Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS
MEDIA SERVICES, INC., petitioners,
vs.
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF,
PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL
SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL., respondents.

Lorenzo M. Tañada, Wigberto E. Tañada, Martiniano Vivo, Augusto Sanchez, Joker P.

Arroyo, Jejomar Binay and Rene Saguisag for petitioners.

The Solicitor General for respondents.

ESCOLIN, J.:

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

Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be
issued for the return of the seized articles, and that respondents, "particularly the Chief
Legal Officer, Presidential Security Command, the Judge Advocate General, AFP, the
City Fiscal of Quezon City, their representatives, assistants, subalterns, subordinates,
substitute or successors" be enjoined from using the articles thus seized as evidence
against petitioner Jose Burgos, Jr. and the other accused in Criminal Case No. Q-
022782 of the Regional Trial Court of Quezon City, entitled People v. Jose Burgos,
Jr. et al. 1
In our Resolution dated June 21, 1983, respondents were required to answer the
petition. The plea for preliminary mandatory and prohibitory injunction was set for
hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor General
in behalf of respondents.

At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer
for a writ of preliminary mandatory injunction, manifested that respondents "will not use
the aforementioned articles as evidence in the aforementioned case until final resolution
of the legality of the seizure of the aforementioned articles. ..." 2 With this manifestation,
the prayer for preliminary prohibitory injunction was rendered moot and academic.

Respondents would have this Court dismiss the petition on the ground that petitioners
had come to this Court without having previously sought the quashal of the search
warrants before respondent judge. Indeed, petitioners, before impugning the validity of
the warrants before this Court, should have filed a motion to quash said warrants in the
court that issued them. 3 But this procedural flaw notwithstanding, we take cognizance
of this petition in view of the seriousness and urgency of the constitutional issues raised
not to mention the public interest generated by the search of the "We Forum" offices,
which was televised in Channel 7 and widely publicized in all metropolitan dailies. The
existence of this special circumstance justifies this Court to exercise its inherent power
to suspend its rules. In the words of the revered Mr. Justice Abad Santos in the case
of C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the power of the court [Supreme
Court] to suspend its rules or to except a particular case from its operation, whenever
the purposes of justice require it...".

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

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

Laches is failure or negligence for an unreasonable and unexplained length of time to

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

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

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

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

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

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

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

After waiting in vain for five [5] months, petitioners finally decided to come
to Court. [pp. 123-124, Rollo]

Although the reason given by petitioners may not be flattering to our judicial system, We
find no ground to punish or chastise them for an error in judgment. On the contrary, the
extrajudicial efforts exerted by petitioners quite evidently negate the presumption that
they had abandoned their right to the possession of the seized property, thereby
refuting the charge of laches against them.

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

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

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

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

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

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

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

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

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

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

Sec. 2. Personal Property to be seized. — A search warrant may be

issued for the search and seizure of the following personal property:

[a] Property subject of the offense;

[b] Property stolen or embezzled and other proceeds or fruits

of the offense; and
 [c] Property used or intended to be used as the means of
committing an offense.

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

4. Neither is there merit in petitioners' assertion that real properties were seized under
the disputed warrants. Under Article 415[5] of the Civil Code of the Philippines,
"machinery, receptables, instruments or implements intended by the owner of the
tenement for an industry or works which may be carried on in a building or on a piece of
land and which tend directly to meet the needs of the said industry or works" are
considered immovable property. In Davao Sawmill Co. v. Castillo9 where this legal
provision was invoked, this Court ruled that machinery which is movable by nature
becomes immobilized when placed by the owner of the tenement, property or plant, but
not so when placed by a tenant, usufructuary, or any other person having only a
temporary right, unless such person acted as the agent of the owner.

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

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

It is contended by petitioners, however, that the abovementioned documents could not

have provided sufficient basis for the finding of a probable cause upon which a warrant
may validly issue in accordance with Section 3, Article IV of the 1973 Constitution which
provides:

SEC. 3. ... and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined by the judge, or such other
responsible officer as may be authorized by law, after examination under
oath or affirmation of the complainant and the witnesses he may produce,
 and particularly describing the place to be searched and the persons or
things to be seized.

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

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

In mandating that "no warrant shall issue except upon probable cause to be determined
by the judge, ... after examination under oath or affirmation of the complainant and the
witnesses he may produce; 14 the Constitution requires no less than personal
knowledge by the complainant or his witnesses of the facts upon which the issuance of
a search warrant may be justified. In Alvarez v. Court of First Instance, 15 this Court
ruled that "the oath required must refer to the truth of the facts within the personal
knowledge of the petitioner or his witnesses, because the purpose thereof is to convince
the committing magistrate, not the individual making the affidavit and seeking the
issuance of the warrant, of the existence of probable cause." As couched, the quoted
averment in said joint affidavit filed before respondent judge hardly meets the test of
sufficiency established by this Court in Alvarez case.

Another factor which makes the search warrants under consideration constitutionally
objectionable is that they are in the nature of general warrants. The search warrants
describe the articles sought to be seized in this wise:
 1] All printing equipment, paraphernalia, paper, ink, photo (equipment,
typewriters, cabinets, tables, communications/recording equipment, tape
recorders, dictaphone and the like used and/or connected in the printing of
the "WE FORUM" newspaper and any and all documents communication,
letters and facsimile of prints related to the "WE FORUM" newspaper.

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

publication to promote the objectives and piurposes of the subversive
organization 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 524;

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

665; and,

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

with marking "Bagong Silang."

In Stanford v. State of Texas 16 the search warrant which authorized the search for
"books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and
other written instruments concerning the Communist 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 connectionwith the violation of SDC 13-3703 or otherwise" have been
held too general, and that portion of a search warrant which authorized the seizure of
any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut
General Statutes [the statute dealing with the crime of conspiracy]" was held to be a
general warrant, and therefore invalid. 17 The description of the articles sought to be
seized under the search warrants in question cannot be characterized differently.

In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in
English history: the era of disaccord between the Tudor Government and the English
Press, when "Officers of the Crown were given roving commissions to search where
they pleased in order to suppress and destroy the literature of dissent both Catholic and
Puritan Reference herein to such historical episode would not be relevant for it is not the
policy of our government to suppress any newspaper or publication that speaks with
"the voice of non-conformity" but poses no clear and imminent danger to state security.
As heretofore stated, the premises searched were the business and printing offices of
the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the
search and seizure, these premises were padlocked and sealed, with the further result
that the printing and publication of said newspapers were discontinued.

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

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

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

Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no
less than President Marcos himself denied the request of the military authorities to
sequester the property seized from petitioners on December 7, 1982. Thus:

The President denied a request flied by government prosecutors for

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

On the basis of court orders, government agents went to the We Forum

offices in Quezon City and took a detailed inventory of the equipment and
all materials in the premises.

Cendaña said that because of the denial the newspaper and its equipment
remain at the disposal of the owners, subject to the discretion of the
court. 19

That the property seized on December 7, 1982 had not been sequestered is further
confirmed by the reply of then Foreign Minister Carlos P. Romulo to the letter dated
February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos,
expressing alarm over the "WE FORUM " case. 20 In this reply dated February 11, 1983,
Minister Romulo stated:

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

of our authorities to close the paper's printing facilities and confiscate the
equipment and materials it uses. 21
IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by
respondent judge on December 7, 1982 are hereby declared null and void and are
accordingly set aside. The prayer for a writ of mandatory injunction for the return of the
seized articles is hereby granted and all articles seized thereunder are hereby ordered
released to petitioners. No costs.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana,

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

Aquino, J., took no part.

Separate Opinions

ABAD SANTOS, J., concurring

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

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

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

The Constitutional requirement which is expressed in Section 3, Article IV, stresses two
points, namely: "(1) that no warrant shall issue but upon probable cause, to be
determined by the judge in the manner set forth in said provision; and (2) that the
warrant shall particularly describe the things to be seized." (Stonehill vs. Diokno, 126
Phil. 738, 747: 20 SCRA 383 [1967].)

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

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

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

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

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

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

In point of fact, there was nothing subversive published in the WE FORUM just as there
is nothing subversive which has been published in MALAYA which has replaced the
former and has the same content but against which no action has been taken.

Conformably with existing jurisprudence everything seized pursuant to the warrants

should be returned to the owners and all of the items are subject to the exclusionary
rule of evidence.

Teehankee, J., concur.

Separate Opinions

ABAD SANTOS, J., concurring

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

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

The action against "WE FORUM" was a naked suppression of press freedom for the
search warrants were issued in gross violation of the Constitution.
The Constitutional requirement which is expressed in Section 3, Article IV, stresses two
points, namely: "(1) that no warrant shall issue but upon probable cause, to be
determined by the judge in the manner set forth in said provision; and (2) that the
warrant shall particularly describe the things to be seized." (Stonehill vs. Diokno, 126
Phil. 738, 747: 20 SCRA 383 [1967].)

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

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

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

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

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

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

In point of fact, there was nothing subversive published in the WE FORUM just as there
is nothing subversive which has been published in MALAYA which has replaced the
former and has the same content but against which no action has been taken.

Conformably with existing jurisprudence everything seized pursuant to the warrants

should be returned to the owners and all of the items are subject to the exclusionary
rule of evidence.

Teehankee, J., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 82585 November 14, 1988

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and

GODOFREDO L. MANZANAS, petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of
Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department
of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT
CORAZON C. AQUINO, respondents.

G.R. No. 82827 November 14, 1988

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

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

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

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

Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in

G.R. Nos. 82827 and 83979.

RESOLUTION

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

Subsequent events have rendered the first issue moot and academic. On March 30,
1988, the Secretary of Justice denied petitioners' motion for reconsideration and upheld
the resolution of the Undersecretary of Justice sustaining the City Fiscal's finding of
a prima facie case against petitioners. A second motion for reconsideration filed by
petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On appeal,
the President, through the Executive Secretary, affirmed the resolution of the Secretary
of Justice on May 2, 1988. The motion for reconsideration was denied by the Executive
Secretary on May 16, 1988. With these developments, petitioners' contention that they
have been denied the administrative remedies available under the law has lost factual
support.

It may also be added that with respect to petitioner Beltran, the allegation of denial of
due process of law in the preliminary investigation is negated by the fact that instead of
submitting his counter- affidavits, he filed a "Motion to Declare Proceedings Closed," in
effect waiving his right to refute the complaint by filing counter-affidavits. Due process of
law does not require that the respondent in a criminal case actually file his counter-
affidavits before the preliminary investigation is deemed completed. All that is required
is that the respondent be given the opportunity to submit counter-affidavits if he is so
minded.

The second issue, raised by petitioner Beltran, calls for an interpretation of the
constitutional provision on the issuance of warrants of arrest. The pertinent provision
reads:

Art. III, Sec. 2. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination nder oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things
to be seized.

The addition of the word "personally" after the word "determined" and the deletion of the
grant of authority by the 1973 Constitution to issue warrants to "other responsible
officers as may be authorized by law," has apparently convinced petitioner Beltran that
the Constitution now requires the judge to personally examine the complainant and his
witnesses in his determination of probable cause for the issuance of warrants of arrest.
This is not an accurate interpretation.

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

Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of
concentrating on hearing and deciding cases filed before their courts.

On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting
down guidelines for the issuance of warrants of arrest. The procedure therein provided
is reiterated and clarified in this resolution.

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

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

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

But this privilege of immunity from suit, pertains to the President by virtue of the office
and may be invoked only by the holder of the office; not by any other person in the
President's behalf. Thus, an accused in a criminal case in which the President is
complainant cannot raise the presidential privilege as a defense to prevent the case
from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President from waiving the
privilege. Thus, if so minded the President may shed the protection afforded by the
privilege and submit to the court's jurisdiction. The choice of whether to exercise the
privilege or to waive it is solely the President's prerogative. It is a decision that cannot
be assumed and imposed by any other person.

As regards the contention of petitioner Beltran that he could not be held liable for libel
because of the privileged character or the publication, the Court reiterates that it is not a
trier of facts and that such a defense is best left to the trial court to appreciate after
receiving the evidence of the parties.

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

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

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

jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the
petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain the status
quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated
in the Resolution dated April 26, 1988 is LIFTED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla,

Bidin, Sarmiento, Cortes, Griño-Aquino Medialdea and Regalado, JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues
mentioned in its opening statement. However, as to the more important issue on
whether or not the prosecution of the libel case would produce a "chilling effect" on
press freedom, I beg to reserve my vote. I believe this is the more important issue in
these petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court
should not hesitate to quash a criminal prosecution in the interest of more enlightened
and substantial justice where it is not alone the criminal liability of an accused in a
seemingly minor libel case which is involved but broader considerations of
governmental power versus a preferred freedom.

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

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

I believe that this Court should have acted on this issue now instead of leaving the
matter to fiscals and defense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where

the harassment goes beyond the usual difficulties encountered by any accused and
results in an unwillingness of media to freely criticize government or to question
government handling of sensitive issues and public affairs, this Court and not a lower
tribunal should draw the demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated
that "(c)omplete liberty to comment on the conduct of public men is a scalpel in the case
of free speech. The sharp incision of its probe relieves the abscesses of officialdom.
Men in public life may suffer under a hostile and unjust accusation; the wound can be
assuaged with the balm of a clear conscience." The Court pointed out that while
defamation is not authorized, criticism is to be expected and should be borne for the
common good.

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

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority

of such exalted position that the citizen must speak of him only with bated
breath. "In the eye of our Constitution and laws, every man is a sovereign,
a ruler and a freeman, and has equal rights with every other man." (at p.
900)
In fact, the Court observed that high official position, instead of affording immunity from
slanderous and libelous charges, would actually invite attacks by those who desire to
create sensation. It would seem that what would ordinarily be slander if directed at the
typical person should be examined from various perspectives if directed at a high
government official. Again, the Supreme Court should draw this fine line instead of
leaving it to lower tribunals.

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448
[1977]) that a prosecution for libel lacks justification if the offending words find sanctuary
within the shelter of the free press guaranty. In other words, a prosecution for libel
should not be allowed to continue, where after discounting the possibility that the words
may not be really that libelous, there is likely to be a chilling effect, a patently inhibiting
factor on the willingness of newspapermen, especially editors and publishers to
courageously perform their critical role in society. If, instead of merely reading more
carefully what a columnist writes in his daily column, the editors tell their people to lay
off certain issues or certain officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our
resolution, I must call attention to our decisions which caution that "no inroads on press
freedom should be allowed in the guise of punitive action visited on what otherwise
should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See
also the citations in Elizalde v. Gutierrez, supra).

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor

policy to give any more weight to the epithet "libel" than we have to other
"mere labels" of state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L
ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of
unlawful acts, breach of the peace, obscenity, solicitation of legal
business, and the other various other formulae for the repression of
expression that have been challenged in this Court, libel can claim no
talismanic immunity from constitutional limitations. It must be measured by
standards that satisfy the First Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a
political duty; and that this should be a fundamental principle of the
American government. They recognized the risk to which all human
institutions are subject. But they knew that order cannot be secured
merely through fear of punishment for its infraction; that it is hazardous to
discourage thought, hope and imagination; that fear breeds repression;
that repression breeds hate; that hate menaces stable government; that
the path of safety lies in the opportunity to discuss freely supposed
grievances and proposed remedies; and that the fitting remedy for evil
 counsel is good ones. Believing in the power of reason as applied through
public discussion, they eschewed silence coerced by law—the argument
of force in its worst form. ...

Thus we consider this case against the background of a profound national

commitment to the principle that debate on public issues should be
uninhibited, robust, and wide open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and
public officials. ... (at pp. 700-701)

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

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

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take
exception. I know that most of our fiscals and judges are courageous individuals who
would not allow any considerations of possible consequences to their careers to stand
in the way of public duty. But why should we subject them to this problem? And why
should we allow the possibility of the trial court treating and deciding the case as one for
ordinary libel without bothering to fully explore the more important areas of concern, the
extremely difficult issues involving government power and freedom of expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I limit
myself to reiterating the dissenting words of Mr. Justice Jackson in the American case
of Beaurnhais v. Illinois (343 U. S. 250) when he said:
 If one can claim to announce the judgment of legal history on any subject,
it is that criminal libel laws are consistent with the concept of ordered
liberty only when applied with safeguards evolved to prevent their invasion
of freedom of expression.

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

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues
mentioned in its opening statement. However, as to the more important issue on
whether or not the prosecution of the libel case would produce a "chilling effect" on
press freedom, I beg to reserve my vote. I believe this is the more important issue in
these petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court
should not hesitate to quash a criminal prosecution in the interest of more enlightened
and substantial justice where it is not alone the criminal liability of an accused in a
seemingly minor libel case which is involved but broader considerations of
governmental power versus a preferred freedom.

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

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

I believe that this Court should have acted on this issue now instead of leaving the
matter to fiscals and defense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where

the harassment goes beyond the usual difficulties encountered by any accused and
results in an unwillingness of media to freely criticize government or to question
government handling of sensitive issues and public affairs, this Court and not a lower
tribunal should draw the demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated
that "(c)omplete liberty to comment on the conduct of public men is a scalpel in the case
of free speech. The sharp incision of its probe relieves the abscesses of officialdom.
Men in public life may suffer under a hostile and unjust accusation; the wound can be
assuaged with the balm of a clear conscience." The Court pointed out that while
defamation is not authorized, criticism is to be expected and should be borne for the
common good.

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

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority

of such exalted position that the citizen must speak of him only with bated
breath. "In the eye of our Constitution and laws, every man is a sovereign,
a ruler and a freeman, and has equal rights with every other man." (at p.
900)

In fact, the Court observed that high official position, instead of affording immunity from
slanderous and libelous charges, would actually invite attacks by those who desire to
create sensation. It would seem that what would ordinarily be slander if directed at the
typical person should be examined from various perspectives if directed at a high
government official. Again, the Supreme Court should draw this fine line instead of
leaving it to lower tribunals.

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448
[1977]) that a prosecution for libel lacks justification if the offending words find sanctuary
within the shelter of the free press guaranty. In other words, a prosecution for libel
should not be allowed to continue, where after discounting the possibility that the words
may not be really that libelous, there is likely to be a chilling effect, a patently inhibiting
factor on the willingness of newspapermen, especially editors and publishers to
courageously perform their critical role in society. If, instead of merely reading more
carefully what a columnist writes in his daily column, the editors tell their people to lay
off certain issues or certain officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our
resolution, I must call attention to our decisions which caution that "no inroads on press
freedom should be allowed in the guise of punitive action visited on what otherwise
should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See
also the citations in Elizalde v. Gutierrez, supra).<äre||anº•1àw>

The United States Supreme Court is even more emphatic, to wit:

 In deciding the question now, we are compelled by neither precedent nor
policy to give any more weight to the epithet "libel" than we have to other
"mere labels" of state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L
ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of
unlawful acts, breach of the peace, obscenity, solicitation of legal
business, and the other various other formulae for the repression of
expression that have been challenged in this Court, libel can claim no
talismanic immunity from constitutional limitations. It must be measured by
standards that satisfy the First Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a
political duty; and that this should be a fundamental principle of the
American government. They recognized the risk to which all human
institutions are subject. But they knew that order cannot be secured
merely through fear of punishment for its infraction; that it is hazardous to
discourage thought, hope and imagination; that fear breeds repression;
that repression breeds hate; that hate menaces stable government; that
the path of safety lies in the opportunity to discuss freely supposed
grievances and proposed remedies; and that the fitting remedy for evil
counsel is good ones. Believing in the power of reason as applied through
public discussion, they eschewed silence coerced by law—the argument
of force in its worst form. ...

Thus we consider this case against the background of a profound national

commitment to the principle that debate on public issues should be
uninhibited, robust, and wide open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and
public officials. ... (at pp. 700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing
that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo
L. Manzanas knowingly participated in a wilful purveying of falsehood? Considering the
free speech aspects of these petitions, should not a differentiated approach to their
particular liabilities be taken instead of lumping up everybody with the offending
columnist? I realize that the law includes publishers and editors but perhaps the "chilling
effect" issue applies with singular effectivity to publishers and editors vis-a-vis
newspaper columnists. There is no question that, ordinarily, libel is not protected by the
free speech clause but we have to understand that some provocative words, which if
taken literally may appear to shame or disparage a public figure, may really be intended
to provoke debate on public issues when uttered or written by a media personality. Will
not a criminal prosecution in the type of case now before us dampen the vigor and limit
the variety of public debate? There are many other questions arising from this unusual
case which have not been considered.
I, of course, concur with the Court's opinion because it has decided to limit the issues to
narrowly drawn ones. I see no reason to disagree with the way the Court has resolved
them. The first issue on prematurity is moot. The second issue discusses a procedure
now embodied in the recently amended Rules of Court on how a Judge should proceed
before he issues a warrant of arrest. Anent the third issue, considerations of public
policy dictate that an incumbent President should not be sued. At the same time, the
President cannot stand by helplessly bereft of legal remedies if somebody vilifies or
maligns him or her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take
exception. I know that most of our fiscals and judges are courageous individuals who
would not allow any considerations of possible consequences to their careers to stand
in the way of public duty. But why should we subject them to this problem? And why
should we allow the possibility of the trial court treating and deciding the case as one for
ordinary libel without bothering to fully explore the more important areas of concern, the
extremely difficult issues involving government power and freedom of expression.

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

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

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

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-60349-62 December 29, 1983

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

ERNESTO M. BROCOY, RAFAEL V. FLORES, FELIXBERTO L. GUIRITAN,
MACARIO B. BALANSAG and ROSARIO F. DABALOS, all of Butuan City, and the
PEOPLE OF THE PHILIPPINES, petitioners,
vs.
HON. JUDGE NAPOLEON D. VILLANUEVA, in his capacity as City Judge of
Butuan, respondent.

The Solicitor General for respondent.

ESCOLIN, J.:

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

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

CRIMINAL

CAS TITLE  
E
NO.

1220 People Slight

vs, Jimmy Phy. Inj.
Tan

1221 People Violation

0 vs. Carlito of P.D.
Fortun 1306

1221 People -do-

1 vs. Jarail
Majini

1221 People Violation.

2 vs. of B.P. 22
Amelita
Dy

1221 People -do-

3 vs.
Angelito
Dy

1221 People Estafa

4 vs. Jesus
Aloyan

1221 People Mal.

5 vs, Bebot Mischief
Lauron
 1221 People Usurption
6 vs. of
Mariano authority
Trani

  Antonio authority
Monghit

1221 People Alarm &

7 vs. EIorde Scandal
Subingbin
g

  Fernando  
Sagay

1221 People Grave

8 vs. Perla oral
Trasga defamatio
n

1221 People Estafa

9 vs.
Renato
Dayan

1222 People Estafa

0 vs.
Edgardo
Dayan

1222 People Estafa

1 vs. Benito
Sy Ibañez

1222 People -do-

2 vs. Benito
Sy Ibañez

These informations, except the last four, docketed as Criminal Cases Nos. 12219
12220, 12221. and '2222, were certified to by the respective investigating Fiscals as
Follows: "that a preliminary examination has been conducted by me in this case, having
examined 'the complainant and his witnesses; that on the basis of the sworn
statements, and other evidence submitted before this Official there is reasonable
ground to believe that the crime charged has been commited and that herein accussed
is probably guilty thereof " The informations in Criminal Cases Nos. 12219 and 12220
bore the certification of 3rd Assistant Fiscal Felixberto Guiritan that I am filing this
information upon directive of the Minister of Justice, who upon review of this resolution
of the undersigned investigating fiscal has found prima facie case against herein
accused, 1 while the informations in Criminal Cases Nos. 12221 and 12222 were
certified to by 2nd Assistant Fiscal Ernesto M. Brocoy in this wise: "I am filing this
information upon directive of the City Fiscal pursuant to the provisions of P.D. No. 911,
who, upon review of the resolution of the investigating fiscal now on temporary detail
with the office of the Provincial Fiscal of Surigao del Sur, has found prima facie case
against the herein accused." 2

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

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

Hence, petitioners filed this petition for certiorari and mandamus to set aside the
aforesaid orders and to compel respondent to issue the warrants of arrest in Criminal
Cases Nos. 12209-12222.

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

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

On July 12, 1982, respondent judge received Our May 19, 1982 Resolution requiring
him to comment on the petition. However, interpreting the same as a denial of the
petition itself, respondent issued on the following day, July 13, and Omnibus Order
directing petitioners to submit immediately the supporting affidavits and other evidence
in Criminal Cases Nos. 12209-12222. Having failed to secure a reconsideration of said
Omnibus Order, petitioners finally submitted the required affidavits and documents on
July 15, 1982 in order to avoid further delay in the prosecution of these cases.

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

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

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

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

We sustain the position of respondent judge.

The primary requirement for the issuance of a warrant of arrest is the existence of
probable cause. Section 3, Article IV of the 1973 Constitution provides that-

... no search warrant or warrant of arrest shall issue except upon probable
cause to be determined by the judge, or such other responsible officer, as
may be recognized by law, after examination under oath or affirmance of
the complainant and the witnesses he may produce ....

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

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

submitted, the investigating dismiss the raise. If probable cause is
established by complainant's evidence, he shall notify the respondent by
issuing a subpoena .... (Sec. 1 [b], RA 5180, as amended by P.D. Nos. 77
and 911).
 The fiscal or state prosecutor shall certify under oath in the information to
be filed by him that he has examined the complainant and his witnesses;
that on the basis of the sworn Statements and other evidence submitted
before him there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof ... (Sec.
1[d], Id.).

There is thus no dispute that the judge may rely upon the fiscal's certification of the
existence of probable cause and, on the basis thereof, issue a warrant of arrest, But
does such certification bind the judge to come out with the warrant? We answer this
query in the negative. The issuance of a warrant is not a mere ministerial function; it
calls for the exercise of judicial discretion on the part of the issuing magistrate. This is
clear from the following provisions of Section 6, Rule 112 of the Rules of Court:

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

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

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

German to the issue at hand is the Rule on Summary Procedure in Special

Cases 10 applicable to the following, to wit:

I. B. Criminal Cases:

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

(2) Violations of the rental laws;

(3) Violations of municipal or city ordinances;

 (4) All other criminal cases where the penalty prescribed by law for the
offense charged does not exceed six (6) months imprisonment, or a fine of
One Thousand Pesos [1,000.00], or both irrespective of other imposable
penalties, accessory or otherwise, or of the civil liability arising therefrom;
Provided, however, that in offenses involving damage to property through
reckless negligence, this Rule shall govern where the imposable fine does
not exceed Ten Thousand Pesos [10,000.00].

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

Section 10 of the Summary Rule provides:

On the basis of the complaint or information and the affidavits

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

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

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

The obvious purpose of requiring the submission of affidavits of the complainant and of
his witnesses is to enable the court to determine whether to dismiss the case outright or
to require further proceedings.

One last point. It appears that after petitioners had submitted the required affidavits of
witnesses, the respondent judge ordered Criminal Cases Nos. 12417, 12418, 12419,
12420 and 12422 remanded to the City Fiscal for further preliminary investigation or
reinvestigation. We hold that respondent did not abuse his discretion in doing so. From
the informations and affidavits presented to him, he found the charges patently without
basis or merit. For respondent to issue the warrants of arrest and try the accused would
only expose the latter to unnecessary harrassment, anxiety and expense. And as
already pointed out, under the Rule on Summary Procedure in Special Cases, the
respondent judge has the power to order the outright dismissal of the charge if, from the
information and the affidavits attached thereto, he finds the same to be patently without
basis or merit.

WHEREFORE, the petition is hereby dismissed. No costs.

SO ORDERED.

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

Aquino, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. Nos. 212140-41               January 21, 2015

SENATOR JINGGOY EJERCITO ESTRADA, Petitioner,

vs.
OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, Office of the
Ombudsman, NATIONAL BUREAU OF INVESTIGATION and ATTY. LEVITO D.
BALIGOD, Respondents.

DECISION

CARPIO, J.:

It is a fundamental principle that the accused in a preliminary investigation has no right

to cross-examine the witnesses which the complainant may present. Section 3, Rule
112 of the Rules of Court expressly provides that the respondent shall only have the
right to submit a counter-affidavit, to examine all other evidence submitted by the
complainant and, where the fiscal sets a hearing to propound clarificatory questions to
the parties or their witnesses, to be afforded an opportunity to be present but without the
right to examine or crossexamine.

- Paderanga v. Drilon1

This case is a Petition for Certiorari2 with prayer for (1) the issuance of a temporary
restraining order and/or Writ of Preliminary Injunction enjoining respondents Office of
the Ombudsman (Ombudsman), Field Investigation Office (FIO) of the Ombudsman,
National Bureau of Investigation (NBI), and Atty. Levito D. Baligod (Atty. Baligod)
(collectively, respondents), from conducting further proceedings in OMB-CC-13-03013
and OMB-C-C-13-0397 until the present Petition has been resolved with finality; and (2)
this Court’s declaration that petitioner Senator Jinggoy Ejercito Estrada (Sen.
Estrada)was denied due process of law, and that the Order of the Ombudsman dated
27 March 2014 and the proceedings in OMB-C-C-13-03013 and OMB-C-C-13-0397
subsequent to and affected by the issuance of the challenged 27 March 2014 Order are
void.

OMB-C-C-13-0313,3 entitled National Bureau of Investigation and Atty. Levito D.

Baligod v. Jose "Jinggoy" P. Ejercito Estrada, et al.,refers to the complaint for Plunder
as defined under Republic Act (RA) No. 7080, while OMB-C-C-13-0397, 4 entitled Field
Investigation Office, Office of the Ombudsman v. Jose "Jinggoy" P. Ejercito-Estrada, et
al., refers to the complaint for Plunder as defined underRA No. 7080 and for violation of
Section 3(e) of RA No. 3019 (Anti-Graft and Corrupt Practices Act).

The Facts

On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the
complaint in OMB-C-C-13-0313, filed by the NBI and Atty. Baligod, which prayed,
among others, that criminal proceedings for Plunder as defined in RA No. 7080 be
conducted against Sen. Estrada. Sen. Estrada filed his counter-affidavit inOMB-C-C-13-
0313 on 9 January 2014.

On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the
complaint in OMB-C-C-13-0397, filed by the FIO of the Ombudsman, which prayed,
among others, that criminal proceedings for Plunder, as defined in RA No. 7080, and for
violation of Section 3(e) of RA No. 3019, be conducted against Sen. Estrada. Sen.
Estrada filed his counter affidavit in OMB-C-C-13-0397 on 16 January 2014.

Eighteen of Sen. Estrada’s co-respondents in the two complaints filed their counter-
affidavits between 9 December 2013 and 14 March 2014. 5

On 20 March 2014, Sen. Estrada filed his Request to be Furnished with Copies of
Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filings (Request) in OMB-C-C-13-0313. In his Request, Sen. Estrada asked for copies
of the following documents:

(a) Affidavit of [co-respondent] Ruby Tuason (Tuason);

(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);

(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);

(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);

(e) Consolidated Reply of complainant NBI, if one had been filed; and
 (f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other
respondents and/or additional witnesses for the Complainants. 6

Sen. Estrada’s request was made "[p]ursuant to the right of a respondent ‘to examine
the evidence submitted by the complainant which he may not have been furnished’
(Section 3[b], Rule 112 of the Rules of Court) and to ‘have access to the evidence on
record’ (Section 4[c], Rule II of the Rules of Procedure of the Office of the
Ombudsman)."7

On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-0313.

The pertinent portions of the assailed Order read:

This Office finds however finds [sic] that the foregoing provisions [pertaining to Section
3[b], Rule 112 of the Rules of Court and Section 4[c], Rule II of the Rules of Procedure
of the Office of the Ombudsman] do not entitle respondent [Sen. Estrada]to be furnished
all the filings of the respondents.

Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:

(a) The complaintshall state the address of the respondent and shall be
accompanied by the affidavits of the complainant and his witnesses, as well as
other supporting documents to establish probable cause …

x x x           x x x          x x x

(c) Within ten (10) days from receipt of the subpoena with the complaint and
supporting affidavits and documents, the respondent shall submit his counter
affidavit and that of his witnesses and other supporting documents relied upon for
his defense. The counter affidavits shall be subscribed and sworn to and certified
as provided in paragraph (a) of this section, with copies thereof furnished by him
to the complainant.

Further to quote the rule in furnishing copies of affidavits to parties under the Rules of
Procedure of the Office of the Ombudsman [Section 4 of Rule II of Administrative Order
No. 07 issued on April 10, 1990]:

a) If the complaint is not under oath or is based only on official reports, the
investigating officer shall require the complainant or supporting witnesses to
execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an
order, attaching thereto a copy of the affidavits and other supporting documents,
directing the respondents to submit, within ten (10) days from receipt thereof, his
counter-affidavits and controverting evidence with proof of service thereof on the
complainant. The complainant may file reply affidavits within ten (10) days after
service of the counter-affidavits.
It can be gleaned from these aforecited provisions that this Office is required to furnish
[Sen. Estrada] a copy of the Complaint and its supporting affidavits and documents; and
this Office complied with this requirement when it furnished [Sen. Estrada] with the
foregoing documents attached to the Orders to File Counter-Affidavit dated 19
November 2013 and 25 November 2013.

It is to be noted that there is noprovision under this Office’s Rules of Procedure which
entitles respondent to be furnished all the filings by the other parties, e.g. the
respondents. Ruby Tuason, Dennis Cunanan, Gondelina G. Amata and Mario L.
Relampagos themselves are all respondents in these cases. Under the Rules of Court
as well as the Rules of Procedure of the Office of the Ombudsman, the respondents are
only required to furnish their counter-affidavits and controverting evidence to the
complainant, and not to the other respondents.

To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary
investigation depend on the rights granted to him by law and these cannot be based on
whatever rights he believes [that] he is entitled to or those that may be derived from the
phrase "due process of law." Thus, this Office cannot grant his motion to be furnished
with copies of all the filings by the other parties. Nevertheless, he should be furnished a
copy of the Reply of complainant NBI as he is entitled thereto under the rules; however,
as of this date, no Reply has been filed by complainant NBI.

WHEREFORE, respondent [Sen.] Estrada’s Request to be Furnished with Copies of

Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filingsis DENIED. He is nevertheless entitled to be furnished a copy of the Reply if
complainant opts to file such pleading.8 (Emphases in the original)

On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-

0397 a Joint Resolution9 which found probable cause to indict Sen. Estrada and his co-
respondents with one count of plunder and 11 counts of violation of Section 3(e) of RA
No. 3019. Sen. Estrada filed a Motion for Reconsideration (of the Joint Resolution dated
28 March 2014) dated 7 April 2014. Sen. Estrada prayed for the issuance of a new
resolution dismissing the charges against him. Without filing a Motion for
Reconsideration of the Ombudsman’s 27 March 2014 Order denying his Request, Sen.
Estrada filed the present Petition for Certiorari under Rule 65 and sought to annul and
set aside the 27 March 2014 Order.

THE ARGUMENTS

Sen. Estrada raised the following grounds in his Petition:

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED ORDER

DATED 27 MARCH 2014, ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION
OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND VIOLATED SEN. ESTRADA'S CONSTITUTIONAL RIGHT TO
DUE PROCESS OF LAW.10 Sen. Estrada also claimed that under the circumstances, he
has "no appeal or any other plain, speedy, and adequate remedy in the ordinary course
of law, except through this Petition."11 Sen. Estrada applied for the issuance of a
temporary restraining order and/or writ of preliminary injunction to restrain public
respondents from conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-
13-0397. Finally, Sen. Estrada asked for a judgment declaring that (a) he has been
denied due process of law, and as a consequence thereof, (b) the Order dated 27
March 2014, as well as the proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397
subsequent to and affected bythe issuance of the 27 March 2014 Order, are void. 12

On the same date, 7 May 2014, the Ombudsman issued in OMBC-C-13-0313 and
OMB-C-C-13-0397 a Joint Order furnishing Sen. Estrada with the counter-affidavits of
Tuason, Cunanan, Amata, Relampagos, Francisco Figura, Gregoria Buenaventura, and
Alexis Sevidal, and directing him to comment thereon within a non-extendible period of
five days fromreceipt of the order.

On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend
proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 because the denial of his
Request to be furnished copies of counter-affidavits of his co-respondents deprived him
of his right to procedural due process, and he has filed the present Petition before
thisCourt. The Ombudsman denied Sen. Estrada’s motion to suspend in an Order dated
15 May 2014. Sen. Estrada filed a motion for reconsideration of the Order dated 15 May
2014 but his motion was denied in an Order dated 3 June 2014.

As of 2 June 2014,the date of filing of the Ombudsman’s Comment to the present

Petition, Sen. Estrada had not filed a comment on the counter-affidavits furnished to
him. On 4 June 2014, the Ombudsman issued a Joint Order in OMB-C-C-13-0313 and
OMB-C-C-13-0397 denying, among other motions filed by the other respondents, Sen.
Estrada’s motion for reconsideration dated 7 April 2014. The pertinent portion of the 4
June 2014 Joint Order stated:

While it is true that Senator Estrada’s request for copies of Tuason, Cunanan, Amata,
Relampagos, Figura, Buenaventura and Sevidal’s affidavits was denied by Order dated
27 March 2014 and before the promulgation of the assailed Joint Resolution, this Office
thereafter reevaluated the request and granted it byOrder dated 7 May 2014 granting
his request. Copies of the requested counter-affidavits were appended to the copy of
the Order dated 7 May 2014 transmitted to Senator Estrada through counsel.

This Office, in fact, held in abeyance the disposition of the motions for reconsideration in
this proceeding in light of its grant to Senator Estrada a period of five days from receipt
of the 7 May 2014 Order to formally respond to the above-named co-respondents’
claims.

In view of the foregoing, this Office fails to see how Senator Estrada was deprived of his
right to procedural due process.13 (Emphasis supplied)
On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public
respondents), through the Officeof the Solicitor General, filed their Comment to the
present Petition. The public respondents argued that:

I. PETITIONER [SEN. ESTRADA] WAS NOTDENIED DUE PROCESS OF LAW.

II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.

A. LITIS PENDENTIA EXISTS IN THIS CASE.

B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN

THE ORDINARY COURSE OF LAW.

III. PETITIONER IS NOTENTITLED TO A WRIT OF PRELIMINARY

INJUNCTION AND/OR TEMPORARY RESTRAINING ORDER. 14

On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod
stated that Sen. Estrada’s resort to a Petition for Certiorari under Rule 65 is improper.
Sen. Estrada should have either filed a motion for reconsideration of the 27 March 2014
Order or incorporated the alleged irregularity in his motion for reconsideration of the 28
March 2014 Joint Resolution. There was also no violation of Sen. Estrada’s right to due
process because there is no rule which mandates that a respondent such as Sen.
Estrada be furnished with copies of the submissions of his corespondents.

On 16 June 2014, Sen. Estrada filed his Reply to the public respondents’ Comment.
Sen. Estrada insisted that he was denied due process. Although Sen. Estrada received
copies of the counter-affidavits of Cunanan, Amata, Relampagos, Buenaventura,
Figura, Sevidal, as well as one of Tuason’s counter-affidavits, heclaimed that he was
not given the following documents:

a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;

b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;

c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;

d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;

e) Counter-Affidavit of VictorRoman Cojamco Cacal dated 11 December 2013 (to

the FIO Complaint);

f) Counter-Affidavit of VictorRoman Cojamco Cacal dated 22 January 2014 (to

the NBI Complaint);

g) Two (2) counter-affidavits of Ma. Julie A. VillaralvoJohnson both dated 14

March 2014;
 h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;

i) Counter-affidavit of Maria Ninez P. Guañizo dated 28 January 2014;

j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013;

and

k) Counter-affidavit of Francisco B. Figura dated 08 January 2014. Sen. Estrada

argues that the Petition isnot rendered moot by the subsequent issuance of the 7
May 2014 Joint Order because there is a recurring violation of his right to due
process. Sen. Estrada also insists that there is no forum shopping as the present
Petition arose from an incident in the main proceeding, and that he has no other
plain, speedy, and adequate remedy in the ordinary course of law. Finally, Sen.
Estrada reiterates his application for the issuance of a temporary restraining
order and/or writ of preliminary injunction to restrain public respondents from
conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.

This Court’s Ruling

Considering the facts narrated above, the Ombudsman’s denial in its 27 March 2014
Order of Sen. Estrada’s Request did not constitute grave abuse of discretion. Indeed,
the denial did not violate Sen. Estrada’s constitutional right to due process.

First. There is no law or rule which requires the Ombudsman to furnish a respondent
with copies of the counter-affidavits of his co-respondents.

We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal
Procedure, as well as Rule II of Administrative Order No. 7, Rules of Procedure of the
Office of the Ombudsman, for ready reference.

From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation

Section 3. Procedure. — The preliminary investigation shall be conducted in the

following manner:

(a) The complaint shall state the address of the respondent and shall be
accompanied by the affidavits of the complainant and his witnesses, as well as
other supporting documents to establish probable cause. They shall be in such
number of copies as there are respondents, plus two (2) copies for the official
file. The affidavits shall be subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of who must certify thathe personally
examined the affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer
shall either dismiss it if he finds no ground to continue with the investigation, or
issue a subpoena to the respondent attaching to it a copy of the complaint and its
supporting affidavits and documents. The respondent shall have the right to
examine the evidence submitted by the complainant which he may not have
been furnished and to copy them at his expense. If the evidence is voluminous,
the complainant may be required to specify those which he intends to present
against the respondent, and these shall be made available for examination or
copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available
for examination, copying, or photographing at the expense of the requesting
party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and
supporting affidavits and documents, the respondent shall submit his counter-
affidavit and that of his witnesses and other supporting documents relied upon for
his defense. The counter-affidavits shall be subscribed and sworn to and certified
as provided in paragraph (a) of this section, with copies thereof furnished by him
to the complainant. The respondent shall not be allowed to file a motion to
dismiss in lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit

counter-affidavits within the ten (10) day period, the investigating officer shall
resolve the complaint based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be
clarified from a party ora witness. The parties can be present at the hearing but
without the right to examine or cross-examine. They may, however, submit to the
investigating officer questions which may be asked to the party or witness
concerned.

The hearing shall be held within ten (10) days from submission of the counter-
affidavits and other documents or from the expiration of the period for their
submission. It shall be terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall
determine whether or not there is sufficient ground to hold the respondent for
trial. Section 4. Resolution of investigating prosecutor and its review.— If the
investigating prosecutor finds cause to hold the respondent for trial, he shall
prepare the resolution and information. He shall certify under oath in the
information that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that there is reasonable
ground to believe that a crime has been committed and that the accused is
probably guilty thereof; that the accused was informed of the complaint and of
the evidence submitted against him; and that he was given an opportunity to
 submit controverting evidence. Otherwise, he shall recommend the dismissal of
the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to
the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman
orhis deputy in cases of offenses cognizable by the Sandiganbayan in the
exercise of its original jurisdiction. They shall act on the resolution within ten (10)
days from their receipt thereof and shall immediately inform the parties of such
action.

No complaint or information may be filed or dismissed by an investigating prosecutor

without the prior written authority or approval of the provincial or city prosecutor or chief
state prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy on the ground that a probable cause
exists, the latter may, by himself, file the information against the respondent, or direct
any other assistant prosecutor or state prosecutor to do so without conducting another
preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may
prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of
the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor
concerned either to file the corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same rule shall apply in preliminary
investigations conducted by the officers of the Office of the Ombudsman. From the
Rules of Procedure of the Office of the Ombudsman, Administrative Order No. 7, Rule
II: Procedure in Criminal Cases

Section 1. Grounds. — A criminal complaint may be brought for an offense in violation

of R.A. 3019,as amended, R.A. 1379, as amended, R.A. 6713, Title VII, Chapter II,
Section 2 of the Revised Penal Code, and for such other offenses committed by public
officers and employees in relation to office.

Sec. 2. Evaluation. — Upon evaluating the complaint, the investigating officer shall
recommend whether it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over
the case;
 d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation.

Sec. 3. Preliminary investigation; who may conduct.— Preliminary investigation may be

conducted by any of the following:

1) Ombudsman Investigators;

2) Special Prosecuting Officers;

3) Deputized Prosecutors;

4) Investigating Officials authorized by law to conduct preliminary investigations;

or

5) Lawyers in the government service, so designated by the Ombudsman.

Sec. 4. Procedure. — The preliminary investigation of cases falling under the jurisdiction
of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner
prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following
provisions:

a) If the complaint is not under oath or is based only on official reports, the
investigating officer shall require the complainant or supporting witnesses to
execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an
order, attaching thereto a copy of the affidavits and other supporting documents,
directing the respondent to submit, within ten (10) days from receipt thereof, his
counter-affidavits and controverting evidence with proof of service thereof on
thecomplainant. The complainant may file reply affidavits within ten (10) days
after service of the counter-affidavits.

c) If the respondent does not file a counter-affidavit, the investigating officer may
consider the comment filed by him, if any, as his answer to the complaint. In any
event, the respondent shall have access to the evidence on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither

may a motion for a bill of particulars be entertained. If respondent desires any
matter in the complainant’s affidavit to be clarified, the particularization thereof
may be done at the time of clarificatory questioning in the manner provided in
paragraph (f) of this section.
 e) If the respondent cannot be served with the order mentioned in paragraph 6
hereof, or having been served, does not comply therewith, the complaint shall be
deemed submitted for resolution on the basis of the evidence on record.

f) If, after the filing of the requisite affidavits and their supporting evidences, there
are facts material to the case which the investigating officer may need to be
clarified on, he may conduct a clarificatory hearing during which the parties shall
be afforded the opportunity to be present but without the right to examine or
cross-examine the witness being questioned. Where the appearance of the
parties or witnesses is impracticable, the clarificatory questioning may be
conducted in writing, whereby the questions desired to be asked by the
investigating officer or a party shall be reduced into writing and served on the
witness concerned who shall be required to answer the same in writing and
under oath.

g) Upon the termination of the preliminary investigation, the investigating officer

shall forward the records of the case together with his resolution to the
designated authorities for their appropriate action thereon.

No information may be filed and no complaint may be dismissed without the written
authority or approval of the Ombudsman in cases falling within the jurisdiction of the
Sandiganbayan, or of the proper Deputy Ombudsman in all other cases.

xxxx

Sec. 6. Notice to parties.— The parties shall be served with a copy of the resolution as
finally approved by the Ombudsman or by the proper Deputy Ombudsman.

Sec. 7. Motion for reconsideration.— a) Only one (1) motion for reconsideration or
reinvestigation of anapproved order or resolution shall be allowed, the same to be filed
within fifteen (15) days from notice thereof with the Office of the Ombudsman, or the
proper deputy ombudsman as the case may be.

xxxx

b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the
corresponding Information in court on the basis of the finding of probable cause in the
resolution subject of the motion. (Emphasis supplied)

Sen. Estrada claims that the denial of his Request for the counter affidavits of his co-
respondents violates his constitutional right to due process. Sen. Estrada, however, fails
to specify a law or rule which states that it is a compulsory requirement of due process
in a preliminary investigation that the Ombudsman furnish a respondent with the
counter-affidavits of his co-respondents. Neither Section 3(b), Rule 112 of the Revised
Rules of Criminal Procedure nor Section 4(c), Rule II of the Rules of Procedure of the
Office of the Ombudsman supports Sen. Estrada’s claim. What the Rules of Procedure
of the Office of the Ombudsman require is for the Ombudsman to furnish the
respondent with a copy of the complaint and the supporting affidavits and documents at
the time the order to submit the counter-affidavit is issued to the respondent. This is
clear from Section 4(b), Rule II of the Rules of Procedure of the Office of the
Ombudsman when it states, "[a]fter such affidavits [of the complainant and his
witnesses] have been secured, the investigating officer shall issue an order, attaching
thereto a copy of the affidavits and other supporting documents, directing the
respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits x x
x." At this point, there is still no counter-affidavit submitted by any respondent. Clearly,
what Section 4(b) refers to are affidavits of the complainant and his witnesses, not the
affidavits of the co-respondents. Obviously, the counter-affidavits of the co-respondents
are not part of the supporting affidavits of the complainant. No grave abuse of discretion
can thus be attributed to the Ombudsman for the issuance of the 27 March 2014 Order
which denied Sen. Estrada’s Request.

Although Section 4(c), Rule II of the Rules of Procedure of the Office of the
Ombudsman provides that a respondent "shall have access to the evidence on record,"
this provision should be construed in relation to Section 4(a) and (b) of the same Rule,
as well as to the Rules of Criminal Procedure. First, Section 4(a) states that
"theinvestigating officer shall require the complainant or supporting witnesses to
execute affidavits to substantiate the complaint." The "supporting witnesses" are the
witnesses of the complainant, and do not refer to the co-respondents.

Second, Section 4(b) states that "the investigating officer shall issue an order attaching
thereto a copy of the affidavits and all other supporting documents, directing the
respondent" tosubmit his counter-affidavit. The affidavits referred to in Section 4(b) are
the affidavits mentioned in Section

4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits of the
complainant and his supporting witnesses. The provision in the immediately succeeding
Section 4(c) of the same Rule II that a respondent shall have "access to the evidence
on record" does not stand alone, but should be read in relation to the provisions of
Section 4(a and b) of the same Rule II requiring the investigating officer to furnish the
respondent with the "affidavits and other supporting documents" submitted by "the
complainant or supporting witnesses." Thus, a respondent’s "access to evidence on
record" in Section 4(c), Rule II of the Ombudsman’s Rules of Procedure refers to the
affidavits and supporting documents of "the complainant or supporting witnesses" in
Section 4(a) of the same Rule II.

Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that
"[t]he respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his expense."
A respondent’s right to examine refers only to "the evidence submitted by the
complainant."
Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under
Rule II of the Ombudsman’s Rules of Procedure, there is no requirement whatsoever
that the affidavits executed by the corespondents should be furnished to a respondent.
Justice Velasco’s dissent relies on the ruling in Office of the Ombudsman v. Reyes
(Reyes case),15 an administrative case, in which a different set of rules of procedure and
standards apply. Sen. Estrada’s Petition, in contrast, involves the preliminary
investigation stage in a criminal case. Rule III on the Procedure in Administrative Cases
of the Rules of Procedure of the Office of the Ombudsman applies in the Reyes case,
while Rule II on the Procedure in Criminal Cases of the Rules of Procedure of the Office
of the Ombudsman applies in Sen. Estrada’s Petition. In both cases, the Rules of Court
apply in a suppletory character or by analogy.16

In the Reyescase, the complainant Acero executed an affidavit against Reyes and
Peñaloza, who were both employees of the Land Transportation Office. Peñaloza
submitted his counter-affidavit, as well as those of his two witnesses. Reyes adopted his
counter-affidavit in another case before the Ombudsman as it involved the same parties
and the same incident. None of the parties appeared during the preliminary conference.
Peñaloza waived his right to a formal investigation and was willing to submit the case
for resolution based on the evidence on record. Peñaloza also submitted a counter-
affidavit of his third witness. The Ombudsman found Reyes guilty of grave misconduct
and dismissed him from the service. On the other hand, Peñaloza was found guilty of
simple misconduct and penalized with suspension from office without pay for six
months. This Court agreed with the Court of Appeals’ finding that Reyes’ right to due
process was indeed violated. This Court remanded the records of the case to the
Ombudsman, for two reasons: (1) Reyes should not have been meted the penalty of
dismissal from the service when the evidence was not substantial, and (2) there was
disregard of Reyes’ right to due process because he was not furnished a copy of the
counter-affidavits of Peñaloza and of Peñaloza’s three witnesses. In the Reyes case,
failure to furnish a copy of the counter-affidavits happened in the administrative
proceedings on the merits, which resulted in Reyes’ dismissal from the service. In Sen.
Estrada’s Petition, the denial of his Request happened during the preliminary
investigation where the only issue is the existence of probable cause for the purpose of
determining whether an information should be filed, and does not prevent Sen. Estrada
from requesting a copy of the counter-affidavits of his co-respondents during the pre-
trial or even during the trial.

We should remember to consider the differences in adjudicating cases, particularly an

administrative case and a criminal case:

Any lawyer worth his salt knows that quanta of proof and adjective rules vary depending
on whether the cases to which they are meant to apply are criminal, civil or
administrative in character. In criminal actions, proof beyond reasonable doubt is
required for conviction;in civil actions and proceedings, preponderance of evidence, as
support for a judgment; and in administrative cases, substantial evidence, as basis for
adjudication. In criminal and civil actions, application of the Rules of Court is called for,
with more or less strictness. In administrative proceedings, however, the technical rules
of pleadingand procedure, and of evidence, are not strictly adhered to; they generally
apply only suppletorily; indeed, in agrarian disputes application of the Rules of Court is
actually prohibited.17

It should be underscored that the conduct of a preliminary investigation is only for the
determination of probable cause, and "probable cause merely implies probability of guilt
and should be determined in a summary manner. A preliminary investigation is not a
part of the trial and it is only in a trial where an accused can demand the full exercise of
his rights, such as the right to confront and cross-examine his accusers to establish his
innocence."18 Thus, the rights of a respondent in a preliminary investigation are limited
to those granted by procedural law.

A preliminary investigation is defined as an inquiry or proceeding for the purpose of

determining whether there is sufficient ground to engender a well founded belief that a
crime cognizable by the Regional Trial Court has been committed and that the
respondent is probably guilty thereof, and should be held for trial. The quantum of
evidence now required in preliminary investigation is such evidence sufficient to
"engender a well founded belief" as tothe fact of the commission of a crime and the
respondent's probable guilt thereof. A preliminary investigation is not the occasion for
the full and exhaustive display of the parties’ evidence; it is for the presentation of such
evidence only as may engender a well-grounded belief that an offense has been
committed and that the accused is probably guilty thereof. We are in accord with the
state prosecutor’s findings in the case at bar that there exists prima facie evidence of
petitioner’s involvement in the commission of the crime, it being sufficiently supported
by the evidence presented and the facts obtaining therein.

Likewise devoid of cogency is petitioner’s argument that the testimonies of Galarion and
Hanopol are inadmissible as to him since he was not granted the opportunity of cross-
examination.

It is a fundamental principle that the accused in a preliminary investigation has no right

to cross-examine the witnesses which the complainant may present. Section 3, Rule
112 of the Rules of Court expressly provides that the respondent shall only have the
right to submit a counter-affidavit, to examine all other evidence submitted by the
complainant and, where the fiscal sets a hearing to propound clarificatory questions to
the parties or their witnesses, to be afforded an opportunity to be present but without the
right to examine or cross-examine. Thus, even if petitioner was not given the
opportunity to cross-examine Galarion and Hanopol atthe time they were presented to
testify during the separate trial of the case against Galarion and Roxas, he cannot
assert any legal right to cross-examine them at the preliminary investigation precisely
because such right was never available to him. The admissibility or inadmissibility of
said testimonies should be ventilated before the trial court during the trial proper and not
in the preliminary investigation.

Furthermore, the technical rules on evidence are not binding on the fiscal who has
jurisdiction and control over the conduct of a preliminary investigation. If by its very
nature a preliminary investigation could be waived by the accused, we find no
compelling justification for a strict application of the evidentiary rules. In addition,
considering that under Section 8, Rule 112 of the Rules of Court, the record of the
preliminary investigation does not form part of the record of the case in the Regional
Trial Court, then the testimonies of Galarion and Hanopol may not be admitted by the
trial court if not presented in evidence by the prosecuting fiscal. And, even if the
prosecution does present such testimonies, petitioner can always object thereto and the
trial court can rule on the admissibility thereof; or the petitioner can, during the trial,
petition said court to compel the presentation of Galarion and Hanopol for purposes of
cross-examination.19 (Emphasis supplied)

Furthermore, in citing the Reyes case, Justice Velasco’s dissent overlooked a vital
portion of the Court of Appeals’ reasoning. This Court quoted from the Court of Appeals’
decision: "x x x [A]dmissions made by Peñaloza in his sworn statement are binding only
on him. Res inter alios act a alteri nocere non debet. The rights of a party cannot be
prejudiced by an act, declaration or omission of another." In OMB-C-C-13-0313 and
OMB-C-C-13-0397, the admissions of Sen. Estrada’s co-respondents can in no way
prejudice Sen. Estrada. Even granting Justice Velasco’s argument that the 28 March
2014 Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-0397 20 mentioned the
testimonies of Sen. Estrada’s corespondents like Tuason and Cunanan, their
testimonies were merely corroborative of the testimonies of complainants’ witnesses
Benhur Luy, Marina Sula, and Merlina Suñas and were not mentioned in isolation from
the testimonies of complainants’ witnesses.

Moreover, the sufficiency of the evidence put forward by the Ombudsman against Sen.
Estrada to establish its finding of probable cause in the 28 March 2014 Joint Resolution
in OMB-C-C-13-0313 and OMB-CC-13-0397 was judicially confirmed by the
Sandiganbayan, when it examined the evidence, found probable cause, and issued a
warrant of arrest against Sen. Estrada on 23 June 2014.

We likewise take exception to Justice Brion’s assertion that "the due process standards
that at the very least should be considered in the conduct of a preliminary investigation
are those that this Court first articulated in Ang Tibay v. Court of Industrial Relations
[Ang Tibay]."21 Simply put, the Ang Tibay guidelines for administrative cases do not
apply to preliminary investigations in criminal cases. An application of the Ang Tibay
guidelines to preliminary investigations will have absurd and disastrous consequences.

Ang Tibay enumerated the constitutional requirements of due process, which Ang Tibay
described as the "fundamental and essential requirements of due process in trials and
investigations of an administrative character." 22 These requirements are "fundamental
and essential" because without these, there isno due process as mandated by the
Constitution. These "fundamental and essential requirements" cannot be taken away by
legislation because theyare part of constitutional due process. These "fundamental and
essential requirements" are:
 (1) The first of these rights is the right to a hearing, which includes the right of the
party interested or affected to present his own case and submit evidence in
support thereof. x x x.

(2) Not only must the party be given an opportunity to present his case and
adduce evidence tending to establish the rights which he asserts but the tribunal
must consider the evidence presented. x x x.

(3) "While the duty to deliberatedoes not impose the obligation to decide right, it
does imply a necessity which cannot be disregarded, namely, that of having
something to support its decision. A decision with absolutely nothing to support it
is a nullity, x x x."

(4) Not only must there be some evidence to support a finding or conclusion, but
the evidence must be "substantial." "Substantial evidence is more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." x x x.

(5) The decision must be rendered on the evidence presented at the hearing, or
at least contained in the record and disclosed to the parties affected. x x x.

(6) The Court of Industrial Relations or any of its judges, therefore, must act on
its or his own independent consideration of the law and facts of the controversy,
and not simply accept the views of a subordinate in arriving at a decision. x x x.

(7) The Court of Industrial Relations should, in all controversial questions, render
its decision in sucha manner that the parties to the proceeding can know the
various issues involved, and the reasons for the decisions rendered. The
performance of this duty is inseparable from the authority conferred upon it. 23

The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA 24 (GSIS): "what
Ang Tibay failed to explicitly state was, prescinding from the general principles
governing due process, the requirement of an impartial tribunalwhich, needless to say,
dictates that one called upon to resolve a dispute may not sit as judge and jury
simultaneously, neither may he review his decision on appeal." 25 The GSIS clarification
affirms the non applicability of the Ang Tibay guidelines to preliminary investigations in
criminal cases: The investigating officer, which is the role that the Office of the
Ombudsman plays in the investigation and prosecution of government personnel, will
never be the impartial tribunal required in Ang Tibay, as amplified in GSIS. The purpose
of the Office of the Ombudsman in conducting a preliminary investigation, after
conducting its own factfinding investigation, is to determine probable cause for filing an
information, and not to make a final adjudication of the rights and obligations of the
parties under the law, which is the purpose of the guidelines in Ang Tibay. The
investigating officer investigates, determines probable cause, and prosecutes the
criminal case after filing the corresponding information.
The purpose in determining probable cause is to make sure that the courts are not
clogged with weak cases that will only be dismissed, as well as to spare a person from
the travails of a needless prosecution.26 The Ombudsman and the prosecution service
under the control and supervision of the Secretary of the Department of Justice are
inherently the fact-finder, investigator, hearing officer, judge and jury of the respondent
in preliminary investigations. Obviously, this procedure cannot comply with Ang Tibay,
as amplified in GSIS. However, there is nothing unconstitutional with this procedure
because this is merely an Executive function, a part of the law enforcement process
leading to trial in court where the requirements mandated in Ang Tibay, as amplified in
GSIS, will apply. This has been the procedure under the 1935, 1973 and 1987
Constitutions. To now rule that Ang Tibay, as amplified in GSIS, should apply to
preliminary investigations will mean that all past and present preliminary investigations
are in gross violation of constitutional due process.

Moreover, a person under preliminary investigation, as Sen. Estrada is in the present

case when he filed his Request, is not yet an accused person, and hence cannot
demand the full exercise of the rights of an accused person:

A finding of probable cause needs only to rest on evidence showing that more likely
than not a crime has been committed and was committed by the suspects. Probable
cause need not be based on clear and convincing evidence of guilt, neither on evidence
establishing guilt beyond reasonable doubt and definitely, not on evidence establishing
absolute certainty of guilt. As well put in Brinegar v. United States, while probable cause
demands more than "bare suspicion," it requires "less than evidence which would justify
. . . conviction." A finding of probable cause merely binds over the suspect to stand trial.
It is not a pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of
probable cause, wealso hold that the DOJ Panel did not gravely abuse its discretion in
refusing to call the NBI witnesses for clarificatory questions. The decision to call
witnesses for clarificatory questions is addressed to the sound discretion of the
investigator and the investigator alone. If the evidence on hand already yields a
probable cause, the investigator need not hold a clarificatory hearing. To repeat,
probable cause merely implies probability of guilt and should be determined in a
summary manner. Preliminary investigation is not a part of trial and it is only in a trial
where an accused can demand the full exercise of his rights, such as the right to
confront and cross-examine his accusers to establish his innocence. In the case at bar,
the DOJ Panel correctly adjudged that enough evidence had been adduced to establish
probable cause and clarificatory hearing was unnecessary. 27

Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v.
Hernandez,28 that the "rights conferred upon accused persons to participate in
preliminary investigations concerning themselves depend upon the provisions of law by
which such rights are specifically secured, rather than upon the phrase ‘due process of
law’." This reiterates Justice Jose P. Laurel’s oft-quoted pronouncement in Hashim v.
Boncan29 that "the right to a preliminary investigation is statutory, not constitutional." In
short, the rights of a respondent ina preliminary investigation are merely statutory rights,
not constitutional due process rights. An investigation to determine probable cause for
the filing of an information does not initiate a criminal action so as to trigger into
operation Section 14(2), Article III of the Constitution. 30 It is the filing of a complaint or
information in court that initiates a criminal action. 31

The rights to due process in administrative cases as prescribed in Ang Tibay,as

amplified in GSIS, are granted by the Constitution; hence, these rights cannot be taken
away by merelegislation. On the other hand, as repeatedly reiterated by this Court, the
right to a preliminary investigation is merely a statutory right, 32 not part of the
"fundamental and essential requirements" of due process as prescribed in Ang Tibay
and amplified in GSIS. Thus, a preliminary investigation can be taken away by
legislation. The constitutional right of an accused to confront the witnesses against him
does not apply in preliminary investigations; nor will the absence of a preliminary
investigation be an infringement of his right to confront the witnesses against him. 33 A
preliminary investigation may be done away with entirely without infringing the
constitutional right of an accused under the due process clause to a fair trial. 34

The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than the
evidenceneeded in a preliminary investigation to establish probable cause, or to
establish the existence of a prima facie case that would warrant the prosecution of a
case. Ang Tibay refers to "substantial evidence," while the establishment of probable
cause needs "only more than ‘bare suspicion,’ or ‘less than evidence which would justify
. . . conviction’." In the United States, from where we borrowed the concept of probable
cause,35 the prevailing definition of probable cause is this:

In dealing with probable cause, however, 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. The
standard of proof is accordingly correlative to what must be proved.

"The substance of all the definitions" of probable cause "is a reasonable ground for
belief of guilt." McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in the
Carroll opinion. 267 U. S. at 161. And this "means less than evidence which would
justify condemnation" or conviction, as Marshall, C. J., said for the Court more than a
century ago in Locke v. United States, 7 Cranch 339, 348. Since Marshall’s time, at any
rate, it has come to mean more than bare suspicion: Probable cause exists where "the
facts and circumstances within their [the officers’] knowledge and of which they had
reasonably trustworthy information [are] sufficient in themselves to warrant a man of
reasonable caution in the belief that" an offense has been or is being committed. Carroll
v. United States, 267 U. S. 132, 162.

These long-prevailing standards seek to safeguard citizens from rash and unreasonable
interferences with privacy and from unfounded charges of crime. They also seek to give
fair leeway for enforcing the law in the community’s protection. Because many situations
which confront officers in the course of executing their duties are more or less
ambiguous, room must be allowed for some mistakes on their part. But the mistakes
must be those of reasonable men, acting on facts leading sensibly to their conclusions
of probability. The rule of probable cause is a practical, non technical conception
affording the best compromise that has been found for accommodating these often
opposing interests. Requiring more would unduly hamper law enforcement. To allow
less would be to leave law-abiding citizens at the mercy of the officers’ whim or
caprice.36

In the Philippines, there are four instances in the Revised Rules of Criminal Procedure
where probable cause is needed to be established:

(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine

whether there is sufficient ground to engender a well-founded belief that a crime
has been committed and the respondent is probably guilty thereof, and should be
held for trial. A preliminary investigation is required before the filing of a
complaint or information for an offense where the penalty prescribed by law is at
least four years, two months and one day without regard to the fine;

(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant
of arrest or a commitment order, if the accused has already been arrested, shall
be issued and that there is a necessity of placing the respondent under
immediate custody in order not to frustrate the ends of justice;

(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a
warrantless arrest when an offense has just been committed, and he has
probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and

(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant
shall be issued, and only upon probable cause in connection with one specific
offense to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the things to be seized which
may be anywhere in the Philippines.

In all these instances, the evidence necessary to establish probable cause is based only
on the likelihood, or probability, of guilt. Justice Brion, in the recent case of Unilever
Philippines, Inc. v. Tan37 (Unilever), stated:

The determination of probable cause needs only to rest on evidence showing that more
likely than not, a crime has been committed and there is enough reason to believe that it
was committed by the accused. It need not be based on clear and convincing evidence
of guilt, neither on evidence establishing absolute certainty of guilt. What is merely
required is "probability of guilt." Its determination, too, does not call for the application of
rules or standards of proof that a judgment of conviction requires after trial on the
merits. Thus, in concluding that there is probable cause, it suffices that it is believed that
the act or omission complained of constitutes the very offense charged.

It is also important to stress that the determination of probable cause does not depend
on the validity or merits of a party’s accusation or defense or on the admissibility or
veracity of testimonies presented. As previously discussed, these matters are better
ventilated during the trial proper of the case. As held in Metropolitan Bank & Trust
Company v. Gonzales:

Probable cause has been defined as the existence of such facts and circumstances as
would excite the belief in a reasonable mind, acting on the facts within the knowledge of
the prosecutor, that the person charged was guilty of the crime for which he was
prosecuted. x x x. The term does not mean "actual or positive cause" nor does it import
absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding
of probable cause does not require an inquiry into whether there is sufficient evidence to
procure a conviction. It is enough that it is believed that the act or omission complained
of constitutes the offense charged. Precisely, there is a trial for the reception of
evidence of the prosecution in support of the charge. (Bold facing and italicization
supplied)

Justice Brion’s pronouncement in Unilever that "the determination of probable cause

does not depend on the validity or merits of a party’s accusation or defense or on the
admissibility or veracity of testimonies presented" correctly recognizes the doctrine in
the United States that the determination of probable cause can rest partially, or even
entirely, on hearsay evidence, as long as the person making the hearsay statement is
credible. In United States v. Ventresca, 38 the United States Supreme Court held:

While a warrant may issue only upon a finding of "probable cause," this Court has long
held that "the term ‘probable cause’ . . . means less than evidence which would justify
condemnation," Locke v. United States, 7 Cranch 339, 11 U.S. 348, and that a finding of
"probable cause" may rest upon evidence which is not legally competent in a criminal
trial. Draper v. United States, 358 U.S. 307, 358 U.S. 311. As the Court stated in
Brinegar v. United States, 338 U.S. 160, 173, "There is a large difference between the
two things tobe proved (guilt and probable cause), as well as between the tribunals
which determine them, and therefore a like difference in the quanta and modes of proof
required to establish them." Thus, hearsay may be the basis for issuance of the warrant
"so long as there . . . [is] a substantial basis for crediting the hearsay." Jones v. United
States, supra, at 362 U.S. 272. And, in Aguilar, we recognized that "an affidavit may be
based on hearsay information and need not reflect the direct personal observations of
the affiant," so long as the magistrate is "informed of some of the underlying
circumstances" supporting the affiant’s conclusions and his belief that any informant
involved "whose identity need not be disclosed . . ." was "credible" or his information
"reliable." Aguilar v. Texas, supra, at 378 U.S. 114. (Emphasis supplied)

Thus, probable cause can be established with hearsay evidence, as long as there is
substantial basis for crediting the hearsay. Hearsay evidence is admissible in
determining probable cause in a preliminary investigation because such investigation is
merely preliminary, and does not finally adjudicate rights and obligations of parties.
However, in administrative cases, where rights and obligations are finally adjudicated,
what is required is "substantial evidence" which cannot rest entirely or even partially on
hearsay evidence. Substantial basis is not the same as substantial evidence because
substantial evidence excludes hearsay evidence while substantial basis can include
hearsay evidence. To require the application of Ang Tibay, as amplified in GSIS, in
preliminary investigations will change the quantum of evidence required in determining
probable cause from evidence of likelihood or probability of guilt to substantial evidence
of guilt.

It is, moreover, necessary to distinguish between the constitutionally guaranteed rights

of an accused and the right to a preliminary investigation. To treat them the same will
lead toabsurd and disastrous consequences.

All pending criminal cases in all courts throughout the country will have to be remanded
to the preliminary investigation level because none of these will satisfy Ang Tibay, as
amplified in GSIS. Preliminary investigations are conducted by prosecutors, who are the
same officials who will determine probable cause and prosecute the cases in court. The
prosecutor is hardly the impartial tribunal contemplated in Ang Tibay, as amplified in
GSIS. A reinvestigation by an investigating officer outside of the prosecution service will
be necessary if Ang Tibay, as amplified in GSIS, were to be applied. This will require a
new legislation. In the meantime, all pending criminal cases in all courts will have to be
remanded for reinvestigation, to proceed only when a new law is in place. To require
Ang Tibay, as amplified in GSIS, to apply to preliminary investigation will necessarily
change the concept of preliminary investigation as we know it now. Applying the
constitutional due process in Ang Tibay, as amplified in GSIS, to preliminary
investigation will necessarily require the application of the rights of an accused in
Section 14(2), Article III of the 1987 Constitution. This means that the respondent can
demand an actual hearing and the right to cross-examine the witnesses against him,
rights which are not afforded at present toa respondent in a preliminary investigation.

The application of Ang Tibay, as amplified in GSIS, is not limited to those with pending
preliminary investigations but even to those convicted by final judgment and already
serving their sentences. The rule is well-settled that a judicial decision applies
retroactively if it has a beneficial effect on a person convicted by final judgment even if
he is already serving his sentence, provided that he is not a habitual criminal. 39 This
Court retains its control over a case "until the full satisfaction of the final judgment
conformably with established legal processes." 40 Applying Ang Tibay, as amplified in
GSIS, to preliminary investigations will result in thousands of prisoners, convicted by
final judgment, being set free from prison.

Second. Sen. Estrada’s present Petition for Certiorari is premature.

Justice Velasco’s dissent prefers thatSen. Estrada not "be subjected to the rigors of a
criminal prosecution incourt" because there is "a pending question regarding the
Ombudsman’s grave abuse of its discretion preceding the finding of a probable cause to
indict him." Restated bluntly, Justice Velasco’s dissent would like this Court to conclude
that the mere filing of the present Petition for Certiorari questioning the Ombudsman’s
denial of Sen. Estrada’s Request should have, by itself, voided all proceedings related
to the present case.

Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen.
Estrada’s Request, the Ombudsman subsequently reconsidered its Order. On 7 May
2014, the same date that Sen. Estrada filed the present Petition, the Ombudsman
issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 that furnishedSen.
Estrada with the counter-affidavits of Ruby Tuason, Dennis Cunanan, Gondelina Amata,
Mario Relampagos, Francisco Figura, Gregoria Buenaventura, and AlexisSevidal, and
directed him to comment within a non-extendible period of five days from receipt of said
Order. Sen. Estrada did not file any comment, as noted in the 4 June 2014 Joint Order
of the Ombudsman.

On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen.
Estrada’s Motion for Reconsideration ofits 28 March 2014 Joint Resolution which found
probable cause toindict Sen. Estrada and his corespondents with one count of plunder
and 11 counts of violation of Section 3(e), Republic Act No. 3019. In this 4 June 2014
Joint Order, the Ombudsman stated that "[t]his Office, in fact, held in abeyance the
disposition of motions for reconsideration in this proceeding in light of its grant to
Senator Estrada a period of five days from receipt of the 7 May 2014 Order to formally
respond to the above-named respondents’ claims."

We underscore Sen. Estrada’s procedural omission. Sen. Estrada did not file any
pleading, much less a motion for reconsideration, to the 27 March 2014 Order inOMB-
C-C-13-0313. Sen. Estrada immediately proceeded to file this Petition for Certiorari
before this Court. Sen. Estrada’s resort to a petitionfor certiorari before this Court stands
in stark contrast to his filing of his 7 April 2014 Motion for Reconsideration of the 28
March 2014 Joint Resolution finding probable cause. The present Petition for Certiorari
is premature.

A motion for reconsideration allows the public respondent an opportunity to correct its
factual and legal errors. Sen. Estrada, however, failed to present a compelling reason
that the present Petition falls under the exceptions 41 to the general rule that the filing of
a motion for reconsideration is required prior to the filing of a petition for certiorari. This
Court has reiterated in numerous decisions that a motion for reconsideration is
mandatory before the filing of a petition for certiorari. 42

Justice Velasco’s dissent faults the majority for their refusal to apply the Reyes case to
the present Petition. Justice Velasco’s dissent insists that "this Court cannot neglect to
emphasize that, despite the variance in the quanta of evidence required, a uniform
observance of the singular concept of due process is indispensable in all proceedings."
As we try to follow Justice Velasco’s insistence, we direct Justice Velasco and those
who join him in his dissent to this Court’s ruling in Ruivivar v. Office of the Ombudsman
(Ruivivar),43 wherein we stated that "[t]he law can no longer help one who had been
given ample opportunity to be heard but who did not take full advantage of the proffered
chance."

The Ruivivar case, like the Reyes44 case, was also an administrative case before the
Ombudsman. The Ombudsman found petitioner Rachel Beatriz Ruivivar
administratively liable for discourtesy in the course of her official functions and imposed
on her the penalty of reprimand. Petitioner filed a motion for reconsideration of the
decision on the ground that she was not furnished copies of the affidavits of the private
respondent’s witnesses. The Ombudsman subsequently ordered that petitioner be
furnished with copies of the counter-affidavits of private respondent’s witnesses, and
that petitioner should "file, within ten (10) days from receipt of this Order, such pleading
which she may deem fit under the circumstances." Petitioner received copies of the
affidavits, and simply filed a manifestation where she maintained that her receipt of the
affidavits did not alter the deprivation of her right to due process or cure the irregularity
in the Ombudsman’s decision to penalize her.

In Ruivivar, petitioner received the affidavits of the private respondent’s witnesses

afterthe Ombudsman rendered a decision against her. We disposed of petitioner’s
deprivation of due process claim in this manner:

The CA Decision dismissed the petition for certiorari on the ground that the petitioner
failed to exhaust all the administrative remedies available to her before the
Ombudsman. This ruling is legallycorrect as exhaustion of administrative remedies is a
requisite for the filing of a petition for certiorari. Other than this legal significance,
however, the ruling necessarily carries the direct and immediate implication that the
petitioner has been granted the opportunity to be heard and has refused to avail of this
opportunity; hence, she cannot claim denial of due process. In the words of the CA
ruling itself: "Petitioner was given the opportunity by public respondent to rebut the
affidavits submitted by private respondent. . . and had a speedy and adequate
administrative remedy but she failed to avail thereof for reasons only known to her."

For a fuller appreciation of our above conclusion, we clarify that although they are
separate and distinct concepts, exhaustion of administrative remedies and due process
embody linked and related principles. The "exhaustion" principle applies when the ruling
court or tribunal is not given the opportunity tore-examine its findings and conclusions
because of an available opportunity that a party seeking recourse against the court or
the tribunal’s ruling omitted to take. Under the concept of "due process," on the other
hand, a violation occurs when a court or tribunal rules against a party without giving him
orher the opportunity to be heard. Thus, the exhaustion principle is based on the
perspective of the ruling court or tribunal, while due process is considered from the point
of view of the litigating party against whom a ruling was made. The commonality they
share is in the same"opportunity" that underlies both. In the context of the present case,
the available opportunity to consider and appreciate the petitioner’s counter-statement
offacts was denied the Ombudsman; hence, the petitioner is barred from seeking
recourse at the CA because the ground she would invoke was not considered at all at
the Ombudsman level. At the same time, the petitioner – who had the same opportunity
to rebut the belatedly-furnished affidavits of the private respondent’s witnesses – was
not denied and cannot now claim denial of due process because she did not take
advantage of the opportunity opened to her at the Ombudsman level.

The records show that the petitioner duly filed a motion for reconsideration on due
process grounds (i.e., for the private respondent’s failure to furnish her copies of the
affidavits of witnesses) and on questions relating to the appreciation of the evidence on
record. The Ombudsman acted on this motion by issuing its Order of January 17, 2003
belatedly furnishing her with copies of the private respondent’s witnesses, together with
the "directive to file, within ten (10) days from receipt of this Order, such pleading which
she may deem fit under the circumstances."

Given this opportunity to act on the belatedly-furnished affidavits, the petitioner simply
chose to file a "Manifestation" where she took the position that "The order of the
Ombudsman dated 17 January 2003 supplying her with the affidavits of the complainant
does not cure the 04 November 2002 order," and on this basis prayed that the
Ombudsman’s decision "be reconsidered and the complaint dismissed for lack of merit."

For her part, the private respondent filed a Comment/Opposition to Motion for
Reconsideration dated 27 January 2003 and prayed for the denial of the petitioner’s
motion.

In the February 12, 2003 Order, the Ombudsman denied the petitioner’s motion for
reconsideration after finding no basis to alter or modify its ruling. Significantly, the
Ombudsman fully discussed in this Order the due process significance of the
petitioner’s failure to adequately respond to the belatedly-furnished affidavits. The
Ombudsman said:

"Undoubtedly, the respondent herein has been furnished by this Office with copies of
the affidavits, which she claims she has not received. Furthermore, the respondent has
been given the opportunity to present her side relative thereto, however, she chose not
to submit countervailing evidence orargument. The respondent, therefore (sic), cannot
claim denial of due process for purposes of assailing the Decision issued in the present
case. On this score, the Supreme Court held in the case of People v. Acot, 232 SCRA
406, that "a party cannot feign denial of due process where he had the opportunity to
present his side". This becomes all the more important since, as correctly pointed out by
the complainant, the decision issued in the present case is deemed final and
unappealable pursuant to Section 27 of Republic Act 6770, and Section 7, Rule III of
Administrative Order No. 07. Despite the clear provisions of the law and the rules, the
respondent herein was given the opportunity not normally accorded, to present her side,
but she opted not to do so which is evidently fatal to her cause." [emphasis supplied].
Under these circumstances, we cannot help but recognize that the petitioner’s cause is
a lost one, not only for her failure to exhaust her available administrative remedy, but
also on due process grounds. The law can no longer help one who had been given
ample opportunity to be heard but who did not take full advantage of the proffered
chance.45

Ruivivar applies with even greater force to the present Petition because here the
affidavits of Sen. Estrada’s co-respondents were furnished to him beforethe
Ombudsman rendered her 4 June 2014 Joint Order. In Ruivivar, the affidavits were
furnished after the Ombudsman issued a decision.

Justice Velasco’s dissent cites the cases of Tatad v. Sandiganbayan 46 (Tatad) and
Duterte v. Sandiganbayan47 (Duterte) in an attempt to prop up its stand. A careful
reading of these cases, however, would show that they do not stand on all fours with the
present case. In Tatad, this Court ruled that "the inordinate delay in terminating the
preliminary investigation and filing the information [by the Tanodbayan] in the present
case is violative of the constitutionally guaranteed right of the petitioner to due process
and to a speedy disposition of the cases against him." 48 The Tanod bayan took almost
three years to terminate the preliminary investigation, despite Presidential Decree No.
911’s prescription of a ten-day period for the prosecutor to resolve a case under
preliminary investigation. We ruled similarly in Duterte, where the petitioners were
merely asked to comment and were not asked to file counter-affidavits as isthe proper
procedure in a preliminary investigation. Moreover, in Duterte, the Ombudsman took
four years to terminate its preliminary investigation.

As we follow the reasoning in Justice Velasco’s dissent, it becomes more apparent that
Sen. Estrada’s present Petition for Certiorari is premature for lack of filing of a motion
for reconsideration before the Ombudsman. When the Ombudsman gave Sen. Estrada
copies of the counter-affidavits and even waited for the lapse of the given period for the
filing of his comment, Sen. Estrada failed to avail of the opportunity to be heard due to
his own fault. Thus, Sen. Estrada’s failure cannot in any way be construed as violation
of due process by the Ombudsman, much less of grave abuse of discretion. Sen.
Estrada has not filed any comment, and still chooses not to.

Third. Sen. Estrada’s present Petition for Certiorari constitutes forum shopping and
should be summarily dismissed.

In his verification and certification of non-forum shopping in the present petition filed on
7 May 2014, Sen. Estrada stated:

3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April
2014 in OMB-C-C-13-0313 and OMB-CC-13-0397, raising as sole issuethe finding of
probable cause in the Joint Resolution dated 28 March 2014.

Such Motion for Reconsideration has yet to be resolved by the Office of the
Ombudsman.49 (Emphasis supplied)
Sen. Estrada’s Motion for Reconsideration of the 28 March 2014 Joint Resolution
prayed that the Ombudsman reconsider and issue a new resolution dismissing the
charges against him. However, in this Motion for Reconsideration, Sen. Estrada
assailed the Ombudsman’s 27 March 2014 Joint Order denying his Request, and that
such denial is a violation of his right to due process.

8. It is respectfully submitted that the Ombudsman violated the foregoing rule [Rule 112,
Section 4 of the Rules of Court] and principles. A reading of the Joint Resolution will
reveal that various pieces of evidence which Senator Estrada was not furnished with –
hence, depriving him of the opportunity to controvert the same – were heavily
considered by the Ombudsman in finding probable cause to charge him with Plunder
and with violations of Section 3(e) of R.A. No. 3019.

xxxx

11. Notably, under dated 20 March 2014, Senator Estrada filed a "Request to be
Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of New
Witnesses and Other Filings," pursuant to the right of a respondent "to examine the
evidence submitted by the complainant which he may not have been furnished" (Section
3[b], Rule 112 of the Rules of Court), and to "have access to the evidence on record"
(Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman).

However, notwithstanding the gravity of the offenses leveled against Senator Estrada
and the law’s vigilance in protecting the rights of an accused, the Special Panel of
Investigators, in an Order dated 27 March 2014, unceremoniously denied the request
on the ground that "there is no provision under this Office’s Rules of Procedure which
entitles respondent to be furnished all the filings by the other parties x x x x." (Order
dated 27 March 2013, p. 3)

As such, Senator Estrada was not properly apprised of the evidence offered against
him, which were eventually made the bases of the Ombudsman’s finding of probable
cause.50

The Ombudsman denied Sen. Estrada’s Motion for Reconsideration in its 4 June 2014
Joint Order. Clearly, Sen. Estrada expressly raised in his Motion for Reconsideration
with the Ombudsman the violation of his right to due process, the same issue he is
raising in this petition. In the verification and certification of non-forum shopping
attached to his petition docketed as G.R. Nos. 212761-62 filed on 23 June 2014, Sen.
Estrada disclosed the pendency of the present petition, as well as those before the
Sandiganbayan for the determination of the existence of probable cause. In his petition
in G.R. Nos. 212761-62, Sen. Estrada again mentioned the Ombudsman’s 27 March
2014 Joint Order denying his Request.

17. Sen. Estrada was shocked not only at the Office of the Ombudsman’s finding of
probable cause, which he maintains is without legal or factual basis, but also thatsuch
finding of probable cause was premised on evidence not disclosed tohim, including
those subject of his Request to be Furnished with Copiesof Counter-Affidavits of the
Other Respondents, Affidavits of New Witnesses and Other Filings dated 20 March
2014.

In particular, the Office of the Ombudsman used as basis for the Joint Resolution the
following documents –

i. Alexis G. Sevidal’s Counter-Affidavits dated 15 January and 24 February 2014;

ii. Dennis L. Cunanan’s Counter-Affidavits both dated 20 February 2014;

iii. Francisco B. Figura’s Counter-Affidavit dated 08 January 2014;

iv. Ruby Tuason’s Counter-Affidavits both dated 21 February 2014;

v. Gregoria G. Buenaventura’s Counter-Affidavit dated 06 March 2014; and

vi. Philippine Daily Inquirer Online Edition news article entitled "Benhur Luy
upstages Napoles in Senate Hearing" by Norman Bordadora and TJ Borgonio,
published on 06 March 2014, none of which were ever furnished Sen. Estrada
prior to the issuance of the challenged Joint Resolution, despite written request.

xxxx

II

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT

RESOLUTION DATED 28 MARCH 2014 AND CHALLENGED JOINT ORDER DATED
04 JUNE 2014, NOT ONLY ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION
OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION, BUT ALSO VIOLATED SEN. ESTRADA’S CONSTITUTIONAL RIGHT
TO DUE PROCESS OF LAW AND TO EQUAL PROTECTION OF THE LAWS.

xxxx

2.17 x x x x

Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even
arbitrarily limited the filing of Sen. Estrada’s comment to the voluminous documents
comprisingthe documents it furnished Sen. Estrada to a "non-extendible" period offive
(5) days, making it virtually impossible for Sen. Estrada to adequately study the charges
leveled against him and intelligently respond to them. The Joint Order also failed to
disclose the existence of other counter-affidavits and failed to furnish Sen. Estrada
copies of such counter-affidavits.51
Sen. Estrada has not been candid with this Court. His claim that the finding of probable
cause was the "sole issue" he raised before the Ombudsman in his Motion for
Reconsideration dated 7 April 2014 is obviously false.

Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsman’s 4
June 2014 Joint Order which denied his motion for reconsideration of the 28 March
2014 Joint Resolution, Sen. Estrada did not mention that the 4 June 2014 Joint Order
stated that the Ombudsman "held in abeyance the disposition of the motions for
reconsideration in this proceeding in light of its grant to [Sen. Estrada] a period of five
days from receipt of the 7 May 2014 [Joint] Order to formally respond to the
abovenamed co-respondent’s claims."

Sen. Estrada claims that his rights were violated but he flouts the rules himself.

The rule against forum shopping is not limited tothe fulfillment of the requisites of litis
pendentia.52 To determine whether a party violated the rule against forum shopping, the
most important factor to ask is whether the elements of litis pendentia are present, or
whether a final judgment in one case will amount to res judicatain
another.53 Undergirding the principle of litis pendentia is the theory that a party isnot
allowed to vex another more than once regarding the same subject matter and for the
same cause of action. This theory is founded on the public policy that the same matter
should not be the subject of controversy in court more than once in order that possible
conflicting judgments may be avoided, for the sake of the stability in the rights and
status of persons.54

x x x [D]espite the fact that what the petitioners filed wasa petition for certiorari, a
recourse that – in the usual course and because of its nature and purpose – is not
covered by the rule on forum shopping. The exception from the forum shopping rule,
however, is true only where a petition for certiorari is properly or regularly invoked in the
usual course; the exception does not apply when the relief sought, through a petition for
certiorari, is still pending with or has as yet to be decided by the respondent court,
tribunal or body exercising judicial or quasi-judicial body, e.g., a motion for
reconsideration of the order assailed via a petition for certiorari under Rule 65, as in the
present case. This conclusion is supported and strengthened by Section 1, Rule 65 of
the Revised Rules of Court which provides that the availability of a remedy in the
ordinary course of law precludes the filing of a petition for certiorari; under this rule, the
petition’s dismissal is the necessary consequence if recourse to Rule 65 is prematurely
taken.

To be sure, the simultaneous remedies the petitioners sought could result in possible
conflicting rulings, or at the very least, to complicated situations, between the RTC and
the Court of Appeals. An extreme possible result is for the appellate court to confirm
that the RTC decision is meritorious, yet the RTC may at the same time reconsider its
ruling and recall its order of dismissal. In this eventuality, the result is the affirmation of
the decision that the court a quo has backtracked on. Other permutations depending on
the rulings of the two courts and the timing of these rulings are possible. In every case,
our justice system suffers as this kind of sharp practice opens the system to the
possibility of manipulation; to uncertainties when conflict of rulings arise; and at least to
vexation for complications other than conflict of rulings. Thus, it matters not that
ultimately the Court of Appeals may completely agree with the RTC; what the rule on
forum shopping addresses are the possibility and the actuality of its harmful effects on
our judicial system.55

Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging violation
of due process by the Ombudsman even as his Motion for Reconsideration raising the
very same issue remained pending with the Ombudsman. This is plain and simple
forum shopping, warranting outright dismissal of this Petition.

SUMMARY

The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its supporting
affidavits and documents, fully complied with Sections 3 and 4 of Rule 112 of the
Revised Rules of Criminal Procedure, and Section 4, Rule II of the Rules of Procedure
of the Office of the Ombudsman, Administrative Order No. 7. Both the Revised Rules of
Criminal Procedure and the Rules of Procedure of the Office of the Ombudsman require
the investigating officer to furnish the respondent with copies of the affidavits of the
complainant and affidavits of his supporting witnesses. Neither of these Rules require
the investigating officer to furnish the respondent with copies of the affidavits of his co-
respondents. The right of the respondent is only "to examine the evidence submitted by
the complainant," as expressly stated in Section 3(b), Rule 112 of the Revised Rules of
Criminal Procedure. This Court has unequivocally ruled in Paderanga that "Section 3,
Rule 112 of the Revised Rules of Criminal Procedure expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to examine all other
evidence submitted by the complainant and, where the fiscal sets a hearing to propound
clarificatory questions to the parties or their witnesses, to be afforded an opportunity to
be present but without the right to examine or cross-examine." Moreover, Section 4 (a, b
and c) of Rule II of the Ombudsman’s Rule of Procedure, read together, only require the
investigating officer to furnish the respondent with copies of the affidavits of the
complainant and his supporting witnesses.1âwphi1 There is no law or rule requiring the
investigating officer to furnish the respondent with copies of the affidavits of his co-
respondents.

In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even
furnished Sen. Estrada with copies of the counter-affidavits of his co-respondents whom
he specifically named, as well as the counteraffidavits of some of other co-respondents.
In the 4 June 2014 Joint Order, the Ombudsman even held in abeyancethe disposition
of the motions for reconsideration because the Ombudsman granted Sen. Estrada five
days from receipt of the 7 May 2014 Joint Order to formally respond to the claims made
by his co-respondents. The Ombudsman faithfully complied with the existing Rules on
preliminary investigation and even accommodated Sen. Estrada beyond what the Rules
required. Thus, the Ombudsman could not be faulted with grave abuse of discretion.
Since this is a Petition for Certiorari under Rule 65, the Petition fails in the absence of
grave abuse of discretion on the part of the Ombudsman.

The constitutional due process requirements mandated in Ang Tibay, as amplified in

GSIS, are not applicable to preliminary investigations which are creations of statutory
law giving rise to mere statutory rights. A law can abolish preliminary investigations
without running afoul with the constitutional requirements of dueprocess as prescribed
in Ang Tibay, as amplified in GSIS. The present procedures for preliminary
investigations do not comply, and were never intended to comply, with Ang Tibay, as
amplified in GSIS. Preliminary investigations do not adjudicate with finality rights and
obligations of parties, while administrative investigations governed by Ang Tibay, as
amplified in GSIS, so adjudicate. Ang Tibay,as amplified in GSIS, requires substantial
evidencefor a decision against the respondent in the administrative case.In preliminary
investigations, only likelihood or probability of guiltis required. To apply Ang Tibay,as
amplified in GSIS,to preliminary investigations will change the quantum of evidence
required to establish probable cause. The respondent in an administrative case
governed by Ang Tibay,as amplified in GSIS,has the right to an actual hearing and to
cross-examine the witnesses against him. In preliminary investigations, the respondent
has no such rights.

Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the

hearing officer must be impartial and cannot be the fact-finder, investigator, and hearing
officer atthe same time. In preliminary investigations, the same public officer may be the
investigator and hearing officer at the same time, or the fact-finder, investigator and
hearing officer may be under the control and supervisionof the same public officer, like
the Ombudsman or Secretary of Justice. This explains why Ang Tibay, as amplified in
GSIS, does not apply to preliminary investigations. To now declare that the guidelines in
Ang Tibay, as amplified in GSIS, are fundamental and essential requirements in
preliminary investigations will render all past and present preliminary investigations
invalid for violation of constitutional due process. This will mean remanding for
reinvestigation all criminal cases now pending in all courts throughout the country. No
preliminary investigation can proceeduntil a new law designates a public officer, outside
of the prosecution service, to determine probable cause. Moreover, those serving
sentences by final judgment would have to be released from prison because their
conviction violated constitutional due process. Sen. Estrada did not file a Motion for
Reconsideration of the 27 March 2014 Order in OMB-C-C-13-0313 denying his
Request, which is the subject of the present Petition. He should have filed a Motion for
R econsideration, in the same manner that he filed a Motion for Reconsideration of the
15 May 2014 Order denying his motion to suspend proceedings. The unquestioned rule
in this jurisdiction is that certiorari will lie only if there is no appeal or any other plain,
speedy and adequate remedy in the ordinary course of law against the acts of the public
respondent.56 The plain, speedy and adequate remedy expressly provided by law is a
Motion for Reconsideration of the 27 March 2014 Order of the Ombudsman. Sen.
Estrada's failure to file a Motion for Reconsideration renders this Petition premature.
Sen. Estrada also raised in this Petition the same issue he raised in his Motion for
Reconsideration of the 28 March 2014 Joint Resolution of the Ombudsman finding
probable cause. While his Motion for Reconsideration of the 28 March 2014 Joint
Resolution was pending, Sen. Estrada did not wait for the resolution of the Ombudsman
and instead proceeded to file the present Petition for Certiorari. The Ombudsman
issued a Joint Order on 4 June 2014 and specifically addressed the issue that Sen.
Estrada is raising in this Petition. Thus, Sen. Estrada's present Petition for Certiorari is
not only premature, it also constitutes forum shopping. WHEREFORE, we DISMISS the
Petition for Certiorari in G.R. Nos. 212140-41.

SO ORDERED.

BRION, J.:
Before the Court is a petition for review on certiorari filed by Ongcoma Hadji Homar
(petitioner) seeking the reversal of the Decision[1] of the Court of Appeals (CA) dated
January 10, 2008, and its Resolution dated April 11, 2008 in CA-G.R. CR No. 29364.
These assailed CA rulings affirmed the decision of the Regional Trial Court (RTC) of
Parañaque City, Branch 259 in Criminal Case No. 02-0986 which convicted the
petitioner for violation of Republic Act (RA) No. 9165 entitled "An Act Instituting the
Comprehensive Dangerous Drugs Act of 2002."

The Factual Antecedents

The petitioner was charged for violation of Section 11, Article II[2] of RA 9165. The
Information states that on or about August 20, 2002, the petitioner was found to
possess one heat-sealed transparent plastic sachet containing 0.03 grams of
methylamphetamine hydrochloride, otherwise known as shabu. The petitioner pleaded
not guilty during arraignment.[3]

PO1 Eric Tan (Tan) was the lone witness for the prosecution. As stated in the RTC
decision, he testified that on August 20, 2002, at around 8:50 in the evening, their
Chief, P/Chief Supt. Alfredo C. Valdez, ordered him and civilian agent (C/A) Ronald
Tangcoy (Tangcoy) to go to the South Wing, Roxas Boulevard. While proceeding to the
area onboard a mobile hunter, they saw the petitioner crossing a "No Jaywalking"
portion of Roxas Boulevard. They immediately accosted him and told him to cross at the
pedestrian crossing area.

The petitioner picked up something from the ground, prompting Tangcoy to frisk him
resulting in the recovery of a knife. Thereafter, Tangcoy conducted a thorough search on
the petitioner's body and found and confiscated a plastic sachet containing what he
suspected as shabu. Tangcoy and Tan executed a sinumpaang salaysay on the incident.
[4]
The petitioner was the sole witness for the defense.[5] He testified that on August 20,
2002, he was going home at around 6:30 p.m. after selling imitation sunglasses and
other accessories at the BERMA Shopping Center. After crossing the overpass, a
policeman and a civilian stopped and frisked him despite his refusal. They poked a gun
at him, accused him of being a holdupper, and forced him to go with them. They also
confiscated the kitchen knife, which he carried to cut cords. He was likewise investigated
for alleged possession of shabu and detained for one day. He was criminally charged
before the Metropolitan Trial Court of Parañaque City, Branch 77 for the possession of
the kitchen knife but he was eventually acquitted.[6]

The RTC's Ruling

The RTC convicted the petitioner. It ruled that PO1 Tan and C/A Tangcoy were
presumed to have performed their duties regularly in arresting and conducting a search
on the petitioner. The RTC also noted that PO1 Eric Tan was straightforward in giving
his testimony and he did not show any ill motive in arresting the petitioner. [7]

The RTC also did not believe the petitioner's defense of denial and ruled that it is a
common and standard defense ploy in most prosecutions in dangerous drugs cases. This
defense is weak especially when it is not substantiated by clear and convincing evidence
as in this case.[8]

The petitioner filed an appeal with the CA.

The CA's ruling

The CA dismissed the petition and affirmed the RTC's findings.

According to the CA, Section 5, paragraph (a) of Rule 113 of the Revised Rules of
Criminal Procedure enumerates the circumstances when a warrantless arrest is legal,
valid, and proper. One of these is when the person to be arrested has committed, is
actually committing, or is attempting to commit an offense in the presence of a peace
officer or a private person. In the present case, the petitioner committed jaywalking in
the presence of PO1 Tan and C/A Tangcoy; hence, his warrantless arrest for jaywalking
was lawful.[9]

Consequently, the subsequent frisking and search done on the petitioner's body which
produced the knife and the shabu were incident to a lawful arrest allowed under Section
13, Rule 126 of the Revised Rules of Criminal Procedure.[10]

The CA likewise ruled that PO1 Tan[11] clearly showed that the petitioner was caught in
flagrante delicto in possession of shabu.[12]

The petitioner filed a motion for reconsideration which was denied by the CA.[13] Hence,
this appeal.

The Petitioner's Position

The petitioner argues that the CA erred in affirming his conviction on the following
grounds:

First, the shabu, which was allegedly recovered from the petitioner, is inadmissible as
evidence because it was obtained as a result of his unlawful arrest and in violation of his
right against unreasonable search and seizure. The petitioner has not committed, was
not committing and was not attempting to commit any crime at the time of his arrest. In
fact, no report or criminal charge was filed against him for the alleged jaywalking. [14]

Second, assuming for the sake of argument that there was a valid arrest, Section 13, Rule
126 of the Revised Rules of Criminal Procedure permits a search that is directed only
upon dangerous weapons or "anything which may have been used or constitute proof in
the commission of an offense without a warrant." In the present case, the offense, for
which the petitioner was allegedly caught in flagrante delicto, is jaywalking. The alleged
confiscated drug has nothing to do with the offense of jaywalking. [15]

Finally, the non-presentation of Tangcoy, who allegedly recovered the shabu from the

petitioner, renders the prosecution's evidence weak and uncorroborated. Consequently,
the sole testimony of Tan cannot sustain the petitioner's conviction beyond reasonable
doubt.

The Respondent's Position

In his Comment, the respondent argues that the guilt of the petitioner was conclusively
established beyond reasonable doubt.[16] He reiterates that the warrantless frisking and
search on the petitioner's body was an incident to a lawful warrantless arrest for
jaywalking.[17] The non-filing of a criminal charge of jaywalking against the petitioner
does not render his arrest invalid.[18]

The respondent also assails the petitioner's defense that the shabu is inadmissible as
evidence. According to the respondent, the petitioner can no longer question his arrest
after voluntarily submitting himself to the jurisdiction of the trial court when he entered
his plea of not guilty and when he testified in court.[19]

The Court's Ruling

We find the petition meritorious.

The prosecution failed to prove that a lawful warrantless arrest preceded the search
conducted on the petitioner's body.
The Constitution guarantees the right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures. Any evidence obtained
in violation of these rights shall be inadmissible for any purpose in any proceeding.
While the power to search and seize may at times be necessary to the public welfare, the
exercise of this power and the implementation of the law should not violate the
constitutional rights of the citizens.[20]

To determine the admissibility of the seized drugs in evidence, it is indispensable to

ascertain whether or not the search which yielded the alleged contraband was lawful.
[21]
 There must be a valid warrantless search and seizure pursuant to an equally valid
warrantless arrest, which must precede the search. For this purpose, the law requires
that there be first a lawful arrest before a search can be made — the process cannot be
reversed.[22]

Section 5, Rule 113[23] of the Revised Rules of Criminal Procedure provides the only
occasions when a person may be lawfully arrested without a warrant. In the present
case, the respondent alleged that the petitioner's warrantless arrest was due to his
commission of jaywalking in flagrante delicto and in the presence of Tan and Tangcoy.

To constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the
person to be arrested must execute an overt act indicating that he has just committed, is
actually committing, or is attempting to commit a crime; and (2) such overt act is done
in the presence of or within the view of the arresting officer. [24]

The prosecution has the burden to prove the legality of the warrantless arrest from
which the corpus delicti of the crime - shabu - was obtained. For, without a valid
warrantless arrest, the alleged confiscation of the shabu resulting from a warrantless
search on the petitioner's body is surely a violation of his constitutional right against
unlawful search and seizure. As a consequence, the alleged shabu shall be inadmissible
as evidence against him.

On this point, we find that aside from the bare testimony of Tan as quoted by the CA in
its decision, the prosecution did not proffer any other proof to establish that the
requirements for a valid in flagrante delicto arrest were complied with. Particularly, the
prosecution failed to prove that the petitioner was committing a crime.

The respondent failed to specifically identify the area where the petitioner allegedly
crossed. Thus, Tan merely stated that the petitioner "crossed the street of Roxas
Boulevard, in a place not designated for crossing." Aside from this conclusion, the
respondent failed to prove that the portion of Roxas Boulevard where the petitioner
crossed was indeed a "no jaywalking" area. The petitioner was also not charged of
jaywalking. These are pieces of evidence that could have supported the conclusion that
indeed the petitioner was committing a crime of jaywalking and therefore, the
subsequent arrest and search on his person was valid. Unfortunately, the prosecution
failed to prove this in the present case.
We clarify, however, that the filing of a criminal charge is not a condition precedent to
prove a valid warrantless arrest. Even if there is a criminal charge against an accused,
the prosecution is not relieved from its burden to prove that there was indeed a valid
warrantless arrest preceding the warrantless search that produced the corpus delicti of
the crime.

Neither can the presumption of regularity in the performance of official duty save the
prosecution's lack of evidence to prove the warrantless arrest and search. This
presumption cannot overcome the presumption of innocence or constitute proof of guilt
beyond reasonable doubt. Among the constitutional rights enjoyed by an accused, the
most primordial yet often disregarded is the presumption of innocence. This elementary
principle accords every accused the right to be presumed innocent until the contrary is
proven beyond reasonable doubt; and the burden of proving the guilt of the accused
rests upon the prosecution.[25]

It may not be amiss to point out also the contrary observation of the Court as regards
the findings of the RTC when it held, rather hastily, that in the process of accosting the
petitioner for jaywalking, Tangcoy recovered from his possession a knife and a small
plastic sachet containing shabu[26] The testimony of Tan, as quoted in the CA decision,
and the findings of the RTC, cast doubt on whether Tan and Tangcoy intended to
arrest the petitioner for jaywalking.

Arrest is the taking of a person into custody in order that he or she may be bound to
answer for the commission of an offense. It is effected by an actual restraint of the
person to be arrested or by that person's voluntary submission to the custody of the one
making the arrest. Neither the application of actual force, manual touching of the body,
or physical restraint, nor a formal declaration of arrest, is required. It is enough that
there be an intention on the part of one of the parties to arrest the other,
and that there be an intent on the part of the other to submit, under the
belief and impression that submission is necessary.[27]

The pertinent testimony[28] of Tan, as quoted by the CA, is as follows:

Q: What happened after you obeyed the order of your immediate superior?
At 8:50 in the evening of August 20, 2002, we saw a male person crossed the street
A:
of Roxas Boulevard, in a place not designated for crossing.
What did you do when you saw this person crossed the street of Roxas Boulevard, in
Q:
a place not designated for crossing?
A: We accosted him.
Q: How did you accost that person?
We accosted him and pointed to him the right place for crossing. Pero
A: napansin namin siya na parang may kinukuha, so he was frisked by
Ronald Tangcoy and a knife was recovered from his possession.
After a knife was recovered by your companions (sic) from that person who
Q:
allegedly crossed the wrong side of the street, what happened after that?
After recovering the knife, nakaalalay lang ako and he was frisked again by
A:
Tangcoy and a plastic sachet was recovered from his possession.
 Did you know the contents of that plastic sachet which your companion recovered
Q:
from that person who crossed the wrong side of the street?
A: Yes, sir.
Q: What about the contents?
A: Suspected shabu or methylamphetamine hydrochloride.
After the drug was recovered from the possession of that man, what did
Q:
you do?
We brought him to our precinct and informed him of his constitutional
rights and brought him to the Parañaque Community Hospital and the
A:
suspected shabu or methylamphetamine was brought to the PNP Crime
Lab at Fort Bonifacio.
Did you come to know the name of that person whom you arrested in the morning
Q:
of August 20, 2002?
A: Yes, sir.
Q: What is his name?
A: Ongcoma Hadji Omar, sir.
Q: Is he the same Ongcoma Hadji Omar y Para, the accused in this case?
A: Yes, sir.
[emphasis and underscoring supplied]
Clearly, no arrest preceded the search on the person of the petitioner. When Tan and
Tangcoy allegedly saw the petitioner jaywalking, they did not arrest him but accosted
him and pointed to him the right place for crossing. In fact, according to the RTC, Tan
and Tangcoy "immediately accosted him and told him to cross [at] the
designated area."[29]

Tan and Tangcoy did not intend to bring the petitioner under custody or to restrain his
liberty. This lack of intent to arrest him was bolstered by the fact that there was no
criminal charge that was filed against the petitioner for crossing a "no jaywalking" area.

From Tan's testimony, the intent to arrest the petitioner only came after they allegedly
confiscated the shabu from the petitioner, for which they informed him of his
constitutional rights and brought him to the police station.

The indispensability of the intent to arrest an accused in a warrantless search incident to

a lawful arrest was emphasized in Luz vs. People of the Philippines.[30] The Court held
that the shabu confiscated from the accused in that case was inadmissible as evidence
when the police officer who flagged him for traffic violation had no intent to
arrest him. According to the Court, due to the lack of intent to arrest, the subsequent
search was unlawful. This is notwithstanding the fact that the accused, being
caught in flagrante delicto for violating an ordinance, could have been
therefore lawfully stopped or arrested by the apprehending officers.

In the light of the discussion above, the respondent's argument that there was a lawful
search incident to a lawful warrantless arrest for jaywalking appears to be an
afterthought in order to justify a warrantless search conducted on the person of the
petitioner. In fact, the illegality of the search for the shabu is further highlighted when it
was not recovered immediately after the alleged lawful arrest, if there was any, but only
after the initial search resulted in the recovery of the knife. Thereafter, according to Tan,
Tangcoy conducted another search on the person of the petitioner resulting in the
alleged confiscation of the shabu. Clearly, the petitioner's right to be secure in his
person was callously brushed aside twice by the arresting police officers. [31]

The waiver of an illegal warrantless arrest does not also mean a waiver of
the inadmissibility of evidence seized during an illegal warrantless arrest.

We agree with the respondent that the petitioner did not timely object to the irregularity
of his arrest before his arraignment as required by the Rules. In addition, he actively
participated in the trial of the case. As a result, the petitioner is deemed to have
submitted to the jurisdiction of the trial court, thereby curing any defect in his arrest.

However, this waiver to question an illegal arrest only affects the jurisdiction of the
court over his person. It is well-settled that a waiver of an illegal, warrantless arrest does
not carry with it a waiver of the inadmissibility of evidence seized during an illegal
warrantless arrest.[32]

Since the shabu was seized during an illegal arrest, its inadmissibility as evidence

precludes conviction and justifies the acquittal of the petitioner.

WHEREFORE, we GRANT the petition and REVERSE and SET ASIDE the

Decision of the Court of Appeals dated January 10, 2008, and its Resolution dated April
11, 2008 in CA-G.R. CR No. 29364. Petitioner ONGCOMA HADJI
HOMAR is ACQUITTED and ordered immediately RELEASED from detention,
unless he is confined for any other lawful cause.

SO ORDERED.

Carpio, (Chairperson), Del Castillo, Mendoza, and Leonen, JJ., concur.

Terry v. Ohio, 392 U.S. 1 (1968)

Terry v. Ohio

No. 67

Argued December 12, 1967

Decided June 10, 1968

392 U.S. 1

CERTIORARI TO THE SUPREME COURT OF OHIO

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case presents serious questions concerning the role of the Fourth Amendment in
the confrontation on the street between the citizen and the policeman investigating
suspicious circumstances.

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

[5]

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.

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.

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 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, 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]

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.

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, 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 the necessity of the
situation, and not from any broader right to disarm, to 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.

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.

EN BANC

[G.R. No. 123595. December 12, 1997]

SAMMY MALACAT y MANDAR, Petitioner, v. COURT OF APPEALS, and

PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

DAVIDE, JR., J.:

In an Information1 filed on 30 August 1990, in Criminal Case No. 90-86748

before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy
Malacat y Mandar was charged with violating Section 3 of Presidential Decree
No. 1866,2 as follows:

That on or about August 27, 1990, in the City of Manila, Philippines, the said
accused did then and there willfully, unlawfully and knowingly keep, possess
and/or acquire a hand grenade, without first securing the necessary license
and/or permit therefor from the proper authorities.

At arraignment3 on 9 October 1990, Petitioner, assisted by counsel de oficio,

entered a plea of not guilty.
At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits
A, A-1, and A-2,4 while the prosecution admitted that the police authorities
were not armed with a search warrant nor warrant of arrest at the time they
arrested petitioner.5cräläwvirtualibräry

At trial on the merits, the prosecution presented the following police officers
as its witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the
investigating officer; and Orlando Ramilo, who examined the grenade.

Rodolfo Yu of the Western Police District, Metropolitan Police Force of the

Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that
on 27 August 1990, at about 6:30 p.m., in response to bomb threats
reported seven days earlier, he was on foot patrol with three other police
officers (all of them in uniform) along Quezon Boulevard, Quiapo, Manila,
near the Mercury Drug store at Plaza Miranda. They chanced upon two
groups of Muslim-looking men, with each group, comprised of three to four
men, posted at opposite sides of the corner of Quezon Boulevard near the
Mercury Drug Store. These men were acting suspiciously with [t]heir eyes
moving very fast.6cräläwvirtualibräry

Yu and his companions positioned themselves at strategic points and

observed both groups for about thirty minutes. The police officers then
approached one group of men, who then fled in different directions. As the
policemen gave chase, Yu caught up with and apprehended petitioner. Upon
searching petitioner, Yu found a fragmentation grenade tucked inside
petitioners front waist line.7 Yus companion, police officer Rogelio Malibiran,
apprehended Abdul Casan from whom a.38 caliber revolver was recovered.
Petitioner and Casan were then brought to Police Station No. 3 where Yu
placed an X mark at the bottom of the grenade and thereafter gave it to his
commander.8cräläwvirtualibräry

On cross-examination, Yu declared that they conducted the foot patrol due

to a report that a group of Muslims was going to explode a grenade
somewhere in the vicinity of Plaza Miranda. Yu recognized petitioner as the
previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw
petitioner and 2 others attempt to detonate a grenade. The attempt was
aborted when Yu and other policemen chased petitioner and his companions;
however, the former were unable to catch any of the latter. Yu further
admitted that petitioner and Casan were merely standing on the corner of
Quezon Boulevard when Yu saw them on 27 August 1990. Although they
were not creating a commotion, since they were supposedly acting
suspiciously, Yu and his companions approached them. Yu did not issue any
receipt for the grenade he allegedly recovered from
petitioner.9cräläwvirtualibräry
Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990,
petitioner and a certain Abdul Casan were brought in by Sgt. Saquilla10 for
investigation. Forthwith, Serapio conducted the inquest of the two suspects,
informing them of their rights to remain silent and to be assisted by
competent and independent counsel. Despite Serapios advice, petitioner and
Casan manifested their willingness to answer questions even without the
assistance of a lawyer. Serapio then took petitioners uncounselled confession
(Exh. E), there being no PAO lawyer available, wherein petitioner admitted
possession of the grenade. Thereafter, Serapio prepared the affidavit of
arrest and booking sheet of petitioner and Casan. Later, Serapio turned over
the grenade to the Intelligence and Special Action Division (ISAD) of the
Explosive Ordnance Disposal Unit for
examination.11chanroblesvirtuallawlibrary

On cross-examination, Serapio admitted that he took petitioners confession

knowing it was inadmissible in evidence.12cräläwvirtualibräry

Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties
included, among other things, the examination of explosive devices, testified
that on 22 March 1991, he received a request dated 19 March 1991 from Lt.
Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade.
Ramilo then affixed an orange tag on the subject grenade detailing his
name, the date and time he received the specimen. During the preliminary
examination of the grenade, he [f]ound that [the] major components
consisting of [a] high filler and fuse assembly [were] all present, and
concluded that the grenade was [l]ive and capable of exploding. On even
date, he issued a certification stating his findings, a copy of which he
forwarded to Diotoy on 11 August 1991.13cräläwvirtualibräry

Petitioner was the lone defense witness. He declared that he arrived in

Manila on 22 July 1990 and resided at the Muslim Center in Quiapo, Manila.
At around 6:30 in the evening of 27 August 1990, he went to Plaza Miranda
to catch a breath of fresh air. Shortly after, several policemen arrived and
ordered all males to stand aside. The policemen searched petitioner and two
other men, but found nothing in their possession. However, he was arrested
with two others, brought to and detained at Precinct No. 3, where he was
accused of having shot a police officer. The officer showed the gunshot
wounds he allegedly sustained and shouted at petitioner [i]to ang tama mo
sa akin. This officer then inserted the muzzle of his gun into petitioners
mouth and said, [y]ou are the one who shot me. Petitioner denied the
charges and explained that he only recently arrived in Manila. However,
several other police officers mauled him, hitting him with benches and guns.
Petitioner was once again searched, but nothing was found on him. He saw
the grenade only in court when it was presented.14cräläwvirtualibräry
The trial court ruled that the warrantless search and seizure of petitioner
was akin to a stop and frisk, where a warrant and seizure can be effected
without necessarily being preceded by an arrest and whose object is either
to maintain the status quo momentarily while the police officer seeks to
obtain more information.15 Probable cause was not required as it was not
certain that a crime had been committed, however, the situation called for
an investigation, hence to require probable cause would have been
premature.16 The RTC emphasized that Yu and his companions were
[c]onfronted with an emergency, in which the delay necessary to obtain a
warrant, threatens the destruction of evidence17 and the officers [h]ad to act
in haste, as petitioner and his companions were acting suspiciously,
considering the time, place and reported cases of bombing. Further,
petitioners group suddenly ran away in different directions as they saw the
arresting officers approach, thus [i]t is reasonable for an officer to conduct a
limited search, the purpose of which is not necessarily to discover evidence
of a crime, but to allow the officer to pursue his investigation without fear of
violence.18cräläwvirtualibräry

The trial court then ruled that the seizure of the grenade from petitioner was
incidental to a lawful arrest, and since petitioner [l]ater voluntarily admitted
such fact to the police investigator for the purpose of bombing the Mercury
Drug Store, concluded that sufficient evidence existed to establish
petitioners guilt beyond reasonable doubt.

In its decision19 dated 10 February 1994 but promulgated on 15 February

1994, the trial court thus found petitioner guilty of the crime of illegal
possession of explosives under Section 3 of P.D. No. 1866, and sentenced
him to suffer:

[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS
AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more
than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.

On 18 February 1994, petitioner filed a notice of appeal20 indicating that he

was appealing to this Court. However, the record of the case was forwarded
to the Court of Appeals which docketed it as CA-G.R. CR No. 15988 and
issued a notice to file briefs.21cräläwvirtualibräry

In his Appellants Brief 22 filed with the Court of Appeals, petitioner asserted

that:

1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE
PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED
HANDGRENADE FROM HIM WAS AN APPROPRIATE INCIDENT TO HIS
ARREST.

2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST

ACCUSED-APPELLANT THE HANDGRENADE ALLEGEDLY SEIZED FROM HIM
AS IT WAS A PRODUCT OF AN UNREASONABLE AND ILLEGAL SEARCH.

In sum, petitioner argued that the warrantless arrest was invalid due to
absence of any of the conditions provided for in Section 5 of Rule 113 of the
Rules of Court, citing People vs. Mengote.23 As such, the search was illegal,
and the hand grenade seized, inadmissible in evidence.

In its Brief for the Appellee, the Office of the Solicitor General agreed with
the trial court and prayed that its decision be affirmed in
toto.24cräläwvirtualibräry

In its decision of 24 January 1996,25 the Court of Appeals affirmed the trial

court, noting, first, that petitioner abandoned his original theory before the
court a quo that the grenade was planted by the police officers; and second,
the factual finding of the trial court that the grenade was seized from
petitioners possession was not raised as an issue. Further, respondent court
focused on the admissibility in evidence of Exhibit D, the hand grenade
seized from petitioner. Meeting the issue squarely, the Court of Appeals
ruled that the arrest was lawful on the ground that there was probable cause
for the arrest as petitioner was attempting to commit an offense, thus:

We are at a loss to understand how a man, who was in possession of a live

grenade and in the company of other suspicious character[s] with unlicensed
firearm[s] lurking in Plaza Miranda at a time when political tension ha[d]
been enkindling a series of terroristic activities, [can] claim that he was not
attempting to commit an offense. We need not mention that Plaza Miranda is
historically notorious for being a favorite bomb site especially during times of
political upheaval. As the mere possession of an unlicensed grenade is by
itself an offense, Malacats posture is simply too preposterous to inspire
belief.

In so doing, the Court of Appeals took into account petitioners failure to

rebut the testimony of the prosecution witnesses that they received
intelligence reports of a bomb threat at Plaza Miranda; the fact that PO Yu
chased petitioner two days prior to the latters arrest, or on 27 August 1990;
and that petitioner and his companions acted suspiciously, the accumulation
of which was more than sufficient to convince a reasonable man that an
offense was about to be committed. Moreover, the Court of Appeals
observed:
The police officers in such a volatile situation would be guilty of gross
negligence and dereliction of duty, not to mention of gross incompetence, if
they [would] first wait for Malacat to hurl the grenade, and kill several
innocent persons while maiming numerous others, before arriving at what
would then be an assured but moot conclusion that there was indeed
probable cause for an arrest. We are in agreement with the lower court in
saying that the probable cause in such a situation should not be the kind of
proof necessary to convict, but rather the practical considerations of
everyday life on which a reasonable and prudent mind, and not legal
technicians, will ordinarily act.

Finally, the Court of Appeals held that the rule laid down in People v.
Mengote,26 which petitioner relied upon, was inapplicable in light of [c]rucial
differences, to wit:

[In Mengote] the police officers never received any intelligence report that
someone [at] the corner of a busy street [would] be in possession of a
prohibited article. Here the police officers were responding to a [sic] public
clamor to put a check on the series of terroristic bombings in the Metropolis,
and, after receiving intelligence reports about a bomb threat aimed at the
vicinity of the historically notorious Plaza Miranda, they conducted foot
patrols for about seven days to observe suspicious movements in the area.
Furthermore, in Mengote, the police officers [had] no personal knowledge
that the person arrested has committed, is actually committing, or is
attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of
the fact that he chased Malacat in Plaza Miranda two days before he finally
succeeded in apprehending him.

Unable to accept his conviction, petitioner forthwith filed the instant petition
and assigns the following errors:

1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE

TRIAL COURT THAT THE WARRANTLESS ARREST OF PETITIONER WAS
VALID AND LEGAL.

2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING

IN PEOPLE VS. MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT
CASE.

In support thereof, petitioner merely restates his arguments below regarding

the validity of the warrantless arrest and search, then disagrees with the
finding of the Court of Appeals that he was attempting to commit a crime, as
the evidence for the prosecution merely disclosed that he was standing at
the corner of Plaza Miranda and Quezon Boulevard with his eyes moving
very fast and looking at every person that come (sic) nearer (sic) to them.
Finally, petitioner points out the factual similarities between his case and
that of People v. Mengote to demonstrate that the Court of Appeals
miscomprehended the latter.

In its Comment, the Office of the Solicitor General prays that we affirm the
challenged decision.

For being impressed with merit, we resolved to give due course to the
petition.

The challenged decision must immediately fall on jurisdictional grounds. To

repeat, the penalty imposed by the trial court was:

[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE
(1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than
THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.

The penalty provided by Section 3 of P.D. No. 1866 upon any person who
shall unlawfully possess grenades is reclusion temporal in its maximum
period to reclusion perpetua.

For purposes of determining appellate jurisdiction in criminal cases, the

maximum of the penalty, and not the minimum, is taken into account. Since
the maximum of the penalty is reclusion perpetua, the appeal therefrom
should have been to us, and not the Court of Appeals, pursuant to Section
9(3) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129),27 in relation
to Section 17 of the Judiciary Act of 1948,28 Section 5(2) of Article VIII of the
Constitution29 and Section 3(c) of Rule 122 of the Rules of Court.30 The term
life imprisonment as used in Section 9 of B.P. Blg. 129, the Judiciary Act of
1948, and Section 3 of Rule 122 must be deemed to
include reclusion perpetua in view of Section 5(2) of Article VIII of the
Constitution.

Petitioners Notice of Appeal indicated that he was appealing from the trial
courts decision to this Court, yet the trial court transmitted the record to the
Court of Appeals and the latter proceeded to resolve the appeal.

We then set aside the decision of the Court of Appeals for having been
rendered without jurisdiction, and consider the appeal as having been
directly brought to us, with the petition for review as petitioners Brief for the
Appellant, the comment thereon by the Office of the Solicitor General as the
Brief for the Appellee and the memoranda of the parties as their
Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves convinced that
the prosecution failed to establish petitioners guilt with moral certainty.

First, serious doubt surrounds the story of police officer Yu that a grenade
was found in and seized from petitioners possession. Notably, Yu did not
identify, in court, the grenade he allegedly seized. According to him, he
turned it over to his commander after putting an X mark at its bottom;
however, the commander was not presented to corroborate this claim. On
the other hand, the grenade presented in court and identified by police
officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera
and police officer Diotoy not immediately after petitioners arrest, but
nearly seven (7) months later, or on 19 March 1991; further, there was no
evidence whatsoever that what Ramilo received was the very same grenade
seized from petitioner. In his testimony, Yu never declared that the grenade
passed on to Ramilo was the grenade the former confiscated from petitioner.
Yu did not, and was not made to, identify the grenade examined by Ramilo,
and the latter did not claim that the grenade he examined was that seized
from petitioner. Plainly, the law enforcement authorities failed to safeguard
and preserve the chain of evidence so crucial in cases such as these.

Second, if indeed petitioner had a grenade with him, and that two days
earlier he was with a group about to detonate an explosive at Plaza Miranda,
and Yu and his fellow officers chased, but failed to arrest them, then
considering that Yu and his three fellow officers were in uniform and
therefore easily cognizable as police officers, it was then unnatural and
against common experience that petitioner simply stood there in proximity
to the police officers. Note that Yu observed petitioner for thirty minutes and
must have been close enough to petitioner in order to discern petitioners
eyes moving very fast.

Finally, even assuming that petitioner admitted possession of the grenade

during his custodial investigation by police officer Serapio, such admission
was inadmissible in evidence for it was taken in palpable violation of Section
12(1) and (3) of Article III of the Constitution, which provide as follows:

SEC. 12 (1). Any person under investigation for the commission of an

offense shall have the right to be informed of his right to remain silent and
to have competent and independent counsel preferably of his own choice. If
the person cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the presence of
counsel.

xxx
(3) Any confession or admission obtained in violation of this or Section 17
hereof shall be inadmissible in evidence against him.

Serapio conducted the custodial investigation on petitioner the day following

his arrest. No lawyer was present and Serapio could not have requested a
lawyer to assist petitioner as no PAO lawyer was then available. Thus, even
if petitioner consented to the investigation and waived his rights to remain
silent and to counsel, the waiver was invalid as it was not in writing, neither
was it executed in the presence of counsel.

Even granting ex gratia that petitioner was in possession of a grenade, the

arrest and search of petitioner were invalid, as will be discussed below.

The general rule as regards arrests, searches and seizures is that a warrant
is needed in order to validly effect the same.31 The Constitutional prohibition
against unreasonable arrests, searches and seizures refers to those effected
without a validly issued warrant,32 subject to certain exceptions. As regards
valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules
of Court, which reads, in part:

Sec. 5. -- Arrest, without warrant; when lawful -- A peace officer or a private

person may, without a warrant, arrest a person:

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

actually committing, or is attempting to commit an offense;

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

(c) When the person to be arrested is a prisoner who has escaped ***

A warrantless arrest under the circumstances contemplated under Section

5(a) has been denominated as one "in flagrante delicto," while that under
Section 5(b) has been described as a "hot pursuit" arrest.

Turning to valid warrantless searches, they are limited to the following: (1)
customs searches; (2) search of moving vehicles; (3) seizure of evidence in
plain view; (4) consent searches;33 (5) a search incidental to a lawful
arrest;34 and (6) a "stop and frisk."35chanroblesvirtuallawlibrary

In the instant petition, the trial court validated the warrantless search as a
stop and frisk with the seizure of the grenade from the accused [as] an
appropriate incident to his arrest, hence necessitating a brief discussion on
the nature of these exceptions to the warrant requirement.

At the outset, we note that the trial court confused the concepts of a "stop-
and-frisk" and of a search incidental to a lawful arrest. These two types of
warrantless searches differ in terms of the requisite quantum of proof before
they may be validly effected and in their allowable scope.

In a search incidental to a lawful arrest, as the precedent arrest determines

the validity of the incidental search, the legality of the arrest is questioned in
a large majority of these cases, e.g., whether an arrest was merely used as
a pretext for conducting a search.36 In this instance, the law requires that
there first be a lawful arrest before a search can be made -- the process
cannot be reversed.37 At bottom, assuming a valid arrest, the arresting
officer may search the person of the arrestee and the area within which the
latter may reach for a weapon or for evidence to destroy, and seize any
money or property found which was used in the commission of the crime, or
the fruit of the crime, or that which may be used as evidence, or which
might furnish the arrestee with the means of escaping or committing
violence.38cräläwvirtualibräry

Here, there could have been no valid in flagrante delicto or hot pursuit arrest
preceding the search in light of the lack of personal knowledge on the part of
Yu, the arresting officer, or an overt physical act, on the part of petitioner,
indicating that a crime had just been committed, was being committed or
was going to be committed.

Having thus shown the invalidity of the warrantless arrest in this case,
plainly, the search conducted on petitioner could not have been one
incidental to a lawful arrest.

We now proceed to the justification for and allowable scope of a "stop-and-

frisk" as a "limited protective search of outer clothing for weapons," as laid
down in Terry, thus:

We merely hold today that where a police officer observes unusual conduct
which leads him reasonably to conclude in light of his experience that
criminal activity may be afoot and that the persons with whom he is dealing
may be armed and presently dangerous, where in the course of investigating
this behavior he identifies himself as a policeman and makes reasonable
inquiries, and where nothing in the initial stages of the encounter serves to
dispel his reasonable fear for his own or others' safety, he is entitled for the
protection of himself and others in the area to conduct a carefully limited
search of the outer clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a search is a reasonable
search under the Fourth Amendment ***39cräläwvirtualibräry

Other notable points of Terry are that while probable cause is not required to
conduct a "stop and frisk,"40 it nevertheless holds that mere suspicion or a
hunch will not validate a "stop and frisk." A genuine reason must exist, in
light of the police officer's experience and surrounding conditions, to warrant
the belief that the person detained has weapons concealed about
him.41 Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general
interest of effective crime prevention and detection, which underlies the
recognition that a police officer may, under appropriate circumstances and in
an appropriate manner, approach a person for purposes of investigating
possible criminal behavior even without probable cause; and (2) the more
pressing interest of safety and self-preservation which permit the police
officer to take steps to assure himself that the person with whom he deals is
not armed with a deadly weapon that could unexpectedly and fatally be used
against the police officer.

Here, here are at least three (3) reasons why the stop-and-frisk was invalid:

First, we harbor grave doubts as to Yus claim that petitioner was a member
of the group which attempted to bomb Plaza Miranda two days earlier. This
claim is neither supported by any police report or record nor corroborated by
any other police officer who allegedly chased that group. Aside from
impairing Yu's credibility as a witness, this likewise diminishes the probability
that a genuine reason existed so as to arrest and search petitioner. If only to
further tarnish the credibility of Yu's testimony, contrary to his claim that
petitioner and his companions had to be chased before being apprehended,
the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon
arrival of five (5) other police officers, petitioner and his companions were
"immediately collared."

Second, there was nothing in petitioners behavior or conduct which could

have reasonably elicited even mere suspicion other than that his eyes were
moving very fast an observation which leaves us incredulous since Yu and
his teammates were nowhere near petitioner and it was already 6:30 p.m.,
thus presumably dusk. Petitioner and his companions were merely standing
at the corner and were not creating any commotion or trouble, as Yu
explicitly declared on cross-examination:

Q And what were they doing?

A They were merely standing.

Q You are sure of that?

A Yes, sir.

Q And when you saw them standing, there were nothing or they did not
create any commotion?

A None, sir.

Q Neither did you see them create commotion?

A None, sir.42cräläwvirtualibräry

Third, there was at all no ground, probable or otherwise, to believe that

petitioner was armed with a deadly weapon. None was visible to Yu, for as
he admitted, the alleged grenade was discovered inside the front waistline of
petitioner, and from all indications as to the distance between Yu and
petitioner, any telltale bulge, assuming that petitioner was indeed hiding a
grenade, could not have been visible to Yu. In fact, as noted by the trial
court:

When the policemen approached the accused and his companions, they were
not yet aware that a handgrenade was tucked inside his waistline. They did
not see any bulging object in [sic] his person.43chanroblesvirtuallawlibrary

What is unequivocal then in this case are blatant violations of petitioners

rights solemnly guaranteed in Sections 2 and 12(1) of Article III of the
Constitution.

WHEREFORE, the challenged decision of the Seventeenth Division of the

Court of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of
jurisdiction on the part of said Court and, on ground of reasonable doubt,
the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of
Manila is REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby
ACQUITTED and ORDERED immediately released from detention, unless his
further detention is justified for any other lawful cause.

Costs de oficio.

SO ORDERED.

Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug,

Kapunan, Mendoza, Francisco, and Martinez, JJ., concur.
Panganiban,  J., please see separate opinion.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 200334               July 30, 2014

THE PEOPLE OF THE PHILIPPINES, Respondent-Appellee,

vs.
VICTOR COGAED y ROMANA, Accused-Appellant.

DECISION

LEONEN, J.:

The mantle of protection upon one's person and one's effects through Article III, Section
2 of the Constitution is essential to allow citizens to evolve their autonomy and, hence,
to avail themselves of their right to privacy. The alleged compromise with the battle
against dangerous drugs is more apparent than real. Often, the compromise is there
because law enforcers neglect to perform what could have been done to uphold the
Constitution as they pursue those who traffic this scourge of society.

Squarely raised in· this appeal1 is the admissibility of the evidence seized as a result of
a warrantless arrest. The police officers identified the alleged perpetrator through facts
that were not based on their personal knowledge. The information as to the accused’s
whereabouts was sent through a text message. The accusedwho never acted
suspicious was identified by a driver. The bag that allegedly contained the contraband
was required to be opened under intimidating circumstances and without the accused
having been fully apprised of his rights. This was not a reasonable search within the
meaning of the Constitution. There was no reasonable suspicion that would allow a
legitimate "stop and frisk" action. The alleged waiver of rights by the accused was not
done intelligently, knowingly, and without improper pressure or coercion.

The evidence, therefore, used against the accused should be excluded consistent with
Article III, Section 3 (2) of the Constitution. There being no possible admissible
evidence, the accused should be acquitted.

According to the prosecution, at about 6:00 a.m. of November 25, 2005, Police Senior
Inspector Sofronio Bayan (PSI Bayan) of the San Gabriel Police Station in San
Gabriel,La Union, "received a text message from an unidentified civilian informer" 2 that
one Marvin Buya (also known as Marvin Bugat) "[would]be transporting
marijuana"3 from Barangay LunOy, San Gabriel, La Union to the Poblacion of San
Gabriel, La Union.4

PSI Bayan organized checkpoints in order "to intercept the suspect." 5 PSI Bayan
ordered SPO1 Jaime Taracatac, Jr. (SPO1 Taracatac), a member of the San Gabriel
Police, to set up a checkpoint in the waiting area of passengers from San Gabriel bound
for San Fernando City.6 A passenger jeepney from Barangay Lun-Oy arrived at SPO1
Taracatac’s checkpoint.7 The jeepney driver disembarked and signalled to SPO1
Taracatac indicating the two male passengers who were carrying marijuana. 8 SPO1
Taracatac approached the two male passengers who were later identified as Victor
RomanaCogaed and Santiago Sacpa Dayao.9 Cogaed was carrying a blue bag and a
sack while Dayao was holding a yellow bag.10

SPO1 Taracatac asked Cogaed and Dayao about the contents of their bags. 11 Cogaed
and Dayao told SPO1 Taracatac that they did not know since they were transporting the
bags as a favor for their barriomatenamed Marvin. 12 After this exchange, Cogaed
opened the blue bag, revealing three bricks of what looked like marijuana. 13 Cogaed
then muttered, "nagloko daytoy nga Marvinen, kastoymet gayam ti nagyanna,"which
translates to "Marvin is a fool, this is what [is] contained in the bag." 14 "SPO1 Taracatac
arrested [Cogaed] and . . . Dayao and brought them to the police station." 15 Cogaed and
Dayao "were still carrying their respective bags" 16 inside the station.17

While at the police station, the Chief of Police and Investigator PO3 Stanley Campit
(PO3 Campit) requested Cogaed and Dayao to empty their bags. 18 Inside Cogaed’s
sack was "four (4) rolled pieces of suspected marijuana fruiting tops," 19 and inside
Dayao’s yellow bag was a brick of suspected marijuana. 20

PO3 Campit prepared the suspected marijuana for laboratory testing. 21 PSI Bayan
personally delivered the suspected marijuana to the PNP Crime Laboratory. 22 Forensic
Chemical Officer Police Inspector Valeriano Panem Laya II performed the tests and
found that the objects obtained were indeed marijuana. 23 The marijuana collected from
Cogaed’s blue bag had a total weight of 8,091.5 grams. 24 The marijuana from Cogaed’s
sack weighed 4,246.1 grams.25 The marijuana collected from Dayao’s bag weighed
5,092 grams.26 A total of 17,429.6 grams werecollected from Cogaed’s and Dayao’s
bags.27

According to Cogaed’s testimony during trial, he was at Balbalayan, La Union, "waiting

for a jeepney to take him"28 to the Poblacion of San Gabriel so he could buy
pesticide.29 He boarded a jeepney and recognized Dayao, his younger brother’s
friend.30 Upon arrival at the Poblacion of San Gabriel, Dayao and Cogaed alighted from
the jeepney.31 Dayao allegedly "asked for [Cogaed’s] help in carrying his things, which
included a travelling bag and a sack." 32 Cogaed agreed because they were both going
to the market.33 This was when SPO1 Taracatac approached them, and when SPO1
Taracatac asked Cogaed what was inside the bags, Cogaed replied that he did not
know.34 SPO1 Taracatac then talked to Dayao, however, Cogaed was not privy to their
conversation.35 Thereafter, SPO1 Taracatac arrested Dayao and Cogaed and brought
them to the police station.36 These facts were corroborated by an eyewitness,Teodoro
Nalpu-ot, who was standing across the parking lot where Cogaed was apprehended. 37

At the police station, Cogaed said that "SPO1 Taracatac hit [him] on the head." 38 The
bags were also opened, but Cogaed never knew what was inside. 39

It was only later when Cogaed learned that it was marijuana when he and Dayao were
charged with illegal possession of dangerous drugs under Republic Act No. 9165. 40 The
information against them states:

That on or about the 25th day of November, 2005, in the Municipality of San Gabriel,
Province of La Union, and within the jurisdiction of this Honorable Court, the above-
named accused VICTOR COGAED Y ROMANA and SANTIAGO DAYAO Y SACPA
(who acted with discernment) and JOHN DOE,conspiring, confederating and mutually
helping one another, did then there wilfully, unlawfully, feloniously and knowingly,
without being authorized by law, have in their control, custody and possession dried
marijuana, a dangerous drug, with a total weight of seventeen thousand,four hundred
twenty-nine and sixtenths (17, 429.6) grams.

CONTRARY TO Section 11 (Possession of Dangerous Drugs), Article II, of Republic

Act No. 9165 (otherwise known as the "Comprehensive Dangerous Drugs Act of
2002").41

The case was raffled to Regional Trial Court, Branch 28 of San Fernando City, La
Union.42 Cogaed and Dayao pleaded not guilty. 43 The case was dismissed against
Dayao because he was only 14 years old at that time and was exempt from criminal
liability under the Juvenile Justice and Welfare Act of 2006 or Republic Act No.
9344.44 Trial against Cogaed ensued. In a decision 45 dated May 21, 2008, the Regional
Trial Court found Cogaed guilty. The dispositive portion of the decision states:

WHEREFORE, the Court finds accused Victor Cogaed y Romana GUILTY beyond
reasonable doubt for Violation of Section 11, Article II of Republic Act No. 9165
(otherwise known as the "Comprehensive Dangerous Drugs Act of 2002") and
sentences him to suffer life imprisonment, and to pay a fine of one million pesos (Php
1,000,000.00).46

The trial court judge initiallyfound Cogaed’s arrest illegal considering that "Cogaed at
that time was not, at the moment of his arrest, committing a crime nor was shown that
hewas about to do so or that had just done so. He just alighted from the passenger
jeepney and there was no outward indication that called for his arrest." 47 Since the
arrest was illegal, the warrantless search should also be considered illegal. 48 However,
the trial court stated that notwithstanding the illegality of the arrest, Cogaed "waived his
right to object to such irregularity"49 when "he did not protest when SPO1 Taracatac,
after identifying himself, asked him to open his bag." 50
Cogaed appealed51 the trial court’s decision.However, the Court of Appeals denied his
appeal and affirmed the trial court’s decision. 52 The Court of Appeals found that Cogaed
waived his right against warrantless searches when "[w]ithout any prompting from SPO1
Taracatac, [he] voluntarily opened his bag." 53 Hence, this appeal was filed.

The following errors were assigned by Cogaed in his appellant’s brief:

THE TRIAL COURT GRAVELY ERRED IN ADMITTING THE SEIZED DANGEROUS

DRUGS AS EVIDENCE AGAINST THE ACCUSED-APPELLANT DESPITE BEING
THE RESULT OF AN UNLAWFUL WARRANTLESS SEARCH AND SEIZURE.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELLANT DESPITE THE ARRESTING OFFICER’S NON-COMPLIANCE WITH THE
REQUIREMENTS FOR THE PROPER CUSTODY OF SEIZED DANGEROUS DRUGS
UNDER REPUBLIC ACT NO. 9165.

III

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELLANT DESPITE THE ARRESTING OFFICER’S FAILURE TO PRESERVE THE
INTEGRITY AND EVIDENTIARY VALUE OF THE SEIZED DANGEROUS DRUGS. 54

For our consideration are the following issues: (1) whether there was a valid search and
seizure of marijuana as against the appellant; (2) whether the evidence obtained
through the search should be admitted; and (3) whether there was enough evidence to
sustain the conviction of the accused.

In view of the disposition of this case, we deem that a discussion with respect to the
requirements on the chain of custody of dangerous drugs unnecessary. 55

We find for the accused.

II

The right to privacy is a fundamental right enshrined by implication in our Constitution. It

has many dimensions. One of its dimensions is its protection through the prohibition of
unreasonable searches and seizures in Article III, Section 2 of the Constitution:

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 determinedpersonally 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 provision requires that the court examine with care and diligence whether searches
and seizures are "reasonable." As a general rule, searches conducted with a warrant
that meets all the requirements of this provision are reasonable. This warrant requires
the existence of probable cause that can only be determined by a judge. 56 The
existence of probable cause must be established by the judge after asking searching
questions and answers.57 Probable cause at this stage can only exist if there is an
offense alleged to be committed. Also, the warrant frames the searches done by the law
enforcers. There must be a particular description of the place and the things to be
searched.58

However, there are instances when searches are reasonable even when
warrantless.59 In the Rules of Court, searchesincidental to lawful arrests are allowed
even without a separate warrant.60 This court has taken into account the "uniqueness of
circumstances involved including the purpose of the search or seizure, the presence or
absence of probable cause, the manner in which the search and seizure was made, the
place or thing searched, and the character of the articles procured." 61 The known
jurisprudential instances of reasonable warrantless searches and seizures are:

1. Warrantless search incidental to a lawful arrest. . . ;

2. Seizure of evidence in "plain view," . . . ;

3. Search of a moving vehicle. Highly regulated by the government, the vehicle’s

inherent mobility reduces expectation of privacy especially when its transit in
public thoroughfares furnishes a highly reasonable suspicion amounting to
probable cause that the occupant committed a criminal activity;

4. Consentedwarrantless search;

5. Customs search;

6. Stop and frisk; and

7. Exigent and emergency circumstances.62 (Citations omitted)

III

One of these jurisprudential exceptionsto search warrants is "stop and frisk". "Stop and
frisk" searches are often confused with searches incidental to lawful arrests under the
Rules of Court.63 Searches incidental to a lawful arrest require that a crime be
committed in flagrante delicto, and the search conducted within the vicinity and
withinreach by the person arrested is done to ensure that there are no weapons, as well
as to preserve the evidence.64
On the other hand, "stop and frisk"searches are conducted to prevent the occurrence of
a crime. For instance, the search in Posadas v. Court of Appeals 65 was similar "to a
‘stop and frisk’ situation whose object is either to determine the identity of a suspicious
individual or to maintain the status quomomentarily while the police officer seeks to
obtain more information."66 This court stated that the "stop and frisk" search should be
used "[w]hen dealing with a rapidly unfolding and potentially criminal situation in the city
streets where unarguably there is no time to secure . . . a search warrant." 67

The search involved in this case was initially a "stop and frisk" search, but it did not
comply with all the requirements of reasonability required by the Constitution.

"Stop and frisk" searches (sometimes referred to as Terrysearches 68) are necessary for
law enforcement. That is, law enforcers should be given the legal arsenal to prevent the
commission of offenses. However, this should be balanced with the need to protect the
privacy of citizens in accordance with Article III, Section 2 of the Constitution.

The balance lies in the concept of"suspiciousness" present in the situation where the
police officer finds himself or herself in. This may be undoubtedly based on the
experience ofthe police officer. Experienced police officers have personal experience
dealing with criminals and criminal behavior. Hence, they should have the ability to
discern — based on facts that they themselves observe — whether an individual is
acting in a suspicious manner. Clearly, a basic criterion would be that the police officer,
with his or her personal knowledge, must observe the facts leading to the suspicion of
an illicit act.

In Manalili v. Court of Appeals,69 the police officers were initially informed about a place
frequented by people abusing drugs. 70 When they arrived, one of the police officers saw
a man with "reddish eyes and [who was] walking in a swaying manner." 71 The suspicion
increased when the man avoided the police officers. 72 These observations led the police
officers to conclude that the man was high on drugs. 73 These were sufficient facts
observed by the police officers "to stop[the] petitioner [and] investigate." 74

In People v. Solayao,75 police officers noticed a man who appeared drunk. 76 This man
was also "wearing a camouflage uniform or a jungle suit." 77 Upon seeing the police, the
man fled.78 His flight added to the suspicion.79 After stopping him, the police officers
found an unlicensed "homemade firearm" 80 in his possession.81 This court ruled that
"[u]nder the circumstances, the government agents could not possibly have procured a
search warrant first."82 This was also a valid search.

In these cases, the police officers using their senses observed facts that led to the
suspicion. Seeing a man with reddish eyes and walking in a swaying manner, based on
their experience, is indicative of a person who uses dangerous and illicit drugs. A drunk
civilian in guerrilla wear is probably hiding something as well.

The case of Cogaed was different. He was simply a passenger carrying a bag and
traveling aboarda jeepney. There was nothing suspicious, moreover, criminal, about
riding a jeepney or carrying a bag. The assessment of suspicion was not made by the
police officer but by the jeepney driver. It was the driver who signalled to the police that
Cogaed was "suspicious."

This is supported by the testimony of SPO1 Taracatac himself:

COURT:

Q So you don’t know what was the content while it was still being carried by him in the
passenger jeep?

WITNESS:

A Not yet, Your Honor.83

SPO1 Taracatac likewise stated:

COURT:

Q If the driver did not make a gesture pointing to the accused, did you have reason to
believe that the accused were carrying marijuana?

WITNESS:

A No, Your Honor.84

The jeepney driver had to point toCogaed. He would not have been identified by the
police officers otherwise.

It is the police officer who should observe facts that would lead to a reasonable degree
of suspicion of a person. The police officer should not adopt the suspicion initiated by
another person. This is necessary to justify that the person suspected be stopped and
reasonably searched.85 Anything less than this would be an infringementupon one’s
basic right to security of one’s person and effects.

IV

Normally, "stop and frisk" searches do not give the law enforcer an opportunity to confer
with a judge to determine probable cause. In Posadas v. Court of Appeals, 86 one of the
earliest cases adopting the "stop and frisk" doctrine in Philippine jurisprudence, this
court approximatedthe suspicious circumstances as probable cause:

The probable causeis that when the petitioner acted suspiciously and attempted to flee
with the buri bag there was a probable cause that he was concealing something illegal
in the bag and it was the right and duty of the police officers to inspect the
same.87 (Emphasis supplied)
For warrantless searches, probable cause was defined as "a reasonable ground of
suspicionsupported by circumstances sufficiently strong in themselves to warrant a
cautious man to believe that the person accused is guilty of the offense with which he is
charged."88

Malacat v. Court of Appeals89 clarifies the requirement further. It does not have to be

probable cause,but it cannot be mere suspicion.90 It has to be a "genuine reason"91 to
serve the purposes of the "stop and frisk" exception: 92

Other notable points of Terryare that while probable cause is not required to conduct a
"stop and frisk," it nevertheless holds that mere suspicion or a hunch will not validate a
"stop and frisk." A genuine reason must exist, in light of the police officer’s experience
and surrounding conditions, to warrant the belief that the person detained has weapons
concealed about him.93 (Emphasis supplied, footnotes omitted)

In his dissent for Esquillo v. People,94 Justice Bersamin reminds us that police officers
must not rely on a single suspicious circumstance.95 There should be "presence of more
than oneseemingly innocent activity, which, taken together, warranted a reasonable
inference of criminal activity."96 The Constitution prohibits "unreasonable searches and
seizures."97 Certainly, reliance on only one suspicious circumstance or none at all will
not result in a reasonable search.98

There was not a single suspicious circumstance in this case, and there was no
approximation for the probable cause requirement for warrantless arrest. The person
searched was noteven the person mentioned by the informant. The informant gave the
name of Marvin Buya, and the person searched was Victor Cogaed. Even if it was true
that Cogaed responded by saying that he was transporting the bag to Marvin Buya, this
still remained only as one circumstance. This should not have been enough reason to
search Cogaed and his belongings without a valid search warrant.

Police officers cannot justify unbridled searches and be shielded by this exception,
unless there is compliance with the "genuine reason" requirement and that the search
serves the purpose of protecting the public. As stated in Malacat:

[A] "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime
prevention and detection, which underlies the recognition that a police officer may,
under appropriate circumstances and in an appropriate manner, approach a person for
purposes of investigating possible criminal behavior even without probable cause; and
(2) the more pressing interest of safety and self-preservationwhich permit the police
officer to take steps to assure himself that the person with whom he deals is not armed
with a deadly weapon that could unexpectedly and fatally be used against the police
officer.99 (Emphasis supplied)
The "stop and frisk" searchwas originally limited to outer clothing and for the purpose of
detecting dangerous weapons.100 As in Manalili,101 jurisprudence also allows "stop and
frisk" for cases involving dangerous drugs.

The circumstances of thiscase are analogous to People v. Aruta. 102 In that case, an
informant told the police that a certain "Aling Rosa" would be bringing in drugs from
Baguio City by bus.103 At the bus terminal, the police officers prepared
themselves.104 The informant pointed at a woman crossing the street 105 and identified
her as "Aling Rosa."106 The police apprehended "Aling Rosa," and they alleged that she
allowed them to look inside her bag.107 The bag contained marijuana leaves.108

In Aruta, this court found that the search and seizure conducted was illegal. 109 There
were no suspicious circumstances that preceded Aruta’s arrest and the subsequent
search and seizure.110 It was only the informant that prompted the police to apprehend
her.111 The evidence obtained was not admissible because of the illegal
search.112 Consequently, Aruta was acquitted.113

Arutais almost identical to this case, except that it was the jeepney driver, not the
police’s informant, who informed the police that Cogaed was "suspicious."

The facts in Arutaare also similar to the facts in People v. Aminnudin. 114 Here, the
National Bureau ofInvestigation (NBI) acted upon a tip, naming Aminnudin as somebody
possessing drugs.115 The NBI waited for the vessel to arrive and accosted Aminnudin
while he was disembarking from a boat.116 Like in the case at bar, the NBI inspected
Aminnudin’s bag and found bundles of what turnedout to be marijuana leaves. 117 The
court declared that the searchand seizure was illegal. 118 Aminnudin was acquitted.119

People v. Chua120 also presents almost the same circumstances. In this case, the police
had been receiving information that the accused was distributing drugs in "different
karaoke bars in Angeles City."121 One night, the police received information that thisdrug
dealer would be dealing drugs at the Thunder Inn Hotel so they conducted a
stakeout.122 A car "arrived and parked"123 at the hotel.124The informant told the police that
the man parked at the hotel was dealing drugs. 125 The man alighted from his car.126 He
was carrying a juice box.127 The police immediately apprehended him and discovered
live ammunition and drugs in his person and in the juice box he was holding. 128

Like in Aruta, this court did not find anything unusual or suspicious about Chua’s
situation when the police apprehended him and ruled that "[t]here was no valid‘stop-
and-frisk’."129

VI

None of the other exceptions to warrantless searches exist to allow the evidence to be
admissible.The facts of this case do not qualify as a search incidental to a lawful arrest.
Rule 126, Section 13 of the Rules of Court allows for searches incidental to a lawful
arrest. For there to be a lawful arrest, there should be either a warrant of arrest or a
lawful warrantless arrest as enumerated in Rule 113, Section 5 of the Rules of Court:

Section 5. Arrest without warrant; when lawful. – A peace officer or a private person
may, withouta warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person
to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

The apprehension of Cogaed was not effected with a warrant of arrest. None of the
instances enumerated in Rule 113, Section 5 of the Rules of Court were present
whenthe arrest was made. At the time of his apprehension, Cogaed has not committed,
was not committing, or was about to commit a crime. As in People v. Chua, for a
warrantless arrest of in flagrante delictoto be affected, "two elements must concur: (1)
the person to bearrested must execute anovert act indicating that he has just
committed, is actually committing, or is attempting to commit a crime; and (2) such overt
act is done inthe presence or within the view of the arresting officer." 130 Both elements
were missing when Cogaed was arrested.131 There were no overt acts within plain view
of the police officers that suggested that Cogaed was in possession of drugs at that
time.

Also, Cogaed was not an escapee prisoner that time; hence, he could not have qualified
for the last allowable warrantless arrest.

VII

There can be no valid waiver of Cogaed’s constitutional rights even if we assume that
he did not object when the police asked him to open his bags. As this court previously
stated:

Appellant’s silence should not be lightly taken as consent to such search. The implied
acquiescence to the search, if there was any, could not have been more than mere
passive conformity given under intimidating or coercive circumstances and is thus
considered no consent at all within the purview of the constitutional
guarantee.132 (Citations omitted) Cogaed’s silence or lack of aggressive objection was a
natural reaction to a coercive environment brought about by the police officer’s
excessive intrusion into his private space. The prosecution and the police carry the
burden of showing that the waiver of a constitutional right is one which is knowing,
intelligent, and free from any coercion. In all cases, such waivers are not to be
presumed.

The coercive atmosphere created by the presence of the police officer can be discerned
again from the testimony of SPO1 Taracatac during cross-examination:

ATTY. BINWAG:

Q Now, Mr. witness, you claimed that you only asked them what are the contents of
their bags, is it not?

WITNESS:

A Yes, ma’am.

Q And then without hesitation and voluntarily they just opened their bags, is it not?

A Yes, ma’am.

Q So that there was not any order from you for them to open the bags?

A None, ma’am.

Q Now, Mr. witness when you went near them and asked them what were the contents
ofthe bag, you have not seen any signs of hesitation or fright from them, is it not?

A It seems they were frightened, ma’am.

Q But you actually [claimed] that there was not any hesitation from them in opening the
bags, is it not?

A Yes, ma’am but when I went near them it seems that they were
surprised.133 (Emphasis supplied)

The state of mind of Cogaed was further clarified with SPO1 Taracatac’s responses to
Judge Florendo’s questions:

COURT:

....

Q Did you have eye contact with Cogaed?

A When I [sic] was alighting from the jeepney, Your Honor I observed that he was
somewhat frightened.1âwphi1 He was a little apprehensive and when he was already
stepping down and he put down the bag I asked him, "what’s that," and he answered, "I
don’t know because Marvin only asked me to carry." 134

For a valid waiver by the accused of his or her constitutional right, it is not sufficient that
the police officerintroduce himself or herself, or be known as a police
officer.1âwphi1 The police officer must also inform the person to be searched that any
inaction on his orher part will amount to a waiver of any of his or her objections that the
circumstances do not amount to a reasonable search. The police officer must
communicate this clearly and in a language known to the person who is about to waive
his or her constitutional rights. There must be anassurance given to the police officer
that the accused fully understands his or her rights. The fundamental nature of a
person’s constitutional right to privacy requires no less.

VIII
The Constitution provides:

Any evidence obtained in violation of [the right against unreasonable searches and
seizures] shall be inadmissible for any purpose in any proceeding. 135

Otherwise known as the exclusionary rule or the fruit of the poisonous tree doctrine, this
constitutional provision originated from Stonehill v. Diokno. 136 This rule prohibits the
issuance of general warrants that encourage law enforcers to go on fishing expeditions.
Evidence obtained through unlawful seizures should be excluded as evidence because
it is "the only practical means of enforcing the constitutional injunction against
unreasonable searches and seizures."137 It ensures that the fundamental rights to one’s
person, houses, papers, and effects are not lightly infringed upon and are upheld.

Considering that the prosecution and conviction of Cogaed were founded on the search
of his bags, a pronouncement of the illegality of that search means that there is no
evidence left to convict Cogaed.

Drugs and its illegal traffic are a scourgeto our society. In the fight to eradicate this
menace, law enforcers should be equipped with the resources to be able to perform
their duties better. However, we cannot, in any way, compromise our society’s
fundamental values enshrined in our Constitution. Otherwise, we will be seen as
slowlydismantling the very foundations of the society that we seek to protect.

WHEREFORE, the decisions of the Regional Trial Court, Branch 28, San Fernando
City, La Union and of the Court of Appeals in CA-G.R. CR-HC No. 03394 are hereby
REVERSEDand SET ASIDE. For lack of evidence to establish his guilt beyond
reasonable doubt, accused-appellant VICTOR COGAED Y ROMANA is hereby
ACQUITTED and ordered RELEASED from confinement unless he is being heldfor
some other legal grounds. No costs.
SO ORDERED.

FIRST DIVISION

G.R. No. 212340, August 17, 2016

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GERRJAN MANAGO

Y ACUT, Accused-Appellant.

DECISION

PERLAS-BERNABE, J.:

Before the Court is an ordinary appeal1 filed by accused-appellant Gerrjan

Manago y Acut (Manago) assailing the Decision2 dated May 20, 2013 and the
Resolution3 dated November 6, 2013 of the Court of Appeals (CA) in C.A.-
G.R. CEB-C.R. No. 01342, which affirmed the Decision4 dated March 23,
2009 of the Regional Trial Court of Cebu City, Branch 58 (RTC), in Criminal
Case No. CBU-79707, finding Manago guilty beyond reasonable doubt of
violating Section 11, Article II5 of Republic Act No. (RA) 9165,6 otherwise
known as the "Comprehensive Dangerous Drugs Act of 2002."

The Facts

On April 10, 2007, an Information7 was filed before the RTC, charging

Manago of Possession of Dangerous Drugs, defined and penalized under
Section 11, Article II of RA 9165, the accusatory portion of which
reads:ChanRoblesVirtualawlibrary
That on or about the 16th day of March, 2007, at about 11:50 in the evening,
in the City of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the said accused, with deliberate intent, and without authority of law,
did then and there have in his possession and under his control one (1)
heat-sealed transparent plastic packet of white crystalline substance
weighing 5.85 grams containing Methylamphetamine Hydrochloride [sic], a
dangerous drug, without being authorized by law.

CONTRARY TO LAW.8chanroblesvirtuallawlibrary
According to the prosecution, at around 9:30 in the evening of March 15,
2007, PO3 Antonio Din (PO3 Din) of the Philippine National Police (PNP)
Mobile Patrol Group was waiting to get a haircut at Jonas Borces Beauty
Parlor when two (2) persons entered and declared a hold-up. PO3 Din
identified himself as a police officer and exchanged gun shots with the two
suspects. After the shootout, one of the suspects boarded a motorcycle,
while the other boarded a red Toyota Corolla. The plate numbers of the
vehicles were noted by PO3 Din.9chanrobleslaw

After the incident, PO3 Din received word from Barangay Tanod Florentine
Cano (Cano),10 that the robbery suspects were last seen in Barangay Del Rio
Pit-os. Thus, S/Insp. George Ylanan (S/Insp. Ylanan) conducted an
investigation in the said barangay, and discovered that before the robbery
incident, Manago told Cano that three persons - namely, Rico Lumampas,
Arvin Cadastra, and Allan Sordiano - are his employees in his roasted
chicken business, and they were to stay in Manago's house. Further, upon
verification of the getaway vehicles with the Land Transportation Office, the
police officers found out that the motorcycle was registered in Manago's
name, while the red Toyota Corolla was registered in the name pf Zest-O
Corporation, where Manage worked as a District Sales
Manager.11chanrobleslaw

With all the foregoing information at hand, the police officers, comprised of a
team including PO3 Din and S/Insp. Ylanan, conducted a "hot pursuit"
operation one (1) day after the robbery incident, or on March 16, 2007, by
setting up a checkpoint in Sitio Panagdait. At around 9:30 in the evening of
even date, the red Toyota Corolla, then being driven by Manago, passed
through the checkpoint, prompting the police officers to stop the vehicle. The
police officers then ordered Manago to disembark, and thereafter, conducted
a thorough search of the vehicle. As the search produced no contraband, the
police officers then frisked Manago, resulting in the discovery of one (1)
plastic sachet containing a white crystalline substance suspected to
be methamphetamine hydrochloride or shabu. The police officers seized the
plastic pack, arrested Manago, informed him of his constitutional rights, and
brought him and the plastic pack to their headquarters. Upon reaching the
headquarters, S/Insp. Ylanan turned over the seized plastic pack to PO3 Joel
Taboada, who in turn, prepared a request for a laboratory examination of
the same. SPO1 Felix Gabijan then delivered the said sachet and request to
Forensic Chemist Jude Daniel Mendoza of the PNP Crime Laboratory, who,
after conducting an examination, confirmed that the sachet
contained methamphetamine hydrochloride or shabu.12chanrobleslaw

In his defense, Manago denied possessing the plastic pack recovered by the
police officers. He claimed that at around 11:50 in the evening of March 16,
2007, he was about to start his vehicle and was on his way home from the
office when a pick-up truck stopped in front of his car. Three (3) police
officers armed with long firearms disembarked from the said track. One of
the officers knocked on the door of Manago's vehicle and asked for his
driver's license, to which Manago complied. When the same officer saw
Manago's name on the license, the former uttered "mao na ni (this is him)."
Manago was then ordered to sit at the back of his car as the vehicle was
driven by one of the police officers directly to the Cebu City Police Station.
After arriving at the police station, Manago was interrogated about who the
robbers were and to divulge their whereabouts so that no criminal charges
would be filed against him. Manago claimed that he requested for a phone
call with his lawyer, as well as a copy of the warrant for his arrest, but both
requests went unheeded. After he was dispossessed of his laptop, wallet,
and two (2) mobile phones, he was then photographed and placed in a
detention cell. Thereafter, he was brought to the Cebu City Prosecutor's
Office where he was charged with, among others, illegal possession
of shabu.13chanrobleslaw

Prior to his arraignment, Manago filed a Motion to Dismiss for Lack of

Probable Cause and/or Motion for the Suppression of
Evidence,14 contending, inter alia, that there is neither probable cause
nor prima facie Evidence to conduct an arrest and search on him; as such,
the item seized torn him, i.e., the plastic sachet containing shabu, is
inadmissible in evidence pursuant to the fruit of the poisonous tree
doctrine.15 However, in kn Order16 dated May 31, 2007, the RTC denied the
said motion. The RTC held that while (a) the police officers, through PO3
Din, had no personal knowledge of Manago's involvement in the robbery as
they had to conduct in investigation to identify him as the registered owner
of the motorcycle and (b) there was no in flagrante delicto arrest as Manago
was merely driving and gave no indication that he was committing an
offense, the RTC nevertheless held that there was a valid warrantless search
of a moving vehicle, considering that PO3 Din had probable cause to believe
that Manago was part of the robbery, because the latter was driving the
getaway vehicle used in the March 15, 2007 robbery
incident.17chanrobleslaw

On July 12, 2007, Manago was arraigned with the assistance of counsel and
pleaded not guilty to the charge against him.18chanrobleslaw

During the course of the trial, the contents of the plastic sachet were re-
examined by the National Bureau of Investigation, revealing that out of the
5.7158 grams of white crystalline substance contained in the sachet, only
0.3852 grams is methamphetamine hydrochloride, while the rest is
potassium aluminum sulphate or tawas, which is not a dangerous drug
substance. Thus, Manago applied for and was granted bail.19chanrobleslaw

The RTC Ruling

In a Decision20 dated March 23, 2009, the RTC found Manago guilty beyond
reasonable doubt of possession of 0.3852 grams of shabu and accordingly,
sentenced him to suffer the penalty of imprisonment for a period of twelve
(12) years and one (1) day, as minimum, to fifteen (15) years, as
maximum, and to pay a fine in the amount of P300,000.00.21chanrobleslaw

Echoing its earlier findings in its May 31, 2007 Order, the RTC found that the
police officers conducted a valid warrantless search of a moving vehicle,
considering that PO3 Din positively identified the red Toyota Corolla, then
being driven by Manago, as the getaway vehicle in the March 15, 2007
robbery incident. Thus, the item found in the search, i.e., the plastic sachet
containing shabu obtained from Manago, is admissible in evidence and is
enough to sustain a conviction against him for violation of Section 11, Article
II of RA 9165.22chanrobleslaw

Manago moved for reconsideration23 and applied for bail pending appeal,

which were, however, both denied in an Omnibus Order24 dated May 12,
2009. Aggrieved, Manago appealed his conviction before the
CA.25cralawredchanrobleslaw

The CA Proceedings

Upon Manago's motion to post bail, the CA rendered a Resolution26 dated

August 13, 2010, allowing Manago to post bail in the amount of
P200,000.00, noting that the quantity of the shabu seized from him was only
0.3852 grams, thus bailable, and that the Office of the Solicitor General did
not oppose Manago's motion.27chanrobleslaw

In a Decision28 dated May 20, 2013, the CA affirmed Manago „ conviction in

toto. It held that the police officers conducted a valid hot pursuit operation
against Manago, considering that PO3 Din personally identified him as the
one driving the red Toyota Corolla vehicle used in the March 15, 2007
robbery incident. As such, the CA concluded that the warrantless arrest
conducted against Manago was valid, and consequently, the plastic sachet
seized from him containing shabu is admissible in evidence as it was done
incidental to a lawful arrest.29chanrobleslaw

Undaunted, Manago moved for reconsideration,30 which was denied in a

Resolution31 dated November 6, 2013; hence, the instant appeal.

The Issue Before the Court

The issue for the Court's resolution is whether or not Manage's conviction for
violation of Section 11, Article II of RA 9165 should be upheld.

The Court's Ruling

The appeal is meritorious.

Section 2, Article III32 of the 1987 Constitution mandates that a search and
seizure must be carried out through or on the strength of a judicial
warrant predicated upon the existence of probable cause, absent
which such search and seizure becomes "unreasonable" within the
meaning of the said constitutional provision. To protect the people from
unreasonable searches and seizures, Section 3 (2), Article III33 of the 1987
Constitution provides that evidence obtained and confiscated on the occasion
of such unreasonable searches and seizures are deemed tainted and should
be excluded for being the proverbial fruit of a poisonous tree. In other
words, evidence obtained from unreasonable searches and seizures
shall be inadmissible in evidence for any purpose in any
proceeding.34chanrobleslaw

One of the recognized exceptions to the need of a warrant before a search

may be effected is a search incidental to a lawful arrest. In this instance,
the law requires that there first be a lawful arrest before a search
can be made — the process cannot be reversed.35chanrobleslaw

A lawful arrest may be effected with or without a warrant. With respect to

the latter, the parameters of Section 5, Rule 113 of the Revised Rules of
Criminal Procedure should - as a general rule - be complied
with:ChanRoblesVirtualawlibrary
SEC. 5. Arrest without warrant; when lawful. — A peace officer or a private
person may, without a warrant, arrest a person:

chanRoblesvirtualLawlibrary(a) When, in his presence, the person to be

arrested has committed, is actually committing, or is attempting to commit
an offense;

(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and cralawlawlibrary

(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested
without a warrant shall be forthwith delivered to the nearest police station or
jail and shall be proceeded against in accordance with Section 7 of Rule 112.
Under the foregoing provision, there are three (3) instances when
warrantless arrests may be lawfully effected. These are: (a) an arrest of a
suspect in flagrante delicto; (b) an arrest of a suspect where, based on
personal knowledge of the arresting officer, there is probable
cause that said suspect was the perpetrator of a crime which had
just been committed; and (c) an arrest of a prisoner who has escaped
from custody serving final judgment or temporarily confined during the
pendency of his case or has escaped while being transferred from one
confinement to another.36chanrobleslaw

In warrantless arrests made pursuant to Section 5 (b), it is essential

that the element of personal knowledge must be coupled with the
element of immediacy; otherwise, the arrest may be nullified, and
resultantly, the items yielded through the search incidental thereto will be
rendered inadmissible in consonance with the exclusionary rule of the 1987
Constitution. In Pestilos v. Generoso,37 the Court explained the requirement
of immediacy as follows:ChanRoblesVirtualawlibrary
Based on these discussions, it appears that the Court's appreciation of the
elements that "the offense has just been committed" and "personal
knowledge of facts and circumstances that the person to be arrested;
committed it" depended on the particular circumstances of the case.

However, we note that the element of "personal knowledge of facts or

circumstance" under Section 5 (b), Rule 113 of the Revised Rules of Criminal
Procedure requires clarification.

The phrase covers facts or, in the alternative, circumstances. According to

the Black's Law Dictionary, "circumstances are attendant or accompanying
facts, events or conditions." Circumstances may pertain to events or actions
within the actual perception, personal evaluation or observation of the police
officer at the scene of the crime. Thus, even though the police officer has
not seen someone actually fleeing, he could still make a warrantless arrest
if, based on his personal evaluation of the circumstances at the scene of the
crime, he could determine the existence of probable cause that the person
sought to be arrested has committed the crime. However, the determination
of probable cause and the gathering of facts or circumstances should be
made immediately after the commission of the crime in order to comply with
the element of immediacy.

In other words, the clincher in the element of "personal knowledge of

facts or circumstances" is the required element of immediacy within
which these facts or circumstances should be gathered. This
required time element acts as a safeguard to ensure that the police
officers have gathered the facts or perceived the circumstances
within a very limited time frame. This guarantees that the police
officers would have no time to base their probable cause finding on
facts or circumstances obtained after an exhaustive investigation.

The reason for the element of the immediacy is this - as the time gap from
the commission of the crime to the arrest widens, the pieces of information
gathered are prone to become contaminated and subjected to external
factors, interpretations and hearsay. On the other hand, with the element
of immediacy imposed under Section 5 (b), Rule 113 of the Revised
Rules of Criminal Procedure, the police officer's determination of
probable cause would necessarily be limited to raw or
uncontaminated facts or circumstances, gathered as they were
within a very limited period of time. The same provision adds another
safeguard with the requirement of probable cause as the standard for
evaluating these facts of circumstances before the police officer could effect
a valid warrantless arrest.38 (Emphases and underscoring supplied)
In this case, records reveal that at around 9:30 in the evening of March 15,
2007, PO3 Din personally witnessed a robbery incident while he was waiting
for his turn to have a haircut at Jonas Borces Beauty Parlor. After his brief
shootout with the armed robbers, the latter fled using a motorcycle and a
red Toyota Corolla. Through an investigation and verification made by the
police officers headed by PO3 Din and S/Insp. Ylanan, they were able to: (a)
find out that the armed robbers were staying in Barangay Del Rio Pit-os; and
(b) trace the getaway vehicles to Manago. The next day, or on March 16,
2007, the police officers set up a checkpoint in Sitio Panagdait where, at
around 9:30 in the evening, the red Toyota Corolla being driven by Manago
passed by and was intercepted by the police officers. The police officers then
ordered Manago to disembark the car, and from there, proceeded to search
the vehicle and the body of Manago, which search yielded the plastic sachet
containing shabu. Thereupon, they effected Manago's arrest.

The foregoing circumstances show that while the element of personal

knowledge under Section 5 (b) above was present - given that PO3 Din
actually saw the March 15, 2007 robbery incident and even engaged the
armed robbers in a shootout - the required element of immediacy was not
met. This is because, at the time the police officers effected the warrantless
arrest upon Manago's person, investigation and verification proceedings
were already conducted, which consequently yielded sufficient information
on the suspects of the March 15, 2007 robbery incident. As the Court sees it,
the information the police officers had gathered therefrom would have been
enough for them to secure the necessary warrants against the robbery
suspects. However, they opted to conduct a "hot pursuit" operation which -
considering the lack of immediacy - unfortunately failed to meet the legal
requirements therefor. Thus, there being no valid warrantless arrest under
the "hot pursuit" doctrine, the CA erred in ruling that Manago was lawfully
arrested.

In view of the finding that there was no lawful arrest in this case, the CA
likewise erred in ruling that the incidental search on Manago's vehicle and
body was valid. In fact, the said search was made even before he was
arrested and thus, violated the cardinal rule on searches incidental to lawful
arrests that there first be a lawful arrest before a search can be
made.

For another, the Court similarly finds the RTC's ruling that the police officers
conducted a lawful warrantless search of a moving vehicle on Manago's red
Toyota Corolla untenable.

In Caballes v. People,39 the Court explained the concept of warrantless

searches on moving vehicles:ChanRoblesVirtualawlibrary
Highly regulated by the government, the vehicle's inherent mobility reduces
expectation of privacy especially when its transit in public thoroughfares
furnishes a highly reasonable suspicion amounting to probable cause that
the occupant committed a criminal activity. Thus, the rules governing
search and seizure have over the years been steadily liberalized
whenever a moving vehicle is the object of the search on the basis of
practicality. This is so considering that before a warrant could be obtained,
the place, things and persons to be searched must be described to the
satisfaction of the issuing judge - a requirement which borders on the
impossible in the case of smuggling effected by the use of a moving vehicle
that can transport contraband from one place to another with impunity. We
might add that a warrantless search of a moving vehicle is justified
on the ground that it is not practicable to secure a warrant because
the vehicle can be quickly moved out of the locality or jurisdiction in
which the warrant must be sought. Searches without warrant of
automobiles is also allowed for the purpose of preventing violations of
smuggling or immigration laws, provided such searches are made at borders
or "constructive borders" like checkpoints near the boundary lines of the
State.40 (Emphases and underscoring supplied)
A variant of searching moving vehicles without a warrant may entail
the setup of military or police checkpoints - as in this case - which,
based on jurisprudence, are not illegal per se for as long as its
necessity is justified by the exigencies of public order and conducted
in a way least intrusive to motorists.41 Case law further states that
routine inspections in checkpoints are not regarded as violative of an
individual's right against unreasonable searches, and thus, permissible, if
limited to the following: (a) where the officer merely draws aside the curtain
of a vacant vehicle which is parked on the public fair grounds; (b) simply
looks into a vehicle; (c) flashes a light therein without opening the car's
doors; (d) where the occupants are not subjected to a physical or body
search; (e) where the inspection of the Vehicles is limited to a visual search
or visual inspection; and (e) where the routine check is conducted in a fixed
area.42chanrobleslaw

It is well to clarify, however, that routine inspections do not give police

officers carte blanche discretion to conduct warrantless searches in the
absence of probable cause. When a vehicle is stopped and subjected to an
extensive search - as opposed to a mere routine inspection - such a
warrantless search has been held to be valid only as long as the officers
conducting the search have reasonable or probable cause to believe before
the search that they will find the instrumentality or evidence pertaining to a
crime, in the vehicle to be searched.43chanrobleslaw

In the case at bar, it should be reiterated that the police officers had already
conducted a thorough investigation and verification proceedings, which
yielded, among others: (a) the identities of the robbery suspects; (b) the
place where they reside; and (c) the ownership of the getaway vehicles used
in the robbery, i.e., the motorcycle and the red Toyota Corolla. As adverted
to earlier, these pieces of information were already enough for said police
officers to secure the necessary warrants to accost the robbery suspects.
Consequently, there was no longer any exigent circumstance that would
have justified the necessity of setting up the checkpoint in this case for the
purpose of searching the subject vehicle. In addition, it is well to point out
that the checkpoint was arranged for the targeted arrest of Manago, who
was already identified as the culprit of the robbery incident. In this regard, it
cannot, therefore, be said that the checkpoint was meant to conduct a
routinary and indiscriminate search of moving vehicles. Rather, it was used
as a subterfuge to put into force the capture of the fleeing suspect.
Unfortunately, this setup cannot take the place of - nor skirt the legal
requirement of - procuring a valid search/arrest warrant given the
circumstances of this case. Hence, the search conducted on the red Toyota
Corolla and on the person of its driver, Manago, was unlawful.

In fine, Manago's warrantless arrest, and the search incidental thereto,

including that of his moving vehicle were all unreasonable and unlawful. In
consequence, the shabu seized from him is rendered inadmissible in
evidence pursuant to the exclusionary rule under Section 3 (2), Article III of
the 1987 Constitution. Since the confiscated shabu is the very corpus
delicti of the crime charged, Manago must necessarily be acquitted and
exonerated from criminal liability.44chanrobleslaw

WHEREFORE, the appeal is GRANTED. The Decision dated May 20, 2013
and the Resolution dated November 6, 2013 of the Court of Appeals in C.A.-
G.R. CEB-C.R. No. 01342 are hereby REVERSED and SET ASIDE.
Accordingly, accused-appellant Gerrjan Manago y Acut as
hereby ACQUITTED of the crime of violation of Section 11, Article II of
Republic Act No. 9165.

SO ORDERED.chanRoblesvirtualLawlibrary

SECOND DIVISION

G.R. No. 200370, June 07, 2017

MARIO VERIDIANO Y SAPI, Petitioner, v. PEOPLE OF THE

PHILIPPINES, Respondent.

DECISION

LEONEN, J.:

Through this Petition for Review on Certiorari,1 Mario Veridiano y Sapi

(Veridiano) assails the Decision2 dated November 18, 2011 and
Resolution3 dated January 25, 2012 of the Court of Appeals in CA-G.R. CR
No. 33588, which affirmed his conviction for violation of Article II, Section 11
of Republic Act No. 9165.4

In an Information filed before the Regional Trial Court of San Pablo City,
Laguna,5 Veridiano was charged with the crime of illegal possession of
dangerous drugs. The Information read:

That on or about January 15, 2008, in the Municipality of Nagcarlan,

Province of Laguna and within the jurisdiction of this Honorable Court, the
above-named accused, not being permitted or authorized by law, did then
and there willfully, unlawfully and feloniously have in his possession, control
and custody one (1) small heat-sealed transparent plastic sachet containing
2.72 grams of dried marijuana leaves, a dangerous drug.

CONTRARY TO LAW.6
On October 9, 2008, Veridiano was arraigned. He pleaded not guilty to the
offense charged. Trial on the merits ensued.7

During trial, the prosecution presented PO1 Guillermo Cabello (PO1 Cabello)
and PO1 Daniel Solano (PO1 Solano) to testify.8

According to the prosecution, at about 7:20 a.m. of January 15, 2008, a

concerned citizen called a certain PO3 Esteves, police radio operator of the
Nagcarlan Police Station, informing him that a certain alias "Baho," who was
later identified as Veridiano, was on the way to San Pablo City to obtain
illegal drugs.9

PO3 Esteves immediately relayed the information to PO1 Cabello and PO2
Alvin Vergara (PO2 Vergara) who were both on duty.10 Chief of Police June
Urquia instructed PO1 Cabello and PO2 Vergara to set up a checkpoint at
Barangay Taytay, Nagcarlan, Laguna.11

The police officers at the checkpoint personally knew Veridiano. They

allowed some vehicles to pass through after checking that he was not on
board.12 At around 10:00 a.m., they chanced upon Veridiano inside a
passenger jeepney coming from San Pablo, Laguna.13 They flagged down the
jeepney and asked the passengers to disembark.14 The police officers
instructed the passengers to raise their t-shirts to check for possible
concealed weapons and to remove the contents of their pockets.15

The police officers recovered from Veridiano "a tea bag containing what
appeared to be marijuana."16 PO1 Cabello confiscated the tea bag and
marked it with his initials.17 Veridiano was arrested and apprised of his
constitutional rights.18 He was then brought to the police station.19

At the police station, PO1 Cabello turned over the seized tea bag to PO1
Solano, who also placed his initials.20 PO1 Solano then made a laboratory
examination request, which he personally brought with the seized tea bag to
the Philippine National Police Crime Laboratory.21 The contents of the tea bag
tested positive for marijuana.22

For his defense, Veridiano testified that he went to the fiesta in San Pablo
City on January 15, 2008.23 After participating in the festivities, he decided
to go home and took a passenger jeepney bound for Nagcarlan.24 At around
10:00 a.m., the jeepney passed a police checkpoint in Barangay Taytay,
Nagcarlan.25 Veridiano noticed that the jeepney was being followed by three
(3) motorcycles, each with two (2) passengers in civilian attire.26

When the jeepney reached Barangay Buboy, Nagcarlan, the motorcyclists

flagged down the jeepney.27 Two (2) armed men boarded the jeepney and
frisked Veridiano.28 However, they found nothing on his person.29 Still,
Veridiano was accosted and brought to the police station where he was
informed that "illegal drug was . . . found in his possession."30

In the Decision dated July 16, 2010,31 the Regional Trial Court found
Veridiano guilty beyond reasonable doubt for the crime of illegal possession
of marijuana. Accordingly, he was sentenced to suffer a penalty of
imprisonment of twelve (12) years and one (1) day, as minimum, to twenty
(20) years, as maximum, and to pay a fine of P300,000.00.32

Veridiano appealed the decision of the trial court asserting that "he was
illegally arrested."33 He argued that the tea bag containing marijuana is
"inadmissible in evidence [for] being the 'fruit of a poisonous
tree.'"34 Veridiano further argued that the police officers failed to comply
with the rule on chain of custody.35

On the other hand, the prosecution asserted that "[t]he legality of an arrest
affects only the jurisdiction of the court over [the person of the
accused]."36 Thus, by entering his plea, Veridiano waived his right to
question any irregularity in his arrest.37 With regard to the alleged illegal
warrantless search conducted by the police officers, the prosecution argued
that Veridiano's "submissive deportment at the time of the search" indicated
that he consented to the warrantless search.38

On November 18, 2011, the Court of Appeals rendered a Decision39 affirming

the guilt of Veridiano.40

The Court of Appeals found that "Veridiano was caught in flagrante delicto"
of having marijuana in his possession.41 Assuming that he was illegally
arrested, Veridiano waived his right to question any irregularity that may
have attended his arrest when he entered his plea and submitted himself to
the jurisdiction of the court.42 Furthermore, the Court of Appeals held that
Veridiano consented to the warrantless search because he did not protest
when the police asked him to remove the contents of his pocket.43

Veridiano moved for reconsideration, which was denied in the Resolution

dated January 25, 2012.44

On March 16, 2012, Veridiano filed a Petition for Review on Certiorari.45

Petitioner argues that the tea bag containing marijuana leaves was seized in
violation of his right against unreasonable searches and seizures.46 He
asserts that his arrest was illegal.47 Petitioner was merely seated inside the
jeepney at the time of his apprehension. He did not act in any manner that
would give the police officers reasonable ground to believe that he had just
committed a crime or that he was committing a crime.48 Petitioner also
asserts that reliable information is insufficient to constitute probable cause
that would support a valid warrantless arrest.49

Since his arrest was illegal, petitioner argues that "the accompanying
[warrantless] search was likewise illegal."50 Hence, under Article III, Section
2,51 in relation to Article III, Section 3(2)52 of the Constitution, the seized tea
bag containing marijuana is "inadmissible in evidence [for] being the fruit of
a poisonous tree."53

Nevertheless, assuming that the seized tea bag containing marijuana is

admissible in evidence, petitioner contends that the prosecution failed to
preserve its integrity.54 The apprehending team did not strictly comply with
the rule on chain of custody under Section 21 of the Implementing Rules and
Regulations of Republic Act No. 9165.55

In a Resolution dated June 13, 2012, this Court required respondent to file a
comment on the petition.56 In the Manifestation and Motion dated August 1,
2012,57 respondent stated that it would no longer file a comment.

The following issues are for this Court's resolution:

First, whether there was a valid warrantless arrest;

Second, whether there was a valid warrantless search against petitioner;

and

Lastly, whether there is enough evidence to sustain petitioner's conviction

for illegal possession of dangerous drugs.

The Petition is granted.

The invalidity of an arrest leads to several consequences among which are:

(a) the failure to acquire jurisdiction over the person of an accused; (b)
criminal liability of law enforcers for illegal arrest; and (c) any search
incident to the arrest becomes invalid thus rendering the evidence acquired
as constitutionally inadmissible.

Lack of jurisdiction over the person of an accused as a result of an invalid

arrest must be raised through a motion to quash before an accused enters
his or her plea. Otherwise, the objection is deemed waived and an accused is
"estopped from questioning the legality of his [or her] arrest."58

The voluntary submission of an accused to the jurisdiction of the court and

his or her active participation during trial cures any defect or irregularity that
may have attended an arrest.59 The reason for this rule is that "the legality
of an arrest affects only the jurisdiction of the court over the person of the
accused."60

Nevertheless, failure to timely object to the illegality of an arrest does not

preclude an accused from questioning the admissibility of evidence
seized.61 The inadmissibility of the evidence is not affected when an accused
fails to question the court's jurisdiction over his or her person in a timely
manner. Jurisdiction over the person of an accused and the constitutional
inadmissibility of evidence are separate and mutually exclusive
consequences of an illegal arrest.

As a component of the right to privacy,62 the fundamental right against

unlawful searches and seizures is guaranteed by no less than the
Constitution. Article III, Section 2 of the Constitution
provides:chanRoblesvirtualLawlibrary
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.63
To underscore the importance of an individual's right against unlawful
searches and seizures, Article III, Section 3(2) of the Constitution considers
any evidence obtained in violation of this right as inadmissible.64

The Constitutional guarantee does not prohibit all forms of searches and
seizures.65 It is only directed against those that are
unreasonable.66 Conversely, reasonable searches and seizures fall outside
the scope of the prohibition and are not forbidden.67

In People v. Aruta,68 this Court explained that the language of the

Constitution implies that "searches and seizures are normally unreasonable
unless authorized by a validly issued search warrant or warrant of
arrest."69 The requirements of a valid search warrant are laid down in Article
III, Section 2 of the Constitution and reiterated in Rule 126, Section 4 of the
Rules on Criminal Procedure.70

However, People v. Cogaed71 clarified that there are exceptional

circumstances "when searches are reasonable even when warrantless."72 The
following are recognized instances of permissible warrantless searches laid
down in jurisprudence: (1) a "warrantless search incidental to a lawful
arrest,"73 (2) search of "evidence in 'plain view,'" (3) "search of a moving
vehicle," (4) "consented warrantless search[es]," (5) "customs search," (6)
"stop and frisk," and (7) "exigent and emergency circumstances."74
There is no hard and fast rule in determining when a search and seizure is
reasonable. In any given situation, "[w]hat constitutes a reasonable . . .
search . . . is purely a judicial question," the resolution of which depends
upon the unique and distinct factual circumstances.75 This may involve an
inquiry into "the purpose of the search or seizure, the presence or absence
of probable cause, the manner in which the search and seizure was made,
the place or thing searched, and the character of the articles procured."76

II

Pertinent to the resolution of this case is the determination of whether the

warrantless search was incidental to a lawful arrest. The Court of Appeals
concluded that petitioner was caught in flagrante delicto of having marijuana
in his possession making the warrantless search lawful.77

This Court disagrees. Petitioner's warrantless arrest was unlawful.

A search incidental to a lawful arrest requires that there must first be a

lawful arrest before a search is made. Otherwise stated, a lawful arrest must
precede the search; "the process cannot be reversed."78 For there to be a
lawful arrest, law enforcers must be armed with a valid warrant.
Nevertheless, an arrest may also be effected without a warrant.

There are three (3) grounds that will justify a warrantless arrest. Rule 113,
Section 5 of the Revised Rules of Criminal Procedure
provides:chanRoblesvirtualLawlibrary
Section 5. Arrest Without Warrant; When Lawful. — A peace officer or a
private person may, without a warrant, arrest a
person:chanRoblesvirtualLawlibrary
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
The first kind of warrantless arrest is known as an in flagrante delicto arrest.
The validity of this warrantless arrest requires compliance with the overt act
test79 as explained in Cogaed:chanRoblesvirtualLawlibrary
[F]or a warrantless arrest of in flagrante delicto to be affected, "two
elements must concur: (1) the person to be arrested must execute an overt
act indicating that he [or she] has just committed, is actually committing, or
is attempting to commit a crime; and (2) such overt act is done in the
presence or within the view of the arresting officer."80
Failure to comply with the overt act test renders an in flagrante
delicto arrest constitutionally infirm. In Cogaed, the warrantless arrest was
invalidated as an in flagrante delicto arrest because the accused did not
exhibit an overt act within the view of the police officers suggesting that he
was in possession of illegal drugs at the time he was apprehended.81

The warrantless search in People v. Racho82 was also considered

unlawful.83 The police officers received information that a man was in
possession of illegal drugs and was on board a Genesis bus bound for Baler,
Aurora. The informant added that the man was "wearing a red and white
striped [t]-shirt."84 The police officers waited for the bus along the national
highway.85 When the bus arrived, Jack Racho (Racho) disembarked and
waited along the highway for a tricycle.86 Suddenly, the police officers
approached him and invited him to the police station since he was suspected
of having shabu in his possession.87 As Racho pulled out his hands from his
pocket, a white envelope fell yielding a sachet of shabu.88

In holding that the warrantless search was invalid, this Court observed that
Racho was not "committing a crime in the presence of the police officers" at
the time he was apprehended.89 Moreover, Racho's arrest was solely based
on a tip.90 Although there are cases stating that reliable information is
sufficient to justify a warrantless search incidental to a lawful arrest, they
were covered under the other exceptions to the rule on warrantless
searches.91

Rule 113, Section 5(b) of the Rules of Court pertains to a hot pursuit
arrest.92 The rule requires that an offense has just been committed. It
connotes "immediacy in point of time."93 That a crime was in fact committed
does not automatically bring the case under this rule.94 An arrest under Rule
113, Section 5(b) of the Rules of Court entails a time element from the
moment the crime is committed up to the point of arrest.

Law enforcers need not personally witness the commission of a crime.

However, they must have personal knowledge of facts and circumstances
indicating that the person sought to be arrested committed it.

People v. Gerente95 illustrates a valid arrest under Rule 113, Section 5(b) of

the Rules of Court. In Gerente, the accused was convicted for murder and
for violation of Republic Act No. 6425.96 He assailed the admissibility of dried
marijuana leaves as evidence on the ground that they were allegedly seized
from him pursuant to a warrantless arrest.97 On appeal, the accused's
conviction was affirmed.98 This Court ruled that the warrantless arrest was
justified under Rule 113, Section 5(b) of the Rules of Court. The police
officers had personal knowledge of facts and circumstances indicating that
the accused killed the victim:chanRoblesvirtualLawlibrary
The policemen arrested Gerente only some three (3) hours after Gerente
and his companions had killed Blace. They saw Blace dead in the hospital
and when they inspected the scene of the crime, they found the instruments
of death: a piece of wood and a concrete hollow block which the killers had
used to bludgeon him to death. The eye-witness, Edna Edwina Reyes,
reported the happening to the policemen and pinpointed her neighbor,
Gerente, as one of the killers. Under those circumstances, since the
policemen had personal knowledge of the violent death of Blace and of facts
indicating that Gerente and two others had killed him, they could lawfully
arrest Gerente without a warrant. If they had postponed his arrest until they
could obtain a warrant, he would have fled the law as his two companions
did.99 (Emphasis supplied)
The requirement that law enforcers must have personal knowledge of facts
surrounding the commission of an offense was underscored in In Re Salibo
v. Warden.100

In Re Salibo involved a petition for habeas corpus. The police officers

suspected Datukan Salibo (Salibo) as one (1) of the accused in the
Maguindano Massacre.101 Salibo presented himself before the authorities to
clear his name. Despite his explanation, Salibo was apprehended and
detained.102 In granting the petition, this Court pointed out that Salibo was
not restrained under a lawful court process or order.103 Furthermore, he was
not arrested pursuant to a valid warrantless arrest:104
It is undisputed that petitioner Salibo presented himself before the Datu
Hofer Police Station to clear his name and to prove that he is not the
accused Butukan S. Malang. When petitioner Salibo was in the presence of
the police officers of Datu Hofer Police Station, he was neither committing
nor attempting to commit an offense. The police officers had no personal
knowledge of any offense that he might have committed. Petitioner Salibo
was also not an escapee prisoner.105 (Emphasis supplied)
In this case, petitioner's arrest could not be justified as an in flagrante
delicto arrest under Rule 113, Section 5(a) of the Rules of Court. He was not
committing a crime at the checkpoint. Petitioner was merely a passenger
who did not exhibit any unusual conduct in the presence of the law enforcers
that would incite suspicion. In effecting the warrantless arrest, the police
officers relied solely on the tip they received. Reliable information alone is
insufficient to support a warrantless arrest absent any overt act from the
person to be arrested indicating that a crime has just been committed, was
being committed, or is about to be committed.106

The warrantless arrest cannot likewise be justified under Rule 113, Section
5(b) of the Revised Rules of Criminal Procedure. The law enforcers had no
personal knowledge of any fact or circumstance indicating that petitioner had
just committed an offense.

A hearsay tip by itself does not justify a warrantless arrest. Law enforcers
must have personal knowledge of facts, based on their observation, that the
person sought to be arrested has just committed a crime. This is what gives
rise to probable cause that would justify a warrantless search under Rule
113, Section 5(b) of the Revised Rules of Criminal Procedure.

III

The warrantless search cannot be justified under the reasonable suspicion

requirement in "stop and frisk" searches.

A "stop and frisk" search is defined in People v. Chua107 as "the act of a

police officer to stop a citizen on the street, interrogate him, and pat him for
weapon(s) or contraband."108 Thus, the allowable scope of a "stop and frisk"
search is limited to a "protective search of outer clothing for weapons."109

Although a "stop and frisk" search is a necessary law enforcement measure

specifically directed towards crime prevention, there is a need to safeguard
the right of individuals against unreasonable searches and seizures.110

Law enforcers do not have unbridled discretion in conducting "stop and frisk"
searches. While probable cause is not required, a "stop and frisk" search
cannot be validated on the basis of a suspicion or hunch.111 Law enforcers
must have a genuine reason to believe, based on their experience and the
particular circumstances of each case, that criminal activity may be
afoot.112 Reliance on one (1) suspicious activity alone, or none at all, cannot
produce a reasonable search.113

In Manalili v. Court of Appeals,114 the police officers conducted surveillance

operations in Caloocan City Cemetery, a place reportedly frequented by drug
addicts.115 They chanced upon a male person who had "reddish eyes and
[was] walking in a swaying manner."116 Suspecting that the man was high on
drugs, the police officers approached him, introduced themselves, and asked
him what he was holding.117 However, the man resisted.118 Upon further
investigation, the police officers found marijuana in the man's
possession.119 This Court held that the circumstances of the case gave the
police officers justifiable reason to stop the man and investigate if he was
high on drugs.120

In People v. Solayao,121 the police officers were conducting an intelligence

patrol to verify reports on the presence of armed persons within
Caibiran.122 They met a group of drunk men, one (1) of whom was the
accused in a camouflage uniform.123 When the police officers approached, his
companions fled leaving behind the accused who was told not to run
away.124 One (1) of the police officers introduced himself and seized from the
accused a firearm wrapped in dry coconut leaves.125 This Court likewise
found justifiable reason to stop and frisk the accused when "his companions
fled upon seeing the government agents."126

The "stop and frisk" searches in these two (2) cases were considered valid
because the accused in both cases exhibited overt acts that gave law
enforcers genuine reason to conduct a "stop and frisk" search. In contrast
with Manalili and Solayao, the warrantless search in Cogaed127 was
considered as an invalid "stop and frisk" search because of the absence of a
single suspicious circumstance that would justify a warrantless search.

In Cogaed, the police officers received information that a certain Marvin

Buya would be transporting marijuana.128 A passenger jeepney passed
through the checkpoint set up by the police officers. The driver then
disembarked and signaled that two (2) male passengers were carrying
marijuana.129 The police officers approached the two (2) men, who were later
identified as Victor Cogaed (Cogaed) and Santiago Dayao, and inquired
about the contents of their bags.130

Upon further investigation, the police officers discovered three (3) bricks of
marijuana in Cogaed's bag.131 In holding that the "stop and frisk" search was
invalid, this Court reasoned that "[t]here was not a single suspicious
circumstance" that gave the police officers genuine reason to stop the two
(2) men and search their belongings.132 Cogaed did not exhibit any overt act
indicating that he was in possession of marijuana.133

Similar to Cogaed, petitioner in this case was a mere passenger in a jeepney

who did not exhibit any act that would give police officers reasonable
suspicion to believe that he had drugs in his possession. Reasonable persons
will act in a nervous manner in any check point. There was no evidence to
show that the police had basis or personal knowledge that would reasonably
allow them to infer anything suspicious.

IV
Moreover, petitioner's silence or lack of resistance can hardly be considered
as consent to the warrantless search. Although the right against
unreasonable searches and seizures may be surrendered through a valid
waiver, the prosecution must prove that the waiver was executed with clear
and convincing evidence.134 Consent to a warrantless search and seizure
must be "unequivocal, specific, intelligently given . . . [and unattended] by
duress or coercion."135

The validity of a consented warrantless search is determined by the totality

of the circumstances.136 This may involve an inquiry into the environment in
which the consent was given such as "the presence of coercive police
procedures."137

Mere passive conformity or silence to the warrantless search is only an

implied acquiescence, which amounts to no consent at all.138 In Cogaed, this
Court observed:chanRoblesvirtualLawlibrary
Cogaed's silence or lack of aggressive objection was a natural reaction to a
coercive environment brought about by the police officer's excessive
intrusion into his private space. The prosecution and the police carry the
burden of showing that the waiver of a constitutional right is one which is
knowing, intelligent, and free from any coercion. In all cases, such waivers
are not to be presumed.139
The presence of a coercive environment negates the claim that petitioner
consented to the warrantless search.

Another instance of a valid warrantless search is a search of a moving

vehicle. The rules governing searches and seizures have been liberalized
when the object of a search is a vehicle for practical purposes.140 Police
officers cannot be expected to appear before a judge and apply for a search
warrant when time is of the essence considering the efficiency of vehicles in
facilitating transactions involving contraband or dangerous
articles.141 However, the inherent mobility of vehicles cannot justify all kinds
of searches.142 Law enforcers must act on the basis of probable cause.143

A checkpoint search is a variant of a search of a moving vehicle.144 Due to

the number of cases involving warrantless searches in checkpoints and for
the guidance of law enforcers, it is imperative to discuss the parameters by
which searches in checkpoints should be conducted.

Checkpoints per se are not invalid.145 They are allowed in exceptional

circumstances to protect the lives of individuals and ensure their
safety.146 They are also sanctioned in cases where the government's survival
is in danger.147 Considering that routine checkpoints intrude "on [a]
motorist's right to 'free passage'"148 to a certain extent, they must be
"conducted in a way least intrusive to motorists."149 The extent of routine
inspections must be limited to a visual search. Routine inspections do not
give law enforcers carte blanche to perform warrantless searches.150

In Valmonte v. De Villa,151 this Court clarified that "[f]or as long as the

vehicle is neither searched nor its occupants subjected to a body search, and
the inspection of the vehicle is limited to a visual search, said routine checks
cannot be regarded as violative of an individual's right against unreasonable
search[es]."152 Thus, a search where an "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" is not unreasonable.153

However, an extensive search may be conducted on a vehicle at a

checkpoint when law enforcers have probable cause to believe that the
vehicle's passengers committed a crime or when the vehicle contains
instruments of an offense.154

Thus, routinary and indiscriminate searches of moving vehicles are allowed if

they are limited to a visual search. This holds especially true when the object
of the search is a public vehicle where individuals have a reasonably reduced
expectation of privacy. On the other hand, extensive searches are
permissible only when they are founded upon probable cause. Any evidence
obtained will be subject to the exclusionary principle under the Constitution.

That the object of a warrantless search is allegedly inside a moving vehicle

does not justify an extensive search absent probable cause. Moreover, law
enforcers cannot act solely on the basis of confidential or tipped information.
A tip is still hearsay no matter how reliable it may be. It is not sufficient to
constitute probable cause in the absence of any other circumstance that will
arouse suspicion.

Although this Court has upheld warrantless searches of moving vehicles

based on tipped information, there have been other circumstances that
justified warrantless searches conducted by the authorities.

In People v. Breis,155 apart from the tipped information they received, the

law enforcement agents observed suspicious behavior on the part of the
accused that gave them reasonable ground to believe that a crime was being
committed.156 The accused attempted to alight from the bus after the law
enforcers introduced themselves and inquired about the ownership of a box
which the accused had in their possession.157 In their attempt to leave the
bus, one (1) of the accused physically pushed a law enforcer out of the
way.158 Immediately alighting from a bus that had just left the terminal and
leaving one's belongings behind is unusual conduct.159

In People v. Mariacos,160 a police officer received information that a bag

containing illegal drugs was about to be transported on a passenger
jeepney.161 The bag was marked with "O.K."162 On the basis of the tip, a
police officer conducted surveillance operations on board a jeepney.163 Upon
seeing the bag described to him, he peeked inside and smelled the distinct
odor of marijuana emanating from the bag.164 The tipped information and
the police officer's personal observations gave rise to probable cause that
rendered the warrantless search valid.165

The police officers in People v. Ayangao166 and People v. Libnao167 likewise

received tipped information regarding the transport of illegal drugs.
In Libnao, the police officers had probable cause to arrest the accused based
on their three (3)-month long surveillance operation in the area where the
accused was arrested.168 On the other hand, in Ayangao, the police officers
noticed marijuana leaves protruding through a hole in one (1) of the sacks
carried by the accused.169

In the present case, the extensive search conducted by the police officers
exceeded the allowable limits of warrantless searches. They had no probable
cause to believe that the accused violated any law except for the tip they
received. They did not observe any peculiar activity from the accused that
may either arouse their suspicion or verify the tip. Moreover, the search was
flawed at its inception. The checkpoint was set up to target the arrest of the
accused.

There are different hybrids of reasonable warrantless searches. There are

searches based on reasonable suspicion as in Posadas v. Court of
Appeals170 where this Court justified the warrantless search of the accused
who attempted to flee with a buri bag after the police officers identified
themselves.171

On the other hand, there are reasonable searches because of heightened

security. In Dela Cruz v. People,172 the search conducted on the accused was
considered valid because it was done in accordance with routine security
measures in ports.173 This case, however, should not be construed to apply
to border searches. Border searches are not unreasonable per se;174 there is
a "reasonable reduced expectation of privacy" when travellers pass through
or stop at airports or other ports of travel.175

The warrantless search conducted by the police officers is invalid.

Consequently, the tea bag containing marijuana seized from petitioner is
rendered inadmissible under the exclusionary principle in Article III, Section
3(2) of the Constitution. There being no evidence to support his conviction,
petitioner must be acquitted.

WHEREFORE, the Decision dated July 16, 2010 of the Regional Trial Court
in Criminal Case No. 16976-SP and the Decision dated November 18, 2011
and Resolution dated January 25, 2012 of the Court of Appeals in CA-GR.
CR. No. 33588 are REVERSED and SET ASIDE. Petitioner Mario Veridiano y
Sapi is hereby ACQUITTED and is ordered immediately RELEASED from
confinement unless he is being held for some other lawful cause.

SO ORDERED.

THIRD DIVISION

G.R. No. 213225, April 04, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RENANTE

COMPRADO FBRONOLA, Accused-Appellant.

DECISION

MARTIRES, J.:

This is an appeal from the Decision1 dated 19 May 2014, of the Court of

Appeals (CA) in CA-G.R. CR-HC No. 01156 which affirmed the
Decision2 dated 18 April 2013, of the Regional Trial Court, Branch 25,
Misamis Oriental (RTC), in Criminal Case No. 2011-671 finding Renante
Comprado y Bronola (accused-appellant) guilty of illegal possession of
marijuana.

THE FACTS

On 19 July 2011, accused-appellant was charged with violation of Section

11, Article 2 of Republic Act (R.A.) No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002. The Information reads:
That on July 15, 2011, at more or less eleven o'clock in the evening, along
the national highway, Puerto, Cagayan de Oro City, Philippines and within
the jurisdiction of the Honorable Court, the above-named accused, without
being authorized by law to possess or use any dangerous drugs, did then
and there, wilfully, unlawfully and criminally have in his possession, control
and custody 3,200 grams of dried fruiting tops of suspected marijuana,
which substance, after qualitative examination conducted by the Regional
Crime Laboratory, Office No. 10, Cagayan de Oro City, tested positive for
marijuana, a dangerous drug, with the said accused, knowing the substance
to be a dangerous drug.3
Upon his arraignment on 8 August 2011, accused-appellant pleaded not
guilty to the crime charged. Thereafter, trial on the merits ensued.

Version of the Prosecution

On 15 July 2011, at 6:30 in the evening, a confidential informant (CI) sent a

text message to Police Inspector Dominador Orate, Jr. (P/Insp. Orate), then
Deputy Station Commander of Police Station 6, Puerto, Cagayan de Oro City,
that an alleged courier of marijuana together with a female companion, was
sighted at Cabanglasan, Bukidnon. The alleged courier had in his possession
a backpack containing marijuana and would be traveling from Bukidnon to
Cagayan de Oro City. At 9:30 in the evening, the CI called P/Insp. Orate to
inform him that the alleged drug courier had boarded a bus with body
number .2646 and plate number KVP 988 bound for Cagayan de Oro City.
The CI added that the man would be carrying a backpack in black and violet
colors with the marking "Lowe Alpine." Thus, at about 9:45 in the evening,
the police officers stationed at Police Station 6 put up a checkpoint in front of
the station.4

At 11:00 o'clock in the evening, the policemen stopped the bus bearing the
said body and plate numbers. P/Insp. Orate, Police Officer 3 Teodoro de Oro
(PO3 De Oro), Senior Police Officer 1 Benjamin Jay Reycitez (SPO1
Reycitez), and PO1 Rexie Tenio (PO1 Tenio) boarded the bus and saw a man
matching the description given to them by the CI. The man was seated at
the back of the bus with a backpack placed on his lap. After P/Insp. Orate
asked the man to open the bag, the police officers saw a transparent
cellophane containing dried marijuana leaves.5

SPO1 Reycitez took photos of accused-appellant and the cellophane bag

containing the dried marijuana leaves.6 PO3 De Oro, in the presence of
accused-appellant, marked the bag "RCB-2" and the contents of the bag
"RCB-1."7 Thereafter, PO1 Tenio and PO3 De Oro brought accused-appellant
and the seized bag to the PNP Crime Laboratory for examination.8 On 16 July
2011, at around 1:40 in the morning, Police Senior Inspector Charity
Caceres (PSI Caceres) of the PNP Crime Laboratory Office 10, Cagayan de
Oro City, received the requests for examination and the specimen. PSI
Caceres, after conducting qualitative examination of the specimen, issued
Chemistry Report No. D-253-20119 stating that the dried leaves seized from
accused-appellant were marijuana and which weighed 3,200 grams.

Version of the Defense

Accused-appellant denied ownership of the bag and the marijuana. He
maintains that on 15 July 2011, at around 6:30 in the evening, he and his
girlfriend went to the house of a certain Freddie Nacorda in Aglayan,
Bukidnon, to collect the latter's debt. When they were about to leave,
Nacorda requested him to carry a bag to Cagayan de Oro City

When they reached Malaybalay City, Bukidnon, their vehicle was stopped by
three (3) police officers. All of the passengers were ordered to alight from
the vehicle for baggage inspection. The bag was opened and they saw a
transparent cellophane bag containing marijuana leaves. At around 9:00
o'clock in the evening, accused-appellant, his girlfriend, and the police
officers who arrested them boarded a bus bound for Cagayan de Oro City.

When the bus approached Puerto, Cagayan de Oro City, the police officers
told the bus driver to stop at the checkpoint. The arresting officers took
photos of accused-appellant and his girlfriend inside the bus. They were then
brought to the police station where they were subjected to custodial
investigation without the assistance of counsel.10

The RTC Ruling

In its decision, the RTC found accused-appellant guilty of illegal possession

of marijuana. It held that accused-appellant's uncorroborated claim that he
was merely requested to bring the bag to Cagayan de Oro City, did not
prove his innocence; mere possession of the illegal substance already
consummated the crime and good faith was not even a defense. The RTC did
not lend credence to accused-appellant's claim that he was arrested in
Malaybalay City, Bukidnon, because it was unbelievable that the police
officers would go out of their jurisdiction in Puerto, Cagayan de Oro City, just
to apprehend accused-appellant in Bukidnon. The fallo reads:
WHEREFORE, premises considered, this Court finds the accused RENANTE
COMPRADO y BRONOLA GUILTY BEYOND REASONABLE DOUBT of the
crime defined and penalized under Section 11, [7], Article II of R.A.
No. 9165, as charged in the Information, and hereby sentences him
to suffer the penalty of LIFE IMPRISONMENT, and to pay the Fine of
Five Hundred Thousand Pesos [P500,000.00], without subsidiary
penalty in case of nonpayment of fine.

Let the penalty imposed on the accused be a lesson and an example to all
who have criminal propensity, inclination and proclivity to commit the same
forbidden acts, that crime does not pay, and that the pecuniary gain and
benefit which one can derive from possessing drugs, or other illegal
substance, or from committing any other acts penalized under Republic Act
9165, cannot compensate for the penalty which one will suffer if ever he is
prosecuted and penalized to the full extent of the law.11
Aggrieved, accused-appellant appealed before the CA.

The CA Ruling

In its decision, the CA affirmed the conviction of accused-appellant. It opined

that accused-appellant submitted to the jurisdiction of the court because he
raised no objection as to the irregularity of his arrest before his arraignment.
The CA reasoned that the seized items are admissible in evidence because
the search and seizure of the illegal narcotics were made pursuant to a
search of a moving vehicle. It added that while it was admitted by the
arresting police officers that no representatives from the media and other
personalities required by law were present during the operation and during
the taking of the inventory, noncompliance with Section 21, Article II of R.A.
No. 9165 was not fatal and would not render inadmissible accused-
appellant's arrest or the items seized from him because the prosecution was
able to show that the integrity and evidentiary value of the seized items had
been preserved. The CA disposed the case in this wise:
WHEREFORE, the appeal is DISMISSED. The Judgment dated 18 April 2013
of the Regional Trial Court of Misamis Oriental, 10th Judicial Region, Branch
25 in Criminal Case No. 2011-671 is hereby affirmed in toto.12
Hence, this appeal.

ISSUES

I. Whether accused-appellant's arrest was valid;

II. Whether the seized items are admissible in evidence; and

III. Whether accused-appellant is guilty of the crime charged.

OUR RULING

The Court finds for accused-appellant.

I.

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.13

The Bill of Rights requires that a search and seizure must be carried out with
a judicial warrant; otherwise, any evidence obtained from such warrantless
search is inadmissible for any purpose in any proceeding.14 This proscription,
however, admits of exceptions, namely: 1) Warrantless search incidental to
a lawful arrest; 2) Search of evidence in plain view; 3) Search of a moving
vehicle; 4) Consented warrantless search; 5) Customs search; 6) Stop and
Frisk; and 7) Exigent and emergency circumstances.15

II.

A stop-and-frisk search is often confused with a warrantless search

incidental to a lawful arrest. However, the distinctions between the two have
already been settled by the Court in Malacat v. CA:16
In a search incidental to a lawful arrest, as the precedent arrest determines
the validity of the incidental search, the legality of the arrest is questioned in
a large majority of these cases, e.g., whether an arrest was merely used as
a pretext for conducting a search. In this instance, the law requires that
there first be a lawful arrest before a search can be made - the
process cannot be reversed. At bottom, assuming a valid arrest, the
arresting officer may search the person of the arrestee and the area within
which the latter may reach for a weapon or for evidence to destroy, and
seize any money or property found which was used in the commission of the
crime, or the fruit of the crime, or that which may be used as evidence, or
which might furnish the arrestee with the means of escaping or committing
violence.

xxxx

We now proceed to the justification for and allowable scope of a "stop-and-

frisk" as a "limited protective search of outer clothing for weapons," as laid
down in Terry, thus:
We merely hold today that where a police officer observes unusual
conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons
with whom he is dealing may be armed and presently dangerous,
where in the course of investigating this behavior he identifies himself as a
policeman and makes reasonable inquiries, and where nothing in the initial
stages of the encounter serves to dispel his reasonable fear for his own or
others' safety, he is entitled [to] the protection of himself and others in the
area to conduct a carefully limited search of the outer clothing of such
persons in an attempt to discover weapons which might be used to
assault him. Such a search is a reasonable search under the Fourth
Amendment.
Other notable points of Terry are that while probable cause is not required to
conduct a "stop and frisk" it nevertheless holds that mere suspicion or a
hunch will not validate a "stop and frisk," A genuine reason must exist, in
light of the police officer's experience and surrounding conditions, to
warrant the belief that the person detained has weapons concealed
about him. Finally, a "stop-and-frisk" serves a two-fold interest: (1) the
general interest of effective crime prevention and detection, which underlies
the recognition that a police officer may, under appropriate circumstances
and in an appropriate manner, approach a person for purposes of
investigating possible criminal behavior even without probable cause; and
(2) the more pressing interest of safety and self-preservation which permit
the police officer to take steps to assure himself that the person with whom
he deals is not armed with a deadly weapon that could unexpectedly and
fatally be used against the police officer.17 (emphases supplied and citations
omitted)
III.

A valid stop-and-frisk was illustrated in the cases of Posadas v.

CA (Posadas),18Manalili v. CA (Manalili),19 and People v. Solayao (Solayao)20

In Posadas, two policemen were conducting a surveillance within the

premises of the Rizal Memorial Colleges when they spotted the accused
carrying a buri bag and acting suspiciously. They approached the accused
and identified themselves as police officers. The accused attempted to flee
but his attempt to get away was thwarted by the policemen who then
checked the buri bag wherein they found guns, ammunition, and a
grenade.21

In Manalili, police officers were patrolling the Caloocan City cemetery when
they chanced upon a man who had reddish eyes and was walking in a
swaying manner. When this person tried to avoid the policemen, the latter
approached him and introduced themselves as police officers. The policemen
then asked what he was holding in his hands, but he tried to resist.22

In Solayao, police operatives were carrying out an intelligence patrol to

verify reports on the presence of armed persons roaming around the
barangays of Caibiran, Biliran. Later on, they met the group of accused-
appellant. The police officers became suspicious when they observed that
the men were drunk and that accused-appellant himself was wearing a
camouflage uniform or a jungle suit. Upon seeing the government agents,
accused- appellant's companions fled. Thus, the police officers found
justifiable reason to stop and frisk the accused.23

IV.

On the other hand, the Court found no sufficient justification in the stop and
frisk committed by the police in People v. Cogaed (Cogaed)24 In that case,
the police officers received a message from an informant that one Marvin
Buya would be transporting marijuana from Barangay Lun-Oy, San Gabriel,
La Union, to the Poblacion of San Gabriel, La Union. A checkpoint was set up
and when a passenger jeepney from Barangay Lun-Oy arrived at the
checkpoint, the jeepney driver disembarked and signaled to the police
officers that the two male passengers were carrying marijuana.

SPO1 Taracatac approached the two male passengers who were later
identified as Victor Cogaed and Santiago Dayao. SPO1 Taracatac asked
Cogaed and Dayao what their bags contained. Cogaed and Dayao told SPO1
Taracatac that they did not know since they were transporting the bags as a
favor for. their barrio mate named Marvin, After this exchange, Cogaed
opened the blue bag, revealing three bricks of what looked like marijuana.
The Court, in that case, invalidated the search and seizure ruling that there
were no suspicious circumstances that preceded the arrest. Also, in Cogaed,
there was a discussion of various jurisprudence wherein the Court adjudged
that there was no valid stop-and-frisk:
The circumstances of this case are analogous to People v. Aruta. In that
case, an informant told the police that a certain "Aling Rosa" would be
bringing in drugs from Baguio City by bus. At the bus terminal, the police
officers prepared themselves. The informant pointed at a woman crossing
the street and identified her as "Aling Rosa." The police apprehended "Aling
Rosa," and they alleged that she allowed them to look inside her bag. The
bag contained marijuana leaves.

In Aruta, this court found that the search and seizure conducted was illegal.
There were no suspicious circumstances that preceded Aruta's arrest and the
subsequent search and seizure. It was only the informant that prompted the
police to apprehend her. The evidence obtained was not admissible because
of the illegal search. Consequently, Aruta was acquitted.

Aruta is almost identical to this case, except that it was the jeepney driver,
not the police's informant, who informed the police that Cogaed was
"suspicious."

The facts in Aruta are also similar to the facts in People v. Aminnudin. Here,
the National Bureau of Investigation (NBI) acted upon a tip, naming
Aminnudin as somebody possessing drugs. The NBI waited for the vessel to
arrive and accosted Aminnudin while he was disembarking from a boat. Like
in the case at bar, the NBI inspected Aminnudin's bag and found bundles of
what turned out to be marijuana leaves. The court declared that the search
and seizure was illegal. Aminnudin was acquitted.

xxxx

People v. Chua also presents almost the same circumstances. In this case,

the police had been receiving information that the accused was distributing
drugs in "different karaoke bars in Angeles City." One night, the police
received information that this drug dealer would be dealing drugs at the
Thunder Inn Hotel so they conducted a stakeout. A car "arrived and parked"
at the hotel. The informant told the police that the man parked at the hotel
was dealing drugs. The man alighted from his car. He was carrying a juice
box. The police immediately apprehended him and discovered live
ammunition and drugs in his person and in the juice box he was holding.

Like in Aruta, this court did not find anything unusual or suspicious about
Chua's situation when the police apprehended him and ruled that "[t]here
was no valid 'stop-and-frisk'."25 (citations omitted)
The Court finds that the totality of the circumstances in this case is not
sufficient to incite a genuine reason that would justify a stop-and-frisk
search on accused-appellant. An examination of the records reveals that no
overt physical act could be properly attributed to accused-appellant as to
rouse suspicion in the minds of the arresting officers that he had just
committed, was committing, or was about to commit a crime. P/Insp. Orate
testified as follows:
[Prosecutor Vicente]:
Q: On that date Mr. Witness, at about 6:30 in the evening, what happened, if any?
A: At about 6:30 in the evening, I received an information from our Confidential Informant
reporting that an alleged courier of marijuana were sighted in their place, Sir.
xxxx
[Court]:
Q: Aside from the sighting of this alleged courier of marijuana, what else was relayed to you
if there were anything else?
A: Our Confidential Informant told me that two persons, a male and a female were having in
their possession a black pack containing marijuana, Sir.
xxxx
[Prosecutor Vicente:]
Q: And then, after you received the information through your cellphone, what happened next,
Mr. Witness?
A: So, I prepared a team to conduct an entrapment operation in order to intercept these two
persons, Sir.
Q: You said that the Informant informed you that the subject was still in Cabanglasan?
A: Yes, Sir.
Q: How did you entrap the subject when he was still in Cabanglasan?
A: I am planning to conduct a check point because according to my Confidential
 Informant the subject person is from Gingoog City, Sir.
Q: According to the information, how will he go here?
A: He will be travelling by bus, Sir.
Q: What bus?
A: Bachelor, Sir.
Q: And then, what happened next Mr. Witness?
A: At about 9:30 in the evening my Confidential Informant again called and informed me
that the subject person is now boarding a bus going to Cagayan de Oro City, Sir.
Q: What did he say about the bus, if he said anything, Mr. Witness?
A: My agent was able to identify the body number of the bus, Bus No. 2646.
Q: Bearing Plate No.?
A: Bearing Plate No. KVP 988, Sir.
Q: What was he bringing at that time, according to the information?
A: According to my agent, these two persons were bringing along with them a back pack
color black violet with markings LOWE ALPINE.
Q: Then, what happened next, Mr. Witness?
A: We set up a check point in front of our police station and we waited for the bus to come
over, Sir.
xxxx
Q: About 11 o'clock in the evening, what happened, Mr. Witness?
A: When we sighted the bus we flagged down the bus.
Q: After you flagged down the bus, what happened next?
A: We went on board the said bus, Sir.
xxxx
Q: What happened next?
A: We went to the back of the bus and I saw a man carrying a back pack, a black violet which
was described by the Confidential Informant, the back pack which was placed on his lap.
xxxx
Q: After you saw them, what happened next?
A: We were able to identify the back pack and the description of the courier, so, we asked
him to please open the back pack.
xxxx
Q: What happened next?
A: When he opened the back pack, we found marijuana leaves, the back pack containing
cellophane which the cellophane containing marijuana leaves.26
In his dissent from Esquillo v. People,27 Justice Lucas P. Bersamin
emphasizes that there should be "presence of more than one seemingly
innocent activity from which, taken together, warranted a reasonable
inference of criminal activity." This principle was subsequently recognized in
the recent cases of Cogaed28 and Sanchez v. People29 In the case at bar,
accused-appellant was just a passenger carrying his bag. There is nothing
suspicious much less criminal in said act. Moreover, such circumstance, by
itself, could not have led the arresting officers to believe that accused-
appellant was in possession of marijuana.

V.

As regards search incidental to a lawful arrest, it is worth emphasizing that a

lawful arrest must precede the search of a person and his belongings; the
process cannot be reversed.30 Thus, it becomes imperative to determine
whether accused-appellant's warrantless arrest was valid.

Section 5, Rule 113 of the Rules of Criminal Procedure enumerates the

instances wherein a peace officer or a private person may lawfully arrest a
person even without a warrant:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private
person may, without a warrant, arrest a person:

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

actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
Paragraph (a) of Section 5 is commonly known as an in flagrante
delicto arrest. For a warrantless arrest of an accused caught in flagrante
delicto to be valid, two requisites must concur: (]) the person to be arrested
must execute an overt act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and (2) such overt act is
done in the presence or within the view of the arresting officer.31 On the
other hand, the elements of an arrest effected in hot pursuit under
paragraph (b) of Section 5 (arrest effected in hot pursuit) are: first, an
offense has just been committed; and second, the arresting officer has
probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it.32

Here, without the tip provided by the confidential informant, accused-

appellant could not be said to have executed any overt act in the presence
or within the view of the arresting officers which would indicate that he was
committing the crime of illegal possession of marijuana. Neither did the
arresting officers have personal knowledge of facts indicating that accused-
appellant had just committed an offense. Again, without the tipped
information, accused-appellant would just have been any other bus
passenger who was minding his own business and eager to reach his
destination. It must be remembered that warrantless arrests are mere
exceptions to the constitutional right of a person against unreasonable
searches and seizures, thus, they must be strictly construed against the
government and its agents. While the campaign against proliferation of
illegal drugs is indeed a noble objective, the same must be conducted in a
manner which does not trample upon well-established constitutional rights.
Truly, the end does not justify the means.

VI.

The appellate court, in convicting accused-appellant, reasoned that the

search and seizure is valid because it could be considered as search of a
moving vehicle:
Warrantless search and seizure of moving vehicles are allowed in recognition
of the impracticability of securing a warrant under said circumstances as the
vehicle can be quickly moved out of the locality or jurisdiction in which the
warrant may be sought. Peace officers in such cases, however, are limited to
routine checks where the examination of the vehicle is limited to visual
inspection. When a vehicle is stopped and subjected to an extensive search,
such would be constitutionally permissible only if the officers made it upon
probable cause, i.e., upon a belief, reasonably arising out of circumstances
known to the seizing officer, that an automobile or other vehicle contains
[an] item, article or object which by law is subject to seizure and
destruction.33
The search in this case, however, could not be classified as a search of a
moving vehicle. In this particular type of search, the vehicle is the target
and not a specific person. Further, in search of a moving vehicle, the vehicle
was intentionally used as a means to transport illegal items. It is worthy to
note that the information relayed to the police officers was that a passenger
of that particular bus was carrying marijuana such that when the police
officers boarded the bus, they searched the bag of the person matching the
description given by their informant and not the cargo or contents of the
said bus. Moreover, in this case, it just so happened that the alleged drug
courier was a bus passenger. To extend to such breadth the scope of
searches on moving vehicles would open the floodgates to unbridled
warrantless searches which can be conducted by the mere expedient of
waiting for the target person to ride a motor vehicle, setting up a checkpoint
along the route of that vehicle, and then stopping such vehicle when it
arrives at the checkpoint in order to search the target person.

VII.

Any evidence obtained in violation of the right against unreasonable

searches and seizures shall be inadmissible for any purpose in any
proceeding.34 This exclusionary rule instructs that evidence obtained and
confiscated on the occasion of such unreasonable searches and seizures are
deemed tainted and should be excluded for being the proverbial fruit of a
poisonous tree. In other words, evidence obtained from unreasonable
searches and seizures shall be inadmissible in evidence for any purpose in
any proceeding.35

Without the confiscated marijuana, no evidence is left to convict accused-

appellant. Thus, an acquittal is warranted, despite accused-appellant's
failure to object to the regularity of his arrest before arraignment. The
legality of an arrest affects only the jurisdiction of the court over the person
of the accused. A waiver of an illegal, warrantless arrest does not carry with
it a waiver of the inadmissibility of evidence seized during an illegal
warrantless arrest.36

WHEREFORE, the appeal is GRANTED. The 19 May 2014 Decision of the

Court of Appeals in CA-G.R. CR-HC No. 01156 is REVERSED and SET
ASIDE. Accused-appellant Renante Comprado y Bronola is ACQUITTED and
ordered RELEASED from detention unless he is detained for any other
lawful cause. The Director of the Bureau of Corrections is DIRECTED to
IMPLEMENT this Decision and to report to this Court the action taken
hereon within five (5) days from receipt.

SO ORDERED.

Velasco, Jr., (Chairperson), Bersamin, Leonen, and Gesmundo, JJ., concur.

April 17, 2018

NOTICE OF JUDGMENT

Sirs / Mesdames:

Please take notice that on April 4, 2018 a Decision, copy attached hereto,
was rendered by the Supreme Court in the above-entitled case, the original
of which was received by this Office on April 17, 2018 at 9:15 a.m.

Very truly yours,

(SGD)
WILFREDO V. LAPITAN
  Division Clerk of Court

ORDER OF RELEASE

TO: The Director

      Bureau of Corrections
      1770 Muntinlupa City

GREETINGS;

WHEREAS, the Supreme Court on April 4, 2018 promulgated a Decision in

the above-entitled case, the dispositive portion of which reads:
"WHEREFORE, the appeal is GRANTED. The 19 May 2014 Decision of the
Court of Appeals in CA-G.R. CR-HC No. 01156 is REVERSED and SET
ASIDE. Accused-Appellant Renante Comprado y Bronola is ACQUITTED and
ordered RELEASED from detention unless he is detained for any other
lawful cause. The Director of the Bureau of Corrections is DIRECTED to
IMPLEMENT this Decision and to report to this Court the action taken
hereon within five (5) days from receipt.
SO ORDERED."
NOW, THEREFORE, You are hereby ordered to immediately
release RENANTE COMPRADO Y BRONOLA unless there are other lawful
causes for which he should be further detained, and to return this Order with
the certificate of your proceedings within five (5) days from notice hereof.

GIVEN by the Honorable PRESBITERO J. VELASCO, JR., Chairperson of

the Third Division of the Supreme Court of the Philippines, this 4th day
of April 2018.

G.R. No. 238453

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
JAIME SISON, LEONARDO YANSON, AND ROSALIE BAUTISTA, Accused

LEONARDO YANSON, Accused-Appellant

DECISION

LEONEN, J.:

To be valid, searches must proceed from a warrant issued by a judge. 1 While there are
exceptions to this rule, warrantless searches can only be carried out when founded on
probable cause, or "a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a cautious man to believe
that the person accused is guilty of the offense with which he is charged." 2 There must
be a confluence of several suspicious circumstances. A solitary tip hardly suffices as
probable cause; items seized during warrantless searches based on solitary tips are
inadmissible as evidence.

In offenses involving illegal drugs, narcotics or related items establish the commission of
the crime charged. They are the corpus delicti of the offense.3The inadmissibility of
illegally seized evidence that forms the corpus delicti dooms the prosecution's cause.
Without proof of corpus delicti, no conviction can ensue, and acquittal is inexorable.

This Court resolves an appeal from the assailed Decision 4 of the Court of Appeals,
which affirmed the Regional Trial Court's Joint Judgment 5 convicting accused-appellant
Leonardo Yanson (Yanson) and his co accused, Jaime Sison (Sison) and Rosalie
Bautista (Bautista), for violation of Section 46 of Republic Act No. 6425, as amended,
otherwise known as the Dangerous Drugs Act of 1972.
An Information was filed against Sison, Yanson, and Bautista before the Regional Trial
Court, Branch 16, Kabacan, Cotabato City, charging them with violation of Section 4 of
the Dangerous Drugs Act of 1972:

That on May 31, 1996, in the Municipality of Mlang (sic), Province of Cotabato,
Philippines, the above-named accused, conspiring, confederating, and mutually helping
one another, did then and there willfully, unlawfully, feloniously and knowingly, without
any permit from the authorities, transport, shipped (sic) and carry along with them, in a
vehicle with trademark ISUZU, colored Silver gray, with Plate No. SDC 619, Six (6) kilos
of dried marijuana leaves/Indian Hemp, placed inside two (2) separate sacks, which is
prohibited drugs.

CONTRARY TO LAW.7

On arraignment, all accused pleaded not guilty to the crime charged. Trial then
followed. 8

The prosecution presented six (6) witnesses: 9 (1) Superintendent/Colonel Eriel Mallorca
(Superintendent Mallorca); (2) Senior Police Officer 4 Dionisio Arsenio (SPO4 Arsenio);
(3) PO3 Rafael Biton; (4) SPO3 Isaac Prado (SPO3 Prado); (5) SPO4 Vivencio
Jaurigue; and (6) SPO4 Albert Claudio. The defense presented the three (3) accused as
its witnesses. 10

According to the prosecution, at 8:30 a.m. on May 31, 1996, the Municipal Police
Station of M’lang, North Cotabato received a radio message about a silver gray Isuzu
pickup—with plate number 61911 and carrying three (3) people—that was transporting
marijuana from Pikit. The Chief of Police instructed the alert team to set up a checkpoint
on the riverside police outpost along the road from Matalam to M’lang. 12

At around 9:30 a.m., the tipped vehicle reached the checkpoint and was stopped by the
team of police officers on standby. The team leader asked the driver about inspecting
the vehicle. The driver alighted and, at an officer's prodding, opened the pickup's hood.
Two (2) sacks of marijuana were discovered beside the engine. 13

The vehicle, its driver, and its passengers were brought to the local police station. 14 The
Chief of Police kept the seized sacks. The following day, he and SPO4 Arsenio brought
the seized items to the Davao City Crime Laboratory for examination. The seized sacks
were personally received by Superintendent Mallorca, who then examined the items
and later reported that their contents tested positive for marijuana, weighing a total of
5,637 grams. 15

The driver and the two (2) passengers were later identified as Sison, Bautista, and
Yanson, respectively.16

For the defense, Yanson testified that at around 5:30 a.m. on the day of the incident,
Bautista and Sison fetched him from his house in Poblacion, Surallah, South Cotabato.
They all drove to Midsayap to get something from the house of the Surallah Mayor, who
was Sison's uncle. He claimed, however, that he did not know what that something
was.17 While he stayed in the pickup, Sison and Bautista entered the Mayor's house,
came out 30 minutes later, then returned to their vehicle. They drove off, but stopped in
Kabacan, North Cotabato to eat at a terminal before going home. 18

As they reached M’lang on their way home, they were stopped by police officers who
inspected the vehicle and told them that they were looking for something. After the
inspection, they were brought to the police station where they were detained and
compelled to admit that marijuana was seized from them. 19

Sison testified on substantially the same sequence of events as Yanson, though he

notably recalled that they took the trip to Midsayap at 5:30 p.m. 20

Bautista testified that at around 5:30 to 6:00 a.m. on the day of their arrest, she was
waiting by the roadside for a ride to Marbel (also called Koronadal, South Cotabato) to
purchase goods for resale in her ready-to wear or "RTW" business. While she was
waiting, Sison and Yanson, who were aboard a silver gray Isuzu pickup, saw her and
stopped. Yanson asked about her destination and offered her a ride, which she
accepted. En route to Cotabato City, they passed by Yanson's house where Yanson’s
male friend joined them. After passing a long steel bridge, Yanson told Sison to park
Yanson and his friend alighted and, on foot, crossed the highway and walked ahead
together.21

After 30 minutes, Yanson and his friend returned and told Bautista that they were all
going to return to the place they had just come from Bautista, however, stayed behind
by the highway. After some 15 to 20 minutes, Sison, Yanson, and his companion
returned. When they were about to leave, Yanson's companion disembarked, leaving
her, Yanson, and Sison to take the return trip at around 9:00 a.m. or 10:00 a.m. They
stopped to eat at a carinderia before resuming their trip. 22

Bautista further alleged that when they reached M’lang, they were stopped by police
officers who inspected their vehicle. Sison alighted and opened the vehicle's hood,
exposing the marijuana under it. Upon discovery, they were taken to the police station
along with their vehicle, and there they were detained. 23

In a Joint Judgment24 promulgated on March 11, 2013, the Regional Trial Court

convicted Yanson, Sison, and Bautista of the crime charged. The dispositive portion of
the Joint Judgment read:

WHEREFORE, this Court hereby finds all accused GUILTY beyond reasonable doubt
for VIOLATION OF SECTION 4, REPUBLIC ACT NO. 6425 (Dangerous Drug Act of
1972D.]
This Court hereby sentences each of them to suffer LIFE IMPRISONMENT. In addition,
this Court imposes upon each of them a fine of TWENTY THOUSAND PESOS (Php
20,000.00).

In the service of their sentences, let the period of their respective preventive detention
be credited in accordance with Article 29 of the Revised Penal Code.

The marijuana involved in this case is hereby confiscated in favor of the Government
and shall be properly disposed of in accordance with the law.

Considering that the use of the vehicle in the commission of the offense is not
authorized by its owner, it is hereby ordered that the said vehicle be returned to its
owner.

The bail bond for accused-convict Rosalie Bautista is hereby cancelled. Pending the
finality of this Judgment, let convict Rosalie Bautista be committed for detention at the
North Cotabato District Jail, BJMP, Amas, Kidapawan City.

SO ORDERED.25

The Regional Trial Court sustained the search conducted on the tipped vehicle as a
valid warrantless search because, according to it, the accused consented anyway. 26

Moreover, the trial court made much of apparent inconsistencies in the accused's
testimonies. It noted that Sison and Yanson testified that there were just three (3) of
them in the trip, while Bautista recalled Yanson having a male companion. It also noted
that Yanson and Bautista recalled leaving for Surallah at around 5:30 in the morning,
while Sison recalled leaving at 5:30 in the afternoon. Also noteworthy to the trial court,
Yanson and Sison claimed that they were heading to Midsayap while Bautista
maintained that they were headed to Cotabato City. 27

The trial court further concluded that all three (3) accused engaged in a conspiracy. It
noted their acts of leaving Surallah together on board the same vehicle and making their
return trip together as indicative of their joint purpose and design. 28

Only Yanson appealed before the Court of Appeals. 29

Yanson contended that the two (2) sacks of marijuana supposedly seized from him,
Bautista, and Sison are inadmissible evidence since the police officers did not have
probable cause to conduct a search on their vehicle. 30 He noted that the radio message
supposedly received by the police officers was "[t]he sole basis for their belief of the
alleged transportation of marijuana[.]" 31

Citing People v. Vinecario,32 Yanson asserted that searches at checkpoints, in the

absence of probable cause, should be limited only to a visual search. Thus, he
maintained that the further instruction for Sison to open the hood of their pickup
amounted to an unreasonable intrusion and violation of privacy. Yanson added that
Sison could never have freely consented to an extensive search considering how, when
they were flagged down and asked about opening the hood, he was surrounded by
police officers and could not feel secure in declining. 33

Yanson added that while the governing law at the time he allegedly committed the
offense was Republic Act No. 6425, he was entitled to benefit from the favorable
amendatory provisions of Republic Act No. 9165. He noted that Section 21 of Republic
Act No. 9165 requires arresting officers to strictly comply with the chain of custody
requirements.34

Yanson claimed that the police officers who arrested them failed to faithfully comply with
Section 21, particularly when they failed to mark and seal the two (2) sacks of marijuana
allegedly found under the pickup's hood. He also pointed out that the Chief of Police,
Jose Calimutan, failed to testify on the steps he took to maintain the integrity of the
items allegedly seized.35

Yanson faulted the Regional Trial Court for maintaining that he engaged in a conspiracy
with his co-accused. He asserted that he was simply a passenger who had no
knowledge of whatever materials lay under the pickup's hood. 36

The Office of the Solicitor General countered that probable cause was properly
established since there was verified information that the pickup was being used to
transport illegal drugs. It maintained that an extensive search in checkpoints is allowed
if the officers conducting the search have probable cause to believe, prior to the search,
"that either the motorist was a law offender or that they would find evidence pertaining
to the commission of a crime in the vehicle to be searched." 37

The Office of the Solicitor General added that the provisions of Section 21 of Republic
Act No. 9165 could not be applied as the crime was committed on May 31, 1996, long
before Republic Act No. 9165 came into effect. It added that, in any case, the police
officers were shown to have adhered to the four (4) critical links concerning chain of
custody. 38

The Office of the Solicitor General maintained that Yanson conspired with his co-
accused to transport marijuana. It contended "that conspiracy need not be shown by
direct proof of an agreement of the parties to commit long as the acts of the accused
collectively and individually demonstrate the existence of a common design towards the
accomplishment of [the] same unlawful purpose." 39

In its January 23, 2018 Decision,40 the Court of Appeals affirmed the Regional Trial
Court's Joint Judgment.

It ruled that there was probable cause to conduct an extensive search since the
information received by the police officers was sufficiently accurate, given how the
pickup "was spotted in the place where it was said to be coming from and was actually
loaded with marijuana."41

Moreover, the Court of Appeals found no reason to apply Section 21 of Republic Act
No. 9165, considering that Republic Act No. 9165 was not in effect when the crime was
committed.42

The Court of Appeals also maintained the finding of conspiracy in Yanson's act of
travelling with Sison and Bautista from Pikit to M’lang with the contraband. 43

The dispositive portion of the assailed Court of Appeals Decision read:

WHEREFORE, the appeal is DENIED. The Joint Judgment dated February 11, 2012 of
the Regional Trial Court, 12th Judicial Region, Branch 16, Kabacan, Cotabato in
Criminal Case No. 96-121 is AFFIRMED WITH MODIFICATION with respect to the
penalty to be imposed as Reclusion Perpetua instead of Life Imprisonment and
payment of fine of TWENTY THOUSAND PESOS (Php 20,000.00).

SO ORDERED. 44

Yanson filed his Notice of Appeal,45 which was given due course by the Court of
Appeals in its March 7, 2018 Resolution.46

Acting on the records transmitted by the Court of Appeals, this Court issued a June 4,
2018 Resolution47 informing the parties that they may file their respective supplemental
briefs. Through separate manifestations, however, the parties opted to not file
supplemental briefs and merely adopted the arguments and issues they had raised
before the Court of Appeals.48

For this Court's resolution is the issue of whether or not accused appellant Leonardo
Yanson's guilt for illegally transporting marijuana was established beyond reasonable
doubt. Subsumed under this issue are the issues previously raised before the Court of
Appeals:

First, whether or not a valid search and seizure was conducted on the pickup boarded
by accused-appellant and his co-accused, Jaime Sison and Rosalie Bautista;

Second, whether or not Section 21 of Republic Act No. 9165 may retroactively apply;
and

Finally, whether or not accused-appellant acted in conspiracy with his co-accused.

The Court grants the appeal. Accused-appellant and his co-accused are acquitted.

I
Article III, Section 2 of the 1987 Constitution requires a warrant to be issued by a judge
before a search can be validly effected:

SECTION 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.
(Emphasis supplied)

The issuance of a search warrant must be premised on a finding of probable cause; that
is, the existence of 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 to be searched." 49

The rule requiring warrants is, however, not absolute. Jurisprudence recognizes
exceptional instances when warrantless searches and seizures are considered
permissible:

1. Warrantless search incidental to a lawful arrest ...;

2. Seizure of evidence in "plain view,"...;

3. Search of a moving vehicle. Highly regulated by the government, the vehicle's

inherent mobility reduces expectation of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion amounting to probable cause
that the occupant committed a criminal activity;

4. Consented warrantless search;

5. Customs search;

6. Stop and frisk; and

7. Exigent and emergency circumstances.50 (Emphasis supplied)

A search of a moving vehicle is one (1) of the few permissible exceptions where
warrantless searches can be made. People v. Mariacos51 explains:

This exception is easy to understand. A search warrant may readily be obtained when
the search is made in a store, dwelling house or other immobile structure. But it is
impracticable to obtain a warrant when the search is conducted on a mobile ship, on an
aircraft, or in other motor vehicles since they can quickly be moved out of the locality or
jurisdiction where the warrant must be sought. 52 (Citation omitted)
However, for a warrantless search of a moving vehicle to be valid, probable cause
remains imperative.53 Law enforcers do not enjoy unbridled discretion to conduct
searches. In Caballes v. Court of Appeals:54

The mere mobility of these vehicles, however, does not give the police officers unlimited
discretion to conduct indiscriminate searches without warrants if made within the interior
of the territory and in the absence of probable cause. Still and all, the important thing is
that there was probable cause to conduct the warrantless search, which must still be
present in such a case.55 (Emphasis supplied, citation omitted)

In determining the existence of probable cause, bare suspicion is never enough. While
probable cause does not demand moral certainty, or evidence sufficient to justify
conviction,56 it requires the existence of "a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a cautious man to believe
that the person accused is guilty of the offense with which he is charged." 57

II

People v. Cogaed,58 citing Chief Justice Lucas Bersamin's dissent in Esquillo v.

People,59 emphasized that in warrantless searches, law enforcers "must not rely on a
single suspicious circumstance."60 What is required is the "presence of more than one
seemingly innocent activity, which, taken together, warranted a reasonable inference of
criminal activity."61 Indeed, it is unlikely that a law enforcer's suspicion is reasonably
roused at the sight of a single activity, which may very well be innocent. It is far more
likely that there first be several, continuous, peculiar acts of a suspect before any law
enforcer's suspicion is roused. At every peculiar act done, a law enforcer's suspicion is
successively confirmed and strengthened.

There have been a number of cases where this Court considered warrantless searches
made in moving vehicles to be valid. In these cases, probable cause was founded on
more than just a solitary suspicious circumstance.

In People v. Malmstedt,62 Narcotics Command officers set up a temporary checkpoint in

response to "persistent reports that vehicles coming from Sagada were transporting
marijuana and other prohibited drugs." 63 These included information that a Caucasian
coming from Sagada had prohibited drugs in his possession. At the checkpoint, the
officers intercepted a bus and inspected it, starting from the front, going towards the
rear. The bus turned out to be the vehicle boarded by the accused. Upon reaching the
accused, an officer noticed a bulge on his waist. This prompted the officer to ask for the
accused's passport and identification papers, which the accused failed to provide. The
accused was then made to reveal what was bulging on his waist. It turned out to be
hashish, a derivative of marijuana. 64

In Malmstedt, this Court ruled that the warrantless search was valid because there was
probable cause--premised on circumstances other than the original tip concerning a
Caucasian person for the arresting officers to search the accused:
It was only when one of the officers noticed a bulge on the waist of accused, during the
course of the inspection, that accused was required to present his passport. The failure
of accused to present his identification papers, when ordered to do so, only managed to
arouse the suspicion of the officer that accused was trying to hide his identity. 65

In People v. Que,66 police officers went on patrol after receiving information that "a ten-
wheeler truck bearing plate number PAD-548 loaded with illegally cut lumber will pass
through Ilocos Norte."67 When they saw the truck resembling this description pass by,
the officers flagged it down.

Q: That information was relayed to you only by your Chief Calimutan, correct?

A: Yes, sir.

Q: And, because of that you went to the check point (sic) and put a barricade along the
National Highway?

A: Yes, sir.

Q: And then you searched every vehicle that passed on that check point (sic)?

A: No, because according to the information[,] it was a pick-up.

Q: So, you checked all pick-up that passed on your check point (sic) on that morning on
May 31, 1996?

A: Not all, sir.

Q: Now, how many of you who (sic) conducted the check point (sic), Mr. Witness?

A: There were many of us but I can no longer remember how many. 92 (Emphasis

supplied)

Sison's predicament calls to mind a similar situation that this Court passed upon
in Aniag, Jr. v. Commission on Elections. 93 There, this Court noted:

In the face of fourteen (14) armed policemen conducting the operation, driver Arellano
being alone and a mere employee of petitioner could not have marshalled the strength
and the courage to protest against the extensive search conducted in the vehicle. In
such scenario, the "implied acquiescence," if there was any, could not be more than a
mere passive conformity on Arellano's part to the search, and "consent" given under
intimidating or coercive circumstances is no consent within the purview of the
constitutional guaranty. 94 (Citation omitted)

Sison did not have much of a choice when he was asked to open the hood of the
vehicle. He could not have given his genuine, sincere consent.
 V

Article III, Section 3(2) of the Constitution stipulates that illegal searches and seizures
result in the inadmissibility in evidence of whatever items were seized:

SECTION 3....

(2) Any evidence obtained in violation of [the right against unreasonable searches and
seizures] shall be inadmissible for any purpose in any proceeding.

This exclusionary rule is a protection against erring officers who deliberately or

negligently disregard the proper procedure in effecting searches, and would so
recklessly trample on one's right to privacy. By negating the admissibility in evidence of
items seized in illegal searches and seizures, the Constitution declines to validate the
law enforcers' illicit conduct. "Evidence obtained and confiscated on the occasion of
such an unreasonable search and seizure is tainted and should be excluded for being
the proverbial fruit of a poisonous tree." 95

Section 496 of Republic Act No. 642597 punished the sale, administration, delivery,
distribution, and transportation of prohibited drugs. Republic Act No. 9165,98 which was
enacted in lieu of Republic Act No. 6425, punishes under its Section 5 99 the sale,
trading, administration, dispensation, delivery, distribution, and transportation of
dangerous drugs, and/or controlled precursors and essential chemicals. Section 5 of
Republic Act No. 9165 penalizes the same set of acts as Section 4 of Republic Act No.
6425, except that the amending law extends to controlled precursors and essential
chemicals.

Essential elements must be proven for a successful prosecution of violations of Section

5 of Republic Act No. 9165 (or what used to be Section 4 of Republic Act No.
6425). People v. Montevirgen100 discussed the elements for conviction for the illegal sale
of illegal drugs, one (1) of the several acts penalized by Section 5:

In every prosecution for the illegal sale of shabu, under Section 5, Article II of RA 9165,
the following elements must be proved: "(1) the identity of the buyer and the seller, the
object and the consideration; and (2) the delivery of the thing sold and the payment
therefor. ... What is material in a prosecution for illegal sale of dangerous drugs is the
proof that the transaction or sale actually took place, coupled with the presentation in
court of the corpus delicti" or the illicit drug in evidence.101 (Emphasis supplied, citation
omitted)

Corpus delicti, literally meaning the "body of the crime," pertains "to the fact of the
commission of the crime charged or to the body or substance of the
crime."102 Jurisprudence explains that, to prove corpus delicti, "it is sufficient for the
prosecution to be able show that (1) a certain fact has been proven—say, a person has
died or a building has been burned; and (2) a particular person is criminally responsible
for the act."103
In cases involving drugs, the confiscated article constitutes the corpus delicti of the
crime charged.104 Under Section 5 of Republic Act No. 9165, the essence of the crime is
the sale, trading, administration, dispensation, delivery, distribution, and transportation
of prohibited drugs, and/or controlled precursors and essential chemicals. The act of
transporting the drugs, as in this case, must be duly proven by the prosecution, along
with how a particular person is the perpetrator of that act. The seized drug, then,
becomes the corpus delicti of the crime charged. The entire case of the prosecution
revolves around that material.

In drugs cases where the allegedly confiscated drug is excluded from admissible
evidence-as when it was acquired through an invalid warrantless search-the
prosecution is left without proof of corpus delicti. Any discussion on whether a crime has
been committed becomes an exercise in futility. Acquittal is then inexorable.

Thus, here, the arresting officers' search and subsequent seizure are invalid. As such,
the two (2) sacks of marijuana supposedly being transported in the pickup cannot be
admitted in evidence.

Even assuming that they were admissible, there remains no proof, whether direct or
circumstantial, that the accused actually knew that there were drugs under the hood of
their vehicle. Ultimately, their actual authorship of or conscious engagement in the
illegal activity of transporting dangerous drugs could not be ascertained.

In any case, with evidence on corpus delicti being inadmissible and placed beyond the
Regional Trial Court's contemplation, the prosecution is left with a fatal handicap: it is
insisting on the commission of the crime charged, but is without evidence. Accused-
appellant's acquittal must

ensue. 105

VI

His co-accused, Sison and Bautista, must also be acquitted.

Rule 122, Section 11(a) of the Revised Rules of Criminal Procedure concerns situations
where there are several accused but not all of them appeal their conviction:

SECTION 11. Effect of appeal by any of several accused. -

(a) An appeal taken by one or more of several accused shall not affect those who did
not appeal, except insofar as the judgment of the appellate court is favorable and
applicable to the latter.

As a rule, the effects of an appeal can only bind the accused who appealed his or her
conviction. However, when an appellate court renders a
and the conduct of the parties' lawyers" to determine whether the delay is justifiable.
When the case is simple and the evidence is straightforward, it is possible that delay
may occur even within the given periods.116 (Citations omitted)

This Court fails to see what extraordinary facts and circumstances or peculiar
complexity warranted taking as much as 17 years to rule on this case. The Regional
Trial Court's delay is immensely distressing, even more so now that each of the
accused, as this Court has found, must be acquitted. This Court endeavored to do its
best to resolve this appeal with dispatch resolving it within more than just a year of the
appeal having been brought before it. But even its judgment of acquittal can only come
after all of 22 years that it had taken the Regional Trial Court and the Court of Appeals
to rule on this case.

In light of this occasion, this Court enjoins judges and justices at all levels to be more
heedful not only of the imperative to timely render judgment, but also of the need to
always be conscientious in resolving cases. The accused here could have benefitted
from their acquittal much sooner had the Regional Trial Court judge or the Court of
Appeals justices been more scrupulous in discharging their functions and readily
appreciated the fatal flaws in the prosecution's case. This Court is constrained to
grapple with the already immense delay that confronted us at the filing of accused
appellant's appeal. We can only hope that our judgment of acquittal—and the lessons it
can offer--can dispense a measure of recompense to the wrongfully accused.

WHEREFORE, the January 23, 2018 Decision of the Court of Appeals in CA-G.R. CR-
HC No. 01374-MIN is REVERSED and SET ASIDE. Accused-appellant Leonardo
Yanson and his co-accused, Jaime Sison and Rosalie Bautista, are ACQUITTED of
transportation of prohibited drugs and are ordered RELEASED from confinement unless
they are being held for some other legal cause.

Let a copy of this Decision be furnished to the Director of the Bureau of Corrections for
immediate implementation.1âшphi1 The Director of the Bureau of Corrections is
directed to report the action he has taken to this Court within five (5) days from receipt
of this Decision.

For their information, copies shall also be furnished to the Director General of the
Philippine National Police and the Director General of the Philippine Drug Enforcement
Agency.

The Regional Trial Court is directed to turn over the seized marijuana to the Dangerous
Drugs Board for destruction in accordance with law.

SO ORDERED.

Peralta (Chairperson), Hernando, and Inting, JJ., concur.

A. Reyes, Jr., J., on wellness leave

G.R. No. 215305

MARCELO G. SALUDAY, Petitioner
vs
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

CARPIO, J.:

The Case

Before the Court is a Petition for Review on Certiorari assailing the Decision dated 26
June 2014 1 and the Resolution dated, 15 October 2014 2 of the Court of Appeals in CA-
G.R. CR No. 01099. The Court of Appeals affirmed with modification the Sentence
dated 15 September 2011 3 rendered by the Regional Trial Court, Branch 11, Davao
City in Criminal CaseNo. 65, 734-09, finding petitioner Marcelo G. Saluday (petitioner)
guilty beyond reasonable doubt of illegal possession of high-powered firearm,
ammunition, and explosive under Presidential Decree No. 1866, 4 as amended (PD
1866).

The Antecedent Facts

On 5 May 2009, Bus No. 66 of Davao Metro Shuttle was flagged down by Task Force
Davao of the Philippine Army at a checkpoint near the Tefasco Wharf in Ilang, Davao
City. SCAA Junbert M. Buco (Buco), a member of the Task Force, requested all male
passengers to disembark from the vehicle while allowing the female passengers to
remain inside. He then boarded the bus to check the presence and intercept the entry of
any contraband, illegal firearms or explosives, and suspicious individuals.

SCAA Buco checked all the baggage and personal effects of the passengers, but a
small, gray-black pack bag on the seat at the rear of the bus caught his attention. He
lifted the bag and found it too heavy for its small size. SCAA Buco then looked at the
male passengers lined outside and noticed that a man in a white shirt (later identified as
petitioner) kept peeping through the window towards the direction of the bag.
Afterwards, SCAA Buco asked who the owner of the bag was, to which the bus
conductor answered that petitioner and his brother were the ones seated at the back.
SCAA Buco then requested petitioner to board the bus and open the bag. Petitioner
obliged and the bag revealed the following contents: (1) an improvised .30 caliber
carbine bearing serial number 64702; (2) one magazine with three live ammunitions; (3)
one cacao-type hand grenade; and (4) a ten-inch hunting knife. SCAA Buco then asked
petitioner to produce proof of his authority to carry firearms and explosives. Unable to
show any, petitioner was immediately arrested and informed of his rights by SCAA
Buco.
Petitioner was then brought for inquest before the Office of the City Prosecutor for
Davao City. In its Resolution dated 7 May 2009,5 the latter found probable cause to
charge him with illegal possession of high-powered firearm, ammunition, and explosive
under PD l 866. The Information dated 8 May 2009 thus reads:

That on or about May 5, 2009, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused, willfully, unlawfully
and knowingly, with intent to possess, had in his possession and under his custody an
improvised high powered firearm caliber .30 carbine bearing Serial No. 64702 (made in
Spain) with one (1) magazine loaded with three (3) live ammunitions and one (1)
"'cacao" type hand grenade explosive, without first securing the necessary license to
possess the same.

CONTRARY TO LAW.6

When arraigned, petitioner pleaded not guilty.

During the trial, the prosecution presented two witnesses namely, NUP Daniel Tabura
(Tabura), a representative of the Firearms and Explosives Division of the Philippine
National Police, and SCAA Buco. NUP Tabura identified the Certification dated 5
November 20097 attesting that petitioner was "not a licensed/registered holder of any
kind and caliber per verification from records." Meanwhile, SCAA Buco identified
petitioner and the items seized from the bag, and testified on the details of the routine
inspection leading to the immediate arrest of petitioner. On cross-examination, SCAA
Buco further elaborated on the search conducted:

Atty. Mamburam

Q And that check point, which was conducted along llang [R)oad,

Davao City, was by virtue of a memorandum?

A Yes, Your Honor.

xxxx

Q Now, you said that at around 5:00 of said date, you were able to intercept a Metro
Shuttle passenger bus and you requested all passengers to alight?

A Yes.

Q passengers were left inside?

A Yes, Your Honor.

Q And, after all passengers were able to alight, you checked all cargoes of the
passengers in the bus?

A Yes.

xxxx

Q And, you testified that one of those things inside the bus was a black gray colored
pack bag which was placed at the back portion of the bus?

A Yes.

Q You said that the hag was heavy?

A Yes.

Q And you picked up or carried also the other belongings or cargo[e]s inside the bus
and that was the only thing or item inside the bus which was heavy. Is that correct?

A There were many bags and they were heavy. When l asked who is the owner of the
bag because it was heavy but the bag was small. when I asked, he said the content
of the bag was a cellphone. But 1 noticed that it was heavy.

xxxx

Q And you said that somebody admitted ownership of the bag. Is that correct?

A Yes.

Q Who admitted ownership of the bag?

A (WITNESS POINTS TO THE ACCUSED)

Q Now, you said that while you are looking at the bag, you noticed that one male
passenger you pointed as the accused kept looking at you'?

A Yes.

Q And, aside from the accused, all the other male passengers were not looking at you?

A The other passengers were on the ground but he was in front of [the] window looking
towards his bag.

xxxx
Q And the accused admitted that he owned the bag, you requested him to open
the bag'?

A Not yet. I let him board the bus and asked him if he can open it.

Q And, when he opened it?

A I saw the handle of the firearm. 8 (Emphasis supplied)

On the other hand, the defense presented petitioner as sole witness. On direct
examination, petitioner denied ownership of the bag. However, he also admitted to
answering SCAA Buco when asked about its contents and allowing SCAA Buco to open
it after the latter sought for his permission:

ATTY. MAMBURAM

Q x xx After the conductor of the bus told the member of the task force that you and
your brother were seated at the back of the bus. can you please tell us what happened
next'?

A The member of the task force asked who is the owner of the bag and what were the
contents of the bag.

Q To whom did the member of the task force address that question?

A To me because I was pointed to by the conductor.

Q And what was your reply to the question of the member of the task force?

A I told him it was only a cellphone.

Q By the way, Mr. Witness, who owned that bag?

A My elder brother.

Q And why did you make a reply to the question of the member of the task force when,
in fact, you were not the owner of the bag?

A Because I was pointed to by the conductor that it was me and my brother who were
seated at the back.

xxxx

Q Now, after you told the member of the task force that probably the content of the bag
was cellphone, what happened next?
A He asked if he can open it.

Q And what was your reply?

A I told him yes, just open it.

xx xx

Q Now, you said that the owner of the bag and the one who carried that bag was your
brother, what is the name of your brother?

A Roger Saluday.

Q Where is your brother Roger now?

A Roger is already dead. He died in September 2009. 9 (Emphasis supplied)

On cross-examination, petitioner clarified that only he was pointed at by the conductor

when the latter was asked who owned the bag. Petitioner also admitted that he never
disclosed he was with his brother when he boarded the bus:

PROS. VELASCO

Q You said that you panicked because they pulled you but as a way of saving yourself
considering you don't own the bag> did you not volunteer to inform them that [the] bag
was owned by your brother?

A I told them I have a companion but I did not tell them that it was my brother because I
was also afraid of my brother.

Q So, in short, Mr. Witness, you did not actually inform them that you had a
brother at that time when you were boarding that bus, correct?

A No, sir, I did not.

xxxx

Q So, you were answering all questions by saying it is not your bag but you confirm now
that it was the conductor of that bus who pointed you as the owner of the bag, correct?

A Yes, sir, the conductor pointed at me as the one who [sic] seated at the
back. 10 (Emphasis supplied)

The defense subsequently rested its case and the prosecution waived the right to
present rebuttal evidence. Upon order from the trial court, the parties submitted their
respective memoranda.
The Decision of the Trial Court

Finding the denials of petitioner as self-serving and weak, the trial court declared him to
be in actual or constructive possession of firearm and explosive without authority or
license. Consequently, in the dispositive portion of the Sentence dated 15 September
2011, petitioner was adjudged guilty beyond reasonable doubt of illegal possession of
firearm, ammunition, and explosive under PD 1866:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered finding Marcelo
Gigbalen Saluday GUILTY of illegal possession of high powered firearm, ammunition
and explosive. For the offense of illegal possession of high powered firearm and
ammunition, he is hereby sentenced to suffer an imprisonment of prision mayor in its
minimum period. He is likewise ordered to pay a fine of ₱30,000.00. For the offense of
illegal possession of explosive, he is hereby sentenced to suffer an imprisonment
of prision mayor in its maximum period to reclusion temporal. He is likewise ordered to
pay a fine of ₱50,000.00.

xxxx

SO ORDERED. 11

On 12 October 2011, petitioner timely filed his Notice of Appeal. 12

The Decision of the Court of Appeals

On appeal, petitioner challenged his conviction raising as grounds the alleged

misappreciation of evidence by the trial court and the supposed illegality of the
search. 13 On the other hand, the Office of the Solicitor General (OSG) argued that the
warrantless search was valid being a consented search, and that the factual findings of
the trial court can no longer be disturbed. 14

In its Decision dated 26 June 2014, the Court of Appeals sustained the conviction of
petitioner and affirmed the ruling of the trial court with modification:

WHEREFORE. the instant appeal is DISMISSED. The Sentence dated September 15,
2011 of the Regional Trial Court, 11th Judicial Region, Branch 11, Davao City, in
Criminal Case No. 65, 734-09, finding Marcelo Gigbalen Saluday guilty beyond
reasonable doubt of illegal possession of high powered firearm, ammunition and
explosive is AFFIRMED with the MODIFICATION that:

(1) for the offense of illegal possession of high-powered firearm and ammunition, he is
imposed an indeterminate sentence of four (4) years, eight (8) months and twenty-one
(21) days of prision correccional maximum, as the minimum term, to seven (7) years
and one (1) day of prision mayor minimum, as the maximum term, in addition to the fine
of Thirty thousand pesos (₱30,000.00); and
(2) for the offense of illegal possession of explosive, he is sentenced to suffer the
penalty of reclusion perpetua without eligibility for parole.

SO ORDERED.15

Petitioner then filed a Motion for Reconsideration, 16 to which the OSG filed its
Comment. 17 In its Resolution dated 15 October 2014, 18 the Court of Appeals denied
petitioner's Motion for Reconsideration for being pro forma. Hence, petitioner filed this
Petition for Review on Certiorari under Rule 45 of the Rules of Court.

The Issue

Petitioner assails the appreciation of evidence by the trial court and the Court of
Appeals as to warrant his conviction for the offenses charged.

The Ruling of this Court

We affirm.

Only questions of law may be raised in a petition for review on certiorari under Rule 45
of the Rules of Court.19 As a result, the Court, on appeal, is not duty-bound to weigh and
sift through the evidence presented during trial. 20 Further, factual findings of the trial
court, when affirmed by the Court of Appeals, are accorded great respect, even
finality. 21

Here, petitioner assails his conviction for illegal possession of high-powered firearm and
ammunition under PD 1866, and illegal possession of explosive under the same law.
The elements of both offenses are as follows: (1) existence of the firearm, ammunition
or explosive; (2) ownership or possession of the firearm, ammunition or explosive; and
(3) lack of license to own or possess.22 As regards the second and third elements, the
Corn1: of Appeals concurred with the trial court that petitioner was in actual or
constructive possession of a high-powered firearm, ammunition, and explosive without
the requisite authority. The Decision dated 26 June 2014 reads in pertinent part:

In the present case, the prosecution proved the negative fact that appellant has no
license or permit to own or possess the firearm, ammunition and explosive by
presenting NUP Daniel Tab[u]ra (Tab[u]ra), a representative of the Firearms and
Explosives Division (FED) of the PNP. He identified the Certification issued by the
Chief. Records Section. FED of the PNP, stating that appellant "is not a
licensed/registered holder of any kind and caliber per verification from records of this
office."

Appellant, however, questions the competence of Tab[u]ra to testify on the veracity or

truthfulness of the Ce1tification. He claims that the officer who issued it should have
been the one presented so he would not be denied the right to confront and cross-
examine the witnesses against him.
There is no merit to petitioner's claim. The following is pertinent:

xxxx

The Court on several occasions ruled that either the testimony of a representative of, or
a certification from, the Philippine National Police (PNP) Firearms and Explosive Office
attesting that a person is not a licensee of any firearm would suffice to prove beyond
reasonable doubt the second element of possession of illegal firearms. The prosecution
more than complied when it presented both.

xxxx

Also, appellant denies having physical or constructive possession of the firearms,

ammunition and explosive. However, his denial flies in the face of the following
testimonies which he himself made:

xxxx

Appellant gave information, albeit misleading, on the contents of the bag. He even
allowed the police officer to open it. Based on his actuations, there could be no doubt
that he owned the bag containing the firearm, ammunition and explosive.

Shifting the blame to his dead brother is very easy for appellant to fabricate. Besides,
the allegation that his brother owned the bag is uncorroborated and self-serving. 23

As above-quoted, the presence of the second and third elements of illegal possession
of firearm, ammunition, and explosive raises questions of fact. Considering further that
the Court of Appeals merely echoed the factual findings of the trial court, the Court finds
no reason to disturb them.

As regards the first element, petitioner corroborates the testimony of SCAA Buco on
four important points: one, that petitioner was a passenger of the bus flagged down on
5 May 2009 at a military checkpoint in Ilang, Davao City; two, that SCAA Buco boarded
and searched the bus; three, that the bus conductor pointed at petitioner as the owner
of a small, gray-black pack bag on the back seat of the bus; and four, that the same bag
contained a .30-caliber firearm with one magazine loaded who three live ammunitions,
and a hand grenade. Notably, petitioner does not challenge the chain of custody over
the seized items. Rather, he merely raises a pure question of law and argues that they
are inadmissible on the ground that the search conducted by Task Force Davao was
illegal.

The Court disagrees.

Section 2, Article Ill of the Constitution, which was patterned after the Fourth
Amendment to the United States (U.S.) Constitution, 24 reads:
SEC. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.
(Emphasis supplied)

Indeed, the constitutional guarantee is not a blanket prohibition. Rather, it operates

against "unreasonable" searches and seizures only. 25

Conversely, when a search is "reasonable," Section 2, Article HI of the Constitution

does not apply. As to what qualifies as a reasonable search, the pronouncements of the
U.S. Supreme Court, which are doctrinal in this jurisdiction, 26 may shed light on the
matter.

In the seminal case of Katz v. United States,  27 the U.S. Supreme Court held that the
electronic surveillance of a phone conversation without a warrant violated the Fourth
Amendment. According to the U.S. Supreme Court, what the Fourth Amendment
protects are people, not places such that what a person knowingly exposes to the
public, even in his or her own home or office, is not a subject of Fourth Amendment
protection in much the same way that what he or she seeks to preserve as private, even
in an area accessible to the public, may be constitutionally protected, thus:

Because of the misleading way the issues have been formulated, the parties have
attached great significance to the characterization of the telephone booth from which
the petitioner placed his calls. The petitioner has strenuously argued that the booth was
a "constitutionally protected area." The Government has maintained with equal vigor
that it was not. But this effo1i to decide whether or not a given "area,'' viewed in the
abstract, is "constitutionally protected" deflects attention from the problem presented by
this case. For the Fourth Amendment protects people, not places. What a person
knowingly exposes to the public, even in his own home or office, is not a subject of
Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210; United
States v. Lee, 274 U.S. 559, 563. But what he seeks to preserve as private, even in an
area accessible to the public, may be constitutionally protected. See Rios v. United
States, 364 U.S. 253; £:y; parte Jackson, 96 U.S. 727, 733.28 (Emphasis supplied)

Further, Justice John Harlan laid down in his concurring opinion the two-part test that
would trigger the application of the Fourth Amendment. First, a person exhibited an
actual (subjective) expectation of privacy.29 Second, the expectation is one that society
is prepared to recognize as reasonable (objective). 30

The prohibition of unreasonable search and seizure ultimately stems from a person's
right to privacy. Hence, only when the State intrudes into a person's expectation of
privacy, which society regards as reasonable, is the Fourth Amendment triggered.
Conversely, where a person does not have an expectation of privacy or one's
expectation of privacy is not reasonable to society, the alleged State intrusion is not a
"search" within the protection of the Fourth Amendment.

A survey of Philippine case law would reveal the same jurisprudential reasoning. To
illustrate, in People v. Johnson,31 the Court declared airport searches as outside the
protection of the search and seizure clause due to the lack of an expectation of privacy
that society will regard as reasonable:

Persons may lose the protection of the search and seizure clause by exposure of their
persons or property to the public in a manner reflecting a lack of subjective expectation
of privacy, which expectation society is prepared to recognize as reasonable. Such
recognition is implicit in airport security procedures. With increased concern over
airplane hijacking and terrorism has come increased security at the nation's airports.
Passengers attempting to board an aircraft routinely pass through metal detectors; their
carry-on baggage as well as checked luggage are routinely subjected to x-ray scans.
Should these procedures suggest the presence of suspicious objects. physical searches
are conducted to determine what the objects are. There is little question that such
searches are reasonable, given their minimal intrusiveness, the gravity of the safety
interests involved, and the reduced privacy expectations associated with airline travel.
Indeed, travelers are often notified through airport public address systems, signs. and
notices in their airline tickets that they are subject to search and, if any prohibited
materials or substances are found, such would be subject to seizure. These
announcements place passengers on notice that ordinary constitutional protections
against warrantless searches and seizures do not apply to routine airport
procedures.32 (Citations omitted)

Similarly, in Dela Cruz v. People,33 the Court described seaport searches as reasonable

searches on the ground that the safety of the traveling public overrides a person's right
to privacy:

Routine baggage inspections conducted by port authorities, although done without

search warrants, are not unreasonable searches per se. Constitutional provisions
protecting privacy should not be so literally understood so as to deny reasonable
safeguards to ensure the safety of the traveling public.

xxxx

Thus, with port security personnel's functions having the color of state-related functions
and deemed agents of government, Marti is inapplicable in the present case.
Nevertheless, searches pursuant to port security measures are not unreasonable per
se. The security measures of x-ray scanning and inspection in domestic ports are akin
to routine security procedures in airports.

xxxx
Port authorities were acting within their duties and functions when [they] used x-ray
scanning machines for inspection of passengers' bags. When the results of the x-ray
scan revealed the existence of firearms in the bag, the port authorities had probable
cause to conduct u search of petitioner's bag. Notably, petitioner did not contest the
results of the x-ray scan.34

In People v. Breis,35 the Court also justified a bus search owing to the reduced
expectation of privacy of the riding public:

Unlike the officer in Chan Fook, IO1 Mangili did not exceed his authority in the
performance of his duty. Prior to Breis' resistance, IO1 Mangili laid nary a finger on
Breis or Yurnol. Neither did his presence in the bus constitute an excess of authority.
The bus is public transportation, and is open to the public. The expectation of privacy in
relation to the constitutional right against unreasonable searches in a public bus is not
the same as that in a person's dwelling. In fact, at that point in time, only the bus was
being searched, not Yumol, Breis, or their belongings, and the search of moving
vehicles has been upheld.36

Indeed, the reasonableness of a person's expectation of privacy must be determined on

a case-to-case basis since it depends on the factual circumstances surrounding the
case.37 Other factors such as customs, physical surroundings and practices of a
particular activity may diminish this expectation.38 In Fortune Express, Inc. v. Court of
Appeals,39 a common carrier was held civilly liable for the death of a passenger due to
the hostile acts of armed men who boarded and subsequently seized the bus. The
Could held that "simple precautionary measures to protect the safety of passengers,
such as frisking passengers and inspecting their baggages, preferably with non-
intrusive gadgets such as metal detectors, before allowing them on board could have
been employed without violating the passenger's constitutional rights." 40 In Costabella
Corp. v. Court of Appeals,41 a compulsory right of way was found improper for the failure
of the owners of the dominant estate to allege that the passageway they sought to be
re-opened was at a point least prejudicial to the owner of the servient estate. The Court
thus explained, ''[c]onsidering that the petitioner operates a hotel and beach resort in its
property, it must undeniably maintain a strict standard of security within its premises.
Otherwise, the convenience, privacy, and safety of its clients and patrons would be
compromised."42 Similarly, shopping malls install metal detectors and body scanners,
and require bag inspection as a requisite for entry. Needless to say, any security lapse
on the part of the mall owner can compromise public safety.

Concededly, a bus, a hotel and beach resort, and a shopping mall are all private
property whose owners have every right to exclude anyone from entering. At the same
time, however, because these private premises are accessible to the public, the State,
much like the owner, can impose non-intrusive security measures and filter those going
in. The only difference in the imposition of security measures by an owner and the State
is, the former emanates from the attributes of ownership under Article 429 of the Civil
Code, while the latter stems from the exercise of police power for the promotion of
public safety. Necessad1y, a person's expectation of privacy is diminished whenever he
or she enters private premises that arc accessible to the public.

In view of the foregoing, the bus inspection conducted by Task Force Davao at a
military checkpoint constitutes a reasonable search. Bus No. 66 of Davao Metro Shuttle
was a vehicle of public transportation where passengers have a reduced expectation of
privacy. Further, SCAA Buco merely lifted petitioner's bag. This visual and minimally
intrusive inspection was even less than the standard x-ray and physical inspections
done at the airport and seaport terminals where passengers may further be required to
open their bags and luggages. Considering the reasonableness of the bus search,
Section 2, Article III of the Constitution finds no application, thereby precluding the
necessity for a warrant.

As regards the warrantless inspection of petitioner's bag, the OSG argues that petitioner
consented to the search) thereby making the seized items admissible in
evidence.43 Petitioner contends otherwise and insists that his failure to object cannot be
construed as an implied waiver.

Petitioner is wrong.

Doubtless, the constitutional immunity against unreasonable searches and seizures is a

personal right, which may be waived.44 However, to be valid, the consent must be
voluntary such that it is unequivocal, specific, and intelligently given, uncontaminated by
any duress or coercion.45 Relevant to this determination of voluntariness are the
following characteristics of the person giving consent and the environment in which
consent is given: (a) the age of the consenting party; (b) whether he or she was in a
public or secluded location; (c) whether he or she objected to the search or passively
looked on;46 (d) his or her education and intelligence; (e) the presence of coercive police
procedures; (f) the belief that no incriminating evidence will be found; 47 (g) the nature of
the police questioning; (h) the environment in which the questioning took place; and (i)
the possibly vulnerable subjective state of the person consenting. 48

In Asuncion v. Court of Appeals,49the apprehending officers sought the permission of

petitioner to search the car, to which the latter agreed. According to the Court, petitioner
himself freely gave his consent to the search. In People v. Montilla,  50 the Court found
the accused to have spontaneously performed affirmative acts of volition by opening the
bag without being forced or intimidated to do so, which acts amounted to a clear waiver
of his right. In People v. Omaweng,51 the police officers asked the accused if they could
see the contents of his bag, to which the accused said "you can see the contents but
those are only clothings." The policemen then asked if they could open and see it, and
the accused answered "you can see it." The Court held there was a valid consented
search.

Similarly in this case, petitioner consented to the baggage inspection done by SCAA
Buco. When SCAA Buco asked if he could open petitioner's bag, petitioner
answered ''yes, just open if' based on petitioner's own testimony. This is clear consent
by petitioner to the search of the contents of his bag. In its Decision dated 26 June
2014, the Court of Appeals aptly held:

A waiver was found in People v. Omaweng. There, the police officers asked the
accused if they could see the contents of his bag and he answered "you can see the
contents but those are only clothings.'' When asked if they could open and see it, he
said "you can see it." In the present case, accused-appellant told the member of the
task force that "it was only a cellphone" when asked who owns the bag and what are its
contents. When asked by the member of the task force if he could open it, accused-
appellant told him "yes, just open it." Hence, as in Omaweng, there was a waiver of
accused-appellants right against warrantless search. 52

To emphasize, a reasonable search, on the one hand, and a warrantless search, on the
other, are mutually exclusive. While both State intrusions are valid even without a
warrant, the underlying reasons for the absence of a warrant are different. A reasonable
search arises from a reduced expectation of privacy, for which reason Section 2, Article
III of the Constitution finds no application. Examples include searches done at airports,
seaports, bus terminals, malls, and similar public ·places. In contrast, a warrantless
search is presumably an "unreasonable search," but for reasons of practicality, a search
warrant can be dispensed with. Examples include search incidental to a lawful arrest,
search of evidence in plain view, consented search, and extensive search of a private
moving vehicle.

Further, in the conduct of bus searches, the Court Jays down the following
guidelines.1âwphi1 Prior to entry, passengers and their bags and luggages can be
subjected to a routine inspection akin to airport and seaport security protocol. In this
regard, metal detectors and x-ray scanning machines can be installed at bus terminals.
Passengers can also be frisked. In lieu of electronic scanners, passengers can be
required instead to open their bags and luggages for inspection, which inspection must
be made in the passenger's presence. Should the passenger object, he or she can
validly be refused entry into the terminal.

While in transit, a bus can still be searched by government agents or the security
personnel of the bus owner in the following three instances. First, upon receipt of
information that a passenger carries contraband or illegal articles, the bus where the
passenger is aboard can be stopped en route to allow for an inspection of the person
and his or her effects. This is no different from an airplane that is forced to land upon
receipt of information about the contraband or illegal articles carried by a passenger
onboard. Second, whenever a bus picks passengers en route, the prospective
passenger can be frisked and his or her bag or luggage be subjected to the same
routine inspection by government agents or private security personnel as though the
person boarded the bus at the terminal. This is because unlike an airplane, a bus is able
to stop and pick passengers along the way, making it possible for these passengers to
evade the routine search at the bus terminal. Third, a bus can be flagged down at
designated military or police checkpoints where State agents can board the vehicle for a
routine inspection of the passengers and their bags or luggages.
In both situations, the inspection of passengers and their effects prior to entry at the bus
terminal and the search of the bus while in transit must also satisfy the following
conditions to qualify as a valid reasonable search. First, as to the manner of the search,
it must be the least intrusive and must uphold the dignity of the person or persons being
searched, minimizing, if not altogether eradicating, any cause for public embarrassment,
humiliation or ridicule. Second, neither can the search result from any discriminatory
motive such as insidious profiling, stereotyping and other similar motives. In all
instances, the fundamental rights of vulnerable identities, persons with disabilities,
children and other similar groups should be protected. Third, as to the purpose of the
search, it must be confined to ensuring public safety. Fourth, as to the evidence seized
from the reasonable search, courts must be convinced that precautionary measures
were in place to ensure that no evidence was planted against the accused.

The search of persons in a public place is valid because the safety of others may be put
at risk. Given the present circumstances, the Court takes judicial notice that public
transport buses and their terminals, just like passenger ships and seaports, are in that
category.

Aside from public transport buses, any moving vehicle that similarly accepts passengers
at the terminal and along its route is likewise covered by these guidelines. Hence,
whenever compliant with these guidelines, a routine inspection at the terminal or of the
vehicle itself while in transit constitutes a reasonable search. Otherwise, the intrusion
becomes unreasonable, thereby triggering the constitutional guarantee under Section 2,
Article III of the Constitution.

To emphasize, the guidelines do not apply to privately-owned cars. Neither are they

applicable to moving vehicles dedicated for private or personal use, as in the case of
taxis, which are hired by only one or a group of passengers such that the vehicle can no
longer be flagged down by any other person unti1 the passengers on board alight from
the vehicle.

WHEREFORE, the petition is DENIED. The Decision dated 26 June 2014 and the

Resolution dated 15 October 2014 of the Court of Appeals in CA-G.R. CR No. 01099
are AFFIRMED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 83988 September 29, 1989

RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR
PEOPLE'S RIGHTS (ULAP), petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT
COMMAND, respondents.

Ricardo C. Valmonte for himself and his co-petitioners.

PADILLA, J.:

This is a petition for prohibition with preliminary injunction and/or temporary restraining
order, seeking the declaration of checkpoints in Valenzuela, Metro Manila or elsewhere,
as unconstitutional and the dismantling and banning of the same or, in the alternative, to
direct the respondents to formulate guidelines in the implementation of checkpoints, for
the protection of the people.

Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer,
member of the Integrated Bar of the Philippines (IBP), and resident of Valenzuela,
Metro Manila; while petitioner Union of Lawyers and Advocates for People's Rights
(ULAP) sues in its capacity as an association whose members are all members of the
IBP.

The factual background of the case is as follows:

On 20 January 1987, the National Capital Region District Command (NCRDC) was
activated pursuant to Letter of Instruction 02/87 of the Philippine General Headquarters,
AFP, with the mission of conducting security operations within its area of responsibility
and peripheral areas, for the purpose of establishing an effective territorial defense,
maintaining peace and order, and providing an atmosphere conducive to the social,
economic and political development of the National Capital Region. 1 As part of its duty
to maintain peace and order, the NCRDC installed checkpoints in various parts of
Valenzuela, Metro Manila.

Petitioners aver that, because of the installation of said checkpoints, the residents of
Valenzuela are worried of being harassed and of their safety being placed at the
arbitrary, capricious and whimsical disposition of the military manning the checkpoints,
considering that their cars and vehicles are being subjected to regular searches and
check-ups, especially at night or at dawn, without the benefit of a search warrant and/or
court order. Their alleged fear for their safety increased when, at dawn of 9 July 1988,
Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan, was
gunned down allegedly in cold blood by the members of the NCRDC manning the
checkpoint along McArthur Highway at Malinta, Valenzuela, for ignoring and/or refusing
to submit himself to the checkpoint and for continuing to speed off inspire of warning
shots fired in the air. Petitioner Valmonte also claims that, on several occasions, he had
gone thru these checkpoints where he was stopped and his car subjected to
search/check-up without a court order or search warrant.

Petitioners further contend that the said checkpoints give the respondents a blanket
authority to make searches and/or seizures without search warrant or court order in
violation of the Constitution; 2 and, instances have occurred where a citizen, while not
killed, had been harassed.

Petitioners' concern for their safety and apprehension at being harassed by the military
manning the checkpoints are not sufficient grounds to declare the checkpoints as per se
illegal. No proof has been presented before the Court to show that, in the course of their
routine checks, the military indeed committed specific violations of petitioners' right
against unlawful search and seizure or other rights.

In a case filed by the same petitioner organization, Union of Lawyers and Advocates for
People's Right (ULAP) vs. Integrated National Police, 3 it was held that individual
petitioners who do not allege that any of their rights were violated are not qualified to
bring the action, as real parties in interest.

The constitutional right against unreasonable searches and seizures is a personal right
invocable only by those whose rights have been infringed, 4 or threatened to be
infringed. What constitutes a reasonable or unreasonable search and seizure in
any particular case is purely a judicial question, determinable from a consideration of
the circumstances involved. 5

Petitioner Valmonte's general allegation to the effect that he had been stopped and
searched without a search warrant by the military manning the checkpoints, without
more, i.e., without stating the details of the incidents which amount to a violation of his
right against unlawful search and seizure, is not sufficient to enable the Court to
determine whether there was a violation of Valmonte's right against unlawful search and
seizure. Not all searches and seizures are prohibited. Those which are reasonable are
not forbidden. A reasonable search is not to be determined by any fixed formula but is
to be resolved according to the facts of each case. 6

Where, for example, the officer merely draws aside the curtain of a vacant vehicle which
is parked on the public fair grounds, 7 or simply looks into a vehicle, 8 or flashes a light
therein, 9 these do not constitute unreasonable search.

The setting up of the questioned checkpoints in Valenzuela (and probably in other

areas) may be considered as a security measure to enable the NCRDC to pursue its
mission of establishing effective territorial defense and maintaining peace and order for
the benefit of the public. Checkpoints may also be regarded as measures to thwart plots
to destabilize the government, in the interest of public security. In this connection, the
Court may take judicial notice of the shift to urban centers and their suburbs of the
insurgency movement, so clearly reflected in the increased killings in cities of police and
military men by NPA "sparrow units," not to mention the abundance of unlicensed
firearms and the alarming rise in lawlessness and violence in such urban centers, not all
of which are reported in media, most likely brought about by deteriorating economic
conditions — which all sum up to what one can rightly consider, at the very least, as
abnormal times. Between the inherent right of the state to protect its existence and
promote public welfare and an individual's right against a warrantless search which is
however reasonably conducted, the former should prevail.

True, the manning of checkpoints by the military is susceptible of abuse by the men in
uniform, in the same manner that all governmental power is susceptible of abuse. But,
at the cost of occasional inconvenience, discomfort and even irritation to the citizen, the
checkpoints during these abnormal times, when conducted within reasonable limits, are
part of the price we pay for an orderly society and a peaceful community.

Finally, on 17 July 1988, military and police checkpoints in Metro Manila were
temporarily lifted and a review and refinement of the rules in the conduct of the police
and military manning the checkpoints was ordered by the National Capital Regional
Command Chief and the Metropolitan Police Director. 10

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco,

Bidin, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Separate Opinions

CRUZ, J., dissenting:

I dissent. The sweeping statements in the majority opinion are as dangerous as the
checkpoints it would sustain and fraught with serious threats to individual liberty. The
bland declaration that individual rights must yield to the demands of national security
ignores the fact that the Bill of Rights was intended precisely to limit the authority of the
State even if asserted on the ground of national security. What is worse is that the
searches and seizures are peremptorily pronounced to be reasonable even without
proof of probable cause and much less the required warrant. The improbable excuse is
that they are aimed at 'establishing an effective territorial defense, maintaining peace
and order, and providing an atmosphere conducive to the social, economic and political
development of the National Capital Region." For these purposes, every individual may
be stopped and searched at random and at any time simply because he excites the
suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of
arrest or worse, even being shot to death, if he resists.

I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark
street as a routine measure of security and curiosity. But the case at bar is different.
Military officers are systematically stationed at strategic checkpoint to actively ferret out
suspected criminals by detaining and searching any individual who in their opinion might
impair "the social, economic and political development of the National Capital Region."
It is incredible that we can sustain such a measure. And we are not even under martial
law.

Unless we are vigilant of our rights, we may find ourselves back to the dark era of the
truncheon and the barbed wire, with the Court itself a captive of its own complaisance
and sitting at the death-bed of liberty.

SARMIENTO, J., dissenting:

I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I
am agreed that the existence alone of checkpoints makes search done therein,
unreasonable and hence, repugnant to the Constitution.

The Charter says that the people enjoy the right of security of person, home, and
effects. (CONST., art. III, sec. 2.) It is also the bedrock — the right of the people to be
left alone — on which the regime of law and constitutionalism rest. It is not, as the
majority would put it, a matter of "occasional inconveniences, discomfort and even
irritation." (Resolution, 4.) To say that it is, is — so I submit — to trivialize the plain
command of the Constitution.

Checkpoints, I further submit, are things of martial rule, and things of the past. They first
saw the light of day by virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF
CONSTABULARY TO ESTABLISH CHECKPOINTS, UPDATE LISTS OF WANTED
PERSONS AND CONDUCT DRAGNET OPERATIONS AND FOR OTHER
PURPOSES), a martial law issuance, as amended by General Order No. 67
(AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66
DATED SEPTEMBER 12, 1980), yet another martial law issuance. (See O.G. 4224-
4226; 4226-4227 [Aug., 1983].) They are, so I strongly submit, repressive measures,
the same measures against which we had fought so painstakingly in our quest for
liberty, a quest that ended at EDSA and a quest that terminated a dictatorship. How
soon we forget.

While the right against unreasonable searches and seizures, as my brethren advance,
is a right personal to the aggrieved party, the petitioners, precisely, have come to Court
because they had been, or had felt, aggrieved. I submit that in that event, the burden is
the State's, to demonstrate the reasonableness of the search. The petitioners, Ricardo
Valmonte in particular, need not, therefore, have illustrated the "details of the incident"
(Resolution, supra, 4) in all their gore and gruesomeness.
In any event, the absence alone of a search warrant, as I have averred, makes
checkpoint searches unreasonable, and by itself, subject to constitutional challenges.
(Supra.) As it is, "checkpoints", have become "search warrants" unto themselves a
roving one at that.

That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And
so is "a reasonable search is not to be determined by any fixed formula but is to be
resolved according to the facts of each case." (Supra) But the question, exactly, is: Is
(are) the search(es) in this case reasonable? I submit that it (they) is (are) not, for one
simple reason: No search warrant has been issued by a judge.

I likewise do not find this case to be a simple matter of an "officer merely draw(ing)
aside the curtain of a vacant vehicle ... or simply look(ing) (supra) there, "or flash(ing) a
light therein." (Supra) What we have here is Orwell's Big Brother watching every step
we take and every move we make.

As it also is, "checkpoints" are apparently, State policy. The American cases the
majority refers to involve routine checks compelled by "probable cause". What we have
here, however, is not simply a policeman on the beat but armed men, CAFGU or Alsa
Masa, who hold the power of life or death over the citizenry, who fire with no
provocation and without batting an eyelash. They likewise shoot you simply because
they do not like your face. I have witnessed actual incidents.

Washington said that militia can not be made to dictate the terms for the nation. He can
not be anymore correct here.

"Between the inherent right of the state to protect its existence ... and on individual's
right against a warrantless search, which is reasonably conducted, "so my brethren go
on, the former shall prevail. (Supra) First, this is the same lie that the hated despot
foisted on the Filipino people. It is a serious mistake to fall for it a second time around.
Second, the checkpoint searches herein are unreasonable: There was no warrant.

A final word. After twenty years of tyranny, the dawn is upon us. The country is once
again the "showcase of democracy" in Asia. But if in many cases, it has been "paper
democracy", let this Court anyway bring to pass its stand, and make liberty in the land, a
living reality.

I vote then, to grant the petition.

Separate Opinions

CRUZ, J., dissenting:
I dissent. The sweeping statements in the majority opinion are as dangerous as the
checkpoints it would sustain and fraught with serious threats to individual liberty. The
bland declaration that individual rights must yield to the demands of national security
ignores the fact that the Bill of Rights was intended precisely to limit the authority of the
State even if asserted on the ground of national security. What is worse is that the
searches and seizures are peremptorily pronounced to be reasonable even without
proof of probable cause and much less the required warrant. The improbable excuse is
that they are aimed at 'establishing an effective territorial defense, maintaining peace
and order, and providing an atmosphere conducive to the social, economic and political
development of the National Capital Region." For these purposes, every individual may
be stopped and searched at random and at any time simply because he excites the
suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of
arrest or worse, even being shot to death, if he resists.

I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark
street as a routine measure of security and curiosity. But the case at bar is different.
Military officers are systematically stationed at strategic checkpoint to actively ferret out
suspected criminals by detaining and searching any individual who in their opinion might
impair "the social, economic and political development of the National Capital Region."
It is incredible that we can sustain such a measure. And we are not even under martial
law.

Unless we are vigilant of our rights, we may find ourselves back to the dark era of the
truncheon and the barbed wire, with the Court itself a captive of its own complaisance
and sitting at the death-bed of liberty.

SARMIENTO, J., dissenting:

I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I
am agreed that the existence alone of checkpoints makes search done therein,
unreasonable and hence, repugnant to the Constitution.

The Charter says that the people enjoy the right of security of person, home, and
effects. (CONST., art. III, sec. 2.) It is also the bedrock — the right of the people to be
left alone — on which the regime of law and constitutionalism rest. It is not, as the
majority would put it, a matter of "occasional inconveniences, discomfort and even
irritation." (Resolution, 4.) To say that it is, is — so I submit — to trivialize the plain
command of the Constitution.

Checkpoints, I further submit, are things of martial rule, and things of the past. They first
saw the light of day by virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF
CONSTABULARY TO ESTABLISH CHECKPOINTS, UPDATE LISTS OF WANTED
PERSONS AND CONDUCT DRAGNET OPERATIONS AND FOR OTHER
PURPOSES), a martial law issuance, as amended by General Order No. 67
(AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66
DATED SEPTEMBER 12, 1980), yet another martial law issuance. (See O.G. 4224-
4226; 4226-4227 [Aug., 1983].) They are, so I strongly submit, repressive measures,
the same measures against which we had fought so painstakingly in our quest for
liberty, a quest that ended at EDSA and a quest that terminated a dictatorship. How
soon we forget.

While the right against unreasonable searches and seizures, as my brethren advance,
is a right personal to the aggrieved party, the petitioners, precisely, have come to Court
because they had been, or had felt, aggrieved. I submit that in that event, the burden is
the State's, to demonstrate the reasonableness of the search. The petitioners, Ricardo
Valmonte in particular, need not, therefore, have illustrated the "details of the incident"
(Resolution, supra, 4) in all their gore and gruesomeness.

In any event, the absence alone of a search warrant, as I have averred, makes
checkpoint searches unreasonable, and by itself, subject to constitutional challenges.
(Supra.) As it is, "checkpoints", have become "search warrants" unto themselves a
roving one at that.

That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And
so is "a reasonable search is not to be determined by any fixed formula but is to be
resolved according to the facts of each case." (Supra) But the question, exactly, is: Is
(are) the search(es) in this case reasonable? I submit that it (they) is (are) not, for one
simple reason: No search warrant has been issued by a judge.

I likewise do not find this case to be a simple matter of an "officer merely draw(ing)
aside the curtain of a vacant vehicle ... or simply look(ing) (supra) there, "or flash(ing) a
light therein." (Supra) What we have here is Orwell's Big Brother watching every step
we take and every move we make.

As it also is, "checkpoints" are apparently, State policy. The American cases the
majority refers to involve routine checks compelled by "probable cause". What we have
here, however, is not simply a policeman on the beat but armed men, CAFGU or Alsa
Masa, who hold the power of life or death over the citizenry, who fire with no
provocation and without batting an eyelash. They likewise shoot you simply because
they do not like your face. I have witnessed actual incidents.

Washington said that militia can not be made to dictate the terms for the nation. He can
not be anymore correct here.

"Between the inherent right of the state to protect its existence ... and on individual's
right against a warrantless search, which is reasonably conducted, "so my brethren go
on, the former shall prevail. (Supra) First, this is the same lie that the hated despot
foisted on the Filipino people. It is a serious mistake to fall for it a second time around.
Second, the checkpoint searches herein are unreasonable: There was no warrant.

A final word. After twenty years of tyranny, the dawn is upon us. The country is once
again the "showcase of democracy" in Asia. But if in many cases, it has been "paper
democracy", let this Court anyway bring to pass its stand, and make liberty in the land, a
living reality.

I vote then, to grant the petition.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 89139 August 2, 1990

ROMEO POSADAS y ZAMORA, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.

Rudy G. Agravate for petitioner.

GANCAYCO, J.:

The validity of a warrantless search on the person of petitioner is put into issue in this
case.

On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab and Pat.
Umbra Umpar, both members of the Integrated National Police (INP) of the Davao
Metrodiscom assigned with the Intelligence Task Force, were conducting a surveillance
along Magallanes Street, Davao City. While they were within the premises of the Rizal
Memorial Colleges they spotted petitioner carrying a "buri" bag and they noticed him to
be acting suspiciously.

They approached the petitioner and identified themselves as members of the INP.
Petitioner attempted to flee but his attempt to get away was thwarted by the two
notwithstanding his resistance.

They then checked the "buri" bag of the petitioner where they found one (1) caliber .38
Smith & Wesson revolver with Serial No. 770196 1 two (2) rounds of live ammunition for
a .38 caliber gun 2 a smoke (tear gas) grenade,3 and two (2) live ammunitions for a .22
caliber gun. 4 They brought the petitioner to the police station for further investigation. In
the course of the same, the petitioner was asked to show the necessary license or
authority to possess firearms and ammunitions found in his possession but he failed to
do so. He was then taken to the Davao Metrodiscom office and the prohibited articles
recovered from him were indorsed to M/Sgt. Didoy the officer then on duty. He was
prosecuted for illegal possession of firearms and ammunitions in the Regional Trial
Court of Davao City wherein after a plea of not guilty and trial on the merits a decision
was rendered on October 8, 1987 finding petitioner guilty of the offense charged as
follows:

WHEREFORE, in view of all the foregoing, this Court , finds the accused
guilty beyond reasonable doubt of the offense charged.

It appearing that the accuse d was below eighteen (18) years old at the
time of the commission of the offense (Art. 68, par. 2), he is hereby
sentenced to an indeterminate penalty ranging from TEN (10) YEARS and
ONE (1) DAY of prision mayor to TWELVE (12) Years, FIVE (5) months
and Eleven (11) days of Reclusion Temporal, and to pay the costs.

The firearm, ammunitions and smoke grenade are forfeited in favor of the
government and the Branch Clerk of Court is hereby directed to turn over
said items to the Chief, Davao Metrodiscom, Davao City. 5

Not satisfied therewith the petitioner interposed an appeal to the Court of Appeals
wherein in due course a decision was rendered on February 23, 1989 affirming in
toto the appealed decision with costs against the petitioner. 6

Hence, the herein petition for review, the main thrust of which is that there being no
lawful arrest or search and seizure, the items which were confiscated from the
possession of the petitioner are inadmissible in evidence against him.

The Solicitor General, in justifying the warrantless search of the buri bag then carried by
the petitioner, argues that under Section 12, Rule 136 of the Rules of Court a person
lawfully arrested may be searched for dangerous weapons or anything used as proof of
a commission of an offense without a search warrant. It is further alleged that the arrest
without a warrant of the petitioner was lawful under the circumstances.

Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides as follows:

SEC. 5. Arrest without warrant; when lawful — A peace officer or a private
person may, without a warrant, arrest a person:

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

actually committing, or is attempting to commit an offense;

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

(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
 temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7. (6a, 17a)

From the foregoing provision of law it is clear that an arrest without a warrant may be
effected by a peace officer or private person, among others, when in his presence the
person to be arrested has committed, is actually committing, or is attempting to commit
an offense; or when an offense has in fact just been committed, and he has personal
knowledge of the facts indicating that the person arrested has committed it.

The Solicitor General argues that when the two policemen approached the petitioner, he
was actually committing or had just committed the offense of illegal possession of
firearms and ammunitions in the presence of the police officers and consequently the
search and seizure of the contraband was incidental to the lawful arrest in accordance
with Section 12, Rule 126 of the 1985 Rules on Criminal Procedure. We disagree.

At the time the peace officers in this case identified themselves and apprehended the
petitioner as he attempted to flee they did not know that he had committed, or was
actually committing the offense of illegal possession of firearms and ammunitions. They
just suspected that he was hiding something in the buri bag. They did now know what
its contents were. The said circumstances did not justify an arrest without a warrant.

However, there are many instances where a warrant and seizure can be effected
without necessarily being preceded by an arrest, foremost of which is the "stop and
search" without a search warrant at military or police checkpoints, the constitutionality or
validity of which has been upheld by this Court in Valmonte vs. de Villa, 7 as follows:

Petitioner Valmonte's general allegation to the effect that he had been

stopped and searched without a search warrant by the military manning
the checkpoints, without more, i.e., without stating the details of the
incidents which amount to a violation of his light against unlawful search
and seizure, is not sufficient to enable the Court to determine whether
there was a violation of Valmonte's right against unlawful search and
seizure. Not all searches and seizures are prohibited. Those which are
reasonable are not forbidden. A reasonable search is not to be
determined by any fixed formula but is to be resolved according to the
facts of each case.

Where, for example, the officer merely draws aside the curtain of a vacant
vehicle which is parked on the public fair grounds, or simply looks into a
vehicle or flashes a light therein, these do not constitute unreasonable
search.
 The setting up of the questioned checkpoints in Valenzuela (and probably
in other areas) may be considered as a security measure to enable the
NCRDC to pursue its mission of establishing effective territorial defense
and maintaining peace and order for the benefit of the public. Checkpoints
may also be regarded as measures to thwart plots to destabilize the
government in the interest of public security. In this connection, the Court
may take judicial notice of the shift to urban centers and their suburbs of
the insurgency movement, so clearly reflected in the increased killings in
cities of police and military men by NPA "sparrow units," not to mention
the abundance of unlicensed firearms and the alarming rise in
lawlessness and violence in such urban centers, not all of which are
reported in media, most likely brought about by deteriorating economic
conditions — which all sum up to what one can rightly consider, at the
very least, as abnormal times. Between the inherent right of the state to
protect its existence and promote public welfare and an individual's right
against a warrantless search which is however reasonably conducted, the
former should prevail.

True, the manning of checkpoints by the military is susceptible of abuse by

the men in uniform in the same manner that all governmental power is
susceptible of abuse. But, at the cost of occasional inconvenience,
discomfort and even irritation to the citizen, the checkpoints during these
abnormal times, when conducted within reasonable limits, are part of the
price we pay for an orderly society and a peaceful community. (Emphasis
supplied).

Thus, as between a warrantless search and seizure conducted at military or police

checkpoints and the search thereat in the case at bar, there is no question that, indeed,
the latter is more reasonable considering that unlike in the former, it was effected on the
basis of a probable cause. The probable cause is that when the petitioner acted
suspiciously and attempted to flee with the buri bag there was a probable cause that he
was concealing something illegal in the bag and it was the right and duty of the police
officers to inspect the same.

It is too much indeed to require the police officers to search the bag in the possession of
the petitioner only after they shall have obtained a search warrant for the purpose. Such
an exercise may prove to be useless, futile and much too late.

In People vs. CFI of Rizal, 8 this Court held as follows:

. . . In the ordinary cases where warrant is indispensably necessary, the

mechanics prescribed by the Constitution and reiterated in the Rules of
Court must be followed and satisfied. But We need not argue that there
are exceptions. Thus in the extraordinary events where warrant is not
necessary to effect a valid search or seizure, or when the latter cannot be
performed except without warrant, what constitutes a reasonable or
 unreasonable search or seizure becomes purely a judicial question,
determinable from the uniqueness of the circumstances involved,
including the purpose of the search or seizure, the presence or absence of
probable cause, the manner in which the search and seizure was made,
the place or thing searched and the character of the articles procured.

The Court reproduces with approval the following disquisition of the Solicitor General:

The assailed search and seizure may still be justified as akin to a "stop
and frisk" situation whose object is either to determine the identity of a
suspicious individual or to maintain the status quo momentarily while the
police officer seeks to obtain more information. This is illustrated in the
case of Terry vs. Ohio, 392 U.S. 1 (1968). In this case, two men
repeatedly walked past a store window and returned to a spot where they
apparently conferred with a third man. This aroused the suspicion of a
police officer. To the experienced officer, the behaviour of the men
indicated that they were sizing up the store for an armed robbery. When
the police officer approached the men and asked them for their names,
they mumbled a reply. Whereupon, the officer grabbed one of them, spun
him around and frisked him. Finding a concealed weapon in one, he did
the same to the other two and found another weapon. In the prosecution
for the offense of carrying a concealed weapon, the defense of illegal
search and seizure was put up. The United States Supreme Court held
that "a police officer may in appropriate circumstances and in an
appropriate manner approach a person for the purpose of investigating
possible criminal behaviour even though there is no probable cause to
make an arrest." In such a situation, it is reasonable for an officer rather
than simply to shrug his shoulder and allow a crime to occur, to stop a
suspicious individual briefly in order to determine his identity or maintain
the status quo while obtaining more information. . . .

Clearly, the search in the case at bar can be sustained under the exceptions heretofore
discussed, and hence, the constitutional guarantee against unreasonable searches and
seizures has not been violated. 9

WHEREFORE, the petition is DENIED with costs against petitioner.

SO ORDERED.

Narvasa (Chairman), Cruz, Griño-Aquino and Medialdea, JJ., concur.

G.R. No. 227038

JEFFREY MIGUEL y REMEGIO, Petitioner

vs.
PEOPLE OF THE PHILIPPINES, Respondent
 DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the Decision2 dated October 21,
2015 and the Resolution3 dated September 5, 2016 of the Court of Appeals (CA) in CA-
G.R. CR No. 35318, which affirmed the Decision 4 dated October 1, 2012 of the
Regional Trial Court of Makati City, Branch 64 (RTC) in Criminal Case No. 10-912
convicting petitioner Jeffrey Miguel y Remegio (petitioner) of the crime of illegal
possession of dangerous drugs.

The Facts

On May 27, 2010, an Information5 was filed before the RTC charging petitioner of illegal
possession of dangerous drugs, defined and penalized under Section 11, Article II of
Republic Act No. (RA) 9165,6 otherwise known as the "Comprehensive Dangerous
Drugs Act of 2002," the accusatory portion of which reads:

On the 24111 day of May 2010, in the city of Makati, the Philippines, accused, not being
lawfully authorized to possess any dangerous drug and without the corresponding
license or prescription, did then and there willfully, unlawfully and feloniously have in his
possession, control, and custody a total of one point ten (1.10) grams of dried Marijuana
leaves, a dangerous drug.

CONTRARY TO LAW.7

The prosecution alleged that at around 12:45 in the morning of May 24, 2010, a Bantay
Bayan operative of Barangay San Antonio Village, Makati City named Reynaldo
Bahoyo (BB Bahoyo) was doing his rounds when he purportedly received a report of a
man showing off his private parts at Kaong Street. BB Bahoyo and fellow Bantay
Bayan operative Mark Anthony Velasquez (BB Velasquez) then went to the said street
and saw a visibly intoxicated person, which they later identified as herein petitioner,
urinating and displaying his private parts while standing in front of a gate enclosing an
empty lot. BB Bahoyo and BB Velasquez approached petitioner and asked him where
he lived, and the latter answered Kaong Street. BB Bahoyo then said that he also lived
in the same street but petitioner looked unfamiliar to him, so he asked for an
identification card, but petitioner failed to produce one. BB Velasquez then repeated the
request for an identification card, but instead, petitioner emptied his pockets, revealing a
pack of cigarettes containing one (1) stick of cigarette and two (2) pieces of rolled paper
containing dried marijuana leaves, among others. This prompted BB Bahoyo and BB
Velasquez to seize the foregoing items, take petitioner to the police station, and turn
him, as well as the seized items, over to SP03 Rafael Castillo (SPO3 Castillo). SP03
Castillo then inventoried, marked, and photographed the seized items, all in the
presence of BB Bahoyo and BB Velasquez, and thereafter, prepared an inventory report
and a request for qualitative examination of the seized two (2) pieces of rolled paper
and for petitioner to undergo drug testing. After examination, it was confirmed that the
aforesaid rolled paper contained marijuana and that petitioner was positive for the
presence of methamphetamine but negative for THC-metabolites, both dangerous
drugs.8

Petitioner pleaded not guilty to the charge, and thereafter, presented a different version
of the facts. According to him, he was just urinating in front of his workplace when two
(2) Bantay Bayan operatives, i.e., BB Bahoyo and BB Velasquez, approached and
asked him where he lived. Upon responding that he lived in Kaong Street, BB Bahoyo
and BB Velasquez then frisked him, took away his belongings, and thereafter,
handcuffed and brought him to the barangay hall. He was then detained for about an
hour before being taken to the Ospital ng Makati and to another office where a bald
police officer questioned him. Thereafter, he was taken back to the barangay hall where
they showed him two (2) sticks of marijuana joints allegedly recovered from him. 9

The RTC Ruling

In a Decision10 dated October 1, 2012, the RTC found petitioner guilty beyond

reasonable doubt of the crime charged and, accordingly, sentenced him to suffer the
penalty of imprisonment for an indeterminate period of twelve (12) years and one (1)
day, as minimum, to fourteen (14) years and eight (8) months, as maximum, and to pay
a fine in the amount of ₱300,000.00, without subsidiary imprisonment in case of
insolvency.11

The RTC found that BB Bahoyo and BB Velasquez conducted a valid warrantless
arrest, as petitioner was scandalously showing his private parts at the time of his arrest.
Therefore, the resultant search incidental to such arrest which yielded the seized
marijuana in petitioner's possession was also lawful. In this regard, since the
prosecution has adequately shown that petitioner freely and consciously possessed
such marijuana without authority by law, then he must be convicted for violating Section
11, Article II of RA 9165.12

Aggrieved, petitioner appealed13 to the CA.

The CA Ruling

In a Decision14 dated October 21, 2015, the CA affirmed petitioner's conviction. 15 It held
that the search made on petitioner which yielded the seized marijuana was validly made
as it was done incidental to his arrest for exhibiting his private parts on public. As such,
the said seized marijuana is admissible in evidence and, thus, sufficient to convict him
for the crime charged.16 The CA likewise held that the rule on chain of custody was duly
complied with and, thus, the integrity and evidentiary value of the seized drugs were not
compromise d.17

Undaunted, petitioner moved for reconsideration, 18 which was, however, denied in a

Resolution19 dated September 5, 2016; hence, this petition.
 The Issue Before the Court

The issue for the Court's resolution is whether or not the CA correctly upheld petitioner's
conviction for illegal possession of dangerous drugs.

The Court's Ruling

The petition is meritorious.

In criminal cases, "an appeal throws the entire case wide open for review and the
reviewing tribunal can correct errors, though unassigned in the appealed judgment, or
even reverse the trial court's decision based on grounds other than those that the
parties raised as errors. The appeal confers the appellate court full jurisdiction over the
case and renders such court competent to examine records, revise the judgment
appealed from, increase the penalty, and cite the proper provision of the penal law." 20

Proceeding from the foregoing, and as will be explained hereunder, petitioner's

conviction must be set aside.

One of the arguments presented in the instant petition is that the search and arrest
made on petitioner were illegal and, thus, the marijuana purportedly seized from him is
inadmissible in evidence.21 In this relation, it is worth noting that his arresting
officers, i.e., BB Bahoyo and BB Velasquez, are mere Bantay Bayan operatives of
Makati City. Strictly speaking, they are not government agents like the Philippine
National Police (PNP) or the National Bureau of Investigation in charge of law
enforcement; but rather, they are civilian volunteers who act as "force multipliers" to
assist the aforesaid law enforcement agencies in maintaining peace and security within
their designated areas.22 Particularly, jurisprudence described the nature of Bantay
Bayan as "a group of male residents living in [the] area organized for the purpose of
keeping peace in their community[, which is] an accredited auxillary of the x x x
PNP."23 In the case of Dela Cruz v. People24 involving civilian port personnel conducting
security checks, the Court thoroughly discussed that while the Bill of Rights under
Article III of the 1987 Constitution generally cannot be invoked against the acts of
private individuals, the same may nevertheless be applicable if such individuals act
under the color of a state-related function, viz.:

With regard to searches and seizures, the standard imposed on private persons is
different from that imposed on state agents or authorized government authorities.

In People v. Marti, the private forwarding and shipping company, following standard

operating procedure, opened packages sent by accused Andre Marti for shipment to
Zurich, Switzerland and detected a peculiar odor from the packages. The representative
from the company found dried marijuana leaves in the packages. He reported the
matter to the National Bureau of Investigation and brought the samples to the Narcotics
Section of the Bureau for laboratory examination. Agents from the National Bureau of
Investigation subsequently took custody of the illegal drugs. Andre Marti was charged
with and was found guilty of violating Republic Act No. 6425, otherwise known as the
Dangerous Drugs Act.

This court held that there was no unreasonable search or seizure. The evidence
obtained against the accused was not procured by the state acting through its police
officers or authorized government agencies. The Bill of Rights does not govern
relationships between individuals; it cannot be invoked against the acts of private
individuals:

If the search is made upon the request of law enforcers, a warrant must generally be
first secured if it is to pass the test of constitutionality. However, if the search is made at
the behest or initiative of the proprietor of a private establishment for its own and private
purposes, as in the case at bar, and without the intervention of police authorities, the
right against unreasonable search and seizure cannot be invoked for only the act of
private individual, not the law enforcers, is involved. In sum, the protection against
unreasonable searches and seizures cannot be extended to acts committed by private
individuals so as to bring it within the ambit of alleged unlawful intrusion by the
government.

xxxx

The Cebu Port Authority is clothed with authority by the state to oversee the security of
persons and vehicles within its ports. While there is a distinction between port personnel
and port police officers in this case, considering that port personnel are not necessarily
law enforcers, both should be considered agents of government under Article III of the
Constitution. The actions of port personnel during routine security checks at ports have
the color of a state-related function.

In People v. Malngan, barangay tanod and the Barangay Chairman were deemed as

law enforcement officers for purposes of applying Article III of the Constitution.
In People v. Lauga, this court held that a "bantav bayan," in relation to the authority to
conduct a custodial investigation under Article III, Section 12 of the Constitution, "has
the color of a state-related function and objective insofar as the entitlement of a suspect
to his constitutional rights[.]"

Thus, with port security personnel's functions having the color of state-related functions
and deemed agents of government, Marti is inapplicable in the present case. x x
x.25 (Emphases and underscoring supplied)

In this light, the Court is convinced that the acts of the Bantay Bayan - or any barangay-
based or other volunteer organizations in the nature of watch groups - relating to the
preservation of peace and order in their respective areas have the color of a state-
related function. As such, they should be deemed as law enforcement authorities for the
purpose of applying the Bill of Rights under Article III of the 1987 Constitution to them. 26
Having established that the Bill of Rights may be applied to the Bantay
Bayan operatives who arrested and subsequently searched petitioner, the Court shall
now determine whether such arrest and search were validly made.

"Section 2,27 Article III of the 1987 Constitution mandates that a search and seizure
must be carried out through or on the strength of a judicial warrant predicated upon the
existence of probable cause, absent which, such search and seizure becomes
"unreasonable" within the meaning of said constitutional provision. To protect the
people from unreasonable searches and seizures, Section 3 (2), 28 Article III of the 1987
Constitution provides that evidence obtained from unreasonable searches and
seizures shall be inadmissible in evidence for any purpose in any proceeding. In
other words, evidence obtained and confiscated on the occasion of such unreasonable
searches and seizures are deemed tainted and should be excluded for being the
proverbial fruit of a poisonous tree.29

One of the recognized exceptions to the need [of] a warrant before a search may be
[e]ffected is a search incidental to a lawful arrest. In this instance, the law requires
that there first be a lawful arrest before a search can be made- the process cannot
be reversed.30

A lawful arrest may be effected with or without a warrant. With respect to the latter, the
parameters of Section 5, Rule 113 of the Revised Rules of Criminal Procedure should -
as a general rule - be complied with:

Section 5. Arrest without warrant; when lawful. - A peace officer or a private person
may, without a warrant arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested
has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined
while his case is pending, or has escaped while being transferred from one confinement
to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with Section 7 of Rule 112.

The aforementioned provision identifies three (3) instances when warrantless arrests
may be lawfully effected. These are: (a) an arrest of a suspect in flagrante
delicto; (b) an arrest of a suspect where, based on personal knowledge of the arresting
officer, there is probable cause that said suspect was the perpetrator of a crime which
had just been committed; and (c) an arrest of a prisoner who has escaped from custody
serving final judgment or temporarily confined during the pendency of his case or has
escaped while being transferred from one confinement to another. 31

In warrantless arrests made pursuant to Section 5 (a), Rule 113, two (2) elements must
concur, namely: (a) the person to be arrested must execute an overt act indicating that
he has just committed, is actually committing, or is attempting to commit a crime; and
(b) such overt act is done in the presence or within the view of the arresting officer. On
the other hand, Section 5 (b), Rule 113 requires for its application that at the time of the
arrest, an offense had in fact just been committed and the arresting officer had personal
knowledge of facts indicating that the accused had committed it. 32

In both instances, the officer's personal knowledge of the fact of the commission of an
offense is essential. Under Section 5 (a), Rule 113 of the Revised Rules of Criminal
Procedure, the officer himself witnesses the crime; while in Section 5 (b) of the same,
he knows for a fact that a crime has just been committed." 33

In this case, the prosecution claims that the BB Bahoyo and BB Velasquez simply
responded to a purported report of a man showing off his private parts at Kaong Street
which led to petitioner's arrest. On the other hand, petitioner maintains that he was just
urinating in front of his workplace when the Bantay Bayan operatives suddenly
approached and questioned him, and thereafter, frisked and arrested him. BB Bahoyo's
testimony on direct and cross-examinations is enlightening on this matter, to wit:

PROSECUTOR: x x x

xxxx

So, upon seeing Jeffrey Miguel, what did you do?

WITNESS: We approached him and we asked him what was he doing in that place and
he appears to be intoxicated, ma'am.

PROSECUTOR: After questioning him, what did you do?

WITNESS: We asked him from where he is residing and he told us that he is from
Caong Street.

PROSECUTOR: What you do next?

WITNESS: Because I also live in Caong and he is not familiar to me, I asked for his I.D,
ma'am.

PROSECUTOR: Was he able to produce an I.D?

WITNESS: He was not able to produce any I.D., ma'am.

PROSECUTOR: When he failed to produce any I.D., what did you do?

WITNESS: One of my companions asked him if he has any I.D. with him.

PROSECUTOR: Who was this companion of yours?

WITNESS: Mark Anthony Velasquez, ma'am.

PROSECUTOR: What was the response of Jeffrey to the request of Mark Anthony
Velasquez?

WITNESS: He brought out the contents of his pocket and he brought out one pack of
Fortune with one stick inside and another pack, Marlboro light pack with one stick of
cigarette and two sticks of marijuana.

xxxx

[on cross-examination]

ATTY. PUZON: When you saw certain Jeffrey, you were not familiar with him, is that
correct?

WITNESS: No, sir, I am not familiar with him.

A TTY. PUZON: And when you saw him, he was already showing his private parts, is
that correct?

WITNESS: Yes, sir.

A TTY. PUZON: In your "Pinagsanib na Sinumpaang Salaysay" you stated that when
you saw Jeffrey, his back was turned to you and it seemed that he was
peeing.1âwphi1 Do you remember saying that in your "Pinagsanib na Sinumpaang
Salaysay"?

WITNESS: Yes, sir.

A TTY. PUZON: So, is it not true that when you saw him, he was already showing his
private parts?

WITNESS: He was showing his private parts, sir.

ATTY. PUZON: While his back turned to you?

WITNESS: Yes, sir.

ATTY. PUZON: How could you see his private parts if his back was turned against you?

WITNESS: He faced us, sir.

xxxx

COURT: Did you charge the accused for urinating in a public place or for showing
his private parts?

WITNESS: No, Your Honor.

ATTY. PUZON: And in fact, only a drug case was filed against Jeffrey?

WITNESS: I have no idea, sir. (Emphases and underscoring supplied) 34

On the other hand, pertinent portions of petitioner's Judicial Affidavit 35 containing his
direct testimony read:

Q: Naaalala mo pa ba ang petsang 24 May 2010?

A: Opo. Iyon po ang araw nang aka ay dakpin ng dalawang bantay-bayan.

Q: Ano ang naaalala mo bago ka mahuli, kung mayroon man?

A: Mga bandang pasado alas dose ng hating gabi aka ay umihi sa tapat ng
pinagtatrabahuhan ko ng may biglang lumapit sa akin na dalawang bantay-bayan.

Q: Ano ang sumunod na nangvari x x x, kung mavroon man?

A: Nagtanong po sila kung saan ako nakatira at sinagot ko na nakatira ako sa Kaong
St., Brgy. San Antonio Village, Makati City at pagkatapos ay kinapkapan nila ako.

Q: May nakulta ba sila sa iyo pakatapos kang kapkapan, kung mayroon man?

A: Opo. Nakulta nila ang aking charger, cellphone, lighter at sigarilyong Fortune.

Q: Ano ang sumunod na nangyari, kung mayroon man?

A: Pinosasan nila ako at dinala sa barangay.36 (Emphases and underscoring supplied)

On cross-examination, petitioner testified, as follows:

PROSECUTOR: x x x Mr. Witness, you said that at past 12:00 in the midnight of May
24, 2010 you were arrested by two Bantay Bayan, do you affirm that Mr. Witness?

WITNESS: Yes, ma'am.

PROSECUTOR: And how did you know that they are Bantay Bayan complement?

WITNESS: They told me that they were Bantay Bayan personnel, ma'am.

PROSECUTOR: What were you doing then, Mr. Witness?

WITNESS: Urinating in front of my place of work, ma'am.

xxxx

PROSECUTOR: And you were working at that time that you were allegedly arrested by
these two Bantay Bayan complement, Mr. Witness?

WITNESS: Not anymore because I was staying in at the company, ma'am.

xxxx

PROSECUTOR: You urinated outside because you do not have a comfort room inside,
is it not a fact, Mr. Witness?

WITNESS: Yes, ma'am.

PROSECUTOR: What is this Fine Home Incorporation doing, Mr. Witness?

WITNESS: I am a caretaker at Fine Home Incorporation I guard the steels,

ma'am.37 (Emphases and underscoring supplied)

On the basis of the foregoing testimonies, the Court is inclined to believe that at around
past 12 o'clock in the early morning of May 24, 2010, petitioner went out to the street to
urinate when the Bantay Bayan operatives chanced upon him. The latter then
approached and questioned petitioner, and thereafter, went on to search his person,
which purportedly yielded the marijuana seized from him. Verily, the prosecution's claim
that petitioner was showing off his private parts was belied by the aforesaid testimonies.
Clearly, these circumstances do not justify the conduct of an in jlagrante delicto arrest,
considering that there was no overt act constituting a crime committed by petitioner in
the presence or within the view of the arresting officer. Neither do these circumstances
necessitate a "hot pursuit" warrantless arrest as the arresting Bantay Bayan operatives
do not have any personal knowledge of facts that petitioner had just committed an
offense.

More importantly, the Court simply finds highly implausible the prosecution's claim that a
valid warrantless arrest was made on petitioner on account of the alleged public display
of his private parts because if it was indeed the case, then the proper charge should
have been filed against him. However, records are bereft of any showing that such
charge was filed aside from the instant criminal charge for illegal possession of
dangerous drugs - thereby strengthening the view that no prior arrest was made on
petitioner which led to a search incidental thereto. As stressed earlier, there must first
be a lawful arrest before a search can be made and that such process cannot be
reversed.

All told, the Bantay Bayan operatives conducted an illegal search on the person of

petitioner. Consequently, the marijuana purportedly seized from him on account of such
search is rendered inadmissible in evidence pursuant to the exclusionary rule under
Section 3 (2), Article III of the 1987 Constitution. Since the confiscated marijuana is the
very corpus delicti of the crime charged, petitioner must necessarily be acquitted and
exonerated from criminal liability.38
WHEREFORE, the petition is GRANTED. The Decision dated October 21, 2015 and the
Resolution dated September 5, 2016 of the Court of Appeals in CA-G.R. CR No. 35318
are hereby REVERSED and SET ASIDE. Accordingly, petitioner Jeffrey
Miguel y Remegio is ACQUITTED of the crime of illegal possession of dangerous drugs
defined and penalized under Section 11, Article II of Republic Act No. 9165. The
Director of the Bureau of Corrections is ordered to cause his immediate release, unless
he is being lawfully held for any other reason.

SO ORDERED.

SECOND DIVISION

G.R. No. 209387, January 11, 2016

ERWIN LIBO-ON DELA CRUZ, Petitioner, v. PEOPLE OF THE

PHILIPPINES, Respondent.

DECISION

LEONEN, J.

Routine baggage inspections conducted by port authorities, although done

without search warrants, are not unreasonable searches per se.
Constitutional provisions protecting privacy should not be so literally
understood so as to deny reasonable safeguards to ensure the safety of the
traveling public.

For resolution is a Petition for Review on Certiorari1 assailing the

Decision2 dated September 28, 2012 and the Resolution3 dated August 23,
2013 of the Court of Appeals, Cebu City.4 The Court of Appeals affirmed5 the
trial court's Judgment6 finding petitioner Erwin Libo-on Dela Cruz (Dela Cruz)
guilty beyond reasonable doubt of possessing unlicensed firearms under
Commission on Elections Resolution No. 77647 in relation to Section 2618 of
Batas Pambansa Big. 8819 during the 2007 election period.10
Dela Cruz was an on-the-job trainee of an inter-island vessel. He frequently
traveled, "coming back and forth taking a vessel."12 At around 12:00 noon of
May 11, 2007, Dela Cruz was at a pier of the Cebu Domestic Port to go
home to Iloilo.13While buying a ticket, he allegedly left his bag on the floor
with a porter.14 It took him around 15 minutes to purchase a ticket.15

Dela Cruz then proceeded to the entrance of the terminal and placed his bag
on the x-ray scanning machine for inspection.16 The operator of the x-ray
machine saw firearms inside Dela Cruz's bag.17

Cutie Pie Flores (Flores) was the x-ray machine operator-on-duty on May 11,
2007.18 She saw the impression of what appeared to be three (3) firearms
inside Dela Cruz's bag.19 Upon seeing the suspected firearms, she called the
attention of port personnel Archie Igot (Igot) who was the baggage inspector
then.20

Igot asked Dela Cruz whether he was the owner of the bag.21 Dela Cruz
answered Igot in the affirmative and consented to Igot's manual inspection
of the bag.22

"Port Police Officer Adolfo Abregana [(Officer Abregana)] was on duty at the
terminal of the Cebu Domestic Port in Pier 1-G when his attention was called
by ... Igot."23 Igot told Officer Abregana that there were firearms in a bag
owned by a certain person.24 Igot then pointed to the person.25 That person
was later identified as Dela Cruz.26

Dela Cruz admitted that he was owner of the bag.27 The bag was then
inspected and the following items were found inside: three (3) revolvers;
NBI clearance; seaman's book; other personal items; and four (4) live
ammunitions placed inside the cylinder.28 When asked whether he had the
proper documents for the firearms, Dela Cruz answered in the negative.29

Dela Cruz was then arrested and informed of his violation of a crime
punishable by law.30 He was also informed of his constitutional rights.31

In the Information dated November 19, 2003, Dela Cruz was charged with
violation of Republic Act No. 8294 for illegal possession of
firearms.32chanroblesvirtuallawlibrary

Criminal Case No. CBU -80084

That on or about the 11th day of May 2007, at about 12:45 p.m. in the City
of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, with the deliberate intent and without being authorized by law,
did then and there possess and carry outside his residence one (1) Cal. 38
Simith [sic] & Wesson revolver without serial number; one (1) .22 Smith &
Wesson Magnum revolver without serial number; one (1) North American
Black Widow magnum revolver without serial number and four rounds of live
ammunitions for cal. 38 without first securing the necessary license to
possess and permit to carry from the proper authorities.

CONTRARY TO LAW.33ChanRoblesVirtualawlibrary
cralawlawlibrary

Subsequently, another Information was filed charging Dela Cruz with the
violation of Commission on Elections Resolution No. 7764, in relation to
Section 261 of Batas Pambansa Blg. 88134chanroblesvirtuallawlibrary

Criminal Case No. CBU 80085

That on or about the 11th day of May 2007, at about 12:45 in the afternoon,
which is within the election period for the May 14, 2007 National and Local
Elections, in the City of Cebu, Philippines and within the jurisdiction of this
Honorable Court, the said accused, with deliberate intent, did then and there
possess and carry outside his residence the following

One (1) cal. .38 Simith [sic] & Wesson revolver without serial number; One
(1) cal. .22 Smith & Wesson Magnum revolver without serial number; One
(1) North American Black Widow magnum revolver without serial number
and four (4) rounds of live ammunitions for cal. 38.

CONTRARY TO LAW.35ChanRoblesVirtualawlibrary
cralawlawlibrary

Dela Cruz entered a plea of not guilty to both charges during arraignment.36

After trial, Branch 12 of the Regional Trial Court, Cebu City found Dela Cruz
guilty beyond reasonable doubt of violating the Gun Ban under Commission
on Elections Resolution No. 7764, in relation to Section 261 of Batas
Pambansa Blg. 881 in Criminal Case No. CBU 80085.37 Dela Cruz was
sentenced to suffer imprisonment of one (1) year with disqualification from
holding public office and the right to suffrage.38

According to the trial court, the prosecution was able to prove beyond
reasonable doubt that Dela Cruz committed illegal possession of
firearms.39 It proved the following elements: "(a) the existence of the
subject firearm and (b) the fact that the accused who owned or possessed it
does not have the license or permit to possess the same."40 The prosecution
presented the firearms and live ammunitions found in Dela Cruz's
possession.41 It also presented three (3) prosecution witnesses who testified
that the firearms were found inside Dela Cruz's bag.42 The prosecution also
presented a Certification that Dela Cruz did not file any application for
license to possess a firearm, and he was not given authority to carry a
firearm outside his residence.43

The trial court also held that the search conducted by the port authorities
was reasonable and, thus, valid44chanroblesvirtuallawlibrary

Given the circumstances obtaining here, the court finds the search
conducted by the port authorities reasonable and, therefore, not violative of
the accused's constitutional rights. Hence, when the search of the bag of the
accused revealed the firearms and ammunitions, accused is deemed to have
been caught in flagrante delicto, justifying his arrest even without a warrant
under Section 5(a), Rule 113 of the Rules of Criminal Procedure. The
firearms and ammunitions obtained in the course of such valid search are
thus admissible as evidence against [the]
accused.45ChanRoblesVirtualawlibrary
cralawlawlibrary

The trial court did not give credence to Dela Cruz's claim that the firearms
were "planted" inside his bag by the porter or anyone who could have
accessed his bag while he was buying a ticket.46 According to the trial court,
Dela Cruz's argument was "easy to fabricate, but terribly difficult to
disprove."47 Dela Cruz also did not show improper motive on the part of the
prosecution witnesses to discredit their testimonies.48

The trial court dismissed the case for violation of Republic Act No. 8294.49 It
held that "Republic Act No. 8294 penalizes simple illegal possession of
firearms, provided that the person arrested committed 'no other
crime.'"50 Dela Cruz, who had been charged with illegal possession of
firearms, was also charged with violating the Gun Ban under Commission on
Elections Resolution No. 7764.51

The dispositive portion of the trial court's Consolidated Judgment reads

WHEREFORE, the Court finds the accused guilty beyond reasonable doubt
of violation of COMELEC Resolution No. 7764 in relation to Section 261 of BP
Blg. 881 in Criminal Case No. CBU-80085, and hereby sentences him to
suffer an imprisonment for a period of one (1) year, and to suffer
disqualification to hold public office and deprivation of the right to suffrage.
While Criminal Case No. CBU-80084 for Violation of RA 8294 is
hereby DISMISSED. Accordingly, the cash bond posted by accused therein
for his provisional liberty is hereby ordered cancelled and released to said
accused.

The subject firearms (Exhs. "H", "I" & "J"), and the live ammunitions (Exhs.
"K to K-2"") shall, however, remain in custodia legis for proper disposition of
the appropriate government agency.

SO ORDERED.52 (Emphasis in the original)

cralawlawlibrary

On appeal, the Court of Appeals affirmed the trial court's Judgment.53 It held
that the defense failed to show that the prosecution witnesses were moved
by improper motive; thus, their testimonies are entitled to full faith and
credit.54 The acts of government authorities were found to be regular.55

The Court of Appeals did not find Dela Cruz's defense of denial
meritorious.56 "Denial as a defense has been viewed upon with disfavor by
the courts due to the ease with which it can be concocted."57 Dela Cruz did
not present any evidence "to show that he had authority to carry outside of
residence firearms and ammunition during the period of effectivity of the
Gun Ban [during] election time." The prosecution was able to prove Dela
Cruz's guilt beyond reasonable doubt.

The dispositive portion of the assailed Decision provides

WHEREFORE, premises considered, the appeal is hereby DENIED. The

assailed January 27, 2010 Consolidated Judgment of the Regional Trial Court
(RTC), Branch 12 of Cebu City in Criminal Case CBU-59434 is hereby
AFFIRMED. Costs on accused-appellant.

SO ORDERED.59 (Emphasis in the original)

cralawlawlibrary

Dela Cruz filed a Motion for Reconsideration,60 which was denied by the

Court of Appeals in its Resolution dated August 23, 2013.61

Dela Cruz filed this Petition on November 4, 2013.62 In the Resolution63 dated

December 9, 2013, this court required respondent, through the Office of the
Solicitor General, to submit its Comment on the Petition. Respondent
submitted its Comment64 on March 6, 2014, which this court noted in the
Resolution65 dated March 19, 2014.
Dela Cruz claims that he was an on-the-job trainee for an inter-island
vessel.66 He was "well[-]acquainted with [the] inspection scheme [at the]
ports."67 He would not have risked placing prohibited items such as
unlicensed firearms inside his luggage knowing fully the consequences of
such an action.68

According to Dela Cruz, when he arrived at the port on May 11, 2007, he left
his luggage with a porter to buy a ticket.69 "A considerable time of fifteen
minutes went by before he could secure the ticket while his luggage was left
sitting on the floor with only the porter standing beside it."70 He claims that
someone must have placed the unlicensed firearms inside his bag during the
period he was away from it.71 He was surprised when his attention was
called by the x-ray machine operator after the firearms were detected.72

Considering the circumstances, Dela Cruz argues that there was no

voluntary waiver against warrantless search73chanroblesvirtuallawlibrary

In petitioner's case, it may well be said that, with the circumstances

attending the search of his luggage, he had no actual intention to relinquish
his right against warrantless searches. He knew in all honest belief that
when his luggage would pass through the routine x-ray examination, nothing
incriminating would be recovered. It was out of that innocent confidence that
he allowed the examination of his luggage. . . . [H]e believed that no
incriminating evidence wfouldj be found. He knew he did not place
those items. But what is strikingly unique about his situation is that a
considerable time interval lapsed, creating an opportunity for someone else
to place inside his luggage those incriminating items.74 (Emphasis in the
original)cralawlawlibrary

Respondent argues that there was a valid waiver of Dela Cruz's right to
unreasonable search and seizure, thus warranting his conviction.75 Dela Cruz
was "caught in flagrante delicto carrying three (3) revolvers and four (4) live
ammunitions when his bag went through the x-ray machine in the Cebu
Domestic Port on May 11, 2007, well within the election period."76 The
firearms were seized during a routine baggage x-ray at the port of Cebu, a
common seaport security procedure.77

According to respondent, this case is similar to valid warrantless searches

and seizures conducted by airport personnel pursuant to routine airport
security procedures.78

Records are also clear that Dela Cruz voluntarily waived his right to
unreasonable searches and seizure.79 The trial court found that Dela Cruz
voluntarily gave his consent to the search.80

Dela Cruz's claim that his bag was switched is also baseless.81 The witnesses
categorically testified that Dela Cruz was "in possession of the bag before it
went through the x-ray machine, and he was also in possession of the same
bag that contained the firearms when he was apprehended."82

Dela Cruz raised the lone issue of "whether the Court of Appeals gravely
erred in finding [him] guilty beyond reasonable doubt of the crime charged
despite the failure of the prosecution to establish his guilt beyond reasonable
doubt[.]"83

The issues for resolution in this case are

First, whether petitioner Erwin Libo-on Dela Cruz was in possession of the
illegal firearms within the meaning of the Commission on Elections
Resolution No. 7764, in relation to Section 261 of Batas Pambansa Blg. 881;

Second, whether petitioner waived his right against unreasonable searches

and seizures; and

Lastly, assuming that there was no waiver, whether there was a valid search
and seizure in this case.

We deny the Petition.

The present criminal case was brought to this court under Rule 45 of the
Rules of Court. The penalty imposed on petitioner by the trial court is
material in determining the mode of appeal to this court. A petition for
review on certiorari under Rule 45 must be differentiated from appeals under
Rule 124, Section 1384 involving cases where the lower court imposed on the
accused the penalty of reclusion perpetua, life imprisonment, or, previously,
death.85

In Mercado v. People86chanroblesvirtuallawlibrary

Where the Court of Appeals finds that the imposable penalty in a criminal
case brought to it on appeal is at least reclusion perpetua, death or life
imprisonment, then it should impose such penalty, refrain from entering
judgment thereon, certify the case and elevate the entire records to this
Court for review. This will obviate the unnecessary, pointless and time-
wasting shuttling of criminal cases between this Court and the Court of
Appeals, for by then this Court will acquire jurisdiction over the case from
the very inception and can, without bothering the Court of Appeals which
has fully completed the exercise of its jurisdiction, do justice in the case.

On the other hand, where the Court of Appeals imposes a penalty less than
reclusion perpetua, a review of the case may be had only by petition for
review on certiorari under Rule 45 where only errors or questions of law may
be raised.87 (Emphasis supplied, citations omitted)cralawlawlibrary

It is settled that in petitions for review on certiorari, only questions of law

are reviewed by this court.88 The rule that only questions of law may be
raised in a petition for review under Rule 45 is based on sound and practical
policy considerations stemming from the differing natures of a question of
law and a question of fact

A question of law exists when the doubt or controversy concerns the correct
application of law or jurisprudence to a certain set of facts; or when the
issue does not call for an examination of the probative value of the evidence
presented, the truth or falsehood of facts being admitted. A question of fact
exists when the doubt or difference arises as to the truth or falsehood of
facts or when the query invites calibration of the whole evidence considering
mainly the credibility of the witnesses, the existence and relevancy of
specific surrounding circumstances as well as their relation to each other and
to the whole, and the probability of the
situation.89ChanRoblesVirtualawlibrary
cralawlawlibrary

Concomitantly, factual findings of the lower courts as affirmed by the Court

of Appeals are binding on this court.90

In contrast, an appeal in a criminal case "throws the whole case open for
review[.]"91 The underlying principle is that errors in an appealed judgment,
even if not specifically assigned, may be corrected motu propio by the court
if the consideration of these errors is necessary to arrive at a just resolution
of the case.92 Nevertheless, "the right to appeal is neither a natural right nor
a part of due process, it being merely a statutory privilege which may be
exercised only in the manner provided for by law[.]"93

II

Petitioner argues that the firearms found in his bag were not his. Thus, he
could not be liable for possessing the contraband. Key to the resolution of
this case is whether petitioner possessed firearms without the necessary
authorization from the Commission on Elections. Petitioner was charged
under special laws: Republic Act No. 8294 and Commission on Elections
Resolution No. 7764, in relation to Section 261 of Batas Pambansa Blg. 881.

The law applicable is Section 2(a) of Commission on Elections Resolution No.

7764, which provides

SECTION 2. Prohibitions. During the election period from January 14, 2007 it
shall be unlawful for

a. Any person, including those possessing a permit to carry

firearms outside of residence or place of business, to bear, carry
or transport firearms or other deadly weapons in public places
including any building, street, park, private vehicle or public
conveyance. For the purpose firearm includes airgun, while
deadly weapons include hand grenades or other explosives,
except pyrotechnics[.]

cralawlawlibrary

Section 261 (q) of Batas Pambansa Blg. 881 states

Section 261. Prohibited Acts. - The following shall be guilty of an election

offense

....

(q) Carrying firearms outside residence or place of business. - Any person

who, although possessing a permit to carry firearms, carries any firearms
outside his residence or place of business during the election period, unless
authorized in writing by the Commission: Provided, That a motor vehicle,
water or air craft shall not be considered a residence or place of business or
extension hereof. (Par. (1), Id.)

This prohibition shall not apply to cashiers and disbursing officers while in
the performance of their duties or to persons who by nature of their official
duties, profession, business or occupation habitually carry large sums of
money or valuables.
cralawlawlibrary

For a full understanding of the nature of the constitutional rights involved,

we will examine three (3) points of alleged intrusion into the right to privacy
of petitioner: first, when petitioner gave his bag for x-ray scanning to port
authorities; second, when the baggage inspector opened petitioner's bag
and called the Port Authority Police; and third, when the police officer
opened the bag to search, retrieve, and seize the firearms and ammunition.

III

The first point of intrusion occurred when petitioner presented his bag for
inspection to port personnel—the x-ray machine operator and baggage
inspector manning the x-ray machine station.94 With regard to searches and
seizures, the standard imposed on private persons is different from that
imposed on state agents or authorized government authorities.

In People v. Marti,95 the private forwarding and shipping company, following

standard operating procedure, opened packages sent by accused Andre
Marti for shipment to Zurich, Switzerland and detected a peculiar odor from
the packages.96 The representative from the company found dried marijuana
leaves in the packages.97 He reported the matter to the National Bureau of
Investigation and brought the samples to the Narcotics Section of the
Bureau for laboratory examination.98 Agents from the National Bureau of
Investigation subsequently took custody of the illegal drugs.99 Andre Marti
was charged with and was found guilty of violating Republic Act No. 6425,
otherwise known as the Dangerous Drugs Act.100

This court held that there was no unreasonable search or seizure.101 The

evidence obtained against the accused was not procured by the state acting
through its police officers or authorized government agencies.102 The Bill of
Rights does not govern relationships between individuals; it cannot be
invoked against the acts of private individuals103chanroblesvirtuallawlibrary

If the search is made upon the request of law enforcers, a warrant must
generally be first secured if it is to pass the test of constitutionality.
However, if the search is made at the behest or initiative of the proprietor of
a private establishment for its own and private purposes, as in the case at
bar, and without the intervention of police authorities, the right against
unreasonable search and seizure cannot be invoked for only the act of
private individual, not the law enforcers, is involved. In sum, the protection
against unreasonable searches and seizures cannot be extended to acts
committed by private individuals so as to bring it within the ambit of alleged
unlawful intrusion by the government.104ChanRoblesVirtualawlibrary
cralawlawlibrary

Hence, by virtue of Marti, items seized pursuant to a reasonable search

conducted by private persons are not covered by the exclusionary rule.105
To determine whether the intrusion by the port personnel in this case was
committed by private or public persons, we revisit the history and
organizational structure of the Philippine Ports Authority.

Port security measures are consistent with the country's aim to develop
transportation and trade in conjunction with national and economic growth.
In 1974, the Philippine Ports Authority was created for the reorganization of
port administration and operation functions.106 The Philippine Ports
Authority's Charter was later revised through Presidential Decree No. 857.
The Revised Charter provided that the Authority may

after consultation with relevant Government agencies, make rules or

regulations for the planning, development, construction, maintenance,
control, supervision and management of any Port or Port District and the
services to be provided therein, and for the maintenance of good order
therein, and generally for carrying out the process of this
Decree.107cralawlawlibrary

The Philippine Ports Authority was subsequently given police authority

through Executive Order No. 513,108 which provides

Sec. 2. Section 6 is hereby amended by adding a new paragraph to read as

follows

Section 6-c. Police Authority - The Authority shall have such police authority
within the ports administered by it as may be necessary to carry out its
powers and functions and attain its purposes and objectives, without
prejudice to the exercise of the functions of the Bureau of Customs and
other law enforcement bodies within the area. Such police authority shall
include the following

a) To provide security to cargoes, port equipment, structure, facilities,

personnel and documents: Provided, however, That in ports of entry,
physical security to import and export cargoes shall be exercised jointly with
the Bureau of Customs;

b) To regulate the entry to, exit from, and movement within the port, of
persons and vehicles, as well as movement within the port of watercraft;

c) To maintain peace and order inside the port, in coordination with local
police authorities;

d) To supervise private security agencies operating within the port area; and
e) To enforce rules and regulations promulgated by the Authority pursuant
to law. (Emphasis supplied)
cralawlawlibrary

In 1992, the Cebu Port Authority was created to specifically administer all
ports located in the Province of Cebu.109 The Cebu Port Authority is a "public-
benefit corporation . . . under the supervision of the Department of
Transportation and Communications for purposes of policy
coordination."110 Control of the ports was transferred to the Cebu Port
Authority on January 1, 1996, when its operations officially began.111

In 2004, the Office for Transportation Security was designated as the "single
authority responsible for the security of the transportation systems [in] the
country[.]"112 Its powers and functions included providing security measures
for all transportation systems in the country

b. Exercise operational control and supervision over all units of law

enforcement agencies and agency personnel providing security services in
the transportation systems, except for motor vehicles in land transportation,
jointly with the heads of the bureaus or agencies to which the units or
personnel organically belong or are assigned;

c. Exercise responsibility for transportation security operations including, but

not limited to, security screening of passengers, baggage and cargoes, and
hiring, retention, training and testing of security screening personnel;

d. In coordination with the appropriate agencies and/or instrumentalities of

the government, formulate, develop, promulgate and implement
comprehensive security plans, policies, measures, strategies and programs
to ably and decisively deal with any threat to the security of transportation
systems, and continually review, assess and upgrade such security plans,
policies, measures, strategies and programs, to improve and enhance
transportation security and ensure the adequacy of these security measures;

e. Examine and audit the performance of transportation security personnel,

equipment and facilities, and, thereafter, establish, on a continuing basis,
performance standards for such personnel, equipment and facilities,
including for the training of personnel;

f. Prepare a security manual/master plan or programme which shall

prescribe the rules and regulations for the efficient and safe operation of all
transportation systems, including standards for security screening
procedures, prior screening or profiling of individuals for the issuance of
security access passes, and determination of levels of security clearances for
personnel of the OTS, the DOTC and its attached agencies, and other
agencies of the government;

g. Prescribe security and safety standards for all transportation systems in

accordance with existing laws, rules, regulations and international
conventions;

h. Subject to the approval of the Secretary of the DOTC, issue

Transportation Security Regulations/Rules and amend, rescind or revise such
regulations or rules as may be necessary for the security of the
transportation systems of the country[.]113 (Emphasis
supplied)cralawlawlibrary

The Cebu Port Authority has adopted security measures imposed by the
Office for Transportation Security, including the National Security
Programme for Sea Transport and Maritime Infrastructure.114

The Cebu Port Authority is clothed with authority by the state to oversee the
security of persons and vehicles within its ports. While there is a distinction
between port personnel and port police officers in this case, considering that
port personnel are not necessarily law enforcers, both should be considered
agents of government under Article III of the Constitution. The actions of
port personnel during routine security checks at ports have the color of a
state-related function.

In People v. Malngan,115 barangay tanod and the Barangay Chairman were

deemed as law enforcement officers for purposes of applying Article III of
the Constitution.116 In People v. Lauga,117 this court held that a "bantay
bayan," in relation to the authority to conduct a custodial investigation under
Article III, Section 12118 of the Constitution, "has the color of a state-related
function and objective insofar as the entitlement of a suspect to his
constitutional rights[.]"119

Thus, with port security personnel's functions having the color of state-
related functions and deemed agents of government, Marti is inapplicable in
the present case. Nevertheless, searches pursuant to port security measures
are not unreasonable per se. The security measures of x-ray scanning and
inspection in domestic ports are akin to routine security procedures in
airports.

In People v. Suzuki,120 the accused "entered the pre-departure area of the

Bacolod Airport Terminal."121 He was "bound for Manila via flight No. 132 of
the Philippine Airlines and was carrying a small traveling bag and a box
marked 'Bongbong's piaya."122 The accused "proceeded to the 'walk through
metal detector,' a machine which produces a red light and an alarm once it
detects the presence of metallic substance or object."123 "Thereupon, the red
light switched on and the alarm sounded, signifying the presence of metallic
substance either in his person or in the box he was carrying."124 When the
accused was asked to open the content of the box, he answered "open,
open."125 Several packs of dried marijuana fruiting tops were then found
inside the box.126 Suzuki argued that the box was only given to him as
"pasalubong" by a certain Pinky, whom he had sexual relations with the
night before.127 He did not know the contents of the box.128

This court in Suzuki found that the search conducted on the accused was a
valid exception to the prohibition against warrantless searches as it was
pursuant to a routine airport security procedure129chanroblesvirtuallawlibrary

It is axiomatic that a reasonable search is not to be determined by any fixed

formula but is to be resolved according to the facts of each case. Given the
circumstances obtaining here, we find the search conducted by the airport
authorities reasonable and, therefore, not violative of his constitutional
rights. Hence, when the search of the box of piaya revealed several
marijuana fruiting tops, appellant is deemed to have been caught
in flagrante delicto, justifying his arrest even without a warrant under
Section 5(a), Rule 113 of the Rules of Criminal Procedure. The packs of
marijuana obtained in the course of such valid search are thus admissible as
evidence against appellant.130 (Citations omitted)cralawlawlibrary

The reason behind it is that there is a reasonable reduced expectation of

privacy when coming into airports or ports of travel

Persons may lose the protection of the search and seizure clause by
exposure of their persons or property to the public in a manner reflecting a
lack of subjective expectation of privacy, which expectation society is
prepared to recognize as reasonable. Such recognition is implicit in airport
security procedures. With increased concern over airplane hijacking and
terrorism has come increased security at the nation's airports. Passengers
attempting to board an aircraft routinely pass through metal detectors; their
carry-on baggage as well as checked luggage are routinely subjected to x-
ray scans. Should these procedures suggest the presence of suspicious
objects, physical searches are conducted to determine what the objects
are. There is little question that such searches are reasonable, given their
minimal intrusiveness, the gravity of the safety interests involved, and the
reduced privacy expectations associated with airline travel. Indeed, travelers
are often notified through airport public address systems, signs and notices
in their airline tickets that they are subject to search and, if any prohibited
materials or substances are found, such would be subject to seizure. These
announcements place passengers on notice that ordinary constitutional
protections against warrantless searches and seizures do not apply to
routine airport procedures.131 (Emphasis supplied, citations
omitted)cralawlawlibrary

This rationale was reiterated more recently in Sales v. People.132 This court

in Sales upheld the validity of the search conducted as part of the routine
security check at the old Manila Domestic Airport—now Terminal 1 of the
Ninoy Aquino International Airport.133

Port authorities were acting within their duties and functions when it used x-
ray scanning machines for inspection of passengers' bags.134 When the
results of the x-ray scan revealed the existence of firearms in the bag, the
port authorities had probable cause to conduct a search of petitioner's bag.
Notably, petitioner did not contest the results of the x-ray scan.

IV

Was the search rendered unreasonable at the second point of intrusion—

when the baggage inspector opened petitioner's bag and called the attention
of the port police officer?

We rule in the negative.

The port personnel's actions proceed from the authority and policy to ensure
the safety of travelers and vehicles within the port. At this point, petitioner
already submitted himself and his belongings to inspection by placing his
bag in the x-ray scanning machine.

The presentation of petitioner's bag for x-ray scanning was voluntary.

Petitioner had the choice of whether to present the bag or not. He had the
option not to travel if he did not want his bag scanned or inspected. X-ray
machine scanning and actual inspection upon showing of probable cause that
a crime is being or has been committed are part of reasonable security
regulations to safeguard the passengers passing through ports or terminals.
Probable cause is

reasonable ground of suspicion supported by circumstances sufficiently

strong in themselves to induce a cautious man to believe that the person
accused is guilty of the offense charged. It refers to the existence of such
facts and circumstances that can lead a reasonably discreet and prudent
man to believe that an offense has been committed, and that the items,
articles or objects sought in connection with said offense or subject to
seizure and destruction by law are in the place to be
searched.135cralawlawlibrary

It is not too burdensome to be considered as an affront to an ordinary

person's right to travel if weighed against the safety of all passengers and
the security in the port facility.

As one philosopher said, the balance between authority and an individual's

liberty may be confined within the harm that the individual may cause
others. John Stuart Mill's "harm principle" provides

[T]he sole end for which mankind are warranted, individually or collectively,
in interfering with the liberty of action of any of their number, is self-
protection. That the only purpose for which power can be rightfully exercised
over any member of a civilised community, against his will, is to prevent
harm to others. His own good, either physical or moral, is not a sufficient
warrant. He cannot rightfully be compelled to do or forbear because it will be
better for him to do so, because it will make him happier, because, in the
opinions of others, to do so would be wise, or even right. These are good
reasons for remonstrating with him, or reasoning with him, or persuading
him, or entreating him, but not for compelling him, or visiting him with any
evil in case he do otherwise. To justify that, the conduct from which it is
desired to deter him must be calculated to produce evil to someone else.
The only part of the conduct of any one, for which he is amenable to society,
is that which concerns others. In the part which merely concerns himself, his
independence is, of right, absolute. Over himself, over his own body and
mind, the individual is sovereign.136cralawlawlibrary

Any perceived curtailment of liberty due to the presentation of person and

effects for port security measures is a permissible intrusion to privacy when
measured against the possible harm to society caused by lawless persons.

A third point of intrusion to petitioner's right to privacy occurred during

petitioner's submission to port security measures. This court should
determine whether the requirements for a valid waiver against unreasonable
searches and seizures were met.

After detection of the firearms through the x-ray scanning machine and
inspection by the baggage inspector, Officer Abregana was called to inspect
petitioner's bag.
The Constitution safeguards a person's right against unreasonable searches
and seizures.137 A warrantless search is presumed to be
unreasonable.138 However, this court lays down the exceptions where
warrantless searches are deemed legitimate: (1) warrantless search
incidental to a lawful arrest; (2) seizure in "plain view"; (3) search of a
moving vehicle; (4) consented warrantless search; (5) customs search; (6)
stop and frisk; and (7) exigent and emergency circumstances.139

In Caballes v. Court of Appeals140chanroblesvirtuallawlibrary

In case of consented searches or waiver of the constitutional guarantee

against obtrusive searches, it is fundamental that to constitute a waiver, it
must first appear that (1) the right exists; (2) that the person involved had
knowledge, either actual or constructive, of the existence of such right; and
(3) the said person had an actual intention to relinquish the
right.141cralawlawlibrary

Petitioner anchors his case on the claim that he did not validly consent to the
search conducted by the port authorities. He argues that he did not have an
actual intention to relinquish his right against a warrantless search.

In cases involving the waiver of the right against unreasonable searches and
seizures, events must be weighed in its entirety. The trial court's findings
show that petitioner presented his bag for scanning in the x-ray
machine.142 When his bag went through the x-ray machine and the firearms
were detected, he voluntarily submitted his bag for inspection to the port
authorities

Prosecutor Narido

Q. What did he tell you?

A. I asked him if I can check his bag?

Q. What was his response?

A. He consented and cooperated. I checked the bag.143cralawlawlibrary

It was after the port personnel's inspection that Officer Abregana's attention
was called and the bag was inspected anew with petitioner's consent.144

"[A]ppellate courts accord the highest respect to the assessment of

witnesses' credibility by the trial court, because the latter was in a better
position to observe their demeanor and deportment on the witness stand."
We do not find anything erroneous as to the findings of fact of both the trial
court and the Court of Appeals.

There was probable cause that petitioner was committing a crime leading to
the search of his personal effects. As the trial court found

Given the circumstances obtaining here, the court finds the search
conducted by the port authorities reasonable and, therefore, not violative of
the accused's constitutional rights. Hence, when the search of the bag of the
accused revealed the firearms and ammunitions, accused is deemed to have
been caught in flagrante delicto, justifying his arrest even without a warrant
under Section 5(a), Rule 113 of the Rules of Criminal Procedure. The
firearms and ammunitions obtained in the course of such valid search are
thus admissible as evidence against [the] accused.146cralawlawlibrary

Similar to the accused in People v. Kagui Malasugui174 and People v.

Omaweng148 who permitted authorities to search their persons and premises
without a warrant, petitioner is now precluded from claiming an invalid
warrantless search when he voluntarily submitted to the search on his
person. In addition, petitioner's consent to the search at the domestic port
was not given under intimidating or coercive circumstances.149

This case should be differentiated from that of Aniag, Jr. v. Commission on

Elections,150 which involved the search of a moving vehicle at a
checkpoint.151 In that case, there was no implied acquiescence to the search
since the checkpoint set up by the police authorities was conducted without
proper consultation, and it left motorists without any choice except to
subject themselves to the checkpoint

It may be argued that the seeming acquiescence of Arellano to the search

constitutes an implied waiver of petitioner's right to question the
reasonableness of the search of the vehicle and the seizure of the firearms.

While Resolution No. 2327 authorized the setting up of checkpoints, it

however stressed that "guidelines shall be made to ensure that no
infringement of civil and political rights results from the implementation of
this authority," and that "the places and manner of setting up of checkpoints
shall be determined in consultation with the Committee on Firearms Ban and
Security Personnel created under Sec. 5, Resolution No. 2323." The facts
show that PNP installed the checkpoint at about five o'clock in the afternoon
of 13 January 1992. The search was made soon thereafter, or thirty minutes
later. It was not shown that news of impending checkpoints without
necessarily giving their locations, and the reason for the same have been
announced in the media to forewarn the citizens. Nor did the informal
checkpoint that afternoon carry signs informing the public of the purpose of
its operation. As a result, motorists passing that place did not have any
inkling whatsoever about the reason behind the instant exercise. With the
authorities in control to stop and search passing vehicles, the motorists did
not have any choice but to submit to the PNP's scrutiny. Otherwise, any
attempt to turnabout albeit innocent would raise suspicion and provide
probable cause for the police to arrest the motorist and to conduct an
extensive search of his vehicle.

In the case of petitioner, only his driver was at the car at that time it was
stopped for inspection. As conceded by COMELEC, driver Arellano did not
know the purpose of the checkpoint. In the face of fourteen (14) armed
policemen conducting the operation, driver Arellano being alone and a mere
employee of petitioner could not have marshalled the strength and the
courage to protest against the extensive search conducted in the vehicle. In
such scenario, the "implied acquiescence," if there was any, could not be
more than a mere passive conformity on Arellano's part to the search, and
"consent" given under intimidating or coercive circumstances is no consent
within the purview of the constitutional guaranty.152 (Emphasis supplied,
citations omitted)cralawlawlibrary

We also cannot subscribe to petitioner's argument that there was no . valid

consent to the search because his consent was premised on his belief that
there were no prohibited items in his bag. The defendant's belief that no
incriminating evidence would be found does not automatically negate valid
consent to the search when incriminating items are found. His or her belief
must be measured against the totality of the circumstances.153 Again,
petitioner voluntarily submitted himself to port security measures and, as he
claimed during trial, he was familiar with the security measures since he had
been traveling back and forth through the sea port.

Consequently, we find respondent's argument that the present petition falls

under a valid consented search and during routine port security procedures
meritorious. The search conducted on petitioner's bag is valid.

VI

The consented search conducted on petitioner's bag is different from a

customs search.

Customs searches, as exception to the requirement of a valid search

warrant, are allowed when "persons exercising police authority under the
customs law . . . effect search and seizure ... in the enforcement of customs
laws."154 The Tariff and Customs Code provides the authority for such
warrantless search, as this court ruled in Papa, et at. v. Mago, et
al.155chanroblesvirtuallawlibrary

The Code authorizes persons having police authority under Section 2203 of
the Tariff and Customs Code to enter, pass through or search any land,
inclosure, warehouse, store or building, not being a dwelling house; and also
to inspect, search and examine any vessel or aircraft and any trunk,
package, box or envelope or any person on board, or stop and search and
examine any vehicle, beast or person suspected of holding or conveying any
dutiable or prohibited article introduced into the Philippines contrary to law,
without mentioning the need of a search warrant in said cases.156 (Citation
omitted)
cralawlawlibrary

The ruling in Papa was echoed in Salvador v. People,157 in that the state's
policy to combat smuggling must not lose to the difficulties posed by the
debate on whether the state has the duty to accord constitutional protection
to dutiable articles on which duty has not been paid, as with a person's
papers and/or effects.158

Hence, to be a valid customs search, the requirements are: (1) the person/s
conducting the search was/were exercising police authority under customs
law; (2) the search was for the enforcement of customs law; and (3) the
place searched is not a dwelling place or house. Here, the facts reveal that
the search was part of routine port security measures. The search was not
conducted by persons authorized under customs law. It was also not
motivated by the provisions of the Tariff and Customs Code or other customs
laws. Although customs searches usually occur within ports or terminals, it is
important that the search must be for the enforcement of customs laws.

VII

In violations of the Gun Ban, the accused must be "in possession of a

firearm . . . outside of his residence within the period of the election gun ban
imposed by the COMELEC sans authority[.]"159

In Abenes v. Court of Appeals,160 this court enumerated the elements for a

violation of the Gun Ban: "1) the person is bearing, carrying, or transporting
firearms or other deadly weapons; 2) such possession occurs during the
election period; and, 3) the weapon is carried in a public place."161 This court
also ruled that under the Omnibus Election Code, the burden to show that he
or she has a written authority to possess a firearm is on the accused.162

We find that the prosecution was able to establish all the requisites for
violation of the Gun Ban. The firearms were found inside petitioner's bag.
Petitioner did not present any valid authorization to carry the firearms
outside his residence during the period designated by the Commission on
Elections. He was carrying the firearms in the Cebu Domestic Port, which
was a public place.

However, petitioner raised the following circumstances in his defense: (1)

that he was a frequent traveler and was, thus, knowledgeable about the
security measures at the terminal; (2) that he left his bag with a porter for a
certain amount of time; and (3) that he voluntarily put his bag on the x-ray
machine for voluntary inspection. All these circumstances were left
uncontested by the prosecution.

This court is now asked to determine whether these circumstances are

sufficient to raise reasonable doubt on petitioner's guilt.

When petitioner claimed that someone planted the illegal firearms in his bag,
the burden of evidence to prove this allegation shifted to him. The shift in
the burden of evidence does not equate to the reversal of the presumption
of innocence. In People v. Villanueva,163 this court discussed the difference
between burden of proof and burden of evidence, and when the burden of
evidence shifts to the accused

Indeed, in criminal cases, the prosecution bears the onus to prove beyond
reasonable doubt not only the commission of the crime but likewise to
establish, with the same quantum of proof, the identity of the person or
persons responsible therefor. This burden of proof does not shift to the
defense but remains in the prosecution throughout the trial. However, when
the prosecution has succeeded in discharging the burden of proof by
presenting evidence sufficient to convince the court of the truth of the
allegations in the information or has established a prima facie case against
the accused, the burden of evidence shifts to the accused making it
incumbent upon him to adduce evidence in order to meet and nullify, if not
to overthrow, that prima facie case.164 (Emphasis supplied, citation
omitted)cralawlawlibrary

Petitioner failed to negate the prosecution's evidence that he had animus

possidendi or the intent to possess the illegal firearms. In People v. De
Gracia, this court elucidated on the concept of animus possidendi and the
importance of the intent to commit an act prohibited by law as differentiated
from criminal intent.166 The accused was charged with the qualified offense
of illegal possession of firearms in furtherance of rebellion under Presidential
Decree No. 1866 resulting from the coup d'etat staged in 1989 by the
Reform Armed Forces Movement - Soldiers of the Filipino People.167 This
court held that the actions of the accused established his intent to possess
the illegal firearms

When the crime is punished by a special law, as a rule, intent to commit the
crime is not necessary. It is sufficient that the offender has the intent to
perpetrate the act prohibited by the special law. Intent to commit the crime
and intent to perpetrate the act must be distinguished. A person may not
have consciously intended to commit a crime; but he did intend to commit
an act, and that act is, by the very nature of things, the crime itself. In the
first (intent to commit the crime), there must be criminal intent; in the
second (intent to perpetrate the act) it is enough that the prohibited act is
done freely and consciously.

In the present case, a distinction should be made between criminal intent

and intent to possess. While mere possession, without criminal intent, is
sufficient to convict a person for illegal possession of a firearm, it must still
be shown that there was animus possidendi or an intent to possess on the
part of the accused. Such intent to possess is, however, without regard to
any other criminal or felonious intent which the accused may have harbored
in possessing the firearm. Criminal intent here refers to the intention of the
accused to commit an offense with the use of an unlicensed firearm. This is
not important in convicting a person under Presidential Decree No.
1866. Hence, in order that one may be found guilty of a violation of the
decree, it is sufficient that the accused had no authority or license to
possess a firearm, and that he intended to possess the same, even if such
possession was made in good faith and without criminal intent.

Concomitantly, a temporary, incidental, casual, or harmless possession or

control of a firearm cannot be considered a violation of a statute prohibiting
the possession of this kind of weapon, such as Presidential Decree No. 1866.
Thus, although there is physical or constructive possession, for as long as
the animus possidendi is absent, there is no offense committed.

Coming now to the case before us, there is no doubt in our minds that
appellant De Gracia is indeed guilty of having intentionally possessed several
firearms, explosives and ammunition without the requisite license or
authority therefor. Prosecution witness Sgt. Oscar Abenia categorically
testified that he was the first one to enter the Eurocar Sales Office when the
military operatives raided the same, and he saw De Gracia standing in the
room and holding the several explosives marked in evidence as Exhibits D to
D-4. At first, appellant denied any knowledge about the explosives. Then, he
alternatively contended that his act of guarding the explosives for and in
behalf of Col. Matillano does not constitute illegal possession thereof because
there was no intent on his part to possess the same, since he was merely
employed as an errand boy of Col. Matillano. His pretension of impersonal or
indifferent material possession does not and cannot inspire credence.

Animus possidendi is a state of mind which may be determined on a case to

case basis, taking into consideration the prior and coetaneous acts of the
accused and the surrounding circumstances. What exists in the realm of
thought is often disclosed in the range of action. It is not controverted that
appellant De Gracia is a former soldier, having served with the Philippine
Constabulary prior to his separation from the service for going on absence
without leave (AWOL). We do not hesitate, therefore, to believe and
conclude that he is familiar with and knowledgeable about the dynamites,
"molotov" bombs, and various kinds of ammunition which were confiscated
by the military from his possession. As a former soldier, it would be absurd
for him not to know anything about the dangerous uses and power of these
weapons. A fortiori, he cannot feign ignorance on the import of having in his
possession such a large quantity of explosives and ammunition.
Furthermore, the place where the explosives were found is not a military
camp or office, nor one where such items can ordinarily but lawfully be
stored, as in a gun store, an arsenal or armory. Even an ordinarily prudent
man would be put on guard and be suspicious if he finds articles of this
nature in a place intended to carry out the business of selling cars and which
has nothing to do at all, directly or indirectly, with the trade of firearms and
ammunition.168 (Emphasis supplied, citations omitted)cralawlawlibrary

The disquisition in De Gracia on the distinction between criminal intent and
intent to possess, which is relevant to convictions for illegal possession of
firearms, was reiterated in Del Rosario v. People.169 This court ruled that
"[i]n the absence of animus possidendi, the possessor of a Firearms incurs
no criminal liability.”170

In this case, petitioner failed to prove that his possession of the illegal
firearms seized from his bag was “temporary, incidental, casual, or harmless
possession[.]”171 As put by the trial court, petitioner’s claim that anyone
could have planted the firearms in his bag while it was unattended is
flimsy.172 There are dire consequences in accepting this claim at face value,
particularly that no one will be caught and convicted of illegal possession of
firearms.

Courts must also weigh the accused’s claim against the totality of the
evidence presented by the prosecution. This includes determination of: (1)
the motive of whoever allegedly planted the illegal firearms(s); (2) whether
there was opportunity to plant the illegal firearms(s); and (3)
reasonableness of the situation creating the opportunity.
Petitioner merely claims that someone must have planted the firearms when
he left his bag with the porter. He did not identify who this person could
have been and he did not state any motive for this person to plant the
firearms in his possession, even if there was indeed an opportunity to plant
the firearms.

However, this court is mindful that, owing to the nature of his work,
petitioner was a frequent traveler who is well-versed with port security
measure. We cannot accept that an average reasonable person aware of
travel security measures would leave his belongings with a stranger for a
relatively long period of time. Also, records show that petitioner had only (1)
bag. There was no evidence to show that a robust young man like petitioner
would have been need of the porter’s services. The defense did not identify
nor present this porter with whom petitioner left his bag.

VIII

The trial court was correct when it dismissed Criminal Case No. CBU-80084
for violation of Republic Act no. 8294, otherwise known as illegal possession
of firearms. Section 1 of Republic Act No. 8294 provides

SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is

hereby further amended to read as follows

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or

Possession of Firearms or Ammunition or Instruments Used or Intended to
be Used in the Manufacture of Firearms or Ammunition. - The penalty
of prision correccional in its maximum period and a fine of not less than
Fifteen thousand pesos (P15,000) shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire, dispose, or possess any low
powered firearm, such as rimfire handgun, .380 or .32 and other firearm of
similar firepower, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm or
ammunition

Provided, That no other crime was committed. (Emphasis

supplied)cralawlawlibrary

Agote v. Judge Lorenzo173 already settled the question of whether there can

be a "separate offense of illegal possession of firearms and ammunition if
there is another crime committed[.]"174 In that case, the petitioner was
charged with both illegal possession of firearms and violation of the Gun Ban
under Commission on Elections Resolution No. 2826.175 This court acquitted
petitioner in the case for illegal possession of firearms since he
simultaneously violated the Gun Ban.176 This court also held that the
unlicensed firearm need not be actually used in the course of committing the
other crime for the application of Section 1 of Republic Act No. 8294.177

Similarly, Madrigal v. People178 applied the ruling in Agote and held that

Section 1 of Republic Act No. 8294 is express in its terms that a person may
not be convicted for illegal possession of firearms if another crime was
committed.179

IX

We note that the trial court imposed the penalty of imprisonment for a
period of one (1) year and to suffer disqualification to hold public office and
deprivation of the right to suffrage. Under Section 264 of Batas Pambansa
Blg. 881, persons found guilty of an election offense "shall be punished with
imprisonment of not less than one year but not more than six years and
shall not be subject to probation."180 The Indeterminate Sentence Law
applies to offenses punished by both the Revised Penal Code and special
laws.181

The penalty to be imposed is a matter of law that courts must follow. The
trial court should have provided minimum and maximum terms for
petitioner's penalty of imprisonment as required by the Indeterminate
Sentence Law.182 Accordingly, we modify the penalty imposed by the trial
court. Based on the facts, we deem it reasonable that petitioner be penalized
with imprisonment of one (1) year as minimum to two (2) years as
maximum.183

The records are unclear whether petitioner is currently detained by the state
or is out on bail. Petitioner's detention is relevant in determining whether he
has already served more than the penalty imposed upon him by the trial
court as modified by this court, or whether he is qualified to the credit of his
preventive imprisonment with his service of sentence.

Article 29184 of the Revised Penal Code states

ART. 29. Period of preventive imprisonment deducted from term of

imprisonment. - Offenders or accused who have undergone preventive
imprisonment shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during which they have undergone
preventive imprisonment if the detention prisoner agrees voluntarily in
writing after being informed of the effects thereof and with the assistance of
counsel to abide by the same disciplinary rules imposed upon convicted
prisoners, except in the following cases

1. When they are recidivists, or have been convicted previously twice or

more times of any crime; and

2. When upon being summoned for the execution of their sentence they
have failed to surrender voluntarily.

If the detention prisoner does not agree to abide by the same disciplinary
rules imposed upon convicted prisoners, he shall do so in writing with the
assistance of a counsel and shall be credited in the service of his sentence
with four-fifths of the time during which he has undergone preventive
imprisonment.

Credit for preventive imprisonment for the penalty of reclusion perpetua

shall be deducted from thirty (30) years.

Whenever an accused has undergone preventive imprisonment for a period

equal to the possible maximum imprisonment of the offense charged to
which he may be sentenced and his case is not yet terminated, he shall be
released immediately without prejudice to the continuation of the trial
thereof or the proceeding on appeal, if the same is under review.
Computation of preventive imprisonment for purposes of immediate release
under this paragraph shall be the actual period of detention with good
conduct time allowance: Provided, however, That if the accused is absent
without justifiable cause at any stage of the trial, the court may motu
proprio order the rearrest of the accused: Provided, finally, That recidivists,
habitual delinquents, escapees and persons charged with heinous crimes are
excluded from the coverage of this Act. In case the maximum penalty to
which the accused may be sentenced is lestierro [sic], he shall be released
after thirty (30) days of preventive imprisonment.cralawlawlibrary

In case credit of preventive imprisonment is due, petitioner must first signify

his agreement to the conditions set forth in Article 29 of the Revised Penal
Code.185 If petitioner has already served more than the penalty imposed
upon him by the trial court, then his immediate release from custody is in
order unless detained for some other lawful cause.186

WHEREFORE, the Petition is DENIED. The Court of Appeals Decision dated

September 8, 2012 and the Resolution dated August 23, 2013 in CA-GR CEB
CR No. 01606 are AFFIRMED with MODIFICATIONS. Petitioner Erwin
Libo-On Dela Cruz is sentenced to imprisonment of one (1) year as minimum
to two (2) years as maximum in accordance with the Indeterminate
Sentence Law. The period of his preventive imprisonment shall be credited in
his favor if he has given his written conformity to abide by the disciplinary
rules imposed upon convicted prisoners in accordance with Article 29 of the
Revised Penal Code, as amended, and if he is not out on bail.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 200748               July 23, 2014

JAIME D. DELA CRUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

SERENO, CJ:

This is a Petition for Review on Certiorari, filed by petitioner Jaime D. dela Cruz, from
the Decision1 dated 22 June 2011 issued by the Twentieth Division of the Court of
Appeals (CA) and Resolution2 dated 2 February 2012 issued by the Former Twentieth
Division of the CA in CA-G.R. C.R. No. 00670.

THE ANTECEDENT FACTS

Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II of
Republic Act No. (R.A.) 9165, or The Comprehensive Dangerous Drugs Act of 2002, by
the Graft Investigation and Prosecution Officer of the Office of the Ombudsman -
Visayas, in an Information3 dated 14 February 2006, which reads:

That on or about the 31st day of January 2006, at Cebu City, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused, JAIME D. DE LA CRUZ,
a public officer, having been duly appointed and qualified to such public position as
Police Officer 2 of the Philippine National Police (PNP) assigned in the Security Service
Group of the Cebu City Police Office, after having beenarrested by agents of the
National Bureau of Investigation (NBI) in an entrapment operation, was found positive
for use of METHAMPHETAMINE HYDROCHLORIDEcommonly known as "Shabu", the
dangerous drug after a confirmatory test conducted on said accused.

CONTRARY TO LAW.
When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the
charge. The records do not reveal whether De la Cruz was likewise charged for
extortion.

VERSION OF THE PROSECUTION

The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the
agents and special investigators of the National Bureau of Investigation, Central
Visayas Regional Office (NBI-CEVRO) or simply NBI, received a Complaint from
Corazon Absin (Corazon) and Charito Escobido (Charito). The complainants claimed
that at 1:00 a.m. of that same day, Ariel Escobido (Ariel), the live-in partner of Corazon
and son of Charito, was picked up by several unknown male persons believed to be
police officers for allegedly selling drugs. An errand boy gave a number to the
complainants, and when the latter gave the number a ring, they were instructed to
proceed to the Gorordo Police Office located along Gorordo Avenue, Cebu City. In the
said police office, they met "James" who demanded from them ₱100,000, later lowered
to ₱40,000, in exchange for the release of Ariel. After the meeting, the complainants
proceeded to the NBI-CEVRO to file a complaint and narrate the circumstances of the
meeting to the authorities. While at the NBI-CEVRO, Charitoeven received calls
supposedly from "James" instructing her to bring the money as soon as possible.

The special investigators at the NBI-CEVRO verified the text messages received by the
complainants.1âwphi1 A team was immediately formed to implement an entrapment
operation, which took place inside a Jollibee branch at the corner of Gen. Maxilom and
Gorordo Avenues, Cebu City. The officers were able to nab Jaime dela Cruz by using a
pre-marked 500 bill dusted with fluorescent powder, which was made part of the amount
demanded by "James" and handed by Corazon. Petitioner was later brought to the
forensic laboratory of the NBI-CEVRO where forensic examination was done by forensic
chemist Rommel Paglinawan. Petitioner was required to submit his urine for drug
testing. It later yielded a positive result for presence of dangerous drugs as indicated in
the confirmatory test result labeled as Toxicology (DangerousDrugs) Report No. 2006-
TDD-2402 dated 16 February 2006.

VERSION OF THE DEFENSE

The defense presented petitioner as the lone witness. He denied the charges and
testified that while eating at the said Jollibee branch, he was arrested allegedly for
extortion by NBI agents. When he was at the NBI Office, he was required to extract
urine for drug examination, but he refused saying he wanted it to be done by the
Philippine National Police (PNP) Crime Laboratory and not by the NBI. His request was,
however, denied. He also requested to be allowed to call his lawyer prior to the taking of
his urine sample, to no avail.

THE RULING OF THE RTC

The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision 4 dated 6 June
2007, found the accused guilty beyond reasonable doubt of violating Section 15, Article
II of R.A. 9165 and sentenced him to suffer the penalty of compulsory rehabilitation for a
period of not less than six (6) months at the Cebu Center for the Ultimate Rehabilitation
of Drug Dependents located at Salinas, Lahug, Cebu City. 5

Petitioner filed an appeal assigning as error the RTC’s validation of the result of the
urine test despite its dubiousness having been admitted in spite of the lack of legal
basis for itsadmission. First, he alleges that the forensic laboratory examination was
conducted despite the fact that he was not assisted by counsel, in clear violation of his
constitutional right. Secondly, he was allegedly held guilty beyond reasonable doubt
notwithstanding the lack of sufficient basis to convict him.

THE RULING OF THE CA

The CA found the appeal devoid of merit and affirmed the ruling of the RTC.

Petitioner filed a timely Motion for Reconsideration. He argued that the CA overlooked
prevailing jurisprudence, which states that drug testing conducted under
circumstancessimilar to his would violate a person’s right to privacy. The appellate court
nevertheless denied the motion.

Petitioner thus filed the present Petition for Review on certiorari. He assigns as errors
the use of hearsay evidence as basis for his conviction and the questionable
circumstances surrounding his arrest and drug test.

Respondent, through the Office of the Solicitor General, filed its Comment, 6 saying that
"petitioner’s arguments cannot be the subject of a petition for review on certiorariunder
Rule 45, as they involve questions of facts which may not be the subject thereof; after
his arraignment, he can no longer contest the validity of his arrest, less so at this stage
of the proceedings; his guilt has been adequately established by direct evidence; and
the manner in which the laboratory examination was conducted was grounded on a
valid and existing law.

THE ISSUE

We deem it proper to give due course to this Petition by confronting head-on the issue
of whether or not the drug test conducted upon the petitioner is legal.

OUR RULING

We declare that the drug testconducted upon petitioner is not grounded upon any
existing law or jurisprudence.

We gloss over petitioner’s non-compliance with the Resolution 7 ordering him to submit
clearly legible duplicate originals or certified true copies of the assailed Decision and
Resolution. Petitioner was charged with use of dangerous drugs in violation of the law,
the pertinent provision of which reads:

Section 15. Use of Dangerous Drugs. – A person apprehended or arrested, who is

found to be positive for use of any dangerous drug, after a confirmatory test, shall be
imposed a penalty of a minimum of six (6) months rehabilitation in a government center
for the first offense, subject to the provisions of Article VIII of this Act. If apprehended
using any dangerous drug for the second time, he/she shall suffer the penalty of
imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine
ranging from Fifty thousand pesos (₱50,000.00) to Two hundred thousand pesos
(₱200,000.00): Provided,That this Section shall not be applicable where the person
tested is also found to have in his/her possession such quantity of any dangerous drug
provided for under Section 11 of this Act, in which case the provisions stated therein
shall apply.8

The RTC subsequently convicted petitioner, ruling that the following elements of Section
15 were established: (1) the accused was arrested; (2) the accused was subjected to
drug test; and (3) the confirmatory test shows that he used a dangerous drug.

Disregarding petitioner’s objection regarding the admissibility of the evidence, the lower
court also reasoned that "a suspect cannot invoke his right to counsel when he is
required to extract urine because, while he is already in custody, he is not compelled to
make a statement or testimony against himself. Extracting urine from one’s body is
merely a mechanical act, hence, falling outside the concept of a custodial investigation."

We find the ruling and reasoning of the trial court, as well as the subsequent affirmation
by the CA, erroneous on three counts.

The drug test in Section 15 does not cover persons apprehended or arrested for any
unlawful act, but only for unlawful acts listed under Article II of R.A. 9165.

First, "[a] person apprehended orarrested" cannot literally mean any person
apprehended or arrested for any crime.The phrase must be read in context and
understood in consonance with R.A. 9165. Section 15 comprehends persons arrested
or apprehended for unlawful acts listed under Article II of the law.

Hence, a drug test can be made upon persons who are apprehended or arrested for,
among others, the "importation,"9 "sale, trading, administration, dispensation, delivery,
distribution and transportation",10 "manufacture"11 and "possession"12 of dangerous
drugs and/or controlled precursors and essential chemicals; possession thereof "during
parties, social gatherings or meetings"13 ; being "employees and visitors of a den, dive
or resort";14 "maintenance of a den, dive or resort";15 "illegal chemical diversion of
controlled precursors and essential chemicals" 16 ; "manufacture or delivery"17 or
"possession"18 of equipment, instrument, apparatus, and other paraphernalia for
dangerous drugs and/or controlled precursors and essential chemicals; possession of
dangerous drugs "during parties, social gatherings or meetings" 19 ; "unnecessary"20 or
"unlawful"21 prescription thereof; "cultivation or culture of plantsclassified as dangerous
drugs or are sources thereof";22 and "maintenance and keeping of original records of
transactions on dangerous drugs and/orcontrolled precursors and essential
chemicals."23 To make the provision applicable to all persons arrested or apprehended
for any crime not listed under Article II is tantamount to unduly expanding its meaning.
Note thataccused appellant here was arrested in the alleged act of extortion.

A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of
the law to rehabilitate persons apprehended or arrested for the unlawful acts
enumerated above instead of charging and convicting them of other crimes with heavier
penalties. The essence of the provision is more clearly illustrated in People v.
Martinez24 as follows:

On a final note, this Court takes the opportunity to be instructive on Sec. 11 (Possession
of Dangerous Drugs) and Sec. 15 (Use of Dangerous Drugs) of R.A. No. 9165,
withregard to the charges that are filed by law enforcers. This Court notes the practice
of law enforcers of filing charges under Sec. 11 in cases where the presence of
dangerous drugs as basis for possession is only and solely in the form of residue, being
subsumed under the last paragraph of Sec. 11. Although not incorrect, it would be more
in keeping withthe intent of the law to file charges under Sec. 15 instead in order to
rehabilitate first time offenders of drug use, provided thatthere is a positive confirmatory
test result as required under Sec. 15.The minimum penalty under the last paragraph of
Sec. 11 for the possession of residue isimprisonment of twelve years and one day,
while the penalty under Sec. 15 for first time offenders of drug use is a minimum of six
months rehabilitation in a government center. To file charges under Sec. 11 on the
basis of residue alone would frustrate the objective of the law to rehabilitate drug users
and provide them with an opportunity to recover for a second chance at life.

In the case at bench, the presence of dangerous drugs was only in the form of residue
on the drug paraphernalia, and the accused were found positive for use of dangerous
drugs. Granting that the arrest was legal, the evidence obtained admissible, and the
chain of custody intact, the law enforcers should have filed charges under Sec. 15, R.A.
No. 9165 or for use of dangerous drugs and, if there was no residue at all, they should
have been charged under Sec. 14 (Possession of Equipment, Instrument, Apparatus
and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or
Meetings). Sec. 14 provides that the maximum penalty under Sec. 12(Possession of
Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) shall
be imposed on any person who shall possess any equipment, instrument, apparatus
and other paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is
imprisonment of four years and a fine of ₱50,000.00. In fact, under the same section,
the possession of such equipment, apparatus or other paraphernalia is prima
facieevidence that the possessor has used a dangerous drug and shall be presumed to
have violated Sec. 15.

In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus
calls on law enforcers and prosecutors in dangerous drugs cases to exercise proper
discretion in filing charges when the presence of dangerous drugs isonly and solely in
the form of residue and the confirmatory test required under Sec. 15 is positive for use
of dangerous drugs.In such cases, to afford the accused a chance to be rehabilitated,
the filing of charges for or involving possession of dangerous drugs should only be done
when another separate quantity of dangerous drugs, other than mere residue, is found
in the possession of the accused as provided for in Sec. 15. (Emphasis supplied)

Furthermore, making the phrase "a person apprehended or arrested" in Section 15

applicable to all persons arrested or apprehended for unlawful acts, not only under R.A.
9165 but for all other crimes, is tantamount to a mandatory drug testing of all persons
apprehended or arrested for any crime. To overextend the application of thisprovision
would run counter to our pronouncement in Social Justice Society v. Dangerous Drugs
Board and Philippine Drug Enforcement Agency, 25 to wit:

x x x [M]andatory drug testing can never be random and suspicionless. The ideas of
randomness and being suspicionless are antithetical to their being made defendants in
a criminal complaint. They are not randomly picked; neither are they beyond suspicion.
When persons suspected of committing a crime are charged, they are singled out and
are impleaded against their will. The persons thus charged, by the bare fact of being
haled before the prosecutor’s office and peaceably submitting themselves to drug
testing, if that be the case, do not necessarily consent to the procedure, let alone waive
their right to privacy. To impose mandatory drug testing on the accused is a blatant
attempt to harness a medical test as a tool for criminal prosecution, contrary to the
stated objectives of RA 6195. Drug testing in this case would violate a person’s right to
privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused
persons are veritably forced to incriminate themselves. (Emphasis supplied)

The drug test is not covered by allowable non-testimonial compulsion.

We find that petitioner never raisedthe alleged irregularity of his arrest before his
arraignment and raises the issue only now before this tribunal; hence, he is deemed to
have waived his right to question the validity of his arrest curing whatever defect may
have attended his arrest.26 However, "a waiver of an illegal warrantless arrest does not
mean a waiver of the inadmissibility of evidence seized during an illegal warrantless
arrest."27

We are aware of the prohibition against testimonial compulsion and the allowable
exceptions to such proscription. Cases where non-testimonial compulsion has been
allowed reveal, however, that the pieces of evidence obtained were all material to the
principal cause of the arrest.

The constitutional right of an accused against self-incrimination proscribes the use of

physical or moral compulsion to extort communications from the accused and not the
inclusion of his body in evidence when it may be material. Purely mechanical acts are
not included in the prohibition as the accused does not thereby speak his guilt, hence
the assistance and guiding hand ofcounsel is not required. (People vs. Olvis, 238 Phil.
513 [1987]) The essence of the right against selfincrimination is testimonial compulsion,
that is, the giving of evidence against himself through a testimonial act. (People vs.
Casinillo, 213 SCRA 777 [1992]; People vs. Tranca, 235 SCRA 455 [1994]; People vs.
Rondero, 378 Phil. 123 [1999]) Hence,it has been held that a woman charged with
adultery may be compelled to submit to physical examination to determine her
pregnancy; (Villaflor vs. Summers, 41 Phil. 62 [1920]) and an accused may be
compelled to submit to physical examination and to have a substance taken from his
body for medical determination as to whether he was suffering from gonorrhea which
was contracted by his victim;(U.S. vs. Tan Teng, 23 Phil. 145 [1912]) to expel morphine
from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917]) to have the outline of his
foot traced todetermine its identity with bloody footprints; (U.S. vs. Salas, 25 Phil. 337
[1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to be photographed or measured, or his
garments or shoes removed or replaced, or to move his body to enable the foregoing
things to be done.(People vs. Otadora, 86 Phil. 244 [1950]) 28 (Emphasis supplied)

In the instant case, we fail to see howa urine sample could be material to the charge of
extortion.1âwphi1 The RTC and the CA, therefore, both erred when they held that the
extraction of petitioner’s urine for purposes of drug testing was "merely a mechanical
act, hence, falling outside the concept of a custodial investigation."

We note a case where a urine sample was considered as admissible. In Gutang v.

People,29 the petitioner therein and his companions were arrested in connection with the
enforcement of a search warrant in his residence. A PNP-NARCOM team found and
confiscated shabu materials and paraphernalias. The petitioner and his companions in
that case were also asked to give urine samples, which yielded positive results. Later,
the petitioner therein was found guilty of the crime of illegal possession and use of
prohibited drugs. Gutang claimed that the latter’s urine sample was inadmissible in
evidence, since it was derived in effect from an uncounselled extrajudicial confession.

In the Gutang et al.case, the Court clarified that "what the Constitution prohibits is the
use of physical or moral compulsion to extort communication from the accused, but not
an inclusion of his body in evidence, when it may be material." The situation in
Gutangwas categorized as falling among the exemptions under the freedom from
testimonial compulsion since what was sought tobe examined came from the body of
the accused. The Court said:

This was a mechanical act the accused was made to undergo which was not meant to
unearth undisclosedfacts but to ascertain physical attributes determinable by simple
observation. In fact, the record shows that petitioner and his co-accused were not
compelled to give samples of their urine but they in fact voluntarily gave the same when
they were requested to undergo a drug test.

Assuming arguendothat the urine samples taken from the petitioner are inadmissible in
evidence, we agree with the trial court that the record is replete with other pieces of
credible evidence including the testimonial evidence of the prosecution which point to
the culpability of the petitioner for the crimes charged.
We emphasize that the circumstances in Gutangare clearly different from the
circumstances of petitioner in the instant case.1awp++i1 First, Gutang was arrested in
relation to a drug case. Second, he volunteered to give his urine. Third, there were other
pieces of evidence that point to his culpability for the crimes charged. In the present
case, though, petitioner was arrested for extortion; he resisted having his urine sample
taken; and finally, his urine sample was the only available evidencethat was used as
basis for his conviction for the use of illegal drugs.

The drug test was a violation of petitioner’s right to privacy and right against self-
incrimination.

It is incontrovertible that petitioner refused to have his urine extracted and tested for
drugs. He also asked for a lawyer prior to his urine test. He was adamant in exercising
his rights, but all of his efforts proved futile, because he was still compelled to submit his
urine for drug testing under those circumstances.

The pertinent provisions in Article III of the Constitution are clear:

Section 2. The right of the people to be securein their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.

Section 17. No person shall be compelled to be a witness against himself.

In the face of these constitutional guarantees, we cannot condone drug testing of all
arrested persons regardless of the crime or offense for which the arrest is being made.

While we express our commendation of law enforcement agents as they vigorously

track down offenders intheir laudable effort to curb the pervasive and deleterious effects
of dangerous drugs on our society, they must, however, be constantly mindful of the
reasonable limits of their authority, because it is not unlikely that in their clear intent to
purge society of its lawless elements, they may be knowingly or unknowingly
transgressing the protected rights of its citizens including even members of its own
police force.

WHEREFORE, premises considered, the assailed Decision dated 22 June 2011 issued
by the Twentieth Division, and the Resolution dated 2 February 2012 issued by the
former Twentieth Division of the Court of Appeals, in CA-G.R. C.R. No. 00670 are SET
ASIDE. Petitioner is hereby ACQUITTED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 89103 July 14, 1995

LEON TAMBASEN, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, 2ND ASSISTANT PROVINCIAL PROSECUTOR
GLORIA LASTIMOSA MARCOS and HON. CICERO U. QUERUBIN in his capacity
as Presiding Judge of the Regional Trial Court of Negros Occidental, Branch 44,
Bacolod City, respondents.

QUIASON, J.:

This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of

Court to set aside the Order dated July 20, 1989 of the Regional Trial Court (RTC),
Branch 44, Bacolod City in Civil Case No. 5331, which nullified the order earlier issued
by the Municipal Trial Circuit Court (MTCC) of the City of Bacolod. The MTCC Order
directed the return to petitioner of the amount of P14,000.00 which had been seized by
the police.

On August 31, 1988, P/Sgt. Flumar Natuel applied for the issuance of a search warrant
from the MTCC, alleging that he received information that petitioner had in his
possession at his house at the North Capitol Road, Bacolod City, "M-16 Armalite Rifles
(Mags & Ammos), Hand Grenades, .45 Cal. Pistols (Mags & Ammos), Dynamite Sticks
and Subversive Documents," which articles were "used or intended to be used" for
illegal purposes (Rollo, p. 14). On the same day, the application was granted by the
MTCC with the issuance of Search Warrant No. 365, which allowed the seizure of the
items specified in the application (Rollo, p. 15).

At around 6:30 P.M. of September 9, 1988, a police team searched the house of
petitioner and seized the following articles:

(1) Two (2) envelopes containing cash in the total amount of P14,000.00
(one envelope P10,000.00 and another P4,000.00);

(2) one (1) AR 280 handset w/antenae (sic) SN-00485;

 (3) one (1) YAESU FM Transceiver FT 23R w/Antenae (sic);

(4) one (1) ALINCO ELH 230D Base;

(5) one (1) DC Regulator Supply 150 V. 13.8 V 12 AMP — 128 VAC;

(6) one (1) brown Academy Notebook & Assorted papers; and

(7) Four (4) handsets battery pack (Rollo, p. 16).

On September 19, 1988, the MTCC, acting on petitioner's urgent motion for the return of
the seized articles, issued an order directing Sgt. Natuel to make a return of the search
warrant. The following day, Sgt. Natuel submitted a report to the court. Not considering
the report as a "return in contemplation of law," petitioner filed another motion praying
that Sgt. Natuel be required to submit a complete and verified inventory of the seized
articles. Thereafter, Sgt. Natuel manifested that although he was the applicant for the
issuance of the search warrant, he was not present when it was served.

On October 7, 1988, petitioner filed before the MTCC a motion praying that the search
and seizure be declared illegal and that the seized articles be returned to him. In his
answer to the motion, Lt. Col. Nicolas Torres, the station commander of the Bacolod
City Police, said that the amount of P14,000.00 had been earmarked for the payment of
the allowance of the Armed City Partisan (ACP) and other "known NPA personalities"
operating in the City of Bacolod.

On December 23, 1988, the MTCC issued an order directing Lt. Col. Torres to return
the money seized to petitioner. The court opined that in the implementation of the
search warrant, any seizure should be limited to the specific items covered thereby. It
said that the money could not be considered as "subversive documents"; it was neither
stolen nor the effects of gambling.

Three months later, the Solicitor General filed before the RTC, Branch 44, Bacolod City
a petition for certiorari seeking the annulment of the order of the MTCC (Civil Case No.
5331). The petition alleged that assuming that the seizure of the money had been
invalid, petitioner was not entitled to its return citing the rulings in Alih v. Castro, 151
SCRA 279 (1987) and Roan v. Gonzales, 145 SCRA 687 (1986). In those cases, the
Court held that pending the determination of the legality of the seizure of the articles,
they should remain in custodia legis. The petition also averred that a criminal complaint
for "any of the crimes against public order as provided under Chapter I, Title III of the
Revised Penal Code" had been filed with the City Fiscal (BC I.S. No. 88-1239) and
therefore, should the money be found as having been earmarked for subversive
activities, it should be confiscated pursuant to Article 45 of the Revised Penal Code.

On July 20, 1989, RTC, Branch 44 issued an order granting the petition
for certiorari and directing the clerk of court to return to the MTCC the money pending
the resolution of the preliminary investigation being conducted by the city prosecutor on
the criminal complaint. In said order, the RTC held:

The Court observed that private respondent Leon Tambasen never

questioned the validity of the search warrant issued by respondent Judge
Demosthenes L. Magallanes. A perusal of private respondent's "Motion to
Declare Search and Seizure Illegal and to Return Seized Properties"
dated October 7, 1988 shows that respondent Tambasen questions not
the validity of the search warrant issued by respondent Judge
Demosthenes Magallanes, but rather, the execution or implementation of
the said warrant principally on the ground that the articles seized are not
allegedly mentioned in the search warrant. However, the question thus
raised involves matters determinative of the admissibility in evidence and
the legality of the articles seized. These matters, it is submitted, go
beyond the immediate and limited jurisdiction of the respondent Judge to
inquire into the validity of the search warrant he issued. These issues
which relate exclusively or principally with the intrinsic and substantive
merits of the case or cases which are being prepared against respondent
Tambasen, and insofar as Tambasen is concerned involve matters of
defense which should be properly raised at the criminal action or actions
that may be filed against respondent Leon Tambasen (see DOH v. Sy Chi
Siong Co., Inc. et. al., G.R. No. 85289, Feb. 20, 1989). They cannot be
addressed to the respondent Judge because the respondent Judge has
no jurisdiction over the said issue. It is clear therefore that respondent
Judge has transcended the boundaries of his limited jurisdiction and had
in effect encroached upon the jurisdiction of the appropriate trial court or
courts that will try the criminal case or cases against respondent Leon
Tambasen, in issuing the assailed order dated December 23, 1988.
Ostensibly, the assailed order, if not corrected, will unduly deprive the
prosecution of its right to present the evidence in question and,
consequently, will improperly oust the trial court, which will try the criminal
case or cases against private respondent Leon Tambasen of its original
and exclusive jurisdiction to rule on the admissibility and legality of the
said evidence. This order of respondent court is tantamount to a denial of
due process. It may be considered as a grave abuse of discretion
reviewable by certiorari (Esparagoza v. Tan, 94 Phil. 749) (Rollo, pp.
47-48).

Consequently, petitioner filed the instant petition for certiorari and prohibition praying for
the issuance of a temporary restraining order commanding the city prosecutor to cease
and desist from continuing with the preliminary investigation in BC I.S. No. 88-1239 and
the RTC from taking any step with respect to Civil Case No. 5331. He also prayed that
Search Warrant No. 365 and the seizure of his personal effects be declared illegal and
that the Order of July 20, 1989 be reversed and annulled.
Petitioner contended that the search warrant covered three offenses: "(1) illegal
possession of armalite rifle and .45 cal. pistol; (2) illegal possession of hand grenade
and dynamite sticks; and (3) illegal possession of subversive documents" (Rollo, pp. 3-
4) in violation of Section 3 of Rule 126 of the Revised Rules of Court. He assailed the
legality of the seizure of the articles which were not mentioned in the search warrant.
Moreover, since a complaint against him was filed only after his house had been
searched, petitioner claimed that the police were "on a fishing expedition."

During the pendency of the instant petition, a series of events related to the questioned
search and seizure transpired. At around 10:30 P.M. of March 1, 1990, petitioner, who
was then on board a passenger vehicle, was arrested by intelligence operatives in
Barangay Mandalagan, Bacolod City and forthwith detained. On the strength of sworn
statements of two rebel returnees, the police filed a complaint for subversion against
petitioner with the Office of the City Prosecutor. The following day, the City Prosecutor
filed an information for violation of the Anti-Subversion Law against petitioner with RTC,
Branch 42, Bacolod City (Criminal Case No. 8517). An order for the arrest of petitioner
was issued on March 2, 1990.

On March 6, 1990, petitioner filed a motion to quash the information in Criminal Case
No. 8517.

On March 15, 1990, RTC, Branch 42 granted petitioner's motion to quash and recalled
the warrant of arrest. The court also directed the City Prosecutor to resolve BC-I.S.
Case No. 88-1239.

On March 20, 1990, Assistant Provincial Prosecutor Gloria Lastimosa Marcos

manifested before RTC, Branch 42 that petitioner had been "dropped" from BC-I.S. No.
88-1239. However, the City Prosecutor had, by then, filed a motion for the
reconsideration of said Resolution of March 15, 1990. The motion was denied.

Under this factual matrix, this Court is confronted with the question of whether RTC,
Branch 44 gravely abused its discretion in directing that the money seized from
petitioner's house, specifically the amount of P14,000.00, be retained and kept
in custodia legis.

On its face, the search warrant violates Section 3, Rule 126 of the Revised Rules of
Court, which prohibits the issuance of a search warrant for more than one specific
offense. The caption of Search Warrant No. 365 reflects the violation of two special
laws: P.D. No. 1866 for illegal possession of firearms, ammunition and explosives; and
R.A. No. 1700, the Anti-Subversion Law. Search Warrant No. 365 was therefore a
"scatter-shot warrant" and totally null and void (People v. Court of Appeals, 216 SCRA
101 [1992]).

Moreover, by their seizure of articles not described in the search warrant, the police
acted beyond the parameters of their authority under the search warrant. Section 2,
Article III of the 1987 Constitution requires that a search warrant should particularly
describe the things to be seized. "The evident purpose and intent of the requirement is
to limit the things to be seized to those, and only those, particularly described in the
search warrant — to leave the officers of the law with no discretion regarding what
articles they should seize, to the end that unreasonable searches and seizures may not
be made and that abuses may not be committed" (Corro v. Lising, 137 SCRA 541, 547
[1985]); Bache & Co. [Phil.] Inc. v. Ruiz, 37 SCRA 823 [1971]; Uy Kheytin v. Villareal, 42
Phil. 886 [1920]). The same constitutional provision is also aimed at preventing
violations of security in person and property and unlawful invasions of the sanctity of the
home, and giving remedy against such usurpations when attempted (People v.
Damaso, 212 SCRA 547 [1992] citing Alvero v. Dizon, 76 Phil. 637, 646 [1946]).

Clearly then, the money which was not indicated in the search warrant, had been
illegally seized from petitioner. The fact that the members of the police team were doing
their task of pursuing subversives is not a valid excuse for the illegal seizure. The
presumption juris tantum of regularity in the performance of official duty cannot by itself
prevail against the constitutionally protected rights of an individual (People v. Cruz, 231
SCRA 759 [1994]; People v. Veloso, 48 Phil. 169, 176 [1925]). Although public welfare
is the foundation of the power to search and seize, such power must be exercised and
the law enforced without transgressing the constitutional rights of the citizens (People v.
Damaso, supra, citing Rodriguez v. Evangelista, 65 Phil. 230, 235 [1937]). As the Court
aptly puts it in Bagalihog v. Fernandez, 198 SCRA 614 (1991), "[z]eal in the pursuit of
criminals cannot ennoble the use of arbitrary methods that the Constitution itself
abhors."

For the retention of the money seized by the police officers, approval of the court which
issued the search warrant is necessary (People v. Gesmundo, 219 SCRA 743 [1993]).
In like manner, only the court which issued the search warrant may order their release
(Temple v. Dela Cruz, 60 SCRA 295 [1974]; Pagkalinawan v. Gomez, 21 SCRA 1275
[1967]).

Section 3(2) of Article III of the 1987 Constitution provides that evidence obtained in
violation of the right against unreasonable searches and seizures shall be inadmissible
for any purpose in any proceeding.

The information in Criminal Case No. 8517, with petitioner as the sole accused, was
ordered quashed by the trial court and the prosecution's motion for the reconsideration
of the quashal order had been denied. Even in BC I.S. Case No. 88-1239, which was
being investigated by Assistant Provincial Prosecutor Marcos, petitioner was dropped
as a respondent. Hence, there appears to be no criminal prosecution which can justify
the retention of the seized articles in custodia legis.

A subsequent legal development added another reason for the return to him of all the
seized articles: R.A. No. 1700, the Anti-Subversion Law, was repealed by R.A. No. 7636
and, therefore, the crimes defined in the repealed law no longer exist.
WHEREFORE, the petition is GRANTED and the People of the Philippines is
ORDERED to RETURN the money seized to petitioner.

SO ORDERED.

Padilla, Davide, Jr., Bellosillo, and Kapunan, 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 PAÑO, 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 Paño, 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/Doña Andrea cases.

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 Paño.

(c) According to the record, Lt. Col. Saldajeno and his witness S/A Dionicio A. Lapus,
were examined under oath by Judge Paño 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 Paño 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 Paño of December 13th issued in the
SEARCH WARRANT CASE.

Hence, this Petition for Certiorari, Prohibition and mandamus to annul and set aside the
(1) Search Warrant issued by respondent RTC Judge Paño; (2) his Order admitting the
Amended Return and granting the Motion to Retain Seized Items; and (3) Order of
respondent MTC Judge Santos denying petitioners' Motion to Suppress.

This Court, on February 12, 1985, issued a Temporary Restraining Order enjoining the
respondents or their duly authorized representatives from introducing evidence obtained
under the Search Warrant.

The PETITIONERS principally assert that the Search Warrant is void 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 cause has not been properly established
for lack of searching questions propounded to the applicant's witness. The respondents,
represented by the Solicitor General, contend otherwise, adding that the questions
raised cannot be entertained in this present petition without petitioners first moving for
the quashal of the disputed Search Warrant with the issuing Judge.

We find merit in the Petition.

Section 3, Article IV of the Constitution, guarantees 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. It also specifically provides that no
Search Warrant shall issue except upon probable cause to be determined by the Judge
or such other responsible officer as may be authorized by law, after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the things to be seized.

The disputed Search Warrant (No. 80-84) describes the personalities to be seized as
follows:

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 Meetings, Plans of these groups, Programs,
List of possible supporters, subversive books and instructions, manuals
not otherwise available to the public, and support money from foreign or
local sources.

It is at once evident that the foregoing Search Warrant authorizes the seizure of
personal properties vaguely described and not particularized. It is an all- embracing
description which includes everything conceivable regarding the Communist Party of the
Philippines and the National Democratic Front. It does not specify what the subversive
books and instructions are; what the manuals not otherwise available to the public
contain to make them subversive or to enable them to be used for the crime of rebellion.
There is absent a definite guideline to the searching team as to what items might be
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 infringes on the constitutional mandate
requiring particular description of the 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:

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. 6
 The things to be seized under the warrant issued by respondent judge
were described as 'subversive documents, propaganda materials, FAs,
printing 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 thereunder. Said description is no different from if
not worse than, the description found in the search warrants in "Burgos, et
al. v. the Chief of Staff"which this Court declared null and void for being
too general. 7

In the case at bar, the search warrant issued by respondent judge allowed
the seizure of printed copies of the Philippine Times, manuscripts/drafts of
articles for publication, newspaper dummies subversive documents,
articles, etc., and even typewriters, duplicating machines, mimeographing
and tape recording machines. Thus, the language used is so all
embracing as to include all conceivable records and equipment of
petitioner regardless of whether they are legal or illegal. The search
warrant under consideration was in the nature of a general warrant which
is constitutionally objectionable. 8

The lack of particularization is also evident in the examination of the witness presented
by the applicant for Search Warrant.

Q Mr. Dionicio Lapus, there is an application for search

warrant filed by Lt. Col. Virgilio Saldajeno and the Court
would like to know if you affirm the truth of your answer in
this deposition?

(The deposition instead)—

A Yes, sir,

Q How long did it take you for the surveillance?

A Almost a month, sir.

Q Are you a lawyer, Mr. Lapus?

A No, Your Honor, but I was a student of law.

Q So, you are more or less familiar with the requisites of the
application for search warrant?

A Yes, Your Honor.

Q How did you come to know of the person of Mila Aguilar-

Roque?
 A Because of our day and night surveillance, Your Honor,
there were so many suspicious persons with documents.

Q What kind of documents do you refer to?

A Documents related to the Communist Party of Philippines

and New People's Army.

Q What else?

A Conferences of the top ranking officials from the National

Democratic Front, Organization of the Communist Party of
the Philippines ...

Q And may include what else?

A Other papers and documents like Minutes of the Party

Meetings, Plans of these groups, Programs, List of possible
supporters, subversive books and instructions, manuals not
otherwise available to the public and support money from
foreign and local sources. 9

The foregoing questions propounded by respondent Executive Judge to the applicant's

witness are not sufficiently searching to establish probable cause. The "probable cause"
required to justify the issuance of a search warrant comprehends such facts and
circumstances as will induce a cautious man to rely upon them and act in pursuant
thereof. 10 Of the 8 questions asked, the 1st, 2nd and 4th pertain to Identity. The 3rd and
5th are leading not searching questions. The 6th, 7th and 8th refer to the description of
the personalities to be seized, which is Identical to that in the Search Warrant and
suffers from the same lack of particularity. The examination conducted was general in
nature and merely repetitious of the deposition of said witness. Mere generalization will
not suffice and does not satisfy the requirements of probable cause upon which a
warrant may issue. 11

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 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 admissibility of the evidence obtained under the Search
Warrant, even during the inquest investigation on August 10, 1984. And in the
SUBVERSIVE 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 Commission No.1 to return to her any and
all irrelevant documents and articles.

WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by

respondent Executive Judge Ernani Cruz Paño is hereby annulled and set aside, and
the Temporary Restraining Order enjoining respondent from introducing evidence
obtained pursuant to the Search Warrant in the Subversive Documents case hereby
made permanent, the, personalities seized may be retained by the Constabulary
Security Group for possible introduction as evidence in Criminal Case No. SMC-1-1,
pending before Special Military commission No. 1, without prejudice to petitioner Mila
Aguilar-Roque objecting to their relevance and asking said Commission to return to her
any and all irrelevant documents and articles.

SO ORDERED.

Plana, Escolin Relova, Gutierrez, Jr., De la Fuente, Alampay and Patajo concur.

Makasiar, C.J., concurs in the result.

Aquino, J.; took no part.

Concepcion Jr., J., reserves his vote.

Separate Opinions

TEEHANKEE, J., concurring and dissenting:

I concur with the concurring and dissenting opinion of Mr. Justice Vicente Abad Santos.
The questioned search warrant has correctly been declared null and void in the Court's
decision as a general warrant issued in gross violation of the constitutional mandate that
"the right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not
be violated" (Bill of Rights, sec. 3). The Bill of Rights orders the absolute exclusion of all
illegally obtained evidence: "Any evidence obtained in violation of this . . . section shall
be inadmissible for any purpose in any proceeding" (Sec. 4[2]). This constitutional
mandate expressly adopting the exclusionary rule has proved by historical experience
to be the only practical means of enforcing the constitutional injunction against
unreasonable searches and seizures by outlawing all evidence illegally seized and
thereby removing the incentive on the part of state and police officers to disregard such
basic rights. What the plain language of the Constitution mandates is beyond the power
of the courts to change or modify.

All the articles thus seized fall under the exclusionary rule totally and unqualifiedly and
cannot be used against any of the three petitioners, as held by the majority in the recent
case of Galman vs. Pamaran (G.R. Nos. 71208-09, August 30, 1985). The Court has
held that "in issuing a search warrant the judge must strictly comply with the
requirements of the Constitution and the statutory provisions. A liberal construction
should be given in favor of the individual to prevent stealthy encroachment upon, or
gradual depreciation of the rights secured by the Constitution. No presumptions of
regularity are to be invoked in aid of the process when an officer undertakes to justify it."
(Mata vs. Bayona, 128 SCRA 388, 393-394)

The majority pronouncement that "as an incident to (petitioner Mila Aguilar- Roque's)
arrest, her dwelling at No. 239-B Mayon Street, Quezon City could have been searched,
even without a warrant, for evidence of rebellion" is patently against the constitutional
proscription and settled law and jurisprudence. Mr. Justice Cuevas amply discusses this
in the dissenting portion of his separate opinion. Suffice it to add and stress that the
arresting CSG Group themselves knew that they needed a search warrant and obtained
the void warrant in question. The exception of Rule 126, sec. 12 which allows a
warrantless search of a person who is lawfully arrested is absolutely limited to his
person, at the time of and incident to his arrest and to dangerous weapons or anything
which may be used as proof of the commission of the offense." Such warrantless search
obviously cannot be made in a place other than the place of arrest. In this case,
petitioner Aguilar-Roque was arrested at 11:30 a.m. on board a public vehicle on the
road (at Mayon and P. Margall Streets). To hold that her dwelling could "later on the
same day" be searched without warrant is to sanction an untenable violation, if not
nullification, of the cited basic constitutional rights against unreasonable searches and
seizures.

I vote to grant the petition in toto.

ABAD SANTOS, J., concurring and dissenting:

I concur in the judgment insofar as it annuls and sets aside Search Warrant No. 80-84
issued by Executive Judge Ernani Cruz Paño for the reasons adduced by Justice
Melencio Herrera. In addition I wish to state the judge either did not fully know the legal
and constitutional requirements for the issuance of a search warrant or he allowed
himself to be used by the military. In either case his action can only be described as
deplorable.

I do not agree with the ponencia when it says that personalities seized may be retained
by the Constabulary Security Group for possible introduction as evidence in Criminal
Case No. SMC-1-1 pending before Special Military Commission No. 1. I agree with
Justice Cuevas. for the reasons stated by him, that their retention cannot be justified by
the provisions of Sec. 12, Rule 126 of the Rules of Court. But then again I cannot agree
with Justice Cuevas, statement that not all the things seized can be ordered returned to
their owners. He refers to "the subversive materials seized by the government agents."
What are subversive materials? Whether a material is subversive or not is a conclusion
of law, not of fact. Who will make the determination? Certainly not the military for it is
not competent to do so aside from the fact that it has its own peculiar views on the
matter. thus copies of Playboy magazines were seized from a labor leader now
deceased and medicines were also seized from a physician who was suspected of
being a subversive. I say return everything to the petitioners.
CUEVAS, J., concurring and dissenting

I fully agree with the pronouncement in the majority opinion nullifying Search warrant
No. 80-84 issued by the Hon. Ernani Cruz Paño Executive Judge of the Regional Trial
Court of Quezon City which was served at 239B Mayon St., Quezon City It does not
specify with requisite particularity the things, objects or properties that may be seized
hereunder. Being in the nature of a general warrant, it violates the constitutional
mandate that the place to be searched and the persons or things to be seized, 'must be
particularly described. (Art. IV, Sec. 3, 1973 Constitution)

I, however, regret being unable to concur with the dictum justifying the said search on
the basis of Sec. 12, Rule 126 of the Rules of Court which provides:

SEC. 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 lawful arrest being the sole justification for the validity of the warrantless search
under the aforequoted provision (Sec. 12, Rule 126) the same must be limited to and
circumscribed by, the subject, time, and place of said arrest. As to subject, the
warrantless search is sanctioned only with respect to the person of the suspect, and
things that may be seized from him are limited to "dangerous weapons" or "anything
which may be used as proof of the commission of the offense." Hence—

An officer making an arrest may take from the person arrested any money
or property found upon his person which was used in the commission of
the crime or might furnish the prisoner with the means of committing
violence or escaping or which may be used as evidence in the trial of the
cause ... (In Re Moreno vs. Ago Chi, 12 Phil. 439: People vs. Veloso, 48
Phil. 169)

With respect to the time and place of the warrantless search allowed by law, it must be

contemporaneous with the lawful arrest. Stated otherwise, to be valid, the search must
have been conducted at about the time of the arrest or immediately thereafter and only
at the place where the suspect was arrested,

The right without a search warrant contemporaneously to search a person

lawfully arrested while committing a crime and to search the place where
the arrest is made in order to find and seize things connected with the
crime as its fruits or as the means by which it was committed, as well as
weapons or other things to effect an escape from custody is not to be
doubted. CAROLL vs. US 267 US 122. 158. ... But the right does not
extend to other places. Frank Agnello's house was several blocks distant
from Alba's house where the arrest was made. When it was entered and
searched, the conspiracy was ended and the defendants were under
arrest and in custody elsewhere. That search cannot be sustained as an
 incident of the arrests. MARSON vs. US, 275 US 192, 199. (Emphasis
supplied) (Agnello vs. U.S., 269 U.S. 20,30)

The second element which must exist in order to bring the case within the exception to
the general rule is that, in addition to a lawful arrest, the search must be incident to the
arrest.

The search must be made at the place of the arrest, otherwise, it is not
incident to the arrest. AGNELLO vs. U.S. supra. In this latter case, 269
U.S. 20 at 30, it is said that the officers have a right to make a search
contemporaneously with the arrest. And if the purpose of the officers in
making their entry is not to make an arrest, but to make a search to obtain
evidence for some future arrest, then search is not incidental to
arrest. BYARS vs. U.S. 273 U.S., 28 ET AL. (Papani vs, U. S. 84 F 2d
160, 163)

In the instant case, petitioners were arrested at the intersection of Mayon St. and P.
Margall St. at 11:30 A.M. of August 6. 1976. The search, on the other hand, was
conducted after the arrest, that was at around 12:00 noon of the same day or "late that
same day (as respondents claim in their "COMMENT") at the residence of petitioner
AGUILAR-ROQUE in 239B Mayn St., Quezon City. How far or how many kilometers is
that place from the place where petitioner was arrested do not appear shown by the
record. But what appears undisputed is that the search was made in a place other than
the place of arrest and, not on the occasion of nor immediately after the arrest. It cannot
be said, therefore, that such a search was incidental to the arrest of the petitioners. Not
being an incident of a lawful arrest, the search of the premises at 239B Mayon St.,
Quezon City WITHOUT A VALID SEARCH WARRANT is ILLEGAL and violative of the
constitutional rights of the respondent. The things and properties seized on the occasion
of said illegal search are therefore INADMISSIBLE in evidence under the exclusionary
rule. However, not all the things so seized can be ordered returned to their owners.
Objects and properties the possession of which is prohibited by law, cannot be returned
to their owners notwithstanding the illegality of their seizure. (Mata vs. Bayona, 128
SCRA 388, 1984 citing Castro vs. Pabalan, 70 SCRA 478). Thus, the subversive
materials seized by the government agents which cannot be legally possessed by
anyone under the law can and must be retained by the government.

Separate Opinions

TEEHANKEE, J., concurring and dissenting.

I concur with the concurring and dissenting opinion of Mr. Justice Vicente Abad Santos.
The questioned search warrant has correctly been declared null and void in the Court's
decision as a general warrant issued in gross violation of the constitutional mandate that
"the right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not
be violated" (Bill of Rights, sec. 3). The Bill of Rights orders the absolute exclusion of all
illegally obtained evidence: "Any evidence obtained in violation of this . . . section shall
be inadmissible for any purpose in any proceeding" (Sec. 4[2]). This constitutional
mandate expressly adopting the exclusionary rule has proved by historical experience
to be the only practical means of enforcing the constitutional injunction against
unreasonable searches and seizures by outlawing all evidence illegally seized and
thereby removing the incentive on the part of state and police officers to disregard such
basic rights. What the plain language of the Constitution mandates is beyond the power
of the courts to change or modify.

All the articles thus seized fall under the exclusionary rule totally and unqualifiedly and
cannot be used against any of the three petitioners, as held by the majority in the recent
case of Galman vs. Pamaran (G.R. Nos. 71208-09, August 30, 1985). The Court has
held that "in issuing a search warrant the judge must strictly comply with the
requirements of the Constitution and the statutory provisions. A liberal construction
should be given in favor of the individual to prevent stealthy encroachment upon, or
gradual depreciation of the rights secured by the Constitution. No presumptions of
regularity are to be invoked in aid of the process when an officer undertakes to justify it."
(Mata vs. Bayona, 128 SCRA 388, 393-394)

The majority pronouncement that "as an incident to (petitioner Mila Aguilar- Roque's)
arrest, her dwelling at No. 239-B Mayon Street, Quezon City could have been searched,
even without a warrant, for evidence of rebellion" is patently against the constitutional
proscription and settled law and jurisprudence. Mr. Justice Cuevas amply discusses this
in the dissenting portion of his separate opinion. Suffice it to add and stress that the
arresting CSG Group themselves knew that they needed a search warrant and obtained
the void warrant in question. The exception of Rule 126, sec. 12 which allows a
warrantless search of a person who is lawfully arrested is absolutely limited to his
person, at the time of and incident to his arrest and to dangerous weapons or anything
which may be used as proof of the commission of the offense." Such warrantless search
obviously cannot be made in a place other than the place of arrest. In this case,
petitioner Aguilar-Roque was arrested at 11:30 a.m. on board a public vehicle on the
road (at Mayon and P. Margall Streets). To hold that her dwelling could "later on the
same day" be searched without warrant is to sanction an untenable violation, if not
nullification, of the cited basic constitutional rights against unreasonable searches and
seizures.

I vote to grant the petition in toto.

ABAD SANTOS, J., concurring and dissenting:

I concur in the judgment insofar as it annuls and sets aside Search Warrant
No. 80-84 issued by Executive Judge Ernani Cruz Paño for the reasons adduced by
Justice Melencio Herrera. In addition I wish to state the judge either did not fully know
the legal and constitutional requirements for the issuance of a search warrant or he
allowed himself to be used by the military. In either case his action can only be
described as deplorable.

I do not agree with the ponencia when it says that personalities seized may be retained
by the Constabulary Security Group for possible introduction as evidence in Criminal
Case No. SMC-1-1 pending before Special Military Commission No. 1. I agree with
Justice Cuevas. for the reasons stated by him, that their retention cannot be justified by
the provisions of Sec. 12, Rule 126 of the Rules of Court. But then again I cannot agree
with Justice Cuevas, statement that not all the things seized can be ordered returned to
their owners. He refers to "the subversive materials seized by the government agents."
What are subversive materials? Whether a material is subversive or not is a conclusion
of law, not of fact. Who will make the determination? Certainly not the military for it is
not competent to do so aside from the fact that it has its own peculiar views on the
matter. thus copies of Playboy magazines were seized from a labor leader now
deceased and medicines were also seized from a physician who was suspected of
being a subversive. I say return everything to the petitioners.

CUEVAS, J., concurring and dissenting:

I fully agree with the pronouncement in the majority opinion nullifying Search warrant
No. 80-84 issued by the Hon. Ernani Cruz Paño Executive Judge of the Regional Trial
Court of Quezon City which was served at 239B Mayon St., Quezon City It does not
specify with requisite particularity the things, objects or properties that may be seized
hereunder. Being in the nature of a general warrant, it violates the constitutional
mandate that the place to be searched and the persons or things to be seized, 'must be
particularly described. (Art. IV, Sec. 3, 1973 Constitution)

I, however, regret being unable to concur with the dictum justifying the said search on
the basis of Sec. 12, Rule 126 of the Rules of Court which provides:

SEC. 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 lawful arrest being the sole justification for the validity of the warrantless search
under the aforequoted provision (Sec. 12, Rule 126) the same must be limited to and
circumscribed by, the subject, time, and place of said arrest. As to subject, the
warrantless search is sanctioned only with respect to the person of the suspect, and
things that may be seized from him are limited to "dangerous weapons" or "anything
which may be used as proof of the commission of the offense." Hence—

An officer making an arrest may take from the person arrested any money
or property found upon his person which was used in the commission of
the crime or might furnish the prisoner with the means of committing
 violence or escaping or which may be used as evidence in the trial of the
cause ... (In Re Moreno vs. Ago Chi, 12 Phil. 439: People vs. Veloso, 48
Phil. 169)

With respect to the time and place of the warrantless search allowed by law, it must be

contemporaneous with the lawful arrest. Stated otherwise, to be valid, the search must
have been conducted at about the time of the arrest or immediately thereafter and only
at the place where the suspect was arrested,

The right without a search warrant contemporaneously to search a person

lawfully arrested while committing a crime and to search the place where
the arrest is made in order to find and seize things connected with the
crime as its fruits or as the means by which it was committed, as well as
weapons or other things to effect an escape from custody is not to be
doubted. CAROLL vs. US 267 US 122. 158. ... But the right does not
extend to other places. Frank Agnello's house was several blocks distant
from Alba's house where the arrest was made. When it was entered and
searched, the conspiracy was ended and the defendants were under
arrest and in custody elsewhere. That search cannot be sustained as an
incident of the arrests. MARSON vs. US, 275 US 192, 199. (Emphasis
supplied) (Agnello vs. U.S., 269 U.S. 20,30)

The second element which must exist in order to bring the case within the exception to
the general rule is that, in addition to a lawful arrest, the search must be incident to the
arrest.

The search must be made at the place of the arrest, otherwise, it is not
incident to the arrest. AGNELLO vs. U.S. supra. In this latter case, 269
U.S. 20 at 30, it is said that the officers have a right to make a search
contemporaneously with the arrest. And if the purpose of the officers in
making their entry is not to make an arrest, but to make a search to obtain
evidence for some future arrest, then search is not incidental to
arrest. BYARS vs. U.S. 273 U.S., 28 ET AL. (Papani vs, U. S. 84 F 2d
160, 163)

In the instant case, petitioners were arrested at the intersection of Mayon St. and P.
Margall St. at 11:30 A.M. of August 6. 1976. The search, on the other hand, was
conducted after the arrest, that was at around 12:00 noon of the same day or "late that
same day (as respondents claim in their "COMMENT") at the residence of petitioner
AGUILAR-ROQUE in 239B Mayon St., Quezon City. How far or how many kilometers is
that place from the place where petitioner was arrested do not appear shown by the
record. But what appears undisputed is that the search was made in a place other than
the place of arrest and, not on the occasion of nor immediately after the arrest. It cannot
be said, therefore, that such a search was incidental to the arrest of the petitioners. Not
being an incident of a lawful arrest, the search of the premises at 239B Mayon St.,
Quezon City WITHOUT A VALID SEARCH WARRANT is ILLEGAL and violative of the
constitutional rights of the respondent. The things and properties seized on the occasion
of said illegal search are therefore INADMISSIBLE in evidence under the exclusionary
rule. However, not all the things so seized can be ordered returned to their owners.
Objects and properties the possession of which is prohibited by law, cannot be returned
to their owners notwithstanding the illegality of their seizure. (Mata vs. Bayona, 128
SCRA 388, 1984 citing Castro vs. Pabalan, 70 SCRA 478). Thus, the subversive
materials seized by the government agents which cannot be legally possessed by
anyone under the law can and must be retained by the government.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 161106               January 13, 2014

WORLDWIDE WEB CORPORATION and CHERRYLL L. YU, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES and PHILIPPINE LONG DISTANCE TELEPHONE
COMPANY, Respondents.

x-----------------------x

G.R. No. 161266

PLANET INTERNET CORP., Petitioner,

vs.
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, Respondent.

DECISION

SERENO, CJ:

Petitioners filed the present Petitions under Rule 45 of the Rules of Court to set aside
the Decision1 dated 20 August 2003 and the Resolution 2 dated 27 November 2003 of
the Court of Appeals (CA) reversing the quashal of the search warrants previously
issued by the Regional Trial Court (RTC).

Police Chief Inspector Napoleon Villegas of the Regional Intelligence Special

Operations Office (RISOO) of the Philippine National Police filed applications for
warrants3 before the RTC of Quezon City, Branch 78, to search the office premises of
petitioner Worldwide Web Corporation (WWC)4 located at the 11th floor, IBM Plaza
Building, No. 188 Eastwood City, Libis, Quezon City, as well as the office premises of
petitioner Planet Internet Corporation (Planet Internet) 5 located at UN 2103, 21/F Orient
Square Building, Emerald Avenue, Barangay San Antonio, Pasig City. The applications
alleged that petitioners were conducting illegal toll bypass operations, which amounted
to theft and violation of Presidential Decree No. 401 (Penalizing the Unauthorized
Installation of Water, Electrical or Telephone Connections, the Use of Tampered Water
or Electrical Meters and Other Acts), to the damage and prejudice of the Philippine Long
Distance Telephone Company (PLDT).6

On 25 September 2001, the trial court conducted a hearing on the applications for
search warrants. The applicant and Jose Enrico Rivera (Rivera) and Raymund Gali
(Gali) of the Alternative Calling Pattern Detection Division of PLDT testified as
witnesses.

According to Rivera, a legitimate international long distance call should pass through
the local exchange or public switch telephone network (PSTN) on to the toll center of
one of the international gateway facilities (IGFs) 7 in the Philippines.8 The call is then
transmitted to the other country through voice circuits, either via fiber optic submarine
cable or microwave radio using satellite facilities, and passes the toll center of one of
the IGFs in the destination country. The toll center would then meter the call, which will
pass through the PSTN of the called number to complete the circuit. In contrast,
petitioners were able to provide international long distance call services to any part of
the world by using PLDT’s telephone lines, but bypassing its IGF. This scheme
constitutes toll bypass, a "method of routing and completing international long distance
calls using lines, cables, antenna and/or wave or frequency which connects directly to
the local or domestic exchange facilities of the originating country or the country where
the call is originated."9

On the other hand, Gali claimed that a phone number serviced by PLDT and registered
to WWC was used to provide a service called GlobalTalk, "an internet-based
international call service, which can be availed of via prepaid or billed/post-paid
accounts."10 During a test call using GlobalTalk, Gali dialed the local PLDT telephone
number 6891135, the given access line. After a voice prompt required him to enter the
user code and personal identification number (PIN) provided under a GlobalTalk pre-
paid account, he was then requested to enter the destination number, which included
the country code, phone number and a pound (#) sign. The call was completed to a
phone number in Taiwan. However, when he checked the records, it showed that the
call was only directed to the local number 6891135. This indicated that the international
test call using GlobalTalk bypassed PLDT’s IGF.

Based on the records of PLDT, telephone number 6891135 is registered to WWC with
address at UN 2103, 21/F Orient Square Building, Emerald Avenue, Barangay San
Antonio, Pasig City.11 However, upon an ocular inspection conducted by Rivera at this
address, it was found that the occupant of the unit is Planet Internet, which also uses
the telephone lines registered to WWC.12 These telephone lines are interconnected to a
server and used as dial-up access lines/numbers of WWC.

Gali further alleged that because PLDT lines and equipment had been illegally
connected by petitioners to a piece of equipment that routed the international calls and
bypassed PLDT’s IGF, they violated Presidential Decree (P.D.) No. 401 as
amended,13 on unauthorized installation of telephone connections. Petitioners also
committed theft, because through their misuse of PLDT phone lines/numbers and
equipment and with clear intent to gain, they illegally stole business and revenues that
rightly belong to PLDT. Moreover, they acted contrary to the letter and intent of Republic
Act (R.A.) No. 7925, because in bypassing the IGF of PLDT, they evaded the payment
of access and bypass charges in its favor while "piggy-backing" on its multi-million dollar
facilities and infrastructure, thus stealing its business revenues from international long
distance calls. Further, petitioners acted in gross violation of Memorandum Circular No.
6-2-92 of the National Telecommunications Commission (NTC) prohibiting the use of
customs premises equipment (CPE) without first securing type approval license from
the latter.

Based on a five-day sampling of the phone line of petitioners, PLDT computed a

monthly revenue loss of ₱764,718.09. PLDT likewise alleged that petitioners deprived it
of foreign exchange revenues, and evaded the payment of taxes, license fees, and
charges, to the prejudice of the government.

During the hearing, the trial court required the identification of the office premises/units
to be searched, as well as their floor plans showing the location of particular computers
and servers that would be taken.14

On 26 September 2001, the RTC granted the application for search

warrants.15 Accordingly, the following warrants were issued against the office premises
of petitioners, authorizing police officers to seize various items:

1. Search Warrant No. Q-01-3856,16 issued for violation of paragraph one (1) of

Article 308 (theft) in relation to Article 309 of the Revised Penal Code against
WWC, Adriel S. Mirto, Kevin L. Tan, Cherryll L. Yu, Carmelo J. Canto, III,
Ferdinand B. Masi, Message One International Corporation, Adriel S. Mirto, Nova
Christine L. Dela Cruz, Robertson S. Chiang, and Nolan B. Sison with business
address at 11/F IBM Plaza Building, No. 188 Eastwood City, Cyberpark Libis,
Quezon City:

a) Computers or any equipment or device capable of accepting

information, applying the process of the information and supplying the
results of this process;

b) Software, Diskettes, Tapes or equipment or device used for recording

or storing information; and c) Manuals, application forms, access codes,
billing statements, receipts, contracts, communications and documents
relating to securing and using telephone lines and/or equipment.

2. Search Warrant No. Q-01-3857,17 issued for violation of P.D. 401 against

Planet Internet Corporation/Mercury One, Robertson S. Chiang, Nikki S. Chiang,
Maria Sy Be Chiang, Ben C. Javellana, Carmelita Tuason with business address
at UN 2103, 21/F Orient Square Building, Emerald Avenue, Barangay San
Antonio, Pasig City:

a) Modems or Routers or any equipment or device that enables data

terminal equipment such as computers to communicate with other data
terminal equipment via a telephone line;

b) Computers or any equipment or device capable of accepting

information applying the prescribed process of the information and
supplying the results of this process;

c) Lines, Cables and Antennas or equipment or device capable of

transmitting air waves or frequency, such as an IPL and telephone lines
and equipment;

d) Multiplexers or any equipment or device that enables two or more

signals from different sources to pass through a common cable or
transmission line;

e) PABX or Switching Equipment, Tapes or equipment or device capable

of connecting telephone lines;

f) Software, Diskettes, Tapes or equipment or device used for recording or

storing information; and

g) Manuals, application forms, access codes, billing statement, receipts,

contracts, checks, orders, communications and documents, lease and/or
subscription agreements or contracts, communications and documents
relating to securing and using telephone lines and/or equipment.

3. Search Warrant No. Q-01-3858,18 issued for violation of paragraph one (1) of

Article 308 (theft) in relation to Article 309 of the Revised Penal Code against
Planet Internet Corporation/Mercury One, Robertson S. Chiang, Nikki S. Chiang,
Maria Sy Be Chiang, Ben C. Javellana, Carmelita Tuason with business address
at UN 2103, 21/F Orient Square Building, Emerald Avenue, Barangay San
Antonio, Pasig City:

a) Modems or Routers or any equipment or device that enables data

terminal equipment such as computers to communicate with other data
terminal equipment via a telephone line;

b) Computers or any equipment or device capable of accepting

information applying the prescribed process of the information and
supplying the results of this process;
 c) Lines, Cables and Antennas or equipment or device capable of
transmitting air waves or frequency, such as an IPL and telephone lines
and equipment;

d) Multiplexers or any equipment or device that enables two or more

signals from different sources to pass through a common cable or
transmission line;

e) PABX or Switching Equipment, Tapes or equipment or device capable

of connecting telephone lines;

f) Software, Diskettes, Tapes or equipment or device used for recording or

storing information; and

g) Manuals, application forms, access codes, billing statement, receipts,

contracts, checks, orders, communications and documents, lease and/or
subscription agreements or contracts, communications and documents
relating to securing and using telephone lines and/or equipment.

The warrants were implemented on the same day by RISOO operatives of the National
Capital Region Police Office.

Over a hundred items were seized,19 including 15 central processing units (CPUs), 10

monitors, numerous wires, cables, diskettes and files, and a laptop computer. 20 Planet
Internet notes that even personal diskettes of its employees were confiscated; and
areas not devoted to the transmission of international calls, such as the President’s
Office and the Information Desk, were searched. Voltage regulators, as well as reserve
and broken computers, were also seized. Petitioners WWC and Cherryll Yu, 21 and
Planet Internet22 filed their respective motions to quash the search warrants, citing
basically the same grounds: (1) the search warrants were issued without probable
cause, since the acts complained of did not constitute theft; (2) toll bypass, the act
complained of, was not a crime; (3) the search warrants were general warrants; and (4)
the objects seized pursuant thereto were "fruits of the poisonous tree."

PLDT filed a Consolidated Opposition23 to the motions to quash.

In the hearing of the motions to quash on 19 October 2001, the test calls alluded to by
Gali in his Affidavit were shown to have passed the IGF of Eastern Telecommunications
(Philippines) Inc. (Eastern) and of Capital Wireless (Capwire). 24 Planet Internet
explained that Eastern and Capwire both provided international direct dialing services,
which Planet Internet marketed by virtue of a "Reseller Agreement." Planet Internet
used PLDT lines for the first phase of the call; but for the second phase, it used the IGF
of either Eastern or Capwire. Planet Internet religiously paid PLDT for its domestic
phone bills and Eastern and Capwire for its IGF usage. None of these contentions were
refuted by PLDT.
The RTC granted the motions to quash on the ground that the warrants issued were in
the nature of general warrants.25 Thus, the properties seized under the said warrants
were ordered released to petitioners.

PLDT moved for reconsideration,26 but its motion was denied27 on the ground that it had
failed to get the conformity of the City Prosecutor prior to filing the motion, as required
under Section 5, Rule 110 of the Rules on Criminal Procedure.

THE CA RULING

PLDT appealed to the CA, where the case was docketed as CA-G.R. No. 26190. The
CA reversed and set aside the assailed RTC Resolutions and declared the search
warrants valid and effective.28

Petitioners separately moved for reconsideration of the CA ruling. 29 Among the points
raised was that PLDT should have filed a petition for certiorari rather than an appeal
when it questioned the RTC Resolution before the CA. The appellate court denied the
Motions for Reconsideration.30

Rule 45 Petitions were separately filed by petitioners WWC and Cherryll Yu, 31 and
Planet Internet32 to assail the CA Decision and Resolution. The Court consolidated the
two Petitions.33

ISSUES

I. Whether the CA erred in giving due course to PLDT’s appeal despite the
following procedural infirmities:

1. PLDT, without the conformity of the public prosecutor, had no

personality to question the quashal of the search warrants;

2. PLDT assailed the quashal orders via an appeal rather than a petition
for certiorari under Rule 65 of the Rules of Court.

II. Whether the assailed search warrants were issued upon probable cause,
considering that the acts complained of allegedly do not constitute theft.

III. Whether the CA seriously erred in holding that the assailed search warrants
were not general warrants.

OUR RULING

I.

1. An application for a search warrant is not a criminal

action; conformity of the public prosecutor is not necessary to
give the aggrieved party personality to question an order
quashing search warrants.

Petitioners contend that PLDT had no personality to question the quashal of the search
warrants without the conformity of the public prosecutor. They argue that it violated
Section 5, Rule 110 of the Rules of Criminal Procedure, to wit:

SEC. 5. Who must prosecute criminal actions. — All criminal actions commenced by a
complaint or information shall be prosecuted under the direction and control of the
prosecutor.

The above provision states the general rule that the public prosecutor has direction and
control of the prosecution of "(a)ll criminal actions commenced by a complaint or
information." However, a search warrant is obtained, not by the filing of a complaint or
an information, but by the filing of an application therefor. 34

Furthermore, as we held in Malaloan v. Court of Appeals, 35 an application for a search

warrant is a "special criminal process," rather than a criminal action:

The basic flaw in this reasoning is in erroneously equating the application for and the
obtention of a search warrant with the institution and prosecution of a criminal action in
a trial court. It would thus categorize what is only a special criminal process, the power
to issue which is inherent in all courts, as equivalent to a criminal action, jurisdiction
over which is reposed in specific courts of indicated competence. It ignores the fact that
the requisites, procedure and purpose for the issuance of a search warrant are
completely different from those for the institution of a criminal action.

For, indeed, a warrant, such as a warrant of arrest or a search warrant, merely

constitutes process. A search warrant is defined in our jurisdiction as an order in writing
issued in the name of the People of the Philippines signed by a judge and directed to a
peace officer, commanding him to search for personal property and bring it before the
court. A search warrant is in the nature of a criminal process akin to a writ of discovery.
It is a special and peculiar remedy, drastic in its nature, and made necessary because
of a public necessity.

In American jurisdictions, from which we have taken our jural concept and provisions on
search warrants, such warrant is definitively considered merely as a process, generally
issued by a court in the exercise of its ancillary jurisdiction, and not a criminal action to
be entertained by a court pursuant to its original jurisdiction. We emphasize this fact for
purposes of both issues as formulated in this opinion, with the catalogue of authorities
herein.36 (Emphasis supplied)

Clearly then, an application for a search warrant is not a criminal action. Meanwhile, we
have consistently recognized the right of parties to question orders quashing those
warrants.37 Accordingly, we sustain the CA’s ruling that the conformity of the public
prosecutor is not necessary before an aggrieved party moves for reconsideration of an
order granting a motion to quash search warrants.

2. An order quashing a search warrant, which was issued

independently prior to the filing of a criminal action, partakes
of a final order that can be the proper subject of an appeal.

Petitioners also claim that since the RTC ruling on the motions to quash was
interlocutory, it cannot be appealed under Rule 41 of the Rules of Court. PLDT should
have filed a Rule 65 petition instead. Petitioners cite, as authority for their position,
Marcelo v. de Guzman.38 The Court held therein as follows:

But is the order of Judge de Guzman denying the motion to quash the search warrant
and to return the properties seized thereunder final in character, or is it merely
interlocutory? In Cruz vs. Dinglasan, this Court, citing American jurisprudence, resolved
this issue thus:

Where accused in criminal proceeding has petitioned for the return of goods seized, the
order of restoration by an inferior court is interlocutory and hence, not appealable;
likewise, a denial, by the US District Court, of defendant's petition for the return of the
articles seized under a warrant is such an interlocutory order. (56 C.J. 1253).

A final order is defined as one which disposes of the whole subject matter or terminates
a particular proceeding or action, leaving nothing to be done but to enforce by execution
what has been determined; on the other hand an order is interlocutory if it does not
dispose of a case completely, but leaves something more to be done upon its merits.
Tested against this criterion, the search warrant issued in Criminal Case No. 558 is
indisputably of interlocutory character because it leaves something more to be done in
the said criminal case, i.e., the determination of the guilt of the accused therein. 39

Petitioners’ reliance upon Marcelo is misplaced.

An application for a search warrant is a judicial process conducted either as an incident

in a main criminal case already filed in court or in anticipation of one yet to be
filed.40 Whether the criminal case (of which the search warrant is an incident) has
already been filed before the trial court is significant for the purpose of determining the
proper remedy from a grant or denial of a motion to quash a search warrant.

Where the search warrant is issued as an incident in a pending criminal case, as it was
in Marcelo, the quashal of a search warrant is merely interlocutory. There is still
"something more to be done in the said criminal case, i.e., the determination of the guilt
of the accused therein."41

In contrast, where a search warrant is applied for and issued in anticipation of a criminal
case yet to be filed, the order quashing the warrant (and denial of a motion for
reconsideration of the grant) ends the judicial process. There is nothing more to be
done thereafter.

Thus, the CA correctly ruled that Marcelo does not apply to this case. Here, the
applications for search warrants were instituted as principal proceedings and not as
incidents to pending criminal actions. When the search warrants issued were
subsequently quashed by the RTC, there was nothing left to be done by the trial court.
Thus, the quashal of the search warrants were final orders, not interlocutory, and an
appeal may be properly taken therefrom.

II.

Trial judges determine probable cause in the exercise of their

judicial functions. A trial judge’s finding of probable cause
for the issuance of a search warrant is accorded respect by
reviewing courts when the finding has substantial basis.

Petitioners claim that no probable cause existed to justify the issuance of the search
warrants.

The rules pertaining to the issuance of search warrants are enshrined in Section 2,
Article III of the 1987 Constitution:

Section 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.
(Emphasis supplied)

In the issuance of a search warrant, probable cause requires "such facts and
circumstances that would lead a reasonably prudent man to believe that an offense has
been committed and the objects sought in connection with that offense are in the place
to be searched."42

There is no exact test for the determination of probable cause 43 in the issuance of
search warrants. It is a matter wholly dependent on the finding of trial judges in the
process of exercising their judicial function. 44 They determine probable cause based on
"evidence showing that, more likely than not, a crime has been committed and that it
was committed" by the offender.45

When a finding of probable cause for the issuance of a search warrant is made by a trial
judge, the finding is accorded respect by reviewing courts:
x x x. It is presumed that a judicial function has been regularly performed, absent a
showing to the contrary. A magistrate’s determination of probable cause for the
issuance of a search warrant is paid great deference by a reviewing court, as long as
there was substantial basis for that determination. Substantial basis means that the
questions of the examining judge brought out such facts and circumstances as would
lead a reasonably discreet and prudent man to believe that an offense has been
committed, and the objects in connection with the offense sought to be seized are in the
place sought to be searched.46

The transcript of stenographic notes during the hearing for the application for search
warrants on 25 September 2001 shows that Judge Percival Mandap Lopez asked
searching questions to the witnesses and particularly sought clarification on the alleged
illegal toll bypass operations of petitioners, as well as the pieces of evidence presented.
Thus, the Court will no longer disturb the finding of probable cause by the trial judge
during the hearing for the application for the search warrants.

However, petitioners insist that the determination of the existence of probable cause
necessitates the prior determination of whether a crime or an offense was committed in
the first place. In support of their contention that there was no probable cause for the
issuance of the search warrants, petitioners put forward the adage nullum crimen, nulla
poena sine lege – there is no crime when there is no law punishing it. Petitioners argue
that there is no law punishing toll bypass, the act complained of by PLDT. Thus, no
offense was committed that would justify the issuance of the search warrants.

According to PLDT, toll bypass enables international calls to appear as local calls and
not overseas calls, thus effectively evading payment to the PLDT of access, termination
or bypass charges, and accounting rates; payment to the government of taxes; and
compliance with NTC regulatory requirements. PLDT concludes that toll bypass is
prohibited, because it deprives "legitimate telephone operators, like PLDT… of the
compensation which it is entitled to had the call been properly routed through its
network."47 As such, toll bypass operations constitute theft, because all of the elements
of the crime are present therein.

On the other hand, petitioners WWC and Cherryll Yu argue that there is no theft to
speak of, because the properties allegedly taken from PLDT partake of the nature of
"future earnings and lost business opportunities" and, as such, are uncertain,
anticipative, speculative, contingent, and conditional. PLDT cannot be deprived of such
unrealized earnings and opportunities because these do not belong to it in the first
place.

Upon a review of the records of the case, we understand that the Affidavits of Rivera
and Gali that accompanied the applications for the search warrants charge petitioners
with the crime, not of toll bypass perse, but of theft of PLDT’s international long distance
call business committed by means of the alleged toll bypass operations.
For theft to be committed in this case, the following elements must be shown to exist:
(1) the taking by petitioners (2) of PLDT’s personal property (3) with intent to gain (4)
without the consent of PLDT (5) accomplished without the use of violence against or
intimidation of persons or the use of force upon things. 48

Petitioners WWC and Cherryll Yu only take issue with categorizing the earnings and
business as personal properties of PLDT. However, in Laurel v. Abrogar, 49 we have
already held that the use of PLDT’s communications facilities without its consent
constitutes theft of its telephone services and business:

x x x "[I]nternational long distance calls," the matter alleged to be stolen in the instant
case, take the form of electrical energy, it cannot be said that such international long
distance calls were personal properties belonging to PLDT since the latter could not
have acquired ownership over such calls. PLDT merely encodes, augments, enhances,
decodes and transmits said calls using its complex communications infrastructure and
facilities. PLDT not being the owner of said telephone calls, then it could not validly
claim that such telephone calls were taken without its consent.

It is the use of these communications facilities without the consent of PLDT that
constitutes the crime of theft, which is the unlawful taking of the telephone services and
business.

Therefore, the business of providing telecommunication and the telephone service are
personal property under Article 308 of the Revised Penal Code, and the act of engaging
in ISR is an act of "subtraction" penalized under said article. However, the Amended
Information describes the thing taken as, "international long distance calls," and only
later mentions "stealing the business from PLDT" as the manner by which the gain was
derived by the accused. In order to correct this inaccuracy of description, this case must
be remanded to the trial court and the prosecution directed to amend the Amended
Information, to clearly state that the property subject of the theft are the services and
business of respondent PLDT. Parenthetically, this amendment is not necessitated by a
mistake in charging the proper offense, which would have called for the dismissal of the
information under Rule 110, Section 14 and Rule 119, Section 19 of the Revised Rules
on Criminal Procedure. To be sure, the crime is properly designated as one of theft. The
purpose of the amendment is simply to ensure that the accused is fully and sufficiently
apprised of the nature and cause of the charge against him, and thus guaranteed of his
rights under the Constitution. (Emphasis supplied)

In Laurel, we reviewed the existing laws and jurisprudence on the generally accepted
concept of personal property in civil law as "anything susceptible of appropriation." 50 It
includes ownership of telephone services, which are protected by the penal provisions
on theft. We therein upheld the Amended Information charging the petitioner with the
crime of theft against PLDT inasmuch as the allegation was that the former was
engaged in international simple resale (ISR) or "the unauthorized routing and
completing of international long distance calls using lines, cables, antennae, and/or air
wave frequency and connecting these calls directly to the local or domestic exchange
facilities of the country where destined."51 We reasoned that since PLDT encodes,
augments, enhances, decodes and transmits telephone calls using its complex
communications infrastructure and facilities, the use of these communications facilities
without its consent constitutes theft, which is the unlawful taking of telephone services
and business. We then concluded that the business of providing telecommunications
and telephone services is personal property under Article 308 of the Revised Penal
Code, and that the act of engaging in ISR is an act of "subtraction" penalized under said
article.

Furthermore, toll bypass operations could not have been accomplished without the
installation of telecommunications equipment to the PLDT telephone lines. Thus,
petitioners may also be held liable for violation of P.D. 401, to wit:

Section 1. Any person who installs any water, electrical, telephone or piped gas
connection without previous authority from the Metropolitan Waterworks and Sewerage
System, the Manila Electric Company, the Philippine Long Distance Telephone
Company , or the Manila Gas Corporation, as the case may be, tampers and/or uses
tampered water, electrical or gas meters, jumpers or other devices whereby water,
electricity or piped gas is stolen; steals or pilfers water, electric or piped gas meters, or
water, electric and/or telephone wires, or piped gas pipes or conduits; knowingly
possesses stolen or pilfered water, electrical or gas meters as well as stolen or pilfered
water, electrical and/or telephone wires, or piped gas pipes and conduits, shall, upon
conviction, be punished with prision correccional in its minimum period or a fine ranging
from two thousand to six thousand pesos, or both . (Emphasis supplied)

The peculiar circumstances attending the situation compel us to rule further on the
matter of probable cause. During the hearing of the motions to quash the search
warrants, the test calls conducted by witnesses for PLDT were shown to have
connected to the IGF of either Eastern or Capwire to complete the international calls.

A trial judge’s finding of probable cause may be set aside and the search warrant issued
by him based on his finding may be quashed if the person against whom the warrant is
issued presents clear and convincing evidence that when the police officers and
witnesses testified, they committed a deliberate falsehood or reckless disregard for the
truth on matters that are essential or necessary to a showing of probable cause. 52 In
that case, the finding of probable cause is a nullity, because the trial judge was
intentionally misled by the witnesses.53

On the other hand, innocent and negligent omissions or misrepresentation of witnesses

will not cause the quashal of a search warrant. 54 In this case, the testimonies of Rivera
and Gali that the test calls they conducted did not pass through PLDT’s IGF are true.
They neglected, however, to look into the possibility that the test calls may have passed
through other IGFs in the Philippines, which was exactly what happened. Nevertheless,
the witnesses did not commit a deliberate falsehood. Even Planet Internet stated that
the conclusion that the test calls bypassed all IGFs in the country was made "carelessly
and haphazardly."55
On this score, the quashal of the search warrants is not in order. It must be noted that
the trial judge did not quash the warrants in this case based on lack of probable cause.
Instead, the issue before us is whether the CA erred in reversing the RTC, which ruled
that the search warrants are general warrants.

III.

The requirement of particularity in the description of things to

be seized is fulfilled when the items described in the search
warrant bear a direct relation to the offense for which the
warrant is sought.

Petitioners claim that the subject search warrants were in the nature of general warrants
because the descriptions therein of the objects to be seized are so broad and all-
encompassing as to give the implementing officers wide discretion over which articles to
seize. In fact, the CA observed that the targets of the search warrants were not illegal
per se, and that they were "innocuous goods." Thus, the police officers were given
blanket authority to determine whether the objects were legal or not, as in fact even
pieces of computer equipment not involved in telecommunications or Internet service
were confiscated.

On the other hand, PLDT claims that a search warrant already fulfills the requirement of
particularity of description when it is as specific as the circumstances will ordinarily
allow.56 Furthermore, it cites Kho v. Makalintal,57 in which the Court allowed leeway in
the description of things to be seized, taking into consideration the effort and the time
element involved in the prosecution of criminal cases.

The Office of the Solicitor General (OSG), in its Comment 58 filed with the CA, likewise
prayed for the reversal of the quashal of the search warrants in view of the OSG’s
position that the scheme was a case of electronic theft, and that the items sought to be
seized could not be described with calibrated precision. According to the OSG,
assuming that the seized items could also be used for other legitimate businesses, the
fact remains that the items were used in the commission of an offense.

A general warrant is defined as "(a) search or arrest warrant that is not particular as to
the person to be arrested or the property to be seized." 59 It is one that allows the
"seizure of one thing under a warrant describing another" and gives the officer
executing the warrant the discretion over which items to take. 60

Such discretion is abhorrent, as it makes the person, against whom the warrant is
issued, vulnerable to abuses.1âwphi1 Our Constitution guarantees our right against
unreasonable searches and seizures, and safeguards have been put in place to ensure
that people and their properties are searched only for the most compelling and lawful
reasons.

Section 2, Article III of the 1987 Constitution provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no such search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be
seized.In furtherance of this constitutional provision, Sections 3 and 4, Rule 126 of the
Rules of Court, amplify the rules regarding the following places and items to be
searched under a search warrant:

SEC. 3. Personal property to be seized. — A search warrant may be issued for the
search and seizure of personal property:

a) Subject of the offense;

b) Stolen or embezzled and other proceeds, or fruits of the offense; or

c) Used or intended to be used as the means of committing an offense.

SEC. 4. Requisites for issuing search warrant. — A search warrant shall not issue
except upon probable cause in connection with one specific offense to be determined
personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched
and the things to be seized which may be anywhere in the Philippines.

Within the context of the above legal requirements for valid search warrants, the Court
has been mindful of the difficulty faced by law enforcement officers in describing the
items to be searched, especially when these items are technical in nature, and when the
extent of the illegal operation is largely unknown to them. Vallejo v. Court of
Appeals61 ruled as follows:

The things to be seized must be described with particularity. Technical precision of

description is not required. It is only necessary that there be reasonable particularity and
certainty as to the identity of the property to be searched for and seized, so that the
warrant shall not be a mere roving commission. Indeed, the law does not require that
the things to be seized must be described in precise and minute detail as to leave no
room for doubt on the part of the searching authorities. If this were the rule, it would be
virtually impossible for the applicants to obtain a warrant as they would not know exactly
what kind of things to look for. Any description of the place or thing to be searched that
will enable the officer making the search with reasonable certainty to locate such place
or thing is sufficient. (Emphasis supplied)

Furthermore, the Court also had occasion to rule that the particularity of the description
of the place to be searched and the things to be seized is required "wherever and
whenever it is feasible."62 A search warrant need not describe the items to be seized in
precise and minute detail.63 The warrant is valid when it enables the police officers to
readily identify the properties to be seized and leaves them with no discretion regarding
the articles to be seized.64

In this case, considering that items that looked like "innocuous goods" were being used
to pursue an illegal operation that amounts to theft, law enforcement officers would be
hard put to secure a search warrant if they were required to pinpoint items with one
hundred percent precision. In

People v. Veloso, we pronounced that "[t]he police should not be hindered in the
performance of their duties, which are difficult enough of performance under the best of
conditions, by superficial adherence to technicality or far-fetched judicial interference." 65

A search warrant fulfills the requirement of particularity in the description of the things to
be seized when the things described are limited to those that bear a direct relation to
the offense for which the warrant is being issued. 66

To our mind, PLDT was able to establish the connection between the items to be
searched as identified in the warrants and the crime of theft of its telephone services
and business. Prior to the application for the search warrants, Rivera conducted ocular
inspection of the premises of petitioners a d was then able to confirm that they had
utilized various telecommunications equipment consisting of computers, lines, cables,
antennas, modems, or routers, multiplexers, PABX or switching equipment, a d support
equipment such as software, diskettes, tapes, manuals and other documentary records
to support the illegal toll bypass operations." 67

In HPS Software and Communication Corp. v. PLDT, 68 we upheld a s milady

worded69 description of items to be seized by virtue of the search warrants, because
these items had been sufficiently identified physically and s own to bear a relation to the
offenses charged. WHEREFORE, the petitions are DENIED. The Court of Appeals
decision dated 20 August 2003 and Resolution dated 27 November 2003 in CA-G.R.
CR No. 26190 are AFFIRMED.

SO ORDERED.

SECOND DIVISION

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

SORIANO MATA, Petitioner, v. HON. JOSEPHINE K. BAYONA, in her

capacity as Presiding Judge of the City Court of Ormoc, BERNARDO
GOLES and REYNALDO MAYOTE, Respondents.

Valeriano R. Ocubillo for Petitioner.

The Solicitor General for Respondents.

 SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNLAWFUL

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

2. ID.; ID.; ID.; ID.; INSUFFICIENCY OF AFFIDAVITS OF COMPLAINANT AND

HIS WITNESSES IN THE CASE AT BAR. — Before issuing a search warrant,
the examining Judge has to take depositions in writing of the complainant
and the witnesses he may produce and to attach them to the record. Such
written deposition is necessary in order that the Judge may be able to
properly determine the existence or non-existence of the probable cause,
and to hold liable for perjury the person giving it if it will be found later that
his declarations are false. Mere affidavits of the complainant and his
witnesses are thus not sufficient.

3. ID.; ID.; ID.; ID.; NO "DEPOSITION IN WRITING" ATTACHED TO

RECORDS OF CASE IN CASE AT BAR. — The judge’s insistence that she
examined the complainants under oath has become dubious by petitioner’s
claim that at the particular time when he examined all the relevant papers
connected with the issuance of the questioned search warrant, after he
demanded the same from the lower court since they were not attached to
the records, he did not find any certification at the back of the joint affidavit
of the complainants. Before he filed his motion to quash the search warrant
and for the return of the articles seized, he was furnished, upon his request,
certified true copies of the said affidavits by the Clerk of Court but which
certified true copies do not bear any certification at the back. Petitioner
likewise claims that his xerox copy of the said joint affidavit obtained at the
outset of this case does not show also the certification of respondent judge.
This doubt becomes more confirmed by respondent Judge’s own admission,
while insisting that she did examine thoroughly the applicants, that "she did
not take the deposition of Mayote and Goles because to have done so would
be to hold a judicial proceeding which will be open and public", such that,
according to her, the persons subject of the intended raid will just disappear
and move his illegal operations somewhere else. Could it be that the
certification was made belatedly to cure the defect of the warrant? Be that
as it may, there was no "deposition in writing" attached to the records of the
case in palpable disregard of the statutory prohibition heretofore quoted.

4. ID.; ID.; ID.; ID.; DEPOSITIONS, HOW TAKEN. — The searching

questions propounded to the applicants of the search warrant and his
witnesses must depend to a large extent upon the discretion of the Judge
just as long as the answers establish a reasonable ground to believe the
commission of a specific offense and that the applicant is one authorized by
law, and said answers particularly describe with certainty the place to be
searched and the persons or things to be seized. The examination or
investigation which must be under oath may not be in public. It may even be
held in the secrecy of his chambers. Far more important is that the
examination or investigation is not merely routinary but one that is thorough
and elicit the required information. To repeat, it must be under oath and
must be in writing.

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

6. ID.; ID.; ID.; ALTHOUGH ILLEGAL, THINGS SEIZED CANNOT BE

RETURNED; CASE AT BAR. — While the search warrant is illegal, the return
of the things seized cannot be ordered. In Castro v. Pabalan (70 SCRA 478),
it was held that the illegality of the search warrant does not call for the
return of the things seized, the possession of which is prohibited.

DECISION

DE CASTRO, J.:

The validity of the search warrant issued by respondent Judge (not

reappointed) is challenged by petitioner for its alleged failure to comply with
the requisites of the Constitution and the Rules of Court.

Specifically, the contention is that the search warrant issued by respondent

Judge was based merely on the application for search warrant and a joint
affidavit of private respondents which were wrongfully it is alleged
subscribed, and sworn to before the Clerk of Court of respondent Judge.
Furthermore, there was allegedly a failure on the part of respondent Judge
to attach the necessary papers pertinent to the issuance of the search
warrant to the records of Criminal Case No. 4298-CC wherein petitioner is
accused under PD 810, as amended by PD 1306, the information against him
alleging that Soriano Mata offered, took and arranged bets on the Jai Alai
game by "selling illegal tickets known as ‘Masiao tickets’ without any
authority from the Philippine Jai Alai & Amusement Corporation or from the
government authorities concerned." 1

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

This led petitioner to file a motion to quash and annul the search warrant
and for the return of the articles seized, citing and invoking, among others,
Section 4 of Rule 126 of the Revised Rules of Court. The motion was denied
by respondent Judge on March 1, 1979, stating that the court has made a
thorough investigation and examination under oath of Bernardo U. Goles and
Reynaldo T. Mayote, members of the Intelligence Section of 352nd PC
Co./Police District II INP; that in fact the court made a certification to that
effect; and that the fact that documents relating to the search warrant were
not attached immediately to the record of the criminal case is of no moment,
considering that the rule does not specify when these documents are to be
attached to the records. 2 Petitioner’s motion for reconsideration of the
aforesaid order having been denied, he came to this Court, with the instant
petition, praying, among others, that this Court declare the search warrant
to be invalid and all the articles confiscated under such warrant as
inadmissible as evidence in the case, or in any proceedings on the matter.

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

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

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

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

The judge’s insistence that she examined the complainants under oath has
become dubious by petitioner’s claim that at the particular time when he
examined all the relevant papers connected with the issuance of the
questioned search warrant, after he demanded the same from the lower
court since they were not attached to the records, he did not find any
certification at the back of the joint affidavit of the complainants. As stated
earlier, before he filed his motion to quash the search warrant and for the
return of the articles seized, he was furnished, upon his request, certified
true copies of the said affidavits by the Clerk of Court but which certified
true copies do not bear any certification at the back. Petitioner likewise
claims that his xerox copy of the said joint affidavit obtained at the outset of
this case does not show also the certification of respondent judge. This
doubt becomes more confirmed by respondent Judge’s own admission, while
insisting that she did examine thoroughly the applicants, that "she did not
take the deposition of Mayote and Goles because to have done so would be
to hold a judicial proceeding which will be open and public", 3 such that,
according to her, the persons subject of the intended raid will just disappear
and move his illegal operations somewhere else.

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

Respondent Judge impresses this Court that the urgency to stop the illegal
gambling that lures every man, woman and child, and even the lowliest
laborer who could hardly make both ends meet justifies her action. She
claims that in order to abate the proliferation of this illegal "masiao" lottery,
she thought it more prudent not to conduct the taking of deposition which is
done usually and publicly in the court room.

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

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

"It has been said that of all the rights of a citizen, few are of greater
importance or more essential to his peace and happiness than the right of
personal security, and that involves the exemption of his private affairs,
books, and papers from inspection and scrutiny of others. While the power
to search and seize is necessary to the public welfare, still it must be
exercised and the law enforced without transgressing the constitutional
rights of the citizens, for the enforcement of no statute is of sufficient
importance to justify indifference to the basic principles of government." 6

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

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

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

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 93239             March 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EDISON SUCRO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Fidencio S. Raz for accused-appellant.

GUTIERREZ, JR., J.:

Edison Sucro was charged with and convicted of violation of Section 4, Article II of the
Dangerous Drugs Act, under an Information which reads:

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

Upon arraignment, the accused-appellant, assisted by counsel, entered a plea of "not

guilty" to the offense charged. Trial ensued and a judgment of conviction was rendered,
the pertinent portion of which reads:

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

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

From the foregoing judgment of conviction, accused-appellant interposes this appeal,

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

THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE FOR THE

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

II

THE LOWER COURT ERRED IN FINDING THE ACCUSED EDISON SUCRO

GUILTY OF THE SALE OF PROHIBITED DRUGS UNDER SECTION 4,
ARTICLE II, OF THE DANGEROUS DRUGS ACT AND SENTENCING HIM TO
SUFFER A PENALTY OF LIFE IMPRISONMENT AND TO PAY A FINE OF P
20,000.00. (Appellant's Brief, p. 1)

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

On March 21, 1989, Pat. Roy Fulgencio, a member of the INP, Kalibo, Aklan,
was instructed by P/Lt. Vicente Seraspi, Jr. (Station Commander of the INP
Kalibo, Aklan) to monitor the activities of appellant Edison Sucro, because of
information gathered by Seraspi that Sucro was selling marijuana. (p. 6, TSN,
May 2,1989).
 As planned, at about 5:00 P.M. on said date, Pat. Fulgencio Positioned himself
under the house of a certain Arlie Regalado at C. Quimpo Street. Adjacent to the
house of Regalado, about 2 meters away, was a chapel. Thereafter, Pat.
Fulgencio saw appellant enter the chapel, taking something which turned out
later to be marijuana from the compartment of a cart found inside the chapel, and
then return to the street where he handed the same to a buyer, Aldie Borromeo.
After a while appellant went back to the chapel and again came out with
marijuana which he gave to a group of persons. (pp. 6-8, 15-18, Ibid). It was at
this instance that Pat. Fulgencio radioed P/Lt. Seraspi and reported the activity
going on. P/Lt. Seraspi instructed Pat. Fulgencio to continue monitoring
developments. At about 6:30 P.M., Pat. Fulgencio again called up Seraspi to
report that a third buyer later Identified as Ronnie Macabante, was transacting
with appellant. (pp. 18-19, Ibid)

At that point, the team of P/Lt. Seraspi proceeded to the area and while the
police officers were at the Youth Hostel at Maagma St., Pat. Fulgencio told P/Lt.
Seraspi to intercept Macabante and appellant. P/Lt. Seraspi and his team caught
up with Macabante at the crossing of Mabini and Maagma Sts. in front of the
Aklan Medical Center. Upon seeing the police, Macabante threw something to
the ground which turned out to be a tea bag of marijuana. (pp. 6-8, TSN, June
19, 1989) When confronted, Macabante readily admitted that he bought the
same from appellant (Edison Sucro) in front of the chapel. (p. 6, TSN, May 24,
1989) The police team was able to overtake and arrest appellant at the corner of
C. Quimpo and Veterans Sts. The police recovered 19 sticks and 4 teabags of
marijuana from the cart inside the chapel and another teabag from Macabante,
The teabags of marijuana were sent to the PC-INP Crime Laboratory Service, at
Camp Delgado, Iloilo City for analysis. The specimens (Exhibits "G" to "G-18",
Exhibits "E" to "E-4") were all found positive of marijuana. (pp. 47, TSN, Sept. 4,
1989)" (Appellee's Brief, pp. 3-6)

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

We rule in the affirmative.

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

This contention is without merit.

Section 5, Rule 113 of the Rules on Criminal Procedure provides for the instances
where arrest without warrant is considered lawful. The rule states:
 Arrest without warrant, when lawful. — A peace officer or private person may,
without warrant, arrest a person:

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

committing, or is attempting to commit an offense;

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

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

The records show that Fulgencio went to Arlie Regalado's house at C. Quimpo Street to
monitor the activities of the accused who was earlier reported to be selling marijuana at
a chapel two (2) meters away from Regalado's house.

Fulgencio, within a distance of two meters saw Sucro conduct his nefarious activity. He
saw Sucro talk to some persons, go inside the chapel, and return to them and exchange
some things. These, Sucro did three times during the time that he was being monitored.
Fulgencio would then relay the on-going transaction to P/Lt. Seraspi.

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

The court earlier indicated in the case of People v. Bati (G.R. No. 87429, August 27,
1990) that police officers have personal knowledge of the actual commission of the
crime when it had earlier conducted surveillance activities of the accused. Thus, it
stated:

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

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

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

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

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

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

As the Solicitor General has pointed out:

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

That searches and seizures must be supported by a valid warrant is not an absolute
rule (Manipon, Jr. v. Sandiganbayan, 143 SCRA 267 [1986]). Among the exceptions
granted by law is a search incidental to a lawful arrest under Sec. 12, Rule 126 of the
Rules on Criminal Procedure, which provides that a person lawfully arrested may be
searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant. (People v. Castiller, G.R. No.
87783, August 6, 1990)

The accused-appellant claims that the arrest having been done without warrant, it
follows that the evidence obtained therefrom is inadmissible.

As earlier discussed, there is nothing unlawful about the arrest considering its
compliance with the requirements of a warrantless arrest. Ergo, the fruits obtained from
such lawful arrest are admissible in evidence.

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

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

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

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

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

The prosecution evidence was further bolstered by the findings of the Forensic Chemist
that the items seized were all positive for marijuana.

In contrast to the evidence presented by the prosecution, accused-appellant's defense

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

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

It is well-settled that mere denials cannot prevail against the positive identification of the
appellant as the seller of the prohibited substances. (People v. Khan, 161 SCRA 406
[1988]; and People v. Paco, 170 SCRA 681 [1989])

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

WHEREFORE, the decision appealed from is hereby AFFIRMED.

SO ORDERED.

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

G.R. No. L-68955 September 4, 1986

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RUBEN BURGOS y TITO, defendant-appellant.

GUTIERREZ, JR., J.:
This is an appeal from the decision of the Regional Trial Court of Davao del Sur, 11 th
Judicial Region, Digos, Davao del Sur convicting defendant- appellant Ruben Burgos y
Tito of The crime of Illegal Possession of Firearms in Furtherance of Subversion. The
dispositive portion of the decision reads:

WHEREFORE, finding the guilt of accused Ruben Burgos sufficiently

established beyond reasonable doubt, of the offense charges , pursuant to
Presidential Decree No. 9, in relation to General Order No. 6, dated
September 22, 1972, and General Order No. 7, dated September 23,
1972, in relation further to Presidential Decree No. 885, and considering
that the firearm subject of this case was not used in the circumstances as
embraced in paragraph I thereof, applying the provision of indeterminate
sentence law, accused Ruben Burgos is hereby sentenced to suffer an
imprisonment of twenty (20) years of reclusion temporal maximum, as
minimum penalty, to reclusion perpetua, as maximum penalty, pursuant to
sub-paragraph B, of Presidential Decree No. 9, as aforementioned, with
accessory penalties, as provided for by law.

As a result of this judgment, the subject firearm involved in this case

(Homemade revolver, caliber .38, Smith and Wesson, with Serial No.
8.69221) is hereby ordered confiscated in favor of the government, to be
disposed of in accordance with law. Likewise, the subversive documents,
leaflets and/or propaganda seized are ordered disposed of in accordance
with law.

The information charged the defendant-appellant with the crime of illegal possession of
firearm in furtherance of subversion in an information which reads as follows:

That in the afternoon of May 13, 1982 and thereabout at Tiguman, Digos,
Davao del Sur, Philippines, within the jurisdiction of this Court, the above-
named accused with intent to possess and without the necessary license,
permit or authority issued by the proper government agencies, did then
and there wilfully, unlawfully and feloniously keep, possess, carry and
have in his possession, control and custody one (1) homemade revolver,
caliber .38, make Smith and Wesson, with Serial No. 8.69221, which
firearm was issued to and used by the accused at Tiguman, Digos, Davao
del Sur, his area of operations by one Alias Commander Pol for the New
People's Army (NPA), a subversive organization organized for the purpose
of overthrowing the Government of the Republic of the Philippines through
lawless and violent means, of which the accused had knowledge, and
which firearm was used by the accused in the performance of his
subversive tasks such as the recruitment of New Members to the NPA and
collection of contributions from the members.

CONTRARY TO LAW.
The evidence for the prosecution is summarized in the decision of the lower court as
follows:

xxx xxx xxx

. . . Through the testimony of Pat. Pepito Bioco, and Sgt. Romeo Taroy, it
appears that by virtue of an intelligent information obtained by the
Constabulary and INP units, stationed at Digos, Davao del Sur, on May
12, 1982, one Cesar Masamlok personally and voluntarily surre0ndered to
the authorities at about 9:00 o'clock A.M. at Digos, Davao del Sur
Constabulary Headquarters, stating that he was forcibly recruited by
accused Ruben Burgos as member of the NPA, threatening him with the
use of firearm against his life, if he refused.

Along with his recruitment, accused was asked to contribute one (1) chopa
of rice and one peso (P1.00) per month, as his contribution to the NPA
TSN, page 5, Hearing-October 14, 1982).

Immediately, upon receipt of said information, a joint team of PC-INP

units, composed of fifteen (15) members, headed by Captain
Melchesideck Bargio, (PC), on the following day, May 13, 1982, was
dispatched at Tiguman; Davao del Sur, to arrest accused Ruben Burgos.
The team left the headquarter at 1:30 P.M., and arrived at Tiguman, at
more or less 2:00 o'clock PM where through the help of Pedro Burgos,
brother of accused, the team was able to locate accused, who was
plowing his field. (TSN, pages 6-7, Hearing-October 14, 1982).

Right in the house of accused, the latter was caned by the team and Pat.
Bioco asked accused about his firearm, as reported by Cesar Masamlok.
At first accused denied possession of said firearm but later, upon question
profounded by Sgt. Alejandro Buncalan with the wife of the accused, the
latter pointed to a place below their house where a gun was buried in the
ground. (TSN, page 8, Hearing-October 14, 1982).

Pat. Bioco then verified the place pointed by accused's wife and dug the
grounds, after which he recovered the firearm, Caliber .38 revolver,
marked as Exhibit "A" for the prosecution.

After the recovery of the firearm, accused likewise pointed to the team,
subversive documents which he allegedly kept in a stock pile of qqqcogon
at a distance of three (3) meters apart from his house. Then Sgt. Taroy
accordingly verified beneath said cogon grass and likewise recovered
documents consisting of notebook colored maroon with spiral bound,
Exhibit "B" for the prosecution; a pamphlet consisting of eight (8) leaves,
including the front and back covers entitled Ang Bayan, Pahayagan ng
Partido Komunista ng Pilipinas, Pinapatnubayan ng Marxismo, Leninismo
Kaisipang Mao qqqZedong dated December 31, 1980, marked as Exhibit
"C", and another pamphlet Asdang Pamantalaang Masa sa Habagatang
Mindanao, March and April 1981 issue, consisting of ten (10) pages,
marked as Exhibit "D" for the prosecution.

Accused, when confronted with the firearm Exhibit "A", after its recovery,
readily admitted the same as issued to him by Nestor Jimenez, otherwise
known as a certain Alias Pedipol, allegedly team leader of the sparrow unit
of New People's Army, responsible in the liquidation of target
personalities, opposed to NPA Ideological movement, an example was the
killing of the late Mayor Llanos and Barangay Captain of Tienda Aplaya
Digos, Davao del Sur. (TSN, pages 1-16, Hearing-October 14,1982).

To prove accused's subversive activities, Cesar Masamlok, a former NPA

convert was presented, who declared that on March 7, 1972, in his former
residence at Tiguman Digos, Davao del Sur, accused Ruben Burgos,
accompanied by his companions Landrino Burgos, Oscar Gomez and
Antonio Burgos, went to his house at about 5:00 o'clock P.M. and called
him downstair. Thereupon, accused told Masamlok, their purpose was to
ask rice and one (1) peso from him, as his contribution to their
companions, the NPA of which he is now a member. (TSN, pages 70, 71,
72, Hearing-January 4, 1983).

Accused and his companions told Masamlok, he has to join their group
otherwise, he and his family will be killed. He was also warned not to
reveal anything with the government authorities. Because of the threat to
his life and family, Cesar Masamlok joined the group. Accused then told
him, he should attend a seminar scheduled on April 19, 1982. Along with
this invitation, accused pulled gut from his waistline a .38 caliber revolver
which Masamlok really saw, being only about two (2) meters away from
accused, which make him easily Identified said firearm, as that marked as
Exhibit "A" for the prosecution. (TSN, pages 72, 73, and 74, Hearing-
January 4, 1983).

On April 19, 1982, as previously invited, Masamlok, accompanied by his

father, Matuguil Masamlok, Isabel Ilan and Ayok Ides went to the house of
accused and attended the seminar, Those present in the seminar were:
accused Ruben Burgos, Antonio Burgos, Oscar Gomez, Landrino Burgos,
alias Pedipol and one alias Jamper.

The first speaker was accused Ruben Burgos, who said very distinctly that
he is an NPA together with his companions, to assure the unity of the
civilian. That he encouraged the group to overthrow the government,
emphasizing that those who attended the seminar were already members
of the NPA, and if they reveal to the authorities, they will be killed.
Accused, while talking, showed to the audience pamphlets and
documents, then finally shouted, the NPA will be victorious. Masamlok
likewise Identified the pamphlets as those marked as Exh. exhibits "B",
"C", and "D" for the prosecution. (TSN, pages 75, 76 and 77, Hearing-
January 4, 1983)

Other speakers in said meeting were Pedipol, Jamper and Oscar Gomez,
who likewise expounded their own opinions about the NPA. It was also
announced in said seminar that a certain Tonio Burgos, will be responsible
for the collection of the contribution from the members. (TSN, pages 78-
79, Hearing- January 4, 1983)

On May 12, 1982, however, Cesar Masamlok surrendered to Captain

Bargio of the Provincial Headquarters of the Philippine Constabulary,
Digos, Davao del Sur.

Assistant Provincial Fiscal Panfilo Lovitos was presented t prove that on

May 19, 1982, he administered the subscription of th extra-judicial
confession of accused Ruben Burgos, marked as Exhibit "E " for the
prosecution, consisting of five (5) pages.

Appearing voluntarily in said office, for the subscription of his confession,

Fiscal Lovitos, realizing that accused was not represented by counsel,
requested the services of Atty. Anyog, whose office is adjacent to the
Fiscal's Office, to assist accused in the subscription of his extra-judicial
statement.

Atty. Anyog assisted accused in the reading of his confession from English
to Visayan language, resulting to the deletion of question No. 19 of the
document, by an inserted certification of Atty. Anyog and signature of
accused, indicating his having understood, the allegations of his extra-
judicial statement.

Fiscal Lovitos, before accused signed his statement, explained to him his
constitutional rights to remain silent, right to counsel and right to answer
any question propounded or not.

With the aid of Atty. Anyog, accused signed his confession in the
presence of Atty. Anyog and Fiscal Lovitos, without the presence of
military authorities, who escorted the accused, but were sent outside the
cubicle of Fiscal Lovitos while waiting for the accused. (TSN, pages 36-40,
nearing November 15, 1982)

Finally, in order to prove illegal possession by accused of the subject

firearm, Sgt. Epifanio Comabig in-charge of firearms and explosives, NCO
Headquarter, Philippine Constabulary, Digos, Davao del Sur, was
 presented and testified, that among the lists of firearm holders in Davao
del Sur, nothing was listed in the name of accused Ruben Burgos, neither
was his name included among the lists of persons who applied for the
licensing of the firearm under Presidential Decree No. 1745.

After the above-testimony the prosecution formally closed its case and
offered its exhibits, which were all admitted in evidence, despite objection
interposed by counsel for accused, which was accordingly overruled.

On the other hand, the defendant-appellant's version of the case against him is stated in
the decision as follows:

From his farm, the military personnel, whom he said he cannot recognize,
brought him to the PC Barracks at Digos, Davao del Sur, and arrived there
at about 3:00 o'clock, on the same date. At about 8:00 o'clock P.M., in the
evening, he was investigated by soldiers, whom he cannot Identify
because they were wearing a civilian attire. (TSN, page 14 1, Hearing-
June 15, 1983)

The investigation was conducted in the PC barracks, where he was

detained with respect to the subject firearm, which the investigator, wished
him to admit but accused denied its ownership. Because of his refusal
accused was mauled, hitting him on the left and right side of his body
which rendered him unconscious. Accused in an atmosphere of tersed
solemnity, crying and with emotional attachment, described in detail how
he was tortured and the ordeals he was subjected.

He said, after recovery of his consciousness, he was again confronted

with subject firearm, Exhibit "A", for him to admit and when he repeatedly
refused to accept as his own firearm, he was subjected to further prolong
(sic) torture and physical agony. Accused said, his eyes were covered with
wet black cloth with pungent effect on his eyes. He was undressed, with
only blindfold, pungent water poured in his body and over his private parts,
making his entire body, particularly his penis and testicle, terribly irritating
with pungent pain.

All along, he was investigated to obtain his admission, The process of

beating, mauling, pain and/or ordeal was repeatedly done in similar cycle,
from May 13 and 14, 1982. intercepted only whenever he fell unconscious
and again repeated after recovery of his senses,

Finally on May 15, 1982, after undergoing the same torture and physical
ordeal he was seriously warned, if he will still adamantly refuse to accept
ownership of the subject firearm, he will be salvaged, and no longer able
to bear any further the pain and agony, accused admitted ownership of
subject firearm.
After his admission, the mauling and torture stopped, but accused was
made to sign his affidavit marked as Exhibit "E" for the prosecution,
consisting of five (5) pages, including the certification of the administering
officer, (TSN, pages 141-148, Hearing-June 15, 1983)

In addition to how he described the torture inflicted on him, accused, by

way of explanation and commentary in details, and going one by one, the
allegations and/or contents of his alleged extrajudicial statement,
attributed his answers to those questions involuntarily made only because
of fear, threat and intimidation of his person and family, as a result of
unbearable excruciating pain he was subjected by an investigator, who,
unfortunately he cannot Identify and was able to obtain his admission of
the subject firearm, by force and violence exerted over his person.

To support denial of accused of being involved in any subversive

activities, and also to support his denial to the truth of his alleged extra-
judicial confession, particularly questions Nos. 35, 38, 41, 42, 43, 44, 45,
46 and 47, along with qqqs answers to those questions, involving
Honorata Arellano ahas Inday Arellano, said Honorata Arellano appeared
and declared categorically, that the above-questions embraced in the
numbers allegedly stated in the extrajudicial confession of accused,
involving her to such NPA personalities, as Jamper, Pol, Anthony, etc.,
were not true because on the date referred on April 28, 1982, none of the
persons mentioned came to her house for treatment, neither did she meet
the accused nor able to talk with him. (TSN, pages 118- 121, Hearing-May
18, 1983)

She, however, admitted being familiar with one Oscar Gomez, and that
she was personally charged with subversion in the Office of the Provincial
Commander, Philippine Constabulary, Digos, Davao del Sur, but said
charge was dismissed without reaching the Court. She likewise stated that
her son, Rogelio Arellano, was likewise charged for subversion filed in the
Municipal Trial Court of Digos, Davao del Sur, but was likewise dismissed
for lack of sufficient evidence to sustain his conviction. (TSN, pages 121-
122, in relation to her cross-examination, Hearing-May 18, 1983)

To support accused's denial of the charge against him, Barangay Captain

of Tiguman, Digos, Davao del Sur, Salvador qqqGalaraga was presented,
who declared, he was not personally aware of any subversive activities of
accused, being his neighbor and member of his barrio. On the contrary, he
can personally attest to his good character and reputation, as a law
abiding citizen of his barrio, being a carpenter and farmer thereat. (TSl
pages 128-129, Hearing-May 18, 1983)

He however, admitted in cross-examination, that there were a lot of

arrests made by the authorities in his barrio involving subversive activities
 but they were released and were not formally charged in Court because
they publicly took their oath of allegiance with the government. (TSN,
pages 133-134, in relation to page 136, Hearing-May 18, 1983)

Finally, to support accused's denial of the subject firearm, his wife, Urbana
Burgos, was presented and who testified that the subject firearm was left
in their house by Cesar Masamlok and one Pedipol on May 10, 1982. It
was night time, when the two left the gun, alleging that it was not in order,
and that they will leave it behind, temporarily for them to claim it later.
They were the ones who buried it. She said, her husband, the accused,
was not in their house at that time and that she did not inform him about
said firearm neither did she report the matter to the authorities, for fear of
the life of her husband. (TSN, page 24, November 22, 1983)

On cross-examination, she said, even if Masamlok during the recovery of

the firearm, was wearing a mask, she can still Identify him. (TSN, page 6,
Hearing-November 22, 1983)

After the above-testimony, accused through counsel formally rested his

case in support of accused's through counsel manifestation for the
demurrer to evidence of the prosecution, or in the alternative for violation
merely of simple illegal possession of firearm, 'under the Revised
Administrative Code, as amended by Republic Act No. 4, reflected in the
manifestation of counsel for accused. (TSN, pages 113-114, Hearing-May
18, 1983)

Accused-appellant Ruben Burgos now raises the following assignments of error, to wit:

I THE TRIAL COURT ERRED IN HOLDING THAT (SIC) THE ARREST

OF ACCUSED-APPELLANT WITHOUT VALID WARRANT TO BE
LAWFUL.

II THE TRIAL COURT ERRED IN HOLDING THE SEARCH IN THE

HOUSE OF ACCUSED-APPELLANT FOR FIREARM WITHOUT VALID
WARRANT TO BE LAWFUL.

III THE TRIAL COURT ERRED IN HOLDING ACCUSED-APPELLANT

GUILTY BEYOND REASONABLE DOUBT FOR VIOLATION OF P.D. No.
9 IN RELATION TO GENERAL ORDERS NOS. 6 AND 7

Was the arrest of Ruben Burgos lawful? Were the search of his house and the
subsequent confiscation of a firearm and documents allegedly found therein conducted
in a lawful and valid manner? Does the evidence sustaining the crime charged meet the
test of proving guilt beyond reasonable doubt?
The records of the case disclose that when the police authorities went to the house of
Ruben Burgos for the purpose of arresting him upon information given by Cesar
Masamlok that the accused allegedly recruited him to join the New People's Army
(NPA), they did not have any warrant of arrest or search warrant with them (TSN, p. 25,
October 14, 1982; and TSN, p. 61, November 15, 1982).

Article IV, Section 3 of the Constitution provides:

The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature
and for any purpose shall not be violated, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined
by the judge, or such other responsible officer as may be authorized by
law, after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized.

The constitutional provision is a safeguard against wanton and unreasonable invasion

of the privacy and liberty of a citizen as to his person, papers and effects. This Court
explained in Villanueva vs. Querubin (48 SCRA 345) why this 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 [19661) 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 US 616, 630 [1886]). In the same vein, Landynski in
his authoritative work (Search and Seizure and the Supreme Court [1966],
could fitly characterize this 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 legs 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. 47).

The trial court justified the arrest of the accused-appelant without any warrant as falling
under one of the instances when arrests may be validly made without a warrant. Rule
113, Section 6 * of the Rules of Court, provides the exceptions as follows:
a) When the person to be arrested has committed, is actually committing, or is about to
commit an offense in his presence;

b) When an offense has in fact been committed, and he has reasonable ground to
believe that the person to be arrested has committed it;

c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending or has escaped while being transferred from one confinement to
another.

The Court stated that even if there was no warrant for the arrest of Burgos, the fact that
"the authorities received an urgent report of accused's involvement in subversive
activities from a reliable source (report of Cesar Masamlok) the circumstances of his
arrest, even without judicial warrant, is lawfully within the ambit of Section 6-A of Rule
113 of the Rules of Court and applicable jurisprudence on the matter."

If the arrest is valid, the consequent search and seizure of the firearm and the alleged
subversive documents would become an incident to a lawful arrest as provided by Rule
126, Section 12, which states:

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 conclusions reached by the trial court are erroneous.

Under Section 6(a) of Rule 113, the officer arresting a person who has just committed,
is committing, or is about to commit an offense must have personal knowledge of that
fact. The offense must also be committed in his presence or within his view. (Sayo v.
Chief of Police, 80 Phil. 859).

There is no such personal knowledge in this case. Whatever knowledge was possessed
by the arresting officers, it came in its entirety from the information furnished by Cesar
Masamlok. The location of the firearm was given by the appellant's wife.

At the time of the appellant's arrest, he was not in actual possession of any firearm or
subversive document. Neither was he committing any act which could be described as
subversive. He was, in fact, plowing his field at the time of the arrest.

The right of a person to be secure against any unreasonable seizure of his body and
any deprivation of his liberty is a most basic and fundamental one. The statute or rule
which allows exceptions to the requirement of warrants of arrest is strictly construed.
Any exception must clearly fall within the situations when securing a warrant would be
absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally
construe the rule on arrests without warrant or extend its application beyond the cases
specifically provided by law. To do so would infringe upon personal liberty and set back
a basic right so often violated and so deserving of full protection.

The Solicitor General is of the persuasion that the arrest may still be considered lawful
under Section 6(b) using the test of reasonableness. He submits that. the information
given by Cesar Masamlok was sufficient to induce a reasonable ground that a crime has
been committed and that the accused is probably guilty thereof.

In arrests without a warrant under Section 6(b), however, it is not enough that there is
reasonable ground to believe that the person to be arrested has committed a crime. A
crime must in fact or actually have been committed first. That a crime has actually been
committed is an essential precondition. It is not enough to suspect that a crime may
have been committed. The fact of the commission of the offense must be undisputed.
The test of reasonable ground applies only to the identity of the perpetrator.

In this case, the accused was arrested on the sole basis of Masamlok's verbal report.
Masamlok led the authorities to suspect that the accused had committed a crime. They
were still fishing for evidence of a crime not yet ascertained. The subsequent recovery
of the subject firearm on the basis of information from the lips of a frightened wife
cannot make the arrest lawful, If an arrest without warrant is unlawful at the moment it is
made, generally nothing that happened or is discovered afterwards can make it lawful.
The fruit of a poisoned tree is necessarily also tainted.

More important, we find no compelling reason for the haste with which the arresting
officers sought to arrest the accused. We fail to see why they failed to first go through
the process of obtaining a warrant of arrest, if indeed they had reasonable ground to
believe that the accused had truly committed a crime. There is no showing that there
was a real apprehension that the accused was on the verge of flight or escape.
Likewise, there is no showing that the whereabouts of the accused were unknown,

The basis for the action taken by the arresting officer was the verbal report made by
Masamlok who was not required to subscribe his allegations under oath. There was no
compulsion for him to state truthfully his charges under pain of criminal prosecution.
(TSN, p. 24, October 14, 1982). Consequently, the need to go through the process of
securing a search warrant and a warrant of arrest becomes even more clear. The arrest
of the accused while he was plowing his field is illegal. The arrest being unlawful, the
search and seizure which transpired afterwards could not likewise be deemed legal as
being mere incidents to a valid arrest.

Neither can it be presumed that there was a waiver, or that consent was given by the
accused to be searched 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 v. 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 v. Palacio, 80 Phil.
770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia V. 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. (56 C.J., pp. 1180,
1181).

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 v. Zerbst 304 U.S. 458).

That the accused-appellant was not apprised of any of his constitutional rights at the
time of his arrest is evident from the records:

A CALAMBA:

Q When you went to the area to arrest Ruben Burgos, you

were not armed with an arrest warrant?

A None Sir.

Q Neither were you armed with a search warrant?

A No Sir.

Q As a matter of fact, Burgos was not present in his house

when you went there?

A But he was twenty meters away from his house.

Q Ruben Burgos was then plowing his field?

A Yes Sir.

Q When you called for Ruben Burgos you interviewed him?

A Yes Sir.

Q And that you told him that Masamlok implicated him?

 A No Sir.

Q What did you tell him?

A That we received information that you have a firearm, you

surrender that firearm, first he denied but when Sgt.
Buncalan interviewed his wife, his wife told him that it is
buried, I dug the firearm which was wrapped with a
cellophane.

Q In your interview of Burgos you did not remind him of his

rights under the constitution considering that he was
purposely under arrest?

A I did not.

Q As a matter of fact, he denied that he has ever a gun?

A Yes Sir.

Q As a matter of fact, the gun was not in his possession?

A It was buried down in his horse.

Q As a matter of fact, Burgos did not point to where it was

buried?

A Yes Sir.

(TSN, pp. 25-26, Hearing-October 14, 1982)

Considering that the questioned firearm and the alleged subversive documents were
obtained in violation of the accused's constitutional rights against unreasonable
searches and seizures, it follows that they are inadmissible as evidence.

There is another aspect of this case.

In proving ownership of the questioned firearm and alleged subversive documents, the
prosecution presented the two arresting officers who testified that the accused readily
admitted ownership of the gun after qqqs wife pointed to the place where it was buried.
The officers stated that it was the accused himself who voluntarily pointed to the place
where the alleged subversive documents were hidden.

Assuming this to be true, it should be recalled that the accused was never informed of
his constitutional rights at the time of his arrest. So that when the accused allegedly
admitted ownership of the gun and pointed to the location of the subversive documents
after questioning, the admissions were obtained in violation of the constitutional right
against self-incrimination under Sec. 20 of Art. IV of the Bill of Rights winch provides:

No person shall be compelled to be a witness against himself. Any person

under investigation for the commission of an offense shall have the right to
remain silent and to counsel, and to be informed of such right.. . .

The Constitution itself mandates that any evidence obtained in violation of this right is
inadmissible in evidence. Consequently, the testimonies of the arresting officers as to
the admissions made by the appellant cannot be used against him.

The trial court validly rejected the extra-judicial confession of the accused as
inadmissible in evidence. The court stated that the appellant's having been exhaustively
subjected to physical terror, violence, and third degree measures may not have been
supported by reliable evidence but the failure to present the investigator who conducted
the investigation gives rise to the "provocative presumption" that indeed torture and
physical violence may have been committed as stated.

The accused-appellant was not accorded his constitutional right to be assisted by

counsel during the custodial interrogation. The lower court correctly pointed out that the
securing of counsel, Atty. Anyog, to help the accused when he subscribed under oath to
his statement at the Fiscal's Office was too late. It could have no palliative effect. It
cannot cure the absence of counsel at the time of the custodial investigation when the
extrajudicial statement was being taken.

With the extra-judicial confession, the firearm, and the alleged subversive documents
inadmissible in evidence against the accused-appellant, the only remaining proof to
sustain the charge of Illegal Possession of Firearm in Furtherance of Subversion is the
testimony of Cesar Masamlok.

We find the testimony of Masamlok inadequate to convict Burgos beyond reasonable

doubt. It is true that the trial court found Masamlok's testimony credible and convincing.
However, we are not necessarily bound by the credibility which the trial court attaches
to a particular witness. As stated in People vs.. Cabrera (100 SCRA 424):

xxx xxx xxx

. . .Time and again we have stated that when it comes to question of

credibility the findings of the trial court are entitled to great respect upon
appeal for the obvious reason th+at it was able to observe the demeanor,
actuations and deportment of the witnesses during the trial. But we have
also said that this rule is not absolute for otherwise there would be no
reversals of convictions upon appeal. We must reject the findings of the
trial court where the record discloses circumstances of weight and
substance which were not properly appreciated by the trial court.
The situation under which Cesar Masamlok testified is analogous to that found
in People vs. Capadocia (17 SCRA 98 1):

. . . The case against appellant is built on Ternura's testimony, and the

issue hinges on how much credence can be accorded to him. The first
consideration is that said testimony stands uncorroborated. Ternura was
the only witness who testified on the mimeographing incident. . . .

xxx xxx xxx

. . .He was a confessed Huk under detention at the time. He knew his fate
depended upon how much he cooperated with the authorities, who were
then engaged in a vigorous anti-dissident campaign. As in the case of
Rodrigo de Jesus, whose testimony We discounted for the same reason,
that of Ternura cannot be considered as proceeding from a totally
unbiased source. . . .

In the instant case, Masamlok's testimony was totally uncorroborated. Considering that
Masamlok surrendered to the military certainly his fate depended on how eagerly he
cooperated with the authorities. Otherwise, he would also be charged with subversion.
The trade-off appears to be his membership in the Civil Home Defense Force. (TSN, p.
83, January 4, 1983). Masamlok may be considered as an interested witness. It can not
be said that his testimony is free from the opportunity and temptation to be exaggerated
and even fabricated for it was intended to secure his freedom.

Despite the fact that there were other persons present during the alleged NPA seminar
of April 19, 1982 i.e., Masamlok's father ,Matuguil Masamlok, Isabel Ilan and Ayok Ides
(TSN, p. 74, January 4, 1983) who could have corroborated Cesar Masamlok's
testimony that the accused used the gun in furtherance of subversive activities or
actually engaged in subversive acts, the prosecution never presented any other
witness.

This Court is, therefore, constrained to rule that the evidence presented by the
prosecution is insufficient to prove the guilt of the accused beyond reasonable doubt.

As held in the case of People vs. Baia (34 SCRA 347):

It is evident that once again, reliance can be placed on People v.

Dramayo (42 SCRA 59), where after stressing that accusation is not,
according to the fundamental law, synonymous with guilt, it was made
clear: 'Only if the judge below and the appellate tribunal could arrive at a
conclusion that the crime had been committed precisely by the person on
trial under such an exacting test should the sentence be one of conviction.
It is thus required that every circumstance favoring his innocence be duly
taken into account. The proof against him must survive the test of reason;
the strongest suspicion must not be permitted to sway judgment. The
 conscience must be satisfied that on the defendant could be laid the
responsibility for the offense charged; that not only did he perpetrate the
act but that it amounted to a crime. What is required then is moral
certainty.' (Ibid, 64. Cf. People v. Alvarez, 55 SCRA 81; People v. Joven,
64 SCRA 126; People vs. Ramirez, 69 SCRA 144; People vs. Godov 72
SCRA 69; People v. Lopez, 74 SCRA 205; People v. Poblador, 76 SCRA
634; People v. Quiazon, 78 SCRA 513; People v. Nazareno, 80 SCRA
484; People vs. Gabilan 115 SCRA 1; People v. Gabiana, 117 SCRA 260;
and People vs. Ibanga 124 SCRA 697).

We are aware of the serious problems faced by the military in Davao del Sur where
there appears to be a well-organized plan to overthrow the Government through armed
struggle and replace it with an alien system based on a foreign ideology. The open
defiance against duly constituted authorities has resulted in unfortunate levels of
violence and human suffering publicized all over the country and abroad. Even as we
reiterate the need for all freedom loving citizens to assist the military authorities in their
legitimate efforts to maintain peace and national security, we must also remember the
dictum in Morales vs. Enrile (1 21 SCRA 538, 569) when this Court stated:

While the government should continue to repel the communists, the

subversives, the rebels, and the lawless with an the means at its
command, it should always be remembered that whatever action is taken
must always be within the framework of our Constitution and our laws.

Violations of human rights do not help in overcoming a rebellion. A cavalier attitude

towards constitutional liberties and protections will only fan the increase of subversive
activities instead of containing and suppressing them.

WHEREFORE, the judgment of conviction rendered by the trial court is REVERSED

and SET ASIDE. The accused-appellant is hereby ACQUITTED, on grounds of
reasonable doubt, of the crime with which he has been charged.

The subject firearm involved in this case (homemade revolver, caliber .38, Smith and
Wesson, with Serial No. 8.69221) and the alleged subversive documents are ordered
disposed of in accordance with law.

Cost de oficio.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION
  

G.R. No. 87059 June 22, 1992

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROGELIO MENGOTE y TEJAS, accused-appellant.

CRUZ, J.:

Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on

the strength mainly of the stolen pistol found on his person at the moment of his
warrantless arrest. In this appeal, he pleads that the weapon was not admissible as
evidence against him because it had been illegally seized and was therefore the fruit of
the poisonous tree. The Government disagrees. It insists that the revolver was validly
received in evidence by the trial judge because its seizure was incidental to an arrest
that was doubtless lawful even if admittedly without warrant.

The incident occurred shortly before noon of August 8, 1987, after the Western Police
District received a telephone call from an informer that there were three suspicious-
looking persons at the corner of Juan Luna and North Bay Boulevard in Tondo, Manila.
A surveillance team of plainclothesmen was forthwith dispatched to the place. As later
narrated at the trial by Patrolmen Rolando Mercado and Alberto Juan, 1 they there saw
two men "looking from side to side," one of whom was holding his abdomen. They
approached these persons and identified themselves as policemen, whereupon the two
tried to run away but were unable to escape because the other lawmen had surrounded
them. The suspects were then searched. One of them, who turned out to be the
accused-appellant, was found with a .38 caliber Smith and Wesson revolver with six live
bullets in the chamber. His companion, later identified as Nicanor Morellos, had a fan
knife secreted in his front right pants pocket. The weapons were taken from them.
Mengote and Morellos were then turned over to police headquarters for investigation by
the Intelligence Division.

On August 11, 1987, the following information was filed against the accused-appellant
before the Regional Trial Court of Manila:

The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of

Presidential Decree No. 1866, committed as follows:

That on or about August 8, 1987, in the City of Manila, Philippines, the

said accused did then and there wilfully, unlawfully and knowingly have in
his possession and under his custody and control a firearm, to wit:
 one (1) cal. 38 "S & W" bearing
Serial No. 8720-T

without first having secured the necessary license or permit therefor from
the proper authorities.

Besides the police officers, one other witness presented by the prosecution was
Rigoberto Danganan, who identified the subject weapon as among the articles stolen
from him during the robbery in his house in Malabon on June 13, 1987. He pointed to
Mengote as one of the robbers. He had duly reported the robbery to the police,
indicating the articles stolen from him, including the revolver. 2 For his part, Mengote
made no effort to prove that he owned the firearm or that he was licensed to possess it
and claimed instead that the weapon had been "Planted" on him at the time of his
arrest. 3

The gun, together with the live bullets and its holster, were offered as Exhibits A, B, and
C and admitted over the objection of the defense. As previously stated, the weapon was
the principal evidence that led to Mengote's conviction for violation of P.D. 1866. He
was sentenced to reclusion
perpetua. 4

It is submitted in the Appellant's Brief that the revolver should not have been admitted in
evidence because of its illegal seizure. no warrant therefor having been previously
obtained. Neither could it have been seized as an incident of a lawful arrest because the
arrest of Mengote was itself unlawful, having been also effected without a warrant. The
defense also contends that the testimony regarding the alleged robbery in Danganan's
house was irrelevant and should also have been disregarded by the trial court.

The following are the pertinent provision of the Bill of Rights:

Sec. 2. The right of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things
to be seized.

Sec. 3 (1). The privacy of communication and correspondence shall be

inviolable except upon lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall
be inadmissible for any purpose in any proceeding.
There is no question that evidence obtained as a result of an illegal search or seizure is
inadmissible in any proceeding for any purpose. That is the absolute prohibition of
Article III, Section 3(2), of the Constitution. This is the celebrated exclusionary rule
based on the justification given by Judge Learned Hand that "only in case the
prosecution, which itself controls the seizing officials, knows that it cannot profit by their
wrong will the wrong be repressed." The Solicitor General, while conceding the rule,
maintains that it is not applicable in the case at bar. His reason is that the arrest and
search of Mengote and the seizure of the revolver from him were lawful under Rule 113,
Section 5, of the Rules of Court reading as follows:

Sec. 5. Arrest without warrant when lawful. — A peace officer or private

person may, without a warrant, arrest a person;

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

actually committing, or is attempting to commit an offense;

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

(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.

In cases failing under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7.

We have carefully examined the wording of this Rule and cannot see how we can agree
with the prosecution.

Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a
penal institution when he was arrested. We therefore confine ourselves to determining
the lawfulness of his arrest under either Par. (a) or Par. (b) of this section.

Par. (a) requires that the person be arrested (1) after he has committed or while he is
actually committing or is at least attempting to commit an offense, (2) in the presence of
the arresting officer.

These requirements have not been established in the case at bar. At the time of the
arrest in question, the accused-appellant was merely "looking from side to side" and
"holding his abdomen," according to the arresting officers themselves. There was
apparently no offense that had just been committed or was being actually committed or
at least being attempted by Mengote in their presence.
The Solicitor General submits that the actual existence of an offense was not necessary
as long as Mengote's acts "created a reasonable suspicion on the part of the arresting
officers and induced in them the belief that an offense had been committed and that the
accused-appellant had committed it." The question is, What offense? What offense
could possibly have been suggested by a person "looking from side to side" and
"holding his abdomen" and in a place not exactly forsaken?

These are certainly not sinister acts. And the setting of the arrest made them less so, if
at all. It might have been different if Mengote bad been apprehended at an ungodly hour
and in a place where he had no reason to be, like a darkened alley at 3 o'clock in the
morning. But he was arrested at 11:30 in the morning and in a crowded street shortly
after alighting from a passenger jeep with I his companion. He was not skulking in the
shadows but walking in the clear light of day. There was nothing clandestine about his
being on that street at that busy hour in the blaze of the noonday sun.

On the other hand, there could have been a number of reasons, all of them innocent,
why his eyes were darting from side to side and be was holding his abdomen. If they
excited suspicion in the minds of the arresting officers, as the prosecution suggests, it
has nevertheless not been shown what their suspicion was all about. In fact, the
policemen themselves testified that they were dispatched to that place only because of
the telephone call from the informer that there were "suspicious-looking" persons in that
vicinity who were about to commit a robbery at North Bay Boulevard. The caller did not
explain why he thought the men looked suspicious nor did he elaborate on the
impending crime.

In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless arrest
of the accused because there was a bulge in his waist that excited the suspicion of the
arresting officer and, upon inspection, turned out to be a pouch containing hashish.
In People v. Claudio, 6 the accused boarded a bus and placed the buri bag she was
carrying behind the seat of the arresting officer while she herself sat in the seat before
him. His suspicion aroused, be surreptitiously examined the bag, which he found to
contain marijuana. He then and there made the warrantless arrest and seizure that we
subsequently upheld on the ground that probable cause had been sufficiently
established.

The case before us is different because there was nothing to support the arresting
officers' suspicion other than Mengote's darting eyes and his hand on his abdomen. By
no stretch of the imagination could it have been inferred from these acts that an offense
had just been committed, or was actually being committed, or was at least being
attempted in their presence.

This case is similar to People v. Aminnudin, 7 where the Court held that the warrantless
arrest of the accused was unconstitutional. This was effected while be was coming
down a vessel, to all appearances no less innocent than the other disembarking
passengers. He had not committed nor was be actually committing or attempting to
commit an offense in the presence of the arresting officers. He was not even acting
suspiciously. In short, there was no probable cause that, as the prosecution incorrectly
suggested, dispensed with the constitutional requirement of a warrant.

Par. (b) is no less applicable because its no less stringent requirements have also not
been satisfied. The prosecution has not shown that at the time of Mengote's arrest an
offense had in fact just been committed and that the arresting officers had personal
knowledge of facts indicating that Mengote had committed it. All they had was hearsay
information from the telephone caller, and about a crime that had yet to be committed.

The truth is that they did not know then what offense, if at all, had been committed and
neither were they aware of the participation therein of the accused-appellant. It was only
later, after Danganan had appeared at the Police headquarters, that they learned of the
robbery in his house and of Mengote's supposed involvement therein. 8 As for the
illegal possession of the firearm found on Mengote's person, the policemen discovered
this only after he had been searched and the investigation conducted later revealed that
he was not its owners nor was he licensed to possess it.

Before these events, the Peace officers had no knowledge even of Mengote' identity, let
alone the fact (or suspicion) that he was unlawfully carrying a firearm or that he was
involved in the robbery of Danganan's house.

In the landmark case of People v. Burgos, 9 this Court declared:

Under Section 6(a) of Rule 113, the officer arresting a person who has just
committed, is committing, or is about to commit an offense must
have personal knowledge of the fact. The offense must also be committed
in his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859).
(Emphasis supplied)

xxx xxx xxx

In arrests without a warrant under Section 6(b), however, it is not enough

that there is reasonable ground to believe that the person to be arrested
has committed a crime. A crime must in fact or actually have been
committed first. That a crime has actually been committed is an essential
precondition. It is not enough to suspect that a crime may have been
committed. The fact of the commission of the offense must be
undisputed. The test of reasonable ground applies only to the identity of
the perpetrator. (Emphasis supplied)

This doctrine was affirmed in Alih v. Castro, 10 thus:

If the arrest was made under Rule 113, Section 5, of the Rules of Court in
connection with a crime about to be committed, being committed, or just
committed, what was that crime? There is no allegation in the record of
such a falsification. Parenthetically, it may be observed that under the
 Revised Rule 113, Section 5(b), the officer making the arrest must have
personal knowledge of the ground therefor as stressed in the recent case
of People v. Burgos. (Emphasis supplied)

It would be a sad day, indeed, if any person could be summarily arrested and searched
just because he is holding his abdomen, even if it be possibly because of a stomach-
ache, or if a peace officer could clamp handcuffs on any person with a shifty look on
suspicion that he may have committed a criminal act or is actually committing or
attempting it. This simply cannot be done in a free society. This is not a police state
where order is exalted over liberty or, worse, personal malice on the part of the arresting
officer may be justified in the name of security.

There is no need to discuss the other issues raised by the accused-appellant as the
ruling we here make is sufficient to sustain his exoneration. Without the evidence of the
firearm taken from him at the time of his illegal arrest, the prosecution has lost its most
important exhibit and must therefore fail. The testimonial evidence against Mengote
(which is based on the said firearm) is not sufficient to prove his guilt beyond
reasonable doubt of the crime imputed to him.

We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the
accused-appellant not only in the brief but also in the reply brief, which she did not have
to file but did so just the same to stress the constitutional rights of her client. The fact
that she was acting only as a counsel de oficio with no expectation of material reward
makes her representation even more commendable.

The Court feels that if the peace officers had been more mindful of the provisions of the
Bill of Rights, the prosecution of the accused-appellant might have succeeded. As it
happened, they allowed their over-zealousness to get the better of them, resulting in
their disregard of the requirements of a valid search and seizure that rendered
inadmissible the vital evidence they had invalidly seized.

This should be a lesson to other peace officers. Their impulsiveness may be the very
cause of the acquittal of persons who deserve to be convicted, escaping the clutches of
the law because, ironically enough, it has not been observed by those who are
supposed to enforce it.

WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-
appellant is ACQUITTED and ordered released immediately unless he is validly
detained for other offenses. No costs.

SO ORDERED.

Griño-Aquino, Medialdea and Bellosillo, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 96177 January 27, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARI MUSA y HANTATALU, accused-appellant.

The Solicitor General for plaintiff-appellee.

Pablo L. Murillo for accused-appellant.

ROMERO, J.:

The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated
August 31, 1990,1 of the Regional Trial Court (RTC) of Zamboanga City, Branch XII,
finding him guilty of selling marijuana in violation of Article II, Section 4 of Republic Act
No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972.

The information filed on December 15, 1989 against the appellant reads:

That on or about December 14, 1989, in the City of Zamboanga,

Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, not being authorized by law, did then and there,
wilfully, unlawfully and feloniously sell to one SGT. AMADO ANI, two (2)
wrappers containing dried marijuana leaves, knowing the same to be a
prohibited drug.

CONTRARY TO LAW.2

Upon his arraignment on January 11, 1990, the appellant pleaded not guilty. 3

At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani,
Jr. of the 9th Narcotics Command (NARCOM) of Zamboanga City, who acted as
poseur-buyer in the buy-bust operation made against the appellant; (2) T/Sgt. Jesus
Belarga, also of the 9th Narcotics Command of Zamboanga City, who was the
NARCOM team leader of the buy-bust operation; and (3) Athena Elisa P. Anderson, the
Document Examiner and Forensic Chemist of PC-INP Crime Laboratory of Regional
Command (RECOM) 9. The evidence of the prosecution was summarized by the trial
court as follows:

Prosecution evidence shows that in the morning of December 13, 1989,

T/Sgt. Jesus Belarga, leader of a NARCOTICS COMMAND (NARCOM)
team based at Calarian, Zamboanga City, instructed Sgt. Amado Ani to
conduct surveillance and test buy on a certain Mari Musa of Suterville,
Zamboanga City. Information received from civilian informer was that this
Mari Musa was engaged in selling marijuana in said place. So Sgt. Amado
Ani, another NARCOM agent, proceeded to Suterville, in company with a
NARCOM civilian informer, to the house of Mari Musa to which house the
civilian informer had guided him. The same civilian informer had also
described to him the appearance of Mari Musa. Amado Ani was able to
buy one newspaper-wrapped dried marijuana (Exh. "E") for P10.00. Sgt.
Ani returned to the NARCOM office and turned over the newspaper-
wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga inspected the
stuff turned over to him and found it to be marijuana.

The next day, December 14, 1989, about 1:30 P.M., a buy-bust was
planned. Sgt. Amado Ani was assigned as the poseur buyer for which
purpose he was given P20.00 (with SN GA955883) by Belarga. The
buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh
Sali Mihasun, Chief of Investigation Section, and for which Belarga signed
a receipt (Exh. "L" & "L-l" ) The team under Sgt. Foncargas was assigned
as back-up security. A 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").

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 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.
 Biñan 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 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 its contents, whether by
its distinctive configuration, its transprarency, or otherwise, that its contents are obvious
to an observer.48

We, therefore, hold that under the circumstances of the case, the "plain view" doctrine
does not apply and the marijuana contained in the plastic bag was seized illegally and
cannot be presented in evidence pursuant to Article III, Section 3(2) of the Constitution.

The exclusion of this particular evidence does not, however, diminish, in any way, the
damaging effect of the other pieces of evidence presented by the prosecution to prove
that the appellant sold marijuana, in violation of Article II, Section 4 of the Dangerous
Drugs Act of 1972. We hold that by virtue of the testimonies of Sgt. Ani and T/Sgt.
Belarga and the two wrappings of marijuana sold by the appellant to Sgt. Ani, among
other pieces of evidence, the guilt of the appellant of the crime charged has been
proved beyond reasonable doubt.

WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court
AFFIRMED.

SO ORDERED.

Gutierrez, Jr., Bidin, Davide, Jr. and Melo, JJ., concur.

JAYLORD DIMAL AND ALLAN CASTILLO, PETITIONERS, VS. PEOPLE OF

THE PHILIPPINES, RESPONDENT.

DECISION
PERALTA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to
reverse and set aside the Court of Appeals (CA) Decision [1] dated August 27, 2014 and
Resolution[2] dated February 4, 2015 in CA-G.R. SP No. 128355. The CA dismissed the
petition for certiorari under Rule 65, assailing the Order[3] of the Regional Trial Court
(RTC) of Quezon City, Branch 87, which denied the Omnibus Motion (Motion to Quash
Search Warrant No. 10-11, to Declare the Seized Items as Inadmissible in Evidence) in
Criminal Cases Nos. Q-12-175369 to Q-12-175371.

The Facts

At around 6:00 p.m. of September 6, 2010, Lucio Pua, Rosemarie Pua and Gemma
Eugenio were scheduled to visit the compound of petitioner Jaylord A. Dimal in
Echague, Isabela, to negotiate for the sale of palay. At around 7:30 p.m., Lucio's
nephew, Edison Pua, went to Dimal's compound, asking for information as to the
whereabouts of Lucio, Rosemarie and Gemma. Dimal informed Edison that they had left
an hour ago. Unable to locate his relatives, Edison went to the police station in Alicia,
Isabela, to report that they were missing, then proceeded to seek assistance from the
police station in Echague.

Thereafter, Edison was escorted by two policemen to Dimal's compound, where they
allegedly stayed and observed the premises in the absence of Dimal until September 7,
2010. On even date at around 5:30 a.m., Edison and the two policemen supposedly
searched without a warrant Dimal's compound, but found no evidence linking him to the
disappearances.

On September 24, 2010, petitioner Allan Castillo was accosted by the Echague Police,
and allegedly tortured to implicate Dimal in the killing of Lucio, Rosemarie and Gemma.
On September 25, 2010, a certain Eduardo Sapipi was arrested due to the supposed
statement made by Castillo. Sapipi purportedly made an uncounseled confession that
Dimal shot the three victims, and ordered him, Castillo and one Michael Miranda to
cover up the crime by throwing the bodies in a river.

On September 26, 2010, Dimal was arrested by the Echague Police. On September
27,2010, the Echague Police filed with the Office of the Provincial Prosecutor of Hagan,
Isabela, a criminal complaint for Kidnapping for Ransom and Multiple Murder against
Dimal, Castillo, Sapipi, Miranda, Marvin Guiao and Robert Baccay.

On October 8, 2010, Police Inspector (P/Insp.) Roy Michael S. Malixi, a commissioned

officer of the Philippine National Police assigned with the Police Anti-Crime and
Emergency Response in Camp Crame Quezon City, filed an Application for the
Issuance of a Search Warrant[4] before the RTC Hagan, Isabela, Branch 17, in
connection with the kidnapping and multiple murder of Lucio, Rosemarie and Gemma.

In his application for search warrant, P/Insp. Malixi stated that "he was informed, and
verily believed that JAYLORD ARIZABAL DIMAL @ JAY, 28 years old, a resident of
Felix Gumpal Compound, Ipil Junction, Isabela and CMJ Building Dubinan East,
Santiago City, has in control of the following items" in the said address, to wit:
a. Personal belongings such as:
1. Driver's License of Lucio Pua;
2. Alien Certificate of Registration Identification cards of Lucio Pua and Rosemarie Pua;
3. ATM Cards such as BDO under Lucio Pua's accounts;
4. Deposit Slips in BDO accounts of Lucio Pua;
5. Receipts of the palay delivered;
6. Blood-stained clothes of the victims:
6.1 Rosemarie Pua's green inner garment with black blazer and brownish pedal pants;
6.2 Lucio Pua's black short and pink polo shirt;
6.3 Gemma Eugenio y Estrada's maong pants, faded pink long sleeves jacket, black
striped t-shirt and a shoulder bag;
 6.4 Polo t-shirt and faded pink jacket seen beside the comfort room inside the
compound of the warehouse of Jayson Dimal.
7. Picture of Shaira Mae Eugenio's youngest sister (Queen Sean Eugenio) seen inside
the shoulder bag of the victim, Gemma Eugenio.
b. 1,600 sacks of palay inside a warehouse found in the Felix Gurnpal Compound, Ipil
Junction, Echague, Isabela;
c. Long bolo approximately 16 inches in length; and
d. Glock 9mm caliber pistol.[5]
P/Insp. Malixi stressed that he has personally verified and ascertained the veracity of
the information and found the same to be true and correct, as narrated and sworn to by
Ernesto Villador, a long-time employee of Dimal, Edison Uy Pua, the nephew of the
victims Lucio and Rosemarie Pua, and Shaira Mae Eugenio, daughter of the victim
Gemma Eugenio. P/Insp. Malixi claimed that the application was founded on his
personal knowledge and that of his witnesses, acquired after conducting surveillance
and investigation. P/Insp. Malixi attached to the application as Annexes "A", "B", "C" and
"D" the Vicinity/Location and Floor Map.

After the hearing of the application on October 8, 2010, Judge Bonifacio T. Ong of the
RTC of Ilagan, Isabela, Branch 17, issued a Search Warrant, which reads:
The undersigned Presiding Judge personally examined in the form of questions and
answers in writing and [under oath], the applicant Police Senior Inspector Roy Michael
S. Malixi and the witnesses, namely: Edison Pua, Shaira Mae Eugenio, and Ernesto
Villador, who all collaborated to the fact of death of Lucio Pua, Rosemarie Pua and
Gemma Eugenio in Echague, Isabela. That witness Edison Pua went to the house of
Jaylord Dimal after the commission of the crime and was able to see the blood-stained
clothes of the victims:
1) Lucio Pua's clothes; and 2) [Rosemarie] Pua's clothes;
On the part of Shaira Mae Eugenio, she testified that before her mother Gemma
Eugenio left her house, she wore faded pink long sleeves jacket and black T-shirt, and
brought with her a shoulder bag and two (2) cellphones which probably are in the house
of Jaylord Dimal. In the case of Ernesto Villador, he testified that he saw Jaylord Dimal
holding a 9mm caliber pistol and testified that he usually keep said firearm under the
computer table or drawers. He likewise testify (sic) that there were 1,600 sacks of palay
sold by the victims and brought to the Felix Gumpal Compound.

With the testimony of said witnesses and their Sinumpaang Salaysay and deposition of
witness, it would readily show that there is probable cause to believe that in the house,
particularly the Felix Gumpal Compound of Jaylord Dimallocated at Ipil Junction,
Echague, Isabela, said items, to wit: blood-stained clothes of the victims, 1,600 sacks of
palay inside the warehouse in the Felix Gumpal Compound and 9mm cal. pistol are
found.

The said Application for Search Warrant was filed before this Court due to compelling
reasons for security and confidentiality purposes, considering that possibility of
leakages of information once the application for search warrant is filed with the court
within the area having territorial jurisdiction over it.

In view thereof, you are hereby commanded to search at any time of the day or night
the premises of Felix Gumpal Compound located at Ipil Junction, Echague, Isabela, and
forthwith seize and take possession of the following properties: blood-stained clothes of
Rosemarie Pua, Lucio Pua, and Gemma Eugenio, either to take the 1,600 sacks of
palay or just to photograph the same, and the 9mm caliber pistol, and to bring the said
articles to the custody of the Provincial Director of Isabela at the Provincial Police Office
of Isabela under custodia legis, to be dealt with according to law.[6]
In the Return on the Search Warrant, P/Insp. Gary Halay-ay Macadangdang, Deputy
Chief of Police, Echague Police Station, Echague, Isabela," manifested that (1) Search
Warrant No. 10-11 was served at the premises ofDimal at Barangay Ipil, Echague,
Isabela, on October 9, 2010 at about 9:00 a.m., and (2) the search was conducted in an
orderly manner and in the presence of owner/custodian Carlos
Dimal, Barangay Captain Florencio Miguel, Barangay Kagawads Rodolfo Vergara and
Mariano Seriban, and BOMBO Radyo reporter Romy Santos. P/Insp. Macadangdang
enumerated the items recovered:
The following articles, subject of the warrant, were found by the said Office during the
search:

a. Extracted suspected Blood stain (Mark as E-24 with JAM markings)

b. Extracted suspected Blood stain (Mark as E-25 with JAM markings)

c. One (1) Black T-Shirt with suspected blood stain (Mark as E-26 with JAM markings)

d. One (1) Black T-Shirt with red lining with suspected blood stain (Mark as E-15 with
JAM markings)

e. One (1) Bra color brown (tiger) (Mark as E-14 with JAM markings)

f. One (1) cell phone spare part (mark as E-16 with JAM markings)

g. One (1) cell phone spare part (mark as E-17 with JAM markings)

h. Palay husk with suspected blood stain (mark as E-28 with JAM markings)

i. Suspected blood stain (mark as E-25-A with JAM markings)

The articles recovered/seized in plain view during the conduct of search are the
following:

a. One (1) pc torn cloth (Mark as E-1 with JAM markings)

b. One (1) pc torn cloth (Mark as E-2 with JAM markings)

c. One (1) pc torn cloth (Mark as E-3 with JAM markings)

d. One (1) pc spent shell of caliber 22 (Mark as E-4 with JAM markings)

e. One (1) bag pack color black (Mark as E-5 with JAM markings)

f. One spent shell of caliber 22 (Mark as E-6 with JAM markings)

g. One spent shell of caliber 22 (Mark as E-7 with JAM markings)

h. One spent shell of caliber 22 (Mark as E-8 with JAM markings)

i. One spent shell of caliber 22 (Mark as E-9 with JAM markings)

j. One spent shell of caliber 22 (Mark as E-10 with JAM markings)

k. One spent shell of caliber 22 (Mark as E-11 with JAM markings)

l. One spent shell of caliber 22 (Mark as E-12 with JAM markings)

m. One spent shell of caliber 22 (Mark as E-13 with JAM markings)

n. Two (2) Alien Certificate of Registration of Lucio Pua and Rosemarie Pua, and One
(1) BDO Passbook in the name of Lucio Pua (mark as E-15 with JAM markings)

o. One spent shell of caliber 22 (Mark as E-18 with JAM markings)

p. One (1) piece gold-plated earring (mark as E-19 with JAM markings)

q. Suspected human hair (mark as E-20 with JAM markings)

r. A piece of embroider[ed] cloth (mark as E-22 with JAM markings)

s. Three (3) burned Tire wires (mark as E-23 with JAM markings)

t. One (1) empty plastic bottle of Gleam muriatic acid (mark as E-27 with JAM markings)

u. One (1) live ammo of caliber 22 (mark as E-29 with JAM markings)

v. One (1) color white t-shirt (mark as E-30 with JAM markings). [7]
On February 20, 2012, petitioners Dimal and Castillo, together with Michael Miranda,
filed an Omnibus Motion[8] to quash Search Warrant No. 10-11 and to declare the seized
items as inadmissible in evidence. They argued that the search warrant is invalid
because it was issued in connection with, not just one single offense, but two
crimes, i.e., kidnapping and multiple murder. They also contended that except for
witness Ernesto Villador, applicant P/Insp. Malixi and witnesses Edison and Shaira Mae
have no personal knowledge surrounding the two crimes committed; hence, their
statements did not provide basis for a finding of probable cause, much less for the
issuance of a search warrant. With respect to Villador, petitioners assert that his sworn
statement is incredible because he is just an ordinary laborer, who is unfamiliar with the
English language, and there is no showing that the contents of his statement were fully
explained to him by the Judge who issued the search warrant. Petitioners further posit
that the search warrant was invalidly implemented because the raiding team failed to
comply with Section 8, Rule 127 of the Rules of Court on the requisite presence of two
witnesses during a search of premises, and with Section 10, Rule 126 on the issuance
of a receipt of seized properties. Finally, petitioners sought that the items seized which
are not covered by the search warrant, should be declared inadmissible in evidence and
be ordered returned to the accused.

Meanwhile, on November 22, 2010, three (3) criminal Informations for Kidnapping for
Ransom, as defined and penalized under Article 267, paragraph 4 of the Revised Penal
Code, as amended by R.A. No. 7659, were filed against petitioners before the RTC of
Echague, Isabela, Branch 24, and later re-raffled to the RTC of Ilagan, Isabela, Branch
17. The accusatory portion of the Informations similarly read, save for the names of the
3 victims, as follows:
That on or about the 6th day of September 2010, and for sometime thereafter, in the
Municipality of Echague, Province of Isabela, Philippines and within the jurisdiction of
this Honorable Court, the accused Jaylord Arizabal Dimas (sic) and Allan Castillo y
Marquez, being the principals therein, conspiring, confederating together and helping
one another, did then and there, willfully, unlawfully and feloniously, kidnap and detain
one Lucio Uy Pua (Chinese name: Xinyi Pan)[9] for the purpose of extorting ransom in
the amount of Fifty (50) million pesos, from him and from his relatives.

That during his[/her] detention, the said accused, in pursuance of conspiracy, did then
and there, willfully, unlawfully and feloniously, assault, attack and shot with a caliber
9mm pistol the said Lucio Uy Pua[10] which had directly caused his death and,
thereafter, chopped his body into several pieces and placed them into big plastic
containers and ice box, and burned his head and placed the same into a plastic bag,
and threw the same on separate rivers located at Santiago City and at the Province of
Quirino.

That the accused Michael Miranda Genova alias Mike Miranda being an accessory,
took part in the subsequent commission of the crime by providing the vehicle and a
container drum used to dispose the chopped body of said Lucio Uy Pua[11] and threw
the same on the river, in order to conceal the body of the crime, to prevent its discovery.

CONTRARY TO LAW.[12]
Pursuant to Administrative Matter No. 12-1-18-RTC, the criminal cases were re-raffled
to Judge Aurora A. Hernandez-Calledo of the RTC of Quezon City, andre-docketed as
Criminal Case Nos. Q-12-175369, Q-12-175370 to Q-12-175371.

In an Order[13] dated September 28, 2012, the RTC of Quezon City denied the Motion to
Quash Search Warrant No. 10-11 for lack of merit. The RTC ruled that a perusal of the
application for search warrant reveals that it was issued by the RTC of Hagan, Isabela,
after conducting searching and probing questions upon the persons of the applicant
P/Insp. Malixi, and his witnesses Edison, Shaira Mae and more particularly Villador, and
finding probable cause based on their personal knowledge. In rejecting the claim of
unreasonableness of the implementation of the search warrant, the RTC noted that the
records show that the owner/custodian of the property subject of the warrant by the
name of Carlos Dimal, was present, together with the Barangay Captain, two Barangay
Kagawads, and a reporter from Bombo Radyo.

Considering that no complaint was filed regarding the implementation of the search
warrant, and that a Certification of Orderly Search was issued by the barangay officials,
the RTC declared that the presumption of regularity in the performance of public duty
was not sufficiently contradicted. Anent the claim that the search warrant was not issued
in connection with a single offense but with the crimes of Kidnapping and Murder, the
RTC said that the nature of the case and the circumstances at the time the search
warrant was applied for, justify the issuance of such warrant as the two offenses are
allied or closely related to each other because it was reported to the applicant that the
victims were kidnapped for ransom and murdered. Finally, the RTC stressed that the
claim that no return on the search warrant was submitted must fail because such a
return was issued by the executing officer, and was marked as Exhibit "4" for the
prosecution during the preliminary conference.

With the RTC's denial of their motion for reconsideration, petitioners filed a petition
for certiorari before the CA.

In a Decision[14] dated August 27, 2014, the CA dismissed the petition and ruled that the
subject search warrant was validly issued, thus:
A perusal of the records show that Judge Ong, through searching and probing
questions, personally examined the (sic) P/lnsp. Malixi and the witnesses, Edison Uy,
Ernesto Villador and Shaira Mae Eugenio, on 8 October 2010. The questions that Judge
Ong propounded were sufficiently probing, not at all superficial and perfunctory. The
facts narrated by the witnesses while under oath, when they were asked by the
examining judge, were sufficient justification for the issuance of the subject search
warrant.

Furthermore, the subject search warrant specifically designated or described Felix

Gumpal Compound, located at Ipil Junction, Echague, Isabela as the place to be
searched and enumerated the articles to be seized.

Petitioners['] contention that the subject search warrant which was issued in connection
with two (2) separate offenses, Kidnapping and Murder, as indicated therein, cannot
stand. However, as aptly pointed out by the People through the Office of the Solicitor
General, the crimes of kidnapping and murder are interrelated and points to the
commission of a single complex crime known as kidnapping with murder. They cannot
be treated as separate crimes.[15]
Petitioners filed a motion for reconsideration, which the CA denied in a Resolution dated
February 4, 2015. Hence, this petition for review on certiorari.

Issues

Petitioners argue that the CA gravely erred in failing to pass upon petitioners'
allegations (1) that the search warrant is void and its quashal imperative; and (2) that
the items seized on the basis of the void search warrant are inadmissible in evidence.
They contend that the search warrant was null and void because it was issued in
connection with two unrelated offenses, without a finding of probable cause, and without
specifying the place to be searched and the items to be seized.

Ruling

The petition is partly meritorious. Search Warrant No. 10-11 was validly issued, but
most of the items seized pursuant thereto are inadmissible in evidence, as they were
neither particularly described in the warrant nor seized under the "plain view doctrine".

At the outset, there is no merit to petitioners' contention that the search warrant was
applied for in connection with two unrelated offenses, i.e., kidnapping and murder, in
violation of Section 4, Rule 126 of the Rules of Court which requires that such warrant
must be issued in relation to one offense.

Suffice it to state that where a person kidnapped is killed or dies as a consequence of

the detention, there is only one special complex crime for which the last paragraph of
Article 267 of the Revised Penal Code provides the maximum penalty that shall be
imposed, i.e., death.[16] In People v. Larrañaga,[17] the Court explained that this provision
gives rise to a special complex crime:
This amendment introduced in our criminal statutes the concept of "special complex
crime" of kidnapping with murder or homicide. It effectively eliminated the distinction
drawn by the courts between those cases where the killing of the kidnapped victim was
purposely sought by the accused, and those where the killing of the victim was not
deliberately resorted to but was merely an afterthought Consequently, the rule now
is: Where the person kidnapped is killed in the course of the detention, regardless
of whether the killing was purposely sought or was merely an afterthought, the
kidnapping and murder or homicide can no longer be complexed under Art. 48,
nor be treated as separate crimes, but shall be punished as a special complex
crime under the last paragraph of Art. 267, as amended by R.A. No. 7659.

xxxx

x x x Where the law provides a single penalty for two or more component
offenses, the resulting crime is called a special complex crime. Some of the special
complex crimes under the Revised Penal Code are (1) robbery with homicide, (2)
robbery with rape, (3) kidnapping with serious physical injuries, (4) kidnapping with
murder or homicide, and (5) rape with homicide. In a special complex crime, the
prosecution must necessarily prove each of the component offenses with the same
precision that would be necessary if they were made the subject of separate
complaints. As earlier mentioned, R.A. No. 7659 amended Article 267 of the Revised
Penal Code by adding thereto this provision: "When the victim is killed or dies as a
consequence of the detention, or is raped, or is subjected to torture or dehumanizing
acts, the maximum penalty shall be imposed; and that this provision gives rise to a
special complex crime."[18]
There is no dispute that Search Warrant No. 10-11 was applied for and issued in
connection with the crime of kidnapping with murder. Asked by Judge Ong during the
hearing as to what particular offense was committed, search warrant applicant P/Insp.
Malixi testified that Dimal "allegedly committed the crime of kidnapping and multiple
murder of Lucio and Rosemarie Pua and one Gemma Eugenio on September 6,
2010."[19] It is not amiss to add that a search warrant that covers several counts of a
certain specific offense does not violate the one-specific-offense rule. [20]

Neither can petitioners validly claim that the examining judge failed to ask searching
questions, and to consider that the testimonies of the applicant and his witnesses were
based entirely on hearsay, as they have no personal knowledge of the circumstances
relating to the supposed disappearance or murder of the 3 victims.

The Court explained in Del Castillo v. People[21] the concept of probable cause for the
issuance of a search warrant:
x x x Probable cause for a search warrant is defined as such facts and circumstances
which would lead a reasonably discreet and prudent man to believe that an offense has
been committed and that the objects sought in connection with the offense are in the
place sought to be searched. A finding of probable cause needs only to rest on
evidence showing that, more likely than not, a crime has been committed and that it was
committed by the accused. Probable cause demands more than bare suspicion; it
requires less than evidence which would justify conviction. The judge, in determining
probable cause, is to consider the totality of the circumstances made known to him and
not by a fixed and rigid formula, and must employ a flexible totality of the circumstances
standard. The existence depends to a large degree upon the finding or opinion of the
judge conducting the examination. This Court, therefore, is in no position to disturb the
factual findings of the judge which led to the issuance of the search warrant. A
magistrate's determination of probable cause for the issuance of a search warrant is
paid great deference by a reviewing court, as long as there was substantial basis for
that determination. Substantial basis means that the questions of the examining judge
brought out such facts and circumstances as would lead a reasonably discreet and
prudent man to believe that an offense has been committed, and the objects in
connection with the offense sought to be seized are in the place sought to be searched.
Corollarily, the Court said in Oebanda v. People[22] that in an application for search
warrant, the mandate of the judge is for him to conduct a full and searching examination
of the complainant and the witnesses he may produce. "The searching questions
propounded to the applicant and the witnesses must depend on a large extent upon the
discretion of the judge. Although there is no hard-and-fast rule as to how a judge may
conduct his examination, it is axiomatic that the said examination must be probing and
exhaustive and not merely routinary, general, peripheral or perfunctory. He must make
his own inquiry on the intent and factual and legal justifications for a search warrant.
The questions should not merely be repetitious of the averments stated in the
affidavits/deposition of the applicant and the witnesses." [23]

Having in mind the foregoing principles, the Court agrees with the RTC and the CA in
both ruling that Judge Ong found probable cause to issue a search warrant after a
searching and probing personal examination of applicant P/Insp. Malixi and his
witnesses, Edison, Shaira Mae and Villador. Their testimonies jointly and collectively
show a reasonable ground to believe that the 3 victims went to Dimal's compound to
sell palay, but were probably killed by Dimal, and that they may have left personal
belongings within its premises.

During the hearing of his application for search warrant, Judge Ong was ahto elicit from
P/Insp. Malixi the specific crime allegedly committed by Dimal, the particular place to be
searched and items to be seized:
[COURT:]
Q: And in your application for Search Warrant, what particular place are you going to
search in this Search Warrant if ever it will be granted?

[P/INSP. MALIXI:]
A: According to the Opponent we are applying to search the Palay Buying Station of
Jaylord Dimallocated at Felix Gumpal Compound, Ipil, Echague, Isabela, and also
to search the back portion of a vacant lot within the Felix Gumpal Compound,
Your Honor.

Q: The particular place is Felix Gumpal Compound, in Echague, Isabela, no more?

A: No more, Your Honor.

Q: And what particular offense have this Jaylord Dimal committed, if any?
A: He allegedly committed the crime of kidnapping and multiple murder of Lucio
and Rosemarie Pua and one Gemma Eugenio on September 6, 2010, Your Honor.

Q: And what particular items are you going to search in that compound of Felix
Gumpal?
A: Subject of the offense, the personal belongings of the victims when they went to the
Felix Gumpal Compound, where they were reportedly murdered, Your Honor.

Q: What specific items are you going to search from that place?
A: Personal belongings such as Driver's License of Lucio Pua, Alien Certificate of
Registration ID of Lucio Pua and Rosemarie Pua, ATM Cards such as BDO under
Lucio Pua's account, Deposit slips of BDO accounts of Lucio Pua, receipts of the
palay delivered, blood-stained clothes of the victims, such as Rosemarie Pua's
green inner garment with black blazer and brownish pedal pants, Lucio Pua's
black short and pink polo shirt, Gemma Eugenio's maong pants, faded pink long
sleeves jacket, black stripe T-shirt and a shoulder bag of the victim Gemma
Eugenio color white, the 1,600 sacks of palay inside the Warehouse of Felix
Gumpal Compound, long bolo [which] is approximately 16 inches long, and the
9mm caliber black pistol, your Honor.

Q: Where did you get this information regarding the articles found in the Felix Gumpal
Compound?
A: This information was given to me by the Opponents, Your Honor.

Q: And who are they?

A: They are Edison Uy Pua, Ernesto Villador y Yakapin and Shaira Eugenio y Estrada,
Your Honor.

Q: How sure are you that these people were able to see these items in Felix Gumpal
Compound?
A: Edison Uy Pua and Shaira Mae Eugenio are the relatives of the victims who
personally saw the victim's clothes they were wearing right before they went to Jaylord's
compound and the victims were seen by Ernesto Villador sprawled lifeless on the floor
in the palay buying station of Jaylord Dimal, Your Honor.

Q: You said that there is a gun 9mm pistol, how did they come to know that there was a
gun in that place?
A: It was reported to me by Ernesto Villador, Your Honor. [24]
Judge Ong was also able to draw corroborative testimonies from P/Insp. Malixi's
witnesses. Edison testified on the circumstances prior to the disappearance of his uncle
Lucio and his aunties Rosemarie and Gemma, while Shaira Mae described the clothes
and personal belongings of her mother before the latter disappeared, thus:
[COURT]
Q: On September 6, 2010, where were you?

[EDISON]
A: I was at home, Your Honor.

Q: Where?
A: At Antonino, Alicia, Isabela, Your Honor?

Q: Where is Lucio and Rosemarie Pua on that day?

A: They went to Jaylord to collect the payment of the palay, Your Honor.

Q: And you were left in your house in Alicia when your Uncle Lucio and Auntie
Rosemarie when they went to Jaylord to collect payment of palay?
A: Yes, Your Honor, I was.

Q: And do you know what happened to your Uncle Lucio and Auntie Rosemarie
when they went to Jaylord's place?
A: I know because when they went to collect payments they did not come back
anymore, Your Honor.
Q: And what did you do when you learned that they did not come back anymore?
A: They were already dead and their bodies were chopped into pieces, your
Honor.

Q: And what did you do when you learned that they were already dead and
chopped into pieces?
A: We went to look for the pieces of the bodies because they said it was thrown
to the river, Your Honor.

Q: And what did you do after that?

A: We went to the house of Jaylord, Your Honor.

Q: And what did you do in the house of Jaylord?

A: We saw the T-shirt of my Uncle Lucio Pua and Ate Gemma, Your Honor.

Q: Who is that Gemma?

A: My aunt, the one who canvass palay, your Honor.

Q: What did you see in the house of Jaylord?

A: Polo shirt and Jacket of Auntie Gemma, Your Honor.

Q: What else aside from the Polo shirt and jacket did you see?
A: No more your Honor, we went back to Alicia.

Q: Who were with you when you went to the house of Jaylord?
A: My cousin, Your Honor.

Q: What is the name of your cousin?

A: Harison, Your Honor.

Q: When was that when you went to the house of Dimal?

A: October 5, 2010, Your Honor.[25]

xxxx

[COURT]
Q: On September 6, 2010, in the afternoon, at about 4:00 o'clock, do you know where
was (sic) your mother then?

[SHAIRA MAE]
A: Yes, sir.

Q: Where?
A: She [Gemma] went to Jaylord Dimal, Your Honor.

Q: Do you remember what was (sic) the clothes of your mother and what did she
brought (sic) with her when she went to Jaylord Dimal?
A: Yes, Your Honor, the long sleeves is faded pink, the inner shirt is black, and
bag is pink, inside it are two (2) cellphones, the picture of my sister and her
Driver's License.[26]
While it may be noted that applicant P/Insp. Malixi and his witnesses Shaira Mae and
Edison have no personal knowledge how the crimes of kidnapping and multiple murder
were committed, their testimonies corroborated that of Villador, who petitioners admitted
to have known about the incidents surrounding the commission of such crimes. [27]

Significantly, Judge Ong's inquiry underscored that Villador has a reasonable ground to
believe that a crime has been committed at the Felix Gumpal Compound on September
6, 2010. In reply to the queries of Judge Ong, Villador revealed that (1) when Dimal
called him inside the house to receive his payment as classifier of palay, he saw them
[Lucio, Rosemarie and Gemma] talking to each other; and (2) later in the day, Dimal
called him to ask for help, but he backed out upon seeing that Dimal was holding a
black 0.9mm pistol amidst people lying bloody on the ground. Thus:
[COURT:]
Q: You said you are a classifier, what is the work of a classifier?

[VILLADOR]
A: We classify the kinds ofpalay, Your Honor.

Q: Where are you working as a classifier?

A: Jaylord Dimal, Your Honor.

Q: And where is the place of the business of Jaylord Dimal?

A: Junction Ipil at the former compound of Felix Gumpal, Your Honor.

Q: How long have you been a classifier of Jaylord Dimal?

A: It is already two (2) years that every cropping he calls for me to classify, Your Honor.

Q: On September 6, 2010, are (sic) you still a classifier in the business of Jaylord Dimal.
A: Yes, Your Honor.

Q: Where were you on that date?

A: In the compound of Jaylord, Your Honor.

Q: In the afternoon of that date, do you know of any person who went to the place of
businessman Dimal?
A: Yes, Your Honor.

Q: Who are they?

A: Lucio, Rosemarie and Gemma, Your Honor.

xxxx
Q: Do you know their purpose of going to the place of Jaylord Dimal?
A: They were supposed to collect payment of the palay that Jaylord asked me to gather,
Your Honor?

Q: And where are those palay that Jaylord asked you to gather?
A: I was the one discarding the sacks of palay in the bodega of Jaylord, Your Honor.

Q: Who owns these palay that you are discarding?

A: Owned by Lucio and Rosemarie Pua, Your Honor.

Q: And why were they taken to the place of Jaylord Dimal?

A: They asked me to classify those palay and by agreement of Jaylord and the Pua's I
discarded the palay in the bodega of Jaylord, Your Honor.

Q: Do you know how many cavans?

xxxx

A: 1,600 sacks, Your Honor.

Q: And where are they now those sacks of palay?

A: They are in the bodega or warehouse, Your Honor.

Q: Are those sacks of palay still there up to now?

A: Yes, Your Honor, they are still there.

Q: What happened in the afternoon of September 6, 2010 when Lucio and

Rosemarie and Gemma was (sic) there in the house or place of Jaylord Dimal?
A: Jaylord Dimal went out from his house and he called for the three and went
inside the house, Your Honor.

Q: And do you know what happened when they were inside the house?
A: Jaylord called for me inside the house when I received my payment as
classifier and I saw them talking to each other, Your Honor.

Q: What happened next, if any?

A: Jaylord called me up but I was already in our house and I was busy giving
wages to my laborers, when he summoned me to go to his house, "Kuya punta ka
sandali dito," meaning "Kuya, please come here for a while."

Q: And did you go to the place of Jaylord?

A: Yes, Your Honor, I rode my motorcycle and went to the place.

Q: And what happened next?

A: When I arrived at the gate he asked me to enter the compound with my
motorcycle, Your Honor.
Q: What happened next?
A: I asked him, "Bakit Boss?" meaning, "Why, Boss?"

Q: What happened next?

A: He answered, "Kuya yung mga tao patay na baka pwedeng
patulong." Meaning Kuya the people are already dead please help?

Q: What did you see from Jaylord [Dimal] when he told you the people were
already dead?
A: I saw him holding a black 9mm pistol and when I saw the people lying bloody
on the ground, I told him "Sir, hindi ko kaya", meaning "I cannot do it.

Q: How may times have you seen that gun which he was holding on that day
September 6, 2010?
A: That night when he called for me, Your Honor.

Q: After the September 6, 2010 incident, have you went (sic) back to the place of
Dimal.
A: No more, Your Honor.

Q: What are the things did you see (sic) when Dimal called for you and told you
that these persons were already dead?
A: I saw these people lying on the ground bloody and they are already dead and I
said, "hindi ko kaya", meaning "I cannot do it" and he replied, "Sige sibat kana,"
meaning "okay, just go."

Q: So, it is (sic) still possible that the gun held by Dimal is still in his house?
A: I think so that is still in his house because he keep (sic) it in one place, Your Honor.

Q: And you said he keep (sic) it in one place are you familiar where he is keeping it?
A: What I usually see, he placed it under the table where the laptop is and there
drawers in it, Your Honor.[28] (Emphasis ours)
Records clearly show that Judge Ong personally examined under oath applicant P/lnsp.
Malixi and his witnesses, Edwin, Shaira Mae and Villador, whose collective testimonies
would prompt a reasonably discreet person to believe that the crime of kidnapping with
murder was committed at the Felix Gumpal Compound on September 6, 2010, and that
specific personal properties sought in connection with the crime could be found in the
said place sought to be searched.

As to petitioners' claim that the judge did not ask anymore searching questions after
statements were made by Villador,[29] the Court finds that searching and probing
questions were indeed propounded by Judge Ong, and that there is no more necessity
to ask Villador to describe the position and state of the lifeless bodies, and the specific
place in the compound where the bodies were lying. Villador could not have been
expected to take a closer look into the bloody bodies on the ground because Dimal was
then holding a pistol, and told him to leave if he cannot help. Petitioners would do well to
bear in mind that, absent a showing to the contrary, it is presumed that a judicial
function has been regularly performed.[30] The judge has the prerogative to give his own
judgment on the application of the search warrant by his own evaluation of the evidence
presented before him.[31] The Court cannot substitute its own judgment to that of the
judge, unless the latter disregarded facts before him/her or ignored the clear dictates of
reason.[32]

Petitioners submit that the search warrant is also void for failing to identify with
particularity the place to be searched and the items to be seized. They assert that Felix
Gumpal Compound consists of a very large area, consisting of two houses, one nipa
hut, two external bathrooms, one garage, one warehouse utilized as a palay depot, and
one warehouse utilized to store a palay drying machinery. They likewise claim that all
the items actually seized were either not among those listed in the warrant or were
seized in violation of the "plain view doctrine". Insisting that the search warrant was
procured in violation of the Constitution and the Rules of Court, petitioners posit that all
the items seized in Dimal's compound are "fruits of the poisonous tree" and inadmissible
for any purpose in any proceeding.

Contrary to petitioners' submission, the search warrant issued by Judge Ong identified
with particularity the place to be searched, namely; (1) the house of Jaylord Dimal and
(2) the palay warehouse in the premises of the Felix Gumpal Compound at Ipil Junction,
Echague, Isabela. This is evident from the Search Warrant issued by the judge, which
reads:
The undersigned Presiding Judge personally examined in the form of questions and
answers in writing and under oath, the applicant Police Senior Inspector Roy Michael S.
Malixi and the witnesses, namely: Edison Pua, Shaira Mae Eugenio, and Ernesto
Villador, who all collaborated to the fact of death of Lucio Pua, Rosemarie Pua and
Gemma Eugenio in Echague, Isabela. That witness Edison Pua went to the house of
Jaylord Dimal after the commission of the crime and was able to see the blood-stained
clothes of the victims:
1) Lucio Pua's clothes; and 2) [Rosemarie] Pua's clothes
On the part of Shaira Mae Eugenio, she testified that before her mother Gemma
Eugenio left her house, she wore faded pink long sleeves jacket and black T-shirt, and
brought with her a shoulder bag and two (2) cellphones which are probably in the
house of Jaylord Dimal. In the case of Ernesto Villador, he testified that he saw
Jaylord Dimal holding a 9mm caliber pistol and testified that he usually keep said
firearm under the computer table or drawers. He likewise testify (sic) that there were
1600 sacks of palay sold by the victims and brought to the Felix Gumpal Compound.

With the testimony of said witnesses and their Sinumpaang Salaysay and deposition of
witness, it would readily show that there is probable cause to believe that in the house,
particularly the Felix Gumpal Compound of Jaylord Dimallocated at Ipil Junction,
Echague, Isabela, said items, to wit: blood-stained clothes of the victims, 1600 sacks of
palay inside the warehouse in the Felix Gumpal Compound and 9mm cal. pistol are
found.
The said Application for Search Warrant was filed before this Court due to compelling
reasons for security and confidentiality purposes, considering that possibility of
leakages of information once the application for search warrant is filed with the court
within the area having territorial jurisdiction over it.

In view thereof, you are hereby commanded to search at any time of the day or night
the premises of Felix Gumpal Compound located at Ipil Junction, Echague,
Isabela, and forthwith seize and take possession of the following properties: blood-
stained clothes of Rosemarie Pua, Lucio Pua, and Gemma Eugenio, either to take the
1,600 sacks of palay or just photograph the same, and the 9mm caliber pistol, and to
bring the said articles to the custody of the Provincial Director of Isabela at the
Provincial Police Office of Isabela under custodia legis, to be dealt with according to
law.[33]
A description of a place to be searched is sufficient if the officer with the warrant can
ascertain and identify with reasonable effort the place intended, and distinguish it from
other places in the community.[34] A designation that points out the place to be searched
to the exclusion of all others, and on inquiry unerringly leads the peace officers to it,
satisfies the constitutional requirement of definiteness. [35] To the Court's view, the
abovequoted search warrant sufficiently describes the place to be searched with
manifest intention that the search be confined strictly to the place described. At any
rate, petitioners cannot be heard to decry irregularity in the conduct of the search of the
premises of the Felix Gumpal Compound because, as aptly ruled by the RTC, a
Certification of Orderly Search was issued by the barangay officials, and the
presumption of regularity in the performance of public duty was not sufficiently
contradicted by petitioners.

Moreover, the objection as to the particularity of the place to be searched was belatedly
raised in petitioners' motion for reconsideration of the Order denying their Omnibus
Motion to quash. The Court has consistently ruled that the omnibus motion rule under
Section 8, Rule 15[36] is applicable to motion to quash search warrants. [37] In Abuan v.
People,[38] it was held that "the motion to quash the search warrant which the accused
may file shall be governed by the omnibus motion rule, provided, however, that
objections not available, existent or known during the proceedings for the quashal of the
warrant may be raised in the hearing of the motion to suppress." Accordingly, the trial
court could only take cognizance of an issue that was not raised in a motion to quash if
(1) said issue was not available or existent when they filed the motion to quash the
search warrant; or (2) the issue was one involving jurisdiction over the subject matter.
[39]
 Because petitioners' objection as to the particularity of the place to be searched was
available when they filed their omnibus motion to quash, and there being no
jurisdictional issue raised, their objection is deemed waived.

Meanwhile, a search warrant may be said to particularly describe the things to be

seized (1) when the description therein is as specific as the circumstances will ordinarily
allow; or (2) when the description expresses a conclusion of fact - not of law by which
the warrant officer may be guided in making the search and seizure; (3) and when the
things to be described are limited to those which bear direct relation to the offenses for
which the warrant is being issued.[40] The purpose for this requirement is to limit the
articles to be seized only to those particularly described in the search warrant in order to
leave the officers of the law with no discretion regarding what items they shall seize, to
the end that no unreasonable searches and seizures will be committed. [41]

In Vallejo v. Court of Appeals,[42] the Court clarified that technical precision of description

is not required. "It is only necessary that there be reasonable particularity and certainty
as to the identity of the property to be searched for and seized, so that the warrant shall
not be a mere roving commission. Indeed, the law does not require that the things to be
seized must be described in precise and minute detail as to leave no room for doubt on
the part of the searching authorities. If this were the rule, it would be virtually impossible
for the applicants to obtain a warrant as they would not know exactly what kind of things
to look for."[43]

Under American jurisprudence which has persuasive effect in this jurisdiction, the
degree of specificity required in a search warrant's description of the items to be
searched for and seized is flexible and will vary depending on the crime involved and
the types of items sought.[44] A description is said to be valid if it is as specific as the
circumstances and the nature of the activity under investigation will permit. But if the
circumstances make an exact description of the property to be seized a virtual
impossibility, the searching officer can only be expected to describe the generic class of
the items sought. The practical guide to determine whether a specific search warrant
meets the particularity requirement is for the court to inquire if the officer reading the
description in the warrant would reasonably know what items to be seized. [45]

In Search Warrant No. 10-11, only two things were particularly described and sought to
be seized in connection with the special complex crime of kidnapping with murder,
namely: (1) blood-stained clothes of Gemma Eugenio consisting of a faded pink long
sleeves jacket and a black tshirt, and (2) a 0.9mm caliber pistol. Having no direct
relation to the said crime, the 1,600 sacks of palay that were supposedly sold by the
victims to Dimal and found in his warehouse, cannot be a proper subject of a search
warrant because they do not fall under the personal properties stated under Section 3 of
Rule 126, to wit: (a) subject of the offense; (b) stolen or embezzled and other proceeds
or fruits of the offense; or (c) those used or intended to be used as the means of
committing an offense, can be the proper subject of a search warrant.

In fine, the CA committed no reversible error in upholding the denial of the Omnibus
Motion to quash because all the Constitutional [46] and procedural[47] requisites for the
issuance of a search warrant are still present, namely: (1) probable cause; (2) such
probable cause must be detennined personally by the judge; (3) the judge must
examine, in writing and under oath or affirmation, the complainant and the witnesses he
or she may produce; (4) the applicant and the witnesses testify on the facts personally
known to them; and (5) the warrant specifically describes the place to be searched and
the things to be seized.[48]
Despite the fact that the issuance of Search Warrant No. 10-11 is valid, petitioners are
correct that most items listed in the Return on the Search Warrant are inadmissible in
evidence. Since only 2 items were particularly described on the face of the search
warrant, namely: (1) the blood-stained clothes of Gemma Eugenio consisting of faded
pink long sleeves jacket and black t-shirt; and (2) the 0.9mm caliber pistol, the Court
declares that only two articles under the Return on the Search Warrant are admissible
in evidence as they could be the blood-stained clothes of Gemma subject of the
warrant:
c. One (1) Black T-Shirt with suspected blood stain (Mark as E-26 with JAM markings)

d. One (1) Black T-Shirt with red lining with suspected blood stain (Mark as E-15 with
JAM markings)
It bears stressing that the application for search warrant particularly described the
victims' blood-stained clothes as follows: (1) Rosemarie Pua's green inner garment with
black blazer and brownish pedal pants; (2) Lucio Pua's black shorts and pink polo shirt;
and (3) Gemma Eugenio's maong pants, faded pink long sleeves jacket, and black
striped t-shirt. Considering that only Gemma's clothes were described in Search
Warrant No. 10-11 as specific as the circumstances will allow, the Court is constrained
to hold as inadequately described the blood-stained clothes of Lucio and Rosemarie.
Without the aid of the applicant's witnesses who are familiar with the victims' personal
belongings, any other warrant officer, like P/Insp. Macadangdang who served the
search warrant, will surely be unable to identify the blood-stained clothes of Lucio and
Rosemarie by sheer reliance on the face of such warrant.

The Court could have rendered a favorable ruling if the application for search warrant
and supporting affidavits were incorporated by reference in Search Warrant No. 10-11,
so as to enable the warrant officer to identify the specific clothes sought to be searched.
This is because under American jurispru ence, an otherwise overbroad warrant will
comply with the particularity requirement when the affidavit filed in support of the
warrant is physically attached to it, and the warrant expressly refers to the affidavit and
incorporates it with suitable words of reference. Conversely, a warrant which lacks any
description of the items to be seized is defective and is not cured by a description in the
warrant application which is not referenced in the warrant and not provided to the
subject of the search.[49]

The Court further declares that the following items are inadmissible as they do not bear
any direct relation to the 3 items particularly described in Search Warrant No. 10-11:
a. Extracted suspected Blood stain (Mark as E-24 with JAM markings)

b. Extracted suspected Blood stain (Mark as E-25 with JAM markings)

xxxx

e. One (1) Bra color brown (tiger) (Mark as E-14 with JAM markings)

f. One (1) cell phone spare part (mark as E-16 with JAM markings)
g. One (1) cell phone spare part (mark as E-17 with JAM markings)

h. Palay husk with suspected blood stain (mark as E-28 with JAM markings)

i. Suspected blood stain (mark as E-25-A with JAM markings)

With respect to the items under Return on the Search Warrant indicated as "articles
recovered/seized in plain view during the conduct of the search," it is well settled that
objects falling in plain view of an officer who has a right to be in a position to have that
view are subject to seizure even without a search warrant and may be introduced in
evidence.[50]

For the "plain view doctrine" to apply, it is required that the following requisites are
present: (a) the law enforcement officer in search of the evidence has a prior
justification for an intrusion or is in a position from which he can view a particular area;
(b) the discovery of evidence in plain view is inadvertent; and (c) it is immediately
apparent to the officer that the item he observes may be evidence of a crime,
contraband or otherwise subject to seizure. [51] As explained in People v. Salanguit:[52]
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 carne 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 a 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.
The first requisite of the "plain view doctrine" is present in this case because the seizing
officer, P/Insp. Macadangdang, has a prior justification for an intrusion into the premises
of the Felix Gumpal Compound, for he had to conduct the search pursuant to a valid
warrant. However, the second and third requisites are absent, as there is nothing in the
records to prove that the other items not particularly described in the search warrant
were open to eye and hand, and that their discovery was unintentional.

In fact, out of the 2 items particularly described in the search warrant, only the 2 black t-
shirts with suspected blood stain possibly belonging to Gemma were retrieved, but the
9mm caliber pistol was not found. It is also not clear in this case at what instance were
the items supposedly seized in plain view were confiscated in relation to the seizure of
Gemma's bloodstained clothes - whether prior to, contemporaneous with or subsequent
to such seizure. Bearing in mind that once the valid portion of the search warrant has
been executed, the "plain view doctrine" can no longer provide any basis for admitting
the other items subsequently found,[53] the Court rules that the recovery of the items
seized in plain view, which could have been made after the seizure of Gemma's clothes,
are invalid.
It is also not immediately apparent to the officer that, except for the Alien Certificates of
Registration of Lucio and Rosemarie, the BDO Passbook in the name of Lucio, and the
live ammo of caliber 22 (marked as E-29 with JAM markings), the following items may
be evidence of a crime, contraband or otherwise subject to seizure:
a. One (1) pc torn cloth (Mark as E-1 with JAM markings)
b. One (1) pc torn cloth (Mark as E-2 with JAM markings)
c. One (1) pc torn cloth (Mark as E-3 with JAM markings)
d. One (1) pc spent shell of caliber 22 (Mark as E-4 with JAM markings)
e. One (1) bag pack color black (Mark as E-5 with JAM markings)
f. One spent shell of caliber 22 (Mark as E-6 with JAM markings)
g. One spent shell of caliber 22 (Mark as E-7 with JAM markings)
h. One spent shell of caliber 22 (Mark as E-8 with JAM markings)
i. One spent shell of caliber 22 (Mark as E-9 with JAM markings)
j. One spent shell of caliber 22 (Mark as E-10 with JAM markings)
k. One spent shell of caliber 22 (Mark as E-11 with JAM markings)
l. One spent shell of caliber 22 (Mark as E-12 with JAM markings)
m. One spent shell of caliber 22 (Mark as E-13 with JAM markings)
xxxx
o. One spent shell of caliber 22 (Mark as 18 with JAM markings)
p. One (1) piece gold-plated earring (mark as E-19 with JAM markings)
q. Suspected human hair (mark as E-20 with JAM markings)
r. A piece of embroider[ed] cloth (mark as E-22 with JAM markings)
s. Three (3) burned Tire wires (mark as E-23 with JAM markings)
t. One (1) empty plastic bottle of Gleam muriatic acid (mark as E-27 with JAM markings)
xxxx
v. One (1) color white t-shirt (mark as E-30 with JAM markings)
It bears emphasis that the "immediately apparent" test does not require an unduly high
degree of certainty as to the incriminating character of the evidence, but only that the
seizure be presumptively reasonable, assuming that there is a probable cause to
associate the property with a criminal activity.[54] In view thereof, the 10 pieces of spent
shell of calibre 0.22 ammo cannot be admitted in evidence because they can hardly be
used in a 9mm caliber pistol specified in the search warrant, and possession of such
spent shells are not illegal per se. Likewise, the following items supposedly seized
under plain view cannot be admitted because possession thereof is not inherently
unlawful: (a) 3 torn cloths; (b) black bag pack; (c) a piece of goldplated earing; (d) a
suspected human hair; (e) a piece of embroidered cloth; (f) 3 burned tire wires; (g)
empty plastic of muriatic acid; and (h) white t-shirt.

Notwithstanding the inadmissibility in evidence of the items listed above, the Court
sustains the validity of Search Warrant No. 10-11 and the admissibility of the items
seized which were particularly described in the warrant. This is in line with the principles
under American jurisprudence: (1) that the seizure of goods not described in the warrant
does not render the whole seizure illegal, and the seizure is illegal only as to those
things which was unlawful to seize; and (2) the fact that the officers, after making a legal
search and seizure under the warrant, illegally made a search and seizure of other
property not within the warrant does not invalidate the first search and seizure. [55] To be
sure, a search warrant is not a sweeping authority empowering a raiding party to
undertake a fishing expedition to confiscate any and all kinds of evidence or articles
relating to a crime.[56] Objects taken which were not specified in the search warrant
should be restored[57] to the person from whom they were unlawfully seized.

Although the Alien Certificates of Registration of Lucio and Rosemarie and the BDO
Passbook in the name of Lucio are inadmissible in evidence, for not having been seized
in accordance with the "plain view doctrine," these personal belongings should be
returned to the heirs of the respective victims. Anent the live ammo of caliber 0.22
(marked as E-29 with JAM markings), which could not have been used in a 0.9mm
caliber pistol, the same shall remain in custodia legis pending the outcome of a criminal
case that may be later filed against petitioner Dimal. In Alih v. Castro,[58] it was held that
even if the search of petitioners' premises was violative of the Constitution and the
firearms and ammunition taken therefrom are inadmissible in evidence, pending
determination of the legality of said articles they can be ordered to remain in custodia
legis subject to appropriate disposition as the corresponding court may direct in the
criminal proceedings that have been or may thereafter be filed against petitioners.

WHEREFORE, premises considered, the petition for review on certiorari is PARTLY

GRANTED. The Court of Appeals Decision dated August 27, 2014 in CA-G.R. SP No.
128355 is AFFIRMED with MODIFICATION to declare that the following properties
seized under Search Warrant No. 10-11 are inadmissible in evidence for neither having
been particularly described in the search warrant nor seized under the "plain view
doctrine":
1. Extracted suspected Blood stain (Marked as E-24 with JAM markings)
2. Extracted suspected Blood stain (Marked as E-25 with JAM markings)
3. One (1) Bra color brown (tiger) (Marked as E-14 with JAM markings)
4. One (1) cell phone spare part (marked as E-16 with JAM markings)
5. One (1) cell phone spare part (marked as E-17 with JAM markings)
6. Palay husk with suspected blood stain (marked as E-28 with JAM markings)
7. Suspected blood stain (marked as E-25-A with JAM markings)
8. One (1) pc torn cloth (Marked as E-1 with JAM markings)
9. One (1) pc torn cloth (Marked as E-2 with JAM markings)
10. One (1) pc torn cloth (Marked as E-3 with JAM markings)
11. One (1) pc spent shell of caliber 22 (Marked as E-4 with JAM markings)
12. One (1) bag pack color black (Marked as E-5 with JAM markings)
13. One spent shell of caliber 22 (Marked as E-6 with JAM markings)
14. One spent shell of caliber 22 (Marked as E-7 with JAM markings)
15. One spent shell of caliber 22 (Marked as E-8 with JAM markings)
16. One spent shell of caliber 22 (Marked as E-9 with JAM markings)
17. One spent shell of caliber 22 (Marked as E-10 with JAM markings)
18. One spent shell of caliber 22 (Marked as E-11 with JAM markings)
19. One spent shell of caliber 22 (Marked as E-12 with JAM markings)
20. One spent shell of caliber 22 (Marked as E-13 with JAM markings)
21. Two (2) Alien Certificate of Registration of Lucio Pua and Rosemarie Pua, and One
(1) BDO Passbook in the name of Lucio Pua (mark as E-15 with JAM markings)
22. One spent shell of caliber 22 (Marked as E-18 with JAM markings)
23. One (1) piece gold-plated earring (marked as E-19 with JAM markings)
24. Suspected human hair (marked as E-20 with JAM markings)
25 A piece of embroider[ed] cloth (marked as E-22 with JAM markings)
26. Three (3) burned Tire wires (marked as E-23 with JAM markings)
27. One (1) empty plastic bottle of Gleam muriatic acid (marked as E-27 with JAM
markings)
28. One (1) live ammo of caliber 22 (marked as E-29 with JAM markings)
29. One (1) color white t-shirt (marked as E-30 with JAM markings)
Moreover, the two (2) Alien Certificates of Registration of Lucio Pua and Rosemarie
Pua, and One (1) BOO Passbook in the name of Lucio Pua are directed to be returned
to the respective heirs of said victims, while the live ammo of caliber 0.22 (marked as E-
29 with JAM markings) shall remain in custodia legis pending the outcome of the
criminal case that may be filed against petitioner Jaylord Dimal.

SO ORDERED.

Carpio,* Acting C. J., (Chairperson), Perlas-Bernabe, Caguioa, and Reyes, Jr., JJ.,

concur.
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, V. BILLY
ACOSTA, ACCUSED-APPELLANT.

DECISION
PERLAS-BERNABE, J.:
Assailed in this ordinary appeal[1] is the Decision[2] dated February 2018 of the Court of
Appeals (CA) in CA-G.R. CR-HC No. 01612-MIN, which affirmed the Judgment [3] dated
February 7, 2017 of the Regional Trial Court of Gingoog City, Branch 43 (RTC) in Crim.
Case No. 2015-6192, finding accused-appellant Billy Acosta (Acosta) guilty beyond
reasonable doubt of violating Section 16, Article II of Republic Act No. (RA) 9165,
[4]
 otherwise known as the "Comprehensive Dangerous Drugs Act of 2002."
The Facts
This case stemmed from an Information[5] filed before the RTC accusing Acosta of the
crime of Illegal Planting and Cultivation of Marijuana Plant, defined and penalized under
Section 16, Article II of RA 9165. The prosecution alleged that at around seven (7)
o'clock in the morning of September 10, 2015 in Purok 2, Barangay San Juan, Gingoog
City, Alfredo Salucana (Salucana) went to the Gingoog City Police Station to report a
mauling incident where Acosta purportedly hit him with a piece of wood. He also
reported that Acosta was illegally planting marijuana. Salucana's foregoing reports
prompted Police Inspector Ismael Virgil O. Gundaya (P/Insp. Gundaya), Senior Police
Officer 4 Henry B. Legaspi (SPO4 Legaspi), Senior Police Officer 2 Jan Jomen (SPO2
Jomen), and Police Officer 3 Leo Pontillas (PO3 Pontillas) to proceed to Acosta's home
in Purok 2, Barangay San Juan, Gingoog City. Thereat, Salucana positively identified
Acosta who was then walking on the trail leading towards his house. The police officers
then rushed towards Acosta and arrested him before he entered his home. After the
arrest, SPO4 Legaspi found thirteen (13) hills of suspected marijuana plants planted
beneath the "gabi" plants just outside Acosta's home, and around a meter away from
where he was arrested. Upon seeing the marijuana, SPO4 immediately called Barangay
Captain Rodulfo Maturan (Brgy. Captain Maturan), Barangay Kagawad Danilo Macaraig
(Brgy. Kagawad Macaraig), and Mrs, Joyce Donguines (Mrs. Donguines) of the
Farmer's Association, to witness the uprooting of the suspected marijuana plants.
Thereafter, they brought Acosta and the uprooted marijuana plants to the police station
for the marking and inventory of the seized items. At the police station, the suspected
marijuana plants were marked and inventoried in the presence of Acosta, Brgy. Captain
Maturan, and Mrs. Donguines. SPO4 Legaspi then delivered the seized items to Police
Chief Inspector Joseph T. Esber (PCI Esber) of the Philippine National Police (PNP)
Regional Crime Laboratory where, after examination, [6] the plants tested positive for
marijuana, a dangerous drug. PCI Esber then turned over the specimens to the
Evidence Custodian.[7]
In defense, Acosta denied the charges against him and maintained that the accusations
hurled against him were all fabricated. [8] He likewise argued that the seized marijuana
plants are inadmissible in evidence as the "plain view" doctrine is not applicable.
[9]
 Acosta argued that the discovery was not inadvertent because it was Salucana who
pointed out the marijuana plants to the police. [10] Furthermore, there was a violation of
Section 21, Article II of RA 9165 since there was no proof of the photography of the
marking and inventory of the seized marijuana plants. [11]
In a Judgment[12] dated February 7, 2017, the RTC found Acosta guilty beyond
reasonable doubt of the crime charged, and accordingly, sentenced him to suffer the
penalty of life imprisonment, and to pay a fine in the amount of P500,000.00. [13] The
RTC held that the marijuana plants were inadvertently found in plain view by the police
officers during a lawful arrest. It also found that the prosecution, through testimonial and
documentary evidence, had established beyond reasonable doubt that Acosta indeed
illegally planted and cultivated thirteen (13) hills of marijuana plants at his residence.
Likewise, the RTC held that the identity, integrity, and evidentiary value of the illegal
marijuana plants were duly preserved as the chain of custody was proved by the
prosecution. The RTC found Acosta's defense of denial unavailing, as it cannot prevail
over the positive testimony of prosecution's witnesses. [14] Aggrieved, Acosta
appealed[15] to the CA.
In a Decision[16] dated February 22, 2018, the CA affirmed the RTC ruling. [17] It held that
the requirements of the "plain view" doctrine were complied with in that the police
officers: (a) had prior justification to be in the area in order to apprehend Acosta for the
mauling incident; (b) did not purposefully search for the marijuana plants but came
across them inadvertently in the course of the arrest as they were in their line of sight;
and (c) were able to recognize the marijuana plants owing to their different foliar
characteristics from the "gabi" plants. The CA likewise found that the prosecution
sufficiently established beyond reasonable doubt all the elements of the crime charged
against Acosta, and all the links constituting the chain of custody. [18]
Hence, this appeal seeking that Acosta's conviction be overturned.

The Court's Ruling

The appeal is meritorious.

At the outset, it must be stressed that in criminal cases, an appeal throws the entire
case wide open for review and the reviewing tribunal can correct errors, though
unassigned in the appealed judgment, or even reverse the trial court's decision based
on grounds other than those that the parties raised as errors. The appeal confers the
appellate court full jurisdiction over the case and renders such court competent to
examine records, revise the judgment appealed from, increase the penalty, and cite the
proper provision of the penal law.[19]
Section 2,[20] Article III of the 1987 Constitution mandates that a search and seizure
must be carried out through or on the strength of a judicial warrant predicated upon the
existence of probable cause, absent which, such search and seizure become
"unreasonable" within the meaning of said constitutional provision. To protect the
people from unreasonable searches and seizures, Section 3 (2), [21] Article III of the 1987
Constitution provides that evidence obtained from unreasonable searches and seizures
shall be inadmissible in evidence for any purpose in any proceeding. In other words,
evidence obtained and confiscated on the occasion of such unreasonable searches and
seizures are deemed tainted and should be excluded for being the proverbial fruit of a
poisonous tree.[22]
One of the recognized exceptions to the need of a warrant before a search may be
effected is when the "plain view" doctrine is applicable. In People v. Lagman,[23] this
Court laid down the following parameters for its application":
Objects falling in plain view of an officer who has a right to be in a position to have that
view are subject to seizure even without a search warrant and may be introduced in
evidence. The 'plain view' doctrine applies when the following requisites concur: (a) the
law enforcement officer in search of the evidence has a prior justification for an intrusion
or is in a position from which he can view a particular area; (b) the discovery of
evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that
the item he observes may be evidence of a crime, contraband or otherwise subject to
seizure. The law enforcement officer must lawfully make an initial intrusion or properly
be in a position from which he can particularly view the area. In the course of such
lawful intrusion, he came inadvertently across a piece of evidence incriminating the
accused. The object must be open to eye and hand and its discovery inadvertent.
[24]
 (Emphases supplied)
In this case, the first and third requisites were not seriously contested by Acosta.
Instead, he argues that the second requisite is absent since the discovery of the police
officers of the marijuana plants was not inadvertent as it was prompted by Salucana.
After a careful review of the records, this Court is inclined to agree.

The testimonies of P/Insp. Gundaya, SPO4 Legaspi, and Salucana collectively paint the
picture that the police officers proceeded with the arrest of Acosta for the mauling
incident armed with prior knowledge that he was also illegally planting marijuana:

Direct Examination
[Assistant City Prosecutor Alfredo Z. Gomez (ACP Gomez)]: Why did you know that
marijuana plants are owned and planted by the accused Billy Acosta?
[P/Insp. Gundaya]: It was disclosed to us by his foster father Alfredo Salucana that
Billy Acosta is cultivating marijuana plants.[25] (Emphasis supplied)
Direct Examination
[ACP Gomez]: If you know who was the one who planted those marijuana plants?
[SPO4 Legaspi]: I do not have personal knowledge considering that we did not see the
accused in this case cultivate the plants. However, we just have been in [sic] fed of
the information by Alfredo Salucana that it was Billy Acosta who cultivated that
plants.[26] (Emphasis supplied)
Direct Examination
[Court]: And that was the only time that you resort to report the incident to the police
because he hurt you?
[Salucana]: Yes, Sir.
Q: At that time you reported the matter to the police you also told the police that
Billy Acosta was planting marijuana?
A: Yes, Sir.
Q: That is why they went with you because of that report because he planted
marijuana and he struck you with a piece of wood?
A: Yes, Sir.
xxxx

ACP Gomez: (continuing) Would you know of any reason why Billy Acosta would strike
you with a wood?
[Salucana]: Because of the marijuana that I was able to pass.
xxxx

Q: Did you ever call the attention of Billy Acosta about the marijuana plants you testified
to?
A: I told him that planting the marijuana plants is against the law.
Q: What was his response?
A: He told me that he will change when he will be imprisoned. [27] (Emphases supplied)
It is clear from Salucana's testimony that he knew of Acosta's illegal activities even prior
to the mauling incident. In fact, it may be reasonably inferred that the mauling incident
had something to do with Acosta's planting of marijuana. It is also clear that Salucana
apprised the police officers of the illegal planting and cultivation of the marijuana plants
when he reported the mauling incident. Thus, when the police officers proceeded to
Acosta's abode, they were already alerted to the fact that there could possibly be
marijuana plants in the area. This belies the argument that the discovery of the plants
was inadvertent. In People v. Valdez,[28] the Court held that the "plain view" doctrine
cannot apply if the officers are actually "searching" for evidence against the accused, to
wit:
Note further that the police team was dispatched to appellant's kaingin precisely to
search for and uproot the prohibited flora. The seizure of evidence in "plain view"
applies only where the police officer is not searching for evidence against the
accused, but inadvertently comes across an incriminating object. Clearly, their
discovery of the cannabis plants was not inadvertent. We also note the testimony of
SPO2 Tipay that upon arriving at the area, they first had to "look around the area"
before they could spot the illegal plants. Patently, the seized marijuana plants were
not "immediately apparent" and a "further search" was needed. In sum, the
marijuana plants in question were not in "plain view" or "open to eye and hand." The
"plain view" doctrine, thus, cannot be made to apply. [29] (Emphases supplied)
Verily, it could not be gainsaid that the discovery was inadvertent when the police
officers already knew that there could be marijuana plants in the area. Armed with such
knowledge, they would naturally be more circumspect in their observations. In effect,
they proceeded to Acosta's abode, not only to arrest him for the mauling incident, but
also to verify Salucana's report that Acosta was illegally planting marijuana. Thus, the
second requisite for the "plain view" doctrine is absent. Considering that the "plain view"
doctrine is inapplicable to the present case, the seized marijuana plants are
inadmissible in evidence against Acosta for being fruits of the poisonous tree. [30]
All told, since the marijuana plants seized from Acosta constitute inadmissible evidence
in violation of Section 3 (2), Article III of the 1987 Constitution, and given that the
confiscated plants are the very corpus delicti of the crime charged, the Court finds
Acosta's conviction to be improper and therefore, acquits him.

WHEREFORE, the appeal is GRANTED. The Decision dated February 22, 2018 of the
Court of Appeals in CA-G.R. CR-H.C. No. 01612-MIN is hereby REVERSED and SET
ASIDE. Accordingly, accused-appellant Billy Acosta is ACQUITTED of the crime
charged. The Director of the Bureau of Corrections is ordered to cause his immediate
release, unless he is being lawfully held in custody for any other reason.
SO ORDERED.
Carpio, Senior Associate Justice (Chairperson), Caguioa, J. Reyes, Jr., and Hernando,
[*]
 JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 81567 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL,

ROLANDO DURAL and RENATO VILLANUEVA, MANOLITA O. UMIL and NICANOR
P. DURAL, FELICITAS V. SESE, petitioners,
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO,
BRIG. GEN. ALEXANDER AGUIRRE, respondents.

G.R. Nos. 84581-82 October 3, 1991

AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,
vs.
GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents.

G.R. Nos. 84583-84 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO

T. ANONUEVO and RAMON CASIPLE: DOMINGO T. ANONUEVO and RAMON
CASIPLE, petitioners,
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARIÑO,
LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN,
and Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon
City, respondents.

G.R. No. 83162 October 3, 1991

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A.

OCAYA AND DANNY RIVERA: VIRGILIO A. OCAYA, petitioners,
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR
MARIANO, respondents.

G.R. No. 85727 October 3, 1991

IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF DEOGRACIAS

ESPIRITU, petitioner,
vs.
BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents.

G.R. No. 86332 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B.

NAZARENO: ALFREDO NAZARENO,petitioner,
vs.
THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION,
Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE,
P/SGT. LEVI SOLEDAD, and P/SGT. MALTRO AROJADO, respondents.

Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No. 83162.

Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82

Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84.

Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727.

The Solicitor General for the respondents.

RESOLUTION

PER CURIAM:p

Before the Court are separate motions filed by the petitioners in the above-entitled
petitions, seeking reconsideration of the Court's decision promulgated on 9 July 1990
(the decision, for brevity) which dismissed the petitions, with the following dispositive
part:

WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No.
85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby
ordered reduced from P60,000.00 to P10,000.00. No costs.

The Court avails of this opportunity to clarify its ruling a begins with the statement that
the decision did not rule — as many misunderstood it to do — that mere suspicion that
one is Communist Party or New People's Army member is a valid ground for his arrest
without warrant. Moreover, the decision merely applied long existing laws to the factual
situations obtaining in the several petitions. Among these laws are th outlawing the
Communist Party of the Philippines (CPP) similar organizations and penalizing
membership therein be dealt with shortly). It is elementary, in this connection, if these
laws no longer reflect the thinking or sentiment of the people, it is Congress as the
elected representative of the people — not the Court — that should repeal, change or
modify them.

In their separate motions for reconsideration, petitioners, in sum, maintain:

1. That the assailed decision, in upholding the validity of the questioned arrests
made without warrant, and in relying on the provisions of the Rules of Court,
particularly Section 5 of Rule 113 (Arrest), disregards the fact that such arrests
violated the constitutional rights of the persons arrested;

2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2 should be abandoned;

3. That the decision erred in considering the admissions made by the persons arrested as to their membership in the Communist Party of
the Philippines/New People's Army, and their ownership of the unlicensed firearms, ammunitions and subversive documents found in their
possession at the time of arrest, inasmuch as those confessions do not comply with the requirements on admissibility of extrajudicial
admissions;

4. That the assailed decision is based on a misappreciation of facts;

 5. That G.R. No. 81567 (the Umil case) should not be deemed moot and academic.

We find no merit in the motions for reconsideration.

It can not be overlooked that these are petitions for the issuance of the writ of habeas corpus, filed by petitioners under the Rules of Court. 3
 The
writ of habeas corpus exists as a speedy and effective remedy to relieve persons
from unlawful restraint. 4 Therefore, the function of the special proceedings of habeas
corpus is to inquire into the legality of one's detention, 5 so that if detention is illegal, the detainee may be
ordered forthwit released.

In the petitions at bar, to ascertain whether the detention petitioners was illegal or not, the Court before rendering decision dated 9 July 1990, looked
into whether their questioned arrests without warrant were made in accordance with law. For, if the arrests were made in accordance with law, would
follow that the detention resulting from such arrests also in accordance with law.

There can be no dispute that, as a general rule, no peace officer or person has the power or authority to arrest anyo without a warrant of arrest, except
in those cases express authorized by law. 6
 The law expressly allowing arrests witho warrant is found in
Section 5, Rule 113 of the Rules of Court which states the grounds upon which a valid
arrest, without warrant, can be conducted.

In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b)
of the said Rule 113, which read:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private

person may, without a warrant, arrest a person:

(a) When, in his presence, the person to he arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrest has committed it; and

. . . (Emphasis supplied).

The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No.
81567) without warrant is justified it can be said that, within the contemplation
of Section 5 Rule 113, he (Dural) was committing an offense, when arrested because
Dural was arrested for being a member of the New People's Army, an outlawed
organization, where membership penalized, 7 and for subversion which, like rebellion is,
under the doctrine of Garcia vs. Enrile, 8 a continuing offense, thus:

The crimes of insurrection or rebellion, subversion, conspiracy or proposal to

commit such crimes, and other crimes and offenses committed in the furtherance
(sic) on the occasion thereof, or incident thereto, or in connection therewith under
Presidential Proclamation No. 2045, are all in the nature of continuing offenses
which set them apart from the common offenses, aside from their essentially
involving a massive conspiracy of nationwide magnitude. . . .

Given the ideological content of membership in the CPP/NPA which includes armed
struggle for the overthrow of organized government, Dural did not cease to be, or
became less of a subversive, FOR PURPOSES OF ARREST, simply because he was,
at the time of arrest, confined in the St. Agnes Hospital. Dural was identified as one of
several persons who the day before his arrest, without warrant, at the St. Agnes
Hospital, had shot two (2) CAPCOM policemen in their patrol car. That Dural had shot
the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA
member) did not end there and then. Dural, given another opportunity, would have shot
or would shoot other policemen anywhere as agents or representatives of organized
government. It is in this sense that subversion like rebellion (or insurrection) is
perceived here as a continuing offense. Unlike other so-called "common" offenses, i.e.
adultery, murder, arson, etc., which generally end upon their commission, subversion
and rebellion are anchored on an ideological base which compels the repetition of the
same acts of lawlessness and violence until the overriding objective of overthrowing
organized government is attained.

Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting
officers of his membership in the CPP/NPA. His arrest was based on "probable cause,"
as supported by actual facts that will be shown hereafter.

Viewed from another but related perspective, it may also be said, under the facts of the
Umil case, that the arrest of Dural falls under Section 5, paragraph (b), Rule 113 of the
Rules of Court, which requires two (2) conditions for a valid arrestt without warrant: first,
that the person to be arrested has just committed an offense, and second, that the
arresting peace officer or private person has personal knowledge of facts indicating that
the person to be arrested is the one who committed the offense. Section 5(b), Rule 113,
it will be noted, refers to arrests without warrant, based on "personal knowledge of
facts" acquired by the arresting officer or private person.

It has been ruled that "personal knowledge of facts," in arrests without warrant must be
based upon probable cause, which means an actual belief or reasonable grounds of
suspicion 9
The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is
probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested. 10
 A reasonable suspicion therefore must be founded on
probable cause, coupled with good faith on the part of the peace officers making the
arrest. 11

These requisites were complied with in the Umil case and in the other cases at bar.

In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St. Agnes Hospital, Roosevelt Avenue, Quezon City, to
verify a confidential information which was received by their office, about a "sparrow man" (NPA member) who had been admitted to the said hospital
with a gunshot wound; that the information further disclosed that the wounded man in the said hospital was among the five (5) male "sparrows" who
murdered two (2) Capcom mobile patrols the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump along Macanining St.,
Bagong Barrio, Caloocan City; that based on the same information, the wounded man's name was listed by the hospital management as "Ronnie
Javellon," twenty-two (22) years old of Block 10, Lot 4, South City Homes, Biñan, Laguna. 12

Said confidential information received by the arresting officers, to the effect that an NPA member ("sparrow unit") was being treated for a gunshot wound
in the named hospital, is deemed reasonable and with cause as it was based on actual facts and supported by circumstances sufficient to engender a
belief that an NPA member was truly in the said hospital. The actual facts supported by circumstances are:  first — the day before, or on 31 January
1988, two (2) CAPCOM soldiers were actually killed in Bagong Bario, Caloocan City by five (5) "sparrows" including Dural; second — a wounded person
listed in the hospital records as "Ronnie Javellon" was actually then being treated in St. Agnes Hospital for a gunshot wound; third — as the records of
this case disclosed later, "Ronnie Javellon" and his address entered in the hospital records were fictitious and the wounded man was in reality Rolando
Dural.

In fine, the confidential information received by the arresting officers merited their immediate attention and action and, in fact, it was found to be true.
Even the petitioners in their motion for reconsideration, 13
 believe that the confidential information of the
arresting officers to the effect that Dural was then being treated in St. Agnes Hospital
was actually received from the attending doctor and hospital management in
compliance with the directives of the law, 14 and, therefore, came from reliable sources.

As to the condition that "probable cause" must also be coupled with acts done in good
faith by the officers who make the arrest, the Court notes that the peace officers wno
arrested Dural are deemed to have conducted the same in good faith, considering that
law enforcers are presumed to regularly perform their official duties. The records show
that the arresting officers did not appear to have been ill-motivated in arresting
Dural. 15 It is therefore clear that the arrest, without warrant, of Dural was made in
compliance with the requirements of paragraphs (a) and (b) of Section 5, Rule 113.

Parenthetically, it should be mentioned here that a few day after Dural's arrest, without
warrant, an information charging double murder with assault against agents of persons
in authority was filed against Dural in the Regional Trial Court of Caloocan City
(Criminal Case No. C-30112). He was thus promptly placed under judicial custody (as
distinguished fro custody of the arresting officers). On 31 August 1988, he wa convicted
of the crime charged and sentenced to reclusion perpetua. The judgment of conviction
is now on appeal before this Court in G.R. No. 84921.

As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo

Anonuevo and Ramon Casiple (G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No.
83162), their arrests, without warrant, are also justified. They were searched pursuant to
search warrants issued by a court of law and were found wit unlicensed firearms,
explosives and/or ammunition in their persons. They were, therefore, caught
in flagrante delicto which justified their outright arrests without warrant, under Sec 5(a),
Rule 113, Rules of Court. Parenthetically, it should be mentioned here that a few davs
after their arrests without warrant, informations were filed in court against said
petitioners, thereby placing them within judicial custody and disposition. Furthermore,
Buenaobra mooted his own petition fo habeas corpus by announcing to this Court
during the hearing of these petitions that he had chosen to remain in detention in the
custody of the authorities.

More specifically, the antecedent facts in the "in flagrante" cases are:

1. On 27 June 1988, the military agents received information imparted by a

former NPA about the operations of the CPP and NPA in Metro Manila and that a
certain house occupied by one Renato Constantine, located in the Villaluz
Compound, Molave St., Marikina Heights, Marikina, Metro Manila was being
used as their safehouse; that in view of this information, the said house was
placed under military surveillance and on 12 August 1988, pursuant to a search
warrant duly issued by court, a search of the house was conducted; that when
Renato Constantine was then confronted he could not produce any permit to
possess the firearms, ammunitions, radio and other communications equipment,
and he admitted that he was a ranking member of the CPP. 16

2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato Constantino in the evening of 12 August 1988, and admitted that he
was an NPA courier and he had with him letters to Renato Constantine and other members of the rebel group.

3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest of Buenaobra who had in his possession papers leading
to the whereabouts of Roque; 17 that, at the time of her arrest, the military agents found subversive documents and live ammunitions, and
she admitted then that the documents belonged to her. 18

4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without warrant on 13 August 1988, when they arrived at the said
house of Renato Constantine in the evening of said date; that when the agents frisked them, subversive documents, and loaded guns were
found in the latter's possession but failing to show a permit to possess them. 19
 5. With regard to Vicky Ocaya, she was arrested, without warrant when she arrived (on 12 May 1988) at the premises ofthe house of one
Benito Tiamzon who was believed to be the head of the CPP/NPA, and whose house was subject of a search warrant duly issued by the
court. At the time of her arrest without warrant the agents of the PC-Intelligence and Investigation found ammunitions and subversive
documents in the car of Ocaya. 20

It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the reason which compelled the military agents to make
the arrests without warrant was the information given to the military authorities that two (2) safehouses (one occupied by Renato Constantine and the
other by Benito Tiamzon) were being used by the CPP/NPA for their operations, with information as to their exact location and the names of Renato
Constantine and Benito Tiamzon as residents or occupants thereof.

And at the time of the actual arrests, the following circumstances surrounded said arrests (of Roque, Buenaobra, Anonuevo and Casiple),
which confirmed the belief of the military agents that the information they had received was true and the persons to be arrested were probably guilty of
the commission of certain crimes:  first: search warrant was duly issued to effect the search of the Constantine safehouse; second: found in the
safehouse was a person named Renato Constantine, who admitted that he was a ranking member of the CPP, and found in his possession were
unlicensed firearms and communications equipment; third: at the time of their arrests, in their possession were unlicensed firearms, ammunitions and/or
subversive documents, and they admitted ownership thereof as well as their membership in the CPP/NPA. And then, shortly after their arrests, they
were positively identified by their former comrades in the organization as CPP/NPA members. In view of these circumstances, the corresponding
informations were filed in court against said arrested persons. The records also show that, as in the case of Dural, the arrests without warrant made by
the military agents in the Constantino safehouse and later in the Amelia Roque house, do not appear to have been ill-motivated or irregularly performed.

With all these facts and circumstances existing before, during and after the arrest of the afore-named persons (Dural, Buenaobra, Roque, Anonuevo,
Casiple and Ocaya), no prudent an can say that it would have been better for the military agents not to have acted at all and made any arrest. That
would have been an unpardonable neglect of official duty and a cause for disciplinary action against the peace officers involved.

For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the hands of executive and judicial authorities upon whom
devolves the duty to investigate the acts constituting the alleged violation of law and to prosecute and secure the punishment therefor. 21
 An
arrest is therefore in the nature of an administrative measure. The power to arrest
without warrant is without limitation as long as the requirements of Section 5, Rule 113
are met. This rule is founded on an overwhelming public interest in peace and order in
our communities.

In ascertaining whether the arrest without warrant is conducted in accordance with the
conditions set forth in Section 5, Rule 113, this Court determines not whether the
persons arrested are indeed guilty of committing the crime for which they were
arrested. 22 Not evidence of guilt, but "probable cause" is the reason that can validly
compel the peace officers, in the performance of their duties and in the interest of public
order, to conduct an arrest without warrant. 23
The courts should not expect of law-enforcers more than what the law requires of them. Under the conditions set forth in Section 5, Rule 113,
particularly paragraph (b) thereof, even if the arrested persons are later found to be innocent and acquitted, the arresting officers are not
liable. 24
 But if they do not strictly comply with the said conditions, the arresting officers can
be held liable for the crime of arbitrary detention, 25 for damages under Article 32 of the
Civil Code 26 and/or for other administrative sanctions.

In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on

the basis of the attestation of certain witnesses: that about 5:00 o'clock in the afternoon
of 22 November 1988, at the corner of Magsaysay Boulevard and Velencia St., Sta.
Mesa, Manila, Espiritu spoke at a gathering of drivers and sympathizers, where he said,
among other things:

Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis supplied)

and that the police authorities were present during the press conference held at the National Press Club (NPC) on 22 November 1988 where Espiritu
called for a nationwide strike (of jeepney and bus drivers) on 23 November 1988. 28
 Espiritu was arrested without warrant,
not for subversion or any "continuing offense," but for uttering the above-quoted
language which, in the perception of the arresting officers, was inciting to sedition.

Many persons may differ as to the validity of such perception and regard the language
as falling within free speech guaranteed by the Constitution. But, then, Espiritu had not
lost the right to insist, during the pre-trial or trial on the merits, that he was just
exercising his right to free speech regardless of the charged atmosphere in which it was
uttered. But, the authority of the peace officers to make the arrest, without warrant, at
the time the words were uttered, or soon thereafter, is still another thing. In the
balancing of authority and freedom, which obviously becomes difficult at times, the
Court has, in this case, tilted the scale in favor of authority but only for purposes of the
arrest (not conviction). Let it be noted that the Court has ordered the bail for Espiritu's
release to be reduced from P60,000.00 to P10,000.00.

Let it also be noted that supervening events have made the Espiritu case moot and
academic. For Espiritu had before arraignment asked the court a quo for re-
investigation, the peace officers did not appear. Because of this development, the
defense asked the court a quo at the resumption of the hearings to dismiss the case.
Case against Espiritu (Criminal Case No. 88-68385) has been provisionally dismissed
and his bail bond cancelled.

In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December
1988, Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro
Manila; that at about 5:00 o'clock in the morning of 28 December 1988, Ramil Regala,
one of the suspects in the said killing, was arrested and he pointed to Narciso Nazareno
as one of his companions during the killing of Bunye II; that at 7:20 of the same morning
(28 December 1988), the police agents arrested Nazareno, without warrant, for
investigation. 29

Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14
days later, the arrest fans under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that
Nazareno was probably one of those guilty in the killing of Bunye II and the arrest had to be made promptly, even without warrant, (after the police were
alerted) and despite the lapse of fourteen (14) days to prevent possible flight.

As shown in the decision under consideration, this Court, in upholding the arrest without warrant of Nazareno noted several facts and events
surrounding his arrest and detention, as follows:

. . . on 3 January 1989 (or six (6) days after his arrest without warrant), an information charging Narciso Nazareno, Ramil Regala and two (2)
others, with the killing of Romulo Bunye II was filed wit the Regional Trial Court of Makati, Metro Manila. The case is dock eted therein as
Criminal Case No. 731.

On 7 January 1989, Narciso Nazareno filed a motion to post bail but the motion was denied by the trial court in an order dated 10 January
1989, even as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial court.

On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13 January 1989, the
Court issued the writ of habeas corpus, retumable to the Presiding Judge of the Regional Trial Court of Bifian, Laguna, Branch 24, ordering
said court to hear the case on 30 January 1989 and thereafter resolve the petition.

At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Biñan, Laguna issued a
resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents by reason
of an information filed against him with the Regional Trial Court of Makati, Metro Manila which liad taken cognizance of said case and had, in
fact, denied the motion for bail filed by said Narciso Nazareno (presumably because of the strength of the evidence against him).

This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the corresponding informations against them were filed in court. The arrests
of Espiritu and Nazareno were based on probable cause and supported by factual circumstances. They complied with conditions set forth in Section
5(b) of Rule 113. They were not arbitrary or whimsical arrests.

Parenthetically, it should be here stated that Nazareno has since been convicted by the court a quo for murder and sentenced to reclusion perpetua. He
has appealed the judgment of conviction to the Court of Appeals where it is pending as of this date ( CA-G.R. No. still undocketed).

Petitioners contend that the decision of 9 July 1990 ignored the contitution requisiteds for admissibility of an extrajudicial admission.

In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30

 that he was an NPA courier. On the other hand, in
the case of Amelia Roque, she admitted 31 that the unlicensed firearms, ammunition and
subversive documents found in her possession during her arrest, belonged to her.

The Court, it is true, took into account the admissions of the arrested persons of their
membership in the CPP/NPA, as well as their ownership of the unlicensed firearms,
ammunitions and documents in their possession. But again, these admissions, as
revealed by the records, strengthen the Court's perception that truly the grounds upon
which the arresting officers based their arrests without warrant, are supported by
probable cause, i.e. that the persons arrested were probably guilty of the commission of
certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court. To note
these admissions, on the other hand, is not to rule that the persons arrested are already
guilty of the offenses upon which their warrantless arrests were predicated. The task of
determining the guilt or innocence of persons arrested without warrant is not proper in a
petition for habeas corpus. It pertains to the trial of the case on the merits.

As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan vs. Enrile should
be abandoned, this Court finds no compelling reason at this time to disturb the same,
particularly ln the light of prevailing conditions where national security and liability are
still directly challenged perhaps with greater vigor from the communist rebels. What is
important is that everv arrest without warrant be tested as to its legality via habeas
corpus proceeding. This Court. will promptly look into — and all other appropriate courts
are enjoined to do the same — the legality of the arrest without warrant so that if the
conditions under Sec. 5 of Rule 113, Rules of Court, as elucidated in this Resolution,
are not met, then the detainee shall forthwith be ordered released; but if such conditions
are met, then the detainee shall not be made to languish in his detention but must be
promptly tried to the end that he may be either acquitted or convicted, with the least
delay, as warranted by the evidence.

A Final Word

This Resolution ends as it began, reiterating that mere suspicion of being a Communist
Party member or a subversive is absolutely not a ground for the arrest without warrant
of the suspect. The Court predicated the validity of the questioned arrests without
warrant in these petitions, not on mere unsubstantiated suspicion, but on compliance
with the conditions set forth in Section 5, Rule 113, Rules of Court, a long existing law,
and which, for stress, are probable cause and good faith of the arresting peace officers,
and, further, on the basis of, as the records show, the actual facts and
circumstances supporting the arrests. More than the allure of popularity or palatability to
some groups, what is important is that the Court be right.

ACCORDINGLY, the motions for reconsideration of the decision dated 9 July 1990, are
DENIED. This denial is FINAL.

SO ORDERED.

Narvasa, Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea and Davide,

Jr., JJ., concur.

Separate Opinions

FERNAN, C.J., concurring and dissenting:

After a deep and thorough reexamination of the decision of Julv 9, 1990 and an
exhaustive evaluation of the motions for reconsideration of the said decision, I am
inclined to agree with the, majority's resolution on said motions for reconsideration
except for the legality of the warrantless arrests of petitioner Deogracias Espiritu for the
crime of inciting to sedition and petitioner Alfredo Nazareno for the crime of murder.

In the words of the resolution, Espiritu "was arrested without warrant, not for subversion
or any 'continuing offense,' but for uttering" the following: "Bukas tuloy ang welga
natin . . . hanggang sa magkagulo na." Apparently, such statement was, in the
perception of the arresting officers, inciting to sedition. While not conceding the validity
of such perception, realizing that it is indeed possible that Espiritu was merely
exercising his right to free speech, the resolution nonetheless supports the authority of
peace officers "only for purposes of the arrest."

I find this position to be adverse to the very essence of the resolution which sanctions
warrantless arrests provided they are made in accordance with law. In the first place,
Espiritu mav not be considered as having "just committed" the crime charged. He
allegedly first uttered seditious remarks at the National Press Club in the afternoon of
November 12, 1988. The second allegedly seditious remark aforequoted was made at
around 5:00 o'clock in the same afternoon (Decision, pp. 23-24). Under these
circumstances, the law enforcement agents had time, short though it might seem, to
secure a warrant for his arrest. Espiritu's apprehension may not therefore be considered
as covered by Section 5(b) of Rule 113 which allows warrantless arrests "when an
offense has in fact just been committed."

The same observation applies with greater force in the case of Nazareno who was
arrested 14 days after the commission of the crime imputed to him.

Secondly, warrantless arrests may not be allowed if the arresting officer are not sure
what particular provision of law had beeri violated by the person arrested. True it is that
law en.orcement agents and even prosecutors are not all adept at the However,
errneous perception, not to mention ineptitude among their ranks, especially if it would
result in the violation of any right of a person, may not be tolerated. That the arrested
person has the "right to insist during the pre-trial or trial on the merits" (Resolution., p.
18) that he was exercising a right which the arresting officer considered as contrary to
law, is beside the point. No person should be subjected to the ordeal of a trial just
because the law enforcers wrongly perceived his action.

Thirdly, inciting to sedition is not a continuous crime for which the offender may be
arrested without a warrant duly issued by the proper authority. By its nature, a single act
of urging others to commit any of the acts enumerated in Article 142 of the Revised
Penal Code may suffice to hold anyone liable for inciting to sedition. While the crime is
aimed at anarchy and radicalism and presents largely a question of policy (Espuelas vs.
People, 90 Phil, 524 [1951]), it should be remembered that any of the prohibited acts in
Article 142 may infringe upon the fundamental freedoms of speech and expression.
There arises, therefore, the necessity of balancing interests; those of the State as
against those of its individual citizen. Here lies the urgency of judicial intervention before
an arrest is made. Added to this is the subjectivity of the determination of what may
incite other people to sedition. Hence, while the police should act swiftly when a
seditious statement has been uttered in view of the jeopardy it may cause the
government, speedy action should consist not in warrantless arrests but in securing
warrants for such arrests.

On the legality of warrantless arrests of violators of the Anti-Subversion Law, it should

be underscored that anyone who undertakes such arrest must see to it that the alleged
violator is knowing member of a subversive organization as distinguished from
a nominal one (People vs. Ferrer, L-32613-14, December 27, 1972, 48 SCRA 382).
Thus, a subversive may be arrested even if has not committed overt act of overthrowing
the government such as bombing of government offices trie assassination of
government officials provided there is probable cause to believe that he is in the roll of
members of a subversive organization. It devolves upon the accused to prove
membership by force or ciorcion. Certainly, one may not be in such a roll without
undergoing the concious act of enlistment.

It bears repeating theat warrantless arrests are governed by law and subject to stringent
application. Section 5, Rule 113 of the Rules on Criminal Procedure now requires that
an offense "has in fact just been committed. "connotes immediacy in point of time and
excludes cases under the old rule where an offense 'has in fact been committed' no how
long ago. Similarly, the arrestor must have 'personal knowledge of the facts indicating
that the [arrestee] has committed it' (instead of just 'reasonable ground believe that the
[arrestee] has committed it' under the old rule)." (Dissenting opinion in Ilagan vs.
Enrile, G.R. No. 70748, October 21, 1985, 139 SCRA 349, 408).

I deem it aptherein to recall other Court rulings provide guidelines in effecting arrests
without warrants. In People vs. Burgos (G.R. No. 68955, September 4, 1986,144 SCRA
1), the Court considered as illegal the warrantless arrest of a subversive not based on
the arresting officer's personal knowledge such subversion and held that any rule on
arrests witho warrants must be strictly construed. We categorically state therein that
warrantless arrests should "clearly fall within the situations when securing a warrant be
absurd or is manifestly unnecessary was provided by the Rules" (144 SCRA at 14).
Moreover. "it is not enough that there is reasonable ground to believe that the person to
be arrested has committed a crime. A crime must in fact or actually (has just) been
committed first. That crime has actually been committed is an essential precondition. It
is not enough to suspect that a crime may have been committed. The fact of the
commission of the offense must be undisputed. The test of reasonable ground applies
only to the identity of the perpetrator. (Supra, at p. 15).

Earlier, in Morales, Jr. vs. Enrile (G.R. No. 61016, April 26, 1983, 121 SCRA 538), the
Court laid out the procedure to be observed the moment a person is arrested:

At the time a person is arrested, it shall be the duty of the arresting officer to
imform him of the reason for the arrest and he must be shown the warrant of
 arrest, if any. He shall be informed of his constitutional rights to remain silent and
to counsel, and that any statement he might make could be used against him.
The person shall have the right to communicate with his lawyer, a relative, or
anyone he chooses by the most expedient means — by telephone if possible —
or by letter or messenger. It shall be the responsibility of the arresting officer to
see to it that this is accomplished. No custodial investigation shall be conducted
unless it be in the presence of counsel engaged by the person arressted, by any
person on his behalf, or appointed by the court upon petition on his behalf, or
appointed the court upon the petition either of the detainee himself or by anyone
on his behalf. The right to counsel may be waived but the waiver shall not be
valid unless made with the assistance of counsel. Any statement obtained in
violation of the procedure herein laid down, whether exculpatory or inculpatory, in
whole or in part shall be inadmissible evidence. (121 SCRA at 554).

These judicial pronouncements must be observed by everyone concerned: the military

and civilian components of the government tasked with law enforcement as well as the
ordinary citizen who faces a situation wherein civic duty demands his intervention to
preserve peace in the community.

I am not unmindful of the fact that abuses occur in arrests especially of offenders of
crimes with a political or ideological element. Such abuses are more often than not,
triggered by the difficulty in finding evidence that could stand judicial scrutiny — to
pinpoint a subversive, police officers usually have to make long persistent surveillance.
However, for the orderly administration of government and the maintenance of peace
and order in the country, good faith should be reposed on the officials implementing the
law. After all, we are not wanting in laws to hold any offending peace officer liable both
administratively and criminally for abuses in the performance of their duties. Victims of
abuses should resort to legal remedies to redress their grievances.

If existing laws are inadequate, the policy-determining branches of the government may
be exhorted peacefully by the citizenry to effect positive changes. This Court, mandated
b the Constitution to uphold the law, can only go as far as inter pruting existing laws and
the spirit behind them. Otherwise, we hail be entering the dangerous ground of judicial
legislation.

GUTIERREZ, JR., J., concurring and dissenting:

The philosophy adopted in our Constitution is that liberty is an essential condition for
order, It is disturbing whenever the Court leans in the direction of order instead of liberty
in har cases coming before us.

People all over the world are fast accepting the theory that only as a society encourages
freedom and permits dissent can it have lasting security and real progress, the theory
that enhancing order through constraints on freedom is deceptive because restrictions
on liberty corrode the very values Govenment pretends to promote. I believe we should
move with the people of the world who are fast liberating themselves.
I, therefore, vote for the strict application of Section 5 (a) and (b) of Rule 113 on arrests
without warrant, to wit:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private

person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it.

x x x           x x x          x x x

Only in the cases found in the Rule should we allow arrests without warrants. In case of
doubt, the tendency should be to declare the warrantless arrest illegal.

Insofar as G.R. Nos, 84581-82, G.R. Nos. 84583-84 and G.R. No. 83162 involving
Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo, Ramon Casiple, and Vicky
Ocaya are concerned, the petitioners were arrested after having been apprehended
while in possession of illegal firearms and ammunitions. They were actually committing
a crime when arrested. I concur in the denial of their motions for reconsideration.

I vote to grant the motion for reconsideration in G.R. No. 85727 where Deogracias
Espiritu was arrested while urging jeepnev and bus drivers to join a strike of transport
workers on the ground that that was inciting to sedition.

This impresses me as Court validation of a clear infringement of an individual's freedom

of speech. "Inciting to sedition" is a term over which the most learned writers and jurists
will differ when applied to actual cases. I doubt if there are more than a handful of
policemen in the whole country who would know the full dimensions of the fine
distinctions which separate the nation's interest in the liberty to fully anfd freely discuss
matters of national importance on one hand and the application of the clear and present
danger rule as the test when claims of national security and public safety are asserted,
on the other. In fact, the percentage of knowledgeability would go down further if we
consider that "inciting to sedition" requires the ability to define, among other (1) what
kinds of speeches or writings fall lander the term "inciting" (2) the meaning of
rising publicly and tumultously; (3,) when does a certain effort amount to force,
intimidation. or illegal method; (4) what constitute the five objects or ends of sedition;
and (5) what is a scurrilous libel against the Philippines. If we allow public speakers to
be picked up simply because what they say is irritating or obnoxious to the ears of a
peace officer or critical of government policy and action, we will undermine all
pronouncements of this Court on the need to protect that matrix of all freedoms, which
is freedom of expression. At the very least, a warrant of arrest after a preliminary
examination by a Judge is essential in this type of offense.
Insofar as G.R. No. 81567 is concemed, I join the other dissenting Justices in their
observations regarding "continuing oftenses." To base warrantless arrests on the
doctrine of continuing offense is to give a license for the illegal detention of persons on
pure suspicion. Rebellion, insurrection, or sedition are political offenses where the line
between overt acts and simple advocacy or adherence to a belief is extremely thin. If a
court has convicted an accused of rebellion and he is found roaming around, he may be
arrested. But until a person is proved guilty, I fail to see how anybody can jump to a
personal conclusion that the suspect is indeed a rebel and must be picked up on sight
whenever seen. The grant of authority in the majority opinion is too broad. If warrantless
searches are to be validated, it should be Congress and not this Court which should
draw strict and narrow standards. Otherwise, the non-rebels who are critical, noisy, or
obnoxious will be indiscriminately lumped up with those actually taking up arms against
the Government.

The belief of law enforcement authorities, no matter how well grounded on past events,
that the petitioner would probably shoot other policemen whom he may meet does not
validate warrantless arrests. I cannot understand why the authorities preferred to bide
their time, await the petitioner's surfacing from underground, and pounce on him with no
legal authority instead of securing warrants of arrest for his apprehension. The
subsequent conviction of a person arrested illegally does not the warrantless arrest.

In G.R. No. 86332, Romulo Bunye was killed on December 14, 1988. The information
that Narciso Nazareno was one of the killers came to the attention of peace officers only
on December 28, 1988 or fourteen (14) days later. To say that the offense "has in fact
just been committed" even if 14 days have lapsed is to stretch Rule 11 3 on warrantless
arrests into ridiculous limits. A warrant of arrest is essential in this case. I vote to grant
the motion for reconsideration.

The subsequent conviction of a person arrested illegally does not reach back into the
past and render legal what was illegal. The violation of the constitutional right against
illegal seizures is not cured by the fact that the arrested person is indeed guilty of the
offense for which he was seized. A government of laws must abide by its own
Constitution.

CONSIDERING THE FOREGOING, I VOTE TO:

(1) DENY the motions for reconsideration in G.R. Nos. 84581-82; G.R. No. 84583-84;
and G.R. No. 83162;

(2) GRANT the motion for reconsideration in G.R. No. 85727;

(3) GRANT the motion for reconsideration in G.R. No. 86332;and

(4) GRANT the motion for reconsideration in G.R. No. 81567.

CRUZ, J., Separate Opinion:
I reiterate my concurrence with the ponencia insofar as it dismissed the petitions of
those who were arrested in flagrante, or subsequently posted bail or chose to remain in
the custody of the military, or voluntarily permitted the search of the house without
warrant. I do not think that under the applicable circumstances the petitioners can
validly complain that they are being unlawfully detained.

But I must again express may dissent to the continued observance of Garcia-Padilla vs.
Enrile, 121 SCRA 472, to justify the warrantless arrest and detention of the other
petitioners on the ground that they were apprehended for the continuing offenses of
rebellion and other allied crimes.

We find in the said decision this partltularly disturbing observation, which was quoted
with approval in the original ponencia:

The arrest of persons involved in the rebellion, whether as its fighting armed
elements, or for committing non-violent acts but in furtherance of the rebellion, is
more an act of capturing them in the course of an armed conflict, to quell the
rebellion, than for the purpose of immediately prosecuting them in court for a
statutory offense. The arrest, therefore, need not follow the usual procedure in
the prosecution of offenses which requires the determination by a judge of the
existence of probable cause before the issuance of arrest and the granting of bail
of the offense is bailable. Obviously, the absence of a judicial warrant is no legal
impediment to arresting or capturing persons committing overt acts of violence
against govenment forces, or any other milder acts but equally in pursuance of
the rebellious movement. (Emphasis supplied.)

The treatment suggested envisions an actual state of war and is justified only when a
recognition of beuigerency is accorded by the legitimate government to the rebels,
resulting in the application of the laws of war in the regulation of their relations. The
rebels are then considered alien enemies-to be treated as prisoners of war when
captured-and cannot invoke the municipal law of the legitimate government they have
disowned. It is in such a situation that the processes of the local courts are not observed
and the rebels cannot demand the protection of the Bill of Rights that they are deemed
to have renounced by their defiance of the government.

But as long as that recognition has not yet been extended, the legitimate govenment
must treat the rebels as its citizens, subject to its municipal law and entitled to all the
rights provided thereunder, including and especially those guaranteed by the
Constitution. Principal among these — in our country — are whose embodied in the Bill
of Rights, particularly those guaranteeing due process, prohibiting unreasonable
searches and seizures, allowing bail, and presuming the innocence of the accused. The
legitimate government cannot excuse the suppression of these rights by the
"exigencies" of an armed conflict that at this time remains an intemal matter governed
exclusively by the laws of the Republic of the Philippines.
Treatment of the rebels as if they were foreign invaders — or combatants — is not
justified in the present situation as our government continues to prosecute them as
violators of our own laws. Under the doctrine announced in Garcia-Padilla, however, all
persons suspected as rebels are by such suspicion alone made subject to summary
arrest no different from the unceremonious capture of an enemy soldier in the course of
a battle. The decision itself says that the arrest "need not follow the usual procedure in
the prosecution of offenses" and "the absence of a judicial warrant is no impediment" as
long as the person arrested is suspected by the authorities of the "continuing offense" of
subversion or rebellion or other related crimes. International law is thus substituted for
municipal law in regulating the relations of the Republic with its own citizens in a purely
domestic matter.

As for the duration of the offenses, the decision contained the following pronouncement
which this Court has also adopted as its own:

. . . The crimes of insurrection or rebellion, subversion, conspiracy or proposal to

commit such crimes, and other crimes and offenses committed in the furtherance
on the occasion thereof, or incident thereto, or in connection therewith under
Presidential Proclamation No. 2045, are all in the nature of continuing
offenses which set them apart from the common offenses, aside front their
essentially involving a massive conspiracy of nationwide manitude. (Emphasis
supplied.)

The beginning of the "continuing offense" may be arbitrarily fixed by the authorities,
usually by simply placing the suspect "under surveillance," to lay the basis for his
eventual apprehension. Once so placed, he may at any time be arrested without
warrant on the specious pretext that he is in the process of committing the "continuing
offense," no matter that what he may be actuallly doing at the time is a perfectly
innocent act.

In the case of Dural. the arrest was made while he was engaged in the passive and
innocuous act of undergoing medical treatment. The fiction was indulged that he was
even then, as he lay supine in his sickbed, engaged in the continuing offense of
rebellion against the State. In further justification, the Court says that the arresting
officers acted on "confidential information" that he was in the hospital, which information
"was found to be true." This is supposed to have validated the determination of the
officers that there was "probable cause" that excused the absence of a warrant.

My own impression is that probable cause must be established precisely to justify the

issuance of a warrant, not to dispense with it; moreover, probable cause must be
determined by the judge issuing the warrant, not the arresting officer who says it is not
necessary.

In the case of Espiritu, the arrest was made while he was actually sleeping, and for
allegedly seditious remarks made by him the day before. The Court says his case is not
covered by the Garcia-Padilla doctrine but approves the arrest just the same because
the remarks were supposed to continue their effects even to the following day. The
offense was considered as having been just committed (to make it come under Rule
113, Section 5, of the Rules of Court) despite the considerable time lapse.

It was worse in the case of Nazareno, who was also arrested without warrant, and no
less than fourteen days after the killing. In sustaining this act, the Court says that it was
only on the day of his arrest that he was identified as one of the probable killers, thus
suggesting that the validity of a warrantless arrest is reckoned not from the time of the
commission of an offense but from the time of the Identification of the suspect.

Section 5 of Rule 113 says that a peace officer may arrest a person without a warrant if
the latter "has committed, is actually committing, or is attempting to commit an offense"
or when an offense "has in fact just been committed." The requirement of immediacy is
obvious from the word "just," which, according to Webster, means "a very short time
ago." The arrest must be made almost immediately or soon after these acts, not at any
time after the suspicion of the arresting officer begins, no matter how long ago the
offense was committed.

I am also uneasy over the following observations in the present resolution which I hope
will not be the start of another dangerous doctrine:

The Court, it is true, took into account the admissions of the arrested persons of
their membership in the CPP/NPA, as well as their ownership of the unlicensed
firearms, ammunitions and documents in their possession. But again, these
admissions, as revealed by the records, strengthen the Court's perception that
truly the grounds upon wmch the arresting officers based their arrests without
warrant, are supported by probable cause, i.e., that the persons arrested were
probably guilty of the commission of certain offenses, in compliance with Section
5, Rule 113 of the Rules of Court.

I can only repeat my own misgivings when I dissented in the recent case of People vs.
Malmstedt, G.R. No. 91107, June 19, 1991, where I noted: "The conclusion that there
was probable cause may have been influenced by the subsequent discovery that the
accused was carrying a prohibited drug. This is supposed to justify the soldier's
suspicion. In other words, it was the fact of illegal possession that retroactively
established the probable cause that validated the illegal search and seizure. It was the
fruit of the poisonous tree that washed clean the tree itself."

I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the
illegal arrests made in the cases before us is a step back to that shameful past when
individual rights were wantonly and systematically violated by the Marcos dictatorship. It
seems some of us have short memories of that repressive regime, but I for one am not
one to forget so soon. As the ultimate defender of the Constitution, this Court should not
gloss over the abuses of those who, out of mistaken zeal, would violate individual liberty
in the dubious name of national security. Whatever their ideology and even if it be
hostile to ours, the petitioners are entitled to the protection of the Bill of Rights, no more
and no less than any other person in this country. That is what democracy is all about.

FELICIANO, J., concurring and dissenting:

I concur in the result reached by the majority in the Resolution disposing of the Motion
for Reconsideration.

At the same time, however, I feel compelled to dissent from certain statements made by
the majority principally concerning the applicability of the "continuing crimes" doctrine to
the problem of arrests without warrants. It seems clear that these statements are
really obiter dicta, since they are quite unnecessary for sustaining the actual results
reached in the majority Resolution. This was summarily pointed out in my very brief
statement concurring in the result reached in the original Decision of the Court dated 9
July 1990. The subsequent developments in several of the cases here consolidated,
which are carefully detailed in the majority Resolution, make this even clearer.
Nonetheless, the majority Resolution has taken the time and trouble expressly to
reiterate the "continuing crimes" doctrine as applicable in respect of warrantless arrests.
Although the above statements are obiter, they have been made and, I believe, need to
be addressed to some extent and the inter-relation of the "continuing crimes" doctrine
with constitutional rights explored.

1. We start at the beginning, that is, the constitutional guarantee against unreasonable
seizures of persons. Article III Section 2 of the Constitution reads:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the
persons or things to be seized. (Emphais supplied)

Under the above provision, arrests, i.e., the constraint and seizure of the persons of
individual members of society, must, as a general rule, be preceded by the securing of a
warrant of arrest, the rendition of which complies with the constitutional procedure
specified in Article III Section 2. Arrests made without a warrant issued by a judge after
complying with the constitutional procedure, are prima facie unreasonable seizures of
persons within the meaning of Article III Section 2.

2. There are, however, certain well-recognized exceptions to the norm that warrantless
arrests are unreasonable seizures of persons. Those exceptions are, in our day,
essentially found in Section 5(a) and (b) of Rule 113 of the Rules of Court. Section 5(a)
and (b) mark out the situations where an officer of the law, or a private person for that
matter, may lawfully arrest a person without previously securing a warrant of arrest. The
full text of Section 5, Rule 113 follows:
 Sec. 5. Arrest without warrant, when lawful. — A peace officer or a private
person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

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

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without
a warrant shall be forthwith delivered to the nearest police station or jail, and he
shall be proceeded against in accordance with Rule 112, Section 7.

3. Before examining the scope and implications of Section 5(a) and (b), it is important to
recall that judicial interpretation and application of Section 5(a) and (b) must take those
provision for what they are: they are exceptions to a vital constitutional norm enshrined
in the Bill of Rights. Exceptions to such a norm must be strictly construed so as not to
render futile and meaningless the constitutional rule requiring warrants of arrests before
the persons of individuals may be lawfully constrained and seized. The ordinary rule
generally applicable to statutory provisions is that exceptions to such provisions must
not be stretched beyond what the language in which they are cast fairly warrants, and
all doubts should be resolved in favor of the general provision, rather than the
exception. 1 This rule must apply with special exigency and cogency where we deal, not
with an ordinary statutory provision, but with a constitutional guarantee. 2 Exceptions to
such a guarantee must be read with especial care and sensitivity and kept within the
limits of their language so to keep vital and significant the general constitutional norms
warrantless arrests. In Alvarez vs. Court of First Instance, 3 this Court, stressing that:

II. As the protection of the citizen and the maintenance of his constitutional rights
is one of the highest duties and privileges of the court. these constitutional
guaranties should be given a liberal construction or a strict construction in favor
of the individual, to prevent stealthy encroachment upon, or gradual depreciation
of, the rights secured by them (State vs. Custer County, 198 Pac., 362; State vs.
McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it
is the general rule that statutes authorizing searches and seizures or search
warrants must be strictly construed (Rose vs. St. Clair, 28 Fed. [2d], 189;
Leonard vs. U.S., 6 Fed. [2d], 353; Perry vs. U.S., 14 Fed. [2d], 88; Cofer vs.
State, 118 So., 613. (emphasis supplied)

held that:
 . . . All illegal searches and seizures are unreasonable whith lawful ones are
reasonable. 4
In People vs. Burgos, 5
 this Court reiterated the above rule in the following terms:

There is no such personal knowledge in this case. Whatever knowledge was

possessed by the arresting officers, it came in its entirety from the information
furnished by Cesar Masamlok. The location of the firearm was given by the
appellant's wife.

At the time of the appellant's arrest, he was not in actual possession of any
firearm or subversive document. Neither was he commit ting any act which could
be described as subversive. He was, in fact plowing his field at the time of the
arrest.

The right of a person to be secure against any unreasonable seizure of his body
and any deprivation of his liberty is a most basic and fundamental one. The
statute or rule which allows exceptions the requirement of warrants of arrest is
strictly construed. Any exception must clearly fall within the situations when
securing a warrant would be absurd or is manifestly unnecessary as provided by
the Rule. We cannot liberally construe the rule on arrests without warrant or
extend its application beyond the cases specifically provided by law. To do so
would infringe upon personal liberty and set back a basic right so often vilated
and so deserving of full protection. 6 (emphasis supplied)
4. Section 5(a) relates to situations where a crime is committed or attempted to be committed in the presence of the arresting officer. The fact of the
occurrence of the offense, or of the attempt to commit an offense, in the presence of the arresting officer, may be seen to be the substitute, under the
circumstances, for the securing of a warrant of arrest. In such situation, there is an obvious need for immediate, even instantaneous, action on the part
of the arresting officer to suppress the breach of public order and to prevent further breaches then and there. Section 5(a) may, moreover, be seen to
refer to overt acts constitutive of a crime taking place in the presence of the arresting officer. The term "presence" in this connection is properly and
restrictively construed to relate to acts taking place within the optical or perhaps auditory perception of the arresting officer. 7
 If no overt,
recognizably criminal, acts occur which are perceptible through the senses of the
arresting officer, such officer could not, of course, become aware at all that a crime is
being committed or attempted to be committed in his presence. 8 It is elementary that
purely mental or psychological phenomena, not externalized in overt physical acts of a
human person, cannot constitute a crime in our legal system. For a crime to exist in our
legal law, it is not enough that mens rea be shown; there must also be an actus reus. If
no such overt acts are actually taking place in the presence or within the sensor
perception of the arresting officer, there would, in principle, be ample time to go to a
magistrate and ask for a warrant of arrest. There would, in other words, not be that
imperious necessity for instant action to prevent an attempted crime, to repress the
crime being committed, or to capture the doer of the perceive criminal act, the necessity
which serves as the justification in law of warrantless arrests under Section 5(a).

5. Turning to Section 5 (b), two (2) elements must be coincide before a warrantless
arrest may be sustained under this subsection: 1) the offense must have "just been
committed" when the arresting officer arrived in the scene; and 2) the officer must
have "personal knowledge" of facts indicating tha the person to be arrested has
committed the offense. In somewhat different terms, the first requirement imports that th
effects or corpus of the offense which has just been committed are still visible: e.g. a
person sprawled on the ground, dead of gunshot wound; or a person staggering around
bleeding profusely from stab wounds. The arresting officer may not ha seen the actual
shooting or stabbing of the victim, and thereto the offense can not be said to have been
committed "in [his] presence." The requirement of "personal knowledge" on the part of
the arresting officer is a requirement that such knowledge must have been
obtained directly from sense perception the arresting officer. That requirement would
exclude informtion conveyed by another person, no matter what his reputation for, truth
and reliability might be. 9 Thus, where the arresting officer comes upon a person dead
on the street and sees a person running away with a knife from where the victim is
sprawled the ground, he has personal knowledge of facts which render it highly
probable that the person fleeing was the doer of the criminal deed. The arresting officer
must, in other words, perceive through his own senses some act which directly
connects the person to be arrested with the visible effects or corpus of a crime which
has "just been committed."

6. The use of the words "has in fact just been committed" underscores the requirement
that the time interval between the actual commission of the crime and the arrival of the
arresting officer must be brief indeed. In the first place, the word "just" was fairly
recently inserted in Section 5(b) by the 1985 Rules on Criminal Procedures, no doubt in
order to underscore the point here being made. In the second place, a latitudinarian
view of the phrase "has in fact just been committed" would obviously render pointless
the requirement in Section 5(a) that the crime must have been committed "[in] the
presence" of the arresting officer. In G.R. No. 86332, the warrantless arrest of Alfredo
Nazareno 14-days after the occurrence of the killing with which he was charged along
with other persons, cannot by any standard be justified under Section 5(b). In G.R. No.
81567, Dural was arrested without warrant while being treated in a hospital the day after
the shooting of the policemen in which he was suspected to have been a participant.
While 1-day may be substantially different from 14-days, still it must be pointed out that
at the time Dural was arrested in the hospital, the killing of the two (2) policemen in
Caloocan City far away from the St. Agnes Hospital in Quezon City could not
reasonably be said to have been just committed. There was no showing, nor did the
Court require it, that the arresting officers had been in "hot pursuit" of Dural beginning at
the scene of the killing and ending the next day in the hospital.

7. It is worth noting that the requisite of "personal knowledge" on the part of the
arresting officer who is determining "probable cause" right at the scene of the crime, is
in a sense more exacting than the standard imposed by the Constitution upon the judge
who, in the seclusion of his chambers, ascertains "probable cause" by examining the
evidence submitted before him. The arresting officer must himself have "personal
knowledge"; the magistrate may rely upon the personal knowledge of the witnesses
examined by or for him in issuing a warrant of arrest. In the present Resolution, the
majority begins with noting the requirement of "personal knowledge" in Section 5(b), but
winds up in the next page with a very diluted standard of "reasonable belief and "good
faith" on the part of the arresting officers. The stricter standard is properly applicable to
the officers seizing a person without a warrant of arrest, for they are acting in
derogation of a constitutional right. That the person unlawfully arrested without a
warrant may later turn out to be guilty of the offense he was suspected of in the first
place is, course, quite beside the point. Even a person secretly guilty some earlier crime
is constitutionally entitled to be secure from warrantless arrest, unless he has in fact
committed physically observable criminal acts in the presence of the arresting officer or
hadjust committed such acts when the arresting officer burst upon the scene.

8. Examination of the utilization in the majotity Resolution of the doctrine of "continuing

crimes," shows that doctrine is here being used as a substitute for the requirement
under Section 5(a) that the offense "has in fact just been presence of the arresting
officer arrived, but rather because the person to be arrested is suspected of having
committed a crime in the future. The pertinent portion of the majority Resolution reads:

. . . Dural did not cease to be, or because less of a subversive, FOR PURPOSE
OF ARREST, simply because he was, at the time of arrest, confined in the St.
Agnes Hospital. . . . That Dural had shot the two (2) policemen in Caloocan City
as part of his mission as a "sparrow" (NPA member) did not end there and then.
Dural, given another opportunity, would have shot or would shoot other
policemen anywhere as agents or representatives of organized government. It is
in this sense that subversion like rebelion (or insurrection) is perceived here as a
continuing offense. Unlike other so-called "common" offenses, i.e., adultery,
murder, arson, etc., which generally end upon their
commission, subversion and rebellion are anchored on an ideological base
which compels the repetition of the same acts of lawlessness and violence until
the overriding objectives of overthrowing organized government is attained.
(Emphasis supplied)

9. I respectfully submit that an examination of the "continuing crimes" doctrine as

actually found in our case law offers no reasonable basis for such use of the dotrine.
More specifically, that doctrine, in my submission, does not dispence with the
requirement that overt acts recognizably criminal in character must take place in the
presence of the arresting officer, or must have just been committed when the arresting
officer arrived, if the warrantless arrest it to be lawful. The "continuing crimes" doctrine
in our case law (before rendition of Garcia-Padilla vs. Enrile 10 does not sustain
warrantless arrests of person to be arrested is, as it were, merely resting in between
specific lawless and commit the moment he gets an opportunity to do so.

Our case law shows that the "continuing crimes" doctrine has been used basically in
relation to two (2) problems: the first problem is that of determination of whether or not a
particular offense was committed within the territorial jurisdiction of the trial court; the
second problem is that of determining whether a single crime or multiple crimes were
committed where the defense of double jeopardy is raised.
10. In respect of the first problem, the gist of our case law is that where some of the
ingredients or elements of an offense taken place within the territorial jurisdiction of one
court and some other ingredients or elements of the same offense occur in the territory
of another court, (e.g., estafa or malversation) either one of the two courts has
jurisdiction to try the offense. Where all of the essential elements of a crime take place
within the territory of one court but "by reason of he very nature of the offense
committed" the violation of the law is deemed to be "continuing," then the court within
whose territorial jurisdiction the offense continues to be committed, has jurisdiction to try
a person charged with such offense. In the latter case, the offense is deemed to be
continuing because some or all of the elements constituting the offense occurred within
jurisdiction of the second court (e.g., kidnapping and illegal detention; libel; evasion of
service of sentence). The criminal acts are regarded as repeated or as continuing within
the province or city where the defendant was found and arrested. 11 Clearly, overt acts
of the accussed constituting elements of the crime charged must be shown to have
been committed within the territorial jurisdiction of the court where he is charged.

11. Turning to the second type of problem, the question is normally presented in terms
of whether one crime or multiple crimes were committed by the accused. Where the
series of acts actually alleged and proven to have been committed by the accused
constituted only one and the same crime, the defense of double jeopardy becomes
available where a second information is filed covering acts later in the series. Upon the
other hand, where the acts of the accused constituted discrete, multiple offenses, each
act comprising a distinct and separate offense, the double jeopardy defense is non-
available. 12 The point worth stressing is that in passing upon the issue relating to the
unity or multiplicity of offense committed, the overt acts of the accused constitutive
either of the single offense or of the plural offenses, must be shown.

12. My final submission, is that, the doctrine of "continuing crimes," which has its own
legitimate function to serve in our criminal law jurisprudence, cannot be invoked for
weakening and dissolving the constitutional guarantee against warrantless arrest.
Where no overt acts comprising all or some of the elements of the offense charged are
shown to have been committed by the person arrested without warrant, the "continuing
crime" doctrine should not be used to dress up the pretense that a crime, begun or
committed elsewhere, continued to be committed by the person arrested in the
presence of the arresting officer. The capacity for mischief of such a utilization of the
"continuing crimes" doctrine, is infinitely increased where the crime charged does not
consist of unambiguous criminal acts with a definite beginning and end in time and
space (such as the killing or wounding of a person or kidnapping and illegal dentention
or arson) but rather of such problematic offenses as membership in or affiliation with or
becoming a member of, a subversive association or organization. For in such cases, the
overt constitutive acts may be morally neutral in themselves, and the unlawfulness of
the acts a function of the aims or objectives of the organization involved. Note, for
instance, the following acts which constitute prima facie evidence of "membership in any
subversive association:" 13
 a) Allowing himself to be listed as a member in any book or any of the lists, records, correspondence, or any other document of the
organization;

b) Subjecting himself to the discipline of such association or organization in any form whatsoever;

c) Giving financial contribution to such association or organization in dues, assessments, loans or in any other forms;

x x x           x x x          x x x

f) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof;

x x x           x x x          x x x

h) Preparing documents, pamphlets, leaflets, books, or any other type of publication to promote the objectives and purposes of such
association or organization;

x x x           x x x          x x x

k) Participating in any was in the activities, planning action, objectives, or purposes of such association or organization;

x x x           x x x          x x x

It may well be, as the majority implies, that the constitutional rule against warrantless arrests and seizures makes the law enforcement work of police
agencies more difficult to carry out. It is not our Court's function, however, and the Bill of Rights was not designed, to make life easy for police forces but
rather to protect the liberties of private individuals. Our police forces must simply learn to live with the requirements of the Bill of Rights, to enforce the
law by modalities which themselves comply with the fundamental law. Otherwise they are very likely to destroy, whether through sheer ineptness or
excess of zeal, the very freedoms which make our polity worth protecting and saving.

REGALADO, J.:  Separate Opinion:

While I have heretofore concurred in the  ponencia in the above-entitled cases and I reiterate such concurrence, I wish to unburden myself of some
reservations on the rationale adopted in G.R. No. 86332.

It is posited in this resolution that "(a)lthough the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made
only on 28 December 1988, or 14 days later, the arrest falls under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police
authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II."

I am afraid that there has been a misapplication of Section 5(b) of Rule 113 which, while authorizing a peace officer or a private person to effect a
warrantless arrest, specifically conditions that grant of authority upon the situation "(w)hen 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."

It is significant that when the corresponding provisions of the 1964 Rules of Court were amended in the 1985 Rules of Criminal Procedure, the particular
revision of paragraph (b) of the aforesaid section consisted in imposing the requirements that the person making the arrest has  personal knowledge of
the facts indicating that the arrestee is responsible for an offense which has just been committed.
Now, according to the resolution, "the records show that in the morning of 14 December 1988, Romulo Bunye II was killed by a group of men in
Alabang, Muntinlupa, Metro Manila; that at about 5 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing,
was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the same morning (28
December 1988), the police agents arrested Nazareno, without warrant, for investigation."

Since, clearly, the arresting police agents merely acted upon the information imparted by one of the suspects, Ramil Regala, the resolution has
emasculated the requirement in Section 5(b) that the person making the arrest must have had personal knowledge of factual indications regarding the
complicity or liability of the arrestee for the crime. Yet, that amendment requiring such personal knowledge must have been designed to obviate the
practice in the past of warrantless arrests being effected on the basis of or supposed reliance upon information obtained from third persons who merely
professed such knowledge or, worse, concocted such reports for variant reasons not necessarily founded on truth.

Further, and obviously as an added deterrent to the possibility that such arrest without a warrant may result from imputations based on dubious motives,
it is now required that the crime must have just been committed. The recency contemplated here, in relation to the making of the warrantless arrest, is
the time when the crime was in fact committed, and not the time when the crime was in fact committed, and not the time when the person making the
arrest learned or was informed of such commission. Otherwise, at the risk of resorting to reductio ad absurdum, such warrantless arrests could be
validly made even for a crime committed, say, more than a year ago but of which the arresting officer received information only today.

The brevity in the interval of time between the commission of the crime and the arrest, as now required by Section 5(b), must have been dictated by the
consideration, among others, that by reason of such recency of the criminal occurrence, the probability of the arresting officer acquiring personal and/or
reliable knowledge of such fact and the identity of the offender is necessarily enhanced, if not assured. The longer the interval, the more attenuated are
the chances of his obtaining such verifiable knowledge. In the case under consideration, the obtention of information of a crime committed fourteen (14)
days earlier necessarily undermines the capacity of the arresting officer to ascertain the reliability of the information he is acting upon and to acquire
personal knowledge thereof after such verification.

It may be granted, as an ad hoc proposition, that the arrest of Nazareno was based on probable cause and it was not whimsical, at least, in this
instance. It is correct to say that prevailing conditions affecting national security and stability must also be taken into account. However, for the reasons
above elucidated, I take exception to the conclusion that the conditions in Section 5(b) of Rule 113 had been complied with in this case. It is true that the
corresponding information was filed against Nazareno shortly after his arrest but that, precisely, is another cause for controversy. Definitely, if the rules
on arrest are scrupulously observed, there would be no need for the usual invocation of Ilagan as a curative balm for unwarranted incursions into civil
liberties.

SARMIENTO, J.: dissenting:

I reiterate my dissent. I submit that in spite of its "clarificatory" resolution, 1

 the majority has not shown why the arrests
in question should after all be sustained.

According to the majority, Rolando Dural (G.R. No. 815667) was validly arrested without
a warrant and that his arrest was sufficient compliance with the provisions of Section 5,
paragraph (b), Rule 113, of the Rules of Court. According to the majority, he, Dural, was
after all committing an offense (subversion being supposedly a continuing offense) and
that the military did have personal knowledge that he had committed it. "Personal
knowledge," according to the majority, is supposedly no more than "actual belief or
reasonable grounds . . . of suspicion," and suspicion is supposedly reasonable:
 . . . when, in the absence of actual belief of the arresting officers, the suspicion
that the person to be arrested is probably guilty of committing the offense, is
based on actual facts, i.e., supported by circumstances sufficiently strong in
themselves to create the probable cause of guilty of the person to be arrested. A
reasonable suspicion therefore must be founded on probable cause, coupled
with good faith on the part of the peace officers making the arrest. 2

As I said, I dissent.

First, and as I held, subversion, as an offense punished by Executive Order No. 167, as amended by Executive Order No. 276, in relation to Republic
Act No. 1700, 3
 is made up of "overt acts." 4 In People vs. Ferrer 5 this Court defined "overt
acts" as follows:

. . . Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally

unnecessary to charge Communists in court, as the law alone, without more
would suffice to secure their punishment. But the undeniable fact is that their guilt
still has to be judicially established. The Government has yet to prove at the trial
that the accused joined the Party knowingly, willfully and by overt acts, and that
they joined the Party, knowing its subversive character and with specific intent to
further its basic objective, i.e., to overthrow the existing government by force,
deceit, and other illegal means and place the country under the control and
domination of a foreign power.

As Ferrer held, that above "overt acts" constitute the essence of "subversion," and as
Ferrer has taken pains to explain, the law requires more than mere membership in a
subversive organization to make the accused liable. I respectfully submit that for
purposes of arrest without a warrant, that above "overt acts" should be visible to the
eyes of the police officers (if that is possible), otherwise the accused can not be said to
be committing any offense within the contemplation of the Rules of Court, to justify
police action, and otherwise, we would have made "subversion" to mean mere
"membership" when, as Ferrer tells us, subversion means more that mere membership.

I find strained that majority's interpretation of "personal knowledge," as the majority

would interpret it, as no more than "actual belief or reasonable suspicion," that is,
"suspicion . . . based on actual facts . . . [and] founded on probable cause, coupled with
good faith . . . " 6 I submit that personal knowledge means exactly what it says — that
the peace officer is aware that the accused has committed an offense, in this case,
membership in a subversive organization with intent to further the objectives thereof. It
is to be noted that prior to their amendment, the Rules (then Section 6) spoke of simple
"reasonable ground" — which would have arguably encompassed "actual belief or
suspicion . . . coupled with good faith" referred to by the majority. Section 5(b) as
amended, however, speaks of "personal knowledge"; I respectfully submit that to give to
"personal knowledge" the same meaning as "reasonable ground" is to make the
amendment as useless exercise.

What, furthermore, we have here was a mere "confidential information" that a "sparrow
man" had been wounded and was recuperating in the hospital, and that that person was
Rolando Dural. Clearly, what we have is second-hand, indeed, hearsay, information,
and needless to say, not personal knowledge.

I would like to point out that in the case of People vs. Burgos 7 this Court rejected a
similar arrest because of lack of personal knowledge, and, as the Court held,
"[w]hatever knowledge was possessed by the arresting officers came in its entirety from
the information furnished by [another] . . ." 8 I do not see how We can act differently
here.

I do not find the majority's reliance on the case of United States vs. Santos 9 to be well-
taken. Santos involved a prosecution for coercion (against a peace officer for affecting
an arrest without a warrant). Santos, however, did in fact affirm the illegality of the arrest
but absolved the peace officer on grounds of good faith. Santos did not say that so long
as he, the peace officer, was acting in good faith, as the majority here says that the
military was acting in good faith, the arrest is valid. Quite to the contrary, Santos
suggested that notwithstanding good faith on the part of the police, the arrest is
nevertheless subject to question.

As far as the information leading to the arrest of Dural is concerned, the majority would
quite evidently swallow the version of the military as if in the first place, there truly was
an information, and that it was reliable, and that "it was found to be true;" 10 and as if, in
the second place, the hospital authorities (the alleged informants) could have legally
tipped the military under existing laws. We have, it should be noted, previously rejected
such a species of information because of the lack of "compulsion for [the informant] to
state truthfully his charges under pain of criminal prosecution." 11 Here, it is worse,
because we do not even know who that informant was.

The majority is apparently unaware that under Executive Order No. 212, amending
Presidential Decree No. 169, hospital establishments are required to report cases of
acts of violence to "government health authorities" — not to the military.

I am concerned that if the military were truly armed with reliable information and if it did
have personal knowledge to believe that Dural had committed an offense, there was no
reason for the military to ignore the courts, to which the Constitution after all, gives the
authority to issue warrants. As People vs. Burgos held:

More important, we find no compelling reason for the haste with which the
arresting officers sought to arrest the accused. We fail to see why they failed to
first go through the process of obtaining a warrant of arrest, if indeed they had
reasonable ground to believe that the accused had truly committed a crime.
There is no showing that there was a real apprehension that the accused was on
 the verge of flight or escape. Likewise, there is no showing that the whereabouts
of the accused were unknown. 12

I do not likewise see how the petitioners Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo, Ramon Caspile, and Vicky Ocaya (G.R. Nos. 84581-
82; 83162) could have been lawfully picked up under similar circumstances. As the majority points out, the military had (again) acted on a mere tip-the
military had no personal knowledge (as I elaborated what personal knowledge means). Second, I do not think that the majority can say that since
Amelia Roque, et al. "were NPA's anyway" (As Roque, et al. allegedly admitted), immediate arrests were "prudent" and necessary. As I said, that
Roque, et al. were admitted "NPA's" is (was) the question before the trial court and precisely, the subject of controversy. I think it is imprudent for this
Court to pass judgment on the guilt of the petitioners-since after all, and as the majority points out, we are talking simply of the legality of the petitioner's
arrests.

More important, that Roque, et al. "were NPA's anyway" is evidently, a mere say-so of the military, and evidently, the Court is not bound by bare say-
so's. Evidently, we can not approve an arrest simply because the military says it is a valid arrest (the accused being "NPA's anyway")— that would be
abdication of judicial duty and when, moreover, the very basis of the claim rests on dubious "confidential information."

According to the majority, we are speaking of simple arrests; we are not talking of the guilt or innocence of the accused. I certainly hope not, after the
majority referred to Rolando Dural as a "sparrow man" and having Amelia Roque, et al. admit to being NPA's."

It is to gloss over at any rate, the nature of arrest as a restraining on liberty. It is to me immaterial that the guilt of the accused still has to be established,
since meanwhile, the accused are in fact being deprived of liberty. Arrest to me, is something to crow about, even if in the opinion of the majority, it is
nothing to crow about (a mere "administrative measure").

I can not, again, accept the validity of the arrests of Deogracia Espiritu or Narciso Nazareno (G.R. Nos. 85727; 86332). Espiritu was supposedly picked
up for inciting to sedition, in uttering supposedly, on November 22, 1988, the following:

Bukas tuloy and welga natin . . . hanggang sa magkagulo na. 13

Espiritu however was arrested on November 23, 1988, a day later-and in no way is "inciting to sedition" a continuing offense. Obviously, the majority is
not saying that it is either, but that:

. . . Many persons may differ as to the validity of such perception and regard the language as falling within free speech guaranteed by the
Constitution. But, then, Espiritu has not lost the right to insist, during the trial on the merits, that he was just exercising his right to free
speech regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers to make the arrest, without
warrant, at the time the words were uttered, or soon thereafter, is still another thing. In the balancing of authority and freedom, which
obviously becomes difficult at times, the Court has, in this case, titled the scale in favor of authority but only for purposes of the arrest (not
conviction). Let it be noted that the Court has ordered the bail for Espiritu's release to be reduced from P60,000.00 to P10,000.00. 14
And obviously, the majority is concerned about whether or not Espiritu's speech was after all, protected speech, but apparently, that is also of no
moment, since: (1) that is a matter of defense; (2) we are talking of mere arrests, and as far as arrests are concerned, "the Court has, in this case, titled
in favor of authority," 15
 and (3) we have, anyway, given a reduced bail to the accused.

First, that the accused's statement is in the category of free speech is not only plain to
my mind, it is a question I do not think the majority can rightly evade in these petitions
without shirking the Court's constitutional duty. It is to my mind plain, because it does
not contain enough "fighting words" recognized to be seditious. 16 Secondly, it is the
very question before the Court—whether or not the statement in question constitutes an
offense for purposes of a warrantless arrest. It is a perfectly legal question to my mind
and I am wondering why we can not answer it.

What the majority has not answered, as I indicated, is that inciting to sedition is in no
way a continuing offense, and as I said, the majority is not apparently convicted that it
is, either. Of course, the majority would anyway force the issue: "But the authority of the
peace officers to make the arrest, without warrant, at the time the words were uttered,
or soon thereafter, is still another thing." 17 First, Espiritu was picked up the following
day, and in no way is "the following day" "soon thereafter". Second, we would have
stretched the authority of peace officers to make warrantless arrests for acts done days
before. I do not think this is the contemplation of the Rules of Court.

As in the case of Burgos in People vs. Burgos, 18 Espiritu was neither "on the verge of
flight or escape" 19 and there was no impediment for the military to go through the
judicial processes, as there was none in the case of Burgos.

In the case of People vs. Aminnudin, 20 this Court held that unless there "was a crime
about to be committed or had just been committed," and unless there existed an
urgency as where a moving vehicle is involved, instant police action can not be justified.

"In the balancing of authority and freedom," states the majority, "the Court has, in this
case, titled in favor of authority but only for purposes of the arrest (not conviction)." 21 It
is a strange declaration, first, because it is supported by no authority (why the Court
should "tilt" on the side of Government), and second, because this Court has leaned, by
tradition, on the side of liberty — as the custodian of the Bill of Rights — even if we
were talking of "simple" arrests.

I do not understand why this Court should "tilt" . . . the scale in favor of authority . . . in
this case," 22 as if to say that normally, this Court would have tilted the scales the other
way. I do not understand why these cases are apparently, special cases, and
apparently, the majority is not telling us neither. I am wondering why, apart from the fact
that these cases involved, incidentally, people who think differently from the rest of us.

The majority goes on:

Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's

arrest without warrant was made only on 28 December 1988, or 14 days later,
 the arrest falls under Section 5(b) of Rule 113, since it was only on 28 December
1988 that the police authorities came to know that Nazareno was probably one of
those guilty in the killing of Bunye II. 23

With all due respect, I do not think that the majority is aware of the serious implications of its pronouncement on individual rights (and statutory
construction in general), and I feel I am appropriately concerned because as a member of the Court, I am co-responsible for the acts of my colleagues
and I am afraid that I may, rightly or wrongly, be in time made to defend such an indefensible pronouncement.

Section 5(b) of Rule 113 is clear and categorical: the offense must have been "just committed" and the authorities must have "personal knowledge."

In no way can an offense be said to have been "just committed" fourteen days after it was in fact (allegedly) committed. In no way can the authorities be
said to have "personal knowledge" two weeks thereafter; whatever "personal knowledge" they have can not possibly be "personal knowledge" of a crime
that had "just been committed;" whatever "personal knowledge" they have is necessarily "personal knowledge" of a crime committed two weeks before.

In no way can Nazareno's arrest be said to be an arrest sanctioned by the exceptional provisions of the Rules.

I am not saying that the military can not act in all cases, and it is sheer ignorance to suppose that I am saying it, (or worse, that I am "coddling
criminals"). I am not saying that a suspected criminal, if he can not be arrested without a warrant, can not be arrested at all — but that the military
should first procure a warrant from a judge before effecting an arrest. It is not too much to ask of so-called law enforcers.

As it is, the majority has enlarged the authority of peace officers to act, when the Rules have purposely limited it by way of an exception, precisely, to the
general rule, mandated by the Constitution no less, that arrests may be done only through a judicial warrant. As it is, the majority has in fact given the
military the broadest discretion to act, a discretion the law denies even judges 24
 — today it is fourteen days, tomorrow,
one year, and sooner, a decade. I submit that a year, a decade, would not be in fact
unreasonable, following the theory of the majority, since the military can claim anytime
that it "found out only later," as the majority did not find it unreasonable for the Capital
Command to claim that it "came to know that Nazareno was probably one of those guilty
in the killing of Bunye II" 25—and none of us can possibly dispute it.

I would like to stress strongly that we are not talking of a simple "administrative
measure" alone—we are talking of arrests, of depriving people of liberty—even if we are
not yet talking of whether or not people are guilty. That we are not concerned with guilt
or innocence is hardly the point, I respectfully submit, and it will not minimize the
significance of the petitioners' predicament.

With respect to Wilfredo Buenaobra, I submit that the majority has, as in the cases of
Amelia Roque, et al., ignored the fact that Buenaobra's alleged "admission" (actually, an
uncounselled confession) was precisely, the basis for Buenaobra's arrest. It is to beg
the question, I respectfully submit, to approve the military's action for the reason that
Buenaobra confessed, because Buenaobra confessed for the reason that the military,
precisely, pounced on him. I am not to be mistaken for prejudging Buenaobra's
innocence (although it is supposed to be presumed) but I can not imagine that
Buenaobra would have voluntarily proclaimed to the military that he was an NPA courier
so that the military could pounce on him.

I respectfully submit that the cases Garcia vs. Padilla 26 and Ilagan vs. Enrile 27 have

been better days. I do not see how this court can continuously sustain them "where
national security and stability are still directly challenged perhaps with greater vigor from
the communist rebels." 28 First and foremost, and as the majority has conceded, we do
not know if we are in fact dealing with "Communists." The case of Deogracias Espiritu,
for one, hardly involves subversion. Second, "Communism" and "national security" are
old hat — the dictator's own excuses to perpetuate tyranny, and I am genuinely
disappointed that we would still fall for old excuses. Third, Garcia and Ilagan rested on
supposed grounds that can not be possibly justified in a regime that respects the rule of
law — that the Presidential Commitment Order (PCO) is a valid presidential document
(Garcia) and that the filing of an information cures a defective arrest (Ilagan). Fourth and
finally, it is evident that neither "Communist threat" nor "national security" are valid
grounds for warrantless arrests under Section 5(b) of Rule 113.

I most respectfully submit that Garcia and Ilagan have not only been diluted by
subsequent jurisprudence (e.g., People vs. Burgos, supra), they are relics of
authoritarian rule that can no longer be defended, if they could have been defended, in
Plaza Miranda or before our own peers in the bar.

"What is important," says the majority, "is that every arrest without warrant be tested as
to its legality, via habeas corpus proceedings." 29 I supposed that goes without saying.
But it is also to patronize the petitioners and simply, to offer a small consolation, when
after all, this Court is validating their continued detention. 30 With all due respect, I
submit that it is nothing for which the public should be elated.

A Final Word

As I began my dissent, in this Resolution and the Decision sought to be reconsidered, I

reiterate one principle: The State has no right to bother citizens without infringing their
right against arbitrary State action. "The right of the people," states the Constitution, "to
be secure in their persons, houses, papers, and effects against unreasonable searchers
and seizures of whatever nature and for any purpose shall be inviolable . . . ." 31 "The
State," the Charter likewise states, "values the dignity of every human person and
guarantees full respect for human rights." 32 The Constitution states the general rule —
the majority would make the exception the rule, and the rule the exception. With all due
respect, this is not what constitutionalism is all about.

I submit that the "actual facts and circumstances" the majority refers to are, in the first
place, doubtful, the "actual facts and circumstances" being no more than "confidential
information" (manufactured or genuine, we have no way of telling) and in the second
place, any information with which the military (or police) were armed could no more than
be hearsay, not personal, information. I submit that the "actual facts and circumstances"
the majority insists on can not justify the arrests in question under Section 5(b) of Rule
113, the rule the majority insists is the applicable rule.

Apparently, Section 5(b) is not the applicable rule, as far as Deogracias Espiritu and
Narciso Nazareno are concerned; certainly, it is not the Section 5(b) I know. As I
indicated, Espiritu was arrested one day after the act, allegedly, inciting to sedition;
Nazareno was picked up fourteen days after it (allegedly, murder). Yet, the majority
would approve the police's actions nonetheless because the police supposedly "found
out only later." I submit that the majority has read into Section 5(b) a provision that has
not been written there.

"More than the allure of popularity of palatability to some groups," concludes the
majority, "what is important is that the Court be right." 33

Nobody has suggested in the first place, that Umil was and is a question of popularity or palatability. Umil is a question, on the contrary, of whether or
not the military (or police), in effecting the arrests assailed, had complied with the requirements of law on warrantless arrests. Umil is a question of
whether or not this Court, in approving the military's actions, is right.

In spite of "EDSA", a climate of fear persists in the country, as incidences of disappearances, torture, hamletting, bombings, saturation drives, and
various human rights violations increase in alarming rates. In its update for October, 1990, the Task Force Detainees of the Philippines found:

An average of 209 arrested for political reasons monthly since 1988, 94% of them illegally;

Four thousand four hundred eight (4,408) political detentions from January, 1989 to September, 1990, 4,419, illegally;

Of those arrested, 535 showed signs of torture; 280 were eventually salvaged, 40, of frustrated salvage, and 109 remained missing after their arrest;

Forty (40) cases of massacres, with 218 killed; 54 cases of frustrated massacre, in which 157 were wounded;

The victims belonged to neighborhood and union organizations;

Since February, 1986, 532 of those illegally arrested were women;

From January to June 1990, 361 children were detained for no apparent reason;

One million ten thousand four hundred nine (1,010,409) have been injured as a consequence of bombing, shellings, and food blockades undertaken by
the military since 1988. 34

It is a bleak picture, and I am disturbed that this Court should express very little concern. I am also disappointed that it is the portrait of the Court I am
soon leaving. Nonetheless, I am hopeful that despite my departure, it will not be too late.
Motions denied.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 96356             June 27, 1991

NONILLON A. BAGALIHOG, petitioner,
vs.
HON. JUDGE GIL P. FERNANDEZ, Presiding Judge of Br. 45, RTC of Masbate; and
MAJOR JULITO ROXAS, respondents.

Jolly T. Fernandez for petitioner.

Antonio Llacer for private respondent.

CRUZ, J.:

We are asked once again to rule on the validity of a search and seizure as tested by the
requirements of the Bill of Rights and to balance the demands of an orderly society with
the imperatives of individual liberty.

On March 17, 1989, Rep. Moises Espinosa was shot to death shortly after disembarking
at the Masbate Airport. Witnesses said one of the gunmen fled on a motorcycle. On the
same day, the petitioner's house, which was near the airport, was searched with his
consent to see if the killers had sought refuge there. The search proved fruitless.

Two days later, Capt. Julito Roxas and his men from the Philippine Constabulary seized
the petitioner's motorcycle and took it to the PC headquarters in Masbate. They had no
search warrant. The motorcycle was impounded on the suspicion that it was one of the
vehicles used by the killers.

After investigation, the petitioner and several others were charged with multiple murder
and frustrated murder for the killing of Espinosa and three of his bodyguards and the
wounding of another person.

On June 21, 1989, the petitioner filed a complaint against Capt. Roxas for the recovery
of the motorcycle with an application for a writ of replevin, plus damages in the total
amount of P55,000.001 This was docketed as Civil Case No. 3878 in Branch 48 of the
Regional Trial Court of Masbate.
On November 7, 1989, the petitioner filed an urgent manifestation for the deposit of the
motorcycle with the clerk of court of the Regional Trial Court of Masbate, on the ground
that PC soldiers were using the vehicle without authority. The motion was granted on
November 10, 1989, by Judge Ricardo Butalid.

Judge Butalid later inhibited himself and Civil Case No. 3878 was transferred to Branch
45, presided by Judge Gil Fernandez. In the criminal cases, a change of venue was
ordered by this Court from Branch 45 of the Regional Trial Court of Masbate to Branch
56 of the Regional Trial Court of Makati.

On October 12, 1990, Judge Fernandez dismissed Civil Case No. 3878, in an order
holding in part as follows:

The question to be resolved is whether Replevin is proper to recover the

possession of said motorcycle.

It is admitted that the motorcycle in question, now in the possession of the Clerk
of Court of Masbate, is to be used as evidence in Criminal Case Nos. 5811-5814,
now pending trial before Branch 56 of the Regional Trial Court of Makati, Metro
Manila. This Court opined that it has no jurisdiction to release evidence
impounded or surrendered to the PC-CIS Task Force Espinosa.

Property seized in enforcing criminal laws is in the custody of the law and
cannot be replevied until such custody is ended. (77 C.J.S. 28.)

Granting as claimed by plaintiff that said motorcycle was illegally seized, he can
raise the issue when presented during the trial.

The proper Court to order its release, the motorcycle in question, is the Presiding
Judge of Branch 56 of the Regional Trial Court of Makati, Metro Manila.

WHEREFORE, this case is hereby ordered DISMISSED for lack of jurisdiction.

Reconsideration having been denied, the petitioner now asks this Court to reverse the
said order.

His contention is that the motorcycle was invalidly seized and that therefore he has a
right to its return.1awp++i1 The proper remedy for this purpose is his complaint for
recovery and the issuance of a writ of replevin as authorized by the Rules of Court. In
refusing to grant him relief and dismissing the case instead on the ground of lack of
jurisdiction, the respondent court committed reversible error that he prays this Court will
correct.

In his comment, the private respondent admits the absence of a search warrant when
the motorcycle was seized but stresses that the crime perpetrated is a heinous offense.
Espinosa was a man of consequence. The motorcycle in question is an extremely
mobile vehicle and can be easily dismantled or hidden, and the unique situation existing
at that time required him to place it in the custody of the PC-CIS Task Force Espinosa
without first securing a search warrant. In doing so, he merely complied with the orders
of his superior to preserve the vehicle for use as evidence in the criminal cases.

We share Captain Roxas's concern for the apprehension of the killers but cannot agree
with his methods. While recognizing the need for the punishment of crime, we must
remind him that in our system of criminal justice, the end does not justify the means. For
all his strong conviction about the guilt of the petitioner, the private respondent must still
abide by the Constitution and observe the requirements of the Bill of Rights. Article III,
Section 2, 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 guaranty is one of the greatest of individual liberties and was already recognized
even during the days of the absolute monarchies, when the king could do no wrong. On
this right, Cooley wrote: "Awe surrounded and majesty clothed the King, but the
humblest subject might shut the door of his cottage against him and defend from
intrusion that privacy which was as sacred as the kingly prerogatives." 2

The provision protects not only those who appear to be innocent but also those who
appear to be guilty but are nevertheless to be presumed innocent until the contrary is
proved. The mere fact that in the private respondent's view the crime involved is
"heinous" and the victim was "a man of consequence" did not authorize disregard of the
constitutional guaranty. Neither did "superior orders" condone the omission for they
could not in any case be superior to the Constitution.

We do not find that the importance of the motorcycle in the prosecution of the criminal
cases excused its seizure without a warrant. The authorities had enough time to comply
with the required procedure but they did not do so, preferring the unconstitutional
shortcut. The crime was committed on March 17, 1989, and the motorcycle was seized
only on March 19, 1989, or two days later. During that period, the private respondent
had all the opportunity to apply for a search warrant and establish probable cause in
accordance with the Bill of Rights and the Rules of Court. He did not.

The following observation in Alih v. Castro3 is an appropriate reminder:

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.

x x x           x x x          x x x

When the respondents could have easily obtained a search warrant from any of
the TEN civil courts then open and functioning in Zamboanga City, they instead
simply barged into the beleaguered premises on the verbal order of their superior
officers. One cannot just force his way into any man's house on the illegal orders
of a superior, however lofty his rank. Indeed, even the humblest hovel is
protected from official intrusion because of the ancient rule, revered in all free
regimes, that a man's house is his castle.

The mere mobility of the motorcycle did not make the search warrant redundant for it is
not denied that the vehicle remained with the petitioner until it was forcibly taken from
him. The fear that it would be dismantled or hidden was mere speculation that was not
borne out by the facts. The extraordinary events cited in People v. Court of First
Instance of Rizal4 are not present in the case now before us. The necessity for the
immediate seizure of the motorcycle without the prior obtention of a warrant has not
been established.

The private respondent himself emphasizes that the petitioner had promised in the
morning of March 19, 1989, to present the motorcycle in case it was needed during the
investigation of the killings.5 There was no reason to fear that it would be concealed by
the petitioner, who presumably was under police surveillance at the time as one of the
suspected killers. He could not have had that much opportunity to hide the vehicle even
if he wanted to.

The private respondent maintains that by the petitioner's promise, he effectively waived
the right to a search warrant and so can no longer complain that the motorcycle had
been invalidly seized. There was no such waiver. The petitioner merely agreed to
cooperate with the investigators and to produce the vehicle when needed, but he did not
agree to have it impounded. The record shows that he expressed reservations when
this was suggested and said he needed the motorcycle for his official duties as a
member of the Sangguniang Panlalawigan and in his private business. 6 At any rate, it
has been shown that he was unwilling to surrender it at the time it was taken without
warrant, and that made the taking unlawful.

In Roan v. Gonzales,7 the Court said:

It is true that are certain instances when a search when a search may be taken
validly made without warrant and articles may be taken validly as a result of that
search. For example, a warrantless search may be made incidental to a lawful
 arrest, as when the person being arrested is frisked for weapons he may
otherwise be able to use against the arresting officer. Motor cars may be
inspected at borders to prevent smuggling of aliens and contraband and even in
the interior upon a showing of probable cause. Vessels and aircraft are also
traditionally removed from the operation of the rule because of their mobility and
their relative ease in fleeing the state's jurisdiction. The individual may knowingly
agree to be searched or waive objections to an illegal search. And it has also
been held that prohibited articles may be taken without warrant if they are open
to eye and hand and the peace officer comes upon them inadvertently.

The case at bar does not come under any of the above specified exceptions. The
warrantless seizure of the motorcycle was unquestionably violative of "the right to be let
alone" by the authorities as guaranteed by the Constitution. The vehicle cannot even be
detained on the ground that it is a prohibited article the mere possession of which is
unlawful.

In dismissing Civil Case No. 3878, the respondent judge said he had no jurisdiction over
the motorcycle because it was in custodia legis and only the judge trying the criminal
cases against the petitioner and his co-accused could order its release. He cited the
general doctrine that:

Property seized in enforcing criminal laws is in the custody of the law and cannot
be replevied, until such custody is ended.8

It is true that property held as evidence in a criminal case cannot be replevied. But the
rule applies only where the property is lawfully held, that is, seized in accordance with
the rule against warrantless searches and seizures or its accepted exceptions. Property
subject of litigation is not by that fact alone in custodia legis.9 As the Court said in
Tamisin v. Odejar10 "A thing is in custodia legis when it is shown that it has been and is
subjected to the official custody of a judicial executive officer in pursuance of his
execution of a legal writ." Only when property is lawfully taken by virtue of legal process
is it considered in the custody of the law, and not otherwise. 11

The circumstance that Judge Fernandez ordered the motorcycle to be deposited with
the clerk of court on motion of the petitioner did not place the vehicle in custodia legis.
The respondent judge had no authority over it because it had not been lawfully seized
nor had it been voluntarily surrendered to the court by the petitioner. The private
respondent observed in his comment that "it is only when the exhibits are offered in
evidence and admitted by the court that they are submitted to the custody of the Court,
and, before that, "they are usually in the possession of the prosecution." Even he
agrees therefore that the motorcycle is not in custodia legis.

At that, the vehicle in the case at bar is not admissible as an exhibit even if offered as
such because it is "the fruit of the poisonous tree." Under Article III, Sec. 3(2) "any
evidence obtained in violation" of the rule against unreasonable searches and seizure
"shall be inadmissible for any purpose in any proceeding."
Our finding is that the action to recover the motorcycle in the Regional Trial Court of
Masbate will not constitute interference with the processes of the Regional Trial Court of
Makati and that, consequently, the complaint should not have been dismissed by the
respondent judge.

The Judiciary is as anxious as the rest of the government that crime be prevented and,
if committed, redressed.1âwphi1 There is no question that the person who violates the
law deserves to be punished to the full extent that the attendant circumstances will
allow. But the prosecution of the suspected criminal cannot be done with high-
handedness or prejudgment, in disregard of the very laws we are supposed to uphold.
Zeal in the pursuit of criminals cannot ennoble the use of arbitrary methods that the
Constitution itself abhors.

WHEREFORE, the order of the respondent judge dated October 12, 1990, is SET
ASIDE and Civil Case No. 3878 is REINSTATED for further proceedings. No costs.

SO ORDERED.

Narvasa, Griño-Aquino and Medialdea, JJ., concur.

Gancayco, J., is on leave.