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 December (29) August (10) July (1) June (14) March (5) February (21) January (32) Silverio v CA 195 SCRA 760 (1991) Manotoc v CA 142 SCRA 149 (1986) Marcos v Manglapus 177 SCRA 668 (1989) Pamil v Teleron 86 SCRA 413 (1978) Ebralinag v Division Supt. of Cebu 219 SCRA 256 (... American Bible Society v City of Manila 101 PHIL ... Garces v Estenzo 104 SCRA 510 (1981) Aglipay v Ruiz 64 PHIL 201 (1937) PBM Employees Asso. v PBM 51 SCRA 189 (1973) Luzviminda dela Cruz v CA, et. al. 305 SCRA 303 ... Malaban v Ramento 129 SCRA 359 (1984) Reyes v Bagatsing 125 SCRA 553 (1983) Pita v CA 178 SCRA 362 (1989) Reyes v Bagatsing 125 SCRA 553 (1983) Ayer Production PTY Ltd. V Capulong (1988) US v Bustos 37 PHIL 731 (1909) Miriam College Foundation, Inc. v CA 348 SCRA 265... Iglesia ni Cristo v CA 259 SCRA 529 (1996)

Adiong v Comelec 207 SCRA 712 (1992) People v Deniega 251 SCRA 626 (637) SSS Employee Asso. v CA 175 SCRA 686 (July 28, 198... Victoriano v Elizalde Rope Workers Union 59 SCRA 5... In Re: Edillon 84 SCRA 554 (1978) PBM Employees Asso. v PBM 51 SCRA 189 (1973) Legaspi v CSC 150 SCRA 530 (1987) Luzviminda dela Cruz v CA, et. al. 305 SCRA 303 Borjal v Court of Appeals 301 SCRA 1 January 14,... SSS Employee Asso. v CA 175 SCRA 686 (July 28, 198... Miriam College Foundation, Inc. v CA 348 SCRA 265... Arrests / Searches and Seizures DUE PROCESS OF LAW / EQUAL PROTECTION CLAUSE FUNDAMENTAL POWER OF THE STATE 2010 (7)

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Arrests / Searches and Seizures Posted by Evelyn By: Evelyn Chua Bergantinos-De Matias

Section 2 Searches and Seizures

People v Marti 193 SCRA57 (1991) marijuana leaves on the package

Facts: The appellant is sending a package to Switzerland thru the packing and export forwarder business owned by Job Reyes. Following standard operating procedure, the owner opened the package for inspection prior to delivery to the Bureau of Post/Customs and smelled a peculiar odor from the box which prompted him to investigate further and found some dried leaves inside. He took samples and forwarded the content of the shipment to NBI for lab test. He was then investigated by the narcotics division of the NBI and was requested to bring the package to their office. The lab result showed the samples were that of marijuana leaves. Thereafter, NBI took charge of the inventory of the package and an information was filed against the appellant in violation of RA 6425 (The Dangerous Drugs Act). It was contended that the court erred in admitting the evidence in a violation of his constitutional rights against illegal search and seizure and privacy of communication.

Issue: Whether or not the evidence obtained should be inadmissible to court.

Held: The court held that as a general rule evidence obtained thru illegal and unreasonable search and seizures by law enforcers and other government agencies are inadmissible to court. The case at bar however has a peculiar character where the evidence was obtained by a private person without the intervention of State authorities. In the absence of government interference, the Constitutional guarantee against unreasonable search and seizure cannot be invoked against the State. The Bill of Rights provided by the Constitution is not meant to be invoked against act of private individuals and such restraint is only directed against the government and any of its agencies. Thus the court affirmed that the evidence is deemed admissible to the case and affirmed the decision of the lower court finding appellant guilty beyond reasonable doubt.

** Stonehill v Diokno 20 SCRA 383 (1967)

Facts: Respondents issued, on different dates, 42 search warrants against petitioners personally, and/or corporations for which they are officers directing peace officers to search the persons of petitioners and premises of their offices, warehouses and/or residences to search for personal properties books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals, portfolios, credit journals, typewriters, and other documents showing all business transactions including disbursement receipts, balance sheets and profit and loss statements and Bobbins(cigarettes) as the subject of the offense for violations of Central Bank Act, Tariff and Customs Laws, Internal Revenue Code, and Revised Penal Code. Upon effecting the search in the offices of the aforementioned corporations and on the respective residences of the petitioners, there seized documents, papers, money and other records. Petitioners then were subjected to deportation proceedings and were constrained to question the legality of the searches and seizures as well as the admissibility of those seized as evidence against them. On March 20, 1962, the SC issued a writ of preliminary injunction and partially lifted the same on June 29, 1962 with respect to some documents and papers. Held: Search warrants issued were violative of the Constitution and the Rules, thus, illegal or being general warrants. There is no probable cause and warrant did not particularly specify the things to be seized. The purpose of the requirement is to avoid placing the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims, caprice or passion of peace officers. Document seized from an illegal search warrant is not admissible in court as a fruit of a poisonous tee. However, they could not be returned, except if warranted by the circumstances.

Petitioners were not the proper party to question the validity and return of those taken from the corporations for which they acted as officers as they are treated as personality different from that of the corporation.

** Soliven v Makasiar 167 SCRA 393 (1988)

Facts: 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; and (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. 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 theExecutive Secretary, affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by theExecutive 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.

Issues:

(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

Held: 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 counteraffidavits. Due process of law does not require that the respondent in a criminal case actually file hiscounter-affidavits before the preliminary investigation is deemed completed. All that is required is that the respondent be given theopportunity 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 afterexamination 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. It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be sustained. The petitions fail to

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

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.

** Silva v Presiding Judge 203 SCRA 140 (1991)

Facts: Sgt. Villamor, chief of the PC Narcom Detachment in Dumaguete City filed an "application for search warrant" and "Deposition of witness" against petitioner Nicomedes Silva and Martin Silva. Judge Nickarter Ontal, then the presiding judge of RTC of Dumaguete issued Search Warrant No.1 pursuant to the said applications for violation of RA 6425 Dangerous Drugs ACT of 1972. Such warrant states that there is a probable cause to believe that Mr. Tama Silva has the possession and control of marijuana dried leaves, cigarette and joint. The warrant authorizes Sgt. Villamor to make an immediate search at any time of the room of Mr. Tama Silva at the residence of his father Comedes Silva and to open aparadors, lockers, cabinets, cartons and containers to look for said illegal drugs. In the course of the search, the officers seized money belonging to Antonieta Silva in the amount of P1,231.40. Petitioner filed a motion to quash Search Warrant No.1 on the ground that 1) it was issued on the sole basis of mimeographed 2) the judge failed to personally examine the complainant and witness by searching questions and answers.

Issue: Whether or Not Search Warrant No.1 is invalid. WON the officers abused their authority in seizing the money of Antonieta Silva.

Held: Search Warrant No. 1 is invalid due to the failure of the judge to examine the witness in the form of searching questions and answers. The questions asked were leading as they are answerable by mere yes or no. Such questions are not sufficiently searching to establish probable cause. The questions were already mimeographed and all the witness had to do was fill in their answers on the blanks provided. Judge Ontal is guilty of grave abuse of discretion when he rejected the motion of Antonieta Silva seeking the return of her money.

The officers who implemented the search warrant clearly abused their authority when they seized the money of Antonieta Silva. The warrant did not indicate the seizure of money but only for marijuana leaves, cigarettes..etc. Search Warrant No. 1 is declared null and void.

*** Sec 4 Rule 126 Rules of Court

Examination of the complainant, record -the judge before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witness he may produce the facts personally known to them and attach to the record their sworn statements together with their affidavits.

Morano v Vivo 20 SCRA 562 (1967)

** Harvey v Santiago 162 SCRA 840 (1988)

Facts: This is a petition for Habeas Corpus. Petitioners are the following: American nationals Andrew Harvey, 52 and Jonh Sherman 72. Dutch Citizen Adriaan Van Den Elshout, 58. All reside at Pagsanjan Laguna respondent Commissioner Miriam Defensor Santiago issued Mission Orders to the Commission of Immigration and Deportation (CID) to apprehended petitioners at their residences. The Operation Report read that Andrew Harvey was found together with two young boys. Richard Sherman was found with two naked boys inside his room. While Van Den Elshout in the after Mission Report read that two children of ages 14 and 16 has been under his care and subjects confirmed being live-in for sometime now.

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

Petitioners were among the 22 suspected alien pedophiles. They were apprehended 17 February1988 after close surveillance for 3 month of the CID in Pagsanjan, Laguna. 17 of the arrested aliens opted for self-deportation. One released for lack of evidence, another charged not for pedophile but working with NO VISA, the 3 petitioners chose to face deportation proceedings. On 4 March1988, deportation proceedings were instituted against aliens for being undesirable aliens under Sec.69 of Revised Administrative Code.

Warrants of Arrest were issued 7March1988 against petitioners for violation of Sec37, 45 and 46 of Immigration Act and sec69 of RevisedAdministrative Code. Trial by the Board of Special Inquiry III commenced the same date. Petition for bail was filed 11March 1988 but was not granted by the Commissioner of Immigration. 4 April1988 Petitioners filed a petition for Writ of Habeas Corpus. The court heard the case on oral argument on 20 April 1988.

Issues:

(1) Whether or Not the Commissioner has the power to arrest and detain petitioners pending determination of existence of probable cause.

(2) Whether or Not there was unreasonable searches and seizures by CID agents.

(3) Whether or Not the writ of Habeas Corpus may be granted to petitioners.

Held: While pedophilia is not a crime under the Revised Penal Code, it violates the declared policy of the state to promote and protect the physical, moral, spiritual and social well being of the youth. The arrest of petitioners was based on the probable cause determined after close surveillance of 3 months. The existence of probable cause justified the arrest and seizure of articles linked to the offense. The articles were seized as an incident to a lawful arrest; therefore the articles are admissible evidences (Rule 126, Section12 of Rules on Criminal Procedure).

The rule that search and seizures must be supported by a valid warrant of arrest is not an absolute rule. There are at least three exceptions to this rule. 1.) Search is incidental to the arrest. 2.) Search in a moving vehicle. 3.) Seizure of evidence in plain view. In view of the foregoing, the search done was incidental to the arrest.

The filing of the petitioners for bail is considered as a waiver of any irregularity attending their arrest and estops them from questioning its validity. Furthermore, the deportation charges and the hearing presently conducted by the Board of Special Inquiry made their detention legal. It is a fundamental rule that habeas corpus will not be granted when confinement is or has become legal, although such confinement was illegal at the beginning.

The deportation charges instituted by the Commissioner ofImmigration are in accordance with Sec37 (a) of the PhilippineImmigration Act of 1940 in relation to sec69 of the RevisedAdministrative code. Section 37 (a) provides that aliens shall be arrested and deported upon warrant of the Commissioner ofImmigration and Deportation after a determination by the Board of Commissioners of the existence of a ground for deportation against them. Deportation proceedings are administrative in character and never construed as a punishment but a preventive measure. Therefore, it need not be conducted strictly in accordance with ordinary Court proceedings. What is essential is that there should be a specific charge against the alien intended to be arrested and deported. A fair hearing must also be conducted with assistance of a counsel if desired.

Lastly, the power to deport aliens is an act of the State and done under the authority of the sovereign power. It a police measure against the undesirable aliens whose continued presence in the country is found to be injurious to the public good and tranquility of the people.

** Alvarez v CFI 64 PHIL 33 (1937)

Facts: On 3 June 1936, 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, Narciso Alvarez 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 moneylender, charging usurious rates of interest in violation of the law. In his oath at the end of the affidavit, the chief of the secret service stated that his answers to the questions were correct to the best of his knowledge and belief. He did not swear to the truth of his statements upon his own knowledge of the facts but upon the information received by him from a reliable person. Upon the affidavit the judge, on said date, issued the warrant which is the subject matter of the petition, ordering the search of the Alvarezs house at any time of the day or night, the seizure of the books and documents 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 Alvarezs store and residence at 7:00 p.m. of 4 June 1936, and seized and took possession of the following articles: internal revenue licenses

for the years 1933 to 1936, 1 ledger, 2 journals, 2 cashbooks, 9 order books, 4 notebooks, 4 check stubs, 2 memorandums, 3 bankbooks, 2 contracts, 4 stubs, 48 stubs of purchases of copra, 2 inventories, 2 bundles of bills of lading, 1 bundle of credit receipts, 1 bundle of stubs of purchases of copra, 2 packages of correspondence, 1 receipt book belonging to Luis Fernandez, 14 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 (HSBC). The search for and seizure of said articles were made with the opposition of Alvarez 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, Alvarez, through his attorney, filed a motion on 8 June 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 Siongco to deposit all the articles seized within 24 hours from the receipt of notice thereof and giving him a period of 5 days within which to show cause why he should not be punished for contempt of court. On 10 June, 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 AntiUsury Board be authorized to retain the articles seized for a period of 30 days for the necessary investigation. On June 25, the court issued an order requiring agent 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 2, the attorney for the petitioner filed a petition alleging that the search warrant issued was illegal and that it had not yet been returned to date together with the proceedings taken in connection therewith, and praying that said warrant be cancelled, that an order be issued directing the return of all the articles seized to Alvarez, 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, 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 Siongco did not commit any contempt of court and must, therefore, be exonerated, and ordering the chief of the Anti-Usury Board in Manila to show cause, if any, within the unextendible period of 2 days from the date of notice of said order, why all the articles seized appearing in the inventory should not be returned to Alvarez. The assistant chief of the AntiUsury 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 Alvarez. On October 10, said official again filed another motion alleging that he needed 60 days to examine the documents and papers seized, which are designated on pages 1 to 4 of the inventory by Nos. 5, 10, 16, 23, 25-27, 30-31 , 34, 36-43 and 45, and praying that he be granted said period of 60 days. In an order of October 16, the court granted him the period of 60 days to investigate said 19 documents. Alvarez, herein, asks that the search warrant as well as the order 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. Issue: Whether the search warrant issued by the court is illegal because it has been based upon the affidavit of agent 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, and that it is illegal as it was not supported by other affidavits aside from that made by the applicant. Held: Section 1, paragraph 3, of Article III of the Constitution and Section 97 of General Orders 58 require that there be not only probable cause before the issuance of a search warrant but that the search warrant must be based upon an application supported by oath of the applicant and the witnesses he may produce. In its broadest sense, an oath includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully; and it is sometimes defined as an outward pledge given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God. 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. 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. 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, the search warrant and the subsequent seizure of the books, documents and other papers are illegal. Further, 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 Almeda and that he did not require nor take the deposition of any other witness. Neither the Constitution nor General Orders 58 provides that it is of imperative necessity to take the depositions of the witnesses to be presented by the applicant or complainant in addition to the affidavit of the latter. The purpose of both in requiring the presentation of depositions is nothing more than to satisfy the committing magistrate of the existence of probable cause. Therefore, if the affidavit of the applicant or complainant is sufficient, the judge may dispense with that of other witnesses. Inasmuch as the affidavit of the agent was insufficient because his knowledge of the facts was not personal but merely hearsay, it is the duty of the judge to require the affidavit of one or more witnesses for the purpose of determining the existence of probable cause to warrant the issuance of the search warrant. When the affidavit of the applicant or complainant contains sufficient facts within his personal and direct knowledge, it is sufficient if the judge is satisfied that there exists probable cause; when the applicants knowledge of the facts is mere hearsay, the affidavit of one or more witnesses having a personal knowledge of the facts is necessary. Thus 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.

** Mata v Bayona 128 SCRA 388 (1984)

Facts: Soriano Mata was accused under Presidential Decree (PD) 810, as amended by PD 1306, the information against him alleging that Soriano Mata offered, took and arranged bets on the Jai Alai game by selling illegal tickets known as Masiao tickets without any authority from the Philippine Jai Alai & Amusement Corporation or from the government authorities concerned. Mata claimed that during the hearing of the case, he discovered that nowhere from the records of the said case could be found the search warrant and other pertinent papers connected to the issuance of the same, so that he had to inquire from the City Fiscal its whereabouts, and to which inquiry Judge Josephine K. Bayona, presiding Jufe of the City Court of Ormoc replied, it is with the court. The Judge then handed the records to the Fiscal who attached them to the records. This led Mata to file a motion to quash and annul the search warrant and for the return of the articles seized, citing and invoking, among others, Section 4 of Rule 126 of the Revised Rules of Court. The motion was denied by the Judge on 1 March 1979, stating that the court has made a thorough investigation and examination under oath of Bernardo U. Goles and Reynaldo T. Mayote, members of the Intelligence Section of 352nd PC Co./Police District II INP; that in fact the court made a certification to that effect; and that the fact that documents relating to the search warrant were not attached immediately to the record of the criminal case is of no moment, considering that the rule does not specify when these documents are to be attached to the records. Matas motion for reconsideration of the aforesaid order having been denied, he came to the Supreme Court, with the petition for certiorari, praying, among others, that the Court declare the search warrant to be invalid for its alleged failure to comply with the requisites of the Constitution and the Rules of Court, and that all the articles confiscated under such warrant as inadmissible as evidence in the case, or in any proceedings on the matter. Issue: Whether the judge must before issuing the warrant personally examine on oath or affirmation the complainant and any witnesses he may produce and take their depositions in writing, and attach them to the record, in addition to any affidavits presented to him. Held: Under the Constitution no search warrant shall issue but upon probable cause to be determined by the Judge or such other responsible officer as may be authorized by law after examination under oath or affirmation of the complainant and the witnesses he may produce. More emphatic and detailed is the implementing rule of the constitutional injunction, The Rules provide that the judge must before issuing the warrant personally examine on oath or affirmation the complainant and any witnesses he may produce and take their depositions in writing, and attach them to the record, in addition to any affidavits presented to him. Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and to attach them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or nonexistence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false. We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to conform with the essential requisites of taking the depositions in writing and attaching them to the record, rendering the search warrant invalid.

** People v Del Rosario 234 SCRA 246 (1994)

Facts: Accused was charged and convicted by the trial court of illegal possession of firearms and illegal possession and sale of drugs, particularly methamphetamine or shabu. After the issuance of the search warrant, which authorized the search and seizure of an undetermined quantity of methamphetamine and its paraphernalias, an entrapment was planned that led to the arrest of del Rosario and to the seizure of the shabu, its paraphernalias and of a .22 caliber pistol with 3 live ammunition.

Issue: Whether or Not the seizure of the firearms was proper.

Held: No. Sec 2 art. III of the constitution specifically provides that a search warrant must particularly describe the things to be seized. In herein case, the only objects to be seized that the warrant determined was the methamphetamine and the paraphernalias therein. The seizure of the firearms was unconstitutional.

Wherefore the decision is reversed and the accused is acquitted.

** Umil v Ramos 187 SCRA 311 (1990) As for cases of rebellion, the case of Umil vs. Ramos (187 SCRA 311), clearly states that since rebellion is a continuing offense, a rebel may be arrested at any time, with or without a warrant, as he is deemed to be in the act of committing the offense at any time of the day or night. PER CURIAM

These are 8 petitions for habeas corpus (HC) filed bef. the Court. The Court finds that the persons detained have not been illegally arrested nor arbitrarily deprived of their constitutional right to liberty and that the circumstances attending these cases do not warrant their release on HC. An arrest w/o a warrant, under Sec. 5, pars. (a) and (b) of Rule 113, ROC, as amended is justified when the person arrested is caught in flagrante delicto, viz., in the act of committing an offense; or when an offense has just been committed and the person making the arrest has personal knowledge of the facts indicating that the person arrested has committed it.

The persons in whose behalf these petitions for HC have been filed had freshly committed or were actually committing an offense, when apprehended, so that their arrests, w/o warrant were clearly justified, and that they are, further detained by virtue of valid informations filed against them in court.

In Umil v. Ramos, RIOU-CAPCOM received confidential info. about a member of the NPA-Sparrow unit being treated for a gunshot wound at the St. Agnes Hospital in Roosevelt Ave. , Q.C. It was found that the wounded person, who was listed in the hospital records as Ronnie Javelon, is actually Rolando Dural, a member of the NPA liquidation squad, responsible for the killing of 2 CAPCOM soldiers the day before. Dural was then transferred to the Regional Medical Services of the CAPCOM. Upon positive identification by an eyewitness, Dural was referred to the Caloocan City Fiscal who conducted an inquest and thereafter filed w/ the RTC-Caloocan City an info. charging Dural w/ the crime of "Double Murder w/ Assault upon agents of persons in authority." The petition for HC, insofar as Umil & Villanueva are concerned, is now moot and academic and is accordingly dismissed, since the writ does not lie in favor of an accused in a crim. case, who has been released on bail. As to Dural, he was not arrested while in the act of shooting the 2 soldiers. Nor was he arrested after the commission of said offense for his arrest came a day after the shooting incident. However, Dural was arrested for being a member of the NPA, an outlawed subversive organization. Subversion being a continuing offense, the arrest of Dural w/o warrant is justified as it can be said that he was committing an offense when arrested. The arrest of persons involved in rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses w/c requires the determination by a judge of the existence of probable cause bef. the issuance of a judicial warrant and the granting of bail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against govt forces, or any other milder acts but equally in pursuance of the rebellious movement. xxx (Garcia-Padilla v. Enrile.)

Dural was found guilty of the charge and is now serving the sentence imposed upon him by the trial court. Thus, the writ of HC is no longer available

** People v Sucro 195 SCRA 388 (1991)

Facts: Pat. Fulgencio went to Arlie Regalados house at C. Quimpo to monitor activities of Edison SUCRO (accused). Sucro was reported to be selling marijuana at a chapel 2 meters away from Regalados house. Sucro was monitored to have talked and exchanged things three times. These activities are reported through radio to P/Lt. Seraspi. A third buyer was transacting with appellant and was reported and later identified as Ronnie Macabante. From that moment, P/Lt.Seraspi proceeded to the area. While the police officers were at the Youth Hostel in Maagama St. Fulgencio told Lt. Seraspi to intercept. Macabante was intercepted at Mabini and Maagama crossing in front of Aklan Medical center. Macabante saw the police and threw a tea bag of marijuana on the ground. Macabante admitted buying the marijuana from Sucro in front of the chapel.

The police team intercepted and arrested SUCRO at the corner of C. Quimpo and Veterans. Recovered were 19 sticks and 4 teabags of marijuana from a cart inside the chapel and another teabag from Macabante.

Issues:

(1) Whether or Not arrest without warrant is lawful.

(2) Whether or Not evidence from such arrest is admissible.

Held: Search and seizures supported by a valid warrant of arrest is not an absolute rule. Rule 126, Sec 12 of Rules of Criminal Procedure provides that a person lawfully arrested may be searched for dangerous weapons or anything, which may be used as proff of the commission of an offense, without a search warrant.(People v. Castiller) The failure of the police officers to secure a warrant stems from the fact that their knowledge required from the surveillance was insufficient to fulfill requirements for its issuance. However, warantless search and seizures are legal as long as PROBABLE CAUSE existed. The police officers have personal knowledge of the actual commission of the crime from the surveillance of

the activities of the accused. As police officers were the ones conducting the surveillance, it is presumed that they are regularly in performance of their duties.

People v Rodrigueza 205 SCRA 791 (1992) buy-bust operation and raid without search warrant

Facts: An informer of the Narcotics Division reported activity on illegal drug trafficking to the authorities and a buy-bust operation was conducted where the informer successfully bought 100 grams of marijuana for P10.00 from the accused. The authorities immediately conducted a raid and apprehended the accused while confiscating marijuana leaves and syringes. The raid however was not authorized by a search warrant. Accused now contends that the court erred in admitting the evidence seized without any search warrant and in violation of his constitutional rights.

Issue: Whether or not evidence obtained without a valid search warrant may be used to prosecute the accused.

Held: The court held that a buy bust operation is a form of entrapment employed by peace officers to trap and catch a malefactor in flagrante delicto. Applied to the case at bar, the term in flagrante delicto requires that the suspected drug dealer must be caught redhanded in the act of selling marijuana or any prohibited drug to a person acting or posing as a buyer. In the instant case, however, the procedure adopted by the NARCOM agents failed to meet this qualification. The Narcom agents should have secured a valid search warrant prior the raid since they have already been conducting surveillance against the accused for quite sometime already and the urgency of their cause of action cannot be justified in court. Hence the accused was acquitted.

** Go v CA 206 SCRA 138 (1992)

Facts: Petitioner, while traveling in the wrong direction on a one-way street, almost had a collision with another vehicle. Petitioner thereafter got out of his car, shot the driver of the other vehicle, and drove off. An eyewitness of the incident was able to take down petitioners plate number and reported the same to the police, who subsequently ordered a manhunt for petitioner. 6 days after the shooting, petitioner presented himself in the police station, accompanied by 2 lawyers, the police detained him. Subsequently a criminal charge was brought against him. Petitioner posted bail, the prosecutor filed the

case to the lower court, setting and commencing trial without preliminary investigation. Prosecutor reasons that the petitioner has waived his right to preliminary investigation as bail has been posted and that such situation, that petitioner has been arrested without a warrant lawfully, falls under Section 5, Rule 113 and Section 7, Rule 112 of The 1985 Rules of Criminal Procedure which provides for the rules and procedure pertaining to situations of lawful warrantless arrests. Petitioner in his petition for certiorari assails such procedure and actions undertaken and files for a preliminary investigation.

Issues:

(1) Whether or Not warrantless arrest of petitioner was lawful.

(2) Whether or Not petitioner effectively waived his right to preliminary investigation.

Held: Petitioner and prosecutor err in relying on Umil v. Ramos, wherein the Court upheld the warrantless arrest as valid effected 1 to 14 days from actual commission of the offenses, which however constituted continuing crimes, i.e. subversion, membership in an outlawed organization, etc. There was no lawful warrantless arrest under Section 5, Rule 113. This is because the arresting officers were not actually there during the incident, thus they had no personalknowledge and their information regarding petitioner were derived from other sources. Further, Section 7, Rule 112, does not apply.

Petitioner was not arrested at all, as when he walked in the police station, he neither expressed surrender nor any statement that he was or was not guilty of any crime. When a complaint was filed to the prosecutor, preliminary investigation should have been scheduled to determine probable cause. Prosecutor made a substantive error, petitioner is entitled to preliminary investigation, necessarily in a criminal charge, where the same is required appear thereat. Petition granted, prosecutor is ordered to conduct preliminary investigation, trial for the criminal case is suspended pending result from preliminaryinvestigation, petitioner is ordered released upon posting a bail bond.

** Posadas v CA 188 SCRA 288 (1990)

F: Patrolmans Ungab and Umpar, both members of the INP of the Davao Metrodiscom assigned w/ the Intelligence Task Force, were conducting a surveillance along Magallanes, St., Davao City. While they were w/in the premises of the Rizal Memorial Colleges, they spotted petitioner carrying a "buri"

bag & they noticed him to be acting suspiciously. They approached the petitioner and identified themselves as members of the INP. Petitioner attempted to flee but was stopped by the 2. They then checked the "buri" bag of the petitioner where they found 1 caliber .38 Smith & Wesson revolver, w/ 2 rounds of live ammunition for a .38 cal. gun, a smoke grenade, & 2 live ammunition for a .22 cal. gun. Petitioner was brought to the police station for further investigation. He was prosecuted for illegal possession of firearms and ammunitions in the RTC of Davao City wherein after a plea of not guilty, and trial on the merits, a decision was rendered finding petitioner guilty. The CA affirmed the appealed decision in toto. Hence, the petition for review, the main thrust of w/c is that there being no lawful arrest or search and seizure, the items w/c were confiscated from the possession of the petitioner are inadmissible in evidence against him. The Sol-Gen argues that under Sec. 12, R 136 of ROC, a person lawfully arrested may be searched for dangerous weapons or anything (w/c may be) used as proof of a commission of an offense, w/o a SW.

HELD: From Sec. 5, R 113, ROC, it is clear that an arrest w/o 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, & he has personal knowledge of the facts indicating that the person arrested has committed it. At the time the peace officers 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. They just suspected that he was hiding something in the buri bag. They did not know what its contents were. The said circumstances did not justify an arrest w/o a warrant. However, there are many instances where a warrant & seizure can be effected w/o necessarily being preceded by an arrest, foremost of w/c is the 'stop & search' w/o a SW at military or police checkpoints, the constitutionality of w/c has been upheld by this Court in Valmonte v. de Villa. As bet. a warrantless search and seizure (S & S) conducted at military or police checkpoints and the search thereof 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 w/ 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 SW for the purpose. Such an exercise may prove to be useless, futile and much too late.

As the Sol-Gen said:

"The assailed S & S may still be justified as akin to a 'stop and frisk' situation whose object is either to determine the identity of suspicious individuals or to maintain the status quo momentarily while the police officers seeks to obtain more info. ... The US SC held in Terry v. Ohio that "a police officer may in appropriate circumstances & 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 maintaing the status quo while obtaining more info."

PETITION DENIED. RAM.

(not in VV's revised outline) (e) When there is a valid express waiver made voluntarily and intelligently.

Waiver cannot be implied from the fact that the person consented or did not object to the search, for it many happen that he did so only out of respect for the authorities. The waiver must be expressly made.

** People v Mengote 210 SCRA 174 (1992)

Facts: The Western Police District received a telephone call from an informer that there were three suspicious looking persons at the corner of Juan Luna and side to side, one of whom holding his abdomen. They approached the persons and identified themselves as policemen, whereupon the two tried to run but unable to escape because the other lawmen surrounded them. The suspects were then searched. One of them the accused-appellant was found with a .38 caliber with live ammunitions in it, while his companion had a fan knife. The weapons were taken from them and they were turned over to the police headquarters for investigation. An information was filed before the RTC convicting the accused of illegal possession of firearm arm. A witness testified that the weapon was among the articles stolen at his shop, which he reported to the police including the revolver. For his part, Mengote made no effort to prove that he owned the fire arm or that he was licensed to possess it but instead, he claimed that the weapon was planted on him at the time of his arrest. He was convicted for violation of

P.D.1866 and was sentenced to reclusion perpetua. In his appeal he pleads that the weapon was not admissible as evidence against him because it had been illegally seized and therefore the fruit of a poisonous tree.

Issue: Whether or not the warrantless search and arrest was illegal.

Held: An evidence obtained as a result of an illegal search and seizure inadmissible in any proceeding for any purpose as provided by Art. III sec 32 of the Constitution. Rule 113 sec.5 of the Rules of Court, provides arrest without warrant lawful when: (a) the person to be arrested has committed, is actually committing, or is attempting to commit an offense, (b) when the offense in fact has just been committed, and he has personal knowledge of the facts indicating the person arrested has committed it and (c) the person to be arrested has escaped from a penal establishment or a 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.

These requirements have not been established in the case at bar. At the time of the arrest in question, the accused appellant was merely looking from side to side and holding his abdomen, according to the arresting officers themselves. There was apparently no offense that has just been committed or was being actually committed or at least being attempt by Mengote in their presence. Moreover a person may not be stopped and frisked in a broad daylight or on a busy street on unexplained suspicion.

Judgment is reversed and set aside. Accused-appellant is acquitted. North Bay Boulevard in Tondo, Manila. A surveillance team of plainclothesmen was forthwith dispatched to the place. The patrolmen saw two men looking from

** Malacat v CA 283 SCRA 159 (December 12, 1997)

Facts: On 27 August 1990, at about 6:30 p.m., allegedly in response to bomb threats reported seven days earlier, Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police Station No. 3, Quiapo, Manila, 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 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; and that the seizure of the grenade from Malacat was incidental to a lawful arrest. The trial court thus found Malacat guilty of the crime of illegal possession of explosives under Section 3 of PD 1866, and sentenced him to suffer the penalty of not less than 17 years, 4 months and 1 day of Reclusion Temporal, as minimum, and not more than 30 years of Reclusion Perpetua, as maximum. On 18 February 1994, Malacat filed a notice of appeal indicating that he was appealing to the Supreme Court. However, the record of the case was forwarded to the Court of Appeals (CA-GR CR 15988). In its decision of 24 January 1996, the Court of Appeals affirmed the trial court. Manalili filed a petition for review with the Supreme Court. Quezon Boulevard near the Mercury Drug Store. These men were acting suspiciously with their eyes moving very fast. Yu and his companions positioned themselves at strategic points and observed both groups for about 30 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 Sammy Malacat y Mandar (who Yu recognized, inasmuch as allegedly the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw Malacat and 2 others attempt to detonate a grenade). Upon searching Malacat, Yu found a fragmentation grenade tucked inside the latters front waist line. Yus companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered. Malacat and Casan were then brought to Police Station 3 where Yu placed an X mark at the bottom of the grenade and thereafter gave it to his commander. Yu did not issue any receipt for the grenade he allegedly recovered from Malacat. On 30 August 1990, Malacat was charged with violating Section 3 of Presidential Decree 1866. At arraignment on 9 October 1990, petitioner, assisted by counsel de officio, entered a plea of not guilty. Malacat 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. In its decision dated 10 February 1994 but promulgated on 15 February 1994, the trial court ruled that the warrantless search and seizure of Malacat was akin to a Issue: Whether the search made on Malacat is valid, pursuant to the exception of stop and frisk. Held: 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 seizures refers to those effected without a validly issued warrant, subject to certain exceptions. As regards valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court. 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 incidental to a lawful arrest; and (6) a stop and frisk. The concepts of a stop-and-frisk and of a search incidental to a lawful arrest must not be confused. 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. 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 Malacat, indicating that a crime had just been committed, was being committed or was going to be committed. Plainly, the search conducted on Malacat could not have been one incidental to a lawful arrest. On the other hand, while probable cause is not required to conduct a stop and frisk, it nevertheless holds that mere suspicion or a hunch will not validate a stop and frisk. A genuine reason must exist, in light of the police officers experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. Finally, a stop-and-frisk serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. Here, there are at least three (3) reasons why the stop-and-frisk was invalid: First, there is grave doubts as to Yus claim that Malacat was a member of the group which attempted to bomb Plaza Miranda 2 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. Second, there was nothing in Malacats 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 Malacat and it was already 6:30 p.m., thus presumably dusk. Malacat and his companions were merely standing at the corner and were not creating any commotion or trouble. Third, there was at all no ground, probable or otherwise, to believe that Malacat 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 Malacat, and from all indications as to the distance between Yu and Malacat, any telltale bulge, assuming that Malacat was indeed hiding a grenade, could not have been visible to Yu. What is unequivocal then are blatant violations of Malacats rights solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution.

** People v Aruta 288 SCRA 626 (1998)

Facts: On Dec. 13, 1988, P/Lt. Abello was tipped off by his informant that a certain Aling Rosa will be arriving from Baguio City with a large volume of marijuana and assembled a team. The next day, at the Victory Liner Bus terminal they waited for the bus coming from Baguio, when the informer pointed out who Aling Rosa was, the team approached her and introduced themselves as NARCOM agents. When Abello asked aling Rosa about the contents of her bag, the latter handed it out to the police. They found dried marijuana leaves packed in a plastic bag marked cash katutak.

Instead of presenting its evidence, the defense filed a demurrer to evidence alleging the illegality of the search and seizure of the items. In her testimony, the accused claimed that she had just come from Choice theatre where she watched a movie Balweg. While about to cross the road an old woman asked her for help in carrying a shoulder bag, when she was later on arrested by the police. She has no knowledge of the identity of the old woman and the woman was nowhere to be found. Also, no search warrant was presented.

The trial court convicted the accused in violation of the dangerous drugs of 1972

Issue: Whether or Not the police correctly searched and seized the drugs from the accused.

Held: The following cases are specifically provided or allowed by law:

1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court 8 and by prevailing jurisprudence

2. Seizure of evidence in "plain view," the elements of which are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who had the right to be where they are; (c) the evidence must be immediately apparent, and (d) "plain view" justified mere seizure of evidence without further search;

3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk;

7. Exigent and Emergency Circumstances.

The essential requisite of probable cause must still be satisfied before a warrantless search and seizure can be lawfully conducted.

The accused cannot be said to be committing a crime, she was merely crossing the street and was not acting suspiciously for the Narcom agents to conclude that she was committing a crime. There was no legal basis to effect a warrantless arrest of the accuseds bag, there was no probable cause and the accused was not lawfully arrested.

The police had more than 24 hours to procure a search warrant and they did not do so. The seized marijuana was illegal and inadmissible evidence.

RULE 113, RULES OF COURT

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

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

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

In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

RULE 126, RULES OF COURT

Section 2. Court where application for search warrant shall be filed. An application for search warrant shall be filed with the following:

a) Any court within whose territorial jurisdiction a crime was committed. b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.

However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending.

Section 7. Right to break door or window to effect search. The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein.

Section 12. Delivery of property and inventory thereof to court; return and proceedings thereon.

(a) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. (b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complained with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with. (c) The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge.

A violation of this section shall constitute contempt of court.

People v Aminnudin 163 SCRA 402 (1988)

** People v Malmstedt 198 SCRA 401 (1991) Facts: In an information filed against the accused- appellant Mikael Malmstead was charged before the RTC of La Trinidad, Benguet, for violation of Section 4, Art. II of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as amended. 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. Then in the 7 in the morning of May 11, 1989, the accused went to Nangonogan bus stop in Sagada.

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. 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.

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.

ACCUSEDS DEFENSE

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.

The trial court found the guilt of the accused Mikael Malmstedt established beyond reasonable doubt.

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.

Issue: Whether or Not the contention of the accused is valid, and therefore the RTC ruling be reversed.

Held: 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 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.

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.

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. 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. Warrantless search of the personal effects of an accused has been declared by this Court as valid, because of existence of probable cause, where the smell of marijuana emanated from a plastic bag owned by the accused, 10 or where the accused was acting suspiciously, 11 and attempted to flee.

The appealed judgment of conviction by the trial court is hereby affirmed. Costs against the accusedappellant.

** People v Saycon 236 SCRA 325 (1994)

Facts: On or about 8 July 1992, at about 6:00 in the morning, the Coastguard personnel received information from NARCOM agent Ruben Laddaran that a suspected "shabu" courier by the name of Alvaro Saycon was on board the MV Doa Virginia, which was arriving at that moment in Dumaguete City. Upon receipt of the information, the Coastguard chief officer CPO Tolin, instructed them to intercept the suspect. A combined team of NARCOM agents and Philippine Coastguard personnel consisting of CPO Tolin, a certain Miagme, and Senior Police Officers Ruben Laddaran and Winifredo Noble of NARCOM posted themselves at the gate of Pier 1. The MV Doa Virginia docked at 6:00 a.m.

that same morning at Pier 1 in Dumaguete City. Alvaro Saycon alighted from the boat carrying a black bag and went through the checkpoint manned by the Philippine Coastguard where he was identified by police officer Winifredo Noble of NARCOM. Saycon was then invited to the Coastguard Headquarters at the Pier area. He willingly went with them. At the headquarters, the coastguard asked Saycon to open his bag, and the latter willingly obliged. In it were personal belongings and a maong wallet. Inside that maong wallet, there was a Marlboro pack containing the suspected "shabu". When police officer Winifredo Noble asked Saycon whether the Marlboro pack containing the suspected "shabu" was his, Saycon merely bowed his head. Then Saycon, his bag and the suspected "shabu" were brought to the NARCOM office for booking. When Alvaro Saycon was arrested, the NARCOM agents did not have a warrant of arrest. The PNP's Forensic Analyst declared in court that she had conducted an examination of the specimens and found out that the specimens weighed 4.2 grams in total, consisted of methamphetamine hydrochloride, more widely known as "shabu."

Issue: Whether or Not the warrantless search was valid.

Held: The warrantless search was valid, as the accused was a passenger of a motor vehicle. There was probable cause to believe that the accused was carrying prohibited drugs. Three weeks earlier, agents of the Narcotics Command bought methamine hydrochloride from him. An agent of the Narcotics Command reported that the accused would be arriving on board the vessel and carrying methamphetamine hydrochloride with him. Drug couriers do not go about their trade with some external sign indicating that they are transporting prohibited drugs. This must be taken into account in determining probable cause.

** People v Musa 217 SCRA 597 (1993)

Facts: A civilian informer gave the information that Mari Musa was engaged in selling marijuana in Suterville, Zamboanga City. Sgt. Ani was ordered by NARCOM leader T/Sgt. Belarga, to conduct a surveillance and test buy on Musa. The civilian informer guided Ani to Musas house and gave the description of Musa. Ani was able to buy one newspaper-wrapped dried marijuana for P10.00.

The next day, a buy-bust was planned. Ani was to raise his right hand if he successfully buys marijuana from Musa. As Ani proceeded to the house, the NARCOM team positioned themselves about 90 to 100 meters away. From his position, Belarga could see what was going on. Musa came out of the house and asked Ani what he wanted. Ani said he wanted more marijuana and gave Musa the P20.00 marked money. Musa went into the house and came back, giving Ani two newspaper wrappers containing dried

marijuana. Ani opened and inspected it. He raised his right hand as a signal to the other NARCOM agents, and the latter moved in and arrested Musa inside the house. Belarga frisked Musa in the living room but did not find the marked money (gave it to his wife who slipped away). T/Sgt. Belarga and Sgt. Lego went to the kitchen and found a cellophane colored white and stripe hanging at the corner of the kitchen. They asked Musa about its contents but failed to get a response. So they opened it and found dried marijuana leaves inside. Musa was then placed under arrest.

Issue: Whether or Not the seizure of the plastic bag and the marijuana inside it is unreasonable, hence, inadmissible as evidence.

Held: Yes. It constituted unreasonable search and seizure thus it may not be admitted as evidence. The warrantless search and seizure, as an incident to a suspects lawful arrest, may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control. Objects in the plain view of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence. The plain view doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. It 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.

In the case at bar, the plastic bag was not in the plain view of the police. They arrested the accused in the living room and moved into the kitchen in search for other evidences where they found the plastic bag. Furthermore, the marijuana inside the plastic bag was not immediately apparent from the plain view of said object.

Therefore, the plain view does not apply. The plastic bag was seized illegally and cannot be presented in evidence pursuant to Article III Section 3 (2) of the Constitution.

** Valmonte v De Villa 185 SCRA 665 (1989)F: On 1/20/87, the NCRDC was activated w/ the mission of conducting security operations w/in its area or 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 dev't of the NCR. As part of its duty to maitain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela and MM.

Petitioners aver that, bec. of the institution of said checkpoints, the Valenzuela residents are worried of being harassed and of their sarety 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, w/o a SW and/ or court order. Their alleged fear for their safety increased when Benjamin Parpon, was gaunned down allegedly in cold blood by members of the NCRDC for ignoring and/ or continuing to speed off inspite of warning shots fired in the air.

HELD: Petitioner's concern for their safety and apprehension at being harassed by the military manning the checkpoints are not sufficient grounds to declare the checkpoints 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' rights against unlawful search and seizure of other rights. 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. Not all searches and seizures are prohibited. Those w/c are reasonable are not forbidden. The setting up of the questioned checkpoints 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 benfit of the public. Checkpoints may not also be regarded as measures to thwart plots to destabilize the govt, in the interest of public security. Between the inherent right of the state to protect its existence and promote public welfare and an individual's right against a warrantless search w/c is, however, reasonably conducted, the former should prevail. True, the manning of checkpoints by the military is susceptible of abuse by the military in the same manner that all governmental power is susceptible of abuse. But, at the cost of occasional inconveninece, discomfort and even irritation to the citizen, the checkpoints during these abnormal times, when conducted w/in reasonable limits, are part of the price we pay for an orderly society and a peaceful community.

Read Rules 113 and 126, Revised Rules of Court

RULE 113 - ARREST Section 1. Definition of arrest. Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense.

Sec. 2. Arrest; how made. An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest. No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention. Sec. 3. Duty of arresting officer. It shall be the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay. Sec. 4. Execution of warrant. The head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10) days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant. In case of his failure to execute the warrant, he shall state the reason therefore. Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. Sec. 6. Time of making arrest. An arrest may be made on any day and at any time of the day or night. Sec. 7. Method of arrest by officer by virtue of warrant. When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable.chan robles virtual law library Sec. 8. Method of arrest by officer without warrant. When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees, or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest.

Sec. 9. Method of arrest by private person. When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and the case of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, or has escaped, flees, or forcibly resists before the person making the arrest has opportunity to so inform him, or when the giving of such information will imperil the arrest. Sec. 10. Officer may summon assistance. An officer making a lawful arrest may orally summon as many persons as he deems necessary to assist him in effecting the arrest. Every person so summoned by an officer shall assist him in effecting the arrest when he can render such assistance without detriment to himself. Sec. 11. Right of officer to break into building or enclosure. An officer, in order to make an arrest either by virtue of a warrant, or without a warrant as provided in section 5, may break into any building or enclosure where the person to be arrested is or is reasonably believed to be, if he is refused admittance thereto, after announcing his authority and purpose. Sec. 12. Right to break out from building or enclosure. Whenever an officer has entered the building or enclosure in accordance with the preceding section, he may break out therefrom when necessary to liberate himself. Sec. 13. Arrest after escape or rescue. If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines. Sec. 14. Right of attorney or relative to visit person arrested. Any member of the Philippine Bar shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person in the jail or any other place of custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person arrested can also exercise the same right.

RULE 126 - SEARCH AND SEIZURE Section 1. Search warrant defined. A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. Sec. 2. Court where application for search warrant shall be filed. An application for search warrant shall be filed with the following: (a) Any court within whose territorial jurisdiction a crime was committed.chan robles virtual law library (b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.

However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending. Sec. 3. Personal property to be seized. A search warrant may be issued for the search and seizure of personal property: (a) Subject of the offense; (b) Stolen or embezzled and other proceeds, or fruits of the offense; or (c) Used or intended to be used as the means of committing an offense. Sec. 4. Requisites for issuing search warrant. A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. Sec. 5. 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 the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. Sec. 6. Issuance and form of search warrant. If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. Sec. 7. Right to break door or window to effect search. The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein. Sec. 8. Search of house, room, or premises to be made in presence of two witnesses. No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.chan robles virtual law library Sec. 9. Time of making search. The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. Sec. 10. Validity of search warrant. A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void. Sec. 11. Receipt for the property seized. The officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the

search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. Sec. 12. Delivery of property and inventory thereof to court; return and proceedings thereon. (a) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. (b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with. (c) The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge. A violation of this section shall constitute contempt of court. Sec. 13. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. Sec. 14. Motion to quash a search warrant or to suppress evidence; where to file. A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court.