Republic of the Philippines In support of the application for issuance of search warrant, P/Lt. Florenio C.

SUPREME COURT Angeles, OIC of the Intelligence Section of (ISAD) executed a "Deposition of
Manila Witness" dated 31 October 1987, subscribed and sworn to before respondent
Judge. In his deposition, P/Lt. Florenio Angeles declared, inter alia, as
follows:
EN BANC

Q: Do you know P/Major Alladin

G.R. No. 82870 December 14, 1989
Dimagmaliw, the applicant for a
Search Warrant?
DR. NEMESIO E. PRUDENTE, petitioner,
vs.
A: Yes, sir, he is the Chief,
THE HON. EXECUTIVE JUDGE ABELARDO M. DAYRIT, RTC Manila,
Intelligence and Special Action
Branch 33 and PEOPLE OF THE PHILIPPINES, respondents.
Division, Western Police District.

Francisco SB Acejas III, Oscar S. Atencio, Rodolfo M. Capocyan, Ernesto P.

Q: Do you know the premises of
Fernandez, Romulo B. Macalintal, Rodrigo H. Melchor, Rudegelio D. Tacorda
Polytechnic University of the
Virgilio L. Valle and Luciano D. Valencia for petitioner.
Philippines at Anonas St., Sta.
Mesa, Sampaloc, Manila
PADILLA, J.:
A: Yes, sir, the said place has been
This is a petition for certiorari to annul and set aside the order of respondent the subject of our surveillance and
Judge dated 9 March 1988 which denied the petitioner's motion to quash observation during the past few
Search Warrant No. 87-14, as well as his order dated 20 April 1988 denying days.
petitioner's motion for reconsideration of the earlier order.
Q: Do you have personal knowledge
It appears that on 31 October 1987, P/Major Alladin Dimagmaliw, Chief of the that in the said premises is kept the
Intelligence Special Action Division (ISAD) of the Western Police District following properties subject of the
(WPD) filed with the Regional Trial Court (RTC) of Manila, Branch 33, offense of violation of PD No. 1866
presided over by respondent Judge Abelardo Dayrit, now Associate Justice or intended to be used as a means
of the Court of Appeals. an application 1 for the issuance of a search warrant, of committing an offense:
docketed therein as SEARCH WARRANT NO. 87-14, for VIOLATION OF PD
NO. 1866 (Illegal Possession of Firearms, etc.) entitled "People of the
a. M 16 Armalites with ammunitions;
Philippines, Plaintiff, versus Nemesis E. Prudente, Defendant." In his
application for search warrant, P/Major Alladin Dimagmaliw alleged, among
others, as follows: b. .38 and 45 Caliber handguns and pistols;

1. That he has been informed and has good and c. explosives and handgrenades; and d. Assorted
sufficient reasons to believe that NEMESIO PRUDENTE weapons with ammunitions?
who may be found at the Polytechnic University of the
Philippines, Anonas St. Sta. Mesa, Sampaloc, Manila,
A: Yes sir.
has in his control or possession firearms, explosives
handgrenades and ammunition which are illegally
possessed or intended to be used as the means of Q: Do you know who is or who are
committing an offense which the said NEMESIO the person or persons who has or
PRUDENTE is keeping and concealing at the following have control of the above-described
premises of the Polytechnic University of the Philippines, premises?
to wit:
A: Yes sir, it is Dr. Nemesio
a. Offices of the Department of Prudente, President of the
Military Science and Tactics at the Polytechnic University of the
ground floor and other rooms at the Philippines.
ground floor;
Q: How do you know that said
b. Office of the President, Dr. property is subject of the offense of
Nemesio Prudente at PUP, Second violation of Pres. Decree No. 1866
Floor and other rooms at the second or intended to be used as the means
floor; of committing an offense?

2. That the undersigned has verified the report and found A: Sir, as a result of our continuous
it to be a fact, and therefore, believes that a Search surveillance conducted for several
Warrant should be issued to enable the undersigned or days, we gathered information from
any agent of the law to take possession and bring to this verified sources that the holder of
Honorable Court the following described properties: said firearms and explosives as well
as ammunitions aren't licensed to
possess said firearms and
a. M 16 Armalites with ammunitions;
ammunition. Further, the premises is
a school and the holders of these
b. .38 and .45 Caliber handguns and pistols; firearms are not students who were
not supposed to possess firearms,
explosives and ammunition.
c. explosives and handgrenades; and,

On the same day, 31 October 1987, respondent Judge issued Search

d. assorted weapons with ammunitions.
Warrant No. 87-14, 3 the pertinent portions of which read as follows:

1
 It appearing to the satisfaction of the undersigned, after
examining under oath applicant ALLADIN M.
DIMAGMALIW and his witness FLORENIO C.
ANGELES that there are good and sufficient reasons to
believe (probable cause) that NEMESIO PRUDENTE
has in his control in the premises of Polytechnic
University of the Philippines, Anonas St., Sta. Mesa,
Sampaloc, Manila, properties which are subject of the
above offense or intended to be used as the means of
committing the said offense.
You are hereby commanded to make an immediate
search at any time in the day or night of the premises of
Polytechnic University of the Philippines, more
particularly (a) offices of the Department of Military
Science and Tactics at the ground floor and other rooms
at the ground floor; (b) office of the President, Dr.
Nemesio Prudente at PUP, Second Floor and other
rooms at the second floor, and forthwith seize and take
possession of the following personal properties, to wit:
a. M 16 Armalites with ammunition;
b. .38 and .45 Caliber handguns and pistols;
c. explosives and hand grenades; and
d. assorted weapons with ammunitions.
and bring the above described properties to the
undersigned to be dealt with as the law directs.
On 1 November 1987, a Sunday and All Saints Day, the search warrant was
enforced by some 200 WPD operatives led by P/Col. Edgar Dula Torre,
Deputy Superintendent, WPD, and P/Major Romeo Maganto, Precinct 8
Commander.
In his affidavit, 4 dated 2 November 1987, Ricardo Abando y Yusay, a
member of the searching team, alleged that he found in the drawer of a
cabinet inside the wash room of Dr. Prudente's office a bulging brown
envelope with three (3) live fragmentation hand grenades separately wrapped
with old newspapers, classified by P/Sgt. J.L. Cruz as follows (a) one (1)
pc.M33 Fragmentation hand grenade (live); (b) one (11) pc.M26
Fragmentation hand grenade (live); and (c) one (1) pc.PRB423
Fragmentation hand grenade (live).
On 6 November 1987, petitioner moved to quash the search warrant. He
claimed that (1) the complainant's lone witness, Lt. Florenio C. Angeles, had
no personal knowledge of the facts which formed the basis for the issuance
of the search warrant; (2) the examination of the said witness was not in the
form of searching questions and answers; (3) the search warrant was a
general warrant, for the reason that it did not particularly describe the place to
be searched and that it failed to charge one specific offense; and (4) the
search warrant was issued in violation of Circular No. 19 of the Supreme
Court in that the complainant failed to allege under oath that the issuance of
the search warrant on a Saturday was urgent. 5
The applicant, P/Major Alladin Dimagmaliw thru the Chief, Inspectorate and
Legal Affairs Division, WPD, opposed the motion. 6 After petitioner had filed
his reply 7 to the opposition, he filed a supplemental motion to quash. 8
Thereafter, on 9 March 1988, respondent Judge issued an order, 9denying
the petitioner's motion and supplemental motion to quash. Petitioner's motion
for reconsideration 10 was likewise denied in the order 11 dated 20 April 1988.
Hence, the present recourse, petitioner alleging that respondent Judge has
decided a question of substance in a manner not in accord with law or
applicable decisions of the Supreme Court, or that the respondent Judge
gravely abused his discretion tantamount to excess of jurisdiction, in issuing
the disputed orders.
For a valid search warrant to issue, there must be probable cause, which is to
be determined personally by the judge, after examination under oath or
2
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.12 The probable cause must be in connection with one specific
offense 13 and 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 witness he may produce, on facts personally known
to them and attach to the record their sworn statements together with any
affidavits submitted. 14
The "probable cause" for a valid search warrant, has been defined "as such
facts and circumstances which would lead a reasonably discreet arid 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." 15 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. 16
Petitioner assails the validity of Search Warrant No. 87-14 on the ground that
it was issued on the basis of facts and circumstances which were not within
the personal knowledge of the applicant and his witness but based on
hearsay evidence. In his application for search warrant, P/Major Alladin
Dimagmaliw stated that "he has been informed" that Nemesio Prudente "has
in his control and possession" the firearms and explosives described therein,
and that he "has verified the report and found it to be a fact." On the other
hand, in his supporting deposition, P/Lt. Florenio C. Angeles declared that, as
a result of their continuous surveillance for several days, they "gathered
informations from verified sources" that the holders of the said fire arms and
explosives are not licensed to possess them. In other words, the applicant
and his witness had no personal knowledge of the facts and circumstances
which became the basis for issuing the questioned search warrant, but
acquired knowledge thereof only through information from other sources or
persons.
While it is true that in his application for search warrant, applicant P/Major
Dimagmaliw stated that he verified the information he had earlier
received that petitioner had in his possession and custody the t there is
nothing in the record to show or indicate how and when said applicant
verified the earlier information acquired by him as to justify his conclusion that
he found such information to be a fact. He might have clarified this point if
there had been searching questions and answers, but there were none. In
fact, the records yield no questions and answers, whether searching or not,
vis-a-vis the said applicant.
What the records show is the deposition of witness, P/Lt. Angeles, as the
only support to P/Major Dimagmaliw's application, and the said deposition is
based on hearsay. For, it avers that they (presumably, the police authorities)
had conducted continuous surveillance for several days of the suspected
premises and, as a result thereof, they "gathered information from verified
sources" that the holders of the subject firearms and explosives are not
licensed to possess them.
In Alvarez vs. Court of First Instance, 17 this Court laid the following test in
determining whether the allegations in an application for search warrant or in
a supporting deposition, are based on personal knowledge or not
The true test of sufficiency of a deposition or affidavit to
warrant issuance of a search warrant is whether it has
been drawn in a manner that perjury could be charged
thereon and the affiant be held liable for damage caused.
The oath required must refer to the truth of the facts
within the personal knowledge of the applicant for search
warrant, and/or his witnesses, not of the facts merely
reported by a person whom one considers to be reliable.
Tested by the above standard, the allegations of the witness, P/Lt. Angeles,
in his deposition, do not come up to the level of facts of his personal
knowledge so much so that he cannot be held liable for perjury for such
allegations in causing the issuance of the questioned search warrant.
In the same Alvarez case, 18 the applicant stated that his purpose for applying
for a search warrant was that: "It had 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, challenging usurious rate of interests, in
violation of law." The Court held that this was insufficient for the purpose of
issuing a search warrant.
In People vs. Sy Juco, 19 where the affidavit contained an allegation that
there had been a report to the affiant by a person whom lie considered
reliable that in said premises were "fraudulent books, correspondence and
records," this was likewise held as not sufficient for the purpose of issuing a
search warrant. Evidently, the allegations contained in the application of P/
Major Alladin Dimagmaliw and the declaration of P/Lt. Florenio C. Angeles in
his deposition were insufficient basis for the issuance of a valid search
warrant. As held in the Alvarez case:
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.
Besides, respondent Judge did not take the deposition of the applicant as
required by the Rules of Court. As held in Roan v. Gonzales, 20 "(m)ere
affidavits of the complainant and his witnesses are thus not sufficient. The
examining Judge has to take depositions in writing of the complainant and
the witnesses he may produce and attach them to the record."
Moreover, a perusal of the deposition of P/Lt. Florenio 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," 21 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."
Manifestly, in the case at bar, the evidence failed to show the existence of
probable cause to justify the issuance of the search warrant. The Court also
notes post facto that the search in question yielded, no armalites, handguns,
pistols, assorted weapons or ammunitions as stated in the application for
search warrant, the supporting deposition, and the search warrant the
supporting hand grenades were itself Only three (3) live fragmentation found
in the searched premises of the PUP, according to the affidavit of an alleged
member of the searching party.
The Court avails of this decision to reiterate the strict requirements for
determination of "probable cause" in the valid issuance of a search warrant,
as enunciated in earlier cases. True, these requirements are stringent but the
purpose is to assure that the constitutional right of the individual against
unreasonable search and seizure shall remain both meaningful and effective.
Petitioner also assails the validity of the search warrant on the ground that it
failed to particularly describe the place to be searched, contending that there
were several rooms at the ground floor and the second floor of the PUP.
The rule is, that a description of a place to be searched is sufficient if the
officer with the warrant can, with reasonable effort, ascertain and Identify the
place intended .22 In the case at bar, the application for search warrant and
the search warrant itself described the place to be searched as the premises
of the Polytechnic University of the Philippines, located at Anonas St., Sta.
Mesa, Sampaloc, Manila more particularly, the offices of the Department of
Military Science and Tactics at the ground floor, and the Office of the
President, Dr. Nemesio Prudente, at PUP, Second Floor and other rooms at
the second floor. The designation of the places to be searched sufficiently
complied with the constitutional injunction that a search warrant must
particularly describe the place to be searched, even if there were several
rooms at the ground floor and second floor of the PUP.
Petitioner next attacks the validity of the questioned warrant, on the ground
that it was issued in violation of the rule that a search warrant can be issued
only in connection with one specific offense. The search warrant issued by
respondent judge, according to petitioner, was issued without any reference
to any particular provision of PD No. 1866 that was violated when allegedly
P.D. No. 1866 punishes several offenses.
In Stonehill vs. Diokno, 23 Where the warrants involved 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," the Court held that no
3
specific offense had been alleged in the applications for a search warrant,
and that it would be a legal hearsay 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" without reference to any
determinate provision of said laws and codes.
In the present case, however, the application for search warrant was
captioned: "For Violation of PD No. 1866 (Illegal Possession of Firearms,
etc.) While the said decree punishes several offenses, the alleged violation in
this case was, qualified by the phrase "illegal possession of firearms, etc." As
explained by respondent Judge, the term "etc." referred to ammunitions and
explosives. In other words, the search warrant was issued for the specific
offense of illegal possession of firearms and explosives. Hence, the failure of
the search warrant to mention the particular provision of PD No. 1-866 that
was violated is not of such a gravity as to call for its invalidation on this score.
Besides, while illegal possession of firearms is penalized under Section 1 of
PD No. 1866 and illegal possession of explosives is penalized under Section
3 thereof, it cannot be overlooked that said decree is a codification of the
various laws on illegal possession of firearms, ammunitions and explosives;
such illegal possession of items destructive of life and property are related
offenses or belong to the same species, as to be subsumed within the
category of illegal possession of firearms, etc. under P.D. No. 1866. As
observed by respondent Judge: 24
The grammatical syntax of the phraseology comparative
with the title of PD 1866 can only mean that illegal
possession of firearms, ammunitions and explosives,
have been codified under Section 1 of said Presidential
Decree so much so that the second and third are
forthrightly species of illegal possession of firearms
under Section (1) thereof It has long been a practice in
the investigative and prosecution arm of the government,
to designate the crime of illegal possession of firearms,
ammunitions and explosives as 'illegal possession of
firearms, etc.' The Constitution as well as the Rules of
Criminal Procedure does not recognize the issuance of
one search warrant for illegal possession of firearms,
one warrant for illegal possession of ammunitions, and
another for illegal possession of explosives. Neither is
the filing of three different informations for each of the
above offenses sanctioned by the Rules of Court. The
usual practice adopted by the courts is to file a single
information for illegal possession of firearms and
ammunitions. This practice is considered to be in
accordance with Section 13, Rule 110 of the 1985 Rules
on Criminal Procedure which provides that: 'A complaint
or information must charge but one offense, except only
in those cases in which existing laws prescribe a single
punishment for various offenses. Describably, the
servers did not search for articles other than firearms,
ammunitions and explosives. The issuance of Search
Warrant No. 87-14 is deemed profoundly consistent with
said rule and is therefore valid and enforceable.
(Emphasis supplied)
Finally, in connection with the petitioner's contention that the failure of the
applicant to state, under oath, the urgent need for the issuance of the search
warrant, his application having been filed on a Saturday, rendered the
questioned warrant invalid for being violative of this Court's Circular No. 19,
dated 14 August 1987, which reads:
3. Applications filed after office hours, during Saturdays,
Sundays and holidays shall likewise be taken
cognizance of and acted upon by any judge of the court
having jurisdiction of the place to be searched, but in
such cases the applicant shall certify and state the facts
under oath, to the satisfaction of the judge, that the
issuance is urgent.
it would suffice to state that the above section of the circular merely provides
for a guideline, departure from which would not necessarily affect the validity
of an otherwise valid search warrant.
WHEREFORE, all the foregoing considered, the petition is GRANTED. The
questioned orders dated 9 March 1988 and 20 April 1988 as well as Search
Warrant No. 87-14 are hereby ANNULLED and SET ASIDE.
The three (3) live fragmentation hand grenades which, according to Ricardo
Y. Abando, a member of the searching team, were seized in the washroom of
petitioner's office at the PUP, are ordered delivered to the Chief, Philippine
Constabulary for proper disposition.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. Nos. 76649-51 August 19, 1988
20TH CENTURY FOX FILM CORPORATION, petitioner,
vs.
COURT OF APPEALS, EDUARDO M. BARRETO, RAUL SAGULLO and
FORTUNE LEDESMA, respondents.
Siguion Reyna, Montecillo & Ongsiako Law Office for petitioner.
B.C. Salazar & Associates for respondents.
GUTIERREZ, JR., J.:
The petitioner questions the application of the constitutional provision against
illegal searches and seizures to raids conducted in connection with the
government's anti-film piracy campaign. The main issue hinges on whether or
not the judge properly lifted the search warrants he issued earlier upon the
application of the National Bureau of Investigation on the basis of the
complaint filed by the petitioner.
In a letter-complaint dated August 26, 1985, petitioner 20th Century Fox Film
Corporation through counsel sought the National Bureau of Investigation's
(NBI) assistance in the conduct of searches and seizures in connection with
the latter's anti-film piracy campaign. Specifically, the letter-complaint alleged
that certain videotape outlets all over Metro Manila are engaged in the
unauthorized sale and renting out of copyrighted films in videotape form
which constitute a flagrant violation of Presidential Decree No. 49 (otherwise
known as the Decree on the Protection of Intellectual Property).
Acting on the letter-complaint, the NBI conducted surveillance and
investigation of the outlets pinpointed by the petitioner and subsequently filed
three (3) applications for search warrants against the video outlets owned by
the private respondents. The applications were consolidated and heard by
the Regional Trial Court of Makati, Branch 132.
On September 4, 1985, the lower court issued the desired search warrants.
Armed with the search warrants, the NBI accompanied by the petitioner's
agents, raided the video outlets and seized the items described therein. An
inventory of the items seized was made and left with the private respondents.
Acting on a motion to lift search warrants and release seized properties filed
by the private respondents, the lower court issued an order dated October 8,
1985, lifting the three (3) search warrants issued earlier against the private
respondents by the court. The dispositive portion of the order reads:
WHEREFORE, the Court hereby orders that Search
Warrants Nos. SW- 85-024; issued against Eduardo M.
Barreto of the Junction Video, etc., Paranaque, Metro
Manila; SW No. 85-025, issued against Raul M. Sagullo
of South Video Bug Center, Inc., etc., also of No. 5355
Pres. Avenue BF Homes, Paraaque, Metro Manila; and
SW No. 85-026, issued against Fortune A. Ledesma of
Sonix Video Services of San Antonio Plaza, Forbes
Park, Makati, Metro Manila, be lifted.
4
Consequently, the articles listed in the returns of the
three search warrants which could not be a basis of any
criminal prosecution, now in the possession of the
National Bureau of Investigation which under the law
must be delivered to this Court, but which the NBI failed
to do, are hereby ordered to be returned to their owners
through their lawyer, Atty. Benito Salazar or his agents or
representatives, against proper receipt, to be forwarded
to this Court for record purposes, as proof that said
properties have been returned to the possession of the
rightful owners." (p. 34, Rollo)
The lower court denied a motion for reconsideration filed by the petitioner in
its order dated January 2, 1986.
The petitioner filed a petition for certiorari with the Court of Appeals to annul
the October 8, 1985 and January 2, 1986 orders of the lower court. The
petition was dismissed.
Hence, this petition.
The main issue hinges on the meaning of "probable cause" within the context
of the constitutional provision against illegal searches and seizures (Section
3, Article IV, 1973 Constitution, now, Section 2, Article Ill, 1987 Constitution.
The petitioner maintains that the lower court issued the questioned search
warrants after finding the existence of a probable cause justifying their
issuance. According to the petitioner, the lower court arrived at this
conclusion on the basis of the depositions of applicant NBI's two witnesses
which were taken through searching questions and answers by the lower
court.
Section 2, Article III of the present Constitution which substantially
reproduces Section 3, Article IV of the 1973 Constitution on illegal searches
and seizures 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.
This constitutional right protects a citizen against wanton and unreasonable
invasion of his privacy and liberty as to his person, papers and effects. We
have explained in the case of People v. Burgos (144 SCRA 1)
citing Villanueva v. Querubin (48 SCRA 345) why the right is so important:
It is deference to one's personality that lies at the core of
this right, but it could be also looked upon as a
recognition of a constitutionally protected area, primarily
one's home, but not necessarily thereto confined. (Cf.
Hoffa v. United States, 385 US 293 119661) What is
sought to be guarded is a man's prerogative to choose
who is allowed entry to his residence. In that haven of
refuge, his individuality can assert itself not only in the
choice of who shall be welcome but likewise in the kind
of objects he wants around him. There the state,
however powerful, does not as such have access except
under the circumstances above noted, for in the
traditional formulation, his house, however humble, is his
castle. Thus is outlawed any unwarranted intrusion by
government, which is called upon to refrain from any
invasion of his dwelling and to respect the privacies of
his life. (Cf Schmerber v. California, 384 US 757 [1966],
Brennan, J. and Boyd v. United States, 116 630 [1886]).
In the same vein, Landynski in his authoritative work
(Search and Seizure and the Supreme Court [1966]),
could fitly characterize constitutional right as the
embodiment of a "spiritual concept: the belief that to
value the privacy of home and person and to afford its
 constitutional protection against the long reach of
government is no less than to value human dignity, and
that his privacy must not be disturbed except in case of
overriding social need, and then only under stringent
procedural safeguards."(ibid, p. 74).
The government's right to issue search warrants against a citizen's papers
and effects is circumscribed by the requirements mandated in the searches
and seizures provision of the Constitution.
In the case of Burgos, Sr. v. Chief of Staff, AFP (133 SCRA 800), we defined
probable cause for a valid search "as such facts and circumstances which
would lead a reasonably discreet and prudent man to believe that an offense
has been committed and that the objects sought in connection with the
offense are in the place sought to be searched." This constitutional provision
also demands "no less than personal knowledge by the complainant or his
witnesses of the facts upon which the issuance of a search warrant may be
justified" in order to convince the judge, not the individual making the affidavit
and seeking the issuance of the warrant, of the existence of a probable
cause. (Alvarez v. Court of First Instance, 64 Phil. 33; Burgos, Sr. v. Chief of
Staff, AFP, supra).
In the instant case, the lower court lifted the three questioned search
warrants against the private respondents on the ground that it acted on the
application for the issuance of the said search warrants and granted it on the
misrepresentations of applicant NBI and its witnesses that infringement of
copyright or a piracy of a particular film have been committed. Thus the lower
court stated in its questioned order dated January 2,1986:
According to the movant, all three witnesses during the
proceedings in the application for the three search
warrants testified of their own personal knowledge. Yet,
Atty. Albino Reyes of the NBI stated that the counsel or
representative of the Twentieth Century Fox Corporation
will testify on the video cassettes that were pirated, so
that he did not have personal knowledge of the alleged
piracy. The witness Bacani also said that the video
cassettes were pirated without stating the manner it was
pirated and that it was Atty. Domingo that has knowledge
of that fact.
On the part of Atty. Domingo, he said that the re-taping
of the allegedly pirated tapes was from master tapes
allegedly belonging to the Twentieth Century Fox,
because, according to him, it is of his personal
knowledge.
At the hearing of the Motion for Reconsideration, Senior
NBI Agent Atty. Albino Reyes testified that when the
complaint for infringement was brought to the NBI, the
master tapes of the allegedly pirated tapes were shown
to him and he made comparisons of the tapes with those
purchased by their man Bacani. Why the master tapes or
at least the film reels of the allegedly pirated tapes were
not shown to the Court during the application gives some
misgivings as to the truth of that bare statement of the
NBI agent on the witness stand. "
Again as the application and search proceedings is a
prelude to the filing of criminal cases under PD 49, the
copyright infringement law, and although what is required
for the issuance thereof is merely the presence of
probable cause, that probable cause must be
satisfactory to the Court, for it is a time- honored precept
that proceedings to put a man to task as an offender
under our laws should be interpreted in strictissimi
juris against the government and liberally in favor of the
alleged offender.
xxx xxx xxx
This doctrine has never been overturned, and as a
matter of fact it had been enshrined in the Bill of Rights
in our 1973 Constitution.
5
So that lacking in persuasive effect, the allegation that
master tapes were viewed by the NBI and were
compared to the purchased and seized video tapes from
the respondents' establishments, it should be dismissed
as not supported by competent evidence and for that
matter the probable cause hovers in that grey debatable
twilight zone between black and white resolvable in favor
of respondents herein.
But the glaring fact is that 'Cocoon,' the first video tape
mentioned in the search warrant, was not even duly
registered or copyrighted in the Philippines. (Annex C of
Opposition p. 152 record). So, that lacking in the
requisite presentation to the Court of an alleged master
tape for purposes of comparison with the purchased
evidence of the video tapes allegedly pirated and those
seized from respondents, there was no way to determine
whether there really was piracy, or copying of the film of
the complainant Twentieth Century Fox." (pp. 37-39,
Rollo)
xxx xxx xxx
The lower court, therefore, lifted the three (3) questioned search warrants in
the absence of probable cause that the private respondents violated P.D. 49.
As found out by the court, the NBI agents who acted as witnesses did not
have personal knowledge of the subject matter of their testimony which was
the alleged commission of the offense by the private respondents. Only the
petitioner's counsel who was also a witness during the application for the
issuance of the search warrants stated that he had personal knowledge that
the confiscated tapes owned by the private respondents were pirated tapes
taken from master tapes belonging to the petitioner. However, the lower court
did not give much credence to his testimony in view of the fact that the
master tapes of the allegedly pirated tapes were not shown to the court
during the application.
All these factors were taken into consideration by the lower court when it
lifted the three questioned search warrants. There is no truth, therefore, to
the petitioner's allegation that the lower court based its January 2, 1986 order
only "on the fact that the original or master copies of the copyrighted films
were not presented during the application for search warrants, thus leading it
to conclude that it had been "misled by the applicant and his witnesses." (p.
17, Rollo)
The presentation of the master tapes of the copyrighted films from which the
pirated films were allegedly copied, was necessary for the validity of search
warrants against those who have in their possession the pirated films. The
petitioner's argument to the effect that the presentation of the master tapes at
the time of application may not be necessary as these would be merely
evidentiary in nature and not determinative of whether or not a probable
cause exists to justify the issuance of the search warrants is not meritorious.
The court cannot presume that duplicate or copied tapes were necessarily
reproduced from master tapes that it owns.
The application for search warrants was directed against video tape outlets
which allegedly were engaged in the unauthorized sale and renting out of
copyrighted films belonging to the petitioner pursuant to P.D. 49.
The essence of a copyright infringement is the similarity or at least
substantial similarity of the purported pirated works to the copyrighted work.
Hence, the applicant must present to the court the copyrighted films to
compare them with the purchased evidence of the video tapes allegedly
pirated to determine whether the latter is an unauthorized reproduction of the
former. This linkage of the copyrighted films to the pirated films must be
established to satisfy the requirements of probable cause. Mere allegations
as to the existence of the copyrighted films cannot serve as basis for the
issuance of a search warrant.
Furthermore, we note that the search warrants described the articles sought
to be seized as follows:
xxx xxx xxx
xxx xxx xxx
 c) Television sets, Video Cassettes
Recorders, rewinders, tape head
cleaners, accessories, equipments
and other machines used or
intended to be used in the unlawful
reproduction, sale, rental/lease
distribution of the above-mentioned
video tapes which she is keeping
and concealing in the premises
above-described." (p. 26, Rollo)
In the case of Burgos v. Chief of Staff, AFP supra, we stated:
xxx xxx xxx
Another factor which makes the search warrants under
consideration constitutionally objectionable is that they
are in the nature of general warrants. The search
warrants describe the articles sought to be seized in this
wise:
l] All printing equipment, paraphernalia, paper, ink, photo
equipment, typewriters, cabinets, tables
communications/recording equipment, tape recorders,
dictaphone and the like used and/or connected in the
printing of the 'WE FORUM' newspaper and any and all
document/communications, letters and facsimile of prints
related to "WE FORUM" newspaper.
2] Subversive documents, pamphlets, leaflets, books,
and other publications to promote the objectives and
purposes of the subversive organizations known as
Movement for Free Philippines, Light-a-Fire Movement
and April 6 Movement; and
3] Motor vehicles used in the distribution/circulation of
the 'WE FORUM and other subversive materials and
propaganda, more particularly,
1] Toyota-Corolla, colored yellow
with Plate No. NKA 892;
2] DATSUN pick-up colored white
with Plate No. NKV 969;
3] A delivery truck with Plate No.
NBS 542;
4] TOYOTA-TAMARAW, colored
white with Plate No. PBP 665;and,
5] TOYOTA Hi-Lux, pick-up truck
with Plate No. NGV 472 with
marking "Bagong Silang."
In Stanford v. State of Texas (379 U.S. 476,13 L ed 2nd
431), the search warrant which authorized the search for
'books, records, pamphlets, cards, receipts, lists,
memoranda, pictures, recordings and other written
instruments concerning the Communist Parties of Texas,
and the operations of the Community Party in Texas,"
was declared void by the U.S. Supreme Court for being
too general. In like manner, directions to "seize any
evidence in connection with the violation of SDC 13-3703
or otherwise' have been held too general, and that
portion of a search warrant which authorized the seizure
of any "paraphernalia which could be used to violate
Sec. 54-197 of the Connecticut General Statutes [the
statute dealing with the crime of conspiracy]"' was held to
be a general warrant, and therefore invalid (68 Am. Jur.
2d., pp. 736-737). The description of the articles sought
to be seized under the search warrants in question
cannot be characterized differently. (at pp. 814-815)
6
Undoubtedly, a similar conclusion can be deduced from the description of the
articles sought to be confiscated under the questioned search warrants.
Television sets, video cassette recorders, reminders and tape cleaners are
articles which can be found in a video tape store engaged in the legitimate
business of lending or renting out betamax tapes. In short, these articles and
appliances are generally connected with, or related to a legitimate business
not necessarily involving piracy of intellectual property or infringement of
copyright laws. Hence, including these articles without specification and/or
particularity that they were really instruments in violating an Anti-Piracy law
makes The search warrant too general which could result in the confiscation
of all items found in any video store. In fact, this actually happened in the
instant case. Thus, the lower court, in its questioned order dated October 8,
1985 said:
Although the applications and warrants themselves
covered certain articles of property usually found in a
video store, the Court believes that the search party
should have confined themselves to articles that are
according to them, evidence constitutive of infringement
of copyright laws or the piracy of intellectual property, but
not to other articles that are usually connected with, or
related to, a legitimate business, not involving piracy of
intellectual property, or infringement of copyright laws.
So that a television set, a rewinder, and a whiteboard
listing Betamax tapes, video cassette cleaners video
cassette recorders as reflected in the Returns of Search
Warrants, are items of legitimate business engaged in
the video tape industry, and which could not be the
subject of seizure, The applicant and his agents
therefore exceeded their authority in seizing perfectly
legitimate personal property usually found in a video
cassette store or business establishment." (p. 33, Rollo)
All in all, we find no grave abuse of discretion on the part of the lower court
when it lifted the search warrants it earlier issued against the private
respondents. We agree with the appellate court's findings to the effect that:
An assiduous examination of the assailed orders reveal
that the main ground upon which the respondent Court
anchored said orders was its subsequent findings that it
was misled by the applicant (NBI) and its witnesses 'that
infringement of copyright or a piracy of a particular film
have been committed when it issued the questioned
warrants.' Stated differently, the respondent Court
merely corrected its erroneous findings as to the
existence of probable cause and declared the search
and seizure to be unreasonable. Certainly, such action is
within the power and authority of the respondent Court to
perform, provided that it is not exercised in an
oppressive or arbitrary manner. Indeed, the order of the
respondent Court declaring the existence of probable
cause is not final and does not constitute res judicata.
A careful review of the record of the case shows that the
respondent Court did not commit a grave abuse of
discretion when it issued the questioned orders. Grave
abuse of discretion' implies such capricious and
whimsical exercise of judgment as is equivalent to lack of
jurisdiction, or, in other words, where the power is
exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and it must be so patent
and gross as to amount to an evasion of positive duty or
to a virtual refusal to perform the duty enjoined or to act
at all in contemplation of law.' But far from being despotic
or arbitrary, the assailed orders were motivated by a
noble desire of rectifying an error, much so when the
erroneous findings collided with the constitutional rights
of the private respondents. In fact, the petitioner did not
even contest the righteousness and legality of the
questioned orders but instead concentrated on the
alleged denial of due process of law." (pp. 44-45, Rollo)
The proliferation of pirated tapes of films not only deprives the government of
much needed revenues but is also an indication of the widespread
breakdown of national order and discipline. Courts should not impose any
unnecessary roadblocks in the way of the anti-film piracy campaign.
However, the campaign cannot ignore or violate constitutional safeguards. To
say that the problem of pirated films can be solved only by the use of
unconstitutional shortcuts is to denigrate the long history and experience
behind the searches and seizures clause of the Bill of Rights. The trial court
did not commit reversible error.
WHEREFORE, the instant petition is DISMISSED. The questioned decision
and resolution of the Court of Appeals are AFFIRMED.
SO ORDERED.
Fernan, C.J., Feliciano, Bidin and Cortes, JJ., concur
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-69803 October 8, 1985
CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and WILLIE C.
TOLENTINO, petitioners,
vs.
HON. ERNANI CRUZ PAO, Executive Judge, Regional Trial Court of
Quezon City; HON. ANTONIO P. SANTOS, Presiding Judge, Branch XLII,
Metropolitan Trial Court of Quezon City: HON. SERGIO F. APOSTOL,
City Fiscal, Quezon City; HON. JUAN PONCE ENRILE, LT. GEN. FIDEL
RAMOS and COL. JESUS ALTUNA, respondents.
Jose W .Diokno, Joker P. Arroyo, Rene A. V. Sarmiento, Dan Malabonga and
Cesar Maravilla for petitioners.
MELENCIO-HERRERA, J.:
The facts before the Court in these Certiorari, Prohibition, and mandamus
proceedings will be briefly stated. The three petitioners will be referred to
through their surnames of NOLASCO, AGUILAR-ROQUE and TOLENTINO.
1. Prior to August 6, 1984 (hereinafter to be referred to without the year),
AGUILAR-ROQUE was one of the accused of Rebellion in Criminal Case
No.
MC-25-113 of Military Commission No. 25, both cases being entitled "People
of the Philippines vs. Jose Ma. Sison, et al." She was then still at large.
2. At 11:30 A.M. on August 6th, AGUILAR-ROQUE and NOLASCO were
arrested by a Constabulary Security Group (CSG) at the intersection of
Mayon Street and P. Margall Street, Quezon City. The stated time is an
allegation of petitioners, not denied by respondents. The record does not
disclose that a warrant of arrest had previously beeen issued against
NOLASCO.
3. At 12:00 N. on August 6th, elements of the CSG searched the premises at
239-B Mayon Street, Quezon City. The stated time is an allegation of
petitioners, not specifically denied by respondents. In their COMMENT,
however, respondents have alleged that the search was conducted "late on
the same day"; that is late on august 6th.
4. On August 6th, at around 9:00 A.M., Lt. Col. Virgilio G. Saldajeno of the
CSG, applied for a Search Warrant from respondent Hon. Ernani Cruz Pao,
Executive Judge of the Regional Trial Court in Quezon City, to be served at
No. 239-B Mayon Street, Quezon City, determined tyo be the leased
residence of AGUILAR-ROQUE, after almost a month of "round the clock
surveillance" of the premises as a "suspected underground house of the
CPP/NPA." AGUILAR-ROQUE has been long wanted by the military for
being a high ranking officer of the Communist Party of the Philippines,
particularly connected with the MV Karagatan/Doa Andrea cases.
7
In connection with the Search Warrant issued, the following may be stated:
(a) The Search Warrant was issued in proceedings entitled "People of the
Philippines vs. Mila Aguilar-Roque, Accused, Search Warrant No. 80- 84
for rebellion" (the SEARCH WARRANT CASE). Judge Panos Court was
Branch 88.
(b) It does not appear from the records before us that an application in writing
was submitted by Lt. Col. Saldajeno to Judge Pao.
(c) According to the record, Lt. Col. Saldajeno and his witness S/A Dionicio A.
Lapus, were examined under oath by Judge Pao but only the deposition of
S/A Lapus has been submitted to us. The latter deposed that to his personal
knowledge, there were kept in the premises to be searched records,
documents and other papers of the CPP/NPA and the National Democratic
Front, including support money from foreign and local sources intended to be
used for rebellion. 1
5. In connection with the search made at 12:00 N. of August 6th the following
may be stated:
(a) TOLENTINO was a person then in charge of the premises. He was
arrested by the searching party presumably without a warrant of arrest.
(b) The searching party seized 428 documents and written materials, 2 and
additionally a portable typewriter, and 2 wooden boxes, making 431 items in
all. 3
(c) According to the Return, submitted in the SEARCH WARRANT CASE on
August 10th, 4 the search was made in the presence of Dra. Marciana
Galang, owner of the premises, and of two (2) Barangay Tanods. No mention
was made that TOLENTINO was present. The list of the 428 articles and
documents attached to the Return was signed by the two Barangay Tanods,
but not by Dra. Galang.
6. (a) On August 10th, the three petitioners, AGUILAR-ROQUE, NOLASCO
and TOLENTINO, were charged before the Quezon City Fiscal's Office (the
CITY FISCAL, for short) upon complaint filed by the CSG against petitioners
for "Subversion/Rebellion and/or Conspiracy to Commit
Rebellion/Subversion."
(b) On August 13th, the CITY FISCAL filed an Information for Violation of
Presidential Decree No. 33 (Illegal Possession of Subversive Documents)
against petitioners before Branch 42 of the Metropolitan Trial Court of
Quezon City (the SUBVERSIVE DOCUMENTS CASE), respondent Judge
Antonio P. Santos, presiding.
(c) On August 16th, CSG filed a Motion for Reconsideration with the CITY
FISCAL, praying that AGUILAR-ROQUE and NOLASCO be charged with
Subversion. The Motion was denied on November 16th.
7. (a) On September 10th, the CSG submitted an Amended Return in the
SEARCH WARRANT CASE praying, inter alia, that the CSG be allowed to
retain the seized 431 documents and articles, in connection with cases that
are presently pending against Mila Aguilar Roque before the Quezon City
Fiscal's Office and the court. 5
(b) On September 28th, petitioners were required by Judge Pano to comment
on the Amended Return, which AGUILAR-ROQUE did on October 18th,
raising the issue of the inadmissibility of any evidence obtained pursuant to
the Search Warrant.
(c) On December 13, 1984, Judge Pao admitted the Amended Return and
ruled that the seized documents "shall be subject to disposition of the tribunal
trying the case against respondent."
8. (a) On December 12th, petitioners filed a Motion to Suppress in the
SUBVERSIVE DOCUMENTS CASE, praying that such of the 431 items
belonging to them be returned to them. It was claimed that the proceedings
under the Search Warrant were unlawful. Judge Santos denied the Motion on
January 7, 1985 on the ground that the validity of the Search Warrant has to
be litigated in the SEARCH WARRANT CASE. He was apparently not aware
of the Order of Judge Pao of December 13th issued in the SEARCH In the case at bar, the search warrant issued by
WARRANT CASE. respondent judge allowed the seizure of printed copies of
the Philippine Times, manuscripts/drafts of articles for
publication, newspaper dummies subversive documents,
Hence, this Petition for Certiorari, Prohibition and mandamus to annul and set
articles, etc., and even typewriters, duplicating machines,
aside the (1) Search Warrant issued by respondent RTC Judge Pao; (2) his
mimeographing and tape recording machines. Thus, the
Order admitting the Amended Return and granting the Motion to Retain
language used is so all embracing as to include all
Seized Items; and (3) Order of respondent MTC Judge Santos denying
conceivable records and equipment of petitioner
petitioners' Motion to Suppress.
regardless of whether they are legal or illegal. The
search warrant under consideration was in the nature of
This Court, on February 12, 1985, issued a Temporary Restraining Order a general warrant which is constitutionally
enjoining the respondents or their duly authorized representatives from objectionable. 8
introducing evidence obtained under the Search Warrant.
The lack of particularization is also evident in the examination of the witness
The PETITIONERS principally assert that the Search Warrant is void presented by the applicant for Search Warrant.
because it is a general warrant since it does not sufficiently describe with
particularity the things subject of the search and seizure, and that probable
Q Mr. Dionicio Lapus, there is an
cause has not been properly established for lack of searching questions
application for search warrant filed
propounded to the applicant's witness. The respondents, represented by the
by Lt. Col. Virgilio Saldajeno and the
Solicitor General, contend otherwise, adding that the questions raised cannot
Court would like to know if you affirm
be entertained in this present petition without petitioners first moving for the
the truth of your answer in this
quashal of the disputed Search Warrant with the issuing Judge.
deposition?

We find merit in the Petition.

(The deposition instead)

Section 3, Article IV of the Constitution, guarantees the right of the people to

A Yes, sir,
be secure in their persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any purpose. It also
specifically provides that no Search Warrant shall issue except upon Q How long did it take you for the
probable cause to be determined by the Judge or such other responsible surveillance?
officer as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
A Almost a month, sir.
particularly describing the place to be searched and the things to be seized.

Q Are you a lawyer, Mr. Lapus?

The disputed Search Warrant (No. 80-84) describes the personalities to be
seized as follows:
A No, Your Honor, but I was a
student of law.
Documents, papers and other records of the Communist
Party of the Phihppines/New Peoples Army and/or the
National Democratic Front, such as Minutes of the Party Q So, you are more or less familiar
Meetings, Plans of these groups, Programs, List of with the requisites of the application
possible supporters, subversive books and instructions, for search warrant?
manuals not otherwise available to the public, and
support money from foreign or local sources.
A Yes, Your Honor.

It is at once evident that the foregoing Search Warrant authorizes the seizure
Q How did you come to know of the
of personal properties vaguely described and not particularized. It is an all-
embracing description which includes everything conceivable regarding the person of Mila Aguilar-Roque?
Communist Party of the Philippines and the National Democratic Front. It
does not specify what the subversive books and instructions are; what the A Because of our day and night
manuals not otherwise available to the public contain to make them surveillance, Your Honor, there were
subversive or to enable them to be used for the crime of rebellion. There is so many suspicious persons with
absent a definite guideline to the searching team as to what items might be documents.
lawfully seized thus giving the officers of the law discretion regarding what
articles they should seize as, in fact, taken also were a portable typewriter
and 2 wooden boxes. It is thus in the nature of a general warrant and Q What kind of documents do you
infringes on the constitutional mandate requiring particular description of the refer to?
things to be seized. In the recent rulings of this Court, search warrants of
similar description were considered null and void for being too general. Thus: A Documents related to the
Communist Party of Philippines and
Subversive documents, pamphlets, leaflets, books, and New People's Army.
other publications to promote the objectives and
purposes of the subversive organizations known as Q What else?
Movement for Free Philippines. Light-a-Fire Movement
and April 6 Movement. 6
A Conferences of the top ranking
officials from the National
The things to be seized under the warrant issued by Democratic Front, Organization of
respondent judge were described as 'subversive the Communist Party of the
documents, propaganda materials, FAs, printing Philippines ...
paraphernalia and all other subversive materials Such
description hardly provided a definite guideline to the
search team as to what articles might be lawfully seized Q And may include what else?
thereunder. Said description is no different from if not
worse than, the description found in the search warrants A Other papers and documents like
in "Burgos, et al. v. the Chief of Staff"which this Court Minutes of the Party Meetings, Plans
declared null and void for being too general. 7 of these groups, Programs, List of
8
 possible supporters, subversive Commission No.1 to return to her any and all irrelevant documents and
books and instructions, manuals not articles.
otherwise available to the public and
support money from foreign and
WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by
local sources. 9
respondent Executive Judge Ernani Cruz Pao is hereby annulled and set
aside, and the Temporary Restraining Order enjoining respondent from
The foregoing questions propounded by respondent Executive Judge to the introducing evidence obtained pursuant to the Search Warrant in the
applicant's witness are not sufficiently searching to establish probable cause. Subversive Documents case hereby made permanent, the, personalities
The "probable cause" required to justify the issuance of a search warrant seized may be retained by the Constabulary Security Group for possible
comprehends such facts and circumstances as will induce a cautious man to introduction as evidence in Criminal Case No. SMC-1-1, pending before
rely upon them and act in pursuant thereof. 10 Of the 8 questions asked, the Special Military commission No. 1, without prejudice to petitioner Mila
1st, 2nd and 4th pertain to Identity. The 3rd and 5th are leading not searching Aguilar-Roque objecting to their relevance and asking said Commission to
questions. The 6th, 7th and 8th refer to the description of the personalities to return to her any and all irrelevant documents and articles.
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
SO ORDERED.
nature and merely repetitious of the deposition of said witness. Mere
generalization will not suffice and does not satisfy the requirements of
probable cause upon which a warrant may issue. 11 Plana, Escolin Relova, Gutierrez, Jr., De la Fuente, Alampay and Patajo
concur.
Respondents claim, however, that the proper forum for questioning the
illegality of a Search Warrant is with the Court that issued it instead of this Makasiar, C.J., concurs in the result.
original, independent action to quash. The records show, however, that
petitioners did raise that issue in the SEARCH WARRANT CASE in their
Comment, dated October 18, 1984. In fact, they already questioned the Aquino, J.; took no part.
admissibility of the evidence obtained under the Search Warrant, even during
the inquest investigation on August 10, 1984. And in the SUBVERSIVE Concepcion Jr., J., reserves his vote.
DOCUMENTS CASE, they filed a Motion to Suppress on December 12, 1984
claiming that the proceedings under the Search Warrant were unlawful.
Substantially, therefore, while not denominated as a motion to quash,
petitioners had questioned the legality of the Search Warrant.

Parenthetically, it strikes the Court that the pendency of the SEARCH

WARRANT CASE and of the SUBVERSIVE DOCUMENTS CASE before two
different Courts is not conducive to an orderly administration of justice. It
should be advisable that, whenever a Search Warrant has been issued by
one Court, or Branch, and a criminal prosecution is initiated in another Court,
or Branch, as a result of the service of the Search Warrant, the SEARCH
WARRANT CASE should be consolidated with the criminal case for orderly
procedure. The later criminal case is more substantial than the Search
Warrant proceeding, and the Presiding Judge in the criminal case should
have the right to act on petitions to exclude evidence unlawfully obtained.

Notwithstanding the irregular issuance of the Search Warrant and although,

ordinarily, the articles seized under an invalid search warrant should be
returned, they cannot be ordered returned in the case at bar to AGUILAR-
ROQUE. Some searches may be made without a warrant. Thus, Section 12,
Rule 126, Rules of Court, explicitly provides:

Section 12. Search without warrant of person arrested.

A person charged with an offense may be searched for
dangerous weapons or anything which may be used as
proof of the commission of the offense.

The provision is declaratory in the sense that it is confined to the search,

without a search warrant, of a person who had been arrested. It is also a
general rule that, as an incident of an arrest, the place or premises where the
arrest was made can also be search without a search warrant. In this latter
case, "the extent and reasonableness of the search must be decided on its
own facts and circumstances, and it has been stated that, in the application
of general rules, there is some confusion in the decisions as to what
constitutes the extent of the place or premises which may be
searched. 12 "What must be considered is the balancing of the individual's
right to privacy and the public's interest in the prevention of crime and the
apprehension of criminals." 13

Considering that AGUILAR-ROQUE has been charged with Rebellion, which

is a crime against public order; that the warrant for her arrest has not been
served for a considerable period of time; that she was arrested within the
general vicinity of her dwelling; and that the search of her dwelling was made
within a half hour of her arrest, we are of the opinion that in her respect, the
search at No. 239-B Mayon Street, Quezon City, did not need a search
warrant; this, for possible effective results in the interest of public order.

Such being the case, the personalities seized may be retained. by CSG, for
possible introduction as evidence in the Rebellion Case, leaving it to
AGUILAR-ROQUE to object to their relevance and to ask Special Military
9

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 122092 May 19, 1999
PAPER INDUSTRIES CORPORATION OF THE PHILIPPINES, EVARISTO
M. NARVAEZ JR., RICARDO G. SANTIAGO, ROBERTO A. DORMENDO,
REYDANDE D. AZUCENA, NICEFORO V. AVILA, FLORENTINO M. MULA,
FELIX O. BAITO, HAROLD B. CELESTIAL, ELMEDENCIO C. CALIXTRO,
CARLITO S. LEGACION, ALBINO T. LUBANG, JEREMIAS I. ABAD and
HERMINIO V. VILLAMIL, petitioners,
vs.
JUDGE MAXIMIANO C. ASUNCION, Presiding Judge, Branch 104,
Regional Trial Court of Quezon City; STATE PROSECUTOR LEO B.
DACERA III; and the SPECIAL OPERATIONS UNIT OF THE PNP
TRAFFIC MANAGEMENT COMMAND, respondents.
PANGANIBAN, J.:
To preserve and to uphold the constitutional right against unreasonable
searches and seizures, the requisites for the issuance of search warrant must
be followed strictly. Where the judge fails to personally examine the applicant
for a search warrant and the latter's witnesses, or where the witnesses testify
on matters not of their own personal knowledge, the search warrant must be
struck down.
The Case
Before us is a petition for Certiorari and Prohibition 1 praying for (1) the
nullification of Search Warrant No. 799 (95) and the Orders dated March 23,
1993 and August 3, 1995, issued by the Regional Trial Court (RTC), Branch
104, of Quezon City; 2 and (2) the issuance of temporary restraining order
(TRO) or an injunction against State Prosecutor Leo B. Dacera III, ordering
him to desist proceeding with IS No. 95-167.
In its October 23, 1995 Resolution, 3 this Court issued the TRO prayed for
and required the respondents to comment on the said Petition. On December
20, 1995, Respondent PNP Traffic Management Command filed its 31-page
Opposition 4 to the Petition, together with 90 pages of annexes. 5 On
February 22, 1996, the Office of the Solicitor General filed its
Comment 6 agreeing with petitioners that the writs prayed for must be
granted. After petitioners filed a Reply to the Opposition, the Court gave due
10
course to the Petition and required the parties to submit their respective
memoranda.
In view of the contrary opinion of the Office of the Solicitor General, the
Court, in its February 5, 1997 Resolution, 7 required State Prosecutor Leo B.
Dacera to prepare the memorandum for the public respondents. After issuing
a show-cause order to Dacera on June 23, 1997, 8 the Court in its September
24, 1997 Resolution gave him a non-extendible period ending on October 31,
1997 within which to file the required memorandum. In view of Dacera's
manifestation that he was only a nominal party and that he had yet to receive
the records of the case from the PNP, the Court, in its December 8, 1999
Resolution, ordered the Special Operations Unit (SOU) of the PNP Traffic
Management Command to file its memorandum within thirty days from notice;
"otherwise, the petition will be deemed submitted for decision." 9 Even after
the expiration of the said period, the required pleading was not yet received
by this Court.
Hence, this Court considered Respondent SOU's refusal/failure to submit its
memorandum as a waiver of its privilege to do so.
The Facts
On January 25, 1995, Police Chief Inspector Napoleon B. Pascua applied for
a search warrant before the said RTC of Quezon City, staring: 10
1. That the management of Paper Industries Corporation
of the Philippines, located at PICOP compound,
Barangay Tabon, Bislig, Surigao del Sur, represented by
its Sr. Vice President Ricardo G[.] Santiago, is in
possession or ha[s] in [its] control high powered firearms,
ammunitions, explosives, which are the subject of the
offense, or used or intended to be used in committing the
offense, and which . . . are [being kept] and conceal[ed]
in the premises herein described.
2. That a Search Warrant should be issued to enable any
agent of the law to take possession and bring to this
Honorable Court the following described properties:
Seventy (70) M16 Armalite rifles cal.
5.56, ten (10) M16 US rifles, two (2)
AK-47 rifle[s], two (2) UZI
submachinegun[s], two (2) M203
Grenade Launcher[s] cal. 40mm, ten
(10) cal.45 pistol[s], ten (10) cal.38
revolver[s], two (2) ammunition
reloading machine[s], assorted
ammunitions for said calibers of
firearms and ten (10) handgrenades.
Attached to the application 11 were the joint Deposition of SPO3 Cicero S.
Bacolod and SPO2 Cecilio T. Morito, 12 as well as a summary of the
information and the supplementary statements of Mario Enad and Felipe
Moreno.
After propounding several questions to Bacolod, Judge Maximiano C.
Asuncion issued the contested search warrant, 13 the pertinent portion of
which reads:
It appearing to the satisfaction of the undersigned, after
examining under oath, SPO3 Cicero S. Bacolod, that
there is probable cause to believe that the management
of Paper Industries Corporation of the Philippines,
located at PICOP Compound, Barangay Tabon, Bislig,
Surigao del Sur, represented by its Sr. Vice President
Ricardo G. Santiago, has in its possession or control the
following:
Seventy (70) M16 Armalite rifles cal
5.56
Ten (10) M14 US rifles
 Two (2) AK-47 rifle(s) 15 M16Rifle 5.56 RP170881 (Tampered) Elisco

Two (2) UZI submachinegun[s] 16 M16Rifle 5.56 RP174637 Elisco

Two (2) M203 Grenade Launcher[s] 17 M16Rifle 5.56 RP171366 Elisco

cal. 40mm.
18 M16Rifle 5.56 RP1714637 (Tampered) Elisco
Ten (10) cal 45 pistol[s]
19 M16Rifle 5.56 RP174610 Elisco
Ten (10) cal. 38 revolver[s]
20 M16Rifle 5.56 RP171367 (Tampered) Elisco
Two (2) ammunition reloading
machine[s]
01 M14 7.62 1499694 Elisco

Assorted ammunitions for said

02 M14 7.62 889163 Elisco
calibers of firearms

01 BAR Cal. 30 865975 Royal

Ten (l0) handgrenades

01 Carbine M1 Cal. 30 384181 US Carbin

in violation of the Provisions of PD 1866 (Illegal
Possession of Firearms, Ammunition and Explosives),
and the same should be seized and brought before this 02 Carbine M1 Cal. 30 998201 US Carbin
Court.
01 Garand M1 Cal. 30 1194008 Springfield
NOW, THEREFORE, you are hereby authorized to make
an immediate search daytime between 8:00 a.m. [and]
4:00 p.m. of the aforementioned premises and to seize 02 Garand M1 Cal. 30 3123784 Springfield
and bring the articles above-described and make an
immediate return there[of] 14 01 Shotgun 12 Gauge H359704 Omega

On February 4, 1995, the police enforced the search warrant at the PICOP 02 Shotgun 12 Gauge 9211 Homemade
compound and seized the following: 15

MAKE/TYPE CALIBER SERIAL NUMBER BRAND

01 M16 Rifle 5.56 RP 175636 Elisco

02 M16 Rifle 5.56 RP 175636 (Tampered) Elisco

03 M16Rifle 5.56 RP 171702 Elisco

MAGAZINE ASSEMBLY QTY.
04 M16Rilfe 5.56 Defaced Elisco
01 M16 (long) 29 pcs.
05 M16Rifle 5.56 RP174253 (Tampered) Elisco
02 M16 (short) 48 pcs.
06 M16Rifle 5.56 RP173627 (Tampered) Elisco
03 Carbine M1 171 pcs.
07 M16Rifle 5.56 RP171337 Elisco
04 BAR 19 pcs.
08 M16Rifle 5.56 RP171114 Elisco
LIVE AMMUNITION QTY.
09 M16Rifle 5.56 RP171114 (Tampered) Elisco
01 M16 2,023 rounds
10 M16Rifle 5.56 RP171167 (Tampered) Elisco
03 Carbine M1 276 rounds
11 M16Rifle 5.56 170881 (Tampered) Elisco
04 M-60 Cal. 7.62 1,800 rounds
12 M16Rifle 5.56 RP170897 Elisco
05 M1 Garand 1,278 rounds
13 M16Rifle 5.56 RP171509 Elisco
06 Rifle Grenade 11 rounds
(With pending
07 Hand Grenade 4 pcs.
case-Casaway Case)
AMMO DAM POST NO. 24
14 M16Rifle 5.56 RP171754 Elisco
11
MAKE/TYPE CALIBER SERIAL NUMBER BRAND 04 Carbine 5 rounds

01 M16 5.56 171425 (Tampered) Gyno Corp. 05 Rifle grenade (AVA-0051-84/0056-84) 2 rounds

02 Machine Pistol .22 651 (Tampered) Landmann 06 9 MM 30 rounds

MAGAZINE ASSEMBLY QTY. NEW ARMORY POST NO. 16

01 M1 (short) 3 pcs. MAKE/TYPE CALIBER SERIAL NUMBER BRAND

02 M16 (long) 1 pc. 01 Shotgun 12 Gauge A359910 Armscor

03 M14 8 pcs. 02 Shotgun 12 Gauge A359716 Armscor

04 Clip M1 Garand 3 pcs. 03 Shotgun 12 Gauge A359706 Armscor

05 Mag Assy Cal .22 1 pc. 04 Shotgun 12 Gauge A359707 Armscor

LIVE AMMUNITION QTY. 05 Shotgun 12 Gauge 1036847 Armscor

01 M16 73 rounds 06 Shotgun 12 Gauge A359702 Armscor

02 M14 160 rounds 07 Shotgun 12 Gauge A359732 Armscor

03 M1 Garand Cal .30 30 rounds 08 Shotgun 12 Gauge A359728 Armscor

04 Rifle Grenade 1 round 09 Shotgun 12 Gauge A359708 Armscor

MANAGEMENT INTEL/INVEST UNIT 10 Shotgun 12 Gauge A359711 Armscor

MAKE/TYPE CALIBER SERIAL NUMBER BRAND 11 Shotgun 12 Gauge A359723 Armscor

01 M16Rifle 5.56 RP 171725 Elisco 12 Shotgun 12 Gauge A359713 Armscor

02 M16Rifle 5.56 RP 170799 (Tampered) Elisco 13 Shotgun 12 Gauge 1031271 Armscor

03 M16 5.56 RP 132320 Elisco 14 Shotgun 12 Gauge A262338 SB

04 Machine 9 MM 54887 Intratec 15 Shotgun 12 Gauge A261619 SB

Pistol 16 Shotgun 12 Gauge Defaced Not

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

Shotguns LIVE AMMUNITION QTY.

MAGAZINE ASSEMBLY QTY. 01 12 GAUGE shotgun 306 rds.

01 M16 (long) 3 pcs. 02 M16 2,349 rds.

02 M16 (short) 4 pcs. MAGAZINE ASSEMBLY QTY.

03 Intratec 1 pc. 01 Carbine (defective) 76 pcs.

04 US Carbine (defective) 2 pcs. 02 Cal. 22 -do- 16 pcs

LIVE AMMUNITION QTY. 03 M16 (long-defective) 2 pcs.

01 M16 147 rds. 04 M16 (short-defective) 2 pcs.

02 Cal .30 5 rounds 05 Thompson (defective) 8 pcs.

03 12 gauge Shotgun 7 rounds 06 Shotgun 12 Gauge (defective) 17 pcs.

12
 07 BAR (defective) 2 pcs.
Believing that the warrant was invalid and the search unreasonable, the
petitioners filed a "Motion to Quash" 16 before the trial court. Subsequently,
they also filed a "Supplemental Pleading to the Motion to Quash" and a
"Motion to Suppress Evidence." 17
On March 23, 1995, the RTC issued the first contested Order which denied
petitioners' motions. 18 On August 3, 1995, the trial court rendered its second
contested Order 19 denying petitioners' Motion for Reconsideration. 20
Hence, this recourse to this Court on pure questions of law.
Issues
In their Memorandum, petitioners submit the following grounds in support of
their cause: 21
I
Petitioners respectfully submit that Judge Asuncion has
committed grave abuse of discretion or has exceeded his
jurisdiction in refusing to quash Search Warrant No.
799(95). Probable cause [has] not . . . been sufficiently
established and partaking as it does of the nature of a
general warrant.
II
Petitioners respectfully submit that Judge Asuncion has
committed grave abuse of discretion or has exceeded his
jurisdiction in refusing to quash Search Warrant No.
799(95) on the ground that it was unlawfully served or
implemented.
III
Petitioners respectfully submit that State Prosecutor
Dacera is acting with grave abuse of discretion his
jurisdiction in continuing with the proceedings in IS No.
95-167 on the basis of illegally seized evidence.
In the main, petitioners question the validity of the search warrant. As a
preliminary matter, we shall also discuss respondents' argument that the
Petition should be dismissed for raising factual questions.
This Court's Ruling
The petition is meritorious.
Preliminary Issue:
Alleged Factual Questions
In their Opposition, respondents argue that the Petition should be dismissed
for raising questions of fact, which are not proper in a petition
for certiorari under Rule 65. They maintain that the Petition merely assails the
"factual basis for the issuance of the warrant and regularity of its
implementation. 22
This argument is not convicting. It is settled that "there is a question of fact
when the doubt arises as to the truth or the falsity of alleged facts." 23 In the
present case, petitioner do not question the truth of the facts as found by the
judge; rather, they are assailing the way in which those findings were arrived
at, a procedure which they contend was violative of the which those
Constitution and the Rules of Court. We agree that the Petition raises only
question of law, which may be resolved in the present case.
Main Issue:
13
Validity of the Search Warrant
The fundamental right against unreasonable and searches and seizures and
the basic conditions for the issuance of a search warrant are laid down in
Section 2, Article III of the 1987 Constitution, which reads:
The right of the people to be secure in their persons,
houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after
examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly
describing the place to be searched and the persons or
things to be seized. (Emphasis supplied)
Consistent with the foregoing constitutional provision, Section 3 and 4, Rule
126 of the Rules of Court, 24 detail the requisites for the issuance of a valid
search warrant as follows:
Sec. 3. Requisite for issuing search warrant. A search
warrant shall not issue but upon probable cause in
connection with one specific offense to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be
searched and the things to be seized.
Sec. 4. Examination of complainant; record. The
judge must, before issuing the warrant, personally
examine in the form of searching questions and answers,
in writing and under oath the complainant and any
witnesses he may produce on facts personally known to
them and attach to the record their sworn statements
together with any affidavits submitted.
More simply stated, the requisites of a valid search warrant are: (1) probable
cause is present; (2) such presence is determined personally by the judge;
(3) the complainant and the witnesses he or she may produce are personally
examined by the judge, in writing and under oath or affirmation; (4) the
applicant and the witnesses testify on facts personally known to them; and (5)
the warrant specifically describes the place to be searched and the things to
be seized. 25
In the present case, the search warrant is invalid because (1) the trail court
failed to examine personally the complainant and the other deponents; (2)
SPO3 Cicero Bacolod, who appeared during the hearing for the issuance or
the search warrant, had no personal knowledge that petitioners were not
licensed to possess the subject firearms; and (3) the place to be searched
was not described with particularity.
No Personal Examination
of the Witnesses
In his Order dated March 23, 1995, the trial judge insisted that the search
warrant was valid, stating that "before issuing the subject warrant, the court
propounded searching questions to the applicant and the witnesses in order
to determined whether there was probable cause . . .." 26 (Emphasis
supplied.) This was supported by the Opposition to the Motion to Quash,
which argued that "it is erroneous for PICOP to allege that the Honorable
Court did not propound searching questions upon applicant P/Chief Inspector
Napoleon Pascua and the witnesses he produced." 27 The records, however,
proclaim otherwise.
As earlier stated, Chief Inspector Pascua's application for a search warrant
was supported by (1) the joint Deposition of SPO3 Cicero S. Bacolod and
SPO2 Cecilio T. Moriro, (2) a summary of information and (3) supplementary
statements of Mario Enad and Felipe Moreno. Except for Pascua and
Bacolod however, none of the aforementioned witnesses and policemen
appeared before the trial court. Moreover, the applicant's participation in the
hearing for the issuance of the search warrant consisted only of introducing
Witness Bacolod: 28
 COURT:
Where is the witness for this
application for search warrant?
P/Chief Insp. NAPOLEON PASCUA:
SPO3 CICERO S. BACOLOD, Your
Honor.
COURT:
Swear the witness.
STENOGRAPHER: (To the witness)
Please raise your right hand, sir. Do
you swear to tell the truth, the whole
truth and nothing but the truth before
this Court?
WITNESS:
Yes Ma'am.
STENOGRAPHER:
Please state your name, age, civil
status, occupation, address and
other personal circumstances.
WITNESS:
SPO3 Cicero S. Bacolod, 42 years
old, married, policeman, c/o Camp
Crame, Quezon City, SOU, TMC.
xxx xxx xxx
Chief Inspector Pascua was asked nothing else, and he said nothing more. In
fact, he failed even to affirm his application. Contrary to his statement, the
trial judge failed to propound questions, let alone probing questions, to the
applicant and to his witnesses other than Bacolod (whose testimony, as will
later be shown, is also improper). Obviously, His Honor relied mainly on their
affidavits. This Court has frowned on this practice in this language:
Mere affidavits of the complainant and his witnesses are
thus not sufficient. The examining Judge has to take
depositions in writing of the complainant and the
witnesses he may procedure and attach them to the
record. Such written deposition is necessary in order that
the Judge may be able to properly determine the
existence or non-existence of the probable cause, to
hold liable for perjury the person giving it if it will be
found later that his declarations are false.
xxx xxx xxx
It is axiomatic that the examination must be probing and
exhaustive, not merely routinary or pro-forma, if the
claimed probable cause is to be established. The
examining magistrate must not simply rehash the
contents of the affidavit but must make his own inquiry
on the intent and justification of the application. 29
Bacolod's Testimony Pertained Not to
Facts Personally Known to Him
14
Bacolod appeared during the hearing and was extensively examined by the
judge. But his testimony showed that he did not have personal knowledge
that the petitioners, in violation of PD 1866, were not licensed to possess
firearms, ammunitions or explosives. In his Deposition, he stated:
Q How do you know that said the
properties were subject of the
offense?
A Sir, as a result of our intensified
surveillance and case build up for
several days, we gathered
informations from reliable sources
that subject properties [which] are in
their possession and control [are]
the herein described properties
subject of the offense. (Summary of
Information dtd Oct. '94. SS's of
Mario Enad and Felipe Moreno both
dtd 30 Nov '94 are hereto
attached). 30
When questioned by the judge, Bacolod stated merely that he believed that
the PICOP security guards had no license to possess the subject firearms.
This, however, does not meet the requirement that a witness must testify on
his personal knowledge, not belief. He declared:
Q This is an application for Search
Warrant against Paper Industries
Corporation located at PICOP
Compound Barangay Tabon, Bislig,
Surigao del Sur. How come that you
have knowledge that there are illegal
firearms in that place?
A At Camp Crame, Quezon City, I
was dispatched by our Commander
to investigate the alleged
assassination plot of Congressman
Amante.
Q In the course of your investigation,
what happened?
A We found out that some of the
suspects in the alleged
assassination plot are employees of
PICOP.
Q Know[ing] that the suspects are
employees of PICOP, what did you
do?
A We conducted the surveillance in
that area inside the compound of
PICOP in Tabon.
Q What did you find . . .?
A I found . . . several high-powered
firearms.
Q How were you able to investigate
the compound of PICOP?
A I exerted effort to enter the said
compound.
Q By what means?
A By pretending to have some
official business with the company.
Q So, in that aspect, you were able
to investigate the compound of
PICOP?
A Yes, sir.
Q What did you f[i]nd . . .?
A I found . . . several high-powered
firearms being kept in the compound
of PICOP.
Q Where are those located?
A Sir, there are firearms kept inside
the ammo dam.
Q Inside the compound?
A Located inside the compound.
Q Then what?
A Others, sir, were kept in the
security headquarters or office.
Q You mean to say that this Paper
Industries Corporation has its own
security guards?
A Yes, they call it Blue Guards.
Q You mean to say that their own
security guards guarded the
PICOP?
A Yes, sir.
Q So, it is possible that the firearms
used by the security guards are
illegally obtained?
A I believe they have no license to
possess high-powered firearms. As
far as the verification at FEU, Camp
Crame, [is concerned,] they have no
license. (Emphasis supplied.)
Q Have you investigated the Blue
Guards Security Agency?
A I conducted the inquiry.
Q What did you find out?
A They are using firearms owned by
PICOP.
Q Using firearms owned by PICOP?
A Yes, sir.
Q You mean to say that this Blue
Guard Security Agency has no
firearms of their own?
A No high-powered firearms.
15
Q By the way, Mr. Witness, what
kind of firearms have you seen
inside the compound of PICOP?
A There are M-16 armalite rifles.
Q What else?
A AK-47, armalites, M-203 Grenade
Launcher, M-14 US rifles, .38 caliber
revolvers, .45 caliber pistols, several
handgrenades and
ammos. 31 (Emphasis supplied)
Moreover, Bacolod failed to affirm that none of the firearms seen inside the
PICOP compound was licensed. Bacolod merely declared that the security
agency and its guard were not licensed. He also said that some of the
firearms were owned by PICOP. Yet, he made no statement before the trail
court PICOP, aside from the security agency, had no license to possess
those firearms. Worse, the applicant and his witnesses inexplicably failed to
attach to the application a copy aforementioned "no license" certification from
the Firearms and Explosives Office (FEO) of the PNP or to present it during
the hearing. Such certification could have been easily obtained, considering
that the FEO was located in Camp Crame where the unit of Bacolod was also
based. In People v. Judge Estrada, 32 the Court held:
The facts and circumstances that would show probable
cause must be the best evidence that could be obtained
under the circumstances. The introduction of such
evidence is necessary in cases where the issue is the
existence of the negative ingredient of the offense
charged for instance, the absence of a license
required by law, as in the present case and such
evidence is within the knowledge and control of the
applicant who could easily produce the same. But if the
best evidence could not be secured at the time of the
application, the applicant must show a justifiable reason
therefor during the examination by the judge.
Particularity of the
Place to Be Searched
In view of the manifest objective of the against unreasonable search, the
Constitution to be searched only to those described in the warrant. 33 Thus,
this Court has held that "this constitutional right [i]s the embodiment of a
spiritual concept: the belief that to value the privacy of home and person and
to afford it constitutional protection against the long reach of government is
no less than to value human dignity, and that his privacy must not be
disturbed except in case of overriding social need, and then only under
stringent procedural
safeguards." 34 Additionally, the requisite of particularity is related to the
probable cause requirement in that, at least under some circumstances, the
lack of a more specific description will make it apparent that there has not
been a sufficient showing to the magistrate that the described items are to be
found in particular place. 35
In the present case, the assailed search warrant failed to described the place
with particularly. It simply authorizes a search of "the aforementioned
premises," but it did not specify such premises. The warrant identifies only
one place, and that is the "Paper Industries Corporation of the Philippines,
located at PICOP Compound, Barangay Tabon, Bislig[,] Surigao del Sur."
The PICOP compound, however, is made up of "200 offices/building, 15
plants, 84 staff houses, 1 airstrip, 3 piers/wharves, 23 warehouses, 6 POL
depots/quick service outlets and some 800 miscellaneous structures, all of
which are spread out over some one hundred fifty-five hectares." 36Obviously,
the warrant gives the police officers unbridled and thus illegal authority to
search all the structures found inside the PICOP compound. 37
In their Opposition, the police state that they complied with the constitutional
requirement, because they submitted sketches of the premises to be
searched when they applied for the warrant. They add that not one of the
PICOP Compound housing units was searched, because they were not
among those identified during the hearing. 38
These arguments are not convincing. The sketches allegedly submitted by that "State Prosecutor Dacera cannot have any tenable basis for continuing
the police were not made integral parts of the search warrant issued by with the proceedings in IS No. 95-167." 41
Judge Asucion. Moreover, the fact that the raiding police team knew which of
the buildings or structures in the PICOP Compound housed firearms and
Because the search warrant was procured in violation of the Constitution and
ammunitions did not justify the lack of particulars of the place to be
the Rules of Court, all the firearms, explosives and other materials seized
searched. 39 Otherwise, confusion would arise regarding the subject of the
were "inadmissible for any purpose in any proceeding." 42 As the Court noted
warrant the place indicated in the warrant or the place identified by the
in an earlier case, the exclusion of unlawfully seized evidence was "the only
police. Such conflict invites uncalled for mischief or abuse of discretion on the
practical means of enforcing the constitutional injunction against
part of law enforces.
unreasonable searches and seizures." 43 Verily, they are the "fruits of the
poisonous tree." Without this exclusionary rule, the constitutional right "would
Thus, in People v. Court of Appeals, 40 this Court ruled that the police had no be so ephemeral and so neatly severed from its conceptual nexus with the
authority to search the apartment behind the store, which was the place freedom from all brutish means evidence means of coercing evidence . . .." 44
indicated in the warrant, even if they intended it to be the subject of their
application. Indeed, the place to be searched cannot be changed, enlarged or
In the present case, the complaint for illegal possession of firearms is based
amplified by the police, viz.:
on the firearms and other materials seized pursuant to Search Warrant No.
799 (95). Since these illegally obtained pieces of evidence are inadmissible,
. . . In the instant case, there is no ambiguity at all in the the Complainant and the proceedings before State Prosecutor Dacera have
warrant. The ambiguity lies outside the instrument, no more leg to stand on.
arising from the absence of a meeting of the minds as to
the place to be searched between the applicants for the
This Court sympathizes with the police effort to stamp out criminality and to
warrant and the Judge issuing the same; and what was
maintain peace and order in the country; however, it reminds the law
done was to substitute for the place that the Judge had
enforcement authorities that they must do so only upon strict observance of
written down in the warrant, the premises that the
the constitutional and statutory rights of our people.
executing officers had in their mind. This should not have
been done. It [was] neither fair nor licit to allow police
officers to search a place different from that stated in the Indeed, "there is a right way to do the right thing at the right time for the right
warrant on the claim that the place actually searched reason." 45
although not that specified in the warrant [was] exactly
what they had in view when they applied for the warrant
and had demarcated in the supporting evidence. What is WHEREFORE, the instant petition for certiorari and prohibition is hereby
material in determining the validity of a search is the GRANTED and Search Warrant No. 799 (95) accordingly declared NULL and
place stated in the warrant itself, not what the applicants VOID. The temporary restraining order issued by this Court on October 23,
had in their thoughts, or had represented in the proofs 1995 is hereby MADE PERMANENT. No pronouncement as to costs.
they submitted to the court issuing the warrant. Indeed,
following the officers' theory, in the context of the facts of SO ORDERED.
this case, all four (4) apartment units at the rear of
Abigail's Variety Store would have been fair game for a
search. Romero, Vitug and Gonzaga-Reyes, JJ., concur.

The place to be searched, as set out in the warrant, Purisima, J., did not participate in the deliberations.
cannot be amplified or modified by the officers' own
personal knowledge of the premises, or the evidence
they adduced in support of their application for the
warrant. Such a change is proscribed by the Constitution
which requires inter alia the search warrant to particularly
describe the place to be searched as well as the persons
or things to be seized. It would concede to police officers
the power of choosing the place to be searched, even if it
not be that delineated in the warrant. It would open wide
the door to abuse of the search process, and grant to
officers executing a search warrant that discretion which
the Constitution has precisely removed from them. The
particularization of the description of the place to be
searched may properly be done only by the Judge, and
only in the warrant itself; it cannot be left to the discretion
of the police officers conducting the search. (Emphasis
supplied.)

Seized Firearms and Explosives

Inadmissible in Evidence

As a result of the seizure of the firearms, effected pursuant to Search

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

Instead of complying with the subpoena, petitioners asked for the suspension
of the preliminary investigation, pending the resolution of their motion to
quash the search warrant. They argued, as they do now, that the illegal
obtained firearms could not be the basis of the criminal Complaint. Their
motion was denied. A subsequent Motion for Reconsideration met the same
fate. In the present Petition for Certiorari and Prohibition, petitioners assert

16
 as amended) and in Criminal Case No. 5991 for violating Section 4 of the
same Act and sentencing her to:

1) Imprisonment of six (6) years and one (1) day and a

fine of P6,000.00 in Criminal Case No. 5990; and

2) Life imprisonment and a fine of P20,000.00 in Criminal

Case No. 5991.

The two informations filed against the appellant respectively alleged:

Criminal Case No. 5990

That on or about the 29th day of November, 1982 in the

City of Olongapo, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused
without being lawfully authorized, did then and there
wilfully, unlawfully and knowingly have in his/her/their
person, possession and control twenty (20) sticks of
marijuana cigarettes.

Criminal Case No. 5991

That on or about the 29th day of November, 1982 in the

City of Olongapo, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused,
without being lawfully authorized, did then and there
wilfully, unlawfully and knowingly engage in selling,
delivering, giving away to another and distributing four
(4) sticks of marijuana cigarettes which is/are prohibited
drug(s). (Rollo, p. 68)

The prosecution's version of the facts, as summarized by the Solicitor-

General, is as follows:

On November 29,1982, at around 7:00 o'clock in the

evening, a civilian informer came to the Narcotics
Command Office in Olongapo City and reported that a
cigarette vendor by the name of 'Mama Rose' was selling
marijuana at the comer of 3rd Street and Rizal Avenue in
Olongapo City (TSN, pp. 4-5, 13, May 4, 1984; pp. 3-4,
11, April 9, 1986). Captain Castillo instructed the
informant to conduct a test buy. He gave to the informant
two (2) five-peso bills, noting first the serial numbers in
his pocket note (TSN, pp. 5,14-15, May 4, 1984; p. 4,
April 9, 1986). The informer left and after thirty (30)
Republic of the Philippines minutes came back and gave to Captain Castillo two (2)
SUPREME COURT sticks of marijuana cigarettes (Exhibit 'C-2') which he
Manila bought from appellant. Captain Castillo again instructed
the informer to make another test buy from the suspect.
THIRD DIVISION From his wallet, Captain Castillo extracted another two
(2) five-peso bills and before handing the same to the
informer, recorded the serial numbers in his pocket note
G.R. No. 85401-02 June 4, 1990 (TSN, pp. 19-21, May 4, 1984).

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, A team composed of Captain Castillo, Sgt. Tahil
vs. Ahamad, CIC Danilo Santiago and Angel Sudiacal left
ROSALINDA RAMOS y DAVID, defendant-appellant. with the informer. The informer proceeded to where
appellant was selling cigarettes to conduct the next test
The Solicitor General for plaintiff-appellee. buy while the NARCOM agents waited at the Black and
White Open Bar located at 7th Street, Rizal Avenue,
Olongapo City (TSN, pp. 6-7, April 9, 1986). The bar was
Romeo C. Alinea for defendant-appellant. about three (3) blocks away from the place where
appellant was selling cigarettes (TSN, pp. 19, 8, Id.).
After forty-five (45) minutes more or less, the informer
arrived at the Black and White Bar and again gave to
Captain Castillo two (2) sticks of marijuana (Exhibit 'C-l';
GUTIERREZ, JR., J.: TSN, p. 23, May 4, 1984; p. 6, April 9,1986).

Appellant Rosalinda Ramos seeks the reversal of the decisions of the
Regional Trial Court, Branch 73, Third Judicial Region at Olongapo City,
finding her guilty beyond reasonable doubt in Criminal Case No. 5990 for
violating Section 8 of Republic Act No. 6425 (Dangerous Drugs Act of 1972
The team then proceeded to the place where appellant
was selling cigarettes. After Identifying themselves as
NARCOM agents, Capt. Castillo told appellant that she
was being placed under arrest for illegal peddling of
marijuana. Appellant was requested to take out the

17
 contents of her wallet (TSN, pp. 6-7, April 9, 1986, The
four marked five- peso bills were found among her
possessions and were confiscated after the serial
numbers were confirmed by Captain Castillo from his
record (TSN, pp. 23-25, May 4, 1984). The initial of Sgt.
Tahil Ahamad was also found from the confiscated five-
peso bills (TSN, p. 9, April 9, 1986). Sgt. Ahamad
searched the stall of appellant and found twenty (20)
sticks of marijuana cigarettes in a trash can placed under
the small table where appellant displayed the wares she
was selling (TSN, p. 7, April 9, 1986). Appellant was
thereafter brought to the station (TSN, p. 23, May 4,
1984).
At the station, appellant executed a statement
confessing to her crimes which she swore to before
Assistant City Fiscal Domingo Cabali, Jr. (TSN, pp. 5-6.
June 20,1984; Exhibit 'G').
The marijuana sticks confiscated were sent to the
Philippine Constabulary Crime Laboratory (PCCL) for
analysis. These were confirmed to be marijuana as
evidenced by the Chemistry Report No. MD-363-82 of
Marlene Salangad, a Forensic Chemist of the PCCL
(See Exhibit 'B'; TSN, p. 3, Jan. 13, 1986). (Rollo, pp. 92-
94)
On the other hand, the version of the appellant as summarized by the trial
court, is as follows:
... [O]n November 29, 1982, between 9:00 and 10:00
o'clock in the evening she was at the corner of 3rd St.,
and Rizal Avenue, West Tapinac, Olongapo City, selling
cigarettes and fruits; that she does not have any table, all
she had was a small wooden 'papag' to show her wares
and sell them; that she was sitting on the small 'papag'
when Capt. Castillo came and introduced himself
followed by three or four others who were more or less 6
to 8 meters away. She was surprised why they were
there, and that she was invited by Capt. Castillo to the
NARCOM office for investigation to which invitation she
said 'yes' after which she was taken to the NARCOM
office. Before she was taken thereto, the other men
searched the buri bags where she used to place her
fruits (records does (sic) not show what fruits she was
selling) and also her small cigarettes (sic) stand; that
they did not find anything under the 'papag; that when
she was ordered to board the car, Castillo told her 'sakay
na ho, Mama Rose' (please board now, Mama Rose');
that she was told to bring along her cigarette stand; that
inside her brown wallet, she has fifty (P 50.00) pesos
consisting of five pesos and ten pesos; that it was
Sudiacal who took her wallet and Sudiacal took five (5)
peso bills and told her that four (4) five peso bills are the
same money which was used to buy marijuana from her;
that she told the officer that the money was hers as she
has been saving some for the rentals. She claimed that
she affixed her signatures on the four (4) five peso bills
because she was forced by Tahil Ahamad by saying
'Mama Rose', you sign this, if you are not going to sign
this, something will happen to you, you will get hurt'; that
because she is an old woman, she got scared so she
signed. When Tahil Ahamad told her to sign, Ahamad
was tailing to her in a normal manner and seated in front
of her; that she cannot remember having signed anything
because she was nervous, Capt. Castillo investigated
her and thereafter was brought to the Fiscal's Office. She
signed a document at the Fiscal's Office; that she was
asked if the contents of the document is (sic) true to
which she answered 'No, sir; that she was not assisted
by a counsel while being investigated. She also testified
that she stayed at Narcom for five (5) days; that Capt.
Castillo alone investigated her for four (4) hours and that
she likewise was not assisted by counsel at the Fiscal's
Office. She claimed that when she was told by the Fiscal
to just sign the document, Fiscal Cabali did not say
anything when she said that the contents of the
document are not true. (Rollo, pp. 72)
18
Appellant raises the following assignment of errors:
I
THE FINDINGS OF FACTS ARE SO UNCLEAR AND
DOUBTFUL, MAKING THE CONCLUSIONS OF THE
TRIAL COURT WITHOUT FACTUAL AND LEGAL LEG
TO STAND ON.
II
THE EVIDENCE OBTAINED AND THE PERSON
ARRESTED WITHOUT THE BENEFIT OF A WARRANT
OF ARREST AND SEIZURE MAY NOT BE USED
AGAINST THE ACCUSED AND ANY CONVICTION
FROM SUCH EVIDENCE IS NOT VALID AND A
GROUND FOR REVERSAL.
III
THE TRIAL COURT RELIED HEAVILY ON THE
CONFESSION OF THE APPELLANT AND THE
CONFESSION WAS EXTRACTED IN VIOLATION OF
APPELLANT'S CONSTITUTIONAL RIGHTS 'TO
REMAIN SILENT AND TO COUNSEL'.
IV
WHEN NOT ALL THE ELEMENTS OF THE OFFENSE
ARE PRESENT AND PROVEN, CONVICTION IS NOT
PROPER.
V
THE REQUISITES IN ORDER TO CONVICT ON
CIRCUMSTANTIAL EVIDENCE ARE NOT PRESENT
AND NOT COMPLIED WITH. (Rollo, p. 59)
At the outset, it may be observed that two informations were filed against the
appellant and the lower court imposed two sentences on appellant, one for
sale and the other for possession of marijuana. This Court must emphasize
that, assuming arguendo, the findings of guilt for both offenses are correct,
the trial judge nevertheless erred in imposing a separate sentence for
possession because possession of marijuana is inherent in the crime of
selling them. (People v. de Jesus, 145 SCRA 521 [1986]; People v. Andiza,
164 SCRA 642 [1988])
After a careful scrutiny of the records, this Court holds that appellant's guilt in
Criminal Case No. 5991 (sale of marijuana) has not been proven beyond
reasonable doubt.
First, the extrajudicial confession extracted from the accused on November
29, 1982 is inadmissible in evidence for being violative of the Constitutional
mandate that 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. (Art.
III, Section 12(l), Constitution)
The preliminary statement read to the appellant when her sworn statement
was executed appears as follows:
SALAYSAY NA KUSANG LOOB NA IBINIBIGAY NI
ROSALINDA RAMOS Y DAVID KAY CAPTAIN
ARTURO M. CASTILLO PC SA HARAP NI SGT. TAHIL
AHAMAD DITO SA HIMPILAN NG CANU, OLONGAPO
CITY, NGAYON 29 NG BUWAN NG NOBYEMBRE
1982.
TAGASIYASAT: Gng. Rosalinda Ramos, ikaw ay nasa
ilalim ng isang pagsisiyasat ukol sa paglabag sa
ipinagbabawal na gamot. Bago kita tanungin ay nais
 kong malaman mo ang iyong mga karapatan sa ating
bagong saligang batas at ito ay ang mga sumusunod:
1 Ikaw ay may karapatan na huwag sumagot sa aking
mga itatanong sa iyo sa pagsisiyasat na ito,
2. Ikaw ay may karapatan na kumuha ng isang abogado
upang makatulong sa iyo sa pagsisiyasat na ito at
3. Ano man ang iyong sasabihin sa pagsisiyasat na ito
ay maaaring gamitin laban or pabor sa iyo saan mang
hukuman dito sa ating bansa.
TANONG: Ngayon alam no na ang iyong mga karapatan
sa ating bagong saligang batas ikaw ba ay kusang loob
na magbibigay ng isang salaysay na pawang
katotohanan at pawang katotohanan lamang sa
pagsisiyasat na ito?;
SAGOT: Opo. (Exhibit G)
This Court finds that such recital of rights falls short of the requirement on
proper apprisal of constitutional rights. We quote the ruling in People v.
Nicandro (141 SCRA 289 [1986]):
When the Constitution requires a person under
investigation 'to be informed' of his right to remain silent
and to counsel, it must be presumed to contemplate the
transmission of meaningful information rather than just
the ceremonial and perfunctory recitation of an abstract
constitutional principle. As a rule, therefore, it would not
be sufficient for a police officer just to repeat to the
person under investigation the provisions of Section 20,
Article IV of the Constitution. He is not only duty- bound
to tell the person the rights to which the latter is entitled;
he must also explain their effects in practical terms, e.g.,
what the person under interrogation may or may not do,
and in a language the subject fairly understands. In other
words, the right of a person under interrogation 'to be
informed implies a correlative obligation on the part of
the police investigator to explain, and contemplates an
effective communication that results in understanding
what is conveyed. Short of this, there is a denial of the
right , as it cannot truly be said that the person has been
'informed' of his rights. Now, since the right 'to be
informed implies comprehension, the degree of
explanation required will necessary vary, depending
upon the education, intelligence and other relevant
personal circumstances of the person under
investigation. Suffice it to say that a simpler and more
lucid explanation is needed where the subject is
unlettered.
Although the right to counsel is a right that may be waived, such waiver must
be voluntary, knowing and intelligent (People v. Caguioa, 95 SCRA 2 [1980]).
To insure that a waiver is voluntary and intelligent, the Constitution now
requires; that for the right to counsel to be waived, the waiver must be in
writing and in the presence of the counsel of the accused. (Art. III, Section
12(l), Constitution) There is no such written waiver in this case, much less
was any waiver made in the presence of counsel.
Fiscal Cabali, who administered the oath on the appellant's extrajudicial
confession, and the police officers who took it down should know by now that
the procedure they followed results in incompetent evidence. If the purpose is
to get proof which can stand up in court, they should follow the requirements
of the Constitution.
Second, the alleged poseur-buyer, who also happens to be the alleged
informant, was never presented during trial. The presence and Identity of the
poseur-buyer is vital to the case as his very existence is being disputed by
the accused-appellant who denies having sold marijuana cigarettes to
anyone. (People v. Ale, 145 SCRA 50 [1986]) Without the testimony of the
poseur-buyer, there is no convincing evidence pointing to the accused as
19
having sold marijuana. (People v. Fernando, 145 SCRA 151 [1986]) In this
case, the alleged informant and the alleged poseur-buyer are one and the
same person. We realize that narcotics agents often have to keep their
Identities and those of their informants confidential. For a prosecution
involving the sale or distribution of drugs to prosper in this particular case,
however, the informant has to testify. The testimony of the poseur-buyer is
rendered compelling by the fact that the police officers were situated three
blocks away from where the alleged sale took place. They did not see the
actual sale of marijuana. Thus, Sit. Sudiacal testified:
Q Before you arrested the accused,
where did you position yourselves?
A We were at the Black and White
Open Bar, sir.
Q How far is that from the place
where the accused was selling
cigarettes?
A It is about three blocks, sir.
Q You did not actually see the
accused selling marijuana?
A Yes, Sir ...," (TSN, May 4, 1984, p.
8)
xxx xxx xxx
Q Did you actually see the buying of
the marijuana?
A No, Mam.
Q So, you did not see anything?
A Yes, Mam.
Q None of the three of you, Sgt.
Sudiacal and Captain Castillo
witnessed the actual buy of the three
sticks of marijuana?
A Yes, Mam.
Q Your basis of the alleged buy by
the informant is his word that he
bought it from the suspect?
A Yes, Mam. (TSN, April 9, 1986,
pp. 125-126)
It is a known fact that drug dealings are hard to prove in court. Precisely
because of this difficulty, buy-bust operations have to be conducted and
every effort is taken such that the suspected pusher is caught in flagrante
selling prohibited drugs. For the culprit to be convicted, the element of sale
must be unequivocally established. In this case, the alleged poseur-buyer
who could have categorically asserted that she bought marijuana from the
appellant was not presented by the prosecution. And Sgts. Ahamad and
Sudiacal could not attest to the fact of sale because they were three blocks
away. The sale of marijuana was therefore not positively proven.
Despite the absence of the testimony of the poseur-buyer, the court a quo,
however, relied on circumstantial evidence in concluding that there was
indeed a sale:
In this case, the accused admitted that she was the only
one selling cigarettes at the corner of 3rd Street; the
informant told the NARCOM Officers that their 'suspect'
is a cigarette vendor positioned thereat. The two (2) 'test
 buy' yielded positive results as the informant was able to
buy four (4) handrolled sticks of marijuana cigarettes
from her, two at a time. The accused did not ask the
reason why when she was invited for investigation. This
act negates innocence and against human nature,
especially after having introduced themselves as
NARCOM agents. In her control and possession, twenty
(20) sticks of similar handrolled marijuana cigarettes
were recovered from a trash can under her small table.
Her counsel on cross-examination asked Sgt. Tahil
Ahamad the following (TSN, April 9, 1986, p. 14) 'and in
order to search that trash can under the table, you have
to ask or request 'Mama Rose' to get out of the way in
order to check the contents of the waste can?' The
question was answered, 'We asked permission from her
to stand up so we can look into the contents of her small
table, sir.
When investigated, the accused gave her statement
which in fact was a confession where she admitted
having sold marijuana cigarettes. She was taken before
the Fiscal to subscribe the same. While she alleged that
she told the Fiscal (Fiscal Cabali) that the contents of her
statement are not true, why then did she sign it before
the said Fiscal? Why did she not insist that her denial be
registered on the document so as to repudiate it? Fear
could not be a valid reason as she has already boldly
spoken out when she said the contents were not true.
The 'marked money' were recovered from her
possession. She did not deny that the four (4) five peso
bills were taken from her wallet. She was addressed as
'Mama Rose' not once but twice by the apprehending
officers. Her counsel during the cross-examination of the
prosecution witnesses and direct examination of the
accused called and addressed her as 'Mama Rose', and
the informant Identified her not only as Rosalinda Ramos
but also as 'Mama Rose'. (At pp. 73-74, Rollo)
This Court finds that the cited circumstantial evidence do not establish
beyond reasonable doubt that there was a sale of marijuana. Considering the
severe penalty of reclusion perpetua imposed on those who sell or distribute
drugs, we have to insure that evidence of culpability must pass the test of the
strictest scrutiny. We also have to take into account the oftrepeated defense
in violations of the Dangerous Drugs Act that the drugs or the marked money
were planted by police officers. More direct and positive evidence is
essential.
The failure of the appellant to ask why she was being invited for investigation
by the NARCOM officers does not ipso facto indicate her guilt. Fear could
have, prevented her from propounding inquiries to the officers.
Nor does the fact that' marked money was found in her possession show
incontrovertibly that she is the seller of marijuana. The appellant is a cigarette
vendor. By the nature of her job, there is a constant exchange of goods for
money. It may be far- fetched but it is possible that she came into possession
of the marked money because she accepted it in the course of legitimate
sales of cigarettes. Again, it is only the poseur-buyer who could testify that
she gave marked money to the appellant in exchange for marijuana sticks.
The fact that the appellant signed the extrajudicial confession despite her
insistence that its contents were not true does not necessarily signify guilt. As
earlier stated the extra-judicial confession cannot be accepted as evidence. It
is useless for purposes of proof of sale of prohibited drugs.
Lastly, this Court fails to see how, from her being addressed as Mama Rose
by the witnesses and appellant's counsel and the alleged informant poseur-
buyer, the sale of marijuana can be inferred.
Rule 133, Section 6 of the Rules of Court provides:
Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstance;
20
(b) The facts from which the inference are derived are
proven; and
(c) The combination of all the circumstances is such as
to produce a conviction beyond a reasonable doubt.
For not successfully meeting the above requirements, the enumerated
circumstantial evidence cannot be a ground for conviction for the sale of
marijuana.
With respect to Criminal Case No., 5990, however, this Court upholds the
lower court's finding that the appellant is guilty of possession of marijuana.
Rule 113 Section 6 (b) of the 1985 Rules of Criminal Procedure provides:
SEC. 6. Arrest without warrant. when lawful. A
peace officer or a private person may, without a warrant,
arrest a person:
(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.
Meanwhile, Section 12 of Rule 126 states:
SEC. 12. Search incident to a lawful arrest. A person
lawfully arrested may be searched for dangerous
weapons or anything which may be used as proof of the
commission of an offense, without a search warrant.
Sgts. Sudiacal and Ahamad testified that there was an informant who
apprised them of the presence of a drug pusher at the comer of 3rd Street
and Rizal Avenue, Olongapo City. Acting on such information and in their
presence, their superior, Captain Castillo, gave the informant marked money
to buy marijuana. The informant, now turned poseur-buyer, returned with two
sticks of marijuana. Captain Castillo again gave said informant marked
money to purchase :marijuana. The informant-poseur buyer thereafter
returned with another two sticks of marijuana. The police officers then
proceeded to the corner of 3rd Street and Rizal Avenue and effected the
arrest of appellant.
From the above facts, it may be concluded that the arresting police officers
had personal knowledge of facts implicating the appellant with the sale of
marijuana to the informant-poseur buyer. We hold therefore that the arrest
was legal and the consequent search which yielded 20 sticks of marijuana
was lawful for being incident to a valid arrest.
The fact that the prosecution failed to prove the sale of marijuana beyond
reasonable doubt does not undermine the legality of the appellant's arrest.
It is not necessary that the crime should have been established as a fact in
order to regard the detention as legal. The legality of detention does not
depend upon the actual commission of the crime, but upon the nature of the
deed when such characterization may reasonably be inferred by the officer or
functionary to who in the law at the moment leaves the decision for the urgent
purpose of suspending the liberty of the citizen (People v. Molleda, 86 SCRA
667 [1978]).
The obligation 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 (People v. Ancheta, 68 Phil. 415 [1939]).
The appellant argues that if the twenty sticks of marijuana were in a trash can
and it was not shown by clear and convincing evidence that the said trash
can belongs to the appellant, then she cannot be considered as being in
possession of marijuana.
In disposing of this contention, this Court quotes with approval the following
arguments of the Solicitor-General:
Appellant's defense falls against the categorical
testimony of the NARCOM agents that the trash can was
 found under the table where her legitimate wares were SO ORDERED.
being sold. This fact was not denied by appellant.
Therefore, she was the only person who had access to
Fernan, C.J. (Chairman), Feliciano and Bidin, JJ., concur.
the trash can. The same was under her immediate
physical control. She had complete charge of the
contents of the trash can under the table to the exclusion Cortes, J., took no part.
of all other persons. In law, actual possession exists
when the thing is in the immediate occupancy and
control of the party. But this is not to say that the law
requires actual possession. In criminal law, possession
necessary for conviction of the offense of possession of
controlled substances with intent to distribute may be
constructive as well as actual (Black's Law Dictionary,
Abridge, 5th Edition, pp. 606-607). It is only necessary
that the defendant must have dominion and control over
the contraband. These requirements are present in the
situation described, where the prohibited drugs were
found inside the trash can placed under the stall owned
by appellant. In fact, the NARCOM agents who
conducted the search testified that they had to ask
appellant to stand so that they could look inside the trash
can under the 'papag' of the appellant. Hence the trash
can was positioned in such a way that it was difficult for
another person to use the trash can. The trash can was
obviously not for use by her customers.

Appellant's arguments are inherently weak and

improbable and cannot stand against the clear evidence
pointing to her actual possession of the prohibited drug.
The raw facts testified to by the NARCOM agents were
corroborated by appellant and their conclusion-that she
had possession of the marijuana sticks found in the trash
can- is consistent with law and reason.

Appellant further contends that it is hard to believe that

she would keep the marijuana sticks in a trash can since
it is a precious commodity to pushers and users thereof.

The above argument is misleading. The value of the

marijuana is not the primary consideration in the
concealment of the contraband. The primary
consideration is escaping detection and arrest.
Obviously, the modus operandi was to dissimulate the
act of selling and possession of marijuana sticks which
carries the capital penalty (sic). Appellant could not
display it among her regular wares of cigarettes and
fruits for sale. She had to hide them from public view, but
near enough to have access to them. The trash can, to
her thinking, would be the last place to look for the
precious commodity. Unfortunately, she was found out.
The argument that it was an 'unlikely place' to hide the
precious contraband is in fact the very consideration in
choosing it as the hiding place for the contraband. (At pp.
97-100, Rollo)

We rule, therefore, that the twenty sticks of marijuana are admissible in

evidence and the trial court's finding that the appellant is guilty of possession
is correct.

The lower court, however, erred in imposing a fixed penalty of six (6) years
and one (1) day for possession of marijuana. Section 1 of the Indeterminate
Sentence Law (Republic Act 4103 as amended) provides that in imposing a
prison sentence for an offense punished by a law other than the Revised
Penal Code, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the maximum fixed
by said law and the minimum which shall not be less than the minimum term
prescribed by the same. The penalty prescribed by the Dangerous Drugs Act
for possession of marijuana is imprisonment ranging from six (6) years and
one (1) day to twelve (12) years and a fine ranging from P6,000 to P12,000.

WHEREFORE, the appealed decision in Criminal Case No. 5990 is

AFFIRMED but MODIFIED. The appellant is sentenced to suffer the penalty
of imprisonment ranging from six (6) years and one (1) day to nine (9) years
and to pay a fine of six thousand (P 6,000) pesos. The appealed decision in
Criminal Case No. 5991 is REVERSED and SET ASIDE and the appellant is
acquitted on grounds of reasonable doubt.

21
 PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BONIFACIO BARROS, accused-appellant.

The Solicitor General for plaintiff-appellee.

Bartolome F. Macliing for accused-appellant.

FELICIANO, J.:

Bonifacio Barros was charged with violating Section 4 of R.A. No. 6425, as
amended (known as the Dangerous Drugs Act of 1972), in an information
which read as follows:

That on or about September 6, 1987, from Chackchakan,

Bontoc, Mountain Province, to Nacagang, Sabangan,
Mountain Province, and within the jurisdiction of this
Honorable Court, the above-named accused while being
a passenger in a Dangwa Bus with Plate No. ABZ 242,
destined for Baguio City, without lawful authority did then
and there willfully, unlawfully and feloniously carry with
him as part of his baggage and transport about four (4)
kilos of dried marijuana which the accused intended for
distribution and sale at Baguio City, knowing fully well
that said marijuana is a prohibited drug or [a] source of
[a] prohibited drug.

Contrary to law. 1

After trial, the trial court convicted Bonifacio Barros of violation of Section 4 of
R.A. No. 6425 as amended and sentenced him to suffer the penalty
of reclusion perpetua 2 and to pay a fine of P20,000.00.

Barros now appeals from the judgment of conviction and essentially asks this
Court to determine

Whether the [trial] court deprived [the] accused of his

right to due process by:

(1) ignoring manifest absence of the mandatory warrant

in the arrest and search of the accused;

(2) admitting confessions extracted from the accused

after two hours of interrogation conducted by four (4)
soldiers one after the other under intimidating
circumstances; and

(3) misappreciation of facts. 3

The relevant facts as found by the trial court and as set forth in the court's
decision are as follows:

That on September 6, 1987, M/Sgt. Francis Yag-as and

S/Sgt. James Ayan, both members of the P.C. Mountain
Province Command, rode the Dangwa Bus bearing Plate
No. ABZ-242 bound for Sabangan, Mountain Province.
Upon reaching Chackchakan, Bontoc, Mountain
Province, the bus stopped and both M/Sgt. Yag-as and
Republic of the Philippines S/Sgt. Ayan, who were seated at the back, saw accused
SUPREME COURT carrying a carton, board the bus and seated himself on
Manila seat No. 18 after putting the carton under his seat.
Thereafter, the bus continued and upon reaching
Sabangan, M/Sgt. Yag-as and S/Sgt. Ayan before they
THIRD DIVISION alighted, it being their station, called C2C [Fernando]
Bongyao to inspect the carton under seat No. 18. After
G.R. No. 90640 March 29, 1994 C2C Bongyao inspected the carton, he found out that it
contained marijuana and he asked the passengers [who]
the owner of the carton [was] but nobody answered.
Thereafter, C2C Bongyao alighted with the carton and
S/Sgt. Ayan and C2C Bongyao invited the herein

22
 accused to the detachment for questioning as accused
was the suspected owner of the carton containing
marijuana. As both P.C. officers Yag-as and Ayan saw
accused, Bonifacio Barros carrying that same carton
when he boarded the bus at Chackchakan. That upon
entering the detachment the carton was opened in the
presence of accused and accused Bonifacio Barros was
asked if he owned the carton of marijuana and accused
denied [this]. That when accused denied ownership of
the carton of marijuana, the P.C. officers called for the
bus conductor who pinpointed to Bonifacio Barros as the
owner of the carton of marijuana. That during the oral
investigation of accused, he finally admitted ownership of
the carton (Exhibit "B") containing [four] 4 paper-wrapped
packages of dried marijuana. (Exhibits "B-1", "B-2", "B-3"
and "B-4").
. . . [A]fter he was orally investigated, [the accused] was
brought to the Abatan General Hospital, Bauko,
Mountain Province, for physical examination and a
Medico Legal Certificate was issued (Exhibits "F" and "F-
1"), indicating that accused suffered no physical injuries
and that accused was probably under the influence of
marijuana. That Dra. Danna Aleta inquired from accused
Bonifacio Barros if he smoked marijuana and accused
admitted having smoked marijuana. That after accused
was medically examined, he was escorted by three
members of the P.C. to the P.C. detachment at Tadian,
Mountain Province, where the carton of marijuana
(Exhibit "B") was also brought. That at Tadian, a seizure
receipt was made together with a certification (Exhibit
"C") pointing out to the fact that approximately 4 kilos of
dried marijuana leaves were from accused Bonifacio
Barros and which certification was signed by the
accused (Exhibit "C-1") and subscribed before Judge
Romualdo P. Awisan (Exhibit "C-2"). That in connection
with the confiscation of the marijuana subject of the
instant case and the apprehension of accused Bonifacio
Barros, the P.C. officers who figured in this case namely
M/Sgt. Yag-as and S/Sgt. Ayan and C2C Bongyao have
correspondingly executed their sworn statements
(Exhibits "A", "A-1", "A-2", "D", "D-1", "D-2").
. . . [S]amples of the marijuana were taken from each of
the four packages marked Exhibits "B-1", "B-2", "B-3",
and "B-4" and placed in four separate envelopes,
following an order of the court to that effect and were
hand-carried by Police Officer Jack Masilian to Camp
Dangwa, La Trinidad, Benguet for laboratory test. That
Capt. Carlos Figueroa, the Forensic Expert conducted
two kinds of test on the four samples sent by the court
and found them to be positive of marijuana as per his
report No. D-011-88. (Exhibits "I" and "I-1"). 4
The defense of the accused on the facts consisted of a simple denial of the
ownership or possession of the carton box containing the four (4) kilos of
marijuana. The trial court summarized the story of the accused in the
following manner:
That accused Bonifacio Barros since 1984 was
employed at the Honeymoon Disco Pad, Baguio City.
That on September 5, 1987, accused was sent by his
Manager, Engineer Arsenio Cuanguey to Bontoc,
Mountain Province, to get their records from one Billy
Cuanguey at Chackchakan, Bontoc, Mountain Province.
That upon arriving at Chackchakan, Bontoc, Mountain
Province, accused looked for the residence of Billy
Cuanguey and he was pointed to a house where
someone was tending a store. That accused asked the
man if Billy Cuanguey was there and the man answered
that he did not know where Billy went. So accused asked
the man if Billy left [in] his room the tapes and records
and the man said he did not know. Thereafter, accused
asked the man to stay over night in that house where
Billy was staying as it was the instruction of his manager.
That the following day, September 6, 1987, after taking
breakfast, accused, was going back to Baguio. On that
morning of September 6, 1987, accused Bonifacio
23
Barros boarded the Dangwa Bus at Chackchakan,
Bontoc, Mountain Province bound for Baguio City. That
when the Dangwa Bus reached the P.C. Checkpoint,
soldiers went inside the bus and checked the baggages.
That a soldier fished out a carton under the seat of [the]
accused and shouted who owns the carton but nobody
answered. Thereafter, the soldier went down with the
carton and moments later returned to the bus and called
accused Bonifacio Barros to alight from the bus. That Mr.
Barros was surprised why he was ordered to alight and
accused took his baggage which consisted of
apasiking and went down the bus. That accused was led
by the soldiers to a house where his pasikingwas taken
and his clothes removed and his wallet taken. Accused
was made to accept ownership of the carton of
marijuana but he refused.
. . . [A]t 11:00 o'clock that same day, September 6, 1987,
three soldiers escorted accused to the hospital and from
the hospital, they proceeded to the Municipality of
Tadian, Mountain Province. That upon reaching Tadian,
accused was brought to the P.C. Camp and there he
saw someone typing. Later, the soldiers allegedly
presented to accused some papers which he was asked
to sign but accused refused. That accused was
threatened and if he refused to sign the papers that
something will happen to him. That moments later,
accused was threatened [by] a soldier [who] pointed a
gun to him and told him to sign the paper and because of
fear, he had to sign the document marked Exhibit "C."
Thereafter, the soldiers allegedly threatened again
accused and asked him to sign his name on the inside
part of the cover of the carton of marijuana. Exhibit "X"
for the court and Exhibit "B-5" for the prosecution. That
after staying at Tadian for one night, accused was
brought back to Sabangan and later transferred to the
Bontoc Provincial Jail. 5
Turning to the legal defenses of the accused, we consider first his allegation
that the police authorities had impermissibly extracted confessions from him
after two (2) hours of interrogation, "under intimidating circumstances," by
four (4) soldiers one after the other. The accused complains that he was not
informed of his rights to remain silent and to counsel, that he had not waived
his rights as an accused person, and that he had signed a confession
involuntarily and without the assistance of counsel. He essentially contends
that the confession is inadmissible as evidence against him.
We find, however, that it is not necessary to pass upon the above contention
of appellant Barros. For the trial court in reaching its judgment of conviction
had not taken into consideration the statements which had been obtained
from the appellant during the interrogation conducted by the police officers.
The trial court, so far as can be determined from its decision, totally
disregarded Exhibits "C", "E" and "B-5," the alleged uncounselled
confessions. The trial court made very clear the bases of its conclusion that
the accused was guilty beyond reasonable doubt of the offense charged;
those bases did not include the alleged confessions:
First M/Sgt. Francis Yag-as and S/Sgt. James Ayan
testified that they saw the accused carrying the carton
(Exhibit "B") when he boarded the bus at Chackchakan,
Bontoc, Mountain Province. That the bus conductor
pointed to accused at the checkpoint of Sabangan,
Mountain Province. That accused is the owner of the
carton (Exhibit "B"). That the carton (Exhibit "B") which
contained four packages of dried marijuana leaves
(Exhibits "B-1", "B-2", "B-3" and "B-4") was fished out
from under the seat of the accused which fact was
admitted by the accused himself.
Second That per testimony of Dra. Danna Aleta, she
examined accused Bonifacio Barros and that he suffered
no physical injuries that would show that the accused
was in anyway maltreated by the police authorities, and
this fact was also admitted by accused to the effect that
he was never harmed by the police nor the soldiers. Dra.
Aleta also found that the accused was under the
influence of drug[s] and that the accused admitted [to]
 her that he, accused, smoked marijuana. This is clear
evidence that accused is not only a pusher of marijuana
but also a user of said prohibited drugs. (See Exhibits "F"
and "F-1" and TSN Page 24 Orpecio).
Third The samples taken from Exhibits "B-1", "B-2",
"B-3" and "B-4" sent by the court for laboratory test at
Camp Dangwa, La Trinidad, Benguet were all positive of
marijuana per Report No. D-011-88 (Exhibits "I" and "I-
1") of Captain Carlos Figueroa, forensical expert.
Lastly, accused's testimony in his own behalf does not
impress the court at it lacks the ring of truth. Besides, it is
devoid of any corroboration. Our Supreme Court in this
respect said:
The weak and uncorroborated denial of the accused
cannot prevail over the clear, positive and
straightforward testimony of prosecution witnesses [sic]."
(People vs. Acelajao, 148 SCRA 142)." 6
We turn, therefore, to the second legal defense asserted by appellant Barros
i.e., that his constitutional right against unreasonable searches and
seizures had been violated by the police authorities. The relevant
constitutional provisions are found in Sections 2 and 3 [2], Article III of the
1987 Constitution which read as follows:
Sec. 2. The right of the people to be secure in their
persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge
after examination under oath or affirmation of the
complainant and the witness as he may produce, and
particularly describing the place to be searched and the
persons or things to be seized.
Sec. 3. . . .
(2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose
in any proceeding.
The general rule is that a search and seizure must be carried out through or
with a judicial warrant; otherwise such search and seizure becomes
"unreasonable" within the meaning of the above quoted constitutional
provision. 7 The evidence secured thereby i.e., the "fruits" of the search
and seizure will be inadmissible in evidence "for any purpose in any
proceeding. 8
The requirement that a judicial warrant must be obtained prior to the carrying
out of a search and seizure is, however, not absolute. There are certain
exceptions recognized in our law, one of which relates to the search of
moving vehicles. 9 Peace officers may lawfully conduct searches of moving
vehicles automobiles, trucks, etc. without need of a warrant, it not being
practicable to secure a judicial warrant before searching a vehicle, since such
vehicle can be quickly moved out of the locality or jurisdiction in which the
warrant may be sought. 10 In carrying out warrantless searches of moving
vehicles, however, peace officers are limited to routine checks, that is, the
vehicles are neither really searched nor their occupants subjected to physical
or body searches, the examination of the vehicles being limited to visual
inspection. In Valmonte vs. De Villa, 11 the Court stated:
[N]ot all searches and seizures are prohibited. Those
which are reasonable are not forbidden. A reasonable
search is not to be determined by any fixed formula but
is to be resolved according to the facts of each case.
Where, for example, the officer merely draws aside the
curtain of a vacant vehicle which is parked on the public
fair grounds, or simply looks into a vehicle, or flashes a
light therein, these do not constitute unreasonable
search. (Citations omitted)
24
When, however, a vehicle is stopped and subjected to an extensive search,
such a warrantless search would be constitutionally permissible only if the
officers conducting the search have reasonable or probable cause to believe,
before the search, that either the motorist is a law-offender or the contents or
cargo of the vehicle are or have been instruments or the subject matter or the
proceeds of some criminal offense. 12
This Court has in the past found probable cause to conduct without a judicial
warrant an extensive search of moving vehicles in situations where (1) there
had emanated from a package the distinctive smell of marijuana; 13 (2)
agents of the Narcotics Command ("Narcom") of the Philippine National
Police ("PNP") had received a confidential report from informers that a
sizeable volume of marijuana would be transported along the route where the
search was conducted; 14 (3) Narcom agents were informed or "tipped off" by
an undercover "deep penetration" agent that prohibited drugs be brought into
the country on a particular airline flight on a given date; 15 (4) Narcom agents
had received information that a Caucasian coming from Sagada, Mountain
Province, had in his possession prohibited drugs and when the Narcom
agents confronted the accused Caucasian, because of a conspicuous bulge
in his waistline, he failed to present his passport and other identification
papers when requested to do
so; 16 and (5) Narcom agents had received confidential information that a
woman having the same physical appearance as that of the accused would
be transporting marijuana. 17
In the case at bar, however, we have been unable to find in the record of this
case any circumstance which constituted or could have reasonably
constituted probable cause for the peace officers to search the carton box
allegedly owned by appellant Barros. The carrying of such a box by appellant
onto a passenger bus could not, by itself, have convinced M/Sgt. Francis
Yag-as and S/Sgt. James Ayan either that the appellant was a law violator or
the contents of the box were instruments or the subject matter or proceeds of
some criminal offense. The carrying of carton boxes is a common practice
among our people, especially those coming from the rural areas since such
boxes constitute the most economical kind of luggage possible. The peace
officers here involved had not received any information or "tip-off" from an
informer; no such a "tip-off" was alleged by the police officers before or
during the trial. The police officers also did not contend that they had
detected the odor of dried marijuana, or appellant Barros had acted
suspiciously in the course of boarding the bus and taking a seat during the
trip to Sabangan, nor in the course of being asked whether he owned the
carton box later ascertained to contain four (4) kilos of marijuana. The
testimony of the law enforcement officers who had apprehended the accused
(M/Sgt. Francis Yag-as and S/Sgt. James Ayan), and who had searched the
box in his possession, (C2C Fernando Bongyao), simply did not suggest or
indicate the presence of any such probable cause.
M/Sgt. Francis Yag-as testified as follows:
Direct Examination by Fiscal Moises Ayochok:
xxx xxx xxx
Q: On September 6, 1987, do you
recall if you reported for duty?
A: Yes, sir.
Q: And where did you go on the
morning of September 6, 1987?
A: I went to Sabangan, sir.
Q: What transportation did you use?
A: Dangwa Bus with Plate No. ABZ-
242.
Q: Where did you board the Dangwa
Bus?
A: At the Dangwa Terminal at
Bontoc.
 Q: When you said you boarded the We request that [the] witness
bus with Plate No. ABZ-242 which answers the question that he
started for Baguio City from Bontoc, testifies [to] not in the narrative way.
Mountain Province, and while it
stopped at Chackchakan, Bontoc,
Fiscal Ayochok:
Mountain Province, was there
anything that happened?
He is answering the question.
xxx xxx xxx
Court:
A: When the bus stopped at Sitio
Chackchakan, we saw a person Let the witness finish.
carrying a baggage or carton and
boarded the bus then took his seat,
seat No. 18. A: When Bongyao inspected the
baggage of the suspect and he
found out that it contained MJ.
Q: What was he carrying that time
Mr. witness?
Q: What do you mean MJ?

A: A carton.
A: Marijuana.

Q: And where did he place that

xxx xxx xxx 18
carton which he was carrying?

A: In front of seat No. 18 where he For his part, S/Sgt. James Ayan
testified as follows:
sat.

Q: You mean inside the bus? Direct Examination:

A: Yes. xxx xxx xxx

Q: And in the morning of September

Q: And after this person boarded the
bus at sitio Chackchakan and 6, 1987, do you recall where you
holding a carton and placed it in were particularly in the afternoon?
front of seat No. 18, what happened
to the bus afterwards? A: In the morning of September 6,
1987, we rode on a Dangwa bus
A: It proceeded to Sabangan. [with Plate] No. ABZ-242 going to
Sabangan.

Q: And at Sabangan, Mountain

Province, what happened, if any? Q: You said we. Who was your
companion that time?

A: The bus stopped for the routinary

checkpoint and inspection. A: Master Sgt. Yag-as, sir.

Q: And when this bus reached

Q: When they [were at] the routinary
checkpoint, what happened? Chackchakan, Bontoc, Mountain
Province, what did you see?

Atty. Sokoken:
A: We saw a civilian board the bus
we were riding carrying a carton.
He did not say routinary checkpoint.
He said routinary inspection.
Q: And where did this civilian who
boarded the bus which you were
Fiscal Ayochok: riding on place that carton?

We substitute the words inspection A: He placed the carton under the

with checkpoint to satisfy the seat of No. 18.
objection of counsel.
Q: Inside the bus, Mr. witness?
Q: What happened when you
stopped for the routinary inspection?
A: Inside the bus, sir.

A: We called C2C Bongyao a

Q: And what about the passenger
member of the detachment to
inspect the baggage of the suspect who boarded the bus carrying the
and when C2C . carton baggage, where did he go?

Atty. Sokoken: A: He sat facing the seat No. 18.

25
 Q: Between seat No. 18 and the Q: So that you have full knowledge
seat seated by the civilian who that from Chackchakan, Bontoc,
brought the carton, where was the going to Sabangan, there is already
carton exactly located? marijuana being carried inside that
bus?
A: As far as I know, sir, it was
located just beneath seat No. 18. A: That is only our suspect [should
be suspicion], sir.
Q: When this bus which you rode on
which the passenger carrying the Q: Would you please tell this
carton luggage you saw reached Honorable Court why you have not
Sabangan what happened there? inspected it when you arrived at
Alab? Why have you waited to reach
Sabangan to inspect it?
A: When the bus reached Sabangan
that we were riding, it was stopped
for routinary inspection. A: Because it is the checkpoint, sir,
at Nacagang, Sabangan.
Q: What happened next?
Q: Are you now admitting that you
do not have authority to inspect the
A: We called C2C Bongyao to
baggage here in Bontoc?
inspect the baggage that we have
just seen at Chackchakan.
A: We just wanted it checked in
Sabangan, sir.
Q: Did he inspect the baggage?

Q: Could you give us a very special

A: Yes, sir.
reason why you have to wait in
Sabangan?
Q: And what was the contents of
that baggage if there was any?
A: Because we are stationed in
Sabangan and that is the
A: It turned out that the contents of checkpoint.
the baggage was MJ sir.
Fiscal Ayochok:
Q: You mean marijuana?
Why argue with the witness? It is up
A: Yes, sir. for them to check it at the proper
checkpoint.
xxx xxx xxx
Court:
Cross Examination:
Sustained.
xxx xxx xxx
xxx xxx xxx 19
Q: You stated that on September 6,
1987, a Dangwa bus stopped at The testimony of C2C Fernando Bongyao is much briefer, but equally
Sabangan, Mt. Province for uninformative:
purposes of military check-up, is that
correct?
Direct Examination:

A: Routinary inspection, sir.

Q: On September 6, 1987, at around
9:30 a.m., do you recall having
Q: But it was not you who entered reported for duty at Nacagang,
the Dangwa bus for routinary check- Sabangan, Mountain Province?
up?
A: Yes, sir.
A: We were there riding in the bus,
sir, and we called C2C Bongyao to
Q: And while you were on duty at
come.
Nacagang, Sabangan, was there
anything unusual that happened that
Q: So your purpose in riding inside time?
the Dangwa bus was actually to see
that person carrying this carton
A: Yes, sir.
which is marked Exhibit "B"?

Q: What was that Mr. witness?

A: No, sir, because I am a
detachment commander at
Sabangan and that is why I called A: When we were on the checkpoint,
one of my men, sir. the bus stopped bearing Plate No.
ABZ-242.

26
 Q: When the bus stopped, what did
you do?
A: While on my way to check the
bus, Master Sergeant Yag-as and
Ayan called for me, sir, and they told
me that a carton was placed under
seat No. 18, sir.
Q: And when you were told to
inspect that carton under seat No.
18, did you inspect that carton?
A: I inspected it, sir.
Q: You said you inspected that
carton, what did you do in inspecting
that carton?
A: I inserted my hand inside and
when I removed my hand, it was a
stuff of marijuana, sir.
xxx xxx xxx 20
So far as the record itself is concerned, therefore, it would appear that there
existed no circumstance which might reasonably have excited the suspicion
of the two (2) police officers riding in the same bus as appellant Barros. They
asked the police officers at the checkpoint at Sabangan to inspect the box
allegedly carried by appellant Barros apparently on a mere guess that
appellant Barros might be carrying something in the nature of contraband
goods. There was, in other words, nothing to show that appellant Barros was
then in the process of "actually committing" or "attempting to commit" a
crime. 21 There was, moreover, nothing on the record that could have
reasonably led the two (2) police officers to believe that "an offense [had] in
fact just been committed" when appellant Barros boarded the bus at
Chackchakan or when he was asked whether he owned the box here
involved at the checkpoint in Sabangan. The two (2) police officers, according
to the record, had no "personable knowledge of facts indicating that the
person to be arrested (appellant Barros) had committed it." There was, in
brief, no basis for a valid warrantless arrest. Accordingly, the search and
seizure of the carton box was equally non-permissible and invalid. 22The
"fruits" of the invalid search and seizure i.e., the four (4) kilos of marijuana
should therefore not have been admitted in evidence against appellant
Barros.
The Solicitor General, however, contends that appellant Barros had waived
any irregularities which may have attended his arrest. Presumably, the
Solicitor General also argues that appellant Barros has waived the non-
admissibility of the carton (Exhibit "B") which contained four (4) packages of
dried marijuana leaves (Exhibits "B-1", "B-2", "B-3" and "B-4"). The Solicitor
General said:
. . . [E]ven assuming in gratia argumenti that irregularities
attended the arrest of appellant, still the same cannot be
questioned at this late stage. Well-settled is the doctrine
laid down in the case of Callanta vs. Villanueva (77
SCRA 377), and later reiterated in the more recent case
of Bagcal vs. Villaraza (120 SCRA 525), that "posting of
[a] bail bond constitutes waiver of any irregularity
attending the arrest of a person and estops him from
questioning its validity." Here, appellant had in fact
posted the required bail to obtain his provisional liberty,
albeit his application was subsequently denied (see TSN,
Feb. 10, 1988, p. 65). Consistent with jurisprudence,
therefore, he should be deemed to have waived any
irregularity attending his arrest, if any there be, and
cannot now be heard to assail the same. 23
It might be supposed that the non-admissibility of evidence secured through
an invalid warrantless arrest or a warrantless search and seizure may be
waived by an accused person. The a priori argument is that the invalidity of
an unjustified warrantless arrest, or an arrest effected with a defective
warrant of arrest may be waived by applying for and posting of bail for
provisional liberty, so as to estop as accused from questioning the legality or
27
constitutionality of his detention or the failure to accord him a preliminary
investigation. We do not believe, however, that waiver of the latter (by, e.g.,
applying for and posting of bail) necessarily constitutes, or carries with it,
waiver of the former an argument that the Solicitor General appears to be
making impliedly. Waiver of the non-admissibility of the "fruits" of an invalid
warrantless arrest and of a warrantless search and seizure is not casually to
be presumed, if the constitutional right against unlawful searches and
seizures is to retain its vitality for the protection of our people. In the case at
bar, defense counsel had expressly objected on constitutional grounds to the
admission of the carton box and the four (4) kilos of marijuana when these
were formally offered in evidence by the prosecution. 24 We consider that
appellant's objection to the admission of such evidence was made clearly
and seasonably and that, under the circumstances, no intent to waive his
rights under the premises can be reasonably inferred from his conduct before
or during during the trial.
In the dissenting opinion, my learned brother Melo, J. takes the view that
appellant Barros had waived his rights by his "stoic deportment" consisting of
failure to object to the search by the police authorities immediately after the
opening of the carton box:
. . . In point of fact, when the police authorities inspected
the carton of marijuana and asked accused-appellant
who owned the box, accused-appellant denied
ownership of the box or carton and failed to even mutter
the least bit of protest (p. 3, Decision). His demeanor
should therefore be construed as implicit acquiescence
to the search inasmuch as the objection thereto is
vulnerable to express or implied waiver (People vs.
Kagui Malasugui (63 Phil. 221 [1936]); 1 Bernas,
Constitution of the Republic of the Philippines, First ed.,
1987, p. 108). . . . . 25
It is submitted, with respect, that Kagui Malasugui is not applicable to the
case at bar; rather it is People vs. Burgos,26 promulgated fifty (50) years
after Kaqui Malasuqui, that is applicable. In Burgos, this Court ruled that the
accused is not to be presumed to have waived the unlawful search
conducted on the occasion of his warrantless arrest "simply because he
failed to object"
. . . To constitute a waiver, it must appear first that the
right exists; secondly, that the person involved had
knowledge, actual or constructive, of the existence of
such a right; and lastly, that said person had an actual
intention to relinquish the right (Pasion Vda. de Garcia
vs. Locsin, 65 Phil. 689). The fact that the accused failed
to object to the entry into his house does not amount to a
permission to make a search therein (Magoncia vs.
Palacio, 80 Phil. 770). As pointed out by Justice Laurel in
the case of Pasion Vda. de Garcia vs. Locsin (supra):
xxx xxx xxx
. . . As the constitutional guaranty is not dependent upon
any affirmative act of the citizen, the courts do not place
the citizen in the position of either contesting an officer's
authority by force, or waiving his constitutional rights; but
instead they hold that a peaceful submission to a search
or seizure is not a consent or an invitation thereto, but is
merely a demonstration of regard for the supremacy of
the law. (Citation omitted).
We apply the rule that: "courts indulge every reasonable
presumption against waiver of fundamental constitutional
rights and that we do not presume acquiescence in the
loss of fundamental rights." (Johnson vs. Zerbts, 304
U.S. 458).27 (Emphasis supplied) .
Kagui Malasugui is not applicable to the instant case, because there the
Court explicitly found that there was probable cause for the warrantless
arrest of the accused and therefore, the warrantless search effected
immediately thereafter was equally lawful. In Kagui Malasugui, a Chinese
merchant was found lying on the ground with several nasty wounds in the
head; one resulted in skull fracture and proved fatal. He died in the hospital to
which he had been immediately brought by a policeman. Mr. Malasuqui
became a suspect because when the victim was found, still alive, and upon
being asked who had attacked him, laconically answered, "Kagui." On the
same day, the accused Kagui Malasugui was arrested and a search of his
person was conducted without objection from the accused. Before the body
search of the accused was carried out, the accused voluntarily surrendered
to the police authorities a couple of bracelets belonging to the deceased
victim and when asked if he had anything else to surrender, he, in a trembling
voice, answered in the negative. The police thereupon conducted a body
search of the accused, without any objection from him; the search resulted in
the production of additional personal effects belonging to the deceased
victim. Under these circumstances, the Court ruled that:
When one voluntarily submits to a search or consents to
have it made of his person or premises, he is precluded
from complaining later thereof. (Cooley, Constitutional
Limitations, 8th ed., [V]ol. I, p. 631.) The right to be
secure from unreasonable search may, like every right,
be waived and such waiver may be made either
expressly or impliedly.
A propos my distinguished brother Melo, J.'s suggestion that the right against
an unlawful warrantless search or arrest is personal and may not be invoked
by the accused's counsel during trial, it is relevant to note that the law (the
Rules of Court) specifies the proper time when objections to admission of
evidence must be raised and that in the case at bar, a timely objection was
made by appellant Barros. Finally, the accused's silence during the
warrantless search should not be lightly taken as consent to that search, but
rather construed as explained by the Court in Burgos, 28 and as pointed out
by Mr. Justice Laurel, a "demonstration of regard for the supremacy of the
law."
It is, of course, possible that appellant Barros may in fact have been guilty of
transporting the four (4) kilos of marijuana. His guilt must, however, be
established by constitutional means. The non-admissibility of evidence
secured through a disregard of the constitutional right of the accused against
unreasonable searches and seizures is the sanction imposed by the
Constitution for disregard of such right; the sanction is a powerful one, for it
renders inutile the work done by the police officers, by the prosecutor and by
the trial court. It is a sanction which this Court has no choice but to apply in
the instant case.
WHEREFORE, for all the foregoing, the decision of the Regional Trial Court,
Branch 35, Bontoc, Mountain Province, in Criminal Case No. 687 is hereby
REVERSED and SET ASIDE and appellant is hereby ACQUITTED of the
crime charged, the evidence lawfully before the trial court not being sufficient
to establish his guilt thereof beyond reasonable doubt. No costs.
SO ORDERED.
Bidin, Romero and Vitug, JJ., concur.
Melo, J., dissents.
28
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 93516 August 12, 1992
THE PEOPLE OF THE PHILLIPPINES, plaintiff-appellee,
vs.
BASILIO DAMASO @ Bernardo/BERNIE MENDOZA @ KA
DADO, accused-appellant.
The Solicitor General for plaintiff-appellee.
MEDIALDEA, J.:
The accused-appellant, Basilio Damaso, was originally charged in an
information filed before the Regional Trial Court of Dagupan City with
violation of Presidential Decree No. 1866 in furtherance of, or incident to, or
in connection with the crime of subversion, together with Luzviminda
Morados y Galang @ Ka Mel, Teresita Calosa y Macabangon @ Ka Tessie,
Ricardo Calosa y Perez @ Ka Ric, Marites Calosa y Evangelista @ Ka Tess,
Eric Tanciangco y Capira @ Ka Ric and Luz Tanciangco y Pencial @ Ka Luz
(Records, p. 3). Such information was later amended to exclude all the
above-enumerated persons except the accused-appellant from the criminal
charge. The amended information reads:
That an or about the 19th day of June, 1988, in the City
of Dagupan, Philippines, and within the territorial
jurisdiction of this Honorable Court, the above-named
accused, Basilio DAMASO @ Bernardo/Bernie Mendoza
@ KA DADO, did then and there, willfully, unlawfully and
criminally, have in his possession, custody and control
one (1) M14 Rifle bearing Serial No. 1249935 with
magazine and Fifty-Seven (57) live ammunition, in
furtherance of, or incident to, or in connection with the
crime of subversion, filed against said accused in the
above-entitled case for Violation of Republic Act 1700,
as amended by Executive Order No. 276.
Contrary to Third Paragraph of Sec. 1, P.D. 1866.
(Records, p. 20)
Upon arraignment, the accused-appellant pleaded not guilty to the crime
charged (Records, p. 37). Trial on the merits ensued. The prosecution rested
its case and offered its exhibits for admission. The counsel for accused-
appellant interposed his objections to the admissibility of the prosecution's
evidence on grounds of its being hearsay, immaterial or irrelevant and illegal
for lack of a search warrant. On these bases, he, thereafter, manifested that
he was not presenting any evidence for the accused (TSN, December 28,
1989, p. 139). On January 17, 1990, the trial court rendered decision, the
dispositive portion of which states:
WHEREFORE, the Court finds accused Basilio
Damaso alias Bernardo/Bernie Mendoza alias Ka Dado
guilty beyond reasonable doubt of Violation of
Presidential Decree Number 1866, and considering that
the Violation is in furtherance of, or incident to, or in
connection with the crime of subversion, pursuant to
Section 1, Paragraph 3 of Presidential Decree Number
1866 hereby sentences the accused to suffer the penalty
of Reclusion Perpetua and to pay the costs of the
proceedings.
 The M14 Rifle bearing Serial Number 1249935 and live
ammunition and all the articles and/or items seized on
June 19, 1988 in connection with this case and marked
and submitted in court as evidence are ordered
confiscated and forfeited in favor of the government, the
same to be turned over to the Philippine Constabulary
Command at Lingayen, Pangasinan.
SO ORDERED. (Rollo, p. 31)
Thus, this present recourse with the following assignment of errors:
A. THE TRIAL COURT ERRED IN FINDING ACCUSED
APPELLANT GUILTY BEYOND REASONABLE DOUBT
OF THE CRIME OF ILLEGAL POSSESSION OF
FIREARMS AND AMMUNITIONS IN FURTHERANCE
OF, OR INCIDENT TO, OR IN CONNECTION WITH
THE CRIME OF SUBVERSION DESPITE THE
WOEFULLY INADEQUATE EVIDENCE PRESENTED
BY THE PROSECUTION.
B. THE COURT ERRED IN CONVICTING THE
ACCUSED WHEN THE QUALIFYING
CIRCUMSTANCES OF SUBVERSION WAS NOT
PROVEN BY THE PROSECUTION.
C. THE LOWER COURT ERRED IN CONSIDERING AS
EVIDENCE THE FIREARMS DOCUMENTS AND ITEMS
LISTED IN EXHIBIT E AFTER THEY WERE
DECLARED INADMISSIBLE WITH FINALITY BY
ANOTHER BRANCH OF THE SAME COURT AND THE
SAID EVIDENCE ARE THE FRUITS OF AN ILLEGAL
SEARCH.
D. THE TRIAL COURT ERRED IN DENYING THE
MOTIONS TO QUASH FILED BY ACCUSED-
APPELLANT BECAUSE THE SEPARATE CHARGE
FOR SUBVERSION AGAINST HIM ABSORBED THE
CHARGE FOR ILLEGAL POSSESSION OF FIREARMS
IN FURTHERANCE OF OR INCIDENT TO, OR IN
CONNECTION WITH THE CRIME OF SUBVERSION.
(pp. 55-66, Rollo)
The antecedent facts are set forth by the Solicitor General in his Brief, as
follows:
On June 18, 1988, Lt. Candido Quijardo, a Philippine
Constabulary officer connected with the 152nd PC
Company at Lingayen, Pangasinan, and some
companions were sent to verify the presence of
CPP/NPA members in Barangay Catacdang, Arellano-
Bani, Dagupan City. In said place, the group
apprehended Gregorio Flameniano, Berlina Aritumba,
Revelina Gamboa and Deogracias Mayaoa. When
interrogated, the persons apprehended revealed that
there was an underground safehouse at Gracia Village in
Urdaneta, Pangasinan. After coordinating with the
Station Commander of Urdaneta, the group proceeded to
the house in Gracia Village. They found subversive
documents, a radio, a 1 x 7 caliber .45 firearm and other
items (pp. 4, 6-7, tsn, October 23, 1989).
After the raid, the group proceeded to Bonuan, Dagupan
City, and put under surveillance the rented apartment of
Rosemarie Aritumba, sister of Berlina Aritumba whom
they earlier arrested. They interviewed Luzviminda
Morados, a visitor of Rosemarie Aritumba. She stated
that she worked with Bernie Mendoza, herein appellant.
She guided the group to the house rented by appellant.
When they reached the house, the group found that it
had already been vacated by the occupants. Since
Morados was hesitant to give the new address of Bernie
Mendoza, the group looked for the Barangay Captain of
the place and requested him to point out the new house
rented by appellant. The group again required Morados
29
to go with them. When they reached the house, the
group saw Luz Tanciangco outside. They told her that
they already knew that she was a member of the NPA in
the area. At first, she denied it, but when she saw
Morados she requested the group to go inside the
house. Upon entering the house, the group, as well as
the Barangay Captain, saw radio sets, pamphlets entitled
"Ang Bayan," xerox copiers and a computer machine.
They also found persons who were companions of Luz
Tanciangco (namely, Teresita Calosa, Ricardo Calosa,
Maries Calosa, Eric Tanciangco and Luzviminda
Morados). The group requested the persons in the house
to allow them to look around. When Luz Tanciangco
opened one of the rooms, they saw books used for
subversive orientation, one M-14 rifle, bullets and
ammunitions, Kenwood radio, artificial beard, maps of
the Philippines, Zambales, Mindoro an(d) Laguna and
other items. They confiscated the articles and brought
them to their headquarters for final inventory. They
likewise brought the persons found in the house to the
headquarters for investigation. Said persons revealed
that appellant was the lessee of the house and owned
the items confiscated therefrom (pp. 8-12, tsn, ibid; pp.
2-4, 6, 8-10, 31, tsn, October 31, 1989). (p. 5, Brief of
Plaintiff-Appellee, p. 91, Rollo)
While We encourage and support law enforcement agencies in their drive
against lawless elements in our society, We must, however, stress that the
latter's efforts to this end must be done within the parameters of the law. In
the case at bar, not only did We find that there are serious flaws in the
method used by the law officers in obtaining evidence against the accused-
appellant but also that the evidence as presented against him is weak to
justify conviction.
We reverse.
The records of this case show that the accused-appellant was singled out as
the sole violator of P.D. No. 1866, in furtherance of, or incident to, or in
connection with the crime of subversion. Yet, there is no substantial and
credible evidence to establish the fact that the appellant is allegedly the same
person as the lessee of the house where the M-14 rifle and other subversive
items were found or the owner of the said items. The prosecution presented
two witnesses who attested to this fact, thus:
Lieutenant Candito Quijardo
Fiscal
Q How about this Bernie Mendoza,
who was the one renting the house?
A He was not around at that
time, but according to
Luz (Tanciangco) who mentioned
the name Bernie Mendoza (as) the
one who was renting the house and
at the same time claiming that it was
Bernie Mendoza who owns the said
items. (TSN of October 31, 1989, p.
40)
xxx xxx xxx
Q I am showing you another picture
which we request to be marked as
Exhibit "K-2," tell us if it has any
connection to the house?
A The same house, sir.
Q Now, this person who according
to you allegedly occupied the house
at Bonuan Gueset, by the name of
Bernie Mendoza, in your capacity as
 a Military officer, did you find out the
identity?
A I am not the proper (person) to tell
the real identity of Bernie de
Guzman.
Q Can you tell the Honorable Court
the proper person who could tell the
true identity of Bernie Mendoza?
A The Intelligence of the
Pangasinan PC Command.
Q Can you name these officers?
A Captain Roberto Rosales and his
assistant, First Lt. Federico Castro.
(ibid, pp. 54-55)
M/Sqt. Artemio Gomez
Q That underground house, do you
know who was the principal
occupant of that house?
xxx xxx xxx
A During our conversation with the
occupants, they revealed that a
certain Ka Bernie is the one
occupying the house, Bernie
Mendoza alias Basilio Damaso.
. . . (TSN, December 27, 1989, pp. 126-128)
Clearly, the aforequoted testimonies are hearsay because the witnesses
testified on matters not on their own personal knowledge. The Solicitor
General, however, argues that while the testimonies may be hearsay, the
same are admissible because of the failure of counsel for appellant to object
thereto.
It is true that the lack of objection to a hearsay testimony results in its being
admitted as evidence. But, one should not be misled into thinking that since
these testimonies are admitted as evidence, they now have probative value.
Hearsay evidence, whether objected to or not, cannot be given credence.
In People vs. Valero, We emphatically declared that:
The failure of the defense counsel to object to the
presentation of incompetent evidence, like hearsay
evidence or evidence that violates the rule of res inter
alios acta, or his failure to ask for the striking out of the
same does not give such evidence any probative value.
The lack of objection may make any incompetent
evidence admissible. But admissibility of evidence
should not be equated with weight of evidence. Hearsay
evidence whether objected to or not has no probative
value.
(L-45283-84, March 19, 1982, 112 SCRA 675, emphasis
supplied)
It is unfortunate that the prosecution failed to present as witnesses
the persons who knew the appellant as the lessee and owner of
the M-14 rifle. In this way, the appellant could have exercised his
constitutional right to confront the witnesses and to cross-examine
them for their truthfulness. Likewise, the records do not show any
other evidence which could have identified the appellant as the
lessee of the house and the owner of the subversive items. To give
probative value to these hearsay statements and convict the
appellant on this basis alone would be to render his constitutional
rights useless and without meaning.
30
Even assuming for the sake of argument that the appellant is the lessee of
the house, the case against him still will not prosper, the reason being that
the law enforcers failed to comply with the requirements of a valid search and
seizure proceedings.
The right against unreasonable searches and seizures is enshrined in the
Constitution (Article III, Section 2). The purpose of the law is to prevent
violations of private security in person and property, and unlawful invasions of
the sanctity of the home by officers of the law acting under legislative or
judicial sanction and to give remedy against such usurpations when
attempted (see Alvero v. Dizon, 76 Phil. 637, 646). However, such right is not
absolute. There are instances when a warrantless search and seizure
becomes valid, namely: (1) search incidental to an arrest; (2) search of a
moving vehicle; and (3) seizure of evidence in plain view (Manipon, Jr. v.
Sandiganbayan, L-58889, July 31, 1986, 143 SCRA 267, 276). None of these
exceptions is present in this case.
The Solicitor General argues otherwise. He claims that the group of Lt.
Quijardo entered the appellant's house upon invitation of Luz Tanciangco and
Luzviminda Morados, helper of the appellant; that when Luz Tanciangco
opened one of the rooms, they saw a copier machine, computer, M-14 rifle,
bullets and ammunitions, radio set and more subversive items; that
technically speaking, there was no search as the group was voluntarily
shown the articles used in subversion; that besides, a search may be validly
conducted without search warrant with the consent of the person searched in
this case, appellant's helper and Luz Tanciangco allowed them to enter and
to look around the appellant's house; and that since the evidence seized was
in plain view of the authorities, the same may be seized without a warrant.
We are not persuaded. The constitutional immunity from unreasonable
searches and seizures, being personal one, cannot be waived by anyone
except the person whose rights are invaded or one who is expressly
authorized to do so in his or her behalf (De Garcia v. Locsin, 65 Phil. 689,
695). In the case at bar, the records show that appellant was not in his house
at that time Luz Tanciangco and Luz Morados, his alleged helper, allowed the
authorities to enter it (TSN, October 31, 1989, p. 10). We Find no evidence
that would establish the fact that Luz Morados was indeed the appellant's
helper or if it was true that she was his helper, that the appellant had given
her authority to open his house in his absence. The prosecution likewise
failed to show if Luz Tanciangco has such an authority. Without this
evidence, the authorities' intrusion into the appellant's dwelling cannot be
given any color of legality. While the power to search and seize is necessary
to the public welfare, still it must be exercised and the law enforced without
transgressing the constitutional rights of the citizens, for the enforcement of
no statute is of sufficient importance to justify indifference to the basic
principles of government (Rodriguez v. Evangelista, 65 Phil. 230, 235). As a
consequence, the search conducted by the authorities was illegal. It would
have been different if the situation here demanded urgency which could have
prompted the authorities to dispense with a search warrant. But the record is
silent on this point. The fact that they came to the house of the appellant at
nighttime (Exh. J, p. 7, Records), does not grant them the license to go inside
his house. In Alih v. Castro, We ruled that:
The respondents cannot even plead the urgency of the
raid because it was in fact not urgent. They knew where
the petitioners were. They had every opportunity to get a
search warrant before making the raid. If they were
worried that the weapons inside the compound would be
spirited away, they could have surrounded the premises
in the meantime, as a preventive measure. There was
absolutely no reason at all why they should disregard the
orderly processes required by the Constitution and
instead insist on arbitrarily forcing their way into the
petitioner's premises with all the menace of a military
invasion. (G.R. No. 69401, June 23, 1987, 151 SCRA
279, 286)
Another factor which illustrates the weakness of the case against the
accused-appellant is in the identification of the gun which he was charged to
have illegally possessed. In the amended information (supra, pp. 1-2), the
gun was described as an M-14 rifle with serial no. 1249935. Yet, the gun
presented at the trial bore a different serial number thus:
FISCAL
 Q Will you kindly restate again the
items that you found inside the
house?
Lt. Quijardo:
A When she opened the doors of the
rooms that we requested for, we
immediately saw different kinds of
books of which we believed to be
used for subversive orientation and
the M-14 rifle.
Q In what portion of the house did
you find this M-14 rifle which you
mentioned?
A In the same room of which the
subversive documents were placed.
Q If this firearm would be shown to
you would you be able to identify the
same?
A Yes, sir.
Q I am showing to you a rifle bearing
a serial number 1249985 which for
purposes of identification, may we
request your Honor, that this rifle be
marked as Exhibit "D."
COURT:
Mark it.
FISCAL:
Q Kindly examine the said firearm
and tell the Honorable Court the
relation of that firearm to the firearm
which according to you you found
inside the room allegedly occupied
by one Bernie Mendoza?
A This is the same rifle which was
discovered during our raid in the
same house. (TSN, October 31,
1989, pp. 36-38, emphasis
supplied).
The Solicitor General contends that the discrepancy is merely a
typographical error.
We do not think so. This glaring error goes into the substance of the charge.
Its correction or lack of it could spell the difference between freedom and
incarceration of the accused-appellant.
In crimes of illegal possession of firearm as in this case, the prosecution has
the burden to prove the existence of the firearm and that the accused who
possessed or owned the firearm does not have the corresponding license for
it. Since the gun as identified at the trial differs from the gun described in the
amended information, the corpus delicti(the substance of the crime, the fact
that a crime has actually been committed) has not been fully established.
This circumstance coupled with dubious claims of appellant's connection to
the house (where the gun was found) have totally emasculated the
prosecution's case.
But even as We find for the accused-appellant, We, take exception to the
argument raised by the defense that the crime of subversion absorbs the
crime of illegal possession of firearm in furtherance of or incident to or in
connection with the crime of subversion. It appears that the accused-
31
appellant is facing a separate charge of subversion. The defense submits
that the trial court should have peremptorily dismissed this case in view of the
subversion charge. In People of the Philippines v. Asuncion, et al., We set
forth in no uncertain terms the futility of such argument. We quote:
If We are to espouse the theory of the respondents that
force and violence are the very essence of subversion,
then it loses its distinction from rebellion. In People v.
Liwanag (G.R. No. 27683, 1976, 73 SCRA 473, 480
[1976]), the Court categorically distinguished subversion
from rebellion, and held:
Violation of Republic Act No. 1700,
or subversion, as it is more
commonly called, is a crime distinct
from that of actual rebellion. The
crime of rebellion is committed
by rising publicly and taking up arms
against the Government for any of
the purposes specified in Article 134
of the Revised Penal Code; while
the Anti-Subversion Act (Republic
Act No. 1700) punishes affiliation or
membership in a subversive
organization as defined therein. In
rebellion, there must be a public
uprising and taking of arms against
the Government; whereas, in
subversion, mere membership in a
subversive association is sufficient
and the taking up of arms by a
member of a subversive
organization against the
Government is but a circumstance
which raises the penalty to be
imposed upon the offender.
(Emphasis supplied)
Furthermore, in the case of Buscayno v. Military
Commission (G.R. 58284, 109 289 (1981]), this Court
said that subversion, like treason, is a crime against
national security, while rebellion is a crime against public
order. Rising publicly and taking arms against the
Government is the very element of the crime on
rebellion. On the other hand, R.A. 1700 was enacted to
outlaw the Communist Party of the Philippines (CPP) ,
other similar associations and its successors because
their existence and activities constitute a clear, present
and grave danger to national security.
The first Whereas clause of R.A. 1700 states that the
CPP is an organized conspiracy to overthrow the
Government, not only by force and violence but also by
deceit, subversion, and other illegal means. This is a
recognition that subversive acts do not only constitute
force and violence (contrary to the arguments of private
respondents), but may partake of other forms as well.
One may in fact be guilty of subversion by authoring
subversive materials, where force and violence is neither
necessary or indispensable.
Private respondents contended that the Court in Misolas
v. Panga impliedly ruled that if an accused is
simultaneously charged with violation of P.D. 1866 and
subversion, the doctrine of absorption of common crimes
as applied in rebellion would have found application
therein. The respondents relied on the opinion of this
Court when it said:
. . . in the present case, petitioner is
being charged specifically for the
qualified offense of illegal
possession of firearms and
ammunition under PD 1866. HE IS
NOT BEING CHARGED WITH THE
COMPLEX CRIME OF
SUBVERSION WITH ILLEGAL
 POSSESSION OF FIREARMS.
NEITHER IS HE BEING
SEPARATELY CHARGED FOR
SUBVERSION AND FOR ILLEGAL
POSSESSION OF FIREARMS.
Thus, the rulings of the Court
in Hernandez,
Geronimo and Rodriguez find no
application in this case.
This is however a mere obiter. In the above case, the
Court upheld the validity of the charge under the third
paragraph of Section 1 of P.D. 1866. The Court opined
that the dictum in the Hernandez case is not applicable
in that case, considering that the legislature deemed it fit
to provide for two distinct offenses: (1) illegal possession
of firearms qualified by subversion (P.D. 1866) and (2)
subversion qualified by the taking up of arms against the
Government (R.A. 1700). The practical result of this may
be harsh or it may pose grave difficulty on an accused in
instances similar to those that obtain in the present case,
but the wisdom of the legislature in the lawful exercise of
its power to enact laws is something that the Court
cannot inquire into . . . (G.R. Nos. 83837-42, April 22,
1992).
Nonetheless, the evidence in hand is too weak to convict the accused-
appellant of the charge of illegal possession of firearm in furtherance of, or
incident to or in connection with the crime of subversion, We are therefore,
left with no option, but to acquit the accused on reasonable doubt.
ACCORDINGLY, the decision appealed from is hereby REVERSED and the
appellant is ACQUITTED with costs de oficio.
SO ORDERED.
Grio-Aquino and Bellosillo, JJ., concur.
32
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-27968 December 3, 1975
JOSE G. LOPEZ and TOMAS VELASCO, petitioners,
vs.
COMMISSIONER OF CUSTOMS, COLLECTOR OF CUSTOMS OF
DAVAO, CHAIRMAN OF THE ASAC, ACTING DIRECTOR, NATIONAL
BUREAU OF INVESTIGATION, CITY FISCAL OF DAVAO, SENIOR NBI
AGENT OF DAVAO, EARL REYNOLDS, AND/OR ANY OF THEIR
AUTHORIZED REPRESENTATIVES, respondents.
A. Romero for petitioners.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General
Pacifico P. de Castro and Solicitor Augusto M. Amores for respondents.
FERNANDO, J.:
This Court, understandably and appropriately in the decision of cases coming
before it, is called upon to act with due care to avoid putting obstacles to the
governmental policy "to minimize, if not to do away entirely, with the evil and
corruption that smuggling brings in its wake ..."1 Nonetheless, the steps taken
by administrative authorities to implement such a laudable objective must not
be repugnant to nor in conflict with constitutional rights. To be more specific,
when the guarantee against unreasonable search and seizure is invoked,
there is a need to scrutinize the facts rigorously to preclude any infringement
thereof. In this special civil action for certiorari, prohibition and mandamus
which arose from the seizures made by the Collector of Customs of Davao of
1,480 sacks of copra and 86 sacks of coffee from the M/V motor vessel Jolo
Lema, our decision of November 29, 1974 in Nasiad v. Court of Tax
Appeals2 made clear that there was no failure to comply with the
requirements of the law in effecting the same. The seizure was therefore
declared lawful by the Court of Tax Appeals, and its decision was affirmed by
us.3 The only question left then is whether the search conducted by a party
headed by respondent Earl Reynolds, Senior NBI Agent of Davao, 4 without
the search warrant for the hotel room of petitioner Tomas Velasco, who
entered into a contract with the other petitioner, Jose G. Lopez, the awardee
of such Philippine Reparations Commission vessel, for its operation and use
ostensibly for fishing,5 is violative of such constitutional provision.6 The
defense interposed by respondents is that there was consent. A careful
scrutiny of the pleadings reveals that such indeed was the case. We find for
respondents and dismiss the action.
The relevant facts as found in the aforesaid Nasiad decision read as follows:
"As noted in the appealed decision, the issue submitted "for resolution is the
legality of the seizure made by the Collector of Customs of Davao of the
1,408 sacks of copra and 86 sacks of coffee allegedly owned by the
petitioners." Then came this portion: "Petitioners claim that the 1,408 sacks of
copra and 86 sacks of coffee in question were purchased in Kiamba,
Lumatin, and Lumasal, all in the province of Cotabato, from a certain
Osmea Juanday. Petitioners contend that, inasmuch as the said goods were
not imported and of foreign origin, they are not legally subject to seizure and
forfeiture. They likewise contend that the forfeiture made by the Collector of
Customs of Davao was invalid because the said forfeiture was based on
documents and papers which were illegally seized by agents of the
Government through violence and intimidation. Respondent denies
petitioners' claim. He contends that the evidence is sufficient to hold that the
goods in question came from Indonesia and subsequently brought to the
Philippines in violation of our laws and, therefore, subject to forfeiture; and
that the Indonesian documents and papers allegedly secured illegally by the
combined team of NBI, PC and RASAC agents stationed in Davao, were in
fact lawfully and validly secured by them. Consequently, said documents and
papers are admissible in evidence in the forfeiture proceedings instituted
administratively by the Collector of Customs of Davao." It was then set forth:
"The voluminous [evidence] of record clearly show that M/V [Jolo Lema] had
been under strict surveillance by the combined team of agents of the NBI,
PC, RASAC, and City Police of Davao prior to its apprehension at a private
wharf in Batjak, Sasa, Davao City; that the said M/V [Jolo Lema] was
skippered (sic) by Capt. Aquilino Pantinople and chartered by Mr. Tomas
Velasco; during the period from the latter part of August to September 18,
1966, the said vessel was in Indonesian waters where it loaded copra and
coffee beans from Taruna, Pitta and Mangenito, all of Indonesia ... ; that in its
trip to Indonesia it brought various merchandise from the Philippines which
were exchanged and/or bartered for copra and coffee beans and
subsequently taken to Davao City ...; and that said vessel passed Marore,
Indonesia on September 18, 1966 on its way to Tahuna, Indonesia ... before
proceeding to Davao City where it was apprehended on September 19,
1966." Then came the reference to the evidence and the testimonies of the
witnesses of both parties, being appraised by respondent Court, which did
not find any ground to discredit the finding of respondent Collector of
Customs. As therein pointed out: "The evidence does not show any plausible
motive for respondent's witnesses to falsify the truth because they represent
different agencies of the government. From all appearances, they have no
personal interest whatsoever over the goods subject of the forfeiture
proceedings. Besides, petitioners have not adduced any evidence showing
that they were enemies of the witnesses for the government. In short, no iota
of evidence was ever presented by the petitioners to destroy the integrity of
the government witnesses and to cast a cloud of doubt on their testimonies."
Also: "The decision of the Collector of Customs of Davao shows that a
petitioner herein and at the same time one of the claimants of the confiscated
copra and coffee beans, Mr. Ernesto Lozada, is the Officer-in-Charge of the
vessel M/V Jolo Lema. It is not surprising, therefore, that the members of his
crew repudiated their sworn statements given to government agents." Then,
lastly: "Moreover, petitioners failed to explain satisfactorily, much less refute
the vital testimony of Fiscal Mariano Umali of the Department of Justice,
Manila that the various Indonesian documents ... duly authenticated by the
Indonesian Consulate in Manila, show in clear detail that the vessel M/V Jolo
Lema was in Indonesia during the period from the latter part of August to
September 18, 1966, and that it loaded copra and coffee beans therein
before the said vessel returned to Davao City on September 19, 1966.
Petitioners' failure to successfully dispute or destroy said testimony by
competent and reliable evidence strongly indicates that the copra and coffee
beans in question were imported from Indonesia." "7
On the question of the search of the hotel room, the petition alleged that at
about 3:00 o'clock in the afternoon of September 19, 1966, when the vessel
was searched, a combined team of Constabulary and Regional Anti-
Smuggling Center operatives headed by NBI agent Earl Reynolds raided the
hotel room then being rented by petitioner Tomas Velasco without any search
warrant and in the absence at the time of such petitioner Tomas Velasco or
the presence of any other person, except one Teofila Ibaez, a mere
manicurist of Davao City by occupation and "forcibly opened luggages and
boxes from which only several documents and papers were found, then
seized, confiscated and took away the same."8 There was this refutation of
such allegation in the answer presented by respondents, represented by the
then Solicitor General, 9 now Associate Justice, Antonio P. Barredo: "(a)
After Captain Pantinople informed the team that petitioner Tomas Velasco,
the charterer of the vessel, had other documents showing that vessel came
from Indonesia carrying smuggled copra and coffee, some members of the
team proceeded to the room of petitioner Velasco at the Skyroom Hotel in
Davao City, to ask for said documents; (b) Although petitioner Velasco was
not inside the hotel room, respondent Reynolds, after identifying himself as a
police officer and after explaining his purpose, was allowed to enter the room
by Mrs. Tomas Velasco who subsequently volunteered to open the suitcases
and baggages of petitioner Velasco and delivered the documents and things
contained therein to respondent Reynolds; ... (c) The said police team did not
search the room; neither did the members thereof forcibly open the luggages
33
and boxes nor seized and confiscated the documents and things contained
therein, since that was not necessary because ... Mrs. Tomas Velasco
voluntarily opened the baggages and suitcases and gave their contents of
documents and things to respondent Reynolds. Such fact is also established
by the joint affidavit of PC Lt. Romeo Arceo, Angel Huertas, Gregorio
Esperancilla, Wilfredo G. Agcaoili, Patricio Barnes and Lucero Cordero, a
joint sworn statement of Antonio Bonotan, Vicente Dubria, Alberto Morgady
and Virgilio Humol; and another affidavit of Pio Raganit and Winifredo
Calamba, ... " 10
Thus, as noted at the outset, petitioners are not entitled to the remedies
prayed for.
1. There has been marked receptivity on the part of this Court to claims
based on the protection of the search and seizure clause of the Constitution,
whenever properly invoked. So it was made clear from the leading case
of Alvarez v. Court of First
Instance. 11 It has been thus since then. 12 Such was the case likewise under
previous organic acts. 13 There is this succinct restatement of what is
embraced in the guarantee in the latest case of Lim v. Ponce de Leon, 14 with
Justice Martin as ponente: "There can be no question that without the proper
search warrant, no public official has the right to enter the premises of
another without his consent for the purpose of search and seizure." 15 It does
not admit of doubt therefore that a search or seizure cannot be stigmatized
as unreasonable and thus offensive to the Constitution if consent be shown.
Such a view is implicit in People v. Malasugui. 16 For this immunity from
unwarranted intrusion is a personal right which may be waived either
expressly or impliedly. 17
The crucial question then is whether in this instance there was consent on
the part of the person who was the occupant of the hotel room then rented by
petitioner Velasco. It cannot be contended that such premises would be
outside the constitutional protection of a guarantee intended to protect one's
privacy. It stands to reason that in such a place, the insistence on being free
from any unwelcome intrusion is likely to be more marked. 18 Was there,
however, consent sufficient in law to dispense with the warrant?
Respondents, as previously noted, contend that there was such consent.
They so alleged in their answer. Their memorandum would stress it further in
these words: "Here the wife of petitioner Tomas Velasco, upon being
informed of the purpose of the search by the officers, invited them to enter
and search the hotel room and even voluntarily gave the documents and
things requested by said officers. This fact could be gleaned from the
following records of the two seizure cases involving the vessel M/V Jolo
Lema and its cargo of Indonesian copra and coffee: (a) On September 19,
1966, Teofila Ibaez, wife of petitioner Tomas Velasco, issued a written
statement which states that "... I have voluntarily and freely allowed my
husband's and my personal belongings to be searched and freely gave the
following items." ... (b) On the same date, she issued another certification
which reads in part, viz.: "... That I have voluntarily turned over for
safekeeping and verification the following."... (c) Also on the same date, she
issued still another certification which reads partially, thus:"... that I have
freely and voluntarily allowed the search of my and my husband's personal
belongings and turn-over to the NBI of the following items."... (d) On October
13, 1966 the Davao City Police Department issued a certification to the effect
that the petitioner Tomas Velasco never filed any "report for robbery or other
offenses ... against any member of the NBI or the PC during the period from
September 19, 1966 to the present,"... ." 19 Their memorandum likewise
included as an annex an affidavit from Benjamin Doronal Y. Yaez, the
assistant manager of the Skyroom Hotel. It was worded thus: "That on
September 19, 1966 at around 3:00 to 4:00 o'clock in the afternoon, a joint
NBI, PC and Davao City Police Commando Team conducted a search on
Room 220 of the Skyroom Hotel occupied by Mr. and Mrs. Tomas Velasco;
That before said search was conducted, [Teofila Ibaez], the actual occupant
of the room at the time, voluntarily consented to the request of Atty. [Earl
Reynolds] and Lt.[Romeo Arceo], to search their room (Rm. 220) after the
latter introduced themselves by showing their respective identifications cards;
That during said search, upon the request of Atty. [Reynolds] and Lt.[Arceo],
[Teofila Ibaez] voluntarily opened her handbag which was found to contain a
.45 caliber pistol and likewise voluntarily opened the maletas which were
found to contain several papers and documents; That receipts were duly
issued to [Teofila Ibaez] which accounted for everything taken from their
room (Rm. No. 220) during the search, including said .45 caliber pistol,
papers and documents and that nothing was lost; That [Teofila Ibaez]
signed the receipts and received copies thereof; That [Teofila Ibaez] and I
were present when the said search was being conducted; That said search
was conducted in a peaceful and orderly
manner ... ." 20
There was an attempt on the part of petitioners to counteract the force of the
above recital by an affidavit of one Corazon Y. Velasco, 21 who stated that
she is the legal wife of petitioner Tomas Velasco, and another by such
petitioner himself 22 reiterating such a fact and that the person who was
present at his hotel room was one Teofila Ibaez, "a manicurist by
occupation ." 23 Their effort appurtenant thereto is doomed to failure. If such
indeed were the case, then it is much more easily understandable why that
person, Teofila Ibaez, who could be aptly described as the wrong person at
the wrong place and at the wrong time, would have signified her consent
readily and immediately. Under the circumstances, that was the most prudent
course of action. It would save her and even petitioner Velasco himself from
any gossip or innuendo. Nor could the officers of the law be blamed if they
would act on the appearances. There was a person inside who from all
indications was ready to accede to their request. Even common courtesy
alone would have precluded them from inquiring too closely as to why she
was there. Under all the circumstances, therefore, it can readily be concluded
that there was consent sufficient in law to dispense with the need for a search
warrant. The petition cannot, therefore, prevail.

2. It was set forth at the outset that the state policy of minimizing, if not doing
away entirely with the festering sore of smuggling must be carried out with
due respect for constitutional rights. It is a truism in law that a desirable end
cannot be attained by illegal means. Whenever there is a showing therefore
that the safeguards of the fundamental law are disregarded, more specifically
the guarantee against unreasonable search and seizure, then judicial redress
is appropriate. To repeat, such is not the case here. Moreover, it may
likewise be added that as previously mentioned in Nasiad v. Court of Tax
Appeals, 24 involving the very same occurrence, the only difference being that Republic of the Philippines
the petitioners there were the importers of the smuggled goods, this Court SUPREME COURT
had affirmed the validity of the seizure proceeding. No injustice can therefore Manila
be claimed by petitioners.
THIRD DIVISION
WHEREFORE, the petition for certiorari, prohibition and mandamus is
dismissed. Costs against petitioners.
G.R. No. 96177 January 27, 1993

Antonio, Muoz Palma, Aquino and Concepcion, Jr., JJ., concur.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
Barredo, J., took no part. MARI MUSA y HANTATALU, accused-appellant.

The Solicitor General for plaintiff-appellee.

Pablo L. Murillo for accused-appellant.

ROMERO, J.:

The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision,
dated August 31, 1990,1 of the 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

34
Zamboanga City, who was the NARCOM team leader of the buy-bust
operation; and (3) Athena Elisa P. Anderson, the Document Examiner and
Forensic Chemist of PC-INP Crime Laboratory of Regional Command
(RECOM) 9. The evidence of the prosecution was summarized by the trial
court as follows:
Prosecution evidence shows that in the morning of
December 13, 1989, T/Sgt. Jesus Belarga, leader of a
NARCOTICS COMMAND (NARCOM) team based at
Calarian, Zamboanga City, instructed Sgt. Amado Ani to
conduct surveillance and test buy on a certain Mari Musa
of Suterville, Zamboanga City. Information received from
civilian informer was that this Mari Musa was engaged in
selling marijuana in said place. So Sgt. Amado Ani,
another NARCOM agent, proceeded to Suterville, in
company with a NARCOM civilian informer, to the house
of Mari Musa to which house the civilian informer had
guided him. The same civilian informer had also
described to him the appearance of Mari Musa. Amado
Ani was able to buy one newspaper-wrapped dried
marijuana (Exh. "E") for P10.00. Sgt. Ani returned to the
NARCOM office and turned over the newspaper-
wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga
inspected the stuff turned over to him and found it to be
marijuana.
The next day, December 14, 1989, about 1:30 P.M., a
buy-bust was planned. Sgt. Amado Ani was assigned as
the poseur buyer for which purpose he was given P20.00
(with SN GA955883) by Belarga. The
buy-bust money had been taken by T/Sgt. Jesus Belarga
from M/Sgt. Noh Sali Mihasun, Chief of Investigation
Section, and for which Belarga signed a receipt (Exh. "L"
& "L-l" ) The team under Sgt. Foncargas was assigned
as back-up security. A 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").
35
In the NARCOM office, Mari Musa first gave his name as
Hussin Musa. Later on, Mari Musa gave his true name
Mari Musa. T/Sgt. Jesus Belarga turned over the two
newspaper-wrapped marijuana (bought at the buy-bust),
the one newspaper-wrapped marijuana (bought at the
test-buy) and the plastic bag containing more marijuana
(which had been taken by Sgt. Lego inside the kitchen of
Mari Musa) to the PC Crime Laboratory, Zamboanga
City, for laboratory examination. The turnover of the
marijuana specimen to the PC Crime Laboratory was by
way of a letter-request, dated December 14, 1989 (Exh.
"B"), which was stamped "RECEIVED" by the PC Crime
Laboratory (Exh. "B-1") on the same day.
Mrs. Athena Elisa P. Anderson, the Forensic Chemist of
the PC Crime Laboratory, examined the marijuana
specimens subjecting the same to her three tests. All
submitted specimens she examined gave positive results
for the presence of marijuana. Mrs. Anderson reported
the results of her examination in her Chemistry Report D-
100-89, dated December 14, 1989, (Exh. "J", "J-1", "J-2",
"J-3", "J-4" and "J-5"). Mrs. Anderson identified in court
the two newspaper wrapped marijuana bought at the
buy-bust on December 14, 1989, through her initial and
the weight of each specimen written with red ink on each
wrapper (Exhs. "C-1" and "D-1"). She also identified the
one newspaper-wrapped marijuana bought at the test-
buy on December 13, 1989, through her markings (Exh.
"E-1"). Mrs. Anderson also identified her Chemistry
Report (Exh. "J" & sub-markings.)
T. Sgt. Belarga identified the two buy-bust newspaper
wrapped marijuana through his initial, the words "buy-
bust" and the words "December 14, 1989, 2:45 P.M."
(written on Exhs. "C" and "D"). Belarga also identified the
receipt of the P20 marked money (with SN GA955883)
(Exh. "L"), dated December 14, 1989, and his signature
thereon (Exh.
"L-1"). He also identified the letter-request, dated
December 14, 1989, addressed to the PC Crime
Laboratory (Exh. "B") and his signature thereon (Exh. "B-
2") and the stamp of the PC Crime Laboratory marked
"RECEIVED" (Exh. "B-1").4
For the defense, the following testified as witnesses: (1) the accused-
appellant Mari H. Musa; and (2) Ahara R. Musa, his wife. The trial court
summarized the version of the defense, thus:
[O]n December 14, 1989, at about 1:30 in the afternoon,
Mari Musa was in his house at Suterville, Zamboanga
City. With him were his wife, Ahara Musa, known as Ara,
his one-year old child, a woman manicurist, and a male
cousin named Abdul Musa. About 1:30 that afternoon,
while he was being manicured at one hand, his wife was
inside the one room of their house, putting their child to
sleep. Three NARCOM agents, who introduced
themselves as NARCOM agents, dressed in civilian
clothes, got inside Mari Musa's house whose door was
open. The NARCOM agents did not ask permission to
enter the house but simply announced that they were
NARCOM agents. The NARCOM agents searched Mari
Musa's house and Mari Musa asked them if they had a
search warrant. The NARCOM agents were just silent.
The NARCOM agents found a red plastic bag whose
contents, Mari Musa said, he did not know. He also did
not know if the plastic bag belonged to his brother,
Faisal, who was living with him, or his father, who was
living in another house about ten arms-length away. Mari
Musa, then, was handcuffed and when Mari Musa asked
why, the NARCOM agents told him for clarification.
Mari Musa was brought in a pick-up, his wife joining him
to the NARCOM Office at Calarian, Zamboanga City.
Inside the NARCOM Office, Mari Musa was investigated
by one NARCOM agent which investigation was reduced
into writing. The writing or document was interpreted to
Mari Musa in Tagalog. The document stated that the
 marijuana belonged to Mari Musa and Mari Musa was
asked to sign it. But Mari Musa refused to sign because
the marijuana did not belong to him. Mari Musa said he
was not told that he was entitled to the assistance of
counsel, although he himself told the NARCOM agents
he wanted to be assisted by counsel.
Mari Musa said four bullets were then placed between
the fingers of his right hand and his fingers were pressed
which felt very painful. The NARCOM agents boxed him
and Mari Musa lost consciousness. While Mari Musa
was maltreated, he said his wife was outside the
NARCOM building. The very day he was arrested (on
cross-examination Mari Musa said it was on the next
day), Mari Musa was brought to the Fiscal's Office by
three NARCOM agents. The fiscal asked him if the
marijuana was owned by him and he said "not." After
that single question, Mari Musa was brought to the City
Jail. Mari Musa said he did not tell the fiscal that he had
been maltreated by the NARCOM agents because he
was afraid he might be maltreated in the fiscal's office.
Mari Musa denied the NARCOM agents' charge that he
had sold two wrappers of marijuana to them; that he had
received from them a P20.00 bill which he had given to
his wife. He did not sell marijuana because he was afraid
that was against the law and that the person selling
marijuana was caught by the authorities; and he had a
wife and a very small child to support. Mari Musa said he
had not been arrested for selling marijuana before.5
After trial, the trial court rendered the assailed decision with the following
disposition:
WHEREFORE, finding accused Mari Musa y Hantatalu
guilty beyond reasonable doubt of selling marijuana and
pursuant to Sec. 4, Art II of Rep. Act No. 6425, he is
sentenced to life imprisonment and to pay the fine of
P20,000.00, the latter imposed without subsidiary
imprisonment.6
In this appeal, the appellant contends that his guilt was not proved beyond
reasonable doubt and impugns the credibility of the prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not
credible because: (1) prior to the buy-bust operation, neither Sgt. Ani nor the
other NARCOM agents were personally known by the appellant or vice-
versa; and (2) there was no witness to the alleged giving of the two wrappers
of marijuana by the appellant to Sgt. Ani.
Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt.
Jesus Belarga, he conducted a test-buy operation on the appellant whereby
he bought one wrapper of marijuana for P15.00 from the latter. 7 He reported
the successful operation to T/Sgt. Belarga on the same day. 8 Whereupon,
T/Sgt. Belarga conducted a conference to organize a buy-bust operation for
the following day.9
On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate
vehicles headed by T/Sgt. Belarga and a certain Sgt. Foncardas went to the
place of operation, which was the appellant's house located in Laquian
Compound, Suterville, Zamboanga City. Sgt. Ani was with the team of T/Sgt.
Belarga, whose other members were Sgts. Lego and Biong. 10 Sgt. Ani was
given a marked P20.00 bill by T/Sgt. Belarga, which was to be used in the
operation.
Upon reaching the place, the NARCOM agents positioned themselves at
strategic places.11 Sgt. Ani approached the house. Outside the house, the
appellant asked Sgt. Ani what he wanted. Sgt. Ani asked him for some more
marijuana.12 Sgt. Ani gave him the marked P20.00 bill and the appellant went
inside the house and brought back two paper wrappers containing marijuana
which he handed to Sgt. Ani.13 From his position, Sgt. Ani could see that
there were other people in the house.14
After the exchange, Sgt. Ani approached the other NARCOM agents and
made the pre-arranged signal of raising his right hand.15 The NARCOM
36
agents, accompanied by Sgt. Ani, went inside the house and made the
arrest. The agents searched the appellant and unable to find the marked
money, they asked him where it was. The appellant said that he gave it to his
wife.16
The Court, after a careful reading of the record, finds the testimony of Sgt.
Ani regarding the buy-bust operation, which resulted in the apprehension,
prosecution and subsequent conviction of the appellant, to be direct, lucid
and forthright. Being totally untainted by contradictions in any of the material
points, it deserves credence.
The contention that the appellant could not have transacted with Sgt. Ani
because they do not know each other is without merit. The day before the
buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought
a wrapper of marijuana from the appellant. Through this previous transaction,
Sgt. Ani was able to gain the appellant's confidence for the latter to sell more
marijuana to Sgt. Ani the following day, during the buy-bust operation.
Moreover, the Court has held that what matters is not an existing familiarity
between the buyer and the seller, for quite often, the parties to the
transaction may be strangers, but their agreement and the acts constituting
the sale and delivery of the marijuana.17
The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it
was impossible for the appellant to sell marijuana while his wife, cousin and
manicurist were present. But the place of the commission of the crime of
selling prohibited drugs has been held to be not crucial18 and the presence of
other people apart from the buyer and seller will not necessarily prevent the
consummation of the illegal sale. As the Court observed in People v.
Paco,19 these factors may sometimes camouflage the commission of the
crime. In the instant case, the fact that the other people inside the appellant's
house are known to the appellant may have given him some assurance that
these people will not report him to the authorities.
The appellant, besides assailing Sgt. Ani's credibility, also questions the
credibility of T/Sgt. Belarga. The appellant submits that since T/Sgt. Belarga
admitted that he was about 90 meters away from Sgt. Ani and the appellant,
he could not have possibly witnessed the sale. The appellant invokes People
v.
Ale20 where the Court observed that from a distance of 10-15 meters, a
policeman cannot distinguish between marijuana cigarette from ordinary ones
by the type of rolling done on the cigarette sticks. And since T/Sgt. Belarga
allegedly did not see the sale, the appellant contends that the uncorroborated
testimony of Sgt. Ani can not stand as basis for his conviction.
People v. Ale does not apply here because the policeman in that case
testified that he and his companion were certain that the appellant therein
handed marijuana cigarettes to the poseur-buyer based on the appearance of
the cigarette sticks. The Court rejected this claim, stating that:
This Court cannot give full credit to the testimonies of the
prosecution witnesses marked as they are with
contradictions and tainted with inaccuracies.
Bian testified that they were able to tell that the four
cigarettes were marijuana cigarettes because according
to him, the rolling of ordinary cigarettes are different from
those of marijuana cigarettes. (tsn, November 13, 1984,
p. 10).
It is however, incredible to believe that they could discern
the type of rolling done on those cigarettes from the
distance where they were observing the alleged sale of
more or less 10 to 15 meters.21
In the case at bar, however, T/Sgt. Belarga did not positively claim that he
saw the appellant hand over marijuana to Sgt. Ani. What he said was that
there was an exchange of certain articles between the two. The relevant
portion of T/Sgt. Belarga's testimony reads:22
Q Now, do you remember whether
Sgt. Ani was able to reach the house
of Mari Musa?
A Yes, ma'am.
 Q After reaching Mari Musa, did you
see what happened (sic)?
A Yes, ma'am.
Q Could you please tell us?
A From our vehicle the stainless
owner type jeep where Sgt. Lego,
Sgt. Biong were boarded, I saw that
Sgt. Ani proceeded to the house
near the road and he was met by
one person and later known as Mari
Musa who was at the time wearing
short pants and later on I saw that
Sgt. Ani handed something to him,
thereafter received by Mari Musa
and went inside the house and came
back later and handed something to
Sgt. Ani.
Contrary to the contention of the appellant, it was not impossible for T/Sgt.
Belarga to have seen, from a distance of 90-100 meters, Sgt. Ani hand to the
appellant "something" and for the latter to give to the former "something."
Notwithstanding the fact that T/Sgt. Belarga could not have been certain that
what Sgt. Ani received from the appellant was marijuana because of the
distance, his testimony, nevertheless, corroborated the direct evidence,
which the Court earlier ruled to be convincing, presented by Sgt. Ani on the
following material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a
surveillance and test-buy operation on the appellant at Suterville, Zamboanga
City on December 13, 1989; 23 (2) later that same day, Sgt. Ani went back to
their office and reported a successful operation and turned over to T/Sgt.
Belarga one wrapper of marijuana; 24 (3) T/Sgt. Belarga then organized a
team to conduct a buy-bust operation the following day; 25 (4) on December
14, 1989, T/Sgt. Belarga led a team of NARCOM agents who went to
Suterville, Zamboanga City;26 (5) T/Sgt. Belarga gave a P20.00 marked bill to
Sgt. Ani which was to be used in the 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 case30 provided there exists
other evidence, direct or circumstantial, e.g., the testimony of the poseur-
buyer, which is sufficient to prove the consummation of the sale of the
prohibited drug
The appellant next assails the seizure and admission as evidence of a plastic
bag containing marijuana which the NARCOM agents found in the appellant's
kitchen. It appears that after Sgt. Ani gave the pre-arranged signal to the
other NARCOM agents, the latter moved in and arrested the appellant inside
the house. They searched him to retrieve the marked money but didn't find it.
Upon being questioned, the appellant said that he gave the marked money to
his wife.31 Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and
noticed what T/Sgt. Belarga described as a "cellophane colored white and
stripe hanging at the corner of the kitchen." 32 They asked the appellant about
its contents but failing to get a response, they opened it and found dried
marijuana leaves. At the trial, the appellant questioned the admissibility of the
plastic bag and the marijuana it contains but the trial court issued an Order
ruling that these are admissible in evidence.33
Built into the Constitution are guarantees on the freedom of every individual
against unreasonable searches and seizures by providing in Article III,
Section 2, the following:
The right of the people to be secure in their persons,
houses, papers, and effects against 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
37
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:
Sec. 12. Search incident to lawful arrest. A person
lawfully arrested may be searched for dangerous
weapons or anything which may be used as proof of the
commission of an offense, without a search warrant.
There is no doubt that the warrantless search incidental to a lawful arrest
authorizes the arresting officer to make a search upon the person of the
person arrested. As early as 1909, the Court has ruled that "[a]n officer
making an arrest may take from the person arrested any money or property
found upon his person which was used in the commission of the crime or was
the fruit of the crime or which might furnish the prisoner with the means of
committing
violence or of escaping, or which may be used as evidence in the trial of the
cause . . . "38 Hence, in a buy-bust operation conducted to entrap a drug-
pusher, the law enforcement agents may seize the marked money found on
the person
of the pusher immediately after the arrest even without arrest and search
warrants.39
In the case at bar, the NARCOM agents searched the person of the appellant
after arresting him in his house but found nothing. They then searched the
entire house and, in the kitchen, found and seized a plastic bag hanging in a
corner.
The warrantless search and seizure, as an incident to a suspect's lawful
arrest, may extend beyond the person of the one arrested to include the
premises or surroundings under his immediate control. 40 Objects in the "plain
view" of an officer who has the right to be in the position to have that view are
subject to seizure and may be presented as evidence.41
In Ker v. California42 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 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 vs. California, where the police officer had
reason to walk to the doorway of the adjacent kitchen and from which
position he saw the marijuana, the NARCOM agents in this case went from
room to room with the obvious intention of fishing for more evidence.

Moreover, when the NARCOM agents saw the plastic bag hanging in one
corner of the kitchen, they had no clue as to its contents. They had to ask the
appellant what the bag contained. When the appellant refused to respond,
they opened it and found the marijuana. Unlike Ker v. California, where the
marijuana was visible to the police officer's eyes, the NARCOM agents in this
case could not have discovered the inculpatory nature of the contents of the
bag had they not forcibly opened it. Even assuming then, that the NARCOM
agents inadvertently came across the plastic bag because it was within their
"plain view," what may be said to be the object in their "plain view" was just
the plastic bag and not the marijuana. The incriminating nature of the
contents of the plastic bag was not immediately apparent from the "plain
view" of said object. It cannot be claimed that the plastic bag clearly betrayed U.S. Supreme Court
its contents, whether by its distinctive configuration, its transprarency, or
otherwise, that its contents are obvious to an observer.48
Terry v. Ohio, 392 U.S. 1 (1968)
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 Terry v. Ohio
seized illegally and cannot be presented in evidence pursuant to Article III,
Section 3(2) of the Constitution. No. 67

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.
38
Argued December 12, 1967
Decided June 10, 1968
392 U.S. 1
Syllabus
A Cleveland detective (McFadden), on a downtown beat which he had been
patrolling for many years, observed two strangers (petitioner and another
man, Chilton) on a street corner. He saw them proceed alternately back and
forth along an identical route, pausing to stare in the same store window,
which they did for a total of about 24 times. Each completion of the route was
followed by a conference between the two on a corner, at one of which they
were joined by a third man (Katz) who left swiftly. Suspecting the two men of
"casing a job, a stick-up," the officer followed them and saw them rejoin the
third man a couple of blocks away in front of a store. The officer approached
the three, identified himself as a policeman, and asked their names. The men
"mumbled something," whereupon McFadden spun petitioner around, patted
down his outside clothing, and found in his overcoat pocket, but was unable
to remove, a pistol. The officer ordered the three into the store. He removed
petitioner's overcoat, took out a revolver, and ordered the three to face the
wall with their hands raised. He patted down the outer clothing of Chilton and
Katz and seized a revolver from Chilton's outside overcoat pocket. He did not
put his hands under the outer garments of Katz (since he discovered nothing
in his pat-down which might have been a weapon), or under petitioner's or (d) An officer justified in believing that an individual whose suspicious
Chilton's outer garments until he felt the guns. The three were taken to the behavior he is investigating at close range is armed may, to neutralize the
police station. Petitioner and Chilton were charged with carrying threat of physical harm, take necessary measures to determine whether that
person is carrying a weapon. P. 392 U. S. 24.
Page 392 U. S. 2
(e) A search for weapons in the absence of probable cause to arrest must be
strictly circumscribed by the exigencies of the situation. Pp. 392 U. S. 25-26.
concealed weapons. The defense moved to suppress the weapons. Though
the trial court rejected the prosecution theory that the guns had been seized
during a search incident to a lawful arrest, the court denied the motion to (f) An officer may make an intrusion short of arrest where he has reasonable
suppress and admitted the weapons into evidence on the ground that the apprehension of danger before being possessed of information justifying
officer had cause to believe that petitioner and Chilton were acting arrest. Pp. 392 U. S. 26-27.
suspiciously, that their interrogation was warranted, and that the officer, for
his own protection, had the right to pat down their outer clothing having
6. The officer's protective seizure of petitioner and his companions and the
reasonable cause to believe that they might be armed. The court
limited search which he made were reasonable, both at their inception and as
distinguished between an investigatory "stop" and an arrest, and between a
conducted. Pp. 392 U. S. 27-30.
"frisk" of the outer clothing for weapons and a full-blown search for evidence
of crime. Petitioner and Chilton were found guilty, an intermediate appellate
court affirmed, and the State Supreme Court dismissed the appeal on the (a) The actions of petitioner and his companions were consistent with the
ground that "no substantial constitutional question" was involved. officer's hypothesis that they were contemplating a daylight robbery and were
armed. P. 392 U. S. 28.
Held:
(b) The officer's search was confined to what was minimally necessary to
determine whether the men were armed, and the intrusion, which was made
1. The Fourth Amendment right against unreasonable searches and seizures,
for the sole purpose of protecting himself and others nearby, was confined to
made applicable to the States by the Fourteenth Amendment, "protects
ascertaining the presence of weapons. Pp. 392 U. S. 29-30.
people, not places," and therefore applies as much to the citizen on the
streets as well as at home or elsewhere. Pp. 392 U. S. 8-9.
7. The revolver seized from petitioner was properly admitted into evidence
against him, since the search which led to its seizure was reasonable under
2. The issue in this case is not the abstract propriety of the police conduct,
the Fourth Amendment. Pp. 392 U. S. 30-31.
but the admissibility against petitioner of the evidence uncovered by the
search and seizure. P. 392 U. S. 12.
Affirmed.
3. The exclusionary rule cannot properly be invoked to exclude the products
of legitimate and restrained police investigative techniques, and this Court's Page 392 U. S. 4
approval of such techniques should not discourage remedies other than the
exclusionary rule to curtail police abuses for which that is not an effective
sanction. Pp. 392 U. S. 13-15.

4. The Fourth Amendment applies to "stop and frisk" procedures such as

those followed here. Pp. 392 U. S. 16-20.

(a) Whenever a police officer accosts an individual and restrains his freedom CASE:
to walk away, he has "seized" that person within the meaning of the Fourth
Amendment. P. 392 U. S. 16.
U.S. Supreme Court
(b) A careful exploration of the outer surfaces of a person's clothing in an
attempt to find weapons is a "search" under that Amendment. P. 392 U. S. Terry v. Ohio, 392 U.S. 1 (1968)
16.
Terry v. Ohio
5. Where a reasonably prudent officer is warranted in the circumstances of a
given case in believing that his safety or that of others is endangered, he may No. 67
make a reasonable search for weapons of the person believed by him to be
armed and dangerous
Argued December 12, 1967
Page 392 U. S. 3
Decided June 10, 1968
regardless of whether he has probable cause to arrest that individual for
crime or the absolute certainty that the individual is armed. Pp. 392 U. S. 20- 392 U.S. 1
27.
CERTIORARI TO THE SUPREME COURT OF OHIO
(a) Though the police must, whenever practicable, secure a warrant to make
a search and seizure, that procedure cannot be followed where swift action
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
based upon on-the-spot observations of the officer on the beat is required.
P. 392 U. S. 20.
This case presents serious questions concerning the role of the Fourth
Amendment in the confrontation on the street between the citizen and the
(b) The reasonableness of any particular search and seizure must be
policeman investigating suspicious circumstances.
assessed in light of the particular circumstances against the standard of
whether a man of reasonable caution is warranted in believing that the action
taken was appropriate. Pp. 392 U. S. 21-22. Petitioner Terry was convicted of carrying a concealed weapon and
sentenced to the statutorily prescribed term of one to three years in the
penitentiary. [Footnote 1] Following
(c) The officer here was performing a legitimate function of investigating
suspicious conduct when he decided to approach petitioner and his
companions. P. 392 U. S. 22. [5]

39
the denial of a pretrial motion to suppress, the prosecution introduced in
evidence two revolvers and a number of bullets seized from Terry and a
codefendant, Richard Chilton, [Footnote 2] by Cleveland Police Detective
Martin McFadden. At the hearing on the motion to suppress this evidence,
Officer McFadden testified that, while he was patrolling in plain clothes in
downtown Cleveland at approximately 2:30 in the afternoon of October 31,
1963, his attention was attracted by two men, Chilton and Terry, standing on
the corner of Huron Road and Euclid Avenue. He had never seen the two
men before, and he was unable to say precisely what first drew his eye to
them. However, he testified that he had been a policeman for 39 years and a
detective for 35, and that he had been assigned to patrol this vicinity of
downtown Cleveland for shoplifters and pickpockets for 30 years. He
explained that he had developed routine habits of observation over the years,
and that he would "stand and watch people or walk and watch people at
many intervals of the day." He added: "Now, in this case, when I looked over,
they didn't look right to me at the time."
His interest aroused, Officer McFadden took up a post of observation in the
entrance to a store 300 to 400 feet
[6]
away from the two men. "I get more purpose to watch them when I seen their
movements," he testified. He saw one of the men leave the other one and
walk southwest on Huron Road, past some stores. The man paused for a
moment and looked in a store window, then walked on a short distance,
turned around and walked back toward the corner, pausing once again to
look in the same store window. He rejoined his companion at the corner, and
the two conferred briefly. Then the second man went through the same series
of motions, strolling down Huron Road, looking in the same window, walking
on a short distance, turning back, peering in the store window again, and
returning to confer with the first man at the corner. The two men repeated this
ritual alternately between five and six times apiece -- in all, roughly a dozen
trips. At one point, while the two were standing together on the corner, a third
man approached them and engaged them briefly in conversation. This man
then left the two others and walked west on Euclid Avenue. Chilton and Terry
resumed their measured pacing, peering, and conferring. After this had gone
on for 10 to 12 minutes, the two men walked off together, heading west on
Euclid Avenue, following the path taken earlier by the third man.
By this time, Officer McFadden had become thoroughly suspicious. He
testified that, after observing their elaborately casual and oft-repeated
reconnaissance of the store window on Huron Road, he suspected the two
men of "casing a job, a stick-up," and that he considered it his duty as a
police officer to investigate further. He added that he feared "they may have a
gun." Thus, Officer McFadden followed Chilton and Terry and saw them stop
in front of Zucker's store to talk to the same man who had conferred with
them earlier on the street corner. Deciding that the situation was ripe for
direct action, Officer McFadden approached the three men, identified
[7]
himself as a police officer and asked for their names. At this point, his
knowledge was confined to what he had observed. He was not acquainted
with any of the three men by name or by sight, and he had received no
information concerning them from any other source. When the men
"mumbled something" in response to his inquiries, Officer McFadden grabbed
petitioner Terry, spun him around so that they were facing the other two, with
Terry between McFadden and the others, and patted down the outside of his
clothing. In the left breast pocket of Terry's overcoat, Officer McFadden felt a
pistol. He reached inside the overcoat pocket, but was unable to remove the
gun. At this point, keeping Terry between himself and the others, the officer
ordered all three men to enter Zucker's store. As they went in, he removed
Terry's overcoat completely, removed a .38 caliber revolver from the pocket
and ordered all three men to face the wall with their hands raised. Officer
McFadden proceeded to pat down the outer clothing of Chilton and the third
man, Katz. He discovered another revolver in the outer pocket of Chilton's
overcoat, but no weapons were found on Katz. The officer testified that he
only patted the men down to see whether they had weapons, and that he did
not put his hands beneath the outer garments of either Terry or Chilton until
he felt their guns. So far as appears from the record, he never placed his
hands beneath Katz' outer garments. Officer McFadden seized Chilton's gun,
asked the proprietor of the store to call a police wagon, and took all three
men to the station, where Chilton and Terry were formally charged with
carrying concealed weapons.
40
On the motion to suppress the guns, the prosecution took the position that
they had been seized following a search incident to a lawful arrest. The trial
court rejected this theory, stating that it "would be stretching the facts beyond
reasonable comprehension" to find that Officer
[8]
McFadden had had probable cause to arrest the men before he patted them
down for weapons. However, the court denied the defendants' motion on the
ground that Officer McFadden, on the basis of his experience, "had
reasonable cause to believe . . . that the defendants were conducting
themselves suspiciously, and some interrogation should be made of their
action." Purely for his own protection, the court held, the officer had the right
to pat down the outer clothing of these men, who he had reasonable cause to
believe might be armed. The court distinguished between an investigatory
"stop" and an arrest, and between a "frisk" of the outer clothing for weapons
and a full-blown search for evidence of crime. The frisk, it held, was essential
to the proper performance of the officer's investigatory duties, for, without it,
"the answer to the police officer may be a bullet, and a loaded pistol
discovered during the frisk is admissible."
After the court denied their motion to suppress, Chilton and Terry waived jury
trial and pleaded not guilty. The court adjudged them guilty, and the Court of
Appeals for the Eighth Judicial District, Cuyahoga County, affirmed. State v.
Terry, 5 Ohio App.2d 122, 214 N.E.2d 114 (1966). The Supreme Court of
Ohio dismissed their appeal on the ground that no "substantial constitutional
question" was involved. We granted certiorari, 387 U.S. 929 (1967), to
determine whether the admission of the revolvers in evidence violated
petitioner's rights under the Fourth Amendment, made applicable to the
States by the Fourteenth. Mapp v. Ohio, 367 U. S. 643 (1961). We affirm the
conviction.
I
The Fourth Amendment 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. . . ." This inestimable right of
[9]
personal security belongs as much to the citizen on the streets of our cities
as to the homeowner closeted in his study to dispose of his secret affairs. For
as this Court has always recognized,
"No right is held more sacred, or is more carefully guarded, by the common
law than the right of every individual to the possession and control of his own
person, free from all restraint or interference of others, unless by clear and
unquestionable authority of law." Union Pac. R. Co. v. Botsford, 141 U. S.
250, 251 (1891).
We have recently held that "the Fourth Amendment protects people, not
places," Katz v. United States, 389 U. S. 347, 351 (1967), and wherever an
individual may harbor a reasonable "expectation of privacy," id. at 361 (MR.
JUSTICE HARLAN, concurring), he is entitled to be free from unreasonable
governmental intrusion. Of course, the specific content and incidents of this
right must be shaped by the context in which it is asserted. For "what the
Constitution forbids is not all searches and seizures, but unreasonable
searches and seizures." Elkins v. United States, 364 U. S. 206, 222 (1960).
Unquestionably petitioner was entitled to the protection of the Fourth
Amendment as he walked down the street in Cleveland. Beck v. Ohio, 379 U.
S. 89 (1964); Rios v. United States, 364 U. S. 253 (1960); Henry v. United
States, 361 U. S. 98(1959); United States v. Di Re, 332 U. S.
581 (1948); Carroll v. United States, 267 U. S. 132 (1925). The question is
whether, in all the circumstances of this on-the-street encounter, his right to
personal security was violated by an unreasonable search and seizure.
We would be less than candid if we did not acknowledge that this question
thrusts to the fore difficult and troublesome issues regarding a sensitive area
of police activity -- issues which have never before been squarely
[10]
presented to this Court. Reflective of the tensions involved are the practical
and constitutional arguments pressed with great vigor on both sides of the
public debate over the power of the police to "stop and frisk" -- as it is
sometimes euphemistically termed -- suspicious persons.
On the one hand, it is frequently argued that, in dealing with the rapidly
unfolding and often dangerous situations on city streets, the police are in
need of an escalating set of flexible responses, graduated in relation to the
amount of information they possess. For this purpose, it is urged that
distinctions should be made between a "stop" and an "arrest" (or a "seizure"
of a person), and between a "frisk" and a "search." [Footnote 3] Thus, it is
argued, the police should be allowed to "stop" a person and detain him briefly
for questioning upon suspicion that he may be connected with criminal
activity. Upon suspicion that the person may be armed, the police should
have the power to "frisk" him for weapons. If the "stop" and the "frisk" give
rise to probable cause to believe that the suspect has committed a crime,
then the police should be empowered to make a formal "arrest," and a full
incident "search" of the person. This scheme is justified in part upon the
notion that a "stop" and a "frisk" amount to a mere "minor inconvenience and
petty indignity," [Footnote 4] which can properly be imposed upon the
[11]
citizen in the interest of effective law enforcement on the basis of a police
officer's suspicion. [Footnote 5]
On the other side, the argument is made that the authority of the police must
be strictly circumscribed by the law of arrest and search as it has developed
to date in the traditional jurisprudence of the Fourth Amendment. [Footnote 6]
It is contended with some force that there is not -- and cannot be -- a variety
of police activity which does not depend solely upon the voluntary
cooperation of the citizen, and yet which stops short of an arrest based upon
probable cause to make such an arrest. The heart of the Fourth Amendment,
the argument runs, is a severe requirement of specific justification for any
intrusion upon protected personal security, coupled with a highly developed
system of judicial controls to enforce upon the agents of the State the
commands of the Constitution. Acquiescence by the courts in the compulsion
inherent
[12]
in the field interrogation practices at issue here, it is urged, would constitute
an abdication of judicial control over, and indeed an encouragement of,
substantial interference with liberty and personal security by police officers
whose judgment is necessarily colored by their primary involvement in "the
often competitive enterprise of ferreting out crime."Johnson v. United
States, 333 U. S. 10, 14 (1948). This, it is argued, can only serve to
exacerbate police-community tensions in the crowded centers of our Nation's
cities. [Footnote 7]
In this context, we approach the issues in this case mindful of the limitations
of the judicial function in controlling the myriad daily situations in which
policemen and citizens confront each other on the street. The State has
characterized the issue here as "the right of a police officer . . . to make an
on-the-street stop, interrogate and pat down for weapons (known in street
vernacular as 'stop and frisk'). [Footnote 8]" But this is only partly accurate.
For the issue is not the abstract propriety of the police conduct, but the
admissibility against petitioner of the evidence uncovered by the search and
seizure. Ever since its inception, the rule excluding evidence seized in
violation of the Fourth Amendment has been recognized as a principal mode
of discouraging lawless police conduct. See Weeks v. United States, 232 U.
S. 383, 391-393 (1914). Thus, its major thrust is a deterrent one, see
Linkletter v. Walker, 381 U. S. 618, 629-635 (1965), and experience has
taught that it is the only effective deterrent to police misconduct in the
criminal context, and that, without it, the constitutional guarantee against
unreasonable searches and seizures would be a mere "form of words." Mapp
v. Ohio, 367 U. S. 643, 655 (1961). The rule also serves another vital function
-- "the imperative of judicial integrity." Elkins
[13]
v. United States, 364 U. S. 206, 222 (1960). Courts which sit under our
Constitution cannot and will not be made party to lawless invasions of the
constitutional rights of citizens by permitting unhindered governmental use of
the fruits of such invasions. Thus, in our system, evidentiary rulings provide
the context in which the judicial process of inclusion and exclusion approves
some conduct as comporting with constitutional guarantees and disapproves
41
other actions by state agents. A ruling admitting evidence in a criminal trial,
we recognize, has the necessary effect of legitimizing the conduct which
produced the evidence, while an application of the exclusionary rule
withholds the constitutional imprimatur.
The exclusionary rule has its limitations, however, as a tool of judicial control.
It cannot properly be invoked to exclude the products of legitimate police
investigative techniques on the ground that much conduct which is closely
similar involves unwarranted intrusions upon constitutional protections.
Moreover, in some contexts, the rule is ineffective as a deterrent. Street
encounters between citizens and police officers are incredibly rich in
diversity. They range from wholly friendly exchanges of pleasantries or
mutually useful information to hostile confrontations of armed men involving
arrests, or injuries, or loss of life. Moreover, hostile confrontations are not all
of a piece. Some of them begin in a friendly enough manner, only to take a
different turn upon the injection of some unexpected element into the
conversation. Encounters are initiated by the police for a wide variety of
purposes, some of which are wholly unrelated to a desire to prosecute for
crime. [Footnote 9] Doubtless some
[14]
police "field interrogation" conduct violates the Fourth Amendment. But a
stern refusal by this Court to condone such activity does not necessarily
render it responsive to the exclusionary rule. Regardless of how effective the
rule may be where obtaining convictions is an important objective of the
police, [Footnote 10] it is powerless to deter invasions of constitutionally
guaranteed rights where the police either have no interest in prosecuting or
are willing to forgo successful prosecution in the interest of serving some
other goal.
Proper adjudication of cases in which the exclusionary rule is invoked
demands a constant awareness of these limitations. The wholesale
harassment by certain elements of the police community, of which minority
groups, particularly Negroes, frequently complain, [Footnote 11] will not be
[15]
stopped by the exclusion of any evidence from any criminal trial. Yet a rigid
and unthinking application of the exclusionary rule, in futile protest against
practices which it can never be used effectively to control, may exact a high
toll in human injury and frustration of efforts to prevent crime. No judicial
opinion can comprehend the protean variety of the street encounter, and we
can only judge the facts of the case before us. Nothing we say today is to be
taken as indicating approval of police conduct outside the legitimate
investigative sphere. Under our decision, courts still retain their traditional
responsibility to guard against police conduct which is overbearing or
harassing, or which trenches upon personal security without the objective
evidentiary justification which the Constitution requires. When such conduct
is identified, it must be condemned by the judiciary, and its fruits must be
excluded from evidence in criminal trials. And, of course, our approval of
legitimate and restrained investigative conduct undertaken on the basis of
ample factual justification should in no way discourage the employment of
other remedies than the exclusionary rule to curtail abuses for which that
sanction may prove inappropriate.
Having thus roughly sketched the perimeters of the constitutional debate over
the limits on police investigative conduct in general and the background
against which this case presents itself, we turn our attention to the quite
narrow question posed by the facts before us: whether it is always
unreasonable for a policeman to seize a person and subject him to a limited
search for weapons unless there is probable cause for an arrest.
[16]
Given the narrowness of this question, we have no occasion to canvass in
detail the constitutional limitations upon the scope of a policeman's power
when he confronts a citizen without probable cause to arrest him.
II
Our first task is to establish at what point in this encounter the Fourth
Amendment becomes relevant. That is, we must decide whether and when
Officer McFadden "seized" Terry, and whether and when he conducted a
"search." There is some suggestion in the use of such terms as "stop" and
"frisk" that such police conduct is outside the purview of the Fourth
Amendment because neither action rises to the level of a "search" or
"seizure" within the meaning of the Constitution. [Footnote 12] We
emphatically reject this notion. It is quite plain that the Fourth Amendment
governs "seizures" of the person which do not eventuate in a trip to the
stationhouse and prosecution for crime -- "arrests" in traditional terminology.
It must be recognized that, whenever a police officer accosts an individual
and restrains his freedom to walk away, he has "seized" that person. And it is
nothing less than sheer torture of the English language to suggest that a
careful exploration of the outer surfaces of a person's clothing all over his or
her body in an attempt to find weapons is not a "search." Moreover, it is
simply fantastic to urge that such a procedure
[17]
performed in public by a policeman while the citizen stands helpless, perhaps
facing a wall with his hands raised, is a "petty indignity." [Footnote 13] It is a
serious intrusion upon the sanctity of the person, which may inflict great
indignity and arouse strong resentment, and it is not to be undertaken lightly.
[Footnote 14]
The danger in the logic which proceeds upon distinctions between a "stop"
and an "arrest," or "seizure" of the person, and between a "frisk" and a
"search," is twofold. It seeks to isolate from constitutional scrutiny the initial
stages of the contact between the policeman and the citizen. And, by
suggesting a rigid all-or-nothing model of justification and regulation under
the Amendment, it obscures the utility of limitations upon the scope, as well
as the initiation, of police action as a means of constitutional regulation.
[Footnote 15] This Court has held, in
[18]
the past that a search which is reasonable at its inception may violate the
Fourth Amendment by virtue of its intolerable intensity and scope. Kremen v.
United States, 353 U. S. 346 (1957); Go-Bart Importing Co. v.
[19]
United States, 282 U. S. 344, 356-358 (1931); see United States v. Di
Re, 332 U. S. 581, 586-587 (1948). The scope of the search must be "strictly
tied to and justified by" the circumstances which rendered its initiation
permissible. Warden v. Hayden, 387 U. S. 294, 310 (1967) (MR. JUSTICE
FORTAS, concurring); see, e.g., Preston v. United States, 376 U. S. 364,
367-368 (1964); Agnello v. United States, 269 U. S. 20, 30-31 (1925).
The distinctions of classical "stop-and-frisk" theory thus serve to divert
attention from the central inquiry under the Fourth Amendment -- the
reasonableness in all the circumstances of the particular governmental
invasion of a citizen's personal security. "Search" and "seizure" are not
talismans. We therefore reject the notions that the Fourth Amendment does
not come into play at all as a limitation upon police conduct if the officers stop
short of something called a "technical arrest" or a "full-blown search."
In this case, there can be no question, then, that Officer McFadden "seized"
petitioner and subjected him to a "search" when he took hold of him and
patted down the outer surfaces of his clothing. We must decide whether, at
that point, it was reasonable for Officer McFadden to have interfered with
petitioner's personal security as he did. [Footnote 16] And, in determining
whether the seizure and search were "unreasonable," our inquiry
[20]
is a dual one -- whether the officer's action was justified at its inception, and
whether it was reasonably related in scope to the circumstances which
justified the interference in the first place.
III
If this case involved police conduct subject to the Warrant Clause of the
Fourth Amendment, we would have to ascertain whether "probable cause"
existed to justify the search and seizure which took place. However, that is
not the case. We do not retreat from our holdings that the police must,
42
whenever practicable, obtain advance judicial approval of searches and
seizures through the warrant procedure, see, e.g., Katz v. United States, 389
U. S. 347 (1967); Beck v. Ohio, 379 U. S. 89, 96 (1964); Chapman v. United
States, 365 U. S. 610 (1961), or that, in most instances, failure to comply with
the warrant requirement can only be excused by exigent circumstances, see,
e.g., Warden v. Hayden, 387 U. S. 294 (1967) (hot pursuit); cf. Preston v.
United States, 376 U. S. 364, 367-368 (1964). But we deal here with an
entire rubric of police conduct -- necessarily swift action predicated upon the
on-the-spot observations of the officer on the beat -- which historically has
not been, and, as a practical matter, could not be, subjected to the warrant
procedure. Instead, the conduct involved in this case must be tested by the
Fourth Amendment's general proscription against unreasonable searches
and seizures. [Footnote 17]
Nonetheless, the notions which underlie both the warrant procedure and the
requirement of probable cause remain fully relevant in this context. In order to
assess the reasonableness of Officer McFadden's conduct as a general
proposition, it is necessary "first to focus upon
[21]
the governmental interest which allegedly justifies official intrusion upon the
constitutionally protected interests of the private citizen," for there is "no
ready test for determining reasonableness other than by balancing the need
to search [or seize] against the invasion which the search [or seizure]
entails." Camara v. Municipal Court, 387 U. S. 523, 534-535, 536-537 (1967).
And, in justifying the particular intrusion, the police officer must be able to
point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion. [Footnote 18]
The scheme of the Fourth Amendment becomes meaningful only when it is
assured that, at some point, the conduct of those charged with enforcing the
laws can be subjected to the more detached, neutral scrutiny of a judge who
must evaluate the reasonableness of a particular search or seizure in light of
the particular circumstances. [Footnote 19] And, in making that assessment,
it is imperative that the facts be judged against an objective standard: would
the facts
[22]
available to the officer at the moment of the seizure or the search "warrant a
man of reasonable caution in the belief" that the action taken was
appropriate? Cf. Carroll v. United States, 267 U. S. 132 (1925); Beck v.
Ohio, 379 U. S. 89, 96-97 (1964). [Footnote 20] Anything less would invite
intrusions upon constitutionally guaranteed rights based on nothing more
substantial than inarticulate hunches, a result this Court has consistently
refused to sanction. See, e.g., Beck v. Ohio, supra; Rios v. United
States, 364 U. S. 253 (1960); Henry v. United States, 361 U. S. 98 (1959).
And simple "'good faith on the part of the arresting officer is not enough.' . . .
If subjective good faith alone were the test, the protections of the Fourth
Amendment would evaporate, and the people would be 'secure in their
persons, houses, papers, and effects,' only in the discretion of the
police." Beck v. Ohio, supra, at 97.
Applying these principles to this case, we consider first the nature and extent
of the governmental interests involved. One general interest is, of course,
that of effective crime prevention and detection; it is this interest which
underlies the recognition that a police officer may, in appropriate
circumstances and in an appropriate manner, approach a person for
purposes of investigating possibly criminal behavior even though there is no
probable cause to make an arrest. It was this legitimate investigative function
Officer McFadden was discharging when he decided to approach petitioner
and his companions. He had observed Terry, Chilton, and Katz go through a
series of acts, each of them perhaps innocent in itself, but which, taken
together, warranted further investigation. There is nothing unusual in two men
standing together on a street corner, perhaps waiting for someone. Nor is
there anything suspicious about people
[23]
in such circumstances strolling up and down the street, singly or in pairs.
Store windows, moreover, are made to be looked in. But the story is quite
different where, as here, two men hover about a street corner for an
extended period of time, at the end of which it becomes apparent that they
are not waiting for anyone or anything; where these men pace alternately
along an identical route, pausing to stare in the same store window roughly
24 times; where each completion of this route is followed immediately by a
conference between the two men on the corner; where they are joined in one
of these conferences by a third man who leaves swiftly, and where the two
men finally follow the third and rejoin him a couple of blocks away. It would
have been poor police work indeed for an officer of 30 years' experience in
the detection of thievery from stores in this same neighborhood to have failed
to investigate this behavior further.
The crux of this case, however, is not the propriety of Officer McFadden's
taking steps to investigate petitioner's suspicious behavior, but, rather,
whether there was justification for McFadden's invasion of Terry's personal
security by searching him for weapons in the course of that investigation. We
are now concerned with more than the governmental interest in investigating
crime; in addition, there is the more immediate interest of the police officer in
taking steps to assure himself that the person with whom he is dealing is not
armed with a weapon that could unexpectedly and fatally be used against
him. Certainly it would be unreasonable to require that police officers take
unnecessary risks in the performance of their duties. American criminals
have a long tradition of armed violence, and every year in this country many
law enforcement officers are killed in the line of duty, and thousands more
are wounded.
[24]
Virtually all of these deaths and a substantial portion of the injuries are
inflicted with guns and knives. [Footnote 21]
In view of these facts, we cannot blind ourselves to the need for law
enforcement officers to protect themselves and other prospective victims of
violence in situations where they may lack probable cause for an arrest.
When an officer is justified in believing that the individual whose suspicious
behavior he is investigating at close range is armed and presently dangerous
to the officer or to others, it would appear to be clearly unreasonable to deny
the officer the power to take necessary measures to determine whether the
person is, in fact, carrying a weapon and to neutralize the threat of physical
harm.
We must still consider, however, the nature and quality of the intrusion on
individual rights which must be accepted if police officers are to be conceded
the right to search for weapons in situations where probable cause to arrest
for crime is lacking. Even a limited search of the outer clothing for weapons
constitutes a severe,
[25]
though brief, intrusion upon cherished personal security, and it must surely
be an annoying, frightening, and perhaps humiliating experience. Petitioner
contends that such an intrusion is permissible only incident to a lawful arrest,
either for a crime involving the possession of weapons or for a crime the
commission of which led the officer to investigate in the first place. However,
this argument must be closely examined.
Petitioner does not argue that a police officer should refrain from making any
investigation of suspicious circumstances until such time as he has probable
cause to make an arrest; nor does he deny that police officers, in properly
discharging their investigative function, may find themselves confronting
persons who might well be armed and dangerous. Moreover, he does not say
that an officer is always unjustified in searching a suspect to discover
weapons. Rather, he says it is unreasonable for the policeman to take that
step until such time as the situation evolves to a point where there is
probable cause to make an arrest. When that point has been reached,
petitioner would concede the officer's right to conduct a search of the suspect
for weapons, fruits or instrumentalities of the crime, or "mere" evidence,
incident to the arrest.
There are two weaknesses in this line of reasoning, however. First, it fails to
take account of traditional limitations upon the scope of searches, and thus
recognizes no distinction in purpose, character, and extent between a search
incident to an arrest and a limited search for weapons. The former, although
justified in part by the acknowledged necessity to protect the arresting officer
from assault with a concealed weapon, Preston v. United States, 376 U. S.
364, 367 (1964), is also justified on other grounds, ibid., and can therefore
involve a relatively extensive exploration of the person. A search for weapons
in the absence of probable cause to
[26]
43
arrest, however, must, like any other search, be strictly circumscribed by the
exigencies which justify its initiation. Warden v. Hayden, 387 U. S. 294, 310
(1967) (MR. JUSTICE FORTAS, concurring). Thus, it must be limited to that
which is necessary for the discovery of weapons which might be used to
harm the officer or others nearby, and may realistically be characterized as
something less than a "full" search, even though it remains a serious
intrusion.
A second, and related, objection to petitioner's argument is that it assumes
that the law of arrest has already worked out the balance between the
particular interests involved here -- the neutralization of danger to the
policeman in the investigative circumstance and the sanctity of the individual.
But this is not so. An arrest is a wholly different kind of intrusion upon
individual freedom from a limited search for weapons, and the interests each
is designed to serve are likewise quite different. An arrest is the initial stage
of a criminal prosecution. It is intended to vindicate society's interest in
having its laws obeyed, and it is inevitably accompanied by future
interference with the individual's freedom of movement, whether or not trial or
conviction ultimately follows. [Footnote 22] The protective search for
weapons, on the other hand, constitutes a brief, though far from
inconsiderable, intrusion upon the sanctity of the person. It does not follow
that, because an officer may lawfully arrest a person only when he is
apprised of facts sufficient to warrant a belief that the person has committed
or is committing a crime, the officer is equally unjustified, absent that kind of
evidence, in making any intrusions short of an arrest. Moreover, a perfectly
reasonable apprehension of danger may arise long before the officer is
possessed of adequate information to justify taking a person into custody for
[27]
the purpose of prosecuting him for a crime. Petitioner's reliance on cases
which have worked out standards of reasonableness with regard to
"seizures" constituting arrests and searches incident thereto is thus
misplaced. It assumes that the interests sought to be vindicated and the
invasions of personal security may be equated in the two cases, and thereby
ignores a vital aspect of the analysis of the reasonableness of particular
types of conduct under the Fourth Amendment. See Camara v. Municipal
Court, supra.
Our evaluation of the proper balance that has to be struck in this type of case
leads us to conclude that there must be a narrowly drawn authority to permit
a reasonable search for weapons for the protection of the police officer,
where he has reason to believe that he is dealing with an armed and
dangerous individual, regardless of whether he has probable cause to arrest
the individual for a crime. The officer need not be absolutely certain that the
individual is armed; the issue is whether a reasonably prudent man, in the
circumstances, would be warranted in the belief that his safety or that of
others was in danger. Cf. Beck v. Ohio, 379 U. S. 89, 91 (1964); Brinegar v.
United States, 338 U. S. 160, 174-176 (1949); Stacey v. Emery, 97 U. S. 642,
645 (1878). [Footnote 23] And in determining whether the officer acted
reasonably in such circumstances, due weight must be given not to his
inchoate and unparticularized suspicion or "hunch," but to the specific
reasonable inferences which he is entitled to draw from the facts in light of his
experience. Cf. Brinegar v. United States supra.
IV
We must now examine the conduct of Officer McFadden in this case to
determine whether his search and seizure of petitioner were reasonable, both
at their inception
[28]
and as conducted. He had observed Terry, together with Chilton and another
man, acting in a manner he took to be preface to a "stick-up." We think, on
the facts and circumstances Officer McFadden detailed before the trial judge,
a reasonably prudent man would have been warranted in believing petitioner
was armed, and thus presented a threat to the officer's safety while he was
investigating his suspicious behavior. The actions of Terry and Chilton were
consistent with McFadden's hypothesis that these men were contemplating a
daylight robbery -- which, it is reasonable to assume, would be likely to
involve the use of weapons -- and nothing in their conduct from the time he
first noticed them until the time he confronted them and identified himself as a
police officer gave him sufficient reason to negate that hypothesis. Although
the trio had departed the original scene, there was nothing to indicate
abandonment of an intent to commit a robbery at some point. Thus, when
Officer McFadden approached the three men gathered before the display
window at Zucker's store, he had observed enough to make it quite
reasonable to fear that they were armed, and nothing in their response to his
hailing them, identifying himself as a police officer, and asking their names
served to dispel that reasonable belief. We cannot say his decision at that
point to seize Terry and pat his clothing for weapons was the product of a
volatile or inventive imagination, or was undertaken simply as an act of
harassment; the record evidences the tempered act of a policeman who, in
the course of an investigation, had to make a quick decision as to how to
protect himself and others from possible danger, and took limited steps to do
so.
The manner in which the seizure and search were conducted is, of course, as
vital a part of the inquiry as whether they were warranted at all. The Fourth
Amendment proceeds as much by limitations upon the
[29]
scope of governmental action as by imposing preconditions upon its
initiation. Compare Katz v. United States, 389 U. S. 347, 354-356 (1967). The
entire deterrent purpose of the rule excluding evidence seized in violation of
the Fourth Amendment rests on the assumption that "limitations upon the fruit
to be gathered tend to limit the quest itself." United States v. Poller, 43 F.2d
911, 914 (C.A.2d Cir.1930); see, e.g., Linkletter v. Walker, 381 U. S. 618,
629-635 (1965); Mapp v. Ohio, 367 U. S. 643(1961); Elkins v. United
States, 364 U. S. 206, 216-221 (1960). Thus, evidence may not be
introduced if it was discovered by means of a seizure and search which were
not reasonably related in scope to the justification for their initiation. Warden
v. Hayden, 387 U. S. 294, 310 (1967) (MR. JUSTICE FORTAS, concurring).
We need not develop at length in this case, however, the limitations which
the Fourth Amendment places upon a protective seizure and search for
weapons. These limitations will have to be developed in the concrete factual
circumstances of individual cases. See Sibron v. New York, post, p. 40,
decided today. Suffice it to note that such a search, unlike a search without a
warrant incident to a lawful arrest, is not justified by any need to prevent the
disappearance or destruction of evidence of crime. See Preston v. United
States, 376 U. S. 364, 367 (1964). The sole justification of the search in the
present situation is the protection of the police officer and others nearby, and
it must therefore be confined in scope to an intrusion reasonably designed to
discover guns, knives, clubs, or other hidden instruments for the assault of
the police officer.
The scope of the search in this case presents no serious problem in light of
these standards. Officer McFadden patted down the outer clothing of
petitioner and his two companions. He did not place his hands in their
pockets or under the outer surface of their garments until he had
[30]
felt weapons, and then he merely reached for and removed the guns. He
never did invade Katz' person beyond the outer surfaces of his clothes, since
he discovered nothing in his pat-down which might have been a weapon.
Officer McFadden confined his search strictly to what was minimally
necessary to learn whether the men were armed and to disarm them once he
discovered the weapons. He did not conduct a general exploratory search for
whatever evidence of criminal activity he might find.
V the necessity of the situation, and not from any broader right to disarm, to
We conclude that the revolver seized from Terry was properly admitted in
evidence against him. At the time he seized petitioner and searched him for
weapons, Officer McFadden had reasonable grounds to believe that
petitioner was armed and dangerous, and it was necessary for the protection
of himself and others to take swift measures to discover the true facts and
neutralize the threat of harm if it materialized. The policeman carefully
restricted his search to what was appropriate to the discovery of the particular
items which he sought. Each case of this sort will, of course, have to be
decided on its own facts. 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,
44
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.
[31]
Such a search is a reasonable search under the Fourth Amendment, and any
weapons seized may properly be introduced in evidence against the person
from whom they were taken.
Affirmed.
MR. JUSTICE BLACK concurs in the judgment and the opinion except where
the opinion quotes from and relies upon this Court's opinion in Katz v. United
States and the concurring opinion in Warden v. Hayden.
MR. JUSTICE HARLAN, concurring.
While I unreservedly agree with the Court's ultimate holding in this case, I am
constrained to fill in a few gaps, as I see them, in its opinion. I do this
because what is said by this Court today will serve as initial guidelines for law
enforcement authorities and courts throughout the land as this important new
field of law develops.
A police officer's right to make an on-the-street "stop" and an accompanying
"frisk" for weapons is, of course, bounded by the protections afforded by the
Fourth and Fourteenth Amendments. The Court holds, and I agree, that,
while the right does not depend upon possession by the officer of a valid
warrant, nor upon the existence of probable cause, such activities must be
reasonable under the circumstances as the officer credibly relates them in
court. Since the question in this and most cases is whether evidence
produced by a frisk is admissible, the problem is to determine what makes a
frisk reasonable.
If the State of Ohio were to provide that police officers could, on articulable
suspicion less than probable cause, forcibly frisk and disarm persons thought
to be carrying concealed weapons, I would have little doubt that action taken
pursuant to such authority could be constitutionally reasonable. Concealed
weapons create an immediate
[32]
and severe danger to the public, and though that danger might not warrant
routine general weapons checks, it could well warrant action on less than a
"probability." I mention this line of analysis because I think it vital to point out
that it cannot be applied in this case. On the record before us, Ohio has not
clothed its policemen with routine authority to frisk and disarm on suspicion;
in the absence of state authority, policemen have no more right to "pat down"
the outer clothing of passers-by, or of persons to whom they address casual
questions, than does any other citizen. Consequently, the Ohio courts did not
rest the constitutionality of this frisk upon any general authority in Officer
McFadden to take reasonable steps to protect the citizenry, including himself,
from dangerous weapons.
The state courts held, instead, that, when an officer is lawfully confronting a
possibly hostile person in the line of duty, he has a right, springing only from
frisk for his own protection. This holding, with which I agree and with which I
think the Court agrees, offers the only satisfactory basis I can think of for
affirming this conviction. The holding has, however, two logical corollaries
that I do not think the Court has fully expressed.
In the first place, if the frisk is justified in order to protect the officer during an
encounter with a citizen, the officer must first have constitutional grounds to
insist on an encounter, to make a forcible stop. Any person, including a
policeman, is at liberty to avoid a person he considers dangerous. If and
when a policeman has a right instead to disarm such a person for his own
protection, he must first have a right not to avoid him, but to be in his
presence. That right must be more than the liberty (again, possessed by
every citizen) to address questions to other persons, for ordinarily the person
[33]
addressed has an equal right to ignore his interrogator and walk away; he
certainly need not submit to a frisk for the questioner's protection. I would
make it perfectly clear that the right to frisk in this case depends upon the
reasonableness of a forcible stop to investigate a suspected crime.
Where such a stop is reasonable, however, the right to frisk must be
immediate and automatic if the reason for the stop is, as here, an articulable
suspicion of a crime of violence. Just as a full search incident to a lawful
arrest requires no additional justification, a limited frisk incident to a lawful
stop must often be rapid and routine. There is no reason why an officer,
rightfully but forcibly confronting a person suspected of a serious crime,
should have to ask one question and take the risk that the answer might be a
bullet.
The facts of this case are illustrative of a proper stop and an incident frisk.
Officer McFadden had no probable cause to arrest Terry for anything, but he
had observed circumstances that would reasonably lead an experienced,
prudent policeman to suspect that Terry was about to engage in burglary or
robbery. His justifiable suspicion afforded a proper constitutional basis for
accosting Terry, restraining his liberty of movement briefly, and addressing
questions to him, and Officer McFadden did so. When he did, he had no
reason whatever to suppose that Terry might be armed, apart from the fact
that he suspected him of planning a violent crime. McFadden asked Terry his
name, to which Terry "mumbled something." Whereupon McFadden, without
asking Terry to speak louder and without giving him any chance to explain his
presence or his actions, forcibly frisked him.
I would affirm this conviction for what I believe to be the same reasons the
Court relies on. I would, however, make explicit what I think is implicit in
affirmance on
[34]
the present facts. Officer McFadden's right to interrupt Terry's freedom of
movement and invade his privacy arose only because circumstances
warranted forcing an encounter with Terry in an effort to prevent or
investigate a crime. Once that forced encounter was justified, however, the
officer's right to take suitable measures for his own safety followed
automatically.
Upon the foregoing premises, I join the opinion of the Court.
MR. JUSTICE WHITE, concurring.
I join the opinion of the Court, reserving judgment, however, on some of the
Court's general remarks about the scope and purpose of the exclusionary
rule which the Court has fashioned in the process of enforcing the Fourth
Amendment.
Also, although the Court puts the matter aside in the context of this case, I
think an additional word is in order concerning the matter of interrogation
during an investigative stop. There is nothing in the Constitution which
prevents a policeman from addressing questions to anyone on the streets.
Absent special circumstances, the person approached may not be detained
or frisked, but may refuse to cooperate and go on his way. However, given
the proper circumstances, such as those in this case, it seems to me the
person may be briefly detained against his will while pertinent questions are
directed to him. Of course, the person stopped is not obliged to answer,
answers may not be compelled, and refusal to answer furnishes no basis for
an arrest, although it may alert the officer to the need for continued
observation. In my view, it is temporary detention, warranted by the
circumstances, which chiefly justifies the protective frisk for weapons.
Perhaps the frisk itself, where proper, will have beneficial results whether
questions are asked or not. If weapons are found, an arrest will follow.
[35]
If none is found, the frisk may nevertheless serve preventive ends because of
its unmistakable message that suspicion has been aroused. But if the
investigative stop is sustainable at all, constitutional rights are not necessarily
violated if pertinent questions are asked and the person is restrained briefly in
the process.
MR. JUSTICE DOUGLAS, dissenting.
45
I agree that petitioner was "seized" within the meaning of the Fourth
Amendment. I also agree that frisking petitioner and his companions for guns
was a "search." But it is a mystery how that "search" and that "seizure" can
be constitutional by Fourth Amendment standards unless there was
"probable cause" [Footnote 1] to believe that (1) a crime had been committed
or (2) a crime was in the process of being committed or (3) a crime was about
to be committed.
The opinion of the Court disclaims the existence of "probable cause." If
loitering were in issue and that
[36]
was the offense charged, there would be "probable cause" shown. But the
crime here is carrying concealed weapons; [Footnote 2] and there is no basis
for concluding that the officer had "probable cause" for believing that that
crime was being committed. Had a warrant been sought, a magistrate would,
therefore, have been unauthorized to issue one, for he can act only if there is
a showing of "probable cause." We hold today that the police have greater
authority to make a "seizure" and conduct a "search" than a judge has to
authorize such action. We have said precisely the opposite over and over
again. [Footnote 3]
[37]
In other words, police officers up to today have been permitted to effect
arrests or searches without warrants only when the facts within their personal
knowledge would satisfy the constitutional standard of probable cause. At the
time of their "seizure" without a warrant, they must possess facts concerning
the person arrested that would have satisfied a magistrate that "probable
cause" was indeed present. The term "probable cause" rings a bell of
certainty that is not sounded by phrases such as "reasonable suspicion."
Moreover, the meaning of "probable cause" is deeply imbedded in our
constitutional history. As we stated in Henry v. United States, 361 U. S. 98,
100-102:
"The requirement of probable cause has roots that are deep in our history.
The general warrant, in which the name of the person to be arrested was left
blank, and the writs of assistance, against which James Otis inveighed, both
perpetuated the oppressive practice of allowing the police to arrest and
search on suspicion. Police control took the place of judicial control, since no
showing of 'probable cause' before a magistrate was required."
"* * * *"
"That philosophy [rebelling against these practices] later was reflected in the
Fourth Amendment. And as the early American decisions both before and
immediately after its adoption show, common rumor or report, suspicion, or
even 'strong reason to suspect' was not adequate to support a warrant
[38]
for arrest. And that principle has survived to this day. . . ."
". . . It is important, we think, that this requirement [of probable cause] be
strictly enforced, for the standard set by the Constitution protects both the
officer and the citizen. If the officer acts with probable cause, he is protected
even though it turns out that the citizen is innocent. . . . And while a search
without a warrant is, within limits, permissible if incident to a lawful arrest, if
an arrest without a warrant is to support an incidental search, it must be
made with probable cause. . . . This immunity of officers cannot fairly be
enlarged without jeopardizing the privacy or security of the citizen."
The infringement on personal liberty of any "seizure" of a person can only be
"reasonable" under the Fourth Amendment if we require the police to
possess "probable cause" before they seize him. Only that line draws a
meaningful distinction between an officer's mere inkling and the presence of
facts within the officer's personal knowledge which would convince a
reasonable man that the person seized has committed, is committing, or is
about to commit a particular crime. "In dealing with probable cause, . . . as
the very name implies, we deal with probabilities. These are not technical;
they are the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act." Brinegar v. United
States, 338 U. S. 160, 175.
To give the police greater power than a magistrate is to take a long step
down the totalitarian path. Perhaps such a step is desirable to cope with
modern forms of lawlessness. But if it is taken, it should be the deliberate
choice of the people through a constitutional amendment.

[39]

Until the Fourth Amendment, which is closely allied with the Fifth, [Footnote
4] is rewritten, the person and the effects of the individual are beyond the
reach of all government agencies until there are reasonable grounds to
believe (probable cause) that a criminal venture has been launched or is
about to be launched.

There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give
the police the upper hand. That hydraulic pressure has probably never been
greater than it is today.

Yet if the individual is no longer to be sovereign, if the police can pick him up
whenever they do not like the cut of his jib, if they can "seize" and "search"
him in their discretion, we enter a new regime. The decision to enter it should
be made only after a full debate by the people of this country.

46