PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.

Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:

This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial
Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation
to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise
known as the Dangerous Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife,
Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" in the
Pistang Pilipino Complex, Ermita, Manila, carrying with them four (4) gift wrapped packages.
Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The
appellant informed Anita Reyes that he was sending the packages to a friend in Zurich,
Switzerland. Appellant filled up the contract necessary for the transaction, writing therein his
name, passport number, the date of shipment and the name and address of the consignee,
namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)

Anita Reyes then asked the appellant if she could examine and inspect the packages.
Appellant, however, refused, assuring her that the packages simply contained books, cigars,
and gloves and were gifts to his friend in Zurich. In view of appellant's representation, Anita
Reyes no longer insisted on inspecting the packages. The four (4) packages were then
placed inside a brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed
at the bottom and on top of the packages before the box was sealed with masking tape, thus
making the box ready for shipment (Decision, p. 8).

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

Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a
laboratory examination of the samples he extracted from the cellophane wrapper (tsn, pp. 5-
6, October 6, 1987).

He brought the letter and a sample of appellant's shipment to the Narcotics Section of the
National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of that
 date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics Section. Job Reyes
informed the NBI that the rest of the shipment was still in his office. Therefore, Job Reyes
and three (3) NBI agents, and a photographer, went to the Reyes' office at Ermita, Manila
(tsn, p. 30, October 6, 1987).

Job Reyes brought out the box in which appellant's packages were placed and, in the
presence of the NBI agents, opened the top flaps, removed the styro-foam and took out the
cellophane wrappers from inside the gloves. Dried marijuana leaves were found to have
been contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987; Emphasis
supplied).

The package which allegedly contained books was likewise opened by Job Reyes. He
discovered that the package contained bricks or cake-like dried marijuana leaves. The
package which allegedly contained tabacalera cigars was also opened. It turned out that
dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6,
1987).

The NBI agents made an inventory and took charge of the box and of the contents thereof,
after signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7,
1987).

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his
passport being the Manila Central Post Office, the agents requested assistance from the latter's
Chief Security. On August 27, 1987, appellant, while claiming his mail at the Central Post Office, was
invited by the NBI to shed light on the attempted shipment of the seized dried leaves. On the same
day the Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry Section
for laboratory examination. It turned out that the dried leaves were marijuana flowering tops as
certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).

Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as
the Dangerous Drugs Act.

After trial, the court a quo rendered the assailed decision.

In this appeal, accused/appellant assigns the following errors, to wit:

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED

AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.

THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED

FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL
PROCEEDINGS WERE NOT OBSERVED.

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF

THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION
(Appellant's Brief, p. 1; Rollo, p. 55)

1. Appellant contends that the evidence subject of the imputed offense had been obtained in
violation of his constitutional rights against unreasonable search and seizure and privacy of
communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should be
held inadmissible in evidence (Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
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.

Our present constitutional provision on the guarantee against unreasonable search and seizure had
its origin in the 1935 Charter which, worded as follows:

The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but
upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be seized. (Sec. 1 [3], Article III)

was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution.
As such, the Court may turn to the pronouncements of the United States Federal Supreme Court
and State Appellate Courts which are considered doctrinal in this jurisdiction.

Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme
Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA
383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective search and
seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v. People's
Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the illegality of its
seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried
over up to the present with the advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the
admissibility of evidence obtained in violation of the constitutional safeguard against unreasonable
searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de
Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA
687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).

It must be noted, however, that in all those cases adverted to, the evidence so obtained were
invariably procured by the State acting through the medium of its law enforcers or other authorized
government agencies.

On the other hand, the case at bar assumes a peculiar character since the evidence sought to be
excluded was primarily discovered and obtained by a private person, acting in a private capacity and
without the intervention and participation of State authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional right against unreasonable searches and
seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in violation
of appellant's constitutional rights, be invoked against the State?

We hold in the negative. In the absence of governmental interference, the liberties guaranteed by
the Constitution cannot be invoked against the State.

As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

1. This constitutional right (against unreasonable search and seizure) refers to the immunity
of one's person, whether citizen or alien, from interference by government, included in which
is his residence, his papers, and other possessions. . . .

. . . There the state, however powerful, does not as such have the access except under the
circumstances above noted, for in the traditional formulation, his house, however humble, is
his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon
to refrain from any invasion of his dwelling and to respect the privacies of his life. . . . (Cf.
Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616
[1886]; Emphasis supplied).

In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in
construing the right against unreasonable searches and seizures declared that:

(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as
shown in previous cases, its protection applies to governmental action. Its origin and history
clearly show that it was intended as a restraint upon the activities of sovereign authority, and
was not intended to be a limitation upon other than governmental agencies; as against such
authority it was the purpose of the Fourth Amendment to secure the citizen in the right of
unmolested occupation of his dwelling and the possession of his property, subject to the right
of seizure by process duly served.

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant
who searched the automobile to ascertain the owner thereof found marijuana instead, without the
knowledge and participation of police authorities, was declared admissible in prosecution for illegal
possession of narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and
seizure clauses are restraints upon the government and its agents, not upon private individuals
(citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391
S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:

The search of which appellant complains, however, was made by a private citizen — the
owner of a motel in which appellant stayed overnight and in which he left behind a travel
case containing the evidence*** complained of. The search was made on the motel owner's
own initiative. Because of it, he became suspicious, called the local police, informed them of
the bag's contents, and made it available to the authorities.

The fourth amendment and the case law applying it do not require exclusion of evidence
obtained through a search by a private citizen. Rather, the amendment only proscribes
governmental action."
The contraband in the case at bar having come into possession of the Government without the latter
transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent
reason why the same should not be admitted against him in the prosecution of the offense charged.

Appellant, however, would like this court to believe that NBI agents made an illegal search and
seizure of the evidence later on used in prosecuting the case which resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days. In both instances,
the argument stands to fall on its own weight, or the lack of it.

First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents
conducted an illegal search and seizure of the prohibited merchandise. Records of the case clearly
indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made
search/inspection of the packages. Said inspection was reasonable and a standard operating
procedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to the
Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original
Records, pp. 119-122; 167-168).

It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the
same to the NBI and later summoned the agents to his place of business. Thereafter, he opened the
parcel containing the rest of the shipment and entrusted the care and custody thereof to the NBI
agents. Clearly, the NBI agents made no search and seizure, much less an illegal one, contrary to
the postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search effected by
Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and
look at that which is in plain sight is not a search. Having observed that which is open, where no
trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135).
Where the contraband articles are identified without a trespass on the part of the arresting officer,
there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202
[1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122
[1968]).

In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was
taken into custody of the police at the specific request of the manager and where the search was
initially made by the owner there is no unreasonable search and seizure within the constitutional
meaning of the term.

That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private
individuals finds support in the deliberations of the Constitutional Commission. True, the liberties
guaranteed by the fundamental law of the land must always be subject to protection. But protection
against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the
query which he himself posed, as follows:

First, the general reflections. The protection of fundamental liberties in the essence of
constitutional democracy. Protection against whom? Protection against the state. The Bill of
Rights governs the relationship between the individual and the state. Its concern is not the
relation between individuals, between a private individual and other individuals. What the Bill
of Rights does is to declare some forbidden zones in the private sphere inaccessible to any
power holder. (Sponsorship Speech of Commissioner Bernas , Record of the Constitutional
Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)
The constitutional proscription against unlawful searches and seizures therefore applies as a
restraint directed only against the government and its agencies tasked with the enforcement of the
law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and
unreasonable exercise of power is imposed.

If the search is made upon the request of law enforcers, a warrant must generally be first secured if
it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of
the proprietor of a private establishment for its own and private purposes, as in the case at bar, and
without the intervention of police authorities, the right against unreasonable search and seizure
cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the
protection against unreasonable searches and seizures cannot be extended to acts committed by
private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.

Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by
the present phraseology found in the 1987 Charter, expressly declaring as inadmissible any
evidence obtained in violation of the constitutional prohibition against illegal search and seizure, it
matters not whether the evidence was procured by police authorities or private individuals
(Appellant's Brief, p. 8, Rollo, p. 62).

The argument is untenable. For one thing, the constitution, in laying down the principles of the
government and fundamental liberties of the people, does not govern relationships between
individuals. Moreover, it must be emphasized that the modifications introduced in the 1987
Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of
arrest vis-a-vis the responsibility of the judge in the issuance thereof (See Soliven v. Makasiar, 167
SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The
modifications introduced deviate in no manner as to whom the restriction or inhibition against
unreasonable search and seizure is directed against. The restraint stayed with the State and did not
shift to anyone else.

Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against
the State by an individual unjustly traduced by the exercise of sovereign authority. To agree with
appellant that an act of a private individual in violation of the Bill of Rights should also be construed
as an act of the State would result in serious legal complications and an absurd interpretation of the
constitution.

Similarly, the admissibility of the evidence procured by an individual effected through private seizure
equally applies, in pari passu, to the alleged violation, non-governmental as it is, of appellant's
constitutional rights to privacy and communication.

2. In his second assignment of error, appellant contends that the lower court erred in convicting him
despite the undisputed fact that his rights under the constitution while under custodial investigation
were not observed.

Again, the contention is without merit, We have carefully examined the records of the case and
found nothing to indicate, as an "undisputed fact", that appellant was not informed of his
constitutional rights or that he gave statements without the assistance of counsel. The law enforcers
testified that accused/appellant was informed of his constitutional rights. It is presumed that they
have regularly performed their duties (See. 5(m), Rule 131) and their testimonies should be given full
faith and credence, there being no evidence to the contrary. What is clear from the records, on the
other hand, is that appellant refused to give any written statement while under investigation as
testified by Atty. Lastimoso of the NBI, Thus:
 Fiscal Formoso:

You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did
you investigate the accused together with the girl?

WITNESS:

Yes, we have interviewed the accused together with the girl but the accused availed of his
constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p. 62;
Original Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the defense on
cross-examination. As borne out by the records, neither was there any proof by the defense that
appellant gave uncounselled confession while being investigated. What is more, we have examined
the assailed judgment of the trial court and nowhere is there any reference made to the testimony of
appellant while under custodial investigation which was utilized in the finding of conviction.
Appellant's second assignment of error is therefore misplaced.

3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was
not the owner of the packages which contained prohibited drugs but rather a certain Michael, a
German national, whom appellant met in a pub along Ermita, Manila: that in the course of their 30-
minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for the
cost of the shipment since the German national was about to leave the country the next day
(October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-
serving and contrary to human experience. It can easily be fabricated. An acquaintance with a
complete stranger struck in half an hour could not have pushed a man to entrust the shipment of four
(4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to comply
with the undertaking without first ascertaining its contents. As stated by the trial court, "(a) person
would not simply entrust contraband and of considerable value at that as the marijuana flowering
tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on
the other hand, would not simply accept such undertaking to take custody of the packages and ship
the same from a complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why he
readily agreed to do the errand, appellant failed to explain. Denials, if unsubstantiated by clear and
convincing evidence, are negative self-serving evidence which deserve no weight in law and cannot
be given greater evidentiary weight than the testimony of credible witnesses who testify on
affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237
[1989]).

Appellant's bare denial is even made more suspect considering that, as per records of the Interpol,
he was previously convicted of possession of hashish by the Kleve Court in the Federal Republic of
Germany on January 1, 1982 and that the consignee of the frustrated shipment, Walter Fierz, also a
Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from
appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244;
Decision, p. 21; Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be
credible in itself such as the common experience and observation of mankind can approve as
probable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke,
37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327
[1983]); Castañares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not even
bother to ask Michael's full name, his complete address or passport number. Furthermore, if indeed,
the German national was the owner of the merchandise, appellant should have so indicated in the
contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the
contract as the owner and shipper thereof giving more weight to the presumption that things which a
person possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At
this point, appellant is therefore estopped to claim otherwise.

Premises considered, we see no error committed by the trial court in rendering the assailed
judgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the
crime charged is hereby AFFIRMED. No costs.

SO ORDERED.

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his
capacity as Acting Director, National Bureau of Investigation; SPECIAL PROSECUTORS
PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL
MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of Manila; JUDGE ROMAN
CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG, Court of First
Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of
Quezon City, respondents.

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

CONCEPCION, C.J.:

Upon application of the officers of the government named on the margin1 — hereinafter referred to
as Respondents-Prosecutors — several judges2 — hereinafter referred to as Respondents-Judges
— issued, on different dates,3 a total of 42 search warrants against petitioners herein4 and/or the
corporations of which they were officers,5 directed to the any peace officer, to search the persons
above-named and/or the premises of their offices, warehouses and/or residences, and to seize and
take possession of the following personal property to wit:

Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals,

portfolios, credit journals, typewriters, and other documents and/or papers showing all
business transactions including disbursements receipts, balance sheets and profit and loss
statements and Bobbins (cigarette wrappers).

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

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

In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are valid
and have been issued in accordance with law; (2) that the defects of said warrants, if any, were
cured by petitioners' consent; and (3) that, in any event, the effects seized are admissible in
evidence against herein petitioners, regardless of the alleged illegality of the aforementioned
searches and seizures.

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

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

As regards the first group, we hold that petitioners herein have no cause of action to assail the
legality of the contested warrants and of the seizures made in pursuance thereof, for the simple
reason that said corporations have their respective personalities, separate and distinct from the
personality of herein petitioners, regardless of the amount of shares of stock or of the interest of
each of them in said corporations, and whatever the offices they hold therein may be.8 Indeed, it is
well settled that the legality of a seizure can be contested only by the party whose rights have been
impaired thereby,9 and that the objection to an unlawful search and seizure is purely personal and
cannot be availed of by third parties. 10 Consequently, petitioners herein may not validly object to the
use in evidence against them of the documents, papers and things seized from the offices and
premises of the corporations adverted to above, since the right to object to the admission of said
papers in evidence belongs exclusively to the corporations, to whom the seized effects belong, and
may not be invoked by the corporate officers in proceedings against them in their individual
capacity. 11 Indeed, it has been held:
 . . . that the Government's action in gaining possession of papers belonging to
the corporation did not relate to nor did it affect the personal defendants. If these papers
were unlawfully seized and thereby the constitutional rights of or any one were invaded, they
were the rights of the corporation and not the rights of the other defendants. Next, it is clear
that a question of the lawfulness of a seizure can be raised only by one whose rights have
been invaded. Certainly, such a seizure, if unlawful, could not affect the constitutional rights
of defendants whose property had not been seized or the privacy of whose homes had not
been disturbed; nor could they claim for themselves the benefits of the Fourth Amendment,
when its violation, if any, was with reference to the rights of another. Remus vs. United
States (C.C.A.)291 F. 501, 511. It follows, therefore, that the question of the admissibility of
the evidence based on an alleged unlawful search and seizure does not extend to the
personal defendants but embraces only the corporation whose property was taken. . . . (A
Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.)

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

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

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

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

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

None of these requirements has been complied with in the contested warrants. Indeed, the same
were issued upon applications stating that the natural and juridical person therein named had
committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and
Revised Penal Code." In other words, no specific offense had been alleged in said applications. The
averments thereof with respect to the offense committed were abstract. As a consequence, it
was impossible for the judges who issued the warrants to have found the existence of probable
cause, for the same presupposes the introduction of competent proof that the party against whom it
is sought has performed particular acts, or committed specific omissions, violating a given provision
of our criminal laws. As a matter of fact, the applications involved in this case do not allege any
specific acts performed by herein petitioners. It would be the legal heresy, of the highest order, to
convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue
(Code) and Revised Penal Code," — as alleged in the aforementioned applications — without
reference to any determinate provision of said laws or
To uphold the validity of the warrants in question would be to wipe out completely one of the most
fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and
the privacy of communication and correspondence at the mercy of the whims caprice or passion of
peace officers. This is precisely the evil sought to be remedied by the constitutional provision above
quoted — to outlaw the so-called general warrants. It is not difficult to imagine what would happen,
in times of keen political strife, when the party in power feels that the minority is likely to wrest it,
even though by legal means.

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

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

Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers,

portfolios, credit journals, typewriters, and other documents and/or papers showing all
business transactions including disbursement receipts, balance sheets and related profit and
loss statements.

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

Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that,
even if the searches and seizures under consideration were unconstitutional, the documents, papers
and things thus seized are admissible in evidence against petitioners herein. Upon mature
deliberation, however, we are unanimously of the opinion that the position taken in the Moncado
case must be abandoned. Said position was in line with the American common law rule, that the
criminal should not be allowed to go free merely "because the constable has blundered," 16 upon the
theory that the constitutional prohibition against unreasonable searches and seizures is protected by
means other than the exclusion of evidence unlawfully obtained, 17 such as the common-law action
for damages against the searching officer, against the party who procured the issuance of the
search warrant and against those assisting in the execution of an illegal search, their criminal
punishment, resistance, without liability to an unlawful seizure, and such other legal remedies as
may be provided by other laws.

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

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

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

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

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

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

Since the Fourth Amendment's right of privacy has been declared enforceable against the
States through the Due Process Clause of the Fourteenth, it is enforceable against them by
the same sanction of exclusion as it used against the Federal Government. Were it
otherwise, then just as without the Weeks rule the assurance against unreasonable federal
searches and seizures would be "a form of words," valueless and underserving of mention in
a perpetual charter of inestimable human liberties, so too, without that rule the freedom from
state invasions of privacy would be so ephemeral and so neatly severed from its conceptual
nexus with the freedom from all brutish means of coercing evidence as not to permit this
Court's high regard as a freedom "implicit in the concept of ordered liberty." At the time that
the Court held in Wolf that the amendment was applicable to the States through the Due
Process Clause, the cases of this Court as we have seen, had steadfastly held that as to
federal officers the Fourth Amendment included the exclusion of the evidence seized in
violation of its provisions. Even Wolf "stoutly adhered" to that proposition. The right to when
conceded operatively enforceable against the States, was not susceptible of destruction by
avulsion of the sanction upon which its protection and enjoyment had always been deemed
dependent under the Boyd, Weeks and Silverthorne Cases. Therefore, in extending the
substantive protections of due process to all constitutionally unreasonable searches — state
or federal — it was logically and constitutionally necessarily that the exclusion doctrine — an
essential part of the right to privacy — be also insisted upon as an essential ingredient of the
right newly recognized by the Wolf Case. In short, the admission of the new constitutional
Right by Wolf could not tolerate denial of its most important constitutional privilege, namely,
the exclusion of the evidence which an accused had been forced to give by reason of the
unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege
and enjoyment. Only last year the Court itself recognized that the purpose of the
exclusionary rule to "is to deter — to compel respect for the constitutional guaranty in the
only effectively available way — by removing the incentive to disregard it" . . . .
 The ignoble shortcut to conviction left open to the State tends to destroy the entire system of
constitutional restraints on which the liberties of the people rest. Having once recognized that
the right to privacy embodied in the Fourth Amendment is enforceable against the States,
and that the right to be secure against rude invasions of privacy by state officers is, therefore
constitutional in origin, we can no longer permit that right to remain an empty promise.
Because it is enforceable in the same manner and to like effect as other basic rights secured
by its Due Process Clause, we can no longer permit it to be revocable at the whim of any
police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment.
Our decision, founded on reason and truth, gives to the individual no more than that which
the Constitution guarantees him to the police officer no less than that to which honest law
enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true
administration of justice. (emphasis ours.)

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

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

In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29,
1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey
Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-Navy Club, should be
included among the premises considered in said Resolution as residences of herein petitioners,
Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that,
furthermore, the records, papers and other effects seized in the offices of the corporations above
referred to include personal belongings of said petitioners and other effects under their exclusive
possession and control, for the exclusion of which they have a standing under the latest rulings of
the federal courts of federal courts of the United States. 22

We note, however, that petitioners' theory, regarding their alleged possession of and control over the
aforementioned records, papers and effects, and the alleged "personal" nature thereof, has Been
Advanced, not in their petition or amended petition herein, but in the Motion for Reconsideration and
Amendment of the Resolution of June 29, 1962. In other words, said theory would appear to be
readjustment of that followed in said petitions, to suit the approach intimated in the Resolution
sought to be reconsidered and amended. Then, too, some of the affidavits or copies of alleged
affidavits attached to said motion for reconsideration, or submitted in support thereof, contain either
inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners
herein.
Upon the other hand, we are not satisfied that the allegations of said petitions said motion for
reconsideration, and the contents of the aforementioned affidavits and other papers submitted in
support of said motion, have sufficiently established the facts or conditions contemplated in the
cases relied upon by the petitioners; to warrant application of the views therein expressed, should
we agree thereto. At any rate, we do not deem it necessary to express our opinion thereon, it being
best to leave the matter open for determination in appropriate cases in the future.

We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby,
abandoned; that the warrants for the search of three (3) residences of herein petitioners, as
specified in the Resolution of June 29, 1962, are null and void; that the searches and seizures
therein made are illegal; that the writ of preliminary injunction heretofore issued, in connection with
the documents, papers and other effects thus seized in said residences of herein petitioners is
hereby made permanent; that the writs prayed for are granted, insofar as the documents, papers
and other effects so seized in the aforementioned residences are concerned; that the
aforementioned motion for Reconsideration and Amendment should be, as it is hereby, denied; and
that the petition herein is dismissed and the writs prayed for denied, as regards the documents,
papers and other effects seized in the twenty-nine (29) places, offices and other premises
enumerated in the same Resolution, without special pronouncement as to costs.

It is so ordered.

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

CASTRO, J., concurring and dissenting:

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

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

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

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

4. The search warrants served at the three residences of the petitioners

are expressly declared null and void the searches and seizures therein made
are expressly declared illegal; and the writ of preliminary injunction heretofore issued against
the use of the documents, papers and effect seized in the said residences is made
permanent; and

5. Reasoning that the petitioners have not in their pleadings satisfactorily demonstrated that
they have legal standing to move for the suppression of the documents, papers and effects
seized in the places other than the three residences adverted to above, the opinion written
by the Chief Justice refrains from expressly declaring as null and void the such warrants
served at such other places and as illegal the searches and seizures made therein, and
leaves "the matter open for determination in appropriate cases in the future."
It is precisely the position taken by the Chief Justice summarized in the immediately preceding
paragraph (numbered 5) with which I am not in accord.

I do not share his reluctance or unwillingness to expressly declare, at this time, the nullity of the
search warrants served at places other than the three residences, and the illegibility of the searches
and seizures conducted under the authority thereof. In my view even the exacerbating passions and
prejudices inordinately generated by the environmental political and moral developments of this case
should not deter this Court from forthrightly laying down the law not only for this case but as well for
future cases and future generations. All the search warrants, without exception, in this case are
admittedly general, blanket and roving warrants and are therefore admittedly and indisputably
outlawed by the Constitution; and the searches and seizures made were therefore unlawful. That the
petitioners, let us assume in gratia argumente, have no legal standing to ask for the suppression of
the papers, things and effects seized from places other than their residences, to my mind, cannot in
any manner affect, alter or otherwise modify the intrinsic nullity of the search warrants and the
intrinsic illegality of the searches and seizures made thereunder. Whether or not the petitioners
possess legal standing the said warrants are void and remain void, and the searches and seizures
were illegal and remain illegal. No inference can be drawn from the words of the Constitution that
"legal standing" or the lack of it is a determinant of the nullity or validity of a search warrant or of the
lawfulness or illegality of a search or seizure.

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

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

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

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

Ownership of matters seized gives "standing."

Ownership of the properties seized alone entitles the petitioners to bring a motion to return and
suppress, and gives them standing as persons aggrieved by an unlawful search and seizure
regardless of their location at the time of seizure. Jones vs. United States, 362 U.S. 257, 261 (1960)
(narcotics stored in the apartment of a friend of the defendant); Henzel vs. United States, 296 F. 2d.
650, 652-53 (5th Cir. 1961), (personal and corporate papers of corporation of which the defendant
was president), United States vs. Jeffers, 342 U.S. 48 (1951) (narcotics seized in an apartment not
belonging to the defendant); Pielow vs. United States, 8 F. 2d 492, 493 (9th Cir. 1925) (books seized
from the defendant's sister but belonging to the defendant); Cf. Villano vs. United States, 310 F. 2d
680, 683 (10th Cir. 1962) (papers seized in desk neither owned by nor in exclusive possession of the
defendant).

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

Where the argument falls is in its misapprehension of the fundamental nature and scope of
Fourth Amendment protection. What the Fourth Amendment protects is the security a man
relies upon when he places himself or his property within a constitutionally protected area,
be it his home or his office, his hotel room or his automobile. There he is protected from
unwarranted governmental intrusion. And when he puts some thing in his filing cabinet, in his
desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable
search or an unreasonable seizure. So it was that the Fourth Amendment could not tolerate
the warrantless search of the hotel room in Jeffers, the purloining of the petitioner's private
papers in Gouled, or the surreptitious electronic surveilance in Silverman. Countless other
cases which have come to this Court over the years have involved a myriad of differing
factual contexts in which the protections of the Fourth Amendment have been appropriately
invoked. No doubt, the future will bring countless others. By nothing we say here do we
either foresee or foreclose factual situations to which the Fourth Amendment may be
applicable. (Hoffa vs. U.S., 87 S. Ct. 408 (December 12, 1966). See also U.S. vs. Jeffers,
342 U.S. 48, 72 S. Ct. 93 (November 13, 1951). (Emphasis supplied).

Control of premises searched gives "standing."

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

In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature and extent of the
interest in the searched premises necessary to maintain a motion to suppress. After reviewing what
it considered to be the unduly technical standard of the then prevailing circuit court decisions, the
Supreme Court said (362 U.S. 266):
 We do not lightly depart from this course of decisions by the lower courts. We are
persuaded, however, that it is unnecessarily and ill-advised to import into the law
surrounding the constitutional right to be free from unreasonable searches and seizures
subtle distinctions, developed and refined by the common law in evolving the body of private
property law which, more than almost any other branch of law, has been shaped by
distinctions whose validity is largely historical. Even in the area from which they derive, due
consideration has led to the discarding of those distinctions in the homeland of the common
law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out Law Reform
Committee, Third Report, Cmd. 9305. Distinctions such as those between "lessee",
"licensee," "invitee," "guest," often only of gossamer strength, ought not be determinative in
fashioning procedures ultimately referable to constitutional safeguards. See also Chapman
vs. United States, 354 U.S. 610, 616-17 (1961).

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

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

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

Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals for the Fifth Circuit
held that the defendant organizer, sole stockholder and president of a corporation had standing in a
mail fraud prosecution against him to demand the return and suppression of corporate
property. Henzel vs. United States, 296 F 2d 650, 652 (5th Cir. 1961), supra. The court conclude
that the defendant had standing on two independent grounds: First — he had a sufficient interest in
the property seized, and second — he had an adequate interest in the premises searched (just like
in the case at bar). A postal inspector had unlawfully searched the corporation' premises and had
seized most of the corporation's book and records. Looking to Jones, the court observed:

Jones clearly tells us, therefore, what is not required qualify one as a "person aggrieved by
an unlawful search and seizure." It tells us that appellant should not have been precluded
from objecting to the Postal Inspector's search and seizure of the corporation's books and
records merely because the appellant did not show ownership or possession of the books
 and records or a substantial possessory interest in the invade premises . . . (Henzel vs.
United States, 296 F. 2d at 651). .

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

In a case in which an attorney closed his law office, placed his files in storage and went to Puerto
Rico, the Court of Appeals for the Eighth Circuit recognized his standing to move to quash as
unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution a grand jury
subpoena duces tecum directed to the custodian of his files. The Government contended that the
petitioner had no standing because the books and papers were physically in the possession of the
custodian, and because the subpoena was directed against the custodian. The court rejected the
contention, holding that

Schwimmer legally had such possession, control and unrelinquished personal rights in the
books and papers as not to enable the question of unreasonable search and seizure to be
escaped through the mere procedural device of compelling a third-party naked possessor to
produce and deliver them. Schwimmer vs. United States, 232 F. 2d 855, 861 (8th Cir. 1956).

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

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

It is overwhelmingly established that the searches here in question were directed solely and
exclusively against Birrell. The only person suggested in the papers as having violated the
law was Birrell. The first search warrant described the records as having been used "in
committing a violation of Title 18, United States Code, Section 1341, by the use of the mails
by one Lowell M. Birrell, . . ." The second search warrant was captioned: "United States of
America vs. Lowell M. Birrell. (p. 198)

Possession (actual or constructive), no less than ownership, gives standing to move to

suppress. Such was the rule even before Jones. (p. 199)

If, as thus indicated Birrell had at least constructive possession of the records stored with
Dunn, it matters not whether he had any interest in the premises searched. See also Jeffers
 v. United States, 88 U.S. Appl. D.C. 58, 187 F. 2d 498 (1950), affirmed 432 U.S. 48, 72 S.
Ct. 93, 96 L. Ed. 459 (1951).

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

Thus, the petitioners have full standing to move for the quashing of all the warrants regardless
whether these were directed against residences in the narrow sense of the word, as long as the
documents were personal papers of the petitioners or (to the extent that they were corporate papers)
were held by them in a personal capacity or under their personal control.

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

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

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

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

Footnotes

Hon. Jose W. Diokno, in his capacity as Secretary of Justice, Jose Lukban, in his capacity
1

as Acting Director, National Bureau of Investigation, Special Prosecutors Pedro D. Cenzon,

Efren I. Plana and Manuel Villareal, Jr. and Assistant Fiscal Maneses G. Reyes, City of
Manila.

2
Hon. Amado Roan, Judge of the Municipal (now City) Court of Manila, Hon. Roman
Cansino, Judge of the Municipal (now City) Court of Manila, Hon. Hermogenes Caluag,
Judge of the Court of First Instance of Rizal, Quezon City Branch, Hon. Eulogio Mencias,
Judge of the Court of First Instance of Rizal, Pasig Branch, and Hon. Damian Jimenez,
Judge of the Municipal (now City) Court of Quezon City.

3
Covering the period from March 3 to March 9, 1962.

4
Harry S. Stonehill, Robert P. Brooks, John J. Brooks and Karl Beck.

U.S. Tobacco Corporation, Atlas Cement Corporation, Atlas Development Corporation, Far
5

East Publishing Corporation (Evening News), Investment Inc., Industrial Business

Management Corporation, General Agricultural Corporation, American Asiatic Oil
Corporation, Investment Management Corporation, Holiday Hills, Inc., Republic Glass
Corporation, Industrial and Business Management Corporation, United Housing Corporation,
The Philippine Tobacco-Flue-Curing and Redrying Corporation, Republic Real Estate
Corporation and Merconsel Corporation.

6
Inter alia.

7
"Without prejudice to explaining the reasons for this order in the decision to be rendered in
the case, the writ of preliminary injunction issued by us in this case against the use of the
papers, documents and things from the following premises: (1) The office of the U.S.
Tobacco Corp. at the Ledesma Bldg., Arzobispo St., Manila; (2) 932 Gonzales, Ermita,
Manila; (3) office at Atlanta St. bounded by Chicago, 15th & 14th Sts., Port Area, Manila; (4)
527 Rosario St., Mla.; (5) Atlas Cement Corp. and/or Atlas Development Corp., Magsaysay
Bldg., San Luis, Ermita, Mla.; (6) 205 13th St., Port Area, Mla.; (7) No. 224 San Vicente St.,
Mla.; (8) Warehouse No. 2 at Chicago & 23rd Sts., Mla.; (9) Warehouse at 23rd St., between
Muelle de San Francisco & Boston, Port Area, Mla.; (10) Investment Inc., 24th St. & Boston;
(11) IBMC, Magsaysay Bldg., San Luis, Mla.; (12) General Agricultural Corp., Magsaysay
Bldg., San Luis, Manila; (13) American Asiatic Oil Corp., Magsaysay Bldg., San Luis, Manila;
(14) Room 91, Carmen Apts.; Dewey Blvd., Manila; (15) Warehouse Railroad St. between 17
& 12 Sts., Port Area, Manila; (16) Rm. 304, Army & Navy Club, Manila, South Blvd.; (17)
Warehouse Annex Bldg., 18th St., Port Area, Manila; (18) Rm. 81 Carmen Apts.; Dewey
Blvd., Manila; (19) Holiday Hills, Inc., Trinity Bldg., San Luis, Manila; (20) No. 2008 Dewey
Blvd.; (21) Premises of 24th St. & Boston, Port Area, Manila; (22) Republic Glass Corp.,
Trinity Bldg., San Luis, Manila; (23) IBMC, 2nd Floor, Trinity Bldg., San Luis, Manila; (24)
IBMC, 2nd Flr., Gochangco Blg., 610 San Luis, Manila; (25) United Housing Corp., Trinity
Bldg., San Luis, Manila; (26) Republic Real Estate Corp., Trinity Bldg., San Luis, Manila; (27)
1437 Colorado St., Malate, Manila; (28) Phil. Tobacco Flue-Curing, Magsaysay Bldg., San
Luis, Manila and (29) 14 Baldwin St., Sta. Cruz, Manila, in the hearing of Deportation Cases
Nos. R-953 and 955 against petitioners, before the Deportation Board, is hereby lifted. The
preliminary injunction shall continue as to the papers, documents and things found in the
other premises namely: in those of the residences of petitioners, as follows: (1) 13 Narra
Road, Forbes Park, Makati, Rizal; (2) 15 Narra Road, Forbes Park, Makati, Rizal; and (3) 8
Urdaneta Avenue, Urdaneta Village, Makati, Rizal."

8
Newingham, et al. vs. United States, 4 F. 2d. 490.

9
Lesis vs. U.S., 6 F. 2d. 22.

In re Dooley (1931) 48 F 2d. 121; Rouda vs. U.S., 10 F. 60 2d 916; Lusco vs. U.S. 287 F.
10

69; Ganci vs. U.S., 287 F. Moris vs. U.S., 26 F. 2d 444.

11
U.S. vs. Gass 17 F. 2d. 997; People vs. Rubio, 57 Phil. 384, 394.
 12
On March 22, 1962.

13
Section 1, paragraph 3, of Article III thereof.

Reading: . . . A search warrant shall not issue but upon probable cause to be determined by
14

the judge or justice of the peace after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized.

. . . A search warrant shall not issue but upon probable cause in connection with one
15

specific offense to be determined by the judge or justice of the peace after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and persons or things to be seized.

No search warrant shall issue for more than one specific offense. (Sec. 3, Rule 126.)

LEOVIGILDO U. MANTARING, complainant,

vs.
JUDGE MANUEL A. ROMAN, JR., RTC Branch 42, Pinamalayan, Oriental Mindoro; and JUDGE
IRENEO B. MOLATO, MTC, Bongabon, Oriental Mindoro, respondents.

DECISION

MENDOZA, J.:

Respondent Judge Ireneo B. Molato is the presiding judge of the Municipal Trial Court of Bongabon,
Oriental Mindoro. On January 7, 1993, an administrative complaint was filed against him and Judge
Manuel A. Roman, Jr., presiding judge of the Regional Trial Court of Pinamalayan, Oriental Mindoro,
Branch 42, by Leovigildo U. Mantaring, Sr., who charged them with conduct unbecoming of
members of the judiciary. On February 21, 1994, after the parties had filed their respective pleadings
and supporting documents, this Court dismissed the complaint against the two for lack of merit. The
motion for reconsideration filed by complainant was subsequently denied.

What is before us now is the Supplemental Complaint filed by Leovigildo U. Mantaring, Sr. against
Judge Ireneo B. Molato, which charges him with harassment. It is alleged that because of the filing
of the first complaint against him, respondent Judge Ireneo B. Molato should have inhibited himself
from conducting the preliminary investigation of a criminal case considering that the respondents in
that case were complainant and his son. Instead, it is alleged, he took cognizance of the case and
ordered the arrest of complainant and his son, Leovigildo Mantaring, Jr., out of hatred and revenge
for them because of the filing of the first case by the complainant.

The Supplemental Complaint was referred to the Office of the Court Administrator which, in a
Memorandum dated 25 November 1994, recommended the dismissal of the case for lack of merit.
Nonetheless, the Court required the respondent Judge Ireneo B. Molato to comment.

In his Comment dated July 6, 1995, respondent judge denies the allegations against him. He avers
that on the application by SPO4 Pacifico L. Fradejas, he issued a search warrant which resulted in
the seizure from a certain Joel Gamo of a home-made gun, a hand grenade, five live ammunitions
for Cal. 38 and three live ammunitions for 12 gauge shotgun; that on August 25, 1993, a complaint
for Illegal Possession of Firearms and Ammunition was filed against Joel Gamo in which the herein
complainant Leovigildo, Sr. and his son, Leovigildo, Jr., were included; that finding that the house in
which the firearms and ammunition had been found was owned by complainant and his son, he
concluded that there was probable cause to believe that complainant and his son were guilty of
illegal possession of firearms and ammunition and accordingly ordered their arrest. Respondent
judge claims that he inhibited himself from the case after he was ordered by the Executive Judge,
RTC, Branch 41, Pinamalayan Oriental Mindoro.

In his Reply complainant contends that as the search warrant was issued only against Joel Gamo
and Mantaring, Jr. it was wrong for respondent judge to find probable cause against him on the
theory that, as owners of the house in which the firearms and ammunition were found, they had
constructive possession of the same. He likewise contends that respondent judge did not inhibit
himself until after the preliminary examination was terminated and the warrant of arrest issued, and
only after complainant had filed a petition for inhibition which the Executive Judge found to be well
taken.

On October 16, 1995, this case was referred to the OCA for reevaluation, report and
recommendation. On January 12, 1996, the OCA submitted a Memorandum, recommending
dismissal of the supplemental complaint for lack of merit, for the following reasons:

(1) It is erroneous for herein complainant to equate the application for the issuance of search
warrant with the institution and prosecution of criminal action in a trial court. (Malaloan vs.
Court of Appeals, 232 SCRA 249) Complainant cannot insist that since his name was not
included in the search warrant, the house designated to be searched did not belong to him,
and that he was not present at the preliminary investigation of witnesses preparatory to the
issuance of the questioned warrant of arrest, there was no basis for respondent judge to
order his arrest.

(2) No taint of irregularity attended the issuance by respondent judge of the warrant of arrest
against complainant and his son. Neither was the charge that the warrant of arrest was
issued by respondent judge in the spirit of anger, hatred or harassment purposes
substantiated.

To begin with, it cannot be contended that complainant Leovigildo Mantaring, Sr. could not be
proceeded against simply because he was not included in the search warrant issued against Gamo
and Leovigildo Mantaring, Jr., who is apparently his son. The determination of probable cause in
preliminary investigations is based solely on the evidence presented by the complainant, regardless
of whether or not the respondent in that case is named in the proceedings for a search warrant. As
correctly pointed out by, the OCA, the issuance of a search warrant and of a warrant of arrest
1

requires the showing of probabilities as to different facts. In the case of search warrants, the
determination is based on the finding that (1) the articles to be seized are connected to a criminal
activity and (2) they are found in the place to be searched. It is not necessary that a particular
person be implicated. On the other hand, in arrest cases, the determination of probable cause is
based on a finding that a crime has been committed and that the person to be arrested has
committed it.

In this case, the arrest of herein complainant and his son, together with Joel Gamo, was ordered on
the basis of respondent's finding that the place from where the guns and ammunition were seized
belonged to complainant Leovigildo Mantaring, Sr. and the testimonies of witnesses presented by
SPO4 Fradejas. Of course complainant denies that the house in which the firearms and ammunition
were found belonged to him and claims that at the time of the search he was in Manila. The
provincial prosecutor subsequently dismissed the case against complainant on precisely these
grounds, i.e., that the house did not belong to complainant and he was in Manila at the time the
search and seizure were conducted. But to say this is not to say that respondent acted arbitrarily or
that he abused his powers so as to give ground for administrative disciplinary action against him. It is
only to say that he committed an error of judgment for which complainant's remedy is judicial.

What we think requires serious consideration is the contention by the complainant that respondent
judge should have inhibited himself from conducting the preliminary investigation of the criminal
case, considering that the respondent was the present complainant, who had earlier filed an
administrative case against the judge and another one.

We are not unmindful of the cases in which it was stated that the mere filing of an administrative
case against a judge by one of the parties before him is not a ground for disqualifying him from
hearing a case. An examination of these cases reveals, however, that the administrative cases were
2

filed during the pendency of the cases, and it is evident that the administrative cases were filed only
to force the judge to inhibit himself from the consideration of the case before him. As this Court held,
if on every occasion the party apparently aggrieved were allowed to stop the proceedings in order to
await the final decision on the desired disqualification, or demand the immediate inhibition of the
judge on the basis alone of his being so charged, many cases would have to be kept pending or
perhaps there would not be enough judges left to handle all the cases pending in all the courts. On 3

the other hand, there is a remedy available to the party seeking the disqualification of the judge. If he
is denied a fair and impartial trial, caused by the judge's bias or prejudice, he can ask for a new trial
in the interest of justice which will be granted if that is really the case.
4

But, in the case at bar, an administrative complaint against respondent and Judge Manuel A.
Roman, Jr. had previously been filed and it was paramount that respondent was free from any
appearance of bias against, or hostility toward, the complainant. The impression could not be helped
that his action in that case was dictated by a spirt of revenge against complainant for the latter's
having filed an administrative disciplinary action against the judge. The situation called for sedulous
regard on his part for the principle that a party is entitled to nothing less than the cold neutrality of an
impartial judge.

This circumstance should have underscored for respondent the need of steering clear of the case
because he might be perceived, rightly or wrongly, to be susceptible to bias and partiality. For his
judgment must not be tainted by even the slightest suspicion of improbity or preconceived interest in
order to preserve at all times the faith and confidence in courts of justice by any party to the
litigation.
5

Indeed prudence should have made respondent judge heed the admonition that "a spotless
dispensation of justice requires not only that the decision rendered be intrinsically fair but that the
judge rendering it must at all times maintain the appearance of fairness and impartiality." 6

Moreover, we think it was improper for respondent judge to have issued the warrants of arrest
against complainant and his son without any finding that it was necessary to place them in
immediate custody in order to prevent a frustration of justice. It is now settled that in issuing warrants
7

of arrest in preliminary investigations, the investigating judge must:

(a) have examined in writing and under oath the complainant and his witnesses by searching
questions and answers;

(b) be satisfied that probable cause exists; and

 (c) that there is a need to place the respondent under immediate custody in order not to
frustrate the ends of justice.

In this case, respondent judge justified the issuance of the warrant of arrest on the following ground:

In view of the above considerations [referring to the antecedent facts], it is the honest belief
and finding of the Court that there is sufficient probable cause that the crime of Illegal
Possession of Firearm and Ammunition was committed and that the named three (3)
accused Joel Gamo, Leovigildo Mantaring, Sr. and Leovigildo Mantaring, Jr. are the ones
probably guilty thereof for which reason Warrant of Arrest was issued by undersigned
against them.

He thus ordered the issuance of warrant of arrest solely on his finding of probable cause, totally
omitting to consider the third requirement that there must be a need to place the respondent under
immediate custody "in order not to frustrate the ends of justice."

The framers of the Constitution confined the determination of probable cause as basis for the
issuance of warrants of arrest and search warrants to judges the better to secure the people against
unreasonable searches and seizures. Respondent judge failed to live up to this expectation by
refusing to inhibit himself even when his very impartiality was in question and worse by issuing a
warrant of arrest without determining whether or not it was justified by the need to prevent a
frustration of the ends of justice. Parenthetically, the records show that the criminal complaints
against herein complainant and his son were eventually dismissed by the Provincial Prosecutor, but
not without the following parting words:

It cannot be gainsaid that respondents Mantarings were greatly prejudiced and suffered
damages as a consequence of their inclusion in the criminal complaint. The unfortunate
incident could have been avoided had the Honorable Municipal Trial Judge exercised the
necessary prudence and judicial perpecuity [sic] expected of an impartial Judge in the
conduct of preliminary investigation before issuance of warrant of arrest.

WHEREFORE, respondent judge Ireneo B. Molato is REPRIMANDED and WARNED that

commission of similar acts in the future will be dealt with more severely. All other charges are
dismissed for lack of merit.

SO ORDERED.

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.

NICOMEDES SILVA @ " Comedes", MARLON SILVA, @ "Tama" and ANTONIETA

SILVA, petitioners,
vs.
THE HONORABLE PRESIDING JUDGE, REGIONAL TRIAL COURT OF NEGROS ORIENTAL,
BRANCH XXXIII, DUMAGUETE CITY, respondent.

Marcelo G. Flores for petitioners.

FERNAN, C.J.:

In this special civil action for certiorari, petitioners seek the nullification of Search Warrant No. 1
issued by respondent Judge as well as the return of the money in the amount of P1,231.00 seized
from petitioner Antonieta Silva.

The antecedent facts are as follows:

On June 13, 1986, M/Sgt. Ranulfo Villamor, Jr., as chief of the PC Narcom Detachment in
Dumaguete City, Negros Oriental, filed an "Application for Search Warrant" with the Regional Trial
Court, Branch XXXIII, Dumaguete City against petitioners Nicomedes Silva and Marlon Silva. This 1

application was accompanied by a "Deposition of Witness" executed by Pfc. Arthur M. Alcoran and
Pat. Leon T. Quindo, also dated June 13, 1986. 2

On the same day. Judge Nickarter A. Ontal, then Presiding Judge of the Regional Trial Court, Branch XXXIII, Dumaguete City, pursuant to the said "Application for Search
Warrant" and "Deposition of Witness", issued Search Warrant No. 1, directing the aforesaid police officers to search the room of Marlon Silva in the residence of Nicomedes
Silva for violation of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972. as amended. Pertinent portions of Search Warrant No. 1 read as follows:
 It appearing to the satisfaction of the undersigned after examining oath (sic) MSGT. Ranulfo T. Villamor, Jr. and his witnesses (sic) Pfc. Arthur M. Alcoran and
Pat. Leon T. Quindo that there is probable cause to believe that possession and control of Marijuana dried leaves, cigarettes, joint has been committed or is
about to be committed and that there are good and sufficient reasons to believe that marijuana dried leaves, cigarettes, joint has in possession and/or control
at Tama's Room (Rgt. side lst Floor) located at Nono-Limbaga Drive, Tanjay, Neg. Or. which is/are:

X (Subject of the offense stated above

(Stolen or embezzled or other proceeds of fruits of the offense;

X (Used or intended to be used as means of committing an offense.

You are hereby commanded to make an immediate search at any time of the day (night) of the room of Tama Silva residence of his father Comedes Silva to open (sic) aparadors, lockers, cabinets, cartoons, containers, forthwith seize and
take possession of the following property Marijuana dried leaves, cigarettes, joint and bring the said property to the undersigned to be dealt with as the law directs. 3

In the course of the search, the serving officers also seized money belonging to Antonieta Silva in the amount of P1,231.40.

On June 16, 1986, Antonieta Silva filed a motion for the return of the said amount on the grounds that the search warrant only authorized the serving officers to seize marijuana dried leaves, cigarettes and joint, and that said officers failed or refused to make a
return of the said search warrant in gross violation of Section 11, Rule 126 of the Rules of Court. 4

Acting on said motion, Judge Ontal issued an Order dated July 1, 1986, stating that the court "holds in abeyance the disposition of the said amount of P1,231.40 pending the filing of appropriate charges in connection with the search warrant." 5

On July 28, 1987, petitioners filed a motion to quash Search Warrant No. 1 on the grounds that (1) it was issued on the sole basis of a mimeographed "Application for Search Warrant" and "Deposition of Witness", which were accomplished by merely filling in the
blanks and (2) the judge failed to personally examine the complainant and witnesses by searching questions and answers in violation of Section 3, Rule 126 of the Rules of Court. 6

On August 11, 1987, respondent trial court, through Judge Eugenio M. Cruz, who, by then, had replaced retired Judge Ontal, issued an Order denying the motion for lack of merit, finding the requisites necessary for the issuance of a valid search warrant duly
complied with. 7

A motion for reconsideration dated September 1, 1987 filed by petitioners was likewise denied by Judge Cruz in an order dated October 19, 1987.

Hence, this special civil action for certiorari.

Petitioners allege that the issuance of Search Warrant No. 1 was tainted with illegality and that respondent Judge should be viewed to have acted without or in excess of
jurisdiction, or committed grave abuse of discretion amounting to lack of jurisdiction when he issued the Order dated August 11, 1987, denying their motion to quash Search
Warrant No, 1.

We rule for petitioners.

Section 2, Article III (Bill of Rights) of the 1987 Constitution guarantees the right to personal liberty and security of homes against unreasonable searches and seizures. This
section provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the
persons or things to be seized.
The purpose of the constitutional provision against unlawful searches and seizures is to prevent violations of private security in person and property, and unlawful invasion of the sanctity of the home, by officers of the law acting under legislative or judicial
sanction, and to give remedy against such usurpations when attempted. 8

Thus, Sections 3 and 4, Rule 126 of the Rules of Court provide for the requisites for the issuance of a search warrant, to wit:

SEC. 3. Requisite for issuing search warrant. — A search warrant shall not issue but upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the things to be seized.

SEC. 4. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the form of searching questions and answers,
in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements
together with any affidavits submitted.

Based on the aforecited constitutional and statutory provisions, the judge must, before issuing a search warrant, determine whether there is probable cause by examining the
complainant and witnesses through searching questions and answers.

In the case of Prudente vs. Dayrit, G.R. No. 82870, December 14, 1989, 180 SCRA 69, 767 this Court defined "probable cause" as follows:

The "probable cause" for a valid search warrant, has been defined "as such facts and circumstances which would lead a reasonably discreet and prudent man to
believe that an offense has been committed, and that objects sought in connection with the offense are in the place sought to be searched". This probable cause
must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay.

In the case at bar, we have carefully examined the questioned search warrant as well as the "Application for Search Warrant" and "Deposition of Witness", and found that
Judge Ontal failed to comply with the legal requirement that he must examine the applicant and his witnesses in the form of searching questions and answers in order to
determine the existence of probable cause. The joint "Deposition of Witness" executed by Pfc. Alcoran and Pat. Quindo, which was submitted together with the "Application for
Search Warrant" contained, for the most part suggestive questions answerable by merely placing "yes" or "no" in the blanks provided thereon. In fact there were only four (4)
questions asked, to wit:

Q Do you personally know M/Sgt. Ranulfo Villamor, Jr. the applicant for a search warrant?

A Yes, sir.

Q Do you have personal knowledge that the said premises subject of the offense stated above, and other proceeds of fruit of the offense, used or obtain (sic) or
intended to be used as means of committing an offense?

A Yes, sir.

Q Do you know personally who is/are the person who has/have the property in his/their possession and control?

A Yes, sir.

Q How did you know all this (sic) things?

 A Through discreet surveillance. 9

The above deposition did not only contain leading questions but it was also very broad. The questions propounded to the witnesses were in fact, not probing but were merely
routinary. The deposition was already mimeogragphed and all that the witnesses had to do was fill in their answers on the blanks provided.

In the case of Nolasco vs. Paño, G.R. No. 69803, October 8, 1985, 139 SCRA 152, 163, this Court held:

The "probable cause" required to justify the issuance of a search warrant comprehends such facts and circumstances as will induce a cautious man to rely upon
them and act in pursuant thereof. Of the 8 questions asked, the 1st, 2nd and 4th pertain to identity. The 3rd and 5th are leading not searching questions. The 6th,
7th and 8th refer to the description of the personalities to be seized, which is identical to that in the Search Warrant and suffers from the same lack of
particularity. The examination conducted was general in nature and merely repetitious of the deposition of said witness. Mere generalization will not suffice and
does not satisfy the requirements or probable cause upon which a warrant may issue.

Likewise, in the Prudente case cited earlier, this Court declared the search warrant issued as invalid due to the failure of the judge to examine the witness in the form of
searching questions and answers. Pertinent portion of the decision reads:

Moreover, a perusal of the deposition of P/Lt. Florencio Angeles shows that it was too brief and short. Respondent Judge did not examine him "in the form of searching questions and answers". On the contrary, the questions asked were
leading as they called for a simple "yes" or "no" answer. As held in Quintero vs. NBI, "the questions propounded by respondent Executive Judge to the applicant's witness' are not sufficiently searching to establish probable cause. Asking of
leading questions to the deponent in an application for search warrant, and conducting of examination in a general manner, would not satisfy the requirements for issuance of a valid search warrant. 10

Thus, in issuing a search warrant, the judge must strictly comply with the constitutional and statutory requirement that he must determine the existence of probable cause by
personally examining the applicant and his witnesses in the form of searching questions and answers. His failure to comply with this requirement constitutes grave abuse of
discretion. As declared in Marcelo vs. De Guzman, G.R. No. L-29077, June 29, 1982, 114 SCRA 657, "the capricious disregard by the judge in not complying with the
requirements before issuance of search warrants constitutes abuse of discretion".

The officers implementing the search warrant clearly abused their authority when they seized the money of Antonieta Silva. This is highly irregular considering that Antonieta
Silva was not even named as one of the respondents, that the warrant did not indicate the seizure of money but only of marijuana leaves, cigarettes and joints, and that the
search warrant was issued for the seizure of personal property (a) subject of the offense and (b) used or intended to be used as means of committing an offense and NOT for
personal property stolen or embezzled or other proceeds of fruits of the offense. Thus, the then presiding Judge Ontal likewise abused his discretion when he rejected the
motion of petitioner Antonieta Silva seeking the return of her seized money.

WHEREFORE, the petition is granted. Search Warrant No. 1 is hereby declared null and void. Respondent Judge of the Regional Trial Court of Negros Oriental, Branch XXXIII
is directed to order the return to petitioner Antonieta Silva of the amount of P1,231.40 which had earlier been seized from her by virtue of the illegal search warrant. This
decision is immediately executory. No costs.

SO ORDERED.

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF: ANDREW HARVEY, JOHN
SHERMAN and ADRIAAN VAN DEL ELSHOUT, petitioners,
vs.
HONORABLE COMMISSIONER MIRIAM DEFENSOR SANTIAGO, COMMISSION ON
IMMIGRATION AND DEPORTATION, respondent.

MELENCIO-HERRERA, J.:

A petition for Habeas Corpus.

Petitioners Andrew Harvey and John Sherman, 52 and 72 years, respectively, are both American
nationals residing at Pagsanjan, Laguna, while Adriaan Van Elshout, 58 years old, is a Dutch citizen
also residing at Pagsanjan, Laguna.

The case stems from the apprehension of petitioners on 27 February 1988 from their respective
residences by agents of the Commission on Immigration and Deportation (CID) by virtue of Mission
Orders issued by respondent Commissioner Miriam Defensor Santiago of the CID. Petitioners are
presently detained at the CID Detention Center.

Petitioners were among the twenty-two (22) suspected alien pedophiles who were apprehended
after three months of close surveillance by CID agents in Pagsanjan, Laguna. Two (2) days after
apprehension, or on 29 February 1988, seventeen (17) of the twenty-two (22) arrested aliens opted
for self-deportation and have left the country. One was released for lack of evidence; another was
charged not for being a pedophile but for working without a valid working visa. Thus, of the original
twenty two (22), only the three petitioners have chosen to face deportation.

Seized during petitioners apprehension were rolls of photo negatives and photos of the suspected
child prostitutes shown in salacious poses as well as boys and girls engaged in the sex act. There
were also posters and other literature advertising the child prostitutes.

The "Operation Report," on Andrew Harvey and Richard Sherman dated 29 February 1988 stated:

xxx xxx xxx

ANDREW MARK HARVEY was found together with two young boys.

RICHARD SHERMAN was found with two naked boys inside his room.

In respect of Van Den Elshout the "After Mission Report," dated 27 February 1988 read in part:

Noted:

There were two (2) children ages 14 & 16 which subject readily
accepted having been in his care and live-in for quite sometime.

On 4 March 1988, deportation proceedings were instituted against petitioners for being undesirable
aliens under Section 69 of the Revised Administrative Code (Deportation Case No. 88-13). The
"Charge Sheet" read inter alia:
 Wherefore, this Office charges the respondents for deportation, as undesirable
aliens, in that: they, being pedophiles, are inimical to public morals, public health and
public safety as provided in Section 69 of the Revised Administrative Code.

On 7 March 1988, Warrants of Arrest were issued by respondent against petitioners for violation of
Sections 37, 45 and 46 of the Immigration Act and Section 69 of the Revised Administrative Code
On the same date, the Board of Special Inquiry III commenced trial against petitioners.

On 14 March 1988, petitioners filed an Urgent Petition for Release Under Bond alleging that their
health was being seriously affected by their continuous detention. Upon recommendation of the
Board of Commissioners for their provisional release, respondent ordered the CID doctor to examine
petitioners, who certified that petitioners were healthy.

On 22 March 1988, petitioners filed a Petition for Bail which, however, respondent denied
considering the certification by the CID physician that petitioners were healthy. To avoid congestion,
respondent ordered petitioners' transfer to the CID detention cell at Fort Bonifacio, but the transfer
was deferred pending trial due to the difficulty of transporting them to and from the CID where trial
was on-going.

On 4 April 1988 petitioner Andrew Harvey filed a Manifestation/Motion stating that he had "finally
agreed to a self-deportation" and praying that he be "provisionally released for at least 15 days and
placed under the custody of Atty. Asinas before he voluntarily departs the country." On 7 April 1988,
the Board of Special Inquiry — III allowed provisional release of five (5) days only under certain
conditions. However, it appears that on the same date that the aforesaid Manifestation/ Motion was
filed, Harvey and his co-petitioners had already filed the present petition.

On 4 April 1988, as heretofore stated, petitioners availed of this Petition for a Writ of Habeas Corpus.
A Return of the Writ was filed by the Solicitor General and the Court heard the case on oral
argument on 20 April 1988. A Traverse to the Writ was presented by petitioners to which a Reply
was filed by the Solicitor General.

Petitioners question the validity of their detention on the following grounds:

1) There is no provision in the Philippine Immigration Act of 1940 nor under Section 69 of the
Revised Administrative Code, which legally clothes the Commissioner with any authority to arrest
and detain petitioners pending determination of the existence of a probable cause leading to an
administrative investigation.

2) Respondent violated Section 2, Article III of the 1987 Constitution prohibiting unreasonable
searches and seizures since the CID agents were not clothed with valid Warrants of arrest, search
and seizure as required by the said provision.

3) Mere confidential information made to the CID agents and their suspicion of the activities of
petitioners that they are pedophiles, coupled with their association with other suspected pedophiles,
are not valid legal grounds for their arrest and detention unless they are caught in the act. They
further allege that being a pedophile is not punishable by any Philippine Law nor is it a crime to be a
pedophile.

We reject petitioners' contentions and uphold respondent's official acts ably defended by the Solicitor
General.
There can be no question that the right against unreasonable searches and seizures guaranteed by
Article III, Section 2 of the 1987 Constitution, is available to all persons, including aliens, whether
accused of crime or not (Moncado vs. People's Court, 80 Phil. 1 [1948]. One of the constitutional
requirements of a valid search warrant or warrant of arrest is that it must be based upon probable
cause. Probable cause has been defined as referring to "such facts and circumstances antecedent
to the issuance of the warrant that in themselves are sufficient to induce a cautious man to rely on
them and act in pursuance thereof." (People vs. Syjuco 64 Phil. 667 [1937]; Alverez vs. CFI, 64 Phil.
33 [1937]).

The 1985 Rules on Criminal Procedure also provide that an arrest wit a warrant may be effected by
a peace officer or even a private person (1) when such person has committed, actually committing,
or is attempting to commit an offense in his presence; and (2) when an offense has, in fact, been
committed and he has personal knowledge of facts indicating that the person to be arrested has
committed it (Rule 113, Section 5).

In this case, the arrest of petitioners was based on probable cause determined after close
surveillance for three (3) months during which period their activities were monitored. The existence
of probable cause justified the arrest and the seizure of the photo negatives, photographs and
posters without warrant (See Papa vs. Mago, L-27360, February 28, 1968,22 SCRA 857; People vs.
Court of First Instance of Rizal, L-41686, November 17, 1980, 101 SCRA 86, cited in CRUZ,
Constitutional Law, 1987 ed., p. 143). Those articles were seized as an incident to a lawful arrest
and, are therefore, admissible in evidence (Section 12, Rule 126,1985 Rules on criminal Procedure).

But even assuming arguendo that the arrest of petitioners was not valid at its inception, the records
show that formal deportation charges have been filed against them, as undesirable aliens, on 4
March 1988. Warrants of arrest were issued against them on 7 March 1988 "for violation of Section
37, 45 and 46 of the Immigration Act and Section 69 of the Administrative Code." A hearing is
presently being conducted by a Board of Special Inquiry. The restraint against their persons,
therefore, has become legal. The Writ has served its purpose. The process of the law is being
followed (Cruz vs. Montoya, L-39823, February 25, 1975, 62 SCRA 543). "were a person's detention
was later made by virtue of a judicial order in relation to criminal cases subsequently filed against the
detainee, his petition for hebeas corpus becomes moot and academic" (Beltran vs. Garcia, L-49014,
April 30, 1979, 89 SCRA 717). "It is a fumdamental rule that a writ of habeas corpus will not be
granted when the confinement is or has become legal, although such confinement was illegal at the
beginning" (Matsura vs. Director of Prisons, 77 Phil. 1050 [1947]).

That petitioners were not "caught in the act" does not make their arrest illegal. Petitioners were
found with young boys in their respective rooms, the ones with John Sherman being naked. Under
those circumstances the CID agents had reasonable grounds to believe that petitioners had
committed "pedophilia" defined as "psychosexual perversion involving children" (Kraft-Ebbing
Psychopatia Sexualis p. 555; Paraphilia (or unusual sexual activity) in which children are the
preferred sexual object" (Webster's Third New International Dictionary, 1971 ed., p. 1665) [Solicitor
General's Return of the Writ, on p. 101. While not a crime under the Revised Penal Code, it is
behavior offensive to public morals and violative of the declared policy of the State to promote and
protect the physical, moral, spiritual, and social well-being of our youth (Article II, Section 13, 1987
Constitution).

At any rate, the filing by petitioners of a petition to be released on bail should be considered as a
waiver of any irregularity attending their arrest and estops them from questioning its validity (Callanta
v. Villanueva, L-24646 & L-24674, June 20, 1977, 77 SCRA 377; Bagcal vs. Villaraza, L-61770,
January 31, 1983, 120 SCRA 525).
The deportation charges instituted by respondent Commissioner are in accordance with Section
37(a) of the Philippine Immigration Act of 1940, in relation to Section 69 of the Revised
Administrative Code. Section 37(a) provides in part:

(a) The following aliens shall be arrested upon the warrant of the Commissioner of
Immigration and Deportation or any other officer designated by him for the purpose
and deported upon the warrant of the Commissioner of Immigration and Deportation
after a determination by the Board of Commissioners of the existence of the ground
for deportation as charged against the alien;

xxx xxx xxx

The foregoing provision should be construed in its entirety in view of the summary and indivisible
nature of a deportation proceeding, otherwise, the very purpose of deportation proceeding would be
defeated.

Section 37(a) is not constitutionally proscribed (Morano vs. Vivo, L-22196, June 30, 1967, 20 SCRA
562). The specific constraints in both the 1935 and 1987 Constitutions, which are substantially
1 2

Identical, contemplate prosecutions essentially criminal in nature. Deportation proceedings, on the

other hand, are administrative in character. An order of deportation is never construed as a
punishment. It is preventive, not a penal process. It need not be conducted strictly in accordance
with ordinary Court proceedings.

It is of course well-settled that deportation proceedings do not constitute a criminal

action. The order of deportation is not a punishment, (Maliler vs. Eby, 264 U.S., 32),
it being merely the return to his country of an alien who has broken the conditions
upon which he could continue to reside within our borders (U.S. vs. De los Santos,
33 Phil., 397). The deportation proceedings are administrative in character, (Kessler
vs. Stracker 307 U.S., 22) summary in nature, and need not be conducted strictly in
accordance with the ordinary court proceedings (Murdock vs. Clark, 53 F. [2d], 155).
It is essential, however, that the warrant of arrest shall give the alien sufficient
information about the charges against him, relating the facts relied upon. (U.S. vs.
Uhl 211 F., 628.) It is also essential that he be given a fair hearing with the
assistance of counsel, if he so desires, before unprejudiced investigators (Strench
vs. Pedaris, 55 F. [2d], 597; Ex parte Jew You On, 16 F. [2d], 153). However, all the
strict rules of evidence governing judicial controversies do not need to be observed;
only such as are fumdamental and essential like the right of cross-examination. (U.S.
vs. Hughes, 104 F. [2d], 14; Murdock vs. Clark, 53 F. [2d], 155.) Hearsay evidence
may even be admitted, provided the alien is given the opportunity to explain or rebut
it (Morrell vs. Baker, 270 F., 577; Sercerchi vs. Ward, 27 F. Supp., 437). (Lao Tang
Bun vs. Fabre 81 Phil. 682 [1948]).

The ruling in Vivo vs. Montesa (G. R. No. 24576, July 29, 1968, 24 SCRA 155) that "the issuance of
warrants of arrest by the Commissioner of Immigration, solely for purposes of investigation and
before a final order of deportation is issued, conflicts with paragraph 3, Section I of Article III of the
Constitution" (referring to the 1935 Constitution) is not invocable herein. Respondent
3

Commissioner's Warrant of Arrest issued on 7 March 1988 did not order petitioners to appear and
show cause why they should not be deported. They were issued specifically "for violation of Sections
37, 45 and 46 of the Immigration Act and Section 69 of the Revised Administrative Code." Before
that, deportation proceedings had been commenced against them as undesirable aliens on 4 March
1988 and the arrest was a step preliminary to their possible deportation.
 Section 37 of the Immigration Law, which empowers the Commissioner of
Immigration to issue warrants for the arrest of overstaying aliens is constitutional.
The arrest is a stop preliminary to the deportation of the aliens who had violated the
condition of their stay in this country. (Morano vs. Vivo, L-22196, June 30, 1967, 20
SCRA 562).

To rule otherwise would be to render the authority given the Commissioner nugatory to the detriment
of the State.

The pertinent provision of Commonwealth Act No. 613, as amended, which gives
authority to the Commissioner of Immigration to order the arrest of an alien
temporary visitor preparatory to his deportation for failure to put up new bonds
required for the stay, is not unconstitutional.

xxx xxx xxx

... Such a step is necessary to enable the Commissioner to prepare the ground for
his deportation under Section 37[al of Commonwealth Act 613. A contrary
interpretation would render such power nugatory to the detriment of the State. (Ng
Hua To vs. Galang, G. R. No. 10145, February 29, 1964, 10 SCRA 411).

"The requirement of probable cause, to be determined by a Judge, does not extend to deportation
proceedings." (Morano vs. Vivo, supra, citing Tiu Chun Hai vs. Commissioner, infra). There need be
no "truncated" recourse to both judicial and administrative warrants in a single deportation
proceedings.

The foregoing does not deviate from the ruling in Qua Chee Gan vs. Deportation Board (G. R. No.
10280, September 30, 1963, 9 SCRA 27 [1963]) reiterated in Vivo vs. Montesa, supra, that "under
the express terms of our Constitution (the 1935 Constitution), it is therefore even doubtful whether
the arrest of an individual may be ordered by any authority other than a judge if the purpose is
merely to determine the existence of a probable cause, leading to an administrative investigation."
For, as heretofore stated, probable cause had already been shown to exist before the warrants of
arrest were issued.

What is essential is that there should be a specific charge against the alien intended to be arrested
and deported, that a fair hearing be conducted (Section 37[c]) with the assistance of counsel, if
desired, and that the charge be substantiated by competent evidence. Thus, Section 69 of the
Revised Administrative Code explicitly provides:

Sec. 69. Deportation of subject of foreign power. A subject of a foreign power

residing in the Philippines shall not be deported, expelled, or excluded from said
Islands or repatriated to his own country by the President of the Philippines except
upon prior investigation, conducted by said Executive or his authorized agent, of the
ground upon which such action is contemplated. In such a case the person
concerned shall be informed of the charge or charges against him and he shall be
allowed not less than 3 days for the preparation of his defense. He shall also have
the right to be heard by himself or counsel, to produce witnesses in his own behalf,
and to cross-examine the opposing witnesses.

The denial by respondent Commissioner of petitioners' release on bail, also challenged by them,
was in order because in deportation proceedings, the right to bail is not a matter of right but a matter
of discretion on the part of the Commissioner of Immigration and Deportation. Thus, Section 37(e) of
the Philippine Immigration Act of 1940 provides that "any alien under arrest in a deportation
proceeding may be released under bond or under such other conditions as may be imposed by the
Commissioner of Immigration." The use of the word "may" in said provision indicates that the grant
of bail is merely permissive and not mandatory on the part of the Commissioner. The exercise of the
power is wholly discretionary (Ong Hee Sang vs. Commissioner of Immigration, L-9700, February
28,1962, 4 SCRA 442). "Neither the Constitution nor Section 69 of the Revised Administrative Code
guarantees the right of aliens facing deportation to provisional liberty on bail." (Tiu Chun Hai et al vs.
Deportation Board, 104 Phil. 949 [1958]). As deportation proceedings do not partake of the nature of
a criminal action, the constitutional guarantee to bail may not be invoked by aliens in said
proceedings (Ong Hee Sang vs. Commissioner of Immigration, supra).

Every sovereign power has the inherent power to exclude aliens from its territory upon such grounds
as it may deem proper for its self-preservation or public interest (Lao Tan Bun vs. Fabre 81 Phil. 682
[1948]). The power to deport aliens is an act of State, an act done by or under the authority of the
sovereign power (In re McCulloch Dick, 38 Phil. 41 [1918]). It is a police measure against
undesirable aliens whose continued presence in the country is found to be injurious to the public
good and the domestic tranquility of the people (Forbes vs. Chuoco Tiaco et al., 16 Phil. 534 [1910]).
Particularly so in this case where the State has expressly committed itself to defend the tight of
children to assistance and special protection from all forms of neglect, abuse, cruelty, exploitation,
and other conditions prejudicial to their development (Article XV, Section 3[2]). Respondent
Commissioner of Immigration and Deportation, in instituting deportation proceedings against
petitioners, acted in the interests of the State.

WHEREFORE, the Petition is dismissed and the Writ of Habeas Corpus is hereby denied.

SO ORDERED.

HORTENCIA SALAZAR, petitioner,

vs.
HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine Overseas
Employment Administration, and FERDIE MARQUEZ, respondents.

Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:

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

The facts are as follows:

xxx xxx xxx

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

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

nagbibigay ng salaysay.

S: Upang ireklamo sa dahilan ang aking PECC Card ay

ayaw ibigay sa akin ng dati kong manager. — Horty
Salazar — 615 R.O. Santos, Mandaluyong, Mla.

05. T: Kailan at saan naganap and ginawang

panloloko sa
iyo ng tao/mga taong inireklamo mo?

S. Sa bahay ni Horty Salazar.

06. T: Paano naman naganap ang pangyayari?

S. Pagkagaling ko sa Japan ipinatawag niya ako.

Kinuha
ang PECC Card ko at sinabing hahanapan ako ng
booking sa Japan. Mag 9 month's na ako sa Phils. ay
hindi pa niya ako napa-alis. So lumipat ako ng ibang
company pero ayaw niyang ibigay and PECC Card
ko.

2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom said

complaint was assigned, sent to the petitioner the following telegram:

YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE

MARQUEZ POEA ANTI ILLEGAL RECRUITMENT UNIT 6TH FLR.
POEA BLDG. EDSA COR. ORTIGAS AVE. MANDALUYONG MM
ON NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINST
YOU. FAIL NOT UNDER PENALTY OF LAW.

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

HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila

Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment agency
being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the
seizure of the documents and paraphernalia being used or intended to be used as
the means of committing illegal recruitment, it having verified that you have —
 (1) No valid license or authority from the Department of Labor and
Employment to recruit and deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the

New Labor Code in relation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under

existing laws.

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

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

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

Gentlemen:

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

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

2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution
which guarantees 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."

3. The premises invaded by your Mr. Ferdi Marquez and five (5)
others (including 2 policemen) are the private residence of the
Salazar family, and the entry, search as well as the seizure of the
personal properties belonging to our client were without her consent
and were done with unreasonable force and intimidation, together
 with grave abuse of the color of authority, and constitute robbery and
violation of domicile under Arts. 293 and 128 of the Revised Penal
Code.

Unless said personal properties worth around TEN THOUSAND

PESOS (P10,000.00) in all (and which were already due for shipment
to Japan) are returned within twenty-four (24) hours from your receipt
hereof, we shall feel free to take all legal action, civil and criminal, to
protect our client's interests.

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

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

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

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

Under the new Constitution, which states:

. . . no search warrant or warrant of arrest shall issue except upon probable cause to
be 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. 2

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

mayors may not exercise this power:

xxx xxx xxx

But it must be emphasized here and now that what has just been described is the
state of the law as it was in September, 1985. The law has since been altered. No
longer does the mayor have at this time the power to conduct preliminary
investigations, much less issue orders of arrest. Section 143 of the Local
Government Code, conferring this power on the mayor has been abrogated,
rendered functus officio by the 1987 Constitution which took effect on February 2,
1987, the date of its ratification by the Filipino people. Section 2, Article III of the
1987 Constitution pertinently provides that "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 person or
things to be seized." The constitutional proscription has thereby been manifested that
thenceforth, the function of determining probable cause and issuing, on the basis
thereof, warrants of arrest or search warrants, may be validly exercised only by
 judges, this being evidenced by the elimination in the present Constitution of the
phrase, "such other responsible officer as may be authorized by law" found in the
counterpart provision of said 1973 Constitution, who, aside from judges, might
conduct preliminary investigations and issue warrants of arrest or search warrants. 4

Neither may it be done by a mere prosecuting body:

We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was
meant to exercise, prosecutorial powers, and on that ground, it cannot be said to be
a neutral and detached "judge" to determine the existence of probable cause for
purposes of arrest or search. Unlike a magistrate, a prosecutor is naturally interested
in the success of his case. Although his office "is to see that justice is done and not
necessarily to secure the conviction of the person accused," he stands, invariably, as
the accused's adversary and his accuser. To permit him to issue search warrants
and indeed, warrants of arrest, is to make him both judge and jury in his own right,
when he is neither. That makes, to our mind and to that extent, Presidential Decree
No. 1936 as amended by Presidential Decree No. 2002, unconstitutional. 5

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

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

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

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

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

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

The above has now been etched as Article 38, paragraph (c) of the Labor Code.
The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in its
twilight moments.

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

The Solicitor General's reliance on the case of Morano v. Vivo is not well-taken. Vivo involved a
9

deportation case, governed by Section 69 of the defunct Revised Administrative Code and by
Section 37 of the Immigration Law. We have ruled that in deportation cases, an arrest (of an
undesirable alien) ordered by the President or his duly authorized representatives, in order to carry
out a final decision of deportation is valid. It is valid, however, because of the recognized
10

supremacy of the Executive in matters involving foreign affairs. We have held: 11

xxx xxx xxx

The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs.
Forbes, 228 U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be
exercised by the Chief Executive "when he deems such action necessary for the
peace and domestic tranquility of the nation." Justice Johnson's opinion is that when
the Chief Executive finds that there are aliens whose continued presence in the
country is injurious to the public interest, "he may, even in the absence of express
law, deport them". (Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534, 568, 569;
In re McCulloch Dick, 38 Phil. 41).

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

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

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

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

(1) No valid license or authority from the Department of Labor and

Employment to recruit and deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the

New Labor Code in relation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under existing laws. 13
We have held that a warrant must identify clearly the things to be seized, otherwise, it is null and
void, thus:

xxx xxx xxx

Another factor which makes the search warrants under consideration constitutionally
objectionable is 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/communications, letters and facsimile of prints related to
the "WE FORUM" newspaper.

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

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

3) Motor vehicles used in the distribution/circulation of the "WE

FORUM" and other subversive materials and propaganda, more
particularly,

1) Toyota-Corolla, colored yellow with Plate No. NKA 892;

2) DATSUN, pick-up colored white with Plate No. NKV 969;

3) A delivery truck with Plate No. NBS 542;

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

5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with
marking "Bagong Silang."

In Stanford v. State of Texas, the search warrant which authorized the search for
"books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings
and other written instruments concerning the Communist Parties of Texas, and the
operations of the Community Party in Texas," was declared void by the U.S.
Supreme Court for being too general. In like manner, directions to "seize any
evidence in connection with the violation of SDC 13-3703 or otherwise" have been
held too general, and that portion of a search warrant which authorized the seizure of
any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut
General Statutes (the statute dealing with the crime of conspiracy)" was held to be a
general warrant, and therefore invalid. 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 court 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.14

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

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

2. The exception is in cases of deportation of illegal and undesirable aliens, whom

the President or the Commissioner of Immigration may order arrested, following a
final order of deportation, for the purpose of deportation.

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

No costs.

SO ORDERED.

NARCISO ALVAREZ, petitioner,

vs.
THE COURT OF FIRST INSTANCE OF TAYABAS and THE ANTI-USURY BOARD, respondents.

Godofredo Reyes for petitioner.

Adolfo N. Feliciano for respondents Anti-Usury Board.
No appearance for other respondent.

IMPERIAL, J.:

The petitioner asks that the warrant of June 3, 1936, issued by the Court of First Instance of
Tayabas, ordering the search of his house and the seizure, at any time of the day or night, of certain
accounting books, documents and papers belonging to him in his residence situated in Infanta,
Province of Tayabas, as well as the order of a later date, authorizing the agents of the Anti-Usury
Board to retain the articles seized, be declared illegal and set aside, and prays that all the articles in
question be returned to him.

On the date above-mentioned, the chief of the secret service of the Anti-Usury Board, of the
Department of Justice, presented to Judge Eduardo Gutierrez David then presiding over the Court of
First Instance of Tayabas, an affidavit alleging that according to reliable information, the petitioner
kept in his house in Infanta, Tayabas, books, documents, receipts, lists, chits and other papers used
by him in connection with his activities as a money-lender charging usurious rates of interest in
violation of the law. In his oath at the and of the affidavit, the chief of the secret service stated that
his answers to the questions were correct to the best of his knowledge and belief. He did not swear
to the truth of his statements upon his own knowledge of the facts but upon the information received
by him from a reliable person. Upon the affidavit in question the Judge, on said date, issued the
warrant which is the subject matter of the petition, ordering the search of the petitioner's house at
nay time of the day or night, the seizure of the books and documents above-mentioned and the
immediate delivery thereof to him to be disposed of in accordance with the law. With said warrant,
several agents of the Anti-Usury Board entered the petitioner's store and residence at seven o'clock
on the night of June 4, 1936, and seized and took possession of the following articles: internal
revenue licenses for the years 1933 to 1936, one ledger, two journals, two cashbooks, nine order
books, four notebooks, four checks stubs, two memorandums, three bankbooks, two contracts, four
stubs, forty-eight stubs of purchases of copra, two inventories, two bundles of bills of lading, one
bundle of credit receipts, one bundle of stubs of purchases of copra, two packages of
correspondence, one receipt book belonging to Luis Fernandez, fourteen bundles of invoices and
other papers many documents and loan contracts with security and promissory notes, 504 chits,
promissory notes and stubs of used checks of the Hongkong & Shanghai Banking Corporation. The
search for and a seizure of said articles were made with the opposition of the petitioner who stated
his protest below the inventories on the ground that the agents seized even the originals of the
documents. As the articles had not been brought immediately to the judge who issued the search
warrant, the petitioner, through his attorney, filed a motion on June 8, 1936, praying that the agent
Emilio L. Siongco, or any other agent, be ordered immediately to deposit all the seized articles in the
office of the clerk of court and that said agent be declared guilty of contempt for having disobeyed
the order of the court. On said date the court issued an order directing Emilio L. Siongco to deposit
all the articles seized within twenty-four hours from the receipt of notice thereof and giving him a
period of five (5) days within which to show cause why he should not be punished for contempt of
court. On June 10th, Attorney Arsenio Rodriguez, representing the Anti-Usury Board, filed a motion
praying that the order of the 8th of said month be set aside and that the Anti-Usury Board be
authorized to retain the articles seized for a period of thirty (30) days for the necessary investigation.
The attorney for the petitioner, on June 20th, filed another motion alleging that, notwithstanding the
order of the 8th of said month, the officials of the Anti-Usury Board had failed to deposit the articles
seized by them and praying that a search warrant be issued, that the sheriff be ordered to take all
the articles into his custody and deposit of the Anti-Usury Board be punished for contempt of court.
Said attorney, on June 24th, filed an ex parte petition alleging that while agent Emilio L. Siongco had
deposited some documents and papers in the office of the clerk of court, he had so far failed to file
an inventory duly verified by oath of all the documents seized by him, to return the search warrant
together with the affidavit it presented in support thereof, or to present the report of the proceedings
taken by him; and prayed that said agent be directed to filed the documents in question immediately.
On the 25th of said month the court issued an order requiring agent Emilio L. Siongco forthwith to file
the search warrant and the affidavit in the court, together with the proceedings taken by him, and to
present an inventory duly verified by oath of all the articles seized. On July 2d of said year, the
attorney for the petitioner filed another petition alleging that the search warrant issue was illegal and
that it had nit yet been returned to date together with the proceedings taken in connection therewith,
and praying that said warrant be cancelled, that an order be issued directing the return of all the
articles seized to the petitioner, that the agent who seized them be declared guilty of contempt of
court, and that charges be filed against him for abuse of authority. On September 10, 1936, the court
issued an order holding: that the search warrant was obtained and issued in accordance with the
law, that it had been duly complied with and, consequently, should not be cancelled, and that agent
Emilio L. Siongco did not commit any contempt of court and must, therefore, be exonerated, and
ordering the chief of the Anti-Usury Board in Manila to show case, if any, within the unextendible
period of two (2) days from the date of notice of said order, why all the articles seized appearing in
the inventory, Exhibit 1, should not be returned to the petitioner. The assistant chief of the Anti-Usury
Board of the Department of Justice filed a motion praying, for the reasons stated therein, that the
articles seized be ordered retained for the purpose of conducting an investigation of the violation of
the Anti-Usury Law committed by the petitioner. In view of the opposition of the attorney for the
petitioner, the court, on September 25th, issued an order requiring the Anti-Usury Board to specify
the time needed by it to examine the documents and papers seized and which of them should be
retained, granting it a period of five (5) days for said purpose. On the 30th of said month the
assistant chief of the Anti-Usury Board filed a motion praying that he be granted ten (10) days to
comply with the order of September 25th and that the clerk of court be ordered to return to him all
the documents and papers together with the inventory thereof. The court, in an order of October 2d
of said year, granted him the additional period of ten(10) days and ordered the clerk of court to send
him a copy of the inventory. On October 10th, said official again filed another motion alleging that he
needed sixty (60) days to examine the documents and papers seized, which are designated on
pages 1 to 4 of the inventory by Nos. 5, 1016, 23, 25, 26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42,
43 and 45, and praying that he be granted said period of sixty (60) days. In an order of October 16th,
the court granted him the period of sixty (60) days to investigate said nineteen (19) documents. The
petitioner alleges, and it is not denied by the respondents, that these nineteen (19)documents
continue in the possession of the court, the rest having been returned to said petitioner.

I. A search warrant is an order in writing, issued in the name of the People of the Philippine
Islands, signed by a judge or a justice of the peace, and directed to a peace officer,
commanding him to search for personal property and bring it before the court (section 95,
General Orders. No. 58, as amended by section 6 of Act No. 2886). Of all the rights of a
citizen, few are of greater importance or more essential to his peace and happiness than the
right of personal security, and that involves the exemption of his private affairs, books, and
papers from the inspection and scrutiny of others (In re Pacific Railways Commission, 32
Fed., 241; Interstate Commerce Commission vs Brimson, 38 Law. ed., 1047; Broyd vs. U. S.,
29 Law. ed., 746; Caroll vs. U. S., 69 Law. ed., 543, 549). While the power to search and
seize is necessary to the public welfare, still it must be exercised and the law enforced
without transgressing the constitutional rights or citizen, for the enforcement of no statue is of
sufficient importance to justify indifference to the basis principles of government
(People vs. Elias, 147 N. E., 472).

II. As the protection of the citizen and the maintenance of his constitutional right is one of the
highest duties and privileges of the court, these constitutional guaranties should be given a
liberal construction or a strict construction in favor of the individual, to prevent stealthy
encroachment upon, or gradual depreciation on, the rights secured by them(State vs. Custer
County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the
proceeding is a drastic one, it is the general rule that statutes authorizing searches and
seizure or search warrants must be strictly construed (Rose vs. St. Clair, 28 Fed., [2d], 189;
Leonard vs. U. S., 6 Fed. [2d], 353; Perry vs. U. S. 14 Fed. [2d],88; Cofer vs. State, 118 So.,
613).

III. The petitioner claims that the search warrant issued by the court is illegal because it has
been based upon the affidavit of agent Mariano G. Almeda in whose oath he declared that
he had no personal knowledge of the facts which were to serve as a basis for the issuance
of the warrant but that he had knowledge thereof through mere information secured from a
person whom he considered reliable. To the question "What are your reason for applying for
this search warrant", appearing in the affidavit, the agent answered: "It has been reported to
me by a person whom I consider to be reliable that there are being kept in said premises,
books, documents, receipts, lists, chits, and other papers used by him in connection with his
activities as a money-lender, charging a usurious rate of interest, in violation of the law" and
in attesting the truth of his statements contained in the affidavit, the said agent states that he
found them to be correct and true to the best of his knowledge and belief.

Section 1, paragraph 3, of Article III of the Constitution, relative to the bill of rights, provides
that "The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures shall not be violated, and no warrants shall
issue but upon probable cause, to be determined by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place top be searched, and the persons or things to be seized." Section 97 of
General Orders, No. 58 provides that "A search warrant shall not issue except for probable
cause and upon application supported by oath particularly describing the place to be
searched and the person or thing to be seized." It will be noted that both provisions require
that there be not only probable cause before the issuance of a search warrant but that the
search warrant must be based upon an application supported by oath of the applicant ands
the witnesses he may produce. In its broadest sense, an oath includes any form of
attestation by which a party signifies that he is bound in conscience to perform an act
faithfully and truthfully; and it is sometimes defined asan outward pledge given by the person
taking it that his attestation or promise is made under an immediate sense of his
responsibility to God (Bouvier's Law Dictionary; State vs. Jackson, 137 N. W., 1034; In
re Sage, 24 Oh. Cir. Ct. [N. S.], 7; Pumphery vs. State, 122 N. W., 19; Priest vs. State, 6 N.
W., 468; State vs. Jones, 154 Pac., 378; Atwood vs. State, 111 So., 865). The oath required
must refer to the truth of the facts within the personal knowledge of the petitioner or his
witnesses, because the purpose thereof is to convince the committing magistrate, not the
individual making the affidavit and seeking the issuance of the warrant, of the existence of
probable cause (U. S. vs. Tureaud, 20 Fed., 621; U. S. vs. Michalski, 265 Fed., 8349; U.
S. vs. Pitotto, 267 Fed., 603; U. S. vs. Lai Chew, 298 Fed., 652). The true test of sufficiency
of an affidavit to warrant issuance of a search warrant is whether it has been drawn in such a
manner that perjury could be charged thereon and affiant be held liable for damages caused
(State vs. Roosevelt Country 20th Jud. Dis. Ct., 244 Pac., 280; State vs. Quartier, 236 Pac.,
746).

It will likewise be noted that section 1, paragraph 3, of Article III of the Constitution prohibits
unreasonable searches and seizure. Unreasonable searches and seizures are a menace
against which the constitutional guarantee afford full protection. The term "unreasonable
search and seizure" is not defined in the Constitution or in General Orders No. 58, and it is
said to have no fixed, absolute or unchangeable meaning, although the term has been
defined in general language. All illegal searches and seizure are unreasonable while lawful
ones are reasonable. What constitutes a reasonable or unreasonable search or seizure in
any particular case is purely a judicial question, determinable from a consideration of the
circumstances involved, including the purpose of the search, the presence or absence or
probable cause, the manner in which the search and seizure was made, the place or thing
searched, and the character of the articles procured (Go-Bart Importing Co. vs. U. S. 75 Law.
ed., 374; Peru vs. U. S., 4 Fed., [2d], 881;U. S. vs. Vatune, 292 Fed., 497; Angelo vs. U. S.
70 Law, ed., 145; Lambert vs. U. S. 282 Fed., 413; U. S. vs. Bateman, 278 Fed., 231;
Mason vs. Rollins, 16 Fed. Cas. [No. 9252], 2 Biss., 99).

In view of the foregoing and under the above-cited authorities, it appears that the affidavit,
which served as the exclusive basis of the search warrant, is insufficient and fatally defective
by reason of the manner in which the oath was made, and therefore, it is hereby held that
the search warrant in question and the subsequent seizure of the books, documents and
other papers are illegal and do not in any way warrant the deprivation to which the petitioner
was subjected.

IV. Another ground alleged by the petitioner in asking that the search warrant be declared
illegal and cancelled is that it was not supported by other affidavits aside from that made by
the applicant. In other words, it is contended that the search warrant cannot be issued unless
it be supported by affidavits made by the applicant and the witnesses to be presented
necessity by him. Section 1, paragraph 3, of Article III of the Constitution provides that no
warrants shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce.
Section 98 of General Orders, No. 58 provides that the judge or justice must, before issuing
the warrant, examine under oath the complainant and any witnesses he may produce and
take their depositions in writing. It is the practice in this jurisdiction to attach the affidavit of at
least the applicant or complainant to the application. It is admitted that the judge who issued
the search warrant in this case, relied exclusively upon the affidavit made by agent Mariano
G. Almeda and that he did not require nor take the deposition of any other witness. Neither
the Constitution nor General Orders. No. 58 provides that it is of imperative necessity to take
the deposition of the witnesses to be presented by the applicant or complainant in addition to
the affidavit of the latter. The purpose of both in requiring the presentation of depositions is
nothing more than to satisfy the committing magistrate of the existence of probable cause.
Therefore, if the affidavit of the applicant or complainant is sufficient, the judge may dispense
with that of other witnesses. Inasmuch as the affidavit of the agent in this case was
insufficient because his knowledge of the facts was not personal but merely hearsay, it is the
duty of the judge to require the affidavit of one or more witnesses for the purpose of
determining the existence of probable cause to warrant the issuance of the search warrant.
When the affidavit of the applicant of the complaint contains sufficient facts within his
personal and direct knowledge, it is sufficient if the judge is satisfied that there exist probable
cause; when the applicant's knowledge of the facts is mere hearsay, the affidavit of one or
more witnesses having a personal knowledge of the fact is necessary. We conclude,
therefore, that the warrant issued is likewise illegal because it was based only on the affidavit
of the agent who had no personal knowledge of the facts.

V. The petitioner alleged as another ground for the declaration of the illegality of the search
warrant and the cancellation thereof, the fact that it authorized its execution at night. Section
101 of General Orders, No. 58 authorizes that the search be made at night when it is
positively asserted in the affidavits that the property is on the person or in the place ordered
to be searched. As we have declared the affidavits insufficient and the warrant issued
exclusively upon it illegal, our conclusion is that the contention is equally well founded and
that the search could not legally be made at night.

VI. One of the grounds alleged by the petitioner in support of his contention that the warrant
was issued illegally is the lack of an adequate description of the books and documents to be
seized. Section 1, paragraphs 3, of Article III of the Constitution, and section 97 of General
Orders, No. 58 provide that the affidavit to be presented, which shall serve as the basis for
determining whether probable cause exist and whether the warrant should be issued, must
contain a particular description of the place to be searched and the person or thing to be
seized. These provisions are mandatory and must be strictly complied with (Munch vs. U. S.,
24 Fed. [2d], 518; U. S. vs. Boyd, 1 Fed. [2d], 1019; U. S. vs. Carlson, 292 Fed., 463; U.
S. vs. Borkowski, 268 Fed., 408; In re Tri-State Coal & Coke Co., 253 Fed., 605;
People vs. Mayen, 188 Cal., 237; People vs. Kahn, 256 Ill. App., 4125); but where, by the
nature of the goods to be seized, their description must be rather generally, it is not required
that a technical description be given, as this would mean that no warrant could issue
(People vs. Rubio, 57 Phil., 284; People vs. Kahn, supra). The only description of the articles
given in the affidavit presented to the judge was as follows: "that there are being kept in said
premises books, documents, receipts, lists, chits and other papers used by him in connection
with his activities as money-lender, charging a usurious rate of interest, in violation of the
law." Taking into consideration the nature of the article so described, it is clear that no other
more adequate and detailed description could have been given, particularly because it is
difficult to give a particular description of the contents thereof. The description so made
substantially complies with the legal provisions because the officer of the law who executed
 the warrant was thereby placed in a position enabling him to identify the articles, which he
did.

VII. The last ground alleged by the petitioner, in support of his claim that the search warrant
was obtained illegally, is that the articles were seized in order that the Anti-Usury Board
might provide itself with evidence to be used by it in the criminal case or cases which might
be filed against him for violation of the Anti-usury Law. At the hearing of the incidents of the
case raised before the court it clearly appeared that the books and documents had really
been seized to enable the Anti-Usury Board to conduct an investigation and later use all or
some of the articles in question as evidence against the petitioner in the criminal cases that
may be filed against him. The seizure of books and documents by means of a search
warrant, for the purpose of using them as evidence in a criminal case against the person in
whose possession they were found, is unconstitutional because it makes the warrant
unreasonable, and it is equivalent to a violation of the constitutional provision prohibiting the
compulsion of an accused to testify against himself (Uy Kheytin vs. Villareal, 42 Phil,, 886;
Brady vs. U. S., 266 U. S., 620; Temperani vs. U. S., 299 Fed., 365; U. S. vs. Madden, 297
Fed., 679; Boyd vs. U. S.,116 U. S., 116; Caroll vs. U. S., 267 U. S., 132). Therefore, it
appearing that at least nineteen of the documents in question were seized for the purpose of
using them as evidence against the petitioner in the criminal proceeding or proceedings for
violation against him, we hold that the search warrant issued is illegal and that the
documents should be returned to him.

The Anti-Usury Board insinuates in its answer that the petitioner cannot now question the validity of
the search warrant or the proceedings had subsequent to the issuance thereof, because he has
waived his constitutional rights in proposing a compromise whereby he agreed to pay a fine of P200
for the purpose of evading the criminal proceeding or proceedings. We are of the opinion that there
was no such waiver, first, because the petitioner has emphatically denied the offer of compromise
and, second, because if there was a compromise it reffered but to the institution of criminal
proceedings fro violation of the Anti-Usury Law. The waiver would have been a good defense for the
respondents had the petitioner voluntarily consented to the search and seizure of the articles in
question, but such was not the case because the petitioner protested from the beginning and stated
his protest in writing in the insufficient inventory furnished him by the agents.

Said board alleges as another defense that the remedy sought by the petitioner does not lie because
he can appeal from the orders which prejudiced him and are the subject matter of his petition.
Section 222 of the Code of Civil Procedure in fact provides that mandamus will not issue when there
is another plain, speedy and adequate remedy in the ordinary course of law. We are of the opinion,
however, that an appeal from said orders would have to lapse before he recovers possession of the
documents and before the rights, of which he has been unlawfully deprived, are restored to him
(Fajardo vs. Llorente, 6 Phil., 426; Manotoc vs. McMicking and Trinidad, 10 Phil., 119; Cruz Herrera
de Lukban vs. McMicking, 14 Phil., 641; Lamb vs. Phipps, 22 Phil., 456).

Summarizing the foregoing conclusions, we hold:

1. That the provisions of the Constitution and General Orders, No. 58, relative to search and
seizure, should be given a liberal construction in favor of the individual in order to maintain
the constitutional guaranties whole and in their full force;

2. That since the provisions in question are drastic in their form and fundamentally restrict
the enjoyment of the ownership, possession and use of the personal property of the
individual, they should be strictly construed;
 3. That the search and seizure made are illegal for the following reasons: (a) Because the
warrant was based solely upon the affidavit of the petitioner who had no personal knowledge
of the facts of probable cause, and (b) because the warrant was issued for the sole purpose
of seizing evidence which would later be used in the criminal proceedings that might be
instituted against the petitioner, for violation of the Anti-Usury Law;

4. That as the warrant had been issued unreasonably, and as it does not appear positively in
the affidavit that the articles were in the possession of the petitioner and in the place
indicated, neither could the search and seizure be made at night;

5. That although it is not mandatory to present affidavits of witnesses to corroborate the

applicant or a complainant in cases where the latter has personal knowledge of the facts,
when the applicant's or complainant's knowledge of the facts is merely hearsay, it is the duty
of the judge to require affidavits of other witnesses so that he may determine whether
probable cause exists;

6. That a detailed description of the person and place to be searched and the articles to be
seized is necessary, but whereby, by the nature of the articles to be seized, their description
must be rather general, but is not required that a technical description be given, as this
would mean that no warrant could issue;

7. That the petitioner did not waive his constitutional rights because the offer of compromise
or settlement attributed to him, does not mean, if so made, that he voluntarily tolerated the
search and seizure; and

8. That an appeal from the orders questioned by the petitioner, if taken by him, would not be
an effective, speedy or adequate remedy in the ordinary course of law, and, consequently,
the petition for mandamus filed by him, lies.

For the foregoing considerations, the search warrant and the seizure of June 3, 1936, and the orders
of the respondent court authorizing the relation of the books and documents, are declared illegal and
are set aside, and it is ordered that the judge presiding over the Court of First Instance of Tayabas
direct the immediate return to the petitioner of the nineteen (19) documents designated on pages 1
to 4 of the inventory by Nos. 5, 10, 16, 23, 25,26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and
45, without special pronouncement as to costs. So ordered

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NORMANDO DEL ROSARIO Y LOPEZ, accused-appellant.

The Solicitor General for plaintiff-appellee.

Topacio and Topacio for accused-appellants.

MELO, J.:

Normando del Rosario was charged before Branch 17 of the Regional Trial Court of the Fourth
Judicial Region stationed in Cavite City with Illegal Possession of Firearm and Ammunitions in
Criminal Case No. 236-91 and Illegal Sale of Regulated Drugs in Criminal Case No. 237-91, under
two informations reading, respectively, as follows:

Criminal Case No. 236-91

That on or about September 4, 1991, in the City of Cavite, Republic of the Philippines
and within the jurisdiction of this Honorable Court, the above-named accused,
without legal authority, did, then and there, willfully, unlawfully, feloniously and
knowingly have in his possession and control a homemade (paltik)caliber .22
revolver with three (3) live ammunition.

Contrary to law.

Criminal Case No. 237-91

That on or about September 4, 1991, in the City of Cavite, Republic of the Philippines
and within the jurisdiction of this Honorable Court, the above-named accused,
without legal authority, did, then and there, willfully, unlawfully, feloniously and
knowingly sell to a poseur buyer an aluminum foil containing Methamphetamine
Hydrochloride also known as "Shabu", a regulated drug.

Contrary to law.

(pp. 20-21, Rollo.)

Upon arraignment, accused-appellant pleaded not guilty to both charges, and after joint trial of the
two cases, the court a quo rendered a decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court finds the accused Normando del
Rosario y Lopez guilty beyond reasonable doubt in the above-entitled cases and he
is hereby sentenced to undergo imprisonment: in Crim. Case No. 236-91 for Violation
of P.D. 1866 of Seventeen (17) years, Four (4) months and One (1) day of reclusion
temporal, as minimum to Twenty (20) years of reclusion temporal, as maximum and
in Crim. Case No. 237-91 for a violation of Section 15, Article III of Republic Act
6425, as amended of life imprisonment and to pay a fine of P30,000.00, without
subsidiary imprisonment in case of insolvency and to pay the costs in both cases.

The shabu, the One Hundred Peso bill and other paraphernalia are hereby ordered
confiscated in favor of the government.

(pp. 28-29, Rollo.)

From said decision, the instant appeal has been interposed.

The prosecution's version of the case, as set forth in appellee's brief, is as follows:
Upon application of SPO3 Raymundo Untiveros of the Philippine National Police
(PNP) of Cavite City, Regional Trial Court Judge Arturo de Guia issued in the
morning of September 4, 1991 a search warrant
(Exh. T, p. 50, Rec.— Crim. Case No. 237-91) authorizing the search and seizure of
an "undetermined quantity of Methamphetamine Hydrochloride commonly known as
shabu and its paraphernalias" in the premises of appellant's house located at 828 R.
Basa St., San Roque, Cavite City. However, the search warrant was not
implemented immediately due to the lack of police personnel to form the raiding team
(pp. 4, 7, tsn., Feb. 4, 1992).

At about 9 o'clock in the evening of that day, a raiding team was finally organized.
SPO3 Untiveros headed the raiding team with PO3 Rogelio Francisco, SPO1
Eduardo Novero, SPO3 Reynaldo de la Cruz, PO1 Carlito Barbuco, PO3 Onrubio
and SPO2 Villegas as members
(pp. 5, 10, tsn., Feb. 4, 1992; p. 7, tsn., Dec. 11, 1991).

In the final briefing of the raiding team at the police station, it was agreed upon that
PO1 Venerando Luna will buy shabu from appellant and after his return from
appellant's house, the raiding team will implement the search warrant (p. 10, tsn.,
Feb. 4, 1992; pp. 17-18, tsn., Dec. 11, 1991). A marked money consisting of a P100
bill bearing serial no. PQ 329406
(Exh. P, p. 51, Rec.) was given by the Station Commander to PO1 Luna and entered
in the police logbook (p. 12, Feb. 4, 1992). PO1 Luna with a companion proceeded to
appellant's house to implement the search warrant. Barangay Capt. Maigue, Norma
del Rosario and appellant witnessed the search at appellant's house (p. 10, tsn.,
Dec. 11, 1991). SPO3 de la Cruz and PO3 Francisco found a black canister
containing shabu, an aluminum foil, a paltik .22 caliber (Exh. O) atop the TV set,
three used ammunitions in a cup and three wallets (Exhs. Q, R, S), one containing
the marked money (Exh. P; pp. 11-12, tsn., Dec. 11, 1992). SPO1 Novero found
inside a show box aluminum foils, napkins and a burner (p. 9, tsn., March 11, 1992).
SPO3 de la Cruz turned over the wallet containing the marked money to PO3
Onrubio (p. 8, 32, tsn., Jan. 7, 1992). The seized items were photographed thereat
by Fred Agana and then turned over to PO3 Onrubio (pp. 8, 32, tsn., Jan. 7, 1992).
SPO3 Untiveros issued receipts (Exhs. V, V-1, pp. 53-54, Rec.) for the seized items
with Barangay Capt. Maigue and appellant's sister Norma as signing witnesses. He
also made a return (Exh. U, p. 52, Rec.) of the seized items to the court (pp. 11-155,
tsn., Feb. 18, 1992.).

At police station, the seized items were taped and initialed by SPO3 de la Cruz (p.
33, tsn., Jan. 7, 1992). The next day, SPO4 Pilapil, through PO1 Barbuco, forwarded
to NBI Forensic Chemist Mary Ann Aranas for laboratory analysis the aluminum foil
(Exhs. A, J, pp. 37, 46, Rec.) containing suspected shabu bought by PO1 Luna from
appellant in the
buy-bust operation as well as the aluminum foils (Exhs. G, K, pp. 43, 47, Rec.)
containing suspected marijuana which were confiscated by virtue of the search
warrant.

The findings of NBI Forensic Chemist Aranas disclosed that all the specimen
submitted to her for laboratory analysis by SPO1 Pilapil, thru PO1 Barbuco, gave
positive results for Methamphetamine Hydrochloride (pp. 2-9, tsn., Dec. 3, 1991;
Exh. B, C, H, I, pp. 38, 39, 44, 45, Rec.).
 (pp. 102-105, Rollo.)

Carefully evaluating the evidence on record, we believe that the prosecution has failed to prove the
guilt of accused-appellant. Much is to be desired in the manner the police authorities effected the
arrest of accused-appellant and the same observation may be made with regard to the way the
prosecution conducted its case.

Foremost among the inadequacies of the prosecution is its failure to call to the witness stand PO1
Venerando Luna, the alleged poseur-buyer. There is, thus, a total absence of evidence to establish
the purported sale of shabu by accused-appellant to Venerando Luna, the supposed poseur-buyer.
The omission to present the poseur-buyer casts serious doubts that an illegal sale of a dangerous
drug actually took place.

The trial court gave much weight to the testimonies of the police members of the buy-
bust operation. However, the prosecution did not present as witness the supposed
poseur-buyer. Such omission casts serious doubt on appellant's guilt because
without the testimony of the
poseur-buyer, there is no convincing evidence to show that appellant sold marijuana.
The testimonies of the rest of the buy-bust operation are hearsay in view of the fact
that the poseur-buyer, was never presented at the trial. There was even no testimony
that when the accused-appellant handed the stuff to the poseur-buyer that the latter
in turn handed the marked money. The failure of the prosecution to present the
alleged buyer of the marijuana was a fatal flaw in the case against the accused.

(People vs. Fulgarillas, 212 SCRA 76, 80 [1992])

The testimony of prosecution witness PO3 Rogelio Francisco that Veneracion Luna, the alleged
Poseur-buyer, bought shabu from accused-appellant was derived solely from what Luna supposedly
told him (pp. 19-20, tsn., December 11, 1991) and, therefore, is patently hearsay evidence, without
any evidentiary weight whatsoever. Likewise, the statements of prosecution witnesses Policemen
Reynaldo de la Cruz, Raymundo Untiveros, and Eduardo Novera, Jr. as to the alleged sale of shabu
are hearsay, without weight, as all of them were not present during the alleged sale.

According to the version of the prosecution, during the alleged buy-bust operation, accused-
appellant handed over to Veneracion Luna, the alleged poseur-buyer, a quantity of shabu, and Luna
in turn paid accused-appellant a marked P100 bill and then returned to the police station and
informed the raiding team that he had already bought the shabu from accused-appellant. Thereupon,
the raiding team proceeded to the house of accused-appellant to implement the search warrant. The
version of the prosecution is highly incredible. The record is devoid of any reason why the police
officers did not make any attempt to arrest accused-appellant at the time he allegedly sold the shabu
to Veneracion Luna who was accompanied by another police officer. That was the opportune
moment to arrest accused-appellant. The version foisted by the prosecution upon this Court is
contrary to human experience in the ordinary course of human conduct. The usual procedure in a
buy-bust operation is for the police officers to arrest the pusher of drugs at the very moment he
hands over the dangerous drug to the poseur-buyer. That is the very reason why such a police
operation is called a "buy-bust" operation. The police poseur-buyer "buys" dangerous drugs from the
pusher and "busts" (arrests) him the moment the pusher hands over the drug to the police officer.

We thus entertain serious doubts that the shabu contained in a small canister was actually seized or
confiscated at the residence of accused-appellant. In consequence, the manner the police officers
conducted the subsequent and much-delayed search is highly irregular. Upon bargaining into the
residence of accused-appellant, the police officers found him lying down and they immediately
arrested and detained him in the living room while they searched the other parts of the house.
Although they fetched two persons to witness the search, the witnesses were called in only after the
policemen had already entered accused-appellant's residence (pp. 22-23, tsn, December 11, 1991),
and, therefore, the policemen had more than ample time to plant the shabu. Corollary to the
constitutional precept that, in all criminal prosecutions, the accused shall be presumed innocent until
the contrary is proved (Sec. 14(2), Article III, Constitution of the Republic of the Philippines) is the
rule that in order to convict an accused the circumstances of the case must exclude all and each and
every hypothesis consistent with his innocence (People vs. Tanchoco; 76 Phil. 463 [1946]; People
vs. Constante, 12 SCRA 653 [1964]; People vs. Jara, 144 SCRA 516 [1986]). The facts of the case
do not rule out the hypothesis that accused- appellant is innocent.

At any rate, accused-appellant cannot be convicted of possession of the shabu contained in a

canister and allegedly seized at his house, for the charge against him was for selling shabu with the
information alleging that the "accused, without legal authority did . . . sell to a poseur buyer an
aluminum foil containing Methamphetamine Hydrochloride . . ." Sale is totally different from
possession. Article 1458 of the Civil Code defines sale as a contract whereby "one of the contracting
parties obligates himself to transfer the ownership of and to deliver a determine thing, and the other
to pay therefor a price certain in money or its equivalent", while "possession is the holding of a thing
or the enjoyment of a right" as defined by Article 523 of the Civil Code. Accused-appellant cannot be
convicted of a crime which is not charged in the information for to do so would deny him the due
process of law (People vs. Despavellador, 1 SCRA 205 [1961]; People vs. Mori, 55 SCRA 382
[1974]).

Neither can accused-appellant be convicted of illegal possession of firearm and ammunition. The
search warrant implemented by the raiding party authorized only the search and seizure of ". . . the
described quantity of Methamphetamine Hydrochloride commonly known as shabu and its
paraphernalia" (Exh. O, p. 50, original record). Thus, the raiding party was authorized to seize only
shabu and paraphernalia for the use thereof and no other. A search warrant is not a sweeping
authority empowering a raiding party to undertake a finishing expedition to seize and confiscate any
and all kinds of evidence or articles relating to a crime. The Constitution itself (Section 2, Article III)
and the Rules of Court (Section 3, Rule 126) specifically mandate that the search warrant must
particularly describe the things to be seized. Thus, the search warrant was no authority for the police
officers to seize the firearm which was not mentioned, much less described with particularity, in the
search warrant. Neither may it be maintained that the gun was seized in the course of an arrest, for
as earlier observed, accused-appellant's arrest was far from regular and legal. Said firearm, having
been illegally seized, the same is not admissible in evidence (Stonehill vs. Diokno, 20 SCRA 383
[1967]). The Constitution expressly ordains the exclusion in evidence of illegally seized articles.

Any evidence obtained in violation of this or the preceding section shall be

inadmissible for any purpose in any proceeding.

(Section 3[2], Article III, Constitution of the Republic of the Philippines).

With the exclusion in evidence of the illegally seized firearm, there is, therefore, a total absence of
evidence to support the charge of illegal possession of firearm, against accused-appellant.

The same may be said of the charge of illegal possession of ammunition.

WHEREFORE, the decision appealed from is hereby REVERSED and accused-appellant is hereby
ACQUITTED in Criminal Case No. 236-91 and Criminal Case No. 237-91.
The immediate release of accused-appellant is hereby ordered unless there exists a pending valid
cause against him.

The shabu, the marked P100 bill, firearm, and ammunition are hereby ordered confiscated in favor of
the government.

SO ORDERED.

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:

I
 THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE FOR THE PROSECUTION
EXHIBITS "E"-"E-4", TEA BAGS OF ALLEGED MARIJUANA, TO BE THE CORPUS
DELICTI; FURTHERMORE, THAT THE 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)
 xxx xxx xxx

. . . Both Patrolman Luciano and Caraan actually witnessed the same and their testimonies
were based on their actual and personal knowledge of the events that took place leading to
appellant's arrest. They may not have been within hearing distance, specially since
conversation would expectedly be carried on 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.

DOMINGO AGYAO MACAD @ AGPAD, PETITIONER, VS. PEOPLE OF THE

PHILIPPINES, RESPONDENT.

DECISION
GESMUNDO, J.:
This an appeal by certiorari which seeks to reverse and set aside the March 17, 2016
Decision[1] and August 30, 2016 Resolution[2] of the Court Appeals (CA) in CA-G.R. CR-H.C. No.
06638. The CA affirmed the September 16, 2013 Judgment[3] and the January 10, 2014
Resolution[4] of the Regional Trial Court, Bontoc, Mountain Province, Branch 36 ( RTC) in
Criminal Case No. 2011-11-29-108. The RTC found Domingo Agyao Macad a.k.a. Agpad
(petitioner) guilty of violating Section 5, Article II of Republic Act ( R.A.) No. 9165 or
the Comprehensive Dangerous Drugs Act of 2002.

The Antecedents

In an information dated November 29, 2011, petitioner was charged with violating Section 5,
Article II of R.A. No. 9165. When arraigned, he pleaded "not guilty." Thereafter, trial ensued.

Version of the Prosecution

In the afternoon of November 27, 2011, PO1 Davies Falolo ( PO1 Falolo), who was not on duty,
boarded a Bing Bush bus bound for Bontoc, Mountain Province. He sat on the top of the bus as
it was full. At Botbot, petitioner boarded the bus. He threw his carton baggage over to PO1
Falolo. Petitioner, also carrying a Sagada woven bag, then sat on top of the bus, two (2)
meters away from PO1 Falolo.[5]

When petitioner threw his carton box, PO1 Falolo already suspected that it contained
marijuana because of its distinct smell and irregular shape. He was also dubious of the
Sagada woven bag that petitioner had because it was supposed to be oval but it was
rectangular in shape. PO1 Falolo planned to inform other police officers at the barracks but he
was unable to do so because he ran out of load to send a text message. [6]

Upon reaching Bontoc, petitioner alighted at Caluttit, while PO1 Falolo went down at the
Department of Public Works and Highways (DPWH) Compound to buy load for his cellular
phone. Unable to find any store selling load, PO1 Falolo hailed a tricycle and asked to be
brought to Caluttit. PO1 Falolo seated at the back of the driver. When the tricycle arrived at
Caluttit, petitioner was still there and hailed and rode inside the same tricycle, with PO1
Falolo still seated behind the driver.[7]

When the tricycle reached the Community Police Assistance Center ( COMPAC) circle, PO1
Falolo stopped the tricycle and called SPO2 Gaspar Suagen (SPO2 Suagen), who was then on
duty. While SPO2 Suagen approached them, PO1 Falolo asked petitioner if he could open his
baggage, to which the latter replied in the affirmative. However, petitioner suddenly ran away
from the tricycle towards the Pines Kitchenette. Both police officers ran after him and
apprehended him in front of Sta. Rita Parish Church. Petitioner was then handcuffed and he,
together with his baggage, were brought to the Municipal Police Station. [8]

At the police station, the baggage of petitioner were opened and these revealed eleven (11)
bricks of marijuana from the carton baggage and six (6) bricks of marijuana from the Sagada
woven bag. The seized items were marked, photographed and inventoried in the presence of
petitioner, the barangay chairman, a prosecutor and a media representative. The bricks from
the carton baggage weighed 10.1 kilograms; while the bricks from the Sagada woven bag
weighed 5.9 kilograms. The items were brought to the Regional Crime Laboratory Office for a
forensic examination, which yielded a positive result for marijuana. [9]

Version of the Defense

On November 27, 2011, petitioner boarded a Bing Bush bus and sat on top. With him was an
unidentified man, who had a carton box. When he alighted from the bus, petitioner called for a
tricycle where PO1 Falolo and the unidentified man had already boarded. The unidentified man
then asked petitioner to have his baggage dropped at the "circle" and the former alighted at
the motorpool.[10]

Upon reaching the COMPAC, PO1 Falolo stopped the tricycle and asked petitioner why his
companion left. Petitioner denied that he had a companion. When he saw PO1 Falolo call for
another police officer, he ran away. Realizing that the baggage was not his, petitioner stopped
near the church. At this point, PO1 Falolo and another police officer caught him and arrested
him. Petitioner was then brought to the COMPAC, where they waited for thirty (30) minutes
before going to the municipal hall. There, he was coerced to confess that the baggage was
his.

The RTC Ruling

In its January 10, 2014 judgment, the RTC found petitioner guilty of transporting illegal drugs
and sentenced him to suffer the penalty of life imprisonment and to pay a fine of Five Hundred
Thousand Pesos (P500,000.00). The trial court ruled that petitioner's warrantless arrest was
legal because he was caught in flagrante delicto of transporting marijuana, and, as such, the
subsequent search and seizure of the marijuana was legal as an incident of a lawful arrest. In
addition, it posited that the integrity and evidentiary value of the drugs seized were preserved.
The RTC observed that no considerable time had elapsed from the time petitioner ran away
until he was arrested. Also, the trial court noted that the immediate marking of the seized
items at the nearest police station was valid. Further, it stated that the witnesses were able
to explain the minor inconsistencies in the documentary evidence presented. The fallo of the
RTC judgment reads:
ACCORDINGLY, judgment is hereby rendered finding the accused DOMINGO AGYAO MACAD
GUlLTY beyond reasonable doubt of the crime [of violation] of Section 5 of R.A. [No.] 9165 and
is sentenced to suffer the penalty of LIFE IMPRISONMENT and a fine of FIVE HUNDRED
THOUSAND PESOS (PhP500,000.00).

The subject prohibited drugs are forfeited in favor of the government and are hereby directed
to be turned over with dispatch to the Philippine Drug Enforcement (PDEA) for disposition in
accordance with the law.

Pursuant to Administrative Circular No. 4-92-A of the Court Administrator, the District Jail
Warden of the Bureau of Jail Management and Penology, Bontoc District Jail, Bontoc,
Mountain Province is directed to immediately transfer the accused, DOMINGO AGYAO MACAD,
to the custody of the Bureau of Corrections, Muntinlupa City, Metro Manila after the expiration
of fifteen (15) days from date of promulgation unless otherwise ordered by this Court.

SO ORDERED.[11]
Petitioner filed a motion for reconsideration but it was denied by the RTC in its resolution
dated January 10, 2014.

Undaunted, petitioner appealed to the CA.

The CA Ruling

In its March 17, 2016 decision, the CA affirmed the RTC's decision. The appellate court agreed
that the search conducted was an incident of a lawful arrest because petitioner's warrantless
arrest was valid as it fell under Section 5(a) and (b), Rule 113 of the Rules of Court. The CA
also noted that the pungent smell of marijuana emanating from the baggage of petitioner
constituted probable cause for PO1 Falolo to conduct a warrantless arrest. It likewise
reiterated that the prosecution was able to establish the chain of custody.

Petitioner moved for reconsideration, but it was denied by the CA in its September 23, 2016
resolution.

Hence, this petition.

ISSUES

Petitioner argues that:

THE COURT OF APPEALS COMMITTED MISAPPREHENSION OF FACTS AND CONSEQUENTLY
ERRED AND GRAVELY ABUSED ITS DISCRETION IN UPHOLDING THE FINDING OF THE
REGIONAL TRIAL COURT THAT THE ACCUSED WAS COMMITTING A CRIME WHEN HE WAS
ARRESTED THEREBY JUSTIFYING HIS WARRANTLESS ARREST AND EVENTUAL SEARCH AND
SEIZURE.

THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION IN NOT EXCLUDING THE
MARIJUANA ALLEGEDLY [SEIZED] FROM THE PETITIONER IN [CONSONANCE] WITH ARTICLE
III, SECTION 3(2) OF THE 1987 CONSTITUTION.

THE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS DISCRETION IN UPHOLDING THE
FINDING OF THE REGIONAL TRIAL COURT THAT THE CHAIN OF CUSTODY OF THE SEIZED
DRUG WAS PROPERLY ESTABLISHED.[12]
Petitioner asserts that the search conducted was neither an incident of a lawful arrest nor
was it made with his consent. He assails that PO1 Falolo's actions belie that he had probable
cause to believe that petitioner was transporting marijuana because it took him a long time to
make any overt act in arresting petitioner.

In addition, petitioner argues that the integrity of the items seized was compromised because
the baggage, which contained the drugs, were left behind when the police officers chased
him. Also, he claims that the procedure prescribed under Section 21 of R.A. No. 9165 was not
followed because the marking, photography and inventory were not immediately made at the
place of arrest.
In its Comment,[13] respondent, through the Office of the Solicitor General ( OSG), argues that
at the moment petitioner boarded the bus, PO1 Falolo had probable cause to conduct the
warrantless search and seizure on petitioner's personal effects due to the distinctive smell of
marijuana emanating from petitioner's carton baggage and the unusual shape of the Sagada
woven bag. It also states that the probable cause of PO1 Falolo was reinforced when
petitioner ran away when asked for permission to check his baggage. Respondent concludes
that petitioner's warrantless arrest and incidental search from such arrest were based on the
existence of probable cause.

Respondent also argues that PO1 Falolo immediately tried to contact the Provincial Head
Quarters (PHQ) when he had probable cause that petitioner was transporting marijuana, but
his cellular phone ran out of load; and that the integrity and evidentiary value of the seized
items were preserved because all the police officers involved in the chain of custody took the
necessary precautions to ensure that there had been no change in the condition of the
marijuana bricks. It further avers that the minor discrepancy in the document, entitled "Turn
Over of Evidence," is too inconsequential to affect the integrity and evidentiary value of the
seized items.

In his Reply,[14] petitioner reiterates that PO1 Falolo did not have probable cause to search his
baggage because he did not immediately confront him regarding the matter; and that PO1
Falolo's indifferent actions cast doubt on his certainty that petitioner's baggage contained
illegal drugs.

The Court's Ruling

The petition lacks merit.

Petition resorted to the wrong mode of appeal

Section 13 (c), Rule 124 of the Rules of Court, as amended, states that "[i]n cases where the
CA imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter
judgment imposing such penalty. The judgment may be appealed to the Supreme Court by
notice of appeal filed with the Court of Appeals." Hence, an accused, upon whom the penalty
of reclusion perpetua or life imprisonment had been imposed by the CA, can simply file a
notice of appeal to allow him to pursue an appeal as a matter of right before the Court, which
opens the entire case for review on any question including one not raised by the parties. [15]

On the other hand, an accused may also resort to an appeal by certiorari to the Court via
Rule 45 under the Rules of Court. An appeal to this Court by petition for review
on certiorari shall raise only questions of law. Moreover, such review is not a matter of right,
but of sound judicial discretion, and will be granted only when there are special and important
reasons.[16]

In other words, when the CA imposed a penalty of reclusion perpetua or life imprisonment, an
accused may: (1) file a notice of appeal under Section 13 (c), Rule 124 to avail of an appeal as
a matter of right before the Court and open the entire case for review on any question; or (2)
file a petition for review on certiorari under Rule 45 to resort to an appeal as a matter of
discretion and raise only questions of law.[17]

In this case, the CA affirmed the RTC decision imposing the penalty of life imprisonment to
petitioner. Notably, however, the petition filed before this Court invokes grave abuse of
discretion in assailing the CA decision, which is a ground under a petition for certiorari under
Rule 65 of the Rules of Court. In any event, even if the instant petition is treated as a petition
for review on certiorari under Rule 45, which is limited to questions of law, it still raises
questions of fact because it essentially assails the appreciation of the testimonial and
documentary evidence by the CA and the RTC.[18] As a rule, these questions of fact cannot be
entertained by the Court under Rule 45. Thus, the petition is procedurally infirm.

Nonetheless, even if the questions of fact raised by petitioner are considered by the Court, the
petition is still bereft of merit.

PO1 Falolo had probable cause to conduct a valid warrantless arrest and a valid incidental
search

Rule 113 of the Rules of Court 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.[19]

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.[20]

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.[21]

A valid warrantless arrest which justifies a subsequent search is one that is carried out under
the parameters of Section 5 (a), Rule 113 of the Rules of Court, which requires that the
apprehending officer must have been spurred by probable cause to arrest a person caught
in flagrante delicto. To be sure, the term probable cause has been understood to mean a
reasonable ground of suspicion supported by circumstances sufficiently strong in themselves
to warrant a cautious man's belief that the person accused is guilty of the offense with which
he is charged. Specifically, with respect to arrests, it is such facts and circumstances which
would lead a reasonably discreet and prudent man to believe that an offense has been
committed by the person sought to be arrested. In this light, the determination of the
existence or absence of probable cause necessitates a re-examination of the factual
incidents.[22] Accordingly, after a valid warrantless arrest is effected, the officer may also
conduct a valid warrantless search, which is in incidental to such arrest.

Aside from a search incident leading to a lawful arrest, warrantless searches have also been
upheld in cases involving a moving vehicle. The search of moving vehicles has been justified
on the ground that the mobility of motor vehicles makes it possible for the vehicle to be
searched to move out of the locality or jurisdiction in which the warrant must be sought. [23]

A search of a moving vehicle may either be a mere routine inspection or an extensive search.
The search in a routine inspection is limited to the following instances: (1) where the officer
merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds;
(2) simply looks into a vehicle; (3) flashes a light therein without opening the car's doors; (4)
where the occupants are not subjected to a physical or body search; (5) where the inspection
of the vehicles is limited to a visual search or visual inspection; and (6) where the routine
check is conducted in a fixed area.[24]

On the other hand, an extensive search of a moving vehicle is only permissible when there is
probable cause. When a vehicle is stopped and subjected to an extensive search, 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. [25]

This Court has in the past found probable cause to conduct without a judicial warrant an
extensive search of moving vehicles in situations where (1) there had emanated from a
package the distinctive smell of marijuana; (2) officers of the Philippine National Police (PNP)
had received a confidential report from informers that a sizeable volume of marijuana would
be transported along the route where the search was conducted; (3) [police officers] had
received information that a Caucasian coming from Sagada, Mountain Province, had in his
possession prohibited drugs and when the Narcom agents confronted the accused Caucasian,
because of a conspicuous bulge in his waistline, he failed to present his passport and other
identification papers when requested to do so; (4) [police officers] had received confidential
information that a woman having the same physical appearance as that of the accused would
be transporting marijuana; (5) the accused who were riding a jeepney were stopped and
searched by policemen who had earlier received confidential reports that said accused would
transport a large quantity of marijuana; and (6) where the moving vehicle was stopped and
searched on the basis of intelligence information and clandestine reports by a deep
penetration agent or spy - one who participated in the drug smuggling activities of the
syndicate to which the accused belonged - that said accused were bringing prohibited drugs
into the country.[26]

In People v. Claudio,[27] a police officer rode a bus with the accused therein from Baguio City
to Olongapo City. The officer noticed that the accused was acting suspiciously with her woven
buri bag. While in transit, the officer inserted his finger in the buri bag and smelled marijuana.
However, the officer did not do anything after he discovered that there was marijuana inside
the bag of the accused until they reached Olongapo City. Right after the accused alighted from
the bus, the officer apprehended her and brought her to the police station. There, a search on
the bag of the accused yielded marijuana. In that case, the Court ruled that the officer had
probable cause to conduct a valid warrantless arrest and make a warrantless search
incidental to a lawful arrest.

In People v. Vinecario,[28] the accused therein were onboard a motorcycle when they sped
past a checkpoint and the officers ordered them to return. Upon their return, the officers
required them to produce their identification cards, but they failed to comply. The officers
noticed that the accused were acting suspiciously with the military bag they were carrying
because it was passed from one person to another. The officers then ordered one of the
accused to open the bag. When the latter opened it, a package wrapped in paper was taken
out and when one of the accused grabbed it, the wrapper was tom and the smell of marijuana
wafted in the air. Thereafter, the accused were arrested and the items were confiscated. In
that case, the Court ruled that there was probable cause to conduct an extensive search
because of the numerous circumstances indicating that accused were offenders of the law.

In this case, the Court finds that PO1 Falolo had probable cause to believe that petitioner was
carrying marijuana in his baggage. He testified as follows:
[Pros. DOMINGUEZ]
Q According to you when you reached Botbot a certain Domingo Macad [hailed the bus],
 what did you do Mr. Witness?

[Police Officer FALOLO]

A He [threw] his [carton] baggage and went at the top load, sir.

Q Before he [threw] you his baggage, what did he do?

A He [flagged] down the bus, sir.

xxx

Q When the bus stop, what did Domingo Macad do?

A He [threw] me his baggage, sir.

Q How did he throw to you the baggage [carton]?

A He threw the baggage upwards, sir.

Q Were you able to catch the [carton] baggage?

A Yes, sir.

Q Aside from that what did you notice when he [threw] you that baggage [carton]?
A The smell and the shape of the [carton], sir.

Q Will you describe to us the [carton] baggage of Domingo Macad?

A The [carton] was supposed to be flat but it seems there is something at the top, sir.

Q Was there markings on this [carton]?

A Yes, sir. Magic flakes.

Q After he threw you this [carton] what happened next?

A He immediately came to the top load, sir.

Q How far were you seated from him?

A About two meters, sir.

Q Aside from this [carton] what else did you notice when he went on top of the bus?
A I noticed a Sagada traveling pack, sir. The shape of the bag is rectangular [but] it is
supposed to be oval, sir.

Q What is the color of the bag?

A Blue, sir.

Q Was he carrying this Sagada woven bag?

A Yes, sir.

Q What did you notice to this woven bag, Mr. witness?

A The shape, sir. When I touched [it], it's hard, sir.

Q What came to your mind when you [touched that] it's hard?
A [I] suspected marijuana bricks, sir.

Q Why did you suspect that they are marijuana bricks?

A First, when he [threw] me the [carton] baggage [and] right there I [smelled] the odor [that]
is the same as marijuana, sir.

Q You mean to say, when you [held] that [carton], you [smelled] marijuana leaves?
A Yes, sir.

Q Why are you familiar with the smell of marijuana leaves?

A It is familiar to us law enforces because in our trainings, our instructors showed to us
the different kinds of marijuana. We touch and we smell, sir.
Q That was during your training as police officers?
A Yes, sir and the same odor when we caught marijuana in Tocucan, Sir.

Q So you mean to say, Mr. witness, that at the time he [threw] you that [carton] and he
boarded and [joined] you at the top load and so with the Sagada woven bag, you
suspected marijuana leaves?
A Yes, sir.[29] (emphases supplied)
Evidently, petitioner hailed the same bus that PO1 Falolo was riding on the way to Bontoc,
Mountain Province. He then threw his carton baggage to PO1 Falolo who was then seated on
the roof and was toting a Sagada woven bag as well. Immediately, PO1 Falolo smelled the
distinct scent of marijuana emanating from the carton baggage and noticed its irregular
shape. He also noticed that the Sagada woven bag of petitioner was rectangular instead of an
oval and, upon touching it, he noticed that it was hard.

Accordingly, PO1 Falolo had probable cause that petitiOner was committing the crime of
transporting dangerous drugs, specifically marijuana bricks, due to the unique scent of
marijuana emanating from the bag and the unusual shapes and hardness of the baggage. As
PO1 Falolo was not in uniform at that time, he intended to inform his colleagues at the PHQ
Barracks to conduct a check point so that they could verify his suspicion about the transport
of illegal drugs.[30] As seen in his testimony, PO1 Falolo already had probable cause to
conduct an extensive search of a moving vehicle because he believed before the search that
he and his colleagues would find instrumentality or evidence pertaining to a crime, particularly
transportation of marijuana, in the vehicle to be searched.

However, PO1 Falolo discovered that his load was insufficient to make a phone call. Thus,
without the back-up of his colleagues, he chose to remain vigilant of petitioner until he could
contact them. When the bus reached Bontoc, petitioner alighted in lower Caluttit. On the other
hand, PO1 Falolo alighted in front of the DPWH Compound, which was not more than a
kilometer away from lower Caluttit, to look for cellphone load to contact his colleagues. When
he failed to find load for his phone, PO1 Falolo immediately boarded a tricycle back to lower
Caluttit and sat at the back of the driver.

There, PO1 Falolo chanced upon petitioner, who boarded the same tricycle and sat inside.
When the tricycle reached the COMPAC, PO1 Falolo stopped the tricycle and called SPO2
Suagen, who was on duty. He then asked petitioner if he could check his baggage and the
latter answered in the affirmative. However, when petitioner saw SPO2 Suagen approaching
the tricycle, he suddenly ran away towards the Pizza Kitchenette and left his baggage.

At that moment, PO1 Falolo also acquired probable cause to conduct a warrantless arrest on
petitioner. There were numerous circumstances and overt acts which show that PO1 Falolo
had probable cause to effect the said warrantless arrest: (1) the smell of marijuana emanating
from the carton baggage; (2) the irregular shape of the baggage; (3) the hardness of the
baggage; (4) the assent of petitioner in the inspection of his baggage but running away at the
sight of SPO2 Suagen; and (5) leaving behind his baggage to avoid the police officers.

Petitioner's flight at the sight of the uniformed police officer and leaving behind his baggage
are overt acts, which reinforce the finding of probable cause to conduct a warrantless arrest
against him. The Court has held that the flight of an accused is competent evidence to
indicate his guilt; and flight, when unexplained, is a circumstance from which an inference of
guilt may be drawn. Indeed, the wicked flee when no man pursueth, but the innocent are as
bold as lion.[31]

Based on these facts, PO1 Falolo had probable cause to believe that there was a reasonable
ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a
cautious man's belief that petitioner is guilty of the offense charged. Petitioner was caught in
flagrante delicto of transporting marijuana bricks by PO1 Falolo.

Consequently, when PO1 Falolo and SPO2 Suagen captured petitioner in front of the St. Rita
Parish Church, they had probable cause to arrest him and bring him and his baggage to the
police station. There, the police officers properly conducted a search of petitioner's baggage,
which is an incident to a lawful arrest. Indeed, numerous devious circumstances surround the
incident, from the time petitioner boarded the bus until he was caught after fleeing at the
sight of the police officer, that constitute as probable cause to arrest him and to conduct the
warrantless search incidental to such lawful arrest.

Under the circumstances, PO1 Falolo could not immediately conduct the search

Petitioner's argument - that PO1 Falolo's finding of probable cause is not authentic because
petitioner was not immediately arrested or searched in the bus or upon disembarking - is
bereft of merit.

As properly discussed by the RTC, it was reasonable for PO1 Falolo not to immediately arrest
petitioner.[32] PO1 Falolo was not on duty and was not in uniform when he smelled the pungent
odor of marijuana from the baggage of petitioner. They were in a crowded bus and any
commotion therein may cause panic to the civil ian passengers. Further, it was not shown that
PO1 Falolo was carrying handcuffs, thus, he may not be able to single-handedly restrain
petitioner.[33] Moreover, the Court finds that it was sensible for PO1 Falolo to wait for back-up
as petitioner could be carrying a dangerous weapon to protect his two large bags of suspected
marijuana.

When he saw petitioner disembark from the bus in lower Caluttit, PO1 Falolo did not
immediately follow him; rather, PO1 Falolo disembarked in front of the DPWH. The RTC
underscored that the proximity of the said place was not more than a kilometer away from
lower Caluttit.[34] Thus, when PO1 Falolo failed to find load for his cellular phone, he was able
to reach lower Caluttit immediately on board a tricycle and was able to chance upon
petitioner due to the proximity of their positions. Manifestly, PO1 Falolo's acts showed that he
clung to his determination of probable cause to conduct an extensive search on the baggage
of petitioner. When PO1 Falolo saw his colleague SPO2 Suagen in the COMPAC, he decided
that it was safe and reasonable to conduct the search and immediately asked permission from
petitioner to examine his baggage.

Nevertheless, when petitioner suddenly ran away from the tricycle while SPO2 Suagen was
approaching and left his baggage behind, PO1 Falolo also obtained probable cause to conduct
a warrantless arrest. He was earnest in his probable cause that petitioner was committing a
crime in flagrante delicto, thus, PO1 Falolo religiously pursued him until he was arrested and
his baggage eventually searched as an incident thereof.

The chain of custody rule

Chain of custody means the duly recorded authorized movements and custody of seized drugs
or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each
stage, from the time of seizure/confiscation to receipt in the forensic laboratory to
safekeeping to presentation in court for destruction. Such record of movements and custody
of seized item shall include the identity and signature of the person who held temporary
custody of the seized item, the date and time when such transfer of custody were made in the
course of safekeeping and use in court as evidence, and the final disposition. [35] To ensure the
establishment of the chain of custody, Section 21 (1) of RA No, 9165 specifies that:
(1) The apprehending team having initial custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and photograph the same in the presence
of the accused or the person/s from whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from the media and the Department of
Justice (DOJ), and any elected public official who shall be required to sign the copies of the
inventory and be given a copy thereof.
Section 21 (a) of the Implementing Rules and Regulations ( IRR) of R.A. No. 9165 supplements
Section 21 (1) of the said law, viz:
(a) The apprehending officer/team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the same in
the presence of the accused or the person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof: Provided, that the physical inventory and
photograph shall be conducted at the place where the search warrant is served; or at the
nearest police station or at the nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures; Provided, further, that non-compliance with
these requirements under justifiable grounds, as long as the integrity and the evidentiary
value of the seized items are properly preserved by the apprehending officer/team, shall not
render void and invalid such seizures of and custody over said items[.] (emphasis supplied)
Based on the foregoing, Section 21 of R.A. No. 9165 requires the apprehending team, after
seizure and confiscation, to immediately conduct a physically inventory; and photograph the
same in the presence of (1) the accused or the persons from whom such items were
confiscated and/or seized, or his/her representative or counsel, (2) a representative from the
media and (3) the DOJ, and (4) any elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof.[36]

In the amendment of R.A. No. 10640, the apprehending team is now required to conduct a
physical inventory of the seized items and photograph the same in (1) the presence of the
accused or the persons from whom such items were confiscated and/or seized, or his/her
representative or counsel, (2) with an elected public official and (3) a representative of the
National Prosecution Service or the media who shall be required to sign the copies of the
inventory and be given a copy thereof.[37] In the present case, as the alleged crimes were
committed on November 27, 2011, then the provisions of Section 21 of R.A. No. 9165 and its
IRR shall apply.

Notably, Section 21 of the IRR provides a saving clause which states that non-compliance with
these requirements shall not render void and invalid such seizures of and custody over the
confiscated items provided that such non-compliance were under justifiable grounds and the
integrity and the evidentiary value of the seized items are properly preserved by the
apprehending officer or team.[38]

The exception found in the IRR of R.A. 9165 comes into play when strict compliance with the
prescribed procedures is not observed. This saving clause, however, applies only (I) where the
prosecution recognized the procedural lapses, and thereafter explained the cited justifiable
grounds, and (2) when the prosecution established that the integrity and evidentiary value of
the evidence seized had been preserved. The prosecution, thus, loses the benefit of invoking
the presumption of regularity and bears the burden of proving with moral certainty -that the
illegal drug presented in court is the same drug that was confiscated from the accused during
his arrest.[39]

The prosecution substantially complied with the chain of custody rule

The Court finds that the prosecution was able to sufficiently comply with the chain of custody
rule under Section 21 of R.A. No. 9165 and its IRR. When petitioner was apprehended, he and
his baggage were brought to the Municipal Police Station. There, the seized items, consisting
of eleven (11) bricks of marijuana from the carton baggage and six (6) bricks of marijuana from
the Sagada woven bag, were marked, photographed and inventoried. At that moment, the
presence of petitioner, Barangay Chairman Erlinda Bucaycay, DOJ representative Prosecutor
Golda Bagawa, a media representative Gregory Taguiba, and a certain Atty. Alsannyster
Patingan were secured by the police officers.[40] Accordingly, all the required witnesses under
Section 21 of R.A. No. 9165 were obtained. Petitioner does not even question the sufficiency
of the required witnesses.

The seized items were also immediately weighed. The eleven (11) bricks from the carton
baggage weighed 10.1 kilograms; while six (6) bricks from the Sagada woven bag weighed 5.9
kilograms.[41]

After the marking, inventory and taking of photographs, SPO1 Jessie Lopez ( SPO1 Lopez)
prepared the inventory report and allowed the witnesses to sign it. SPO1 Lopez also signed
the spot report. The seized items were then turned over to PO2 Jonathan Canilang ( PO2
Canilang), who thereafter brought the said items along with the request for laboratory
examination to SPO3 Oscar Cayabas (SPO3 Cayabas) of the Provincial Crime Laboratory,
Bontoc, Mountain Province. SPO3 Cayabas then made a request for examination to the
Regional Crime Laboratory Office. There, PSI Alex Biadang ( PSI Biadang) received the request
for examination, along with the seized items. After the examination, all the bricks tested
positive for marijuana. The subject bag and carton, together with the seized marijuana bricks,
were all identified in open court by PO1 Falolo and PSI Biadang. [42]

Clearly, the prosecution was able to establish the chain of custody of the seized drugs. They
were able to prove that all the persons who handled the drugs were duly accounted for and
that the integrity and evidentiary value of the seized items were maintained by these persons
until their presentation in court. In addition, there was no lapse or gap in the handling of the
seized items because the witnesses of the prosecution correctly identified the persons
involved in the custody of the seized marijuana bricks.

The seized items may be marked in the nearest police station; minor discrepancy in the
document is immaterial

Petitioner argues that the police officers should have immediately marked the seized items
upon his arrest and should not have left the baggage in the tricycle.

The Court is not convinced.

As a rule, under the IRR, the physical inventory and photograph of the seized items shall be
conducted at the place where the search warrant is served. Likewise, the marking should be
done upon immediate confiscation. However, Section 21 of the IRR also provides an exception
that the physical inventory and photography of the seized items may be conducted at the
nearest police station or the nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures. In such instance, provided that it is practicable,
the marking of the seized items may also be conducted at nearest police station.

In Imson v. People,[43] the Court stated that to be able to create a first link in the chain of
custody, what is required is that the marking be made in the presence of the accused and
upon immediate confiscation. "Immediate Confiscation" has no exact definition. Thus,
testimony that included the marking of the seized items at the police station and in the
presence of the accused was sufficient in showing compliance with the chain of custody
rules. Marking upon immediate confiscation contemplates even marking at the nearest police
station or office of the apprehending team.

Similarly, in People v. Bautista,[44] the Court reiterated that the failure to mark the seized
items at the place of arrest does not itself impair the integrity of the chain of custody and
render the confiscated items inadmissible in evidence. Marking upon "immediate" confiscation
can reasonably cover marking done at the nearest police station or office of the apprehending
team, especially when the place of seizure is volatile and could draw unpredictable reactions
from its surroundings.

In this case, it was reasonable for the police officers not to conduct the marking immediately
at the place of the arrest and seizure. Evidently, petitioner is a flight risk because he
immediately ran away at the sight of SPO2 Suagen. To conduct the marking in an unsecured
location may result in the escape of petitioner. Also, the seized baggage contained large
quantities of marijuana. It would be impractical, if not dangerous, for merely two police
officers to conduct the marking of such drugs in broad daylight and in open public, without the
assistance and security of other police officers. Accordingly, it was prudent and rational for
the police officers to conduct the marking in the police station. As stated earlier, PO1 Falolo
and PSI Biadang were able to identify all the marked items in open court.

Further, there was no opportunity of tampering when PO1 Falolo and SPO2 Suagen ran after
petitioner. As properly discussed by the RTC, there was no considerable time that elapsed
from the moment that petitioner ran away from his baggage up to the time the police officers
arrested him. The distance between the Sta. Rita Church, where petitioner was caught, and
the COMPAC, where the baggage was left, was only about 500 meters. Thus, the police
officers were able to immediately return to the baggage once they arrested petitioner. It
would be the height of absurdity to require the police officers to simply wait at the tricycle
while they freely allow petitioner to escape even though there was probable cause to believe
that he was transporting illegal drugs.

Likewise, petitioner argues that the mistake in the document, entitled "Turn Over of
Evidence," which states that six (6) bricks of marijuana were contained in a carton, instead of
the Sagada woven bag, taints the chain of custody.

Again, the argument has no merit.

The RTC correctly observed that the statement in the turn over of evidence that the six (6)
bricks of marijuana were contained in a carton, instead of the Sagada woven bag, was a minor
oversight and does not in any way destroy the prosecution's case. PO1 Falolo testified that the
six (6) bricks of marijuana were contained in the Sagada woven bag. When PO2 Canilang was
presented as witness, he also testified that the six (6) bricks of marijuana were acquired in
the Sagada woven bag. Both witnesses were able to properly identify the marking contained in
the said bricks of marijuana from the Sagada woven bag. These portions of the testimonies of
the police officer were never assailed by petitioner during cross-examination, hence, these
were readily admitted by the RTC.

Verily, it was only in the turn over of evidence that the minor mistake was found and it was a
mere product of inadvertence. The testimonies of the prosecution witnesses sufficiently
established that the six (6) bricks of marijuana were indeed found in the Sagada woven bag.
Accordingly, it was proven by the prosecution that the six (6) marijuana bricks were seized
from the Sagada woven bag belonging to petitioner, and not from the carton.

In fine, the guilt of petitioner for violating Section 5, Article II of Republic Act ( R.A.) No. 9165
for transporting illegal drugs has been proven beyond reasonable doubt.

WHEREFORE, the petition is DENIED. The March 17, 2016 Decision and September 23, 2016
Resolution of the Court Appeals in CA-G.R. CR-H.C. No. 06638 are AFFIRMED in toto.

SO ORDERED.

G.R. No. 95847-48. March 10, 1993.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GABRIEL GERENTE y BULLO, accused-

appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; LAWFUL WHEN

ARRESTING OFFICER HAS PERSONAL KNOWLEDGE THAT THE PERSON TO BE ARRESTED
HAS COMMITTED THE CRIME; CASE AT BAR. — 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.

2. ID.; ID.; SEARCH AND SEIZURE; VALID EVEN WITHOUT A WARRANT WHEN MADE AS AN
INCIDENT TO LAWFUL ARREST; RATIONALE. — The search conducted on Gerente's person was
likewise lawful because it was made as an incident to a valid arrest. This is in accordance with
Section 12, Rule 126 of the Revised Rules of Court which provides: "Section 12. Search incident to
lawful arrest. — A person lawfully arrested may be searched for dangerous weapons or anything
which may be used as proof of the commission of an offense, without a search warrant." The frisk
and search of appellant's person upon his arrest was a permissible precautionary measure of
arresting officers to protect themselves, for the person who is about to be arrested may be armed
and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in
Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual
being arrested may be frisked for concealed weapons that may be used against the arresting officer
and all unlawful articles found his person, or within his immediate control may be seized."

3. CRIMINAL LAW; CONSPIRACY; LIABILITY OF CONSPIRATORS; RULE; CASE AT BAR. —

There is no merit in appellant's allegation that the trial court erred in convicting him of having
conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr.
Valentin Bernales that the fracture on the back of the victim's skull could have been inflicted by one
person only. what Dr. Bernales stated was a mere possibility that only one person dropped the
concrete hollow block on the head of the victim, smashing it. That circumstance, even if true, does
not absolve the other two co-conspirators in the murder of Blace for when there is a conspiracy to
commit a crime, the act of one conspirator is the act of all. The conspiracy was proven by the
eyewitness-testimony of Edna Edwina Reyes, that she overheard the appellant and his companions
conspire to kill Blace, that acting in concert, they attacked their victim with a piece of wood and a
hollow block and caused his death. "When there is no evidence indicating that the principal witness
for the prosecution was moved by improper motive, the presumption is that he was not so moved
and his testimony is entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence,
the trial court did not err in giving full credit to Edna Reyes' testimony.

4. ID.; CIVIL INDEMNITY FOR DEATH; INCREASED TO P50,000.00. — The Solicitor General
correctly pointed out in the appellee's brief that the award of P30,000.00 as civil indemnity for the
death of Clarito Blace should be increased to P50,000.00 in accordance with our ruling in People vs.
Sison, 189 SCRA 643.

DECISION

GRIÑO-AQUINO, J p:

This is an appeal from the decision of the Regional Trial Court of Valenzuela, Metro Manila, Branch
172, which found the appellant guilty of Violation of Section 8 of Republic Act 6425 (Dangerous
Drugs Act of 1972) and sentenced him to suffer the penalty of imprisonment for a term of twelve (12)
years and one (1) day, as minimum, to twenty (20) years, as maximum; and also found him guilty of
Murder for which crime he was sentenced to suffer the penalty of reclusion perpetua. The dispositive
portion of the appealed decision reads:

"WHEREFORE, in view of the foregoing the Court finds the accused Gabriel Gerente in Criminal
Case No. 10255-V-90 guilty beyond reasonable doubt of Violation of Section 8 of R.A. 6425 and
hereby sentences him to suffer the penalty of imprisonment of twelve years and one day as
minimum to twenty years as maximum, and a fine of twelve thousand, without subsidiary
imprisonment in case of insolvency, and to pay the costs.

"In Criminal Case No. 10256-V-90, the Court finds the accused Gabriel Gerente guilty beyond
reasonable doubt of the crime of Murder, and there by (sic) no aggravating circumstances nor
mitigating circumstances, is hereby sentenced to suffer the penalty of reclusion perpetua; to
indemnify the heirs of the victim in the sum of P30,000.00, and in the amount of P17,609.00 as
funeral expenses, without subsidiary imprisonment in case of insolvency, and to pay the costs. The
accused Gabriel Gerente shall be credited with the full term of his preventive imprisonment." (p. 25,
Rollo.)

Appellant Gabriel Gerente y Bullo was charged with Violation of Section 8, Art. II of R.A. 6425, which
was docketed as Criminal Case No. 10255-V-90 of the Regional Trial Court of Valenzuela, Metro
Manila. The Information reads:

"That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without
justification, did then and there wilfully, unlawfully and feloniously have in his possession and control
dried flowering tops wrapped in foil with markings and place in a transparent plastic bag which are
considered prohibited drugs." (p. 2, Rollo.)
The same accused, together with Totoy and Fredo Echigoren who are both at large, was charged
with Murder in Criminal Case No. 10256-V-90 in an information of the same date and signed by the
same Assistant Provincial Prosecutor, as follows:

"That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused together
with two (2) others who are still at large and against whom the preliminary investigation has not yet
been terminated by the Office of the Provincial Prosecutor of Bulacan, conspiring, confederating
together and mutually helping one another, armed with a piece of wood and hallow (sic) block and
with intent to kill one Clarito B. Blace, did then and there wilfully, unlawfully and feloniously, with
evident premeditation and treachery, attack, assault and hit with the said piece of wood and hollow
block the said Clarito B. Blace, hitting the latter on the different parts of his body, thereby inflicting
serious physical injuries which directly caused the death of the said victim." (p. 3, Rollo.)

Edna Edwina Reyes testified that at about 7:00 a.m. of April 30, 1990, appellant Gabriel Gerente,
together with Fredo Echigoren and Totoy Echigoren, started drinking liquor and smoking marijuana
in the house of the appellant which is about six (6) meters away from the house of the prosecution
witness who was in her house on that day. She overheard the three men talking about their intention
to kill Clarito Blace. She testified that she heard Fredo Echigoren saying, "Gabriel, papatayin natin si
Clarito Blace," and Totoy Echigoren allegedly seconded Fredo's suggestion saying: "Papatayin natin
'yan mamaya." Appellant allegedly agreed: "Sigue, papatayin natin mamaya." (pp. 3-4, tsn, August
24, 1990.)

Fredo and Totoy Echigoren and Gerente carried out their plan to kill Clarito Blace at about 2:00 p.m.
of the same day. The prosecution witness, Edna Edwina Reyes, testified that she witnessed the
killing. Fredo Echigoren struck the first blow against Clarito Blace, followed by Totoy Echigoren and
Gabriel Gerente who hit him twice with a piece of wood in the head and when he fell, Totoy
Echigoren dropped a hollow block on the victim's head. Thereafter, the three men dragged Blace to
a place behind the house of Gerente.

At about 4:00 p.m. of the same day, Patrolman Jaime Urrutia of the Valenzuela Police Station
received a report from the Palo Police Detachment about a mauling incident. He went to the
Valenzuela District Hospital where the victim was brought. He was informed by the hospital officials
that the victim died on arrival. The cause of death was massive fracture of the skull caused by a hard
and heavy object. Right away, Patrolman Urrutia, together with Police Corporal Romeo Lima and
Patrolman Alex Umali, proceeded to Paseo de Blas where the mauling incident took place. There
they found a piece of wood with blood stains, a hollow block and two roaches of marijuana. They
were informed by the prosecution witness, Edna Edwina Reyes, that she saw the killing and she
pointed to Gabriel Gerente as one of the three men who killed Clarito.

The policemen proceeded to the house of the appellant who was then sleeping. They told him to
come out of the house and they introduced themselves as policemen. Patrolman Urrutia frisked
appellant and found a coin purse in his pocket which contained dried leaves wrapped in cigarette
foil. The dried leaves were sent to the National Bureau of Investigation for examination. The
Forensic Chemist found them to be marijuana.

Only the appellant, Gabriel Gerente, was apprehended by the police. The other suspects, Fredo and
Totoy Echigoren, are still at large.

On May 2, 1990, two separate informations were filed by Assistant Provincial Prosecutor Benjamin
Caraig against him for Violation of Section 8, Art. II, of R.A. 6425, and for Murder.
When arraigned on May 16, 1990, the appellant pleaded not guilty to both charges. A joint trial of the
two cases was held. On September 24, 1990, the trial court rendered a decision convicting him of
Violation of Section 8 of R.A. 6425 and of Murder.

In this appeal of the appellant, the following errors are ascribed to the trial court:

1. the court a quo gravely erred in admitting the marijuana leaves adduced in evidence by the
prosecution; and

2. the court a quo gravely erred in convicting the accused-appellant of the crimes charged despite
the absence of evidence required to prove his guilt beyond reasonable doubt.

The appellant contends that the trial court erred in admitting the marijuana leaves as evidence in
violation of his constitutional right not to be subjected to illegal search and seizure, for the dried
marijuana leaves were seized from him in the course of a warrantless arrest by the police officers.
We do not agree.

The search of appellant's person and the seizure of the marijuana leaves in his possession were
valid because they were incident to a lawful warrantless arrest.

Paragraphs (a) and (b), Section 5, Rule 113 of the Revised Rules of Court provide:

'SECTION 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without
a warrant, arrest 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; . . .'

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.

In Umil vs. Ramos, 187 SCRA 311, the arrest of the accused without a warrant was effected one (1)
day after he had shot to death two Capcom soldiers. The arrest was held lawful by this Court upon
the rationale stated by us in People vs. Malasugui, 63 Phil. 221, 228, thus:

"To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of
his crime without a warrant, would be to leave society, to a large extent, at the mercy of the
shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many
instances."
The search conducted on Gerente's person was likewise lawful because it was made as an incident
to a valid arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court
which provides:

"SECTION 12. Search incident to lawful arrest. — A person lawfully arrested may be searched for
dangerous weapons or anything which may be used as proof of the commission of an offense,
without a search warrant."

The frisk and search of appellant's person upon his arrest was a permissible precautionary measure
of arresting officers to protect themselves, for the person who is about to be arrested may be armed
and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in
Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual
being arrested may be frisked for concealed weapons that may be used against the arresting officer
and all unlawful articles found in his person, or within his immediate control may be seized."

There is no merit in appellant's allegation that the trial court erred in convicting him of having
conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr.
Valentin Bernales that the fracture on the back of the victim's skull could have been inflicted by one
person only.

What Dr. Bernales stated was a mere possibility that only one person dropped the concrete hollow
block on the head of the victim, smashing it. That circumstance, even if true, does not absolve the
other two co-conspirators in the murder of Blace for when there is a conspiracy to commit a crime,
the act of one conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony
of Edna Edwina Reyes, that she overheard the appellant and his companions conspire to kill Blace,
that acting in concert, they attacked their victim with a piece of wood and a hollow block and caused
his death. "When there is no evidence indicating that the principal witness for the prosecution was
moved by improper motive, the presumption is that he was not so moved and his testimony is
entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not
err in giving full credit to Edna Reyes' testimony.

Appellant's failure to escape (because he was very drunk) is no indicium of his innocence.

The Solicitor General correctly pointed out in the appellee's brief that the award of P30,000.00 as
civil indemnity for the death of Clarito Blace should be increased to P50,000.00 in accordance with
our ruling in People vs. Sison, 189 SCRA 643.

WHEREFORE, the appealed decision is hereby AFFIRMED, with modification of the civil indemnity
awarded to the heirs of the victim, Clarito Blace, which is hereby increased to P50,000.00.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DON RODRIGUEZA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

REGALADO, J.:

On appeal before us is the decision of the Regional Trial Court of Legaspi City, Branch 10, finding
accused-appellant Don Rodrigueza guilty beyond reasonable doubt of violating Section 4, Article II
of the Dangerous Drugs Act of 1972 (Republic Act No. 6425, as amended) and sentencing him to
suffer the penalty of life imprisonment and to pay a fine of P20,000.00 and costs.1

However, the Solicitor General, deviating from his conventional stance in the prosecution of criminal
cases, recommends the acquittal of appellant for the reasons stated in his Manifestation for Acquittal
(In Lieu of Appellee's Brief) filed with the Court. We have reviewed and analyzed the testimonial and
documentary evidence in this case and we find said recommendation to be well taken.

The information, dated July 10, 1987, charges Don Rodrigueza and his co-accused, Samuel
Segovia and Antonio Lonceras, with allegedly having in their custody and possession 100 grams of
marijuana leaves and for selling, in a buy-bust operation, said 100 grams of dried marijuana leaves
for a consideration of P200.00. 2

During the arraignment, all the accused pleaded not guilty to the charge against them. At the trial,
the prosecution and the defense presented several witnesses after which the court a quo rendered
judgment acquitting Samuel Segovia and Antonio Lonceras but convicting and penalizing herein
appellant as hereinbefore stated.

The following facts are culled from the decision of the trial court and the evidence presented by the
prosecution.

At around 5:00 o'clock in the afternoon of July 1, 1987, CIC Ciriaco Taduran was in their
headquarters at the Office of the Narcotics Regional Unit at Camp Bagong Ibalon, Legaspi City,
together with S/Sgt. Elpidio Molinawe, CIC Leonardo B. Galutan and their commanding officer, Major
Crisostomo M. Zeidem, when a confidential informer arrived and told them that there was an
ongoing illegal traffic of prohibited drugs in Tagas, Daraga, Albay. Major Zeidem formed a team to
conduct a buy-bust operation, which team was given P200.00 in different denominations to buy
marijuana. These bills were treated with ultraviolet powder at the Philippine Constabulary Crime
Laboratory (PCCL). Sgt. Molinawe gave the money to Taduran who acted as the poseur buyer. He
was told to look for a certain Don, the alleged seller of prohibited drugs. Taduran went to Tagas
alone and, while along the road, he met Samuel Segovia. He asked Segovia where be could find
Don and where he could buy marijuana. Segovia left for a while and when be returned, he was
accompanied by a man who was later on introduced to him as Don, herein appellant. 3

After agreeing on the price of P200.00 for 100 grams of marijuana, Don halted a passing tricycle
driven by Antonio Lonceras. He boarded it and left Taduran and Segovia. When he came back, Don
gave Taduran "a certain object wrapped in a plastic" which was later identified as marijuana, and
received payment therefor. Thereafter, Taduran returned to the headquarters and made a report
regarding his said purchase of marijuana. 4

Based on that information, Major Zeidem ordered a team to conduct an operation to apprehend the
suspects. In the evening of the same date, CIC Galutan and S/Sgt. Molinawe proceeded to Regidor
Street, Daraga, Albay and arrested appellant, Antonio Lonceras and Samuel Segovia. The
constables were not, however, armed with a warrant of arrest when they apprehended the three
accused. The arrestees were brought to the headquarters for investigation. 5

Thereafter, agents of the Narcotics Command (NARCOM) conducted a raid in the house of Jovencio
Rodrigueza, father of appellant. Taduran did not go with them. During the raid, they were able to
confiscate dried marijuana leaves and a plastic syringe, among others. The search, however, was
not authorized by any search warrant. 6

The next day, July 2, 1987, Jovencio Rodrigueza was released from detention but appellant was
detained. An affidavit, allegedly taken from and executed by him, was sworn to by him before the
assistant city prosecutor. Appellant had no counsel when his sworn statement was taken during that
custodial investigation. The arrestees were also examined by personnel of the PCCL and were
found positive for ultraviolet powder. 7

The three accused presented different versions of their alleged participations.

Samuel Segovia testified that he was in their house in the evening of July 1, 1987 listening to the
radio. Later, he ate his merienda and then went out to buy cigarettes from the store. While he was at
the store, a jeep stopped behind him. Several armed men alighted therefrom and ordered him to get
inside the jeep. He refused but he was forced to board the vehicle. He was even hit by the butt of a
gun. 8

He was thereafter brought to Camp Bagong Ibalon where he was investigated and was repeatedly asked regarding the whereabouts of
Rodrigueza. He was manhandled by the NARCOM agents and was detained while inside the camp. He was then made to hold a P10.00 bill
treated with ultraviolet powder. When he was taken to the PCCL and examined he was found positive of the ultraviolet powder. He was also
made to sign some papers but he did not know what they were all about. 9

Appellant, on the other hand, testified that on said date he was in the house of his aunt in San
Roque, Legaspi City. He stayed there overnight and did not leave the place until the next day when
his brother arrived and told him that their father was taken by some military men the preceding night.
Appellant went to Camp Bagong Ibalon and arrived there at around 8:00 o'clock in the morning of
July 2, 1987. When he arrived, he was asked if he knew anything about the marijuana incident, to
which question he answered in the negative. Like Segovia, he was made to hold a P10.00 bill and
was brought to the crime laboratory for examination. From that time on, he was not allowed to go
home and was detained inside the camp. He was also tortured in order to make him admit his
complicity in the alleged sale of marijuana. 10

In the assignment of errors in his brief, appellant contends that the trial court erred in (1) admitting in
evidence the sworn statement of appellant which was obtained in violation of his constitutional rights;
(2) convicting appellant of the crime charged despite the fact that the 100 grams of dried marijuana
leaves allegedly bought from him were not properly identified; (3) convicting appellant of the crime
charged despite the fact that the evidence for the prosecution is weak and not convincing; and (4)
finding appellant guilty beyond reasonable doubt of selling or at least acting as broker in the sale of
the 100 grams of marijuana to CIC Taduran late in the afternoon of July 1, 1987, despite the failure
of the prosecution to prove his guilt beyond reasonable doubt. 11

We rule for the appellant and approve the recommendation for his acquittal. In disposing of this
case, however, we feel that the issues raised by appellant should properly be discussed seriatim.

1. A buy-bust operation is a form of entrapment employed by peace officers to trap and catch a
malefactor in flagrante delicto. Applied to the case at bar, the term in flagrante delicto requires that
12
the suspected drug dealer must be caught redhanded in the act of selling marijuana or any
prohibited drug to a person acting or posing as a buyer.

In the instant case, however, the procedure adopted by the NARCOM agents failed to meet this
qualification. Based on the very evidence of the prosecution, after the alleged consummation of the
sale of dried marijuana leaves, CIC Taduran immediately released appellant Rodrigueza instead of
arresting and taking him into his custody. This act of CIC Taduran, assuming arguendo that the
supposed sale of marijuana did take place, is decidedly contrary to the natural course of things and
inconsistent with the aforestated purpose of a buy-bust operation. It is rather absurd on his part to let
appellant escape without having been subjected to the sanctions imposed by law. It is, in fact, a
dereliction of duty by an agent of the law.

2. The admissibility of the sworn statement allegedly executed by appellant was squarely placed in
issue and, as correctly pointed out by the defense, said sworn statement is inadmissible in evidence
against appellant.

We have once again to reiterate and emphasize that Article III of the 1987 Constitution provides:

Sec. 12 (1). Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have a competent
and independent counsel preferably of his own choice. If the person cannot afford
the services of counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.

xxx xxx xxx

(3) Any confession or admission obtained in violation of this or section 17 hereof

shall be inadmissible in evidence against him.

An examination of said sworn statement shows that appellant was informed of his constitutional right
to remain silent and to be assisted by counsel during custodial examination. He was also asked if he
was waiving his right to be assisted by counsel and he answered in the affirmative. However, while
the rights of a person under custodial investigation may be waived, such waiver must be made not
only voluntarily, knowingly and intelligently but also in the presence and with the assistance of
counsel. In the present case, the waiver made by appellant being without the assistance of
13

counsel, this omission alone is sufficient to invalidate said sworn statement. 14

3. Corollary to this, we take cognizance of the error of the trial court in admitting in evidence against
appellant the articles allegedly confiscated during the raid conducted in the house of Jovencio
Rodrigueza.

As provided in the present Constitution, a search, to be valid, must generally be authorized by a

search warrant duly issued by the proper government authority. True, in some instances, this Court
15

has allowed government authorities to conduct searches and seizures even without a search
warrant. Thus, when the owner of the premises waives his right against such incursion; when the
16

search is incidental to a lawful arrest; when it is made on vessels and aircraft for violation of
17

customs laws; when it is made on automobiles for the purpose of preventing violations of
18

smuggling or immigration laws; when it involves prohibited articles in plain view; or in cases of
19 20

inspection of buildings and other premises for the enforcement of fire, sanitary and building
regulations, a search may be validly made even without a search warrant.
21
In the case at bar, however, the raid conducted by the NARCOM agents in the house of Jovencio
Rodrigueza was not authorized by any search warrant. It does not appear, either, that the situation
falls under any of the aforementioned cases. Hence, appellant's right against unreasonable search
and seizure was clearly violated. The NARCOM agents could not have justified their act by invoking
the urgency and necessity of the situation because the testimonies of the prosecution witnesses
reveal that the place had already been put under surveillance for quite some time. Had it been their
intention to conduct the raid, then they should, because they easily could, have first secured a
search warrant during that time.

4. The Court further notes the confusion and ambiguity in the identification of the confiscated
marijuana leaves and other prohibited drug paraphernalia presented as evidence against appellant.

CIC Taduran, who acted as the poseur buyer, testified that appellant sold him 100 grams of dried
marijuana leaves wrapped in a plastic bag. Surprisingly, and no plausible explanation has been
advanced therefor, what were submitted to and examined by the PCCL and thereafter utilized as
evidence against the appellant were the following items:

One (1) red and white colored plastic bag containing the following:

Exh. "A"—Thirty (30) grams of suspected dried marijuana fruiting tops contained
inside a transparent plastic bag.

Exh. "B"— Fifty (50) grams of suspected dried marijuana leaves and seeds
contained inside a white colored plastic labelled "Robertson".

Exh. "C"— Four (4) aluminum foils each containing suspected dried marijuana
fruiting tops having a total weight of seven grams then further wrapped with a piece
of aluminum foil.

Exh. "D"— Five (5) small transparent plastic bags each containing suspected dried
marijuana fruiting tops having a total weight of seventeen grams.

Exh. "E"— One plastic syringe. 22

Evidently, these prohibited articles were among those confiscated during the so-called follow-up raid
in the house of Jovencio Rodrigueza. The unanswered question then arises as to the identity of the
marijuana leaves that became the basis of appellant's conviction. In People vs. Rubio, this Court
23 24

had the occasion to rule that the plastic bag and the dried marijuana leaves contained therein
constitute the corpus delicti of the crime. As such, the existence thereof must be proved with
certainty and conclusiveness. Failure to do so would be fatal to the cause of the prosecution.

5. It is accepted that, as a rule, minor inconsistencies in the testimony of a witness will not affect his
credibility. It even enhances such credibility because it only shows that he has not been
rehearsed. However, when the inconsistencies pertain to material and crucial points, the same
25

detract from his overall credibility.

The exception, rather than the rule, applies in the case at bar. As correctly pointed out by the
Solicitor General, the testimonies of the prosecution witnesses are tainted with serious flaws and
material inconsistencies rendering the same incredible. 26
CIC Taduran, in his testimony, said that they had already been conducting surveillance of the place
where the buy-bust operation was to take place. It turned out, however, that he did not even know
the exact place and the identity of the person from whom he was to buy marijuana leaves. Thus:

FISCAL TOLOSA

Q What place in Tagas were you able to go (to)?

WITNESS

A I am not actually familiar in (sic) that place, in Tagas, although we

occasionally passed there.

Q Now, upon your arrival in Tagas, what did you do that afternoon?

A I waited for the suspect because previously, we have already been

conducted (sic) surveylance (sic) in the vicinity.

Q Upon arrival in Tagas, were you able to see the suspect?

A By the road, sir.

Q Who was the first person did you see (sic) when you arrived at
Tagas?

A The first person whom I saw is Samuel Segovia.

Q Were you able to talk with this Samuel Segovia?

A According to him, we could get some. 27

The same findings go for the testimony of witness Galutan. In his direct examination, he declared
that they arrested the three accused all at the same time on the fateful night of July 1, 1987. But, in
his cross-examination and as corroborated by the Joint Affidavit of Arrest submitted by him and
28

Molinawe, it appeared that Lonceras and Segovia were arrested on different times and that appellant
Don Rodrigueza was not among those who were arrested. Instead, it was Jovencio Rodrigueza,
Don's father, who was picked up at a much later time.

With said inconsistencies in sharp focus, we are constrained to give more credibility to the testimony
of appellant Rodrigueza. While it is true that appellant's defense amounts to an alibi, and as such is
the weakest defense in a criminal prosecution, there are, nonetheless, some evidentiary aspects
pointing to the truth in his testimony. Firstly, the Joint Affidavit of Arrest corroborates his testimony
that he was not among those who were arrested on the night of July 1, 1987. His co-accused
Segovia also testified that appellant Rodrigueza was not with them when they were apprehended by
the NARCOM agents.

Secondly, the apparent motive of the NARCOM agents in prosecuting the accused was also
revealed during the trial of the case. Rebuttal witnesses Gracita Bahillo, sister of appellant, and
Hospicio Segovia, father of Samuel Segovia, testified that Sgt. Molinawe, who has since been
reportedly dismissed from the service, asked for P10,000.00 from each of them in exchange for the
liberty of the accused. This allegation was never refuted by the prosecution. Hence, the rule laid
29
down by this Court that the statements of prosecution witnesses are entitled to full faith and
credit has no application in the case at bar.
30

Finally, the Court has repeatedly ruled that to sustain the conviction of the accused, the prosecution
must rely on the strength of its own evidence and not on the weakness of the defense. As clearly
31

shown by the evidence, the prosecution has failed to establish its cause. It has not overcome the
presumption of innocence accorded to appellant. This being the case, appellant should not be
allowed to suffer for unwarranted and imaginary imputations against him.

WHEREFORE, the judgment of conviction of the court below is hereby REVERSED and SET ASIDE
and accused-appellant Don Rodrigueza is hereby ACQUITTED of the crime charged. It is hereby
ordered that he be immediately released from custody unless he is otherwise detained for some
other lawful cause.

SO ORDERED.

ROLITO GO y TAMBUNTING, petitioner,

vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168,
Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents.

FELICIANO, J.:

According to the findings of the San Juan Police in their Investigation Report, on 2 July 1991, Eldon
1

Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra
St. Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or
"wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars
nearly bumped each other. Petitioner alighted from his car, walked over and shot Maguan inside his
car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was
able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of
the shooting and there retrieved an empty shell and one round of live ammunition for a 9 mm caliber
pistol. Verification at the Land Transportation Office showed that the car was registered to one Elsa
Ang Go.

The following day, the police returned to the scene of the shooting to find out where the suspect had
come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the
shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the
cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and
he positively identified him as the same person who had shot Maguan. Having established that the
assailant was probably the petitioner, the police launched a manhunt for petitioner.

On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news
reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The police
forthwith detained him. An eyewitness to the shooting, who was at the police station at that time,
positively identified petitioner as the gunman. That same day, the police promptly filed a complaint
for frustrated homicide against petitioner with the Office of the Provincial Prosecutor of Rizal. First
2

Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the
presence of his lawyers, that he could avail himself of his right to preliminary investigation but that he
must first sign a waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused
to execute any such waiver.

On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be
filed in court, the victim, Eldon Maguan, died of his gunshot wound(s).

Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide,
filed an information for murder before the Regional Trial Court. No bail was recommended. At the
3

bottom of the information, the Prosecutor certified that no preliminary investigation had been
conducted because the accused did not execute and sign a waiver of the provisions of Article 125 of
the Revised Penal Code.

In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an
omnibus motion for immediate release and proper preliminary investigation, alleging that the
4

warrantless arrest of petitioner was unlawful and that no preliminary investigation had been
conducted before the information was filed. Petitioner also prayed that he be released on
recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote
on the last page of the motion itself that he interposed no objection to petitioner being granted
provisional liberty on a cash bond of P100,000.00.

On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle in order to expedite
5

action on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent
Judge, who, on the same date, approved the cash bond posted by petitioner and ordered his
6

release. Petitioner was in fact released that same day.

7

On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct
preliminary investigation and prayed that in the meantime all proceedings in the court be
8

suspended. He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal
an omnibus motion for immediate release and preliminary investigation, which motion had been
granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of
P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion
of 11 July 1991.

Also on 16 July 1991, the trial court issued an Order granting leave to conduct preliminary
9

investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution shall
have concluded its preliminary investigation.

On 17 July 1991, however, respondent Judge motu proprio issued an Order, embodying the
10

following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours
from receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the
prosecutor to conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus
motion for immediate release and preliminary investigation dated 11 July 1991 was treated as a
petition for bail and set for hearing on 23 July 1991.

On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the
Supreme Court assailing the 17 July 1991 Order, contending that the information was null and void
because no preliminary investigation had been previously conducted, in violation of his right to due
process. Petitioner also moved for suspension of all proceedings in the case pending resolution by
the Supreme Court of his petition; this motion was, however, denied by respondent Judge.

On 23 July 1991, petitioner surrendered to the police.

By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition
and mandamus to the Court of Appeals.

On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of
petitioner on 23 August 1991.

On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment.

On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden
of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner
was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea
of not guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26
September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11

On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view
of public respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus
prolonging his detention, he was entitled to be released on habeas corpus.

On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. The petition 13

for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon
the other, were subsequently consolidated in the Court of Appeals.

The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to
restrain his arraignment on the ground that that motion had become moot and academic.

On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first
witness.

On 23 September 1991, the Court of Appeals rendered a consolidated decision dismissing the two 14

(2) petitions, on the following grounds:

a. Petitioner's warrantless arrest was valid because the offense for which he was
arrested and charged had been "freshly committed." His identity had been
established through investigation. At the time he showed up at the police station,
there had been an existing manhunt for him. During the confrontation at the San
Juan Police Station, one witness positively identified petitioner as the culprit.

b. Petitioner's act of posting bail constituted waiver of any irregularity attending his
arrest. He waived his right to preliminary investigation by not invoking it properly and
seasonably under the Rules.

c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order
because the trial court had the inherent power to amend and control its processes so
as to make them conformable to law and justice.
 d. Since there was a valid information for murder against petitioner and a valid
commitment order (issued by the trial judge after petitioner surrendered to the
authorities whereby petitioner was given to the custody of the Provincial Warden),
the petition for habeas corpus could not be granted.

On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for
petitioner also filed a "Withdrawal of Appearance" with the trial court, with petitioner's conformity.
15

On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the
Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the criminal
case below until further orders from this Court.

In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a
lawful warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and
second, whether petitioner had effectively waived his right to preliminary investigation. We consider
these issues seriatim.

In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner
had been validly arrested without warrant. Since petitioner's identity as the gunman who had shot
Eldon Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly
arrested six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno
v. Station Commander, etc., et al., one of the seven (7) cases consolidated with In the Matter of
16

the Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. where a majority of the Court
17

upheld a warrantees arrest as valid although effected fourteen (14) days after the killing in
connection with which Nazareno had been arrested. Accordingly, in the view of the Solicitor General,
the provisions of Section 7, Rule 112 of the Rules of Court were applicable and because petitioner
had declined to waive the provisions of Article 125 of the Revised Penal Code, the Prosecutor was
legally justified in filing the information for murder even without preliminary investigation.

On the other hand, petitioner argues that he was not lawfully arrested without warrant because he
went to the police station six (6) days after the shooting which he had allegedly perpetrated. Thus,
petitioner argues, the crime had not been "just committed" at the time that he was arrested.
Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of
Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a
warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the
Rules of Court which establishes the only exception to the right to preliminary investigation, could
not apply in respect of petitioner.

The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances
of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of
the warrantless arrests of petitioners made from one (1) to fourteen days after the actual commission
of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses
were subversion, membership in an outlawed organization like the New People's Army, etc. In the
instant case, the offense for which petitioner was arrested was murder, an offense which was
obviously commenced and completed at one definite location in time and space. No one had
pretended that the fatal shooting of Maguan was a "continuing crime."

Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case
falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which
provides as follows:
 Sec. 5 Arrest without warrant; when lawful. — A peace officer or a private person
may, without warrant, arrest a person:

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

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

(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 proceed against in accordance with Rule 112, Section 7.

Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers
obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly
shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably
regarded as effected "when [the shooting had] in fact just been committed" within the meaning of
Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts
indicating that petitioner was the gunman who had shot Maguan. The information upon which the
police acted had been derived from statements made by alleged eyewitnesses to the shooting —
one stated that petitioner was the gunman; another was able to take down the alleged gunman's
car's plate number which turned out to be registered in petitioner's wife's name. That information did
not, however, constitute "personal knowledge." 18

It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the
meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides:

Sec. 7 When accused lawfully arrested without warrant. — When a person is lawfully
arrested without a warrant for an offense cognizable by the Regional Trial Court the
complaint or information may be filed by the offended party, peace officer or fiscal
without a preliminary investigation having been first conducted, on the basis of the
affidavit of the offended party or arresting office or person

However, before the filing of such complaint or information, the person arrested may
ask for a preliminary investigation by a proper officer in accordance with this Rule,
but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code,
as amended, with the assistance of a lawyer and in case of non-availability of a
lawyer, a responsible person of his choice. Notwithstanding such waiver, he may
apply for bail as provided in the corresponding rule and the investigation must be
terminated within fifteen (15) days from its inception.

If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing
of the information, ask for a preliminary investigation with the same right to adduce
evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied)
is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan
Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the
police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the
implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a
crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should
have immediately scheduled a preliminary investigation to determine whether there was probable
cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the
Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and
required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition
for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a
preliminary investigation and that right should have been accorded him without any conditions.
Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to
be released forthwith subject only to his appearing at the preliminary investigation.

Turning to the second issue of whether or not petitioner had waived his right to preliminary
investigation, we note that petitioner had from the very beginning demanded that a preliminary
investigation be conducted. As earlier pointed out, on the same day that the information for murder
was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for
immediate release and preliminary investigation. The Solicitor General contends that that omnibus
motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner
should accordingly be held to have waived his right to preliminary investigation. We do not believe
that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a
slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional
Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for
murder had already been filed with the Regional Trial Court: it is not clear from the record whether
petitioner was aware of this fact at the time his omnibus motion was actually filed with the
Prosecutor. In Crespo v. Mogul, this Court held:
19

The preliminary investigation conducted by the fiscal for the purpose of determining
whether a prima facie case exists to warranting the prosecution of the accused is
terminated upon the filing of the information in the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal action against the
accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the
case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted to
the Court for appropriate action. While it is true that the fiscal has the quasi-
judicial discretion to determine whether or not a criminal case should be filed in court
or not, once the case had already been brought to Court whatever disposition the
fiscal may feel should be proper in the case thereafter should be addressed for the
consideration of the Court. The only qualification is that the action of the Court must
not impair the substantial rights of the accused., or the right of the People to due
process of law.

xxx xxx xxx

The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case [such] as its dismissal or the conviction or acquittal
of the accused rests in the sound discretion of the Court. Although the fiscal retains
the direction and control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The Court is the best
and sole judge on what to do with the case before it. . . . (Citations omitted;
20

emphasis supplied)
 Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation
and not for a re-investigation (Crespo v. Mogul involved a re-investigation), and since the
Prosecutor himself did file with the trial court, on the 5th day after filing the information for
murder, a motion for leave to conduct preliminary investigation (attaching to his motion a
copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in
effect filed with the trial court. What was crystal clear was that petitioner did ask for a
preliminary investigation on the very day that the information was filed without such
preliminary investigation, and that the trial court was five (5) days later apprised of the desire
of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the
Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the
(mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the
Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be
held to have been substantially complied with.

We believe and so hold that petitioner did not waive his right to a preliminary investigation. While
that right is statutory rather than constitutional in its fundament, since it has in fact been established
by statute, it is a component part of due process in criminal justice. The right to have a preliminary
21

investigation conducted before being bound over to trial for a criminal offense and hence formally at
risk of incarceration or some other penalty, is not a mere formal or technical right; it is
a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety,
aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process
painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's
claim to a preliminary investigation would be to deprive him the full measure of his right to due
process.

The question may be raised whether petitioner still retains his right to a preliminary investigation in
the instant case considering that he was already arraigned on 23 August 1991. The rule is that the
right to preliminary investigation is waived when the accused fails to invoke it before or at the time of
entering a plea at arraignment. In the instant case, petitioner Go had vigorously insisted on his
22

right to preliminary investigation before his arraignment. At the time of his arraignment, petitioner
was already before the Court of Appeals on certiorari, prohibition and mandamus precisely asking
for a preliminary investigation before being forced to stand trial.

Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived
his right to preliminary investigation. In People v. Selfaison, we did hold that appellants there had
23

waived their right to preliminary investigation because immediately after their arrest, they filed bail
and proceeded to trial "without previously claiming that they did not have the benefit of a preliminary
investigation." In the instant case, petitioner Go asked for release on recognizance or on bail and
24

for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by petitioner and ordered his
release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation
on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to
conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to
preliminary investigation was a legitimate one.

We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary
investigation, while constituting a denial of the appropriate and full measure of the statutory process
of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of
the trial court.
25

It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail.
This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt
then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent
Judge recalling his own order granting bail and requiring petitioner to surrender himself within forty-
eight (48) hours from notice, was plainly arbitrary considering that no evidence at all — and certainly
no new or additional evidence — had been submitted to respondent Judge that could have justified
the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be
released on bail as a matter of right.

The final question which the Court must face is this: how does the fact that, in the instant case, trial
on the merits has already commenced, the Prosecutor having already presented four (4) witnesses,
impact upon, firstly, petitioner's right to a preliminary investigation and, secondly, petitioner's right to
be released on bail? Does he continue to be entitled to have a preliminary investigation conducted in
respect of the charge against him? Does petitioner remain entitled to be released on bail?

Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to
a preliminary investigation although trial on the merits has already began. Trial on the merits should
be suspended or held in abeyance and a preliminary investigation forthwith accorded to
petitioner. It is true that the Prosecutor might, in view of the evidence that he may at this time have
26

on hand, conclude that probable cause exists; upon the other hand, the Prosecutor conceivably
could reach the conclusion that the evidence on hand does not warrant a finding of probable cause.
In any event, the constitutional point is that petitioner was not accorded what he was entitled to by
way of procedural due process. Petitioner was forced to undergo arraignment and literally pushed
27

to trial without preliminary investigation, with extraordinary haste, to the applause from the audience
that filled the courtroom. If he submitted to arraignment at trial, petitioner did so "kicking and
screaming," in a manner of speaking . During the proceedings held before the trial court on 23
August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made
very clear petitioner's vigorous protest and objection to the arraignment precisely because of the
denial of preliminary investigation. So energetic and determined were petitioner's counsel's
28

protests and objections that an obviously angered court and prosecutor dared him to withdraw or
walkout, promising to replace him with counsel de oficio. During the trial, before the prosecution
called its first witness, petitioner through counsel once again reiterated his objection to going to trial
without preliminary investigation: petitioner's counsel made of record his "continuing
objection." Petitioner had promptly gone to the appellate court on certiorari and prohibition to
29

challenge the lawfulness of the procedure he was being forced to undergo and the lawfulness of his
detention. If he did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it
30

was because he was extremely loath to be represented by counsel de oficio selected by the trial
judge, and to run the risk of being held to have waived also his right to use what is frequently the
only test of truth in the judicial process.

In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be
released on bail as a matter of right. Should the evidence already of record concerning petitioner's
guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court
for cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective
assessment of the evidence on record, to grant or deny the motion for cancellation of bail.

To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary
investigation and to bail were effectively obliterated by evidence subsequently admitted into the
record would be to legitimize the deprivation of due process and to permit the Government to benefit
from its own wrong or culpable omission and effectively to dilute important rights of accused persons
well-nigh to the vanishing point. It may be that to require the State to accord petitioner his rights to a
preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial
exercise. But the Court is not compelled to speculate. And, in any case, it would not
be idle ceremony; rather, it would be a celebration by the State of the rights and liberties of its own
people and a re-affirmation of its obligation and determination to respect those rights and liberties.

ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of
the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the
Court of Appeals dated 23 September 1991 hereby REVERSED.

The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary
investigation of the charge of murder against petitioner Go, and to complete such preliminary
investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits
of the criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the
preliminary investigation.

Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of
One Hundred Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful
order that the trial court may issue, should the Office of the Provincial Prosecutor move for
cancellation of bail at the conclusion of the preliminary investigation.

No pronouncement as to costs. This Decision is immediately executory.

SO ORDERED.

Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur in the majority decision penned by Mr. Justice Florentino P. Feliciano but am at a loss for
reasons why an experienced Judge should insist on proceeding to trial in a sensational murder case
without preliminary investigation inspite of the vigorous and continued objection and reservation of
rights of the accused and notwithstanding the recommendations of the Prosecutor that those rights
must be respected. If the Court had faithfully followed the Rules, trial would have proceeded
smoothly and if the accused is really guilty, then he may have been convicted by now. As it is, the
case has to go back to square one.

I agree with Justice Isagani Cruz "that the trial court has (apparently) been moved by a desire to
cater to public opinion to the detriment of the impartial administration of justice." Mass media has its
duty to fearlessly but faithfully inform the public about events and persons. However, when a case
has received wide and sensational publicity, the trial court should be doubly careful not only to be
fair and impartial but also to give the appearance of complete objectivity in its handling of the case.
The need for a trial court to follow the Rules and to be fair, impartial, and persistent in getting the
true facts of a case is present in all cases but it is particularly important if the accused is indigent;
more so, if he is one of those unfortunates who seem to spend more time behind bars than outside.
Unlike the accused in this case who enjoys the assistance of competent counsel, a poor defendant
convicted by wide and unfavorable media coverage may be presumed guilty before trial and be
unable to defend himself properly. Hence, the importance of the court always following the Rules.

While concurring with Justice Feliciano's ponencia, I am constrained to add the foregoing
observations because I feel they form an integral part of the Court's decision.

CRUZ, J., concurring:

I was one of the members of the Court who initially felt that the petitioner had waived the right to
preliminary investigation because he freely participated in his trial and his counsel even cross-
examined the prosecution witnesses. A closer study of the record, however, particularly of the
transcript of the proceedings footnoted in the ponencia, reveals that he had from the start demanded
a preliminary investigation and that his counsel had reluctantly participated in the trial only because
the court threatened to replace him with a counsel de oficio if he did not. Under the circumstances, I
am convinced that there was no waiver. The petitioner was virtually compelled to go to trial. Such
compulsion and unjustified denial of a clear statutory right of the petitioner vitiated the proceedings
as violative of procedural due process.

It is true that the ruling we lay down here will take the case back to square one, so to speak, but that
is not the petitioner's fault. He had the right to insist that the procedure prescribed by the Rules of
Court be strictly observed. The delay entailed by the procedural lapse and the attendant expense
imposed on the Government and the defendant must be laid at the door of the trial judge for his
precipitate and illegal action.

It appears that the trial court has been moved by a desire to cater to public opinion to the detriment
of the impartial administration of justice. The petitioner as portrayed by the media is not exactly a
popular person. Nevertheless, the trial court should not have been influenced by this irrelevant
consideration, remembering instead that its only guide was the mandate of the law.

GRIÑO-AQUINO, J., dissenting:

I regret that I cannot agree with the majority opinion in this case. At this point, after four (4)
prosecution witnesses have already testified, among them an eyewitness who identified the accused
as the gunman who shot Eldon Maguan inside his car in cold blood, and a security guard who
identified the plate number of the gunman's car, I do not believe that there is still need to conduct a
preliminary investigation the sole purpose of which would be to ascertain if there is sufficient ground
to believe that a crime was committed (which the petitioner does not dispute) and that he (the
petitioner) is probably guilty thereof (which the prosecutor, by filing the information against him,
presumably believed to be so).

In the present stage of the presentation of the prosecution's evidence, to return the case to the
Prosecutor to conduct a preliminary investigation under Rule 112 of the 1985 Rule on Criminal
Procedure would be supererogatory.
This case did not suffer from a lack of previous investigation. Diligent police work, with ample media
coverage, led to the identification of the suspect who, seven (7) days after the shooting, appeared at
the San Juan police station to verify news reports that he was the object of a police manhunt. Upon
entering the station, he was positively identified as the gunman by an eyewitness who was being
interrogated by the police to ferret more clues and details about the crime. The police thereupon
arrested the petitioner and on the same day, July 8, 1991, promptly filed with the Provincial
Prosecutor of Rizal, a complaint for frustrated homicide against him. As the victim died the next day,
July 9, 1991, before an information could be filed, the First Assistant Prosecutor, instead of filing an
information for frustrated homicide, filed an information for murder on July 11, 1991 in the Regional
Trial Court, with no bail recommended.

However, the Provincial Prosecutor, acting on the petitioner's omnibus motion for preliminary
investigation and release on bail (which was erroneously filed with his office instead of the court),
recommended a cash bond of P100,000 for his release, and submitted the omnibus motion to the
trial court for resolution.

Respondent Judge Benjamin Pelayo must have realized his impetuosity shortly after he had issued:
(a) his order of July 12, 1991 approving the petitioner's cash bail bond without a hearing, and (b) his
order of July 16, 1991 granting the Prosecutor leave to conduct a preliminary investigation, for
he motu propio issued on July 17, 1991 another order rescinding his previous orders and setting for
hearing the petitioner's application for bail.

The cases cited in page 15 of the majority opinion in support of the view that the trial of the case
should be suspended and that the prosecutor should now conduct a preliminary investigation, are
not on all fours with this case. In Doromal vs. Sandiganbayan, 177 SCRA 354 and People
vs. Monton, 23 SCRA 1024, the trial of the criminal case had not yet commenced because motions
to quash the information were filed by the accused. Lozada vs. Hernandez, 92 Phil.
1053; U.S. vs. Banzuela, 31 Phil. 565; San Diego vs. Hernandez, 24 SCRA 110 and People
vs. Oandasan, 25 SCRA 277 are also inapplicable because in those cases preliminary
investigations had in fact been conducted before the informations were filed in court.

It should be remembered that as important as is the right of the accused to a preliminary

investigation, it is not a constitutional right. Its absence is not a ground to quash the information
(Doromal vs. Sandiganbayan, 177 SCRA 354). It does not affect the court's jurisdiction, nor impair
the validity of the information (Rodis vs. Sandiganbayan, 166 SCRA 618), nor constitute an
infringement of the right of the accused to confront witnesses (Bustos vs. Lucero, 81 Phil. 640).

The petitioner's motion for a preliminary investigation is not more important than his application for
release on bail, just as the conduct of such preliminary investigation is not more important than the
hearing of the application for bail. The court's hearing of the application for bail should not be
subordinated to the preliminary investigation of the charge. The hearing should not be suspended,
but should be allowed to proceed for it will accomplish a double purpose. The parties will have an
opportunity to show not only: (1) whether or not there is probable cause to believe that the petitioner
killed Eldon Maguan, but more importantly (b) whether or not the evidence of his guilt is strong. The
judge's determination that the evidence of his guilt is strong would naturally foreclose the need for a
preliminary investigation to ascertain the probability of his guilt.

The bail hearing may not be suspended because upon the filing of an application for bail by one
accused of a capital offense, "the judge is under a legal obligation to receive evidence with the view
of determining whether evidence of guilt is so strong as to warrant denial of bond." (Payao vs.
Lesaca, 63 Phil. 210; Hadhirul Tahil vs. Eisma, 64 SCRA 378; Peralta vs. Ramos and Provincial
Fiscal of Isabela, 71 Phil. 271; Padilla vs. Enrile, 121 SCRA 472; Ilagan vs. Ponce Enrile, 139 SCRA
349; People vs. Albofera, 152 SCRA 123)

The abolition of the death penalty did not make the right to bail absolute, for persons charged with
offenses punishable by reclusion perpetua, when evidence of guilt is strong, are not bailable (Sec. 3,
Art. III, 1987 Constitution). In People vs. Dacudao, 170 SCRA 489, we called down the trial court for
having granted the motion for bail in a murder case without any hearing and without giving the
prosecution an opportunity to comment or file objections thereto.

Similarly this Court held in People vs. Bocar, 27 SCRA 512:

. . . due process also demands that in the matter of bail the prosecution should be
afforded full opportunity to present proof of the guilt of the accused. Thus, if it were
true that the prosecution in this case was deprived of the right to present its evidence
against the bail petition, or that the order granting such petition was issued upon
incomplete evidence, then the issuance of the order would really constitute abuse of
discretion that would call for the remedy of certiorari. (Emphasis supplied.)

The petitioner may not be released pending the hearing of his petition for bail for it would be
incongruous to grant bail to one who is not in the custody of the law (Feliciano vs. Pasicolan, 2
SCRA 888).

I respectfully take exception to the statements in the ponencia that the "petitioner was not arrested
at all" (p. 12) and that "petitioner had not been arrested, with or without a warrant" (p. 130). Arrest is
the taking of the person into the custody in order that he may be bound to answer for the
commission of an offense (Sec. 1, Rule 113, Rules of Court). An arrest is made by an actual
restraint of the person to be arrested, or by his submission to the custody of the person making the
arrest (Sec. 2, Rule 113, Rules of Court). When Go walked into the San Juan Police Station on July
8, 1991, and placed himself at the disposal of the police authorities who clamped him in jail after he
was identified by an eyewitness as the person who shot Maguan, he was actually and effectively
arrested. His filing of a petition to be released on bail was a waiver of any irregularity attending his
arrest and estops him from questioning its validity (Callanta vs. Villanueva, 77 SCRA 377; Bagcal vs.
Villaraza, 120 SCRA 525).

I vote to dismiss the petition and affirm the trial court's order of July 17, 1991.

Melencio-Herrera, Paras, Padilla, Regalado and Davide, Jr., JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur in the majority decision penned by Mr. Justice Florentino P. Feliciano but am at a loss for
reasons why an experienced Judge should insist on proceeding to trial in a sensational murder case
without preliminary investigation inspite of the vigorous and continued objection and reservation of
rights of the accused and notwithstanding the recommendations of the Prosecutor that those rights
must be respected. If the Court had faithfully followed the Rules, trial would have proceeded
smoothly and if the accused is really guilty, then he may have been convicted by now. As it is, the
case has to go back to square one.

I agree with Justice Isagani Cruz "that the trial court has (apparently) been moved by a desire to
cater to public opinion to the detriment of the impartial administration of justice." Mass media has its
duty to fearlessly but faithfully inform the public about events and persons. However, when a case
has received wide and sensational publicity, the trial court should be doubly careful not only to be
fair and impartial but also to give the appearance of complete objectivity in its handling of the case.

The need for a trial court to follow the Rules and to be fair, impartial, and persistent in getting the
true facts of a case is present in all cases but it is particularly important if the accused is indigent;
more so, if he is one of those unfortunates who seem to spend more time behind bars than outside.
Unlike the accused in this case who enjoys the assistance of competent counsel, a poor defendant
convicted by wide and unfavorable media coverage may be presumed guilty before trial and be
unable to defend himself properly. Hence, the importance of the court always following the Rules.

While concurring with Justice Feliciano's ponencia, I am constrained to add the foregoing
observations because I feel they form an integral part of the Court's decision.

CRUZ, J., concurring:

I was one of the members of the Court who initially felt that the petitioner had waived the right to
preliminary investigation because he freely participated in his trial and his counsel even cross-
examined the prosecution witnesses. A closer study of the record, however, particularly of the
transcript of the proceedings footnoted in the ponencia, reveals that he had from the start demanded
a preliminary investigation and that his counsel had reluctantly participated in the trial only because
the court threatened to replace him with a counsel de oficio if he did not. Under the circumstances, I
am convinced that there was no waiver. The petitioner was virtually compelled to go to trial. Such
compulsion and unjustified denial of a clear statutory right of the petitioner vitiated the proceedings
as violative of procedural due process.

It is true that the ruling we lay down here will take the case back to square one, so to speak, but that
is not the petitioner's fault. He had the right to insist that the procedure prescribed by the Rules of
Court be strictly observed. The delay entailed by the procedural lapse and the attendant expense
imposed on the Government and the defendant must be laid at the door of the trial judge for his
precipitate and illegal action.

It appears that the trial court has been moved by a desire to cater to public opinion to the detriment
of the impartial administration of justice. The petitioner as portrayed by the media is not exactly a
popular person. Nevertheless, the trial court should not have been influenced by this irrelevant
consideration, remembering instead that its only guide was the mandate of the law.

GRIÑO-AQUINO, J., dissenting:

I regret that I cannot agree with the majority opinion in this case. At this point, after four (4)
prosecution witnesses have already testified, among them an eyewitness who identified the accused
as the gunman who shot Eldon Maguan inside his car in cold blood, and a security guard who
identified the plate number of the gunman's car, I do not believe that there is still need to conduct a
preliminary investigation the sole purpose of which would be to ascertain if there is sufficient ground
to believe that a crime was committed (which the petitioner does not dispute) and that he (the
petitioner) is probably guilty thereof (which the prosecutor, by filing the information against him,
presumably believed to be so).

In the present stage of the presentation of the prosecution's evidence, to return the case to the
Prosecutor to conduct a preliminary investigation under Rule 112 of the 1985 Rule on Criminal
Procedure would be supererogatory.

This case did not suffer from a lack of previous investigation. Diligent police work, with ample media
coverage, led to the identification of the suspect who, seven (7) days after the shooting, appeared at
the San Juan police station to verify news reports that he was the object of a police manhunt. Upon
entering the station, he was positively identified as the gunman by an eyewitness who was being
interrogated by the police to ferret more clues and details about the crime. The police thereupon
arrested the petitioner and on the same day, July 8, 1991, promptly filed with the Provincial
Prosecutor of Rizal, a complaint for frustrated homicide against him. As the victim died the next day,
July 9, 1991, before an information could be filed, the First Assistant Prosecutor, instead of filing an
information for frustrated homicide, filed an information for murder on July 11, 1991 in the Regional
Trial Court, with no bail recommended.

However, the Provincial Prosecutor, acting on the petitioner's omnibus motion for preliminary
investigation and release on bail (which was erroneously filed with his office instead of the court),
recommended a cash bond of P100,000 for his release, and submitted the omnibus motion to the
trial court for resolution.

Respondent Judge Benjamin Pelayo must have realized his impetuosity shortly after he had issued:
(a) his order of July 12, 1991 approving the petitioner's cash bail bond without a hearing, and (b) his
order of July 16, 1991 granting the Prosecutor leave to conduct a preliminary investigation, for
he motu propio issued on July 17, 1991 another order rescinding his previous orders and setting for
hearing the petitioner's application for bail.

The cases cited in page 15 of the majority opinion in support of the view that the trial of the case
should be suspended and that the prosecutor should now conduct a preliminary investigation, are
not on all fours with this case. In Doromal vs. Sandiganbayan, 177 SCRA 354 and People
vs. Monton, 23 SCRA 1024, the trial of the criminal case had not yet commenced because motions
to quash the information were filed by the accused. Lozada vs. Hernandez, 92 Phil.
1053; U.S. vs. Banzuela, 31 Phil. 565; San Diego vs. Hernandez, 24 SCRA 110 and People
vs. Oandasan, 25 SCRA 277 are also inapplicable because in those cases preliminary
investigations had in fact been conducted before the informations were filed in court.

It should be remembered that as important as is the right of the accused to a preliminary

investigation, it is not a constitutional right. Its absence is not a ground to quash the information
(Doromal vs. Sandiganbayan, 177 SCRA 354). It does not affect the court's jurisdiction, nor impair
the validity of the information (Rodis vs. Sandiganbayan, 166 SCRA 618), nor constitute an
infringement of the right of the accused to confront witnesses (Bustos vs. Lucero, 81 Phil. 640).

The petitioner's motion for a preliminary investigation is not more important than his application for
release on bail, just as the conduct of such preliminary investigation is not more important than the
hearing of the application for bail. The court's hearing of the application for bail should not be
subordinated to the preliminary investigation of the charge. The hearing should not be suspended,
but should be allowed to proceed for it will accomplish a double purpose. The parties will have an
opportunity to show not only: (1) whether or not there is probable cause to believe that the petitioner
killed Eldon Maguan, but more importantly (b) whether or not the evidence of his guilt is strong. The
judge's determination that the evidence of his guilt is strong would naturally foreclose the need for a
preliminary investigation to ascertain the probability of his guilt.

The bail hearing may not be suspended because upon the filing of an application for bail by one
accused of a capital offense, "the judge is under a legal obligation to receive evidence with the view
of determining whether evidence of guilt is so strong as to warrant denial of bond." (Payao vs.
Lesaca, 63 Phil. 210; Hadhirul Tahil vs. Eisma, 64 SCRA 378; Peralta vs. Ramos and Provincial
Fiscal of Isabela, 71 Phil. 271; Padilla vs. Enrile, 121 SCRA 472; Ilagan vs. Ponce Enrile, 139 SCRA
349; People vs. Albofera, 152 SCRA 123)

The abolition of the death penalty did not make the right to bail absolute, for persons charged with
offenses punishable by reclusion perpetua, when evidence of guilt is strong, are not bailable (Sec. 3,
Art. III, 1987 Constitution). In People vs. Dacudao, 170 SCRA 489, we called down the trial court for
having granted the motion for bail in a murder case without any hearing and without giving the
prosecution an opportunity to comment or file objections thereto.

Similarly this Court held in People vs. Bocar, 27 SCRA 512:

. . . due process also demands that in the matter of bail the prosecution should be
afforded full opportunity to present proof of the guilt of the accused. Thus, if it were
true that the prosecution in this case was deprived of the right to present its evidence
against the bail petition, or that the order granting such petition was issued upon
incomplete evidence, then the issuance of the order would really constitute abuse of
discretion that would call for the remedy of certiorari. (Emphasis supplied.)

The petitioner may not be released pending the hearing of his petition for bail for it would be
incongruous to grant bail to one who is not in the custody of the law (Feliciano vs. Pasicolan, 2
SCRA 888).

I respectfully take exception to the statements in the ponencia that the "petitioner was not arrested
at all" (p. 12) and that "petitioner had not been arrested, with or without a warrant" (p. 130). Arrest is
the taking of the person into the custody in order that he may be bound to answer for the
commission of an offense (Sec. 1, Rule 113, Rules of Court). An arrest is made by an actual
restraint of the person to be arrested, or by his submission to the custody of the person making the
arrest (Sec. 2, Rule 113, Rules of Court). When Go walked into the San Juan Police Station on July
8, 1991, and placed himself at the disposal of the police authorities who clamped him in jail after he
was identified by an eyewitness as the person who shot Maguan, he was actually and effectively
arrested. His filing of a petition to be released on bail was a waiver of any irregularity attending his
arrest and estops him from questioning its validity (Callanta vs. Villanueva, 77 SCRA 377; Bagcal vs.
Villaraza, 120 SCRA 525).

I vote to dismiss the petition and affirm the trial court's order of July 17, 1991.

Melencio-Herrera, Paras, Padilla, Regalado and Davide, Jr., JJ., concur.

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 two (2) rounds of live ammunition for a .38 caliber gun a
1 2

smoke (tear gas) grenade, and two (2) live ammunitions for a .22 caliber gun. They brought the
3 4

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, as follows:
7

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, this Court held as follows:
8

. . . 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.

SAMMY MALACAT y MANDAR, petitioner,

vs.
COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents.
DAVIDE, JR., J.:

In an Information filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial
1

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

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

At arraignment on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not
3

guilty.

At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A-1," and "A-
2," while the prosecution admitted that the police authorities were not armed with a search warrant
4

nor warrant of arrest at the time they arrested petitioner.5

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

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

Yu and his companions positioned themselves at strategic points and observed both groups for
about thirty minutes. The police officers then approached one group of men, who then fled in
different directions. As the policemen gave chase, Yu caught up with and apprehended petitioner.
Upon searching petitioner, Yu found a fragmentation grenade tucked inside petitioner's "front waist
line." Yu's companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38
7

caliber revolver was recovered. Petitioner and Casan were then brought to Police Station No. 3
where Yu placed an "X" mark at the bottom of the grenade and thereafter gave it to his commander. 8

On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of
Muslims was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized
petitioner as the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner
and 2 others attempt to detonate a grenade. The attempt was aborted when Yu and other policemen
chased petitioner and his companions; however, the former were unable to catch any of the latter.
Yu further admitted that petitioner and Casan were merely standing on the corner of Quezon
Boulevard when Yu saw them on 27 August 1990. Although they were not creating a commotion,
since they were supposedly acting suspiciously, Yu and his companions approached them. Yu did
not issue any receipt for the grenade he allegedly recovered from petitioner. 9
Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain
Abdul Casan were brought in by Sgt. Saquilla for investigation. Forthwith, Serapio conducted the
10

inquest of the two suspects, informing them of their rights to remain silent and to be assisted by
competent and independent counsel. Despite Serapio's advice, petitioner and Casan manifested
their willingness to answer questions even without the assistance of a lawyer. Serapio then took
petitioner's uncounselled confession (Exh. "E"), there being no PAO lawyer available, wherein
petitioner admitted possession of the grenade. Thereafter, Serapio prepared the affidavit of arrest
and booking sheet of petitioner and Casan. Later, Serapio turned over the grenade to the
Intelligence and Special Action Division (ISAD) of the Explosive Ordinance Disposal Unit for
examination. 11

On cross-examination, Serapio admitted that he took petitioner's confession knowing it was

inadmissible in evidence. 12

Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other
things, the examination of explosive devices, testified that on 22 March 1991, he received a request
dated 19 March 1991 from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a
grenade. Ramilo then affixed an orange tag on the subject grenade detailing his name, the date and
time he received the specimen. During the preliminary examination of the grenade, he "[f]ound that
[the] major components consisting of [a] high filler and fuse assembly [were] all present," and
concluded that the grenade was "[l]ive and capable of exploding." On even date, he issued a
certification stating his findings, a copy of which he forwarded to Diotoy on 11 August 1991. 13

Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and
resided at the Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he
went to Plaza Miranda to catch a breath of fresh air. Shortly after, several policemen arrived and
ordered all males to stand aside. The policemen searched petitioner and two other men, but found
nothing in their possession. However, he was arrested with two others, brought to and detained at
Precinct No. 3, where he was accused of having shot a police officer. The officer showed the
gunshot wounds he allegedly sustained and shouted at petitioner "[i]to ang tama mo sa akin." This
officer then inserted the muzzle of his gun into petitioner's mouth and said, "[y]ou are the one who
shot me." Petitioner denied the charges and explained that he only recently arrived in Manila.
However, several other police officers mauled him, hitting him with benches and guns. Petitioner
was once again searched, but nothing was found on him. He saw the grenade only in court when it
was presented. 14

The trial court ruled that the warrantless search and seizure of petitioner was akin to it a "stop and
frisk," where a "warrant and seizure can be effected without necessarily being preceded by an
arrest" and "whose object is either to maintain the status quo momentarily while the police officer
seeks to obtain more information." Probable cause was not required as it was not certain that a
15

crime had been committed, however, the situation called for an investigation, hence to require
probable cause would have been "premature." The RTC emphasized that Yu and his companions
16

were "[c]onfronted with an emergency, in which the delay necessary to obtain a warrant, threatens
the destruction of evidence" and the officers "[h]ad to act in haste," as petitioner and his
17

companions were acting suspiciously, considering the time, place and "reported cases of bombing."
Further, petitioner's group suddenly ran away in different directions as they saw the arresting officers
approach, thus "[i]t is reasonable for an officer to conduct a limited search, the purpose of which is
not necessarily to discover evidence of a crime, but to allow the officer to pursue his investigation
without fear of violence."18

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

In its decision dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus
19

found petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No.
186, and sentenced him to suffer:

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

On 18 February 1994, petitioner filed a notice of appeal indicating that he was appealing to this
20

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

In his Appellant's Brief filed with the Court of Appeals, petitioner asserted that:
22

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. As such, the search was illegal, and the hand grenade seized, inadmissible in
23

evidence.

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

In its decision of 24 January 1996, the Court of Appeals affirmed the trial court, noting, first, that
25

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

We are at a loss to understand how a man, who was in possession of a live grenade
and in the company of other suspicious character[s] with unlicensed firearm[s] lurking
in Plaza Miranda at a time when political tension ha[d] been enkindling a series of
terroristic activities, [can] claim that he was not attempting to commit an offense. We
need not mention that Plaza Miranda is historically notorious for being a favorite
bomb site especially during times of political upheaval. As the mere possession of an
unlicensed grenade is by itself an offense, Malacat's posture is simply too
preposterous to inspire belief.
In so doing, the Court of Appeals took into account petitioner's failure to rebut the testimony of the
prosecution witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the
fact that PO Yu chased petitioner two days prior to the latter's arrest, or on 27 August 1990; and that
petitioner and his companions acted suspiciously, the "accumulation" of which was more than
sufficient to convince a reasonable man that an offense was about to be committed. Moreover, the
Court of Appeals observed:

The police officers in such a volatile situation would be guilty of gross negligence and
dereliction of duty, not to mention of gross incompetence, if they [would] first wait for
Malacat to hurl the grenade, and kill several innocent persons while maiming
numerous others, before arriving at what would then be an assured but moot
conclusion that there was indeed probable cause for an arrest. We are in agreement
with the lower court in saying that the probable cause in such a situation should not
be the kind of proof necessary to convict, but rather the practical considerations of
everyday life on which a reasonable and prudent mind, and not legal technicians, will
ordinarily act.

Finally, the Court of Appeals held that the rule laid down in People v. Mengote, which petitioner
26

relied upon, was inapplicable in light of "[c]rucial differences," to wit:

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

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

1. THE RESPONDENT COURT ERRED IN AFFIRMING THE

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

2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE

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

In support thereof, petitioner merely restates his arguments below regarding the validity of
the warrantless arrest and search, then disagrees with the finding of the Court of Appeals
that he was "attempting to commit a crime," as the evidence for the prosecution merely
disclosed that he was "standing at the corner of Plaza Miranda and Quezon Boulevard" with
his eyes "moving very fast" and "looking at every person that come (sic) nearer (sic) to
them." Finally, petitioner points out the factual similarities between his case and that
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), in relation to Section 17 of the Judiciary
27

Act of 1948, Section 5(2) of Article VIII of the Constitution and Section 3(c) of Rule 122 of the
28 29

Rules of Court. The term "life imprisonment" as used in Section 9 of B.P. Blg. 129, the Judiciary
30

Act of 1948, and Section 3 of Rule 122 must be deemed to include reclusion perpetua in view of
Section 5(2) of Article VIII of the Constitution.

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

We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction,
and consider the appeal as having been directly brought to us, with the petition for review as
petitioner's Brief for the Appellant, the comment thereon by the Office of the Solicitor General as the
Brief for the Appellee and the memoranda of the parties as their Supplemental Briefs.

Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to
establish petitioner's guilt with moral certainty.

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

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

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

Sec. 12 (1). Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.

xxx xxx xxx

(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. The Constitutional prohibition against unreasonable arrests, searches and
31

seizures refers to those effected without a validly issued warrant, subject to certain exceptions. As
32

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; (5) a search
33

incidental to a lawful arrest; and (6) a "stop and frisk."

34 35

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

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

In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the
incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g.,
whether an arrest was merely used as a pretext for conducting a search. In this instance, the law
36

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
37

arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and
seize any money or property found which was used in the commission of the crime, or the fruit of the
crime, or that which may be used as evidence, or which might furnish the arrestee with the means of
escaping or committing violence. 38

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

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

We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited
protective search of outer clothing for weapons," as laid down in Terry, thus:

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

Other notable points of Terry are that while probable cause is not required to conduct a "stop
and frisk," it nevertheless holds that mere suspicion or a hunch will not validate a "stop and
40

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
41

crime prevention and detection, which underlies the recognition that a police officer may,
under appropriate circumstances and in an appropriate manner, approach a person for
purposes of investigating possible criminal behavior even without probable cause; and (2)
 the more pressing interest of safety and self-preservation which permit the police officer to
take steps to assure himself that the person with whom he deals is not armed with a deadly
weapon that could unexpectedly and fatally be used against the police officer.

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

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

Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited
even mere suspicion other than that his eyes were "moving very fast" — an observation which
leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already
6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner
and were not creating any commotion or trouble, as Yu explicitly declared on cross-examination:

Q And what were they doing?

A They were merely standing.

Q You are sure of that?

A Yes, sir.

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

A None, sir.

Q Neither did you see them create commotion?

A None, sir. 42

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a
deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was "discovered"
"inside the front waistline" of petitioner, and from all indications as to the distance between Yu and
petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have
been visible to Yu. In fact, as noted by the trial court:

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

What is unequivocal then in this case are blatant violations of petitioner's rights solemnly guaranteed
in Sections 2 and 12(1) of Article III of the Constitution.
WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-
G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of
reasonable doubt, the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of
Manila is REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and
ORDERED immediately released from detention, unless his further detention is justified for any other
lawful cause.

Costs de oficio.

SO ORDERED.

Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and
Martinez, JJ., concur.

Separate Opinions

PANGANIBAN, J., separate opinion:

I agree with the persuasive ponencia of Mr. Justice Hilario G. Davide Jr. that:

1. the search conducted on petitioner (a) was not incidental to a lawful arrest and (b) did not
constitute a valid stop-and-frisk; thus, the grenade found in his person cannot be admitted as
evidence against him; and

2. the Court of Appeals had no jurisdiction to entertain the appeal from the trial court's decision.

I wish, however, to correlate the present case with four relevant decisions I authored for the
Court: Manalili vs. Court of Appeals, People vs. Encinada, People vs. Lacerna and People
1 2 3

vs. Cuizon, all of which were promulgated without any dissenting view. This correlation may be of
4

benefit to the bench, the bar and, particularly, to law enforcement officers. Let me first present a
background on each.

Manalili Involved a
Valid Stop-and-Frisk

In Manalili, anti-narcotics policemen conducted a surveillance in response to information that drug

addicts were roaming the area fronting the city cemetery of Kalookan, and chanced upon Manalili
who was observed to have reddish eyes and to be walking in a wobbly manner. Because his
appearance was characteristic of a person "high on drugs," the lawmen approached him, introduced
themselves and inquired as to what was in his hands. At first, Manalili resisted but the police
prevailed and he showed them his wallet. The anti-narcotics men found inside what they suspected
to be crushed marijuana residue. They took Manalili to their station for further investigation. A
chromatographic test of the wallet contents positively affirmed the lawmen's suspicions. Manalili was
thus charged, tried and convicted of illegal possession of the prohibited substance. He subsequently
challenged before us the legality of his search and arrest, and the admission of the marijuana as
evidence. He contended that the latter two were products of the illegal search.
Rejecting his appeal, this Court held that the search was akin to a stop-and-frisk. The police had
sufficient reason to stop Manalili, who "had red eyes and was wobbling like a drunk . . . [in] a popular
hangout of drug addicts," in order to investigate if he was actually "high" on drugs. The situation
verily called for a stop-and-frisk.

Lawmen Had Sufficient Opportunity

to Secure Warrant in Encinada

In Encinada, a police officer received late in the afternoon a tip from an informant that the following
morning, appellant would be arriving at the Surigao port bringing marijuana. Without securing a
search warrant allegedly because courts were already closed for the day, the lawmen proceeded
early next morning to the city wharf. About 8:30 a.m., they saw the suspect, carrying two plastic baby
chairs, disembark and thereafter board a tricycle. The police followed immediately and ordered the
driver to stop. After introducing themselves, the policemen asked Encinada to alight and to hand
over his luggage for inspection. Found between the baby chairs was a bulky package which was
later found to contain marijuana. On these particulars, he was charged, tried and convicted by the
trial court for violation of Sec. 4, Art. II of RA 6425, holding that Encinada was caught in flagrante
delicto. Hence, the warrantless search following his arrest was valid, and the marijuana seized was
admissible in evidence.

Reversing the trial court, this Court stressed the following: Encinada was not committing a crime in
the presence of the police; the latter did not have personal knowledge of facts indicating that he just
committed an offense; and raw intelligence information was not a sufficient ground for a warrantless
arrest. Furthermore, "[t]he prosecution's evidence did nor show any suspicious behavior when the
5

appellant disembarked from the ship or while he rode the motorela. No act or fact demonstrating a
felonious enterprise could be ascribed to appellant under such bare circumstances." Having known
6

the identity of their suspect the previous day, the law enforcers could have secured a warrant of
arrest even within such limited period (per Administrative Circular No. 13 and Circular No. 19, s.
1987). In emphasizing the importance of according respect to every person's constitutional right
against illegal arrests and searches, the Court exhorted:

Lawmen cannot be allowed to violate every law they are expected to enforce. [The
policeman's] receipt of the intelligence information regarding the culprit's identity, the
particular crime he allegedly committed and his exact whereabouts underscored the
need to secure a warrant for his arrest. But he failed to do so. Such failure or neglect
cannot excuse him from violating a constitutional right of the appellant. 7

. . . That the search disclosed a prohibited substance in appellant's possession and

thus confirmed the police officers' initial information and suspicion, did not cure its
patent illegality. An illegal search cannot be undertaken and then an arrest effected
on the strength of the evidence yielded by the search. 8

Consent Validated an Otherwise

Illegal Search in Lacerna

In Lacerna meanwhile, a police officer observed that the occupants of a taxicab bowed their heads
and slouched when they passed through the checkpoint he was manning, making him suspect that
something was amiss. He signaled the driver to stop, then asked permission to search the vehicle.
The occupants consented. Found inside a plastic bag were several blocks wrapped in newspaper,
which were later discovered to contain marijuana. Lacerna questioned his warrantless arrest and
seizure, claiming that they were violative of his constitutional rights.
The Court, despite declaring that the prior attendant circumstances did not justify a warrantless
search and seizure, ruled that the search was valid, not because Lacerna was caught in flagrante
delicto, but because he freely consented to the search. Although appellant and his companion were
stopped by the police on mere suspicion — without probable cause — that they were engaged in a
felonious enterprise, the Court stressed that their permission for the search was expressly sought
and obtained by the law enforcers. This consent validated the search, waiver being a generally
recognized exception to the rule against warrantless search. The marijuana, therefore, was
9

admissible in evidence. "There was no poisonous tree to speak of."

Mere Suspicion of Criminal Activity

Did Not Justify Search of Cuizon

Lastly, in Cuizon, the NBI, after conducting a surveillance on Cuizon for about a month, received in
the morning a tip from an informant that Cuizon and his wife were arriving at NAIA that same day,
bringing a large quantity of shabu. A team was immediately organized and sent to the airport to
intercept the suspect. Shortly after noon, the Cuizon spouses arrived. While at the airport arrival
area, Cuizon handed four travelling bags to Pua and Lee who thereafter bearded a taxicab, while the
Cuizons took a different vehicle. The NBI team members posted at the NAIA parking area, however,
failed to intercept the suspects. The team merely trailed the taxicab which proceeded to the Manila
Peninsula Hotel in Makati. After identifying themselves to the suspects in their hotel room, the team
asked permission to search their bags in the presence of the hotel's chief security officer. Pua and
Lee consented in writing. Found inside three of the four bags similar to those handed to them by
Cuizon at the airport were plastic packages of white crystalline substances which, upon later
examination, were confirmed to be shabu. Taking with them the two accused (who, however, did not
implicate Cuizon), the NBI team proceeded to the Cuizon residence where they found a bag
allegedly containing the same substance. The three were charged and convicted of illegal transport
of the regulated drug. On appeal, only Cuizon challenged the validity of his warrantless arrest,
search and seizure.

Reiterating the doctrine that "where a person is searched without a warrant, and under
circumstances other than chose justifying a warrantless arrest . . . , upon a mere suspicion that he
has embarked on some criminal activity, and/or for the purpose of discovering if indeed a crime has
been committed by him, then the search made of such person as well as his arrest [is] deemed
illegal," this Court declared unlawful the arrest of Cuizon as well as the incidental search and
10

seizure. The warrantless arrest and search were not justified by the rules on "in flagrante delicto" or
"hot pursuit" for, at the time of his arrest, Cuizon was inside his home resting with his wife and child.
No offense had just been committed or was actually being committed or attempted by him in the
presence of the lawmen, nor did the latter have personal knowledge of facts indicating that Cuizon
authored an offense that had just in fact been committed. Consequently, any evidence obtained
during the illegal search, "even if tending to confirm or actually confirming the initial suspicion, is
absolutely inadmissible for any purpose and in any proceeding, the same being 'the fruit of the
poisonous tree.'" 11

The same would have been true as regards Pua and Lee. But Pua effectively waived his right
against the warrantless search when he agreed in writing for the NBI team to search his luggage.
Besides, he failed to challenge the validity of his arrest and search and the admission of the
evidence obtained thereby. However, the case against Lee, who could not speak English or Filipino,
was remanded for a retrial, because he was effectively denied his right to counsel; for although he
was provided with one, he could not understand and communicate with him concerning his defense.

After reviewing previous decisions on valid warrantless arrests and searches, the Court underscored
in sum that there was need for facts providing probable cause, such as the "distinct odor of
marijuana, reports about drug transporting or positive identification by informers, suspicious
behavior, attempt to flee, [or] failure to produce identification papers" to justify warrantless arrests
and searches. Likewise, urgency must attend such arrests and searches, as where motor vehicles
are used and there is great probability that the suspect would get away before a warrant can be
procured. Most important is that the law enforcers must act immediately on the information received,
suspicions raised or probable cause established, and should effect the arrests and searches without
any delay. 12

Instant Case Correlated

with Four Cited

Now to the correlation with the case at bar.

(1) As in Manalili, lawmen were on surveillance in response to information that a criminal activity
could be in the offing at a specified place. The stark difference, however, is that in Manalili, the
reported activity involved drug use and the lawmen belonged to the anti-narcotics group, while in the
instant case, the police on patrol were ordinary law enforcers on the lookout for possible bombers. In
the former, the law enforcers concerned may be presumed to possess special knowledge and skill to
detect the physical features exhibited by a current drug user. Thus, when these specially trained
enforcers saw Manalili with reddish eyes and walking in a wobbly manner characteristic of a person
"high" on drugs per their experience, and in a known hangout of drug users, there was sufficient
genuine reason to stop and frisk the suspect. It is well to emphasize that under different
circumstances, such as where the policemen are not specially trained, and in common places where
people ordinarily converge, the same features displayed by a person will not normally justify a
warrantless arrest or search on him.

The case before us presents such a situation. The policemen merely observed that Malacat's eyes
were moving very fast. They did not notice any bulges or packets about the bodies of these men
indicating that they might be hiding explosive paraphernalia. From their outward look, nothing
suggested that they were at the time armed and dangerous. Hence, there was no justification for a
stop-and-frisk.

(2) In relation to the cases of Encinada and Cuizon, at the time of the arrests of the suspects, none
of the actions of Accused Encinada and Cuizon were beyond normal as to suggest that they were
then engaged in felonious activities. The simple handing over of the baggage by Cuizon to Pua and
Lee was far from being indicative of any illegal activity. Such act by itself does not, by any stretch of
imagination, even appear to be suspicious. Granting that indeed an offense was committed by
Cuizon at the airport, his subsequent arrest cannot even be justified under the rule on "hot pursuit."
He did not attempt to flee, but was actually able to leave the premises and reach his house
unhampered by the police. There was considerable interruption between the supposed commission
of the crime and his subsequent arrest in his house where he was already resting.

Moreover, Encinada and Cuizon had been previously identified and subjected to surveillance. Police
informants themselves, presumably reliable, tipped off their alleged criminal activity. Specifically with
respect to Encinada, there was sufficient time to priorly obtain a warrant for his arrest. It must be
stressed that raw unverified intelligence information alone is not sufficient to justify a warrantless
arrest or search. That is why it is important to bring one's evidence before a judge who shall
independently determine if probable cause exists for the issuance of the warrant. It is not for the
police to make such determination.

As regards Cuizon, it was, worse, the ineptness of the NBI team dispatched to intercept him which
foiled his arrest and search. In the present case, if it were true that the arresting officer saw Malacat
two days earlier attempting to detonate a grenade in the same vicinity, again it was the policemen's
ineptitude that frustrated his valid arrest there and then and, further, their inability to effectively
investigate and identify the culprit — so as to have obtained a lawful arrest warrant — that hindered
his valid seizure thereafter.

(3) In Lacerna, true, the occupants of the taxicab bowed their heads and slouched when they passed
through the police checkpoint. Although such acts could raise suspicions, they did not provide
sufficient reason for the police to stop and investigate them for possible criminal operation; much
less, to conduct an extensive search of their belongings. A checkpoint search is limited to a roving
view within the vehicle. A further search may be validly effected only if something probably illegal is
within his "plain view." In Lacerna, if not for the passengers' free and express consent, the search
would have been undoubtedly declared illegal. Similarly, the fast-moving eyes of Malacat, although
connoting unusual behavior, was not indicative that he was armed and dangerous as to justify a
search on his person.

Mengote Supports
Present Ponencia

Bolstering the invalidity of the arrest and search of Malacat is People vs. Mengote, another classic
13

on the right against unreasonable searches and seizures. Upon receiving a telephone call shortly
before noon from an informer that there were suspicious-looking persons at a certain street corner in
Tondo, Manila, the Western Police District dispatched a surveillance team to said place. There they
saw two men "looking from side to side" with one" holding his abdomen." The police approached
them and identified themselves, whereupon the two tried to flee but failed as other lawmen
surrounded them. The suspects were searched, and recovered from Mengote was a fully loaded
pistol; from his companion, a fan knife.

The Court ruled that the situation was not one calling for a lawful warrantless search and arrest. As
the Court, through Mr. Justice Isagani A. Cruz, succinctly put it: "What offense could possibly have
been suggested by a person 'looking from side to side' and 'holding his abdomen' and in a place not
exactly forsaken?"

. . . [T]here could have been a number of reasons, all of them innocent, why his eyes
were darting from side to side and he was holding his abdomen. If they excited
suspicion in the minds of the arresting officers, as the prosecution suggests, it has
nevertheless not been shown what their suspicion was all about. In fact, the
policemen themselves testified that they were dispatched to that place only because
of the telephone call from the informer that there were 'suspicious-looking' persons in
that vicinity who were about to commit a robbery at North Bay Boulevard. The caller
did not explain why he thought the men looked suspicious nor did he elaborate on
the impending crime. 14

In closing, the Court lamented and thus warned:

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.
15
Under our rule in Mengote, petitioner's dubious act of moving his eyes swiftly from side to side can in
no way justify a stop-and-frisk. To convict a person on the basis only of his queer behavior and to
sentence him to practically a lifetime in prison would simply be unfathomable. Nothing can be more
wrong, unjust and inhuman.

WHEREFORE, I vote to SET ASIDE the assailed decision and to ACQUIT Petitioner Sammy
Malacat y Mandar.

Separate Opinions

PANGANIBAN, J., separate opinion:

I agree with the persuasive ponencia of Mr. Justice Hilario G. Davide Jr. that:

1. the search conducted on petitioner (a) was not incidental to a lawful arrest and (b) did not
constitute a valid stop-and-frisk; thus, the grenade found in his person cannot be admitted as
evidence against him; and

2. the Court of Appeals had no jurisdiction to entertain the appeal from the trial court's decision.

I wish, however, to correlate the present case with four relevant decisions I authored for the
Court: Manalili vs. Court of Appeals, People vs. Encinada, People vs. Lacerna and People
1 2 3

vs. Cuizon, all of which were promulgated without any dissenting view. This correlation may be of
4

benefit to the bench, the bar and, particularly, to law enforcement officers. Let me first present a
background on each.

Manalili Involved a
Valid Stop-and-Frisk

In Manalili, anti-narcotics policemen conducted a surveillance in response to information that drug

addicts were roaming the area fronting the city cemetery of Kalookan, and chanced upon Manalili
who was observed to have reddish eyes and to be walking in a wobbly manner. Because his
appearance was characteristic of a person "high on drugs," the lawmen approached him, introduced
themselves and inquired as to what was in his hands. At first, Manalili resisted but the police
prevailed and he showed them his wallet. The anti-narcotics men found inside what they suspected
to be crushed marijuana residue. They took Manalili to their station for further investigation. A
chromatographic test of the wallet contents positively affirmed the lawmen's suspicions. Manalili was
thus charged, tried and convicted of illegal possession of the prohibited substance. He subsequently
challenged before us the legality of his search and arrest, and the admission of the marijuana as
evidence. He contended that the latter two were products of the illegal search.

Rejecting his appeal, this Court held that the search was akin to a stop-and-frisk. The police had
sufficient reason to stop Manalili, who "had red eyes and was wobbling like a drunk . . . [in] a popular
hangout of drug addicts," in order to investigate if he was actually "high" on drugs. The situation
verily called for a stop-and-frisk.

Lawmen Had Sufficient Opportunity

to Secure Warrant in Encinada
In Encinada, a police officer received late in the afternoon a tip from an informant that the following
morning, appellant would be arriving at the Surigao port bringing marijuana. Without securing a
search warrant allegedly because courts were already closed for the day, the lawmen proceeded
early next morning to the city wharf. About 8:30 a.m., they saw the suspect, carrying two plastic baby
chairs, disembark and thereafter board a tricycle. The police followed immediately and ordered the
driver to stop. After introducing themselves, the policemen asked Encinada to alight and to hand
over his luggage for inspection. Found between the baby chairs was a bulky package which was
later found to contain marijuana. On these particulars, he was charged, tried and convicted by the
trial court for violation of Sec. 4, Art. II of RA 6425, holding that Encinada was caught in flagrante
delicto. Hence, the warrantless search following his arrest was valid, and the marijuana seized was
admissible in evidence.

Reversing the trial court, this Court stressed the following: Encinada was not committing a crime in
the presence of the police; the latter did not have personal knowledge of facts indicating that he just
committed an offense; and raw intelligence information was not a sufficient ground for a warrantless
arrest. Furthermore, "[t]he prosecution's evidence did nor show any suspicious behavior when the
5

appellant disembarked from the ship or while he rode the motorela. No act or fact demonstrating a
felonious enterprise could be ascribed to appellant under such bare circumstances." Having known
6

the identity of their suspect the previous day, the law enforcers could have secured a warrant of
arrest even within such limited period (per Administrative Circular No. 13 and Circular No. 19, s.
1987). In emphasizing the importance of according respect to every person's constitutional right
against illegal arrests and searches, the Court exhorted:

Lawmen cannot be allowed to violate every law they are expected to enforce. [The
policeman's] receipt of the intelligence information regarding the culprit's identity, the
particular crime he allegedly committed and his exact whereabouts underscored the
need to secure a warrant for his arrest. But he failed to do so. Such failure or neglect
cannot excuse him from violating a constitutional right of the appellant. 7

. . . That the search disclosed a prohibited substance in appellant's possession and

thus confirmed the police officers' initial information and suspicion, did not cure its
patent illegality. An illegal search cannot be undertaken and then an arrest effected
on the strength of the evidence yielded by the search. 8

Consent Validated an Otherwise

Illegal Search in Lacerna

In Lacerna meanwhile, a police officer observed that the occupants of a taxicab bowed their heads
and slouched when they passed through the checkpoint he was manning, making him suspect that
something was amiss. He signaled the driver to stop, then asked permission to search the vehicle.
The occupants consented. Found inside a plastic bag were several blocks wrapped in newspaper,
which were later discovered to contain marijuana. Lacerna questioned his warrantless arrest and
seizure, claiming that they were violative of his constitutional rights.

The Court, despite declaring that the prior attendant circumstances did not justify a warrantless
search and seizure, ruled that the search was valid, not because Lacerna was caught in flagrante
delicto, but because he freely consented to the search. Although appellant and his companion were
stopped by the police on mere suspicion — without probable cause — that they were engaged in a
felonious enterprise, the Court stressed that their permission for the search was expressly sought
and obtained by the law enforcers. This consent validated the search, waiver being a generally
recognized exception to the rule against warrantless search. The marijuana, therefore, was
9

admissible in evidence. "There was no poisonous tree to speak of."

 Mere Suspicion of Criminal Activity
Did Not Justify Search of Cuizon

Lastly, in Cuizon, the NBI, after conducting a surveillance on Cuizon for about a month, received in
the morning a tip from an informant that Cuizon and his wife were arriving at NAIA that same day,
bringing a large quantity of shabu. A team was immediately organized and sent to the airport to
intercept the suspect. Shortly after noon, the Cuizon spouses arrived. While at the airport arrival
area, Cuizon handed four travelling bags to Pua and Lee who thereafter bearded a taxicab, while the
Cuizons took a different vehicle. The NBI team members posted at the NAIA parking area, however,
failed to intercept the suspects. The team merely trailed the taxicab which proceeded to the Manila
Peninsula Hotel in Makati. After identifying themselves to the suspects in their hotel room, the team
asked permission to search their bags in the presence of the hotel's chief security officer. Pua and
Lee consented in writing. Found inside three of the four bags similar to those handed to them by
Cuizon at the airport were plastic packages of white crystalline substances which, upon later
examination, were confirmed to be shabu. Taking with them the two accused (who, however, did not
implicate Cuizon), the NBI team proceeded to the Cuizon residence where they found a bag
allegedly containing the same substance. The three were charged and convicted of illegal transport
of the regulated drug. On appeal, only Cuizon challenged the validity of his warrantless arrest,
search and seizure.

Reiterating the doctrine that "where a person is searched without a warrant, and under
circumstances other than chose justifying a warrantless arrest . . . , upon a mere suspicion that he
has embarked on some criminal activity, and/or for the purpose of discovering if indeed a crime has
been committed by him, then the search made of such person as well as his arrest [is] deemed
illegal," this Court declared unlawful the arrest of Cuizon as well as the incidental search and
10

seizure. The warrantless arrest and search were not justified by the rules on "in flagrante delicto" or
"hot pursuit" for, at the time of his arrest, Cuizon was inside his home resting with his wife and child.
No offense had just been committed or was actually being committed or attempted by him in the
presence of the lawmen, nor did the latter have personal knowledge of facts indicating that Cuizon
authored an offense that had just in fact been committed. Consequently, any evidence obtained
during the illegal search, "even if tending to confirm or actually confirming the initial suspicion, is
absolutely inadmissible for any purpose and in any proceeding, the same being 'the fruit of the
poisonous tree.'" 11

The same would have been true as regards Pua and Lee. But Pua effectively waived his right
against the warrantless search when he agreed in writing for the NBI team to search his luggage.
Besides, he failed to challenge the validity of his arrest and search and the admission of the
evidence obtained thereby. However, the case against Lee, who could not speak English or Filipino,
was remanded for a retrial, because he was effectively denied his right to counsel; for although he
was provided with one, he could not understand and communicate with him concerning his defense.

After reviewing previous decisions on valid warrantless arrests and searches, the Court underscored
in sum that there was need for facts providing probable cause, such as the "distinct odor of
marijuana, reports about drug transporting or positive identification by informers, suspicious
behavior, attempt to flee, [or] failure to produce identification papers" to justify warrantless arrests
and searches. Likewise, urgency must attend such arrests and searches, as where motor vehicles
are used and there is great probability that the suspect would get away before a warrant can be
procured. Most important is that the law enforcers must act immediately on the information received,
suspicions raised or probable cause established, and should effect the arrests and searches without
any delay. 12
 Instant Case Correlated
with Four Cited

Now to the correlation with the case at bar.

(1) As in Manalili, lawmen were on surveillance in response to information that a criminal activity
could be in the offing at a specified place. The stark difference, however, is that in Manalili, the
reported activity involved drug use and the lawmen belonged to the anti-narcotics group, while in the
instant case, the police on patrol were ordinary law enforcers on the lookout for possible bombers. In
the former, the law enforcers concerned may be presumed to possess special knowledge and skill to
detect the physical features exhibited by a current drug user. Thus, when these specially trained
enforcers saw Manalili with reddish eyes and walking in a wobbly manner characteristic of a person
"high" on drugs per their experience, and in a known hangout of drug users, there was sufficient
genuine reason to stop and frisk the suspect. It is well to emphasize that under different
circumstances, such as where the policemen are not specially trained, and in common places where
people ordinarily converge, the same features displayed by a person will not normally justify a
warrantless arrest or search on him.

The case before us presents such a situation. The policemen merely observed that Malacat's eyes
were moving very fast. They did not notice any bulges or packets about the bodies of these men
indicating that they might be hiding explosive paraphernalia. From their outward look, nothing
suggested that they were at the time armed and dangerous. Hence, there was no justification for a
stop-and-frisk.

(2) In relation to the cases of Encinada and Cuizon, at the time of the arrests of the suspects, none
of the actions of Accused Encinada and Cuizon were beyond normal as to suggest that they were
then engaged in felonious activities. The simple handing over of the baggage by Cuizon to Pua and
Lee was far from being indicative of any illegal activity. Such act by itself does not, by any stretch of
imagination, even appear to be suspicious. Granting that indeed an offense was committed by
Cuizon at the airport, his subsequent arrest cannot even be justified under the rule on "hot pursuit."
He did not attempt to flee, but was actually able to leave the premises and reach his house
unhampered by the police. There was considerable interruption between the supposed commission
of the crime and his subsequent arrest in his house where he was already resting.

Moreover, Encinada and Cuizon had been previously identified and subjected to surveillance. Police
informants themselves, presumably reliable, tipped off their alleged criminal activity. Specifically with
respect to Encinada, there was sufficient time to priorly obtain a warrant for his arrest. It must be
stressed that raw unverified intelligence information alone is not sufficient to justify a warrantless
arrest or search. That is why it is important to bring one's evidence before a judge who shall
independently determine if probable cause exists for the issuance of the warrant. It is not for the
police to make such determination.

As regards Cuizon, it was, worse, the ineptness of the NBI team dispatched to intercept him which
foiled his arrest and search. In the present case, if it were true that the arresting officer saw Malacat
two days earlier attempting to detonate a grenade in the same vicinity, again it was the policemen's
ineptitude that frustrated his valid arrest there and then and, further, their inability to effectively
investigate and identify the culprit — so as to have obtained a lawful arrest warrant — that hindered
his valid seizure thereafter.

(3) In Lacerna, true, the occupants of the taxicab bowed their heads and slouched when they passed
through the police checkpoint. Although such acts could raise suspicions, they did not provide
sufficient reason for the police to stop and investigate them for possible criminal operation; much
less, to conduct an extensive search of their belongings. A checkpoint search is limited to a roving
view within the vehicle. A further search may be validly effected only if something probably illegal is
within his "plain view." In Lacerna, if not for the passengers' free and express consent, the search
would have been undoubtedly declared illegal. Similarly, the fast-moving eyes of Malacat, although
connoting unusual behavior, was not indicative that he was armed and dangerous as to justify a
search on his person.

Mengote Supports
Present Ponencia

Bolstering the invalidity of the arrest and search of Malacat is People vs. Mengote, another classic
13

on the right against unreasonable searches and seizures. Upon receiving a telephone call shortly
before noon from an informer that there were suspicious-looking persons at a certain street corner in
Tondo, Manila, the Western Police District dispatched a surveillance team to said place. There they
saw two men "looking from side to side" with one" holding his abdomen." The police approached
them and identified themselves, whereupon the two tried to flee but failed as other lawmen
surrounded them. The suspects were searched, and recovered from Mengote was a fully loaded
pistol; from his companion, a fan knife.

The Court ruled that the situation was not one calling for a lawful warrantless search and arrest. As
the Court, through Mr. Justice Isagani A. Cruz, succinctly put it: "What offense could possibly have
been suggested by a person 'looking from side to side' and 'holding his abdomen' and in a place not
exactly forsaken?"

. . . [T]here could have been a number of reasons, all of them innocent, why his eyes
were darting from side to side and he was holding his abdomen. If they excited
suspicion in the minds of the arresting officers, as the prosecution suggests, it has
nevertheless not been shown what their suspicion was all about. In fact, the
policemen themselves testified that they were dispatched to that place only because
of the telephone call from the informer that there were 'suspicious-looking' persons in
that vicinity who were about to commit a robbery at North Bay Boulevard. The caller
did not explain why he thought the men looked suspicious nor did he elaborate on
the impending crime. 14

In closing, the Court lamented and thus warned:

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.
15

Under our rule in Mengote, petitioner's dubious act of moving his eyes swiftly from side to side can in
no way justify a stop-and-frisk. To convict a person on the basis only of his queer behavior and to
sentence him to practically a lifetime in prison would simply be unfathomable. Nothing can be more
wrong, unjust and inhuman.

WHEREFORE, I vote to SET ASIDE the assailed decision and to ACQUIT Petitioner Sammy
Malacat y Mandar.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Herminio T. Llariza counsel de-officio for defendant-appellant.

CRUZ, J.:

The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found guilty of illegally
transporting marijuana. The trial court, disbelieving him, held it was high time to put him away and sentenced him to life imprisonment plus a
fine of P20,000.00. 1

Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at
about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him simply
accosted him, inspected his bag and finding what looked liked marijuana leaves took him to their
headquarters for investigation. The two bundles of suspect articles were confiscated from him and
later taken to the NBI laboratory for examination. When they were verified as marijuana leaves, an
information for violation of the Dangerous Drugs Act was filed against him. Later, the information 2

was amended to include Farida Ali y Hassen, who had also been arrested with him that same
evening and likewise investigated. Both were arraigned and pleaded not guilty. Subsequently, the
3 4

fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn statement of the
arresting officers absolving her after a 'thorough investigation." The motion was granted, and trial
5

proceeded only against the accused-appellant, who was eventually convicted . 6

According to the prosecution, the PC officers had earlier received a tip from one of their informers
that the accused-appellant was on board a vessel bound for Iloilo City and was carrying
marijuana. He was Identified by name. Acting on this tip, they waited for him in the evening of
7 8

June 25, 1984, and approached him as he descended from the gangplank after the informer had
pointed to him. They detained him and inspected the bag he was carrying. It was found to contain
9

three kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, who 10

testified that she conducted microscopic, chemical and chromatographic tests on them. On the basis
of this finding, the corresponding charge was then filed against Aminnudin.

In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his
clothing consisting of a jacket, two shirts and two pairs of pants. He alleged that he was arbitrarily
11

arrested and immediately handcuffed. His bag was confiscated without a search warrant. At the PC
headquarters, he was manhandled to force him to admit he was carrying the marijuana, the
investigator hitting him with a piece of wood in the chest and arms even as he parried the blows
while he was still handcuffed. He insisted he did not even know what marijuana looked like and that
12

his business was selling watches and sometimes cigarettes. He also argued that the marijuana he
13

was alleged to have been carrying was not properly Identified and could have been any of several
bundles kept in the stock room of the PC headquarters. 14
The trial court was unconvinced, noting from its own examination of the accused that he claimed to
have come to Iloilo City to sell watches but carried only two watches at the time, traveling from Jolo
for that purpose and spending P107.00 for fare, not to mention his other expenses. Aminnudin15

testified that he kept the two watches in a secret pocket below his belt but, strangely, they were not
discovered when he was bodily searched by the arresting officers nor were they damaged as a
result of his manhandling. He also said he sold one of the watches for P400.00 and gave away the
16

other, although the watches belonged not to him but to his cousin, to a friend whose full name he
17

said did not even know. The trial court also rejected his allegations of maltreatment, observing that
18

he had not sufficiently proved the injuries sustained by him. 19

There is no justification to reverse these factual findings, considering that it was the trial judge who
had immediate access to the testimony of the witnesses and had the opportunity to weigh their
credibility on the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush of face
and dart of eyes, which may reveal the truth or expose the lie, are not described in the impersonal
record. But the trial judge sees all of this, discovering for himself the truant fact amidst the falsities.

The only exception we may make in this case is the trial court's conclusion that the accused-
appellant was not really beaten up because he did not complain about it later nor did he submit to a
medical examination. That is hardly fair or realistic. It is possible Aminnudin never had that
opportunity as he was at that time under detention by the PC authorities and in fact has never been
set free since he was arrested in 1984 and up to the present. No bail has been allowed for his
release.

There is one point that deserves closer examination, however, and it is Aminnudin's claim that he
was arrested and searched without warrant, making the marijuana allegedly found in his possession
inadmissible in evidence against him under the Bill of Rights. The decision did not even discuss this
point. For his part, the Solicitor General dismissed this after an all-too-short argument that the arrest
of Aminnudin was valid because it came under Rule 113, Section 6(b) of the Rules of Court on
warrantless arrests. This made the search also valid as incidental to a lawful arrest.

It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that
they had no warrant when they arrested Aminnudin and seized the bag he was carrying. Their only
justification was the tip they had earlier received from a reliable and regular informer who reported to
them that Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as to the
time they received the tip, one saying it was two days before the arrest, another two weeks and a
20 21

third "weeks before June 25." On this matter, we may prefer the declaration of the chief of the
22

arresting team, Lt. Cipriano Querol, Jr., who testified as follows:

Q You mentioned an intelligence report, you mean with respect to the

coming of Idel Aminnudin on June 25, 1984?

A Yes, sir.

Q When did you receive this intelligence report?

A Two days before June 25, 1984 and it was supported by reliable
sources.

Q Were you informed of the coming of the Wilcon 9 and the possible
trafficking of marijuana leaves on that date?
A Yes, sir, two days before June 25, 1984 when we received this
information from that particular informer, prior to June 25, 1984 we
have already reports of the particular operation which was being
participated by Idel Aminnudin.

Q You said you received an intelligence report two days before June
25, 1984 with respect to the coming of Wilcon 9?

A Yes, sir.

Q Did you receive any other report aside from this intelligence report?

A Well, I have received also other reports but not pertaining to the
coming of Wilcon 9. For instance, report of illegal gambling operation.

COURT:

Q Previous to that particular information which you said two days

before June 25, 1984, did you also receive daily report regarding the
activities of Idel Aminnudin

A Previous to June 25, 1984 we received reports on the activities of

Idel Aminnudin.

Q What were those activities?

A Purely marijuana trafficking.

Q From whom did you get that information?

A It came to my hand which was written in a required sheet of

information, maybe for security reason and we cannot Identify the
person.

Q But you received it from your regular informer?

A Yes, sir.

ATTY. LLARIZA:

Q Previous to June 25, 1984, you were more or less sure that Idel
Aminnudin is coming with drugs?

A Marijuana, sir.

Q And this information respecting Idel Aminnudin's coming to Iloilo

with marijuana was received by you many days before you received
the intelligence report in writing?

A Not a report of the particular coming of Aminnudin but his activities.

Q You only knew that he was coming on June 25,1984 two days
before?

A Yes, sir.

Q You mean that before June 23, 1984 you did not know that
minnudin was coming?

A Before June 23,1984, I, in my capacity, did not know that he was

coming but on June 23, 1984 that was the time when I received the
information that he was coming. Regarding the reports on his
activities, we have reports that he was already consummated the act
of selling and shipping marijuana stuff.

COURT:

Q And as a result of that report, you put him under surveillance?

A Yes, sir.

Q In the intelligence report, only the name of Idel Aminnudin was

mentioned?

A Yes, sir.

Q Are you sure of that?

A On the 23rd he will be coming with the woman.

Q So that even before you received the official report on June 23,
1984, you had already gathered information to the effect that Idel
Aminnudin was coming to Iloilo on June 25, 1984?

A Only on the 23rd of June.

Q You did not try to secure a search warrant for the seizure or search
of the subject mentioned in your intelligence report?

A No, more.

Q Why not?

A Because we were very very sure that our operation will yield
positive result.

Q Is that your procedure that whenever it will yield positive result you
do not need a search warrant anymore?

A Search warrant is not necessary. 23

That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the
PC. The Supreme Court cannot countenance such a statement. This is still a government of laws
and not of men.

The mandate of the Bill of Rights is clear:

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

In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal
determination by him of the existence of probable cause. Contrary to the averments of the
government, the accused-appellant was not caught in flagrante nor was a crime about to be
committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of the
Rules of Court. Even expediency could not be invoked to dispense with the obtention of the warrant
as in the case of Roldan v. Arca, for example. Here it was held that vessels and aircraft are subject
24

to warrantless searches and seizures for violation of the customs law because these vehicles may
be quickly moved out of the locality or jurisdiction before the warrant can be secured.

The present case presented no such urgency. From the conflicting declarations of the PC witnesses,
it is clear that they had at least two days within which they could have obtained a warrant to arrest
and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The
vehicle was Identified. The date of its arrival was certain. And from the information they had
received, they could have persuaded a judge that there was probable cause, indeed, to justify the
issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of
Rights was ignored altogether because the PC lieutenant who was the head of the arresting team,
had determined on his own authority that a "search warrant was not necessary."

In the many cases where this Court has sustained the warrantless arrest of violators of the
Dangerous Drugs Act, it has always been shown that they were caught red-handed, as a result of
what are popularly called "buy-bust" operations of the narcotics agents. Rule 113 was clearly
25

applicable because at the precise time of arrest the accused was in the act of selling the prohibited
drug.

In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime
nor was it shown that he was about to do so or that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for
his arrest. To all appearances, he was like any of the other passengers innocently disembarking
from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he
suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his
arrest. The Identification by the informer was the probable cause as determined by the officers (and
not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him.

Now that we have succeeded in restoring democracy in our country after fourteen years of the
despised dictatorship, when any one could be picked up at will, detained without charges and
punished without trial, we will have only ourselves to blame if that kind of arbitrariness is allowed to
return, to once more flaunt its disdain of the Constitution and the individual liberties its Bill of Rights
guarantees.
While this is not to say that the accused-appellant is innocent, for indeed his very own words
suggest that he is lying, that fact alone does not justify a finding that he is guilty. The constitutional
presumption is that he is innocent, and he will be so declared even if his defense is weak as long as
the prosecution is not strong enough to convict him.

Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution
must fall. That evidence cannot be admitted, and should never have been considered by the trial
court for the simple fact is that the marijuana was seized illegally. It is the fruit of the poisonous tree,
to use Justice Holmes' felicitous phrase. The search was not an incident of a lawful arrest because
there was no warrant of arrest and the warrantless arrest did not come under the exceptions allowed
by the Rules of Court. Hence, the warrantless search was also illegal and the evidence obtained
thereby was inadmissible.

The Court strongly supports the campaign of the government against drug addiction and commends
the efforts of our law-enforcement officers against those who would inflict this malediction upon our
people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be
more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual
in the realm, including the basest of criminals. The Constitution covers with the mantle of its
protection the innocent and the guilty alike against any manner of high- handedness from the
authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the rights of the
individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes,
again, said, "I think it a less evil that some criminals should escape than that the government should
play an ignoble part." It is simply not allowed in the free society to violate a law to enforce another,
especially if the law violated is the Constitution itself.

We find that with the exclusion of the illegally seized marijuana as evidence against the accused-
appellant, his guilt has not been proved beyond reasonable doubt and he must therefore be
discharged on the presumption that he is innocent.

ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is
ACQUITTED. It is so ordered.

Narvasa, Gancayco and Medialdea, JJ., concur.

Separate Opinions

AQUINO, J., dissenting:

I respectfully dissent. I hold that the accused was caught in flagrante, for he was carrying marijuana
leaves in his bag at the moment of his arrest. He was not "innocently disembarking from the vessel."
The unauthorized transportation of marijuana (Indian hemp), which is a prohibited drug, is a crime.
(Sec. 4, Rep. Act No. 6425). Since he was committing a crime, his arrest could be lawfully effected
without a warrant (Sec. 6a, Rule 113, Rules of Court), and the search of his bag (which yielded the
marijuana leaves) without a search warrant was also lawful (Sec. 12, Rule 126, Rules of Court). I
vote to affirm the judgment of the trial court finding him guilty of illegally transporting marijuana.

Separate Opinions

AQUINO, J., dissenting:

I respectfully dissent. I hold that the accused was caught in flagrante, for he was carrying marijuana
leaves in his bag at the moment of his arrest. He was not "innocently disembarking from the vessel."
The unauthorized transportation of marijuana (Indian hemp), which is a prohibited drug, is a crime.
(Sec. 4, Rep. Act No. 6425). Since he was committing a crime, his arrest could be lawfully effected
without a warrant (Sec. 6a, Rule 113, Rules of Court), and the search of his bag (which yielded the
marijuana leaves) without a search warrant was also lawful (Sec. 12, Rule 126, Rules of Court). I
vote to affirm the judgment of the trial court finding him guilty of illegally transporting marijuana.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MIKAEL MALMSTEDT, *defendant-appellant.

The Solicitor General for plaintiff-appellee.

Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendant-appellant.

PADILLA, J.:

In an information dated 15 June 1989, accused-appellant Mikael Malmstedt (hereinafter referred to

as the accused) was charged before the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch
10, in Criminal Case No. 89-CR-0663, for violation of Section 4, Art. II of Republic Act 6425, as
amended, otherwise known as the Dangerous Drugs Act of 1972, as amended. The factual
background of the case is as follows:

Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in
December 1988 as a tourist. He had visited the country sometime in 1982 and 1985.

In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in the morning of
the following day, he took a bus to Sagada and stayed in that place for two (2) days.

At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus stop in
Sagada to catch the first available trip to Baguio City. From Baguio City, accused planned to take a
late afternoon trip to Angeles City, then proceed to Manila to catch his flight out of the country,
scheduled on 13 May 1989. From Sagada, accused took a Skyline bus with body number 8005 and
Plate number AVC 902. 1

At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen Vasco, the
Commanding Officer of the First Regional Command (NARCOM) stationed at Camp Dangwa,
ordered his men to set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain Province,
for the purpose of checking all vehicles coming from the Cordillera Region. The order to establish a
checkpoint in the said area was prompted by persistent reports that vehicles coming from Sagada
were transporting marijuana and other prohibited drugs. Moreover, information was received by the
Commanding Officer of NARCOM, that same morning, that a Caucasian coming from Sagada had in
his possession prohibited drugs. 2

The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station, set
up a checkpoint at the designated area at about 10:00 o'clock in the morning and inspected all
vehicles coming from the Cordillera Region.

At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped. Sgt. Fider
and CIC Galutan boarded the bus and announced that they were members of the NARCOM and that
they would conduct an inspection. The two (2) NARCOM officers started their inspection from the
front going towards the rear of the bus. Accused who was the sole foreigner riding the bus was
seated at the rear thereof.

During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on
accused's waist to be a gun, the officer asked for accused's passport and other identification papers.
When accused failed to comply, the officer required him to bring out whatever it was that was
bulging on his waist. The bulging object turned out to be a pouch bag and when accused opened the
same bag, as ordered, the officer noticed four (4) suspicious-looking objects wrapped in brown
packing tape, prompting the officer to open one of the wrapped objects. The wrapped objects turned
out to contain hashish, a derivative of marijuana.

Thereafter, accused was invited outside the bus for questioning. But before he alighted from the bus,
accused stopped to get two (2) travelling bags from the luggage carrier.

Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was found in
each bag. Feeling the teddy bears, the officer noticed that there were bulges inside the same which
did not feel like foam stuffing. It was only after the officers had opened the bags that accused finally
presented his passport.

Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad,
Benguet for further investigation. At the investigation room, the officers opened the teddy bears and
they were found to also contain hashish. Representative samples were taken from the hashish found
among the personal effects of accused and the same were brought to the PC Crime Laboratory for
chemical analysis.

In the chemistry report, it was established that the objects examined were hashish. a prohibited drug
which is a derivative of marijuana. Thus, an information was filed against accused for violation of the
Dangerous Drugs Act.

During the arraignment, accused entered a plea of "not guilty." For his defense, he raised the issue
of illegal search of his personal effects. He also claimed that the hashish was planted by the
NARCOM officers in his pouch bag and that the two (2) travelling bags were not owned by him, but
were merely entrusted to him by an Australian couple whom he met in Sagada. He further claimed
that the Australian couple intended to take the same bus with him but because there were no more
seats available in said bus, they decided to take the next ride and asked accused to take charge of
the bags, and that they would meet each other at the Dangwa Station.

Likewise, accused alleged that when the NARCOM officers demanded for his passport and other
Identification papers, he handed to one of the officers his pouch bag which was hanging on his neck
containing, among others, his passport, return ticket to Sweden and other papers. The officer in turn
handed it to his companion who brought the bag outside the bus. When said officer came back, he
charged the accused that there was hashish in the bag. He was told to get off the bus and his picture
was taken with the pouch bag placed around his neck. The trial court did not give credence to
accused's defense.

The claim of the accused that the hashish was planted by the NARCOM officers, was belied by his
failure to raise such defense at the earliest opportunity. When accused was investigated at the
Provincial Fiscal's Office, he did not inform the Fiscal or his lawyer that the hashish was planted by
the NARCOM officers in his bag. It was only two (2) months after said investigation when he told his
lawyer about said claim, denying ownership of the two (2) travelling bags as well as having hashish
in his pouch bag.

In a decision dated 12 October 1989, the trial court found accused guilty beyond reasonable doubt
for violation of the Dangerous Drugs Act, specifically Section 4, Art. II of RA 6425, as amended. The
3

dispositive portion of the decision reads as follows:

WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond
reasonable doubt, this Court finds him GUILTY of violation of Section 4, Article 11 of
Republic Act 6425, as amended, and hereby sentences him to suffer the penalty of life
imprisonment and to pay a fine of Twenty Thousand Pesos (P20,000.00), with subsidiary
imprisonment in case of insolvency and to pay the costs.

Let the hashish subject of this case be turned over to the First Narcotics Regional Unit at
Camp Bado; Dangwa, La Trinidad Benguet for proper disposition under Section 20, Article IV
of Republic Act 6425, as amended.

SO ORDERED. 4

Seeking the reversal of the decision of the trial court finding him guilty of the crime charged, accused
argues that the search of his personal effects was illegal because it was made without a search
warrant and, therefore, the prohibited drugs which were discovered during the illegal search are not
admissible as evidence against him.

The Constitution guarantees the right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures. However, where the search is made
5

pursuant to a lawful arrest, there is no need to obtain a search warrant. A lawful arrest without a
warrant may be made by a peace officer or a private person under the following circumstances. 6

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

(a) When, in his presence, the person to be arrested has committed is actually committing, or
is attempting to commit an offense;
 (b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and

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

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant
shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded
against in accordance with Rule 112, Section 7. (6a 17a).

Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was
actually being committed by the accused and he was caught in flagrante delicto. Thus, the search
made upon his personal effects falls squarely under paragraph (1) of the foregoing provisions of law,
which allow a warrantless search incident to a lawful arrest.
7

While it is true that the NARCOM officers were not armed with a search warrant when the search
was made over the personal effects of accused, however, under the circumstances of the case,
there was sufficient probable cause for said officers to believe that accused was then and there
committing a crime.

Probable cause has been defined as such facts and circumstances which could lead a reasonable,
discreet and prudent man to believe that an offense has been committed, and that the objects
sought in connection with the offense are in the place sought to be searched. The required probable
8

cause that will justify a warrantless search and seizure is not determined by any fixed formula but is
resolved according to the facts of each case.9

Warrantless search of the personal effects of an accused has been declared by this Court as valid,
because of existence of probable cause, where the smell of marijuana emanated from a plastic bag
owned by the accused, or where the accused was acting suspiciously, and attempted to flee.
10 11 12

Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were
transporting marijuana and other prohibited drugs, their Commanding Officer also received
information that a Caucasian coming from Sagada on that particular day had prohibited drugs in his
possession. Said information was received by the Commanding Officer of NARCOM the very same
morning that accused came down by bus from Sagada on his way to Baguio City.

When NARCOM received the information, a few hours before the apprehension of herein accused,
that a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there
was no time to obtain a search warrant. In the Tangliben case, the police authorities conducted a
13

surveillance at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando Pampanga,
against persons engaged in the traffic of dangerous drugs, based on information supplied by some
informers. Accused Tangliben who was acting suspiciously and pointed out by an informer was
apprehended and searched by the police authorities. It was held that when faced with on-the-spot
information, the police officers had to act quickly and there was no time to secure a search warrant.

It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus
(where accused was riding) and the passengers therein, and no extensive search was initially made.
It was only when one of the officers noticed a bulge on the waist of accused, during the course of the
inspection, that accused was required to present his passport. The failure of accused to present his
identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that
accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has
nothing to hide from the authorities, to readily present his identification papers when required to do
so?

The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs
in his possession, plus the suspicious failure of the accused to produce his passport, taken together
as a whole, led the NARCOM officers to reasonably believe that the accused was trying to hide
something illegal from the authorities. From these circumstances arose a probable cause which
justified the warrantless search that was made on the personal effects of the accused. In other
words, the acts of the NARCOM officers in requiring the accused to open his pouch bag and in
opening one of the wrapped objects found inside said bag (which was discovered to contain
hashish) as well as the two (2) travelling bags containing two (2) teddy bears with hashish stuffed
inside them, were prompted by accused's own attempt to hide his identity by refusing to present his
passport, and by the information received by the NARCOM that a Caucasian coming from Sagada
had prohibited drugs in his possession. To deprive the NARCOM agents of the ability and facility to
act accordingly, including, to search even without warrant, in the light of such circumstances, would
be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society.

WHEREFORE, premises considered, the appealed judgment of conviction by the trial court is
hereby AFFIRMED. Costs against the accused-appellant.

SO ORDERED.

Melencio-Herrera, Paras, Feliciano, Bidin, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ.,
concur.
Sarmiento, J., is on leave.

Separate Opinions

NARVASA, J., concurring and dissenting:

The ancient tradition that a man's home is his castle, safe from intrusion even by the king, has not
only found its niche in all our charters, from 1935 to the present; it has also received unvarying
recognition and acceptance in our case law. The present Constitution declares that —
1 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.

It further ordains that any evidence obtained in violation of said right, among others, "shall be
inadmissible for any purpose in any proceeding." 3

The rule is that no person may be subjected by the police or other government authority to a search
of his body, or his personal effects or belongings, or his residence except by virtue of a search
warrant or on the occasion of a legitimate arrest.4
An arrest is legitimate, of course, if effected by virtue of a warrant of arrest. Even without a warrant,
an arrest may also be lawfully made by a peace officer or a private person: 5

(a) when, in his presence, the person to be arrested has committed is actually committing, or
is attempting 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.

In any of these instances of a lawful arrest, the person 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." And it has been held that the search may extend to the area "within his immediate
6

control," i.e., the area from which said person arrested might gain possession of a weapon or
destructible evidence. 7

Apart from "search incidental to an arrest," a warrantless search has also been held to be proper in
cases of "search of a moving vehicle, and "seizure of evidence in plain view." This was the
8 9

pronouncement in Manipon, Jr. v. Sandiganbayan, 143 SCRA 267, 276, which drew attention
to Moreno v. Ago Chi; Alvero v. Dizon, Papa v. Mago, and an American precedent, Harris v. U.S.
10 11 12 13

If, on the other, a person is searched without a warrant, or under circumstances other than those
justifying an arrest without warrant in accordance with law, supra, merely on suspicion that he is
engaged in some felonious enterprise, and in order to discover if he has indeed committed a crime, it
is not only the arrest which is illegal but also, the search on the occasion thereof, as being "the fruit
of the poisonous tree. In that event, any evidence taken, even if confirmatory of the initial suspicion,
14

is inadmissible "for any purpose in any proceeding." But the right against an unreasonable search
15

and seizure may be waived by the person arrested, provided he knew of such right and knowingly
decided not to invoke it. 16

There is unanimity among the members of the Court upon the continuing validity of these
established principles. However, the Court is divided as regards the ultimate conclusions which may
properly be derived from the proven facts and consequently, the manner in which the principles just
cited should apply thereto.

The proofs of the prosecution and those of the defense are diametrically at odds. What is certain,
however, is that the soldiers had no warrant of arrest when they conducted a search of Malmstedt's
person and the things in his possession at the time. Indeed, the Court a quo acknowledged that the
soldiers could "not be expected to be armed with a warrant or arrest nor a search warrant everytime
they establish a temporary checkpoint . . . (and) no judge would issue them one considering that
searching questions have to be asked before a warrant could be issued." Equally plain is that prior to
the search, a warrantless arrest of Malmstedt could not validly have been in accordance with the
norms of the law. For Malmstedt had not committed, nor was he actually committing or attempting to
commit a crime, in the soldiers' presence, nor did said soldiers have personal and competent
knowledge that Malmstedt had in fact just committed a crime. All they had was a suspicion that
Malmstedt might have some prohibited drug on him or in his bags; all they had was, in the words of
the Trial Court, "the hope of intercepting any dangerous drug being transported," or, as the Office of
the Solicitor General asserts, "information that most of the buses coming . . . (from the Cordillera)
were transporting marijuana and other prohibited drugs."

This case, is remarkably similar to Peo. v. Aminnudin, decided on July 6, 1988 also by the First
Division. There, Aminnudin was arrested without a warrant by PC officers as he was disembarking
17

from an inter-island vessel. The officers were waiting for him because he was, according to an
informer's report, then transporting marijuana. The search of Aminnudin's bag confirmed the
informer's report; the bag indeed contained marijuana. The Court nevertheless held that since the
PC officers had failed to procure a search warrant although they had sufficient time (two days) to do
so and therefore, the case presented no such urgency as to justify a warrantless search, the search
of Aminnudin's person and bag, the seizure of the marijuana and his subsequent arrest were illegal;
and the marijuana was inadmissible in evidence in the criminal action subsequently instituted against
Aminnudin for violating the Dangerous Drugs Act.

There are, on the other hand, other cases adjudicated by this Court in which apparently different
conclusions were reached. It is needful to devote a few words to them so that the relevant
constitutional and legal propositions are not misunderstood.

In People v. Claudio (decision promulgated on April 15, 1988), the accused boarded a "Victory
18

Liner" passenger bus going to Olongapo from Baguio City. She placed the plastic bag she was
carrying at the back of the seat then occupied by Obiña, an INP member "on Detached Service with
the Anti-Narcotics Unit." This avowedly aroused Obiña's suspicion, and at the first opportunity, and
without Claudio's knowledge, he surreptitiously looked into the plastic bag and noted that it
contained camote tops as well as a package, and that there emanated from the package the smell of
marijuana with which he had become familiar on account of his work. So when the bus stopped at
Sta. Rita, and Claudio alighted, Obiña accosted her, showed her his ID, identified himself as a
policeman, and announced his intention to search her bag which he said contained marijuana
because of the distinctive odor detected by him. Ignoring her plea — "Please go with me, let us
settle this at home" — he brought her to the police headquarters., where examination of the package
in Claudio's bag confirmed his suspicion that it indeed contained marijuana. The Court held the
warrantless arrest under the circumstances to be lawful, the search justified, and the evidence thus
discovered admissible in evidence against the accused.

In People v. Tangliben (decision promulgated on April 6, 1990), two police officers and a barangay
19

tanod were conducting a "surveillance mission" at the Victory Liner Terminal at San Nicolas, San
Fernando, Pampanga, "aimed not only against persons who may commit misdemeanors . . . (there)
but also on persons who may be engaging in the traffic of dangerous drugs based on information
supplied by informers; . . . they noticed a person carrying a red travelling bag . . who was acting
suspiciously;" they asked him to open the bag; the person did so only after they identified
themselves as peace officers; found in the bag were marijuana leaves wrapped in plastic weighing
one kilogram, more or less; the person was then taken to the police headquarters at San Fernando,
Pampanga, where he was investigated; and an information was thereafter filed against that person,
Tangliben, charging him with a violation of the Dangerous Drugs Act of 1972 (RA 6425), as
amended. Upon these facts it was ruled, citing Claudio, supra, that there was a valid warrantless
arrest and a proper warrantless search incident thereto.

The facts in Tangliben were pronounced to be different from those in People v. Aminnudin, supra. "In
contrast" to Aminnudin where the Court perceived no urgency as to preclude the application for and
obtention of a search warrant, it was declared that the Tangliben case —
 . . . presented urgency. . . (The evidence revealed) that there was an informer who pointed
to the accused-appellant as carrying marijuana . . . Faced with such on-the-spot information,
the police officers had to act quickly. There was not enough time to secure a search warrant .
. . To require search warrants during on-the-spot apprehensions of drug pushers, illegal
possessors of firearms, jueteng collectors, smugglers of contraband goods, robber, etc.
would make it extremely difficult, if not impossible to contain the crimes with which these
persons are associated.

In Tangliben, therefore, there was in the Court's view sufficient evidence on hand to enable the PC
officers to secure a search warrant, had there been time. But because there was actually no time to
get the warrant, and there were "on-the-spot" indications that Tangliben was then actually
committing a crime, the search of his person and his effects was considered valid.

Two other decisions presented substantially similar circumstance instances: Posadas v. C.A., et al.,
decided on August 2, 1990, and People v. Moises Maspil, Jr., et al., decided on August 20, 1990.
20 21

In the first case, Posadas was seen to be acting suspiciously by two members of the INP, Davao
Metrodiscom, and when he was accosted by the two, who identified themselves as police officers,
he suddenly fled. He was pursued, overtaken and, notwithstanding his resistance, placed in custody.
The buri bag Posadas was then carrying was found to contain a revolver, for which he could produce
no license or authority to possess, four rounds of live ammunition, and a tear gas grenade. He was
prosecuted for illegal possession of firearms and ammunition and convicted after trial. This Court
affirmed Posadas' conviction, holding that there was, in the premises, probable cause for a search
without warrant, i.e., the appellant was acting suspiciously and attempted to flee with the buri bag he
had with him at the time. The Court cited with approval the ruling of the U.S. Federal Supreme Court
in John W. Terry v. State of Ohio, a 1968 case, which the Solicitor General had invoked to justify
22

the search.

In the case of Maspil, et al., a checkpoint was set up by elements of the First Narcotics Regional Unit
of the Narcotics Command at Sayangan, Atok, Benguet, to monitor, inspect and scrutinize vehicles
on the highway going towards Baguio City. This was done because of a confidential report by
informers that Maspil and another person, Bagking, would be transporting a large quantity of
marijuana to Baguio City. In fact, the informers were with the policemen manning the checkpoint. As
expected, at about 2 o'clock in the early morning of November 1, 1986, a jeepney approached the
checkpoint, driven by Maspil, with Bagking as passenger. The officers stopped the vehicle and saw
that on it were loaded 2 plastic sacks, a jute sack, and 3 big round tin cans. When opened, the sacks
and cans were seen to contain what appeared to be marijuana leaves. The policemen thereupon
placed Maspil and Bagking under arrest, and confiscated the leaves which, upon scientific
examination, were verified to be marijuana leaves. The Court upheld the validity of the search thus
conducted, as being incidental to a lawful warrantless arrest, and declared that, as in Tangliben,
23

supra, Maspil and Bagking had been caught in flagrante delicto transporting prohibited drugs at the
time of their arrest. Again, the Court took occasion to distinguish the case from Aminnudin in which,
24

as aforestated, it appeared that the police officers were aware of Aminnudin's identity, his projected
criminal enterprise and the vessel on which he would be arriving, and, equally as importantly, had
sufficient time and opportunity to obtain a search warrant. In the case of Maspil and Bagking, the
Court found that the officers concerned had no exact description of the vehicle the former would be
using to transport marijuana, and no inkling of the definite time of the suspects' arrival, and pointed
out that a jeepney on the road is not the same as a passenger boat on the high seas whose route
and time of arrival are more or less certain, and which ordinarily cannot deviate from or otherwise
alter its course, or select another destination.
25
The most recent decision treating of warrantless search and seizure appears to be People v. Lo Ho
Wing; et al., G.R. No. 88017, decided on January 21, 1991 (per Gancayco, J.). In that case, an
undercover or "deep penetration" agent, Tia, managed somehow to gain acceptance into a group of
suspected drug smugglers, which included Peter Lo and Lim Ching Huat. Tia accompanied Peter Lo
to Guangzhou, China, where he saw him and other person empty the contents of six (6) tins of tea
and replace them with white powder. On their return to Manila with the cans of substituted "tea," they
were met at the airport by Lim. As they were leaving the airport in separate vehicles, they were
intercepted by officers and operatives of the Narcotics Command (NARCOM), who had earlier been
tipped off by Tia, and placed under arrest. As search of the luggage brought in by Tia and Peter Lo,
loaded on the group's vehicles, quickly disclosed the six (6) tin cans containing fifty-six (56) bags of
white crystalline powder which, upon analysis, was identified as metamphetamine. Tia, Lo and Lim
were indicted for violation of the Dangerous Drugs Act of 1972. Tia was discharged as state witness.
Lo and Lim were subsequently convicted and sentenced to life imprisonment. One of the questions
raised by them in this Court on appeal was whether the warrantless search of their vehicles and
personal effects was legal. The Court, citing Manipon, Jr. v. Sandiganbayan, 143 SCRA 267
(1986), held legal the search of the appellants' moving vehicles and the seizure therefrom of the
26

dangerous drug, considering that there was intelligence information, including clandestine reports by
a planted spy actually participating in the activity, that the appellants were bringing prohibited drugs
into the country; that the requirement of obtaining a search warrant "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," and "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. 27

In all five cases, Claudio, Tangliben, Posadas, Maspil, and Lo Ho Wing, facts existed which were
found by the Court as justifying warantless arrests. In Claudio, the arresting officer had secretly
ascertained that the woman he was arresting was in fact in possession of marijuana; he had
personally seen that her bag contained not only vegetables but also a package emitting the odor of
marijuana. In Tangliben, the person arrested and searched was acting suspiciously, and had been
positively pointed to as carrying marijuana. And in both cases, the accused were about to board
passenger buses, making it urgent for the police officers concerned to take quick and decisive
action. In Posadas, the person arrested and searched was acting suspiciously, too, and when
accosted had attempted to flee from the police officers. And in Maspil and Lo Ho Wing, there was
definite information of the precise identity of the persons engaged in transporting prohibited drugs at
a particular time and place.

Now, as regards the precise issue at hand, whether or not the facts in the case at bar make out a
legitimate instance of a warrantless search and seizure, there is, as earlier pointed out, a regrettable
divergence of views among the members of the Court.

Contrary to the conclusion reached by the majority, I believe that the appellant should be absolved
on reasonable doubt. There was in this case no confidential report from, or positive identification by
an informer; no attempt to flee; no bag or package emitting tell-tale odors; no other reasonably
persuasive indications that Malmstedt was at the time in process of perpetrating the offense for
which he was subsequently prosecuted. Hence, when the soldiers searched Malmstedt's pouch and
the bags in his possession, they were simply "fishing" for evidence. It matters not that the search
disclosed that the bags contained prohibited substances, confirming their initial information and
suspicion. The search was not made by virtue of a warrant or as an incident of a lawful warrantless
arrest, i.e., under circumstances sufficient to engender a reasonable belief that some crime was
being or about to be committed, or adjust been committed. There was no intelligent and intentional
waiver of the right against unreasonable searches and seizure. The search was therefore illegal,
since the law requires that there first be a lawful arrest of an individual before a search of his body
and his belongings may licitly be made. The process cannot be reversed, i.e., a search be first
undertaken, and then an arrest effected, on the strength of the evidence yielded by the search. An
arrest made in that case would be unlawful, and the search undertaken as an incident of such an
unlawful arrest, also unlawful.

The fact that when investigated at the headquarters of the Narcotic Command at Camp Dangwa, La
Trinidad, Malmstedt had, it is said, willingly admitted that there were was hashish inside the "teddy
bears" in the luggage found in his possession — an admission subsequently confirmed by laboratory
examination — does not help the cause of the prosecution one bit. Nothing in the record even
remotely suggests that Malmstedt was accorded the rights guaranteed by the Constitution to all
persons under custodial investigation. He was not informed, prior to being interrogated, that he had
28

the "right to remain silent and to have competent and independent counsel preferably of his own
choice," and that if he could not afford the services of counsel, he would be provided with one; not
does it appear at all that he waived those rights "in writing and in the presence of counsel." The
soldiers and the police officers simply went ahead with the investigation of Malmstedt, without
counsel. The admissions elicited from Malmstedt under these circumstances, as the Constitution
clearly states, are "inadmissible in evidence against him.29

The prohibited drugs supposedly discovered in Malmstedt's bags, having been taken in violation of
the constitutional right against unreasonable searches and seizures, are inadmissible against him
"for any purpose in any proceeding." Also pronounced as incompetent evidence against him are the
admissions supposedly made by him without his first being accorded the constitutional rights of
persons under custodial investigation. Without such object evidence and admissions, nothing
remains of the case against Malmstedt.

It may be conceded that, as the Trial Court points out, the evidence presented by Malmstedt in his
defense is feeble, unworthy of credence. This is beside the point; for conformably to the familiar
axiom, the State must rely on the strength of its evidence and not on the weakness of the defense.
The unfortunate fact is that although the existence of the hashish is an objective physical reality that
cannot but be conceded, there is in law no evidence to demonstrate with any degree of persuasion,
much less beyond reasonable doubt, that Malmstedt was engaged in a criminal activity. This is the
paradox created by the disregard of the applicable constitutional safeguards. The tangible benefit is
that the hashish in question has been correctly confiscated and thus effectively withdrawn from
private use.

What is here said should not by any means be taken as a disapproval or a disparagement of the
efforts of the police and military authorities to deter and detect offenses, whether they be possession
of and traffic in prohibited drugs, or some other. Those efforts obviously merit the support and
commendation of the Courts and indeed of every responsible citizen. But those efforts must take
account of the basic rights granted by the Constitution and the law to persons who may fall under
suspicion of engaging in criminal acts. Disregard of those rights may not be justified by the objective
of ferreting out and punishing crime, no matter how eminently desirable attainment of that objective
might be. Disregard of those rights, as this Court has earlier stressed, may result in the escape of
the guilty, and all because the "constable has blundered," rendering the evidence inadmissible even
if truthful or otherwise credible.
30

I therefore vote to reverse the Trial Court's judgment of October 12, 1989 and to acquit the appellant
on reasonable doubt.

CRUZ, J., dissenting:

I join Mr. Justice Andres R. Narvasa in his dissent, which I believe represents the correct application
to the facts of this case of the provisions of the Bill of Rights and the Rules of Court on searches and
seizures. It is consistent with my ponencia in People v. Aminnudin, 163 SCRA 402, and also with
Alih v. Castro, 151 SCRA 279, the latter being a unanimous decision of the Court en banc, and my
dissents in Umil v. Ramos (on warrantless arrests, 187 SCRA 311, Valmonte v. De Villa (on
checkpoints), 178, SCRA 211, 185 SCRA 665, and Guazon v. De Villa (on "zonas"), 181 SCRA 623.

I write this separate opinion merely to remark on an observation made during the deliberation on this
case that some members of the Court seem to be coddling criminals instead of extending its
protection to society, which deserves our higher concern. The inference is that because of our wrong
priorities, criminals are being imprudently let free, to violate our laws again; and it is all our fault.

Believing myself to be among those alluded to, I will say without apology that I do not consider a
person a criminal, until he is convicted by final judgment after a fair trial by a competent and impartial
court. Until then, the Constitution bids us to presume him innocent. He may seem boorish or speak
crudely or sport tattoos or dress weirdly or otherwise fall short of our own standards of propriety and
decorum. None of these makes him a criminal although he may look like a criminal.

It is so easy to condemn a person on the basis of his appearance but it is also so wrong.

On the question before us, it seems to be the inclination of some judges to wink at an illegal search
and seizure as long as the suspect has been actually found in possession of a prohibited article That
fact will retroactively validate the violation of the Bill of Rights for after all, as they would rationalize,
the suspect is a criminal. What matters to them is the fact of illegal possession, not the fact of illegal
search and seizure.

This kind of thinking takes us back to the intolerant days of Moncado v. People's Court, 80 Phil. 1,
which was discredited in Stonehill v. Diokno, 20 SCRA 383, even before it was definitely rejected by
an express provision in the 1973 Constitution. That provision, which has been retained in the present
Constitution, again explicitly declares that any evidence illegally obtained "shall be inadmissible for
any purpose in any proceeding."

The fruit of the poisonous tree should not be allowed to poison our system of criminal justice. In the
1âwphi1

case at bar, the search was made at a checkpoint established for the preposterous reason that the
route was being used by marijuana dealers and on an individual who had something bulging at his
waist that excited the soldier's suspicion. Was that probable cause? The ponencia notes that the
military had advance information that a Caucasian was coming from the Sagada with prohibited
drugs in his possession. This is what the military says now, after the fact, to justify the warrantless
search. It is so easy to make such a claim, and I am surprised that the majority should readily accept
it.

The conclusion that there was probable cause may have been influenced by the subsequent
discovery that the 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.

In Olmstead v. U.S., 277 U.S. 438, Justice Holmes said sixty-four years ago:

. . . It is desirable that criminals should be detected, and to that end that all available
evidence should be used. It is also desirable that the government should not itself foster and
1avvphi1

pay for other crimes, when they are the means by which the evidence is to be obtained. If it
 pays its officers for having got evidence by crime, I do not see why it may not as well pay
them for getting it in the same way, and I can attach no importance to protestations of
disapproval if it knowingly accepts and pays and announces that in the future it will pay for
the fruits. We have to choose, and for my part I think it a less evil that some criminals should
escape than that the government should play an ignoble part.

If by deterring the government from playing "an ignoble part," I am "coddling criminals," I welcome
the accusation and take pride in it. I would rather err in favor of the accused who is impaled with
outlawed evidence than exalt order at the price of liberty.

RODEL LUZ y ONG, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
1

DECISION

SERENO, J.:

This is a Petition for Review on Certiorari under Rule 45 seeking to set aside the Court of Appeals
(CA) Decision in CA-G.R. CR No. 32516 dated 18 February 2011 and Resolution dated 8 July 2011.
2

Statement of the Facts and of the Case

The facts, as found by the Regional Trial Court (RTC), which sustained the version of the
prosecution, are as follows:

PO2 Emmanuel L. Alteza, who was then assigned at the Sub-Station 1 of the Naga City Police
Station as a traffic enforcer, substantially testified that on March 10, 2003 at around 3:00 o’clock in
the morning, he saw the accused, who was coming from the direction of Panganiban Drive and
going to Diversion Road, Naga City, driving a motorcycle without a helmet; that this prompted him to
flag down the accused for violating a municipal ordinance which requires all motorcycle drivers to
wear helmet (sic) while driving said motor vehicle; that he invited the accused to come inside their
sub-station since the place where he flagged down the accused is almost in front of the said sub-
station; that while he and SPO1 Rayford Brillante were issuing a citation ticket for violation of
municipal ordinance, he noticed that the accused was uneasy and kept on getting something from
his jacket; that he was alerted and so, he told the accused to take out the contents of the pocket of
his jacket as the latter may have a weapon inside it; that the accused obliged and slowly put out the
contents of the pocket of his jacket which was a nickel-like tin or metal container about two (2) to
three (3) inches in size, including two (2) cellphones, one (1) pair of scissors and one (1) Swiss
knife; that upon seeing the said container, he asked the accused to open it; that after the accused
opened the container, he noticed a cartoon cover and something beneath it; and that upon his
instruction, the accused spilled out the contents of the container on the table which turned out to be
four (4) plastic sachets, the two (2) of which were empty while the other two (2) contained
suspected shabu. 3
Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a plea of "Not guilty" to the charge
of illegal possession of dangerous drugs. Pretrial was terminated on 24 September 2003, after
which, trial ensued.

During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic chemist testified for the
prosecution. On the other hand, petitioner testified for himself and raised the defense of planting of
evidence and extortion.

In its 19 February 2009 Decision, the RTC convicted petitioner of illegal possession of dangerous
4

drugs committed on 10 March 2003. It found the prosecution evidence sufficient to show that he had
5

been lawfully arrested for a traffic violation and then subjected to a valid search, which led to the
discovery on his person of two plastic sachets later found to contain shabu. The RTC also found his
defense of frame-up and extortion to be weak, self-serving and unsubstantiated. The dispositive
portion of its Decision held:

WHEREFORE, judgment is hereby rendered, finding accused RODEL LUZ y ONG GUILTY beyond
reasonable doubt for the crime of violation of Section 11, Article II of Republic Act No. 9165 and
sentencing him to suffer the indeterminate penalty of imprisonment ranging from twelve (12) years
and (1) day, as minimum, to thirteen (13) years, as maximum, and to pay a fine of Three Hundred
Thousand Pesos (₱ 300,000.00).

The subject shabu is hereby confiscated for turn over to the Philippine Drug Enforcement Agency for
its proper disposition and destruction in accordance with law.

SO ORDERED. 6

Upon review, the CA affirmed the RTC’s Decision.

On 12 September 2011, petitioner filed under Rule 45 the instant Petition for Review on Certiorari
dated 1 September 2011. In a Resolution dated 12 October 2011, this Court required respondent to
file a comment on the Petition. On 4 January 2012, the latter filed its Comment dated 3 January
2012.

Petitioner raised the following grounds in support of his Petition:

(i) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT SHABU IS INVALID.

(ii) THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY OF THE

POLICE OFFICER CANNOT BE RELIED UPON IN THIS CASE.

(iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE ALLEGED SUBJECT

SPECIMEN HAS BEEN COMPROMISED.

(iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT PROVEN BEYOND THE
REASONABLE DOUBT (sic). 7

Petitioner claims that there was no lawful search and seizure, because there was no lawful arrest.
He claims that the finding that there was a lawful arrest was erroneous, since he was not even
issued a citation ticket or charged with violation of the city ordinance. Even assuming there was a
valid arrest, he claims that he had never consented to the search conducted upon him.
On the other hand, finding that petitioner had been lawfully arrested, the RTC held thus:

It is beyond dispute that the accused was flagged down and apprehended in this case by Police
Officers Alteza and Brillante for violation of City Ordinance No. 98-012, an ordinance requiring the
use of crash helmet by motorcycle drivers and riders thereon in the City of Naga and prescribing
penalties for violation thereof. The accused himself admitted that he was not wearing a helmet at the
time when he was flagged down by the said police officers, albeit he had a helmet in his possession.
Obviously, there is legal basis on the part of the apprehending officers to flag down and arrest the
accused because the latter was actually committing a crime in their presence, that is, a violation of
City Ordinance No. 98-012. In other words, the accused, being caught in flagrante delicto violating
the said Ordinance, he could therefore be lawfully stopped or arrested by the apprehending officers.
x x x.
8

We find the Petition to be impressed with merit, but not for the particular reasons alleged. 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. 9

First, there was no valid arrest of petitioner. When he was flagged down for committing a traffic
violation, he was not, ipso facto and solely for this reason, arrested.

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
10

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. 11

Under R.A. 4136, or the Land Transportation and Traffic Code, the general procedure for dealing
with a traffic violation is not the arrest of the offender, but the confiscation of the driver’s license of
the latter:

SECTION 29. Confiscation of Driver's License. — Law enforcement and peace officers of other
agencies duly deputized by the Director shall, in apprehending a driver for any violation of this Act or
any regulations issued pursuant thereto, or of local traffic rules and regulations not contrary to any
provisions of this Act, confiscate the license of the driver concerned and issue a receipt prescribed
and issued by the Bureau therefor which shall authorize the driver to operate a motor vehicle for a
period not exceeding seventy-two hours from the time and date of issue of said receipt. The period
so fixed in the receipt shall not be extended, and shall become invalid thereafter. Failure of the driver
to settle his case within fifteen days from the date of apprehension will be a ground for the
suspension and/or revocation of his license.

Similarly, the Philippine National Police (PNP) Operations Manual provides the following procedure
12

for flagging down vehicles during the conduct of checkpoints:

SECTION 7. Procedure in Flagging Down or Accosting Vehicles While in Mobile Car. This rule is a
general concept and will not apply in hot pursuit operations. The mobile car crew shall undertake the
following, when applicable: x x x
m. If it concerns traffic violations, immediately issue a Traffic Citation Ticket (TCT) or Traffic Violation
Report (TVR). Never indulge in prolonged, unnecessary conversation or argument with the driver or
any of the vehicle’s occupants;

At the time that he was waiting for PO3 Alteza to write his citation ticket, petitioner could not be said
to have been "under arrest." There was no intention on the part of PO3 Alteza to arrest him, deprive
him of his liberty, or take him into custody. Prior to the issuance of the ticket, the period during which
petitioner was at the police station may be characterized merely as waiting time. In fact, as found by
the trial court, PO3 Alteza himself testified that the only reason they went to the police sub-station
was that petitioner had been flagged down "almost in front" of that place. Hence, it was only for the
sake of convenience that they were waiting there. There was no intention to take petitioner into
custody.

In Berkemer v. McCarty, the United States (U.S.) Supreme Court discussed at length whether the
13

roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered
custodial interrogation. The Court held that, such questioning does not fall under custodial
interrogation, nor can it be considered a formal arrest, by virtue of the nature of the questioning, the
expectations of the motorist and the officer, and the length of time the procedure is conducted. It
ruled as follows:

It must be acknowledged at the outset that a traffic stop significantly curtails the "freedom of action"
of the driver and the passengers, if any, of the detained vehicle. Under the law of most States, it is a
crime either to ignore a policeman’s signal to stop one’s car or, once having stopped, to drive away
without permission. x x x

However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized
by respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but
only in those types of situations in which the concerns that powered the decision are implicated.
Thus, we must decide whether a traffic stop exerts upon a detained person pressures that
sufficiently impair his free exercise of his privilege against self-incrimination to require that he be
warned of his constitutional rights.

Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced
"to speak where he would not otherwise do so freely," Miranda v. Arizona, 384 U. S., at 467. First,
detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast
majority of roadside detentions last only a few minutes. A motorist’s expectations, when he sees a
policeman’s light flashing behind him, are that he will be obliged to spend a short period of time
answering questions and waiting while the officer checks his license and registration, that he may
then be given a citation, but that in the end he most likely will be allowed to continue on his way. In
this respect, questioning incident to an ordinary traffic stop is quite different from stationhouse
interrogation, which frequently is prolonged, and in which the detainee often is aware that
questioning will continue until he provides his interrogators the answers they seek. See id., at 451.

Second, circumstances associated with the typical traffic stop are not such that the motorist feels
completely at the mercy of the police. To be sure, the aura of authority surrounding an armed,
uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue
a citation, in combination, exert some pressure on the detainee to respond to questions. But other
aspects of the situation substantially offset these forces. Perhaps most importantly, the typical traffic
stop is public, at least to some degree. x x x

In both of these respects, the usual traffic stop is more analogous to a so-called "Terry stop," see
Terry v. Ohio, 392 U. S. 1 (1968), than to a formal arrest. x x x The comparatively nonthreatening
character of detentions of this sort explains the absence of any suggestion in our opinions that Terry
stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops
prompts us to hold that persons temporarily detained pursuant to such stops are not "in custody" for
the purposes of Miranda.

xxx xxx xxx

We are confident that the state of affairs projected by respondent will not come to pass. It is settled
that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of
action is curtailed to a "degree associated with formal arrest." California v. Beheler, 463 U. S. 1121,
1125 (1983) (per curiam). If a motorist who has been detained pursuant to a traffic stop thereafter is
subjected to treatment that renders him "in custody" for practical purposes, he will be entitled to the
full panoply of protections prescribed by Miranda. See Oregon v. Mathiason, 429 U. S. 492, 495
(1977) (per curiam). (Emphasis supplied.)

The U.S. Court in Berkemer thus ruled that, since the motorist therein was only subjected to modest
questions while still at the scene of the traffic stop, he was not at that moment placed under custody
(such that he should have been apprised of his Miranda rights), and neither can treatment of this sort
be fairly characterized as the functional equivalent of a formal arrest. Similarly, neither can petitioner
here be considered "under arrest" at the time that his traffic citation was being made.

It also appears that, according to City Ordinance No. 98-012, which was violated by petitioner, the
failure to wear a crash helmet while riding a motorcycle is penalized by a fine only. Under the Rules
of Court, a warrant of arrest need not be issued if the information or charge was filed for an offense
penalized by a fine only. It may be stated as a corollary that neither can a warrantless arrest be
made for such an offense.

This ruling does not imply that there can be no arrest for a traffic violation. Certainly, when there is
an intent on the part of the police officer to deprive the motorist of liberty, or to take the latter into
custody, the former may be deemed to have arrested the motorist. In this case, however, the
officer’s issuance (or intent to issue) a traffic citation ticket negates the possibility of an arrest for the
same violation.

Even if one were to work under the assumption that petitioner was deemed "arrested" upon being
flagged down for a traffic violation and while awaiting the issuance of his ticket, then the
requirements for a valid arrest were not complied with.

This Court has held that at the time a person is arrested, it shall be the duty of the arresting officer to
inform the latter of the reason for the arrest and must show that person the warrant of arrest, if any.
Persons shall be informed of their constitutional rights to remain silent and to counsel, and that any
statement they might make could be used against them. It may also be noted that in this case, these
14

constitutional requirements were complied with by the police officers only after petitioner had been
arrested for illegal possession of dangerous drugs.

In Berkemer, the U.S. Court also noted that the Miranda warnings must also be given to a person
apprehended due to a traffic violation:

The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or
trick captive suspects into confessing, to relieve the "inherently compelling pressures" "generated by
the custodial setting itself," "which work to undermine the individual’s will to resist," and as much as
possible to free courts from the task of scrutinizing individual cases to try to determine, after the fact,
whether particular confessions were voluntary. Those purposes are implicated as much by in-
custody questioning of persons suspected of misdemeanors as they are by questioning of persons
suspected of felonies.

If it were true that petitioner was already deemed "arrested" when he was flagged down for a traffic
violation and while he waiting for his ticket, then there would have been no need for him to be
arrested for a second time—after the police officers allegedly discovered the drugs—as he was
already in their custody.

Second, there being no valid arrest, the warrantless search that resulted from it was likewise illegal.

The following are the instances when a warrantless search is allowed: (i) a warrantless search
incidental to a lawful arrest; (ii) search of evidence in "plain view;" (iii) search of a moving vehicle; (iv)
consented warrantless search; (v) customs search; (vi) a "stop and frisk" search; and (vii) exigent
and emergency circumstances. None of the above-mentioned instances, especially a search
15

incident to a lawful arrest, are applicable to this case.

It must be noted that the evidence seized, although alleged to be inadvertently discovered, was not
in "plain view." It was actually concealed inside a metal container inside petitioner’s pocket. Clearly,
the evidence was not immediately apparent. 16

Neither was there a consented warrantless search. Consent to a search is not to be lightly inferred,
but shown by clear and convincing evidence. It must be voluntary in order to validate an otherwise
17

illegal search; that is, the consent must be unequivocal, specific, intelligently given and
uncontaminated by any duress or coercion. While the prosecution claims that petitioner acceded to
the instruction of PO3 Alteza, this alleged accession does not suffice to prove valid and intelligent
consent. In fact, the RTC found that petitioner was merely "told" to take out the contents of his
pocket.18

Whether consent to the search was in fact voluntary is a question of fact to be determined from the
totality of all the circumstances. Relevant to this determination are the following characteristics of the
person giving consent and the environment in which consent is given: (1) the age of the defendant;
(2) whether the defendant was in a public or a secluded location; (3) whether the defendant objected
to the search or passively looked on; (4) the education and intelligence of the defendant; (5) the
presence of coercive police procedures; (6) the defendant’s belief that no incriminating evidence
would be found; (7) the nature of the police questioning; (8) the environment in which the
questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. It
is the State that has the burden of proving, by clear and positive testimony, that the necessary
consent was obtained, and was freely and voluntarily given. In this case, all that was alleged was
19

that petitioner was alone at the police station at three in the morning, accompanied by several police
officers. These circumstances weigh heavily against a finding of valid consent to a warrantless
search.

Neither does the search qualify under the "stop and frisk" rule. While the rule normally applies when
a police officer observes suspicious or unusual conduct, which may lead him to believe that a
criminal act may be afoot, the stop and frisk is merely a limited protective search of outer clothing for
weapons. 20

In Knowles v. Iowa, the U.S. Supreme Court held that when a police officer stops a person for
21

speeding and correspondingly issues a citation instead of arresting the latter, this procedure does
not authorize the officer to conduct a full search of the car. The Court therein held that there was no
justification for a full-blown search when the officer does not arrest the motorist. Instead, police
officers may only conduct minimal intrusions, such as ordering the motorist to alight from the car or
doing a patdown:

In Robinson, supra, we noted the two historical rationales for the "search incident to arrest"
exception: (1) the need to disarm the suspect in order to take him into custody, and (2) the need to
preserve evidence for later use at trial. x x x But neither of these underlying rationales for the search
incident to arrest exception is sufficient to justify the search in the present case.

We have recognized that the first rationale—officer safety—is "‘both legitimate and weighty,’" x x x
The threat to officer safety from issuing a traffic citation, however, is a good deal less than in the
case of a custodial arrest. In Robinson, we stated that a custodial arrest involves "danger to an
officer" because of "the extended exposure which follows the taking of a suspect into custody and
transporting him to the police station." 414 U. S., at 234-235. We recognized that "[t]he danger to the
police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty,
and not from the grounds for arrest." Id., at 234, n. 5. A routine traffic stop, on the other hand, is a
relatively brief encounter and "is more analogous to a so-called ‘Terry stop’ . . . than to a formal
arrest." Berkemer v. McCarty, 468 U. S. 420, 439 (1984). See also Cupp v. Murphy, 412 U. S. 291,
296 (1973) ("Where there is no formal arrest . . . a person might well be less hostile to the police and
less likely to take conspicuous, immediate steps to destroy incriminating evidence").

This is not to say that the concern for officer safety is absent in the case of a routine traffic stop. It
1âwphi1

plainly is not. See Mimms, supra, at 110; Wilson, supra, at 413-414. But while the concern for officer
safety in this context may justify the "minimal" additional intrusion of ordering a driver and
passengers out of the car, it does not by itself justify the often considerably greater intrusion
attending a full fieldtype search. Even without the search authority Iowa urges, officers have other,
independent bases to search for weapons and protect themselves from danger. For example, they
may order out of a vehicle both the driver, Mimms, supra, at 111, and any passengers, Wilson,
supra, at 414; perform a "patdown" of a driver and any passengers upon reasonable suspicion that
they may be armed and dangerous, Terry v. Ohio, 392 U. S. 1 (1968); conduct a "Terry patdown" of
the passenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous
and may gain immediate control of a weapon, Michigan v. Long, 463 U. S. 1032, 1049 (1983); and
even conduct a full search of the passenger compartment, including any containers therein, pursuant
to a custodial arrest, New York v. Belton, 453 U. S. 454, 460 (1981).

Nor has Iowa shown the second justification for the authority to search incident to arrest—the need
to discover and preserve evidence. Once Knowles was stopped for speeding and issued a citation,
all the evidence necessary to prosecute that offense had been obtained. No further evidence of
excessive speed was going to be found either on the person of the offender or in the passenger
compartment of the car. (Emphasis supplied.)

The foregoing considered, petitioner must be acquitted. While he may have failed to object to the
illegality of his arrest at the earliest opportunity, a waiver of an illegal warrantless arrest does not,
however, mean a waiver of the inadmissibility of evidence seized during the illegal warrantless
arrest.
22

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 said
23

right 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, still it must be exercised and the law implemented
without contravening the constitutional rights of citizens, for the enforcement of no statute is of
sufficient importance to justify indifference to the basic principles of government. 24
The subject items seized during the illegal arrest are inadmissible. The drugs are the very corpus
25

delicti of the crime of illegal possession of dangerous drugs. Thus, their inadmissibility precludes
conviction and calls for the acquittal of the accused.
26

WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision of the Court of Appeals in
CA-G.R. CR No. 32516 affirming the judgment of conviction dated 19 February 2009 of the Regional
Trial Court, 5th Judicial Region, Naga City, Branch 21, in Criminal Case No. RTC 2003-0087, is
hereby REVERSED and SET ASIDE. Petitioner Rodel Luz y Ong is hereby ACQUITTED and
ordered immediately released from detention, unless his continued confinement is warranted by
some other cause or ground.

SO ORDERED.

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, of the Regional Trial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of selling
1

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. He reported the successful operation to T/Sgt. Belarga on the same
7

day. Whereupon, T/Sgt. Belarga conducted a conference to organize a buy-bust operation for the
8

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. Sgt. Ani was given a marked
10

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. Sgt. Ani11

approached the house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt. Ani
asked him for some more marijuana. Sgt. Ani gave him the marked P20.00 bill and the appellant
12

went inside the house and brought back two paper wrappers containing marijuana which he handed
to Sgt. Ani. From his position, Sgt. Ani could see that there were other people in the house.
13 14

After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged
signal of raising his right hand. The NARCOM agents, accompanied by Sgt. Ani, went inside the
15

house and made the arrest. The agents searched the appellant and unable to find the marked
money, they asked him where it was. The appellant said that he gave it to his wife. 16

The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-
bust operation, which resulted in the apprehension, prosecution and subsequent conviction of the
appellant, to be direct, lucid and forthright. Being totally untainted by contradictions in any of the
material points, it deserves credence.

The contention that the appellant could not have transacted with Sgt. Ani because they do not know
each other is without merit. The day before the
buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of
marijuana from the appellant. Through this previous transaction, Sgt. Ani was able to gain the
appellant's confidence for the latter to sell more marijuana to Sgt. Ani the following day, during the
buy-bust operation. Moreover, the Court has held that what matters is not an existing familiarity
between the buyer and the seller, for quite often, the parties to the transaction may be strangers, but
their agreement and the acts constituting the sale and delivery of the marijuana. 17

The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the
appellant to sell marijuana while his wife, cousin and manicurist were present. But the place of the
commission of the crime of selling prohibited drugs has been held to be not crucial and the
18

presence of other people apart from the buyer and seller will not necessarily prevent the
consummation of the illegal sale. As the Court observed in People v. Paco, these factors may
19

sometimes camouflage the commission of the crime. In the instant case, the fact that the other
people inside the appellant's house are known to the appellant may have given him some assurance
that these people will not report him to the authorities.

The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt. Belarga.
The appellant submits that since T/Sgt. Belarga admitted that he was about 90 meters away from
Sgt. Ani and the appellant, he could not have possibly witnessed the sale. The appellant
invokes People v.
Ale where the Court observed that from a distance of 10-15 meters, a policeman cannot distinguish
20

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; (2) later that
23

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; (3) T/Sgt. Belarga then organized a team to conduct a
24

buy-bust operation the following day; (4) on December 14, 1989, T/Sgt. Belarga led a team of
25

NARCOM agents who went to Suterville, Zamboanga City; (5) T/Sgt. Belarga gave a P20.00
26

marked bill to Sgt. Ani which was to be used in the buy-bust operation; (6) upon the arrival of the
27

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; the28

appellant met Sgt. Ani and an exchange of articles took place. 29

The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani.
Additionally, the Court has ruled that the fact that the police officers who accompanied the poseur-
buyer were unable to see exactly what the appellant gave the poseur-buyer because of their
distance or position will not be fatal to the prosecution's case provided there exists other evidence,
30

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. Thereafter, T/Sgt.
31

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." They asked the appellant
32

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, declares inadmissible, any evidence obtained in violation of the freedom from
34

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, the Court stated that. "[t]he most
36

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 . . . " Hence, in a
38

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. Objects in the "plain view" of an officer who has the right to be in the position to have that
40

view are subject to seizure and may be presented as evidence. 41

In Ker v. California police officers, without securing a search warrant but having information that the
42

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. The U.S. Supreme Court ruled that the warrantless seizure of the marijuana was
43

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. Furthermore, the U.S. Supreme Court stated the following limitations on the application of
45

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. Stated differently, it must be immediately apparent to the police
47

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

UNITED LABORATORIES, INC., petitioner,

vs.
ERNESTO ISIP and/or SHALIMAR PHILIPPINES and/or OCCUPANTS, Shalimar Building, No.
1571, Aragon Street, Sta. Cruz, Manila, respondents.

DECISION

CALLEJO, SR., J.:

Rolando H. Besarra, Special Investigator III of the National Bureau of Investigation (NBI), filed an
application, in the Regional Trial Court (RTC) of Manila, for the issuance of a search warrant
concerning the first and second floors of the Shalimar Building, located at No. 1571, Aragon Street
(formerly No. 1524, Lacson Avenue, Sta. Cruz, Manila) occupied and/or used by Shalimar
Philippines, owned/operated by Ernesto Isip; and for the seizure of the following for violation of
Section 4(a), in relation to Section 8, of Republic Act (R.A.) No. 8203:

a. Finished or unfinished products of UNITED LABORATORIES (UNILAB), particularly

REVICON multivitamins;

b. Sundry items such as tags, labels, boxes, packages, wrappers, receptacles,

advertisements and other paraphernalia used in the offering for sale, sale and/or distribution
of counterfeit REVICON multivitamins;

c. Sales invoices, delivery receipts, official receipts, ledgers, journals, purchase orders and
all other books of accounts and documents used in recording the manufacture and/or
importation, distribution and/or sales of counterfeit REVICON multivitamins.1

The application was docketed as People v. Ernesto Isip, et al., Respondents, Search Warrant Case
No. 04-4916 and raffled to Branch 24 of the court. Appended thereto were the following: (1) a
sketch2 showing the location of the building to be searched; (2) the affidavit3 of Charlie Rabe of the
Armadillo Protection and Security Agency hired by United Laboratories, Inc. (UNILAB), who
allegedly saw the manufacture, production and/or distribution of fake drug products such as Revicon
by Shalimar Philippines; (3) the letter-request of UNILAB, the duly licensed and exclusive
manufacturer and/or distributor of Revicon and Disudrin, for the monitoring of the unauthorized
production/manufacture of the said drugs and, if warranted, for their seizure; (4) the letter-
complaint4 of UNILAB issued through its Director of the Security and Safety Group; and (5) the joint
affidavit5 of NBI Agents Roberto Divinagracia and Rolando Besarra containing the following
allegations:

2. When learned that an Asset was already placed by ARMADILLO PROTECTIVE AND
SECURITY AGENCY named CHARLIE RABE, who was renting a room since November
2003, at the said premises located at No. 1571 Aragon St., Sta. Cruz, Manila. MR. RABE
averred that the owner of the premises is a certain MR. ERNESTO ISIP and that the said
premises which is known as SHALIMAR PHILIPPINES, Shalimar Building, are being used to
manufacture counterfeit UNILAB products, particularly REVICON multivitamins, which was
already patented by UNILAB since 1985;

3. Upon verification of the report, we found out that the said premises is a six-story structure,
with an additional floor as a penthouse, and colored red-brown. It has a tight security
arrangement wherein non-residents are not allowed to enter or reconnoiter in the premises;

4. We also learned that its old address is No. 1524 Lacson Avenue, Sta. Cruz, Manila, and
has a new address as 1571 Aragon St., Sta. Cruz, Manila; and that the area of counterfeiting
operations are the first and second floors of Shalimar Building;

5. Since we cannot enter the premises, we instructed the Asset to take pictures of the area
especially the places wherein the clandestine manufacturing operations were being held. At
a peril to his well-being and security, the Asset was able to take photographs herein
incorporated into this Search Warrant Application.6

A representative from UNILAB, Michael Tome, testified during the hearing on the application for the
search warrant. After conducting the requisite searching questions, the court granted the application
and issued Search Warrant No. 04-4916 dated January 27, 2004, directing any police officer of the
law to conduct a search of the first and second floors of the Shalimar Building located at No. 1571,
Aragon Street, Sta. Cruz, Manila. The court also directed the police to seize the following items:
 a. Finished or unfinished products of UNITED LABORATORIES (UNILAB), particularly
REVICON multivitamins;

b. Sundry items such as tags, labels, boxes, packages, wrappers, receptacles,

advertisements and other paraphernalia used in the offering for sale, sale and/or distribution
of counterfeit REVICON multivitamins;

c. Sales invoices, delivery receipts, official receipts, ledgers, journals, purchase orders and
all other books of accounts and documents used in recording the manufacture and/or
importation, distribution and/or sales of counterfeit REVICON multivitamins.7

The court also ordered the delivery of the seized items before it, together with a true inventory
thereof executed under oath.

The search warrant was implemented at 4:30 p.m. on January 27, 2004 by NBI agents Besarra and
Divinagracia, in coordination with UNILAB employees. No fake Revicon multivitamins were found;
instead, there were sealed boxes at the first and second floors of the Shalimar Building which, when
opened by the NBI agents in the presence of respondent Isip, contained the following:

QUANTITY/UNIT DESCRIPTION
792 Bottles Disudrin 60 ml.
30 Boxes (100 pieces each) Inoflox 200 mg.8

NBI Special Investigator Divinagracia submitted an inventory of the things seized in which he
declared that the search of the first and second floors of the Shalimar Building at No. 1571, Aragon
Street, Sta. Cruz, Manila, the premises described in the warrant, was done in an orderly and
peaceful manner. He also filed a Return of Search Warrant,9 alleging that no other articles/items
other than those mentioned in the warrant and inventory sheet were seized. The agent prayed that
of the items seized, ten boxes of Disudrin 60 ml., and at least one box of Inoflox be turned over to
the custody of the Bureau of Food and Drugs (BFAD) for examination.10 The court issued an order
granting the motion, on the condition that the turn over be made before the court, in the presence of
a representative from the respondents and the court.11

The respondents filed an "Urgent Motion to Quash the Search Warrant or to Suppress
Evidence."12 They contended that the implementing officers of the NBI conducted their search at the
first, second, third and fourth floors of the building at No. 1524-A, Lacson Avenue, Sta. Cruz, Manila,
where items in "open display" were allegedly found. They pointed out, however, that such premises
was different from the address described in the search warrant, the first and second floors of the
Shalimar Building located at No. 1571, Aragon Street, Sta. Cruz, Manila. The respondents, likewise,
asserted that the NBI officers seized Disudrin and Inoflox products which were not included in the list
of properties to be seized in the search warrant.

UNILAB, in collaboration with the NBI, opposed the motion, insisting that the search was limited to
the first and second floors of the Shalimar building located at the corner of Aragon Street and
Lacson Avenue, Sta. Cruz, Manila. They averred that, based on the sketch appended to the search
warrant application, Rabe’s affidavit, as well as the joint affidavit of Besarra and Divinagracia, the
building where the search was conducted was located at No. 1571, Aragon Street corner Lacson
Avenue, Sta. Cruz, Manila. They pointed out that No. 1524 Lacson Avenue, Sta. Cruz, Manila was
the old address, and the new address was No. 1571, Aragon Street, Sta. Cruz, Manila. They
maintained that the warrant was not implemented in any other place.13
In reply, the respondents insisted that the items seized were different from those listed in the search
warrant. They also claimed that the seizure took place in the building located at No. 1524-A which
was not depicted in the sketch of the premises which the applicant submitted to the trial court.14 In
accordance with the ruling of this Court in People v. Court of Appeals,15 the respondents served a
copy of their pleading on UNILAB.16

On March 11, 2004, the trial court issued an Order17 granting the motion of the respondents, on the
ground that the things seized, namely, Disudrin and Inoflox, were not those described in the search
warrant. On March 16, 2004, the trial court issued an advisory18 that the seized articles could no
longer be admitted in evidence against the respondents in any proceedings, as the search warrant
had already been quashed.

UNILAB, through the Ureta Law Office, filed a motion, in collaboration with the NBI agents, for the
reconsideration of the order, contending that the ground used by the court in quashing the warrant
was not that invoked by the respondents, and that the seizure of the items was justified by the plain
view doctrine. The respondents objected to the appearance of the counsel of UNILAB, contending
that the latter could not appear for the People of the Philippines. The respondents moved that the
motion for reconsideration of UNILAB be stricken off the record. Disputing the claims of UNILAB,
they insisted that the items seized were contained in boxes at the time of the seizure at No. 1524-A,
Lacson Avenue corner Aragon Street, Sta. Cruz, Manila, and were not apparently incriminating on
plain view. Moreover, the seized items were not those described and itemized in the search warrant
application, as well as the warrant issued by the court itself. The respondents emphasized that the
Shalimar Laboratories is authorized to manufacture galenical preparations of the following products:

Products:

- Povidone Iodine

- Chamomile Oil

- Salicylic Acid 10 g.

- Hydrogen Peroxide 3% Topical Solution

- Aceite de Alcamforado

- Aceite de Manzanilla19

In a manifestation and opposition, the respondents assailed the appearance of the counsel of
UNILAB, and insisted that it was not authorized to appear before the court under the Rules of Court,
and to file pleadings. They averred that the BFAD was the authorized government agency to file an
application for a search warrant.

In its counter-manifestation, UNILAB averred that it had the personality to file the motion for
reconsideration because it was the one which sought the filing of the application for a search
warrant; besides, it was not proscribed by Rule 126 of the Revised Rules of Criminal Procedure from
participating in the proceedings and filing pleadings. The only parties to the case were the NBI and
UNILAB and not the State or public prosecutor. UNILAB also argued that the offended party, or the
holder of a license to operate, may intervene through counsel under Section 16 of Rule 110, in
relation to Section 7(e), of the Rules of Criminal Procedure.
UNILAB prayed that an ocular inspection be conducted of the place searched by the NBI
officers.20 In their rejoinder, the respondents manifested that an ocular inspection was the option to
look forward to.21 However, no such ocular inspection of the said premises was conducted.

In the meantime, the BFAD submitted to the court the result of its examination of the Disudrin and
Inoflox samples which the NBI officers seized from the Shalimar Building. On its examination of the
actual component of Inoflox, the BFAD declared that the substance failed the test.22 The BFAD,
likewise, declared that the examined Disudrin syrup failed the test.23 The BFAD had earlier issued
the following report:

PRODUCT NAME Manufacturer L.N. E.D. FINDINGS

1.Phenylpropanolamine Unilab 21021552 3-06 -Registered, however,
(Disudrin) label/physical appearance
12.5 mg./5mL Syrup does not conform with the
BFAD approved label/
registered specifications.
2.Ofloxacin (Inoflox) Unilab 99017407 3-05 -Registered, however,
200 mg. tablet. label/physical appearance
does not conform with the
BFAD approved label/
registered specifications.24

On May 28, 2004, the trial court issued an Order25 denying the motion for reconsideration filed by
UNILAB. The court declared that:

The Search Warrant is crystal clear: The seizing officers were only authorized to take possession of
"finished or unfinished products of United Laboratories (UNILAB), particularly REVICON
Multivitamins, and documents evidencing the counterfeit nature of said products. The
Receipt/Inventory of Property Seized pursuant to the warrant does not, however, include REVICON
but other products. And whether or not these seized products are imitations of UNILAB items is
beside the point. No evidence was shown nor any was given during the proceedings on the
application for search warrant relative to the seized products.

On this score alone, the search suffered from a fatal infirmity and, hence, cannot be sustained.26

UNILAB, thus, filed the present petition for review on certiorari under Rule 45 of the Rules of Court,
where the following issues are raised:

Whether or not the seized 792 bottles of Disudrin 60 ml. and 30 boxes of Inoflox 200 mg. are
INADMISSIBLE as evidence against the respondents because they constitute the "fruit of the
poisonous tree" or, CONVERSELY, whether or not the seizure of the same counterfeit drugs is
justified and lawful under the "plain view" doctrine and, hence, the same are legally admissible as
evidence against the respondents in any and all actions?27

The petitioner avers that it was deprived of its right to a day in court when the trial court quashed the
search warrant for a ground which was not raised by the respondents herein in their motion to quash
the warrant. As such, it argues that the trial court ignored the issue raised by the respondents. The
petitioner insists that by so doing, the RTC deprived it of its right to due process. The petitioner
asserts that the description in the search warrant of the products to be seized – "finished or
unfinished products of UNILAB" – is sufficient to include counterfeit drugs within the premises of the
respondents not covered by any license to operate from the BFAD, and/or not authorized or licensed
to manufacture, or repackage drugs produced or manufactured by UNILAB. Citing the ruling of this
Court in Padilla v. Court of Appeals,28 the petitioner asserts that the products seized were in plain
view of the officers; hence, may be seized by them. The petitioner posits that the respondents
themselves admitted that the seized articles were in open display; hence, the said articles were in
plain view of the implementing officers.

In their comment on the petition, the respondents aver that the petition should have been filed before
the Court of Appeals (CA) because factual questions are raised. They also assert that the petitioner
has no locus standi to file the petition involving the validity and the implementation of the search
warrant. They argue that the petitioner merely assisted the NBI, the BFAD and the Department of
Justice; hence, it should have impleaded the said government agencies as parties-petitioners. The
petition should have been filed by the Office of the Solicitor General (OSG) in behalf of the NBI
and/or the BFAD, because under the 1987 Revised Administrative Code, the OSG is mandated to
represent the government and its officers charged in their official capacity in cases before the
Supreme Court. The respondents further assert that the trial court may consider issues not raised by
the parties if such consideration would aid the court in the just determination of the case.

The respondents, likewise, maintain that the raiding team slashed the sealed boxes so fast even
before respondent Isip could object. They argue that the seizure took place at No. 1524-A, Lacson
Avenue, Sta. Cruz, Manila covered by Transfer Certificate of Title (TCT) No. 220778, and not at No.
1571, Aragon Street, Sta. Cruz, Manila covered by TCT No. 174412 as stated in the search warrant.
They assert that the ruling of the Court in People v. Court of Appeals29 is applicable in this case.
They conclude that the petitioner failed to prove the factual basis for the application of the plain view
doctrine.30

In reply, the petitioner asserts that it has standing and is, in fact, the real party-in-interest to defend
the validity of the search warrant issued by the RTC; after all, it was upon its instance that the
application for a search warrant was filed by the NBI, which the RTC granted. It asserts that it is not
proscribed under R.A. No. 8203 from filing a criminal complaint against the respondents and
requesting the NBI to file an application for a search warrant. The petitioner points out that the Rules
of Criminal Procedure does not specifically prohibit a private complainant from defending the validity
of a search warrant. Neither is the participation of a state prosecutor provided in Rule 126 of the said
Rules. After all, the petitioner insists, the proceedings for the application and issuance of a search
warrant is not a criminal action. The petitioner asserts that the place sought to be searched was
sufficiently described in the warrant for, after all, there is only one building on the two parcels of land
described in two titles where Shalimar Philippines is located, the place searched by the NBI
officers.31 It also asserts that the building is located at the corner of Aragon Street and Lacson
Avenue, Sta. Cruz, Manila.32

The petitioner avers that the plain view doctrine is applicable in this case because the boxes were
found outside the door of the respondents’ laboratory on the garage floor. The boxes aroused the
suspicion of the members of the raiding team – precisely because these were marked with the
distinctive UNILAB logos. The boxes in which the items were contained were themselves so
designated to replicate true and original UNILAB boxes for the same medicine. Thus, on the left
hand corner of one side of some of the boxes33 the letters "ABR" under the words "60 ml," appeared
to describe the condition/quality of the bottles inside (as it is with genuine UNILAB box of the true
medicine of the same brand). The petitioner pointed out that "ABR" is the acronym for "amber bottle
round" describing the bottles in which the true and original Disudrin (for children) is contained.

The petitioner points out that the same boxes also had their own "license plates" which were
instituted as among its internal control/countermeasures. The license plates indicate that the items
within are, supposedly, "Disudrin." The NBI officers had reasonable ground to believe that all the
boxes have one and the same data appearing on their supposedly distinctive license plates. The
petitioner insists that although some of the boxes marked with the distinctive UNILAB logo were,
indeed, sealed, the tape or seal was also a copy of the original because these, too, were marked
with the distinctive UNILAB logo. The petitioner appended to its pleading pictures of the Shalimar
building and the rooms searched showing respondent Isip;34 the boxes seized by the police officers
containing Disudrin syrup;35 and the boxes containing Inoflox and its contents.36

The issues for resolution are the following: (1) whether the petitioner is the proper party to file the
petition at bench; (2) whether it was proper for the petitioner to file the present petition in this Court
under Rule 45 of the Rules of Court; and (3) whether the search conducted by the NBI officers of the
first and second floors of the Shalimar building and the seizure of the sealed boxes which, when
opened, contained Disudrin syrup and Inoflox, were valid.

On the first issue, we agree with the petitioner’s contention that a search warrant proceeding is, in no
sense, a criminal action37 or the commencement of a prosecution.38 The proceeding is not one
against any person, but is solely for the discovery and to get possession of personal property. It is a
special and peculiar remedy, drastic in nature, and made necessary because of public necessity. It
resembles in some respect with what is commonly known as John Doe proceedings.39 While an
application for a search warrant is entitled like a criminal action, it does not make it such an action.

A search warrant is a legal process which has been likened to a writ of discovery employed by the
State to procure relevant evidence of crime.40 It is in the nature of a criminal process, restricted to
cases of public prosecutions.41 A search warrant is a police weapon, issued under the police power.
A search warrant must issue in the name of the State, namely, the People of the Philippines.42

A search warrant has no relation to a civil process. It is not a process for adjudicating civil rights or
maintaining mere private rights.43 It concerns the public at large as distinguished from the ordinary
civil action involving the rights of private persons.44 It may only be applied for in the furtherance of
public prosecution.45

However, a private individual or a private corporation complaining to the NBI or to a government

agency charged with the enforcement of special penal laws, such as the BFAD, may appear,
participate and file pleadings in the search warrant proceedings to maintain, inter alia, the validity of
the search warrant issued by the court and the admissibility of the properties seized in anticipation of
a criminal case to be filed; such private party may do so in collaboration with the NBI or such
government agency. The party may file an opposition to a motion to quash the search warrant
issued by the court, or a motion for the reconsideration of the court order granting such motion to
quash.46

In this case, UNILAB, in collaboration with the NBI, opposed the respondents’ motion to quash the
search warrant. The respondents served copies of their reply and opposition/comment to UNILAB,
through Modesto Alejandro, Jr.47 The court a quo allowed the appearance of UNILAB and accepted
the pleadings filed by it and its counsel.

The general rule is that the proper party to file a petition in the CA or Supreme Court to assail any
adverse order of the RTC in the search warrant proceedings is the People of the Philippines, through
the OSG. However, in Columbia Pictures Entertainment, Inc. v. Court of Appeals,48 the Court allowed
a private corporation (the complainant in the RTC) to file a petition for certiorari, and considered the
petition as one filed by the OSG. The Court in the said case even held that the petitioners therein
could argue its case in lieu of the OSG:
From the records, it is clear that, as complainants, petitioners were involved in the proceedings
which led to the issuance of Search Warrant No. 23. In People v. Nano, the Court declared that
while the general rule is that it is only the Solicitor General who is authorized to bring or defend
actions on behalf of the People or the Republic of the Philippines once the case is brought before
this Court or the Court of Appeals, if there appears to be grave error committed by the judge or a
lack of due process, the petition will be deemed filed by the private complainants therein as if it were
filed by the Solicitor General. In line with this ruling, the Court gives this petition due course and will
allow petitioners to argue their case against the questioned order in lieu of the Solicitor General.49

The general rule is that a party is mandated to follow the hierarchy of courts. However, in
exceptional cases, the Court, for compelling reasons or if warranted by the nature of the issues
raised, may take cognizance of petitions filed directly before it.50 In this case, the Court has opted to
take cognizance of the petition, considering the nature of the issues raised by the parties.

The Court does not agree with the petitioner’s contention that the issue of whether the Disudrin and
Inoflox products were lawfully seized was never raised in the pleadings of the respondents in the
court a quo. Truly, the respondents failed to raise the issue in their motion to quash the search
warrant; in their reply, however, they averred that the seized items were not included in the subject
warrant and, therefore, were not lawfully seized by the raiding team. They also averred that the said
articles were not illegal per se, like explosives and shabu, as to justify their seizure in the course of
unlawful search.51 In their Opposition/Comment filed on March 15, 2004, the respondents even
alleged the following:

The jurisdiction of this Honorable Court is limited to the determination of whether there is a legal
basis to quash the search warrant and/or to suppress the seized articles in evidence. Since the
articles allegedly seized during the implementation of the search warrant – Disudrin and Inoflux
products – were not included in the search warrant, they were, therefore, not lawfully seized by the
raiding team; they are not illegal per se, as it were, like an arms cache, subversive materials
or shabu as to justify their seizure in the course of a lawful search, or being in plain view or some
such. No need whatever for some public assay.

The NBI manifestation is a glaring admission that it cannot tell without proper examination or assay
that the Disudrin and Inoflox samples allegedly seized from respondent’s place were counterfeit. All
the relevant presumptions are in favor of legality.52

The Court, therefore, finds no factual basis for the contention of the petitioner that the respondents
never raised in the court a quo the issue of whether the seizure of the Disudrin and Inoflox products
was valid.

In any event, the petitioner filed a motion for the reconsideration of the March 11, 2004 Order of the
court a quo on the following claims:

2.01 The Honorable Court ERRED in ruling on a non-issue or the issue as to the alleged
failure to particularly describe in the search warrant the items to be seized but upon
which NO challenge was then existing and/or NO controversy is raised;

2.02 The Honorable Court ERRED in its ruling that "finished or unfinished products of
UNILAB" cannot stand the test of a particular description for which it then reasons that the
search is, supposedly unreasonable; and,

2.03 The Honorable Court ERRED in finding that the evidence seized is lawfully inadmissible
against respondents.53
The court a quo considered the motion of the petitioner and the issue raised by it before finally
resolving to deny the same. It cannot thus be gainsaid that the petitioner was denied its right to due
process.

On the validity of the seizure of the sealed boxes and its contents of Disudrin and Inoflox, the Court,
likewise, rejects the contention of the petitioner.

A search warrant, to be valid, must particularly describe the place to be searched and the things to
be seized. The officers of the law are to seize only those things particularly described in the search
warrant. A search warrant is not a sweeping authority empowering a raiding party to undertake a
fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to a crime.
The search is limited in scope so as not to be general or explanatory. Nothing is left to the discretion
of the officer executing the warrant.54

Objects, articles or papers not described in the warrant but on plain view of the executing officer may
be seized by him. However, the seizure by the officer of objects/articles/papers not described in the
warrant cannot be presumed as plain view. The State must adduce evidence, testimonial or
documentary, to prove the confluence of the essential requirements for the doctrine to apply,
namely: (a) the executing law enforcement officer has a prior justification for an initial intrusion or
otherwise properly in a position from which he can view a particular order; (b) the officer must
discover incriminating evidence inadvertently; and (c) it must be immediately apparent to the police
that the items they observe may be evidence of a crime, contraband, or otherwise subject to
seizure.55

The doctrine is not an exception to the warrant. It merely serves to supplement the prior justification
– whether it be a warrant for another object, hot pursuit, search as an incident to a lawful arrest or
some other legitimate reason for being present, unconnected with a search directed against the
accused. The doctrine may not be used to extend a general exploratory search from one object to
another until something incriminating at last emerges. It is a recognition of the fact that when
executing police officers comes across immediately incriminating evidence not covered by the
warrant, they should not be required to close their eyes to it, regardless of whether it is evidence of
the crime they are investigating or evidence of some other crime. It would be needless to require the
police to obtain another warrant.56 Under the doctrine, there is no invasion of a legitimate expectation
of privacy and there is no search within the meaning of the Constitution.

The immediate requirement means that the executing officer can, at the time of discovery of the
object or the facts therein available to him, determine probable cause of the object’s incriminating
evidence.57 In other words, to be immediate, probable cause must be the direct result of the officer’s
instantaneous sensory perception of the object.58 The object is apparent if the executing officer had
probable cause to connect the object to criminal activity. The incriminating nature of the evidence
becomes apparent in the course of the search, without the benefit of any unlawful search or seizure.
It must be apparent at the moment of seizure.59

The requirement of inadvertence, on the other hand, means that the officer must not have known in
advance of the location of the evidence and intend to seize it.60 Discovery is not anticipated.61

The immediately apparent test does not require an unduly high degree of certainty as to the
incriminating character of evidence. It requires merely that the seizure be presumptively reasonable
assuming that there is probable cause to associate the property with criminal activity; that a nexus
exists between a viewed object and criminal activity.62
Incriminating means the furnishing of evidence as proof of circumstances tending to prove the guilt
of a person.63

Indeed, probable cause is a flexible, common sense standard. It merely requires that the facts
available to the officer would warrant a man of reasonable caution and belief that certain items may
be contrabanded or stolen property or useful as evidence of a crime. It does not require proof that
such belief be correct or more likely than true. A practical, non-traditional probability that
incriminating evidence is involved is all that is required. The evidence thus collected must be seen
and verified as understood by those experienced in the field of law enforcement.64

In this case, Disudrin and/or Inoflox were not listed in the search warrant issued by the court a
quo as among the properties to be seized by the NBI agents. The warrant specifically authorized the
officers only to seize "counterfeit Revicon multivitamins, finished or unfinished, and the documents
used in recording, manufacture and/or importation, distribution and/or sale, or the offering for sale,
sale and/or distribution of the said vitamins." The implementing officers failed to find any counterfeit
Revicon multivitamins, and instead seized sealed boxes which, when opened at the place where
they were found, turned out to contain Inoflox and Disudrin.

It was thus incumbent on the NBI agents and the petitioner to prove their claim that the items were
seized based on the plain view doctrine. It is not enough to prove that the sealed boxes were in the
plain view of the NBI agents; evidence should have been adduced to prove the existence of all the
essential requirements for the application of the doctrine during the hearing of the respondents’
motion to quash, or at the very least, during the hearing of the NBI and the petitioner’s motion for
reconsideration on April 16, 2004. The immediately apparent aspect, after all, is central to the plain
view exception relied upon by the petitioner and the NBI. There is no showing that the NBI and the
petitioner even attempted to adduce such evidence. In fact, the petitioner and the NBI failed to
present any of the NBI agents who executed the warrant, or any of the petitioner’s representative
who was present at the time of the enforcement of the warrant to prove that the enforcing officers
discovered the sealed boxes inadvertently, and that such boxes and their contents were
incriminating and immediately apparent. It must be stressed that only the NBI agent/agents who
enforced the warrant had personal knowledge whether the sealed boxes and their contents thereof
were incriminating and that they were immediately apparent.65 There is even no showing that the NBI
agents knew the contents of the sealed boxes before they were opened.

In sum then, the Court finds and so hold that the petitioner and the NBI failed to prove the essential
requirements for the application of the plain view doctrine.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The assailed orders
of the Regional Trial Court are AFFIRMED.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. EANNA O'COCHLAIN, Accused-

Appellant.

DECISION
 PERALTA, J.:

On appeal is the February 9, 2016 Decision1 and July 21, 2016 Resolution2 of the Court
of Appeals (CA) in CA-G.R. CR No. 36412, which affirmed the November 22, 2013
Decision3 of the Regional Trial Court (RTC), Branch 13, Laoag City, in Criminal Case No.
15585-13, finding accused-appellant Eanna O'Cochlain (Eanna) guilty of violating
Section 11, Article II of Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous
Drugs Act of 2002.

At the time of his arrest, Eanna was a 53-year old Irish national married to a Filipina
and residing in Barangay Aring, Badoc, Ilocos Norte. In an Information4 dated July 15,
2013, he was charged with illegal possession of marijuana, committed as follows:

That on or about [the] 14th day of July 2013 in the City of Laoag and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there
willfully, unlawfully and feloniously had in his possession, custody and control: two (2)
sticks of dried Marijuana Leaves, a dangerous drug, with an aggregate weight of 0.3824
grams, without any license or authority to possess, in violation of the aforesaid law.5
With the assistance of a counsel de parte and in the presence of a public prosecutor,
Eanna pleaded "NOT GUILTY" in his arraignment.6 He was allowed to post bail for his
temporary liberty, but a hold departure order was issued to prevent him from leaving
the Philippines and his passport was surrendered to the court for its custody in the
course of the proceedings.7

Version of the Prosecution

Aside from the sworn statements of other intended witnesses,8 the testimonies in open
court of Security Screening Officer Dexter Suguitan (SSO Suguitan), Police Officer 3
Joel Javier (PO3 Javier), and PO1 Erald Terson (PO1 Terson) reveal as follows:

While on his break time around 7:00 p.m. on July 14, 2013, SSO Suguitan of the
Department of Transportation - Office of Transportation Security (OTS), assigned at the
initial security screening checkpoint of the Laoag City International Airport, was told by
CAAP9 Security and Intelligence Flor Tamayo (CSI Tamayo) that the parking space in
front of the departure area smelled like marijuana ("agat sa marijuana"). He suspected
that Eanna was the one who smoked the illegal drug, recounting that at aroud 6:35
p.m. he saw a certain male Caucasian at the parking area lighting something
unrecognizable as he was covering it with his palm. CSI Tamayo observed that
whenever he would suck what he seemed to be smoking, no visible vapor would come
out from his mouth.

However, SSO Suguitan dismissed CSI Tamayo's story as he thought that it would be
impossible for a passenger to smoke marijuana at the airport. After a while, he
returned to his post at the initial check-in area. Meanwhile, CSI Tamayo reported what
he saw to PO2 Pancho Caole, Jr. (PO2 Caole, Jr.) and SSO Fidel Bal-ot (SSO Bal-ot) ,
who were manning the final screening area.

Later on, SSO Bal-ot directed SSO Suguitan to proceed to the final security
checkpoint.10 The latter was instructed to conduct a pat down search on Eanna, who
agreed. He was frisked while he raised his hands by stretching sideward to the level of
his shoulders with palms open. When something was felt inside the pocket of his upper
garment, he was asked to take it out. He then brought out a pack of Marlboro red from
his left pocket, as well as a matchbox and another pack of Marlboro red from his right
pocket. The pack of Marlboro red on his left hand contained cigarettes but the one on
his right hand contained two (2) rolled sticks of what appeared to be dried marijuana
leaves. SSO Suguitan knew it was marijuana because that was what CSI Tamayo earlier
told him. He took the pack of Marlboro red containing the two rolled sticks of dried
marijuana leaves and showed it to PO1 Peter Warner Manadao, Jr. (PO1 Manadao, Jr.)
and other police personnel on duty. SSO Suguitan put them on the nearby screening
table in front of Eanna and PO1 Manadao, Jr. The two rolled sticks of dried marijuana
leaves were the only items placed thereon.

PO1 Udel Tubon11 then called the attention of PO3 Javier, who was the investigator on
duty of the Philippine National Police (PNP) - Aviation Security Group (ASG). PO1
Manadao, Jr., PO2 Caole, Jr., SSO Suguitan, and SSO Bal-ot were at the final
checkpoint when he arrived. They told him that marijuana was found in Eanna's pocket.
SSO Suguitan turned over to PO3 Javier the pack of Marlboro red containing the two
rolled sticks of dried marijuana leaves. PO3 Javier then placed them on a tray, together
with Eanna's other belongings. As the area started to become crowded, the seized
items were brought by PO3 Javier to the PNP-ASG office. He was accompanied by SSO
Suguitan and Eanna.

Together with PO3 Javier at the PNP-ASG office were Police Superintendent Diosdado
Apias (P/Supt. Apias), PO1 Manadao, Jr., PO2 Caole, Jr., SSO Suguitan, SSO Bal-ot,
and a certain SPO3 Domingo. While waiting for the arrival of the barangay officials,
which took 15-20 minutes, the two rolled sticks of dried marijuana leaves were placed
on the investigation table where everybody could look but not touch. Eanna was seated
in front of the table, while the others guarded him. PO3 Javier then prepared the
inventory. The two rolled sticks of dried marijuana leaves and other seized items were
listed. The check-in baggage of Eanna was also inspected, but it only contained clothes
and other personal belongings. The confiscation/inventory receipts were signed by PO3
Javier and SSO Suguitan, as well as two (2) officials of Barangay Araniw, Laoag City
(Barangay Chairman Edilberto Bumanglag and Barangay Kagawad Benjamin Teodoro)
and an ABS-CBN cameraman (Juanito Badua), who acted as witnesses. In their
presence, as well as of Eanna, PO3 Javier marked the two rolled sticks of dried
marijuana leaves as "EO-1" and "EO-2" and, thereafter, placed them inside a Ziploc re-
sealable plastic bag. The guard of the PNP-ASG office, PO1 Terson, took pictures during
the inventory and marking, while P/Supt. Apias prepared the requests for the medico-
legal examination of Eanna and the laboratory examination of the two rolled sticks of
dried marijuana leaves. The marking, physical inventory, and photographing were
likewise witnessed by PO1 Manadao, Jr. and PO2 Caole, Jr., who executed a Joint
Affidavit of Arrest with PO3 Javier.

Subsequently, Eanna was brought to the Governor Roque R. Ablan, Sr. Memorial
Hospital for his medico-legal examination. PO3 Javier proceeded to the Ilocos Norte
Provincial Crime Laboratory Office to submit the request for laboratory examination and
the two rolled sticks of dried marijuana leaves. The request and the specimens were
received by PO3 Padayao, the evidence custodian. Based on the qualitative examination
conducted by Forensic Chemist Police Inspector Amiely Ann Luis Navarro (P/Insp.
Navarro), which was reduced into writing, the specimens were found to be positive for
the presence of marijuana.

Version of the Defense

At around 6:30 p.m. on July 14, 2013, Eanna was with his wife at the Laoag City
International Airport for their Cebu Pacific flight bound for Manila. Since the x-ray
machine operator at the initial security screening was not yet around, he left his wife in
the line and smoked his pre-rolled tobacco and Marlboro cigarette outside, about 30
meters away. Ten minutes passed, he went back to the initial security checkpoint
carrying his check-in and cabin luggage, camera bag, and some shopping bags. The
airport police conducted a body search and examined his belongings. Afterwards, he
proceeded to the final security check where he was inspected by a male "immigration
officer" wearing a brown shirt. As a result, a red Marlboro cigarette pack, containing
two pieces of rolled paper of flavored tobacco, was found in his possession.12 It was
shown to him while he was in front of his wife. The cigarette pack was then put on the
desk, on top of one of his luggage. A camera bag (containing a Sony camera,
connecting cables, headphones, an MP3 player, cigarette paper, and a pack of
Marlboro) was also searched. The officer got some tiny grains after sticking his fingers
into the bag. He showed them to Eanna and asked what they were. The latter replied
that they were flavored tobacco, which he has been smoking for the past 30 years.
Despite the claim, the officer directed an airport police to bring Eanna to the police
station that was about 150 meters away.

Together with his wife, Eanna was escorted by about five to six airport police. At the
PNP-ASG office, his camera bag and other luggage arrived approximately 20 minutes
later. They were placed on top of the table and stayed there for 30-45 minutes before
the police started to search the contents and catalog the items. Prior to the inventory of
the seized items, Eanna and his wife repacked their luggage as the latter still proceeded
with her scheduled flight. Thereafter, with the permission of PO3 Javier, Eanna went
outside the office to smoke as he waited for his Batac-based Filipino relatives who
arrived approximately after two hours. While smoking outside, he could not see what
was happening, if any, to his luggage and camera bag.

The camera crew of ABS-CBN arrived at almost 11:00 p.m. An asset from the Philippine
Drug Enforcement Agency (PDEA) called Badua and told him to come to the PNP-ASG
office. He went with an off-duty security guard of ABS-CBN Laoag City. There, he was
allowed to cover the incident, which became the basis of a television news report.

The sticks of the alleged marijuana were shown to Eanna thrice - once at the airport
and twice at the police station. On the second instance, he was shown two thin rolled
sticks that were placed on top of the table in front of him. On the third time, however,
he saw a thin and a fat rolled sticks made of paper that were different from what he
was using.

RTC Ruling

After trial, Eanna was convicted of the crime charged. The fallo of the November 22,
2013 Decision states:
WHEREFORE, accused Eanna O'Cochlain is hereby pronounced GUILTY beyond
reasonable doubt of the charge of illegal possession of marijuana weighing 0.3824 gram
and is therefore sentenced to suffer the indeterminate penalty of imprisonment of
TWELVE (12) YEARS and ONE (1) DAY to FOURTEEN (14) YEARS and to pay a fine of
THREE HUNDRED THOUSAND PESOS (P300,000.00).

The two sticks of marijuana subject hereof are confiscated, the same to be disposed in
the manner that the law prescribes.

SO ORDERED.13
The search conducted on Eanna and his subsequent arrest were upheld. According to
the RTC, the search upon his person was not unreasonable but was actually an
exception to the proscription against warrantless searches and seizures. It was justified
as it proceeded from a duty or right that was enforced in accordance with the aviation
rules and regulations to maintain peace, order and security at the airports. In fact,
Eanna's plane ticket carried a proviso allowing airport authorities to check on his person
and baggage pursuant to the requirement of Section 9 of R.A. No. 6235.14 Moreover,
another exception to the rule is consented warrantless search and seizure. In this case,
Eanna agreed to the body pat down search that was requested by SSO Suguitan.

For the RTC, SSO Suguitan was a credible witness. It was observed that he was
spontaneous in his testimony and that he appeared candid and truthful in his
statements. There was nothing in his testimony or in the manner he testified that could
arouse serious suspicion of lying. Some of his inconsistent statements, which the
defense considered as irreconcilable, were insignificant and trivial as they do not
impinge on any of the elements of the offense charged. Instead, the statements bolster
SSO Suguitan's credibility as they were indicia of his unrehearsed testimony.

The RTC opined that Eanna's denial was not based on clear and convincing evidence;
rather, it was bare and self-serving. His testimony was even fraught with incoherence
and serious inconsistencies which he obviously committed as he desperately tried to
show that what was taken from his possession was mere tobacco. Considering his flip-
flopping testimony, his denial was not given credence and did not prevail over the
credible testimony of SSO Suguitan and the unquestioned findings of the forensic
chemist.

Finally, as to the chain of custody of the illegal drug seized, the RTC was satisfied that
the prosecution was able to preserve the integrity and evidentiary value of the subject
marijuana. It ruled:
In this case, the Court does not doubt a bit that the two sticks of marijuana presented
in evidence are the same sticks of marijuana confiscated from the accused. There was
not only compliance by the airport authorities of the requirements of Section 21 of the
law and its implementing rules and regulations, there is a complete account of the
complete chain of custody of the two sticks of marijuana that negates any doubt that
their integrity and evidentiary value have been preserved. As it has been established by
the prosecution, upon being informed of the arrest of the accused, after SSO Suguitan
had confiscated the two [sticks] of marijuana from the accused, PO3 Joel Javier, the
duty police investigator at the airport at [the] time who was at the ramp outside the
departure terminal was called and when he arrived at the place where the accused was
accosted and was informed of the arrest of the accused, he took custody of the two
sticks of marijuana which were then on the screening desk or table and invited the
accused to the office of the PNP-CAAP Aviation Security Group located within the
premises of the airport not far tram the departure terminal. There, PO3 Javier marked
the two sticks of marijuana with E0-1 and. E0-2. Upon the arrival of two Barangay
officials, Barangay Chairman Edilberto Bumanglag and Kagawad Benjamin Teodoro of
Barangay Araniw, Laoag City which has territorial jurisdiction over the airport, and a
member of the media in the person of Juanito Badua, a cameraman of ABS-CBN,
Laoag, PO3 Javier also conducted the required inventory not only of the two sticks of
marijuana but the other belongings of the accused contained in his luggage. In the
course of the inventory, PO1 Erald Terson, also a member of the PNP� Aviation
Security Group, took pictures of the seized items as he was directed to do by their
superior. Sometime later, as the accused was brought for medical examination, PO3
Javier was the one who brought the two sticks of marijuana together with the prepared
letter request to the Ilocos Norte Provincial Crime Laboratory Office for examination.
And to complete the chain, the prosecution established that at the said crime lab, the
two sticks were received by PO3 Padayao who thereupon turned them over to the
forensic chemist, Police Inspector Amiely Ann Navarro. As the Court takes judicial
notice from the record of the case, the two sticks were finally submitted to court on July
19, 2013, received by the Branch Clerk of Court, Atty. Bernadette Espejo[,] who issued
the corresponding Acknowledgment Receipt therefor.

Significantly relative to the chain of custody and as would have equally done by the
other concerned witnesses such as forensic chemist Police Inspector Navarro who
issued her written chemistry reports of the qualitative examinations she conducted on
the specimens, and PO3 Padayao, both of the crime lab, SSO Suguitan[,] who
discovered the two sticks of marijuana[,] identified the same in open court, pointing in
the process the respective markings E0-1 and E0-2 that he witnessed to have been
placed by the investigating police officer, PO3 Javier[,] which, after the inventory, the
latter placed in a plastic bag (Ziploc). PO3 Javier himself also identified the two sticks of
marijuana.

At this point, the Court is not oblivious of the fact that in his testimony SSO Suguitan
initially claimed that he turned over the two sticks of marijuana to PO1 Manadao, Jr.
But actually[,] as it can be clearly appreciated from the testimony of SSO Suguitan, the
turn over that he said was merely the placing of the two sticks of marijuana on top of
the table at the final screening area, in front of PO1 Manadao and the accused. In fact,
as SSO Suguitan conoborated PO3 Javier, the two sticks of marijuana which were still
on the screening desk were thereafter placed on a tray and PO3 Javier was the one who
then actually took custody thereof as the accused was invited to the office of the PNP-
CAAP Aviation Security Group. PO3 Javier himself, when he was asked by the defense if
it was PO1 Manadao who turned over the specimens to him, categorically said, "No, sir,
Mr. Dexter Suguitan."

Also, the Court cannot be amiss to point out that the two sticks of marijuana could not
have been switched with another or contaminated while it was in the custody of PO3
Javier. While admitting that there were many things that they prepared while they were
already in their office, he testified in effect that no such [thing] happened. The people
there at the office were not examining the specimens, they were just looking and not
holding it.
The Court at this point cannot but express its observation that PO3 Javier, just like SSO
Suguitan, was equally credible. He was straightforward, consistent and candid in his
testimony that it cannot in any way be considered suspect.15
Eanna moved to reconsider the RTC judgment, but it was denied; hence, a notice of
appeal was filed.16

CA Ruling

Finding no cause to overturn the findings of fact and conclusions of law, the CA affirmed
the assailed RTC Decision.

The CA affirmatively answered the issue of whether there was probable cause to justify
the warrantless search of Eanna and the seizure of his belongings. It appreciated the
prosecution's version that CSI Tamayo saw him smoking while out.side the departure
area of the airport terminal. Although no smoke coming from his mouth was seen, CSJ
Tamayo still smelled the scent of marijuana. Similar to the RTC ruling, the warrantless
search and seizure was also valid because the search was conducted pursuant to a
routine airport security procedure and Eanna voluntarily gave his consent thereto.
It was likewise held that all the elements of the crime of illegal possession of dangerous
drug were satisfactorily established. First, Eanna was caught in possession and custody
of two sticks of marijuana on July 14, 2013 at the Laoag City International Airport
during the routine search conducted by the airport authorities. Second, he failed to
prove that he was authorized by law to possess the same. And third, he freely and
consciously possessed the illegal drug.

The CA downplayed the alleged varying testimonies of the prosecution witnesses. As

the RTC opined, the inconsistences raised by the defense were minor and trivial and
could not affect the RTC's finding as to the credibility of the airport police officers.

Finally, anent the chain of custody rule, the CA regarded as specious Eanna's claim that
the procedures set forth in Section 21 of R.A. No. 9165 were not followed. The
testimony of SSO Suguitan was quoted and the ratiocination of the RTC was adopted to
support the finding that the airport officials complied with the rule.

Eanna filed a motion for reconsideration, but it was denied on July 21, 2016.

Now before us, the Office of the Solicitor General manifested that it would no longer file
a supplemental brief as it had exhaustively discussed the legal issues and arguments in
its appeal brief before the CA.17 On his part, Eanna filed a Supplemental Brief18 to
bolster his claim that there were gaps in the chain of custody of the alleged illegal drug
seized. He argues that:

1. PO3 Javier was not at the scene where Eanna was found in possession of the
alleged illegal drug; thus, he had no personal knowledge of its possession by
Eanna and its seizure by SSO Suguitan.

2. It was not made clear by the prosecution that the two sticks of rolled paper
allegedly containing marijuana were marked immediately upon confiscation.
 3. The drug evidence was rendered susceptible to alteration, tampering and
swapping because the Ziploc where it was placed was not sealed by an adhesive
tape or any means other than the natural, built-in re�sealable feature of the
plastic bag.

4. The presence of the marking "JEP" on the two rolled sticks of alleged marijuana
could not be explained and the marking made thereon compromised their
integrity and physical appearance.

5. The presumption of regularity in the performance of official duty is unavailing

because the police authorities deviated from the mandated procedure and
offered no valid ground to show that their actuations were justified.

Our Ruling

The judgment of conviction is affirmed.

Airport screening search is a constitutionally reasonable administrative

search.

The search and seizure of an illegal drug during a routine airport inspection made
pursuant to the aviation security procedures has been sustained by this Court in a
number of cases.19 In the leading case of People v. Johnson,20 we held:
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.21
Thus, while the right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures is guaranteed by Section 2, Article
III of the 1987 Constitution,22 a routine security check being conducted in air23 and
sea24 ports has been a recognized exception. This is in addition to a string of
jurisprudence ruling that search and seizure may be made without a warrant and the
evidence obtained therefrom may be admissible in the following instances: (1) search
incidental to a lawful arrest; (2) search of a moving motor vehicle; (3) customs search;
(4) seizure of evidence in "plain view"; (5) consented warrantless search; (6) "stop and
frisk" search; and (7) exigent and emergency circumstance.25

Notably, Section 2, Article III of the Constitution was patterned after the Fourth
Amendment to the Constitution of the United States of America.26 Having been derived
almost verbatim therefrom, the Court may turn to the pronouncements of the US
Federal Supreme Court and State Appellate Courts, which are considered doctrinal in
this jurisdiction.27

Like in our country, the circumstances under which a warrantless search, unsupported
by probable cause, may be considered reasonable under the Fourth Amendment are
very limited and that exceptions thereto are few specifically established and well
delineated.28 In a similar way, the government bears the burden of proving that a
warrantless search was conducted pursuant to an established exception to the Fourth
Amendment warrant requirement.29

US courts have permitted exceptions to the Fourth Amendment when "special needs,
beyond the normal need for law enforcement, make the warrant and probable cause
requirement impracticable" such as work-related searches of government employees'
desks and offices, warrantless searches conducted by school officials of a student's
property, government investigators conducting searches pursuant to a regulatory
scheme when the searches meet "reasonable legislative or administrative standards,"
and a State's operation of a probation system.30 The Fourth Amendment permits the
warrantless search of "closely regulated" businesses; "special needs" cases such as
schools, employment, and probation; and "checkpoint" searches such as airport
screenings under the administrative search doctrine.31

Searches and seizures are ordinarily unreasonable in the absence of individualized

suspicion of wrongdoing.32 However, because administrative searches primarily ensure
public safety instead of detecting criminal wrongdoing, they do not require individual
suspicion.33 Where the risk to public safety is substantial and real, blanket suspicionless
searches calibrated to the risk may rank as "reasonable."34 In particular, airport
searches have received judicial sanction essentially because of the magnitude and
pervasiveness of the danger to the public safety and the overriding concern has been
the threat of death or serious bodily injury to members of the public posed by the
introduction of inherently lethal weapons or bombs.35

Although the US Supreme Court has not specifically held that airport screening
searches are constitutionally reasonable administrative searches, it has suggested that
they qualify as such.36 Airport security searches can be deemed lawful administrative
searches because (1) these searches constitute relatively limited intrusions geared
toward finding particular items (weapons, explosives, and incendiary devices) that pose
grave danger to airplanes and air travelers; (2) the scrutiny of carry-on luggage is no
more intrusive (in both its scope and intensity) than is necessary to achieve the
legitimate aims of the screening process (that is, to ensure air travel safety); (3) airline
passengers have advance notice that their carry-on luggage will be subjected to these
security measures, thus giving passengers the opportunity to place their personal
effects in checked luggage; (4) all passengers are subject to the same screening
procedures; and (5) passengers are aware that they can avoid the screening process
altogether by electing not to board the plane.37 Moreover, abuse is unlikely because of
its public nature.38

As a permissible administrative search, the scope of airport routine check is not

limitless.39 Airport screening procedures are conducted for two primary reasons: first, to
prevent passengers from carrying weapons or explosives onto the aircraft; and second,
to deter passengers from even attempting to do so.40 The oft-cited case of United
States v. Davis41 sets the appropriate standards for evaluating airport screening
searches as constitutionally reasonable administrative searches, thus:
[S]earches conducted as part of a general regulatory scheme in furtherance of an
administrative purpose, rather than as part of a criminal investigation to secure
evidence of crime, may be permissible under the Fourth Amendment though not
supported by a showing of probable cause directed to a particular place or person to be
searched.

As we have seen, screening searches of airline passengers are conducted as part of a

general regulatory scheme in furtherance of an administrative purpose, namely, to
prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent
hijackings. The essential purpose of the scheme is not to detect weapons or explosives
or to apprehend those who carry them, but to deter persons carrying such material
from seeking to board at all.

Of course, routine airport screening searches will lead to discovery of contraband and
apprehension of law violators. This practical consequence does not alter the essentially
administrative nature of the screening process, however, or render the searches
unconstitutional. x x x.

There is an obvious danger, nonetheless, that the screening of passengers and their
carry-on luggage for weapons and explosives will be subverted into a general search for
evidence of crime. If this occurs, the courts will exclude the evidence
obtained.42 (Citations omitted.)
The constitutional bounds of an airport administrative search require that the individual
screener's actions be no more intrusive than necessary to determine the existence or
absence of explosives that could result in harm to the passengers and aircraft.43 The
search cannot also serve unrelated law enforcement purposes as it effectively
transforms a limited check for weapons and explosives into a general search for
evidence of crime, substantially eroding the privacy rights of passengers who travel
through the system.44 As in other exceptions to the search warrant requirement, the
screening program must not turn into a vehicle for warrantless searches for evidence of
crime.45 It is improper that the search be tainted by "general law enforcement
objectives" such as uncovering contraband unrelated to that purpose or evidence of
unrelated crimes or evidencing general criminal activity or a desire to detect "evidence
of ordinary criminal wrongdoing."46 In United States v. $124,570 US. Currency,47 the US
Court of Appeals for the Ninth Circuit noted that the US Supreme Court has repeatedly
emphasized the importance of keeping criminal investigatory motives from coloring
administrative searches.48

Hence, an airport search remains a valid administrative search only so long as the
scope of the administrative search exception is not exceeded; "once a search is
conducted for a criminal investigatory purpose, it can no longer be justified under an
administrative search rationale."49 Where an action is taken that cannot serve the
administrative purpose, either because the threat necessitating the administrative
search has been dismissed or because the action is simply unrelated to the
administrative goal, the action clearly exceeds the scope of the permissible search.50 To
the extent that airport administrative searches are used for purposes other than
screening luggage and passengers for weapons or explosives, they fall outside the
rationale by which they have been approved as an exception to the warrant
requirement, and the evidence obtained during such a search should be excluded.51

Furthermore, to be constitutionally permissible, warrantless and suspicionless airport

screening searches must meet the Fourth Amendment standard of
reasonableness.52 "What is reasonable depends upon all of the circumstances
surrounding the search or seizure and the nature of the search or seizure itself."53 There
can be no ready test for determining reasonableness other than by balancing the need
to search against the invasion which the search entails.54 In other words, an
administrative screening search must be as limited in its intrusiveness as is consistent
with satisfaction of the administrative need that justifies it.55 Specifically, the Court
must balance an individual's right to be free of intrusion with "society's interest in safe
air travel."56 On this score, Davis again has provided a guidepost. There it was held that
an airport security search is considered as reasonable if: (1) the search is no more
extensive or intensive than necessary, in light of current technology, to satisfy the
administrative need that justifies it, that is to detect the presence of weapons or
explosives; (2) the search is confined in good faith to that purpose; and (3) a potential
passenger may avoid the search by choosing not to fly.57

In State v. Hanson,58 the Intermediate Court of Appeals of Hawai'i believed in the

soundness of the logic of the US Court of Appeals for the Fifth Circuit in United States
v. Skipwith,59 which ruled:
Necessity alone, however, whether produced by danger or otherwise, does not in itself
make all non-probable-cause searches reasonable. Reasonableness requires that the
courts must weigh more than the necessity of the search in terms of possible harm to
the public. The equation must also take into account the likelihood that the search
procedure will be effective in averting the potential harm. On the opposite balance we
must evaluate the degree and nature of intrusion into the privacy of the person and
effects of the citizen which the search entails.

In undertaking our calculation of the weight to be accorded to these three factors in the
case at bar - public necessity, efficacy of the search, and degree of intrusion - we need
not reiterate what was said in Moreno about the dangers posed by air piracy; suffice it
to say that there is a judicially-recognized necessity to insure that the potential harms
of air piracy are foiled. The search procedures have every indicia of being the most
efficacious that could be used. The group being screened is limited to persons with the
immediate intention of boarding aircraft. Metal detectors, visual inspection, and rare
but potential physical searches appear to this court to provide as much efficiency to the
process as it could have.

On the other side of the judicial scales, the intrusion which the airport search imposes
on the public is not insubstantial. It is inconvenient and annoying, in some cases it may
be embarrassing, and at times it can be incriminating. There are several factors,
however, which make this search less offensive to the searched person than similar
searches in other contexts. One such factor is the almost complete absence of any
stigma attached to being subjected to search at a known, designated airport search
point. As one commentator has put it in the border search context, "individuals
searched because of their membership in a morally neutral class have less cause to feel
insulted . . . ." In addition, the offensiveness of the screening process is somewhat
mitigated by the fact that the person to be searched must voluntarily come to and enter
the search area. He has every opportunity to avoid the procedure by not entering the
boarding area. Finally, the circumstances under which the airport search is conducted
make it much less likely that abuses will occur. Unlike searches conducted on dark and
lonely streets at night where often the officer and the subject are the only witnesses,
these searches are made under supervision and not far from the scrutiny of the
traveling public.

Moreover, the airlines, which have their representatives present, have a definite and
substantial interest in assuring that their passengers are not unnecessarily harassed.
The officers conducting the search under these circumstances are much more likely to
be solicitous of the Fourth Amendment rights of the traveling public than in more
isolated, unsupervised surroundings.

Our conclusion, after this tripartite weighing of the relevant factors, is that the
standards for initiating a search of a person at the boarding gate should be no more
stringent than those applied in border crossing situations. In the critical pre-boarding
area where this search started, reasonableness does not require that officers search
only those passengers who meet a profile or who manifest signs of nervousness or who
otherwise appear suspicious. Such a requirement would have to assume that hijackers
are readily identifiable or that they invariably possess certain traits. The number of lives
placed at hazard by this criminal paranoia forbid taking such deadly chances. As Judge
Friendly has stated:
Determination of what is reasonable requires a weighing of the harm against the need.
When the object of the search is simply the detection of past crime, probable cause to
arrest is generally the appropriate test . . . . When the risk is the jeopardy to hundreds
of human lives and millions of dollars of property inherent in the pirating or blowing up
of a large airplane, the danger alone meets the test of reasonableness, so long as the
search is conducted in good faith for the purpose of preventing hijacking or like damage
and with reasonable scope and the passenger has been given advance notice of his
liability to such a search so that he can avoid it by choosing not to travel by air.
(Citations omitted.)
According to United States v. Aukai,60 US case law had erroneously suggested that the
reasonableness of airport screening searches is dependent upon the passenger's
consent, either ongoing consent or irrevocable implied consent. It opined:

The constitutionality of an airport screening search, however, does not depend on

consent, see Biswell, 406 U.S. at 315, and requiring that a potential passenger be
allowed to revoke consent to an ongoing airport security search makes little sense in a
post-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to
penetrate airport security by "electing not to fly" on the cusp of detection until a
vulnerable portal is found. This rule would also allow terrorists a low-cost method of
detecting systematic vulnerabilities in airport security, knowledge that could be
extremely valuable in planning future attacks. Likewise, given that consent is not
required, it makes little sense to predicate the reasonableness of an administrative
airport screening search on an irrevocable implied consent theory. Rather, where an
airport screening search is otherwise reasonable and conducted pursuant to statutory
authority, 49 U.S.C. � 44901, all that is required is the passenger's election to
attempt entry into the secured area of an airport. See Biswell, 406 U.S. at 315; 49
C.F.R. � 1540.107. Under current TSA regulations and procedures, that election
occurs when a prospective passenger walks through the magnetometer or places items
on the conveyor belt of the x-�ray machine.61 (Citation omitted.)

Currently, US courts are of the view that the constitutionality of a screening search
does not depend on the passenger's consent once he enters the secured area of an
airport. The requirement in Davis62 of allowing passengers to avoid the search by
electing not to fly does not extend to one who has already submitted his luggage for an
x-ray scan.63 If a potential passenger chooses to avoid a search, he must elect not to
fly before placing his baggage on the x-ray machine's conveyor belt.64 The right to
abandon air travel must be exercised prior to commencing the screening procedures.
Any other rule would allow potential hijackers to leave whenever detection seemed
imminent and permit them to try again another day.65

The instant case does not qualify as a legitimate administrative search in an

airport.

Similar to the mission of the Transportation Security Administration of the US

Department of Homeland Security, the Office of Transportation Security under the
Department of Transportation and its predecessors has been primarily66 mandated to
ensure civil aviation security.67 To be precise, the OTS is tasked to implement Annex 17
of the ICAO Convention on aviation security which seeks to safeguard civil aviation and
its facilities against acts of unlawful interference, which include but not limited to:

1. unlawful seizure of aircraft,

2. destruction of an aircraft in service,

3. hostage-taking on board aircraft or on aerodromes,

4. forcible intrusion on board an aircraft, at an airport or on the premises of an

aeronautical facility,

5. introduction on board an aircraft or at an airport of a weapon or hazardous

device or material intended for criminal purposes,

6. use of an aircraft in service for the purpose of causing death, serious bodily
injury, or serious damage to property or the environment,

7. communication of false information such as to jeopardize the safety of an aircraft

in flight or on the ground, of passengers, crew, ground personnel or the general
public, at an airport or on the premises of a civil aviation facility.68

Among others, the OTS has to enforce R.A. No. 6235 or the Anti-�Hijacking Law.69 It
provides that an airline passenger and his hand-carried luggage are subject to search
for, and seizure of, prohibited materials or substances and that it is unlawful for any
person, natural or juridical, to ship, load or carry in any passenger aircraft, operating as
a public utility within the Philippines, any explosive, flammable, corrosive or poisonous
substance or material.70

It is in the context of air safety-related justifications, therefore, that routine airport

security searches and seizures are considered as permissible under Section 2, A1iicle III
of the Constitution.

In this case, what was seized from Eanna were two rolled sticks of dried marijuana
leaves. Obviously, they are not explosive, flammable, corrosive or poisonous
substances or materials, or dangerous elements or devices that may be used to commit
hijacking or acts of terrorism. More importantly, the illegal drugs were discovered only
during the final security checkpoint, after a pat down search was conducted by SSO
Suguitan, who did not act based on personal knowledge but merely relied on an
information given by CSI Tamayo that Eanna was possibly in possession of marijuana.
In marked contrast, the illegal drugs confiscated from the accused in Johnson and the
subsequent cases of People v. Canton,71People v. Suzuki,72Sales v. People,73 and People
v. Cadidia,74 where incidentally uncovered during the initial security check, in the course
of the routine airport screening, after the defendants were frisked and/or the alarm of
the metal detector was triggered.

Airport search is reasonable when limited in scope to the object of the Anti-Hijacking
program, not the war on illegal drugs. Unlike a routine search where a prohibited drug
was found by chance, a search on the person of the passenger or on his personal
belongings in a deliberate and conscious effort to discover an illegal drug is not
authorized under the exception to the warrant and probable cause requirement.75 The
Court is not empowered to suspend constitutional guarantees so that the government
may more effectively wage a "war on drugs." If that war is to be fought, those who
fight it must respect the rights of individuals, whether or not those individuals are
suspected of having committed a crime.76

Nonetheless, there is a valid consented warrantless search in this case.

The constitutional immunity against unreasonable searches and seizures is a personal

right which may be waived.77 A person may voluntarily consent to have government
officials conduct a search or seizure that would otherwise be barred by the Constitution.
Like the Fourth Amendment, Section 2, Article III of the Constitution does not proscribe
voluntary cooperation.78

Yet, a person's "consent to a [warrantless] search, in order to be voluntary, must be

unequivocal, specific and intelligently given, [and] uncontaminated by any duress or
coercion[.]"79 The question of whether a consent to a search was "voluntary" or was the
product of duress or coercion, express or implied, is a question of fact to be determined
from the totality of all the circumstances.80
Relevant to this determination are the following characteristics of the person giving
consent and the environment in which consent is given: (1) the age of the defendant;
(2) whether [he] was in a public or a secluded location; (3) whether [he] objected to
the search or passively looked on; (4) the education and intelligence of the defendant;
(5) the presence of coercive police procedures; (6) the defendant's belief that no
incriminating evidence [will] be found; (7) the nature of the police questioning; (8) the
environment in which the questioning took place; and (9) the possibly vulnerable
subjective state of the person consenting.81
Consent to a search is not to be lightly inferred, but shown by clear and convincing
evidence.82 The government bears the burden of proving "consent."83 In the US, it has
been held that when the government relies on the "consent" exception to the warrant
requirement, two main issues must be litigated: did the defendant indeed consent, and
did the defendant do so with the requisite voluntariness?84 Here, we have ruled that to
constitute a waiver, it must first appear 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.85

While knowledge of the right to refuse consent is one factor to be taken into account,
the government need not establish such knowledge as the sine qua non of effective
consent.86 On the other hand, lack of objection to the search and seizure is not
tantamount to a waiver of constitutional right or a voluntary submission to the
warrantless search and seizure.87 Even when security agents obtain a passenger's
express assent to a search, this assent ordinarily will not constitute a valid "consent" if
the attendant circumstances will establish nothing more than acquiescence to apparent
lawful authority.88

The Fourth Amendment inquiry of whether a reasonable person would have felt free to
decline the officers' requests or otherwise terminate the encounter applies equally to
police encounters that take place on trains, planes, and city streets.89 "Consent" that is
the product of official intimidation or harassment is not consent at all.90

In this case, the Court finds that there is a valid warrantless search based on express
consent. When SSO Suguitan requested to conduct a pat down search on Eanna, the
latter readily agreed. Record is devoid of any evidence that he manifested objection or
hesitation on the body search. The request to frisk him was orally articulated to him in
such language that left no room for doubt that he fully understood what was requested.
Unperturbed, he verbally replied to the request demonstrating that he also understood
the nature and consequences of the request. He voluntarily raised his hands by
stretching sideward to the level of his shoulders with palms open. His affirmative reply
and action cannot be viewed as merely an implied acquiescence or a passive conformity
to an authority considering that SSO Suguitan is not even a police officer and cannot be
said to have acted with a coercive or intimidating stance. Further, it is reasonable to
assume that Eanna is an educated and intelligent man. He is a 53-year old working
professional (claimed to be employed or attached to a drug addiction center) and a
well-travelled man (said to have been in 22 different countries and spent hours in
customs).91 Indubitably, he knew, actually or constructively, his right against
unreasonable searches or that he intentionally conceded the same. Having been
obtained through a valid warrantless search, the sticks of marijuana are admissible in
evidence against him. Corollorily, his subsequent arrest, although likewise without
warrant, was justified since it was effected upon the discovery and recovery of an illegal
drug in his person in flagrante delicto.

There is substantial compliance with the chain of custody rule.

At the time of the commission of the crime, the applicable law is R.A. No.
9165.92 Section 1 (b) of Dangerous Drugs Board Regulation No. 1, Series of 2002,
which implements the law, defines chain of custody as -
[T]he duly recorded authorized movements and custody of seized drugs or controlled
chemicals or plant sources of dangerous drugs or laboratory equipment of each stage,
from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping
to presentation in court for destruction. Such record of movements and custody of
seized item shall include the identity and signature of the person who held temporary
custody of the seized item, the date and time when such transfer of custody [was]
made in the course of safekeeping and use in court as evidence, and the final
disposition.93
The chain of custody rule is but a variation of the principle that real evidence must be
authenticated prior to its admission into evidence.94 To establish a chain of custody
sufficient to make evidence admissible, the proponent needs only to prove a rational
basis from which to conclude that the evidence is what the party claims it to be.95 In a
criminal case, the prosecution must offer sufficient evidence from which the trier of fact
could reasonably believe that an item still is what the government claims it to
be.96 As regards the prosecution of illegal drugs, the well-established US federal
evidentiary rule is when the evidence is not readily identifiable and is susceptible to
alteration by tampering or contamination, courts require a more stringent foundation
entailing a chain of custody of the item with sufficient completeness to render it
improbable that the original item has either been exchanged with another or been
contaminated or tampered with.97 This evidentiary rule was adopted in Mallillin v.
People,98 where this Court also discussed how, ideally, the chain of custody of seized
items should be established:
As a method of authenticating evidence, the chain of custody rule requires that the
admission of an exhibit be preceded by evidence sufficient to support a finding that the
matter in question is what the proponent claims it to be. It would include testimony
about every link in the chain, from the moment the item was picked up to the time it is
offered into evidence, in such a way that every person who touched the exhibit would
describe how and from whom it was received, where it was and what happened to it
while in the witness' possession, the condition in which it was received and the
condition in which it was delivered to the next link in the chain. These witnesses would
then describe the precautions taken to ensure that there had been no change in the
condition of the item and no opportunity for someone not in the chain to have
possession of the same.99
In the present case, the prosecution was able to prove, through the documentary and
testimonial evidence, that the integrity and evidentiary value of the seized items were
properly preserved in every step of the way.

Upon confiscation of the two rolled sticks of dried marijuana leaves from Eanna, SSO
Suguitan put them on the nearby screening table in front of Eanna and PO1 Manadao,
Jr. The sticks were the only items placed on the table.100 Thereafter, the seized items
were turned-over by SSO Suguitan to PO3 Javier, who placed them on a tray together
with he other belongings of Eanna.101 It must be emphasized that SSO Suguitan is an
airport screening officer and not a police officer who is authorized to "arrest" or
"apprehend"102 Eanna. Hence, he should not be considered as the "apprehending
officer" who must immediately mark and conduct the physical inventory and
photograph of the seized items conformably with Section 21 of R.A. No. 9165 and its
Implementing Rules and Regulations (IRR).

PO3 Javier was the only one in possession of the two rolled sticks of dried marijuana
leaves from the time he took custody of the same at the airport up to the time he
submitted the same to the crime laboratory office.103 At the PNP-ASG office, the
confiscated illegal drug was marked, physically inventoried, and photographed in front
of Eanna, with SSO Suguitan, a Barangay Chairman, a Barangay Kagawad, and an ABS-
CBN cameraman as witnesses.104 Per Request for Laboratory Examination,105 the
specimens were personally delivered by PO3 Javier to the Ilocos Norte Provincial Crime
Laboratory Service where PO3 Padayao received them. Finally, based on the Chemistry
Report106 of Police Inspector Navarro and the stipulation of facts107 agreed upon by the
parties, the specimens tested positive for the presence of marijuana after a qualitative
examination.

The specimens contained in the Ziploc re-sealable plastic bag that were marked, tested,
and presented in court were positively identified not only by PO3 Javier but also by SSO
Suguitan as the same two rolled sticks of dried marijuana leaves seized from
Eanna.108 Hence, it would be immaterial even if, as Eanna argues, PO3 Javier had no
personal knowledge of their possession by Eanna and their seizure by SSO Suguitan.

Eanna contends that the two sticks of rolled paper allegedly containing marijuana were
not marked immediately and were just laid bare on a table at the PNP-ASG office.
According to him, the ABS-CBN video footage taken shortly before midnight, which
Badua submitted and which was already edited following the news report format,
showed that the two sticks were without markings at first and then with markings later
on.

The Court notes that the compact disk showing the video of what transpired inside the
PNP-ASG office does not contain the full footage that Badua had taken. It was already
edited for purposes of news report.109 Assuming that there is truth to the allegation that
the two sticks of marijuana were not immediately marked, such fact does not
automatically result in an acquittal. As long as the integrity and evidentiary value of an
illegal drug were not compromised, non-compliance with Section 21 (1) of R.A. No.
9165 and its IRR may be excused. In several cases,110 we affirmed the conviction of the
accused-appellant despite recognizing that the seized illegal drug was not immediately
marked at the place of arrest. Likewise, in People v. Sic-open,111 the Court sustained
the conviction of the accused-�appellant even if the physical inventory and
photograph of the illegal drug were not immediately done at the place where it was
confiscated. Here, the reason for the non-observance with the rule is justified.
Immediate marking, physical inventory, and photograph of the confiscated drug cannot
be done at the final checkpoint area because it started to become crowded by the
constant comings and goings of departing passengers. The seized items were fittingly
brought by PO3 Javier to the PNP-ASG office where it was made sure that the barangay
officials and a media man were in attendance to witness the regularity of the entire
proceedings.

The peculiar situation in airports calls for a different treatment in the application of
Section 21 (1) of R.A. No. 9165 and its IRR. To require all the time the immediate
marking, physical inventory, and photograph of the seized illegal drug will definitely
have a domino effect on the entire airport operation no matter how brief the whole
procedure was conducted. Stuck passengers will cause flight delays, resulting not just
economic losses but security threats as well. Besides, to expect the immediate marking,
physical inventory, and photograph of the dangerous drug at the place of arrest is to
deny the reality that the persons112 required by law to witness the procedure are
unavailable at the moment of arrest. Unlike in a buy-bust operation which is supposed
to be pre-planned and already coordinated in order to ensure the instant presence of
necessary witnesses, arrests and seizures in airports due to illegal drugs are almost
always spontaneous and unanticipated.
In our view, the period of waiting for the arrival of the witnesses did not affect the
integrity and evidentiary value of the subject illegal drug, on the following grounds:

First, the airport police ensured that only authorized personnel were inside the PNP-ASG
office during the investigation. PO3 Javier claimed that he was with SPO3 Domingo,
PO1 Manadao, Jr., PO2 Caole, Jr., SSO Suguitan, SSO Bal-ot, and P/Supt. Apias.113 It
was only the members of the PNP-ASG and of the Laoag City PNP, the media, and the
two barangay officials who were allowed to stay inside the room.114 The defense counsel
recognized that the PNP-ASG office has a limited space and not big in size, estimating it
to be around three by four meters (although PO1 Terson approximated it to be five by
seven meters).115

Second, the airport police made sure that no one could touch the confiscated drug even
if it was in full view of everyone. PO3 Javier testified that the two rolled sticks of dried
marijuana leaves were placed on the investigation table where everybody could look
but not hold.116 Eanna could also see any attempt to switch or alter the evidence as he
was seated just in front of the table while the others guarded him.117 Interestingly,
instead of being concerned at the time of the risk of substitution, he even requested to
smoke so he was allowed to go out of the PNP-ASG office.118 Although the apprehending
officers could have exercised a better judgment, they are under no obligation to explain
why the accused was permitted to leave the office in order to smoke. Such fact should
not be taken against them as the integrity and evidentiary value of the seized items are
not automatically rendered infirmed. Certainly, we consider the totality of
eircumstanees present in this case. Eanna's right to be presumed innocent until proven
otherwise includes the constitutional right to enjoy his liberty, albeit in a restricted
sense due to his arrest. He retains his (limited) freedom of movement during the course
of the investigation. Likewise, it must be added that the natural tendeney of an
innocent person aceused of committing a crime is not to rest easy by ensuring that the
evidence being used against him is not altered, tampered or swapped. In this case,
Eanna's resolve to smoke outside notwithstanding a pending concern either shows that
he was adamant in his claim that what was confiscated from him were merely flavored
tobaeco or that he was already resigned to the fact that he was busted possessing
marijuana. The Court cannot speeulate or engage in guesswork.

And third, the plausibility of tampering with the evidence is nil as the airport police
were preoccupied in accomplishing the necessary documentation relative to the arrest
and seizure. PO3 Javier shared that while waiting for the arrival of the barangay
offieials, their group were busy preparing documents which mainly consist of reports
regarding the incident.119 The trial court equally noted that "there were a lot of things
they were doing like the preparation of the spot report that they [would] forward to
Manila such that their Deputy Chief even helped them. It is precisely for [this] reason
that the two sticks of marijuana [appear] to have been submitted to the crime lab only
at 12:50 a.m. of the following day, July 15, 2013."120

It has been raised that the drug evidence should have been placed in a sealed
container. Eanna asserts that the evidence was rendered susceptible to alteration,
tampering and swapping because the Ziploc was not sealed by an adhesive tape or any
means other than the natural, built-in re-sealable feature of the plastic bag. Contrary to
his allegation, however, the specimens that were submitted to the RTC were actually
placed in a big transparent re�sealable Hefty One Zip plastic bag sealed with a
masking tape with markings.121 Even if there is truth to his representation, the
specimens contained in the Ziploc re-sealable plastic bag that were marked, tested, and
presented in court were positively identified by SSO Suguitan and PO3 Javier, who both
testified under oath, as the same two rolled sticks of dried marijuana leaves that were
seized from Eanna. Raising a mere possibility is not enough. Eanna should have shown
with particularity how the drug evidence was altered, tampered or swapped. The nature
of illegal drugs as fungible things is not new to him. He is not a stranger to prohibited
drugs, claiming to be familiar with marijuana since he is employed or attached to a
drug addiction center and has been in 22 different countries and spent hours in
customs.122 As the RTC opined, he could have submitted for laboratory examination the
tiny grains of dried leaves and seeds that were found in his camera bag in order to
prove that the alleged sticks of marijuana seized from him were in fact flavored tobacco
that he used to smoke all the time.123

The same reasoning as above can be said even if we are to admit that PO3 Padayao
placed his own marking on the specimens he received from PO3 Javier and before he
turned them over to the forensic chemist. A marking made on the corpus delicti itself is
not automatically considered a form of contamination which irreversibly alters its
physical state and compromises its integrity and evidentiary value.

Where a defendant identifies a defect in the chain of custody, the prosecution must
introduce sufficient proof so that the judge could find that the item is in substantially
the same condition as when it was seized, and may admit the item if there is a
reasonable probability that it has not been changed in important respects.124 However,
there is a presumption of integrity of physical evidence absent a showing of bad faith, ill
will, or tampering with the evidence.125 Merely raising the possibility of tampering or
misidentification is insufficient to render evidence inadmissible.126 Absent some showing
by the defendant that the evidence has been tampered with, it will not be presumed
that those who had custody of it would do so.127 Where there is no evidence indicating
that tampering with the exhibits occurred, the courts presume that the public officers
have discharged their duties properly.128

In this jurisdiction, it has been consistently held that considering that the integrity of
the evidence is presumed to be preserved unless there is a showing of bad faith, ill will,
or proof that the evidence has been tampered with, the defendant bears the burden to
show that the evidence was tampered or meddled with to overcome a presumption of
regularity in the handling of exhibits by the public officers and a presumption that the
public officers properly discharge their duties.129People v. Agulay130 in fact ruled that
failure to comply with the procedure in Section 21 (a), Article II of the IRR of R.A No.
9165 does not bar the application of presumption of regularity in the performance of
official duties. Thus:
The dissent agreed with accused-appellant's assertion that the police operatives failed
to comply with the proper procedure in the custody of the seized drugs. It premised
that non-compliance with the procedure in Section 21 (a), Article II of the
Implementing Rules and Regulations of Republic Act No. 9165 creates an
irregularity and overcomes the presumption of regularity accorded police
authorities in the performance of their official duties. This assumption is without
merit.
First, it must be made clear that in several cases decided by the Court, failure
by the buy-bust team to comply with said section did not prevent the
presumption of regularity in the performance of duty from applying.

Second, even prior to the enactment of R.A. 9165, the requirements contained
in Section 21 (a) were already there per Dangerous Drugs Board Regulation
No. 3, Series of 1979. Despite the presence of such regulation and its non-
compliance by the buy-bust team, the Court still applied such presumption. We
held:

The failure of the arresting police officers to comply with said DDB Regulation No. 3,
Series of 1979 is a matter strictly between the Dangerous Drugs Board and the
arresting officers and is totally irrelevant to the prosecution of the criminal case for the
reason that the commission of the crime of illegal sale of a prohibited drug is
considered consummated once the sale or transaction is established and the
prosecution thereof is not undermined by the failure of the arresting officers to comply
with the regulations of the Dangerous Drugs Board.131 (Emphasis in the original)
People v. Daria, Jr.,132Peop1e v. Gratil,133 and People v. Bala134 have followed
the Agulay ruling.

It is unfortunate that rigid obedience to procedure on the chain of custody creates a

scenario wherein the safeguards supposedly set to shield the innocent are more often
than not exploited by the guilty to escape rightful punishment.135 The Court reiterates
that while the procedure on the chain of custody should be perfect, in reality, it is
almost always impossible to obtain an unbroken chain.136 The chain of custody need not
be perfect for the evidence to be admissible.137 A complete chain of custody need not
always be proved.138 Thus, failure to strictly comply with Section 21 (1) of R.A. No.
9165 does not necessarily render an accused person's anest illegal or the items seized
or confiscated from him inadmissible or render void and invalid such seizure.139 The
most important factor is the preservation of the integrity and evidentiary value of the
seized item.140

Non-compliance with the requirements of the law is not automatically fatal to the
prosecution's case and the accused may still be held guilty of the offense charged. This
Court ratiocinated in People v. Del Monte:141
Under Section 3 of Rule 128 of the Rules of Court, evidence is admissible when it is
relevant to the issue and is not excluded by the law or these rules. For evidence to be
inadmissible, there should be a law or rule which forbids its reception. If there is no
such law or rule, the evidence must be admitted subject only to the evidentiary weight
that will [be] accorded [to] it by the courts. x x x

We do not find any provision or statement in said law or in any rule that will bring
about the non-admissibility of the confiscated and/or seized drugs due to non-
compliance with Section 21 of Republic Act No. 9165. The issue therefore, if there is
non-compliance with said section, is not of admissibility, but of weight - evidentiary
merit or probative value - to be given the evidence. The weight to be given by the
courts on said evidence depends on the circumstances obtaining in each case.142 (Italics
in the original.)
We restated in People v. Moner143 that if the evidence of illegal drugs was not handled
precisely in the manner prescribed by the chain of custody rule, the consequence
relates not to inadmissibility that would automatically destroy the prosecution's case
but rather to the weight of evidence presented for each particular case. The saving
clause under Section 21 (1) of R.A. No. 9165 recognizes that the credibility of the
prosecution's witnesses and the admissibility of other evidence are well within the
power of trial court judges to decide. The Court went on to state that under the doctrine
of separation of powers, it is important to distinguish if a matter is a proper subject of
the rules of evidence, which are promulgated by the Court pursuant to paragraph (5),
Section 5, Article VIII of the 1987 Constitution, or if it is a subject of substantive law,
which is passed by an act of Congress. Taking into account the distinction in criminal
law that a substantive law declares what acts are crimes and prescribes the punishment
for committing them while a procedural law provides or regulates the steps by which
one who commits a crime is to be punished, it was concluded that the chain of custody
rule is a matter of evidence and a rule of procedure; therefore, it is the Cmni which has
the last say regarding the appreciation of evidence.

Certainly, the chain of custody rule is a matter of evidence and a rule of procedure, it
being ultimately anchored on the weight and admissibility of evidence which the courts
have the exclusive prerogative to decide. Any missing link, gap, doubt, challenge,
break, problem, defect or deficiency in the chain of custody goes to the weight of the
evidence, not its admissibility.144 Once admitted, the court evaluates it and, based
thereon, may accept or disregard the evidence.145 In People v. Sipin,146 this Court,
through the ponente, recently conveyed:
At this point, it is not amiss for the ponente to express his position regarding the issue
of which between the Congress and the Judiciary has jurisdiction to determine
sufficiency of compliance with the rule on chain of custody, which essentially boils down
to the application of procedural rules on admissibility of evidence. In this regard,
the ponente agrees with the view of Hon. Associate Justice Teresita J. Leonardo-De
Castro in People v. Teng Moner y Adam that "if the evidence of illegal drugs was not
handled precisely in the manner prescribed by the chain of custody rule, the
consequence relates not to inadmissibility that would automatically destroy the
prosecution's case but rather to the weight of evidence presented for each particular
case." As aptly pointed out by Justice Leonardo-De Castro, the Court's power to
promulgate judicial rules, including rules of evidence, is no longer shared by the Court
with Congress.

The ponente subscribes to the view of Justice Leonardo-De Castro that the chain of
custody rule is a matter of evidence and a rule of procedure, and that the Court has the
last say regarding the appreciation of evidence. Evidentiary matters are indeed well
within the powers of courts to appreciate and rule upon, and so, when the courts find
appropriate, substantial compliance with the chain of custody rule as long as the
integrity and evidentiary value of the seized items have been preserved may wanant
the conviction of the accused.

The ponente further submits that the requirements of marking the seized items,
conduct of inventory and taking photograph in the presence of a
representative from the media or the DOJ and a local elective official, are
police investigation procedures which call for administrative sanctions in case
of non-compliance. Violation of such procedure may even merit penalty under
R.A. No. 9165, to wit:
Section 29. Criminal Liability for Planting of Evidence. - Any person who is found guilty
of "planting" any dangerous drug and/or controlled precursor and essential chemical,
regardless of quantity and purity, shall suffer the penalty of death.

Section 32. Liability to a Person Violating Any Regulation Issued by the Board. - The
penalty of imprisonment ranging from six (6) months and one (1) day to four (4) years
and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty thousand pesos
(P50,000.00) shall be imposed upon any person found violating any regulation duly
issued by the Board pursuant to this Act, in addition to the administrative sanctions
imposed by the Board.
However, non-observance of such police administrative procedures should not affect
the validity of the seizure of the evidence, because the issue of chain of custody is
ultimately anchored on the admissibility of evidence, which is exclusively within the
prerogative of the courts to decide in accordance with the rules on evidence. (Emphasis
and italics in the original)
Strict compliance with the requirements of Section 21 (1) of R.A. No. 9165 may not
always be possible under field conditions; the police operates under varied conditions,
many of them far from ideal, and cannot at all times attend to all the niceties of the
procedures in the handling of confiscated evidence.147 Like what have been done in past
cases, we must not look for the stringent step-by-step adherence to the procedural
requirements; what is important is to ensure the preservation of the integrity and the
evidentiary value of the seized items, as these would detennine the guilt or innocence
of the accused.148 The identity of the confiscated drugs is preserved when the drug
presented and offered as evidence in court is the exact same item seized from the
accused at the time of his arrest, while the preservation of the drug's integrity means
that its evidentiary value is intact as it was not subject to planting, switching,
tampering or any other circumstance that casts doubt as to its existence.149

To assess an allegedly faulty chain of custody, the court looks for ampie corroborative
evidence as to the evidence's acquisition and subsequent custody.150 Before admitting
or excluding real evidence, it must consider the nature of the evidence, and the
surrounding circumstances, including presentation, custody and probability of
tampering or alteration.151 If, after considering these factors, it is determined that the
evidence is substantially in the same condition as when the crime was committed, the
evidence may be admitted.152 The court need not rule out every possibility that the
evidence underwent alteration; it needs only to find that the reasonable
probability is that the evidence has not been altered in any material aspect.153 Physical
evidence is admissible when the possibilities of misidentification or alteration are
eliminated, not absolutely, but as a matter of reasonable probability.154 All that is
required is that the evidence m question was the same as that involved in the offense
and that it 1s substantially unchanged.155

Courts are reminded to tread carefully before giving full credit to the testimonies of
those who conducted the illegal drug operations and must thoroughly evaluate and
differentiate those errors that constitute a simple procedural lapse from those that
amount to a gross, systematic, or deliberate disregard of the safeguards drawn by the
law and the rules.156 In the performance of this function, among the evidentiary rules to
apply are the following: test in measuring the value of a witness' testimony,
appreciation of inculpatory facts, positive and negative evidence, one-witness rule, best
evidence rule, suppression of evidence, presumption of regular performance of official
duty, rules on circumstantial evidence and conspiracy, and (non) presentation of poseur
buyer or marked money.157

WHEREFORE, premises considered, the February 9, 2016 Decision and the July 21,
2016 Resolution of the Court of Appeals in CA-G.R. CR No. 36412, which affirmed the
November 22,2013 Decision of the Regional Trial Court, Branch 13, Laoag City, in
Criminal Case No. 15585-13, finding accused-appellant Eanna O'Cochlain guilty for
violation of Section 11, Article II of Republic Act No. 9165, are AFFIRMED.

SO ORDERED.

HON. RICARDO G. PAPA, as Chief of Police of Manila; HON. JUAN PONCE ENRILE, as
Commissioner of Customs; PEDRO PACIS, as Collector of Customs of the Port of Manila; and
MARTIN ALAGAO, as Patrolman of the Manila Police Department, petitioners,
vs.
REMEDIOS MAGO and HILARION U. JARENCIO, as Presiding Judge of Branch 23, Court of
First Instance of Manila, respondents.

Office of the Solicitor General for petitioners.

Juan T. David for respondents.

ZALDIVAR, J.:

This is an original action for prohibition and certiorari, with preliminary injunction filed by
Ricardo Papa, Chief of Police of Manila; Juan once Enrile, Commissioner of Customs; Pedro Pacis,
Collector of Customs of the Port of Manila; and Martin Alagao, a patrolman of the Manila Police
Department, against Remedios Mago and Hon. Hilarion Jarencio, Presiding Judge of Branch 23 of
the Court of First Instance of Manila, praying for the annulment of the order issued by respondent
Judge in Civil Case No. 67496 of the Court of First Instance of Manila under date of March 7, 1967,
which authorized the release under bond of certain goods which were seized and held by petitioners
in connection with the enforcement of the Tariff and Customs Code, but which were claimed by
respondent Remedios Mago, and to prohibit respondent Judge from further proceeding in any
manner whatsoever in said Civil Case No. 67496. Pending the determination of this case this Court
issued a writ of preliminary injunction restraining the respondent Judge from executing, enforcing
and/or implementing the questioned order in Civil Case No. 67496 and from proceeding with said
case.

Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila Police
Department, acting upon a reliable information received on November 3, 1966 to the effect that a
certain shipment of personal effects, allegedly misdeclared and undervalued, would be released the
following day from the customs zone of the port of Manila and loaded on two trucks, and upon orders
of petitioner Ricardo Papa, Chief of Police of Manila and a duly deputized agent of the Bureau of
Customs, conducted surveillance at gate No. 1 of the customs zone. When the trucks left gate No. 1
at about 4:30 in the afternoon of November 4, 1966, elements of the counter-intelligence unit went
after the trucks and intercepted them at the Agrifina Circle, Ermita, Manila. The load of the two trucks
consisting of nine bales of goods, and the two trucks, were seized on instructions of the Chief of
Police. Upon investigation, a person claimed ownership of the goods and showed to the policemen a
"Statement and Receipts of Duties Collected in Informal Entry No. 147-5501", issued by the Bureau
of Customs in the name of a certain Bienvenido Naguit.

Claiming to have been prejudiced by the seizure and detention of the two trucks and their
cargo, Remedios Mago and Valentin B. Lanopa filed with the Court of First Instance of Manila a
petition "for mandamus with restraining order or preliminary injunction, docketed as Civil Case No.
67496, alleging, among others, that Remedios Mago was the owner of the goods seized, having
purchased them from the Sta. Monica Grocery in San Fernando, Pampanga; that she hired the
trucks owned by Valentin Lanopa to transport, the goods from said place to her residence at 1657
Laon Laan St., Sampaloc, Manila; that the goods were seized by members of the Manila Police
Department without search warrant issued by a competent court; that anila Chief of Police Ricardo
Papa denied the request of counsel for Remedios Mago that the bales be not opened and the goods
contained therein be not examined; that then Customs Commissioner Jacinto Gavino had illegally
assigned appraisers to examine the goods because the goods were no longer under the control and
supervision of the Commissioner of Customs; that the goods, even assuming them to have been
misdeclared and, undervalued, were not subject to seizure under Section 2531 of the Tariff and
Customs Code because Remedios Mago had bought them from another person without knowledge
that they were imported illegally; that the bales had not yet been opened, although Chief of Police
Papa had arranged with the Commissioner of Customs regarding the disposition of the goods, and
that unless restrained their constitutional rights would be violated and they would truly suffer
irreparable injury. Hence, Remedios Mago and Valentin Lanopa prayed for the issuance of a
restraining order, ex parte, enjoining the above-named police and customs authorities, or their
agents, from opening the bales and examining the goods, and a writ of mandamus for the return of
the goods and the trucks, as well as a judgment for actual, moral and exemplary damages in their
favor.

On November 10, 1966, respondent Judge Hilarion Jarencio issued an order ex

parte restraining the respondents in Civil Case No. 67496 — now petitioners in the instant case
before this Court — from opening the nine bales in question, and at the same time set the hearing of
the petition for preliminary injunction on November 16, 1966. However, when the restraining order
was received by herein petitioners, some bales had already been opened by the examiners of the
Bureau of Customs in the presence of officials of the Manila Police Department, an assistant city
fiscal and a representative of herein respondent Remedios Mago.

Under date of November 15, 1966, Remedios Mago filed an amended petition in Civil Case
No. 67496, including as party defendants Collector of Customs Pedro Pacis of the Port of Manila
and Lt. Martin Alagao of the Manila Police Department. Herein petitioners (defendants below) filed,
on November 24, 1966, their "Answer with Opposition to the Issuance of a Writ of Preliminary
Injunction", denying the alleged illegality of the seizure and detention of the goods and the trucks
and of their other actuations, and alleging special and affirmative defenses, to wit: that the Court of
First Instance of Manila had no jurisdiction to try the case; that the case fell within the exclusive
jurisdiction of the Court of Tax Appeals; that, assuming that the court had jurisdiction over the case,
the petition stated no cause of action in view of the failure of Remedios Mago to exhaust the
administrative remedies provided for in the Tariff and Customs Code; that the Bureau of Customs
had not lost jurisdiction over the goods because the full duties and charges thereon had not been
paid; that the members of the Manila Police Department had the power to make the seizure; that the
seizure was not unreasonable; and the persons deputized under Section 2203 (c) of the Tariff and
Customs Code could effect search, seizures and arrests in inland places in connection with the
enforcement of the said Code. In opposing the issuance of the writ of preliminary injunction, herein
petitioners averred in the court below that the writ could not be granted for the reason that Remedios
Mago was not entitled to the main reliefs she prayed for; that the release of the goods, which were
subject to seizure proceedings under the Tariff and Customs Code, would deprive the Bureau of
Customs of the authority to forfeit them; and that Remedios Mago and Valentin Lanopa would not
suffer irreparable injury. Herein petitioners prayed the court below for the lifting of the restraining
order, for the denial of the issuance of the writ of preliminary injunction, and for the dismissal of the
case.

At the hearing on December 9, 1966, the lower Court, with the conformity of the parties,
ordered that an inventory of the goods be made by its clerk of court in the presence of the
representatives of the claimant of the goods, the Bureau of Customs, and the Anti-Smuggling Center
of the Manila Police Department. On December 13, 1966, the above-named persons filed a
"Compliance" itemizing the contents of the nine bales.

Herein respondent Remedios Mago, on December 23, 1966, filed an ex parte motion to
release the goods, alleging that since the inventory of the goods seized did not show any article of
prohibited importation, the same should be released as per agreement of the patties upon her
posting of the appropriate bond that may be determined by the court. Herein petitioners filed their
opposition to the motion, alleging that the court had no jurisdiction to order the release of the goods
in view of the fact that the court had no jurisdiction over the case, and that most of the goods, as
shown in the inventory, were not declared and were, therefore, subject to forfeiture. A supplemental
opposition was filed by herein petitioners on January 19, 1967, alleging that on January 12, 1967
seizure proceedings against the goods had been instituted by the Collector of Customs of the Port of
Manila, and the determination of all questions affecting the disposal of property proceeded against in
seizure and forfeiture proceedings should thereby be left to the Collector of Customs. On January
30, 1967, herein petitioners filed a manifestation that the estimated duties, taxes and other charges
due on the goods amounted to P95,772.00. On February 2, 1967, herein respondent Remedios
Mago filed an urgent manifestation and reiteration of the motion for the release under bond of the
goods.

On March 7, 1967, the respondent Judge issued an order releasing the goods to herein
respondent Remedios Mago upon her filing of a bond in the amount of P40,000.00, and on March
13, 1967, said respondent filed the corresponding bond.

On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed a motion for
reconsideration of the order of the court releasing the goods under bond, upon the ground that the
Manila Police Department had been directed by the Collector of Customs of the Port of Manila to
hold the goods pending termination of the seizure proceedings.

Without waiting for the court's action on the motion for reconsideration, and alleging that they
had no plain, speedy and adequate remedy in the ordinary course of law, herein petitioners filed the
present action for prohibition and certiorari with preliminary injunction before this Court. In their
petition petitioners alleged, among others, that the respondent Judge acted without jurisdiction in
ordering the release to respondent Remedios Mago of the disputed goods, for the following reasons:
(1) the Court of First Instance of Manila, presided by respondent Judge, had no jurisdiction over the
case; (2) respondent Remedios Mago had no cause of action in Civil Case No. 67496 of the Court of
First Instance of Manila due to her failure to exhaust all administrative remedies before invoking
judicial intervention; (3) the Government was not estopped by the negligent and/or illegal acts of its
agent in not collecting the correct taxes; and (4) the bond fixed by respondent Judge for the release
of the goods was grossly insufficient.

In due time, the respondents filed their answer to the petition for prohibition and certiorari in
this case. In their answer, respondents alleged, among others: (1) that it was within the jurisdiction of
the lower court presided by respondent Judge to hear and decide Civil Case No. 67496 and to issue
the questioned order of March 7, 1967, because said Civil Case No. 67496 was instituted long
before seizure, and identification proceedings against the nine bales of goods in question were
instituted by the Collector of Customs; (2) that petitioners could no longer go after the goods in
question after the corresponding duties and taxes had been paid and said goods had left the
customs premises and were no longer within the control of the Bureau of Customs; (3) that
respondent Remedios Mago was purchaser in good faith of the goods in question so that those
goods can not be the subject of seizure and forfeiture proceedings; (4) that the seizure of the goods
was affected by members of the Manila Police Department at a place outside control of jurisdiction of
the Bureau of Customs and affected without any search warrant or a warrant of seizure and
detention; (5) that the warrant of seizure and detention subsequently issued by the Collector of
Customs is illegal and unconstitutional, it not being issued by a judge; (6) that the seizing officers
have no authority to seize the goods in question because they are not articles of prohibited
importation; (7) that petitioners are estopped to institute the present action because they had agreed
before the respondent Judge that they would not interpose any objection to the release of the goods
under bond to answer for whatever duties and taxes the said goods may still be liable; and (8) that
the bond for the release of the goods was sufficient.

The principal issue in the instant case is whether or not, the respondent Judge had acted with
jurisdiction in issuing the order of March 7, 1967 releasing the goods in question.

The Bureau of Customs has the duties, powers and jurisdiction, among others, (1) to assess
and collect all lawful revenues from imported articles, and all other dues, fees, charges, fines and
penalties, accruing under the tariff and customs laws; (2) to prevent and suppress smuggling and
other frauds upon the customs; and (3) to enforce tariff and customs laws. 1 The goods in question
were imported from Hongkong, as shown in the "Statement and Receipts of Duties Collected on
Informal Entry". 2 As long as the importation has not been terminated the imported goods remain
under the jurisdiction of the Bureau of customs. Importation is deemed terminated only upon the
payment of the duties, taxes and other charges upon the articles, or secured to be paid, at the port
of entry and the legal permit for withdrawal shall have been granted. 3 The payment of the duties,
taxes, fees and other charges must be in full. 4

The record shows, by comparing the articles and duties stated in the aforesaid "Statement and
Receipts of Duties Collected on Informal Entry" with the manifestation of the Office of the Solicitor
General 5 wherein it is stated that the estimated duties, taxes and other charges on the goods subject
of this case amounted to P95,772.00 as evidenced by the report of the appraiser of the Bureau of
Customs, that the duties, taxes and other charges had not been paid in full. Furthermore, a
comparison of the goods on which duties had been assessed, as shown in the "Statement and
Receipts of Duties Collected on Informal Entry" and the "compliance" itemizing the articles found in
the bales upon examination and inventory, 6 shows that the quantity of the goods was underdeclared,
presumably to avoid the payment of duties thereon. For example, Annex B (the statement and
receipts of duties collected) states that there were 40 pieces of ladies' sweaters, whereas Annex H
(the inventory contained in the "compliance") states that in bale No. 1 alone there were 42 dozens
and 1 piece of ladies' sweaters of assorted colors; in Annex B, only 100 pieces of watch bands were
assessed, but in Annex H, there were in bale No. 2, 209 dozens and 5 pieces of men's metal watch
bands (white) and 120 dozens of men's metal watch band (gold color), and in bale No. 7, 320
dozens of men's metal watch bands (gold color); in Annex B, 20 dozens only of men's handkerchief
were declared, but in Annex H it appears that there were 224 dozens of said goods in bale No. 2,
120 dozens in bale No. 6, 380 dozens in bale No. 7, 220 dozens in bale No. 8, and another 200
dozens in bale No. 9. The articles contained in the nine bales in question, were, therefore, subject to
forfeiture under Section 2530, pars. e and m, (1), (3), (4), and (5) of the Tariff and Customs Code.
And this Court has held that merchandise, the importation of which is effected contrary to law, is
subject to forfeiture, 7 and that goods released contrary to law are subject to seizure and forfeiture. 8
 Even if it be granted, arguendo, that after the goods in question had been brought out of the
customs area the Bureau of Customs had lost jurisdiction over the same, nevertheless, when said
goods were intercepted at the Agrifina Circle on November 4, 1966 by members of the Manila Police
Department, acting under directions and orders of their Chief, Ricardo C. Papa, who had been
formally deputized by the Commissioner of Customs, 9 the Bureau of Customs had regained
jurisdiction and custody of the goods. Section 1206 of the Tariff and Customs Code imposes upon
the Collector of Customs the duty to hold possession of all imported articles upon which duties,
taxes, and other charges have not been paid or secured to be paid, and to dispose of the same
according to law. The goods in question, therefore, were under the custody and at the disposal of
the Bureau of Customs at the time the petition for mandamus, docketed as Civil Case No. 67496,
was filed in the Court of First Instance of Manila on November 9, 1966. The Court of First Instance of
Manila, therefore, could not exercise jurisdiction over said goods even if the warrant of seizure and
detention of the goods for the purposes of the seizure and forfeiture proceedings had not yet been
issued by the Collector of Customs.

The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et al.," G.R. No. L-
24037, decided by this Court on April 27, 1967, is squarely applicable to the instant case. In the De
Joya case, it appears that Francindy Commercial of Manila bought from Ernerose Commercial of
Cebu City 90 bales of assorted textiles and rags, valued at P117,731.00, which had been imported
and entered thru the port of Cebu. Ernerose Commercial shipped the goods to Manila on board an
inter-island vessel. When the goods where about to leave the customs premises in Manila, on
October 6, 1964, the customs authorities held them for further verification, and upon examination the
goods were found to be different from the declaration in the cargo manifest of the carrying vessel.
Francindy Commercial subsequently demanded from the customs authorities the release of the
goods, asserting that it is a purchaser in good faith of those goods; that a local purchaser was
involved so the Bureau of Customs had no right to examine the goods; and that the goods came
from a coastwise port. On October 26, 1964, Francindy Commercial filed in the Court of First
Instance of Manila a petition for mandamus against the Commissioner of Customs and the Collector
of Customs of the port of Manila to compel said customs authorities to release the goods.

Francindy Commercial alleged in its petition for mandamus that the Bureau of Customs had no
jurisdiction over the goods because the same were not imported to the port of Manila; that it was not
liable for duties and taxes because the transaction was not an original importation; that the goods
were not in the hands of the importer nor subject to importer's control, nor were the goods imported
contrary to law with its (Francindy Commercial's) knowledge; and that the importation had been
terminated. On November 12, 1964, the Collector of Customs of Manila issued a warrant of seizure
and identification against the goods. On December 3, 1964, the Commissioner of Customs and the
Collector of Customs, as respondents in the mandamus case, filed a motion to dismiss the petition
on the grounds of lack of jurisdiction, lack of cause of action, and in view of the pending seizure and
forfeiture proceedings. The Court of First Instance held resolution on the motion to dismiss in
abeyance pending decision on the merits. On December 14, 1964, the Court of First Instance of
Manila issued a preventive and mandatory injunction, on prayer by Francindy Commercial, upon a
bond of P20,000.00. The Commissioner of Customs and the Collector of Customs sought the lifting
of the preliminary and mandatory injunction, and the resolution of their motion to dismiss. The Court
of First Instance of Manila, however, on January 12, 1965, ordered them to comply with the
preliminary and mandatory injunction, upon the filing by Francindy Commercial of an additional bond
of P50,000.00. Said customs authorities thereupon filed with this Court, on January 14, 1965, a
petition for certiorari and prohibition with preliminary injunction. In resolving the question raised in
that case, this Court held:

This petition raises two related issues: first, has the Customs bureau jurisdiction to
seize the goods and institute forfeiture proceedings against them? and (2) has the Court of
 First Instance jurisdiction to entertain the petition for mandamus to compel the Customs
authorities to release the goods?

Francindy Commercial contends that since the petition in the Court of first Instance
was filed (on October 26, 1964) ahead of the issuance of the Customs warrant of seizure
and forfeiture (on November 12, 1964),the Customs bureau should yield the jurisdiction of
the said court.

The record shows, however, that the goods in question were actually seized on
October 6, 1964, i.e., before Francindy Commercial sued in court. The purpose of the
seizure by the Customs bureau was to verify whether or not Custom duties and taxes were
paid for their importation. Hence, on December 23, 1964, Customs released 22 bales
thereof, for the same were found to have been released regularly from the Cebu Port
(Petition Annex "L"). As to goods imported illegally or released irregularly from Customs
custody, these are subject to seizure under Section 2530 m. of the Tariff and Customs Code
(RA 1957).

The Bureau of Customs has jurisdiction and power, among others to collect revenues
from imported articles, fines and penalties and suppress smuggling and other frauds on
customs; and to enforce tariff and customs laws (Sec. 602, Republic Act 1957).

The goods in question are imported articles entered at the Port of Cebu. Should they
be found to have been released irregularly from Customs custody in Cebu City, they are
subject to seizure and forfeiture, the proceedings for which comes within the jurisdiction of
the Bureau of Customs pursuant to Republic Act 1937.

Said proceeding should be followed; the owner of the goods may set up defenses
therein (Pacis v. Averia, L-22526, Nov. 20, 1966.) From the decision of the Commissioner of
Customs appeal lies to the Court of Tax Appeals, as provided in Sec. 2402 of Republic Act
1937 and Sec. 11 of Republic Act, 1125. To permit recourse to the Court of First Instance in
cases of seizure of imported goods would in effect render ineffective the power of the
Customs authorities under the Tariff and Customs Code and deprive the Court of Tax
Appeals of one of its exclusive appellate jurisdictions. As this Court has ruled in Pacis v.
Averia, supra, Republic Acts 1937 and 1125 vest jurisdiction over seizure and forfeiture
proceedings exclusively upon the Bureau of Customs and the Court of Tax Appeals. Such
law being special in nature, while the Judiciary Act defining the jurisdiction of Courts of First
Instance is a general legislation, not to mention that the former are later enactments, the
Court of First Instance should yield to the jurisdiction of the Customs authorities.

It is the settled rule, therefore, that the Bureau of Customs acquires exclusive jurisdiction over
imported goods, for the purposes of enforcement of the customs laws, from the moment the goods
are actually in its possession or control, even if no warrant of seizure or detention had previously
been issued by the Collector of Customs in connection with seizure and forfeiture proceedings. In
the present case, the Bureau of Customs actually seized the goods in question on November 4,
1966, and so from that date the Bureau of Customs acquired jurisdiction over the goods for the
purposes of the enforcement of the tariff and customs laws, to the exclusion of the regular courts.
Much less then would the Court of First Instance of Manila have jurisdiction over the goods in
question after the Collector of Customs had issued the warrant of seizure and detention on January
12, 1967. 10 And so, it cannot be said, as respondents contend, that the issuance of said warrant was
only an attempt to divest the respondent Judge of jurisdiction over the subject matter of the case.
The court presided by respondent Judge did not acquire jurisdiction over the goods in question when
the petition for mandamus was filed before it, and so there was no need of divesting it of jurisdiction.
Not having acquired jurisdiction over the goods, it follows that the Court of First Instance of Manila
had no jurisdiction to issue the questioned order of March 7, 1967 releasing said goods.

Respondents also aver that petitioner Martin Alagao, an officer of the Manila Police
Department, could not seize the goods in question without a search warrant. This contention cannot
be sustained. The Chief of the Manila Police Department, Ricardo G. Papa, having been deputized
in writing by the Commissioner of Customs, could, for the purposes of the enforcement of the
customs and tariff laws, effect searches, seizures, and arrests, 11 and it was his duty to make seizure,
among others, of any cargo, articles or other movable property when the same may be subject to
forfeiture or liable for any fine imposed under customs and tariff laws. 12 He could lawfully open and
examine any box, trunk, envelope or other container wherever found when he had reasonable cause
to suspect the presence therein of dutiable articles introduced into the Philippines contrary to law;
and likewise to stop, search and examine any vehicle, beast or person reasonably suspected of
holding or conveying such article as aforesaid. 13 It cannot be doubted, therefore, that petitioner
Ricardo G. Papa, Chief of Police of Manila, could lawfully effect the search and seizure of the goods
in question. The Tariff and Customs Code authorizes him to demand assistance of any police officer
to effect said search and seizure, and the latter has the legal duty to render said assistance. 14 This
was what happened precisely in the case of Lt. Martin Alagao who, with his unit, made the search
and seizure of the two trucks loaded with the nine bales of goods in question at the Agrifina Circle.
He was given authority by the Chief of Police to make the interception of the cargo. 15

Petitioner Martin Alagao and his companion policemen had authority to effect the seizure
without any search warrant issued by a competent court. The Tariff and Customs Code does not
require said warrant in the instant case. The Code authorizes persons having police authority under
Section 2203 of the Tariff and Customs Code to enter, pass through or search any land, inclosure,
warehouse, store or building, not being a dwelling house; and also to inspect, search and examine
any vessel or aircraft and any trunk, package, or envelope or any person on board, or to stop and
search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or
prohibited article introduced into the Philippines contrary to law, without mentioning the need of a
search warrant in said cases. 16 But in the search of a dwelling house, the Code provides that said
"dwelling house may be entered and searched only upon warrant issued by a judge or justice of the
peace. . . ." 17 It is our considered view, therefor, that except in the case of the search of a dwelling
house, persons exercising police authority under the customs law may effect search and seizure
without a search warrant in the enforcement of customs laws.

Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R., 790, 799,
wherein the court, considering a legal provision similar to Section 2211 of the Philippine Tariff and
Customs Code, said as follows:

Thus contemporaneously with the adoption of the 4th Amendment, we find in the first
Congress, and in the following second and fourth Congresses, a difference made as to the
necessity for a search warrant between goods subject to forfeiture, when concealed in a
dwelling house of similar place, and like goods in course of transportation and concealed in a
movable vessel, where readily they could be put out of reach of a search warrant. . . .

Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L.231, 232, chap. 94), it
was made lawful for customs officers not only to board and search vessels within their own
and adjoining districts, but also to stop, search and examine any vehicle, beast or person on
which or whom they should suspect there was merchandise which was subject to duty, or
had been introduced into the United States in any manner contrary to law, whether by the
person in charge of the vehicle or beast or otherwise, and if they should find any goods,
wares, or merchandise thereon, which they had probably cause to believe had been so
 unlawfully brought into the country, to seize and secure the same, and the vehicle or beast
as well, for trial and forfeiture. This Act was renewed April 27, 1816 (3 Sta. at L. 315, chap.
100), for a year and expired. The Act of February 28, 1865, revived § 2 of the Act of 1815,
above described, chap. 67, 13 Stat. at L. 441. The substance of this section was re-enacted
in the 3d section of the Act of July 18, 1866, chap. 201, 14 Stat. at L. 178, and was thereafter
embodied in the Revised Statutes as § 3061, Comp. Stat. § 5763, 2 Fed. Stat. Anno. 2d ed.
p. 1161. Neither § 3061 nor any of its earlier counterparts has ever been attacked as
unconstitutional. Indeed, that section was referred to and treated as operative by this court in
Von Cotzhausen v. Nazro, 107 U.S. 215, 219, 27 L. ed. 540, 541, 2 Sup. Ct. Rep. 503. . . .

In the instant case, we note that petitioner Martin Alagao and his companion policemen did not
have to make any search before they seized the two trucks and their cargo. In their original petition,
and amended petition, in the court below Remedios Mago and Valentin Lanopa did not even allege
that there was a search. 18 All that they complained of was,

That while the trucks were on their way, they were intercepted without any search
warrant near the Agrifina Circle and taken to the Manila Police Department, where they were
detained.

But even if there was a search, there is still authority to the effect that no search warrant would
be needed under the circumstances obtaining in the instant case. Thus, it has been held that:

The guaranty of freedom from unreasonable searches and seizures is construed as

recognizing a necessary difference between a search of a dwelling house or other structure
in respect of which a search warrant may readily be obtained and a search of a ship,
motorboat, wagon, or automobile for contraband goods, where it is not practicable to secure
a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which
the warrant must be sought. (47 Am. Jur., pp. 513-514, citing Carroll v. United States, 267
U.S. 132, 69 L. ed., 543, 45 S. Ct., 280, 39 A.L.R., 790; People v. Case, 320 Mich., 379, 190
N.W., 389, 27 A.L.R., 686.)

In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686), the question
raised by defendant's counsel was whether an automobile truck or an automobile could be searched
without search warrant or other process and the goods therein seized used afterwards as evidence
in a trial for violation of the prohibition laws of the State. Same counsel contended the negative,
urging the constitutional provision forbidding unreasonable searches and seizures. The Court said:

. . . Neither our state nor the Federal Constitution directly prohibits search and seizure
without a warrant, as is sometimes asserted. Only "unreasonable" search and seizure is
forbidden. . . .

. . . The question whether a seizure or a search is unreasonable in the language of the

Constitution is a judicial and not a legislative question; but in determining whether a seizure
is or is not unreasonable, all of the circumstances under which it is made must be looked to.

The automobile is a swift and powerful vehicle of recent development, which has
multiplied by quantity production and taken possession of our highways in battalions until the
slower, animal-drawn vehicles, with their easily noted individuality, are rare. Constructed as
covered vehicles to standard form in immense quantities, and with a capacity for speed
rivaling express trains, they furnish for successful commission of crime a disguising means of
silent approach and swift escape unknown in the history of the world before their advent. The
question of their police control and reasonable search on highways or other public places is
 a serious question far deeper and broader than their use in so-called "bootleging" or "rum
running," which is itself is no small matter. While a possession in the sense of private
ownership, they are but a vehicle constructed for travel and transportation on highways.
Their active use is not in homes or on private premises, the privacy of which the law
especially guards from search and seizure without process. The baffling extent to which they
are successfully utilized to facilitate commission of crime of all degrees, from those against
morality, chastity, and decency, to robbery, rape, burglary, and murder, is a matter of
common knowledge. Upon that problem a condition, and not a theory, confronts proper
administration of our criminal laws. Whether search of and seizure from an automobile upon
a highway or other public place without a search warrant is unreasonable is in its final
analysis to be determined as a judicial question in view of all the circumstances under which
it is made.

Having declared that the seizure by the members of the Manila Police Department of the
goods in question was in accordance with law and by that seizure the Bureau of Customs had
acquired jurisdiction over the goods for the purpose of the enforcement of the customs and tariff
laws, to the exclusion of the Court of First Instance of Manila, We have thus resolved the principal
and decisive issue in the present case. We do not consider it necessary, for the purposes of this
decision, to discuss the incidental issues raised by the parties in their pleadings.

WHEREFORE, judgment is hereby rendered, as follows:

(a) Granting the writ of certiorari and prohibition prayed for by petitioners;

(b) Declaring null and void, for having been issued without jurisdiction, the order of respondent
Judge Hilarion U. Jarencio, dated March 7, 1967, in Civil Code No. 67496 of the Court of First
Instance of Manila;

(c) Declaring permanent the preliminary injunction issued by this Court on March 31, 1967
restraining respondent Judge from executing, enforcing and/or implementing his order of March 7,
1967 in Civil Case No. 67496 of the Court of First Instance of Manila, and from proceeding in any
manner in said case;

(d) Ordering the dismissal of Civil Case No. 67496 of the Court of First Instance of Manila;
and 1äwphï1.ñët

(e) Ordering the private respondent, Remedios Mago, to pay the costs.

It is so ordered.

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. As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various
1

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; and, instances have occurred where a citizen, while not killed, had been harassed.
2

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, it was held that individual petitioners who do not allege
3

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, or threatened to be infringed. What constitutes a
4

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, or simply looks into a vehicle, or flashes a light therein, these do not
7 8 9

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.