted having been in his care
and live-in for quite sometime."
On 4 March 1988, deportation proceedings were
instituted against petitioners for being
undesirable aliens under Section 69 of the
Revised Administrative Code (Deportation Case
No. 88-13). The "Charge Sheet" read inter alia:
"Wherefore, this Office charges the respondents
for deportation, as undesirable aliens, in that:
they, being pedophiles, are inimical to public
morals, public health and public safety as
provided in Section 69 of the Revised
Administrative Code."
On 7 March 1988, Warrants of Arrest were issued
by respondent against petitioners for violation of
Sections 37, 45 and 46 of the Immigration Act
and Section 69 of the Revised Administrative
Code. On the same date, the Board of Special
Inquiry III commenced trial against petitioners.
On 14 March 1988, petitioners filed an Urgent
Petition for Release Under Bond alleging that their
health was being seriously affected by their
continuous detention. Upon recommendation of
the Board of Commissioners for their provisional
release, respondent ordered the CID doctor to
examine petitioners, who certified that petitioners
were healthy.
On 22 March 1988, petitioners filed a Petition for
Bail which, however, respondent denied
considering the certification by the CID physician
that petitioners were healthy. To avoid
congestion, respondent ordered petitioners'
transfer to the CID detention cell at Fort
Bonifacio, but the transfer was deferred pending
trial due to the difficulty of transporting them to
and from the CID where trial was on-going.
On 4 April 1988 petitioner Andrew Harvey filed a
Manifestation/Motion stating that he had "finally
agreed to a self-deportation" and praying that he
be "provisionally released for at least 15 days and
placed under the custody of Atty. Asinas before
he voluntarily departs the country." On 7 April
1988, the Board of Special Inquiry III allowed
provisional release of five (5) days only under
certain conditions. However, it appears that on
the same date that the aforesaid
Manifestation/Motion was filed, Harvey and his
co-petitioners had already filed the present
petition.
On 4 April 1988, as heretofore stated, petitioners
availed of this Petition for a Writ of Habeas
Corpus. A Return of the Writ was filed by the
Solicitor General and the Court heard the case on
oral argument on 20 April 1988. A Traverse to the
Writ was presented by petitioners to which a
Reply was filed by the Solicitor General. LLjur
Petitioners question the validity of their detention
on the following grounds:
1) There is no provision in the Philippine
Immigration Act of 1940 nor under Section 69 of
the Revised Administrative Code, which legally
clothes the Commissioner with any authority to
arrest and detain petitioners pending
determination of the existence of a probable
cause leading to an administrative investigation.
2) Respondent violated Section 2, Article III of the
1987 Constitution prohibiting unreasonable
searches and seizures since the CID agents were
not clothed with valid Warrants of arrest, search
and seizure as required by the said provision.
3) Mere confidential information made to the CID
agents and their suspicion of the activities of
petitioners that they are pedophiles, coupled with
their association with other suspected
pedophiles, are not valid legal grounds for their
arrest and detention unless they are caught in
the act. They further allege that being a
pedophile is not punishable by any Philippine Law
nor is it a crime to be a pedophile.
We reject petitioners' contentions and uphold
respondent's official acts ably defended by the
Solicitor General.
There can be no question that the right against
unreasonable searches and seizures guaranteed
by Article III, Section 2 of the 1987 Constitution, is
available to all persons, including aliens, whether
accused of crime or not (Moncado vs. People's
Court, 80 Phil. 1 [1948]. One of the constitutional
requirements of a valid search warrant or warrant
of arrest is that it must be based upon probable
cause. Probable cause has been defined as
referring to "such facts and circumstances
antecedent to the issuance of the warrant that in
themselves are sufficient to induce a cautious
man to rely on them and act in pursuance
thereof" (People vs. Syjuco, 64 Phil. 667 [1937];
Alvarez vs. CFI, 64 Phil. 33 [1937]).
23 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
The 1985 Rules on Criminal Procedure also
provide that an arrest without a warrant may be
effected by a peace officer or even a private
person (1) when such person has committed,
actually committing, or is attempting to commit
an offense in his presence; and (2) when an
offense has, in fact, been committed and he has
personal knowledge of facts indicating that the
person to be arrested has committed it (Rule 113,
Section 5). prcd
In this case, the arrest of petitioners was based
on probable cause determined after close
surveillance for three (3) months during which
period their activities were monitored. The
existence of probable cause justified the arrest
and the seizure of the photo negatives,
photographs and posters without warrant (See
Papa vs. Mago, L-27360, February 28, 1968, 22
SCRA 857; People vs. Court of First Instance of
Rizal, L-41686, November 17, 1980, 101 SCRA 86,
cited in CRUZ, Constitutional Law, 1987 ed., p.
143). Those articles were seized as an incident to
a lawful arrest and, are therefore, admissible in
evidence (Section 12, Rule 126, 1985 Rules on
Criminal Procedure).
But even assuming arguendo that the arrest of
petitioners was not valid at its inception, the
records show that formal deportation charges
have been filed against them, as undesirable
aliens, on 4 March 1988. Warrants of arrest were
issued against them on 7 March 1988 "for
violation of Section 37, 45 and 46 of the
Immigration Act and Section 69 of the
Administrative Code." A hearing is presently
being conducted by a Board of Special Inquiry.
The restraint against their persons, therefore, has
become legal. The Writ has served its purpose.
The process of the law is being followed (Cruz vs.
Montoya, L-39823, February 25, 1975, 62 SCRA
543). "Where a person's detention was later
made by virtue of a judicial order in relation to
criminal cases subsequently filed against the
detainee, his petition for habeas corpus becomes
moot and academic" (Beltran vs. Garcia, L-49014,
April 30, 1979, 89 SCRA 717). "It is a fundamental
rule that a writ of habeas corpus will not be
granted when the confinement is or has become
legal, although such confinement was illegal at
the beginning" (Matsura vs. Director of Prisons,
77 Phil. 1050 [1947]).
That petitioners were not "caught in the act" does
not make their arrest illegal. Petitioners were
found with young boys in their respective rooms,
the ones with John Sherman being naked. Under
those circumstances the CID agents had
reasonable grounds to believe that petitioners
had committed "pedophilia" defined as "psycho-
sexual perversion involving children" (Kraft-
Ebbing Psychopatia Sexualis, p. 555; "Paraphilia
or unusual sexual activity in which children are
the preferred sexual object" (Webster's Third New
International Dictionary, 1971 ed., p. 1665)
[Solicitor General's Return of the Writ, on p. 10].
While not a crime under the Revised Penal Code,
it is behavior offensive to public morals and
violative of the declared policy of the State to
promote and protect the physical, moral,
spiritual, and social well-being of our youth
(Article II, Section 13, 1987 Constitution).
At any rate, the filing by petitioners of a petition
to be released on bail should be considered as a
waiver of any irregularity attending their arrest
and estops them from questioning its validity
(Callanta v. Villanueva, L-24646 & L-24674, June
20, 1977, 77 SCRA 377; Bagcal vs. Villaraza, L-
61770, January 31, 1983, 120 SCRA 525).
The deportation charges instituted by respondent
Commissioner are in accordance with Section
37(a) of the Philippine Immigration Act of 1940, in
relation to Section 69 of the Revised
Administrative Code. Section 37(a) provides in
part:
"(a) The following aliens shall be arrested upon
the warrant of the Commissioner of Immigration
and Deportation or any other officer designated
by him for the purpose and deported upon the
warrant of the Commissioner of Immigration and
Deportation after a determination by the Board of
Commissioners of the existence of the ground for
deportation as charged against the alien;
xxx xxx xxx
The foregoing provision should be construed in its
entirety in view of the summary and indivisible
nature of a deportation proceeding, otherwise,
the very purpose of deportation proceedings
would be defeated.
Section 37(a) is not constitutionally proscribed
(Morano vs. Vivo, L-22196, June 30, 1967, 20
SCRA 562). The specific constraints in both the
1935 1 and 1987 2 Constitutions, which are
substantially identical, contemplate prosecutions
essentially criminal in nature. Deportation
proceedings, on the other hand, are
administrative in character. An order of
deportation is never construed as a punishment.
It is preventive, not a penal process. It need not
be conducted strictly in accordance with ordinary
Court proceedings.
"It is of course well-settled that deportation
proceedings do not constitute a criminal action.
The order of deportation is not a punishment,
(Mahler vs. Eby, 264 U.S., 32), it being merely the
return to his country of an alien who has broken
the conditions upon which he could continue to
reside within our borders (U.S. vs. De los Santos,
33 Phil., 397). The deportation proceedings are
administrative in character, (Kessler vs. Stracker,
307 U.S., 22) summary in nature, and need not
be conducted strictly in accordance with the
ordinary court proceedings (Murdock vs. Clark, 53
F. [2d], 155). It is essential, however, that the
warrant of arrest shall give the alien sufficient
information about the charges against him,
relating the facts relied upon. (U.S. vs. Uhl, 211 F.,
628.) It is also essential that he be given a fair
hearing with the assistance of counsel, if he so
desires, before unprejudiced investigators
(Strench vs. Pedaris, 55 F. [2d], 597; Ex parte Jew
You On, 16 F. [2d], 153). However, all the strict
rules of evidence governing judicial controversies
do not need to be observed; only such as are
fundamental and essential, like the right of cross-
examination. (U.S. vs. Hughes, 104 F. [2d], 14;
24 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
Murdock vs. Clark, 53 F. [2d], 155.) Hearsay
evidence may even be admitted, provided the
alien is given the opportunity to explain or rebut
it (Morrell vs. Baker, 270 F., 577; Sercerchi vs.
Ward, 27 F. Supp., 437)." (Lao Tang Bun vs. Fabre,
81 Phil. 682 [1948]).
The ruling in Vivo vs. Montesa (G. R. No. 24576,
July 29, 1968, 24 SCRA 155) that "the issuance of
warrants of arrest by the Commissioner of
Immigration, solely for purposes of investigation
and before a final order of deportation is issued,
conflicts with paragraph 3, Section 1 of Article III
of the Constitution" (referring to the 1935
Constitution) 3 is not invocable herein.
Respondent Commissioner's Warrant of Arrest
issued on 7 March 1988 did not order petitioners
to appear and show cause why they should not
be deported. They were issued specifically "for
violation of Sections 37, 45 and 46 of the
Immigration Act and Section 69 of the Revised
Administrative Code." Before that, deportation
proceedings had been commenced against them
as undesirable aliens on 4 March 1988 and the
arrest was a step preliminary to their possible
deportation. cdrep
"Section 37 of the Immigration Law, which
empowers the Commissioner of Immigration to
issue warrants for the arrest of overstaying aliens
is constitutional. The arrest is a step preliminary
to the deportation of the aliens who had violated
the condition of their stay in this country."
(Morano vs. Vivo, L-22196, June 30, 1967, 20
SCRA 562).
To rule otherwise would be to render the authority
given the Commissioner nugatory to the
detriment of the State.
"The pertinent provision of Commonwealth Act
No. 613, as amended, which gives authority to
the Commissioner of Immigration to order the
arrest of an alien temporary visitor preparatory to
his deportation for failure to put up new bonds
required for the stay, is not unconstitutional.
xxx xxx xxx
". . . Such a step is necessary to enable the
Commissioner to prepare the ground for his
deportation under Section 37[a]of
Commonwealth Act 613. A contrary interpretation
would render such power nugatory to the
detriment of the State." (Ng Hua To vs. Galang,
G.R. No. 10140, February 29, 1964, 10 SCRA
411).
"The requirement of probable cause, to be
determined by a Judge, does not extend to
deportation proceedings." (Morano vs. Vivo,
supra, citing Tiu Chun Hai vs. Commissioner,
infra). There need be no "truncated" recourse to
both judicial and administrative warrants in a
single deportation proceedings.
The foregoing does not deviate from the ruling in
Qua Chee Gan vs. Deportation Board (G. R. No.
10280, September 30, 1963, 9 SCRA 27 [1963])
reiterated in Vivo vs. Montesa, supra, that "under
the express terms of our Constitution (the 1935
Constitution), it is therefore even doubtful
whether the arrest of an individual may be
ordered by any authority other than a judge if the
purpose is merely to determine the existence of a
probable cause, leading to an administrative
investigation." For, as heretofore stated, probable
cause had already been shown to exist before the
warrants of arrest were issued.
What is essential is that there should be a specific
charge against the alien intended to be arrested
and deported, that a fair hearing be conducted
(Section 37[c]) with the assistance of counsel, if
desired, and that the charge be substantiated by
competent evidence. Thus, Section 69 of the
Revised Administrative Code explicitly provides:
LibLex
"Sec. 69. Deportation of subject of foreign power.
A subject of a foreign power residing in the
Philippines shall not be deported, expelled, or
excluded from said Islands or repatriated to his
own country by the President of the Philippines
except upon prior investigation, conducted by
said Executive or his authorized agent, of the
ground upon which such action is contemplated.
In such a case the person concerned shall be
informed of the charge or charges against him
and he shall be allowed not less than 3 days for
the preparation of his defense. He shall also have
the right to be heard by himself or counsel, to
produce witnesses in his own behalf, and to
cross-examine the opposing witnesses."
The denial by respondent Commissioner of
petitioners' release on bail, also challenged by
them, was in order because in deportation
proceedings, the right to bail is not a matter of
right but a matter of discretion on the part of the
Commissioner of Immigration and Deportation.
Thus, Section 37(e) of the Philippine Immigration
Act of 1940 provides that "any alien under arrest
in a deportation proceeding may be released
under bond or under such other conditions as
may be imposed by the Commissioner of
Immigration." The use of the word "may" in said
provision indicates that the grant of bail is merely
permissive and not mandatory on the part of the
Commissioner. The exercise of the power is
wholly discretionary (Ong Hee Sang vs.
Commissioner of Immigration, L-9700, February
28, 1962, 4 SCRA 442). "Neither the Constitution
nor Section 69 of the Revised Administrative
Code guarantees the right of aliens facing
deportation to provisional liberty on bail." (Tiu
Chun Hai, et al vs. Deportation Board, 104 Phil.
949 [1958]). As deportation proceedings do not
partake of the nature of a criminal action, the
constitutional guarantee to bail may not be
invoked by aliens in said proceedings (Ong Hee
Sang vs. Commissioner of Immigration, supra).
Every sovereign power has the inherent power to
exclude aliens from its territory upon such
grounds as it may deem proper for its self-
preservation or public interest (Lao Tan Bun vs.
Fabre, 81 Phil. 682 [1948]). The power to deport
aliens is an act of State, an act done by or under
the authority of the sovereign power (In re
McCulloch Dick, 38 Phil. 41[1918]). It is a police
measure against undesirable aliens whose
continued presence in the country is found to be
injurious to the public good and the domestic
tranquility of the people (Forbes vs. Chuoco Tiaco,
et al., 16 Phil. 534 [1910]). Particularly so in this
25 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
case where the State has expressly committed
itself to defend the right of children to assistance
and special protection from all forms of neglect,
abuse, cruelty, exploitation, and other conditions
prejudicial to their development (Article XV,
Section 3[2]). Respondent Commissioner of
Immigration and Deportation, in instituting
deportation proceedings against petitioners,
acted in the interests of the State.
WHEREFORE, the Petition is dismissed and the
Writ of Habeas Corpus is hereby denied.
SO ORDERED.
Yap, C.J., Paras, Padilla and Sarmiento, JJ., concur.
(Alvarez v. Court of First Instance of
Tayabas, G.R. No. 45358, January 29, 1937)
FIRST DIVISION
[G.R. No. 45358. January 29, 1937.]
NARCISO ALVAREZ, petitioner, vs. THE COURT
OF FIRST INSTANCE OF TAYABAS and THE ANTI-
USURY BOARD, respondents.
Godofredo Reyes for petitioner.
Adolfo N. Feliciano for respondent Anti-Usury
Board.
No appearance for other respondent.
SYLLABUS
1. CRIMINAL PROCEDURE; SEARCH
WARRANT; DEFINITION. 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).
2. CONSTITUTIONAL LAW; SEARCHES AND
SEIZURES. 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
Railway Commission, 32 Fed., 241; Interstate
Commerce Commn. vs. Brimson, 38 Law. ed.,
1047; Boyd vs. U.S., 29 Law. ed., 746; Carroll vs.
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 of citizens, for the enforcement of no
statute is of sufficient importance to justify
indifference to the basic principles of government
(People vs. Elias, 147 N. E., 472).
3. ID.; ID. As the protection of the citizen and
the maintenance of his constitutional rights is one
of the highest duties and privileges of the court,
these constitutional guaranties should be given a
liberal construction or a strict construction in
favor of the individual, to prevent stealthy
encroachment upon, or gradual depreciation of,
the rights secured by them (State vs. Custer
County, 198 Pac., 362; State vs. McDaniel, 231
Pac., 965; 237 Pac., 373). Since the proceeding is
a drastic one, it is the general rule that statutes
authorizing searches and seizures or search
warrants must be strictly construed (Rose vs. St.
Clair, 28 Fed. [2d], 189; Leonard vs. U. S., 6 Fed.
[2d], 353; Perry vs. U. S., 14 Fed. [2d], 88; Cofer
vs. State, 118 So., 613).
4. ID.; ID.; OATH. 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 as an 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; Pumphrey 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., 839; 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 County 20th Jud. Dis. Ct., 244 Pac. 280;
State vs. Quartier, 236 Pac., 746).
5. ID.; UNREASONABLE SEARCH AND
SEIZURE. Unreasonable searches and seizures
are a menace against which the constitutional
guaranties 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 seizures are unreasonable while
lawful ones are reasonable. What constitute 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 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 (Go-
Bart Importing Co., vs. U.S., 75 Law. ed., 374;
Peru vs. U. S., 4 Fed. [2d], 881; U.S., vs. Vatune,
229 Fed., 497; Agnello 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).
6. ID.; ID.; NECESSITY OF TAKING THE
AFFIDAVITS OF THE WITNESSES. Neither
the Constitution nor General Orders, No 58
provides it of imperative necessity to take the
depositions 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 else 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 was the duty of
the judge to require the affidavit of one or more
witnesses for the purpose of determining the
26 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
existence of probable cause to warrant the
issuance of the search warrant. When the
affidavit of the applicant or complainant contains
sufficient if the judge is satisfied that there exists
probable cause; when the applicants knowledge
of the facts is mere hearsay, the affidavit of one
or more witnesses having personal knowledge of
the facts 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.
7. CRIMINAL PROCEDURE; SEARCH
WARRANT; SERVICE AT NIGHT. Section 101
of General Orders, No. 58 authorizes that the
search be made at night when it is positively
asserted in the affidavit that the property is on
the person or in the place ordered to be
searched. As we have declared the affidavit
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.
8. ID.; ID.; DESCRIPTION OF ARTICLES.
Section 1, paragraph (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 exists 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 (Munch vs. 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. A., 415); but where, by
the nature of the goods to be seized, their
description must be rather general, it is not
required that a technical description be given, as
this would mean that no warrant could issue
(People vs. Rubio, 57 Phil., 384; People vs. Kahn,
supra).
9. ID.; ID.; ID. 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
articles so described, it is clear that no other
more adequate and detailed description could be
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 in
question, which he did.
10. CONSTITUTIONAL LAW; SEARCHES AND
SEIZURES; SEIZURE OF BOOKS AND
DOCUMENTS TO BE USED AS EVIDENCE IN
CRIMINAL PROCEEDINGS AGAINST THE
OWNER OR POSSESSOR THEREOF. 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., 616; Carroll 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 of the Anti-Usury Law,
which it is attempted to institute against him, we
hold that the search warrant issued is illegal and
that the documents should be returned to him.
11. ID.; ID.; WAIVER OF THE
CONSTITUTIONAL GUARANTEES. 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 referred not to the search warrant
and the incidents thereof but to the institution of
criminal proceedings for 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.
12. CIVIL PROCEDURE; MANDAMUS; WHEN
IT LIES. 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 not in this case be a plain,
speedy and adequate remedy for the petitioner
because a long time would have to elapse before
he recovers possession of the documents and
before the rights, for 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).
DECISION
IMPERIAL, J p:
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-
27 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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 end 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 any 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
check 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 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 them in the clerk's office,
and that the officials of the Anti-Usury Board be
punished for contempt o 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 presented in support thereof, or to
present the report of the proceedings taken by
him; and prayed that said agent be directed to
file 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 issued was illegal
and that it had not 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 cause, 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
28 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
by Nos. 5, 10, 16, 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 Railway
Commission, 32 Fed., 241; Interstate Commerce
Commn. vs. Brimson, 38 Law. ed., 1047; Boyd vs.
U. S., 29 Law. ed., 746; Carroll vs. 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 of citizens,
for the enforcement of no statute is of sufficient
importance to justify indifference to the basic
principles of government (People vs. Elias, 147 N.
E., 472).
II. As the protection of the citizen and the
maintenance of his constitutional rights is one of
the highest duties and privileges of the court,
these constitutional guaranties should be given a
liberal construction or a strict construction in
favor of the individual, to prevent stealthy
encroachment upon, or gradual depreciation of,
the rights secured by them (State vs. Custer
County, 198 Pac., 362; State vs. McDaniel, 231
Pac., 965; 237 Pac., 373). Since the proceeding is
a drastic one, it is the general rule that statutes
authorizing searches and seizures or search
warrants must be strictly construed (Rose vs. St.
Clair, 28 Fed. [2d], 189; Leonard vs. U. S., 6 Fed.
[2d], 353; Perry vs. U. S., 14 Fed. [2d], 88; Cofer
vs. State, 118 So., 613).
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 reasons 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 stated 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 to 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
and 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 as an
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;
Pumphrey 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., 839; 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
County 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 seizures.
Unreasonable searches and seizures are a
menace against which the constitutional
guaranties 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 seizures 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 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 (Go-
29 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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; Agnello 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 necessarily 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 depositions 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 or complainant
contains sufficient facts within his personal and
direct knowledge, it is sufficient if the judge is
satisfied that there exists 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 facts 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 affidavit that the property is on the person or
in the place ordered to be searched. As we have
declared the affidavit 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, paragraph 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 exists 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 (Munch vs. 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., 415); but where, by
the nature of the goods to be seized, their
description must be rather general, it is not
required that a technical description be given, 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
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. 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 Anti-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
30 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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., 616; Carroll 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 of the Anti-Usury Law,
which it is attempted to institute 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 referred not to the search warrant
and the incidents thereof but to the institution of
criminal proceedings for 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 not in this case be a plain,
speedy and adequate remedy for the petitioner
because a long time would have to elapse 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 necessary to determine the existence or
non-existence 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 Anti-
Usury 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 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 where, by the nature of the
articles 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;
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 mandamus filed 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
retention 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.
(Mata v. Bayona, G.R. No. 50720, March 26,
1984)
SECOND DIVISION
[G.R. No. 50720. March 26, 1984.]
SORIANO MATA, petitioner, vs. HON. JOSEPHINE
K. BAYONA, in her capacity as Presiding Judge of
the City Court of Ormoc, BERNARDO GOLES and
REYNALDO MAYOTE, respondents.
Valeriano R. Ocubillo for petitioner.
The Solicitor General for respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS;
RIGHT AGAINST UNLAWFUL SEARCH AND
SEIZURE; REQUISITES FOR ISSUANCE OF
SEARCH WARRANT. Under the Constitution
"no search warrant shall issue but upon probable
cause to be determined by the Judge or such
other responsible officer as may be authorized by
31 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
law after examination under oath or affirmation of
the complainant and the witnesses he may
produce". More emphatic and detailed is the
implementing rule of the constitutional injunction,
Section 4 of Rule 126 which provides that the
judge must before issuing the warrant personally
examine on oath 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.
2. ID.; ID.; ID.; ID.; INSUFFICIENCY OF
AFFIDAVITS OF COMPLAINANT AND HIS
WITNESSES IN THE CASE AT BAR. Before
issuing a search warrant, the examining Judge
has to take depositions in writing of the
complainant and the witnesses he may produce
and to 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, and to
hold liable for perjury the person giving it if it will
be found later that his declarations are false.
Mere affidavits of the complainant and his
witnesses are thus not sufficient.
3. ID.; ID.; ID.; ID.; NO "DEPOSITION IN
WRITING" ATTACHED TO RECORDS OF CASE
IN CASE AT BAR. The judge's insistence that
she examined the complainants under oath has
become dubious by petitioner's claim that at the
particular time when he examined all the relevant
papers connected with the issuance of the
questioned search warrant, after he demanded
the same from the lower court since they were
not attached to the records, he did not find any
certification at the back of the joint affidavit of
the complainants. Before he filed his motion to
quash the search warrant and for the return of
the articles seized, he was furnished, upon his
request, certified true copies of the said affidavits
by the Clerk of Court but which certified true
copies do not bear any certification at the back.
Petitioner likewise claims that his xerox copy of
the said joint affidavit obtained at the outset of
this case does not show also the certification of
respondent judge. This doubt becomes more
confirmed by respondent Judge's own admission,
while insisting that she did examine thoroughly
the applicants, that "she did not take the
deposition of Mayote and Goles because to have
done so would be to hold a judicial proceeding
which will be open and public", such that,
according to her, the persons subject of the
intended raid will just disappear and move his
illegal operations somewhere else. Could it be
that the certification was made belatedly to cure
the defect of the warrant? Be that as it may,
there was no "deposition in writing" attached to
the records of the case in palpable disregard of
the statutory prohibition heretofore quoted.
4. ID.; ID.; ID.; ID.; DEPOSITIONS, HOW
TAKEN. The searching questions propounded
to the applicants of the search warrant and his
witnesses must depend to a large extent upon
the discretion of the Judge just as long as the
answers establish a reasonable ground to believe
the commission of a specific offense and that the
applicant is one authorized by law, and said
answers particularly describe with certainty the
place to be searched and the persons or things to
be seized. The examination or investigation which
must be under oath may not be in public. It may
even be held in the secrecy of his chambers. Far
more important is that the examination or
investigation is not merely routinary but one that
is thorough and elicit the required information. To
repeat, it must be under oath and must be in
writing.
5. ID.; ID.; ID.; ID.; MUST BE STRICTLY
COMPLIED WITH; CASE AT BAR. Nothing
can justify the issuance of the search warrant but
the fulfillment of the legal requisites. Thus, in
issuing a search warrant the Judge must strictly
comply with the requirements of the Constitution
and the statutory provisions. In the case at bar,
the search warrant is tainted with illegality by the
failure of the Judge to conform with essential
requisites of taking the depositions in writing and
attaching them to record, rendering the search
warrant invalid.
6. ID.; ID.; ID.; ALTHOUGH ILLEGAL, THINGS
SEIZED CANNOT BE RETURNED; CASE AT
BAR. While the search warrant is illegal, the
return of the things seized cannot be ordered. In
Castro vs. Pabalan (70 SCRA 478), it was held
that the illegality of the search warrant does not
call for the return of the things seized, the
possession of which is prohibited.
DECISION
DE CASTRO, J p:
The validity of the search warrant issued by
respondent Judge (not reappointed) is challenged
by petitioner for its alleged failure to comply with
the requisites of the Constitution and the Rules of
Court.
Specifically, the contention is that the search
warrant issued by respondent Judge was based
merely on the application for search warrant and
a joint affidavit of private respondents which were
wrongfully it is alleged subscribed, and sworn to
before the Clerk of Court of respondent Judge.
Furthermore, there was allegedly a failure on the
part of respondent Judge to attach the necessary
papers pertinent to the issuance of the search
warrant to the records of Criminal Case No. 4298-
CC wherein petitioner is accused under PD 810,
as amended by PD 1306, the information against
him alleging that Soriano Mata offered, took and
arranged bets on the Jai Alai game by "selling
illegal tickets known as 'Masiao tickets' without
any authority from the Philippine Jai Alai &
Amusement Corporation or from the government
authorities concerned." 1
Petitioner claims that during the hearing of the
case, he discovered that nowhere from the
records of the said case could be found the
search warrant and other pertinent papers
connected to the issuance of the same, so that he
had to inquire from the City Fiscal its
whereabouts, and to which inquiry respondent
Judge replied, "it is with the court". The Judge
then handed the records to the Fiscal who
attached them to the records. prcd
This led petitioner to file a motion to quash and
annul the search warrant and for the return of the
articles seized, citing and invoking, among
others, Section 4 of Rule 126 of the Revised Rules
32 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
of Court. The motion was denied by respondent
Judge on March 1, 1979, stating that the court
has made a thorough investigation and
examination under oath of Bernardo U. Goles and
Reynaldo T. Mayote, members of the Intelligence
Section of 352nd PC Co./Police District II INP; that
in fact the court made a certification to that
effect; and that the fact that documents relating
to the search warrant were not attached
immediately to the record of the criminal case is
of no moment, considering that the rule does not
specify when these documents are to be attached
to the records. 2 Petitioner's motion for
reconsideration of the aforesaid order having
been denied, he came to this Court, with the
instant petition, praying, among others, that this
Court declare the search warrant to be invalid
and all the articles confiscated under such
warrant as inadmissible as evidence in the case,
or in any proceedings on the matter.
We hold that the search warrant is tainted with
illegality for being violative of the Constitution
and the Rules of Court.
Under the Constitution "no search warrant shall
issue but upon probable cause to be determined
by the Judge or 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". More emphatic
and detailed is the implementing rule of the
constitutional injunction, Section 4 of Rule 126
which provides that the judge must before issuing
the warrant personally examine on oath 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.
Mere affidavits of the complainant and his
witnesses are thus not sufficient. The examining
Judge has to take depositions in writing of the
complainant and the witnesses he may produce
and to attach them to the record. Such written
deposition is necessary in order that the Judge
may be able to properly determine the existence
or non-existence of the probable cause, to hold
liable for perjury the person giving it if it will be
found later that his declarations are false.
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.
cdll
The judge's insistence that she examined the
complainants under oath has become dubious by
petitioner's claim that at the particular time when
he examined all the relevant papers connected
with the issuance of the questioned search
warrant, after he demanded the same from the
lower court since they were not attached to the
records, he did not find any certification at the
back of the joint affidavit of the complainants. As
stated earlier, before he filed his motion to quash
the search warrant and for the return of the
articles seized, he was furnished, upon his
request, certified true copies of the said affidavits
by the Clerk of Court but which certified true
copies do not bear any certification at the back.
Petitioner likewise claims that his xerox copy of
the said joint affidavit obtained at the outset of
this case does not show also the certification of
respondent judge. This doubt becomes more
confirmed by respondent Judge's own admission,
while insisting that she did examine thoroughly
the applicants, that "she did not take the
deposition of Mayote and Goles because to have
done so would be to hold a judicial proceeding
which will be open and public", 3 such that,
according to her, the persons subject of the
intended raid will just disappear and move his
illegal operations somewhere else.
Could it be that the certification was made
belatedly to cure the defect of the warrant? Be
that as it may, there was no "deposition in
writing" attached to the records of the case in
palpable disregard of the statutory prohibition
heretofore quoted.
Respondent Judge impresses this Court that the
urgency to stop the illegal gambling that lures
every man, woman and child, and even the
lowliest laborer who could hardly make both ends
meet justifies her action. She claims that in order
to abate the proliferation of this illegal "masiao"
lottery, she thought it more prudent not to
conduct the taking of deposition which is done
usually and publicly in the court room.
Two points must be made clear. The term
"depositions" is sometimes used in a broad sense
to describe any written statement verified by
oath; but in its more technical and appropriate
sense the meaning of the word is limited to
written testimony of a witness given in the course
of a judicial proceeding in advance of the trial or
hearing upon oral examination. 4 A deposition is
the testimony of a witness, put or taken in
writing, under oath or affirmation before a
commissioner, examiner or other judicial officer,
in answer to interlocutory and cross interlocutory,
and usually subscribed by the witnesses. 5 The
searching questions propounded to the applicants
of the search warrant and his witnesses must
depend to a large extent upon the discretion of
the Judge just as long as the answers establish a
reasonable ground to believe the commission of a
specific offense and that the applicant is one
authorized by law, and said answers particularly
describe with certainty the place to be searched
and the persons or things to be seized. The
examination or investigation which must be
under oath may not be in public. It may even be
held in the secrecy of his chambers. Far more
important is that the examination or investigation
is not merely routinary but one that is thorough
and elicit the required information. To repeat, it
must be under oath and must be in writing.
LexLib
The other point is that nothing can justify the
issuance of the search warrant but the fulfillment
of the legal requisites. It might be well to point
out what has been said in Asian Surety &
Insurance Co., Inc. vs. Herrera:
"It has been said that of all the rights of a citizen,
few are of greater importance or more essential
33 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
to his peace and happiness than the right of
personal security, and that involves the
exemption of his private affairs, books, and
papers from inspection and scrutiny of others.
While the power to search and seize is necessary
to the public welfare, still it must be exercised
and the law enforced without transgressing the
constitutional rights of the citizens, for the
enforcement of no statute is of sufficient
importance to justify indifference to the basic
principles of government." 6
Thus, in issuing a search warrant the Judge must
strictly comply with the requirements of the
Constitution and the statutory provisions. A
liberal construction should be given in favor of
the individual to prevent stealthy encroachment
upon, or gradual depreciation of the rights
secured by the Constitution. 7 No presumption of
regularity are to be invoked in aid of the process
when an officer undertakes to justify it. 8
While We hold that the search warrant is illegal,
the return of the things seized cannot be ordered.
In Castro vs. Pabalan, 9 it was held that the
illegality of the search warrant does not call for
the return of the things seized, the possession of
which is prohibited.
WHEREFORE, the writ of certiorari is granted and
the order of March 1, 1979 denying the motion to
annul the search warrant as well as the order of
March 21, 1979 denying the motion for
reconsideration are hereby reversed, the search
warrant, being declared herein as illegal.
Notwithstanding such illegality, the things seized
under such warrant, such as stock of "masiao"
tickets; "masiao" issue tickets; bet money; control
pad or "masiao" numbers; stamping pad with
rubber stamp marked Ormoc City Jai-Alai," cannot
be returned as sought by petitioner. No costs.
SO ORDERED.
Makasiar, Concepcion, Jr. and Guerrero, JJ .,
concur.
Aquino and Escolin, JJ ., concur in the result.
Abad Santos, J ., took no part.
(People v. Del Rosario y Lopez, G.R. No.
109633, July 20, 1994)
THIRD DIVISION
[G.R. No. 109633. July 20, 1994.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. NORMANDO DEL ROSARIO Y
LOPEZ, accused-appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; IN CASE AT
BAR; FAILURE TO PRESENT POSEUR-BUYER
FATAL TO PROSECUTION'S CASE. Foremost
among the inadequacies of the prosecution is its
failure to call to the witness stand P01 Verando
Luna, the alleged poseur-buyer. There is, thus, a
total absence of evidence to establish the
purported sale of shabu by accused-appellant to
Venerando Luna, the supposed poseur-buyer. The
omission to present the poseur-buyer casts
serious doubts that an illegal sale of a dangerous
drug actually took place. The trial court gave
much weight to the testimonies of the police
members of the buy-bust operation. However, the
prosecution did not present as witness the
supposed poseur-buyer. Such omission casts
serious doubt on appellant's guilt because
without the testimony of the poseur-buyer, there
is not convincing evidence to show that appellant
sold marijuana. The testimonies of the rest of the
buy-bust operation are hearsay in view of the fact
that the poseur-buyer was never presented at the
trial. There was even no testimony that when the
accused-appellant handed the stuff to the poseur-
buyer that the latter in turn handed the marked
money. The failure of the prosecution to present
the alleged buyer of the marijuana was a fatal
flaw in the case against the accused.(People vs.
Fulgarillas, 212 SCRA 76, 80 [1992]) The
testimony of prosecution witness P03 Rogelio
Francisco that Veneracion Luna, the alleged
poseur-buyer, bought shabu from accused-
appellant was derived solely from what Luna
supposedly told him (pp. 19-20, tsn., December
11, 1991) and, therefore, is patently hearsay
evidence, without any evidentiary weight
whatsoever. Likewise, the statements of
prosecution witnesses Policemen Reynaldo de la
Cruz, Raymundo Untiveros, and Eduardo Novera,
Jr. as to the alleged sale of shabu are hearsay,
without weight, as all of them were not present
during the alleged sale.
2. ID.; ID.; CREDIBILITY OF WITNESSES; IN
CASE AT BAR, PROSECUTION'S VERSION OF
"BUY-BUST" OPERATION HIGHLY
INCREDIBLE. According to the version of the
prosecution, during the alleged buy-bust
operation, accused-appellant handed over to
Veneracion Luna, the alleged poseur-buyer, a
quantity of shabu, and Luna in turn paid accused-
appellant a marked 100 bill and then returned to
the police station and informed the raiding team
that he had already bought the shabu from
accused-appellant. Thereupon, the raiding team
proceeded to the house of accused-appellant to
implement the search warrant. The version of the
prosecution is highly incredible. The record is
devoid of any reason why the police officers did
not make any attempt to arrest accused-
appellant at the time he allegedly sold the shabu
to Veneracion Luna who was accompanied by
another police officer. That was the opportune
moment to arrest accused-appellant. The version
foisted by the prosecution upon this Court is
contrary to human experience in the ordinary
course of human conduct. The usual procedure in
a buy-bust operation is for the police officers to
arrest the pusher of drugs at the very moment he
hands over the dangerous drug to the poseur-
buyer. That is the every reason why such a police
operation is called a "buy-bust" operation. The
police poseur-buyer "buys" dangerous drugs from
the pusher and "bust" (arrests) him the moment
the pusher hands over the drug to the police
officer.
3. ID.; ID.; WEIGHT AND SUFFICIENCY OF
EVIDENCE; IN CASE AT BAR, PRESUMPTION
OF INNOCENCE IN FAVOR OF ACCUSED NOT
OVERTHROWN. The manner the police
officers conducted the subsequent and much-
delayed search is highly irregular. Upon barging
into the residence of accused-appellant, the
police officers found him lying down and they
34 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
immediately arrested and detained him in the
living room while they searched the other parts of
the house. Although they fetched two persons to
witness the search, the witnesses were called in
only after the policemen had already entered
accused-appellant's residence (pp. 22-23, tsn,
December 11, 1991), and, therefore, the
policemen had more than ample time to plant the
shabu. Corollary to the constitutional precept
that, in all criminal prosecutions, the accused
shall be presumed innocent until the contrary is
proved (Sec. 14(2), Article III, Constitution of the
Republic of the Philippines) is the rule that in
order to convict an accused the circumstances of
the case must exclude all and each and every
hypothesis consistent with his innocence (People
vs. Tanchoco; 76 Phil. 463 [1946]; People vs.
Constante, 12 SCRA 653 [1964]; People vs. Jara,
144 SCRA 516 [1986]). The facts of the case do
not rule out the hypothesis that accused-
appellant is innocent.
4. ID.; CRIMINAL PROCEDURE; JUDGMENT;
ACCUSED CANNOT BE CONVICTED OF CRIME
NOT CHARGED IN THE INFORMATION.
Accused-appellant cannot be convicted of
possession of the shabu contained in a canister
and allegedly seized at his house, for the charge
against him was for selling shabu with the
information alleging that the "accused, without
legal authority did Hydrocholoride." Sale is totally
different from possession. Article 1458 of the Civil
Code defines sale as a contract whereby "one of
the contracting parties obligates himself to
transfer the ownership of and to deliver a
determinate thing, and the other to pay therefor
a price certain in money or its equivalent", while
"possession is the holding of a thing or the
enjoyment of a right" as defined by Article 523 of
the Civil Code. Accused-appellant cannot be
convicted of a crime which is not charged in the
information for to do so would deny him the due
process of law (People vs. Despavellador, 2 SCRA
205 [1961]; People vs. Mori, 55 SCRA 382
[1974]).
5. CONSTITUTIONAL LAW; BILL OF RIGHTS;
RIGHT AGAINST UNREASONABLE SEARCHES
AND SEIZURES; EXCLUSION IN EVIDENCE OF
ILLEGALLY SEIZED ARTICLES. The search
warrant implemented by the raiding party
authorized only the search and seizure of ".. the
described quantity of Methamphetamine
Hydrochloride commonly known as shabu and its
paraphernalia" (Exh. O, p. 50, original record).
Thus, the raiding party was authorized to seize
only shabu and paraphernalia for the use thereof
and no other. A search warrant is not a sweeping
authority empowering a raiding party to
undertake a fishing expedition to seize and
confiscate any and all kinds of evidence or
articles relating to a crime. The Constitution itself
(Section 2, Article III) and the Rules of Court
(Section 3, Rule 126) specifically mandate that
the search warrant must particularly describe the
things to be seized. Thus, the search warrant was
no authority for the police officers to seize the
firearm which was not mentioned, much less
described with particularly, in the search warrant.
Neither may it be maintained that the gun was
seized in the course of an arrest, for as earlier
observed, accused-appellant's arrest was far from
regular and legal. Said firearm, having been
illegally seized, the same is not admissible in
evidence (Stonehill vs. Diokno, 20 SCRA 383
[1967]). The Constitution expressly ordains the
exclusion in evidence of illegally seized articles.
Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any
purpose in any proceeding.(Section 3 [2], Article
III, Constitution of the Republic of the
Philippines).With the exclusion in evidence of the
illegally seized firearm, there is, therefore, a total
absence of evidence to support the charge of
illegal possession of firearm, against accused-
appellant. The same way may be said of the
charge of illegal possession of ammunition.
DECISION
MELO, J p:
Normando del Rosario was charged before Branch
17 of the Regional Trial Court of the Fourth
Judicial Region stationed in Cavite City with Illegal
Possession of Firearm and Ammunitions in
Criminal Case No. 236-91 and Illegal Sale of
Regulated Drugs in Criminal Case No. 237-91,
under two informations reading, respectively, as
follows:
Criminal Case No. 236-91
That on or about September 4, 1991, in the City
of Cavite, Republic of the Philippines and within
the jurisdiction of this Honorable Court, the
above-named accused, without legal authority,
did, then and there, willfully, unlawfully,
feloniously and knowingly have in his possession
and control a homemade (paltik) caliber 22
revolver with three (3) live ammunition. cdrep
Contrary to law.
Criminal Case No. 237-91
That on or about September 4, 1991, in the City
of Cavite, Republic of the Philippines and within
the jurisdiction of this Honorable Court, the
above-named accused, without legal authority,
did, then and there, willfully, unlawfully,
feloniously and knowingly sell to a poseur buyer
and aluminum foil containing Methamphetamine
Hydrochloride also known as "Shabu", a regulated
drug.
Contrary to law.
(pp. 20-21, Rollo.)
Upon arraignment, accused-appellant pleaded
not guilty to both charges, and after joint trial of
the two cases, the court a quo rendered a
decision, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court
finds the accused Normando del Rosario y Lopez
guilty beyond reasonable doubt in the above-
entitled cases and he is hereby sentenced to
undergo imprisonment: in Crim. Case No. 236-91
for Violation of P.D. 1866 of Seventeen (17) years,
Four (4) months and One (1) day of reclusion
temporal, as minimum to Twenty (20) years of
reclusion temporal, as maximum and in Crim.
Case No. 237-91 for a Violation of Section 15,
Article III of Republic Act 6425, as amended of life
imprisonment and to pay a fine of P30,000.00,
without subsidiary imprisonment in case of
insolvency and to pay the costs in both cases.
35 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
The shabu, the One Hundred Peso bill and other
paraphernalia are hereby ordered confiscated in
favor of the government.
(pp. 28-29, Rollo.)
From said decision, the instant appeal has been
interposed.
The prosecution's version of the case, as set forth
in appellee's brief, is as follows:
Upon application of SPO3 Raymundo Untiveros of
the Philippine National Police (PNP) of Cavite City,
Regional Trial Court Judge Arturo de Guia issued
in the morning of September 4, 1991 a search
warrant (Exh. T, p. 50, Rec. Crim. Case No. 237-
91) authorizing the search and seizure of an
"undetermined quantity of Methamphetamine
Hydrocholoride commonly known as shabu and
its paraphernalias" in the premises of appellant's
house located at 828 R. Basa St., San Roque,
Cavite City. However, the search warrant was not
implemented immediately due to the lack of
police personnel to form the raiding team (pp. 4,
7, tsn., Feb. 4, 1992). cdrep
At about 9 o'clock in the evening of that day, a
raiding team was finally organized. SPO3
Untiveros headed the raiding team with PO3
Rogelio Francisco, SPO1 Eduardo Novero, SPO3
Reynaldo de la Cruz, PO1 Carlito Barbuco, PO3
Onrubio and SPO2 Villegas as members (pp. 5,
10, tsn., Feb. 4, 1992; p. 7, tsn., Dec. 11, 1991).
In the final briefing of the raiding team at the
police station, it was agreed upon that PO1
Venerando Luna will buy shabu from appellant
and after his return from appellant's house, the
raiding team will implement the search warrant
(p. 10, tsn., Feb. 4, 1992; p. 17-18, tsn., Dec. 11,
1991). A marked money consisting of a P100 bill
bearing serial no. PQ 329406 (Exh. P, p. 51, Rec.)
was given by the Station Commander to PO1
Luna and entered in the police logbook (p. 12,
Feb. 4, 1992). PO1 Luna with a companion
proceeded to appellant's house to implement the
search warrant. Barangay Capt. Maigue, Norma
del Rosario and appellant witnessed the search at
appellant's house (p. 10, tsn., Dec. 11, 1991).
SPO3 de la Cruz and PO3 Francisco found a black
canister containing shabu, an aluminum foil,
plastik .22 caliber (Exh. O) atop the TV set, three
used ammunition in a cup and three wallets
(Exhs. Q, R, S), one containing the marked money
(Exh. P; pp. 11-12, tsn., Dec. 11, 1991). SPO1
Novero found inside a show box aluminum foils,
napkins and a burner (p. 9, tsn., March 11, 1992).
SPO3 de la Cruz turned over the wallet containing
the marked money to PO3 Onrubio (p. 8, tsn., Jan.
7, 1992). The seized items were photographed
thereat by Fred Agana and then turned over to
PO3 Onrubio (pp. 8, 32, tsn., Jan. 7, 1992). SPO3
Untiveros issued receipts (Exhs. V, V-1, pp. 53-54,
Rc.) for the seized items with Barangay Capt.
Maigue and appellant's sister Norma as signing
witnesses. He also made a return (Exh. U, p. 52,
Rec.) of the seized items to the court (pp. 11-155,
tsn., Feb. 18, 1992).
At police station, the seized items were taped and
initialed by SPO3 de la Cruz (p. 33, tsn., Jan. 7,
1992). The next day, SPO4 Pilapil, through PO1
Barbuco, forwarded to NBI Forensic Chemist Mary
Ann Aranas for laboratory analysis the aluminum
foil (Exhs. A, J, pp. 37, 46, Rec.) containing
suspected shabu bought by PO1 Luna from
appellant in the buy-bus operation as well as the
aluminum foils (Exhs. G, K, pp. 43, 47, Rec.)
containing suspected marijuana which were
confiscated by virtue of the search warrant.
The findings of NBI Forensic Chemist Aranas
disclosed that all the specimen submitted to her
for laboratory analysis by SPO1 Pilapil, thru PO1
Barbuco, gave positive results for
Methamphetamine Hydrocholoride (pp. 2-9, tsn.,
Dec. 3, 1991; Exh. B, C, H, I, pp. 38, 39, 44, 45,
Rec.).
(pp. 102-105, Rollo.)
Carefully evaluation the evidence on record, we
believe that the prosecution has failed to prove
the guilt of accused-appellant. Much is to be
desired in the manner the police authorities
effected the arrest of accused-appellant and the
same observation may be made with regard to
the way the prosecution conducted its case. Cdpr
Foremost among the inadequacies of the
prosecution is its failure to call to the witness
stand P01 Verando Luna, the alleged poseur-
buyer. There is, thus, a total absence of evidence
to establish the purported sale of shabu by
accused-appellant to Venerando Luna, the
supposed poseur-buyer. The omission to present
the poseur-buyer casts serious doubts that an
illegal sale of a dangerous drug actually took
place.
The trial court gave much weight to the
testimonies of the police members of the buy-
bust operation. However, the prosecution did not
present as witness the supposed poseur-buyer.
Such omission casts serious doubt on appellant's
guilt because without the testimony of the
poseur-buyer, there is not convincing evidence to
show that appellant sold marijuana. The
testimonies of the rest of the buy-bust operation
are hearsay in view of the fact that the poseur-
buyer was never presented at the trial. There was
even no testimony that when the accused-
appellant handed the stuff to the poseur-buyer
that the latter in turn handed the marked money.
The failure of the prosecution to present the
alleged buyer of the marijuana was a fatal flaw in
the case against the accused.
(People vs. Fulgarillas, 212 SCRA 76, 80 [1992])
The testimony of prosecution witness P03 Rogelio
Francisco that Veneracion Luna, the alleged
poseur-buyer, bought shabu from accused-
appellant was derived solely from what Luna
supposedly told him (pp. 19-20, tsn., December
11, 1991) and, therefore, is patently hearsay
evidence, without any evidentiary weight
whatsoever. Likewise, the statements of
prosecution witnesses Policemen Reynaldo de la
Cruz, Raymundo Untiveros, and Eduardo Novera,
Jr. as to the alleged sale of shabu are hearsay,
without weight, as all of them were not present
during the alleged sale.
36 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
According to the version of the prosecution,
during the alleged buy-bust operation, accused-
appellant handed over to Veneracion Luna, the
alleged poseur-buyer, a quantity of shabu, and
Luna in turn paid accused-appellant a marked
100 bill and then returned to the police station
and informed the raiding team that he had
already bought the shabu from accused-
appellant. Thereupon, the raiding team
proceeded to the house of accused-appellant to
implement the search warrant. The version of the
prosecution is highly incredible. The record is
devoid of any reason why the police officers did
not make any attempt to arrest accused-
appellant at the time he allegedly sold the shabu
to Veneracion Luna who was accompanied by
another police officer. That was the opportune
moment to arrest accused-appellant. The version
foisted by the prosecution upon this Court is
contrary to human experience in the ordinary
course of human conduct. The usual procedure in
a buy-bust operation is for the police officers to
arrest the pusher of drugs at the very moment he
hands over the dangerous drug to the poseur-
buyer. That is the every reason why such a police
operation is called a "buy-bust" operation. The
police poseur-buyer "buys" dangerous drugs from
the pusher and "bust" (arrests) him the moment
the pusher hands over the drug to the police
officer.
We thus entertain serious doubts that the shabu
contained in a small canister was actually seized
or confiscated at the residence of accused-
appellant. in consequence, the manner the police
officers conducted the subsequent and much-
delayed search is highly irregular. Upon barging
into the residence of accused-appellant, the
police officers found him lying down and they
immediately arrested and detained him in the
living room while they searched the other parts of
the house. Although they fetched two persons to
witness the search, the witnesses were called in
only after the policemen had already entered
accused-appellant's residence (pp. 22-23, tsn,
December 11, 1991), and, therefore, the
policemen had more than ample time to plant the
shabu. Corollary to the constitutional precept
that, in all criminal prosecutions, the accused
shall be presumed innocent until the contrary is
proved (Sec. 14(2), Article III, Constitution of the
Republic of the Philippines) is the rule that in
order to convict an accused the circumstances of
the case must exclude all and each and every
hypothesis consistent with his innocence (People
vs. Tanchoco; 76 Phil. 463 [1946]; People vs.
Constante, 12 SCRA 653 [1964]; People vs. Jara,
144 SCRA 516 [1986]). The facts of the case do
not rule out the hypothesis that accused-
appellant is innocent.
At any rate, accused-appellant cannot be
convicted of possession of the shabu contained in
a canister and allegedly seized at his house, for
the charge against him was for selling shabu with
the information alleging that the "accused,
without legal authority did . . . sell to a poseur
buyer an aluminum foil containing
Methamphetamine Hydrocholoride . . .". Sale is
totally different from possession. Article 1458 of
the Civil Code defines sale as a contract whereby
"one of the contracting parties obligates himself
to transfer the ownership of and to deliver a
determinate thing, and the other to pay therefor
a price certain in money or its equivalent", while
"possession is the holding of a thing or the
enjoyment of a right" as defined by Article 523 of
the Civil Code. Accused-appellant cannot be
convicted of a crime which is not charged in the
information for to do so would deny him the due
process of law (People vs. Despavellador, 2 SCRA
205 [1961]; People vs. Mori, 55 SCRA 382
[1974]). LLpr
Neither can accused-appellant be convicted of
illegal possession of firearm and ammunition. The
search warrant implemented by the raiding party
authorized only the search and seizure of ". . . the
described quantity of Methamphetamine
Hydrochloride commonly known as shabu and its
paraphernalia" (Exh. O, p. 50, original record).
Thus, the raiding party was authorized to seize
only shabu and paraphernalia for the use thereof
and no other. A search warrant is not a sweeping
authority empowering a raiding party to
undertake a fishing expedition to seize and
confiscate any and all kinds of evidence or
articles relating to a crime. The Constitution itself
(Section 2, Article III) and the Rules of Court
(Section 3, Rule 126) specifically mandate that
the search warrant must particularly describe the
things to be seized. Thus, the search warrant was
no authority for the police officers to seize the
firearm which was not mentioned, much less
described with particularly, in the search warrant.
Neither may it be maintained that the gun was
seized in the course of an arrest, for as earlier
observed, accused-appellant's arrest was far from
regular and legal. Said firearm, having been
illegally seized, the same is not admissible in
evidence (Stonehill vs. Diokno, 20 SCRA 383
[1967]). The Constitution expressly ordains the
exclusion in evidence of illegally seized articles.
Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any
purpose in any proceeding.
(Section 3 [2], Article III, Constitution of the
Republic of the Philippines).
With the exclusion in evidence of the illegally
seized firearm, there is, therefore, a total absence
of evidence to support the charge of illegal
possession of firearm, against accused-appellant.
Cdpr
The same way may be said of the charge of
illegal possession of ammunition.
WHEREFORE, the decision appealed from is
hereby REVERSED and accused-appellant is
hereby ACQUITTED in Criminal Case No. 236-91
and Criminal Case No. 237-91.
The immediate release of accused-appellant is
hereby ordered unless there exists of pending
valid cause against him. Cdpr
The shabu, the marked P100 bill, firearm, and
ammunition are hereby ordered confiscated in
favor of the government.
37 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
SO ORDERED.
Feliciano, Bidin, Romero and Vitug, JJ., concur.
(Umil v. Ramos, G.R. No. 81567, 84581-82,
84583-84, 83162, 85727, 86332, July 09,
1990)
EN BANC
[G.R. No. 81567. July 9, 1990.]
IN THE MATTER OF THE PETITION FOR HABEAS
CORPUS OF ROBERTO UMIL, ROLANDO DURAL
and RENATO VILLANUEVA. MANOLITA O. UMIL,
and NICANOR P. DURAL, FELICITAS V. SESE,
petitioners, vs. FIDEL V. RAMOS, MAJ. GEN.
RENATO DE VILLA, BRIG. GEN. RAMON MONTANO,
BRIG. GEN. ALEXANDER AGUIRRE, respondents.
[G.R. Nos. 84581-82. July 9, 1990.]
AMELIA ROQUE and WILFREDO BUENAOBRA,
petitioners, vs. GEN. RENATO DE VILLA and GEN.
RAMON MONTANO, respondents.
[G.R. Nos. 84583-84. July 9, 1990.]
IN THE MATTER OF THE PETITION FOR HABEAS
CORPUS OF ATTY. DOMINGO T. ANONUEVO and
RAMON CASIPLE. DOMINGO T. ANONUEVO and
RAMON CASIPLE, petitioners, vs. HON. FIDEL V.
RAMOS, GEN. RENATO S. DE VILLA, COL.
EVARISTO CARINO, LT. COL. REX D. PIAD, T/ SGT.
CONRADO DE TORRES, S/SGT. ARNOLD DURIAN,
and Commanding Officer, PC-INP Detention
Center, Camp Crame, Quezon City, respondents.
[G.R. No. 83162. July 9, 1990.]
IN THE MATTER OF THE APPLICATION FOR
HABEAS CORPUS OF VICKY A. OCAYA AND DANNY
RIVERA. VIRGILIO A. OCAYA, petitioner, vs. BRIG.
GEN. ALEXANDER AGUIRRE, COL., HERCULES
CATALUNA, COL. NESTOR MARIANO, respondents.
[G.R. No. 85727. July 9, 1990.]
IN THE MATTER OF APPLICATION FOR HABEAS
CORPUS OF: DEOGRACIAS ESPIRITU, petitioner,
vs. BRIG. GEN. ALFREDO S. LIM, COL. RICARDO
REYES, respondents.
[G.R. No. 86332. July 9, 1990.]
IN THE MATTER OF THE PETITION FOR HABEAS
CORPUS OF NARCISO B. NAZARENO, ALFREDO
NAZARENO, petitioner, vs. THE STATION
COMMANDER OF THE MUNTINGLUPA POLICE
STATION, Muntinglupa, Metro Manila, P/SGT.
JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT.
LEVI SOLEDAD, and P/SGT. MAURO AROJADO,
respondents.
Efren H. Mercado for petitioners in G.R. No.
81567.
Ricardo C. Valmonte for petitioners in G.R. Nos.
84581-82.
Ramon S. Esguerra Barbara Anne C. Migallos and
Agripino G. Morga for petitioners in G.R. Nos.
84583-84.
Efren H. Mercado for petitioner in G.R. No. 83162.
Banzuela, Flores, Miralles, Raneses, Sy, Taquio &
Associates for petitioner in G.R. No. 85727.
Josefina G. Campbell-Castillo for petitioners in
G.R. No. 86332.
The Solicitor General for the respondents.
DECISION

PER CURIAM p:
These are eight (8) petitions for habeas corpus
filed before the Court, which have been
consolidated because of the similarity of issues
raised, praying for the issuance of the writ of
habeas corpus, ordering the respective
respondents to produce the bodies of the persons
named therein and to explain why they should
not be set at liberty without further delay.
In their respective Returns, the respondents
uniformly assert that the privilege of the writ of
habeas corpus is not available to the petitioners
as they have been legally arrested and are
detained by virtue of valid informations filed in
court against them. LexLib
The petitioners counter that their detention is
unlawful as their arrests were made without
warrant and, that no preliminary investigation
was first conducted, so that the informations filed
against them are null and void.
The Court has carefully reviewed the contentions
of the parties in their respective pleadings, and it
finds that the persons detained have not been
illegally arrested nor arbitrarily deprived of their
constitutional right to liberty, and that the
circumstances attending these cases do not
warrant their release on habeas corpus.
The arrest of a person without a warrant of arrest
or previous complaint is recognized in law. The
occasions or instances when such an arrest may
be effected are clearly spelled out in Section 5,
Rule 113 of the Rules of Court, as amended,
which provides:
"Sec. 5. Arrest without warrant; when lawful. A
peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually committing,
or is attempting to commit en offense;
(b) When an offense has in fact just been
committed, and he has personal knowledge of
facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or
temporarily confined while his case is pending, or
has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b)
hereof, the person arrested without a warrant
shall be forthwith delivered to the nearest police
station or jail, and he shall be proceeded against
in accordance with Rule 112, Section 7."
An arrest without a warrant of arrest, under
Section 5 paragraphs (a) and (b) of Rule 113 of
the Rules of Court, as amended, is justified when
the person arrested is caught in flagranti delicto,
viz., in the act of committing an offense; or when
an offense has just been committed and the
person making the arrest has personal knowledge
of the facts indicating that the person arrested
38 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
has committed it. The rationale behind lawful
arrests, without warrant, was stated by this Court
in the case of People vs. Kagui Malasugui 1 thus:
"To hold that no criminal can, in any case, be
arrested and searched for the evidence and
tokens of his crime without a warrant, would be to
leave society, to a large extent, at the mercy of
the shrewdest, the most expert, and the most
depraved of criminals, facilitating their escape in
many instances."
The record of the instant cases would show that
the persons in whose behalf these petitions for
habeas corpus have been filed, had freshly
committed or were actually committing an
offense, when apprehended, so that their arrests
without a warrant were clearly justified, and that
they are, further, detained by virtue of valid
informations filed against them in court.
A brief narration of the facts and events
surrounding each of the eight (8) petitions is in
order.
I
In G.R. No. 81567 (Umil vs. Ramos), the record
shows that, on 1 February 1988, the Regional
Intelligence Operations Unit of the Capital
Command (RIOU-CAPCOM) received confidential
information about a member of the NPA Sparrow
Unit (liquidation squad) being treated for a
gunshot wound at the St. Agnes Hospital in
Roosevelt Avenue, Quezon City. Upon verification,
it was found that the wounded person, who was
listed in the hospital records as Ronnie Javelon, is
actually Rolando Dural, a member of the NPA
liquidation squad, responsible for the killing of
two (2) CAPCOM soldiers the day before, or on 31
January 1988, in Macanining Street, Bagong
Barrio, Caloocan City. In view of this verification,
Rolando Dural was transferred to the Regional
Medical Services of the CAPCOM, for security
reasons. While confined thereat, or on 4 February
1988, Rolando Dural was positively identified by
eyewitnesses as the gunman who went on top of
the hood of the CAPCOM mobile patrol car, and
fired at the two (2) CAPCOM soldiers seated
inside the car identified as T/Sgt. Carlos Pabon
and CIC Renato Manligot.
As a consequence of this positive identification,
Rolando Dural was referred to the Caloocan City
Fiscal who conducted an inquest and thereafter
filed with the Regional Trial Court of Caloocan City
an information charging Rolando Dural alias
Ronnie Javelon with the crime of "Double Murder
with Assault Upon Agents of Persons in Authority."
The case was docketed therein as Criminal Case
No. C-30112 and no bail was recommended. On
15 February 1988, the information was amended
to include, as defendant, Bernardo Itucal, Jr. who,
at the filing of the original information, was still
unidentified. cdphil
Meanwhile, on 6 February 1988, a petition for
habeas corpus was filed with this Court on behalf
of Roberto Umil, Rolando Dural, and Renato
Villanueva. The Court issued the writ of habeas
corpus on 9 February 1988 and the respondents
filed a Return of the Writ on 12 February 1988.
Thereafter, the parties were heard on 15 February
1988.

On 26 February 1988, however, Roberto Umil and
Renato Villanueva posted bail before the Regional
Trial Court of Pasay City where charges for
violation of the Anti-Subversion Act had been filed
against them, and they were accordingly
released. The petition for habeas corpus, insofar
as Umil and Villanueva are concerned, is now
moot and academic and is accordingly dismissed,
since the writ of habeas corpus does not lie in
favor of an accused in a criminal case who has
been released on bail. 2
As to Rolando Dural,it clearly appears that he was
not arrested while in the act of shooting the two
(2) CAPCOM soldiers aforementioned. Nor was he
arrested just after the commission of the said
offense for his arrest came a day after the said
shooting incident. Seemingly, his arrest without
warrant is unjustified.
However, Rolando Dural was arrested for being a
member of the New Peoples Army (NPA), an
outlawed subversive organization. Subversion
being a continuing offense, the arrest of Rolando
Dural without warrant is justified as it can be said
that he was committing an offense when
arrested. The crimes of rebellion, subversion,
conspiracy or proposal to commit such crimes,
and crimes or offenses committed in furtherance
thereof or in connection therewith constitute
direct assaults against the State and are in the
nature of continuing crimes. As stated by the
Court in an earlier case:
"From the facts as above-narrated, the claim of
the petitioners that they were initially arrested
illegally is, therefore, without basis in law and in
fact. The crimes of insurrection or rebellion,
subversion, conspiracy or proposal to commit
such crimes, and other crimes and offenses
committed in the furtherance, on the occasion
thereof, or incident thereto, or in connection
therewith under Presidential Proclamation No.
2045, are all in the nature of continuing offenses
which set them apart from the common offenses,
aside from their essentially involving a massive
conspiracy of nationwide magnitude. Clearly
then, the arrest of the herein detainees was well
within the bounds of the law and existing
jurisprudence in our jurisdiction.
2. The arrest of persons involved in the rebellion
whether as its fighting armed elements, or for
committing non-violent acts but in furtherance of
the rebellion, is more an act of capturing them in
the course of an armed conflict, to quell the
rebellion, than for the purpose of immediately
prosecuting them in court for a statutory offense.
The arrest, therefore, need not follow the usual
procedure in the prosecution of offenses which
requires the determination by a judge of the
existence of probable cause before the issuance
of a judicial warrant of arrest and the granting of
bail if the offense is bailable. Obviously, the
absence of a judicial warrant is no legal
impediment to arresting or capturing persons
committing overt acts of violence against
government forces, or any other milder acts but
equally in pursuance of the rebellious movement.
39 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
The arrest or capture is thus impelled by the
exigencies of the situation that involves the very
survival of society and its government and duly
constituted authorities. If killing and other acts of
violence against the rebels find justification in the
exigencies of armed hostilities which is of the
essence of waging a rebellion or insurrection,
most assuredly so in case of invasion, merely
seizing their persons and detaining them while
any of these contingencies continue cannot be
less justified. . . ." 3
The record, moreover, shows that the criminal
case filed against Rolando Dural and Bernardo
Itucal, Jr. for "Double Murder, etc." was tried in
the court below and at the conclusion thereof, or
on 17 August 1988, Rolando Dural and Bernardo
Itucal, Jr. were found guilty of the charge and
sentenced accordingly. Rolando Dural is now
serving the sentence imposed upon him by the
trial court. Thus, the writ of habeas corpus is no
longer available to him. For, as held in the early
case of U.S. vs. Wilson: 4
"In this case, whatever may be said about the
manner of his arrest, the fact remains that the
defendant was actually in court in the custody of
the law on March 29, when a complaint sufficient
in form and substance was read to him. To this he
pleaded not guilty. The trial followed, in which,
and in the judgment of guilty pronounced by the
court, we find no error. Whether, if there were
irregularities in bringing him personally before
the court, he could have been released on a writ
of habeas corpus or now has a civil action for
damages against the person who arrested him we
need not inquire. It is enough to say that such
irregularities are not sufficient to set aside a valid
judgment rendered upon a sufficient complaint
and after a trial free from error."
II
In G.R. Nos. 84581-82 (Roque vs. De Villa), the
arrest of Amelia Roque and Wilfredo Buenaobra,
without warrant, is also justified. When
apprehended at the house of Renato Constantino
in Marikina Heights, Marikina, Metro Manila,
Wilfredo Buenaobra admitted that he was an NPA
courier and he had with him letters to Renato
Constantino and other members of the rebel
group. Amelia Roque, upon the other hand, was a
member of the National United Front Commission,
in charge of finance, and admitted ownership of
subversive documents found in the house of her
sister in Caloocan City. She was also in possession
of ammunition and a fragmentation grenade for
which she had no permit or authority to possess.
LLpr
The record of these two (2) cases shows that on
27 June 1988, one Rogelio Ramos y Ibanes, a
member of the NPA, who had surrendered to the
military authorities, told military agents about the
operations of the Communist Party of the
Philippines (CPP) and the New Peoples Army
(NPA) in Metro Manila. He identified some of his
former comrades as "Ka Mong", a staff member
of the Communications and Transportation
Bureau; "Ka Nelia" a staff member in charge of
finance; "Ka Miller", an NPA courier from Sorsogon
and Lopez, Quezon; "Ka Ted", and "Ka Totoy". He
also pointed to a certain house occupied by
Renato Constantino located in the Villaluz
Compound, Molave St., Marikina Heights,
Marikina, Metro Manila, which is used as a
safehouse of the National United Front
Commission (NUFC) of the CPP-NPA.
In view of these revelations, the Constantino
house was placed under military surveillance and
on 12 August 1988, pursuant to a search warrant
issued by Judge Eutropio Migrino of the Regional
Trial Court of Pasig, a search of the house was
conducted at about 5:00 o'clock in the afternoon,
by a combined team of the Criminal Investigation
Service, National Capital District (CIS-NCD) and
the Constabulary Security Group (CSG). In the
course of the search, the following articles were
found and taken under proper receipt:
a) One (1 ) Colt M1 6A1 long rifle with defaced
serial number;
b) One (1) Cal. .380 ACT/9mm Model PPK 8 SN:
260577 & 2605778;
c) Two (2) fragmentation hand grenades;
d) Fifty-six (56) live ammunition for Cal. 5.56mm;
e) Five (5) live ammunition for Cal. .380;
f) One (1) ICOM VHF FM Radio Transceiver SN:
14903
g) One (1) Regulated power supply 220V AC;
h) One (1) Antennae (adjustable);
i) One (1 ) Speaker with cord ALEXAR;
j) Voluminous Subversive documents.
When confronted, Renato Constantino could not
produce any permit or authority to possess the
firearms, ammunition, radio and other
communications equipment. Hence, he was
brought to the CIS Headquarters for investigation.
When questioned, he refused to give a written
statement, although he admitted that he was a
staff member of the executive committee of the
NUFC and a ranking member of the International
Department of the Communist Party of the
Philippines (CPP).
At about 8:00 o'clock in the evening of the same
day (12 August 1988), Wilfredo Buenaobra
arrived at the house of Renato Constantino in the
Villaluz Compound. When accosted, he readily
admitted to the military agents that he is a
regular member of the CPP/NPA and that he went
to the place to deliver letters to "Ka Mong",
referring to Renato Constantino, and other
members of the rebel group. On further
questioning, he also admitted that he is known as
"Ka Miller" and that he was from Barangay San
Pedro, Lopez, Quezon. Among the items taken
from him were the following:
(1) Handwritten letter addressed to "Ka Bing &
Co. from A & Co." dated August 11, 1988;
(2) Handwritten letter addressed to "ROD from
VIC (Schell datre)" dated August 11, 1988;
40 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
(3) Handwritten letter addressed to "Suzie" from
"Vic", dated August 11, 1988.
Also found in Buenaobra's possession was a piece
of paper containing a written but jumbled
telephone number of Florida M. Roque, sister of
Amelia Roque alias "Ka Nelia", at 69 Geronimo
St., Caloocan City. Acting on the lead provided as
to the whereabouts of Amelia Roque, the military
agents went to the given address the next day
(13 August 1988). They arrived at the place at
about 11:00 o'clock in the morning. After
identifying themselves as military agents and
after seeking permission to search the place,
which was granted, the military agents conducted
a search in the presence of the occupants of the
house and the barangay captain of the place, one
Jesus D. Olba.
The military agents found the place to be another
safehouse of the NUFC/CPP. They found ledgers,
journals, vouchers, bank deposit books, folders,
computer diskettes, and subversive documents
as well as live ammunition for a .38 SPL
Winchester, 11 rounds of live ammunition for a
cal. .45, 19 rounds of live ammunition for an M16
Rifle, and a fragmentation grenade. As a result,
Amelia Roque and the other occupants of the
house were brought to the PC-CIS Headquarters
at Camp Crame, Quezon City, for investigation.
Amelia Roque admitted to the investigators that
the voluminous documents belonged to her and
that the other occupants of the house had no
knowledge of them. As a result, the said other
occupants of the house were released from
custody.
On 15 August 1988, Amelia Roque was brought to
the Caloocan City Fiscal for inquest after which an
information charging her with violation of PD
1866 was filed with the Regional Trial Court of
Caloocan City. The case is docketed therein as
Criminal Case No. C-1196. Another information
for violation of the Anti-Subversion Act was filed
against Amelia Roque before the Metropolitan
Trial Court of Caloocan City, which is docketed
therein as Criminal Case No. C-150458.
An information for violation of the Anti-Subversion
Act was filed against Wilfredo Buenaobra before
the Metropolitan Trial Court of Marikina, Metro
Manila. The case is docketed therein as Criminal
Case No. 23715. Bail was set at P4,000.00.
On 24 August 1988, a petition for habeas corpus
was filed before this Court on behalf of Amelia
Roque and Wilfredo Buenaobra. At the hearing of
the case, however, Wilfredo Buenaobra
manifested his desire to stay in the PC-INP
Stockade at Camp Crame, Quezon City.
Accordingly, the petition for habeas corpus filed
on his behalf is now moot and academic. Only the
petition of Amelia Roque remains for resolution.
LLjur
The contention of respondents that petitioners
Roque and Buenaobra are officers and or
members of the National United Front
Commission (NUFC) of the CPP was not
controverted or traversed by said petitioners. The
contention must be deemed admitted. 5 As
officers and/ or members of the NUFC-CPP, their
arrest, without warrant, was justified for the same
reasons earlier stated vis-a-vis Rolando Dural. The
arrest without warrant of Roque was additionally
justified as she was, at the time of apprehension,
in possession of ammunitions without license to
possess them.
III
In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the
arrest of Domingo Anonuevo and Ramon Casiple,
without warrant, is also justified under the rules.
Both are admittedly members of the standing
committee of the NUFC and, when apprehended
in the house of Renato Constantino, they had a
bag containing subversive materials, and both
carried firearms and ammunition for which they
had no license to possess or carry.
The record of these two (2) cases shows that at
about 7:30 o'clock in the evening of 13 August
1988, Domingo T. Anonuevo and Ramon Casiple
arrived at the house of Renato Constantino at
Marikina Heights, Marikina, which was still under
surveillance by military agents. The military
agents noticed bulging objects on their waist
lines. When frisked, the agents found them to be
loaded guns. Anonuevo and Casiple were asked
to show their permit or license to possess or carry
firearms and ammunition, but they could not
produce any. Hence, they were brought to PC
Headquarters for investigation. Found in their
possession were the following articles:
a) Voluminous subversive documents
b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412
with one (1) magazine for Cal. 7.65 containing
ten (10) live ammunition of same caliber;
c) One (1) Cal. 7.65 Pietro Barreta SN; A18868
last digit tampered with one (1) magazine
containing five (5) live ammunition of same
caliber.
At the PC Stockade, Domingo Anonuevo was
identified as "KaTed", and Ramon Casiple as "Ka
Totoy" of the CPP, by their comrades who had
previously surrendered to the military.
On 15 August 1988, the record of the
investigation and other documentary evidence
were forwarded to the Provincial Fiscal at Pasig,
Metro Manila, who conducted an inquest, after
which Domingo Anonuevo and Ramon Casiple
were charged with violation of Presidential Decree
No. 1866 before the Regional Trial Court of Pasig,
Metro Manila. The cases are docketed therein as
Criminal Cases Nos. 74386 and 74387,
respectively. No bail was recommended.
On 24 August 1988, a petition for habeas corpus
was filed with this Court on behalf of Domingo
Anonuevo and Ramon Casiple, alleging that the
said Anonuevo and Casiple were unlawfully
arrested without a warrant and that the
informations filed against them are null and void
for having been filed without prior hearing and
preliminary investigation. On 30 August 1988, the
Court issued the writ of habeas corpus, and after
the respondents had filed a Return of the Writ,
the parties were heard.
41 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
The petitioners' (Anonuevo and Casiple) claim
that they were unlawfully arrested because there
was no previous warrant of arrest, is without
merit. The record shows that Domingo Anonuevo
and Ramon Casiple were carrying unlicensed
firearms and ammunition in their person when
they were apprehended.
There is also no merit in the contention that the
informations filed against them are null and void
for want of a preliminary investigation. The filing
of an information, without a preliminary
investigation having been first conducted, is
sanctioned by the Rules. Sec. 7, Rule 112 of the
Rules of Court, as amended, reads:
"Sec. 7. When accused lawfully arrested without a
warrant. When a person is lawfully arrested
without a warrant for an offense cognizable by
the Regional Trial Court the complaint or
information may be filed by the offended party,
peace officer or fiscal without a preliminary
investigation having been first conducted, on the
basis of the affidavit of the offended party or
arresting officer or person.
However, before the filing of such complaint or
information, the person arrested may ask for a
preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the
Revised Penal Code, as amended, with the
assistance of a lawyer and in case of non-
availability of a lawyer, a responsible person of
his choice. Notwithstanding such waiver, he may
apply for bail as provided in the corresponding
rule and the investigation must be terminated
within fifteen (15) days from its inception.
If the case has been filed in court without a
preliminary investigation having been first
conducted, the accused may within five (5) days
from the time he learns of the filing of the
information, ask for a preliminary investigation
with the same right to adduce evidence in his
favor in the manner prescribed in this Rule."
The petitioners Domingo Anonuevo and Ramon
Casiple, however, refused to sign a waiver of the
provisions of Article 125 of the Revised Penal
Code, as amended. In the informations filed
against them, the prosecutor made identical
certifications, as follows:
"This is to certify that the accused has been
charged in accordance with Sec. 7, Rule 112 of
the 1985 Rules on Criminal Procedure, that no
preliminary investigation was conducted because
the accused has not made and signed a waiver of
the provisions of Art. 125 of the Revised Penal
Code, as amended; that based on the evidence
presented, there is reasonable ground to believe
that the crime has been committed, and that the
accused is probably guilty thereof."
Nor did petitioners ask for a preliminary
investigation after the informations had been
filed against them in court. Petitioners cannot
now claim that they have been deprived of their
constitutional right to due process.
IV
In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest
without warrant, of Vicky Ocaya is justified under
the Rules, since she had with her an unlicensed
ammunition when she was arrested. The record of
this case shows that on 12 May 1988, agents of
the PC Intelligence and Investigation of the Rizal
PC-INP Command, armed with a search warrant
issued by Judge Eutropio Migrino of the Regional
Trial Court of Pasig, Metro Manila, conducted a
search of a house located at Block 19, Phase II,
Marikina Green Heights, Marikina, Metro Manila,
believed to be occupied by Benito Tiamson, head
of the CPP-NPA. In the course of the search, Vicky
Ocaya armed in a car driven by Danny Rivera.
Subversive documents and several rounds of
ammunition for a .45 cal. pistol were found in the
car of Vicky Ocaya. As a result, Vicky Ocaya and
Danny Rivera were brought to the PC
Headquarters for investigation. When Vicky
Ocaya could not produce any permit or
authorization to possess the ammunition, an
information charging her with violation of PD
1866 was filed with the Regional Trial Court of
Pasig, Metro Manila. The case is docketed therein
as Criminal Case No. 73447. Danny Rivera, on the
other hand, was released from custody.
On 17 May 1988, a petition for habeas corpus
was filed, with this Court on behalf of Vicky Ocaya
and Danny Rivera. It was alleged therein that
Vicky Ocaya was illegally arrested and detained,
and denied the right to a preliminary
investigation.
It would appear, however, that Vicky Ocaya was
arrested in flagranti delicto so that her arrest
without a warrant is justified. No preliminary
investigation was conducted because she was
arrested without a warrant and she refused to
waive the provisions of Article 125 of the Revised
Penal Code, pursuant to Sec. 7, Rule 112 of the
Rules of Court, as amended.
V Buenaobra did come to that place? Was it
The petitioners Vicky Ocaya, Domingo Anonuevo,
Ramon Casiple, and Amelia Roque claim that the
firearms, ammunition and subversive documents
alleged to have been found in their possession
when they were arrested, did not belong to them,
but were "planted" by the military agents to
justify their illegal arrest.
The petitioners, however, have not introduced
any evidence to support their aforesaid claim. On
the other hand, no evil motive or ill-will on the
part of the arresting officers that would cause the
said arresting officers in these cases to accuse
the petitioners falsely, has been shown. Besides,
the arresting officers in these cases do not
appear to be seekers of glory and bounty hunters
for, as counsel for the petitioners Anonuevo and
Casiple say, "there is absolutely nothing in the
evidence submitted during the inquest that
petitioners are on the 'AFP Order of Battle with a
reward of P15,000.00 on each on their heads.' " 6
On the other hand, as pointed out by the Solicitor
General, the arrest of the petitioners is not a
product of a witch hunt or a fishing expedition,
but the result of an in-depth surveillance of NPA
safehouses pointed to by no less than former
comrades of the petitioners in the rebel
movement. LexLib
42 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
The Solicitor General, in his Consolidated
Memorandum, aptly observes:
". . . To reiterate, the focal point in the case of
petitioners Roque, Buenaobra, Anonuevo and
Casiple, was the lawful search and seizure
conducted by the military at the residence of
Renato Constantino at Villaluz Compound, Molave
St., Marikina Heights, Marikina, Metro Manila. The
raid at Constantino's residence, was not a witch
hunting or fishing expedition on the part of the
military. It was a result of an in-depth military
surveillance coupled with the leads provided by
former members of the underground subversive
organizations. That raid produced positive results.
To date, nobody has disputed the fact that the
residence of Constantino when raided yielded
communication equipment, firearms and
ammunitions, as well as subversive documents.
The military agents working on the information
provided by Constantino that other members of
his group were coming to his place, reasonably
conducted a 'stake-out' operation whereby some
members of the raiding team were left behind the
place. True enough, barely two hours after the
raid and Constantino's arrest, petitioner
Buenaobra arrived at Constantino's residence. He
acted suspiciously and when frisked and searched
by the military authorities, found in his person
were letters. They are no ordinary letters, as even
a cursory reading would show. Not only that,
Buenaobra admitted that he is a NPA courier and
was there to deliver the letters to Constantino.
Subsequently, less than twenty four hours after
the arrest of Constantino and Buenaobra,
petitioners Anonuevo and Casiple arrived at
Constantino's place. Would it be unreasonable for
the military agents to believe that petitioners
Anonuevo and Casiple are among those expected
to visit Constantino's residence considering that
Constantino's information was true, in that
unreasonable under the circumstances, on the
part of the military agents, not to frisk and search
anyone who should visit the residence of
Constantino, such as petitioners Anonuevo and
Casiple? Must this Honorable Court yield to
Anonuevo and Casiple's flimsy and bare assertion
that they went to visit Constantino, who was to
leave for Saudi Arabia on the day they were
arrested thereat?.
As to petitioner Roque, was it unreasonable for
the military authorities to effect her arrest
without warrant considering that it was
Buenaobra who provided the leads on her
identity? It cannot be denied that Buenaobra had
connection with Roque. Because the former has
the phone number of the latter. Why the
necessity of jumbling Roque's telephone number
as written on a piece of paper taken from
Buenaobra's possession? Petitioners Roque and
Buenaobra have not offered any plausible reason
so far.
In all the above incidents, respondents maintain
that they acted reasonably, under the time, place
and circumstances of the events in question,
especially considering that at the time of
petitioners' arrest, incriminatory evidence, i.e,
firearms, ammunitions and/or subversive
documents were found in their possession.
Petitioners, when arrested, were neither taking
their snacks nor innocently visiting a camp, but
were arrested in such time, place and
circumstances, from which one can reasonably
conclude that they were up to a sinister plot,
involving utmost secrecy and comprehensive
conspiracy.".
VI
In G.R. No. 85727 (Espiritu vs. Lim), the release
on habeas corpus of the petitioner Deogracias
Espiritu, who is detained by virtue of an
Information for Violation of Article 142 of the
Revised Penal Code (Inciting to Sedition) filed
with the Regional Trial Court of Manila, is similarly
not warranted.
The record of the case shows that the said
petitioner is the General Secretary of the
Pinagkaisahang Samahan ng Tsuper at Operators
Nationwide (PISTON), an association of drivers
and operators of public service vehicles in the
Philippines, organized for their mutual aid and
protection. cdll
Petitioner claims that at about 5:00 o'clock in the
morning of 23 November 1988, while he was
sleeping in his home located at 363 Valencia St.,
Sta. Mesa, Manila, he was awakened by his sister
Maria Paz Lalic who told him that a group of
persons wanted to hire his jeepney. When he
went down to talk to them, he was immediately
put under arrest. When he asked for the warrant
of arrest arrest, the men, headed by Col. Ricardo
Reyes, bodily lifted him and placed him in their
owner-type jeepney. He demanded that his sister,
Maria Paz Lalic, be allowed to accompany him,
but the men did not accede to his request and
hurriedly sped away.
He was brought to Police Station No. 8 of the
Western Police District at Blumentritt, Manila
where he was interrogated and detained. Then, at
about 9:00 o'clock of the same morning, he was
brought before the respondent Lim and, there
and then, the said respondent ordered his arrest
and detention. He was thereafter brought to the
General Assignment Section, Investigation
Division of the Western Police District under
Police Capt. Cresenciano A. Cabasal where he was
detained, restrained and deprived of his liberty. 7
The respondents claim however, that the
detention of the petitioner is justified in view of
the Information filed against him before the
Regional Trial Court of Manila, docketed therein as
Criminal Case No. 88-683-85, charging him with
violation of Art. 142 of the Revised Penal Code
(Inciting to Sedition).
The respondents also claim that the petitioner
was lawfully arrested without a judicial warrant of
arrest since petitioner when arrested had in fact
just committed an offense in that in the afternoon
of 22 November 1988, during a press conference
at the National Press Club.
43 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
"Deogracias Espiritu through tri-media was heard
urging all drivers and operators to go on
nationwide strike on November 23, 1988, to force
the government to give in to their demands to
lower the prices of spare parts, commodities,
water and the immediate release from detention
of the president of the PISTON (Pinag-isang
Samahan ng Tsuper Operators Nationwide).
Further, we heard Deogracias Espiritu taking the
place of PISTON president Medardo Roda and also
announced the formation of the Alliance Drivers
Association to go on nationwide strike on
November 23, 1988." 8
Policemen waited for petitioner outside the
National Press Club in order to investigate him,
but he gave the lawmen the slip. 9 He was next
seen at about 5:00 o'clock that afternoon at a
gathering of drivers and sympathizers at the
corner of Magsaysay Blvd. and Valencia Street,
Sta. Mesa, Manila where he was heard to say:
"Bukas tuloy ang welga natin, sumagot na ang
Cebu at Bicol na kasali sila, at hindi tayo titigil
hanggang hindi binibigay ng gobyerno ni Cory
ang gusto nating pagbaba ng halaga ng spare
parts, bilihin at ang pagpapalaya sa ating pinuno
na si Ka Roda hanggang sa magkagulo na." 10
(emphasis supplied).
The police finally caught up with the petitioner on
23 November 1988. He was invited for
questioning and brought to police headquarters
after which an Information for violation of Art. 142
of the Revised Penal Code was filed against him
before the Regional Trial Court of Manila. 11
Since the arrest of the petitioner without a
warrant was in accordance with the provisions of
Rule 113, Sec. 5(b) of the Rules of Court and that
the petitioner is detained by virtue of a valid
information filed with the competent court, he
may not be released on habeas corpus. He may,
however be released upon posting bail as
recommended. However, we find the amount of
the recommended bail (P60,000.00) excessive
and we reduce it to P10,000.00 only.
VII
In G.R. No. 86332 (Nazareno vs. Station
Commander), we also find no merit in the
submission of Narciso Nazareno that he was
illegally arrested and is unlawfully detained. The
record of this case shows that at about 8:30
o'clock in the morning of 14 December 1988, one
Romulo Bunye II was killed by a group of men
near the corner of T. Molina and Mendiola Streets
in Alabang, Muntinglupa, Metro Manila. One of the
suspects in the killing was Ramil Regala who was
arrested by the police on 28 December 1988.
Upon questioning, Regala pointed to Narciso
Nazareno as one of his companions in the killing
of the said Romulo Bunye II. In view thereof, the
police officers, without warrant, picked up Narciso
Nazareno and brought him to the police
headquarters for questioning. Obviously, the
evidence of petitioner's guilt is strong because on
3 January 1989, an information charging Narciso
Nazareno, Ramil Regala, and two (2) others, with
the killing of Romulo Bunye II was filed with the
Regional Trial Court of Makati, Metro Manila. The
case is docketed therein as Criminal Case No.
731. cdphil

On 7 January 1989, Narciso Nazareno filed a
motion to post bail, but the motion was denied by
the trial court in an order dated 10 January 1989,
even as the motion to post bail, earlier filed by
his co-accused, Manuel Laureaga, was granted by
the same trial court.
On 13 January 1989, a petition for habeas corpus
was filed with this Court on behalf of Narciso
Nazareno and on 13 January 1989, the Court
issued the writ of habeas corpus, returnable to
the Presiding Judge of the Regional Trial Court of
Bian, Laguna, Branch 24, ordering said court to
hear the case on 30 January 1989 and thereafter
resolve the petition.
At the conclusion of the hearing, or on 1 February
1989, the Presiding Judge of the Regional Trial
Court of Bian, Laguna issued a resolution
denying the petition for habeas corpus, it
appearing that the said Narciso Nazareno is in the
custody of the respondents by reason of an
information filed against him with the Regional
Trial Court of Makati, Metro Manila which had
taken cognizance of said case and had, in fact,
denied the motion for bail filed by said Narciso
Nazareno (presumably because of the strength of
the evidence against him).
The findings of the Presiding Judge of the
Regional Trial Court of Bian, Laguna are based
upon the facts and the law. Consequently, we will
not disturb the same. Evidently, the arrest of
Nazareno was effected by the police without
warrant pursuant to Sec. 5 (b), Rule 113, Rules of
Court after he was positively implicated by his co-
accused Ramil Regala in the killing of Romulo
Bunye II; and after investigation by the police
authorities. As held in People vs. Ancheta: 12
"The obligation of an agent of authority to make
an arrest by reason of a crime, does not
presuppose as a necessary requisite for the
fulfillment thereof, the indubitable existence of a
crime. For the detention to be perfectly legal, it is
sufficient that the agent or person in authority
making the arrest has reasonably sufficient
grounds to believe the existence of an act having
the characteristics of a crime and that the same
grounds exist to believe that the person sought to
be detained participated therein."
VIII
It is to be noted that, in all the petitions here
considered, criminal charges have been filed in
the proper courts against the petitioners. The rule
is, that if a person alleged to be restrained of his
liberty is in the custody of an officer under
process issued by a court or judge, and that the
court or judge had jurisdiction to issue the
process or make the order, or if such person is
charged before any court, the writ of habeas
corpus will not be allowed. Section 4, Rule 102,
Rules of Court, as amended is quite explicit in
providing that:
"Sec. 4. When writ is not allowed or discharge
authorized. - If it appears that the person alleged
to be restrained of his liberty is in the custody of
an officer under process issued by a court or
judge or by virtue of a judgment or order of a
court of record, and that the court or judge had
44 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be
allowed; or if the jurisdiction appears after the
writ is allowed, the person shall not be discharged
by reason of any informality or defect in the
process, judgment, or order. Nor shall anything in
this rule be held to authorize the discharge of a
person charged with or convicted of an offense in
the Philippines or of a person suffering
imprisonment under lawful judgment." (emphasis
supplied)
At this point, we refer to petitioners' plea for the
Court to re-examine and, thereafter, abandon its
pronouncement in Ilagan vs. Enrile, 13 that a writ
of habeas corpus is no longer available after an
information is filed against the person detained
and a warrant of arrest or an order of
commitment is issued by the court where said
information has been filed. 14 The petitioners
claim that the said ruling, which was handed
down during the past dictatorial regime to
enforce and strengthen said regime, has no place
under the present democratic dispensation and
collides with the basic, fundamental, and
constitutional rights of the people. Petitioners
point out that the said doctrine makes possible
the arrest and detention of innocent persons
despite lack of evidence against them, and, most
often, it is only after a petition for habeas corpus
is filed before the court that the military
authorities file the criminal information in the
courts of law to be able to hide behind the
protective mantle of the said doctrine. This,
petitioners assert, stands as an obstacle to the
freedom and liberty of the people and permits
lawless and arbitrary State action.
We find, however, no compelling reason to
abandon the said doctrine. It is based upon
express provision of the Rules of Court and the
exigencies served by the law. The fears
expressed by the petitioners are not really
unremediable. As the Court sees it, re-
examination or reappraisal, with a view to its
abandonment, of the Ilagan case doctrine is not
the answer. The answer and the better practice
would be, not to limit the function of habeas
corpus to a mere inquiry as to whether or not the
court which issued the process, judgment or
order of commitment or before whom the
detained person is charged, had jurisdiction or
not to issue the process, judgment or order or to
take cognizance of the case, but rather, as the
Court itself states in Morales, Jr. vs. Enrile, 15 "in
all petitions for habeas corpus the court must
inquire into every phase and aspect of
petitioner's detention from the moment
petitioner was taken into custody up to the
moment the court passes upon the merits of the
petition;" and "only after such a scrutiny can the
court satisfy itself that the due process clause of
our Constitution has in fact been satisfied." This is
exactly what the Court has done in the petitions
at bar. This is what should henceforth be done in
all future cases of habeas corpus. In short, all
cases involving deprivation of individual liberty
should be promptly brought to the courts for their
immediate scrutiny and disposition. LLpr
WHEREFORE, the petitions are hereby
DISMISSED, except that in G.R. No. 85727
(Espiritu vs. Lim), the bail bond for petitioner's
provisional liberty is hereby ordered reduced from
P60,000.00 to P10,000.00. No costs.
SO ORDERED.
Fernan, C.J, Narvasa, Melencio-Herrera, Gutierrez,
Jr., Paras, Gancayco, Padilla, Bidin, Grio-Aquino,
Medialdea and Regalado, JJ., concur.
(People v. Sucro, G.R. No. 93239, March 18,
1991)
THIRD DIVISION
[G.R. No. 93239. March 18, 1991.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. EDISON SUCRO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Fidencio S. Raz accused-appellant.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE;
ARREST WITHOUT A WARRANT; WHEN
LAWFUL. Section 5, Rule 113 of the Rules on
Criminal Procedure provides for the instances
where arrest without warrant is considered lawful.
The rules states: "Arrest without warrant, when
lawful. A peace officer or private person may,
without warrant, arrest a person: (a) When in his
presence, the person to be arrested has
committed, is actually committing, or is
attempting to commit an offense; (b) When an
offense has in fact just been committed, and he
has personal knowledge of facts indicating that
the person to be arrested has committed it."
2. ID.; ID.; ID.; AN OFFENSE COMMITTED IN
THE PRESENCE OR WITHIN THE VIEW OF AN
OFFICER, CONSTRUED. An offense is
committed in the presence or within the view of
an officer, within the meaning of the rule
authorizing an arrest without a warrant, when the
officer sees the offense, although at a distance,
or hears the disturbances created thereby and
proceeds at once to the scene thereof (U.S. v.
Fortaleza, 12 Phil. 472 [1909]; and U.S. v.
Samonte, 16 Phil. 516 [1910]).
3. ID.; ID.; ID.; PERSONAL KNOWLEDGE OF
ACTUAL COMMISSION OF CRIME. The court
earlier indicated in the case of People v. Bati (G.R.
No. 87429, August 27, 1990) that police officers
have personal knowledge of the actual
commission of the crime when it had earlier
conducted surveillance activities of the accused.
4. ID.; ID.; SEARCHES AND SEIZURES, AS A
GENERAL RULE MUST BE SUPPORTED BY A
VALID WARRANT; EXCEPTION. That
searches and seizures must be supported by a
valid warrant is not an absolute rule (Manipon, Jr.
v. Sandiganbayan, 143 SCRA 267 [1986]). Among
the exceptions granted by law is a search
incidental to a lawful arrest under Sec. 12, Rule
126 of the Rules on Criminal Procedure, which
provides that a person lawfully arrested may be
searched for dangerous weapons or anything
which may be used as proof of the commission of
an offense, without a search warrant. (People v.
Castiller, G.R. No. 87783, August 6, 1990)
45 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
5. ID.; EVIDENCE; FINDINGS OF FACT OF THE
TRIAL COURT, GENERALLY ENTITLED TO
GREAT WEIGHT. Time and again it has been
held that the findings of the trial court are
entitled to great weight and should not be
disturbed on appeal unless it is shown that the
trial court had overlooked certain facts of weight
and importance, it being acknowledged that the
court below, having seen and heard the witnesses
during the trial, is in a better position to evaluate
their testimonies (People v. Umali, et al., G.R. No.
84450, February 4, 1991 citing People v. Alvarez,
163 SCRA 745 [1988]; People v. Dorado, 30 SCRA
53 [1969]; and People v. Espejo, 36 SCRA 400
[1970]).
6. ID.; ID.; BURDEN OF PROOF AND
PRESUMPTIONS; PRESUMPTION THAT
POLICE OFFICERS PERFORM THEIR DUTIES
REGULARLY; APPLIED IN CASE AT BAR.
There is nothing in the record to suggest that the
police officers were compelled by any motive
than to accomplish their mission to capture a
drug pusher in the execution of the crime, the
presumption being that police officers perform
their duties regularly in the absence of any
evidence to the contrary (Rule 131, Sec. 3(m),
Revised Rules on Evidence; People v. Castiller,
supra citing People v. Natipravat, 145 SCRA 483
[1986]).
7. ID.; ID.; CREDIBILITY; ALIBI; UNAVAILING
IN THE FACE OF POSITIVE IDENTIFICATION.
In contrast to the evidence presented by the
prosecution, accused-appellant's defense is alibi
which is unavailing considering that he was
positively identified by Macabante to be the
person from whom he bought marijuana.
8. ID.; ID.; WEIGHT AND SUFFICIENCY; MERE
DENIALS CANNOT PREVAIL OVER POSITIVE
IDENTIFICATION. It is well-settled that mere
denials cannot prevail against the positive
identification of the appellant as the seller of the
prohibited substances. (People v. Khan, 161 SCRA
406 [1988]; and People v. Paco, 170 SCRA 681
[1989]).
DECISION
GUTIERREZ, JR., J p:
Edison Sucro was charged with and convicted of
violation of Section 4, Article II of the Dangerous
Drugs Act, under an Information which reads:
"That on or about the 21st day of March, 1989, in
the evening, in the Poblacion, Municipality of
Kalibo, Province of Aklan, Republic of the
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused,
acting as a pusher or broker in the business of
selling, administering, delivery, giving away to
another and - or distributing prohibited drugs, did
then and there wilfully, unlawfully and feloniously
and without authority of law have in his
possession and control nineteen (19) pieces of
marijuana cigarette sticks and four (4) tea bags of
dried marijuana leaves which were confiscated
from him by the police authorities of Kalibo,
Aklan, shortly after having sold one tea bag of
dried marijuana leaves to a customer." (Rollo, p.
9)
Upon arraignment, the accused-appellant,
assisted by counsel, entered a plea of "not guilty"
to the offense charged. Trial ensued and a
judgment of conviction was rendered, the
pertinent portion of which reads:
"WHEREFORE, judgment is rendered finding the
accused Edison Sucro guilty of the sale of
prohibited drug under Section 4, Article II of the
Dangerous Drug Act, as amended, and
sentencing him to suffer the penalty of life
imprisonment, and pay a fine of P20,000, and
costs. He shall be entitled to full credit in the
service of his sentence with the period for which
he has undergone preventive imprisonment to
the date of promulgation of this judgment. All the
items of marijuana confiscated in this case are
declared forfeited in favor of the State." (Rollo, p.
41)
From the foregoing judgment of conviction,
accused-appellant interposes this appeal,
assigning the following as errors allegedly
committed by the court a quo, to wit:
I Delgado, Iloilo City for analysis. The specimens
THE LOWER COURT ERRED IN ADMITTING AS
EVIDENCE FOR THE PROSECUTION EXHIBITS
"E"-"E-4", TEA BAGS OF ALLEGED MARIJUANA, TO
BE THE CORPUS DELICTI; FURTHERMORE, THAT
THE SAME WERE TAKEN WITHOUT THE REQUIRED
WARRANT OF SEARCH AND ARREST SINCE THE
ACCUSED WAS NOT IN THE ACT OF COMMITTING
ANY OFFENSE AT THE TIME OF HIS ARREST.
II
THE LOWER COURT ERRED IN FINDING THE
ACCUSED EDISON SUCRO GUILTY OF THE SALE OF
PROHIBITED DRUGS UNDER SECTION 4, ARTICLE
II, OF THE DANGEROUS DRUGS ACT AND
SENTENCING HIM TO SUFFER A PENALTY OF LIFE
IMPRISONMENT AND TO PAY A FINE OF
P20,000.00. (Appellant's Brief, p. 1)
The antecedent facts of the case as summarized
by the Solicitor General are as follows:
"On March 21, 1989, Pat. Roy Fulgencio, a
member of the INP, Kalibo, Aklan, was instructed
by P/Lt. Vicente Seraspi, Jr. (Station Commander
of the INP Kalibo, Aklan) to monitor the activities
of appellant Edison Sucro, because of information
gathered by Seraspi that Sucro was selling
marijuana. (p. 6, TSN, May 2, 1989).
As planned, at about 5:00 P.M. on said date, Pat.
Fulgencio positioned himself under the house of a
certain Arlie Regalado at C. Quimpo Street.
Adjacent to the house of Regalado, about 2
meters away, was a chapel. Thereafter, Pat.
Fulgencio saw appellant enter the chapel, taking
something which turned out later to be marijuana
from the compartment of a cart found inside the
chapel, and then return to the street where he
handed the same to a buyer, Aldie Borromeo.
After a while appellant went back to the chapel
and again came out with marijuana which he
gave to a group of persons. (pp. 6-8, 15-18, ibid).
It was at this instance that Pat. Fulgencio radioed
P/Lt. Seraspi and reported the activity going on
P/Lt. Seraspi instructed Pat. Fulgencio to continue
46 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
monitoring developments. At about 6:30 P.M., Pat.
Fulgencio again called up Seraspi to report that a
third buyer later identified as Ronnie Macabante,
was transacting with appellant. (pp. 18-19, ibid)
At that point, the team of P/Lt Seraspi proceeded
to the area and while the police officers were at
the Youth Hostel at Maagma St., Pat. Fulgencio
told P/Lt. Seraspi to intercept Macabante and
appellant. P/ Lt. Seraspi and his team caught up
with Macabante at the crossing of Mabini and
Maagma Sts. in front of the Aklan Medical Center.
Upon seeing the police, Macabante threw
something to the ground which turned out to be a
tea bag of marijuana. (pp 6-8, TSN, June 19,
1989) When confronted, Macabante readily
admitted that he bought the same from appellant
(Edison Sucro) in front of the chapel. (p. 6, TSN,
May 24, 1989) The police team was able to
overtake and arrest appellant at the corner of C.
Quimpo and Veterans Sts. The police recovered
19 sticks and 4 teabags of marijuana from the
cart inside the chapel and another teabag from
Macabante. The teabags of marijuana were sent
to the PC-INP Crime Laboratory Service, at Camp
(Exhibits "G" to "G-18", Exhibits "E" to "E-4") were
all found positive of marijuana. (pp. 4-7, TSN,
Sept. 4, 1989)" (Appellee's Brief, pp. 3-6)
As can be seen from the facts, the issue hinges
mainly on whether or not the arrest without
warrant of the accused is lawful and
consequently, whether or not the evidence
resulting from such arrest is admissible.
We rule in the affirmative.
The accused-appellant contends that his arrest
was illegal, being a violation of his rights granted
under Section 2, Artilce III of the 1987
Constitution. He stresses that there was sufficient
time for the police officers to apply for a search
and arrest warrants considering that Fulgencio
informed his Station Commander of the activities
of the accused two days before March 21, 1989,
the date of his arrest.
This contention is without merit.
Section 5, Rule 113 of the Rules on Criminal
Procedure provides for the instances where arrest
without warrant is considered lawful. The rule
states:
"Arrest without warrant, when lawful. A peace
officer or private person may, without warrant,
arrest a person:
(a) When in his presence, the person to be
arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has in fact just been
committed, and he has personal knowledge of
facts indicating that the person to be arrested has
committed it;" (Emphasis supplied).
An offense is committed in the presence or within
the view of an officer, within the meaning of the
rule authorizing an arrest without a warrant,
when the officer sees the offense, although at a
distance, or hears the disturbances created
thereby and proceeds at once to the scene
thereof (U.S. v. Fortaleza, 12 Phil. 472 [1909]; and
U.S. v. Samonte, 16 Phil. 516 [1910]).
The records show that Fulgencio went to Arlie
Regalado's house at C. Quimpo Street to monitor
the activities of the accused who was earlier
reported to be selling marijuana at a chapel two
(2) meters away from Regalado's house.
Fulgencio, within a distance of two meters saw
Sucro conduct his nefarious activity. He saw Sucro
talk to some persons, go inside the chapel, and
return to them and exchange some things. These,
Sucro did three times during the time that he was
being monitored. Fulgencio would then relay the
on-going transaction to P/Lt. Seraspi.
Anent the second requirement, the fact that
Macabante, when intercepted by the police, was
caught throwing the marijuana stick and when
confronted, readily admitted that he bought the
same from accused-appellant clearly indicates
that Sucro had just sold the marijuana stick to
Macabante, and therefore, had just committed an
illegal act of which the police officers had
personal knowledge, being members of the team
which monitored Sucro's nefarious activity. cdphil
The court earlier indicated in the case of People v.
Bati (G.R. No. 87429, August 27, 1990) that police
officers have personal knowledge of the actual
commission of the crime when it had earlier
conducted surveillance activities of the accused.
Thus, it stated:
"When Luciano and Caraan reached the place
where the alleged transaction would take place
and while positioned at a street corner, they saw
appellant Regalado Bati and Warner Marquez by
the side of the street about forty to fifty meters
away from them (the public officers). They saw
Marquez giving something to Bati, who,
thereafter handed a wrapped object to Marquez
who then inserted the object inside the front of
his pants infront of his abdomen while Bati, on his
part, placed the thing given to him inside his
pocket. (p. 2)
xxx xxx xxx
. . . Both Patrolman Luciano and Caraan actually
witnessed the same and their testimonies were
based on their actual and personal knowledge of
the events that took place leading to appellant's
arrest. They may not have been within hearing
distance, specially since conversation would
expectedly be carried on hushed tones, but they
were certainly near enough to observe the
movements of the appellant and the buyer.
Moreover, these prosecution witnesses are all law
enforcers and are, therefore, presumed to have
regularly performed their duties in the absence of
proof to the contrary (People v. Bati, supra citing
People v. Agapito, G.R. No. 73786, October 12,
1987)
The accused questions the failure of the police
officers to secure a warrant considering that
Fulgencio himself knew of Sucro's activities even
47 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
prior to the former s joining the police force.
Fulgencio reported Sucro's activities only three
days before the incident.
As the records reveal, Fulgencio and Sucro had
known each other since their childhood years and
that after Fulgencio joined the police force, he
told the accused-appellant not to sell drugs in
their locality. Hence, it is possible that because of
this friendship, Fulgencio hesitated to report his
childhood friend and merely advised him not to
engage in such activity. However, because of
reliable information given by some informants
that selling was going on everyday, he was
constrained to report the matter to the Station
Commander.
On the other hand, the failure of the police
officers to secure a warrant stems from the fact
that their knowledge acquired from the
surveillance was insufficient to fulfill the
requirements for the issuance of a search
warrant. What is paramount is that probable
cause existed. Thus, it has been held in the case
of People v. Lo Ho Wing, et al. (G.R. No. 88017,
January 21, 1991):
"In the instant case, it was firmly established from
the factual findings of the trial court that the
authorities had reasonable ground to believe that
appellant would attempt to bring in contraband
and transport it within the country. The belief was
based on intelligence reports gathered from
surveillance activities on the suspected
syndicate, of which appellant was touted to be a
member. Aside from this, they were also certain
as to the expected date and time of arrival of the
accused from China. But such knowledge was
clearly insufficient to enable them to fulfill the
requirements for the issuance of a search
warrant. Still and all, the important thing is that
there was probable cause to conduct the
warrantless search, which must still be present in
such a case."
As the Solicitor General has pointed out:
"There are several instances when a warrantless
search and seizure can be effected without
necessarily being preceded by an arrest provided
the same is effected on the basis of probable
cause (e.g. stop and search without warrant at
checkpoints). Between warrantless searches and
seizures at checkpoints and in the case at bar the
latter is more reasonable considering that unlike
in the former, it was effected on the basis of
probable cause. Under the circumstances
(monitoring of transactions) there existed
probable cause for the arresting officers, to arrest
appellant who was in fact selling marijuana and
to seize the contraband."
That searches and seizures must be supported by
a valid warrant is not an absolute rule (Manipon,
Jr. v. Sandiganbayan, 143 SCRA 267 [1986]).
Among the exceptions granted by law is a search
incidental to a lawful arrest under Sec. 12, Rule
126 of the Rules on Criminal Procedure, which
provides that a person lawfully arrested may be
searched for dangerous weapons or anything
which may be used as proof of the commission of
an offense, without a search warrant. (People v.
Castiller, G.R. No. 87783, August 6, 1990)

The accused-appellant claims that the arrest
having been done without warrant, it follows that
the evidence obtained therefrom is inadmissible.
As earlier discussed, there is nothing unlawful
about the arrest considering its compliance with
the requirements of a warrantless arrest. Ergo,
the fruits obtained from such lawful arrest are
admissible in evidence. LLpr
Edison Sucro assails the trial court's reliance on
the statement of Macabante whose reason for
testifying could be merely to escape prosecution.
We quote the trial court's finding as to the
testimony of Macabante:
"The non-filing of a complaint against him for
possession of marijuana may have been the
reason of (sic) his willingness to testify in court
against the accused. But this does not necessarily
taint the evidence that proceeds from his lips. As
explained by Lt. Seraspi, the best sources of
information against drug pushers are usually their
customers, especially if as in this case, there is no
other direct evidence of the selling except the
testimony of the buyer. We accept this
observation as a realistic appraisal of a situation
in which drug users are, and should be employed
by law enforcement authorities to bolster the
drive against pushers who are the real felons in
our society. We have observed the demeanor of
the witness in court, and found him to be
straightforward, unhesitating, and spontaneous in
his declarations, so that we are satisfied as to his
intention and disposition to tell the truth" (Rollo,
p. 40)
Time and again it has been held that the findings
of the trial court are entitled to great weight and
should not be disturbed on appeal unless it is
shown that the trial court had overlooked certain
facts of weight and importance, it being
acknowledged that the court below, having seen
and heard the witnesses during the trial, is in a
better position to evaluate their testimonies
(People v. Umali, et al., G.R. No. 84450, February
4, 1991 citing People v. Alvarez, 163 SCRA 745
[1988]; People v. Dorado, 30 SCRA 53 [1969]; and
People v. Espejo, 36 SCRA 400 [1970])
Furthermore, the testimony of Macabante was
corroborated on material points by public officers
Fulgencio and Seraspi.
There is nothing in the record to suggest that the
police officers were compelled by any motive
than to accomplish their mission to capture a
drug pusher in the execution of the crime, the
presumption being that police officers perform
their duties regularly in the absence of any
evidence to the contrary (Rule 131, Sec. 3(m),
Revised Rules on Evidence; People v. Castiller,
supra citing People v. Natipravat, 145 SCRA 483
[1986])
The prosecution evidence was further bolstered
by the findings of the Forensic Chemist that the
items seized were all positive for marijuana.
In contrast to the evidence presented by the
prosecution, accused-appellant's defense is alibi
48 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
which is unavailing considering that he was
positively identified by Macabante to be the
person from whom he bought marijuana.
Sucro alleges that he could not have committed
the crime since he was with his uncle and cousin
distributing handbills for his Auntie's candidacy.
The fact, however, remains that it does not
preclude the possibility that he was present in the
vicinity as established by his admission that he
moved a lot and even had the occasion to meet
Macabante on the street.
It is well-settled that mere denials cannot prevail
against the positive identification of the appellant
as the seller of the prohibited substances. (People
v. Khan, 161 SCRA 406 [1988]; and People v.
Paco, 170 SCRA 681 [1989])
Premises considered, this Court is convinced that
appellant Edison Sucro had indeed committed the
offense charged. The trial court's decision must
be upheld.
WHEREFORE, the decision appealed from is
hereby AFFIRMED.
SO ORDERED.
Fernan, C.J., Feliciano, Bidin and Davide, Jr., JJ.,
concur.
(People v. Rodrigueza, G.R. No. 95902,
February 04, 1992)
SECOND DIVISION
[G.R. No. 95902. February 4, 1992.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. DON RODRIGUEZA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
SYLLABUS
1. CRIMINAL LAW; DANGEROUS DRUGS ACT
OF 1972 (RA No. 6425); ENTRAPMENT; BUY-
BUST OPERATION; REQUISITE THEREOF; NOT
COMPLIED WITH IN CASE AT BAR. A buy-
bust operation is a form of entrapment employed
by peace officers to trap and catch a malefactor
in flagrante delicto. Applied to the case at bar,
the term in flagrante delicto requires that the
suspected drug dealer must be caught redhanded
in the act of selling marijuana or any prohibited
drug to a person acting or posing as a buyer. In
the instant case, however, the procedure adopted
by the NARCOM agents failed to meet this
qualification. Based on the very evidence of the
prosecution, after the alleged consummation of
the sale of dried marijuana leaves, CIC Taduran
immediately released appellant Rodrigueza
instead of arresting and taking him into his
custody. This act of CIC Taduran, assuming
arguendo that the supposed sale of marijuana did
take place, is decidedly contrary to the natural
course of things and inconsistent with the
aforestated purpose of a buy-bust operation. It is
rather absurd on his part to let appellant escape
without having been subjected to the sanctions
imposed by law. It is, in fact, a dereliction of duty
by an agent of the law.
2. ID.; ID.; CONFISCATED MARIJUANA
LEAVES AND OTHER PROHIBITED DRUG
PARAPHERNALIA CONSTITUTES THE CORPUS
DELICTI OF THE CRIME; PROOF OF THEIR
EXISTENCE NECESSARY. In People vs. Rubio
(142 SCRA 329 [1986]), this Court had the
occasion to rule that the plastic bag and the dried
marijuana leaves contained therein constitutes
the corpus delicti of the crime. As such, the
existence thereof must be proved with certainty
and conclusiveness. Failure to do so would be
fatal to the cause of the prosecution.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS;
RIGHTS OF A PERSON UNDER CUSTODIAL
INVESTIGATION; WAIVER THEREOF MUST BE
MADE WITH ASSISTANCE AND IN THE
PRESENCE OF COUNSEL. The admissibility of
the sworn statement allegedly executed by
appellant was squarely placed in issue and, as
correctly pointed out by the defense, said sworn
statement is inadmissible in evidence against
appellant. We have once again to reiterate and
emphasize that Article III of the 1987 Constitution
provides: "Sec. 12 (1). Any person under
investigation for the commission of an offense
shall have the right to be informed of his right to
remain silent and to have a competent and
independent counsel preferably of his own
choice. If the person cannot afford the services of
counsel, he must be provided with one. These
rights cannot be waived except in writing and in
the presence of counsel. . . . (3) Any confession or
admission obtained in violation of this or section
17 hereof shall be inadmissible in evidence
against him." An examination of said sworn
statement shows that appellant was informed of
his constitutional right to remain silent and to be
assisted by counsel during custodial examination.
He was also asked if he was waiving his right to
be assisted by counsel and he answered in the
affirmative. However, while the rights of a person
under custodial investigation may be waived,
such waiver must be made not only voluntarily,
knowingly and intelligently but also in the
presence and with the assistance of counsel
(People vs. Olaes, 188 SCRA 91 [1990]; People vs.
Hernandez, et al., 162 SCRA 422 [1988]). In the
present case, the waiver made by appellant being
without the assistance of counsel, this omission
alone is sufficient to invalidate said sworn
statement (People vs. Nolasco, 163 SCRA 623
[1988]).
4. ID.; ID.; SEARCH AND SEIZURE; SEARCH
WARRANT REQUIRED; EXCEPTIONS; CASE AT
BAR. As provided in the present Constitution,
a search, to be valid, must generally be
authorized by a search warrant duly issued by the
proper government authority (Section 2, Article
III, 1987 Constitution). True, in some instances,
this Court has allowed government authorities to
conduct searches and seizures even without a
search warrant. Thus, when the owner of the
premises waives his right against such incursion;
when the search is incidental to a lawful arrest;
when it is made on vessels and aircraft for
violation of customs laws; when it is made on
automobiles for the purpose of preventing
violations of smuggling or immigration laws;
when it involves prohibited articles in plain view;
or in cases of inspection of buildings and other
premises for the enforcement of fire, sanitary and
building regulations, a search may be validly
made even without a search warrant. In the case
49 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
at bar, however, the raid conducted by the
NARCOM agents in the house of Jovencio
Rodrigueza was not authorized by any search
warrant. It does not appear, either, that the
situation falls under any of the aforementioned
cases. Hence, appellant's right against
unreasonable search and seizure was clearly
violated. The NARCOM agents could not have
justified their act by invoking the urgency and
necessity of the situation because the
testimonies of the prosecution witnesses reveal
that the place had already been put under
surveillance for quite some time. Had it been
their intention to conduct the raid, then they
should, because they easily could, have first
secured a search warrant during that time.
5. REMEDIAL LAW; EVIDENCE; TESTIMONY
OF WITNESSES; CREDIBILITY THEREOF
AFFECTED BY MATERIAL INCONSISTENCIES.
It is accepted that, as a rule, minor
inconsistencies in the testimony of a witness will
not affect his credibility. It even enhances such
credibility because it only shows that he has not
been rehearsed. However, when the
inconsistencies pertain to material and crucial
points, the same detract from his overall
credibility.
6. ID.; ID.; TESTIMONY OF ACCUSED; GIVEN
CREDENCE. We are constrained to give more
credibility to the testimony of appellant
Rodrigueza. While it is true that appellant's
defense amounts to an alibi, and as such is the
weakest defense in a criminal prosecution, there
are, nonetheless, some evidentiary aspects
pointing to the truth in his testimony. Firstly, the
Joint Affidavit of Arrest corroborates his testimony
that he was not among those who were arrested
on the night of July 1, 1987. His co-accused
Segovia also testified that appellant Rodrigueza
was not with them when they were apprehended
by the NARCOM agents. Secondly, the apparent
motive of the NARCOM agents in prosecuting the
accused was also revealed during the trial of the
case. Rebuttal witnesses Gracita Bahillo, sister of
appellant, and Hospicio Segovia, father of Samuel
Segovia, testified that Sgt. Moliawe, who has
since been reportedly dismissed from the service,
asked for P10,000.00 from each of them in
exchange for the liberty of the accused. This
allegation was never refuted by the prosecution.
7. ID.; ID.; PROOF REQUIRED IN CRIMINAL
CASES; BEYOND REASONABLE DOUBT NOT
ESTABLISHED IN CASE AT BAR. The Court
has repeatedly ruled that to sustain the
conviction of the accused, the prosecution must
rely on the strength of its own evidence and not
on the weakness of the defense. As clearly shown
by the evidence, the prosecution has failed to
establish its cause. It has not overcome the
presumption of innocence accorded to appellant.
This being the case, appellant should not be
allowed to suffer for unwarranted and imaginary
imputations against him.
DECISION
REGALADO, J p:
On appeal before us is the decision of the
Regional Trial Court of Legaspi City, Branch 10,
finding accused-appellant Don Rodrigueza guilty
beyond reasonable doubt of violating Section 4,
Article II of the Dangerous Drugs Act of 1972
(REPUBLIC ACT NO. 6425, as amended) and
sentencing him to suffer the penalty of life
imprisonment and to pay a fine of P20,000.00
and costs. 1
However, the Solicitor General, deviating from his
conventional stance in the prosecution of criminal
cases, recommends the acquittal of appellant for
the reasons stated in his Manifestation for
Acquittal (In Lieu of Appellee's Brief) filed with the
Court. We have reviewed and analyzed the
testimonial and documentary evidence in this
case and we find said recommendation to be well
taken. cdrep
The information, dated July 10, 1987, charges
Don Rodrigueza and his co-accused, Samuel
Segovia and Antonio Lonceras, with allegedly
having in their custody and possession 100 grams
of marijuana leaves and for selling, in a buy-bust
operation, said 100 grams of dried marijuana
leaves for a consideration of P200.00. 2
During the arraignment, all the accused pleaded
not guilty to the charge against them. At the trial,
the prosecution and the defense presented
several witnesses after which the court a quo
rendered judgment acquitting Samuel Segovia
and Antonio Lonceras but convicting and
penalizing herein appellant as hereinbefore
stated.
The following facts are culled from the decision of
the trial court and the evidence presented by the
prosecution.
At around 5:00 o'clock in the afternoon of July 1,
1987, CIC Ciriaco Taduran was in their
headquarters at the Office of the Narcotics
Regional Unit at Camp Bagong Ibalon, Legaspi
City, together with S/Sgt. Elpidio Moliawe, CIC
Leonardo B. Galutan and their commanding
officer, Major Crisostomo M. Zeidem, when a
confidential informer arrived and told them that
there was an ongoing illegal traffic of prohibited
drugs in Tagas, Daraga, Albay. Major Zeidem
formed a team to conduct a buybust operation,
which team was given P200.00 in different
denominations to buy marijuana. These bills were
treated with ultraviolet powder at the Philippine
Constabulary Crime Laboratory (PCCL). Sgt.
Moliawe gave the money to Taduran who acted
as the poseur buyer. He was told to look for a
certain Don, the alleged seller of prohibited
drugs. Taduran went to Tagas alone and, while
along the road, he met Samuel Segovia. He asked
Segovia where he could find Don and where he
could buy marijuana. Segovia left for a while and
when he returned, he was accompanied by a man
who was later on introduced to him as Don,
herein appellant. 3
After agreeing on the price of P200.00 for 100
grams of marijuana, Don halted a passing tricycle
driven by Antonio Lonceras. He boarded it and
left Taduran and Segovia. When he came back,
Don gave Taduran "a certain object wrapped in a
plastic" which was later identified as marijuana,
and received payment therefor. Thereafter,
50 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
Taduran returned to the headquarters and made
a report regarding his said purchase of marijuana.
4
Based on that information, Major Zeidem ordered
a team to conduct an operation to apprehend the
suspects. In the evening of the same date, CIC
Galutan and S/Sgt. Moliawe proceeded to
Regidor Street, Daraga, Albay and arrested
appellant, Antonio Lonceras and Samuel Segovia.
The constables were not, however, armed with a
warrant of arrest when they apprehended the
three accused. The arrestees were brought to the
headquarters for investigation. 5
Thereafter, agents of the Narcotics Command
(NARCOM) conducted a raid in the house of
Jovencio Rodrigueza, father of appellant. Taduran
did not go with them. During the raid, they were
able to confiscate dried marijuana leaves and a
plastic syringe, among others. The search,
however, was not authorized by any search
warrant. 6
The next day, July 2, 1987, Jovencio Rodrigueza
was released from detention but appellant was
detained. An affidavit, allegedly taken from and
executed by him, was sworn to by him before the
assistant city prosecutor. Appellant had no
counsel when his sworn statement was taken
during that custodial investigation. The arrestees
were also examined by personnel of the PCCL and
were found positive for ultraviolet powder. 7
The three accused presented different versions of
their alleged participations.
Samuel Segovia testified that he was in their
house in the evening of July 1, 1987 listening to
the radio. Later, he ate his merienda and then
went out to buy cigarettes from the store. While
he was at the store, a jeep stopped behind him.
Several armed men alighted therefrom and
ordered him to get inside the jeep. He refused but
he was forced to board the vehicle. He was even
hit by the butt of a gun. 8
He was thereafter brought to Camp Bagong
Ibalon where he was investigated and was
repeatedly asked regarding the whereabouts of
Rodrigueza. He was manhandled by the NARCOM
agents and was detained while inside the camp.
He was then made to hold a P10.00 bill treated
with ultraviolet powder. When he was taken to
the PCCL and examined, he was found positive of
the ultraviolet powder. He was also made to sign
some papers but he did not know what they were
all about. 9
Appellant, on the other hand, testified that on
said date he was in the house of his aunt in San
Roque, Legaspi City. He stayed there overnight
and did not leave the place until the next day
when his brother arrived and told him that their
father was taken by some military men the
preceding night. Appellant went to Camp Bagong
Ibalon and arrived there at around 8:00 o'clock in
the morning of July 2, 1987. When he arrived, he
was asked if he knew anything about the
marijuana incident, to which question he
answered in the negative. Like Segovia, he was
made to hold a P10.00 bill and was brought to the
crime laboratory for examination. From that time
on, he was not allowed to go home and was
detained inside the camp. He was also tortured in
order to make him admit his complicity in the
alleged sale of marijuana. 1 0
In the assignment of errors in his brief, appellant
contends that the trial court erred in (1) admitting
in evidence the sworn statement of appellant
which was obtained in violation of his
constitutional rights; (2) convicting appellant of
the crime charged despite the fact that the 100
grams of dried marijuana leaves allegedly bought
from him were not properly identified; (3)
convicting appellant of the crime charged despite
the fact that the evidence for the prosecution is
weak and not convincing; and (4) finding
appellant guilty beyond reasonable doubt of
selling or at least acting as broker in the sale of
the 100 grams of marijuana to CIC Taduran late in
the afternoon of July 1, 1987, despite the failure
of the prosecution to prove his guilt beyond
reasonable doubt. 11
We rule for the appellant and approve the
recommendation for his acquittal. In disposing of
this case, however, we feel that the issues raised
by appellant should properly be discussed
seriatim.
1. A buy-bust operation is a form of entrapment
employed by peace officers to trap and catch a
malefactor in flagrante delicto. 12 Applied to the
case at bar, the term in flagrante delicto requires
that the suspected drug dealer must be caught
redhanded in the act of selling marijuana or any
prohibited drug to a person acting or posing as a
buyer.
In the instant case, however, the procedure
adopted by the NARCOM agents failed to meet
this qualification. Based on the very evidence of
the prosecution, after the alleged consummation
of the sale of dried marijuana leaves, CIC Taduran
immediately released appellant Rodrigueza
instead of arresting and taking him into his
custody. This act of CIC Taduran, assuming
arguendo that the supposed sale of marijuana did
take place, is decidedly contrary to the natural
course of things and inconsistent with the
aforestated purpose of a buy-bust operation. It is
rather absurd on his part to let appellant escape
without having been subjected to the sanctions
imposed by law. It is, in fact, a dereliction of duty
by an agent of the law.
2. The admissibility of the sworn statement
allegedly executed by appellant was squarely
placed in issue and, as correctly pointed out by
the defense, said sworn statement is inadmissible
in evidence against appellant.
We have once again to reiterate and emphasize
that Article III of the 1987 Constitution provides:
"Sec. 12 (1). Any person under investigation for
the commission of an offense shall have the right
to be informed of his right to remain silent and to
have a competent and independent counsel
preferably of his own choice. If the person cannot
afford the services of counsel, he must be
provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
51 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
xxx xxx xxx
(3) Any confession or admission obtained in
violation of this or section 17 hereof shall be
inadmissible in evidence against him."
An examination of said sworn statement shows
that appellant was informed of his constitutional
right to remain silent and to be assisted by
counsel during custodial examination. He was
also asked if he was waiving his right to be
assisted by counsel and he answered in the
affirmative. However, while the rights of a person
under custodial investigation may be waived,
such waiver must be made not only voluntarily,
knowingly and intelligently but also in the
presence and with the assistance of counsel. 13
In the present case, the waiver made by
appellant being without the assistance of counsel,
this omission alone is sufficient to invalidate said
sworn statement. 14
3. Corollary to this, we take cognizance of the
error of the trial court in admitting in evidence
against appellant the articles allegedly
confiscated during the raid conducted in the
house of Jovencio Rodrigueza. cdll
As provided in the present Constitution, a search,
to be valid, must generally be authorized by a
search warrant duly issued by the proper
government authority. 15 True, in some instances,
this Court has allowed government authorities to
conduct searches and seizures even without a
search warrant. Thus, when the owner of the
premises waives his right against such incursion;
16 when the search is incidental to a lawful
arrest; 17 when it is made on vessels and aircraft
for violation of customs laws; 18 when it is made
on automobiles for the purpose of preventing
violations of smuggling or immigration laws; 19
when it involves prohibited articles in plain view;
20 or in cases of inspection of buildings and other
premises for the enforcement of fire, sanitary and
building regulations, 21 a search may be validly
made even without a search warrant.
In the case at bar, however, the raid conducted
by the NARCOM agents in the house of Jovencio
Rodrigueza was not authorized by any search
warrant. It does not appear, either, that the
situation falls under any of the aforementioned
cases. Hence, appellant's right against
unreasonable search and seizure was clearly
violated. The NARCOM agents could not have
justified their act by invoking the urgency and
necessity of the situation because the
testimonies of the prosecution witnesses reveal
that the place had already been put under
surveillance for quite some time. Had it been
their intention to conduct the raid, then they
should, because they easily could, have first
secured a search warrant during that time.
4. The Court further notes the confusion and
ambiguity in the identification of the confiscated
marijuana leaves and other prohibited drug
paraphernalia presented as evidence against
appellant.
CIC Taduran, who acted as the poseur buyer,
testified that appellant sold him 100 grams of
dried marijuana leaves wrapped in a plastic bag.
Surprisingly, and no plausible explanation has
been advanced therefor, what were submitted to
and examined by the PCCL and thereafter utilized
as evidence against the appellant were the
following items:
"One (1) red and white colored plastic bag
containing the following:
Exh. 'A' Thirty (30) grams of suspected dried
marijuana fruiting tops contained inside a
transparent plastic bag.
Exh. 'B' Fifty (50) grams of suspected dried
marijuana leaves and seeds contained inside a
white colored plastic labelled 'Robertson'.
Exh. 'C' Four (4) aluminum foils each
containing suspected dried marijuana fruiting
tops having a total weight of seven grams then
further wrapped with a piece of aluminum foil.
Exh. 'D' Five (5) small transparent plastic bags
each containing suspected dried marijuana
fruiting tops having a total weight of seventeen
grams.
Exh. 'E' One plastic syringe." 22
Evidently, these prohibited articles were among
those confiscated during the so-called follow-up
raid in the house of Jovencio Rodrigueza. The
unanswered question then arises as to the
identity of the marijuana leaves that became the
basis of appellant's conviction. 23 In People vs.
Rubio, 24 this Court had the occasion to rule that
the plastic bag and the dried marijuana leaves
contained therein constitutes the corpus delicti of
the crime. As such, the existence thereof must be
proved with certainty and conclusiveness. Failure
to do so would be fatal to the cause of the
prosecution. cdphil
5. It is accepted that, as a rule, minor
inconsistencies in the testimony of a witness will
not affect his credibility. It even enhances such
credibility because it only shows that he has not
been rehearsed. 25 However, when the
inconsistencies pertain to material and crucial
points, the same detract from his overall
credibility.
The exception, rather than the rule, applies in the
case at bar. As correctly pointed out by the
Solicitor General, the testimonies of the
prosecution witnesses are tainted with serious
flaws and material inconsistencies rendering the
same incredible. 26
CIC Taduran, in his testimony, said that they had
already been conducting surveillance of the place
where the buy-bust operation was to take place.
It turned out, however, that he did not even know
the exact place and the identity of the person
from whom he was to buy marijuana leaves.
Thus:
"FISCAL TOLOSA:
Q What place in Tagas were you able to go (to)?
52 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
WITNESS.
A I am not actually familiar in (sic) that place, in
Tagas, although we occasionally passed there.
Q Now, upon your arrival in Tagas, what did you
do that afternoon?
A I waited for the suspect because previously, we
have already been conducted (sic) surveylance
(sic) in the vicinity.
Q Upon arrival in Tagas, were you able to see the
suspect?
A By the road, sir.
Q Who was the first person did you see (sic) when
you arrived at Tagas?
A The first person whom I saw is Samuel Segovia.
Q Were you able to talk with this Samuel
Segovia?
A According to him, we could get some." 27
The same findings go for the testimony of witness
Galutan. In his direct examination, he declared
that they arrested the three accused all at the
same time on the fateful night of July 1, 1987.
But, in his cross-examination and as corroborated
by the Joint Affidavit of Arrest 28 submitted by
him and Moliawe, it appeared that Lonceras and
Segovia were arrested on different times and that
appellant Don Rodrigueza was not among those
who were arrested. Instead, it was Jovencio
Rodrigueza, Don's father, who was picked up at a
much later time.
With said inconsistencies in sharp focus, we are
constrained to give more credibility to the
testimony of appellant Rodrigueza. While it is true
that appellant's defense amounts to an alibi, and
as such is the weakest defense in a criminal
prosecution, there are, nonetheless, some
evidentiary aspects pointing to the truth in his
testimony. Firstly, the Joint Affidavit of Arrest
corroborates his testimony that he was not
among those who were arrested on the night of
July 1, 1987. His co-accused Segovia also testified
that appellant Rodrigueza was not with them
when they were apprehended by the NARCOM
agents.
Secondly, the apparent motive of the NARCOM
agents in prosecuting the accused was also
revealed during the trial of the case. Rebuttal
witnesses Gracita Bahillo, sister of appellant, and
Hospicio Segovia, father of Samuel Segovia,
testified that Sgt. Moliawe, who has since been
reportedly dismissed from the service, asked for
P10,000.00 from each of them in exchange for
the liberty of the accused. 29 This allegation was
never refuted by the prosecution. Hence, the rule
laid down by this Court that the statements of
prosecution witnesses are entitled to full faith and
credit 30 has no application in the case at bar.
Finally, the Court has repeatedly ruled that to
sustain the conviction of the accused, the
prosecution must rely on the strength of its own
evidence and not on the weakness of the
defense. 31 As clearly shown by the evidence,
the prosecution has failed to establish its cause.
It has not overcome the presumption of
innocence accorded to appellant. This being the
case, appellant should not be allowed to suffer for
unwarranted and imaginary imputations against
him.
WHEREFORE, the judgment of conviction of the
court below is hereby REVERSED and SET ASIDE
and accused-appellant Don Rodrigueza is hereby
ACQUITTED of the crime charged. It is hereby
ordered that he be immediately released from
custody unless he is otherwise detained for some
other lawful cause.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Nocon, JJ.,
concur.
(Go y Tambunting v. Court of Appeals, G.R.
No. 101837, February 11, 1992)
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.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE;
WARRANTLESS ARREST UNDER SEC. 5, RULE
113, NOT APPLICABLE IN CASE AT BAR. We
do not believe that the warrantless "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 a warrant, arrest a person: (a) When, in
his presence, the person to be arrested has
committed, is actually committing, or is
attempting to commit an offense; (b) When an
offense has in fact just been committed, and he
has personal knowledge of facts indicating that
the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or
temporarily confined while his case is pending, or
has escaped while being transferred from one
confinement to another. In cases falling under
paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith
delivered to the nearest police station or jail, and
he shall be proceeded against in accordance with
Rule 112, Section 7." 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
53 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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." 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.
2. ID.; ID.; ID.; ACCUSED ENTITLED TO A
PRELIMINARY INVESTIGATION WITHOUT ANY
CONDITIONS. Petitioner was not arrested at
all. When he walked into the 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
proceeded 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.
3. ID.; ID.; ID.; RIGHT TO PRELIMINARY
INVESTIGATION; NO WAIVER THEREOF MADE
IN CASE AT BAR. 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 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. Nonetheless, since
petitioner in his omnibus motion was asking for
preliminary investigation and not for a re-
investigation and since the Prosecutor himself did
file with the trial court, on the 5th day after filing
the information for murder, a motion for leave to
conduct preliminary investigation (attaching to
his motion a copy of petitioner's omnibus
motion), we conclude that petitioner's omnibus
motion was in effect filed with the trial court.
What was crystal clear was that petitioner did ask
for a preliminary investigation on the very day
that the information was filed without such
preliminary investigation, and that the trial court
was five (5) days later apprised of the desire of
the petitioner for such preliminary investigation.
Finally, the trial court did in fact grant the
Prosecutor's prayer for leave to conduct
preliminary investigation. Thus, even on the
(mistaken) supposition apparently made by the
Prosecutor that Section 7 of Rule 112 of the
Revised Court was applicable, the 5-day
reglementary period in Section 7, Rule 112 must
be held to have been substantially complied with.
We believe and so hold that petitioner did not
waive his right to a preliminary investigation. 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. In the instant case, petitioner Go
had vigorously insisted on his right to preliminary
investigation before his arraignment. We do not
believe that by posting bail, petitioner had
waived his right to preliminary investigation.
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.
4. ID.; ID.; ID.; ID.; A SUBSTANTIVE RIGHT
AND A COMPONENT PART OF DUE PROCESS.
While the right to a preliminary investigation is
statutory rather than constitutional in its
fundament, since it has in fact been established
by statute, it is a component part of due process
in criminal justice. The right to have a preliminary
investigation conducted before being bound over
to trial for a criminal offense and hence formally
at risk of incarceration or some other penalty, is
not a mere formal or technical right; it is a
substantive right. 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 of the full measure of his
right to due process.
5. ID.; ID.; FAILURE TO ACCORD
PRELIMINARY INVESTIGATION DOES NOT
IMPAIR VALIDITY OF INFORMATION FILED.
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
54 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
information for murder nor affect the jurisdiction
of the trial court.
6. ID.; ID.; ACCUSED ENTITLED TO
PRELIMINARY INVESTIGATION EVEN THOUGH
TRIAL ON THE MERITS HAS ALREADY BEGAN.
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. The constitutional point is that
petitioner was not accorded what he was entitled
to by way of procedural due process. 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 and 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.
7. ID.; ID.; ACCUSED ENTITLED TO BE
RELEASED ON BAIL AS A MATTER OF RIGHT.
In respect of the matter of bail, 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. 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.
8. ID.; ID.; RELIANCE ON THE CASE OF UMIL
v. RAMOS, MISPLACED; OFFENSE
COMMITTED NOT CONSIDERED A
"CONTINUING CRIME." The reliance of both
petitioner and the Solicitor General upon Umil v.
Ramos (G.R. No. 81567, promulgated 3 October
1991) 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 (14) 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 Peoples
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."
9. CONSTITUTIONAL LAW; STATE SHOULD
REAFFIRM ITS OBLIGATION TO RESPECT THE
RIGHTS AND LIBERTIES OF ITS
CONSTITUENTS; TO ACCORD AN ACCUSED
HIS RIGHT TO A PRELIMINARY
INVESTIGATION AND TO BAIL IN CASE AT
BAR, NOT AN IDLE CEREMONY. To reach any
other conclusion 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.
CRUZ, J., concurring:
1. REMEDIAL LAW; CRIMINAL PROCEDURE;
STATUTORY RIGHTS OF ACCUSED TO
PROCEDURAL DUE PROCESS VITIATED IN
CASE AT BAR. Petitioner had from the start
demanded a preliminary investigation and that
his counsel has reluctantly participated in the
trial only because the court threatened to replace
him with a counsel de oficio if he did not. Under
these circumstances, I am convinced that there
was no waiver. The petitioner was virtually
compelled to go to trial. Such compulsion and the
unjustified denial of a clear statutory right of the
petitioner vitiated the proceedings as violative of
procedural due process.
GUTIERREZ, JR., J., concurring:
1. JUDICIAL ETHICS; COURTS; IMPORTANCE
OF FOLLOWING THE RULES EMPHASIZED.
The need for a trial court to follow the Rules and
to be fair, impartial, and persistent in getting the
true facts of a case is present in all cases but it is
particularly important if the accused is indigent;
more so, if he is one of those unfortunates who
seem to spend more time behind bars than
outside. Unlike the accused in this case who
enjoys the assistance of competent counsel, a
poor defendant convicted by wide and
unfavorable media coverage may be presumed
guilty before trial and be unable to defend
himself properly. Hence, the importance of the
court always following the Rules.
GRIO-AQUINO, J., dissenting:
1. REMEDIAL LAW; CRIMINAL PROCEDURE;
PRELIMINARY INVESTIGATION, NO LONGER
NEEDED; RETURN OF CASE TO THE
PROSECUTOR, SUPEREROGATORY. I do not
believe that there is still need to conduct a
55 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
preliminary investigation the sole purpose of
which would be to ascertain if there is sufficient
ground to believe that a crime was committed
(which the petitioner does not dispute) and that
he (the petitioner) is probably guilty thereof
(which the prosecutor, by filing the information
against him, presumably believed to be so). In
the present stage of the presentation of the
prosecution's evidence, to return the case to the
Prosecutor to conduct a preliminary investigation
under Rule 112 of the 1985 Rules on Criminal
Procedure would be supererogatory.
2. ID.; ID.; RIGHT TO PRELIMINARY
INVESTIGATION, NOT A CONSTITUTIONAL
RIGHT. It should be remembered that as
important as is the right of the accused to a
preliminary investigation, it is not a constitutional
right. Its absence is not a ground to quash the
information (Doromal vs. Sandiganbayan, 177
SCRA 354). It does not affect the court's
jurisdiction, nor impair the validity of the
information (Rodis vs. Sandiganbayan, 166 SCRA
618), nor constitute an infringement of the right
of the accused to confront witnesses (Bustos vs.
Lucero, 81 Phil. 640).
3. ID.; ID.; HEARING OF APPLICATION FOR
BAIL; SHOULD NOT BE SUSPENDED AND
SHOULD NOT BE SUBORDINATED TO THE
PRELIMINARY INVESTIGATION OF THE
CHARGE. The court's hearing of the
application for bail should not be subordinated to
the preliminary investigation of the charge. The
hearing should not be suspended, but should be
allowed to proceed for it will accomplish a double
purpose. The parties will have an opportunity to
show not only: (a) whether or not there is
probable cause to believe that the petitioner
killed Eldon Maguan, but more importantly (b)
whether or not the evidence of his guilt is strong.
The judge's determination that the evidence of
his guilt is strong would naturally foreclose the
need for a preliminary investigation to ascertain
the probability of his guilt. The bail hearing may
not be suspended because upon the filing of an
application for bail by one accused of a capital
offense, "the judge is under a legal obligation to
receive evidence with the view of determining
whether evidence of guilt is so strong as to
warrant denial of bond."
4. ID.; ID.; ABOLITION OF DEATH PENALTY
DID NOT MAKE THE RIGHT TO BAIL
ABSOLUTE; ACCUSED MAY NOT BE
RELEASED PENDING HEARING OF PETITION
FOR BAIL. The abolition of the death penalty
did not make the right to bail absolute, for
persons charged with offenses punishable by
reclusion perpetua, when evidence of guilt is
strong, are not bailable (Sec. 3, Art. III, 1987
Constitution). In People vs. Dacudao, 170 SCRA
489, we called down the trial court for having
granted the motion for bail in a murder case
without any hearing and without giving the
prosecution an opportunity to comment or file
objections thereto. Similarly, this Court held in
People vs. Bocar, 27 SCRA 512: ". . . due process
also demands that in the matter of bail the
prosecution should be afforded full opportunity to
present proof of the guilt of the accused. Thus, if
it were true that the prosecution in this case was
deprived of the right to present its evidence
against the bail petition, or that the order
granting such petition was issued upon
incomplete evidence, then the issuance of the
order would really constitute abuse of discretion
that would call for the remedy of certiorari." The
petitioner may not be released pending the
hearing of his petition for bail for it would be
incongruous to grant bail to one who is not in the
custody of the law (Feliciano vs. Pasicolan, 2
SCRA 888).
5. ID.; ID.; TERM "ARREST," CONSTRUED.
Arrest is the taking of a person into custody in
order that he may be bound to answer for the
commission of an offense (Sec. 1, Rule 113, Rules
of Court). An arrest is made by an actual restraint
of the person to be arrested, or by his submission
to the custody of the person making the arrest
(Sec. 2, Rule 113, Rules of Court). When Go
walked into the San Juan Police Station on July 8,
1991, and placed himself at the disposal of the
police authorities who clamped him in jail after he
was identified by an eyewitness as the person
who shot Maguan, he was actually and effectively
arrested. His filing of a petition to be released on
bail was a waiver of any irregularity attending his
arrest and estops him from questioning its
validity (Callanta vs. Villanueva, 77 SCRA 377;
Bagcal vs. Villaraza, 120 SCRA 525).
DECISION
FELICIANO, J p:
According to the findings of the San Juan Police in
their Investigation Report, 1 on 2 July 1991, Eldon
Maguan was driving his car along Wilson St., San
Juan, Metro Manila, heading towards P. Guevarra
St. Petitioner entered Wilson St., where it is a
one-way street and started travelling in the
opposite or "wrong" direction. At the corner of
Wilson and J. Abad Santos Sts., petitioner's and
Maguan's cars nearly bumped each other.
Petitioner alighted from his car, walked over and
shot Maguan inside his car. Petitioner then
boarded his car and left the scene. A security
guard at a nearby restaurant was able to take
down petitioner's car plate number. The police
arrived shortly thereafter at the scene of the
shooting and there retrieved an empty shell and
one round of live ammunition for a 9mm caliber
pistol. Verification at the Land Transportation
Office showed that the car was registered to one
Elsa Ang Go.
The following day, the police returned to the
scene of the shooting to find out where the
suspect had come from; they were informed that
petitioner had dined at Cravings Bake Shop
shortly before the shooting. The police obtained a
facsimile or impression of the credit card used by
petitioner from the cashier of the bake shop. The
security guard of the bake shop was shown a
picture of petitioner and he positively identified
him as the same person who had shot Maguan.
Having established that the assailant was
probably the petitioner, the police launched a
manhunt for petitioner.
On 8 July 1991, petitioner presented himself
before the San Juan Police Station to verify news
reports that he was being hunted by the police;
he was accompanied by two (2) lawyers. The
police forthwith detained him. An eyewitness to
the shooting, who was at the police station at
56 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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). prcd
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. LLphil
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 respondents' 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
motion had become moot and academic.
On 19 September 1991, trial of the criminal case
commenced and the prosecution presented its
first witness.
57 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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 held 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. LLphil
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 warrantless 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 warrantless 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 (14)
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 Peoples 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 warrantless
"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 a
warrant, arrest a person:
(a) When, in his presence, the person to be
created has committed, is actually committing, or
is attempting to commit an offense;
(b) When an offense has in fact just been
committed, and he has personal knowledge of
facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or
temporarily confined while his case is pending, or
has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b)
hereof, the person arrested without a warrant
58 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
shall be forthwith delivered to the nearest police
station or jail, and he shall be proceeded against
in accordance with Rule 112, Section 7."
Petitioner's "arrest" took place six (6) days after
the shooting of Maguan. The "arresting" officers
obviously were not present, within the meaning of
Section 5(a), at the time petitioner had allegedly
shot Maguan. Neither could the "arrest" effected
six (6) days after the shooting be reasonably
regarded as effected "when [the shooting had] in
fact just been committed" within the meaning of
Section 5 (b). Moreover, none of the "arresting"
officers had any "personal knowledge" of facts
indicating that petitioner was the gunman who
had shot Maguan. The information upon which
the police acted had been derived from
statements made by alleged eyewitnesses to the
shooting one stated that petitioner was the
gunman; another was able to take down the
alleged gunman's car's plate number which
turned out to be registered in petitioner's wife's
name. That information did not, however,
constitute "personal knowledge." 18
It is thus clear to the Court that there was no
lawful warrantless arrest of petitioner within the
meaning of Section 5 of Rule 113. It is clear too
that Section 7 of Rule 112, which provides:
"Sec. 7. When accused lawfully arrested without
warrant. When a person is lawfully arrested
without a warrant for an offense cognizable by
the Regional Trial Court the complaint or
information may be filed by the offended party,
peace officer or fiscal without a preliminary
investigation having been first conducted, on the
basis of the affidavit of the offended party or
arresting office or person.
However, before the filing of such complaint or
information, the person arrested may ask for a
preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the
Revised Penal Code, as amended, with the
assistance of a lawyer and in case of non-
availability of a lawyer, a responsible person of
his choice. Notwithstanding such waiver, he may
apply for bail as provided in the corresponding
rule and the investigation must be terminated
within fifteen (15) days from its inception. Cdpr
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."
(Underscoring supplied).
is also not applicable. Indeed, petitioner was not
arrested at all. When he walked into the 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
proceeded under the erroneous supposition that
Section 7 of Rule 112 was applicable and required
petitioner to waive the provisions of Article 125 of
the Revised Penal Code as a condition for
carrying out a preliminary investigation. This was
substantive error, for petitioner was entitled to a
preliminary investigation and that right should
have been accorded him without any conditions.
Moreover, since petitioner had not been arrested;
with or without a warrant, he was also entitled to
be released forthwith subject only to his
appearing at the preliminary investigation.
Turning to the second issue of whether or not
petitioner had waived his right to preliminary
investigation, we note that petitioner had from
the very beginning demanded that a preliminary
investigation be conducted. As earlier pointed
out, on the same day that the information for
murder was filed with the Regional Trial Court.
Petitioner filed with the prosecutor an omnibus
motion for immediate release and preliminary
investigation. The Solicitor General contends that
omnibus motion should have been filed with the
trial court and not with the Prosecutor, and that
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 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 quasi
judicial 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
59 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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, underscoring supplied).
Nonetheless, since petitioner in his omnibus
motion was asking for preliminary investigation
and not for a reinvestigation (Crespo v. Mogul
involved a re-investigation), and since the
Prosecutor himself did file with the trial court, on
the 5th day after filing the information for
murder, a motion for leave to conduct preliminary
investigation (attaching to his motion a copy of
petitioner's omnibus motion), we conclude that
petitioner's omnibus motion was in effect filed
with the trial court. What was crystal clear was
that petitioner did ask for a preliminary
investigation on the very day that the information
was filed without such preliminary investigation,
and that the trial court was five (5) days later
apprised of the desire of the petitioner for such
preliminary investigation. Finally, the trial court
did in fact grant the Prosecutor's prayer for leave
to conduct preliminary investigation. Thus, even
on the (mistaken) supposition apparently made
by the Prosecutor that Section 7 of Rule 112 of
the Revised Court was applicable, the 5-day
reglementary period in Section 7, Rule 112 must
be held to have been substantially complied with.
LexLib
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. 20 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
of 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.
21 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
mandamus precisely 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, 22 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."
23 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. 24
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. 25 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. 26 Petitioner was forced
60 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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 and 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. 27 So energetic and determined
were petitioner's counsel's protest and objection
that an obviously angered court and prosecutor
dared him to withdraw or walkout, promising to
replace him with counsel de oficio. During the
trial, just 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 or record his "continuing objection." 28
Petitioner had promptly gone to the appellate
court on certiorari and prohibition to challenge
the lawfulness of the procedure he was being
forced to undergo and the lawfulness of his
detention. 29 If he did not walkout 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 conclusion 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.
Narvasa, C.J., Bidin, Medialdea, Romero and
Nocon, JJ., concur.
(Posadas y Zamora v. Court of Appeals, G.R.
No. 89139, August 02, 1990)
FIRST DIVISION
[G.R. No. 89139. August 2, 1990.]
ROMEO POSADAS y ZAMORA, petitioner, vs.
THE HONORABLE COURT OF APPEALS and
THE PEOPLE OF THE PHILIPPINES, respondents.
Rudy G. Agravante for petitioner.
SYLLABUS
1. REMEDIAL LAW; REVISED RULES ON
CRIMINAL PROCEDURE; ARREST WITHOUT
WARRANT; SEC. 5, RULE 113 THEREOF.
From the foregoing provision of law it is clear that
an arrest without a warrant may be effected by a
peace officer or private person, among others,
when in his presence the person to be arrested
has committed, is actually committing, or is
attempting to commit an offense; or when an
offense has in fact just been committed, and he
has personal knowledge of the facts indicating
that the person arrested has committed it.
2. CONSTITUTIONAL LAW; BILL OF RIGHTS;
WARRANTLESS SEARCH AND SEIZURE; NOT
INCIDENTAL TO A LAWFUL ARREST IN THE
CASE AT BAR. The Solicitor General, in
justifying the warrantless search and seizure of
the buri bag then carried by the petitioner,
argued that when the two policemen approached
the petitioner, he was actually committing or had
just committed the offense of illegal possession of
firearms and ammunitions in the presence of the
police officers and consequently the search and
seizure of the contraband was incidental to the
lawful arrest in accordance with Section 12, Rule
126 of the 1985 Rules on Criminal Procedure. We
disagree. At the time the peace officers in this
case identified themselves and apprehended the
petitioner as he attempted to flee they did not
know that he had committed, or was actually
committing the offense of illegal possession of
61 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
firearms and ammunitions. They just suspected
that he was hiding something in the buri bag.
They did now know what its contents were. The
said circumstances did not justify an arrest
without a warrant.
3. ID.; ID.; ID.; CAN BE VALIDLY EFFECTED
WITHOUT BEING PRECEDED BY AN ARREST;
CASE AT BAR. However, there are many
instances where a warrant and seizure can be
effected without necessarily being preceded by
an arrest, foremost of which is the "stop and
search" without a search warrant at military or
police checkpoints, the constitutionality or
validity of which has been upheld by this Court in
Valmonte vs. de Villa. As between a warrantless
search and seizure conducted at military or police
checkpoints and the search thereat in the case at
bar, there is no question that, indeed, the latter is
more reasonable considering that unlike in the
former, it was effected on the basis of a probable
cause. The probable cause is that when the
petitioner acted suspiciously and attempted to
flee with the buri bag there was a probable cause
that he was concealing something illegal in the
bag and it was the right and duty of the police
officers to inspect the same. It is too much indeed
to require the police officers to search the bag in
the possession of the petitioner only after they
shall have obtained a search warrant for the
purpose. Such an exercise may prove to be
useless, futile and much too late.
DECISION
GANCAYCO, J p:
The validity of a warrantless search on the person
of petitioner is put into issue in this case.
On October 16, 1986 at about 10:00 o'clock in the
morning Pat. Ursicio Ungab and Pat. Umbra
Umpar, both members of the Integrated National
Police (INP) of the Davao Metrodiscom assigned
with the Intelligence Task Force, were conducting
a surveillance along Magallanes Street, Davao
City. While they were within the premises of the
Rizal Memorial Colleges they spotted petitioner
carrying a "buri" bag and they noticed him to be
acting suspiciously.
They approached the petitioner and identified
themselves as members of the INP. Petitioner
attempted to flee but his attempt to get away
was thwarted by the two notwithstanding his
resistance.
They then checked the "buri" bag of the
petitioner where they found one (1) caliber .38
Smith & Wesson revolver with Serial No. 770196
1 two (2) rounds of live ammunition for a .38
caliber gun, 2 a smoke (tear gas) grenade 3 a and
two (2) live ammunitions for a .22 caliber gun. 4
They brought the petitioner to the police station
for further investigation. In the course of the
same, the petitioner was asked to show the
necessary license or authority to possess firearms
and ammunitions found in his possession but he
failed to do so. He was then taken to the Davao
Metrodiscom office and the prohibited articles
recovered from him were indorsed to M/Sgt.
Didoy, the officer then on duty. He was
prosecuted for illegal possession of firearms and
ammunitions in the Regional Trial Court of Davao
City wherein after a plea of not guilty and trial on
the merits a decision was rendered on October 8,
1987 finding petitioner guilty of the offense
charged as follows:
"WHEREFORE, in view of all the foregoing, this
Court finds the accused guilty beyond reasonable
doubt of the offense charged.
It appearing that the accused was below eighteen
(18) years old at the time of the commission of
the offense (Art. 68, par. 2), he is hereby
sentenced to an indeterminate penalty ranging
from TEN (10) YEARS and ONE (1) DAY of prision
mayor to TWELVE (12) Years, FIVE (5) months and
Eleven (11) days of Reclusion Temporal, and to
pay the costs.
The firearm, ammunitions and smoke grenade are
forfeited in favor of the government and the
Branch Clerk of Court is hereby directed to turn
over said items to the Chief, Davao Metrodiscom,
Davao City." 5
Not satisfied therewith the petitioner interposed
an appeal to the Court of Appeals wherein in due
course a decision was rendered on February 23,
1989 affirming in toto the appealed decision with
costs against the petitioner. 6
Hence, the herein petition for review, the main
thrust of which is that there being no lawful arrest
or search and seizure, the items which were
confiscated from the possession of the petitioner
are inadmissible in evidence against him. LexLib
The Solicitor General, in justifying the warrantless
search of the buri bag then carried by the
petitioner, argues that under Section 12, Rule 126
of the Rules of Court a person lawfully arrested
may be searched for dangerous weapons or
anything used as proof of a commission of an
offense without a search warrant. It is further
alleged that the arrest without a warrant of the
petitioner was lawful under the circumstances.
Section 5, Rule 113 of the 1985 Rules on Criminal
Procedure provides as follows:
"SEC. 5. Arrest without warrant; when lawful. A
peace officer or a private person may, without a
warrant, arrest a person:
(a) When in his presence, the person to be
arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has in fact just been
committed, and he has personal knowledge of
facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or
temporarily confined while his case is pending, or
has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b)
hereof, the person arrested without a warrant
shall be forthwith delivered to the nearest police
station or jail, and he shall be proceeded against
in accordance with Rule 112, Section 7. (6a, 17a)"
62 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
From the foregoing provision of law it is clear that
an arrest without a warrant may be effected by a
peace officer or private person, among others,
when in his presence the person to be arrested
has committed, is actually committing, or is
attempting to commit an offense; or when an
offense has in fact just been committed, and he
has personal knowledge of the facts indicating
that the person arrested has committed it.
The Solicitor General argues that when the two
policemen approached the petitioner, he was
actually committing or had just committed the
offense of illegal possession of firearms and
ammunitions in the presence of the police officers
and consequently the search and seizure of the
contraband was incidental to the lawful arrest in
accordance with Section 12, Rule 126 of the 1985
Rules on Criminal Procedure. We disagree.
At the time the peace officers in this case
identified themselves and apprehended the
petitioner as he attempted to flee they did not
know that he had committed, or was actually
committing the offense of illegal possession of
firearms and ammunitions. They just suspected
that he was hiding something in the buri bag.
They did now know what its contents were. The
said circumstances did not justify an arrest
without a warrant. llcd
However, there are many instances where a
warrant and seizure can be effected without
necessarily being preceded by an arrest, foremost
of which is the "stop and search" without a search
warrant at military or police checkpoints, the
constitutionality or validity of which has been
upheld by this Court in Valmonte vs. de Villa, 7 as
follows:
"Petitioner Valmonte's general allegation to the
effect that he had been stopped and searched
without a search warrant by the military manning
the checkpoints, without more, i.e., without
stating the details of the incidents which amount
to a violation of his right against unlawful search
and seizure, is not sufficient to enable the Court
to determine whether there was a violation of
Valmonte's right against unlawful search and
seizure. Not all searches and seizures are
prohibited. Those which are reasonable are not
forbidden. A reasonable search is not to be
determined by any fixed formula but is to be
resolved according to the facts of each case.
Where, for example, the officer merely draws
aside the curtain of a vacant vehicle which is
parked on the public fair grounds, or simply looks
into a vehicle or flashes a light therein, these do
not constitute unreasonable search.
The setting up of the questioned checkpoints in
Valenzuela (and probably in other areas) may be
considered as a security measure to enable the
NCRDC to pursue its mission of establishing
effective territorial defense and maintaining
peace and order for the benefit of the public.
Checkpoints may also be regarded as measures
to thwart plots to destabilize the government in
the interest of public security. In this connection,
the Court may take judicial notice of the shift to
urban centers and their suburbs of the insurgency
movement, so clearly reflected in the increased
killings in cities of police and military men by NPA
"sparrow units," not to mention the abundance of
unlicensed firearms and the alarming rise in
lawlessness and violence in such urban centers,
not all of which are reported in media, most likely
brought about by deteriorating economic
conditions which all sum up to what one can
rightly consider, at the very least, as abnormal
times. Between the inherent right of the state to
protect its existence and promote public welfare
and an individual's right against a warrantless
search which is however reasonably conducted,
the former should prevail.
True, the manning of checkpoints by the military
is susceptible of abuse by the men in uniform in
the same manner that all governmental power is
susceptible of abuse. But, at the cost of
occasional inconvenience, discomfort and even
irritation to the citizen, the checkpoints during
these abnormal times, when conducted within
reasonable limits, are part of the price we pay for
an orderly society and a peaceful community.
(Emphasis supplied)."
Thus, as between a warrantless search and
seizure conducted at military or police
checkpoints and the search thereat in the case at
bar, there is no question that, indeed, the latter is
more reasonable considering that unlike in the
former, it was effected on the basis of a probable
cause. The probable cause is that when the
petitioner acted suspiciously and attempted to
flee with the buri bag there was a probable cause
that he was concealing something illegal in the
bag and it was the right and duty of the police
officers to inspect the same.
It is too much indeed to require the police officers
to search the bag in the possession of the
petitioner only after they shall have obtained a
search warrant for the purpose. Such an exercise
may prove to be useless, futile and much too
late.
In People vs. CFI of Rizal, 8 this Court held as
follows:
". . . In the ordinary cases where warrant is
indispensably necessary, the mechanics
prescribed by the Constitution and reiterated in
the Rules of Court must be followed and satisfied.
But We need not argue that there are exceptions.
Thus in the extraordinary events where warrant is
not necessary to effect a valid search or seizure,
or when the latter cannot be performed except
without warrant, what constitutes a reasonable or
unreasonable search or seizure becomes purely a
judicial question, determinable from the
uniqueness of the circumstances involved,
including the purpose of the search or seizure,
the presence or absence of probable cause, the
manner in which the search and seizure was
made, the place or thing searched and the
character of the articles procured."
The Court reproduces with approval the following
disquisition of the Solicitor General: cdphil
63 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
"The assailed search and seizure may still be
justified as akin to a "stop and frisk" situation
whose object is either to determine the identity of
a suspicious individual or to maintain the status
quo momentarily while the police officer seeks to
obtain more information. This is illustrated in the
case of Terry vs. Ohio, 392 U.S. 1 (1968). In this
case, two men repeatedly walked past a store
window and returned to a spot where they
apparently conferred with a third man. This
aroused the suspicion of a police officer. To the
experienced officer, the behavior of the men
indicated that they were sizing up the store for an
armed robbery. When the police officer
approached the men and asked them for their
names, they mumbled a reply. Whereupon, the
officer grabbed one of them, spun him around
and frisked him. Finding a concealed weapon in
one, he did the same to the other two and found
another weapon. In the prosecution for the
offense of carrying a concealed weapon, the
defense of illegal search and seizure was put up.
The United States Supreme Court held that "a
police officer may in appropriate circumstances
and in an appropriate manner approach a person
for the purpose of investigating possible criminal
behavior even though there is no probable cause
to make an arrest." In such a situation, it is
reasonable for an officer rather than simply to
shrug his shoulder and allow a crime to occur, to
stop a suspicious individual briefly in order to
determine his identity or maintain the status quo
while obtaining more information. . . .
Clearly, the search in the case at bar can be
sustained under the exceptions heretofore
discussed, and hence, the constitutional
guarantee against unreasonable searches and
seizures has not been violated." 9
WHEREFORE, the petition is DENIED with costs
against petitioner.
SO ORDERED.
Narvasa, Cruz, Grio-Aquino and Medialdea, JJ.,
concur.
(People v. Mengote y Tejas, G.R. No. 87059,
June 22, 1992)
FIRST DIVISION
[G.R. No. 87059. June 22, 1992.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. ROGELIO MENGOTE Y TEJAS,
accused-appellant.
The Solicitor General for plaintiff-appellee.
Violeta C. Drilon counsel de oficio for accused-
appellant.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS;
RIGHT AGAINST ILLEGAL SEARCH AND
SEIZURE; EVIDENCE OBTAINED IN VIOLATION
THEREOF; EFFECT; CASE AT BAR. It is
submitted in the Appellant's Brief that the
revolver should not have been admitted in
evidence because of its illegal seizure, no warrant
therefor having been previously obtained. Neither
could it have been seized as an incident of a
lawful arrest because the arrest of Mengote was
itself unlawful, having been also effected without
a warrant. The defense also contends that the
testimony regarding the alleged robbery in
Danganan's house was irrelevant and should also
have been disregarded by the trial court. There is
no question that evidence obtained as a result of
an illegal search or seizure is inadmissible in any
proceeding for any purpose. That is the absolute
prohibition of Article III, Section 3(2), of the
Constitution. This is the celebrated exclusionary
rule based on the justification given by Judge
Learned Hand that "only in case the prosecution
which itself controls the seizing officials, knows
that it cannot profit by their wrong will the wrong
be repressed."
2. REMEDIAL LAW; CRIMINAL PROCEDURE;
ARREST WITHOUT WARRANT; WHEN
LAWFUL; REQUISITES; NOT ESTABLISHED IN
CASE AT BAR. The Solicitor General, while
conceding the rule, maintains that it is not
applicable in the case at bar. His reason is that
the arrest and search of Mengote and the seizure
of the revolver from him were lawful under Rule
113, Section 5, of the Rules of Court. We have
carefully examined the wording of this rule and
cannot see how we can agree with the
prosecution. Par. (c) of Section 5 is obviously
inapplicable as Mengote was not an escapee from
a penal institution when he was arrested. We
therefore confine ourselves to determining the
lawfulness of his arrest under either Par. (a) or
Par. (b) of this section. Par. (a) requires that the
person be arrested (1) after he has committed or
while he is actually committing or is at least
attempting to commit an offense, (2) in the
presence of the arresting officer. These
requirements have not been established in the
case at bar. At the time of the arrest in question,
the accused-appellant was merely "looking from
side to side" and "holding his abdomen,"
according to the arresting officers themselves.
There was apparently no offense that had just
been committed or was being actually committed
or at least being attempted by Mengote in their
presence. Par. (b) is no less applicable because its
no less stringent requirements have also not
been satisfied. The prosecution has not shown
that at the time of Mengote's arrest an offense
had in fact just been committed and that the
arresting officers had personal knowledge of facts
indicating that Mengote had committed it. All
they had was hearsay information from the
telephone caller, and about a crime that had yet
to be committed.
DECISION
CRUZ, J p:
Accused-appellant Rogelio Mengote was
convicted of illegal possession of firearms on the
strength mainly of the stolen pistol found on his
person at the moment of his warrantless arrest. In
this appeal, he pleads that the weapon was not
admissible as evidence against him because it
had been illegally seized and was therefore the
fruit of the poisonous tree. The Government
disagrees. It insists that the revolver was validly
received in evidence by the trial judge because
its seizure was incidental to an arrest that was
doubtless lawful even if admittedly without
warrant.
The incident occurred shortly before noon of
August 8, 1987, after the Western Police District
received a telephone call from an informer that
64 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
there were three suspicious-looking persons at
the corner of Juan Luna and North Bay Boulevard
in Tondo, Manila. A surveillance team of
plainclothesmen was forthwith dispatched to the
place. As later narrated at the trial by Patrolmen
Rolando Mercado and Alberto Juan, 1 they there
saw two men "looking from side to side," one of
whom was holding his abdomen. They
approached these persons and identified
themselves as policemen, whereupon the two
tried to run away but were unable to escape
because the other lawmen had surrounded them.
The suspects were then searched. One of them,
who turned out to be the accused-appellant, was
found with a .38 caliber Smith and Wesson
revolver with six live bullets in the chamber. His
companion, later identified as Nicanor Morellos,
had a fan knife secreted in his front right pants
pocket. The weapons were taken from them.
Mengote and Morellos were then turned over to
police headquarters for investigation by the
Intelligence Division. LLpr
On August 11, 1987, the following information
was filed against the accused-appellant before
the Regional Trial Court of Manila:
The undersigned accuses ROGELIO MENGOTE y
TEJAS of a violation of Presidential Decree No.
1866, committed as follows:
That on or about August 8, 1987, in the City of
Manila, Philippines, the said accused did then and
there wilfully, unlawfully and knowingly have in
his possession and under his custody and control
a firearm, to wit:
one (1) cal. 38 "S & W" bearing
Serial No. 8720-T.
without first having secured the necessary license
or permit therefor from the proper authorities.
Besides the police officers, one other witness
presented by the prosecution was Rigoberto
Danganan, who identified the subject weapon as
among the articles stolen from him during the
robbery in his house in Malabon on June 13, 1987.
He pointed to Mengote as one of the robbers. He
had duly reported the robbery to the police,
indicating the articles stolen from him, including
the revolver. 2 For his part, Mengote made no
effort to prove that he owned the firearm or that
he was licensed to possess it and claimed instead
that the weapon had been "planted" on him at
the time of his arrest. 3
The gun, together with the live bullets and its
holster, were offered as Exhibits A, B and C and
admitted over the objection of the defense. As
previously stated, the weapon was the principal
evidence that led to Mengote's conviction for
violation of P.D. 1866. He was sentenced to
reclusion perpetua. 4
It is submitted in the Appellant's Brief that the
revolver should not have been admitted in
evidence because of its illegal seizure, no warrant
therefor having been previously obtained. Neither
could it have been seized as an incident of a
lawful arrest because the arrest of Mengote was
itself unlawful, having been also effected without
a warrant. The defense also contends that the
testimony regarding the alleged robbery in
Danganan's house was irrelevant and should also
have been disregarded by the trial court.
The following are the pertinent provision of the
Bill of Rights:
Sec. 2. The right of the people to be secure in
their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the persons or things to be seized.
Sec. 3 (1). The privacy of communication and
correspondence shall be inviolable except upon
lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or
the preceding section shall be inadmissible for
any purpose in any proceeding.
There is no question that evidence obtained as a
result of an illegal search or seizure is
inadmissible in any proceeding for any purpose.
That is the absolute prohibition of Article III,
Section 3(2), of the Constitution. This is the
celebrated exclusionary rule based on the
justification given by Judge Learned Hand that
"only in case the prosecution, which itself controls
the seizing officials, knows that it cannot profit by
their wrong will the wrong be repressed."
The Solicitor General, while conceding the rule,
maintains that it is not applicable in the case at
bar. His reason is that the arrest and search of
Mengote and the seizure of the revolver from him
were lawful under Rule 113, Section 5, of the
Rules of Court reading as follows:
Sec. 5. Arrest without warrant; when lawful. A
peace officer or private person may without a
warrant, arrest a person: Cdpr
(a) When, in his presence, the person to be
arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has in fact just been
committed, and he has personal knowledge of
facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or
temporarily confined while his case is pending, or
has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b)
hereof, the person arrested without a warrant
shall be forthwith delivered to the nearest police
station or jail, and he shall be proceeded against
in accordance with Rule 112, Section 7.
65 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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 had been
apprehended at an ungodly hour and in a place
where he had no reason to be, like a darkened
alley at 3 o'clock in the morning. But he was
arrested at 11:30 in the morning and in a
crowded street shortly after alighting from a
passenger jeep with his companion. He was not
skulking in the shadows but walking in the clear
light of day. There was nothing clandestine about
his being on that street at that busy hour in the
blaze of the noonday sun.
On the other hand, there could have been a
number of reasons, all of them innocent, why his
eyes were darting from side to side and he was
holding his abdomen. If they excited suspicion in
the minds of the arresting officers, as the
prosecution suggests, it has nevertheless not
been shown what their suspicion was all about. In
fact, the policemen themselves testified that they
were dispatched to that place only because of the
telephone call from the informer that there were
"suspicious-looking" persons in that vicinity who
were about to commit a robbery at North Bay
Boulevard. The caller did not explain why he
thought the men looked suspicious nor did he
elaborate on the impending crime. LLpr
In the recent case of People v. Malmstedt, 5 the
Court sustained the warrantless arrest of the
accused because there was a bulge in his waist
that excited the suspicion of the arresting officer
and, upon inspection, turned out to be a pouch
containing hashish. In People v. Claudio, 6 the
accused boarded a bus and placed the buri bag
she was carrying behind the seat of the arresting
officer while she herself sat in the seat before
him. His suspicion aroused, he surreptitiously
examined the bag, which he found to contain
marijuana. He then and there made the
warrantless arrest and seizure that we
subsequently upheld on the ground that probable
cause had been sufficiently established.
The case before us is different because there was
nothing to support the arresting officers'
suspicion other than Mengote's darting eyes and
his hand on his abdomen. By no stretch of the
imagination could it have been inferred from
these acts that an offense had just been
committed, or was actually being committed, or
was at least being attempted in their presence.
This case is similar to People v. Aminnudin, 7
where the Court held that the warrantless arrest
of the accused was unconstitutional. This was
effected while he was coming down a vessel, to
all appearances no less innocent than the other
disembarking passengers. He had not committed
nor was he actually committing or attempting to
commit an offense in the presence of the
arresting officers. He was not even acting
suspiciously. In short, there was no probable
cause that, as the prosecution incorrectly
suggested, dispensed with the constitutional
requirement of a warrant.
Par. (b) is no less applicable because its no less
stringent requirements have also not been
satisfied. The prosecution has not shown that at
the time of Mengote's arrest an offense had in
fact just been committed and that the arresting
officers had personal knowledge of facts
indicating that Mengote had committed it. All
they had was hearsay information from the
telephone caller, and about a crime that had yet
to be committed.
The truth is that they did not know then what
offense, if at all, had been committed and neither
were they aware of the participation therein of
the accused-appellant. It was only later, after
Danganan had appeared at the police
headquarters, that they learned of the robbery in
his house and of Mengote's supposed
involvement therein. 8 As for the illegal
possession or the firearm found on Mengote's
person, the policemen discovered this only after
he had been searched and the investigation
conducted later revealed that he was not its
owners nor was he licensed to possess it.
Before these events, the peace officers had no
knowledge even of Mengote' identity, let alone
the fact (or suspicion) that he was unlawfully
carrying a firearm or that he was involved in the
robbery of Danganan's house.
In the landmark case of People v. Burgos, 9 this
Court declared:
66 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
Under Section 6(a) of Rule 113, the officer
arresting a person who has just committed, is
committing, or is about to commit an offense
must have personal knowledge of the fact. The
offense must also be committed in is presence or
within his view. (Sayo v. Chief of Police, 80 Phil.
859). (Emphasis supplied)
xxx xxx xxx
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:
If the arrest was made under Rule 113, Section 5,
of the Rules of Court in connection with a crime
about to be committed, being committed, or just
committed, what was that crime? There is no
allegation in the record of such a justification.
Parenthetically, it may be observed that under
the Revised Rule 113, Section 5(b), the officer
making the arrest must have personal knowledge
of the ground therefor as stressed in the recent
case of People v. Burgos. (Emphasis supplied)
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. LLpr
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.
WHEREFORE, the appealed decision is REVERSED
and SET ASIDE. The accused-appellant is
ACQUITTED and ordered released immediately
unless he is validly detained for other offenses.
No costs.
SO ORDERED.
Grio-Aquino, Medialdea and Bellosillo, JJ
concur.
(Malacat y Mandar v. Court of Appeals, G.R.
No. 123595, December 12, 1997)
EN BANC
[G.R. No. 123595. December 12, 1997.]
SAMMY MALACAT y MANDAR, petitioner, vs.
COURT OF APPEALS, and PEOPLE OF THE
PHILIPPINES, respondents.
Brillantes, Navarro, Jumamil, Arcilla, Escolin and
Martinez Law Offices for petitioner.
SYNOPSIS
In an information filed before the Regional Trial
Court (RTC) of Manila, petitioner was charged with
violating Section 3 of Presidential Decree No.
1866 for keeping, possessing and/or acquiring a
hand grenade, without first securing the
necessary license and permit from the proper
authorities. On arraignment, petitioner, assisted
by counsel de officio, entered a plea of not guilty.
After trial on the merits, the court a quo found
petitioner guilty of the crime of illegal possession
of explosives under the said law and sentenced
him to suffer the penalty of not less than
seventeen years, four months and one day of
reclusion temporal as minimum and not more
than thirty years of reclusion perpetua, as
maximum. Petitioner filed a notice of appeal
indicating that he was appealing to the Supreme
Court. However, the record of the case was
forwarded to the Court of Appeals. In its decision,
the Court of Appeals affirmed the trial court's
decision. Unable to accept conviction, petitioner
filed the instant petition alleging that the
respondent court erred in affirming the findings of
the trial court that the warrantless arrest of
petitioner was valid and legal.
The Supreme Court finds the petition impressed
with merit. For purposes of determining appellate
jurisdiction in criminal cases, the maximum of the
67 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
penalty, and not the minimum, is taken into
account. Since the maximum of the penalty is
reclusion perpetua, the appeal therefrom should
have been to the Court and not the Court of
Appeals. Hence, the challenged decision
immediately fall in jurisdictional grounds.
Additionally, the Court is convinced that the
prosecution failed to establish petitioner's guilt
with moral certainty. First, serious doubts
surrounds the story of police office Yu that a
grenade was found in and seized from petitioner's
possession. Notably, Yu did not identify in court
the grenade he allegedly seized. Second, if
indeed petitioner had a grenade with him and
that two days earlier he was with the group about
to detonate an explosive at Plaza Miranda, it was
then unnatural and against common experience
that petitioner simply stood in Plaza Miranda in
proximity to the police officers. Lastly, even
assuming that petitioner admitted possession of
the grenade during his custodial investigation
police officer Serapio, such admission is
., inadmissible in evidence for it was taken in
palpable violation of Section 12(1) and (3) of
Article III of the Constitution. Verily, the search
conducted on petitioner could not have been one
incidental to a lawful arrest. In view thereof, the
challenged decision of the Court of Appeals is set
aside for lack of jurisdiction and on ground of
reasonable doubt.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE;
APPEAL TO THE SUPREME COURT; FOR
PURPOSES OF DETERMINING APPELLATE
JURISDICTION OF THE SUPREME COURT IN
CRIMINAL CASES, THE MAXIMUM OF THE
PENALTY IMPOSABLE BY LAW IS TAKEN INTO
ACCOUNT AND NOT THE MINIMUM. For
purposes of determining appellate jurisdiction in
criminal cases, the maximum of the penalty, and
not the minimum, is taken into account. Since the
maximum of the penalty is reclusion perpetua,
the appeal therefrom should have been to
Supreme Court, and not the Court of Appeals,
pursuant to Section 9(3) of the Judiciary
Reorganization Act of 1980 (B.P. Blg. 129), in
relation to Section 17 of the Judiciary Act of 1948,
Section 5(2) of Article VIII of the Constitution and
Section 3(c) of Rule 122 of the Rules of Court. The
term life imprisonment as used in Section 9 of
B.P. Blg. 129, the Judiciary Act of 1948, and
Section 3 of Rule 122 must be deemed to include
reclusion perpetua in view of Section 5(2) of
Article VIII of the Constitution.
2. ID.; ID.; RIGHTS OF THE ACCUSED;
PETITIONER'S ADMISSION OF POSSESSION
OF THE GRENADE DURING CUSTODIAL
INVESTIGATION, WITHOUT THE ASSISTANCE
OF COUNSEL, INADMISSIBLE IN EVIDENCE.
Even assuming that petitioner admitted
possession of the grenade during his custodial
investigation by police officer Serapio, such
admission was inadmissible in evidence for it was
taken in palpable violation of Section 12(1) and
(3) of Article III of the Constitution. Serapio
conducted the custodial investigation on
petitioner the day following his arrest. No lawyer
was present and Serapio could not have
requested a lawyer to assist petitioner as no PAO
lawyer was then available. Thus, even if
petitioner consented to the investigation and
waived his rights to remain silent and to counsel,
the waiver was invalid as it was not in writing,
neither was it executed in the presence of
counsel.
3. ID.; ID.; WARRANTLESS ARREST; LACK OF
PERSONAL KNOWLEDGE ON THE PART OF
THE ARRESTING OFFICER OR AN OVERT
PHYSICAL ACT ON THE PART OF THE
ACCUSED, INDICATING THAT THE CRIME HAD
JUST BEEN COMMITTED, OR WAS GOING TO
BE COMMITTED, MAKES THE SEARCH
CONDUCTED ON THE ACCUSED NOT ONE
INCIDENTAL TO A LAWFUL ARREST; CASE AT
BAR. In a search incidental to a lawful arrest,
as the precedent arrest determines the validity of
the incidental search, the legality of the arrest is
questioned in a large majority of these cases,
e.g., whether an arrest was merely used as a
pretext for conducting a search. In this instance,
the law requires that there first be a lawful arrest
before a search can be made the process
cannot be reversed. At bottom, assuming a valid
arrest, the arresting officer may search the
person of the arrestee and the area within which
the latter may reach for a weapon or for evidence
to destroy, and seize any money or property
found which was used in the commission of the
crime, or the fruit of the crime, or that which may
be used as evidence, or which might furnish the
arrestee with the means of escaping or
committing violence. Here, there could have been
no valid in flagrante delicto or hot pursuit arrest
preceding the search in light of the lack of
personal knowledge on the part of Yu, the
arresting officer, or an overt physical act, on the
part of petitioner, indicating that a crime had just
been committed, was being committed or was
going to be committed. Having thus shown the
invalidity of the warrantless arrest in this case,
plainly, the search conducted on petitioner could
not have been one incidental to a lawful arrest.
4. ID.; ID.; ID.; "STOP AND FRISK" AS A
"LIMITED PROTECTIVE SEARCH OF OUTER
CLOTHING FOR WEAPONS"; JUSTIFICATION
FOR AND ALLOWABLE SCOPE THEREOF.
We now proceed to the justification for and
allowable scope of a "stop-and-frisk" as a "limited
protective search of outer clothing for weapons,"
as laid down in Terry, thus: We merely hold today
that where a police officer observes unusual
conduct which leads him reasonably to conclude
in light of his experience that criminal activity
may be afoot and that the persons with whom he
is dealing may be armed and presently
dangerous, where in the course of investigating
this behavior he identifies himself as a policeman
and makes reasonable inquiries, and where
nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own or
others' safety, he is entitled for the protection of
himself and others in the area to conduct a
carefully limited search of the outer clothing of
such persons in an attempt to discover weapons
which might be used to assault him. Such a
search is a reasonable search under the Fourth
Amendment . . . Other notable points of Terry are
that while probable cause is not required to
conduct a "stop and frisk," it nevertheless holds
that mere suspicion or a hunch will not validate a
"stop and frisk." A genuine reason must exist, in
light of the police officer's experience and
68 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
surrounding conditions, to warrant the belief that
the person detained has weapons concealed
about him. Finally, a "stop-and-frisk" serves a
two-fold interest: 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.
PANGANIBAN, J., separate opinion:
1. REMEDIAL LAW; CRIMINAL PROCEDURE;
WARRANTLESS ARRESTS AND SEARCHES;
PROBABLE CAUSE, NEEDED FOR THEIR
VALIDITY. After reviewing previous decisions
on valid warrantless arrests and searches, the
Court underscored in sum that there was need for
facts providing probable cause, such as "the
distinct odor of marijuana, reports about drug
transporting or positive identification by
informers, suspicious behavior, attempt to flee,
[or] failure to produce identification papers" to
justify warrantless arrests and searches. Likewise,
urgency must attend such arrests and searches,
as where motor vehicles are used and there is
great probability that the suspect would get away
before a warrant can be procured. Most important
is that the law enforcers must act immediately on
the information received, suspicions raised or
probable cause established, and should effect the
arrests and searches without any delay.
2. ID.; ID.; ID.; ID.; THE STOP-AND-FRISK
CONDUCTED BY ORDINARY POLICEMEN
AGAINST THE ACCUSED ON THE BASIS THAT
HIS EYES WERE MOVING VERY FAST AND
THERE IS NO INDICATION THAT HE IS HIDING
EXPLOSIVE PARAPHERNALIA, IS ILLEGAL;
CASE AT BAR. As in Manalili, lawmen were on
surveillance in response to information that a
criminal activity could be in the offing at a
specified place. The stark difference, however, is
that in Manalili, the reported activity involved
drug use and the lawmen belonged to the anti-
narcotics group, while in the instant case, the
police on patrol were ordinary law enforcers on
the lookout for possible bombers. In the former,
the law enforcers concerned may be presumed to
possess special knowledge and skill to detect the
physical features exhibited by a current drug
user. Thus, when these specially trained enforcers
saw Manalili with reddish eyes and walking in a
wobbly manner characteristic of a person "high"
on drugs per their experience, and in a known
hangout of drug users, there was sufficient
genuine reason to stop and frisk the suspect. It is
well to emphasize that under different
circumstances such as where the policemen are
not specially-trained, and in common places
where people ordinarily converge, the same
features displayed by a person will not normally
justify a warrantless arrest or search on him. The
case before us presents such a situation. The
policemen merely observed that Malacat's eyes
were moving very fast. They did not notice any
bulges or packets about the bodies of these men
indicating that they might be hiding explosive
paraphernalia. From their outward look, nothing
suggested that they were at the time armed and
dangerous. Hence, there was no justification for a
stop-and-frisk.
3. ID.; ID.; ID.; ID.; ID.; DOCTRINE LAID
DOWN IN PEOPLE VS. MENGOTE, SQUARELY
APPLICABLE IN CASE AT BAR. Bolstering the
invalidity of the arrest and search of Malacat is
People vs. Mengote, another classic on the right
against unreasonable searches and seizures.
Upon receiving a telephone call shortly before
noon from an informer that there were suspicious
looking persons at a certain street corner in
Tondo, Manila, the Western Police District
dispatched a surveillance team to said place.
There they saw two men "looking from side to
side" with one "holding his abdomen." The police
approached them and identified themselves,
whereupon the two tried to flee but failed as
other lawmen surrounded them. The suspects
were searched, and recovered from Mengote was
a fully loaded pistol; from his companion, a fan
knife. The Court ruled that the situation was not
one calling for a lawful warrantless search and
arrest. As the Court, through Mr. Justice Isagani A.
Cruz, succinctly put it: "What offense could
possibly have been suggested by a person
'looking from side to side and 'holding his
abdomen' and in a place not exactly forsaken?
Under our rule in Mengote, petitioner's dubious
act of moving his eyes swiftly from side to side
can in no way justify a stop-and-frisk. To convict a
person on the basis only of his queer behavior
and to sentence him to practically a lifetime in
prison would simply be unfathomable. Nothing
can be more wrong, unjust and inhuman.
DECISION
DAVIDE, JR., J p:
In an Information 1 filed on 30 August 1990, in
Criminal Case No. 90-86748 before the Regional
Trial Court (RTC) of Manila, Branch 5, petitioner
Sammy Malacat y Mandar was charged with
violating Section 3 of Presidential Decree No.
1866, 2 as follows: LLjur
That on or about August 27, 1990, in the City of
Manila, Philippines, the said accused did then and
there willfully, unlawfully and knowingly keep,
possess and/or acquire a hand grenade, without
first securing the necessary license and/or permit
therefor from the proper authorities.
At arraignment 3 on 9 October 1990, petitioner,
assisted by counsel de officio, entered a plea of
not guilty.
At pre-trial on 11 March 1991, petitioner admitted
the existence of Exhibits "A," "A-1," and "A-2," 4
while the prosecution admitted that the police
authorities were not armed with a search warrant
nor warrant of arrest at the time they arrested
petitioner. 5
At trial on the merits, the prosecution presented
the following police officers as its witnesses:
Rodolfo Yu, the arresting officer; Josefino C.
Serapio, the investigating officer; and Orlando
Ramilo, who examined the grenade.
69 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
Rodolfo Yu of the Western Police District,
Metropolitan Police Force of the Integrated
National Police, Police Station No. 3, Quiapo,
Manila, testified that on 27 August 1990, at about
6:30 p.m., in response to bomb threats reported
seven days earlier, he was on foot patrol with
three other police officers (all of them in uniform)
along Quezon Boulevard, Quiapo, Manila, near
the Mercury Drug store at Plaza Miranda. They
chanced upon two groups of Muslim-looking men,
with each group, comprised of three to four men,
posted at opposite sides of the corner of Quezon
Boulevard near the Mercury Drug Store. These
men were acting suspiciously with "[t]their
eyes . . . moving very fast." 6
Yu and his companions positioned themselves at
strategic points and observed both groups for
about thirty minutes. The police officers then
approached one group of men, who then fled in
different directions. As the policemen gave chase,
Yu caught up with and apprehended petitioner.
Upon searching petitioner, Yu found a
fragmentation grenade tucked inside petitioner's
"front waist line." 7 Yu's companion, police officer
Rogelio Malibiran, apprehended Abdul Casan from
whom a .38 caliber revolver was recovered.
Petitioner and Casan were then brought to Police
Station No. 3 where Yu placed an "X" mark at the
bottom of the grenade and thereafter gave it to
his commander. 8
On cross-examination, Yu declared that they
conducted the foot patrol due to a report that a
group of Muslims was going to explode a grenade
somewhere in the vicinity of Plaza Miranda. Yu
recognized petitioner as the previous Saturday,
25 August 1990, likewise at Plaza Miranda, Yu saw
petitioner and 2 others attempt to detonate a
grenade. The attempt was aborted when Yu and
other policemen chased petitioner and his
companions; however, the former were unable to
catch any of the latter. Yu further admitted that
petitioner and Casan were merely standing on the
corner of Quezon Boulevard when Yu saw them
on 27 August 1990. Although they were not
creating a commotion, since they were
supposedly acting suspiciously, Yu and his
companions approached them. Yu did not issue
any receipt for the grenade he allegedly
recovered from petitioner. 9
Josefino C. Serapio declared that at about 9:00
a.m. of 28 August 1990, petitioner and a certain
Abdul Casan were brought in by Sgt. Saquilla 10
for investigation. Forthwith, Serapio conducted
the inquest of the two suspects, informing them
of their rights to remain silent and to be assisted
by competent and independent counsel. Despite
Serapio's advice, petitioner and Casan
manifested their willingness to answer questions
even without the assistance of a lawyer. Serapio
then took petitioner's uncounselled confession
(Exh. "E"), there being no PAO lawyer available,
wherein petitioner admitted possession of the
grenade. Thereafter, Serapio prepared the
affidavit of arrest and booking sheet of petitioner
and Casan. Later, Serapio turned over the
grenade to the Intelligence and Special Action
Division (ISAD) of the Explosive Ordinance
Disposal Unit for examination. 11
On cross-examination, Serapio admitted that he
took petitioner's confession knowing it was
inadmissible in evidence. 12
Orlando Ramilo, a member of the Bomb Disposal
Unit, whose principal duties included, among
other things, the examination of explosive
devices, testified that on 22 March 1991, he
received a request dated 19 March 1991 from Lt.
Eduardo Cabrera and PO Diosdado Diotoy for
examination of a grenade. Ramilo then affixed an
orange tag on the subject grenade detailing his
name, the date and time he received the
specimen. During the preliminary examination of
the grenade, he "found that [the] major
components consisting of [a] high filler and fuse
assembly [were] all present," and concluded that
the grenade was "[l]ive and capable of
exploding." On even date, he issued a
certification stating his findings, a copy of which
he forwarded to Diotoy on 11 August 1991. 13
Petitioner was the lone defense witness. He
declared that he arrived in Manila on 22 July 1990
and resided at the Muslim Center in Quiapo,
Manila. At around 6:30 in the evening of 27
August 1990, he went to Plaza Miranda to catch a
breath of fresh air. Shortly after, several
policemen arrived and ordered all males to stand
aside. The policemen searched petitioner and two
other men, but found nothing in their possession.
However, he was arrested with two others,
brought to and detained at Precinct No. 3, where
he was accused of having shot a police officer.
The officer showed the gunshot wounds he
allegedly sustained and shouted at petitioner
"[i]to ang tama mo sa akin." This officer then
inserted the muzzle of his gun into petitioner's
mouth and said, "[y]ou are the one who shot me."
Petitioner denied the charges and explained that
he only recently arrived in Manila. However,
several other police officers mauled him, hitting
him with benches and guns. Petitioner was once
again searched, but nothing was found on him.
He saw the grenade only in court when it was
presented. 14
The trial court ruled that the warrantless search
and seizure of petitioner was akin to a "stop and
frisk," where a "warrant and seizure can be
effected without necessarily being preceded by
an arrest" and "whose object is either to maintain
the status quo momentarily while the police
officer seeks to obtain more information." 15
Probable cause was not required as it was not
certain that a crime had been committed,
however, the situation called for an investigation,
hence to require probable cause would have been
"premature." 16 The RTC emphasized that Yu and
his companions were "[c]onfronted with an
emergency, in which the delay necessary to
obtain a warrant, threatens the destruction of
evidence" 17 and the officers "[h]ad to act in
haste," as petitioner and his companions were
acting suspiciously, considering the time, place
and "reported cases of bombing." Further,
petitioner's group suddenly ran away in different
directions as they saw the arresting officers
approach, thus "[i]t is reasonable for an officer to
conduct a limited search, the purpose of which is
not necessarily to discover evidence of a crime,
70 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
but to allow the officer to pursue his investigation
without fear of violence." 18
The trial court then ruled that the seizure of the
grenade from petitioner was incidental to a lawful
arrest, and since petitioner "[l]ater voluntarily
admitted such fact to the police investigator for
the purpose of bombing the Mercury Drug Store,"
concluded that sufficient evidence existed to
establish petitioner's guilt beyond reasonable
doubt.
In its decision 19 dated 10 February 1994 but
promulgated on 15 February 1994, the trial court
thus found petitioner guilty of the crime of illegal
possession of explosives under Section 3 of P.D.
No. 1866, and sentenced him to suffer:
[T]he penalty of not less than SEVENTEEN (17)
YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF
RECLUSION TEMPORAL, as minimum, and not
more than THIRTY (30) YEARS OF RECLUSION
PERPETUA, as maximum.
On 18 February 1994, petitioner filed a notice of
appeal 20 indicating that he was appealing to this
Court. However, the record of the case was
forwarded to the Court of Appeals which docketed
it as CA-G.R. CR No. 15988 and issued a notice to
file briefs. 21
In his Appellant's Brief 22 filed with the Court of
Appeals, petitioner asserted that:
1. THE LOWER COURT ERRED IN HOLDING THAT
THE SEARCH UPON THE PERSON OF ACCUSED-
APPELLANT AND THE SEIZURE OF THE ALLEGED
HANDGRENADE FROM HIM "WAS AN
APPROPRIATE INCIDENT TO HIS ARREST."
2. THE LOWER COURT ERRED IN ADMITTING AS
EVIDENCE AGAINST ACCUSED-APPELLANT THE
HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS
IT WAS A PRODUCT OF AN UNREASONABLE AND
ILLEGAL SEARCH.
In sum, petitioner argued that the warrantless
arrest was invalid due to absence of any of the
conditions provided for in Section 5 of Rule 113 of
the Rules of Court, citing People vs. Mengote. 23
As such, the search was illegal, and the hand
grenade seized, inadmissible in evidence.
In its Brief for the Appellee, the Office of the
Solicitor General agreed with the trial court and
prayed that its decision be affirmed in toto. 24
In its decision of 24 January 1996, 25 the Court of
Appeals affirmed the trial court, noting, first, that
petitioner abandoned his original theory before
the court a quo that the grenade was "planted"
by the police officers; and second, the factual
finding of the trial court that the grenade was
seized from petitioner's possession was not
raised as an issue. Further, respondent court
focused on the admissibility in evidence of Exhibit
"D," the hand grenade seized from petitioner.
Meeting the issue squarely, the Court of Appeals
ruled that the arrest was lawful on the ground
that there was probable cause for the arrest as
petitioner was "attempting to commit an
offense," thus:
We are at a loss to understand how a man, who
was in possession of a live grenade and in the
company of other suspicious character[s] with
unlicensed firearm[s] lurking in Plaza Miranda at a
time when political tension ha[d] been enkindling
a series of terroristic activities, [can] claim that
he was not attempting to commit an offense. We
need not mention that Plaza Miranda is
historically notorious for being a favorite bomb
site especially during times of political upheaval.
As the mere possession of an unlicensed grenade
is by itself an offense, Malacat's posture is simply
too preposterous to inspire belief.
In so doing, the Court of Appeals took into
account petitioner's failure to rebut the testimony
of the prosecution witnesses that they received
intelligence reports of a bomb threat at Plaza
Miranda; the fact that PO Yu chased petitioner
two days prior to the latter's arrest, or on 27
August 1990; and that petitioner and his
companions acted suspiciously, the
"accumulation" of which was more than sufficient
to convince a reasonable man that an offense
was about to be committed. Moreover, the Court
of Appeals observed:
The police officers in such a volatile situation
would be guilty of gross negligence and
dereliction of duty, not to mention of gross
incompetence, if they [would] first wait for
Malacat to hurl the grenade, and kill several
innocent persons while maiming numerous
others, before arriving at what would then be an
assured but moot conclusion that there was
indeed probable cause for an arrest. We are in
agreement with the lower court in saying that the
probable cause in such a situation should not be
the kind of proof necessary to convict, but rather
the practical considerations of everyday life on
which a reasonable and prudent mind, and not
legal technicians, will ordinarily act.
Finally, the Court of Appeals held that the rule
laid down in People v. Mengote, 26 which
petitioner relied upon, was inapplicable in light of
"[c]rucial differences," to wit:
[In Mengote] the police officers never received
any intelligence report that someone [at] the
corner of a busy street [would] be in possession
of a prohibited article. Here the police officers
were responding to a [sic] public clamor to put a
check on the series of terroristic bombings in the
Metropolis, and, after receiving intelligence
reports about a bomb threat aimed at the vicinity
of the historically notorious Plaza Miranda, they
conducted foot patrols for about seven days to
observe suspicious movements in the area.
Furthermore, in Mengote, the police officers [had]
no 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:
71 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
1. THE RESPONDENT COURT ERRED IN AFFIRMING
THE FINDING OF THE TRIAL COURT THAT THE
WARRANTLESS ARREST OF PETITIONER WAS
VALID AND LEGAL.
2. THE RESPONDENT COURT ERRED IN HOLDING
THAT THE RULING IN PEOPLE VS. MENGOTE DOES
NOT FIND APPLICATION IN THE INSTANT CASE.
In support thereof, petitioner merely restates his
arguments below regarding the validity of the
warrantless arrest and search, then disagrees
with the finding of the Court of Appeals that he
was "attempting to commit a crime," as the
evidence for the prosecution merely disclosed
that he was "standing at the corner of Plaza
Miranda and Quezon Boulevard" with his eyes
"moving very fast" and "looking at every person
that come (sic) nearer (sic) to them." Finally,
petitioner points out the factual similarities
between his case and that of People v. Mengote
to demonstrate that the Court of Appeals
miscomprehended the latter.
In its Comment, the Office of the Solicitor General
prays that we affirm the challenged decision.
For being impressed with merit, we resolved to
give due course to the petition.
The challenged decision must immediately fall on
jurisdictional grounds. To repeat, the penalty
imposed by the trial court was:
[N]ot less than SEVENTEEN (17) YEARS, FOUR (4)
MONTHS AND ONE (1) DAY OF RECLUSION
TEMPORAL, as minimum, and not more than
THIRTY (30) YEARS OF RECLUSION PERPETUA, as
maximum.
The penalty provided by Section 3 of P.D. No.
1866 upon any person who shall unlawfully
possess grenades is reclusion temporal in its
maximum period to reclusion perpetua.
For purposes of determining appellate jurisdiction
in criminal cases, the maximum of the penalty,
and not the minimum, is taken into account.
Since the maximum of the penalty is reclusion
perpetua, the appeal therefrom should have been
to us, and not the Court of Appeals, pursuant to
Section 9(3) of the Judiciary Reorganization Act of
1980 (B.P. Blg. 129), 27 in relation to Section 17
of the Judiciary Act of 1948, 28 Section 5(2) of
Article VIII of the Constitution 29 and Section 3(c)
of Rule 122 of the Rules of Court. 30 The term
"life imprisonment" as used in Section 9 of B.P.
Blg. 129, the Judiciary Act of 1948, and Section 3
of Rule 122 must be deemed to include reclusion
perpetua in view of Section 5(2) of Article VIII of
the Constitution.
Petitioner's Notice of Appeal indicated that he
was appealing from the trial court's decision to
this Court, yet the trial court transmitted the
record to the Court of Appeals and the latter
proceeded to resolve the appeal.
We then set aside the decision of the Court of
Appeals for having been rendered without
jurisdiction, and consider the appeal as having
been directly brought to us, with the petition for
review as petitioner's Brief for the Appellant, the
comment thereon by the Office of the Solicitor
General as the Brief for the Appellee and the
memoranda of the parties as their Supplemental
Briefs.
Deliberating on the foregoing pleadings, we find
ourselves convinced that the prosecution failed to
establish petitioner's guilt with moral certainty.
First, serious doubt surrounds the story of police
officer Yu that a grenade was found in and seized
from petitioner's possession. Notably, Yu did not
identify, in court, the grenade he allegedly seized.
According to him, he turned it over to his
commander after putting an "X" mark at its
bottom; however, the commander was not
presented to corroborate this claim. On the other
hand, the grenade presented in court and
identified by police officer Ramilo referred to what
the latter received from Lt. Eduardo Cabrera and
police officer Diotoy not immediately after
petitioner's arrest, but nearly seven (7) months
later or on 19 March 1991; further, there was no
evidence whatsoever that what Ramilo received
was the very same grenade seized from
petitioner. In his testimony, Yu never declared
that the grenade passed on to Ramilo was the
grenade the former confiscated from petitioner.
Yu did not, and was not made to, identify the
grenade examined by Ramilo, and the latter did
not claim that the grenade he examined was that
seized from petitioner. Plainly, the law
enforcement authorities failed to safeguard and
preserve the chain of evidence so crucial in cases
such as these.
Second, if indeed petitioner had a grenade with
him, and that two days earlier he was with a
group about to detonate an explosive at Plaza
Miranda, and Yu and his fellow officers chased,
but failed to arrest them, then considering that Yu
and his three fellow officers were in uniform and
therefore easily cognizable as police officers, it
was then unnatural and against common
experience that petitioner simply stood there in
proximity to the police officers. Note that Yu
observed petitioner for thirty minutes and must
have been close enough to petitioner in order to
discern petitioner's eyes "moving very fast."
Finally, even assuming that petitioner admitted
possession of the grenade during his custodial
investigation by police officer Serapio, such
admission was inadmissible in evidence for it was
taken in palpable violation of Section 12(1) and
(3) of Article III of the Constitution, which provide
as follows:
SEC. 12 (1). Any person under investigation for
the commission of an offense shall have the right
to be informed of his right to remain silent and to
have competent and independent counsel
preferably of his own choice. If the person cannot
afford the services of counsel, he must be
provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
xxx xxx xxx
72 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
(3) Any confession or admission obtained in
violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
Serapio conducted the custodial investigation on
petitioner the day following his arrest. No lawyer
was present and Serapio could not have
requested a lawyer to assist petitioner as no PAO
lawyer was then available. Thus, even if
petitioner consented to the investigation and
waived his rights to remain silent and to counsel,
the waiver was invalid as it was not in writing,
neither was it executed in the presence of
counsel.
Even granting ex gratia that petitioner was in
possession of a grenade, the arrest and search of
petitioner were invalid, as will be discussed
below.
The general rule as regards arrests, searches and
seizures is that a warrant is needed in order to
validly effect the same. 31 The Constitutional
prohibition against unreasonable arrests,
searches and seizures refers to those effected
without a validly issued warrant, 32 subject to
certain exceptions. As regards valid warrantless
arrests, these are found in Section 5, Rule 113 of
the Rules of Court, which reads, in part:
Sec. 5. Arrest, without warrant; when lawful. A
peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has in fact just been
committed, and he has personal knowledge of
facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner
who has escaped . . .
A warrantless arrest under the circumstances
contemplated under Section 5(a) has been
denominated as one "in flagrante delicto," while
that under Section 5(b) has been described as a
"hot pursuit" arrest.
Turning to valid warrantless searches, they are
limited to the following: (1) customs searches; (2)
search of moving vehicles; (3) seizure of evidence
in plain view; (4) consent searches; 33 (5) a
search incidental to a lawful arrest; 34 and (6) a
"stop and frisk." 35
In the instant petition, the trial court validated
the warrantless search as a "stop and frisk" with
"the seizure of the grenade from the accused [as]
an appropriate incident to his arrest," hence
necessitating a brief discussion on the nature of
these exceptions to the warrant requirement.
At the outset, we note that the trial court
confused the concepts of a "stop-and-frisk" and of
a search incidental to a lawful arrest. These two
types of warrantless searches differ in terms of
the requisite quantum of proof before they may
be validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the
precedent arrest determines the validity of the
incidental search, the legality of the arrest is
questioned in a large majority of these cases,
e.g., whether an arrest was merely used as a
pretext for conducting a search. 36 In this
instance, the law requires that there first be a
lawful arrest before a search can be made the
process cannot be reversed. 37 At bottom,
assuming a valid arrest, the arresting officer may
search the person of the arrestee and the area
within which the latter may reach for a weapon or
for evidence to destroy, and seize any money or
property found which was used in the commission
of the crime, or the fruit of the crime, or that
which may be used as evidence, or which might
furnish the arrestee with the means of escaping
or committing violence. 38
Here, there could have been no valid in flagrante
delicto or hot pursuit arrest preceding the search
in light of the lack of personal knowledge on the
part of Yu, the arresting officer, or an overt
physical act, on the part of petitioner, indicating
that a crime had just been committed, was being
committed or was going to be committed.
Having thus shown the invalidity of the
warrantless arrest in this case, plainly, the search
conducted on petitioner could not have been one
incidental to a lawful arrest.
We now proceed to the justification for and
allowable scope of a "stop-and-frisk" as a "limited
protective search of outer clothing for weapons,"
as laid down in Terry; thus:
We merely hold today that where a police officer
observes unusual conduct which leads him
reasonably to conclude in light of his experience
that criminal activity may be afoot and that the
persons with whom he is dealing may be armed
and presently dangerous, where in the course of
investigating this behavior he identifies himself
as a policeman and makes reasonable inquiries,
and where nothing in the initial stages of the
encounter serves to dispel his reasonable fear for
his own or others' safety, he is entitled for the
protection of himself and others in the area to
conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover
weapons which might be used to assault him.
Such a search is a reasonable search under the
Fourth Amendment . . . 39
Other notable points of Terry are that while
probable cause is not required to conduct a "stop
and frisk," 40 it nevertheless holds that mere
suspicion or a hunch will not validate a "stop and
frisk." A genuine reason must exist, in light of the
police officer's experience and surrounding
conditions, to warrant the belief that the person
detained has weapons concealed about him. 41
Finally, a "stop-and-frisk" serves a two-fold
interest: (1) the general interest of effective
crime prevention and detection, which underlies
the recognition that a police officer may, under
appropriate circumstances and in an appropriate
manner, approach a person for purposes of
investigating possible criminal behavior even
without probable cause; and (2) the more
pressing interest of safety and self-preservation
which permit the police officer to take steps to
73 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
assure himself that the person with whom he
deals is not armed with a deadly weapon that
could unexpectedly and fatally be used against
the police officer.
Here, there are at least three (3) reasons why the
"stop-and-frisk" was invalid:
First, we harbor grave doubts as to Yu's claim that
petitioner was a member of the group which
attempted to bomb Plaza Miranda two days
earlier. This claim is neither supported by any
police report or record nor corroborated by any
other police officer who allegedly chased that
group. Aside from impairing Yu's credibility as a
witness, this likewise diminishes the probability
that a genuine reason existed so as to arrest and
search petitioner. If only to further tarnish the
credibility of Yu's testimony, contrary to his claim
that petitioner and his companions had to be
chased before being apprehended, the affidavit of
arrest (Exh. "A") expressly declares otherwise,
i.e., upon arrival of five (5) other police officers,
petitioner and his companions were "immediately
collared."
Second, there was nothing in petitioner's
behavior or conduct which could have reasonably
elicited even mere suspicion other than that his
eyes were "moving very fast" an observation
which leaves us incredulous since Yu and his
teammates were nowhere near petitioner and it
was already 6:30 p.m., thus presumably dusk.
Petitioner and his companions were merely
standing at the corner and were not creating any
commotion or trouble, as Yu explicitly declared on
cross-examination: cdrep
Q And what were they doing?
A They were merely standing.
Q You are sure of that?
A Yes, sir.
Q And when you saw them standing, there were
nothing or they did not create any commotion?
A None, sir.
Q Neither did you see them create commotion?
A None, sir. 42
Third, there was at all no ground, probable or
otherwise, to believe that petitioner was armed
with a deadly weapon. None was visible to Yu, for
as he admitted, the alleged grenade was
"discovered" "inside the front waistline" of
petitioner, and from all indications as to the
distance between Yu and petitioner, any telltale
bulge, assuming that petitioner was indeed hiding
a grenade, could not have been visible to Yu. In
fact, as noted by the trial court:
When the policemen approached the accused and
his companions, they were not yet aware that a
handgrenade was tucked inside his waistline.
They did not see any bulging object in [sic] his
person. 43
What is unequivocal then in this case are blatant
violations of petitioner's rights solemnly
guaranteed in Sections 2 and 12(1) of Article III of
the Constitution.
WHEREFORE, the challenged decision of the
Seventeenth Division of the Court of Appeals in
CA-G.R. CR No. 15988 is SET ASIDE for lack of
jurisdiction on the part of said Court and, on
ground of reasonable doubt, the decision of 10
February 1994 of Branch 5 of the Regional Trial
Court of Manila is REVERSED and petitioner
SAMMY MALACAT y MANDAR is hereby
ACQUITTED and ORDERED immediately released
from detention, unless his further detention is
justified for any other lawful cause.
SO ORDERED.
Narvasa, C .J ., Regalado, Romero, Bellosillo, Melo,
Puno, Vitug, Kapunan, Mendoza, Francisco and
Martinez, JJ ., concur.
(People v. Aminnudin y Ahni, G.R. No.
74869, July 06, 1988)
FIRST DIVISION
[G.R. No. 74869. July 6, 1988.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. IDEL AMINNUDIN y AHNI, defendant-
appellant.
The Solicitor General, for plaintiff-appellee.
Herminio T. Llariza counsel de-officio, for
defendant-appellant.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS;
RIGHTS AGAINST UNREASONABLE
SEARCHES AND SEIZURES; WARRANTLESS
ARREST AND SEIZURE BASED ON AN
INFORMER'S TIP, AT A TIME WHEN ACCUSED
WAS NOT COMMITTING A CRIME, ILLEGAL;
EVIDENCE OBTAINED, INADMISSIBLE.
Where it is not disputed that the PC officers had
no warrant when they arrested Aminnudin while
he was descending the gangplank of the M/V
Wilcon 9 and seized the bag he was carrying, and
that their only justification was the tip they had
earlier received from a reliable and regular
informer who reported to them that Aminnudin
was arriving in Iloilo by boat with marijuana, the
search was not an incident of a lawful arrest
because there was no warrant of arrest and
warrantless arrest did not come under the
exceptions allowed by the Rules of Court. Hence,
the warrantless search was also illegal and the
evidence obtained was inadmissible.
2. ID.; ID.; ID.; ID.; NO URGENCY COULD BE
INVOKED IN PRESENT CASE TO DISPENSE
WITH OBTENTION OF ARREST AND SEARCH
WARRANT. The present case presented no
such urgency. From the conflicting declarations of
the PC witnesses, it is clear that they had at least
two days within which they could have obtained a
warrant to arrest and search Aminnudin who was
coming to Iloilo on the M/V Wilcon 9. His name
was known. The vehicle was identified. The date
of its arrival was certain. And from the
information they had received, they could have
persuaded a judge that there was probable
cause, indeed, to justify the issuance of a
warrant. Yet they did nothing. No effort was made
74 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
to comply with the law. The Bill of Rights was
ignored altogether because the PC lieutenant who
was the head of the arresting team, had
determined on his own authority that a "search
warrant was not necessary."
3. ID.; ID.; ID.; ID.; ACCUSED IN CASE AT
BAR WAS NOT COMMITTING A CRIME WHEN
HE WAS ARRESTED. In the case at bar, the
accused-appellant was not, at the moment of his
arrest, committing a crime nor was it shown that
he was about to do so or that he had just done
so. What he was doing was descending the
gangplank of the M/V Wilcon 9 and there was no
outward indication that called for his arrest. To all
appearances, he was like any of the other
passengers innocently disembarking from the
vessel. It was only when the informer pointed to
him as the carrier of the marijuana that he
suddenly became suspect and so subject to
apprehension. It was the furtive finger that
triggered his arrest. The identification by the
informer was the probable cause as determined
by the officers (and not a judge) that authorized
them to pounce upon Aminnudin and
immediately arrest him.
AQUINO, J., Dissenting:
CONSTITUTIONAL LAW; BILL OF RIGHTS;
RIGHT AGAINST UNREASONABLE SEARCHES
AND SEIZURES; ARREST AT TIME OF
COMMISSION OF CRIME IS LAWFUL; SEARCH
LIKEWISE LAWFUL. I hold that the accused
was caught in flagrante, for he was carrying
marijuana leaves in his bag at the moment of his
arrest. He was not "innocently disembarking from
the vessel." The unauthorized transportation of
marijuana (Indian hemp), which is a prohibited
drug, is a crime. (Sec. 4, Rep. Act No. 6425).
Since he was committing a crime, his arrest could
be lawfully effected without a warrant (Sec. 6-a,
Rule 113, Rules of Court), and the search of his
bag (which yielded the marijuana leaves) without
a search warrant was also lawful (Sec. 12, Rule
126, Rules of Court).
DECISION
CRUZ, J p:
The accused-appellant claimed his business was
selling watches but he was nonetheless arrested,
tried and found guilty of illegally transporting
marijuana. The trial court, disbelieving him, held
it was high time to put him away and sentenced
him to life imprisonment plus a fine of
P20,000.00. 1
Idel Aminnudin was arrested on June 25, 1984,
shortly after disembarking from the M/V Wilcon 9
at about 8:30 in the evening, in Iloilo City. The PC
officers who were in fact waiting for him simply
accosted him, inspected his bag and finding what
looked liked marijuana leaves took him to their
headquarters for investigation. The two bundles
of suspect articles were confiscated from him and
later taken to the NBI laboratory for examination.
When they were verified as marijuana leaves, an
information for violation of the Dangerous Drugs
Act was filed against him. 2 Later, the information
was amended to include Farida Ali y Hassen, who
had also been arrested with him that same
evening and likewise investigated. 3 Both were
arraigned and pleaded not guilty. 4 Subsequently,
the fiscal filed a motion to dismiss the charge
against Ali on the basis of a sworn statement of
the arresting officers absolving her after a
"thorough investigation." 5 The motion was
granted, and trial proceeded only against the
accused-appellant, who was eventually convicted.
6 appellant was not really beaten up because he
According to the prosecution, the PC officers had
earlier received a tip from one of their informers
that the accused-appellant was on board a vessel
bound for Iloilo City and was carrying marijuana.
7 He was identified by name. 8 Acting on this tip,
they waited for him in the evening of June 25,
1984, and approached him as he descended from
the gangplank after the informer had pointed to
him. 9 They detained him and inspected the bag
he was carrying. It was found to contain three
kilos of what were later analyzed as marijuana
leaves by an NBI forensic examiner, 10 who
testified that she conducted microscopic,
chemical and chromatographic tests on them. On
the basis of this finding, the corresponding
charge was then filed against Aminnudin.
In his defense, Aminnudin disclaimed the
marijuana, averring that all he had in his bag was
his clothing consisting of a jacket, two shirts and
two pairs of pants. 11 He alleged that he was
arbitrarily arrested and immediately handcuffed.
His bag was confiscated without a search
warrant. At the PC headquarters, he was
manhandled to force him to admit he was
carrying the marijuana, the investigator hitting
him with a piece of wood in the chest and arms
even as he parried the blows while he was still
handcuffed. 12 He insisted he did not even know
what marijuana looked like and that his business
was selling watches and sometimes cigarettes.
13 He also argued that the marijuana he was
alleged to have been carrying was not properly
identified and could have been any of several
bundles kept in the stock room of the PC
headquarters. 14
The trial court was unconvinced, noting from its
own examination of the accused that he claimed
to have come to Iloilo City to sell watches but
carried only two watches at the time, traveling
from Jolo for that purpose and spending P107.00
for fare, not to mention his other expenses. 15
Aminnudin testified that he kept the two watches
in a secret pocket below his belt but, strangely,
they were not discovered when he was bodily
searched by the arresting officers nor were they
damaged as a result of his manhandling. 1 6 He
also said he sold one of the watches for P400.00
and gave away the other, although the watches
belonged not to him but to his cousin, 17 to a
friend whose full name he said did not even know.
18 The trial court also rejected his allegations of
maltreatment, observing that he had not
sufficiently proved the injuries sustained by him.
19
There is no justification to reverse these factual
findings, considering that it was the trial judge
who had immediate access to the testimony of
the witnesses and had the opportunity to weigh
their credibility on the stand. Nuances of tone or
voice, meaningful pauses and hesitation, flush of
face and dart of eyes, which may reveal the truth
or expose the lie, are not described in the
impersonal record. But the trial judge sees all of
75 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
this, discovering for himself the truant fact amidst
the falsities.
The only exception we may make in this case is
the trial court's conclusion that the accused-
did not complain about it later nor did he submit
to a medical examination. That is hardly fair or
realistic. It is possible Aminnudin never had that
opportunity as he was at that time under
detention by the PC authorities and in fact has
never been set free since he was arrested in 1984
and up to the present. No bail has been allowed
for his release.
There is one point that deserves closer
examination, however, and it is Aminnudin's
claim that he was arrested and searched without
warrant, making the marijuana allegedly found in
his possession inadmissible in evidence against
him under the Bill of Rights. The decision did not
even discuss this point. For his part, the Solicitor
General dismissed this after an all-too-short
argument that the arrest of Aminnudin was valid
because it came under Rule 113, Section 6(b) of
the Rules of Court on warrantless arrests. This
made the search also valid as incidental to a
lawful arrest.
It is not disputed, and in fact it is admitted by the
PC officers who testified for the prosecution, that
they had no warrant when they arrested
Aminnudin and seized the bag he was carrying.
Their only justification was the tip they had
earlier received from a reliable and regular
informer who reported to them that Aminnudin
was arriving in Iloilo by boat with marijuana. Their
testimony varies as to the time they received the
tip, one saying it was two days before the arrest,
20 another two weeks 21 and a third "weeks
before June 25." 22 On this matter, we may prefer
the declaration of the chief of the arresting team,
Lt. Cipriano Querol, Jr., who testified as follow:
"Q You mentioned an intelligence report, you
mean with respect to the coming of Idel
Aminnudin on June 25, 1984?
"A Yes, sir.
"Q When did you receive this intelligence report?
"A Two days before June 25, 1984 and it was
supported by reliable sources.
"Q Were you informed of the coming of the Wilcon
9 and the possible trafficking of marijuana leaves
on that date?
"A Yes, sir, two days before June 25, 1984 when
we received this information from that particular
informer, prior to June 25, 1984 we have already
reports of the particular operation which was
being participated by Idel Aminnudin.
"Q You said you received an intelligence report
two days before June 25, 1984 with respect to the
coming of Wilcon 9?
"A Yes, sir.

"Q Did you receive any other report aside from
this intelligence report?
"A Well, I have received also other reports but not
pertaining to the coming of Wilcon 9. For
instance, report of illegal gambling operation.
"COURT:
"Q Previous to that particular information which
you said two days before June 25, 1984, did you
also receive any report regarding the activities of
Idel Aminnudin?
"A Previous to June 25, 1984 we received reports
on the activities of Idel Aminnudin.
"Q What were those activities?
"A Purely marijuana trafficking.
"Q From whom did you get that information?
"A It came to my hand which was written in a
required sheet of information, maybe for security
reason and we cannot identify the person.
"Q But you received it from your regular
informer?
"A Yes, sir.
"ATTY. LLARIZA:
"Q Previous to June 25, 1984, you were more or
less sure that Idel Aminnudin is coming with
drugs?
"A Marijuana, sir.
"Q And this information respecting Idel
Aminnudin's coming to Iloilo with marijuana was
received by you many days before you received
the intelligence report in writing?
"A Not a report of the particular coming of
Aminnudin but his activities.
"Q You only knew that he was coming on June 25,
1984 two days before?
"A Yes, sir.
"Q You mean that before June 23, 1984 you did
not know that Aminnudin was coming?
"A Before June 23, 1984, I, in my capacity, did not
know that he was coming but on June 23, 1984
that was the time when I received the information
that he was coming. Regarding the reports on his
activities, we have reports that he has already
consummated the act of selling and shipping
marijuana stuff.
"COURT:
"Q And as a result of that report, you put him
under surveillance?
"A Yes, sir.
76 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
"Q In the intelligence report, only the name of
Idel Aminnudin was mentioned?
"A Yes, sir.
"Q Are you sure of that?
"A On the 23rd he will be coming with the
woman.
"Q So that even before you received the official
report on June 23, 1984, you had already
gathered information to the effect that Idel
Aminnudin was coming to Iloilo on June 25, 1984?
"A Only on the 23rd of June.
"Q You did not try to secure a search warrant for
the seizure or search of the subject mentioned in
your intelligence report?
"A No, more.
"Q Why not?
"A Because we were very very sure that our
operation will yield positive result.
"Q Is that your procedure that whenever it will
yield positive result you do not need a search
warrant anymore?
"A Search warrant is not necessary." 23
That last answer is a cavalier pronouncement,
especially as it comes from a mere lieutenant of
the PC. The Supreme Court cannot countenance
such a statement. This is still a government of
laws and not of men.
The mandate of the Bill of Rights is clear:
"Sec. 2. The right of the people to be secure in
their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the persons or things to be seized."
In the case at bar, there was no warrant of arrest
or search warrant issued by a judge after
personal determination by him of the existence of
probable cause. Contrary to the averments of the
government, the accused-appellant was not
caught in flagrante nor was a crime about to be
committed or had just been committed to justify
the warrantless arrest allowed under Rule 113 of
the Rules of Court. Even expediency could not be
invoked to dispense with the obtention of the
warrant as in the case of Roldan v. Arca, 24 for
example. Here it was held that vessels and
aircraft are subject to warrantless searches and
seizures for violation of the customs law because
these vehicles may be quickly moved out of the
locality or jurisdiction before the warrant can be
secured.
The present case presented no such urgency.
From the conflicting declarations of the PC
witnesses, it is clear that they had at least two
days within which they could have obtained a
warrant to arrest and search Aminnudin who was
coming to Iloilo on the M/V Wilcon 9. His name
was known. The vehicle was identified. The date
of its arrival was certain. And from the
information they had received, they could have
persuaded a judge that there was probable
cause, indeed, to justify the issuance of a
warrant. Yet they did nothing. No effort was made
to comply with the law. The Bill of Rights was
ignored altogether because the PC lieutenant who
was the head of the arresting team, had
determined on his own authority that "search
warrant was not necessary."
In the many cases where this Court has sustained
the warrantless arrest of violators of the
Dangerous Drugs Act, it has always been shown
that they were caught red-handed, as result of
what are popularly called "buy-bust" operations
of the narcotics agents. 25 Rule 113 was clearly
applicable because at the precise time of arrest
the accused was in the act of selling the
prohibited drug.
In the case at bar, the accused-appellant was not,
at the moment of his arrest, committing a crime
nor was it shown that he was about to do so or
that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9
and there was no outward indication that called
for his arrest. To all appearances, he was like any
of the other passengers innocently disembarking
from the vessel. It was only when the informer
pointed to him as the carrier of the marijuana
that he suddenly became suspect and so subject
to apprehension. It was the furtive finger that
triggered his arrest. The identification by the
informer was the probable cause as determined
by the officers (and not a judge) that authorized
them to pounce upon Aminnudin and
immediately arrest him.
Now that we have succeeded in restoring
democracy in our country after fourteen years of
the despised dictatorship, when any one could be
picked up at will, detained without charges and
punished without trial, we will have only
ourselves to blame if that kind of arbitrariness is
allowed to return, to once more flaunt its disdain
of the Constitution and the individual liberties its
Bill of Rights guarantees.
While this is not to say that the accused-appellant
is innocent, for indeed his very own words
suggest that he is lying, that fact alone does not
justify a finding that he is guilty. The
constitutional presumption is that he is innocent,
and he will be so declared even if his defense is
weak as long as the prosecution is not strong
enough to convict him.
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
77 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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
criminal should escape than that the government
should play an ignoble part." It is simply not
allowed in the free society to violate a law to
enforce another, especially if the law violated is
the Constitution itself.
We find that with the exclusion of the illegally
seized marijuana as evidence against the
accused-appellant, his guilt has not been proved
beyond reasonable doubt and he must therefore
be discharged on the presumption that he is
innocent.
ACCORDINGLY, the decision of the trial court is
REVERSED and the accused-appellant is
ACQUITTED. It is so ordered.
Narvasa, Gancayco and Medialdea JJ. concur.
(People v. Malmstedt, G.R. No. 91107, June
19, 1991)
EN BANC
[G.R. No. 91107. June 19, 1991.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. MIKAEL MALMSTEDT, * defendant-
appellant.
The Solicitor General for plaintiff-appellee.
Romulo, Mabanta, Buenaventura, Sayoc & De los
Angeles for defendant-appellant.
DECISION
PADILLA, J p:
In an information dated 15 June 1989, accused-
appellant Mikael Malmstedt (hereinafter referred
to as the accused) was charged before the
Regional Trial Court (RTC) of La Trinidad, Benguet,
Branch 10, in Criminal Case No. 89-CR-0663, for
violation of Section 4, Art. II of Republic Act 6425,
as amended, otherwise known as the Dangerous
Drugs Act of 1972, as amended. The factual
background of the case is as follows:
Accused Mikael Malmstedt, a Swedish national,
entered the Philippines for the third time in
December 1988 as a tourist. He had visited the
country sometime in 1982 and 1985.
In the evening of 7 May 1989, accused left for
Baguio City. Upon his arrival thereat in the
morning of the following day, he took a bus to
Sagada and stayed in that place for two (2) days.
At around 7:00 o'clock in the morning of 11 May
1989, accused went to the Nangonogan bus stop
in Sagada to catch the first available trip to
Baguio City. From Baguio City, accused planned to
take a late afternoon trip to Angeles City, then
proceed to Manila to catch his flight out of the
country, scheduled on 13 May 1989. From
Sagada, accused took a Skyline bus with body
number 8005 and Plate number AVC 902. 1
At about 8:00 o'clock in the morning of that same
day (11 May 1989), Captain Alen Vasco, the
Commanding Officer of the First Regional
Command (NARCOM) stationed at Camp Dangwa,
ordered his men to set up a temporary
checkpoint at Kilometer 14, Acop, Tublay,
Mountain Province, for the purpose of checking all
vehicles coming from the Cordillera Region. The
order to establish a checkpoint in the said area
was prompted by persistent reports that vehicles
coming from Sagada were transporting marijuana
and other prohibited drugs. Moreover, information
was received by the Commanding Officer of
NARCOM, that same morning, that a Caucasian
coming from Sagada had in his possession
prohibited drugs. 2
The group composed of seven (7) NARCOM
officers, in coordination with Tublay Police Station,
set up a checkpoint at the designated area at
about 10:00 o'clock in the morning and inspected
all vehicles coming from the Cordillera Region.
At about 1:30 o'clock in the afternoon, the bus
where accused was riding was stopped. Sgt. Fider
and CIC Galutan boarded the bus and announced
that they were members of the NARCOM and that
they would conduct an inspection. The two (2)
NARCOM officers started their inspection from the
front going towards the rear of the bus. Accused
who was the sole foreigner riding the bus was
seated at the rear thereof.
During the inspection, CIC Galutan noticed a
bulge on accused's waist. Suspecting the bulge
on accused's waist to be a gun, the officer asked
for accused's passport and other identification
papers. When accused failed to comply, the
officer required him to bring out whatever it was
that was bulging on his waist. The bulging object
turned out to be a pouch bag and when accused
opened the same bag, as ordered, the officer
noticed four (4) suspicious-looking objects
wrapped in brown packing tape, prompting the
officer to open one of the wrapped objects. The
wrapped objects turned out to contain hashish, a
derivative of marijuana.
Thereafter, accused was invited outside the bus
for questioning. But before he alighted from the
bus, accused stopped to get two (2) travelling
bags from the luggage carrier.
Upon stepping out of the bus, the officers got the
bags and opened them. A teddy bear was found
78 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
in each bag. Feeling the teddy bears, the officer
noticed that there were bulges inside the same
which did not feel like foam stuffing. It was only
after the officers had opened the bags that
accused finally presented his passport.
Accused was then brought to the headquarters of
the NARCOM at Camp Dangwa, La Trinidad,
Benguet for further investigation. At the
investigation room, the officers opened the teddy
bears and they were found to also contain
hashish. Representative samples were taken from
the hashish found among the personal effects of
accused and the same were brought to the PC
Crime Laboratory for chemical analysis.
In the chemistry report, it was established that
the objects examined were hashish, a prohibited
drug which is a derivative of marijuana. Thus, an
information was filed against accused for
violation of the Dangerous Drugs Act.
During the arraignment, accused entered a plea
of "not guilty." For his defense, he raised the issue
of illegal search of his personal effects. He also
claimed that the hashish was planted by the
NARCOM officers in his pouch bag and that the
two (2) travelling bags were not owned by him,
but were merely entrusted to him by an
Australian couple whom he met in Sagada. He
further claimed that the Australian couple
intended to take the same bus with him but
because there were no more seats available in
said bus, they decided to take the next ride and
asked accused to take charge of the bags, and
that they would meet each other at the Dangwa
Station.
Likewise, accused alleged that when the NARCOM
officers demanded for his passport and other
identification papers, he handed to one of the
officers his pouch bag which was hanging on his
neck containing, among others, his passport,
return ticket to Sweden and other papers. The
officer in turn handed it to his companion who
brought the bag outside the bus. When said
officer came back, he charged the accused that
there was hashish in the bag. He was told to get
off the bus and his picture was taken with the
pouch bag placed around his neck. The trial court
did not give credence to accused's defense.
LibLex
The claim of the accused that the hashish was
planted by the NARCOM officers, was belied by
his failure to raise such defense at the earliest
opportunity. When accused was investigated at
the Provincial Fiscal's Office, he did not inform the
Fiscal or his lawyer that the hashish was planted
by the NARCOM officers in his bag. It was only
two (2) months after said investigation when he
told his lawyer about said claim, denying
ownership of the two (2) travelling bags as well
as having hashish in his pouch bag.
In a decision dated 12 October 1989, the trial
court found accused guilty beyond reasonable
doubt for violation of the Dangerous Drugs Act,
specifically Section 4, Art. II of RA 6425, as
amended. 3 The dispositive portion of the
decision reads as follows:
"WHEREFORE, finding the guilt of the accused
Mikael Malmstedt established beyond reasonable
doubt, this Court finds him GUILTY of violation of
Section 4, Article II of Republic Act 6425, as
amended, and hereby sentences him to suffer the
penalty of life imprisonment and to pay a fine of
Twenty Thousand Pesos (P20,000.00), with
subsidiary imprisonment in case of insolvency
and to pay the costs.
Let the hashish subject of this case be turned
over to the First Narcotics Regional Unit at Camp
Bado; Dangwa, La Trinidad, Benguet for proper
disposition under Section 20, Article IV of
Republic Act 425, as amended.
SO ORDERED." 4
Seeking the reversal of the decision of the trial
court finding him guilty of the crime charged,
accused argues that the search of his personal
effects was illegal because it was made without a
search warrant and, therefore, the prohibited
drugs which were discovered during the illegal
search are not admissible as evidence against
him.
The Constitution guarantees the right of the
people to be secure in their persons, houses,
papers and effects against unreasonable
searches and seizures. 5 However, where the
search is made pursuant to a lawful arrest, there
is no need to obtain a search warrant. A lawful
arrest without a warrant may be made by a peace
officer or a private person under the following
circumstances. 6
"SEC. 5. Arrest without warrant; when lawful. A
peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has in fact just been
committed, and he has personal knowledge of
facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or
temporarily confined while his case is pending, or
has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b)
hereof, the person arrested without a warrant
shall be forthwith delivered to the nearest police
station or jail, and he shall be proceeded against
in accordance with Rule 112, Section 7. (6a,
17a)."
Accused was searched and arrested while
transporting prohibited drugs (hashish). A crime
was actually being committed by the accused
and he was caught in flagrante delicto. Thus, the
search made upon his personal effects falls
squarely under paragraph (1) of the foregoing
provisions of law, which allow a warrantless
search incident to a lawful arrest. 7
79 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
While it is true that the NARCOM officers were not
armed with a search warrant when the search
was made over the personal effects of accused,
however, under the circumstances of the case,
there was sufficient probable cause for said
officers to believe that accused was then and
there committing a crime. LLphil
Probable cause has been defined as such facts
and circumstances which could lead a
reasonable, discreet and prudent man to believe
that an offense has been committed, and that the
objects sought in connection with the offense are
in the place sought to be searched. 8 The
required probable cause that will justify a
warrantless search and seizure is not determined
by any fixed formula but is resolved according to
the facts of each case. 9
Warrantless search of the personal effects of an
accused has been declared by this Court as valid,
because of existence of probable cause, where
the smell of marijuana emanated from a plastic
bag owned by the accused, 10 or where the
accused was acting suspiciously, 11 and
attempted to flee. 12
Aside from the persistent reports received by the
NARCOM that vehicles coming from Sagada were
transporting marijuana and other prohibited
drugs, their Commanding Officer also received
information that a Caucasian coming from
Sagada on that particular day had prohibited
drugs in his possession. Said information was
received by the Commanding Officer of NARCOM
the very same morning that accused came down
by bus from Sagada on his way to Baguio City.
When NARCOM received the information, a few
hours before the apprehension of herein accused,
that a Caucasian travelling from Sagada to
Baguio City was carrying with him prohibited
drugs, there was no time to obtain a search
warrant. In the Tangliben case, 13 the police
authorities conducted a surveillance at the
Victory Liner Terminal located at Bgy. San Nicolas,
San Fernando Pampanga, against persons
engaged in the traffic of dangerous drugs, based
on information supplied by some informers.
Accused Tangliben who was acting suspiciously
and pointed out by an informer was apprehended
and searched by the police authorities. It was
held that when faced with on-the spot
information, the police officers had to act quickly
and there was no time to secure a search
warrant.
It must be observed that, at first, the NARCOM
officers merely conducted a routine check of the
bus (where accused was riding) and the
passengers therein, and no extensive search was
initially made. It was only when one of the
officers noticed a bulge on the waist of accused,
during the course of the inspection, that accused
was required to present his passport. The failure
of accused to present his identification papers,
when ordered to do so, only managed to arouse
the suspicion of the officer that accused was
trying to hide his identity. For is it not a regular
norm for an innocent man, who has nothing to
hide from the authorities, to readily present his
identification papers when required to do so?
The receipt of information by NARCOM that a
Caucasian coming from Sagada had prohibited
drugs in his possession, plus the suspicious
failure of the accused to produce his passport,
taken together as a whole, led the NARCOM
officers to reasonably believe that the accused
was trying to hide something illegal from the
authorities. From these circumstances arose a
probable cause which justified the warrantless
search that was made on the personal effects of
the accused. In other words, the acts of the
NARCOM officers in requiring the accused to open
his pouch bag and in opening one of the wrapped
objects found inside said bag (which was
discovered to contain hashish) as well as the two
(2) travelling bags containing two (2) teddy bears
with hashish stuffed inside them, were prompted
by accused's own attempt to hide his identity by
refusing to present his passport, and by the
information received by the NARCOM that a
Caucasian coming from Sagada had prohibited
drugs in his possession. To deprive the NARCOM
agents of the ability and facility to act
accordingly, including, to search even without
warrant, in the light of such circumstances, would
be to sanction impotence and ineffectiveness in
law enforcement, to the detriment of society.
WHEREFORE, premises considered, the appealed
judgment of conviction by the trial court is hereby
AFFIRMED. Costs against the accused-appellant.
SO ORDERED.
Melencio-Herrera, Paras, Feliciano, Bidin, Grio-
Aquino, Medialdea, Regalado and Davide, Jr., JJ.,
concur.
Sarmiento, J., is on leave.
(Espano v. Court of Appeals, G.R. No.
120431, April 01, 1998)
THIRD DIVISION
[G.R. No. 120431. April 1, 1998.]
RODOLFO ESPANO, accused-petitioner, vs.
COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
Ceferino Padua Law Office for petitioner.
The Solicitor General for respondents.
SYNOPSIS
This is a petition for review of the decision of the
court of Appeals in CA G.R. CR No. 13976 dated
January 16, 1995 which affirmed in toto the
judgment of the Regional Trial Court of Manila,
Branch 1, convicting petitioner Rodolfo Espano for
violation of Article II Section 8 of REPUBLIC ACT
NO. 6425, as amended, otherwise known as the
Dangerous Drugs Act of 1972. The records of the
case reveal that herein petitioner was caught in
possession of and under his custody twelve
plastic cellophane bags weighing 5.5 grams
containing crushed flowering tops, marijuana
which is a prohibited drug. In his appeal before
the Supreme Court, petitioner contends that the
trial and appellate courts erred in convicting him
because (1) the pieces of evidence seized were
inadmissible; (2) the superiority of his
constitutional right to be presumed innocent over
80 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
the doctrine of presumption of regularity; (3) he
was denied the constitutional right of
confrontation and to compulsory process; and (4)
his conviction was based on evidence which was
irrelevant and not properly identified. CIScaA
The Supreme Court finds that there was no
compelling reason to reverse the decisions of the
trial and appellate courts. In this case, the
findings of the trial court that the prosecution
witnesses were more credible than those of the
defense must stand. Petitioner failed to show that
Pat. Romeo Pagilagan, in testifying against him,
was motivated by reasons other than his duty to
curb drug abuse and had any intent to falsely
impute to him such a serious crime as possession
of prohibited drugs. In the absence of such ill
motive, the presumption of regularity in the
performance of his official duty must prevail.
Furthermore, the defense of alibi set up by
petitioner deserved scant consideration. He
simply contended that he was in his house
sleeping at the time of the incident. Lastly, the
two cellophane bags of marijuana seized were
admissible in evidence because he was caught in
flagranti as a result of a buy-bust operation
conducted by police officers. However, as for the
other ten cellophane bags of marijuana found at
petitioner's residence, the same are inadmissible
in evidence considering that the said bags were
seized at petitioner's house after his arrest,
hence, do not fall under the exceptions provided
under Article III, Section 2 of the 1987
Constitution. In view thereof, the instant petition
is denied and the challenged decision is affirmed
with modification as to the penalty.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY
OF WITNESSES; FINDINGS OF TRIAL COURTS
ON THE CREDIBILITY OF WITNESSES
DESERVE A HIGH DEGREE OF RESPECT; CASE
AT BAR. It is a well-settled doctrine that
findings of trial courts on the credibility of witness
deserve a high degree of respect. Having
observed the deportment of witnesses during the
trial, the trial judge is in a better position to
determine the issue of credibility and, thus, his
findings will not be disturbed during appeal in the
absence of any clear and showing that he had
overlooked, misunderstood or misapplied some
facts or circumstances of weight and substance
which could have altered the conviction of the
appellants. In this case, the findings of the trial
court that the prosecution witnesses were more
credible that those of the defense must stand.
Petitioner failed to show that Pat. Pagilagan, in
testifying against him, was motivated by reasons
other than his duty to curb drug abuse and had
any intent to falsely impute to him such a serious
crime as possession of prohibited drugs. In the
absence of such ill motive, the presumption of
regularity in the performance of his official duty
must prevail.
2. ID.; ID.; ID.; CLAIM OF FRAME-UP, LIKE
ALIBI, IS A DEFENSE THAT HAS BEEN
INVARIABLY VIEWED BY THE COURT WITH
DISFAVOR; CASE AT BAR. The defense set
up by petitioner does not deserve any
consideration. He simply contended that he was
in his house sleeping at the time of the incident.
This court has consistently held that alibi is the
weakest of all defenses; and for it to prosper, the
accused has the burden of proving that he was
not at the scene of the crime at the time of its
commission and that it was physically impossible
for him to be there. Moreover, the "claim of
'frame-up,' like alibi, is a defense that has been
invariably viewed by the Court with disfavor for it
can just as easily be concocted but difficult to
prove, and is a common and standard line of
defense in most prosecutions arising from
violations of the Dangerous Drugs Act." No clear
and convincing evidence was presented by
petitioner to prove his defense of alibi.
3. ID.; CRIMINAL PROCEDURE;
WARRANTLESS ARREST; THE MARIJUANA
SEIZED FROM PETITIONER'S HOUSE AFTER
HIS ARREST IS INADMISSIBLE IN EVIDENCE;
CASE AT BAR. The 1987 Constitution
guarantees freedom against unreasonable
searches and seizures under Article III, Section 2
which provides: "The right of the people to be
secure in their persons, houses, papers and
effects against unreasonable searches and
seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable
cause to be determined personally by the judge
after examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the persons or things to be seized."
An exception to the said rule is a warrantless
search incidental to a lawful arrest of dangerous
weapons or anything which may be used as proof
of the commission of an offense. It may extend
beyond the person of the one arrested to include
the premises or surroundings under his
immediate control. In this case, the ten
cellophane bags of marijuana seized at
petitioner's house after his arrest at Pandacan
and Zamora Streets do not fall under the said
exceptions. . . . The articles seized from petitioner
during his arrest were valid under the doctrine of
search made incidental to a lawful arrest. The
warrantless search made in his house, however,
which yielded ten cellophane bags of marijuana
became unlawful since the police officers were
not armed with a search warrant at the time.
Moreover, it was beyond the reach and control of
petitioner. HTScEI
4. CRIMINAL LAW; REPUBLIC ACT NO. 6425
AS AMENDED BY Republic Act 7659; IF THE
QUANTITY OF MARIJUANA INVOLVED IS LESS
THAN 750 GRAMS, THE IMPOSABLE PENALTY
RANGES FROM PRISION CORRECTIONAL TO
RECLUSION TEMPORAL; CASE AT BAR. This
Court finds petitioner Rodolfo Espano guilty
beyond reasonable doubt of violating Article II,
Section 8, in relation to Section 2 (e-L)(I) of
REPUBLIC ACT NO. 6425, as amended. Under the
said provision, the penalty imposed is six years
and one day to twelve years and a fine ranging
from six thousand to twelve thousand pesos. With
the passage of Republic Act No. 7659, which took
effect on December 31, 1993, the imposable
penalty shall now depend on the quantity of
drugs recovered. Under the provisions of Republic
Act No. 7659, Section 20, and as interpreted in
People v. Simon (234 SCRA 555 [1994]) and
People v. Lara, (236 SCRA 291 [1994]) if the
quantity of marijuana involved is less than 750
81 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
grams, the imposable penalty ranges from prision
correccional to reclusion temporal. Taking into
consideration that petitioner is not a habitual
delinquent, the amendatory provision is favorable
to him and the quantity of marijuana involved is
less than 750 grams, the penalty imposed under
Republic Act No. 7659 should be applied.
5. ID.; ID.; PROPER PENALTY THEREOF; CASE
AT BAR. There being no mitigating nor
aggravating circumstances, the imposable
penalty shall be prision correccional in its
medium period. Applying the Indeterminate
Sentence Law, the maximum penalty shall be
taken from the medium period of prision
correccional, which is two (2) years, four (4)
months and one (1) day to four (4) years and two
(2) months, while the minimum shall be taken
from the penalty next lower in degree, which is
one (1) month and one (1) day to six (6) months
of arresto mayor. cSDHEC
DECISION
ROMERO, J p:
This is a petition for review of the decision of the
Court of Appeals in CA-G.R. CR No. 13976 dated
January 16, 1995, 1 which affirmed in toto the
judgment of the Regional Trial Court of Manila,
Branch 1, convicting petitioner Rodolfo Espano for
violation of Article II, Section 8 of REPUBLIC ACT
NO. 6425, as amended, otherwise known as the
Dangerous Drugs Act. aisadc
Petitioner was charged under the following
information:
"That on or about July 14, 1991, in the City of
Manila, Philippines the said accused, not being
authorized by law to possess or use any
prohibited drug, did then and there wilfully,
unlawfully and knowingly have in his possession
and under his custody and control twelve (12)
plastic cellophane (bags) containing crushed
flowering tops, marijuana weighing 5.5 grams
which is prohibited drug.
Contrary to law." 2
The evidence for the prosecution, based on the
testimony of Pat. Romeo Pagilagan, shows that on
July 14, 1991, at about 12:30 a.m., he and other
police officers, namely, Pat. Wilfredo Aquilino,
Simplicio Rivera, and Erlindo Lumboy of the
Western Police District (WPD), Narcotics Division
went to Zamora and Pandacan Streets, Manila to
confirm reports of drug pushing in the area. They
saw petitioner selling "something" to another
person. After the alleged buyer left, they
approached petitioner, identified themselves as
policemen, and frisked him. The search yielded
two plastic cellophane tea bags of marijuana .
When asked if he had more marijuana, he replied
that there was more in his house. The policemen
went to his residence where they found ten more
cellophane tea bags of marijuana. Petitioner was
brought to the police headquarters where he was
charged with possession of prohibited drugs. On
July 24, 1991, petitioner posted bail 3 and the
trial court issued his order of release on July 29,
1991. 4

Annabelle Alip, forensic chemist of the WPD
Criminal Investigation Laboratory Section,
testified that the articles sent to her by Pat.
Wilfredo Aquino regarding the apprehension of a
certain Rodolfo Espano for examination tested
positive for marijuana, with total weight of 5.5
grams.
By way of defense, petitioner that on said
evening, he was sleeping in house and was
awakened only when the policemen handcuffed
him. He alleged that the policemen were looking
for his brother-in-law Lauro, and when they could
not find the latter, he was brought to the police
station for investigation and later indicted for
possession of prohibited drugs. His wife Myrna
corroborated his story.
The trial court rejected petitioner's defense as a
"mere afterthought" and found the version of the
prosecution "more credible and trustworthy."
Thus, on August 14, 1992, the trial court rendered
a decision, convicting petitioner of the crime
charged, the dispositive portion of which reads:
"WHEREFORE there being proof beyond
reasonable doubt, the court finds the accused
Rodolfo Espano y Valeria guilty of the crime of
violation of Section 8, Article II, in relation to
Section 2 (e-L) (I) of REPUBLIC ACT NO. 6425 as
amended by Batas Pambansa Blg. 179, and
pursuant to law hereby sentences him to suffer
imprisonment of six (6) years and one (1) day to
twelve (12) years and to pay a fine of P6,000.00
with subsidiary imprisonment in case of default
plus costs.
The marijuana is declared fortified in favor of
government and shall be turned over to the
Dangerous Drugs Board without delay.
SO ORDERED." 5
Petitioner appealed the decision to the Court of
Appeals. The appellate court, however, affirmed
the decision of the trial court in toto.
Hence, this petition.
Petitioner contends that the trial and appellate
courts erred in convicting him on the basis of the
following: (a) the pieces of evidence seized were
inadmissible; (b) the superiority of his
constitutional right to be presumed innocent over
the doctrine of presumption of regularity; (c) he
was denied the constitutional right of
confrontation and to compulsory process; and (d)
his conviction was based on evidence which was
irrelevant and not properly identified.
After a careful examination of the records of the
case, this Court finds no compelling reason
sufficient to reverse the decisions of the trial and
appellate courts.
First, it is a well settled doctrine that findings of
trial courts on the credibility of witnesses deserve
a high degree of respect. Having observed the
deportment of witnesses during the trial, the trial
judge is in a better position to determine the
issue of credibility and, thus, his findings will not
82 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
be disturbed during appeal in the absence of any
clear showing that he had overlooked,
misunderstood or misapplied some facts or
circumstances of weight and substance which
could have altered the conviction of the
appellants. 6
In this case, the findings of the trial court that the
prosecution witnesses were more credible than
those of the defense must stand. Petitioner failed
to show that Pat. Pagilagan, in testifying against
him, was motivated by reasons other than his
duty to curb drug abuse and had any intent to
falsely impute to him such a serious crime as
possession of prohibited drugs. In the absence of
such ill motive, the presumption of regularity of
his official duty must prevail.
In People v. Velasco, 7 this Court reiterated the
doctrine of presumption of regularity in the
performance of official duty which provides:
". . . Appellant failed to establish that Pat. Godoy
and the other members of the buy-bust team are
policemen engaged in mulcting or other
unscrupulous activities who where motivated
either by the desire to extort money or exact
personal vengeance, or by sheer whim and
caprice, when they entrapped her. And in the
absence of proof of any intent on the part of the
police authorities to falsely impute such a serious
crime against appellant, as in this case, the
presumption of regularity in the performance of
official duty, . . ., must prevail over the self-
serving and uncorroborated claim of appellant
that she had been framed." 8
Furthermore, the defense set up by petitioner
does not deserve any consideration. He simply
contended that he was in his house sleeping at
the time of the incident. This Court has
consistently held that alibi is the weakest of all
defenses; and for it to prosper, the accused has
the burden of proving that he was not at the
scene of the crime of its commission and that it
was physically impossible for him to be there.
Moreover, the "claim of a 'frame-up', like alibi, is
a defense that has been invariably viewed by the
Court with disfavor for it can just as easily be
concocted but difficult to prove, and is a common
and standard line of defense in most prosecutions
arising from violations of the Dangerous Drugs
Act." 9 No clear and convincing evidence was
presented by petitioner to prove his defense of
alibi.
Second, petitioner contends that the
prosecution's failure to present the alleged
informant in court cast a reasonable doubt which
warrants his acquittal. This is again without merit,
since failure of the prosecution to produce the
informant in court is of no moment especially
when he is not even the best witness to establish
the fact that a buy-bust operation had indeed
been conducted. In this case, Pat. Pagilagan, one
of the policemen who apprehended petitioner,
testified on the actual incident of July 14, 1991,
and identified him as the one they caught in
possession of prohibited drugs. Thus,
"We find that the prosecution had satisfactorily
proved its case against appellants. There is no
compelling reason for us to overturn the finding
of the trial court that the testimony of Sgt.
Gamboa, the lone witness for the prosecution,
was straightforward, spontaneous and
convincing. The testimony of a sole witness, if
credible and positive and satisfies the court
beyond reasonable doubt, is sufficient to convict."
10
Thus on the basis of Pat. Pagilagan's testimony,
the prosecution was able to prove that petitioner
indeed committed the crime charged;
consequently, the finding of conviction was
proper.
Lastly, the issue on the admissibility of the
marijuana seized should likewise be ruled upon.
Rule 113 Section 5(a) of the Rules of Court
provides:
"A peace officer or a private person may, without
a warrant, arrest a person:
a. when, in his presence, the person to be
arrested has committed, is actually committing,
or is attempting to commit an offense;
xxx xxx xxx."
Petitioner's arrest falls squarely under the
aforecited rule. He was caught in flagranti as a
result of a buy-bust operation conducted by
police officers on the basis of information
received regarding the illegal trade of drugs
within the area of Zamora and Pandacan Streets,
Manila. The police officer saw petitioner handing
over something to an alleged buyer. After the
buyer left, they searched him and discovered two
cellophanes of marijuana. His arrest was,
therefore, lawful and the two cellophane bags of
marijuana seized were admissible in evidence,
being the fruits of the crime.
As for the ten cellophane bags of marijuana found
at petitioner's residence, however, the same
inadmissible in evidence.
The 1987 Constitution guarantees freedom
against unreasonable searches and seizures
under Article III, Section 2 which provides:
"The right of the people to be secure in their
persons, houses, papers and effects against
unreasonable searches and seizures of whatever
nature and for any purposes shall be inviolable,
and no search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the persons or things to be seized."
An exception to the said rule is a warrantless
search incidental to a lawful arrest for dangerous
weapons or anything which may be used as proof
of the commission of an offense. 11 It may
extend beyond the person of the one arrested to
include the premises or surroundings under his
immediate control. In this case, the ten
cellophane bags of marijuana seized at
petitioner's house after his arrest at Pandacan
and Zamora Streets do not fall under the said
exceptions.
83 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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."
The articles seized from petitioner during his
arrest were valid under the doctrine of search
made incidental to a lawful arrest. The
warrantless search made in his house, however,
which yielded ten cellophane bags of marijuana
became unlawful since the police officers were
not armed with a search warrant at the time.
Moreover, it was beyond the reach and control of
petitioner.
In sum, this Court finds petitioner Rodolfo Espano
guilty beyond reasonable doubt of violating
Article II, Section 8, in relation to Section 2 (e-L)
(I) of REPUBLIC ACT NO. 6425, as amended.
Under the said provision, the penalty imposed is
six years and one day to twelve years and a fine
ranging from six thousand to twelve thousands
pesos. With the passage of Republic Act No. 7659,
with took effect on December 31, 1993, the
imposable penalty shall now depend on the
quantity of drugs recovered. Under the provisions
of Republic Act No. 7659, Section 20, and as
interpreted in People v. Simon 13 and People v.
Lara, 14 if the quantity of marijuana involved is
less than 750 grams, the imposable penalty
ranges from prision correccional to reclusion
temporal. Taking into consideration that
petitioner is not a habitual delinquent, the
amendatory provision is favorable to him and the
quantity of marijuana involved is less than 750
grams, the penalty imposed under Republic Act
No. 7659 should be applied. There being no
mitigating nor aggravating circumstances, the
imposable penalty shall be prision correccional in
its medium period. Applying the Indeterminate
Sentence Law, the maximum penalty shall be
taken from the medium period of prision
correccional, which is two (2) years, four (4)
months and one (1) day to four (4) years and two
(2) months, while the minimum shall be taken
from the penalty next lower in degree, which is
one (1) month and one (1) day six (6) months of
arresto mayor.
WHEREFORE, the instant petition is hereby
DENIED. The decision of the Court of Appeals in
C.A.-G.R. CR No. 13976 dated January 16, 1995 is
AFFIRMED with the MODIFICATION that petitioner
Rodolfo Espano is sentenced to suffer an
indeterminate penalty of TWO (2) months and
ONE (1) day of arresto mayor, as minimum of
TWO (2) years, FOUR (4) months and ONE (1) day
of prision correccional, as minimum.
SO ORDERED.
Narvasa, C .J ., Kapunan and Purisima, JJ ., concur.
ais
(Papa v. Mago, G.R. No. L-27360, February
28, 1968)
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 HON. HILARION U. JARENCIO, as
Presiding Judge of Branch 23, Court of First
Instance of Manila, respondents.
Solicitor General for petitioners.
Juan T . David for respondents.
SYLLABUS
1. CUSTOMS BUREAU; POWERS AND DUTIES
OF BUREAU OF CUSTOMS. Among others,
the Bureau of Customs has the duties, powers
and the jurisdiction 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; to prevent
and suppress smuggling and other frauds upon
the customs; and to enforce Tariff and Customs
Laws.
2. ID.; JURISDICTION; CUSTOMS BUREAU
HAS JURISDICTION OVER IMPORTED GOODS;
"IMPORTATION", MEANING OF. Where the
goods in question were imported from Hongkong
as shown in the statement and receipts of duties
collected on informal entry and where the
importation has not been terminated, the
imported goods remain under the jurisdiction of
the Bureau of Customs. Importation is terminated
only upon the payment of 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. Payment of
the duties, taxes, fees and other charges must be
in full.
3. ID; ID; BUREAU OF CUSTOMS, NOT THE
COURT OF FIRST INSTANCE, HAS
JURISDICTION OVER THE CASE WHERE
GOODS ARE UNDER CUSTODY OF SAID
BUREAU, EVEN IF NO WARRANT OF SEIZURE
AND DETENTION IS YET ISSUED ON GOODS.
Since the goods were under the custody and at
the disposal of the Bureau of Customs when the
petition for mandamus was filed in the Court of
First Instance, the latter could not exercise
jurisdiction over said goods even if the warrant of
seizure and detention of goods for purposes of
seizure and forfeiture proceedings had not yet
been issued by the Collector. It is settled that the
Bureau of Customs acquires exclusive jurisdiction
over imported goods for purposes of enforcing
the Customs laws, from the moment the goods
are actually in possession and control of said
84 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
Bureau even in the absence on any warrant of
seizure or detention.
4. ID.; ID.; SEIZURE OF GOODS BY MPD,
DEPUTIZED BY BUREAU OF CUSTOMS GAVE
THE LATTER EXCLUSIVE JURISDICTION OVER
CASE; ISSUANCE OF WARRANT OF SEIZURE
BY CUSTOMS BUREAU AFTER FILLING OF
MANDAMUS SUIT IN CFI, DID NOT DIVEST
THE LATTER OF JURISDICTION IT DID NOT
ACQUIRE. Where the Bureau of Customs,
through the Manila Police Department acting
under petitioner police chief Papa who was
formally deputized by the Commissioner of
Customs seized the goods on November 4, 1966,
the Bureau from that date acquired jurisdiction
over the goods to the exclusion of the regular
courts. The issuance of the warrant of seizure and
detention by the Customs Collector after the filing
of the mandamus suit in the regular court, did not
deprive the latter of its jurisdiction which it never
acquired in the first place, as the Bureau of
Customs had already previously acquired
jurisdiction on the case to the exclusion of regular
courts for purposes of enforcement of customs
and Tariff Laws.
5. ID.; ID.; GOODS, EVEN IF BROUGHT OUT
OF CUSTOMS AREA, STILL FALL WITHIN
JURISDICTION OF BUREAU OF CUSTOMS;
JURISDICTION OF CUSTOMS BUREAU IS
REGAINED. Even if it be conceded, arguendo,
that after the goods have been brought out of the
customs area, the Bureau of Customs lost
jurisdiction over the same, still when said goods
were intercepted at the Agrifina Circle by
members of the MPD acting under directions and
orders of petitioner Papa who had been formally
deputized by the Commissioner of Customs, such
jurisdiction was regained by the Bureau of
Customs. Sec. 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.
6. ID.; IMPORTATIONS MADE CONTRARY TO
LAW ARE SUBJECT TO FORFEITURE. Where
from the record, the duties, taxes and other
charges on the imported articles have not been
paid in full, such articles are subject to forfeiture
under Section 2530 pars. e and m, (1), (4) and (5)
of the Tariff and Customs Code; for well settled is
the rule that merchandise imported contrary to
law is subject to forfeiture and goods released
contrary to law are likewise subject to seizure and
forfeiture.
7. ID.; ID.; SEARCH WARRANT; LAWFUL
SEARCH WITHOUT SEARCH WARRANT CAN
BE EFFECTED. The Tariff and Customs Code
does not require a search warrant for purposes of
enforcing customs and Tariff Laws. Under Sec.
2203 thereof, persons having police authority
may 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 vehicle or aircraft and any trunk,
package, box or envelope or any person on board
or stop and search and examine any vehicle,
beast or person suspected of holding or
conveying any dutiable or prohibited article
introduced into the Philippines contrary to law,
without mentioning the need of a search warrant
in said cases. Except in the search of a dwelling
house, therefore, persons exercising police
authority under the customs law may effect
search and seizure without search warrant in the
enforcement of customs laws.
DECISION
ZALDIVAR, J p:
This is an original action for prohibition and
certiorari, with preliminary injunction, filed by
Ricardo Papa, Chief of Police of Manila; Juan
Ponce 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 on 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
85 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
owned by Valentin B. 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 Manila 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 that the persons deputized under Section
2203 (c) of the Tariff and Customs Code could
effect searches, 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 parties 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.
86 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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 allege, 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 agents 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 is a 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 effected by
members of the Manila Police Department at a
place outside the control and jurisdiction of the
Bureau of Customs and effected 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 bands
(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
87 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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 G. 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
were 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 purchase 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 said 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 writ of 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 proceeding 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 to 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.
88 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
"Said proceedings 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 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, box or envelope or any
person on board, or stop and search and examine
any vehicle, beast or person suspected of holding
or conveying any dutiable or prohibited article
introduced into the Philippines contrary to law,
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, therefore, 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:
"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 or similar place, and like goods in
course of transportation and concealed in a
movable vessel, where they readily could be put
out of reach of a search warrant . . ."
"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
89 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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 probable
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
Stat. 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,
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:
"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. . .
. enforcing and/or implementing his order of March
". . . 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
"bootlegging' 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 purposes 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
90 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
respondent Judge Hilarion U. Jarencio, dated
March 7, 1967, in Civil Case 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,
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; and
(e) Ordering the private respondent, Remedios
Mago, to pay the costs.
It is so ordered.
Concepcion, C . J ., Reyes, J.B.L., Dizon,
Makalintal, Bengzon, J.P., Sanchez, Castro,
Angeles and Fernando, JJ ., concur.
(People v. Musa y Hantatalu, G.R. No.
96177, January 27, 1993)
THIRD DIVISION
[G.R. No. 96177. January 27, 1993.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. MARI MUSA y HANTATALU, accused-appellant.
The Solicitor General for plaintiff-appellee.
Pablo L. Murillo for accused-appellant.
SYLLABUS
1. CRIMINAL LAW; DANGEROUS DRUGS ACT
(R.A. 6425); ILLEGAL SALE OF MARIJUANA
DRUGS; FAMILIARITY BETWEEN BUYER AND
SELLER, NOT MATERIAL. 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.
2. ID.; ID.; ID.; PRESENCE OF OTHER
PEOPLE, NOT CRUCIAL. 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 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, 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.
3. ID.; ID.; ID.; CASE OF PEOPLE VS. ALE,
NOT APPLICABLE IN CASE AT BAR. The
case of 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. 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. 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."
4. REMEDIAL LAW; EVIDENCE;
CORROBORATIVE EVIDENCE SUPPORTING
DIRECT EVIDENCE; SUFFICIENT TO PROVE
THE CRIME COMMITTED. 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. 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 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.
5. CONSTITUTIONAL LAW; BILL OF RIGHTS;
FREEDOM AGAINST UNREASONABLE SEARCH
AND SEIZURE; EVIDENCE OBTAINED IN
VIOLATION THEREOF. Built into the
Constitution are guarantees on the freedom of
every individual against unreasonable searches
and seizures. Furthermore, the Constitution, in
conformity with the doctrine laid down in
Stonehill v. Diokno, (G.R. No. L-19550, June 19,
1967, 20 SCRA 383) declares inadmissible, any
evidence obtained in violation of the freedom
from unreasonable searches and seizures.
6. REMEDIAL LAW; CRIMINAL PROCEDURE;
SEARCH & SEIZURE; SEARCH INCIDENTAL TO
LAWFUL ARREST. 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, 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." Rule 126, Section 12 of the Rules of Court
expressly authorizes a warrantless search and
seizure incident to a lawful arrest. 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 and money or property found
upon his person which was used in the
91 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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 . . ." 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.
7. ID.; ID.; ID.; ID.; DOCTRINE OF "PLAIN
VIEW". 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. 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.
8. ID.; ID.; ID.; ID.; ID.; LIMITATION. 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. 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. 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.
9. ID.; ID.; ID.; ID.; ID.; NOT APPLICABLE IN
CASE AT BAR. 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. 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 transparency, or otherwise, that
its contents are obvious to an observer. 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.
10. REMEDIAL LAW; EVIDENCE; QUANTUM
OF PROOF REQUIRED IN CRIMINAL;
SATISFIED IN CASE AT BAR. 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.
DECISION
ROMERO, J p:
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: LLjur
"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
92 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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-1').
The team under Sgt. Foncargas was assigned as
back-up security. A pre-arranged 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'). LexLib
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. 'E-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
93 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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. cdll
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 pre-
arranged 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
94 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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. cdll
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: 2 2
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, 1939; 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 buy-bust 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. cdll
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
95 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witness he may produce,
and particularly describing the place to be
searched and the persons or things to be seized."
Furthermore, the Constitution, in conformity with
the doctrine laid down in Stonehill v. Diokno, 34
declares 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:
SECTION 12. Search incident to lawful arrest. A
person lawfully arrested may be searched for
dangerous weapons or anything which may be
used as proof of the commission of an offense,
without a search warrant.
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 and
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. LLjur
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." 43 The
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
96 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
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.
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 v.
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 transparency, or otherwise, that its contents
are obvious to an observer. 48
We, therefore, hold that under the circumstances
of the case, the "plain view" doctrine does not
apply and the 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. cdrep
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.
Gutierrez, Jr., Bidin, Davide, Jr. and Melo, JJ .,
concur.
(Valmonte v. De Villa, G.R. No. 83988,
September 29, 1989)
EN BANC
[G.R. No. 83988. September 29, 1989.]
RICARDO C. VALMONTE AND UNION OF
LAWYERS AND ADVOCATES FOR PEOPLE'S RIGHTS
(ULAP), petitioners, vs. GEN. RENATO DE VILLA
AND NATIONAL CAPITAL REGION DISTRICT
COMMAND, respondents.
Ricardo C. Valmonte for himself and his co-
petitioners.
SYLLABUS
SARMIENTO, J., dissenting:
1. CONSTITUTIONAL LAW; CONSTITUTION;
BEDROCK OF THE REGIME OF LAW AND
CONSTITUTIONALISM. The Charter says that
the people enjoy the right of security of person,
home, and effects. (CONST., art. III, sec. 2.) It is
also the bedrock the right of the people to be
left alone on which the regime of law and
constitutionalism rest. It is not, as the majority
would put it, a matter of "occasional
inconveniences, discomfort and even irritation."
(Resolution, 4.) To say that it is, is so I submit
to trivialize the plain command of the
Constitution.
2. ID.; SEARCH AND SEIZURE; BURDEN OF
PROVING REASONABLENESS INCUMBENT
UPON THE STATE. While the right against
unreasonable searches and seizures, as my
brethren advance, is a right personal to the
aggrieved party, the petitioners, precisely, have
come to Court because they had been, or had
felt, aggrieved. I submit that in that event, the
burden is the State's, to demonstrate the
reasonableness of the search. The petitioners,
Ricardo Valmonte in particular, need not,
therefore, have illustrated the "details of the
incident" (Resolution, supra, 4) in all their gore
and gruesomeness.
3. ID.; ID.; ABSENCE ALONE OF A SEARCH
WARRANT MAKES CHECKPOINT SEARCHES
UNREASONABLE. The absence alone of a
search warrant, as I have averred, makes
checkpoint searches unreasonable, and by itself,
subject to constitutional challenges. (Supra.) As it
is, "checkpoints", have become "search warrants"
unto themselves a roving one at that.
4. ID.; ID.; CASE AT BAR NOT SIMPLY A
POLICEMAN ON THE BEAT. The American
cases the majority refers to involve routine
checks compelled by "probable cause". What we
have here, however, is not simply a policeman on
the beat but armed men, CAFGU or Alsa Masa,
who hold the power of life or death over the
citizenry, who fire with no provocation and
without batting an eyelash. They likewise shoot
you simply because they do not like your face.
97 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
DECISION
PADILLA, J p:
This is a petition for prohibition with preliminary
injunction and/or temporary restraining order,
seeking the declaration of checkpoints in
Valenzuela, Metro Manila or elsewhere, as
unconstitutional and the dismantling and banning
of the same or, in the alternative, to direct the
respondents to formulate guidelines in the
implementation of checkpoints, for the protection
of the people.
Petitioner Ricardo C. Valmonte sues in his
capacity as citizen of the Republic, taxpayer,
member of the Integrated Bar of the Philippines
(IBP), and resident of Valenzuela, Metro Manila;
while petitioner Union of Lawyers and Advocates
for People's Rights (ULAP) sues in its capacity as
an association whose members are all members
of the IBP.
The factual background of the case is as follows:
On 20 January 1987, the National Capital Region
District Command (NCRDC) was activated
pursuant to Letter of Instruction 02/87 of the
Philippine General Headquarters, AFP, with the
mission of conducting security operations within
its area of responsibility and peripheral areas, for
the purpose of establishing an effective territorial
defense, maintaining peace and order, and
providing an atmosphere conducive to the social,
economic and political development of the
National Capital Region. 1 As part of its duty to
maintain peace and order, the NCRDC installed
checkpoints in various parts of Valenzuela, Metro
Manila.
Petitioners aver that, because of the installation
of said checkpoints, the residents of Valenzuela
are worried of being harassed and of their safety
being placed at the arbitrary, capricious and
whimsical disposition of the military manning the
checkpoints, considering that their cars and
vehicles are being subjected to regular searches
and check-ups, especially at night or at dawn,
without the benefit of a search warrant and/or
court order. Their alleged fear for their safety
increased when, at dawn of 9 July 1988, Benjamin
Parpon, a supply officer of the Municipality of
Valenzuela, Bulacan, was gunned down allegedly
in cold blood by the members of the NCRDC
manning the checkpoint along McArthur Highway
at Malinta, Valenzuela, for ignoring and/or
refusing to submit himself to the checkpoint and
for continuing to speed off inspite of warning
shots fired in the air. Petitioner Valmonte also
claims that, on several occasions, he had gone
thru these checkpoints where he was stopped
and his car subjected to search/check-up without
a court order or search warrant.
Petitioners further contend that the said
checkpoints give the respondents a blanket
authority to make searches and/or seizures
without search warrant or court order in violation
of the Constitution; 2 and, instances have
occurred where a citizen, while not killed, had
been harassed.
Petitioners' concern for their safety and
apprehension at being harassed by the military
manning the checkpoints are not sufficient
grounds to declare the checkpoints as per se
illegal. No proof has been presented before the
Court to show that, in the course of their routine
checks, the military indeed committed specific
violations of petitioners' right against unlawful
search and seizure or other rights.
In a case filed by the same petitioner
organization, Union of Lawyers and Advocates for
People's Right (ULAP) vs. Integrated National
Police, 3 it was held that individual petitioners
who do not allege that any of their rights were
violated are not qualified to bring the action, as
real parties in interest.
The constitutional right against unreasonable
searches and seizures is a personal right
invocable only by those whose rights have been
infringed, 4 or threatened to be infringed. What
constitutes a reasonable or unreasonable search
and seizure in any particular case is purely a
judicial question, determinable from a Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin,
consideration of the circumstances involved. 5
Petitioner Valmonte's general allegation to the
effect that he had been stopped and searched
without a search warrant by the military manning
the checkpoints, without more, i.e., without
stating the details of the incidents which amount
to a violation of his right against unlawful search
and seizure, is not sufficient to enable the Court
to determine whether there was a violation of
Valmonte's right against unlawful search and
seizure. Not all searches and seizures are
prohibited. Those which are reasonable are not
forbidden. A reasonable search is not to be
determined by any fixed formula but is to be
resolved according to the facts of each case. 6
Where, for example, the officer merely draws
aside the curtain of a vacant vehicle which is
parked on the public fair grounds, 7 or simply
looks into a vehicle, 8 or flashes a light therein, 9
these do not constitute unreasonable search.
The setting up of the questioned checkpoints in
Valenzuela (and probably in other areas) may be
considered as a security measure to enable the
NCRDC to pursue its mission of establishing
effective territorial defense and maintaining
peace and order for the benefit of the public.
Checkpoints may also be regarded as measures
to thwart plots to destabilize the government, in
the interest of public security. In this connection,
the Court may take judicial notice of the shift to
urban centers and their suburbs of the insurgency
movement, so clearly reflected in the increased
killings in cities of police and military men by NPA
"sparrow units," not to mention the abundance of
unlicensed firearms and the alarming rise in
lawlessness and violence in such urban centers,
not all of which are reported in media, most likely
brought about by deteriorating economic
conditions which all sum up to what one can
rightly consider, at the very least, as abnormal
times. Between the inherent right of the state to
protect its existence and promote public welfare
and an individual's right against a warrantless
search which is however reasonably conducted,
the former should prevail.
True, the manning of checkpoints by the military
is susceptible of abuse by the men in uniform, in
98 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
the same manner that all governmental power is
susceptible of abuse. But, at the cost of
occasional inconvenience, discomfort and even
irritation to the citizen, the checkpoints during
these abnormal times, when conducted within
reasonable limits, are part of the price we pay for
an orderly society and a peaceful community.
Finally, on 17 July 1988, military and police
checkpoints in Metro Manila were temporarily
lifted and a review and refinement of the rules in
the conduct of the police and military manning
the checkpoints was ordered by the National
Capital Regional Command Chief and the
Metropolitan Police Director. 10
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera,
Cortes, Grio-Aquino, Medialdea and Regalado,
JJ., concur.
(Miclat, Jr. y Cerbo v. People, G.R. No.
176077, August 31, 2011)
THIRD DIVISION
[G.R. No. 176077. August 31, 2011.]
ABRAHAM MICLAT, JR. y CERBO, petitioner, vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
PERALTA, J p:
This is a petition for review on certiorari seeking
to reverse and set aside the Decision 1 dated
October 13, 2006 of the Court of Appeals (CA) in
CA-G.R. CR No. 28846, which in turn affirmed in
toto the Decision of the Regional Trial Court (RTC),
Branch 120, Caloocan City, in Criminal Case No.
C-66765 convicting petitioner of Violation of
Section 11, Article II of Republic Act (RA) No.
9165, or the Comprehensive Dangerous Drugs
Act of 2002. SaIHDA
The factual and procedural antecedents are as
follows:
In an Information 2 dated November 11, 2002,
petitioner Abraham C. Miclat, Jr. was charged for
Violation of Section 11, Article II of RA No. 9165,
the accusatory portion of which reads:
That on or about the 08th day of November 2002,
in Caloocan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-
named accused, without the authority of law, did
then and there willfully and feloniously have in
his possession, custody and control
[METHAMPHETAMINE] HYDROCHLORIDE (SHABU)
weighing 0.24 gram, knowing the same to be a
dangerous drug under the provisions of the
above-cited law.
CONTRARY TO LAW. (Emphasis supplied.) 3
Upon arraignment, petitioner, with the assistance
of counsel pleaded not guilty to the crime
charged. Consequently, trial on the merits
ensued.
To establish its case, the prosecution presented
Police Inspector Jessie Abadilla Dela Rosa (P/Insp.
Dela Rosa), Forensic Chemical Officer of the
Philippine National Police (PNP) Crime Laboratory,
NPD-CLO, Caloocan City Police Station and Police
Officer 3 Rodrigo Antonio (PO3 Antonio) of the
Caloocan Police Station Drug Enforcement Unit.
The testimony of the police investigator, PO3
Fernando Moran (PO3 Moran), was dispensed with
after petitioner's counsel admitted the facts
offered for stipulation by the prosecution.
On the other hand, the defense presented the
petitioner as its sole witness. The testimonies of
Abraham Miclat, Sr. and Ma. Concepcion Miclat,
the father and sister, respectively, of the
petitioner was dispensed with after the
prosecution agreed that their testimonies were
corroborative in nature.
Evidence for the Prosecution
First to testify for the prosecution was P/Insp.
Jessie Abadilla Dela Rosa, Forensic Chemical
Officer of the PNP Crime Laboratory, NPD-CLO,
Caloocan City Police Station who, on the witness
stand, affirmed his own findings in Physical
Science Report No. D-1222-02 (Exhs. "D," "D-1,"
and "D-2") that per qualitative examination
conducted on the specimen submitted, the white
crystalline substance weighing 0.05 gram, 0.06
gram, 0.07 gram, and 0.06 gram then contained
inside four (4) separate pieces of small heat-
sealed transparent plastic sachets (Exhs. "D-4" to
"D-7") gave positive result to the test for
Methylamphetamine (sic) Hydrochloride, a SDEU out to effect his (Abe) arrest for alleged
dangerous drug.
Also, thru the testimony of PO3 Rodrigo Antonio
of the Caloocan Police Station-Drug Enforcement
Unit, Samson Road, Caloocan City, the
prosecution further endeavored to establish the
following:
At about 1:00 o'clock in the afternoon of
November 8, 2002, P/Insp. Jose Valencia of the
Caloocan City Police Station-SDEU called upon his
subordinates after the (sic) receiving an INFOREP
Memo from Camp Crame relative to the illicit and
down-right drug-trading activities being
undertaken along Palmera Spring II, Bagumbong,
Caloocan City involving Abe Miclat, Wily alias
"Bokbok" and one Mic or Jojo (Exhs. "E," "E-1,"
and (sic) "E-3," and "E-4"). Immediately, P/Insp.
Valencia formed a surveillance team headed by
SPO4 Ernesto Palting and is composed of five (5)
more operatives from the Drug Enforcement Unit,
namely: PO3 Pagsolingan, PO2 Modina, PO2 De
Ocampo, and herein witness PO3 Antonio. After a
short briefing at their station, the team boarded a
rented passenger jeepney and proceeded to the
target area to verify the said informant and/or
memorandum.
When the group of SPO4 Palting arrived at
Palmera Spring II, Caloocan City at around 3:50
o'clock that same afternoon, they were [at] once
led by their informant to the house of one Alias
"Abe." PO3 Antonio then positioned himself at the
perimeter of the house, while the rest of the
members of the group deployed themselves
nearby. Thru a small opening in the curtain-
covered window, PO3 Antonio peeped inside and
there at a distance of 1 1/2 meters, he saw "Abe"
99 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
arranging several pieces of small plastic sachets
which he believed to be containing shabu. Slowly,
said operative inched his way in by gently
pushing the door as well as the plywood covering
the same. Upon gaining entrance, PO3 Antonio
forthwith introduced himself as a police officer
while "Abe," on the other hand, after being
informed of such authority, voluntarily handed
over to the former the four (4) pieces of small
plastic sachets the latter was earlier sorting out.
PO3 Antonio immediately placed the suspect
under arrest and brought him and the four (4)
pieces of plastic sachets containing white
crystalline substance to their headquarters and
turned them over to PO3 Fernando Moran for
proper disposition. The suspect was identified as
Abraham Miclat y Cerbo a.k.a "ABE," 19 years old,
single, jobless and a resident of Maginhawa
Village, Palmera Spring II, Bagumbong, Caloocan
City. 4 ADCSEa
Evidence for the Defense
On the other hand, the [petitioner] has a different
version of the incident completely opposed to the
theory of the prosecution. On the witness stand,
he alleged that at about 4:00 o'clock in the
afternoon of November 8, 2002, while he,
together with his sister and father, were at the
upper level of their house watching the television
soap "Cindy," they suddenly heard a commotion
downstairs prompting the three (3) of them to go
down. There already inside were several male
individuals in civilian clothes who introduced
themselves as raiding police operatives from the
drug pushing. [Petitioner] and his father tried to
plead his case to these officers, but to no avail.
Instead, one of the operatives even kicked
[petitioner] at the back when he tried to resist the
arrest. Immediately, [petitioner] was handcuffed
and together with his father, they were boarded
inside the police vehicle. That on their way to the
Bagong Silang Police Station, PO3 Pagsolingan
showed to [petitioner] a small piece of plastic
sachet containing white crystalline substances
allegedly recovered by the raiding police team
from their house. At around 9:00 o'clock in the
evening, [petitioner] was transferred to the
Sangandaan Headquarters where he was finally
detained. That upon [petitioner's] transfer and
detention at the said headquarters, his father was
ordered to go home. 5
On July 28, 2004, the RTC, after finding that the
prosecution has established all the elements of
the offense charged, rendered a Decision 6
convicting petitioner of Violation of Section 11,
Article II of RA No. 9165, the dispositive portion of
which reads:
WHEREFORE, from the facts established, the
Court finds the accused ABRAHAM MICLAT Y
CERBO "GUILTY" beyond reasonable doubt of the
crime of possession of a dangerous drugs (sic)
defined and penalized under the provision of
Section 11, sub-paragraph No. (3), Article II of
Republic Act No. 9165 and hereby imposes upon
him an indeterminate penalty of six (6) years and
one (1) day to twelve (12) years of imprisonment,
in view of the absence of aggravating
circumstances. The Court likewise orders the
accused to pay the amount of Three Hundred
Thousand Pesos (Php300,000.00) as fine.

Let the 0.24 gram of shabu subject matter of this
case be confiscated and forfeited in favor of the
Government and to be turned over to the
Philippine Drug Enforcement Agency for proper
disposition.
SO ORDERED. (Emphasis supplied.) 7
Aggrieved, petitioner sought recourse before the
CA, which appeal was later docketed as CA-G.R.
CR No. 28846.
On October 13, 2006, the CA rendered a Decision
8 affirming in toto the decision of the RTC, the
dispositive portion of which reads:
WHEREFORE, the foregoing considered, the
appeal is hereby DISMISSED and the assailed
Decision AFFIRMED in toto. Costs against the
accused-appellant.
SO ORDERED. (Emphasis supplied.) 9
In affirming the RTC, the CA ratiocinated that
contrary to the contention of the petitioner, the
evidence presented by the prosecution were all
admissible against him. Moreover, it was
established that he was informed of his
constitutional rights at the time of his arrest.
Hence, the CA opined that the prosecution has
proven beyond reasonable doubt all of the
elements necessary for the conviction of the
petitioner for the offense of illegal possession of
dangerous drugs.
Hence, the petition raising the following errors:
1.WHETHER OR NOT A POLICE SURVEILLANCE
TEAM SENT TO DETERMINE THE VERACITY OF A
CAMP CRAME MEMORANDUM OF SHABU TRADING
ACTIVITY AT CALOOCAN CITY, WHICH CONVERTED
THEIR MISSION FROM SURVEILLANCE TO A
RAIDING TEAM, CAN VALIDLY MAKE AN ARREST
AND SEARCH WITHOUT A VALID WARRANT
HAVING BEEN FIRST OBTAINED FROM A COURT OF
COMPETENT JURISDICTION. DCSETa
2.WHETHER OR NOT PEEPING THROUGH A
CURTAIN-COVERED WINDOW IS WITHIN THE
MEANING OF "PLAIN VIEW DOCTRINE" FOR A
WARRANTLESS SEIZURE TO BE LAWFUL.
3.WHETHER OR NOT THE BELIEF OF PO3
ANTONIO THAT THE FOUR (4) PIECES OF PLASTIC
SACHETS ALLEGEDLY BEING ARRANGED BY
PETITIONER CONTAINED SHABU JUSTIFIED HIS
ENTRY INTO THE HOUSE AND ARREST PETITIONER
WITHOUT ANY WARRANT.
4.WHETHER OR NOT ARRANGING FOUR (4)
PIECES OF PLASTIC SACHETS CONSTITUTE AS A
CRIME WITHIN THE MEANING OF SECTION 5 (3),
RULE 113 OF THE RULES OF COURT.
5.WHETHER OR NOT PETITIONER WAS PROPERLY
APPRAISED (SIC) OF HIS CONSTITUTIONAL RIGHTS
TO BE INFORMED OF THE CAUSE AND NATURE OF
HIS ARREST AND RIGHT TO BE ASSISTED BY
COUNSEL DURING THE PERIOD OF HIS ARREST
AND CONTINUED DETENTION.
100 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
6.WHETHER OR NOT THE CONVICTION BY THE
LOWER COURT OF THE PETITIONER, AS AFFIRMED
BY THE HONORABLE COURT OF APPEALS, ON THE
BASIS OF AN ILLEGAL SEARCH AND ARREST, IS
CORRECT. 10
Simply stated, petitioner is assailing the legality
of his arrest and the subsequent seizure of the
arresting officer of the suspected sachets of
dangerous drugs from him. petitioner insists that
he was just watching television with his father
and sister when police operatives suddenly
barged into their home and arrested him for
illegal possession of shabu.
Petitioner also posits that being seen in the act of
arranging several plastic sachets inside their
house by one of the arresting officers who was
peeping through a window is not sufficient reason
for the police authorities to enter his house
without a valid search warrant and/or warrant of
arrest. Arguing that the act of arranging several
plastic sachets by and in itself is not a crime per
se, petitioner maintains that the entry of the
police surveillance team into his house was
illegal, and no amount of incriminating evidence
will take the place of a validly issued search
warrant. Moreover, peeping through a curtain-
covered window cannot be contemplated as
within the meaning of the plain view doctrine,
rendering the warrantless arrest unlawful.
Petitioner also contends that the chain of custody
of the alleged illegal drugs was highly
questionable, considering that the plastic sachets
were not marked at the place of the arrest and no
acknowledgment receipt was issued for the said
evidence.
Finally, petitioner claims that the arresting officer
did not inform him of his constitutional rights at
any time during or after his arrest and even
during his detention. Hence, for this infraction,
the arresting officer should be punished
accordingly.
The petition is bereft of merit.
At the outset, it is apparent that petitioner raised
no objection to the irregularity of his arrest before
his arraignment. Considering this and his active
participation in the trial of the case, jurisprudence
dictates that petitioner is deemed to have
submitted to the jurisdiction of the trial court,
thereby curing any defect in his arrest. 11 An
accused is estopped from assailing any
irregularity of his arrest if he fails to raise this
issue or to move for the quashal of the
information against him on this ground before
arraignment. Any objection involving a warrant of
arrest or the procedure by which the court
acquired jurisdiction over the person of the
accused must be made before he enters his plea;
otherwise, the objection is deemed waived. 12
In the present case, at the time of petitioner's
arraignment, there was no objection raised as to
the irregularity of his arrest. Thereafter, he
actively participated in the proceedings before
the trial court. In effect, he is deemed to have
waived any perceived defect in his arrest and
effectively submitted himself to the jurisdiction of
the court trying his case. At any rate, the illegal
arrest of an accused is not sufficient cause for
setting aside a valid judgment rendered upon a
sufficient complaint after a trial free from error. It
will not even negate the validity of the conviction
of the accused. 13
True, the Bill of Rights under the present
Constitution provides in part:
SEC. 2.The right of the people to be secure in
their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the persons or things to be seized.
CTcSAE
However, a settled exception to the right
guaranteed by the above-stated provision is that
of an arrest made during the commission of a
crime, which does not require a previously issued
warrant. Such warrantless arrest is considered
reasonable and valid under Section 5 (a), Rule
113 of the Revised Rules on Criminal Procedure,
to wit:
Sec. 5.Arrest without warrant; when lawful. a
peace office of a private person may, without a
warrant, arrest a person:
(a)When, in his presence, the person to be
arrested has committed, is actually committing,
or is attempting to commit an offense; 14
For the exception in Section 5 (a), Rule 113 to
operate, this Court has ruled that two (2)
elements must be present: (1) the person to be
arrested must execute an overt act indicating
that he has just committed, is actually
committing, or is attempting to commit a crime;
and (2) such overt act is done in the presence or
within the view of the arresting officer. 15
In the instant case, contrary to petitioner's
contention, he was caught in flagrante delicto
and the police authorities effectively made a valid
warrantless arrest. The established facts reveal
that on the date of the arrest, agents of the
Station Drug Enforcement Unit (SDEU) of the
Caloocan City Police Station were conducting a
surveillance operation in the area of Palmera
Spring II to verify the reported drug-related
activities of several individuals, which included
the petitioner. During the operation, PO3 Antonio,
through petitioner's window, saw petitioner
arranging several plastic sachets containing what
appears to be shabu in the living room of their
home. The plastic sachets and its suspicious
contents were plainly exposed to the view of PO3
Antonio, who was only about one and one-half
meters from where petitioner was seated. PO3
Antonio then inched his way in the house by
gently pushing the door. Upon gaining entrance,
the operative introduced himself as a police
officer. After which, petitioner voluntarily handed
over to PO3 Antonio the small plastic sachets.
PO3 Antonio then placed petitioner under arrest
and, contrary to petitioner's contention, PO3
101 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
Antonio informed him of his constitutional rights.
16 PO3 Antonio then took the petitioner and the
four (4) pieces of plastic sachets to their
headquarters and turned them over to PO3
Moran. Thereafter, the evidence were marked
"AMC 1-4," the initials of the name of the
petitioner. The heat-sealed transparent sachets
containing white crystalline substance were
submitted to the PNP Crime Laboratory for drug
examination, which later yielded positive results
for the presence of methamphetamine
hydrochloride, a dangerous drug under RA No.
9165.
Considering the circumstances immediately prior
to and surrounding the arrest of the petitioner,
petitioner was clearly arrested in flagrante delicto
as he was then committing a crime, violation of
the Dangerous Drugs Act, within the view of the
arresting officer.
As to the admissibility of the seized drugs in
evidence, it too falls within the established
exceptions.
Verily, no less than the 1987 Constitution
mandates that a search and consequent seizure
must be carried out with a judicial warrant;
otherwise, it becomes unreasonable, and any
evidence obtained therefrom shall be
inadmissible for any purpose in any proceeding.
17 The right against warrantless searches and
seizure, however, is subject to legal and judicial
exceptions, namely:
1.Warrantless search incidental to a lawful arrest;
2.Search of evidence in "plain view";
3.Search of a moving vehicle;
4.Consented warrantless search;
5.Customs search;
6.Stop and Frisk; and
7.Exigent and emergency circumstances. 18
What constitutes a reasonable or unreasonable
warrantless search or seizure is purely a judicial
question, determinable from the uniqueness of
the circumstances involved, including the
purpose of the search or seizure, the presence or
absence of probable cause, the manner in which
the search and seizure was made, the place or
thing searched, and the character of the articles
procured. 19
It is to be noted that petitioner was caught in the
act of arranging the heat-sealed plastic sachets in
plain sight of PO3 Antonio and he voluntarily
surrendered them to him upon learning that he is
a police officer. The seizure made by PO3 Antonio
of the four plastic sachets from the petitioner was
not only incidental to a lawful arrest, but it also
falls within the purview of the "plain view"
doctrine.
Objects falling in plain view of an officer who has
a right to be in a position to have that view are
subject to seizure even without a search warrant
and may be introduced in evidence. The "plain
view" doctrine applies when the following
requisites concur: (a) the law enforcement officer
in search of the evidence has a prior justification
for an intrusion or is in a position from which he
can view a particular area; (b) the discovery of
evidence in plain view is inadvertent; (c) it is
immediately apparent to the officer that the item
he observes may be evidence of a crime,
contraband or otherwise subject to seizure. The
law enforcement officer must lawfully make an
initial intrusion or properly be in a position from
which he can particularly view the area. In the
course of such lawful intrusion, he came
inadvertently across a piece of evidence
incriminating the accused. The object must be
open to eye and hand and its discovery
inadvertent. (Emphasis supplied.) 20 cITCAa
It is clear, therefore, that an object is in plain view
if the object itself is plainly exposed to sight.
Since petitioner's arrest is among the exceptions
to the rule requiring a warrant before effecting an
arrest and the evidence seized from the
petitioner was the result of a warrantless search
incidental to a lawful arrest, which incidentally
was in plain view of the arresting officer, the
results of the ensuing search and seizure were
admissible in evidence to prove petitioner's guilt
of the offense charged.
As to petitioner's contention that the police failed
to comply with the proper procedure in the
transfer of custody of the seized evidence
thereby casting serious doubt on its seizure, this
too deserves scant consideration.
Section 21, paragraphs 1 and 2, Article II of RA
No. 9165 provides:
Section 21.Custody and Disposition of
Confiscated, Seized, and/or Surrendered
Dangerous Drugs, Plant Sources of Dangerous
Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment. The PDEA shall take
charge and have custody of all dangerous drugs,
plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or
surrendered, for proper disposition in the
following manner:
(1)The apprehending team having initial custody
and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and
photograph the same in the presence of the
accused or the person/s from whom such items
were confiscated and/or seized, or his/her
representative or counsel, a representative from
the media and the Department of Justice (DOJ),
and any elected public official who shall be
required to sign the copies of the inventory and
be given a copy thereof;
(2)Within twenty-four (24) hours upon
confiscation/seizure of dangerous drugs, plant
sources of dangerous drugs, controlled precursors
and essential chemicals, as well as
instruments/paraphernalia and/or laboratory
equipment, the same shall be submitted to the
PDEA Forensic Laboratory for a qualitative and
quantitative examination;
102 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
xxx xxx xxx.
Corolarilly, the implementing provision of Section
21 (a), Article II of the Implementing Rules and
Regulations (IRR) of RA No. 9165, provides:
(a)The apprehending team having initial custody
and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and
photograph the same in the presence of the
accused or the person/s from whom such items
were confiscated and/or seized, or his/her
representative or counsel, a representative from
the media and the Department of Justice (DOJ),
and any elected public official who shall be
required to sign the copies of the inventory and
be given a copy thereof: Provided, further, that
non-compliance with these requirements under
justifiable grounds, as long as the integrity and
the evidentiary value of the seized items are
properly preserved by the apprehending
officer/team, shall not render void and invalid
such seizures of and custody over said items.
xxx xxx xxx. 21
From the foregoing, it is clear that the failure of
the law enforcers to comply strictly with the rule
is not fatal. It does not render petitioner's arrest
illegal nor the evidence adduced against him
inadmissible. 22 What is essential is "the
preservation of the integrity and the evidentiary
value of the seized items, as the same would be
utilized in the determination of the guilt or
innocence of the accused." 23
Here, the requirements of the law were
substantially complied with and the integrity of
the drugs seized from the petitioner was
preserved. More importantly, an unbroken chain
of custody of the prohibited drugs taken from the
petitioner was sufficiently established. The
factual antecedents of the case reveal that the
petitioner voluntarily surrendered the plastic
sachets to PO3 Antonio when he was arrested.
Together with petitioner, the evidence seized
from him were immediately brought to the police
station and upon arriving thereat, were turned
over to PO3 Moran, the investigating officer.
There the evidence was marked. The turn-over of
the subject sachets and the person of the
petitioner were then entered in the official blotter.
Thereafter, the Chief of the SDEU, Police Senior
Inspector Jose Ramirez Valencia, endorsed the
evidence for laboratory examination to the
National Police District PNP Crime Laboratory. The
evidence was delivered by PO3 Moran and
received by Police Inspector Jessie Dela Rosa. 24
After a qualitative examination of the contents of
the four (4) plastic sachets by the latter, the
same tested positive for methamphetamine
hydrochloride, a dangerous drug. 25 THDIaC
An unbroken chain of custody of the seized drugs
had, therefore, been established by the
prosecution from the arresting officer, to the
investigating officer, and finally to the forensic
chemist. There is no doubt that the items seized
from the petitioner at his residence were also the
same items marked by the investigating officer,
sent to the Crime Laboratory, and later on tested
positive for methamphetamine hydrochloride.

For conviction of illegal possession of a prohibited
drug to lie, the following elements must be
established: (1) the accused was in possession of
an item or an object identified to be a prohibited
or regulated drug; (2) such possession is not
authorized by law; and (3) the accused was freely
and consciously aware of being in possession of
the drug. 26 Based on the evidence submitted by
the prosecution, the above elements were duly
established in the present case. Mere possession
of a regulated drug per se constitutes prima facie
evidence of knowledge or animus possidendi
sufficient to convict an accused absent a
satisfactory explanation of such possession the
onus probandi is shifted to the accused, to
explain the absence of knowledge or animus
possidendi. 27
It is a settled rule that in cases involving
violations of the Comprehensive Dangerous
Drugs Act, credence is given to prosecution
witnesses who are police officers for they are
presumed to have performed their duties in a
regular manner. 28 Although not constrained to
blindly accept the findings of fact of trial courts,
appellate courts can rest assured that such facts
were gathered from witnesses who presented
their statements live and in person in open court.
In cases where conflicting sets of facts are
presented, the trial courts are in the best position
to recognize and distinguish spontaneous
declaration from rehearsed spiel, straightforward
assertion from a stuttering claim, definite
statement from tentative disclosure, and to a
certain degree, truth from untruth. 29
In the present case, there is no compelling reason
to reverse the findings of fact of the trial court.
No evidence exist that shows any apparent
inconsistencies in the narration of the prosecution
witnesses of the events which transpired and led
to the arrest of petitioner. After a careful
evaluation of the records, We find no error was
committed by the RTC and the CA to disregard
their factual findings that petitioner committed
the crime charged against him.
Against the overwhelming evidence of the
prosecution, petitioner merely denied the
accusations against him and raised the defense
of frame-up. The defense of denial and frame-up
has been invariably viewed by this Court with
disfavor, for it can easily be concocted and is a
common and standard defense ploy in
prosecutions for violation of the Dangerous Drugs
Act. In order to prosper, the defense of denial and
frame-up must be proved with strong and
convincing evidence. 30
As to the penalty, while We sustain the amount of
fine, the indeterminate sentence imposed should,
however, be modified.
Section 11, Article II, RA No. 9165, otherwise
known as the Comprehensive Dangerous Drugs
Act of 2002, provides:
Section 11.Possession of Dangerous Drugs. The
penalty of life imprisonment to death and a fine
103 | C O N S T I 2 _ S e a r c h e r s a n d S e i z u r e s
ranging from Five hundred thousand pesos
(P500,000.00) to Ten million pesos
(P10,000,000.00) shall be imposed upon any
person, who, unless authorized by law, shall
possess any dangerous drug in the following
quantities, regardless of the degree of purity
thereof:
xxx xxx xxx.
Otherwise, if the quantity involved is less than
the foregoing quantities, the penalties shall be
graduated as follows:
xxx xxx xxx.
(3)Imprisonment of twelve (12) years and one (1)
day to twenty (20) years and a fine ranging from
Three hundred thousand pesos (P300,000.00) to
Four hundred thousand pesos (P400,000.00), if
the quantities of dangerous drugs are less than
five (5) grams of opium, morphine, heroin,
cocaine or cocaine hydrochloride, marijuana resin
or marijuana resin oil, methamphetamine
hydrochloride or "shabu", or other dangerous
drugs such as, but not limited to, MDMA or
"ecstasy," PMA, TMA, LSD, GHB, and those
similarly designed or newly-introduced drugs and
their derivatives, without having any therapeutic
value or if the quantity possessed is far beyond
therapeutic requirements; or less than three
hundred (300) grams of marijuana. 31
From the foregoing, illegal possession of less than
five (5) grams of methamphetamine
hydrochloride or shabu is penalized with
imprisonment of twelve (12) years and one (1)
day to twenty (20) years and a fine ranging from
Three Hundred Thousand Pesos (P300,000.00) to
Four Hundred Thousand Pesos (P400,000.00). The
evidence adduced by the prosecution established
beyond reasonable doubt that petitioner had in
his possession 0.24 gram of shabu, or less than
five (5) grams of the dangerous drug, without any
legal authority. ITaCEc
Applying the Indeterminate Sentence Law, the
minimum period of the imposable penalty shall
not fall below the minimum period set by the law;
the maximum period shall not exceed the
maximum period allowed under the law; hence,
the imposable penalty should be within the range
of twelve (12) years and one (1) day to fourteen
(14) years and eight (8) months.
WHEREFORE, premises considered, the appeal is
DENIED. The Decision dated October 13, 2006 of
the Court of Appeals in CA-G.R. CR No. 28846 is
AFFIRMED with MODIFICATION. Petitioner is
sentenced to suffer the indeterminate sentence
of twelve (12) years and one (1) day to fourteen
(14) years and eight (8) months.
SO ORDERED.
Velasco, Jr., Abad, Mendoza and Sereno, * JJ.,
concur.