THIRD DIVISION

[G.R. No. 99050. September 2, 1992.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CONWAY B. OMAWENG, accused-appellant.
The Solicitor General for plaintiff-appellee.
Joel C. Obar for accused-appellant.
SYLLABUS
1. CRIMINAL LAW; DANGEROUS DRUG ACT; ILLEGAL POSSESSION OF PROHIBITED DRUGS; PROOF OF OWNERSHIP
THEREOF BY THE ACCUSED NOT REQUIRED. — The accused contends that the prosecution failed to prove that he is the owner of the
marijuana found inside the travelling bag which he had in his vehicle, a Ford Fiera. Proof of ownership is immaterial. Accused was prosecuted for
the dispatching in transit or transporting of prohibited drugs pursuant to Section 4, Article II of R.A. No. 6425, as amended. This section does not
require that for one to be liable for participating in any of the proscribed transactions enumerated therein, he must be the owner of the prohibited
drug. This section penalizes the pusher, who need not be the owner of the prohibited drug. The law defines pusher as "any person who sells,
administers, delivers, or gives away to another, on any terms whatsoever, or distributes, dispatches in transit or transports any dangerous drug or
who acts as a broker in any of such transactions, in violation of this Act. [Section 2 (m), R.A. No. 6425, as amended.] In People vs. Alfonso, [186
SCRA (1990)] where the accused was charged with the unlawful transportation of marijuana under the aforesaid Section 4, this Court ruled that
ownership is not a basic issue.
2. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE COMBINATION THEREOF; WARRANTS A CONVICTION
BEYOND REASONABLE DOUBT. — The facts, as proven by the prosecution, establish beyond cavil that the accused was caught in the act of
transporting the prohibited drug or, in other words, in flagrante delicto. That he knew fully well what he was doing is shown beyond moral certainty
by the following circumstances: (a) the prohibited drug was found in a travelling bag, (b) he is the owner of the said bag, (c) he concealed the bag
behind a spare tire, (d) he was travelling alone, and (e) the Ford Fiera in which he loaded the bag was under his absolute control, pursuant to
Section 4, Rule 133 of the Rules of Court (on circumstantial evidence), the combination of all these circumstances is such as to produce a
conviction beyond reasonable doubt. Such circumstances, unrebutted by strong and convincing evidence by the accused, even gave rise to the
presumption that he is the owner of the prohibited drug. [Section 3(j), Rule 131, Rules of Court.]
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCH & SEIZURE; WHEN DEEMED
WAIVED. — Accused was not subjected to any search which may be stigmatized as a violation of his Constitutional right against unreasonable
searches and seizures. [Section 2, Article III, 1987 Constitution.] If one had been made, this Court would be the first to condemn it "as the
protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the Court." [Rodriguez vs.
Villamiel, 65 Phil. 230 (1937).] He willingly gave prior consent to the search and voluntarily agreed to have it conducted on his vehicle and
travelling bag. Thus, the accused waived his right against unreasonable searches and
seizures. As this Court stated in People vs. Malasugui: (63 Phil. 221,
226 [1936]. See also Vda. de Garcia vs. Locsin, 65 Phil. 689 [1938];
People vs. Donato, 198 SCRA 130 [1991]; People vs. Rodrigueza,
205 SCRA 791 [1992].) ". . . When one voluntarily submits to a
search or consents to have it made of (sic) his person or premises, he
is precluded from later complaining thereof (Cooley, Constitutional
Limitations, 8th ed., vol. I, page 631.) The right to be secure from
unreasonable search may, like every right, be waived and such waiver
may be made either expressly or impliedly." Since in the course of the
valid search forty-one (41) packages of drugs were found, it
behooved the officers to seize the same; no warrant was necessary for
such seizure. Besides, when said packages were identified by the
prosecution witnesses and later on formally offered in evidence, the
accused did not raise any objection whatsoever.
D E C I S I O N
DAVIDE, JR., J p:
Accused Conway B. Omaweng was originally indicted for the
violation of Section 4, Article II of Republic Act No. 6425, otherwise
known as the Dangerous Drugs Act of 1972, as amended, in a
criminal complaint filed with the Municipal Trial Court of Bontoc,
Mountain Province on 12 September 1988.1 Upon his failure to
submit counter-affidavits despite the granting of an extension of time
to do so, the court declared that he had waived his right to a
preliminary investigation and, finding probable cause against the
accused, ordered the elevation of the case to the proper court. 2
On 14 November 1988, the Office of the Provincial Fiscal of
Mountain Province filed an Information charging the accused with
the violation of Section 47 Article II of the Dangerous Drugs Act of
1972, as amended. The accusatory portion thereof reads: Cdpr
"That on or about September 12, 1988, at Dantay, Bontoc, Mountain
Province, and within the jurisdiction of this Honorable Court, the
above-named accused, without being authorized by law, did then and
there willfully, unlawfully and feloniously dispatch in transit or
transport in a Ford Fiera, owned and driven by him, 10 1/4 kilos of
processed marijuana in powder form contained in al plastic bags of
different sizes which were placed in a travelling bag destained (sic)
and intended for delivery, disposition and sale in Sagada, Mountain
Province, with full knowledge that said processed marijuana is (sic)
prohibited drug or from which (sic) prohibited drug may be
manufactured.
CONTRARY TO LAW." 3
The case was docketed as Criminal Case No. 713.
After his motion for reinvestigation was denied by the Provincial
Fiscal, 4 the accused entered a plea of not guilty during his
arraignment on 20 June 1989.
During the trial on the merits, the prosecution presented four (4)
witnesses. The accused did not present any evidence other than
portions of the Joint Clarificatory Sworn Statement, dated 23
December 1988, of prosecution witnesses Joseph Layong and David
Fomocod.
On 21 March 1991, the trial court promulgated its Judgment 5
convicting the accused of the crime of transporting prohibited drugs
penalized under Section 4, Article II of R.A. No. 6425, as amended.
The dispositive portion of the decision reads:
"WHEREFORE, judgment is hereby rendered imposing upon the
accused herein the penalty of life imprisonment and a fine of Twenty
Five Thousand Pesos.
Pursuant to Sec. 20, Art. IV of the aforecited special law, the drugs
subject of the crime are ordered confiscated and forfeited in favor of
the Government. Accordingly, it is further directed that such drugs so
confiscated and forfeited be destroyed without delay per existing
rules and regulations on the matter.
Costs against the accused.
SO ORDERED." 6
Hence, this appeal.
In the Appellant's Brief, accused imputes upon the trial court the
commission of the following errors.
"I
. . . IN CONVICTING THE ACCUSED DESPITE
INSUFFICIENCY OF EVIDENCE TO PROVE HIS GUILT
BEYOND REASONABLE DOUBT.
II
. . . IN NOT CONSIDERING THE JOINT CLARIFICATORY
STATEMENT OF THE ARRESTING OFFICERS TO THE EFFECT
THAT THE ACCUSED IS NOT THE OWNER OF THE
PROHIBITED DRUG SUBJECT OF THIS CASE.
III
. . . IN NOT RULING THAT THE CONTRABAND SUBJECT OF
THE INSTANT CASE IS INADMISSIBLE IN EVIDENCE FOR
HAVING BEEN OBTAINED IN VIOLATION OF THE
CONSTITUTIONAL RIGHT OF THE ACCUSED AGAINST
UNREASONABLE SEARCH (sic) AND SEIZURE." 7
The appeal is without merit. The decision appealed from must be
upheld.
After a careful review and evaluation of the evidence, We find to
have been fully proven the following facts as summarized by the
Solicitor General in the Brief for the Appellee. 8
"In the morning of September 12, 1988, Joseph Layong, a PC
constable with the Mt. Province PC Command at Bontoc, Mt.
Province proceeded with other PC soldiers to Barrio Dantay, Bontoc
and, per instruction of their officer, Capt. Eugene Martin, put up a
checkpoint at the junction of the roads, one going to Sagada and the
other to Bontoc (TSN, November 9, 1989, pp. 3-4). They stopped and
checked all vehicles that went through the checkpoint (TSN, April 5,
1990, p. 12).
At about 9:15 A.M., Layong and his teammate, Constable David
Osborne Famocod (sic), saw and flagged down a cream-colored Ford
Fiera bearing Plate No. ABT-634 coming from the Bontoc Poblacion
and headed towards Baguio (TSN, November 9, 1989, pp. 4-5, 8).
The vehicle was driven by appellant and had no passengers (TSN,
November 9, 1989, pp. 4-5).
Layong and his companions asked permission to inspect the vehicle
and appellant acceded to the request. (TSN, November 9, 1989, pp. 4-
5). When they peered into the rear of the vehicle, they saw a
travelling bag which was partially covered by the rim of a spare tire
under the passenger seat on the right side of the vehicle (TSN,
November 9, 1989, pp. 6, 10, 11). LibLex
Layong and his companions asked permission to see the contents of
the bag (TSN, November 9, 1989, p. 6). Appellant consented to the
request but told them that it only contained some clothes (TSN,
November 9, 1989, p. 6). When Layong opened the bag, he found that
it contained forty-one (41) plastic packets of different sizes
containing pulverized substances (TSN, November 9, 1989, pp. 7, 9).
Layong gave a packet to his team leader, constable David Osborne
Fomocod, who, after sniffing the stuff concluded that it was
marijuana (TSN, November 9, 1989, p. 16).
The PC constables, together with appellant, boarded the latter's Ford
Fiera and proceeded to the Bontoc poblacion to report the incident to
the PC Headquarters (TSN, November 9, 1989, pp. 7-8) The
prohibited drugs were surrendered to the evidence custodian, Sgt.
Angel Pokling (TSN, November 9, 1989, pp. 7-8).
Major Carlos Figueroa, a PC Forensic Chemist at Camp Dangwa, La
Trinidad, Benguet, who has conducted more than 2500 professional
examinations of marijuana, shabu and cocaine samples, conducted
two chemistry examinations of the substance contained in the plastic
packets taken from appellant and found them to be positive for
hashish or marijuana (TSN, October 24, 1990, pp. 3, 5-81)." 9
Anent the first assigned error, the accused contends that the
prosecution failed to prove that he is the owner of the marijuana
found inside the travelling bag which he had in his vehicle, a Ford
Fiera. Proof of ownership is immaterial. Accused was prosecuted for
the dispatching in transit or transporting of prohibited drugs pursuant
to Section 4, Article II of R.A. No. 6425, as amended. This section
does not require that for one to be liable for participating in any of the
proscribed transactions enumerated therein, he must be the owner of
the prohibited drug. It simply reads:
"SEC. 4. Sale, Administration, Delivery, Distribution and
Transportation of Prohibited Drugs. — The penalty of life
imprisonment to death and a fine ranging from twenty thousand to
thirty thousand pesos shall be imposed upon any person who, unless
authorized by law, shall sell, administer, deliver, give away to
another, distribute, dispatch in transit or transport any prohibited
drug, or shall act as a broker in any of such transactions. If the victim
of the offense is a minor, or should a prohibited drug involved in any
offense under this Section be the proximate cause of the death of a
victim thereof, the maximum penalty herein provided shall be
imposed."
This section penalizes the pusher, who need not be the owner of the
prohibited drug. The law defines pusher as "any person who sells,
administers, delivers, or gives away to another, on any terms
whatsoever, or distributes, dispatches in transit or transports any
dangerous drug or who acts as a broker in any of such transactions, in
violation of this Act. 10
In People vs. Alfonso, 11 where the accused was charged with the
unlawful transportation of marijuana under the aforesaid Section 4,
this Court ruled that ownership is not a basic issue. LexLib
The facts, as proven by the prosecution, establish beyond cavil that
the accused was caught in the act of transporting the prohibited drug
or, in other words, in flagrante delicto. That he knew fully well what
he was doing is shown beyond moral certainty by the following
circumstances: (a) the prohibited drug was found in a travelling bag,
(b) he is the owner of the said bag, (c) he concealed the bag behind a
spare tire, (d) he was travelling alone, and (e) the Ford Fiera in which
he loaded the bag was under his absolute control, pursuant to Section
4, Rule 133 of the Rules of Court (on circumstantial evidence), the
combination of all these circumstances is such as to produce a
conviction beyond reasonable doubt. Such circumstances, unrebutted
by strong and convincing evidence by the accused, even gave rise to
the presumption that he is the owner of the prohibited drug. 12
The second assigned error is devoid of merit. The declaration in the
joint clarificatory sworn statement executed by the apprehending
officers, that the marijuana subject of the case was surreptitiously
placed by an unknown person in the bag of the accused, is not
supported by evidence. Said sworn statement cannot be used as a
basis for exoneration because the very same officers who signed the
same reiterated on the witness stand their statements in their original
affidavit implicating the accused, both the criminal complaint before
the Municipal Trial Court of Lontoc and the information in this case
were based on this original affidavit. No probative value could be
assigned to it not only because it was procured by the defense under
questionable circumstances, but also because the affiants therein
merely expressed their personal opinion. The trial court's correct
exposition on this point, to which nothing more may be added,
deserves to be quoted, thus:
"From the portions of the 'Joint Clarificatory Sworn Statement- of
prosecution witnesses Layong and Fomocod cited (Exhs. "I" to "I-C";
p 155, Record), the defense would want this Court to draw the
inference that the accused Conway Omaweng is innocent as
confirmed by no less than the persons who apprehended the suspect
in flagranti (sic). In other words, that the said accused is not the
owner of the contraband confiscated but someone else; that to (sic)
mysterious individual placed the prohibited articles inside the
travelling bag of the accused without the knowledge and consent of
the latter; and that the identity of this shadowy third person is known
by the PC/INP investigators. The isolated declarations, albeit under
oath are much too asinine to be true and do not affect the credibilities
of the witnesses — affiants and the truth of their affirmations on the
stand. As gleaned from parts of the record of the reinvestigation of
this case conducted by the Provincial Fiscal (Exhs "G" and "D"; pp.
158 and 161, Record), it appears that Layong and Fomocod were
prevailed upon to affix their signatures to (sic) the document styled as
'Joint Clarificatory Sworn Statement' by interested persons in a vain
ploy to extricate the accused from the morass he got himself into.
Testifying in open court, the same witnesses maintained the tenor of
their original affidavit supporting the filing of the criminal complaint
in the lower court (Exh. "C"; p. 2, Record) No additional information
was elicited from said witnesses during their examination from which
it can reasonably be deduced that a third person instead of the accused
is the culprit and that the suspect is being framed-up for a crime he
did not commit. Nonetheless, granting arguendo that the declarations
of Layong and Fomocod now the bone of contention, are on the level,
the same are but mere opinions and conclusions without bases. Any
which way, to believe that any person in his right mind owning
several kilos of hot hashish worth tens of thousands of pesos would
simply stash it away in the travelling bag of someone he has no
previous agreement with is a mockery of common sense. And to think
further that the PC/INP agents know of such fact yet they kept the
vital information under 'confidential Status' (whatever that means in
police parlance) while an innocent person is being prosecuted and
practically in the shadow of the gallows for the offense would be
stretching human credulity to the snapping point. By and large, the
fact remains as the circumstances logically indicate that the accused
Conway Omaweng has knowledge of the existence of the contraband
inside his vehicle and he was caught red-handed transporting the hot
stuff." 13
The third assignment of error hardly deserves any consideration.
Accused was not subjected to any search which may be stigmatized
as a violation of his Constitutional right against unreasonable
searches and seizures. 14 If one had been made, this Court would be
the first to condemn it "as the protection of the citizen and the
maintenance of his constitutional rights is one of the highest duties
and privileges of the Court."15 He willingly gave prior consent to the
search and voluntarily agreed to have it conducted on his vehicle and
travelling bag. Prosecution witness Joseph Layong testified thus: llcd
"PROSECUTOR AYOCHOK:
Q When you and David Fomocod saw the travelling bag, what
did you do?
A When we saw that travelling bag, we asked the driver if we
could see the contents.
Q And what did or what was the reply of the driver, if there was
any?
A He said 'you can see the contents but those are only clothings
(sic).'
Q When he said that, what did you do?
A We asked him if we could open and see it.
Q When you said that, what did he tell you?
A He said you can see it.
Q And when he said 'you can see and open it,' what did you do?
A When I went inside and opened the bag, I saw that it was not
clothings (sic) that was contained in the bag.
Q And when you saw that it was not clothings (sic), what did
you do?
A When I saw that the contents were not clothes, I took some of
the contents and showed it to my companion Fomocod and when
Fomocod smelled it, he said it was marijuana." 16
This testimony was not dented on cross-examination or rebutted by
the accused for he chose not to testify on his own behalf.
Thus, the accused waived his right against unreasonable searches and
seizures As this Court stated in People vs. Malasugui: 17
". . . When one voluntarily submits to a search or consents to have it
made of (sic) his person or premises, he is precluded from later
complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol.
I, page 631.) The right to be secure from unreasonable search may,
like every right, be waived and such waiver may be made either
expressly or impliedly."
Since in the course of the valid search forty-one (41) packages of
drugs were found, it behooved the officers to seize the same; no
warrant was necessary for such seizure. Besides, when said packages
were identified by the prosecution witnesses and later on formally
offered in evidence, the accused did not raise any objection
whatsoever. Thus, in the accused's Comments And/Or Objections To
Offer of Evidence, 18 We merely find the following: LLphil
"EXHIBIT COMMENTS AND/OR OBJECTIONS
"A" The bag was not positively identified to
be the same bag allegedly found inside
the vehicle driven by the accused. The
arresting officers failed to show any
identifying marks; thug, said bag is an
irrelevant evidence not admissible in court;
"A-1" to "A-40" Objected to also as irrelevant as the 40
bags now being offered are not the same
bags alleged in the information which is 41
bags. The prosecution failed to proved (sic)
beyond reasonable doubt that Exhibit "A-1"
to "A-40" are the same bags allegedly taken
from inside Exhibit "A" because what is
supposed to be inside the bag are 41 bags
and not 40 bags."
xxx xxx xxx
WHEREFORE, the decision of Branch 36 of the Regional Trial Court
of Bontoc, Mountain Province of 21 March 1991 in Criminal Case
No. 713 finding the accused CONWAY B. OMAWENG guilty
beyond reasonable doubt of the crime charged, is hereby
AFFIRMED.
Costs against the accused.
SO ORDERED.
Gutierrez, Jr., Bidin and Romero, JJ ., concur.
Feliciano, J ., is on leave.
EN BANC
[G.R. No. 119246. January 30, 1998.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
ANTONIO CORREA y CAYTON @ "BOYET," RITO GUNIDA
y SESANTE @ "DODONG," and LEONARDO DULAY y
SANTOS @ "BOY KUBA", accused-appellants.
The Solicitor General for plaintiff-appellee.
Virgilio Y. Morales for accused-appellants.
SYNOPSIS
Accused-appellants were convicted for violation of Section 4, Article
II of Republic Act No. 6425, as amended and penalized to death and a
fine of Ten Million Pesos by the Regional Trial Court of Manila
(Branch 35). The conviction was based on the testimony of the lone
witness presented by the prosecution, SPO3 Jesus Faller, the team
leader of the nine-member police team of the Drug Enforcement Unit-
Western Police District, which responded to the confidential and
intelligence reports received by the team about the drug trafficking
activity of Leonardo Dulay around Bambang Street, Tondo, Manila.
As a result of the operation, the appellants were arrested in the early
morning of June 18, 1994 in the act of transporting the 16.1789
kilograms or eight bundles of dried marijuana flowering tops wrapped
in pieces of paper and plastic tapes, at the intersection of Bambang
Extension and Jose Abad Santos Ave., Tondo, Manila. aEcSIH
On the other hand, the accused-appellants interposed the defense of
alibi whose testimonies were corroborated by five other witnesses.
This Court ruled that there is no law requiring that a testimony of a
witness be corroborated in order to be believed. The testimony of a
single witness, if credible and positive, is sufficient to produce a
conviction. The failure to present all the eyewitnesses to an act does
not necessarily give rise to an unfavorable presumption, especially
when the testimony of the witness sought to be presented is merely
corroborative. A corroborative testimony is not necessary where the
details of the crime have clearly been testified to with sufficient
clarity.
What is of paramount importance in the present case is the positive
identification by prosecution witness SPO3 Jesus Faller of the three
(3) appellants, who were caught in flagrante delicto transporting the
subject dried marijuana flowering tops. This should prevail over the
appellants' alibi and denials. cTDaEH
The only error committed by the trial court is when it considered the
appellants' use of a motor vehicle in the commission of the offense as
an aggravating circumstances. thus raising the penalty from reclusion
perpetua to death.
Simply stated; the motor vehicle which was used to transport
prohibited drugs was not purposely sought to facilitate the
commission of the crime since such act of transporting constitutes the
crime itself. The use of a motor vehicle is inherent in the crime of
transporting as it must of necessity accompany the commission
thereof; hence, such use is not an aggravating circumstance.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY;
CREDIBLE AND POSITIVE TESTIMONY OF A SINGLE
WITNESS IS SUFFICIENT TO CONVICT. — There is no law
requiring that a testimony of a witness be corroborated in order to be
believed. The testimony of a single witness, if credible and positive,
is sufficient to produce a conviction. HTSAEa
2. ID.; ID.; CORROBORATIVE TESTIMONY; NOT
NECESSARY WHERE DETAILS OF THE CRIME HAVE
CLEARLY BEEN TESTIFIED TO. — The failure to present all the
eyewitnesses to an act does not necessarily give rise to an unfavorable
presumption, especially when the testimony of the witness sought to
be presented is merely corroborative. A corroborative testimony is not
necessary where the details of the crime have clearly been testified to
with sufficient clarity.
3. ID.; ID.; MATTER OF SELECTING AND PRESENTING
WITNESSES FOR THE PEOPLE, A PREROGATIVE OF THE
PUBLIC PROSECUTOR. — The matter of selecting and presenting
witnesses for the People is a prerogative of the public prosecutor.
Thus, the non-presentation by the prosecution of certain witnesses is
not a valid defense for the accused, neither does it work against the
prosecution's cause.
4. ID.; ID.; ACCUSED MAY AVAIL OF COMPULSORY
JUDICIAL PROCESS WHERE HE BELIEVES THAT
TESTIMONIES OF WITNESSES ARE IMPORTANT TO HIS
CAUSE. — Where, as here, the accused believes that the testimonies
of the witnesses are important to his cause, as when he expects them
to make declarations inconsistent with that of the principal
prosecution witness, then he should avail of them even by
compulsory judicial process if necessary.
5. ID.; ID.; PRESUMPTIONS; PRESUMPTION OF
REGULAR PERFORMANCE OF DUTY, APPLIED IN CASE AT
BAR. — We have carefully examined the testimony of SPO3 Jesus
Faller to determine whether or not his testimony is a product of
fabrication and we find his testimony to be credible. Moreover, being
a law enforcer, Faller is presumed to have regularly performed his
duty in the absence of proof to the contrary.
6. ID.; ID.; CREDIBILITY; FINDINGS OF FACT OF THE
TRIAL COURT, GENERALLY ACCORDED GREAT WEIGHT
AND RESPECT ON APPEAL. — We should accord great weight
and respect to the findings of fact of the trial court which is in a better
position to determine questions involving the credibility of witnesses,
it having directly heard them and observed their deportment and
manner of testifying. In the absence of any showing that the trial
court had overlooked certain substantial facts which would alter the
conviction of the appellants, we do not find any reason to overturn the
trial court's findings as to facts. IcDCaS
7. ID.; ID.; ID.; ALIBI AND DENIALS; CANNOT PREVAIL
OVER POSITIVE IDENTIFICATION. — What is of paramount
importance in the present case is the positive identification by
prosecution witness SPO3 Jesus Faller of the three (3) appellants who
were caught in flagrante delicto transporting the subject dried
marijuana flowering tops. This should prevail over the appellants'
alibi and denials of having committed the crime with which they were
charged in the lower court, since as between the positive declaration
of the prosecution witness and the negative statements of the
appellants, the former deserves more credence.
8. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT
AGAINST UNREASONABLE SEARCHES AND SEIZURE;
SUBJECT TO WAIVER; CASE AT BAR. — The appellants are now
precluded from assailing the warrantless search when they voluntarily
submitted to it as shown by their actuation during the search and
seizure. The appellants never protested when SPO3 Jesus Faller, after
identifying himself as a police officer, opened the tin can loaded in
the appellants' vehicle and found eight (8) bundles. And when Faller
opened one of the bundles, it smelled of marijuana. The NBI later
confirmed the eight (8) bundles to be positive for marijuana. Again,
the appellants did not raise any protest when they, together with their
cargo of drugs and their vehicle, were brought to the police station for
investigation and subsequent prosecution. We have ruled in a long
line of cases that "When one voluntarily submits to a search or
consents to have it made on his person or premises, he is precluded
from later complaining thereof (Cooley, Constitutional Limitations,
8th ed., Vol. 1, page 631). The right to be secure from unreasonable
search may, like every right, be waived and such waiver may be made
either expressly or impliedly." The appellants effectively waived their
constitutional right against the search and seizure in question by their
voluntary submission to the jurisdiction of the trial court, when they
entered a plea of not guilty upon arraignment and by participating in
the trial.
9. REMEDIAL LAW; ACTIONS; APPEALS; APPEAL
THROWS THE WHOLE CASE OPEN TO REVIEW AND IT
BECOMES THE DUTY OF THE HIGH TRIBUNAL TO
CORRECT ERRORS FOUND IN THE JUDGMENT. — The only
error committed by the trial court, as we stated in the beginning, is its
imposition of the death penalty on the appellants. Although this
matter is not assigned as an error by the appellants, however, in a
criminal case, an appeal to this Court throws the whole case open to
review and it becomes our duty to correct an error as may be found in
the judgment appealed from whether it is made the subject of
assignment of errors or not.
10. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES;
USE OF MOTOR VEHICLE; NOT CONSIDERED IN VIOLATION
OF SECTION 4, ARTICLE 2 OF REPUBLIC ACT NO. 6425, AS
AMENDED (DANGEROUS DRUGS ACT). — Section 20, Article
14 of the Revised Penal Code considers as aggravating circumstance
a situation when "the crime be committed . . . by means of motor
vehicles, airships, or other similar means." However, the use by the
appellants of a motor vehicle in this case should not be appreciated as
an aggravating circumstance because the very act of transporting the
prohibited drug is what is being punished under Section 4, Article II
of Republic Act No. 6425 (the Dangerous Drugs Act of 1972), as
amended by Section 13 of Republic Act No. 7659 (the "heinous
crimes" Law). The act of transporting a prohibited drug, like the one
at bar, is a malum prohibitum since it is punished as an offense under
a special law. The use of a motor vehicle is inherent in the crime of
transporting the prohibited drug. It is a wrongful act because it is
prohibited by law. Without the law punishing the act, it cannot be
considered a wrong. As such, the mere commission of said act is
constitutive of the offense punished and suffices to validly charge and
convict an individual caught committing the act so punished,
regardless of criminal intent. Simply stated, the motor vehicle which
was used to transport prohibited drugs was not purposely sought to
facilitate the commission of the crime since such act of transporting
constitutes the crime itself, punishable under Section 4, Article II of
Republic Act No. 6425, as amended. That a motor vehicle was used
in committing the crime is merely incidental to the act of transporting
prohibited drugs. The use of a motor vehicle is inherent in the crime
of transporting as it must of necessity accompany the commission
thereof; hence, such use is not an aggravating circumstance.
11. CRIMINAL LAW; DANGEROUS DRUGS ACT
(REPUBLIC ACT NO. 6425, AS AMENDED); ACT OF
TRANSPORTING PROHIBITED DRUGS; PENALTY. — There
being no aggravating or mitigating circumstance which attended the
commission of the offense in this case, and considering that the
quantity of the subject prohibited drug exceeded 750 grams, the
proper penalty that should be imposed on each of the appellants is
reclusion perpetua and a fine of Ten Million Pesos. AcCTaD
D E C I S I O N
MARTINEZ, J p:
The courts should not hesitate to wield the sword against drug
traffickers whose conscience has been seared by their insatiable greed
for instant wealth, thus propelling them to boldly pursue their
abominable trade, utterly unconcerned of the pernicious effects of
their venomous merchandise which have destroyed the lives and
shattered the dreams of hapless victims, especially the vulnerable
youth. cdphil
This the trial court did in the present case when it imposed the most
severe penalty of death and a fine of Ten Million Pesos against the
three (3) appellants for delivering and transporting more than 16
kilograms of prohibited dried marijuana flowering tops.
While the conviction of the appellants of the crime charged is proper,
we find, however, that the penalty of death imposed by the trial court
is not in accordance with the law.
On 12 July 1994, an Information was filed with the Regional Trial
Court of Manila (Branch 35), docketed as Criminal Case No. 94-
137528, indicting appellants Antonio Correa y Cayton @ "Boyet,"
Rito Gunida y Sesante @ "Dodong," and Leonardo Dulay y Santos @
"Boy Kuba" for having violated Section 4, Article II of Republic Act
No. 6425, 1 as amended, allegedly committed as follows:
"That on or about June 18, 1994, in the City of Manila, Philippines,
the said accused conspiring and confederating together and helping
one another, not being authorized by law to possess, sell, deliver,
transport, give away to another or distribute any prohibited drug, did
then and there willfully, unlawfully, knowingly and jointly deliver or
transport eight (8) bundles of dried flowering tops of MARIJUANA
wrapped in pieces of papers and plastic tapes weighing 16.1789
kilograms, a prohibited drug.
"CONTRARY TO LAW." 2
The Information indicated that the appellants were "All Under Arrest"
and that "No Bail (was) Recommended." 3
When arraigned, the appellants pleaded "NOT GUILTY."
After trial, the lower court found the appellants guilty as charged, the
dispositive portion of the decision dated 03 March 1995 reading thus:
"WHEREFORE, judgment is rendered pronouncing the three accused
ANTONIO CORREA y CAYTON, @ "Boyet," RITO GUNIDA y
SESANTE @ "Dodong," and LEONARDO DULAY y SANTOS @
"Boy Kuba" guilty beyond reasonable doubt of unlawful delivery and
transportation of dried marijuana flowering tops weighing 16.1789
kilograms, penalized under Section 4, Article 11 of Republic Act No.
6425, as amended, and further amended by Section 13 in relation to
Section 17 of Republic Act No. 7659, and sentencing each of the said
three accused to DEATH to be executed by the means provided by
law, and to pay a fine of P10,000,000.00, plus the costs.
"The eight (8) bundles in brick form of dried marijuana flowering
tops (Exhibits B-1 to B-8, inclusive), weighing 16.1789 kilograms are
ordered confiscated and forfeited to the Government to be disposed of
in accordance with law under the direction and supervision by the
Dangerous Drugs Board. Within ten (10) days following the
promulgation of this judgment, the Branch Clerk of this Court, is
ordered to turn over the two (2) bundles of dried marijuana flowering
tops left with this Court to the Dangerous Drugs Custodian, National
Bureau of Investigation, as appointed by the Dangerous Drugs Board,
for appropriate disposition. The other six (6) bundles of said dried
marijuana flowering tops have been left in the custody of the NBI,
Forensic Chemistry Division.
"The owner-type jeep with plate No. FMR 948 used by the three
accused as a means to commit the offense is also ordered confiscated
and forfeited in favor of the Government, unless it can be shown that
it is in the property of a third person not liable for the offense.
"Serve a copy of this Decision on the Executive Director, Dangerous
Drugs Board, for his information and guidance.
"SO ORDERED." 4
The verdict of conviction by the trial court rested mainly on the
testimony of prosecution witness SPO3 Jesus Faller, a police officer
assigned at Police Station 3, Western Police District, City of Manila.
5 He was among the nine-member police team of the Drug
Enforcement Unit — Western Police District Command (DEU-
WPDC) which arrested the three (3) appellants in the early morning
of 18 June 1994. 6 His account of the arrest, as correctly narrated in
the Appellee's Brief, is as follows:
"About a week prior to June 18, 1994, the Police Operatives from the
Drug Enforcement Unit of the Western Police District Command
(DEU-WPDC) had placed under surveillance the movements and
activities of appellant Leonardo Dulay on account of confidential and
intelligence reports received in said Unit about his drug trafficking
around Bambang Street, Tondo, Manila. The police surveillance
brought forth positive results and confirmed Dulay's illegal drug trade
(TSN, Nov. 22, 1994, pp. 16-17).
"On June 17, 1994, at around 8:00 o'clock in the evening, the Unit's
Operatives, DEU-WPDC, U.N. Avenue, Ermita, Manila was alerted
by a police informant that Dulay, coming from Quezon City, would
deliver and transport that night, to Bambang Street, Manila a certain
quantity of drugs. Dulay reportedly would pass A. Bonifacio Street on
board a semi-stainless owner-type jeep with Plate No. FMR-948.
Forthwith, a nine-man team headed by SPO3 Jesus Faller was
organized to pursue and bag the suspect. Thereafter, the operatives,
together with the informer proceeded to A. Bonifacio Street on board
three vehicles. They inconspicuously parked along the side of North
Cemetery, boundary of Quezon City and Manila, at around 11:00
o'clock that same evening, and waited for the suspect (Id., pp. 4; 19-
20).
"Around 3:00 o'clock in the morning of June 18, 1994, the police
informant spotted the approaching vehicle of Dulay and immediately
alerted the waiting policemen. The operatives tailed the subject
jeepney, taking care that its passengers would not notice that they
were being followed (Id., p. 5).
"Upon reaching the intersection of Bambang Extension and Jose
Abad Santos Avenue, Tondo, Manila, the subject vehicle stopped and
parked at a corner. Thereupon, the operatives also stopped and parked
their vehicles around the suspect's vehicle and accosted the
passengers of the owner-type jeepney. Appellant Antonio Correa was
at the driver's seat with appellant Leonardo Dulay sitting beside him
in the front seat and appellant Rito Gunida at the back seat (Id., p.
21). The team inspected a cylindrical tin can of El Cielo Vegetable
Cooking Lard (Exhibit 'B'), about two feet high, loaded in the vehicle
of the appellants. The can contained eight bundles of suspected dried
marijuana flowering tops wrapped in pieces of paper and plastic
tapes. The team seized the suspected contrabands and marked each
bundle consecutively with 'IDR-1' to 'IDR-8' (Exhibits 'B-1' to 'B-8'
inclusive). The three suspects were brought to the police headquarters
at DEU-WPDC for investigation (Id., pp. 5-9; Exhs. 'E,' 'F' and 'G').
"The packages of suspected marijuana were submitted to the National
Bureau of Investigation for laboratory analysis to determine their
chemical composition. The tests confirmed that the confiscated stuff
were positive for marijuana and weighed 16.1789 kilograms (TSN,
Nov. 15, 1994, p. 11; Exhs. 'D' and D-1')." 7
The appellants, on the other hand, had a different story on their arrest.
The trial court, in its decision subject for review, has summarized the
appellants' version thus:
"The common defense interposed by the three accused is in the nature
of alibi. The core of their contention is that they were arrested without
warrant in Camarin D, Caloocan City. They also denied that they
were delivering and transporting dried marijuana flowering tops when
they were apprehended.
"Also stripped of incidental details, the version of the defense is to the
effect that on June 17, 1994, at about 5:00 o'clock in the afternoon,
Leonardo Dulay rushed to the Metropolitan Hospital his gravely ill
and very weak six months old son Jon-Jon. He was accompanied by
his co-accused Antonio Correa, who drove the owner-type jeep which
they used, and a neighbor known only as 'Bulik.' At around 11:00
o'clock the same evening, Leonardo Dulay, Antonio Correa and
'Bulik' went back home to get the things of the sick child. However,
when they were already near the house of Leonardo Dulay in
Camarin D, Caloocan City, some elements of the Western Police
District Command blocked their (accused) way, and apprehended
them for an alleged charge of trafficking on 'shabu,' and were brought
to the WPDC headquarters at U.N. Avenue, where they were
detained.
". . . according to accused Rito Gunida, he was picked-up by the
police in his house at Camarin II, Area D, Caloocan City, on June 17,
1994, at around 12:00 o'clock midnight. The arresting officers rose
(sic) him from his sleep. He was also taken to the headquarters of the
WPDC at U.N. Avenue, and there placed in a cell.
"In addition to their respective declarations, the three accused
likewise offered the testimonies of Marilene de la Rosa, Violeta
Almugela, Juanito Balino, Rogelio Altis and Pascual Gillego to
corroborate the claim of the defense." 8
Assailing the verdict of conviction, the appellants interpose the
following assignment of errors:
"THE LOWER COURT ERRED:
I
IN TAKING COGNIZANCE OF THE CASE, AS ALL THE
ACCUSED WERE APPREHENDED AT THEIR RESPECTIVE
RESIDENCES IN CAMARIN, KALOOKAN CITY, NOT IN
MANILA AS THE LAWMEN MADE IT APPEAR WHERE THE
THREE (3) ACCUSED ALLEGEDLY COMMITTED THE
OFFENSE.
II
IN ADMITTING THE EVIDENCE ALLEGEDLY CONFISCATED
FROM THE ACCUSED, THE SAME BEING INADMISSIBLE
BEING THE FRUIT OF AN ILLEGAL SEARCH CONDUCTED
WITHOUT ANY SEARCH WARRANT.
III
IN BASING ITS DECISION OF CONVICTION OF APPELLANTS
SOLELY ON THE UNCORROBORATED TESTIMONY OF SPO3
JESUS FALLER OF THE WPDC DESPITE THE PARTICIPATION
OF THE OTHER EIGHT MEMBERS OF THE OPERATIVES
THAT ALLEGEDLY TOOK PART IN THE ARREST OF THE
THREE (3) ACCUSED.
IV
IN CONVICTING THE THREE (3) ACCUSED DESPITE THE
FAILURE OF THE PROSECUTION TO ESTABLISH THE GUILT
OF THE ACCUSED BEYOND REASONABLE DOUBT." 9
The appellants' submission is palpably without merit.
The first, third and fourth assigned errors aforequoted are closely
interrelated and, therefore, the same shall be discussed jointly.
The appellants plead in exculpation that their version should be
believed because the defense has "indubitably established" that they
were arrested in their respective residences in Camarin, Caloocan
City by the police team of SPO3 Jesus Faller of the Western Police
District Command, Manila. The appellants claim that —
". . . Witnesses Juanita Balino, Marlene dela Rosa, Violeta Almojuela
and Rogelio Altis are unanimous in their declaration that the arresting
officers were in Camarin, Kalookan City, when they arrested the three
accused. As against the testimony of SPO3 Jesus Faller, the positive
declaration of the foregoing witnesses for the defense should prevail.
Since SPO3 Jesus Faller belongs to the Western Police District
Command, he orchestrated his testimony to make it appear that the
arrest of the three accused and the confiscation of the alleged
marijuana took place in Bambang, Sta. Cruz, Manila, which is too far
and remote from the residences of the three accused who are all
residents of Camarin, Kalookan City. The arrest of the three accused
in Camarin, Kalookan City, were illegal and the alleged confiscation
of evidence invalid, granting that there really were evidence
confiscated from the three accused. To cure the flaw in the arrest of
the accused and the warrantless confiscation, Faller made it appear
that the accused were transporting marijuana in Bambang, Sta. Cruz,
Manila and that they tailed the accused until Bambang Street, when in
truth and in fact, the three accused were illegally apprehended in
Camarin, Kalookan City, and they really have to pass through A.
Bonifacio Street, on their way to Western Police Headquarters at the
U.N. Avenue. llcd
"To avoid inconsistencies in their statements and oral declaration in
court, the other eight (8) members of the arresting team . . . were not
presented as witnesses and their testimonies were withheld by the
prosecution. We do not find any reason why not one of them
corroborated the testimony of SPO3 Faller. There is a legal
presumption that if an evidence is intentionally withheld when there
is opportunity to offer the same, (the said evidence) is deemed to be
adverse to the party withholding the same. Not a single corroboration
came for the said eight members of the arresting team." 10 (Emphasis
ours)
That is all the appellants could say in assailing the credibility of
prosecution star witness SPO3 Jesus Faller. Nothing was mentioned
about any inconsistencies in the testimony of Faller. Neither was
there any suggestion that Faller harbored ill-feeling against the
appellants.
The appellants' allegations that "(t)o cure the flaw in (their) arrest,"
SPO3 Jesus Faller "orchestrated his testimony" and "made it appear
that the accused were transporting marijuana in Bambang, Sta. Cruz,
Manila" and were arrested thereat, and that "(t)o avoid inconsistencies
in their statements and oral declaration in court, the other eight (8)
members of the arresting team. . . were not presented as witnesses,"
are nothing but mere conjectures and suspicious which have zero
probative value. Conjectures and suspicions are not evidence; ergo,
they prove nothing.
Moreover, the testimonies of the other members of the apprehending
team would, at best, have been merely corroborative of Jesus Faller's
testimony. Thus, the trial court did not err in giving credence to the
uncorroborated testimony of Jesus Faller and in rejecting the
appellants' defense of alibi and denial.
There is no law requiring that a testimony of a witness be
corroborated in order to be believed. 11 The testimony of a single
witness, if credible and positive, is sufficient to produce a conviction.
12 The failure to present all the eyewitnesses to an act does not
necessarily give rise to an unfavorable presumption, especially when
the testimony of the witness sought to be presented is merely
corroborative. 13 A corroborative testimony is not necessary where
the details of the crime have clearly been testified to with sufficient
clarity. 14
The matter of selecting and presenting witnesses for the People is a
prerogative of the public prosecutor. 15 Thus, the non-presentation by
the prosecution of certain witnesses is not a valid defense for the
accused, neither does it work against the prosecution's cause. 16
Where, as here, the accused believes that the testimonies of said
witnesses are important to his cause, as when he expects them to
make declarations inconsistent with that of the principal prosecution
witness, then he should avail of them even by compulsory judicial
process if necessary. 17
In any case, the public prosecutor's choice of SPO3 Jesus Faller as the
only witness to testify on the appellants' arrest was proper. Faller was
the one who received from the informant the confidential information
about the illegal drug trafficking activities of appellant Leonardo
Dulay. 18 Since the said information was so confidential, Faller
placed appellant Dulay under police surveillance with only PO3 Ebia
and their informant as his (Faller's) companions. 19 After a week of
surveillance, the informant again reported to Faller in the evening of
17 June 1994 that the appellants would deliver illegal drugs that night
to Bambang on board a vehicle, and it was Faller who also headed the
nine-man police team in tailing the appellants and arresting them after
finding the illegal drugs in their possession. 20 Thus, Faller was the
best witness to testify on the circumstances of the appellants' arrest.
We have carefully examined the testimony of SPO3 Jesus Faller to
determine whether or not his testimony is a product of fabrication and
we find his testimony to be credible. Moreover, being a law enforcer,
Faller is presumed to have regularly performed his duty in the
absence of proof to the contrary. 21 We fully agree with the
observation of the trial court when it said:
"Apart from their inherently weak defense, the three accused have not
provided this Court with any other ground to warrant disbelief of the
testimony of SPO3 Jesus Faller. They have not as much as hinted that
SPO3 Jesus Faller was ill-motivated in testifying against them. This
witness of the People is a police officer. As such he is presumed to
have carried out and performed regularly his official duties, especially
in the absence of any indication in the record showing otherwise. It
has not been claimed that SPO3 Jesus Faller has a personal stake and
interest in the final outcome of this case, or that he would be
benefited or some personal advantage would inure to him if the three
accused were convicted. Whatever is the result of this case he would
continue to receive his usual remuneration as a police officer. More
than these, SPO3 Jesus Faller has been subjected to a lengthy and
searching cross-examination by an able and determined defense
counsel de parte, such that any falsehood in his narration could have
been easily detected and exposed. However, he came out from the
ordeal with his narration unimpaired and maintained.
"It is a familiar rule consistently applied by the Supreme Court in a
long line of cases, thereby making further citations academic, that
where there appears no evidence in the record indicating that the
principal prosecution witness has been actuated by improper motive
in testifying against the accused, the presumption is that he has not
been so actuated and his testimony is entitled to full faith and belief.
"The contentions of the defense that on June 18, 1994, at about 5:00
o'clock in the afternoon, Leonardo Dulay and Antonio Correa rushed
the gravely ill six months old son of the former to the Metropolitan
Hospital located at Magdalena Street, Sta. Cruz, Manila, according to
Leonardo Dulay (TSN, Dec. 13, 1994, p. 11), or at the corner of
Masangkay and Mayhaligue Streets, according to Antonio Correa
(TSN, Dec. 19, 1994, p. 22), and that at around 11:00 o'clock in the
evening on the same date they returned to Camarin in Caloocan City
to get the things of the child, but they were not able to do so because
elements of the Western Police District Command, who were waiting
near the house of Leonardo Dulay, arrested them (TSN, Dec. 13,
1994, pp. 12 & 15; Id., Dec. 19, 1994, pp. 23-26), do not deserve
belief by this Court. Aside from the observed discrepancy in their
testimonies about the location of the Metropolitan Hospital, the
Booking Sheets and Arrest Reports (Exhibits E and G) conclusively
reveal that as early as 4:00 o'clock in the morning on June 18, 1994,
they had been in the custody of the Drug Enforcement Unit of the
Western Police District Command at U.N. Avenue, Ermita, Manila,
undergoing police investigation. Although objected to by the defense
counsel on the ground that Antonio Correa and Leonardo Dulay
signed Exhibits E and G, respectively, without the assistance of
counsel, these documents, however, were offered by the prosecution
and admitted by the Court only for the purpose of showing that a
police investigation was conducted following the arrest of the two
accused. The signatures of the two accused on these documents are,
thus, immaterial and will not alter the fact that they were in the Office
of the DEU-WPDC at U.N. Avenue, Ermita, Manila, from 4:00
o'clock in the morning on June 18, 1994, being investigated by the
police authorities in connection with the offense now in question.
"One more thing. The clear implication of the claim of the defense is
that the sick child of Leonardo Dulay was confined in the
Metropolitan Hospital, otherwise its contention that Leonardo Dulay
and Antonio Correa went back to Camarin, Caloocan City to get the
things of the child would bear no sense. The hospital records of said
child are, therefore, the best evidence which would conclusively
confirm their pretense. Surprisingly, however, and for no stated
reason, the defense failed to offer in the evidence those hospital
records of the son of Leonardo Dulay. The significance of this
omission is fatal to the cause of the defense. It means that there were
no such hospital records because no child of Leonardo Dulay was
hospitalized on or about June 18, 1994, and that this was merely
fabricated by the defense to provide some loopholes through which
these two accused may elude the law.
"The alibi of Rito Gunida that he was sleeping in his house at
Camarin II, Area D, Caloocan City, on June 17, 1994, when at around
midnight he was awakened and arrested by some policemen cannot
outweigh and prevail over the testimony of SPO3 Jesus Faller that he
and his co-police officers arrested this accused, together with
Leonardo Dulay and Antonio Correa, on June 18, 1994, at more or
less, 3:45 o'clock in the morning at Bambang Extension corner Jose
Abad Santos Avenue in Tondo, Manila, in the act of delivering and
transporting marijuana, using a motorized vehicle. In weighing
conflicting statements and declarations of opposing witnesses, the
accepted rule consistently applied by the courts is that where the
testimony of the principal witness of the prosecution regarding the
commission by the accused of the offense in question is positive,
clear and trustworthy, like in the case at bar, the latter's denials and
explanation cannot outweigh and prevail over such positive, clear and
trustworthy evidence of the prosecution. (People vs. Chavez, et al.,
117 SCRA 221, 227; People vs. Campana, 124 SCRA 271, 281.)
"The attempt of the defense to corroborate its claim that the three
accused were arrested in Camarin, Caloocan City, and not in
Bambang Extension corner of Abad Santos Avenue, Tondo, Manila,
with the testimonies of Marilene de la Rosa, Violeta Almugela,
Juanita Balino, Rogelio Altisi and Pascual Gillego, did not provide
any improvement to its weak and crippled position.
"Marilene de la Rosa is the niece of Leonardo Dulay who finances her
studies. (TSN, Jan. 9, 1995, p. 4.) In view of her close relationship
with her uncle and the financial support he extends to her, it would be
unnatural if she does not feel a very strong bias in favor of her uncle
and provider.
"Violeta Almugela contradicted the testimonies of Leonardo Dulay
and Antonio Correa on a vital aspect of their defense. In the course of
her direct examination, she declared:
ATTY. MORALES (Defense counsel)
Madam witness, where were you on June 17, 1994, at about
midnight?
A: I was at the Hospital, sir.
Q: What Hospital are you referring to?
A: Infant Jesus, sir.
Q: What time did you arrive at Infant Jesus Hospital?
A: At 5:00, sir.
Q: Who were with you when you arrived?
A: I was with Boy Dulay and Josephine Dulay and a certain
Antonio, sir.
xxx xxx xxx
Q: Where did you proceed?
A: We proceeded to Metro Hospital, sir.
Q: Where is that situated?
A: At Tayuman, Tondo, sir. (TSN, Jan. 9, 1995, pp. 12-14.)
"Leonardo Dulay, on the other hand, declared under the direct
examination of his counsel:
Q: Where is that Metropolitan Hospital situated?
A: In Magdalena, sir.
Q: Magdalena what?
A: At Magdalena, Sta. Cruz, Manila, sir.
xxx xxx xxx
Q: When did you bring your son to the Metropolitan Hospital?
A: On June 18, sir.
Q: What time?
A: 5:00 o'clock, sir. (TSN, Dec. 13, 1994, pp. 11-12)
"There was no mention in the testimony of Leonardo Dulay that his
sick son was first taken to the Infant Jesus Hospital at 5:00 o'clock in
the afternoon on June 18, 1994.
"Antonio Correa, testifying on the same incident, gave another
version. He declared:
Q: Where is Metropolitan Hospital?
A: At Masangkay corner Mayhaligue Street.
Q: What City?
A: Manila, sir.
xxx xxx xxx
Q: Why did you go to Metropolitan Hospital?
A: In order to have the child of Leonardo Dulay medically
attended, sir.
xxx xxx xxx
Q: What time did you bring the son of Dulay to the Metropolitan
Hospital?
A: From 5:00 o'clock in the afternoon up to past 11 :00 o'clock.
xxx xxx xxx
Q: Now, what time did you leave the Metropolitan Hospital?
A: Past 11:00 o'clock, sir. (TSN, Dec. 19, 1994, pp. 22-23)
"The discrepancies in the testimonies of defense witness Violeta
Almugela, accused Leonardo Dulay and accused Antonio Correa
cannot be lightly ignored as discrepancies in minor details, because
such alleged incident forms a major link in the defense of the
accused, and the main basis of their alibi defense.
"The testimony of Juanita Balino deserves but a passing consideration
by this Court. According to her on June 17, 1994, at about midnight
she was in her house in Camarin Petchayan, Caloocan City, when
Boy Dulay, Antonio Correa, Gunida and one Violeta Almugela were
taken by armed police officers. But because after they passed by she
got afraid she went back to sleep. (TSN, Jan. 9, 1995, p. 23-24.) Her
testimony was so trivial, such that even the Assistant Prosecutor
found her unworthy for further cross-examination.
"We have no test of the truth of human testimony, except its
conformity to our common knowledge, usual observation, and daily
experience. To be worthy of credence, the testimony of a witness
should be so natural, reasonable and probable in view of the event
which it describes or to which it relates, so as to make it easy for the
mind to accept. In this case, despite the startling occurrence which
happened before her eyes, which even scared her, Juanita Balino
nonchalantly went back to sleep, unconcerned with what may happen
next. This is not the usual way a person of her age, 57 years old, and
status conducts himself(sic) in the face of a shocking event.
"Rogelio A. Altis, Sr., a barangay kagawad of Barangay 178, Zone
15, of Caloocan City, had no personal knowledge of the alleged
incident which supposedly took place at about midnight on June 17,
1994. He learned it only on June 20, 1994, when one Ursula Gunida
reported it to him. (TSN, Jan. 11, 1995, p. 3) It has not been explained
why it took Ursula Gunida until June 20, 1994 to report to the
barangay authorities the incident which allegedly happened on June
17, 1994.
"The same may be said with respect to the testimony of defense
witness Pascual Gillego. He admitted that he learned of the alleged
arrest of the three accused only from his neighbors. But he took no
steps to report the matter to his superiors in the barangay. . . . (TSN,
Jan. 11, 1995, pp. 6, 9).
"The testimonies of Rogelio Altis, Sr. and Pascual Gillego are
hearsay, and as such it has no probative value and should be
disregarded whether objected to or not. If no objection is made, it
becomes evidence only by reason of want of such objection, but its
admission does not confer upon it any new attribute in point of
weight. Its nature and quality remains the same, so far as its intrinsic
weakness and incompetency to satisfy the mind are concerned.
(People vs. Valero, 112 SCRA 661, 675.)" 22
We should accord great weight and respect to the findings of fact of
the trial court which is in a better position to determine questions
involving the credibility of witnesses, it having directly heard them
and observed their deportment and manner of testifying. 23 In the
absence of any showing that the trial court had overlooked certain
substantial facts which would alter the conviction of the appellants,
we do not find any reason to overturn the trial court's findings as to
facts.
What is of paramount importance in the present case is the positive
identification by prosecution witness SPO3 Jesus Faller of the three
(3) appellants, who were caught in flagrante delicto transporting the
subject dried marijuana flowering tops. This should prevail over the
appellants' alibi and denials of having committed the crime with
which they were charged in the lower court, since as between the
positive declaration of the prosecution witness and the negative
statements of the appellants, the former deserves more credence. 24
In the second, and final assigned error, the appellants assail the
admission of the seized marijuana flowering tops as evidence against
them, arguing that the same was "the fruit of an illegal search
conducted without any search warrant."
The appellants' contention is untenable. However, it would serve no
useful purpose to discuss at length this alleged error, for the following
reasons:
(1) The appellants are now precluded from assailing the
warrantless search and seizure when they voluntarily submitted to it
as shown by their actuation during the search and seizure. The
appellants never protested when SPO3 Jesus Faller, after identifying
himself as a police officer, opened the tin can loaded in the appellants'
vehicle and found eight (8) bundles. 25 And when Faller opened one
of the bundles, it smelled of marijuana. 26 The NBI later confirmed
the eight (8) bundles to be positive for marijuana. 27 Again, the
appellants did not raise any protest when they, together with their
cargo of drugs and their vehicle, were brought to the police station for
investigation and subsequent prosecution. We have ruled in a long
line of cases 28 that:
"When one voluntarily submits to a search or consents to have it
made on his person or premises, he is precluded from later
complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol.
I, page 631). The right to be secure from unreasonable search may,
like every right, be waived and such waiver may be made either
expressly or impliedly."
(2) The appellants effectively waived their constitutional right
against the search and seizure in question by their voluntary
submission to the jurisdiction of the trial court, when they entered a
plea of not guilty upon arraignment and by participating in the trial.
29
We agree with the trial court that the appellants conspired to commit
the offense which they knew to be unlawful:
"The established circumstances of this case, considered collectively,
demonstrate beyond reasonable doubt the conspiracy among the three
accused to commit the offense at bar. They were apprehended at the
same time; traveling together in a motorized vehicle from the time
they were first spotted by the arresting police officers at A. Bonifacio
Street until their actual arrest at Bambang Extension corner Jose Abad
Santos Avenue in Tondo, Manila; at an unholy hour of the night
(until) around 3:00 to 3:45 o'clock in the morning on June 18, 1994;
with Antonio Correa at the steering wheel, Leonardo Dulay seated in
front beside the driver and Rito Gunida seated at the back of the
motor vehicle; carrying for delivery and transportation a large
quantity of dried marijuana flowering tops wrapped in tightly with
plastic tapes and concealed in a big tin can of El Cielo Vegetable
Cooking Oil (Exhibit B). These factors leave the mind of this Court at
ease and free from any doubt that indeed the three accused had
conspired and helped one another in the delivery and transportation of
the said contraband. Section 21 of Republic Act No. 6425 provides:
'Sec. 21. Attempt and Conspiracy. — The same penalty
prescribed by this Act for the commission of the offense shall be
imposed in case of any attempt or conspiracy commit the same in the
following cases:
(a) . . . LLjur
(b) sale, administration, delivery, distribution and transportation
of dangerous drugs;
xxx xxx xxx'" 30
It was also duly established that the total weight of the dried
marijuana flowering tops involved in this case is 16.1789 kilograms
as testified to by NBI Forensic Chemist Emilia A. Rosales. 31
The only error committed by the trial court, as we stated in the
beginning, is its imposition of the death penalty on the appellants.
Although this matter is not assigned as an error by the appellants,
however, in a criminal case, an appeal to this Court throws the whole
case open to review and it becomes our duty to correct an error as
may be found in the judgment appealed from, whether it is made the
subject of assignment of errors or not. 32
The trial court considered the appellants' use of a motor vehicle in the
commission of the offense as an aggravating circumstance, thus
raising the penalty from reclusion perpetua which is the imposable
penalty prescribed by law 33 — to death. Justifying the penalty of
death, the trial court made the following observation:
"In view of the volume of dried marijuana flowering tops involved in
this case, and the attendance of the aggravating circumstance that the
crime was committed by means of a motor vehicle, the Court, with
deep regret and sorrow, finds no other alternative but to impose on
each of the three accused the supreme penalty of death and fine
prescribed by law. Undoubtedly the three accused used an owner-type
jeep with plate No. FMR 948 as a means to carry, deliver and
transport their illegal merchandise; to elude detection of their drug
trafficking activities by the police authorities ; and to facilitate escape
in case their crime is discovered. (People vs. Espejo, 36 SCRA 400.)"
34 (Emphasis ours)
True, Section 20, Article 14 of the Revised Penal Code considers as
aggravating circumstance a situation when "the crime be committed .
. . by means of motor vehicles, airships, or other similar means."
However, the use by the appellants of a motor vehicle in this case
should not be appreciated as an aggravating circumstance because the
very act of transporting the prohibited drug is what is being punished
under Section 4, Article II of Republic Act No. 6425 (the Dangerous
Drugs Act of 1972), as amended by Section 13 of Republic Act No.
7659 (the "heinous crimes" law). The said law provides:
"SEC. 4. Sale, Administration, Delivery, Distribution and
Transportation of Prohibited Drugs. — The penalty of reclusion
perpetua to death and a fine ranging from five hundred thousand
pesos to ten million pesos shall be imposed upon any person who,
unless authorized by law, shall sell, administer, deliver, give away to
another, distribute, dispatch in transit or transport any prohibited
drug, or shall act as a broker in any of such transactions.
Notwithstanding the provision of Section 20 of this Act to the
contrary, if the victim of the offense is a minor, or should a prohibited
drug involved in any offense under this Section be the proximate
cause of the death of a victim thereof, the maximum penalty herein
provided shall be imposed." (Emphasis ours)
The act of transporting a prohibited drug, like the one at bar, is a
malum prohibitum since it is punished as an offense under a special
law. 35 The use of a motor vehicle is inherent in the crime of
transporting the prohibited drug. It is a wrongful act because it is
prohibited by law. 36 Without the law punishing the act, it cannot be
considered a wrong. 37 As such, the mere commission of said act is
constitutive of the offense punished and suffices to validly charge and
convict an individual caught committing the act so punished,
regardless of criminal intent. 38
Admittedly, the law does not define how the act of transporting can
be committed. But, how else can one transport something to another
place except by the use of a carrier. Black's Law Dictionary defines
"transport" as "to carry or convey from one place to another." 39
Under Section 4, "Transportation of Prohibited Drugs" is by itself an
offense. Again, Black defines "transportation" as "the movement of
goods or persons from one place to another, by a carrier." 40 The
operative words in the definition are "to carry or convey." 41 The fact
that there is actual conveyance suffices to support a finding that the
act of transporting was committed and it is immaterial whether or not
the place of destination is reached. 42
Simply stated, the motor vehicle which was used to transport
prohibited drugs was not purposely sought to facilitate the
commission of the crime since such act of transporting constitutes the
crime itself, punishable under Section 4, Article II of Republic Act
No. 6425, as amended. That a motor vehicle was used in committing
the crime is merely incidental to the act of transporting prohibited
drugs. The use of a motor vehicle is inherent in the crime of
transporting as it must of necessity accompany the commission
thereof; hence, such use is not an aggravating circumstance.
Article 62 of the Revised Penal Code, as amended by Section 23 of
Republic Act No. 7659, reads:
"Art. 62. Effects of the attendance of mitigating or aggravating
circumstances and of habitual delinquency. — Mitigating or
aggravating circumstances and habitual delinquency shall be taken
into account for the purpose of diminishing or increasing the penalty
in conformity with the following rules:
1. Aggravating circumstances which in themselves constitute a
crime specially punishable by law or which are included by the law in
defining a crime and prescribing the penalty therefor shall not be
taken into account for the purpose of increasing the penalty.
xxx xxx xxx
2. The same rule shall apply with respect to any aggravating
circumstances inherent in the crime to such a degree that it must of
necessity accompany the commission thereof .
. . ." (Emphasis ours)
The case of People vs. Espejo cited by the trial court in support of its
ruling that the use of a motor vehicle in this case is an aggravating
circumstance, is one for robbery with homicide punishable under the
Revised Penal Code, which has an entirely different factual setting
and, therefore, the ruling therein should not be applied in the case at
bench. In any event, the finding of the trial court that the appellants'
use of the motor vehicle was intended "to elude detection of their
drug trafficking activities by the police authorities and to facilitate
escape in case their crime is discovered" is baseless. The prosecution
failed to establish this matter. Such intention cannot simply be
presumed but must be proved by clear and convincing evidence as
conclusively as the crime itself.
There being no aggravating or mitigating circumstance which
attended the commission of the offense in this case, and considering
that the quantity of the subject prohibited drug exceeded 750 grams,
the proper penalty that should be imposed on each of the appellants is
reclusion perpetua and a fine of Ten Million Pesos. 43
WHEREFORE, the judgment of the Regional Trial Court of Manila,
Branch 35, in Criminal Case No. 94-137528 is hereby MODIFIED in
the sense that the accused-appellants ANTONIO CORREA y
CAYTON, RITO GUNIDA y SESANTE and LEONARDO DULAY
y SANTOS shall suffer the penalty of reclusion perpetua in its entire
duration. In all other respects, the judgment of the trial court is hereby
AFFIRMED, with costs against the accused-appellants.
SO ORDERED.
Narvasa, C .J ., Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Puno, Vitug, Kapunan, Mendoza, Francisco and Panganiban, JJ .,
concur.
THIRD DIVISION
[G.R. Nos. 85401-02. June 4, 1990.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
ROSALINDA RAMOS y DAVID, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Romeo C. Alinea for defendant-appellant.
SYLLABUS
1. CONSTITUTIONAL LAW; RIGHTS OF ACCUSED
UNDER CUSTODIAL INVESTIGATION, CONTEMPLATES AN
EFFECTIVE TRANSMISSION OF INFORMATION
UNDERSTOOD BY PERSON INVESTIGATED. — This Court
finds that such recital of rights falls short of the requirement on
proper appraisal of constitutional rights. We quote the ruling in
People v. Nicandro (141 SCRA 289 [1986]): "When the Constitution
requires a person under investigation 'to be informed' of his right to
remain silent and to counsel, it must be presumed to contemplate the
transmission of meaningful information rather than just the
ceremonial and perfunctory recitation of an abstract constitutional
principle. As a rule, therefore, it would not be sufficient for a police
officer just to repeat to the person under investigation the provisions
of Section 20, Article IV of the Constitution. He is not only duty-
bound to tell the person the rights to which the latter is entitled; he
must also explain their effects in practical terms, e.g., what the person
under interrogation may or may not do, and in a language the subject
fairly understands. In other words, the right of a person under
interrogation 'to be informed' implies a correlative obligation on the
part of the police investigator to explain, and contemplates an
effective communication that results in understanding what is
conveyed. Short of this, there is a denial of the right, as it cannot truly
be said that the person has been informed' of his rights. Now, since
the right 'to be informed' implies comprehension, the degree of
explanation required will necessarily vary, depending upon the
education, intelligence and other relevant personal circumstances of
the person under investigation. Suffice it to say that a simpler and
more lucid explanation is needed where the subject is unlettered."
2. ID.; ID.; WAIVER OF RIGHT TO COUNSEL;
REQUISITES. — Although the right to counsel is a right that may be
waived, such waiver must be voluntary, knowing and intelligent
(People v. Caguioa, 95 SCRA 2 [1980]). To insure that a waiver is
voluntary and intelligent, the Constitution now requires that for the
right to counsel to be waived, the waiver must be in writing and in the
presence of the counsel of the accused. (Art. III, Section 12(1),
Constitution) There is no such written waiver in this case, much less
was any waiver made in the presence of counsel.
3. REMEDIAL LAW; EVIDENCE; PROSECUTION
INVOLVING SALE OR DISTRIBUTION OF DRUG; PRESENCE
AND IDENTITY OF POSEUR-BUYER. — The alleged poseur-
buyer, who also happens to be the alleged informant, was never
presented during trial. The presence and identity of the poseur-buyer
is vital to the case as his very existence is being disputed by the
accused-appellant who denies having sold marijuana cigarettes to
anyone. (People v. Ale, 145 SCRA 50 [1986]) Without the testimony
of the poseur-buyer, there is no convincing evidence pointing to the
accused as having sold marijuana. (People v. Fernando, 145 SCRA
151 [1986]) In this case, the alleged informant and the alleged poseur-
buyer are one and the same person. We realize that narcotics agents
often have to keep their identities and those of their informants
confidential. For a prosecution involving the sale or distribution of
drugs to prosper in this particular case, however, the informant has to
testify. The testimony of the poseur-buyer is rendered compelling by
the fact that the police officers were situated three blocks away from
where the alleged sale took place. They did not see the actual sale of
marijuana. Nor does the fact that marked money was found in her
possession show incontrovertibly that she is the seller of marijuana.
The appellant is a cigarette vendor. By the nature of her job, there is a
constant exchange of goods for money. It may be far-fetched but it is
possible that she came into possession of the marked money because
she accepted it in the course of legitimate sales of cigarettes. Again, it
is only the poseur-buyer who could testify that she gave marked
money to the appellant in exchange for marijuana sticks.
4. ID.; ID.; ID.; ELEMENT OF SALE MUST BE
ESTABLISHED. — It is a known fact that drug dealings are hard to
prove in court. Precisely because of this difficulty, buy-bust
operations have to be conducted and every effort is taken such that
the suspected pusher is caught in flagrante selling prohibited drugs.
For the culprit to be convicted, the element of sale must be
unequivocally established. In this case, the alleged poseur-buyer who
could have categorically asserted that she bought marijuana from the
appellant was not presented by the prosecution. And Sgts. Ahamad
and Sudiacal could not attest to the fact of sale because they were
three blocks away. The sale of marijuana was therefore not positively
proven.
5. ID.; ID.; ID.; DIRECT AND POSITIVE EVIDENCE,
ESSENTIAL. — Considering the severe penalty of reclusion
perpetua imposed on those who sell or distribute drugs, we have to
insure that evidence of culpability must pass the test of the strictest
scrutiny. We also have to take into account the oft-repeated defense in
violations of the Dangerous Drugs Act that the drugs or the marked
money were planted by police officers. More direct and positive
evidence is essential. The failure of the appellant to ask why she was
being invited for investigation by the NARCOM officers does not
ipso facto indicate her guilt. Fear could have prevented her from
propounding inquiries to the officers. The fact that the appellant
signed the extra judicial confession despite her insistence that its
contents were not true does not necessarily signify guilt. As earlier
stated the extra judicial confession cannot be accepted as evidence. It
is useless for purposes of proof of sale of prohibited drugs.
6. ID.; ID.; SUFFICIENCY OF CIRCUMSTANTIAL
EVIDENCE FOR CONVICTION; REQUISITES. — Rule 133,
Section 5 of the Rules of Court provides: Circumstantial evidence is
sufficient for conviction if: (a) There is more than one circumstance;
(b) The facts from which the inference are derived are proven; and (c)
The combination of all the circumstances is such as to produce a
conviction beyond a reasonable doubt.
7. ID.; ID.; ARREST WITHOUT WARRANT; VALID IN
CASE AT BAR. — Sgts. Sudiacal and Ahamad testified that there
was an informant who apprised them of the presence of a drug pusher
at the corner of 3rd Street and Rizal Avenue, Olongapo City. Acting
on such information and in their presence, their superior, Captain
Castillo, gave the informant marked money to buy marijuana. The
informant, now turned poseur-buyer, returned with two sticks of
marijuana. Captain Castillo again gave said informant marked money
to purchase marijuana. The informant-poseur buyer thereafter
returned with another two sticks of marijuana. The police officers
then proceeded to the corner of 3rd Street and Rizal Avenue and
effected the arrest of appellant. From the above facts, it may be
concluded that the arresting police officers had personal knowledge
of facts implicating the appellant with the sale of marijuana to the
informant-poseur buyer. We hold therefore that the arrest was legal
and the consequent search which yielded 20 sticks of marijuana was
lawful for being incident to a valid arrest.
8. ID.; ID.; ID.; LEGALITY THEREOF, NOT AFFECTED BY
FAILURE ON PROSECUTION TO PROVE THE COMMISSION
OF CRIME. — The fact that the prosecution failed to prove the sale
of marijuana beyond reasonable doubt does not undermine the
legality of the appellant's arrest. It is not necessary that the crime
should have been established as a fact in order to regard the detention
as legal. The legality of detention does not depend upon the actual
commission of the crime, but upon the nature of the deed when such
characterization may reasonably be inferred by the officer or
functionary to whom the law at the moment leaves the decision for
the urgent purpose of suspending the liberty of the citizen (People v.
Molleda, 86 SCRA 667 [1978]). The obligation to make an arrest by
reason of a crime does not presuppose as a necessary requisite for the
fulfillment thereof the indubitable existence of a crime (People v.
Ancheta, 68 Phil. 415 [1939]).
9. ID.; ID.; POSSESSION OF PROHIBITED DRUGS;
PROVED BEYOND REASONABLE DOUBT IN CASE AT BAR.
— This Court quotes with approval the following arguments of the
Solicitor-General: "Appellant's defense falls against the categorical
testimony of the NARCOM agents that the trash can was found under
the table where her legitimate wares were being sold. This fact was
not denied by appellant. Therefore, she was the only person who had
access to the trash can. The same was under her immediate physical
control. She had complete charge of the contents of the trash can
under the table to the exclusion of all other persons. In law, actual
possession exists when the thing is in the immediate occupancy and
control of the party. But this is not to say that the law requires actual
possession. In criminal law, possession necessary for conviction of
the offense of possession of controlled substances with intent to
distribute may be constructive as well as actual (Black's Law
Dictionary Abridge, 5th Edition, pp. 606-607). It is only necessary
that the defendant must have dominion and control over the
contraband. These requirements are present in the situation described,
where the prohibited drugs were found inside the trash can placed
under the stall owned by appellant. In fact, the NARCOM agents who
conducted the search testified that they had to ask appellant to stand
so that they could look inside the trash can under the papag' of the
appellant. Hence the trash can was positioned in such a way that it
was difficult for another person to use the trash can. The trash can
was obviously not for use by her customers. "Appellant's arguments
are inherently weak and improbable and cannot stand against the clear
evidence pointing to her actual possession of the prohibited drug. The
raw facts testified to by the NARCOM agents were corroborated by
appellant and their conclusion — that she had possession of the
marijuana sticks found in the trash can — is consistent with law and
reason.
10. ID.; ID.; ID.; IMPOSABLE PENALTY. — The lower court,
however, erred in imposing a fixed penalty of six (6) years and one
(1) day for possession of marijuana. Section 1 of the Indeterminate
Sentence Law (Republic Act 4103 as amended) provides that in
imposing a prison sentence for an offense punished by a law other
than the Revised Penal Code, the court shall sentence the accused to
an indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the minimum which shall
not be less than the minimum term prescribed by the same. The
penalty prescribed by the Dangerous Drugs Act for possession of
marijuana is imprisonment ranging from six (6) years and one (1) day
to twelve (12) years and a fine ranging from P6,000 to P12,000.
D E C I S I O N
GUTIERREZ, JR., J p:
Appellant Rosalinda Ramos seeks the reversal of the decisions of the
Regional Trial Court, Branch 73, Third Judicial Region at Olongapo
City, finding her guilty beyond reasonable doubt in Criminal Case
No. 5990 for violating Section 8 of Republic Act No. 6425
(Dangerous Drugs Act of 1972 as amended) and in Criminal Case No.
5991 for violating Section 4 of the same Act and sentencing her to:
1) Imprisonment of six (6) years and one (1) day and a fine of
P6,000.00 in Criminal Case No. 5990; and
2) Life imprisonment and a fine of P20,000.00 in Criminal Case
No. 5991.
The two informations filed against the appellant respectively alleged:
Criminal Case No. 5990
"That on or about the 29th day of November, 1982 in the City of
Olongapo, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused without being lawfully authorized,
did then and there wilfully, unlawfully and knowingly have in his/her/
their person, possession and control twenty (20) sticks of marijuana
cigarettes."
Criminal Case No. 5991
"That on or about the 29th day of November, 1982 in the City of
Olongapo, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, without being lawfully authorized,
did then and there wilfully, unlawfully and knowingly engage in
selling, delivering, giving away to another and distributing four (4)
sticks of marijuana cigarettes which is/are prohibited drug(s)." (Rollo,
p. 68)
The prosecution's version of the facts, as summarized by the
Solicitor-General, is as follows:
"On November 29, 1982, at around 7:00 o'clock in the evening, a,
civilian informer came to the Narcotics Command Office in
Olongapo City and reported that a cigarette vendor by the name of
`Mama Rose' was selling marijuana at the corner of 3rd Street and
Rizal Avenue in Olongapo City (TSN, pp. 4-5, 13, May 4, 1984; pp.
3-4, 11, April 9, 1986). Captain Castillo instructed the informant to
conduct a test buy. He gave to the informant two (2) five-peso bills,
noting first the serial numbers in his pocket note (TSN, pp. 5, 14-15,
May 4, 1984; p. 4, April 9, 1986). The informer left and after thirty
(30) minutes came back and gave to Captain Castillo two (2) sticks of
marijuana cigarettes (Exhibit `C-2') which he bought from appellant.
Captain Castillo again instructed the informer to make another test
buy from the suspect. From his wallet, Captain Castillo extracted
another two (2) five-peso bills and before handing the same to the
informer, recorded the serial numbers in his pocket note (TSN, pp.
19-21, May 4, 1984).
A team composed of Captain Castillo, Sgt. Tahil Ahamad, CIC
Danilo Santiago and Angel Sudiacal left with the informer. The
informer proceeded to where appellant was selling cigarettes to
conduct the next test buy while the NARCOM agents waited at the
Black and White Open Bar located at 7th Street, Rizal Avenue,
Olongapo City (TSN, pp. 6-7, April 9, 1986). The bar was about three
(3) blocks away from the place where appellant was selling cigarettes
(TSN, pp. 19, 8, id.). After forty-five (45) minutes more or less, the
informer arrived at the Black and White Bar and again gave to
Captain Castillo two (2) sticks of marijuana (Exhibit `C-1'; TSN, p.
23, May 4, 1984; p. 6, April 9, 1986).
The team then proceeded to the place where appellant was selling
cigarettes. After identifying themselves as NARCOM agents, Capt.
Castillo told appellant that she was being placed under arrest for
illegal peddling of marijuana. Appellant was requested to take out the
contents of her wallet (TSN, pp. 6-7, April 9, 1986, The four marked
five-peso bills were found among her possessions and were
confiscated after the serial numbers were confirmed by Captain
Castillo from his record (TSN, pp. 23-25, May 4, 1984). The initial of
Sgt. Tahil Ahamad was also found from the confiscated five-peso
bills (TSN, p. 9, April 9, 1986). Sgt. Ahamad searched the stall of
appellant and found twenty (20) sticks of marijuana cigarettes in a
trash can placed under the small table where appellant displayed the
wares she was selling (TSN, p. 7, April 9, 1986). Appellant was
thereafter brought to the station (TSN, p. 23, May 4, 1984).
At the station, appellant executed a statement confessing to her
crimes which she swore to before Assistant City Fiscal Domingo
Cabali, Jr. (TSN, pp. 5-6. June 20, 1984; Exhibit 'G').
The marijuana sticks confiscated were sent to the Philippine
Constabulary Crime Laboratory (PCCL) for analysis. These were
confirmed to be marijuana as evidenced by the Chemistry Report No.
MD-363-82 of Marlene Salangad, a Forensic Chemist of the PCCL
(See Exhibit `B'; TSN, p. 3, Jan. 13, 1986)." (Rollo, pp. 92-94).
On the other hand, the version of the appellant as summarized by the
trial court, is as follows:
". . . [O]n November 29, 1982, between 9:00 and 10:00 o'clock in the
evening she was at the corner of 3rd St., and Rizal Avenue, West
Tapinac, Olongapo City, selling cigarettes and fruits; that she does
not have any table, all she had was a small wooden 'papag' to show
her wares and sell them; that she was sitting on the small 'papag'
when Capt. Castillo came and introduced himself followed by three
or four others who were more or less 6 to 8 meters away. She was
surprised why they were there, and that she was invited by Capt.
Castillo to the NARCOM office for investigation to which invitation
she said `yes' after which she was taken to the NARCOM office.
Before she was taken thereto, the other men searched the buri bags
where she used to place her fruits (records does (sic) not show what
fruits she was selling) and also her small cigarettes (sic) stand; that
they did not find anything under the 'papag'; that when she was
ordered to board the car, Castillo told her 'sakay na ho, Mama Rose'
(please board now, Mama Rose'); that she was told to bring along her
cigarette stand; that inside her brown wallet, she has fifty (P50.00)
pesos consisting of five pesos and ten pesos; that it was Sudiacal who
took her wallet and Sudiacal took five (5) peso bills and told her that
four (4) five peso bills are the same money which was used to buy
marijuana from her; that she told the officer that the money was hers
as she has been saving some for the rentals. She claimed that she
affixed her signatures on the four (4) five peso bills because she was
forced by Tahil Ahamad by saying `Mama Rose', you sign this, if you
are not going to sign this, something will happen to you, you will get
hurt'; that because she is an old woman, she got scared so she signed.
When Tahil Ahamad told her to sign, Ahamad was talking to her in a
normal manner and seated in front of her; that she cannot remember
having signed anything because she was nervous, Capt. Castillo
investigated her and thereafter was brought to the Fiscal's Office. She
signed a document at the Fiscal's Office; that she was asked if the
contents of the document is (sic) true to which she answered No, sir';
that she was not assisted by a counsel while being investigated. She
also testified that she stayed at Narcom for five (5) days; that Capt.
Castillo alone investigated her for four (4) hours and that she likewise
was not assisted by counsel at the Fiscal's Office. She claimed that
when she was told by the Fiscal to just sign the document, Fiscal
Cabali did not say anything when she said that the contents of the
document are not true." (Rollo, pp. 72)
Appellant raises the following assignment of errors:
I
"THE FINDINGS OF FACTS ARE SO UNCLEAR AND
DOUBTFUL, MAKING THE CONCLUSIONS OF THE TRIAL
COURT WITHOUT FACTUAL AND LEGAL LEG TO STAND
ON.
II
THE EVIDENCE OBTAINED AND THE PERSON ARRESTED
WITHOUT THE BENEFIT OF A WARRANT OF ARREST AND
SEIZURE MAY NOT BE USED AGAINST THE ACCUSED AND
ANY CONVICTION FROM SUCH EVIDENCE IS NOT VALID
AND A GROUND FOR REVERSAL.
III
THE TRIAL COURT RELIED HEAVILY ON THE CONFESSION
OF THE APPELLANT AND THE CONFESSION WAS
EXTRACTED IN VIOLATION OF APPELLANT'S
CONSTITUTIONAL RIGHTS "TO REMAIN SILENT AND TO
COUNSEL'.
IV
WHEN NOT ALL THE ELEMENTS OF THE OFFENSE ARE
PRESENT AND PROVEN, CONVICTION IS NOT PROPER.
V
THE REQUISITES IN ORDER TO CONVICT ON
CIRCUMSTANTIAL EVIDENCE ARE NOT PRESENT AND NOT
COMPLIED WITH." (Rollo, p. 59)
At the outset, it may be observed that two informations were filed
against the appellant and the lower court imposed two sentences on
appellant, one for sale and the other for possession of marijuana. This
Court must emphasize that, assuming arguendo, the findings of guilt
for both offenses are correct, the trial judge nevertheless erred in
imposing a separate sentence for possession because possession of
marijuana is inherent in the crime of selling them. (People v. de Jesus,
145 SCRA 521 [1986]; People v. Andiza, 164 SCRA 642 [1988])
After a careful scrutiny of the records, this Court holds that
appellant's guilt in Criminal Case No. 5991 (sale of marijuana) has
not been proven beyond reasonable doubt.
First, the extra judicial confession extracted from the accused on
November 29, 1982 is inadmissible in evidence for being violative of
the Constitutional mandate that any person under investigation for the
commission of an offense shall have the right to be informed of his
right to remain silent and to have competent and independent counsel
preferably of his own choice. (Art. III, Section 12(1), Constitution)
The preliminary statement read to the appellant when her sworn
statement was executed appears as follows:
"SALAYSAY NA KUSANG LOOB NA IBINIBIGAY NI
ROSALINDA RAMOS Y DAVID KAY CAPTAIN ARTURO M.
CASTILLO PC SA HARAP NI SGT. TAHIL AHAMAD DITO SA
HIMPILAN NG CANU, OLONGAPO CITY NGAYON 29 NG
BUWAN NG NOBYEMBRE 1982.
TAGASIYASAT: Gng. Rosalinda Ramos, ikaw ay nasa ilalim ng
isang pagsisiyasat ukol sa paglabag sa ipinagbabawal na gamot. Bago
kita tanungin ay nais kong malaman mo ang iyong mga karapatan sa
ating bagong saligang batas at ito ay ang mga sumusunod:
1. Ikaw ay may karapatan na huwag sumagot sa aking mga
itatanong sa iyo sa pagsisiyasat na ito,
2. Ikaw ay may karapatan na kumuha ng isang abogado upang
makatulong sa iyo sa pagsisiyasat na ito at
3. Ano man ang iyong sasabihin sa pagsisiyasat na ito ay
maaaring gamitin laban or pabor sa iyo saan mang hukuman dito sa
ating bansa.
TANONG: Ngayon alam mo na ang iyong mga karapatan sa ating
bagong saligang batas ikaw ba ay kusang loob na magbibigay ng
isang salaysay na pawang katotohanan at pawang katotohanan lamang
sa pagsisiyasat na ito?;
SAGOT: Opo." (Exhibit G)
This Court finds that such recital of rights falls short of the
requirement on proper appraisal of constitutional rights. We quote the
ruling in People v. Nicandro (141 SCRA 289 [1986]):
"When the Constitution requires a person under investigation `to be
informed' of his right to remain silent and to counsel, it must be
presumed to contemplate the transmission of meaningful information
rather than just the ceremonial and perfunctory recitation of an
abstract constitutional principle. As a rule, therefore, it would not be
sufficient for a police officer just to repeat to the person under
investigation the provisions of Section 20, Article IV of the
Constitution. He is not only duty-bound to tell the person the rights to
which the latter is entitled; he must also explain their effects in
practical terms, e.g., what the person under interrogation may or may
not do, and in a language the subject fairly understands. In other
words, the right of a person under interrogation `to be informed'
implies a correlative obligation on the part of the police investigator
to explain, and contemplates an effective communication that results
in understanding what is conveyed. Short of this, there is a denial of
the right, as it cannot truly be said that the person has been informed'
of his rights. Now, since the right `to be informed' implies
comprehension, the degree of explanation required will necessarily
vary, depending upon the education, intelligence and other relevant
personal circumstances of the person under investigation. Suffice it to
say that a simpler and more lucid explanation is needed where the
subject is unlettered."
Although the right to counsel is a right that may be waived, such
waiver must be voluntary, knowing and intelligent (People v.
Caguioa, 95 SCRA 2 [1980]).
To insure that a waiver is voluntary and intelligent, the Constitution
now requires that for the right to counsel to be waived, the waiver
must be in writing and in the presence of the counsel of the accused.
(Art. III, Section 12(1), Constitution) There is no such written waiver
in this case, much less was any waiver made in the presence of
counsel.
Fiscal Cabali, who administered the oath on the appellant's extra
judicial confession, and the police officers who took it down should
know by now that the procedure they followed results in incompetent
evidence. If the purpose is to get proof which can stand up in court,
they should follow the requirements of the Constitution.
Second, the alleged poseur-buyer, who also happens to be the alleged
informant, was never presented during trial. The presence and identity
of the poseur-buyer is vital to the case as his very existence is being
disputed by the accused-appellant who denies having sold marijuana
cigarettes to anyone. (People v. Ale, 145 SCRA 50 [1986]) Without
the testimony of the poseur-buyer, there is no convincing evidence
pointing to the accused as having sold marijuana. (People v.
Fernando, 145 SCRA 151 [1986]) In this case, the alleged informant
and the alleged poseur-buyer are one and the same person. We realize
that narcotics agents often have to keep their identities and those of
their informants confidential. For a prosecution involving the sale or
distribution of drugs to prosper in this particular case, however, the
informant has to testify.
The testimony of the poseur-buyer is rendered compelling by the fact
that the police officers were situated three blocks away from where
the alleged sale took place. They did not see the actual sale of
marijuana. Thus, Sgt. Sudiacal testified:
"Q. Before you arrested the accused, where did you position
yourselves?
A. We were at the Black and White Open Bar, sir.
Q. How far is that from the place where the accused was selling
cigarettes?
A. It is about three blocks, sir.
Q. You did not actually see the accused selling marijuana?
A. Yes, Sir . . ." (TSN, May 4, 1984, p. 8).
xxx xxx xxx
Q. Did you actually see the buying of the marijuana?
A. No, Ma'am.
Q. So, you did not see anything?
A. Yes, Ma'am.
Q. None of the three of you, Sgt. Sudiacal and Captain Castillo
witnessed the actual buy of the three sticks of marijuana?
A. Yes, Ma'am.
Q. Your basis of the alleged buy by the informant is his word that
he bought it from the suspect?
A. Yes, Ma'am." (TSN, April 9, 1986, pp. 125-126).
It is a known fact that drug dealings are hard to prove in court.
Precisely because of this difficulty, buy-bust operations have to be
conducted and every effort is taken such that the suspected pusher is
caught in flagrante selling prohibited drugs. For the culprit to be
convicted, the element of sale must be unequivocally established. In
this case, the alleged poseur-buyer who could have categorically
asserted that she bought marijuana from the appellant was not
presented by the prosecution. And Sgts. Ahamad and Sudiacal could
not attest to the fact of sale because they were three blocks away. The
sale of marijuana was therefore not positively proven.
Despite the absence of the testimony of the poseur-buyer, the court a
quo, however, relied on circumstantial evidence in concluding that
there was indeed a sale:
"In this case, the accused admitted that she was the only one selling
cigarettes at the corner of 3rd Street; the informant told the
NARCOM Officers that their `suspect' is a cigarette vendor
positioned thereat. The two (2) `test buy' yielded positive results as
the informant was able to buy four (4) handrolled sticks of marijuana
cigarettes from her, two at a time. The accused did not ask the reason
why when she was invited for investigation. This act negates
innocence and against human nature, especially after having
introduced themselves as NARCOM agents. In her control and
possession, twenty (20) sticks of similar handrolled marijuana
cigarettes were recovered from a trash can under her small table. Her
counsel on cross-examination asked Sgt. Tahil Ahamad the following
(TSN, April 9, 1986, p. 14) 'and in order to search that trash can under
the table, you have to ask or request 'Mama Rose' to get out of the
way in order to check the contents of the waste can?' The question
was answered, `We asked permission from her to stand up so we can
look into the contents of her small table, sir.'
"When investigated, the accused gave her statement which in fact was
a confession where she admitted having sold marijuana cigarettes.
She was taken before the Fiscal to subscribe the same. While she
alleged that she told the Fiscal (Fiscal Cabali) that the contents of her
statement are not true, why then did she sign it before the said Fiscal?
Why did she not insist that her denial be registered on the document
so as to repudiate it? Fear could not be a valid reason as she has
already boldly spoken out when she said the contents were not true.
The 'marked money' were recovered from her possession. She did not
deny that the four (4) five peso bills were taken from her wallet. She
was addressed as 'Mama Rose' not once but twice by the
apprehending officers. Her counsel during the cross-examination of
the prosecution witnesses and direct examination of the accused
called and addressed her as 'Mama Rose', and the informant identified
her not only as Rosalinda Ramos but also as 'Mama Rose'." (At pp.
73-74, Rollo)
This Court finds that the cited circumstantial evidence do not
establish beyond reasonable doubt that there was a sale of marijuana.
Considering the severe penalty of reclusion perpetua imposed on
those who sell or distribute drugs, we have to insure that evidence of
culpability must pass the test of the strictest scrutiny. We also have to
take into account the oft-repeated defense in violations of the
Dangerous Drugs Act that the drugs or the marked money were
planted by police officers. More direct and positive evidence is
essential.
The failure of the appellant to ask why she was being invited for
investigation by the NARCOM officers does not ipso facto indicate
her guilt. Fear could have prevented her from propounding inquiries
to the officers.
Nor does the fact that marked money was found in her possession
show incontrovertibly that she is the seller of marijuana. The
appellant is a cigarette vendor. By the nature of her job, there is a
constant exchange of goods for money. It may be far-fetched but it is
possible that she came into possession of the marked money because
she accepted it in the course of legitimate sales of cigarettes. Again, it
is only the poseur-buyer who could testify that she gave marked
money to the appellant in exchange for marijuana sticks.
The fact that the appellant signed the extra judicial confession despite
her insistence that its contents were not true does not necessarily
signify guilt. As earlier stated the extra judicial confession cannot be
accepted as evidence. It is useless for purposes of proof of sale of
prohibited drugs.
Lastly, this Court fails to see how, from her being addressed as Mama
Rose by the witnesses and appellant's counsel and the alleged
informant poseur-buyer, the sale of marijuana can be inferred.
Rule 133, Section 5 of the Rules of Court provides:
Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inference are derived are proven;
and
(c) The combination of all the circumstances is such as to produce
a conviction beyond a reasonable doubt.
For not successfully meeting the above requirements, the enumerated
circumstantial evidence cannot be a ground for conviction for the sale
of marijuana.
With respect to Criminal Case No. 5990, however, this Court upholds
the lower court's finding that the appellant is guilty of possession of
marijuana.
Rule 113 Section 6 (b) of the 1985 Rules of Criminal Procedure
provides:
SEC. 6. Arrest without warrant. — when lawful. — A peace
officer or a private person may, without a warrant, arrest a person:
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested
has committed it.
Meanwhile, Section 12 of Rule 126 states:
SEC. 12. Search incident to a lawful arrest. — A person
lawfully arrested may be searched for dangerous weapons or anything
which may be used as proof of the commission of an offense, without
a search warrant.
Sgts. Sudiacal and Ahamad testified that there was an informant who
apprised them of the presence of a drug pusher at the corner of 3rd
Street and Rizal Avenue, Olongapo City. Acting on such information
and in their presence, their superior, Captain Castillo, gave the
informant marked money to buy marijuana. The informant, now
turned poseur-buyer, returned with two sticks of marijuana. Captain
Castillo again gave said informant marked money to purchase
marijuana. The informant-poseur buyer thereafter returned with
another two sticks of marijuana. The police officers then proceeded to
the corner of 3rd Street and Rizal Avenue and effected the arrest of
appellant.
From the above facts, it may be concluded that the arresting police
officers had personal knowledge of facts implicating the appellant
with the sale of marijuana to the informant-poseur buyer. We hold
therefore that the arrest was legal and the consequent search which
yielded 20 sticks of marijuana was lawful for being incident to a valid
arrest.
The fact that the prosecution failed to prove the sale of marijuana
beyond reasonable doubt does not undermine the legality of the
appellant's arrest.
It is not necessary that the crime should have been established as a
fact in order to regard the detention as legal. The legality of detention
does not depend upon the actual commission of the crime, but upon
the nature of the deed when such characterization may reasonably be
inferred by the officer or functionary to whom the law at the moment
leaves the decision for the urgent purpose of suspending the liberty of
the citizen (People v. Molleda, 86 SCRA 667 [1978]).
The obligation to make an arrest by reason of a crime does not
presuppose as a necessary requisite for the fulfillment thereof the
indubitable existence of a crime (People v. Ancheta, 68 Phil. 415
[1939]).
The appellant argues that if the twenty sticks of marijuana were in a
trash can and it was not shown by clear and convincing evidence that
the said trash can belongs to the appellant, then she cannot be
considered as being in possession of marijuana.
In disposing of this contention, this Court quotes with approval the
following arguments of the Solicitor-General:
"Appellant's defense falls against the categorical testimony of the
NARCOM agents that the trash can was found under the table where
her legitimate wares were being sold. This fact was not denied by
appellant. Therefore, she was the only person who had access to the
trash can. The same was under her immediate physical control. She
had complete charge of the contents of the trash can under the table to
the exclusion of all other persons. In law, actual possession exists
when the thing is in the immediate occupancy and control of the
party. But this is not to say that the law requires actual possession. In
criminal law, possession necessary for conviction of the offense of
possession of controlled substances with intent to distribute may be
constructive as well as actual (Black's Law Dictionary Abridge, 5th
Edition, pp. 606-607). It is only necessary that the defendant must
have dominion and control over the contraband. These requirements
are present in the situation described, where the prohibited drugs were
found inside the trash can placed under the stall owned by appellant.
In fact, the NARCOM agents who conducted the search testified that
they had to ask appellant to stand so that they could look inside the
trash can under the papag' of the appellant. Hence the trash can was
positioned in such a way that it was difficult for another person to use
the trash can. The trash can was obviously not for use by her
customers.
"Appellant's arguments are inherently weak and improbable and
cannot stand against the clear evidence pointing to her actual
possession of the prohibited drug. The raw facts testified to by the
NARCOM agents were corroborated by appellant and their
conclusion — that she had possession of the marijuana sticks found in
the trash can — is consistent with law and reason.
"Appellant further contends that it is hard to believe that she would
keep the marijuana sticks in a trash can since it is a precious
commodity to pushers and users thereof.
"The above argument is misleading. The value of the marijuana is not
the primary consideration in the concealment of the contraband. The
primary consideration is escaping detection and arrest. Obviously, the
modus operandi was to dissimulate the act of selling and possession
of marijuana sticks which carries the capital penalty (sic). Appellant
could not display it among her regular wares of cigarettes and fruits
for sale. She had to hide them from public view, but near enough to
have access to them. The trash can, to her thinking, would be the last
place to look for the precious commodity. Unfortunately, she was
found out. The argument that it was an `unlikely place' to hide the
precious contraband is in fact the very consideration in choosing it as
the hiding place for the contraband." (At pp. 97-100, Rollo)
We rule, therefore, that the twenty sticks of marijuana are admissible
in evidence and the trial court's finding that the appellant is guilty of
possession is correct.
The lower court, however, erred in imposing a fixed penalty of six (6)
years and one (1) day for possession of marijuana. Section 1 of the
Indeterminate Sentence Law (Republic Act 4103 as amended)
provides that in imposing a prison sentence for an offense punished
by a law other than the Revised Penal Code, the court shall sentence
the accused to an indeterminate sentence, the maximum term of
which shall not exceed the maximum fixed by said law and the
minimum which shall not be less than the minimum term prescribed
by the same. The penalty prescribed by the Dangerous Drugs Act for
possession of marijuana is imprisonment ranging from six (6) years
and one (1) day to twelve (12) years and a fine ranging from P6,000
to P12,000.
WHEREFORE, the appealed decision in Criminal Case No. 5990 is
AFFIRMED but MODIFIED. The appellant is sentenced to suffer the
penalty of imprisonment ranging from six (6) years and one (1) day to
nine (9) years and to pay a fine of six thousand (P6,000) pesos. The
appealed decision in Criminal Case No. 5991 is REVERSED and
SET ASIDE and the appellant is acquitted on grounds of reasonable
doubt.
SO ORDERED.
Fernan, C .J ., Feliciano and Bidin, JJ ., concur.
Cortes, J ., took no part.
THIRD DIVISION
[G.R. No. 90640. March 29, 1994.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
BONIFACIO BARROS, accused-appellant.
D E C I S I O N
FELICIANO, J p:
Bonifacio Barros was charged with violating Section 4 of R.A. No.
6425, as amended (known as the Dangerous Drugs Act of 1972), in
an information which read as follows:
"That on or about September 6, 1987, from Chackchakan, Bontoc,
Mountain Province, to Nacagang, Sabangan, Mountain Province, and
within the jurisdiction of this Honorable Court, the above-named
accused while being a passenger in a Dangwa Bus with Plate No.
ABZ 242, destined for Baguio City, without lawful authority did then
and there willfully, unlawfully and feloniously carry with him as part
of his baggage and transport about four (4) kilos of dried marijuana
which the accused intended for distribution and sale at Baguio City,
knowing fully well that said marijuana is a prohibited drug or [a]
source of [a] prohibited drug. LLphil
Contrary to law." 1
After trial, the trial court convicted Bonifacio Barros of violation of
Section 4 of R.A. No. 6425 as amended and sentenced him to suffer
the penalty of reclusion perpetua 2 and to pay a fine of P20,000.00.
Barros now appeals from the judgment of conviction and essentially
asks this Court to determine —
"Whether the [trial] court deprived [the] accused of his right to due
process by:
(1) ignoring manifest absence of the mandatory warrant in the
arrest and search of the accused;
(2) admitting confessions extracted from the accused after two
hours of interrogation conducted by four (4) soldiers one after the
other under intimidating circumstances; and
(3) misappreciation of facts." 3
The relevant facts as found by the trial court and as set forth in the
court's decision are as follows:
"That on September 6, 1987, M/Sgt. Francis Yag-as and S/Sgt. James
Ayan, both members of the P.C. Mountain Province Command, rode
the Dangwa Bus bearing Plate No. ABZ-242 bound for Sabangan,
Mountain Province. Upon reaching Chackchakan, Bontoc, Mountain
Province, the bus stopped and both M/Sgt. Yag-as and S/Sgt. Ayan,
who were seated at the back, saw accused carrying a carton, board the
bus and seated himself on seat No. 18 after putting the carton under
his seat. Thereafter, the bus continued and upon reaching Sabangan,
M/Sgt. Yag-as and S/Sgt. Ayan before they alighted, it being their
station, called C2C [Fernando] Bongyao to inspect the carton under
seat No. 18. After C2C Bongyao inspected the carton, he found out
that it contained marijuana and he asked the passengers [who] the
owner of the carton [was] but nobody answered. Thereafter, C2C
Bongyao alighted with the carton and S/Sgt. Ayan and C2C Bongyao
invited the herein accused to the detachment for questioning as
accused was the suspected owner of the carton containing marijuana.
As both P.C. officers Yag-as and Ayan saw accused, Bonifacio
Barros carrying that same carton when he boarded the bus at
Chackchakan. That upon entering the detachment the carton was
opened in the presence of accused and accused Bonifacio Barros was
asked if he owned the carton of marijuana and accused denied [this].
That when accused denied ownership of the carton of marijuana, the
P.C. officers called for the bus conductor who pinpointed to
Bonifacio Barros as the owner of the carton of marijuana. That during
the oral investigation of accused, he finally admitted ownership of the
carton (Exhibit 'B') containing [four] 4 paper-wrapped packages of
dried marijuana. (Exhibits 'B-1, 'B-2,' 'B-3' and 'B-4'). LexLib
. . . [A]fter he was orally investigated, [the accused] was brought to
the Abatan General Hospital, Bauko, Mountain Province, for physical
examination and a Medico Legal Certificate was issued (Exhibits 'F'
and 'F-1'), indicating that accused suffered no physical injuries and
that accused was probably under the influence of marijuana. That
Dra. Danna Aleta inquired from accused Bonifacio Barros if he
smoked marijuana and accused admitted having smoked marijuana.
That after accused was medically examined, he was escorted by three
members of the P.C. to the P.C. detachment at Tadian, Mountain
Province, where the carton of marijuana (Exhibit 'B') was also
brought. That at Tadian, a seizure receipt was made together with a
certification (Exhibit 'C') pointing out to the fact that approximately 4
kilos of dried marijuana leaves were from accused Bonifacio Barros
and which certification was signed by the accused (Exhibit 'C-1') and
subscribed before Judge Romualdo P. Awisan (Exhibit 'C-2'). That in
connection with the confiscation of the marijuana subject of the
instant case and the apprehension of accused Bonifacio Barros, the
P.C. officers who figured in this case namely M/Sgt. Yag-as and
S/Sgt. Ayan and C2C Bongyao have correspondingly executed their
sworn statements (Exhibits 'A', 'A-1, 'A-2', 'D', 'D-1' and 'D-2').
. . . [S]amples of the marijuana were taken from each of the four
packages marked Exhibits 'B-1', 'B-2', 'B-3', and 'B-4' and placed in
four separate envelopes, following an order of the court to that effect
and were hand-carried by Police Officer Jack Masilian to Camp
Dangwa, La Trinidad, Benguet for laboratory test. That Capt. Carlos
Figueroa, the Forensic Expert conducted two kinds of test on the four
samples sent by the court and found them to be positive of marijuana
as per his report No. D-011-88. (Exhibits 'I' and 'I-1'). 4
The defense of the accused on the facts consisted of a simple denial
of the ownership or possession of the carton box containing the four
(4) kilos of marijuana. The trial court summarized the story of the
accused in the following manner:
"That accused Bonifacio Barros since 1984 was employed at the
Honeymoon Disco Pad, Baguio City. That on September 5, 1987,
accused was sent by his Manager, Engineer Arsenio Cuanguey to
Bontoc, Mountain Province, to get their records from one Billy
Cuanguey at Chackchakan, Bontoc, Mountain Province. That upon
arriving at Chackchakan, Bontoc, Mountain Province, accused looked
for the residence of Billy Cuanguey and he was pointed to a house
where someone was tending a store. That accused asked the man if
Billy Cuanguey was there and the man answered that he did not know
where Billy went. So accused asked the man if Billy left [in] his room
the tapes and records and the man said he did not know. Thereafter,
accused asked the man to stay over night in that house where Billy
was staying as it was the instruction of his manager. That the
following day, September 6, 1987, after taking breakfast, accused,
was going back to Baguio. On that morning of September 6, 1987,
accused Bonifacio Barros boarded the Dangwa Bus at Chackchakan,
Bontoc, Mountain Province bound for Baguio City. That when the
Dangwa Bus reached the P.C. Checkpoint, soldiers went inside the
bus and checked the baggages. That a soldier fished out a carton
under the seat of [the] accused and shouted who owns the carton but
nobody answered. Thereafter, the soldier went down with the carton
and moments later returned to the bus and called accused Bonifacio
Barros to alight from the bus. That Mr. Barros was surprised why he
was ordered to alight and accused took his baggage which consisted
of a pasiking and went down the bus. That accused was led by the
soldiers to a house where his pasiking was taken and his clothes
removed and his wallet taken. Accused was made to accept
ownership of the carton of marijuana but he refused. cdrep
. . . [A]t 11:00 o'clock that same day, September 6, 1987, three
soldiers escorted accused to the hospital and from the hospital, they
proceeded to the Municipality of Tadian, Mountain Province. That
upon reaching Tadian, accused was brought to the P.C. Camp and
there he saw someone typing. Later, the soldiers allegedly presented
to accused some papers which he was asked to sign but accused
refused. That accused was threatened and if he refused to sign the
papers that something will happen to him. That moments later,
accused was threatened [by] a soldier [who] pointed a gun to him and
told him to sign the paper and because of fear, he had to sign the
document marked Exhibit 'C.' Thereafter, the soldiers allegedly
threatened again accused and asked him to sign his name on the
inside part of the cover of the carton of marijuana. Exhibit 'X' for the
court and Exhibit 'B-5' for the prosecution. That after staying at
Tadian for one night, accused was brought back to Sabangan and later
transferred to the Bontoc Provincial Jail." 5
Turning to the legal defenses of the accused, we consider first his
allegation that the police authorities had impermissibly extracted
confessions from him after two (2) hours of interrogation, "under
intimidating circumstances," by four (4) soldiers one after the other.
The accused complains that he was not informed of his rights to
remain silent and to counsel, that he had not waived his rights as an
accused person, and that he had signed a confession involuntarily and
without the assistance of counsel. He essentially contends that the
confession is inadmissible as evidence against him.
We find, however, that it is not necessary to pass upon the above
contention of appellant Barros. For the trial court in reaching its
judgment of conviction had not taken into consideration the
statements which had been obtained from the appellant during the
interrogation conducted by the police officers. The trial court, so far
as can be determined from its decision, totally disregarded Exhibits
"C", "E" and "B-5," the alleged uncounselled confessions. The trial
court made very clear the bases of its conclusion that the accused was
guilty beyond reasonable doubt of the offense charged; those bases
did not include the alleged confessions:
"First — M/Sgt. Francis Yag-as and S/Sgt. James Ayan testified that
they saw the accused carrying the carton (Exhibit 'B') when he
boarded the bus at Chackchakan, Bontoc, Mountain Province. That
the bus conductor pointed to accused at the checkpoint of Sabangan,
Mountain Province. That accused is the owner of the carton (Exhibit
'B'). That the carton (Exhibit 'B') which contained four packages of
dried marijuana leaves (Exhibits 'B-1', 'B-2', 'B-3' and 'B-4') was
fished out from under the seat of the accused which fact was admitted
by the accused himself.
Second — That per testimony of Dra. Danna Aleta, she examined
accused Bonifacio Barros and that he suffered no physical injuries
that would show that the accused was in anyway maltreated by the
police authorities, and this fact was also admitted by accused to the
effect that he was never harmed by the police nor the soldiers. Dra.
Aleta also found that the accused was under the influence of drug[s]
and that the accused admitted [to] her that he, accused, smoked
marijuana. This is clear evidence that accused is not only a pusher of
marijuana but also a user of said prohibited drugs. (See Exhibits 'F'
and 'F-1' and TSN — Page 24 — Orpecio).
Third — The samples taken from Exhibits 'B-1', 'B-2', 'B-3' and 'B-4'
sent by the court for laboratory test at Camp Dangwa, La Trinidad,
Benguet were all positive of marijuana per Report No. D-011-88
(Exhibits 'I' and 'I-1') of Captain Carlos Figueroa, forensical expert.
Lastly, accused's testimony in his own behalf does not impress the
court at it lacks the ring of truth. Besides, it is devoid of any
corroboration. Our Supreme Court in this respect said:
'The weak and uncorroborated denial of the accused cannot prevail
over the clear, positive and straightforward testimony of prosecution
witnesses [sic].' (People vs. Acelajao, 148 SCRA 142).'" 6
We turn, therefore, to the second legal defense asserted by appellant
Barros — i.e., that his constitutional right against unreasonable
searches and seizures had been violated by the police authorities. The
relevant constitutional provisions are found in Sections 2 and 3 [2],
Article III of the 1987 Constitution which read as follows:
"Sec. 2. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witness as he
may produce, and particularly describing the place to be searched and
the persons or things to be seized.
Sec. 3. . . .
(2) Any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any proceeding."
The general rule is that a search and seizure must be carried out
through or with a judicial warrant; otherwise such search and seizure
becomes "unreasonable" within the meaning of the above quoted
constitutional provision. 7 The evidence secured thereby — i.e., the
"fruits" of the search and seizure — will be inadmissible in evidence
"for any purpose in any proceeding." 8
The requirement that a judicial warrant must be obtained prior to the
carrying out of a search and seizure is, however, not absolute. There
are certain exceptions recognized in our law, one of which relates to
the search of moving vehicles. 9 Peace officers may lawfully conduct
searches of moving vehicles — automobiles, trucks, etc. — without
need of a warrant, it not being practicable to secure a judicial warrant
before searching a vehicle, since such vehicle can be quickly moved
out of the locality or jurisdiction in which the warrant may be sought.
10 In carrying out warrantless searches of moving vehicles, however,
peace officers are limited to routine checks, that is, the vehicles are
neither really searched nor their occupants subjected to physical or
body searches, the examination of the vehicles being limited to visual
inspection. In Valmonte vs. De Villa, 11 the Court stated:
"[N]ot all searches and seizures are prohibited. Those which are
reasonable are not forbidden. A reasonable search is not to be
determined by any fixed formula but is to be resolved according to
the facts of each case.
Where, for example, the officer merely draws aside the curtain of a
vacant vehicle which is parked on the public fair grounds, or simply
looks into a vehicle, or flashes a light therein, these do not constitute
unreasonable search." (Citations omitted) LLpr
When, however, a vehicle is stopped and subjected to an extensive
search, such a warrantless search would be constitutionally
permissible only if the officers conducting the search have reasonable
or probable cause to believe, before the search, that either the
motorist is a law-offender or the contents or cargo of the vehicle are
or have been instruments or the subject matter or the proceeds of
some criminal offense. 12
This Court has in the past found probable cause to conduct without a
judicial warrant an extensive search of moving vehicles in situations
where (1) there had emanated from a package the distinctive smell of
marijuana; 13 (2) agents of the Narcotics Command ("Narcom") of
the Philippine National Police ("PNP") had received a confidential
report from informers that a sizeable volume of marijuana would be
transported along the route where the search was conducted; 14 (3)
Narcom agents were informed or "tipped off" by an undercover "deep
penetration" agent that prohibited drugs would be brought into the
country on a particular airline flight on a given date; 15 (4) Narcom
agents had received information that a Caucasian coming from
Sagada, Mountain Province, had in his possession prohibited drugs
and when the Narcom agents confronted the accused Caucasian,
because of a conspicuous bulge in his waistline, he failed to present
his passport and other identification papers when requested to do so;
16 and (5) Narcom agents had received confidential information that
a woman having the same physical appearance as that of the accused
would be transporting marijuana. 17
In the case at bar, however, we have been unable to find in the record
of this case any circumstance which constituted or could have
reasonably constituted probable cause for the peace officers to search
the carton box allegedly owned by appellant Barros. The carrying of
such a box by appellant onto a passenger bus could not, by itself ,
have convinced M/Sgt. Francis Yag-as and S/Sgt. James Ayan either
that the appellant was a law violator or the contents of the box were
instruments or the subject matter or proceeds of some criminal
offense. The carrying of carton boxes is a common practice among
our people, especially those coming from the rural areas since such
boxes constitute the most economical kind of luggage possible. The
peace officers here involved had not received any information or "tip-
off" from an informer; no such a "tip-off" was alleged by the police
officers before or during the trial. The police officers also did not
contend that they had detected the odor of dried marijuana, or
appellant Barros had acted suspiciously in the course of boarding the
bus and taking a seat during the trip to Sabangan, nor in the course of
being asked whether he owned the carton box later ascertained to
contain four (4) kilos of marijuana. The testimony of the law
enforcement officers who had apprehended the accused (M/Sgt.
Francis Yag-as and S/Sgt. James Ayan), and who had searched the
box in his possession, (C2C Fernando Bongyao), simply did not
suggest or indicate the presence of any such probable cause.
M/Sgt. Francis Yag-as testified as follows:
"Direct Examination by Fiscal Moises Ayochok:
xxx xxx xxx
Q: On September 6, 1987, do you recall if you reported for duty?
A: Yes, sir.
Q: And where did you go on the morning of September 6, 1987?
A: I went to Sabangan, sir.
Q: What transportation did you use?
A: Dangwa Bus with Plate No. ABZ-242.
Q: Where did you board the Dangwa Bus?
A: At the Dangwa Terminal at Bontoc.
Q: When you said you boarded the bus with Plate No. ABZ-242
which started for Baguio City from Bontoc, Mountain Province, and
while it stopped at Chackchakan, Bontoc, Mountain Province, was
there anything that happened?
xxx xxx xxx
A: When the bus stopped at Sitio Chackchakan, we saw a person
carrying a baggage or carton and boarded the bus then took his seat,
seat No. 18.
Q: What was he carrying that time Mr. witness? cdrep
A: A carton.
Q: And where did he place that carton which he was carrying?
A: In front of seat No. 18 where he sat.
Q: You mean inside the bus?
A: Yes.
Q: And after this person boarded the bus at sitio Chackchakan
and holding a carton and placed it in front of seat No. 18, what
happened to the bus afterwards?
A: It proceeded to Sabangan.
Q: And at Sabangan, Mountain Province, what happened, if any?
A: The bus stopped for the routinary checkpoint and inspection.
Q: When they [were at] the routinary checkpoint, what
happened?
Atty. Sokoken:
He did not say routinary checkpoint. He said routinary
inspection.
Fiscal Ayochok:
We substitute the words inspection with checkpoint to satisfy
the objection of counsel.
Q: What happened when you stopped for the routinary
inspection?
A: We called C2C Bongyao a member of the detachment to
inspect the baggage of the suspect and when C2C . . .
Atty. Sokoken:
We request that [the] witness answers the question that he
testifies [to] not in the narrative way.
Fiscal Ayochok:
He is answering the question.
Court:
Let the witness finish.
A: When Bongyao inspected the baggage of the suspect and he
found out that it contained MJ.
Q: What do you mean MJ?
A: Marijuana.
xxx xxx xxx" 18
For his part, S/Sgt. James Ayan testified as follows:
"Direct Examination:
xxx xxx xxx
Q: And in the morning of September 6, 1987, do you recall
where you were particularly in the afternoon?
A: In the morning of September 6, 1987, we rode on a Dangwa
bus [with Plate] No. ABZ-242 going to Sabangan.
Q: You said we. Who was your companion that time?
A: Master Sgt. Yag-as, sir.
Q: And when this bus reached Chackchakan, Bontoc, Mountain
Province, what did you see?
A: We saw a civilian board the bus we were riding carrying a
carton.
Q: And where did this civilian who boarded the bus which you
were riding on place that carton? LLpr
A: He placed the carton under the seat of No. 18.
Q: Inside the bus, Mr. witness?
A: Inside the bus, sir.
Q: And what about the passenger who boarded the bus carrying
the carton baggage, where did he go?
A: He sat facing the seat No. 18.
Q: Between seat No. 18 and the seat seated by the civilian who
brought the carton, where was the carton exactly located?
A: As far as I know, sir, it was located just beneath seat No. 18.
Q: When this bus which you rode on which the passenger
carrying the carton luggage you saw reached Sabangan what
happened there?
A: When the bus reached Sabangan that we were riding, it was
stopped for routinary inspection.
Q: What happened next?
A: We called C2C Bongyao to inspect the baggage that we have
just seen at Chackchakan.
Q: Did he inspect the baggage?
A: Yes, sir.
Q: And what was the contents of that baggage if there was any?
A: It turned out that the contents of the baggage was MJ sir.
Q: You mean marijuana?
A: Yes, sir.
xxx xxx xxx
Cross Examination:
xxx xxx xxx
Q: You stated that on September 6, 1987, a Dangwa bus stopped
at Sabangan, Mt. Province for purposes of military check-up, is that
correct?
A: Routinary inspection, sir.
Q: But it was not you who entered the Dangwa bus for routinary
check-up?
A: We were there riding in the bus, sir, and we called C2C
Bongyao to come.
Q: So your purpose in riding inside the Dangwa bus was actually
to see that person carrying this carton which is marked Exhibit 'B'?
A: No, sir, because I am a detachment commander at Sabangan
and that is why I called one of my men, sir.
Q: So that you have full knowledge that from Chackchakan,
Bontoc, going to Sabangan, there is already marijuana being carried
inside that bus?
A: That is only our suspect [should be suspicion], sir.
Q: Would you please tell this Honorable Court why you have not
inspected it when you arrived at Alab? Why have you waited to reach
Sabangan to inspect it? llcd
A: Because it is the checkpoint, sir, at Nacagang, Sabangan.
Q: Are you now admitting that you do not have authority to
inspect the baggage here in Bontoc?
A: We just wanted it checked in Sabangan, sir.
Q: Could you give us a very special reason why you have to wait
in Sabangan?
A: Because we are stationed in Sabangan and that is the
checkpoint.
Fiscal Ayochok:
Why argue with the witness? It is up for them to check it at
the proper checkpoint.
Court:
Sustained.
xxx xxx xxx" 19
The testimony of C2C Fernando Bongyao is much briefer, but equally
uninformative:
"Direct Examination:
Q: On September 6, 1987, at around 9:30 a.m., do you recall
having reported for duty at Nacagang, Sabangan, Mountain Province?
A: Yes, sir.
Q: And while you were on duty at Nacagang, Sabangan, was
there anything unusual that happened that time?
A: Yes, sir.
Q: What was that Mr. witness?
A: When we were on the checkpoint, the bus stopped bearing
Plate No. ABZ-242.
Q: When the bus stopped, what did you do?
A: While on my way to check the bus, Master Sergeant Yag-as
and Ayan called for me, sir, and they told me that a carton was placed
under seat No. 18, sir.
Q: And when you were told to inspect that carton under seat No.
18, did you inspect that carton?
A: I inspected it, sir. cdrep
Q: You said you inspected that carton, what did you do in
inspecting that carton?
A: I inserted my hand inside and when I removed my hand, it
was a stuff of marijuana, sir.
xxx xxx xxx 20
So far as the record itself is concerned, therefore, it would appear that
there existed no circumstance which might reasonably have excited
the suspicion of the two (2) police officers riding in the same bus as
appellant Barros. They asked the police officers at the checkpoint at
Sabangan to inspect the box allegedly carried by appellant Barros
apparently on a mere guess that appellant Barros might be carrying
something in the nature of contraband goods. There was, in other
words, nothing to show that appellant Barros was then in the process
of "actually committing" or "attempting to commit" a crime. 21 There
was, moreover, nothing on the record that could have reasonably led
the two (2) police officers to believe that "an offense [had] in fact just
been committed" when appellant Barros boarded the bus at
Chackchakan or when he was asked whether he owned the box here
involved at the checkpoint in Sabangan. The two (2) police officers,
according to the record, had no "personable knowledge of facts
indicating that the person to be arrested (appellant Barros) had
committed it." There was, in brief, no basis for a valid warrantless
arrest. Accordingly, the search and seizure of the carton box was
equally non-permissible and invalid. 22 The "fruits" of the invalid
search and seizure — i.e., the four (4) kilos of marijuana — should
therefore not have been admitted in evidence against appellant
Barros.
The Solicitor General, however, contends that appellant Barros had
waived any irregularities which may have attended his arrest.
Presumably, the Solicitor General also argues that appellant Barros
has waived the non-admissibility of the carton (Exhibit "B") which
contained four (4) packages of dried marijuana leaves (Exhibits "B-
1", "B-2", "B-3" and "B-4". The Solicitor General said:
". . . [E]ven assuming in gratia argumenti that irregularities attended
the arrest of appellant, still the same cannot be questioned at this late
stage. Well-settled is the doctrine laid down in the case of Callanta vs.
Villanueva (77 SCRA 377), and later reiterated in the more recent
case of Bagcal vs. Villaraza (120 SCRA 525), that 'posting of [a] bail
bond constitutes waiver of any irregularity attending the arrest of a
person and estops him from questioning its validity.' Here, appellant
had in fact posted the required bail to obtain his provisional liberty,
albeit his application was subsequently denied (see TSN, Feb. 10,
1988, p. 65). Consistent with jurisprudence, therefore, he should be
deemed to have waived any irregularity attending his arrest, if any
there be, and cannot now be heard to assail the same." 23
It might be supposed that the non-admissibility of evidence secured
through an invalid warrantless arrest or a warrantless search and
seizure may be waived by an accused person. The a priori argument is
that the invalidity of an unjustified warrantless arrest, or an arrest
effected with a defective warrant of arrest may be waived by applying
for and posting of bail for provisional liberty, so as to estop as
accused from questioning the legality or constitutionality of his
detention or the failure to accord him a preliminary investigation. We
do not believe, however, that waiver of the latter (by, e.g., applying
for and posting of bail) necessarily constitutes, or carries with it,
waiver of the former — an argument that the Solicitor General
appears to be making impliedly. Waiver of the non-admissibility of
the "fruits" of an invalid warrantless arrest and of a warrantless search
and seizure is not casually to be presumed, if the constitutional right
against unlawful searches and seizures is to retain its vitality for the
protection of our people. In the case at bar, defense counsel had
expressly objected on constitutional grounds to the admission of the
carton box and the four (4) kilos of marijuana when these were
formally offered in evidence by the prosecution. 24 We consider that
appellant's objection to the admission of such evidence was made
clearly and seasonably and that, under the circumstances, no intent to
waive his rights under the premises can be reasonably inferred from
his conduct before or during the trial. LexLib
In the dissenting opinion, my learned brother Melo, J. takes the view
that appellant Barros had waived his rights by his "stoic deportment"
consisting of failure to object to the search by the police authorities
immediately after the opening of the carton box:
". . . In point of fact, when the police authorities inspected the carton
of marijuana and asked accused-appellant who owned the box,
accused-appellant denied ownership of the box or carton and failed to
even mutter the least bit of protest (p. 3, Decision). His demeanor
should therefore be construed as implicit acquiescence to the search
inasmuch as the objection thereto is vulnerable to express or implied
waiver (People vs. Kaqui Malasuqui (63 Phil. 221 [1936]); 1 Bernas,
Constitution of the Republic of the Philippines, First ed., 1987, p.
108). . . ." 25
It is submitted, with respect, that Kaqui Malasuqui is not applicable to
the case at bar; rather it is People vs. Burgos, 26 promulgated fifty
(50) years after Kaqui Malasuqui, that is applicable. In Burgos, this
Court ruled that the accused is not to be presumed to have waived the
unlawful search conducted on the occasion of his warrantless arrest
"simply because he failed to object" —
". . . To constitute a waiver, it must appear first that the right exists;
secondly, that the person involved had knowledge, actual or
constructive, of the existence of such a right; and lastly, that said
person had an actual intention to relinquish the right (Pasion Vda. de
Garcia vs. Locsin, 65 Phil. 689). The fact that the accused failed to
object to the entry into his house does not amount to a permission to
make a search therein (Magoncia vs. Palacio, 80 Phil. 770). As
pointed out by Justice Laurel in the case of Pasion Vda. de Garcia vs.
Locsin (supra):
xxx xxx xxx
. . . As the constitutional guaranty is not dependent upon any
affirmative act of the citizen, the courts do not place the citizen in the
position of either contesting an officer's authority by force, or waiving
his constitutional rights; but instead they hold that a peaceful
submission to a search or seizure is not a consent or an invitation
thereto, but is merely a demonstration of regard for the supremacy of
the law.' (Citation omitted).
We apply the rule that: 'courts indulge every reasonable presumption
against waiver of fundamental constitutional rights and that we do not
presume acquiescence in the loss of fundamental rights.' (Johnson vs.
Zerbts, 304 U.S. 458)." 27 (Emphasis supplied)
Kaqui Malasuqui is not applicable to the instant case, because there
the Court explicitly found that there was probable cause for the
warrantless arrest of the accused and therefore, the warrantless search
effected immediately thereafter was equally lawful. In Kaqui
Malasuqui, a Chinese merchant was found lying on the ground with
several nasty wounds in the head; one resulted in skull fracture and
proved fatal. He died in the hospital to which he had been
immediately brought by a policeman. Mr. Malasuqui became a
suspect because when the victim was found, still alive, and upon
being asked who had attacked him, laconically answered, "Kagui."
On the same day, the accused Kaqui Malasuqui was arrested and a
search of his person was conducted without objection from the
accused. Before the body search of the accused was carried out, the
accused voluntarily surrendered to the police authorities a couple of
bracelets belonging to the deceased victim and when asked if he had
anything else to surrender, he, in a trembling voice, answered in the
negative. The police thereupon conducted a body search of the
accused, without any objection from him; the search resulted in the
production of additional personal effects belonging to the deceased
victim. Under these circumstances, the Court ruled that:
"When one voluntarily submits to a search or consents to have it
made of his person or premises, he is precluded from complaining
later thereof. (Cooley, Constitutional Limitations, 8th ed., [V]ol. I, p.
631.) The right to be secure from unreasonable search may, like every
right, be waived and such waiver may be made either expressly or
impliedly."
A propos my distinguished brother Melo, J 's suggestion that the right
against an unlawful warrantless search or arrest is personal and may
not be invoked by the accused's counsel during trial, it is relevant to
note that the law (the Rules of Court) specifies the proper time when
objections to admission of evidence must be raised and that in the
case at bar, a timely objection was made by appellant Barros. Finally,
the accused's silence during the warrantless search should not be
lightly taken as consent to that search, but rather construed as
explained by the Court in Burgos, 28 and as pointed out by Mr.
Justice Laurel, a "demonstration of regard for the supremacy of the
law." LLjur
It is, of course, possible that appellant Barros may in fact have been
guilty of transporting the four (4) kilos of marijuana. His guilt must,
however, be established by constitutional means. The non-
admissibility of evidence secured through a disregard of the
constitutional right of the accused against unreasonable searches and
seizures is the sanction imposed by the Constitution for disregard of
such right; the sanction is a powerful one, for it renders inutile the
work done by the police officers, by the prosecutor and by the trial
court. It is a sanction which this Court has no choice but to apply in
the instant case.
WHEREFORE, for all the foregoing, the decision of the Regional
Trial Court, Branch 35, Bontoc, Mountain Province, in Criminal Case
No. 687 is hereby REVERSED and SET ASIDE and appellant is
hereby ACQUITTED of the crime charged, the evidence lawfully
before the trial court not being sufficient to establish his guilt thereof
beyond reasonable doubt. No costs.
SO ORDERED.
Bidin, Romero, and Vitug, JJ., concur.
Melo, J., please see dissenting opinion.
EN BANC
[G.R. No. 95630. June 18, 1992.]
SPOUSES LEOPOLDO and MA. LUISA VEROY, petitioners,
vs. THE HON. WILLIAM L. LAYAGUE, Presiding Judge,
Branch XIV, Regional Trial Court at Davao City; and BRIG.
GEN. PANTALEON DUMLAO, Commanding General, PC-
Criminal Investigation Service, respondents.
SYLLABUS
1. CRIMINAL LAW; ILLEGAL POSSESSION OF
FIREARMS (P.D. 1866); RULE ON THE CONSTITUTIONALITY
THEREOF. — The issue of constitutionality of Presidential Decree
No. 1866 has been laid to rest in the case of Misolas v. Panga, G.R.
No. 83341, January 30, 1990 (181 SCRA 648), where this Court held
that the declaration of unconstitutionality of the third paragraph of
Section 1 of Presidential Decree No. 1866 is wanting in legal basis
since it is neither a bill of attainder nor does it provide a possibility of
a double jeopardy.
2. ID.; ID.; NOT REPEALED BY REPUBLIC ACT 6968;
REASON THEREFOR. — Petitioners' contention that Republic Act
6968 has repealed Presidential Decree No. 1866 is bereft of merit. It
is a cardinal rule of statutory construction that where the words and
phrases of a statute are not obscure or ambiguous, its meaning and the
intention of the legislature must be determined from the language
employed, and where there is no ambiguity in the words, there is no
room for construction (Provincial Board of Cebu v. Presiding Judge
of Cebu, CFI, Br. IV, G.R. No. 34695, March 7, 1989 [171 SCRA
1]). A perusal of the aforementioned laws would reveal that the
legislature provided for two (2) distinct offenses: (1) illegal
possession of firearms under Presidential Decree No. 1866; and (2)
rebellion, coup d'etat, sedition and disloyalty under Republic Act
6968; evidently involving different subjects which were not clearly
shown to have eliminated the others.
3. ID.; ID.; ANIMUS POSSIDENDI MUST BE PROVED;
APPLICATION IN CASE AT BAR. — Petitioners contend that
Section 1 of Presidential Decree No. 1866 is couched in general or
vague terms. The terms "deal in," "acquire," "dispose" or "possess"
are capable of various interpretations such that there is no definiteness
as to whether or not the definition includes "constructive possession"
or how the concept of constructive possession should be applied.
Petitioners were not found in actual possession of the firearm and
ammunitions. They were in Quezon City while the prohibited articles
were found in Davao City. Yet they were being charged under
Presidential Decree No. 1866 upon the sole circumstance that the
house wherein the items were found belongs to them. Otherwise
stated, other than their ownership of the house in Skyline Village,
there was no other evidence whatsoever that herein petitioners
possessed or had in their control the items seized. Neither was it
shown that they had the intention to possess the Firearms or to further
rebellion.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT
AGAINST UNREASONABLE SEARCH; RULE AND
EXCEPTIONS; NOT PRESENT IN CASE AT BAR. — Petitioners
aver that while they concede that Capt. Obrero had permission from
Ma. Luisa Veroy to break open the door of their residence, it was
merely for the purpose of ascertaining thereat the presence of the
alleged "rebel" soldiers. The permission did not include any authority
to conduct a room to room search once inside the house. The items
taken were, therefore, products of an illegal search, violative of their
constitutional rights. As such, they are inadmissible in evidence
against them. The Constitution guarantees the right of the people to
be secure in their persons, houses, papers and effects against
unreasonable searches and seizures (Article III, Section 2 of the 1987
Constitution). However, the rule that searches and seizures must be
supported by a valid warrant is not an absolute one. Among the
recognized exceptions thereto are: (1) a search incidental to an arrest;
(2) a search of a moving vehicle; and (3) seizure of evidence in plain
view (People v. Lo Ho Wing, G.R. No 88017, January 21, 1991 [193
SCRA 122]). None of these exceptions pertains to the case at bar. The
reason for searching the house of herein petitioners is that it was
reportedly being used as a hideout and recruitment center for rebel
soldiers. While Capt. Obrero was able to enter the compound, he did
not enter the house because he did not have a search warrant and the
owners were not present. This shows that he himself recognized the
need for a search warrant, hence, he did not persist in entering the
house but rather contacted the Veroys to seek permission to enter the
same. Permission was indeed granted by Ma. Luisa Veyor to enter the
house but only to ascertain the presence of rebel soldiers. Under the
circumstances it is undeniable that the police officers had ample time
to procure a search warrant but did not.
5. ID.; ID.; COMMISSION THEREOF CONSIDERED
MALUM PROHIBITUM. — Undeniably, the offense of illegal
possession of firearms is malum prohibitum but is does not follow
that the subject thereof is necessarily illegal per se. Motive is
immaterial in mala prohibita but the subjects of this kind of offense
may not be summarily seized simply because they are prohibited. A
search warrant is still necessary. Hence, the rule having been violated
and no exception being applicable, the articles seized were
confiscated illegally and are therefore protected by the exclusionary
principle. They cannot be used as evidence against the petitioners in
the criminal action against them for illegal possession of firearms.
(Roan v. Gonzales, 145 SCRA 689-690 [1986]). Besides, assuming
that there was indeed a search warrant, still in mala prohibita, while
there is no need of criminal intent, there must be knowledge that the
same existed. Without the knowledge or voluntariness there is no
crime.
D E C I S I O N
PARAS, J p:
This was originally a petition for certiorari, mandamus and
prohibition under Rule 65 of the Rules of Court: certiorari, to review
the Order of the respondent Judge dated October 2, 1990 denying
herein petitioner's Motion for Hospital Confinement; mandamus, to
compel respondent Judge to resolve petitioners' long pending motion
for bail; and prohibition, to enjoin further proceedings on the ground
that the legal basis therefore is unconstitutional for being violative of
the due process and equal protection clauses of the Constitution. prcd
The facts of this case are as follows:
Petitioners are husband and wife who owned and formerly resided at
No. 13 Isidro St., Skyline Village, Catalunan Grande, Davao City.
When petitioner Leopoldo Veroy was promoted to the position of
Assistant Administrator of the Social Security System sometime in
June, 1988, he and his family transferred to 130 K-8th St., East
Kamias, Quezon City, where they are presently residing. The care and
upkeep of their residence in Davao City was left to two (2)
houseboys, Jimmy Favia and Eric Burgos, who had their assigned
quarters at a portion of the premises. The Veroys would occasionally
send money to Edna Soquilon for the salary of the said houseboys and
other expenses for the upkeep of their house. While the Veroys had
the keys to the interior of the house, only the key to the kitchen,
where the circuit breakers were located, was entrusted to Edna
Soquilon to give her access in case of an emergency. Hence, since
1988, the key to the master's bedroom as well as the keys to the
children's rooms were retained by herein petitioners so that neither
Edna Soquilon nor the caretakers could enter the house.
On April 12, 1990, Capt. Reynaldo Obrero of the Talomo Patrol
Station, PC/INP, acting upon a directive issued by Metrodiscom
Commander Col. Franco Calida, raided the house of herein
petitioners in Davao City on information that the said residence was
being used as a safehouse of rebel soldiers. They were able to enter
the yard with the help of the caretakers but did not enter the house
since the owner was not present and they did not have a search
warrant. Petitioner Ma. Luisa was contacted by telephone in her
Quezon City residence by Capt. Obrero to ask permission to search
the house in Davao City as it was reportedly being used as a hideout
and recruitment center of rebel soldiers. Petitioner Ma. Luisa Veroy
responded that she is flying to Davao City to witness the search but
relented if the search would not be conducted in the presence of
Major Ernesto Macasaet, an officer of the PC/INP, Davao City and a
long time family friend of the Veroys. The authority given by Ma.
Luisa Veroy was relayed by Capt. Obrero to Major Macasaet who
answered that Ma. Luisa Veroy has called him twice by telephone on
the matter and that the permission was given on the condition that the
search be conducted in his presence.
The following day, Capt. Obrero and Major Macasaet met at the
house of herein petitioners in Skyline Village to conduct the search
pursuant to the authority granted by petitioner Ma. Luisa Veroy. The
caretakers facilitated their entry into the yard, and using the key
entrusted to Edna Soquilon, they were able to gain entrance into the
kitchen. However, a locksmith by the name of Ceorge Badiang had to
be employed to open the padlock of the door leading to the children's
room. Capt. Obrero and Major Macasaet then entered the children's
room and conducted the search. Capt. Obrero recovered a .45 cal.
handgun with a magazine containing seven (7) live bullets in a black
clutch bag inside an unlocked drawer. Three (3) half-full jute sacks
containing printed materials of RAM-SFP (samples of which were
attached as Annexes "H" and "H-1" of the petition) (Rollo, pp. 49-55)
were also found in the children's room. A search of the children's
recreation and study area revealed a big travelling bag containing
assorted polo shirts, men's brief, two (2) pieces polo barong and short
sleeve striped gray polo, sweat shirt, two (2) pairs men's socks, a
towel made in U.S.A., one blanket, a small black bag, Gandhi brand,
containing a book entitled "Islamic Revolution Future Path of the
Nation", a road map of the Philippines, a telescope, a plastic bag
containing assorted medicines and religious pamphlets was found in
the master's bedroom. Sgt. Leo Justalero was instructed by Capt.
Obrero to make an inventory and receipt of the articles seized in the
house (Annex "F" of the petition, Rollo, p. 48). Said receipt was
signed by Eric Burgos, one of the caretakers, and George Badiang,
the locksmith, as witnesses. Sgt. Justalero turned over the articles to
Sgt. Rodolfo Urbano at the police station.
The case was referred for preliminary investigation to Quezon City
Assistant Prosecutor Rodolfo Ponferrada who was designated Acting
Provincial Prosecutor for Davao City by the Department of Justice
through Department Order No. 88 dated May 16, 1990. In a
resolution dated August 6, 1990, Fiscal Ponferrada recommended the
filing of an Information against herein petitioners for Violation of
Presidential Decree No. 1866 (Illegal Possession of Firearms and
Ammunitions in Furtherance of Rebellion) (Annex "L" of the
Petition, Rollo, p. 71). Hence, on August 8, 1990, an Information for
the said offense was filed by the Office of the City Prosecutor of
Davao City before the Regional Trial Court, 11th Judicial Region,
Davao City, docketed as Criminal Case No. 20595-90 and entitled
"People of the Philippines v. Atty. Leopoldo Veroy and Mrs. Maria
Luisa Veroy" (Annex "K" of the Petition, Rollo, p. 70). No bail was
recommended by the prosecution.
The aforementioned resolution dated August 6, 1990 of Fiscal
Ponferrada was received by the petitioners on August 13, 1990. On
the same day, the latter filed a Motion for Bail before herein
respondent Judge Layague which was denied on August 17, 1990 for
being premature since at that time, petitioners had not yet been
arrested. Despite the fact that the warrants for their arrest have not yet
been served on them, herein petitioners voluntarily surrendered
themselves to Brig. Gen. Pantaleon Dumlao, PC-CIS Chief, since it
was the CIS that initiated the complaint. However, the latter refused
to receive them on the ground that his office has not yet received
copies of their warrants of arrest. prLL
In the meantime, on August 15, 1990, herein petitioners were
admitted to the St. Luke's Hospital for various ailments brought about
or aggravated by the stress and anxiety caused by the filing of the
criminal complaint. On August 17, 1990, Brig. Gen. Dumlao granted
their request that they be allowed to be confined at the hospital and
placed under guard thereat.
In an Indorsement dated August 20, 1990, the CIS through Capt.
Benjamin de los Santos, made its return to the trial court informing
the latter of the voluntary surrender of herein petitioners and the fact
that they were under hospital confinement. Herein Petitioner
reiterated their Motion for Bail. In an Order dated August 24, 1990
(Annex "M" of the Petition, Rollo, p. 74), the hearing for the Motion
for bail was set for August 31, 1990 to enable the prosecution to
present evidence in opposition to said motion. The prosecution filed
its written opposition (Annex "N" of the Petition, Rollo, p. 75) on
August 28, 1990, arguing that the evidence of petitioners' guilt was
strong and thereafter presented its evidence.
On September 21, 1990, respondent Judge required the CIS to
produce the bodies of herein petitioners on October 1, 1990 for
arraignment (Annex "O" of the Petition, Rollo, p. 76). Upon their
arraignment, herein petitioners entered a plea of not guilty and filed
an "Urgent Motion for Hospital Confinement" (Annex "OO" of the
Petition, Rollo, p. 77) which was denied by the court in its Order
dated October 2, 1990 (Annex "P" of the Petition, Rollo, p. 80). It
likewise ordered their commitment at the Davao City Rehabilitation
Center, Ma-a, Davao City pending trial on the merits. Herein
petitioners argued orally a motion for reconsideration which was
opposed by the prosecution. At the conclusion thereof, the court a quo
issued a second order (Annex "Q" of the Petition, Rollo, p. 83)
denying their motion for reconsideration and as to the alternative
prayer to reopen the motion for hospital confinement, set the
continuance thereof to October 17, 1990. It was further ordered that
the petitioners shall remain under the custody of the PC-CIS pending
resolution of the case.
Meanwhile, petitioners were returned to the St. Luke's Hospital where
their physical condition remained erratic. On or about October 18,
1990, herein petitioners were informed that Brig. Gen. Dumlao had
issued a directive for their transfer from the St. Luke's Hospital to
Camp Crame on the basis of the October 2, 1990 Order (Annex "Q"
of the Petition, Rollo, p. 83). Petitioners made representations that the
tenor of the court order warranted maintenance of the status quo, i.e.,
they were to continue their hospital confinement. However, Brig.
Gen. Dumlao informed them that unless otherwise restrained by the
court, they would proceed with their transfer pursuant to the order of
the trial court.
Hence, this petition. On October 25, 1990 this Court issued a
Temporary Restraining Order, effective immediately and continuing
until further orders from this Court ordering: (a) respondent Hon.
William L. Layague to refrain from further proceeding with
petitioners' "Motion for Hospital Confinement" in Criminal Case No.
20595-90 entitled "People of the Philippines v. Leopoldo Veroy and
Ma. Luisa Veroy"; and (b) respondent Brig. Gen. Pantaleon Dumlao
to refrain from transferring petitioners from the St. Luke's Hospital
(Rollo, pp. 84-A to 84-C).
On November 2, 1990, respondent Judge issued an order denying
petitioners' Motion for Bail (Annex "A" of the Second Supplemental
Petition, Rollo, p. 133). Petitioners filed a Supplemental Petition on
November 7, 1990 (Rollo, p. 105) and a Second Supplemental
Petition on November 16, 1990 (Rollo, p. 120) which sought to
review the order of the trial court dated November 29, 1990 denying
their petition for bail.
Acting on the Supplemental Petition filed by petitioners and taking
into consideration several factors such as: a) that the possibility that
they will flee or evade the processes of the court is fairly remote; b)
their poor medical condition; and c) the matters in their Second
Supplemental Petition especially since the prosecution's evidence
refers to constructive possession of the disputed firearms in Davao
City through the two (2) caretakers while petitioners lived in Manila
since 1988, this Court, on November 20, 1990, granted petitioners'
provisional liberty and set the bail bond at P20,000.00 each (Rollo, p.
141). Petitioners posted a cash bond in the said amount on November
23, 1990 (Rollo, pp. 143-145).
The petition was given due course on July 16, 1991 (Rollo, p. 211).
Respondents adopted their Comment dated December 28, 1990
(Rollo, pp. 182-191) as their Memorandum while petitioners filed
their Memorandum on September 9, 1991 (Rollo, pp. 218-269). llcd
As submitted by the respondents, and accepted by petitioners, the
Petition for mandamus to compel respondent judge to resolve
petitioners' Motion for Bail, and the petition for certiorari to review
the order of respondent judge initially denying their Motion for
Hospital Confinement, were rendered moot and academic by the
resolutions of this Court dated November 20, 1990 and October 25,
1990, respectively. What remains to be resolved is the petition for
prohibition where petitioners raised the following issues:
1. Presidential Decree No. 1866, or at least the third paragraph of
Section 1 thereof, is unconstitutional for being violative of the due
process and equal protection clauses of the Constitution;
2. Presidential Decree No. 1866 has been repealed by Republic
Act No. 6968;
3. Assuming the validity of Presidential Decree No. 1866, the
respondent judge gravely abused his discretion in admitting in
evidence certain articles which were clearly inadmissible for being
violative of the prohibition against unreasonable searches and
seizures.
The issue of constitutionality of Presidential Decree No. 1866 has
been laid to rest in the case of Misolas v. Panga, G.R. No. 83341,
January 30, 1990 (181 SCRA 648), where this Court held that the
declaration of unconstitutionality of the third paragraph of Section 1
of Presidential Decree No. 1866 is wanting in legal basis since it is
neither a bill of attainder nor does it provide a possibility of a double
jeopardy.
Likewise, petitioners' contention that Republic Act 6968 has repealed
Presidential Decree No. 1866 is bereft of merit. It is a cardinal rule of
statutory construction that where the words and phrases of a statute
are not obscure or ambiguous, its meaning and the intention of the
legislature must be determined from the language employed, and
where there is no ambiguity in the words, there is no room for
construction (Provincial Board of Cebu v. Presiding Judge of Cebu,
CFI, Br. IV, G.R. No. 34695, March 7, 1989 [171 SCRA 1]). A
perusal of the aforementioned laws would reveal that the legislature
provided for two (2) distinct offenses; (1) illegal possession of
firearms under Presidential Decree No. 1866; and (2) rebellion, coup
d'etat, sedition and disloyalty under Republic Act 6968; evidently
involving different subjects which were not clearly shown to have
eliminated the others.
But petitioners contend that Section 1 of Presidential Decree No.
1866 is couched in general or vague terms. The terms "deal in",
"acquire", "dispose" or "possess" are capable of various
interpretations such that there is no definiteness as to whether or not
the definition includes "constructive possession" or how the concept
of constructive possession should be applied. Petitioners were not
found in actual possession of the firearm and ammunitions. They
were in Quezon City while the prohibited articles were found in
Davao City. Yet they were being charged under Presidential Decree
No. 1866 upon the sole circumstance that the house wherein the items
were found belongs to them (Memorandum for Petitioners, Rollo, pp.
242-244).
Otherwise stated, other than their ownership of the house in Skyline
Village, there was no other evidence whatsoever that herein
petitioners possessed or had in their control the items seized (Ibid.,
pp. 248-250). Neither was it shown that they had the intention to
possess the Firearms or to further rebellion (Ibid., p. 252).
In a similar case, the revolver in question was found in appellant's
store and the question arose whether he had possession or custody of
it within the meaning of the law.
This Court held that:
"The animus possidendi must be proved in opium cases where the
prohibited drug was found on the premises of the accused and the
same rule is applicable to the possession of firearms. The appellant
denied all knowledge of the existence of the revolver, and the
Government's principal witness stated that there were a number of
employees in the store. The only testimony which tends to show that
the appellant had the possession or custody of this revolver is the
inference drawn from the fact that it was found in his store, but we
think that this inference is overcome by the positive testimony of the
appellant, when considered with the fact that there were a number of
employees in the store, who, of course, could have placed the
revolver in the secret place where it was found without the knowledge
of the appellant. At least there is a very serious doubt whether he
knew of the existence of this revolver. In such case the doubt must he
resolved in favor of the appellant." (U.S. v. Jose and Tan Bo., 34 Phil.
724 [1916])
But more importantly, petitioners question the admissibility in
evidence of the articles seized in violation of their constitutional right
against unreasorable search and seizure.
Petitioners aver that while they concede that Capt. Obrero had
permission from Ma. Luisa Veroy to break open the door of their
residence, it was merely for the purpose of ascertaining thereat the
presence of the alleged "rebel" soldiers. The permission did not
include any authority to conduct a room to room search once inside
the house. The items taken were, therefore, products of an illegal
search, violative of their constitutional rights. As such, they are
inadmissible in evidence against them.
The Constitution guarantees the right of the people to be secure in
their persons, houses, papers and effects against unreasonable
searches and seizures (Article III, Section 2 of the 1987 Constitution).
However, the rule that searches and seizures must be supported by a
valid warrant is not an absolute one. Among the recognized
exceptions thereto are: (1) a search incidental to an arrest; (2) a search
of a a moving vehicle; and (3) seizure of evidence in plain view
(People v. Lo Ho Wing, G.R. No. 88017, January 21, 1991 [193
SCRA 122]).
None of these exceptions pertains to the case at bar. The reason for
searching the house of herein petitioner is that it was reportedly being
used as a hideout and recruitment center for rebel soldiers. While
Capt. Obrero was able to enter the compound, he did not enter the
house because he did not have a search warrant and the owners were
not present. This shows that he himself recognized the need for a
search warrant, hence, he did not persist in entering the house but
rather contacted the Veroys to seek permission to enter the same.
Permission was indeed granted by Ma. Luisa Veroy to enter the house
but only to ascertain the presence of rebel soldiers. Under the
circumstances it is undeniable that the police officers had ample time
to procure a search warrant but did not.
In a number of cases decided by this Court (Guazon v. De Villa,
supra.; People v. Aminnudin. G.R. No. L-74869, July 6, 1988 [163
SCRA 402]; Alih v. Castro, G.R. No. L-69401, June 23, 1987 [151
SCRA 279]), warrantless searches were declared illegal because the
officials conducting the search had every opportunity to secure a
search warrant. The objects seized, being products of illegal searches,
were inadmissible in evidence in the criminal actions subsequently
instituted against the accused-appellants (People v. Cendana, G.R.
No. 84715, October 17, 1990 [190 SCRA 538]).
Undeniably, the offense of illegal possession of firearms is malum
prohibitum but it does not follow that the subject thereof is
necessarily illegal per se. Motive is immaterial in mala prohibita but
the subjects of this kind of offense may not be summarily seized
simply because they are prohibited. A search warrant is still
necessary. Hence, the rule having been violated and no exception
being applicable, the articles seized were confiscated illegally and are
therefore protected by the exclusionary principle. They cannot be
used as evidence against the petitioners in the criminal action against
them for illegal possession of firearms. (Roan v. Gonzales, 145
SCRA 689-690 [1986]). Besides, assuming that there was indeed a
search warrant, still in mala prohibita, while there is no need of
criminal intent, there must be knowledge that the same existed.
Without the knowledge or voluntariness there is no crime.
PREMISES CONSIDERED, the petition is granted and the criminal
case against the petitioners for illegal possession of firearms is
DISMISSED.
SO ORDERED
Narvasa, C .J ., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Griño-
Aquino, Medialdea, Regalado, Davide, Jr., Romero and Bellosillo, JJ
., concur.
FIRST DIVISION
[G.R. No. 93516. August 12, 1992.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
BASILIO DAMASO @ Bernardo/BERNIE MENDOZA @ KA
DADO, accused-appellant.
The Solicitor General for plaintiff-appellee.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; HEARSAY EVIDENCE;
HAS NO PROBATIVE VALUE WHETHER OBJECTED TO OR
NOT; CASE AT BAR. — The testimonies in case at bar are hearsay
because the witnesses testified on matters not on their own personal
knowledge. The Solicitor General, however, argues that while the
testimonies may be hearsay, the same are admissible because of the
failure of counsel for appellant to object thereto. It is true that the lack
of objection to a hearsay testimony results in its being admitted as
evidence. But, one should not be misled into thinking that since these
testimonies are admitted as evidence, they now have probative value.
Hearsay evidence, whether objected to or not, cannot be given
credence. In People v. Valero, We emphatically declared that: "The
failure of the defense counsel to object to the presentation of
incompetent evidence, like hearsay evidence or evidence that violates
the rule of res inter alios acta, or his failure to ask for the striking out
of the same does not give such evidence any probative value. The
lack of objection may make any incompetent evidence admissible.
But admissibility of evidence should not be equated with weight of
evidence. Hearsay evidence whether objected to or not has no
probative value." (L-45283-84, March 19, 1982, 112 SCRA 675)
2. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS
AGAINST UNREASONABLE SEARCH AND SEIZURE;
PURPOSE. — The right against unreasonable searches and seizures
is enshrined in the Constitution (Article III, Section 2). The purpose
of the law is to prevent violations of private security in person and
property, and unlawful invasions of the sanctity of the home by
officers of the law acting under legislative or judicial sanction and to
give remedy against such usurpations when attempted (see Alvero v.
Dizon, 76 Phil. 637, 646). However, such right is not absolute.
3. ID.; ID.; ID.; EXCEPTIONS. — There are instances when a
warrantless search and seizure becomes valid, namely: (1) search
incidental to an arrest; (2) search of a moving vehicle; and (3) seizure
of evidence in plain view (Manipon, Jr. v. Sandiganbayan, L-58889,
July 31, 1986, 143 SCRA 267, 276).
4. ID.; ID.; ID.; BEING A PERSONAL RIGHT, CANNOT BE
WAIVED BY ANYONE EXCEPT THE PERSON WHOSE
RIGHTS ARE INVADED OR WHO IS EXPRESSLY
AUTHORIZED TO DO SO IN HIS BEHALF. — The constitutional
immunity from unreasonable searches and seizures, being a personal
one, cannot be waived by anyone except the person whose rights are
invaded or one who is expressly authorized to do so in his or her
behalf (De Garcia v. Locsin, 65 Phil. 689, 695). In the case at bar, the
records show that appellant was not in his house at that time Luz
Tanciangco and Luz Morados, his alleged helper, allowed the
authorities to enter it. We find no evidence that would establish the
fact that Luz Morados was indeed the appellant's helper or if it was
true that she was his helper, that the appellant had given her authority
to open his house in his absence. The prosecution likewise failed to
show if Luz Tanciangco has such an authority. Without this evidence,
the authorities' intrusion into the appellant's dwelling cannot be given
any color of legality. While the power to search and seize is necessary
to the public welfare, still it must be exercised and the law enforced
without transgressing the constitutional rights of the citizens, for the
enforcement of no statute is of sufficient importance to justify
indifference to the basic principles of government (Rodriguez v.
Evangelista, 65 Phil. 230, 235). As a consequence, the search
conducted by the authorities was illegal. It would have been different
if the situation here demanded urgency which could have prompted
the authorities to dispense with a search warrant. But the record is
silent on this point.
5. ID.; ID.; ID.; VIOLATION THEREOF CANNOT BE
JUSTIFIED BY THE URGENCY OF THE RAID. — The fact that
they came to the house of the appellant at nighttime, does not grant
them the license to go inside his house. In Alih v. Castro, We ruled
that: "The respondents cannot even plead the urgency of the raid
because it was in fact not urgent. They knew where the petitioners
were. They had every opportunity to get a search warrant before
making the raid. If they were worried that the weapons inside the
compound would be spirited away, they could have surrounded the
premises in the meantime, as a preventive measure. There was
absolutely no reason at all why they should disregard the orderly
processes required by the Constitution and instead insist on arbitrarily
forcing their way into the petitioner's premises with all the menace of
a military invasion." (G.R. No. 69401, June 23, 1987, 151 SCRA 279,
286)
6. CRIMINAL LAW; ILLEGAL POSSESSION OF
FIREARMS (P.D. NO. 1866); EXISTENCE OF FIREARM AND
THAT THE ACCUSED WHO POSSESSED OR OWNED THE
FIREARM DOES NOT HAVE THE CORRESPONDING LICENSE
MUST BE PROVED. — In crimes of illegal possession of firearm as
in this case, the prosecution has the burden to prove the existence of
the firearm and that the accused who possessed or owned the firearm
does not have the corresponding license for it. Since the gun as
identified at the trial differs from the gun described in the amended
information, the corpus delicti (the substance of the crime, the fact
that a crime has actually been committed) has not been fully
established. This circumstance coupled with dubious claims of
appellant's connection to the house (where the gun was found) have
totally emasculated the prosecution's case.
7. ID.; ID.; NOT ABSORBED IN THE CRIME OF
SUBVERSION; REASON THEREFOR. — The argument raised by
the defense that the crime of subversion absorbs the crime of illegal
possession of firearm in furtherance of or incident to or in connection
with the crime of subversion. It appears that the accused-appellant is
facing a separate charge of subversion. The defense submits that the
trial court should have peremptorily dismissed this case in view of the
subversion charge. In People of the Philippines v. Asuncion, et al.,
WE set forth in no uncertain terms the futility of such argument. We
quote: "If We are to espouse the theory of the respondents that force
and violence are the very essence of subversion, then it loses its
distinction from rebellion. In People v. Liwanag (G.R. 27683, 1976,
73 SCRA 473, 480 [1976])., the Court categorically distinguished
subversion from rebellion, and held: 'Violation of Republic Act No.
1700, or subversion, as it is more commonly called, is a crime distinct
from that of actual rebellion. The crime of rebellion is committed by
rising publicly and taking up arms against the Government for any of
the purposes specified in Article 134 of the Revised Penal Code;
while the Anti-Subversion Act (Republic Act No. 1700) punishes
affiliation or membership in a subversive organization as defined
therein. In rebellion, there must be a public uprising and taking of
arms against the Government; whereas, in subversion, mere
membership in a subversive association is sufficient and the taking up
of arms by a member of a subversive organization against the
Government is but a circumstance which raises the penalty to be
imposed upon the offender.' "The first Whereas clause of R.A.. 1700
states that the CPP is an organized conspiracy to overthrow the
Government, not only by force and violence but also by deceit,
subversion and other illegal means. This is a recognition that
subversive acts do not only constitute force and violence (contrary to
the arguments of private respondents), but may partake of other forms
as well. One may in fact be guilty of subversion by authoring
subversive materials, where force and violence is neither necessary or
indispensable." The Court upheld the validity of the charge under the
third paragraph of Section 1 of P.D. 1866. The Court opined that the
dictum in the Hernandez case is not applicable in that case,
considering that the legislature deemed it fit to provide for two
distinct offenses" (1) illegal possession of firearms qualified by
subversion (P.D. 1866) and (2) subversion qualified by the taking up
of arms against the Government (R.A. 1700). 'The practical result of
this may be harsh or it may pose grave difficulty on an accused in
instances similar to those that obtain in the present case, but the
wisdom of the legislature in the lawful exercise of its power to enact
laws is something that the Court cannot inquire into. . ." (G.R. Nos.
83837-42, April 22, 1991).
D E C I S I O N
MEDIALDEA, J p:
The accused-appellant, Basilio Damaso, was originally charged in an
information filed before the Regional Trial Court of Dagupan City
with violation of Presidential Decree No. 1866 in furtherance of, or
incident to, or in connection with the crime of subversion, together
with Luzviminda Morados y Galang @ Ka Mel, Teresita Calosa y
Macabangon @ Ka Tessie, Ricardo Calosa y Perez @ Ka Ric,
Marites Calosa y Evangelista @ Ka Tess, Eric Tanciangco y Capira
@ Ka Ric and Luz Tanciangco y Pencial @ Ka Luz (Records, p. 3).
Such information was later amended to exclude all the above-
enumerated persons except the accused-appellant from the criminal
charge. The amended information reads:
"That on or about the 19th day of June, 1988, in the City of Dagupan,
Philippines, and within the territorial jurisdiction of this Honorable
Court, the above-named accused, Basilio DAMASO @
Bernardo/Bernie Mendoza @ KA DADO, did then and there,
wilfully, unlawfully and criminally, have in his possession, custody
and control one (1) M14 Rifle bearing Serial No. 1249935 with
magazine and Fifty-Seven (57) live ammunition, in furtherance of, or
incident to, or in connection with the crime of subversion, filed
against said accused in the above-entitled case for Violation of
Republic Act 1700, as amended by Executive order No. 276. prLL
"Contrary to Third Paragraph of Sec. 1, P.D. 1866." (Records, p. 20)
Upon arraignment, the accused-appellant pleaded not guilty to the
crime charged (Records, p. 37). Trial on the merits ensued. The
prosecution rested its case and offered its exhibits for admission. The
counsel for accused-appellant interposed his objections to the
admissibility of the prosecution's evidence on grounds of its being
hearsay, immaterial or irrelevant and illegal for lack of a search
warrant. On these bases, he, thereafter, manifested that he was not
presenting any evidence for the accused (TSN, December 28, 1989, p.
139). On January 17, 1990, the trial court rendered its decision, the
dispositive portion of which states:
"WHEREFORE, the Court finds accused Basilio Damaso alias
Bernardo/Bernie Mendoza alias Ka Dado guilty beyond reasonable
doubt of Violation of Presidential Decree Number 1866, and
considering that the Violation is in furtherance of, or incident to, or in
connection with the crime of subversion, pursuant to Section 1,
Paragraph 3 of Presidential Decree Number 1866 hereby sentences
the accused to suffer the penalty of Reclusion Perpetua and to pay the
costs of the proceedings.
"The M14 Rifle bearing Serial Number 1249935 and live ammunition
and all the articles and/or items seized on June 19, 1988 in connection
with this case and marked and submitted in court as evidence are
ordered confiscated and forfeited in favor of the government, the
same to be turned over to the Philippine Constabulary Command at
Lingayen, Pangasinan.
"SO ORDERED." (Rollo, p. 31)
Thus, this present recourse with the following assignment of errors:
A. THE TRIAL COURT ERRED IN FINDING ACCUSED
APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME OF ILLEGAL POSSESSION OF FIREARMS AND
AMMUNITIONS IN FURTHERANCE OF, OR INCIDENT TO, OR
IN CONNECTION WITH THE CRIME OF SUBVERSION
DESPITE THE WOEFULLY INADEQUATE EVIDENCE
PRESENTED BY THE PROSECUTION.
B. THE COURT ERRED IN CONVICTING THE ACCUSED
WHEN THE QUALIFYING CIRCUMSTANCES OF
SUBVERSION WAS NOT PROVEN BY THE PROSECUTION.
C. THE LOWER COURT ERRED IN CONSIDERING AS
EVIDENCE THE FIREARMS DOCUMENTS AND ITEMS
LISTED IN EXHIBIT E AFTER THEY WERE DECLARED
INADMISSIBLE WITH FINALITY BY ANOTHER BRANCH OF
THE SAME COURT AND THE SAID EVIDENCE ARE THE
FRUITS OF AN ILLEGAL SEARCH.
D. THE TRIAL COURT ERRED IN DENYING THE
MOTIONS TO QUASH FILED BY ACCUSED-APPELLANT
BECAUSE THE SEPARATE CHARGE FOR SUBVERSION
AGAINST HIM ABSORBED THE CHARGE FOR ILLEGAL
POSSESSION OF FIREARMS IN FURTHERANCE OR OF
INCIDENT TO, OR IN CONNECTION WITH THE CRIME OF
SUBVERSION." (pp. 55-66, Rollo)
The antecedent facts are set forth by the Solicitor General in his Brief,
as follows:
"On June 18, 1988, Lt. Candido Quijardo, a Philippine Constabulary
officer connected with the 152nd PC Company at Lingayen,
Pangasinan, and some companions were sent to verify the presence of
CPP/NPA members in Barangay Catacdang, Arellano-Bani, Dagupan
City. In said place, the group apprehended Gregorio Flameniano,
Berlina Aritumba, Revelina Gamboa and Deogracias Mayaoa. When
interrogated, the persons apprehended revealed that there was an
underground safehouse at Gracia Village in Urdaneta, Pangasinan.
After coordinating with the Station Commander of Urdaneta, the
group proceeded to the house in Gracia Village. They found
subversive documents, a radio, a 1 x 7 caliber .45 firearm and other
items (pp. 4, 6-7, tsn, October 23, 1989). LLpr
"After the raid, the group proceeded to Bonuan, Dagupan City, and
put under surveillance the rented apartment of Rosemarie Aritumba,
sister of Berlina Aritumba whom they earlier arrested. They
interviewed Luzviminda Morados, a visitor of Rosemarie Aritumba.
She stated that she worked with Bernie Mendoza, herein appellant.
She guided the group to the house rented by appellant. When they
reached the house, the group found that it had already been vacated
by the occupants. Since Morados was hesitant to give the new address
of Bernie Mendoza, the group looked for the Barangay Captain of the
place and requested him to point out the new house rented by
appellant. The group again required Morados to go with them. When
they reached the house, the group saw Luz Tanciangco outside. They
told her that they already knew that she was a member of the NPA in
the area. At first, she denied it, but when she saw Morados she
requested the group to go inside the house. Upon entering the house,
the group, as well as the Barangay Captain, saw radio sets, pamphlets
entitled 'Ang Bayan', xerox copiers and a computer machine. They
also found persons who were companions of Luz Tanciangco
(namely, Teresita Calosa, Ricardo Calosa, Marites Calosa, Eric
Tanciangco and Luzviminda Morados). The group requested the
persons in the house to allow them to look around. When Luz
Tanciangco opened one of the rooms, they saw books used for
subversive orientation, one M-14 rifle, bullets and ammunitions,
Kenwood radio, artificial beard, maps of the Philippines, Zambales,
Mindoro an(d) Laguna and other items. They confiscated the articles
and brought them to their headquarters for final inventory. They
likewise brought the persons found in the house to the headquarters
for investigation. Said persons revealed that appellant was the lessee
of the house and owned the items confiscated therefrom (pp. 8-12,
tsn, ibid; pp. 2-4, 6, 8-10, 31, tsn, October 31, 1989)." (p. 5, Brief of
Plaintiff-Appellee, p. 91, Rollo)
While We encourage and support law enforcement agencies in their
drive against lawless elements in our society, We must, however,
stress that the latter's efforts to this end must be done within the
parameters of the law. In the case at bar, not only did We find that
there are serious flaws in the method used by the law officers in
obtaining evidence against the accused-appellant but also that the
evidence as presented against him is weak to justify conviction.
We reverse.
The records of this case show that the accused-appellant was singled
out as the sole violator of P.D. No. 1866, in furtherance of, or incident
to, or in connection with the crime of subversion. Yet, there is no
substantial and credible evidence to establish the fact that the
appellant is allegedly the same person as the lessee of the house
where the M-14 rifle and other subversive items were found or the
owner of the said items. The prosecution presented two witnesses
who attested to this fact, thus:
"Lieutenant Candito Quijardo
Fiscal
"Q: How about this Bernie Mendoza, who was the one renting the
house?
"A: He was not around at that time, but according to Luz
(Tanciangco) who mentioned the name Bernie Mendoza (as) the one
who was renting the house and at the same time claiming that it was
Bernie Mendoza who owns the said items." (TSN of October 31,
1989, p. 40)
xxx xxx xxx
"Q: I am showing you another picture which we request to be
marked as Exhibit 'K-2,' tell us if it has any connection to the house?
"A: The same house, sir.
"Q: Now, this person who according to you allegedly occupied the
house at Bonuan Gueset, by the name of Bernie Mendoza, in your
capacity as a Military officer, did you find out the identity?
"A: I am not the proper (person) to tell the real identity of Bernie
de Guzman. Cdpr
"Q: Can you tell the Honorable Court the proper person who could
tell the true identity of Bernie Mendoza?
"A: The Intelligence of the Pangasinan PC Command.
"Q: Can you name these officers?
"A: Captain Roberto Rosales and his assistant, First Lt. Federico
Castro. (ibid, pp. 54-55)
"M/Sgt. Artemio Gomez
"Q: That underground house, do you know who was the principal
occupant of that house?
xxx xxx xxx
"A: During our conversation with the occupants, they revealed
that a certain Ka Bernie is the one occupying the house, Bernie
Mendoza alias Basilio Damaso.
" . . . (TSN, December 27, 1989, pp. 126-128)
Clearly, the aforequoted testimonies are hearsay because the
witnesses testified on matters not on their own personal knowledge.
The Solicitor General, however, argues that while the testimonies
may be hearsay, the same are admissible because of the failure of
counsel for appellant to object thereto.
It is true that the lack of objection to a hearsay testimony results in its
being admitted as evidence. But, one should not be misled into
thinking that since these testimonies are admitted as evidence, they
now have probative value. Hearsay evidence, whether objected to or
not, cannot be given credence. In People v. Valero, We emphatically
declared that:
"The failure of the defense counsel to object to the presentation of
incompetent evidence, like hearsay evidence or evidence that violates
the rule of res inter alios acta, or his failure to ask for the striking out
of the same does not give such evidence any probative value. The
lack of objection may make any incompetent evidence admissible.
But admissibility of evidence should not be equated with weight of
evidence. Hearsay evidence whether objected to or not has no
probative value." (L-45283-84, March 19, 1982, 112 SCRA 675,
italics supplied)
It is unfortunate that the prosecution failed to present as witnesses the
persons who knew the appellant as the lessee and owner of the M-14
rifle. In this way, the appellant could have exercised his constitutional
right to confront the witnesses and to cross-examine them for their
truthfulness. Likewise, the records do not show any other evidence
which could have identified the appellant as the lessee of the house
and the owner of the subversive items. To give probative value to
these hearsay statements and convict the appellant on this basis alone
would be to render his constitutional rights useless and without
meaning.
Even assuming for the sake of argument that the appellant is the
lessee of the house, the case against him still will not prosper, the
reason being that the law enforcers failed to comply with the
requirements of a valid search and seizure proceedings. prLL
The right against unreasonable searches and seizures is enshrined in
the Constitution Article III, Section 2. The purpose of the law is to
prevent violations of private security in person and property, and
unlawful invasions of the sanctity of the home by officers of the law
acting under legislative or judicial sanction and to give remedy
against such usurpations when attempted (see Rivero v. Dizon, 76
Phil. 637, 646). However, such right is not absolute. There are
instances when a warrantless search and seizure becomes valid,
namely: (1) search incidental to an arrest; (2) search of a moving
vehicle, and (3) seizure of evidence in plain view (Manipon, Jr. v.
Sandiganbayan, L-58889, July 31, 1986, 143 SCRA 267, 267). None
of these exceptions is present in this case.
The Solicitor General argues otherwise. He claims, that the group of
Lt. Quijardo entered the appellant's house upon invitation of Luz
Tanciangco and Luzviminda Morados, helper of the appellant; that
when Luz Tanciangco opened one of the rooms, they saw a copier
machine, computer, M-14 rifle, bullets and ammunitions, radio set
and more subversive items, that technically speaking, there was no
search as the group was voluntarily shown the articles used in
subversion; that besides, a search may be validly conducted without a
search warrant with the consent of the person searched as in this case,
appellant's helper and Luz Tanciangco allowed them to enter and to
look around the appellant's house; and that since the evidence seized
was in plain view of the authorities, the same may be seized without a
warrant.
We are not persuaded. The constitutional immunity from
unreasonable searches and seizures, being a personal one cannot he
waived by anyone except the person whose rights are invaded or one
who is expressly authorized to do so in his or her behalf (De Garcia v.
Locsin, 65 Phil. 689 695). In the case at bar, the records show that
appellant was not in his house at that time Luz Tanciangco and Luz
Morados, his alleged helper, allowed the authorities to enter it (TSN,
October 31, 1989, p. 10). We find no evidence that would establish
the fact that Luz Morados was indeed the appellant's helper, or if it
was true that she was his helper, that the appellant had given her
authority to open his house in his absence. The prosecution likewise
failed to show if Luz Tanciangco has such an authority. Without this
evidence, the authorities' intrusion into the appellant's dwelling
cannot be given any color of legality. While the power to search and
seize is necessary to the public welfare, still it must be exercised and
the law enforced without transgressing the constitutional rights of the
citizens, for the enforcement of no statute is of sufficient importance
to justify indifference to the basic principles of government
(Rodriguez v. Evangelista, 65 Phil. 230, 235). As a consequence, the
search conducted by the authorities was illegal. It would have been
different if the situation here demanded urgency which could have
prompted the authorities to dispense with a search warrant. But the
record is silent on this point. The fact that they came to the house of
the appellant at nighttime (Exh. J, p. 7, Records), does not grant them
the license to go inside his house. In Alih v. Castro, We ruled that:
"The respondents cannot even plead the urgency of the raid because it
was in fact not urgent. They knew where the petitioners were. They
had every opportunity to get a search warrant before making the raid.
If they were worried that the weapons inside the compound would be
spirited away, they could have surrounded the premises in the
meantime, as a preventive measure. There was absolutely no reason at
all why they should disregard the orderly processes required by the
Constitution and instead insist on arbitrarily forcing their way into the
petitioner's premises with all the menace of a military invasion."
(G.R. No. 69401, June 23, 1987, 151 SCRA 279, 286)
Another factor which illustrates the weakness of the case against the
accused-appellant is in the identification of the gun which he was
charged to have illegally possessed. In the amended information
(supra, pp. 1-2), the gun was described as an M-14 rifle with serial
no. 1249935. Yet, the gun presented at the trial bore a different serial
number thus:
"FISCAL:
Q. Will you kindly restate again the items that you found inside
the house? Lt. Quijardo:
A. When she opened the doors of the rooms that we requested
for, we immediately saw different kinds of books of which we
believed to be used for subversive orientation and the M-14 rifle.
prcd"
Q. In what portion of the house did you find this M-14 rifle
which you mentioned?
A. In the same room of which the subversive documents were
placed.
Q. If this firearm would be shown to you would you be able to
identify the same?
A. Yes, sir.
Q. I am showing to you a rifle bearing a serial number 1249985
which for purposes of identification, may we request your Honor, that
this rifle be marked as Exhibit 'D.'
COURT:
Mark it.
"FISCAL:
Q. Kindly examine the said firearm and tell the Honorable Court
the relation of that firearm to the firearm which according to you
found inside the room allegedly occupied by one Bernie Mendoza?
A. This is the same rifle which was discovered during our raid in
the same house." (TSN, October 31, 1989, pp. 36-38, italics supplied)
The Solicitor General contends that the discrepancy is merely a
typographical error.
We do not think so. This glaring error goes into the substance of the
charge. Its correction or lack of it could spell the difference between
freedom and incarceration of the accused-appellant.
In crimes of illegal possession of firearm as in this case, the
prosecution has the burden to prove the existence of the firearm and
that the accused who possessed or owned the firearm does not have
the corresponding license for it. Since the gun as identified at the trial
differs from the gun described in the amended information, the corpus
delicti (the substance of the crime, the fact that a crime has actually
been committed) has not been fully established. This circumstance
coupled with dubious claims of appellant's connection to the house
(where the gun was found) have totally emasculated the prosecution's
case.
But even as We find for the accused-appellant, We, take exception to
the argument raised by the defense that the crime of subversion
absorbs the crime of illegal possession of firearm in furtherance of or
incident to or in connection with the crime of subversion. It appears
that the accused-appellant is facing a separate charge of subversion.
The defense submits that the trial court should have peremptorily
dismissed this case in view of the subversion charge. In People of the
Philippines v. Asuncion, et al., We set forth in no uncertain terms the
futility of such argument. We quote:
"If We are to espouse the theory of the respondents that force and
violence are the very essence of subversion, then it loses its
distinction from rebellion. In People v. Liwanag (G.R. No. 27683,
1976, 73 SCRA 473, 480 [1976])., the Court categorically
distinguished subversion from rebellion, and held:
'Violation of Republic Act No. 1700, or subversion, as it is more
commonly called, is a crime distinct from that of actual rebellion. The
crime of rebellion is committed by rising publicly and taking up arms
against the Government for any of the purposes specified in Article
134 of the Revised Penal Code; while the Anti-Subversion Act
(Republic Act No. 1700) punishes affiliation or membership in a
subversive organization as defined therein. In rebellion, there must he
a public uprising and taking of arms against the Government;
whereas, in subversion, mere membership in a subversive association
is sufficient and the taking up of arms by a member of a subversive
organization against the Government is but a circumstance which
raises the penalty to be imposed upon the offender.' (Italics supplied)
"Furthermore, in the case of Buscayno v. Military Commission (G.R.
58284, 109 SCRA 289 [1981]), this Court said that subversion, like
treason, is a crime against national security, while rebellion is a crime
against public order. Rising publicly and taking arms against the
Government is the very element of the crime of rebellion. On the
other hand, R.A. 1700 was enacted to outlaw the Communist Party of
the Philippines (CPP), other similar associations and its successors
because their existence and activities constitute a clear, present and
grave danger to national security.
"The first Whereas clause of R.A. 1700 states that the CPP is an
organized conspiracy to overthrow the Government, not only by force
and violence but also by deceit, subversion and other illegal means.
This is a recognition that subversive acts do not only constitute force
and violence (contrary to the arguments of private respondents), but
may partake of other forms as well. One may in fact be guilty of
subversion by authoring subversive materials, where force and
violence is neither necessary or indispensable." llcd
"Private respondents contended that the Court in Misolas v. Panga
impliedly ruled that if an accused is simultaneously charged with
violation of P.D. 1866 and subversion, the doctrine of absorption of
common crimes as applied in rebellion could have found application
therein. The respondents relied on the opinion of this Court when it
said:
' . . . in the present case, petitioner is being charged specifically for
the qualified offense of illegal possession of firearms and ammunition
under PD 1866. HE IS NOT BEING CHARGED WITH THE
COMPLEX CRIME OF SUBVERSION WITH ILLEGAL
POSSESSION OF FIREARMS. NEITHER IS HE BEING
SEPARATELY CHARGED FOR SUBVERSION AND FOR
ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings of the
Court in Hernandez, Geronimo and Rodriguez find no application in
this case.'
"This is however a mere obiter. In the above case, the Court upheld
the validity of the charge under the third paragraph of Section 1 of
P.D. 1866. The Court opined that the dictum in the Hernandez case is
not applicable in that case, considering that the legislature deemed it
fit to provide for two distinct offenses: (1) illegal possession of
firearms qualified by subversion (P.D. 1866 and (2) subversion
qualified by the taking up of arms against the Government (R.A.
1700). `The practical result of this may be harsh or it may pose grave
difficulty on an accused in instances similar to those that obtain in the
present case, but the wisdom of the legislature in the lawful exercise
of its power to enact laws is something that the Court cannot inquire
into . . . " (G.R. Nos. 83837-42, April 22, 1992)
Nonetheless, the evidence in hand is too weak to convict the accused-
appellant of the charge of illegal possession of firearm in furtherance
of, or incident to or in connection with the crime of subversion, We
are therefore, left with no option, but to acquit the accused on
reasonable doubt. ACCORDINGLY, the decision appealed from is
hereby REVERSED and the appellant is ACQUITTED with costs de
oficio.
SO ORDERED.
Griño-Aquino and Bellosillo, JJ ., concur.
Cruz, J., concurs.
SECOND DIVISION
[G.R. No. L-27968. December 3, 1975.]
JOSE G. LOPEZ and TOMAS VELASCO, petitioners, vs.
COMMISSIONER OF CUSTOMS, COLLECTOR OF
CUSTOMS OF DAVAO, CHAIRMAN OF THE ASAC,
ACTING DIRECTOR, NATIONAL BUREAU OF
INVESTIGATION, CITY FISCAL OF DAVAO, SENIOR NBI
AGENT OF DAVAO, EARL REYNOLDS, AND/OR ANY OF
THEIR AUTHORIZED REPRESENTATIVES, respondents.
A. Romero for petitioners.
Solicitor General Antonio P. Barredo, Assistant Solicitor General
Pacifico P. de Castro and Solicitor Augusto M. Amores for
respondents.
SYNOPSIS
Petitioner contended that the forfeiture of copra and coffee made by
the Collector of Customs was invalid because it was based on
documents and papers illegally seized by Government agents through
violence and intimidation. They claimed that the hotel room then
being rented by petitioner Tomas Velasco was raided without any
search warrant and in the absence at the time of said petitioner or any
other person, except one Teofila Ibañez, a mere manicurist.
Respondents, however, contended that there was consent, because
Teofila Ibañez who appeared to be the wife of Tomas Velasco, upon
being informed of the purpose of the search, invited the officers to
enter and search the hotel room and even voluntarily gave the
documents and things requested by the officers.
The Supreme Court held that the state policy of minimizing
smuggling must be carried out with due respect for constitutional
rights, and that whenever there is a showing that the safeguards of the
fundamental law are disregarded, then judicial redress is appropriate.
But such is not the case here. Even if Teofila Ibañez, who could be
aptly described as the wrong person, at the wrong place, and at the
wrong time, was not the legal wife of petitioner Tomas Velasco, the
officers of the law could not be blamed if they acted on the
appearances. There was a person inside who from all indications was
ready to accede to their request. Even common courtesy alone would
have precluded them from inquiring too closely as to why she was
there. Under all the circumstances, the Supreme Court concluded that
there was consent sufficient in law to dispense with the need for a
search warrant.
SYLLABUS
1. CONSTITUTIONAL LAW; SEARCH AND SEIZURE;
STEPS TAKEN BY ADMINISTRATIVE AUTHORITIES TO
MINIMIZE SMUGGLING MUST NOT CONFLICT WITH
CONSTITUTIONAL RIGHTS. — The Supreme Court,
understandably and appropriately in the decision of cases coming
before it, is called upon to act with due care to avoid putting obstacles
to the governmental policy to minimize if not to do away entirely,
with the evil and corruption that smuggling brings in its wake.
Nonetheless, the steps taken by administrative authorities to
implement such a laudable objective must not be repugnant to nor in
conflict with constitutional rights. To be more specific, when the
guarantee against unreasonable search and seizure is invoked, there is
need to scrutinize the facts rigorously to preclude any infringement
thereof.
2. ID.; ID.; SEARCH OR SEIZURE CANNOT BE
STIGMATIZED AS UNREASONABLE IF CONSENT BE
SHOWN. — There has been marked receptivity on the part of the
Supreme Court to claims based on the protection of the search and
seizure clause of the Constitution, whenever properly invoked.
However, it cannot admit of doubt that a search or seizure cannot be
stigmatized as unreasonable and thus offensive to the Constitution if
consent be shown. For this immunity from unwarranted intrusion is a
personal right which may be waived either expressly or impliedly.
3. ID.; ID.; A RENTED HOTEL ROOM IS WITHIN THE
CONSTITUTIONAL PROTECTION OF A GUARANTEE
INTENDED TO PROTECT ONE'S PRIVACY. — A hotel room
rented by a person is within the constitutional protection of a
guarantee intended to protect one's privacy. In such a place, the
insistence on being free from any unwelcome intrusion is likely to be
more marked.
4. ID.; ID.; CIRCUMSTANCES SHOWING EXISTENCE OF
CONSENT SUFFICIENT IN LAW TO DISPENSE WITH NEED
FOR A SEARCH WARRANT. — Where, at the time the government
agents entered and searched the hotel room then being rented by
petitioner, a woman who appeared to be the wife of petitioner was
inside the room, and, upon being informed of the purpose of the
search, invited the officers to enter and search the room and even
voluntarily gave the documents and things requested by the officers,
even if the said woman, who could be aptly described as the wrong
person, at the wrong place, at the wrong time, was not the wife of
petitioner, but a mere manicurist by occupation, the officers of the
law could not be blamed if they acted on the appearances. There was
a person inside who from all indications was ready to accede to their
request. Even common courtesy alone would have precluded them
from inquiring too closely as to why she was there. Under said
circumstances, there was consent sufficient in law to dispense with
the need for a search warrant.
D E C I S I O N
FERNANDO, J p:
This Court, understandably and appropriately in the decision of cases
coming before it, is called upon to act with due care to avoid putting
obstacles to the governmental policy "to minimize, if not to do away
entirely, with the evil and corruption that smuggling brings in its
wake . . ." 1 Nonetheless, the steps taken by administrative authorities
to implement such a laudable objective must not be repugnant to nor
in conflict with constitutional rights. To be more specific, when the
guarantee against unreasonable search and seizure is invoked, there is
a need to scrutinize the facts rigorously to preclude any infringement
thereof. In this special civil action for certiorari, prohibition and
mandamus which arose from the seizures made by the Collector of
Customs of Davao of 1,480 sacks of copra and 86 sacks of coffee
from the M/V motor vessel Jolo Lema, our decision of November 29,
1974 in Nasiad v. Court of Tax Appeals 2 made clear that there was
no failure to comply with the requirements of the law in effecting the
same. The seizure was therefore declared lawful by the Court of Tax
Appeals, and its decision was affirmed by us. 3 The only question left
then is whether the search conducted by a party headed by respondent
Earl Reynolds, Senior NBI Agent of Davao, 4 without the search
warrant for the hotel room of petitioner Tomas Velasco, who entered
into a contract with the other petitioner, Jose G. Lopez, the awardee
of such Philippine Reparations Commission vessel, for its operation
and use ostensibly for fishing, 5 is violative of such constitutional
provision. 6 The defense interposed by respondents is that there was
consent. A careful scrutiny of the pleadings reveals that such indeed
was the case. We find for respondents and dismiss the action.
The relevant facts as found in the aforesaid Nasiad decision read as
follows: "As noted in the appealed decision, the issue submitted 'for
resolution is the legality of the seizure made by the Collector of
Customs of Davao of the 1,408 sacks of copra and 86 sacks of coffee
allegedly owned by the petitioners.' Then came this portion:
'Petitioners claim that the 1,408 sacks of copra and 86 sacks of coffee
in question were purchased in Kiamba, Lumatin, and Lumasal, all in
the province of Cotabato, from a certain Osmeña Juanday. Petitioners
contend that, inasmuch as the said goods were not imported and of
foreign origin, they are not legally subject to seizure and forfeiture.
They likewise contend that the forfeiture made by the Collector of
Customs of Davao was invalid because the said forfeiture was based
on documents and papers which were illegally seized by agents of the
Government through violence and intimidation. Respondent denies
petitioners' claim. He contends that the evidence is sufficient to hold
that the goods in question came from Indonesia and subsequently
brought to the Philippines in violation of our laws and, therefore,
subject to forfeiture; and that the Indonesian documents and papers
allegedly secured illegally by the combined team of NBI, PC and
RASAC agents stationed in Davao, were in fact lawfully and validly
secured by them. Consequently, said documents and papers are
admissible in evidence in the forfeiture proceedings instituted
administratively by the Collector of Customs of Davao.' It was then
set forth: 'The voluminous [evidence] of record clearly show that M/V
[Jolo Lema] had been under strict surveillance by the combined team
of agents of the NBI, PC, RASAC, and City Police of Davao prior to
its apprehension at a private wharf in Batjak, Sasa, Davao City; that
the said M/V [Jolo Lema] was skippered (sic) by Capt. Aquilino
Pantinople and chartered by Mr. Tomas Velasco; during the period
from the latter part of August to September 18, 1966, the said vessel
was in Indonesian waters where it loaded copra and coffee beans
from Taruna, Pitta, and Mangenito, all of Indonesia . . .; that in its trip
to Indonesia it brought various merchandise from the Philippines
which were exchanged and/or bartered for copra and coffee beans and
subsequently taken to Davao City . . .; and that said vessel passed
Marore, Indonesia on September 18, 1966 on its a way to Tahuna,
Indonesia . . . before proceeding to Davao City where it was
apprehended on September 19, 1966.' Then came the reference to the
evidence and the testimonies of the witnesses of both parties, being
appraised by respondent Court, which did not find any ground to
discredit the finding of respondent Collector of Customs. As therein
pointed out: 'The evidence does not show any plausible motive for
respondent's witnesses to falsify the truth because they represent
different agencies of the government. From all appearances, they
have no personal interest whatsoever over the goods subject of the
forfeiture proceedings. Besides, petitioners have not adduced any
evidence showing that they were enemies of the witnesses for the
government. In short, no iota of evidence was ever presented by the
petitioners to destroy the integrity of the government witnesses and to
cast a cloud of doubt on their testimonies.' Also: 'The decision of the
Collector of Customs of Davao shows that a petitioner herein and at
the same time one of the claimants of the confiscated copra and
coffee beans, Mr. Ernesto Lozada, is the Officer-in-Charge of the
vessel M/V Jolo Lema. It is not surprising, therefore, that the
members of his crew repudiated their sworn statements given to
government agents.' Then, lastly: 'Moreover, petitioners failed to
explain satisfactorily, much less refute the vital testimony of Fiscal
Mariano Umali of the Department of Justice, Manila that the various
Indonesian documents . . . duly authenticated by the Indonesian
Consulate in Manila, show in clear detail that the vessel M/V Jolo
Lema was in Indonesia during the period from the latter part of
August to September 18, 1966, and that it loaded copra and coffee
beans therein before the said vessel returned to Davao City on
September 19, 1966. Petitioners' failure to successfully dispute or
destroy said testimony by competent and reliable evidence strongly
indicates that the copra and coffee beans in question were imported
from Indonesia.'" 7
On the question of the search of the hotel room, the petition alleged
that at about 3:00 o'clock in the afternoon of September 19, 1966,
when the vessel was searched, a combined team of Constabulary and
Regional Anti-Smuggling Center operatives headed by NBI agent
Earl Reynolds raided the hotel room then being rented by petitioner
Tomas Velasco without any search warrant and in the absence at the
time of such petitioner Tomas Velasco or the presence of any other
person, except one Teofila Ibañez, a mere manicurist of Davao City
by occupation, and "forcibly opened luggages and boxes from which
only several documents and papers were found, then seized,
confiscated and took away the same." 8 There was this refutation of
such allegation in the answer presented by respondents, represented
by the then Solicitor General, 9 now Associate Justice, Antonio P.
Barredo: "(a) After Captain Pantinople informed the team that
petitioner Tomas Velasco, the charterer of the vessel, had other
documents showing that vessel came from Indonesia carrying
smuggled copra and coffee, some members of the team proceeded to
the room of petitioner Velasco at the Skyroom Hotel in Davao City,
to ask for said documents; (b) Although petitioner Velasco was not
inside the hotel room, respondent Reynolds, after identifying himself
as a police officer and after explaining his purpose, was allowed to
enter the room by Mrs. Tomas Velasco who subsequently volunteered
to open the suitcases and baggages of petitioner Velasco and
delivered the documents and things contained therein to respondent
Reynolds; . . . (c) The said police team did not search the room;
neither did the members thereof forcibly open the luggages and boxes
nor seized and confiscated the documents and things contained
therein, since that was not necessary because . . . Mrs. Tomas Velasco
voluntarily opened the baggages and suitcases and gave their contents
of documents and things to respondent Reynolds. Such fact is also
established by the joint affidavit of PC Lt. Romeo Arceño, Angel
Huertas, Gregorio Esperancilla, Wilfredo G. Agcaoili, Patricio Barnes
and Lucero Cordero, a joint sworn statement of Antonio Bonotan,
Vicente Dubria, Alberto Morgady and Virgilio Humol; and another
affidavit of Pio Raganit and Winifredo Calamba, . . .." 10
Thus, as noted at the outset, petitioners are not entitled to the
remedies prayed for.
1. There has been marked receptivity on the part of this Court to
claims based on the protection of the search and seizure clause of the
Constitution, whenever properly invoked. So it was made clear from
the leading case of Alvarez v. Court of First Instance. 11 It has been
thus since then. 12 Such was the case likewise under previous organic
acts. 3 There is this succinct restatement of what is embraced in the
guarantee in the latest case of Lim v. Ponce de Leon, 14 with Justice
Martin as ponente: "There can be no question that without the proper
search warrant, no public official has the right to enter the premises of
another without his consent for the purpose of search and seizure." 15
It does not admit of doubt therefore that a search or seizure cannot be
stigmatized as unreasonable and thus offensive to the Constitution if
consent be shown. Such a view is implicit in People v. Malasugui. 16
For this immunity from unwarranted intrusion is a personal right
which may be waived either expressly or impliedly. 17
The crucial question then is whether in this instance there was
consent on the part of the person who was the occupant of the hotel
room then rented by petitioner Velasco. It cannot be contended that
such premises would be outside the constitutional protection of a
guarantee intended to protect one's privacy. It stands to reason that in
such a place, the insistence on being free from any unwelcome
intrusion is likely to be more marked. 18 Was there, however, consent
sufficient in law to dispense with the warrant? Respondents, as
previously noted, contend that there was such consent. They so
alleged in their answer. Their memorandum would stress it further in
these words: "Here the wife of petitioner Tomas Velasco, upon being
informed of the purpose of the search by the officers, invited them to
enter and search the hotel room and even voluntarily gave the
documents and things requested by said officers. This fact could be
gleaned from the following records of the two seizure cases involving
the vessel M/V Jolo Lema and its cargo of Indonesian copra and
coffee: (a) On September 19, 1966, Teofila Ibañez, wife of petitioner
Tomas Velasco, issued a written statement which states that — '. . . I
have voluntarily and freely allowed my husband's and my personal
belongings to be searched and freely gave the following items.' . . .
(b) On the same date, she; issued another certification which reads in
part, viz.: '. . . That I have voluntarily turned over for safekeeping and
verification the following.' . . . (c) Also on the same date, she issued
still another certification which reads partially, thus: '. . . that I have
freely and voluntarily allowed the search of my and my husband's
personal belongings and turn-over to the NBI of the following items.'
. . . (d) On October 13, 1966 the Davao City Police Department
issued a certification to the effect that the petitioner Tomas Velasco
never filed any 'report for robbery or other offenses . . . against any
member of the NBI or the PC during the period from September 19,
1966 to the present,' . . .." 19 Their memorandum likewise included
as an annex an affidavit from Benjamin Doronal Y. Yañez, the
assistant manager of the Skyroom Hotel. It was worded thus: "That on
September 19, 1966 at around 3:00 to 4:00 o'clock in the afternoon, a
joint NBI, PC and Davao City Police Commando Team conducted a
search on Room 220 of the Skyroom Hotel occupied by Mr. and Mrs.
Tomas Velasco; That before said search was conducted, [Teofila
Ibañez], the actual occupant of the room at the time, voluntarily
consented to the request of Atty. [Earl Reynolds] and Lt. [Romeo
Arceño] to search their room (Rm. 220) after the latter introduced
themselves by showing their respective identifications cards; That
during said search, upon the request of Atty. [Reynolds] and Lt.
[Arceño], [Teofila Ibañez] voluntarily opened her handbag which was
found to contain a .45 caliber pistol and likewise voluntarily opened
the maletas which were found to contain several papers and
documents; That receipts were duly issued to [Teofila Ibañez] which
accounted for everything taken from their room (Rm. No. 220) during
the search, including said .45 caliber pistol, papers and documents
and that nothing was lost; That [Teofila Ibañez] signed the receipts
and received copies thereof; That [Teofila Ibañez] and I were present
when the said search was being conducted; That said search was
conducted in a peaceful and orderly manner . . .." 20
There was an attempt on the part of petitioners to counteract the force
of the above recital by an affidavit of one Corazon Y. Velasco, 21
who stated that she is the legal wife of petitioner Tomas Velasco, and
another by such petitioner himself. 22 reiterating such a fact and that
the person who was present at his hotel room was one Teofila Ibañez,
"a manicurist by occupation." 23 Their effort appurtenant thereto is
doomed to failure. If such indeed were the case, then it is much more
easily understandable why that person, Teofila Ibañez, who could be
aptly described as the wrong person at the wrong place and at the
wrong time, would have signified her consent readily and
immediately. Under the circumstances, that was the most prudent
course of action. It would save her and even petitioner Velasco
himself from any gossip or innuendo. Nor could the officers of the
law be blamed if they would act on the appearances. There was a
person inside who from all indications was ready to accede to their
request. Even common courtesy alone would have precluded them
from inquiring too closely as to why she was there. Under all the
circumstances, therefore, it can readily be concluded that there was
consent sufficient in law to dispense with the need for a search
warrant. The petition cannot, therefore, prevail.
2. It was set forth at the outset that the state policy of
minimizing, if not doing away entirely with the festering sore of
smuggling must be carried out with due respect for constitutional
rights. It is a truism in law that a desirable end cannot be attained by
illegal means. Whenever there is a showing, therefore, that the
safeguards of the fundamental law are disregarded, more specifically
the guarantee against unreasonable search and seizure, then judicial
redress is appropriate. To repeat, such is not the case here. Moreover,
it may likewise be added that as previously mentioned in Nasiad v.
Court of Tax Appeals, 24 involving the very same occurrence, the
only difference being that the petitioners there were the importers of
the smuggled goods, this Court had affirmed the validity of the
seizure proceeding. No injustice can therefore be claimed by
petitioners.
WHEREFORE, the petition for certiorari, prohibition and mandamus
is dismissed. Costs against petitioners.
Antonio, Muñoz Palma, Aquino and Concepcion, Jr., JJ., concur.
Barredo, J., took no part.
FIRST DIVISION
[G.R. No. 136292. January 15, 2002.]
RUDY CABALLES y TAIÑO, petitioner, vs. COURT OF
APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
De Jesus Orioste & Lim for petitioner.
The Solicitor General for respondents.
SYNOPSIS
The Regional Trial Court of Santa Cruz, Laguna convicted petitioner
Rudy Caballes of the crime of theft for stealing aluminum cable
conductors worth P55,244.45 belonging to the National Power
Corporation. Accordingly, it sentenced petitioner to a prison term and
ordered him to indemnify private complainant. On appeal, the Court
of Appeals affirmed the judgment of conviction but deleted the award
of damages and modified the penalty imposed. STaAcC
Hence, this appeal by certiorari. Petitioner questioned the validity of
the warrantless search and seizure made by the police officers, and
the admissibility of the evidence obtained by virtue thereof.
The searches without warrant of moving vehicles is allowed provided
such searches are made at borders or 'constructive borders', like
checkpoints. The mere mobility of these vehicles, however, does not
give the police officers unlimited discretion to conduct indiscriminate
searches without warrants if made within the interior of the territory
and in the absence of probable cause. In the case at bar, the vehicle of
the petitioner was flagged down because the police officers who were
on routine patrol became suspicious when they saw that the back of
the vehicle was covered with kakawati leaves which, according to
them, was unusual and uncommon. The Court held that the fact that
the vehicle looked suspicious simply because it is not common for
such to be covered with kakawati leaves does not constitute "probable
cause'' as would justify the conduct of a search without a warrant. In
addition, the police authorities did not claim to have received any
confidential report or tipped information that petitioner was carrying
stolen cable wires in his vehicle, which could otherwise have
sustained their suspicion. Our jurisprudence is replete with cases
where tipped information has become a sufficient probable cause to
effect a warrantless search and seizure. Unfortunately, none exists in
this case. Furthermore, it cannot be said that the cable wires found in
petitioner's vehicle were in plain view, making its warrantless seizure
valid. It was clear from the records that the cable wires were not
exposed to sight because they were placed in sacks and covered by
kakawati leaves. The police officers even have to ask petitioner what
was loaded in his vehicle. Moreover, it was not established by clear
and positive proof that the petitioner consented to the search or
intentionally surrendered his right against unreasonable search. Thus,
the articles seized from petitioner could not be used as evidence
against him. For lack of evidence to establish his guilt, the Court
acquitted petitioner of the crime charged.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT
AGAINST UNREASONABLE SEARCHES AND SEIZURES;
EXCLUSIONARY RULE; BARS ADMISSION OF EVIDENCE
OBTAINED IN VIOLATION OF THE RIGHT; EXCEPTIONS. —
Enshrined in our Constitution is the inviolable right of the people to
be secure in their persons and properties against unreasonable
searches and seizures, as defined under Section 2, Article III thereof.
The exclusionary rule under Section 3(2), Article III of the
Constitution bars the admission of evidence obtained in violation of
such right. The constitutional proscription against warrantless
searches and seizures is not absolute but admits of certain exceptions,
namely: (1) warrantless search incidental to a lawful arrest recognized
under Section 12, Rule 126 of the Rules of Court and by prevailing
jurisprudence; (2) seizure of evidence in plain view; (3) search of
moving vehicles; (4) consented warrantless search; (5) customs
search; (6) stop and frisk situations (Terry search); and (7) exigent
and emergency circumstances.
2. REMEDIAL LAW; CRIMINAL PROCEDURE;
WARRANTLESS SEARCH AND SEIZURE; REASONABLENESS
OR UNREASONABLENESS OF SEARCH OR SEIZURE IS
PURELY A JUDICIAL QUESTION; CASE AT BAR. — In cases
where warrant is necessary, the steps prescribed by the Constitution
and reiterated in the Rules of Court must be complied with. In the
exceptional events where warrant is not necessary to effect a valid
search or seizure, or when the latter cannot be performed except
without a warrant, what constitutes a reasonable or unreasonable
search or seizure is purely a judicial question, determinable from the
uniqueness of the circumstances involved, including the purpose of
the search or seizure, the presence or absence of probable cause, the
manner in which the search and seizure was made, the place or thing
searched and the character of the articles procured.
3. ID.; ID.; WARRANTLESS SEARCH OF MOVING
VEHICLES; ALLOWED PROVIDED THE SAME WAS MADE AT
CONSTRUCTIVE BORDERS. — Highly regulated by the
government, the vehicle's inherent mobility reduces expectation of
privacy especially when its transit in public thoroughfares furnishes a
highly reasonable suspicion amounting to probable cause that the
occupant committed a criminal activity. Thus, the rules governing
search and seizure have over the years been steadily liberalized
whenever a moving vehicle is the object of the search on the basis of
practicality. This is so considering that before a warrant could be
obtained, the place, things and persons to be searched must be
described to the satisfaction of the issuing judge — a requirement
which borders on the impossible in the case of smuggling effected by
the use of a moving vehicle that can transport contraband from one
place to another with impunity. We might add that a warrantless
search of a moving vehicle is justified on the ground that it is not
practicable to secure a warrant because the vehicle can be quickly
moved out of the locality or jurisdiction in which the warrant must be
sought. Searches without warrant of automobiles is also allowed for
the purpose of preventing violations of smuggling or immigration
laws, provided such searches are made at borders or 'constructive
borders' like checkpoints near the boundary lines of the State.
ACaDTH
4. ID.; ID.; ID.; REQUIRES PROBABLE CAUSE;
EXISTENCE OF PROBABLE CAUSE NOT DETERMINED BY
FIXED FORMULA BUT IS RESOLVED ACCORDING TO THE
FACTS OF EACH CASE. — The mere mobility of these vehicles,
however, does not give the police officers unlimited discretion to
conduct indiscriminate searches without warrants if made within the
interior of the territory and in the absence of probable cause. Still and
all, the important thing is that there was probable cause to conduct the
warrantless search, which must still be present in such a case.
Although the term eludes exact definition, probable cause signifies 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; or the existence of such facts and circumstances which could
lead a reasonably discreet and prudent man to believe that an offense
has been committed and that the items, articles or objects sought in
connection with said offense or subject to seizure and destruction by
law is in the place to be searched. The required probable cause that
will justify a warrantless search and seizure is not determined by a
fixed formula but is resolved according to the facts of each case.
5. ID.; ID.; ID.; "STOP-AND-SEARCH" AT POLICE
CHECKPOINTS; NOT ILLEGAL PER SE; ROUTINE
INSPECTIONS; NOT VIOLATIVE OF RIGHT AGAINST
UNREASONABLE SEARCHES; LIMITATIONS; CASE AT BAR.
— One such form of search of moving vehicles is the "stop-and-
search" without warrant at military or police checkpoints which has
been declared to be not illegal per se, for as long as it is warranted by
the exigencies of public order and conducted in a way least intrusive
to motorists. A checkpoint may either be a mere routine inspection or
it may involve an extensive search. Routine inspections are not
regarded as violative of an individual's right against unreasonable
search. The search which is normally permissible in this instance 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. None of the
foregoing circumstances is obtaining in the case at bar. The police
officers did not merely conduct a visual search or visual inspection of
herein petitioner's vehicle. They had to reach inside the vehicle, lift
the kakawati leaves and look inside the sacks before they were able to
see the cable wires. It cannot be considered a simple routine check.
6. ID.; ID.; ID.; EXTENSIVE CHECK OF VEHICLE, WHEN
PERMISSIBLE. — In the case of United States vs. Pierre, the Court
held that the physical intrusion of a part of the body of an agent into
the vehicle goes beyond the area protected by the Fourth Amendment,
to wit: "The Agent . . . stuck his head through the driver's side
window. The agent thus effected a physical intrusion into the vehicle .
. . [W]e are aware of no case holding that an officer did not conduct a
search when he physically intruded part of his body into a space in
which the suspect had a reasonable expectation of privacy. [The]
Agent['s] . . . physical intrusion allowed him to see and to smell
things he could not see or smell from outside the vehicle . . . In doing
so, his inspection went beyond that portion of the vehicle which may
be viewed from outside the vehicle by either inquisitive passersby or
diligent police officers, and into the area protected by the Fourth
amendment, just as much as if he had stuck his head inside the open
window of a home." On the other hand, when a vehicle is stopped and
subjected to an extensive search, such a warrantless search would be
constitutionally permissible only if the officers conducting the search
have reasonable or probable cause to believe, before the search, that
either the motorist is a law-offender or they will find the
instrumentality or evidence pertaining to a crime in the vehicle to be
searched. 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) agents of the Narcotics Command
("Narcom") of the Philippine National Police ("PNP") had received a
confidential report from informers that a sizeable volume of
marijuana would be transported along the route where the search was
conducted; (3) Narcom agents had received information that a
Caucasian coming from Sagada, Mountain Province, had in his
possession prohibited drugs and when the Narcom agents confronted
the accused Caucasian, because of a conspicuous bulge in his
waistline, he failed to present his passport and other identification
papers when requested to do so; (4) Narcom agents 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. STcEIC
7. ID.; ID.; ID.; FACT THAT VEHICLE LOOKS SUSPICIOUS
DOES NOT CONSTITUTE PROBABLE CAUSE. — In the case at
bar, the vehicle of the petitioner was flagged down because the police
officers who were on routine patrol became suspicious when they saw
that the back of the vehicle was covered with kakawati leaves which,
according to them, was unusual and uncommon. We hold that the fact
that the vehicle looked suspicious simply because it is not common
for such to be covered with kakawati leaves does not constitute
"probable cause" as would justify the conduct of a search without a
warrant.
8. ID.; ID.; ID.; TIPPED INFORMATION; A SUFFICIENT
CAUSE TO EFFECT WARRANTLESS SEARCH AND SEIZURE.
— In People vs. Chua Ho San, we held that the fact that the
watercraft used by the accused was different in appearance from the
usual fishing boats that commonly cruise over the Bacnotan seas
coupled with the suspicious behavior of the accused when he
attempted to flee from the police authorities do not sufficiently
establish probable cause. In addition, the police authorities do not
claim to have received any confidential report or tipped information
that petitioner was carrying stolen cable wires in his vehicle which
could otherwise have sustained their suspicion. Our jurisprudence is
replete with cases where tipped information has become a sufficient
probable cause to effect a warrantless search and seizure.
Unfortunately, none exists in this case.
9. ID.; ID.; ID.; PLAIN VIEW DOCTRINE; OBJECT ITSELF
IS PLAINLY EXPOSED TO SIGHT; CASE AT BAR. — It cannot
likewise be said that the cable wires found in petitioner's vehicle were
in plain view, making its warrantless seizure valid. Jurisprudence is to
the effect that an object is in plain view if the object itself is plainly
exposed to sight. Where the object seized was inside a closed
package, the object itself is not in plain view and therefore cannot be
seized without a warrant. However, if the package proclaims its
contents, whether by its distinctive configuration, its transparency, or
if its contents are obvious to an observer, then the contents are in
plain view and may be seized. In other words, if the package is such
that an experienced observer could infer from its appearance that it
contains the prohibited article, then the article is deemed in plain
view. It must be immediately apparent to the police that the items that
they observe may be evidence of a crime, contraband or otherwise
subject to seizure. It is clear from the records of this case that the
cable wires were not exposed to sight because they were placed in
sacks and covered with leaves. The articles were neither transparent
nor immediately apparent to the police authorities. They had no clue
as to what was hidden underneath the leaves and branches. As a
matter of fact, they had to ask petitioner what was loaded in his
vehicle. In such a case, it has been held that the object is not in plain
view which could have justified mere seizure of the articles without
further search.
10. ID.; ID.; ID.; CONSENTED WARRANTLESS SEARCHES
AND SEIZURE; CONSENT MUST BE VOLUNTARY AND
MUST BE SHOWN BY CLEAR AND CONVINCING EVIDENCE;
BURDEN OF PROOF LIES ON THE STATE. — Doubtless, the
constitutional immunity against unreasonable searches and seizures is
a personal right which may be waived. The consent must be voluntary
in order to validate an otherwise illegal detention and search, i.e., the
consent is unequivocal, specific, and intelligently given,
uncontaminated by any duress or coercion. Hence, consent to a search
is not to be lightly inferred, but must be shown by clear and
convincing evidence. The question whether a consent to a 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 he was in a public or 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. It is the State
which has the burden of proving, by clear and positive testimony, that
the necessary consent was obtained and that it was freely and
voluntarily given. This Court is not unmindful of cases upholding the
validity of consented warrantless searches and seizure. But in these
cases, the police officers' request to search personnel effects was
orally articulated to the accused and in such language that left no
room for doubt that the latter fully understood what was requested. In
some instance, the accused even verbally replied to the request
demonstrating that he also understood the nature and consequences of
such request.
11. ID.; ID.; ID.; ID.; CASES UPHOLDING VALIDITY
THEREOF, CITED. — In Asuncion vs. Court of Appeals, the
apprehending officers sought the permission of petitioner to search
the car, to which the latter agreed. Petitioner therein himself freely
gave his consent to said search. In People vs. Lacerna, the appellants
who were riding in a taxi were stopped by two policemen who asked
permission to search the vehicle and the appellants readily agreed. In
upholding the validity of the consented search, the Court held that
appellant himself who was "urbanized in mannerism and speech
expressly said that he was consenting to the search as he allegedly
had nothing to hide and had done nothing wrong. In People vs.
Cuizon, the accused admitted that they signed a written permission
stating that they freely consented to the search of their luggage by the
NBI agents to determine if they were carrying shabu. In People vs.
Montilla, it was held that the accused spontaneously performed
affirmative acts of volition by himself opening the bag without being
forced or intimidated to do so, which acts should properly be
construed as a clear waiver of his right. In People vs. Omaweng, the
police officers asked the accused if they could see the contents of his
bag to which the accused said "you can see the contents but those are
only clothings." Then the policemen asked if they could open and see
it, and accused answered "you can see it." The Court said there was a
valid consented search. ScAaHE
12. ID.; ID.; ID.; ID.; WAIVER OF CONSTITUTIONAL
GUARANTEE AGAINST OBTRUSIVE SEARCHES;
REQUISITES; CONSENT GIVEN UNDER COERCIVE
CIRCUMSTANCES IS NO CONSENT WITHIN THE
CONSTITUTIONAL GUARANTEE; CASE AT BAR. — In case of
consented searches or waiver of the constitutional guarantee against
obtrusive searches, it is fundamental that to constitute a waiver, it
must first appear that (1) the right exists; (2) that the person involved
had knowledge, either actual or constructive, of the existence of such
right, and (3) the said person had an actual intention to relinquish the
right. In the case at bar, the evidence is lacking that the petitioner
intentionally surrendered his right against unreasonable searches. The
manner by which the two police officers allegedly obtained the
consent of petitioner for them to conduct the search leaves much to be
desired. When petitioner's vehicle was flagged down, Sgt. Noceja
approached petitioner and "told him I will look at the contents of his
vehicle and he answered in the positive." We are hard put to believe
that by uttering those words, the police officers were asking or
requesting for permission that they be allowed to search the vehicle of
petitioner. For all intents and purposes, they were informing, nay,
imposing upon herein petitioner that they will search his vehicle. The
"consent" given under intimidating or coercive circumstances is no
consent within the purview of the constitutional guaranty.
13. ID.; ID.; ID.; ID.; CONSENT OF ACCUSED TO BE
SEARCHED MUST BE ESTABLISHED BY CLEAR AND
POSITIVE PROOF. — In addition, in cases where this Court upheld
the validity of consented search, it will be noted that the police
authorities expressly asked, in no uncertain terms, for the consent of
the accused to be searched. And the consent of the accused was
established by clear and positive proof. In the case of herein
petitioner, the statements of the police officers were not asking for his
consent; they were declaring to him that they will look inside his
vehicle. Besides, it is doubtful whether permission was actually
requested and granted because when Sgt. Noceja was asked during
his direct examination what he did when the vehicle of petitioner
stopped, he answered that he removed the cover of the vehicle and
saw the aluminum wires. It was only after he was asked a
clarificatory question that he added that he told petitioner he will
inspect the vehicle. To our mind, this was more of an afterthought.
Likewise, when Pat. de Castro was asked twice in his direct
examination what they did when they stopped the jeepney, his
consistent answer was that they searched the vehicle. He never
testified that he asked petitioner for permission to conduct the search.
14. ID.; ID.; ID.; ID.; FAILURE OF ACCUSED TO OBJECT
NOT CONSTRUED AS IMPLIED ACQUIESCENCE TO THE
WARRANTLESS SEARCH. — Neither can petitioner's passive
submission be construed as an implied acquiescence to the
warrantless search. In People vs. Barros, appellant Barros, who was
carrying a carton box, boarded a bus where two policemen were
riding. The policemen inspected the carton and found marijuana
inside. When asked who owned the box, appellant denied ownership
of the box and failed to object to the search. The Court there struck
down the warrantless search as illegal and held that the accused is not
to be presumed to have waived the unlawful search conducted simply
because he failed to object, citing the ruling in the case of People vs.
Burgos, to wit: "As the constitutional guaranty is not dependent upon
any affirmative act of the citizen, the courts do not place the citizens
in the position of either contesting an officer's authority by force, or
waiving his constitutional rights; but instead they hold that a peaceful
submission to a search or seizure is not a consent or an invitation
thereto, but is merely a demonstration of regard for the supremacy of
the law."
D E C I S I O N
PUNO, J p:
This is an appeal by certiorari from the decision 1 of respondent
Court of Appeals dated September 15, 1998 which affirmed the
judgment rendered by the Regional Trial Court of Santa Cruz,
Laguna, finding herein petitioner, Rudy Caballes y Taiño, guilty
beyond reasonable doubt of the crime of theft, and the resolution 2
dated November 9, 1998 which denied petitioner's motion for
reconsideration. TcDaSI
In an Information 3 dated October 16, 1989, petitioner was charged
with the crime of theft committed as follows:
"That on or about the 28th day of June, 1989, in the Municipality of
Pagsanjan, and/or elsewhere in the Province of Laguna, and within
the jurisdiction of this Honorable Court, the above-named accused,
with intent of gain, and without the knowledge and consent of the
owner thereof, the NATIONAL POWER CORPORATION, did then
and there wilfully, unlawfully and feloniously take, steal and carry
away about 630-kg of Aluminum Cable Conductors, valued at
P27,450.00, belonging to and to the damage and prejudice of said
owner National Power Corp., in the aforesaid amount.
CONTRARY TO LAW."
During the arraignment, petitioner pleaded not guilty and hence, trial
on the merits ensued.
The facts are summarized by the appellate court as follows:
"[At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino Noceja and
Pat. Alex de Castro, while on a routine patrol in Barangay
Sampalucan, Pagsanjan, Laguna, spotted a passenger jeep unusually
covered with "kakawati" leaves.
Suspecting that the jeep was loaded with smuggled goods, the two
police officers flagged down the vehicle. The jeep was driven by
appellant. When asked what was loaded on the jeep, he did not
answer; he appeared pale and nervous.
With appellant's consent, the police officers checked the cargo and
they discovered bundles of 3.08 mm aluminum/galvanized conductor
wires exclusively owned by National Power Corporation (NPC). The
conductor wires weighed 700 kilos and valued at P55,244.45. Noceja
asked appellant where the wires came from and appellant answered
that they came from Cavinti, a town approximately 8 kilometers away
from Sampalucan. Thereafter, appellant and the vehicle with the high-
voltage wires were brought to the Pagsanjan Police Station. Danilo
Cabale took pictures of the appellant and the jeep loaded with the
wires which were turned over to the Police Station Commander of
Pagsanjan, Laguna. Appellant was incarcerated for 7 days in the
Municipal jail.
In defense, appellant interposed denial and alibi. He testified that he
is a driver and resident of Pagsanjan, Laguna; a NARCOM civilian
agent since January, 1988 although his identification card (ID) has
already expired. In the afternoon of June 28, 1989, while he was
driving a passenger jeepney, he was stopped by one Resty Fernandez
who requested him to transport in his jeepney conductor wires which
were in Cavinti, Laguna. He told Resty to wait until he had finished
his last trip for the day from Santa Cruz, Laguna. On his way to Santa
Cruz, Laguna, he dropped by the NARCOM headquarters and
informed his superior, Sgt. Callos, that something unlawful was going
to happen. Sgt. Callos advised him to proceed with the loading of the
wires and that the former would act as back-up and intercept the
vehicle at the Sambat Patrol Base in Pagsanjan.
After receiving those instructions, he went back to see Resty.
Although Resty had his own vehicle, its tires were old so the cable
wires were loaded in appellant's jeep and covered with kakawati
leaves. The loading was done by about five (5) masked men. He was
promised P1,000.00 for the job. Upon crossing a bridge, the two
vehicles separated but in his case, he was intercepted by Sgt. Noceja
and Pat. De Castro. When they discovered the cables, he told the
police officers that the cables were loaded in his jeep by the owner,
Resty Fernandez. But despite his explanation, he was ordered to
proceed to police headquarters where he was interrogated. The police
officers did not believe him and instead locked him up in jail for a
week." 4
On April 27, 1993, the court a quo rendered judgment 5 the
dispositive portion of which reads:
"WHEREFORE, finding the accused guilty beyond reasonable doubt
of the crime of Theft of property worth P55,244.45, the Court hereby
sentences him to suffer imprisonment from TWO (2) [YEARS],
FOUR (4) MONTHS, and ONE (1) DAY of Prision Correccional, as
minimum, to TEN (10) YEARS of Prision Mayor, as maximum, to
indemnify the complainant National Power Corporation in the amount
of P55,244.45, and to pay the costs."
On appeal, the Court of Appeals affirmed the judgment of conviction
but deleted the award for damages on the ground that the stolen
materials were recovered and modified the penalty imposed, to wit:
"WHEREFORE, the appealed decision is hereby AFFIRMED with
the modification that appellant RUDY CABALLES is found guilty
beyond reasonable doubt as principal in theft, defined and penalized
under Articles 308 and 309, par. 1, Revised Penal Code, and there
being no modifying circumstances, he is hereby meted an
indeterminate penalty of Four (4) years, Nine (9) months and Eleven
(11) days of prision correccional, as minimum term, to Eight (8)
years, Eight (8) months and one (1) day of prision mayor, as
maximum term. No civil indemnity and no costs." 6
Petitioner comes before us and raises the following issues:
"(a) Whether or not the constitutional right of petitioner was
violated when the police officers searched his vehicle and seized the
wires found therein without a search warrant and when samples of the
wires and references to them were admitted in evidence as basis for
his conviction;
(b) Whether or not respondent Court erred in rejecting petitioner's
defense that he was engaged in an entrapment operation and in
indulging in speculation and conjecture in rejecting said defense; and
(c) Whether or not the evidence of the prosecution failed to
establish the guilt of petitioner beyond reasonable doubt and thus
failed to overcome the constitutional right of petitioner to
presumption of innocence."
The conviction or acquittal of petitioner hinges primarily on the
validity of the warrantless search and seizure made by the police
officers, and the admissibility of the evidence obtained by virtue
thereof.
In holding that the warrantless search and seizure is valid, the trial
court ruled that:
"As his last straw of argument, the accused questions the
constitutionality of the search and validity of his arrest on the ground
that no warrant was issued to that effect. The Court cannot again
sustain such view. In the case of People v. Lo Ho [Wing], G.R. No.
88017, January 21, 1991, it has been held that 'considering that before
a warrant can be obtained, the place, things and persons to be
searched must be described to the satisfaction of the issuing judge —
a requirement which borders on the impossible in the case of
smuggling effected by the use of a moving vehicle that can transport
contraband from one place to another with impunity, a warrantless
search of a moving vehicle is justified on grounds of practicability.'
The doctrine is not of recent vintage. In the case of Valmonte vs. de
Villa, G.R. No. 83988, May 24, 1990 (Resolution on Motion for
Reconsideration, September 29, 1989), it was ruled that 'automobiles
because of their mobility may be searched without a warrant upon
facts not justifying warrantless search of a resident or office. . . . 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' (Ibid.). In Umil v. Ramos, 187 SCRA 311,
and People vs. Ortiz, 191 SCRA 836, the Supreme Court held that a
search may be made even without a warrant where the accused is
caught in flagrante. Under the circumstances, the police officers are
not only authorized but are also under obligation to arrest the accused
even without a warrant." 7
Petitioner contends that the flagging down of his vehicle by police
officers who were on routine patrol, merely on "suspicion" that "it
might contain smuggled goods," does not constitute probable cause
that will justify a warrantless search and seizure. He insists that,
contrary to the findings of the trial court as adopted by the appellate
court, he did not give any consent, express or implied, to the search of
the vehicle. Perforce, any evidence obtained in violation of his right
against unreasonable search and seizure shall be deemed
inadmissible.
Enshrined in our Constitution is the inviolable right of the people to
be secure in their persons and properties against unreasonable
searches and seizures, as defined under Section 2, Article III thereof,
which reads:
"Sec. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and
the persons or things to be seized."
The exclusionary rule under Section 3(2), Article III of the
Constitution bars the admission of evidence obtained in violation of
such right.
The constitutional proscription against warrantless searches and
seizures is not absolute but admits of certain exceptions, namely: (1)
warrantless search incidental to a lawful arrest recognized under
Section 12, Rule 126 of the Rules of Court and by prevailing
jurisprudence; 8 (2) seizure of evidence in plain view; 9 (3) search of
moving vehicles; 10 (4) consented warrantless search; 11 (5) customs
search; (6) stop and frisk situations (Terry search); 12 and (7) exigent
and emergency circumstances. 13
In cases where warrant is necessary, the steps prescribed by the
Constitution and reiterated in the Rules of Court must be complied
with. In the exceptional events where warrant is not necessary to
effect a valid search or seizure, or when the latter cannot be
performed except without a warrant, what constitutes a reasonable or
unreasonable search or seizure is purely a judicial question,
determinable from the uniqueness of the circumstances involved,
including the purpose of the search or seizure, the presence or
absence of probable cause, the manner in which the search and
seizure was made, the place or thing searched and the character of the
articles procured. 14
It is not controverted that the search and seizure conducted by the
police officers in the case at bar was not authorized by a search
warrant. The main issue is whether the evidence taken from the
warrantless search is admissible against the appellant. Without said
evidence, the prosecution cannot prove the guilt of the appellant
beyond reasonable doubt.
I. Search of 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. 15
Thus, the rules governing search and seizure have over the years been
steadily liberalized whenever a moving vehicle is the object of the
search on the basis of practicality. This is so considering that before a
warrant could be obtained, the place, things and persons to be
searched must be described to the satisfaction of the issuing judge —
a requirement which borders on the impossible in the case of
smuggling effected by the use of a moving vehicle that can transport
contraband from one place to another with impunity. We might add
that a warrantless search of a moving vehicle is justified on the
ground that it is not practicable to secure a warrant because the
vehicle can be quickly moved out of the locality or jurisdiction in
which the warrant must be sought. 16 Searches without warrant of
automobiles is also allowed for the purpose of preventing violations
of smuggling or immigration laws, provided such searches are made
at borders or 'constructive borders' like checkpoints near the boundary
lines of the State. 17
The mere mobility of these vehicles, however, does not give the
police officers unlimited discretion to conduct indiscriminate searches
without warrants if made within the interior of the territory and in the
absence of probable cause. 18 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.
Although the term eludes exact definition, probable cause signifies 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; or the existence of such facts and circumstances which could
lead a reasonably discreet and prudent man to believe that an offense
has been committed and that the items, articles or objects sought in
connection with said offense or subject to seizure and destruction by
law is in the place to be searched. 19 The required probable cause that
will justify a warrantless search and seizure is not determined by a
fixed formula but is resolved according to the facts of each case. 20
One such form of search of moving vehicles is the "stop-and-search"
without warrant at military or police checkpoints which has been
declared to be not illegal per se, 21 for as long as it is warranted by
the exigencies of public order 22 and conducted in a way least
intrusive to motorists. 23 A checkpoint may either be a mere routine
inspection or it may involve an extensive search.
Routine inspections are not regarded as violative of an individual's
right against unreasonable search. The search which is normally
permissible in this instance 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; 24 (2) simply looks into a
vehicle; 25 (3) flashes a light therein without opening the car's doors;
26 (4) where the occupants are not subjected to a physical or body
search; 27 (5) where the inspection of the vehicles is limited to a
visual search or visual inspection; 28 and (6) where the routine check
is conducted in a fixed area." 29
None of the foregoing circumstances is obtaining in the case at bar.
The police officers did not merely conduct a visual search or visual
inspection of herein petitioner's vehicle. They had to reach inside the
vehicle, lift the kakawati leaves and look inside the sacks before they
were able to see the cable wires. It cannot be considered a simple
routine check.
In the case of United States vs. Pierre, 30 the Court held that the
physical intrusion of a part of the body of an agent into the vehicle
goes beyond the area protected by the Fourth Amendment, to wit:
"The Agent . . . stuck his head through the driver's side window. The
agent thus effected a physical intrusion into the vehicle . . . [W]e are
aware of no case holding that an officer did not conduct a search
when he physically intruded part of his body into a space in which the
suspect had a reasonable expectation of privacy. [The] Agent[s] . . .
physical intrusion allowed him to see and to smell things he could not
see or smell from outside the vehicle . . . In doing so, his inspection
went beyond that portion of the vehicle which may be viewed from
outside the vehicle by either inquisitive passersby or diligent police
officers, and into the area protected by the Fourth amendment, just as
much as if he had stuck his head inside the open window of a home."
On the other hand, when a vehicle is stopped and subjected to an
extensive search, such a warrantless search would be constitutionally
permissible only if the officers conducting the search have reasonable
or probable cause to believe, before the search, that either the
motorist is a law-offender or they will find the instrumentality or
evidence pertaining to a crime in the vehicle to be searched. 31
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) agents of the Narcotics Command ("Narcom") of the
Philippine National Police ("PNP") had received a confidential report
from informers that a sizeable volume of marijuana would be
transported along the route where the search was conducted; (3)
Narcom agents had received information that a Caucasian coming
from Sagada, Mountain Province, had in his possession prohibited
drugs and when the Narcom agents confronted the accused
Caucasian, because of a conspicuous bulge in his waistline, he failed
to present his passport and other identification papers when requested
to do so; (4) Narcom agents had received confidential information
that a woman having the same physical appearance as that of the
accused would be transporting marijuana; 32 (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. 33
In the case at bar, the vehicle of the petitioner was flagged down
because the police officers who were on routine patrol became
suspicious when they saw that the back of the vehicle was covered
with kakawati leaves which, according to them, was unusual and
uncommon.
Pat. Alex de Castro recounted the incident as follows:
"ATTY. SANTOS
Q Now on said date and time do you remember of any unusual
incident while you were performing your duty?
A Yes, sir, at that time and date myself and Police Sgt. Noceja
were conducting patrol in the said place when we spotted a suspicious
jeepney so we stopped the jeepney and searched the load of the
jeepney and we found out (sic) these conductor wires.
Q You mentioned about the fact that when you saw the jeepney
you became suspicious, why did you become suspicious?
A Because the cargo was covered with leaves and branches, sir.
Q When you became suspicious upon seeing those leaves on top
of the load what did you do next, if any?
A We stopped the jeepney and searched the contents thereof,
sir." 34
The testimony of Victorino Noceja did not fare any better:
"ATTY. SANTOS
Q When you saw the accused driving the said vehicle, what did
you do?
A Because I saw that the vehicle being drawn by Caballes was
covered by kakawati leaves, I became suspicious since such vehicle
should not be covered by those and I flagged him, sir." 35
We hold that the fact that the vehicle looked suspicious simply
because it is not common for such to be covered with kakawati leaves
does not constitute "probable cause" as would justify the conduct of a
search without a warrant.
In People vs. Chua Ho San, 36 we held that the fact that the
watercraft used by the accused was different in appearance from the
usual fishing boats that commonly cruise over the Bacnotan seas
coupled with the suspicious behavior of the accused when he
attempted to flee from the police authorities do not sufficiently
establish probable cause. Thus:
"In the case at bar, the Solicitor General proposes that the following
details are suggestive of probable cause — persistent reports of
rampant smuggling of firearm and other contraband articles, CHUA's
watercraft differing in appearance from the usual fishing boats that
commonly cruise over the Bacnotan seas, CHUA's illegal entry into
the Philippines . . ., CHUA's suspicious behavior, i.e., he attempted to
flee when he saw the police authorities, and the apparent ease by
which CHUA can return to and navigate his speedboat with
immediate dispatch towards the high seas, beyond the reach of
Philippine laws.
This Court, however, finds that these do not constitute "probable
cause." None of the telltale clues, e.g., bag or package emanating the
pungent odor of marijuana or other prohibited drug, confidential
report and/or positive identification by informers of courier of
prohibited drug and/or the time and place where they will
transport/deliver the same, suspicious demeanor or behavior, and
suspicious bulge in the waist — accepted by this Court as sufficient to
justify a warrantless arrest exists in this case. There was no classified
information that a foreigner would disembark at Tammocalao beach
bearing prohibited drug on the date in question. CHUA was not
identified as a drug courier by a police informer or agent. The fact
that the vessel that ferried him to shore bore no resemblance to the
fishing boats of the area did not automatically mark him as in the
process of perpetrating an offense. . . .." (italics supplied)
In addition, the police authorities do not claim to have received any
confidential report or tipped information that petitioner was carrying
stolen cable wires in his vehicle which could otherwise have
sustained their suspicion. Our jurisprudence is replete with cases
where tipped information has become a sufficient probable cause to
effect a warrantless search and seizure. 37 Unfortunately, none exists
in this case.
II. Plain view doctrine
It cannot likewise be said that the cable wires found in petitioner's
vehicle were in plain view, making its warrantless seizure valid.
Jurisprudence is to the effect that an object is in plain view if the
object itself is plainly exposed to sight. Where the object seized was
inside a closed package, the object itself is not in plain view and
therefore cannot be seized without a warrant. However, if the package
proclaims its contents, whether by its distinctive configuration, its
transparency, or if its contents are obvious to an observer, then the
contents are in plain view and may be seized. In other words, if the
package is such that an experienced observer could infer from its
appearance that it contains the prohibited article, then the article is
deemed in plain view. It must be immediately apparent to the police
that the items that they observe may be evidence of a crime,
contraband or otherwise subject to seizure. 38
It is clear from the records of this case that the cable wires were not
exposed to sight because they were placed in sacks 39 and covered
with leaves. The articles were neither transparent nor immediately
apparent to the police authorities. They had no clue as to what was
hidden underneath the leaves and branches. As a matter of fact, they
had to ask petitioner what was loaded in his vehicle. In such a case, it
has been held that the object is not in plain view which could have
justified mere seizure of the articles without further search. 40
III. Consented search
Petitioner contends that the statement of Sgt. Victorino Noceja that he
checked the vehicle "with the consent of the accused" is too vague to
prove that petitioner consented to the search. He claims that there is
no specific statement as to how the consent was asked and how it was
given, nor the specific words spoken by petitioner indicating his
alleged "consent." At most, there was only an implied acquiescence, a
mere passive conformity, which is no "consent" at all within the
purview of the constitutional guarantee.
Doubtless, the constitutional immunity against unreasonable searches
and seizures is a personal right which may be waived. The consent
must be voluntary in order to validate an otherwise illegal detention
and search, i.e., the consent is unequivocal, specific, and intelligently
given, uncontaminated by any duress or coercion. 41 Hence, consent
to a search is not to be lightly inferred, but must be shown by clear
and convincing evidence. 42 The question whether a consent to a
search was in fact voluntary is a question of fact to be determined
from the totality of all the circumstances. 43 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 secluded location; (3)
whether he objected to the search or passively looked on; 44 (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; 45 (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. 46 It is the State which has the burden of proving, by
clear and positive testimony, that the necessary consent was obtained
and that it was freely and voluntarily given. 47
In the case at bar, Sgt. Victorino Noceja testified on the manner in
which the search was conducted in this wise:
"WITNESS
Q On June 28, 1989, where were you?
A We were conducting patrol at the poblacion and some
barangays, sir.
xxx xxx xxx
Q After conducting the patrol operation, do you remember of
any unusual incident on said date and time?
A Yes, sir.
Q What is that incident?
A While I was conducting my patrol at barangay Sampalucan, I
saw Rudy Caballes driving a vehicle and the vehicle contained
aluminum wires, sir.
xxx xxx xxx
Q When you saw the accused driving the said vehicle, what did
you do?
A Because I saw that the vehicle being driven by Caballes was
covered by kakawati leaves, I became suspicious since such vehicle
should not be covered by those and I flagged him, sir.
Q Did the vehicle stop?
A Yes, sir, and after said vehicle stop[ped], I removed the cover
of said vehicle and by so doing, I saw the aluminum wires.
Q Before you saw the aluminum wires, did you talk to the
accused?
A Yes, sir, I asked him what his load was.
Q What was the answer of Caballes?
A He did not answer and I observed him to be pale,
"nagpapamutla" (sic), so I told him I will look at the contents of his
vehicle and he answered in the positive.
Q And after you saw for yourself the aluminum wires loaded on
the jeep, what did you do?
A I asked him where those wires came from and he answered
those came from the Cavinti area, sir." 48
This Court is not unmindful of cases upholding the validity of
consented warrantless searches and seizure. But in these cases, the
police officers' request to search personnel effects was orally
articulated to the accused and in such language that left no room for
doubt that the latter fully understood what was requested. In some
instance, the accused even verbally replied to the request
demonstrating that he also understood the nature and consequences of
such request. 49
In Asuncion vs. Court of Appeals, 50 the apprehending officers
sought the permission of petitioner to search the car, to which the
latter agreed. Petitioner therein himself freely gave his consent to said
search. In People vs. Lacerna, 51 the appellants who were riding in a
taxi were stopped by two policemen who asked permission to search
the vehicle and the appellants readily agreed. In upholding the
validity of the consented search, the Court held that appellant himself
who was "urbanized in mannerism and speech" expressly said that he
was consenting to the search as he allegedly had nothing to hide and
had done nothing wrong. In People vs. Cuizon, 52 the accused
admitted that they signed a written permission stating that they freely
consented to the search of their luggage by the NBI agents to
determine if they were carrying shabu. In People vs. Montilla, 53 it
was held that the accused spontaneously performed affirmative acts
of volition by himself opening the bag without being forced or
intimidated to do so, which acts should properly be construed as a
clear waiver of his right. In People vs. Omaweng, 54 the police
officers asked the accused if they could see the contents of his bag to
which the accused said "you can see the contents but those are only
clothings." Then the policemen asked if they could open and see it,
and accused answered "you can see it." The Court said there was a
valid consented search.
In case of consented searches or waiver of the constitutional
guarantee against obtrusive searches, it is fundamental that to
constitute a waiver, it must first appear that (1) the right exists; (2)
that the person involved had knowledge, either actual or constructive,
of the existence of such right; and (3) the said person had an actual
intention to relinquish the right. 55
In the case at bar, the evidence is lacking that the petitioner
intentionally surrendered his right against unreasonable searches. The
manner by which the two police officers allegedly obtained the
consent of petitioner for them to conduct the search leaves much to be
desired. When petitioner's vehicle was flagged down, Sgt. Noceja
approached petitioner and "told him I will look at the contents of his
vehicle and he answered in the positive." We are hard put to believe
that by uttering those words, the police officers were asking or
requesting for permission that they be allowed to search the vehicle of
petitioner. For all intents and purposes, they were informing, nay,
imposing upon herein petitioner that they will search his vehicle. The
"consent" given under intimidating or coercive circumstances is no
consent within the purview of the constitutional guaranty. In addition,
in cases where this Court upheld the validity of consented search, it
will be noted that the police authorities expressly asked, in no
uncertain terms, for the consent of the accused to be searched. And
the consent of the accused was established by clear and positive
proof. In the case of herein petitioner, the statements of the police
officers were not asking for his consent; they were declaring to him
that they will look inside his vehicle. Besides, it is doubtful whether
permission was actually requested and granted because when Sgt.
Noceja was asked during his direct examination what he did when the
vehicle of petitioner stopped, he answered that he removed the cover
of the vehicle and saw the aluminum wires. It was only after he was
asked a clarificatory question that he added that he told petitioner he
will inspect the vehicle. To our mind, this was more of an
afterthought. Likewise, when Pat. de Castro was asked twice in his
direct examination what they did when they stopped the jeepney, his
consistent answer was that they searched the vehicle. He never
testified that he asked petitioner for permission to conduct the search.
56
Neither can petitioner's passive submission be construed as an
implied acquiescence to the warrantless search. In People vs. Barros,
57 appellant Barros, who was carrying a carton box, boarded a bus
where two policemen were riding. The policemen inspected the
carton and found marijuana inside. When asked who owned the box,
appellant denied ownership of the box and failed to object to the
search. The Court there struck down the warrantless search as illegal
and held that the accused is not to be presumed to have waived the
unlawful search conducted simply because he failed to object, citing
the ruling in the case of People vs. Burgos, 58 to wit:
"As the constitutional guaranty is not dependent upon any affirmative
act of the citizen, the courts do not place the citizens in the position of
either contesting an officer's authority by force, or waiving his
constitutional rights; but instead they hold that a peaceful submission
to a search or seizure is not a consent or an invitation thereto, but is
merely a demonstration of regard for the supremacy of the law."
Casting aside the cable wires as evidence, the remaining evidence on
record are insufficient to sustain petitioner's conviction. His guilt can
only be established without violating the constitutional right of the
accused against unreasonable search and seizure.
WHEREFORE, the impugned decision is REVERSED and SET
ASIDE, and accused Rudy Caballes is hereby ACQUITTED of the
crime charged. Cost de oficio. EDATSI
SO ORDERED.
Davide, Jr., C.J., Kapunan, Pardo and Ynares-Santiago, JJ., concur.
EN BANC
[G.R. No. 142531. October 15, 2002.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
DANILO ASIS y FONPERADA and GILBERT FORMENTO y
SARICON, accused-appellants.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellants.
SYNOPSIS
On the basis of the circumstantial evidence presented by the
prosecution, the trial court found appellants guilty of the complex
crime of robbery with homicide and sentenced each to suffer the
penalty of death. Hence, this automatic review of the case.
The Supreme Court ruled that the prosecution's evidence did not
prove the guilt of appellants beyond reasonable doubt; hence, their
constitutional right to be presumed innocent remains and must be
upheld. In criminal cases, the prosecution has the onus probandi of
establishing the guilt of the accused. The burden must be discharged
by the prosecution on the strength of its own evidence, not on the
weakness of that for the defense. Hence, circumstantial evidence that
has not been adequately established, much less corroborated, cannot
be the basis of conviction. Suspicion alone is insufficient, the required
quantum of evidence being proof beyond reasonable doubt. The Court
also ruled that to sustain a conviction for the complex crime of
robbery with homicide, which is primarily an offense against
property, it is essential that the robbery be proved beyond reasonable
doubt. Proof of the homicide alone is not sufficient to support a
conviction for the aforesaid complex crime. In robbery with homicide
cases, the prosecution needs to prove these elements: (a) that taking
of personal property is perpetrated by means of violence or
intimidation against person; (b) the property taken belongs to another;
(c) the taking is characterized by intent to gain or animus lucrandi;
and (d) on the occasion of the robbery or by reason thereof, the crime
of homicide — here used in its generic sense — is committed.
In the case at bar, the Court acquitted appellants because the
circumstances narrated by the prosecution engendered doubt rather
than moral certainty on their guilt. cHaCAS
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL
EVIDENCE; WHEN SUFFICIENT TO CONVICT ACCUSED. —
Certainly, it is not only by direct evidence that the accused may be
convicted of the crime charged. Circumstantial evidence is resorted to
when direct testimony would result in setting felons free and deny
proper protection to the community. The former is not a "weaker form
of evidence vis-à-vis the latter." The accused may be convicted on the
basis of circumstantial evidence, provided the proven circumstances
constitute an unbroken chain leading to one fair reasonable
conclusion pointing to the accused, to the exclusion of all others, as
the guilty person. "Circumstantial evidence is akin to a tapestry; it
should be made up of strands which create a pattern when
interwoven." This pattern should be reasonably consistent with the
hypothesis that the accused is guilty and at the same time totally
inconsistent with the proposition that he or she is innocent. The Rules
on Evidence allow conviction by means of circumstantial evidence as
follows: "SEC. 4. Circumstantial evidence, when sufficient. —
Circumstantial evidence is sufficient for conviction if: (a) There is
more than one circumstance; (b) The facts from which the inferences
are derived are proven; and (c) The combination of all the
circumstances is such as to produce a conviction beyond reasonable
doubt."
2. ID.; CRIMINAL PROCEDURE; OBJECTION INVOLVING
ARREST OR TRIAL COURT'S PROCEDURE OF ACQUIRING
JURISDICTION OVER THE PERSON OF THE ACCUSED MUST
BE MADE BEFORE ARRAIGNMENT. — Settled is the rule that
any objection involving the arrest or the trial court's procedure of
acquiring jurisdiction over the person of the accused must be made
before the arraignment; otherwise, the objection is deemed waived.
3. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF
RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND
SEIZURES; CANNOT BE WAIVED BY ANYONE EXCEPT THE
PERSON WHOSE RIGHTS ARE INVADED OR WHO IS
EXPRESSLY AUTHORIZED TO DO SO ON HIS BEHALF. —
Primarily, the constitutional right against unreasonable searches and
seizures, being a personal one, cannot be waived by anyone except
the person whose rights are invaded or who is expressly authorized to
do so on his or her behalf. In the present case, the testimonies of the
prosecution witnesses show that at the time the bloodstained pair of
shorts was recovered, Appellant Formento, together with his wife and
mother, was present. Being the very subject of the search, necessarily,
he himself should have given consent. Since he was physically
present, the waiver could not have come from any other person.
4. CRIMINAL LAW; ROBBERY WITH HOMICIDE;
ELEMENTS. — [I]n robbery with homicide cases, the prosecution
needs to prove these elements: (a) the taking of personal property is
perpetrated by means of violence or intimidation against a person; (b)
the property taken belongs to another; (c) the taking is characterized
by intent to gain or animus lucrandi; and (d) on the occasion of the
robbery or by reason thereof, the crime of homicide — here used in
its generic sense — is committed.
5. REMEDIAL LAW; EVIDENCE; BURDEN OF PROOF; IN
CRIMINAL CASES, THE PROSECUTION HAS ONUS
PROBANDI OF ESTABLISHING GUILT OF ACCUSED. — In
criminal cases, the prosecution has the onus probandi of establishing
the guilt of the accused. Ei incumbit probatio non qui negat. He who
asserts — not he who denies — must prove. The burden must be
discharged by the prosecution on the strength of its own evidence, not
on the weakness of that for the defense. Hence, circumstantial
evidence that has not been adequately established, much less
corroborated, cannot be the basis of conviction. Suspicion alone is
insufficient, the required quantum of evidence being proof beyond
reasonable doubt. Indeed, "the sea of suspicion has no shore, and the
court that embarks upon it is without rudder or compass."
6. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF
RIGHTS; ACCUSED'S RIGHT TO BE PRESUMED INNOCENT
UNTIL PROVEN GUILTY; CAN BE OVERTHROWN ONLY BY
PROOF BEYOND REASONABLE DOUBT. — It must be stressed
that in our criminal justice system, the overriding consideration is not
whether the court doubts the innocence of the accused, but whether it
entertains a reasonable doubt as to their guilt. Where there is no moral
certainty as to their guilt, they must be acquitted even though their
innocence may be questionable. The constitutional right to be
presumed innocent until proven guilty can be overthrown only by
proof beyond reasonable doubt.
D E C I S I O N
PANGANIBAN, J p:
Circumstantial evidence that merely arouses suspicions or gives room
for conjecture is not sufficient to convict. It must do more than just
raise the possibility, or even the probability, of guilt. It must engender
moral certainty. Otherwise, the constitutional presumption of
innocence prevails, and the accused deserves acquittal. CaASIc
The Case
For automatic review before this Court is the March 8, 2000 Decision
1 of the Regional Trial Court (RTC) of Manila (Branch 54) in
Criminal Case No. 98-163090, finding Danilo Asis y Fonperada and
Gilbert 2 Formento y Saricon guilty beyond reasonable doubt of
robbery with homicide aggravated by abuse of confidence, superior
strength and treachery. The decretal portion of the Decision reads as
follows:
"WHEREFORE, the two (2) accused are found guilty beyond
reasonable doubt of the crime of Robbery with Homicide with the
generic aggravating circumstances of abuse of confidence, superior
strength and treachery; and each is sentenced to death under Article
294, par. 1 of the Revised Penal Code; they are also ordered to jointly
and severally pay P100,000.00 as damages to the heirs of the victim."
3
Appellants were charged in an Information 4 dated February 18,
1998, worded as follows: 5
"That on or about February 10, 1998, in the City of Manila,
Philippines, the said accused, conspiring and confederating together
and mutually helping each other, did then and there wilfully,
unlawfully and feloniously, with intent to gain and by means of force
and violence upon person, to wit: by then and there stabbing one YU
HING GUAN @ ROY CHING with a bladed instrument on the
different parts of the body thereafter take, rob and carry away the
following, to wit:
Cash money in the amount of P20,000.00
one (1) wristwatch
one (1) gold necklace
and undetermined items
or all in the total amount of P20,000.00 more or less, belonging to
said YU HING GUAN @ ROY CHING against his will, to the
damage and prejudice of the said owner in the aforesaid amount more
or less of P20,000.00, Philippine Currency, and as a result thereof, he
sustained mortal stab wounds which were the direct and immediate
cause of his death." 6
When arraigned on July 9, 1998, both appellants pleaded not guilty. 7
Found to be deaf-mutes, they were assisted, not only by a counsel de
oficio, 8 but also by an interpreter from the Calvary Baptist Church.
After due trial, appellants were found guilty and sentenced to death.
The Facts
Version of the Prosecution
In its Brief, 9 the Office of the Solicitor General (OSG) detailed the
facts in the following manner:
"The prosecution presented nine (9) witnesses. Although none of
them had actually seen the crime committed, strong and substantial
circumstantial evidence abound linking beyond reasonable doubt both
appellants to the crime.
"As culled from the records, hereunder are the pertinent facts of the
case:
"George Huang, the nephew of the victim Yu Hing Guan a.k.a. Roy
Ching, always passes by the store of the victim at 1042 Benavidez
Street, Binondo, Manila to bring food stuff, ice and other things to his
uncle and mother, Diana Yu, who work[s] in the office of said store.
"On February 9, 1998, at around 6:30 o'clock in the morning, Huang
arrived at the victim's store and discovered that the steel door of the
store was locked from the outside. When he opened the steel door, he
found everything to be normal except for the inner door which had
always been left open but which was closed at that time with only a
chair blocking it.
"When he removed the blocking chair, he discovered the body of his
uncle, Yu Hing Guan a.k.a. Roy Ching (victim), lying prostrate on the
ground with a knife embedded on his nape. He closed the door and
proceeded to Luneta, where [his] mother exercises, to inform her of
what he saw. After informing [his] mother, Huang first went to the
Chinatown Police Station and reported the incident; thereafter, he
went to another station located in Soler corner Reina Regente to
report the incident again.
"Diana Yu, the sister of the victim, testified that on February 9, 1998,
before 8:30 o'clock in the evening, she was in the office of her brother
where she was working at 1042 Benavidez St., Binondo, Manila. She
saw the two appellants, namely: Danilo Asis and Gilbert Formento,
and her brother (the victim), who are all deaf-mutes, talking in sign
language. She testified that Danilo Asis frequented the office of the
victim, while Gilbert Formento came only on the night of February 9,
1998. At around 8:30 o'clock in the evening, she left the office,
leaving both appellants and the victim behind. The following
morning, at around 7:30 o'clock in the morning, her son, George
Huang, informed her of her brother's (victim's) death. Upon learning
of said incident, she went to the office where she saw her brother's
body. She discovered that the sales proceeds of the preceding day
were missing and the necklace of her brother (victim) which he
always wore was also missing.
"On re-direct examination, Diana testified that she suspected both
appellants, especially Gilbert Formento, to have perpetrated the crime
because of the fact that she saw the pair of shorts of the victim in the
bag of appellant Gilbert Formento.
"Jimmy Pagaduan testified that he was a helper in the Yu Hing Guan
Auto Supply for five years already. He saw the two appellants
everyday in the store of the victim. Furthermore, he testified that as
far as he knows, Danilo Asis owed the victim PhP3,000.00 and that
he saw a list thereof which the victim showed him. On February 9,
1998, he left the store at around 6:00 o'clock in the evening and he
saw both appellants conversing with the victim.
"SPO2 Pablo Ileto of WPD Homicide Section testified that on
February 11, 1998, he was at Barangay Sto. Ni[ñ]o, Hagunoy,
Bulacan together with Sgt. Napoleon Timbol, PO3 Luis Chico, and
witness, Diana Yu. The three (3) of them were trying to locate the
whereabouts of appellant Gilbert Formento in connection with the
death of Yu Hing Guan a.k.a. Roy Ching. They coordinated with the
Hagunoy Bulacan police and searched the area. Diana Yu saw Gilbert
Formento in a delivery truck and she pointed him to them. Thereafter,
they invited Gilbert Formento to their office at the WPD Homicide
Section. But before going to the WPD station, they first brought
Gilbert Formento to his house. Upon reaching the house, Diana Yu
asked from the wife of the suspect for the stolen money. However,
they could not understand each other, so the wife gave Diana Yu the
bag of Gilbert Formento where Diana Yu noticed the pair of shorts
which belonged to the victim. PO2 Ileto noticed what appears to be
blood stains on the pair of shorts.
"SPO1 Benito Cabatbat testified that he, together with SPO1 Alfredo
Opriasa, SPO1 Raul Olavario, the photographer SPO2 Tabio, and
fingerprint technician Domingo Daclan of the District Crime
Laboratory Division went to the crime scene to conduct the
investigation on February 10, 1998. Upon arriving at the scene, they
saw the victim lying prostrate on the ground, barefooted, and clad
only in brief.
"After photographing the victim, the team went upstairs where traces
of blood were seen on the second and third floors.
"During the course of investigation, SPO1 Cabatbat received a phone
call from a relative informing him that one of the suspects, appellant
Danilo Asis, went back to the scene of the crime. Afterwards, they
brought Danilo Asis to the police station for investigation, who
expectedly denied having anything to do with the killing of the
victim.
"During investigation (February 10, 1998), SPO1 Balatbat noticed
that there was a bloodstain in Asis' T-shirt.
"During the presentation of prosecution witness Dr. Olga Bausa, they
stipulated that the bloodstains found in the white t-shirt with a
lettering of 'Collorrific' and in the short pants were human blood." 10
(Citations omitted)
Version of the Defense
On the other hand, appellants' version of the facts is as follows: 11
"GILBERT FORMENTO is a deaf-mute who is one of the accused in
this case. He testified through sign interpreter, Mrs. Nelda Bahena.
On February 9, 1998 at about 11 am., he was in the house of Roy
Ching[.] They talked about things and events. When he left the house
of Ching he proceeded to Bulacan while Asis went to Luneta. He
denied having in possession of the clothes of Ching found with him in
Bulacan. A policeman met him in his house in Sto. Nino, Hagunoy,
Bulacan. They handcuffed him immediately. He was whipped for the
first time in his life. He was brought to Manila at Funeraria Paz. The
relatives of Roy Ching were pointing to him while he was being
whipped by the two policemen.
"NESTOR PAGLINAWAN is a friend of Danilo Asis. He is a vendor
who vends at the PICC area. He testified that accused-appellant
Danilo Asis occasionally help[s] him in vending by guarding his
selling items and preparing coffee. He communicated with accused-
appellant Asis through sign language. He had known Asis for five
years. On February 9, 1998, at about 10:00 p.m., Danilo Asis was
with him at the PICC. Accused-appellant Asis stayed with him until
7:00 am of the following day.
"DANILO ASIS is a deaf-mute and one of the accused in this case.
He testified through sign interpreters, Ms. Theta Figuerres and Mrs.
Nelda Bahena. Roy Ching was his friend since 1995. On February 9,
1998, he went to the store of Roy Ching because he was called by
Ching to help him in his store. When he arrived at Ching's store,
Gilbert Formento was there already. The three of them drank beer. He
left the store at 9:00 p.m., ahead of Gilbert Formento. He proceeded
to PICC to help his friend Nestor, a cigarette vendor.
"He denied killing Ching. When he went back to Roy Ching's store at
10 a.m. the following day, he felt depressed upon knowing that Roy
Ching was dead. He was arrested and incarcerated on that same day."
12 (Citations omitted)
Ruling of the Trial Court
The RTC held that the "crime charged and proved is robbery with
homicide under Article 294, No. 1 of the Revised Penal Code." 13 It
ruled that "although no witnesses to the actual killing and robbery
were presented, the circumstantial evidence including the recovery of
bloodstained clothing from both accused definitely proved that the
two (2) . . . committed the crime." 14 Finally, the RTC also
appreciated the aggravating circumstances of abuse of confidence,
superior strength and treachery and thus sentenced both appellants to
the supreme penalty of death.
Hence, this automatic review before us. 15
Issues
In their Brief, appellants fault the trial court with the following
assignment of errors:
"I
The trial court gravely erred in finding the accused-appellants guilty
beyond reasonable doubt of the crime of robbery with homicide
notwithstanding the insufficiency of the circumstantial evidence
presented by the prosecution.
"II
The trial court gravely erred in concluding that evident premeditation,
treachery and conspiracy attended the killing of Roy Ching.
"III
The trial court gravely erred in not considering the physical
infirmities of the two accused-appellants who are deaf-mutes." 16
The Court's Ruling
The appeal is meritorious. The prosecution's evidence does not prove
the guilt of appellants beyond reasonable doubt; hence, their
constitutional right to be presumed innocent remains and must be
upheld.
Main Issue:
Sufficiency of Prosecution Evidence
In the present appeal, two things stand out: first, there were no
eyewitnesses to the robbery or to the homicide; and second, none of
the items allegedly stolen were recovered or presented in evidence.
Appellants argue that, the pieces of circumstantial evidence submitted
by the prosecution are insufficient to prove their guilt beyond
reasonable doubt. The prosecution counters that these pieces of
evidence, taken together, necessarily lead to their conviction.
Certainly, it is not only by direct evidence that the accused may be
convicted of the crime charged. 17 Circumstantial evidence is
resorted to when direct testimony would result in setting felons free
and deny proper protection to the community. 18 The former is not a
"weaker form of evidence vis-à-vis the latter." 19 The accused may
be convicted on the basis of circumstantial evidence, provided the
proven circumstances constitute an unbroken chain leading to one fair
reasonable conclusion pointing to the accused, to the exclusion of all
others, as the guilty person. 20 "Circumstantial evidence is akin to a
tapestry; it should be made up of strands which create a pattern when
interwoven." 21 This pattern should be reasonably consistent with the
hypothesis that the accused is guilty and at the same time totally
inconsistent with the proposition that he or she is innocent. 22
The Rules on Evidence 23 allow conviction by means of
circumstantial evidence as follows:
"SEC. 4. Circumstantial evidence, when sufficient. —
Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven;
and
(c) The combination of all the circumstances is such as to produce
a conviction beyond reasonable doubt."
Bloodstained Trousers
The prosecution argues that the strongest piece of evidence damning
appellants is the victim's bloodstained pair of short pants recovered
from the bag of Gilbert Formento. It argues that since the trousers
were recovered from one of the appellants, then Rule 131 (j) of the
Revised Rules of Court should apply. The said provision is worded,
thus:
"Sec. 3. Disputable presumptions.
The following presumptions are satisfactory if uncontradicted, but
may be contradicted and overcome by other evidence:
xxx xxx xxx
(j) That a person found in possession of a thing taken in the doing
of a recent wrongful act is the taker and the doer of the whole act;
otherwise, that things which a person possesses, or exercises acts of
ownership over, are owned by him;" 24
We disagree. It escapes this Court how the recovery of a bloodstained
pair of shorts allegedly owned by the victim should give rise to the
presumption that one of the appellants was the "taker and doer of the
whole act" 25 of robbery with homicide. By itself, the retrieval of the
pair of shorts does not prove that appellants, or even just one of them,
robbed the trouser owner of cash and jewelry and also killed him, as
charged in the Information. Neither does it show that appellants, or
one of them, perpetrated the aggression leading to the victim's death.
Furthermore, the ownership of the pair of shorts was not definitively
determined. And even granting for the sake of argument that it indeed
belonged to the victim, still, there is no evidence to prove that it was
taken from him on the night of the homicide. Neither can it be ruled
out that he might have lent it or gave it to either one of the two. It was
neither extraordinary nor impossible for him to have allowed
Appellant Formento to use it, considering that they were friends, and
that they shared a commonality as deaf-mutes.
The OSG harps on the bloodstains found on the shorts. But as
testified to by the pathologist 26 who examined them, although the
origin was human blood, the blood grouping could not be determined.
27 Thus, its mere presence on the pair of shorts did not in any way
support the prosecution's theory linking appellants to the crime.
Evidence Is Inadmissible
In any event, appellants' argument of illegal search and seizure cannot
simply be brushed aside, considering the guarantee so sacredly
enshrined in our Constitution.
There is no question that appellants were collared without any arrest
warrant. Neither was there any valid search warrant obtained against
them. However, they never questioned the legality of their arrest
through a motion to quash the Information. Instead, they entered a
plea of not guilty and participated in the trial. Settled is the rule that
any objection involving the arrest or the trial court's procedure of
acquiring jurisdiction over the person of the accused must be made
before the arraignment; otherwise, the objection is deemed waived.
28
Indeed, appellants do not now question the legality of their arrest.
What they object to is the introduction of the bloodstained pair of
shorts allegedly recovered from the bag of Appellant Formento. They
argue that the search was illegally done, making the obtainment of the
pair of shorts illegal and taints them as inadmissible. The prosecution,
on the other hand, contends that it was the wife of appellant who
voluntarily surrendered the bag that contained the bloodstained
trousers of the victim. 29 Her act, it claims, constituted a valid
consent to the search without a warrant. 30
We clarify. Primarily, the constitutional right against unreasonable
searches and seizures, being a personal one, cannot be waived by
anyone except the person whose rights are invaded or who is
expressly authorized to do so on his or her behalf. 31 In the present
case, the testimonies of the prosecution witnesses show that at the
time the bloodstained pair of shorts was recovered, Appellant
Formento, together with his wife and mother, was present. Being the
very subject of the search, necessarily, he himself should have given
consent. Since he was physically present, the waiver could not have
come from any other person.
The OSG cites Lopez v. Commissioner of Customs, 32 which
validated a waiver of a warrantless search, when a woman thought to
be the wife of the accused — but who later turned out to be a
manicurist — surrendered to the police the papers belonging to the
appellant. The instant appeal, however, presents a different situation,
because here the accused himself was present when the search was
made. Hence, consent should have been obtained from or given by
him. In Lopez, the accused was not present when the search was
made; hence, the consent given by the occupant of the hotel room was
deemed the consent of the accused who was then renting the space.
The OSG's argument loses even more cogency when evaluated
against the well-settled principles on searches and seizures without
warrants.
To constitute a valid waiver, it must be shown that first, the right
exists; second, the person involved had knowledge, actual or
constructive, of the existence of such a right; and third, the person had
an actual intention to relinquish the right. 33 How could Appellant
Formento have consented to a warrantless search when, in the first
place, he did not understand what was happening at that moment?
The prosecution witnesses themselves testified that there was no
interpreter to assist him — a deaf-mute — during the arrest, search
and seizure. Naturally, it would seem that he indeed consented to the
warrantless search, as the prosecution would want this Court to
believe.
As early as 1938, Justice Jose P. Laurel pointed out in Pasion vda. de
Garcia v. Locsin:
"As the constitutional guaranty is not dependent upon any affirmative
act of the citizen, the courts do not place the citizen in the position of
either contesting an officer's authority by force, or waiving his
constitutional rights; but instead they hold that a peaceful submission
to a search or seizure is not a consent or an invitation thereto, but is
merely a demonstration of regard for the supremacy of the law." 34
This point becomes even more pronounced in the present case, in
which appellant is a deaf-mute, and there was no interpreter to
explain to him what was happening. His seeming acquiescence to the
search without a warrant may be attributed to plain and simple
confusion and ignorance.
Verily, "courts indulge every reasonable presumption against waiver
of fundamental constitutional rights and . . . we do not presume
acquiescence [to] the loss of fundamental rights." 35
Neither can the OSG claim that appellant's wife voluntarily
surrendered the bag that contained the bloodstained trousers of the
victim. 36 As admitted by Prosecution Witness PO2 Pablo Ileto, the
victim's sister and appellant's wife "cannot understand each other." 37
Eventually, appellant's wife gave the belongings of Gilbert Formento
where the bloodstained shorts of the victim were recovered. 38 How
can the surrender of appellant's belongings in this case be voluntary,
when the person surrendering them did not even understand the
person she was communicating with?
To be sure, the OSG cannot even use the argument that the search
was made by a private individual, the victim's sister, and thereby skirt
the issue of constitutional protection against unlawful searches by the
State.
The victim's sister herself testified against this argument as follows:
"ATTY. FONTANILLA
Q So Gilbert Formento was not wearing the alleged trouser[s]?
A The bag was given by his mother or his wife, sir.
Q To whom?
A To the policemen, sir.
Q And they searched this, is that right?
A Yes sir." 39
This testimony clearly forecloses the assertion that it was not the
police authorities who conducted the search. This testimony in fact
belies that of PO2 Pablo Ileto 40 that it was the prosecution witness
who was talking to appellant's wife, and who conducted the search
that yielded the bloodstained shortpants.
All told, the bloodstained pair of shorts was a piece of evidence
seized on the occasion of an unlawful search and seizure. Thus, it is
tainted and should thus be excluded for being the proverbial fruit of
the poisonous tree. 41 In the language of the fundamental law, it shall
be inadmissible in evidence for any purpose in any proceeding. 42
Bloodstained Shirt
The prosecution then contends that when the other appellant, Danilo
Asis, was brought to the police station for investigation the following
day, the police found bloodstain on his shirt.
Again, this fact cannot be taken as an indication of guilt on the part of
Appellant Asis. It does not point to the conclusion that he was
involved in the crime charged against him. We cannot agree that since
there was bloodstain on his clothing, ergo, he committed the robbery
and the attendant killing. At most, this piece of circumstantial
evidence, taken with the other one, may lead to suspicion. But courts
do not rely on circumstantial evidence that merely arouses suspicion
or conjecture. 43 For circumstantial evidence to lead to conviction, it
must do more than just raise the mere possibility or even probability
of guilt. 44 It must engender moral certainty.
Motive for the Crime
The prosecution then attempts to ascribe motive to appellants by
arguing that one of them, Appellant Asis, allegedly owed the victim
P6,070. 45
Indeed, motive becomes material when the evidence is circumstantial
or inconclusive, and there is some doubt on whether a crime has been
committed or whether the accused has committed it. 46 But the
prosecution's contention again fails, as the fact of indebtedness was
never conclusively established. According to the sister of the victim,
Asis still owed her brother the amount of P6,070. Yet, during the
testimony of the said appellant, it was shown that it was actually the
victim who had been indebted to the former. The prosecution, in fact,
uses this testimony of Asis to bolster its claim that he became
"madder and madder" at the victim. Coming from the prosecution
itself, this argument casts doubts on whether it was appellant who
owed the victim or the other way around.
The Public Attorney's Office, the defense counsel, correctly points
out that the victim himself had made the entries in his logbook which
served as bases for the prosecution's averment that appellant owed
him some amount. The sister, who was explaining the entries,
admitted that she had no personal knowledge thereof. More
important, their veracity was never established. Neither were the
erasures or scratches thereon sufficiently explained.
To show that there was sufficient motive to commit the crime
charged, the prosecution uses the testimony of Asis that he got
"madder and madder" at the victim. This statement is too speculative
to deserve serious consideration.
The Last Persons Seen
Talking with the Victim
It is also argued that appellants were the last persons seen with the
victim; ergo, the suspicion that they were the authors of the crime.
Admittedly, this circumstance may raise a speculation, but it is
insufficient to establish their guilt. As this Court has consistently
stressed, mere suspicions and speculations can never be the bases of
conviction in a criminal case. 47
Neither is the mere presence of appellants at the locus criminis
sufficient to implicate them. Their being at the store of the victim was
not unusual, as testified to by the witnesses. In fact, it was established
that he and appellants had known one another well, and that they had
regularly met at his store. Moreover, there was paucity of evidence
indicating that, other than appellants, no other person had or could
have had access to the store where he was robbed and killed.
As they themselves correctly observe, their complicity in the crime
becomes even more doubtful because, as testified to by his sister, the
neighbors heard shouts; these could not have come from deaf-mutes.
Furthermore, appellants question the non-presentation of the results
of the tests conducted on the fingerprints lifted from the crime scene.
Appellants Pointed
to Each Other?
Finally, we do not find any evidence that appellants indeed pointed to
one another as the author of the crime charged. In fact, even during
their cross-examination, neither of them specifically shifted the blame
to the other. When questioned by the public prosecutor, they even
denied having done so.
All told, to sustain a conviction for the complex crime of robbery
with homicide, which is primarily an offense against property, it is
essential that the robbery be proved beyond reasonable doubt. 48
Proof of the homicide alone is not sufficient to support a conviction
for the aforesaid complex crime. 49
Essential to robbery is the taking, with intent to gain, of personal
property belonging to another by means of violence or intimidation
against another person by the use of force upon things. There is
robbery with homicide when, by reason or on the occasion of a
robbery with the use of violence against or intimidation of persons,
homicide is also committed. 50
Accordingly, in robbery with homicide cases, the prosecution needs
to prove these elements: (a) the taking of personal property is
perpetrated by means of violence or intimidation against a person; (b)
the property taken belongs to another; (c) the taking is characterized
by intent to gain or animus lucrandi; and (d) on the occasion of the
robbery or by reason thereof, the crime of homicide — here used in
its generic sense — is committed. 51
Robbery Completely
Unsubstantiated
The prosecution tried its best to prove the crime of homicide, even if
unsuccessfully, but in the process, it left the crime of robbery totally
unsubstantiated.
More glaring is the fact that the Information charged appellants "as
conspiring and confederating together and mutually helping each
other." 52 Yet, the RTC Decision found them both guilty of the crime
charged without any pronouncement as to the presence of conspiracy.
To serve effectively as a basis for conviction, conspiracy must be
proved as convincingly as the criminal act itself. 53
Had the alleged conspiracy to commit the crime been established,
then the precise modality of each individual conspirator becomes
secondary. The applicable rule in conspiracy is that the act of one
shall be deemed to be the act of all. 54 The degree of actual
participation in the commission of the crime is immaterial. 55
However, since there was neither proof nor finding of conspiracy,
then the extent of the individual participation of each appellant should
have been clearly delineated.
In criminal cases, the prosecution has the onus probandi of
establishing the guilt of the accused. 56 Ei incumbit probatio non qui
negat. He who asserts — not he who denies — must prove. 57 The
burden must be discharged by the prosecution on the strength of its
own evidence, not on the weakness of that for the defense. 58 Hence,
circumstantial evidence that has not been adequately established,
much less corroborated, cannot be the basis of conviction. 59
Suspicion alone is insufficient, the required quantum of evidence
being proof beyond reasonable doubt. 60 Indeed, "the sea of suspicion
has no shore, and the court that embarks upon it is without rudder or
compass." 61
It must be stressed that in our criminal justice system, the overriding
consideration is not whether the court doubts the innocence of the
accused, but whether it entertains a reasonable doubt as to their guilt.
62 Where there is no moral certainty as to their guilt, they must be
acquitted even though their innocence may be questionable. The
constitutional right to be presumed innocent until proven guilty can
be overthrown only by proof beyond reasonable doubt. 63
In the final analysis, the circumstances narrated by the prosecution
engender doubt rather than moral certainty on the guilt of appellants.
In view of the above findings, we deem it unnecessary to deal with
the other issues raised by appellants.
WHEREFORE, the automatically appealed Decision of the Regional
Trial Court of Manila (Branch 54) in Criminal Case No. 98-163090 is
SET ASIDE. Danilo Asis and Gilbert Formento are ACQUITTED on
reasonable doubt, and ordered immediately RELEASED from
custody, unless they are being held for some other lawful cause.
The director of the Bureau of Corrections is ORDERED to implement
this Decision forthwith and to INFORM this Court, within five (5)
days from receipt hereof, of the date appellants were actually released
from confinement. Costs de oficio. IETCAS
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Sandoval-Gutierrez, Corona, Carpio-
Morales and Callejo, Sr., JJ., concur.
Bellosillo, Mendoza, Quisumbing, Ynares-Santiago, Carpio and
Austria-Martinez, JJ., are on official leave.
SECOND DIVISION
[G.R. No. 144037. September 26, 2003.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOEL
TUDTUD y PAYPA and DINDO BOLONG y NARET, accused-
appellants.
The Solicitor General for plaintiff-appellee.
Roberto Q. Canete for accused-appellant N. Tudtud.
Camilo F. Narava and Alejandro Cabal for accused-appellant D.
Bolong
SYNOPSIS
Appellants assailed before the Supreme Court the decision of the
Regional Trial Court of Davao City finding them guilty beyond
reasonable doubt of the crime of illegal possession of prohibited
drugs and sentenced to suffer imprisonment of reclusion perpetua.
Appellants contended that the marijuana leaves were seized in
violation of their right against unreasonable searches and seizures,
hence, inadmissible in evidence. aSHAIC
In acquitting the appellants, the Court held that the search of
appellants' box did not come under the recognized exceptions to a
valid warrantless search; hence, the marijuana leaves obtained
thereby were inadmissible in evidence. First, the arresting officers'
knowledge that appellant was in possession of marijuana cannot be
described as "personal" having learned the same only from their
informer, who in turn, obtained the information only from his
neighbors and the friends of appellant Tudtud. Hence, the information
was hearsay, not of personal knowledge. Second, appellants were
neither performing any overt act or acting in a suspicious manner that
would hint that a crime had been, was being, or was about to be,
committed. If the arresting officers' testimonies are to be believed,
appellants were merely helping each other carry a carton box.
Although appellant Tudtud did appear afraid and perspiring, pale and
trembling, this was only after, not before, he was asked to open the
box containing the marijuana leaves. Third, the arresting officers
were not impelled by any urgency that would allow them to do away
with the requisite warrant. Records showed that the police had ample
opportunity to apply for a warrant Fourth, there was no valid waiver
of rights against unreasonable searches and seizures. The fact that
appellant Tudtud did not resist, and opened the box himself when
requested to by the police officers, did not amount to permission to
the search. Appellant's implied acquiescence, if at all, could not have
been more than mere passive conformity given under coercive or
intimidating circumstances and was, thus, considered no consent at all
within the purview of the constitutional guarantee.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT
AGAINST UNREASONABLE SEARCHES AND SEIZURES;
EVIDENCE OBTAINED IN VIOLATION OF THE RIGHT IS
INADMISSIBLE IN EVIDENCE. — The right against unreasonable
searches and seizures is secured by Section 2, Article III of the
Constitution, which states: SEC. 2. The right of the people to be
secured 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 places to be searched and the persons or things to be
seized. The rule is that a search and seizure must be carried out
through or with a judicial warrant; otherwise, such search and seizure
becomes "unreasonable" within the meaning of. the above quoted
constitutional provision, and any evidence secured thereby, will be
inadmissible in evidence "for any purpose in any proceeding."
Section 3 (2), Article III of the Constitution explicitly provides: (2)
Any evidence obtained in violation of... the preceding section shall be
inadmissible for any purpose in any proceeding.
2 ID.; ID.; ID.; ID.; EXCEPTIONS. — The proscription in
Section 2, Article III, however, covers only "unreasonable" searches
and seizures. The following instances are not deemed "unreasonable"
even in the absence of a warrant: 1. Warrantless search incidental to a
lawful arrest. (Sec. 12, Rule 126 of the Rules of Court and prevailing
jurisprudence); 2. Search of evidence in "plain view." The elements
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 have the right to be where they are; (c) the evidence must be
immediately apparent; (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;
and 7. Exigent and emergency circumstances.
3. ID.; ID.; ID.; WAIVER OF THE RIGHT; REQUISITES TO
BE VALID; NOT ESTABLISHED IN CASE AT BAR.- Finally,
there is an effective waiver of rights against unreasonable searches
and seizures if the following requisites are present: 1. It must appear
that the rights exist; 2. The person involved had knowledge, actual or
constructive, of the existence of such right; 3. Said person had an
actual intention to relinquish the right. Here, the prosecution failed to
establish the second and third requisites. Records disclose that when
the police officers introduced themselves as such and requested
appellant that they see the contents of the carton box supposedly
containing the marijuana, appellant Tudtud said "it was alright." He
did not resist and opened the box himself.
4. ID.; ID.; ID.; ID.; FAILURE OF A PERSON TO OBJECT
TO A SEARCH DOES NOT AMOUNT TO PERMISSION
THERETO.— The fundamental law and jurisprudence require more
than the presence of these circumstances to constitute a valid waiver
of the constitutional right against unreasonable searches and seizures.
Courts indulge every reasonable presumption against waiver of
fundamental constitutional rights; acquiescence in the loss of
fundamental rights is not to be presumed. The fact that a person failed
to object to a search does not amount to permission thereto. ... As the
constitutional guaranty is not dependent upon any affirmative act of
the citizen, the courts do not place the citizen in the position of either
contesting an officer's authority by force, or waiving his constitutional
rights; but instead they hold that a peaceful submission to a search or
seizure is not a consent or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the law. Thus, even in
cases where the accused voluntarily handed her bag or the chairs
containing marijuana to the arresting officer, this Court held there
was no valid consent to the search.
5. ID.; ID.; ID.; ID.; ACCUSED'S LACK OF OBJECTION TO
SEARCH AND SEIZURE NOT TANTAMOUNT TO
VOLUNTARY SUBMISSION TO WARRANTLESS SEARCH
AND SEIZURE; CASE AT BAR.- Appellants' implied acquiescence,
if at all, could not have been more than mere passive conformity
given under coercive or intimidating circumstances and is, thus,
considered no consent at all within the purview of the constitutional
guarantee. Consequently, appellants' lack of objection to the search
and seizure is not tantamount to a waiver of his constitutional right or
a voluntary submission to the warrantless search and seizure. As the
search of appellants' box does not come under the recognized
exceptions to a valid warrantless search, the marijuana leaves
obtained thereby are inadmissible in evidence. And as there is no
evidence other than the hearsay testimony of the arresting officers and
their informant, the conviction of appellants cannot be sustained.
6. ID.; ID.; ID.; ELABORATED. — The Bill of Rights is the
bedrock of constitutional government. If people are stripped naked of
their rights as human beings, democracy cannot survive and
government becomes meaningless. This explains why the Bill of
Rights, contained as it is in Article III of the Constitution, occupies a
position of primacy in the fundamental law way above the articles on
governmental power. The right against unreasonable search and
seizure in turn is at the top of the hierarchy of rights, next only to, if
not on the same plane as, the right to life, liberty and property, which
is protected by the due process clause. This is as it should be for, as
stressed by a couple of noted freedom advocates, the right to personal
security which, along with the right to privacy, is the foundation of
the right against unreasonable search and seizure "includes the right
to exist, and the right to enjoyment of life while existing."
Emphasizing such right, this Court declared in People v. Aruta:
Unreasonable searches and seizures are the menace against which the
constitutional guarantees afford full protection. While the power to
search and seize may at times be necessary to the public welfare, still
it may be exercised and the law enforced without transgressing the
constitutional rights of the citizens, for the enforcement of no statute
is of sufficient importance to justify indifference to the basic
principles of government. 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 to pay for the loss of liberty.
As Justice Holmes declared: "1 think it is less evil that some
criminals escape than that the government should play an ignoble
part." It is simply not allowed in free society to violate a law to
enforce another, especially if the law violated is the Constitution
itself. Thus, given a choice between letting suspected criminals
escape or letting the government play an ignoble part, the answer, to
this Court, is clear and ineluctable.
7. REMEDIAL LAW; CRIMINAL PROCEDURE;
WARRANTLESS ARRESTS AND SEARCHES; A SEARCH
SUBSTANTIALLY CONTEMPORANEOUS WITH AN ARREST
CAN PRECEDE THE ARREST IF THE POLICE HAVE
PROBABLE CAUSE TO MAKE THE ARREST AT THE OUTSET
OF THE SEARCH.-- It is significant to note that the search in
question preceded the arrest. Recent jurisprudence holds that the
arrest must precede the search; the process cannot be reversed.
Nevertheless, a search substantially contemporaneous with an arrest
can precede the arrest if the police have probable cause to make the
arrest at the outset of the search. The question, therefore, is whether
the police in this case had probable cause to arrest appellants.
8 ID.; ID.; ID.; ID.; PROBABLE CAUSE; DEFINED.—
Probable cause has been defined as: an actual belief or reasonable
grounds of suspicion. The grounds of suspicion are reasonable when,
in the absence of actual belief of the arresting officers, the suspicion
that the person to be arrested is probably guilty of committing the
offense, is based on actual facts, i. e., supported by circumstances
sufficiently strong in themselves to create the probable cause of guilt
of the person to be arrested. A reasonable suspicion therefore must be
founded on probable cause, coupled with good faith of the peace
officers making the arrest.
9. ID.; ID.; ID.; RELIABLE INFORMATION ALONE
INSUFFICIENT TO JUSTIFY WARRANTLESS ARREST. — The
long-standing rule in this jurisdiction, applied with a great degree of
consistency, is that "reliable information" alone is not sufficient to
justify a warrantless arrest under Section 5 (a), Rule 113. The rule
requires, in addition, that the accused perform some overt act that
would indicate that he "has committed, is actually committing, or is
attempting to commit an offense."
10. ID.; ID.; ID.; ELEMENTS. — Personal knowledge was also
required in the case of People v. Doria. Recently, in People v. Binad
Sy Chua, this Court declared invalid the arrest of the accused, who
was walking towards a hotel clutching a sealed Zest-O juice box. For
the exception in Section 5 (a), Rule 113 to apply, this Court ruled,
two elements must concur: (1) the person to be arrested must execute
an overt act indicating he has just committed, is actually committing,
or is attempting to commit a crime; and (2) such overt act is done in
the presence or within the view of the arresting officer. Reliable
information alone is insufficient.
11. ID.; ID.; ID.; ID.; NOT PRESENT IN CASE AT BAR. —
Appellants in this case were neither performing any overt act or
acting in a suspicious manner that would hint that a crime has been,
was being, or was about to be, committed. If the arresting officers'
testimonies are to be believed, appellants were merely helping each
other carry a carton box. Although appellant Tudtud did appear
"afraid and perspiring," "pale" and "trembling," this was only after,
not before, he was asked to open the said box. In no sense can the
knowledge of the herein arresting officers that appellant Tudtud was
in possession of marijuana be described as "personal," having learned
the same only from their informant Solier. Solier, for his part,
testified that he obtained his information only from his neighbors and
the friends of appellant Tudtud: . . . In other words, Solier's
information itself is hearsay. He did not even elaborate on how his
neighbors or Tudtud's friends acquired their information that Tudtud
was responsible for the proliferation of drugs in their neighborhood.
Indeed, it appears that P01 Floreta himself doubted the reliablility of
their informant. The prosecution, on re-direct examination, did not
attempt to extract any explanation from POI Floreta for his telling
silence. Confronted with such a dubious informant, the police perhaps
felt it necessary to conduct their own "surveillance." This
"surveillance," it turns out, did not actually consist of staking out
appellant Tudtud to catch him in the act of plying his illegal trade, but
of a mere "gather[ing] of information from the assets there." The
police officers who conducted such "surveillance" did not identify
who these "assets" were or the basis of the latter's information.
Clearly, such information is also hearsay, not of personal knowledge.
12. ID.; ID.; ID.; MERE SUBJECTIVE CONCLUSIONS OF A
POLICE OFFICER CONCERNING THE EXISTENCE OF
PROBABLE CAUSE NOT BINDING ON THE COURTS —.Given
that the police had adequate time to obtain the warrant, P01 Floreta's
testimony that the real reason for their omission was their belief that
they lacked sufficient basis to obtain the same assumes greater
significance. It may be conceded that "the mere subjective
conclusions of a police officer concerning the existence of probable
cause is not binding on [the courts] which must independently
scrutinize the objective facts to determine the existence of probable
cause" and that "a court may also find probable cause in spite of an
officer's judgment that none exists." However, the fact that the
arresting officers felt that they did not have sufficient basis to obtain a
warrant, despite their own information-gathering efforts, raises
serious questions whether such "surveillance" actually yielded any
pertinent information and even whether they actually conducted any
information-gathering at all, thereby eroding any claim to personal
knowledge.
13. ID.; ID.; ID.; UNJUSTIFIED WHERE POLICE OFFICERS
HAVE AMPLE OPPORTUNITY TO PROCURE A WARRANT;
CASE AT BAR. —- Neither were the arresting officers impelled by
any urgency that would allow them to do away with the requisite
warrant, P01 Desierto's assertions of lack of time notwithstanding.
Records show that the police had ample opportunity to apply for a
warrant, having received Solier's information at around 9:00 in the
morning; Tudtud, however, was expected to arrive at around 6:00 in
the evening of the same day. In People v. Encinada, supra, the Court
ruled that there was sufficient time to procure a warrant where the
police officers received at 4:00 in the afternoon an intelligence report
that the accused, who was supposedly carrying marijuana, would
arrive the next morning at 7:00 a.m.:. . .
14. ID.; ID.; ID.; REGULARITY IN THE PERFORMANCE OF
OFFICIAL FUNCTION CANNOT BE INVOKED WHERE THE
WARRANTLESS ARREST IS IN DEROGATION OF A
CONSTITUTIONAL RIGHT. — On the other hand, because a
warrantless search is in derogation of a constitutional right, peace
officers who conduct it cannot invoke regularity in the performance
of official functions and shift to the accused the burden of proving
that the search was unconsented.
15. ID.; ID.; ID.; RULE THEREON STRICTLY CONSTRUED.
—Nevertheless, the great majority of cases conforms to the rule in
Burgos, which, in turn, more faithfully adheres to the letter of Section
5(a), Rule 113. Note the phrase "in his presence" therein, connoting
personal knowledge on the part of the arresting officer. The right of
the accused to be secure against any unreasonable searches on and
seizure of his own body and any deprivation of his liberty being a
most basic and fundamental one, the statute or rule that allows
exception to the requirement of a warrant of arrest is strictly
construed. Its application cannot be extended beyond the cases
specifically provided by law.
QUISUMBING, J., dissenting opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT
AGAINST UNREASONABLE SEARCHES AND SEIZURES;
EXCLUSIONARY RULE; EXCEPTION. — Section 2, Article III of
the Constitution, ordains that search and seizure must be carried out
through or on the strength of a judicial warrant, absent which such
search and seizure becomes "unreasonable" and that evidence secured
on the occasion of such an unreasonable search and seizure shall be
inadmissible in evidence for any purpose in any proceeding. But this
exclusionary rule is not, however, an absolute and rigid proscription.
Section 5(a), Rule 113 of the Rules of Court provides one such
exception where a peace officer or a private person may, without a
warrant, arrest a person when, in his presence, the person to be
arrested has committed, is actually committing, or is attempting to
commit an offense. In the case at hand. appellants were caught in
flagrante delicto, since they carrying marijuana at the time of their
arrest. A warrantless arrest, under this circumstance, is legitimate. It
also necessarily cloaks the arresting officer with authority to search
and seize from the offender contraband or prohibited material and
whatever may be used as proof of the offense being committed.
2. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH
AND SEIZURE; WARRANTLESS SEARCH AND SEIZURE;
REQUIRES PROBABLE CAUSE. — However, the instances of
permissible arrests set out in Section 5(a) of Rule 113, do not
dispense with the requisite probable cause before a warrantless search
and seizure can be lawfully conducted. In these cases, probable cause
must only be based on reasonable ground of suspicion or belief that a
crime has been committed or is about to be committed. The required
probable cause that will justify a warrantless search and seizure is not
determined by a fixed formula but is resolved according to the facts
of each case.
3. ID.; ID.; ID.; ID.; JUSTIFIED BY LACK OF MATERIAL
TIME TO APPLY FOR A SEARCH WARRANT. — The
warrantless search and seizure is further justified by lack of material
time to apply for a search warrant. Faced with such on-the-spot
information that Tudtud would arrive that same day with the
prohibited drugs, the law enforcers had to respond quickly. As often
said, it is necessary to adopt a realistic appreciation of the physical
and tactical problems of the police, instead of critically viewing them
from the placid and clinical environment of judicial chambers, if
courts of justice wish to be of understanding assistance to law
enforcement agencies in the fight against crime.
4. ID.; ID.; ID.; ID.; ILLEGAL DRUGS DISCOVERED AS A
RESULT OF CONSENTED SEARCH IS ADMISSIBLE IN
EVIDENCE —.Moreover, appellants consented to the search in this
case. This, to me, is established not merely from the words but the
actions taken hereon. When the officers approached appellants, they
formally introduced themselves as policemen. They inquired from
appellants about the contents of their luggage, and requested appellant
Tudtud to open the box. Although trembling, appellant Tudtud agreed
to the request. Neither did appellant Bolong resist the search. In
People vs. Cuizon, we held that illegal drugs discovered as a result of
consented search is admissible in evidence. And, in People vs.
Montilla, when an individual voluntarily submits to a search or
consents to have the same conducted upon his person or premises, he
is precluded from later complaining thereof.
5. ID.; EVIDENCE; CONSPIRACY; PRESENT IN CASE AT
BAR — The conspiracy to commit the offense between appellants
Noel Tudtud and Dindo Bolong clearly appears from the records.
They were apprehended at the same time. They alighted together
from the bus at the highway corner of Toril, Davao City. Appellant
Bolong was helping his co-appellant Tudtud carry the "King Flakes"
carton box, which contained what turned out to be a large quantity of
dried marijuana leaves covered by dried fish and concealed in plastic
and newspaper wrapper. These factors convince me that indeed the
two appellants had conspired together and helped each other in the
commission of the offense.
6. ID.; ID.; DEFENSE OF FRAME-UP; VIEWED WITH
DISFAVOR; CASE AT BAR. — As the trial court explained, the
frame-up angle in this case that appellants wish to peddle in their
defense does not inspire belief. Like alibi, the defense of frame-up is
viewed with disfavor, because it is easily concocted. It is a common
and standard line of defense in cases arising from violations of the
Dangerous Drugs Act. Appellant Tudtud's alibi that he came from
Kabacan, North Cotabato, where he sold Levis jeans, is
uncorroborated. In his memorandum, he referred to Exh. "F",
claiming that the apprehending officers had confiscated the six pants
then in his possession, although Exh. "F" refers to the entry in the
police blotter on the arrest of both appellants, with no mention of a
plastic bag containing 6 Levis jeans. In the same vein, the defense of
appellant Dindo Bolong, that he took the bus from Hagonoy, Davao
del Sur, after delivering invitations for his cousin's wedding, remains
a bare allegation that is not substantiated. The version of the incident
by the police officers, coming as it did from law enforcers presumed
to have regularly performed their duty in the absence of proof to the
contrary, and accepted as credible by the trial court, has not been
discredited at all by appellants who claimed a frame-up without
sufficient bases.
7. ID.; ID.; CREDIBILITY OF WITNESSES; TESTIMONY OF
POLICE INFORMANT IN AN ILLEGAL DRUG CASE MERELY
CUMULATIVE AND CORROBORATIVE OF THE
APPREHENDING OFFICERS' EYEWITNESS TESTIMONIES —
.Appellants next assail the credibility of the civilian informant,
witness Bobong Solier, on the ground that various informations and
complaints had been filed against him in the City Court and Regional
Trial Court of Davao City. But it should be stressed that witness
Solier's testimony is not essential for the conviction of the appellants.
Testimonies of the police informant in an illegal drug case is merely
cumulative and corroborative of the apprehending officers'
eyewitness testimonies. Moreover, Solier's tip-off was not the sole
basis for the police operation in this case as there was prior
surveillance conducted by the police. As it stands, Solier's testimony
merely buttressed the case for the prosecution.
8. ID.; ID.; ID.; TRIAL COURT'S EVALUATION THEREOF
ENTITLED TO GREAT RESPECT AND WILL NOT BE
DISTURBED ON APPEAL. — The investigative including
laboratory procedures adopted in this regard by Chief Inspector
Noemi Austero are being criticized by appellants. They lament that
the Duquenois' Levine Test conducted by Austero at the PNP Crime
Laboratory on the confiscated leaves was inconclusive in regard to
determining whether the confiscated items were indeed marijuana,
absent any confirmatory or other tests. However, nothing on record
effectively negate the finding of the trial court that the test was
regularly performed. The trial court's evaluation of the credibility of
witnesses and their testimonies is entitled to great respect and will not
be disturbed on appeal, unless there appears on record some facts of
weight and substance that have been overlooked, misapprehended, or
misapplied by the trial court.
9. CRIMINAL LAW; REPUBLIC ACT NO. 6425, AS
AMENDED; ILLEGAL POSSESSION OF MARIJUANA;
ELEMENTS; PRESENT IN CASE AT BAR.— The elements of
illegal possession of marijuana are: (a) the accused is in possession of
an item or object which is identified to be a prohibited drug; (b) such
possession is not authorized by law; and (c) the accused freely and
consciously possessed the said drug. The identity of either appellant
as a possessor of the seized marijuana leaves is not an issue. Both
were caught in flagrante delicto in a standard police operation. The
substance found in appellants' possession was identified after
laboratory analysis by Philippine National Police forensic chemist
Noemi Austero to be marijuana. Appellants' lack of authority to
possess these items was also established.
10. ID.; ID.; ID.; POSSESSION OF A PROHIBITED DRUG
PER SE CONSTITUTES PRIMA FACIE EVIDENCE OF
KNOWLEDGE OR ANIMUS POSSIDENDI SUFFICIENT TO
CONVICT AN ACCUSED ABSENT A SATISFACTORY
EXPLANATION OF SUCH POSSESSION; CASE AT BAR. —
Appellants' awareness of the prohibited drug's character is also
irrefutable. When stopped by the policemen, appellant Tudtud was
holding the plastic bag in one hand and a carton box in his other hand,
with appellant Bolong was helping him in carrying said box.
Irrefutably, appellants' animus possidendi existed together with the
possession or control of said articles. Recently, in People v. Tee, we
held that possession of a prohibited drug per se constitutes prima
facie evidence of knowledge or animus possidendi sufficient to
convict an accused absent a satisfactory explanation of such
possession. In effect, the onus probandi must be shifted to the accused
to explain the absence of knowledge or consciousness of the element
of possession of the contraband, i.e. his animus possidendi.
Appellants, in this case, have failed to discharge this exculpatory
burden.
11. ID.; ID.; ID.; IMPOSABLE PENALTY. — In sentencing both
appellants to reclusion perpetua and in imposing a fine of P500,000
upon each of them, the trial court was not in error but only enforcing
law and policy on prohibited and dangerous drugs. Under R.A. No.
6425 as amended by R.A. No. 7659, the penalty or reclusion perpetua
to death and a fine ranging from five hundred thousand pesos
(P500,000) to ten million pesos (P10,000,000) shall be imposed if the
quantity of marijuana involved in a conviction for possession of
marijuana or Indian hemp is 750 grams or more. In the present case,
the Chemistry Report submitted by forensic chemist Noemi Austero
states that the subject prohibited drugs were: "(a) Dried suspected
Marijuana fruiting tops weighing 3,200 grams contained in a "King
Flakes" box, and (b) Dried suspected Marijuana leaves weighing
890.0 grams contained in pink and white plastic bag." The quantity of
the confiscated marijuana as proved by the prosecution weighs more
than 4 kilos, much in excess of 750 grams cited, by the law as
baseline for the penalty involved. In the absence of any aggravating
or mitigating circumstance, the lower penalty of reclusion perpetua
should be properly imposed, in view of Art. 63 of the Revised Penal
Code. IEDHAT
D E C I S I O N
TINGA, J p:
. . . . It is desirable that criminals should be detected, and to that end
that all available evidence should be used. It also is desirable that the
government should not itself foster and 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 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.
EAHDac
So wrote Justice Oliver Wendell Holmes in Olmstead v. U.S. 1 On
this occasion, this Court is made to choose between letting suspected
criminals escape or letting the government play an ignoble part.
Sometime during the months of July and August 1999, the Toril
Police Station, Davao City received a report from a "civilian asset"
named Bobong Solier about a certain Noel Tudtud. 2 Solier related
that his neighbors have been complaining about Tudtud, who was
allegedly responsible for the proliferation of marijuana in their area. 3
Reacting to the report, PO1 Ronald Desierto, PO1 Ramil Floreta and
their superior, SPO1 Villalonghan, 4 all members of the Intelligence
Section of the Toril Police Station, conducted surveillance in Solier's
neighborhood in Sapa, Toril, Davao City. 5 For five days, they
gathered information and learned that Tudtud was involved in illegal
drugs. 6 According to his neighbors, Tudtud was engaged in selling
marijuana. 7
On August 1, 1999, Solier informed the police that Tudtud had
headed to Cotabato and would be back later that day with new stocks
of marijuana. 8 Solier described Tudtud as big-bodied and short, and
usually wore a hat. 9 At around 4:00 in the afternoon that same day, a
team composed of PO1 Desierto, PO1 Floreta and SPO1 Villalonghan
posted themselves at the corner of Saipon and McArthur Highway to
await Tudtud's arrival. 10 All wore civilian clothes. 11
About 8:00 later that evening, two men disembarked from a bus and
helped each other carry a carton 12 marked "King Flakes." 13
Standing some five feet away from the men, PO1 Desierto and PO1
Floreta observed that one of the men fit Tudtud's description. 14 The
same man also toted a plastic bag. 15
PO1 Floreta and PO1 Desierto then approached the suspects and
identified themselves as police officers. 16 PO1 Desierto informed
them that the police had received information that stocks of illegal
drugs would be arriving that night. 17 The man who resembled
Tudtud's description denied that he was carrying any drugs. 18 PO1
Desierto asked him if he could see the contents of the box. 19 Tudtud
obliged, saying, "it was alright." 20 Tudtud opened the box himself as
his companion looked on. 21
The box yielded pieces of dried fish, beneath which were two
bundles, one wrapped in a striped plastic bag 22 and another in
newspapers. 23 PO1 Desierto asked Tudtud to unwrap the packages.
24 They contained what seemed to the police officers as marijuana
leaves. 25
The police thus arrested Tudtud and his companion, informed them of
their rights and brought them to the police station. 26 The two did not
resist. 27
The confiscated items were turned over to the Philippine National
Police (PNP) Crime Laboratory for examination. 28 Forensic tests
conducted by Police Chief Inspector Noemi Austero, forensic chemist
of the PNP Crime Laboratory, Region XI, on specimens taken from
the confiscated items confirmed the police officers' suspicion. The
plastic bag contained 3,200 grams of marijuana leaves while the
newspapers contained another 890 grams. 29 Police Chief Inspector
Austero reduced her findings in her report, Physical Sciences Report
No. D-220-99 dated 2 August 1999. 30
Noel Tudtud and his companion, Dindo Bulong, were subsequently
charged 31 before the Regional Trial Court (RTC) of Davao City with
illegal possession of prohibited drugs. 32 Upon arraignment, both
accused pleaded not guilty. 33 The defense, however, reserved their
right to question the validity of their arrest and the seizure of the
evidence against them. 34
Trial ensued thereafter.
The prosecution presented five witnesses, namely, arresting officers
PO1 Desierto and PO1 Floreta, their civilian informant Bobong
Solier, forensic chemist Police Chief Inspector Noemi Austero, and
SPO3 Nicolas Algabre, exhibit custodian of the PNP Crime
Laboratory. Said witnesses testified to the foregoing narration of
facts. aHDTAI
The accused, denying the charges against them, cried frame-up.
Noel Tudtud recalled that on August 1, 1999 he had gone to Kabacan,
North Cotabato to sell pairs of Levi's pants, which was his "sideline."
35 At about 5:00 in the afternoon, he returned to Davao City by bus.
36 Upon reaching Toril, Tudtud, along with less than ten passengers,
got down the bus. 37
Suddenly, a man who identified himself as a police officer
approached him, pointing a .38 caliber revolver. 38 The man told him
not to run. 39 Tudtud raised his arms and asked, "Sir, what is this
about?" 40 The man answered that he would like to inspect the plastic
bag Tudtud was carrying, and instructed Tudtud to open the bag,
which revealed several pairs of Levi's pants. 41
The man then directed Tudtud to open a carton box some two meters
away. 42 According to Tudtud, the box was already there when he
disembarked the bus. 43 Tudtud told the man the box was not his, but
proceeded to open it out of fear after the man again pointed his
revolver at him. 44 Tudtud discovered pieces of dried fish,
underneath which was something wrapped in cellophane. 45
"What is that?" the man asked. 46 Tudtud replied that he did not
know. 47 Without even unwrapping the cellophane, the man said it
was marijuana and abruptly handcuffed Tudtud. 48
Simultaneously, another man was pointing a firearm at Dindo Bolong
at the other side of the street, some eight meters from Tudtud. 49
Bolong recounted that he was on his way to a relative in Daliao after
attending a cousin's wedding in Hagonoy, Davao del Sur when he was
accosted. 50 After alighting the bus, Bolong crossed the street. 51
Someone then approached him and pointed a gun at him. 52 The man
ordered him not to move and handcuffed him. 53 Bolong asked why
he was being arrested but the man just told him to go with them. 54
The suspects were then taken to the police station where, they would
later claim, they met each other for the first time. 55
Assailing the credibility of informant Bobong Solier, the defense
offered the testimonies of Felicia Julaton, 56 Branch 3 Clerk of Court,
Claudio Bohevia, 57 Branch 7 Clerk of Court, and Mercedita
Abunda, 58 Branch 9 Utility Clerk, all of the Davao City Municipal
Trial Circuit Court. They testified and presented court documents
showing that one "Bobo" or "Bobong" Ramirez was charged in their
respective branches with various crimes, specifically, light threats,
less serious physical injuries and robbery. The defense asserted that
the "Bobo" or "Bobong" Ramirez accused in these cases is the same
person as the informant Bobong Solier. 59
Swayed by the prosecution's evidence beyond reasonable doubt, the
RTC rendered judgment convicting both accused as charged and
sentencing them to suffer the penalty of reclusion perpetua and to pay
a fine of P500,000.00. 60
On appeal, Noel Tudtud and Dindo Bolong assign, among other
errors, the admission in evidence of the marijuana leaves, which they
claim were seized in violation of their right against unreasonable
searches and seizures.
The right against unreasonable searches and seizures is secured by
Section 2, Article III of the Constitution, which states:
SEC. 2. The right of the people to be secured 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 places to be searched
and the persons or things to be seized.
The rule is that a search and seizure must be carried out through or
with a judicial warrant; otherwise, such search and seizure becomes
"unreasonable" within the meaning of the above-quoted constitutional
provision, and any evidence secured thereby, will be inadmissible in
evidence "for any purpose in any proceeding." 61 Section 3 (2),
Article III of the Constitution explicitly provides:
(2) Any evidence obtained in violation of . . . the preceding
section shall be inadmissible for any purpose in any proceeding.
The proscription in Section 2, Article III, however, covers only
"unreasonable" searches and seizures. The following instances are not
deemed "unreasonable" even in the absence of a warrant:
1. Warrantless search incidental to a lawful arrest. (Sec. 12, Rule
126 of the Rules of Court and prevailing jurisprudence);
2. Search of evidence in "plain view." The elements 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 have the
right to be where they are; (c) the evidence must be immediately
apparent; (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; and
7. Exigent and emergency circumstances. 62
The RTC justified the warrantless search of appellants' belongings
under the first exception, as a search incident to a lawful arrest. It
cited as authorities this Court's rulings in People v. Claudio, 63
People v. Tangliben, 64 People v. Montilla, 65 and People v. Valdez.
66 The Office of the Solicitor General (OSG), in arguing for the
affirmance of the appealed decision, invokes the cases of People v.
Maspil, Jr., 67 People v. Malmstedt, 68 and People v. Bagista. 69
A search incidental to a lawful arrest is sanctioned by the Rules of
Court. Prior to its revision in 2000, Section 12, 70 Rule 126 of said
Rules read as follows:
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.
Section 5 (a), Rule 113 of the Rules, in turn, allows warrantless
arrests:
SEC. 5. Arrest without warrant; when lawful. — A peace
officer or a person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;
xxx xxx xxx
It is significant to note that the search in question preceded the arrest.
Recent jurisprudence holds that the arrest must precede the search;
the process cannot be reversed. 71 Nevertheless, a search
substantially contemporaneous with an arrest can precede the arrest if
the police have probable cause to make the arrest at the outset of the
search. 72 The question, therefore, is whether the police in this case
had probable cause to arrest appellants. Probable cause has been
defined as:
an actual belief or reasonable grounds of suspicion. The grounds of
suspicion are reasonable when, in the absence of actual belief of the
arresting officers, the suspicion that the person to be arrested is
probably guilty of committing the offense, is based on actual facts,
i.e., supported by circumstances sufficiently strong in themselves to
create the probable cause of guilt of the person to be arrested. A
reasonable suspicion therefore must be founded on probable cause,
coupled with good faith of the peace officers making the arrest. 73
The long-standing rule in this jurisdiction, applied with a great degree
of consistency, is that "reliable information" alone is not sufficient to
justify a warrantless arrest under Section 5 (a), Rule 113. The rule
requires, in addition, that the accused perform some overt act that
would indicate that he "has committed, is actually committing, or is
attempting to commit an offense."
In the leading case of People v. Burgos, 74 this Court held that "the
officer arresting a person who has just committed, is committing, or is
about to commit an offense must have personal knowledge of that
fact. The offense must also be committed in his presence or within his
view." 75 In Burgos, the authorities obtained information that the
accused had forcibly recruited one Cesar Masamlok as member of the
New People's Army, threatening the latter with a firearm. Upon
finding the accused, the arresting team searched his house and
discovered a gun as well as purportedly subversive documents. This
Court, in declaring then Section 6 (a), Rule 113 of the Rules of Court
inapplicable, ruled that:
There is no such personal knowledge in this case. Whatever
knowledge was possessed by the arresting officers, it came in its
entirety from the information furnished by Cesar Masamlok. The
location of the firearm was given by the appellant's wife.
At the time of the appellant's arrest, he was not in actual possession of
any firearm or subversive document. Neither was he committing any
act which could be described as subversive. He was, in fact, plowing
his field at the time of the arrest.
The right of a person to be secure against any unreasonable seizure of
his body and any deprivation of his liberty is a most basic and
fundamental one. The statute or rule which allows exceptions to the
requirement of warrants of arrest is strictly construed. Any exception
must clearly fall within the situations when securing a warrant would
be absurd or is manifestly unnecessary as provided by the Rule. We
cannot liberally construe the rule on arrests without warrant or extend
its application beyond the cases specifically provided by law. To do
so would infringe upon personal liberty and set back a basic right so
often violated and so deserving of full protection. 76
Consequently, the items seized were held inadmissible, having been
obtained in violation of the accused's constitutional rights against
unreasonable searches and seizures. AHCTEa
In People v. Aminnudin, 77 this Court likewise held the warrantless
arrest and subsequent search of appellant therein illegal, given the
following circumstances:
. . . 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 he 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 former 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. 78
Thus, notwithstanding tips from confidential informants and
regardless of the fact that the search yielded contraband, the mere act
of looking from side to side while holding one's abdomen, 79 or of
standing on a corner with one's eyes moving very fast, looking at
every person who came near, 80 does not justify warrantless arrest
under said Section 5 (a). Neither does putting something in one's
pocket, 81 handing over one's baggage, 82 riding a motorcycle, 83
nor does holding a bag on board a trisikad 84 sanction State intrusion.
The same rule applies to crossing the street per se. 85
Personal knowledge was also required in the case of People v. Doria.
86 Recently, in People v. Binad Sy Chua, 87 this Court declared
invalid the arrest of the accused, who was walking towards a hotel
clutching a sealed Zest-O juice box. For the exception in Section 5
(a), Rule 113 to apply, this Court ruled, two elements must concur:
(1) the person to be arrested must execute an overt act indicating he
has just committed, is actually committing, or is attempting to commit
a crime; and (2) such overt act is done in the presence or within the
view of the arresting officer. Reliable information alone is
insufficient.
In the following cases, the search was held to be incidental to a lawful
arrest because of "suspicious" circumstances: People v. Tangliben 88
(accused was "acting suspiciously"), People v. Malmstedt 89 (a bulge
on the accused's waist), and People v. de Guzman 90 (likewise a
bulge on the waist of the accused, who was wearing tight-fitting
clothes).
There is, however, another set of jurisprudence that deems "reliable
information" sufficient to justify a search incident to a warrantless
arrest under Section 5 (a), Rule 113, thus deviating from Burgos. To
this class of cases belong People v. Maspil, Jr., 91 People v. Bagista,
92 People v. Balingan, 93 People v. Lising, 94 People v. Montilla, 95
People v. Valdez, 96 and People v. Gonzales. 97 In these cases, the
arresting authorities were acting on information regarding an offense
but there were no overt acts or suspicious circumstances that would
indicate that the accused has committed, is actually committing, or is
attempting to commit the same. Significantly, these cases, except the
last two, come under some other exception to the rule against
warrantless searches. Thus, Maspil, Jr. involved a checkpoint search,
Balingan was a search of a moving vehicle, Bagista was both, and
Lising and Montilla were consented searches.
Nevertheless, the great majority of cases conforms to the rule in
Burgos, which, in turn, more faithfully adheres to the letter of Section
5(a), Rule 113. Note the phrase "in his presence" therein, connoting
personal knowledge on the part of the arresting officer. The right of
the accused to be secure against any unreasonable searches on and
seizure of his own body and any deprivation of his liberty being a
most basic and fundamental one, the statute or rule that allows
exception to the requirement of a warrant of arrest is strictly
construed. Its application cannot be extended beyond the cases
specifically provided by law. 98
The cases invoked by the RTC and the OSG are, therefore, gravely
misplaced. In Claudio, 99 the accused, who was seated aboard a bus
in front of the arresting officer, put her bag behind the latter, thus
arousing the latter's suspicion. In Tangliben and Malmstedt, the
accused had also acted suspiciously.
As noted earlier, Maspil, Jr., Bagista and Montilla were justified by
other exceptions to the rule against warrantless searches. Montilla,
moreover, was not without its critics. There, majority of the Court
held:
Appellant insists that the mere fact of seeing a person carrying a
traveling bag and a carton box should not elicit the slightest suspicion
of the commission of any crime since that is normal. But precisely, it
is in the ordinary nature of things that drugs being illegally
transported are necessarily hidden in containers and concealed from
view. Thus, the officers could reasonably assume, and not merely on
a hollow suspicion since the informant was by their side and had so
informed them, that the drugs were in appellant's luggage. It would
obviously have been irresponsible, if now downright absurd under the
circumstances, to require the constable to adopt a "wait and see"
attitude at the risk of eventually losing the quarry.
Here, there were sufficient facts antecedent to the search and seizure
that, at the point prior to the search were already constitutive of
probable cause, and which by themselves could properly create in the
minds of the officers a well-grounded and reasonable belief that
appellant was in the act of violating the law. The search yielded
affirmance both of that probable cause and the actuality that appellant
was then actually committing a crime by illegally transporting
prohibited drug. With these attendant facts, it is ineluctable that
appellant was caught in flagrante delicto, hence his arrest and the
search of his belongings without the requisite warrant were both
justified. 100
While concurring with the majority, Mr. Justice Vitug reserved his
vote on the discussion on the warrantless search being incidental to a
lawful arrest. Mr. Justice Panganiban, joined by Messrs. Justices
Melo and Puno, filed a Separate Opinion.
Although likewise concurring in the majority's ruling that appellant
consented to the inspection of his baggage, Justice Panganiban
disagreed with the conclusion that the warrantless search was
incidental to a lawful arrest. He argued that jurisprudence required
personal knowledge on the part of the officers making the in flagrante
delicto arrest. In Montilla, the appellant "did not exhibit any overt act
or strange conduct that would reasonably arouse in their minds
suspicion that he was embarking on some felonious enterprise."
Law and jurisprudence in fact require stricter grounds for valid arrests
and searches without warrant than for the issuance of warrants
therefore. In the former, the arresting person must have actually
witnessed the crime being committed or attempted by the person
sought to be arrested; or he must have personal knowledge of facts
indicating that the person to be arrested perpetrated the crime that had
just occurred. In the latter case, the judge simply determines
personally from testimonies of witnesses that there exists reasonable
grounds to believe that a crime was committed by the accused.
xxx xxx xxx
To say that "reliable tips" constitute probable cause for a warrantless
arrest or search is in my opinion, a dangerous precedent and places in
great jeopardy the doctrines laid down in many decisions made by
this Court, in its effort to zealously guard and protect the sacred
constitutional right against unreasonable arrests, searches and
seizures. Everyone would be practically at the mercy of so-called
informants, reminiscent of the makapilis during the Japanese
occupation. Any one whom they point out to a police officer as a
possible violator of the law could then be subject to search and
possible arrest. This is placing limitless power upon informants who
will no longer be required to affirm under oath their accusations, for
they can always delay their giving of tips in order to justify
warrantless arrests and searches. Even law enforcers can use this as
an oppressive tool to conduct searches without warrants, for they can
always claim that they received raw intelligence information only on
the day or afternoon before. This would clearly be a circumvention of
the legal requisites for validly effecting an arrest or conducting a
search and seizure. Indeed the majority's ruling would open loopholes
that would allow unreasonable arrests, searches and seizures. 101
Montilla would shortly find mention in Justice Panganiban's
concurring opinion in People v. Doria, supra, where this Court ruled:
Accused-Appellant Gaddao was arrested solely on the basis of the
alleged identification made by her co-accused. PO3 Manlangit,
however, declared in his direct examination that appellant Doria
named his co-accused in response to his (PO3 Manlangit's) query as
to where the marked money was. Appellant Doria did not point to
appellant Gaddao as his associate in the drug business, but as the
person with whom he left the marked bills. This identification does
not necessarily lead to the conclusion that appellant Gaddao
conspired with her co-accused in pushing drugs. Appellant Doria may
have left the money in her house, with or without any conspiracy.
Save for accused-appellant Doria's word, the Narcom agents had no
showing that the person who affected the warrantless arrest had, in his
own right, knowledge of facts implicating the person arrested to the
perpetration of a criminal offense, the arrest is legally objectionable.
102 [Italics in the original.]
Expressing his accord with Mr. Justice Puno's ponencia, Justice
Panganiban said that Doria "rightfully brings the Court back to well-
settled doctrines on warrantless arrests and searches, which have
seemingly been modified through an obiter in People v. Ruben
Montilla." 103
Montilla, therefore, has been seemingly discredited insofar as it
sanctions searches incidental to lawful arrest under similar
circumstances. At any rate, Montilla was a consented search. As will
be demonstrated later, the same could not be said of this case.
That leaves the prosecution with People v. Valdez, which, however,
involved an "on-the-spot information." The urgency of the
circumstances, an element not present in this case, prevented the
arresting officer therein from obtaining a warrant. HASTCa
Appellants in this case were neither performing any overt act or
acting in a suspicious manner that would hint that a crime has been,
was being, or was about to be, committed. If the arresting officers'
testimonies are to be believed, appellants were merely helping each
other carry a carton box. Although appellant Tudtud did appear
"afraid and perspiring," 104 "pale" 105 and "trembling," 106 this was
only after, not before, he was asked to open the said box.
In no sense can the knowledge of the herein arresting officers that
appellant Tudtud was in possession of marijuana be described as
"personal," having learned the same only from their informant Solier.
Solier, for his part, testified that he obtained his information only
from his neighbors and the friends of appellant Tudtud:
Q — What was your basis in your report to the police that Tudtud is
going to Cotabato and get stocks of marijuana?
A — Because of the protest of my neighbors who were saying who
will be the person whou [sic] would point to him because he had been
giving trouble to the neighborhood because according to them there
are [sic] proliferation of marijuana in our place. That was the
complained [sic] of our neighbors.
Q — Insofar as the accused Tudtud is concerned what was your
basis in reporting him particularly?
A — His friends were the once who told me about it.
Q — For how long have you know [sic] this fact of alleged activity
of Tudtud in proliferation of marijuana?
A — About a month.
xxx xxx xxx
Q — Regarding the report that Tudtud went to Cotabato to get
stocks of marijuana which led to his apprehension sometime in the
evening of August 1 and according to the report [which] is based on
your report my question is, how did you know that Tudtud will be
bringing along with him marijuana stocks on August 1, 1999?
xxx xxx xxx
A — Because of the information of his neighbor. 107
In other words, Solier's information itself is hearsay. He did not even
elaborate on how his neighbors or Tudtud's friends acquired their
information that Tudtud was responsible for the proliferation of drugs
in their neighborhood.
Indeed, it appears that PO1 Floreta himself doubted the reliability of
their informant. He testified on cross-examination:
Q — You mean to say that Bobot Solier, is not reliable?
A — He is trustworthy.
Q — Why [did] you not consider his information not reliable if he
is reliable?
A — (witness did not answer).
ATTY. CAÑETE:
Never mind, do not answer anymore. That's all. 108
The prosecution, on re-direct examination, did not attempt to extract
any explanation from PO1 Floreta for his telling silence.
Confronted with such a dubious informant, the police perhaps felt it
necessary to conduct their own "surveillance." This "surveillance," it
turns out, did not actually consist of staking out appellant Tudtud to
catch him in the act of plying his illegal trade, but of a mere
"gather[ing] of information from the assets there." 109 The police
officers who conducted such "surveillance" did not identify who these
"assets" were or the basis of the latter's information. Clearly, such
information is also hearsay, not of personal knowledge.
Neither were the arresting officers impelled by any urgency that
would allow them to do away with the requisite warrant, PO1
Desierto's assertions of lack of time 110 notwithstanding. Records
show that the police had ample opportunity to apply for a warrant,
having received Solier's information at around 9:00 in the morning;
Tudtud, however, was expected to arrive at around 6:00 in the
evening of the same day. 111 In People v. Encinada, supra, the Court
ruled that there was sufficient time to procure a warrant where the
police officers received at 4:00 in the afternoon an intelligence report
that the accused, who was supposedly carrying marijuana, would
arrive the next morning at 7:00 a.m.:
Even if the information was received by Bolonia about 4:00 p.m. of
May 20, 1992 at his house, there was sufficient time to secure a
warrant of arrest, as the M/V Sweet Pearl was not expected to dock
until 7:00 a.m. the following day. Administrative Circular No. 13
allows application for search warrants even after office hours:
"3. Raffling shall be strictly enforced, except only in case where
an application for search warrant may be filed directly with any judge
whose jurisdiction the place to be searched is located, after office
hours, or during Saturdays, Sundays, and legal holidays, in which
case the applicant is required to certify under oath the urgency of the
issuance thereof after office hours, or during Saturdays, Sundays and
legal holidays;" . . . .
The same procedural dispatch finds validation and reiteration in
Circular No. 19, series of 1987, entitled "Amended Guidelines and
Procedures on Application for search warrants for Illegal Possession
of Firearms and Other Serious Crimes Filed in Metro Manila Courts
and Other Courts with Multiple Salas":
"This Court has received reports of delay while awaiting raffle, in
acting on applications for search warrants in the campaign against
loose firearms and other serious crimes affecting peace and order.
There is a need for prompt action on such applications for search
warrant. Accordingly, these amended guidelines in the issuance of a
search warrant are issued:
1. All applications for search warrants relating to violation of the
Anti-subversion Act, crimes against public order as defined in the
Revised Penal Code, as amended, illegal possession of firearms
and/or ammunition and violations of the Dangerous Drugs Act of
1972, as amended, shall no longer be raffled and shall immediately be
taken cognizance of and acted upon by the Executive Judge of the
Regional Trial Court, Metropolitan Trial Court, and Municipal Trial
Court under whose jurisdiction the place to be searched is located.
2. In the absence of the Executive Judge, the Vice-Executive
Judge shall take cognizance of and personally act on the same. In the
absence of the Executive judge or Vice-Executive judge, the
application may be taken cognizance of and acted upon by any judge
of the Court where application is filed.
3. Applications filed after office hours, during Saturdays,
Sundays and holidays, shall likewise be taken cognizance of and
acted upon by any judge of the Court having jurisdiction of the place
to be searched, but in such cases the applicant shall certify and state
the facts under oath, to the satisfaction of the judge, that its issuance
is urgent.
4. Any judge acting on such application shall immediately and
without delay personally conduct the examination of the applicant
and his witnesses to prevent the possible leakage of information. He
shall observe the procedures, safeguards, and guidelines for the
issuance of search warrants provided for in this Court's
Administrative Circular No. 13, dated October 1, 1985." 112 [Italics
in the original.]
Given that the police had adequate time to obtain the warrant, PO1
Floreta's testimony that the real reason for their omission was their
belief that they lacked sufficient basis to obtain the same assumes
greater significance. This was PO1 Floreta's familiar refrain:
Q — When Solier reported to you that fact, that Tudtud will be
coming from Cotabato to get that (sic) stocks, you did not go to court
to get a search warrant on the basis of the report of Bobot Solier?
A — No.
Q — Why?
A — Because we have no real basis to secure the search warrant.
Q — When you have no real basis to secure a search warrant, you
have also no real basis to search Tudtud and Bulong at that time?
A — Yes, sir.
xxx xxx xxx
Q — And Bobot Solier told you that Tudtud, that he would already
bring marijuana?
A — Yes, Sir.
Q — And this was 9:00 a.m.?
A — Yes, Sir.
Q — The arrival of Tudtud was expected at 6:00 p.m.?
A — Yes, Sir.
Q — Toril is just 16 kilometers from Davao City?
A — Yes, Sir.
Q — And the Office of the Regional Trial Court is only about 16
kilometers, is that correct?
A — Yes, Sir.
Q — And it can be negotiated by thirty minutes by a jeep ride?
A — Yes, Sir.
Q — And you can asked [sic] the assistance of any prosecutor to
apply for the search warrant or the prosecutor do [sic] not assist?
A — They help.
Q — But you did not come to Davao City, to asked [sic] for a
search warrant?
A — As I said, we do not have sufficient basis. 113
It may be conceded that "the mere subjective conclusions of a police
officer concerning the existence of probable cause is not binding on
[the courts] which must independently scrutinize the objective facts to
determine the existence of probable cause" and that "a court may also
find probable cause in spite of an officer's judgment that none exists."
114 However, the fact that the arresting officers felt that they did not
have sufficient basis to obtain a warrant, despite their own
information-gathering efforts, raises serious questions whether such
"surveillance" actually yielded any pertinent information and even
whether they actually conducted any information-gathering at all,
thereby eroding any claim to personal knowledge. ECaScD
Finally, there is an effective waiver of rights against unreasonable
searches and seizures if the following requisites are present:
1. It must appear that the rights exist;
2. The person involved had knowledge, actual or constructive, of
the existence of such right;
3. Said person had an actual intention to relinquish the right. 115
Here, the prosecution failed to establish the second and third
requisites. Records disclose that when the police officers introduced
themselves as such and requested appellant that they see the contents
of the carton box supposedly containing the marijuana, appellant
Tudtud said "it was alright." He did not resist and opened the box
himself.
The fundamental law and jurisprudence require more than the
presence of these circumstances to constitute a valid waiver of the
constitutional right against unreasonable searches and seizures.
Courts indulge every reasonable presumption against waiver of
fundamental constitutional rights; acquiescence in the loss of
fundamental rights is not to be presumed. 116 The fact that a person
failed to object to a search does not amount to permission thereto.
. . . . As the constitutional guaranty is not dependent upon any
affirmative act of the citizen, the courts do not place the citizen in the
position of either contesting an officer's authority by force, or waiving
his constitutional rights; but instead they hold that a peaceful
submission to all search or seizure is not a consent or an invitation
thereto, but is merely a demonstration of regard for the supremacy of
the law. 117 [Emphasis supplied.]
Thus, even in cases where the accused voluntarily handed her bag 118
or the chairs 119 containing marijuana to the arresting officer, this
Court held there was no valid consent to the search.
On the other hand, because a warrantless search is in derogation of a
constitutional right, peace officers who conduct it cannot invoke
regularity in the performance of official functions and shift to the
accused the burden of proving that the search was unconsented. 120
In any case, any presumption in favor of regularity would be severely
diminished by the allegation of appellants in this case that the
arresting officers pointed a gun at them before asking them to open
the subject box. Appellant Tudtud testified as follows:
Q — This person who approached you according to you pointed
something at you[.] [What] was that something?
A — A 38 cal. Revolver.
Q — How did he point it at you?
A — Like this (Witness demonstrating as if pointing with his two
arms holding something towards somebody).
Q — This man[,] what did he tell you when he pointed a gun at
you?
A — He said do not run.
Q — What did you do?
A — I raised my hands and said "Sir, what is this about?"
Q — Why did you call him Sir?
A — I was afraid because when somebody is holding a gun, I am
afraid.
Q — Precisely, why did you address him as Sir?
A — Because he was holding a gun and I believed that somebody
who is carrying a gun is a policeman.
Q — When you asked him what is this? What did he say?
A — He said "I would like to inspect what you are carrying. ["]
xxx xxx xxx
Q — What did you say when you were asked to open that carton
box?
A — I told him that is not mine.
Q — What did this man say?
A — He again pointed to me his revolver and again said to open.
Q — What did you do?
A — So I proceeded to open for fear of being shot. 121
Appellants' implied acquiescence, if at all, could not have been more
than mere passive conformity given under coercive or intimidating
circumstances and is, thus, considered no consent at all within the
purview of the constitutional guarantee. 122 Consequently,
appellants' lack of objection to the search and seizure is not
tantamount to a waiver of his constitutional right or a voluntary
submission to the warrantless search and seizure. 123
As the search of appellants' box does not come under the recognized
exceptions to a valid warrantless search, the marijuana leaves
obtained thereby are inadmissible in evidence. And as there is no
evidence other than the hearsay testimony of the arresting officers and
their informant, the conviction of appellants cannot be sustained.
The Bill of Rights is the bedrock of constitutional government. If
people are stripped naked of their rights as human beings, democracy
cannot survive and government becomes meaningless. This explains
why the Bill of Rights, contained as it is in Article III of the
Constitution, occupies a position of primacy in the fundamental law
way above the articles on governmental power. 124
The right against unreasonable search and seizure in turn is at the top
of the hierarchy of rights, 125 next only to, if not on the same plane
as, the right to life, liberty and property, which is protected by the due
process clause. 126 This is as it should be for, as stressed by a couple
of noted freedom advocates, 127 the right to personal security which,
along with the right to privacy, is the foundation of the right against
unreasonable search and seizure "includes the right to exist, and the
right to enjoyment of life while existing." Emphasizing such right,
this Court declared in People v. Aruta:
Unreasonable searches and seizures are the menace against which the
constitutional guarantees afford full protection. While the power to
search and seize may at times be necessary to the public welfare, still
it may be exercised and the law enforced without transgressing the
constitutional rights of the citizens, for the enforcement of no statute
is of sufficient importance to justify indifference to the basic
principles of government.
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 to pay for the loss of liberty. As Justice Holmes
declared: "I think it is less evil that some criminals escape than that
the government should play an ignoble part." It is simply not allowed
in free society to violate a law to enforce another, especially if the law
violated is the Constitution itself. 128
Thus, given a choice between letting suspected criminals escape or
letting the government play an ignoble part, the answer, to this Court,
is clear and ineluctable.
WHEREFORE, the Decision of the Regional Trial Court of Davao
City is REVERSED. Appellants Noel Tudtud y Paypa and Dindo
Bolong y Naret are hereby ACQUITTED for insufficiency of
evidence. The Director of the Bureau of Prisons is ordered to cause
the immediate release of appellants from confinement, unless they are
being held for some other lawful cause, and to report to this Court
compliance herewith within five (5) days from receipt hereof.
cEaTHD
SO ORDERED.
Bellosillo, Austria-Martinez and Callejo, Sr., JJ ., concur.
U.S. Supreme Court
CHIMEL v. CALIFORNIA, 395 U.S. 752 (1969)
395 U.S. 752
CHIMEL v. CALIFORNIA.
CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA.
No. 770.
Argued March 27, 1969.
Decided June 23, 1969.
Police officers, armed with an arrest warrant but not a search warrant,
were admitted to petitioner's home by his wife, where they awaited
petitioner's arrival. When he entered he was served with the warrant.
Although he denied the officers' request to "look around," they
conducted a search of the entire house "on the basis of the lawful
arrest." At petitioner's trial on burglary charges, items taken from his
home were admitted over objection that they had been
unconstitutionally seized. His conviction was affirmed by the
California appellate courts, which held, despite their acceptance of
petitioner's contention that the arrest warrant was invalid, that since
the arresting officers had procured the warrant "in good faith," and
since in any event they had had sufficient information to constitute
probable cause for the arrest, the arrest was lawful. The courts also
held that the search was justified as incident to a valid arrest. Held:
Assuming the arrest was valid, the warrantless search of petitioner's
house cannot be constitutionally justified as incident to that arrest. Pp.
755-768.
(a) An arresting officer may search the arrestee's person to discover
and remove weapons and to seize evidence to prevent its concealment
or destruction, and may search the area "within the immediate
control" of the person arrested, meaning the area from which he might
gain possession of a weapon or destructible evidence. Pp. 762-763.
(b) For the routine search of rooms other than that in which an arrest
occurs, or for searching desk drawers or other closed or concealed
areas in that room itself, absent well-recognized exceptions, a search
warrant is required. P. 763.
(c) While the reasonableness of a search incident to arrest depends
upon "the facts and circumstances - the total atmosphere of the case,"
those facts and circumstances must be viewed in the light of
established Fourth Amendment principles, and the only reasoned
distinction is one between (1) a search of the person arrested and the
area within his reach, and (2) more extensive searches. Pp. 765-
766. [395 U.S. 752, 753]
(d) United States v. Rabinowitz, 339 U.S. 56 , and Harris v. United
States, 331 U.S. 145 , on their facts, and insofar as the principles they
stand for are inconsistent with this decision, are no longer to be
followed. P. 768.
(e) The scope of the search here was unreasonable under the Fourth
and Fourteenth Amendments, as it went beyond petitioner's person
and the area from within which he might have obtained a weapon or
something that could have been used as evidence against him, and
there was no constitutional justification, in the absence of a search
warrant, for extending the search beyond that area. P. 768.
68 Cal. 2d 436, 439 P.2d 333, reversed.
Keith C. Monroe, by appointment of the Court, 394 U.S. 940 , argued
the cause and filed briefs for petitioner.
Ronald M. George, Deputy Attorney General of California, argued
the cause for respondent. With him on the brief were Thomas C.
Lynch, Attorney General, and William E. James, Assistant Attorney
General.
MR. JUSTICE STEWART delivered the opinion of the Court.
This case raises basic questions concerning the permissible scope
under the Fourth Amendment of a search incident to a lawful arrest.
The relevant facts are essentially undisputed. Late in the afternoon of
September 13, 1965, three police officers arrived at the Santa Ana,
California, home of the petitioner with a warrant authorizing his
arrest for the burglary of a coin shop. The officers knocked on the
door, identified themselves to the petitioner's wife, and asked if they
might come inside. She ushered them into the house, where they
waited 10 or 15 minutes until the petitioner returned home from work.
When the petitioner entered the house, one of the officers handed him
the arrest warrant and asked for permission to "look around." The
petitioner objected, but was advised that [395 U.S. 752, 754] "on the
basis of the lawful arrest," the officers would nonetheless conduct a
search. No search warrant had been issued.
Accompanied by the petitioner's wife, the officers then looked
through the entire three-bedroom house, including the attic, the
garage, and a small workshop. In some rooms the search was
relatively cursory. In the master bedroom and sewing room, however,
the officers directed the petitioner's wife to open drawers and "to
physically move contents of the drawers from side to side so that
[they] might view any items that would have come from [the]
burglary." After completing the search, they seized numerous items -
primarily coins, but also several medals, tokens, and a few other
objects. The entire search took between 45 minutes and an hour.
At the petitioner's subsequent state trial on two charges of burglary,
the items taken from his house were admitted into evidence against
him, over his objection that they had been unconstitutionally seized.
He was convicted, and the judgments of conviction were affirmed by
both the California Court of Appeal, 61 Cal. Rptr. 714, and the
California Supreme Court, 68 Cal. 2d 436, 439 P.2d 333. Both courts
accepted the petitioner's contention that the arrest warrant was invalid
because the supporting affidavit was set out in conclusory
terms, 1 but held that since the arresting officers had procured the
warrant "in good faith," and since in any event they had had sufficient
information to constitute probable cause for the petitioner's arrest, that
arrest had been lawful. From this conclusion the appellate courts went
on to hold that the search of the petitioner's home [395 U.S. 752,
755] had been justified, despite the absence of a search warrant, on
the ground that it had been incident to a valid arrest. We granted
certiorari in order to consider the petitioner's substantial constitutional
claims. 393 U.S. 958 .
Without deciding the question, we proceed on the hypothesis that the
California courts were correct in holding that the arrest of the
petitioner was valid under the Constitution. This brings us directly to
the question whether the warrantless search of the petitioner's entire
house can be constitutionally justified as incident to that arrest. The
decisions of this Court bearing upon that question have been far from
consistent, as even the most cursory review makes evident.
Approval of a warrantless search incident to a lawful arrest seems
first to have been articulated by the Court in 1914 as dictum in Weeks
v. United States, 232 U.S. 383 , in which the Court stated:
"What then is the present case? Before answering that inquiry
specifically, it may be well by a process of exclusion to state what it
is not. It is not an assertion of the right on the part of the Government,
always recognized under English and American law, to search the
person of the accused when legally arrested to discover and seize the
fruits or evidences of crime." Id., at 392.
That statement made no reference to any right to search the place
where an arrest occurs, but was limited to a right to search the
"person." Eleven years later the case of Carroll v. United States, 267
U.S. 132 , brought the following embellishment of the Weeks
statement:
"When a man is legally arrested for an offense, whatever is found
upon his person or in his control which it is unlawful for him to have
and which may be used to prove the offense may be seized and
held[395 U.S. 752, 756] as evidence in the prosecution." Id., at 158.
(Emphasis added.)
Still, that assertion too was far from a claim that the "place" where
one is arrested may be searched so long as the arrest is valid. Without
explanation, however, the principle emerged in expanded form a few
months later in Agnello v. United States, 269 U.S. 20 - although still
by way of dictum:
"The right without a search warrant contemporaneously to search
persons lawfully arrested while committing crime and to search the
place where the arrest is made in order to find and seize things
connected with the crime as its fruits or as the means by which it was
committed, as well as weapons and other things to effect an escape
from custody, is not to be doubted. See Carroll v. United States,267
U.S. 132, 158 ; Weeks v. United States, 232 U.S. 383, 392 ." 269
U.S., at 30 .
And in Marron v. United States, 275 U.S. 192 , two years later, the
dictum of Agnello appeared to be the foundation of the Court's
decision. In that case federal agents had secured a search warrant
authorizing the seizure of liquor and certain articles used in its
manufacture. When they arrived at the premises to be searched, they
saw "that the place was used for retailing and drinking intoxicating
liquors." Id., at 194. They proceeded to arrest the person in charge
and to execute the warrant. In searching a closet for the items listed in
the warrant they came across an incriminating ledger, concededly not
covered by the warrant, which they also seized. The Court upheld the
seizure of the ledger by holding that since the agents had made a
lawful arrest, "[t]hey had a right without a warrant
contemporaneously to search the place in order to find and seize the
things used to carry on the criminal enterprise." Id., at 199. [395 U.S.
752, 757]
That the Marron opinion did not mean all that it seemed to say
became evident, however, a few years later in Go-Bart Importing Co.
v. United States, 282 U.S. 344 , and United States v. Lefkowitz, 285
U.S. 452 . In each of those cases the opinion of the Court was written
by Mr. Justice Butler, the author of the opinion in Marron. In Go-
Bart, agents had searched the office of persons whom they had
lawfully arrested, 2 and had taken several papers from a desk, a safe,
and other parts of the office. The Court noted that no crime had been
committed in the agents' presence, and that although the agent in
charge "had an abundance of information and time to swear out a
valid [search] warrant, he failed to do so."282 U.S., at 358 . In
holding the search and seizure unlawful, the Court stated:
"Plainly the case before us is essentially different from Marron v.
United States, 275 U.S. 192 . There, officers executing a valid search
warrant for intoxicating liquors found and arrested one Birdsall who
in pursuance of a conspiracy was actually engaged in running a
saloon. As an incident to the arrest they seized a ledger in a closet
where the liquor or some of it was kept and some bills beside the cash
register. These things were visible and accessible and in the offender's
immediate custody. There was no threat of force or general search or
rummaging of the place." 282 U.S., at 358 .
This limited characterization of Marron was reiterated in Lefkowitz, a
case in which the Court held unlawful a search of desk drawers and a
cabinet despite the fact that the search had accompanied a lawful
arrest. 285 U.S., at 465 .
The limiting views expressed in Go-Bart and Lefkowitz were thrown
to the winds, however, in Harris v. United [395 U.S. 752,
758] States, 331 U.S. 145 , decided in 1947. In that case, officers
had obtained a warrant for Harris' arrest on the basis of his alleged
involvement with the cashing and interstate transportation of a forged
check. He was arrested in the living room of his four-room apartment,
and in an attempt to recover two canceled checks thought to have
been used in effecting the forgery, the officers undertook a thorough
search of the entire apartment. Inside a desk drawer they found a
sealed envelope marked "George Harris, personal papers." The
envelope, which was then torn open, was found to contain altered
Selective Service documents, and those documents were used to
secure Harris' conviction for violating the Selective Training and
Service Act of 1940. The Court rejected Harris' Fourth Amendment
claim, sustaining the search as "incident to arrest." Id., at 151.
Only a year after Harris, however, the pendulum swung again. In
Trupiano v. United States, 334 U.S. 699 , agents raided the site of an
illicit distillery, saw one of several conspirators operating the still,
and arrested him, contemporaneously "seiz[ing] the illicit distillery."
Id., at 702. The Court held that the arrest and others made
subsequently had been valid, but that the unexplained failure of the
agents to procure a search warrant - in spite of the fact that they had
had more than enough time before the raid to do so - rendered the
search unlawful. The opinion stated:
"It is a cardinal rule that, in seizing goods and articles, law
enforcement agents must secure and use search warrants wherever
reasonably practicable. . . . This rule rests upon the desirability of
having magistrates rather than police officers determine when
searches and seizures are permissible and what limitations should be
placed upon such activities. . . . To provide the necessary security
against unreasonable intrusions upon the private lives of [395 U.S.
752, 759] individuals, the framers of the Fourth Amendment
required adherence to judicial processes wherever possible. And
subsequent history has confirmed the wisdom of that requirement.
. . . . .
"A search or seizure without a warrant as an incident to a lawful
arrest has always been considered to be a strictly limited right. It
grows out of the inherent necessities of the situation at the time of the
arrest. But there must be something more in the way of necessity than
merely a lawful arrest." Id., at 705, 708.
In 1950, two years after Trupiano, 3 came United States v.
Rabinowitz, 339 U.S. 56 , the decision upon which California
primarily relies in the case now before us. In Rabinowitz, federal
authorities had been informed that the defendant was dealing in
stamps bearing forged overprints. On the basis of that information
they secured a warrant for his arrest, which they executed at his one-
room business office. At the time of the arrest, the officers "searched
the desk, safe, and file cabinets in the office for about an hour and a
half," id., at 59, and seized 573 stamps with forged overprints. The
stamps were admitted into evidence at the defendant's trial, and this
Court affirmed his conviction, rejecting the contention that the
warrantless search had been unlawful. The Court held that the search
in its entirety fell within the principle giving law enforcement
authorities "[t]he right `to search the place where the arrest is made in
order to find and seize things connected with the crime . . . .'" Id., at
61. Harris was regarded as "ample authority" for that conclusion. Id.,
at 63. The opinion rejected the rule of Trupiano that "in seizing goods
and articles, law enforcement agents must secure and use search
warrants [395 U.S. 752, 760] wherever reasonably practicable." The
test, said the Court, "is not whether it is reasonable to procure a
search warrant, but whether the search was reasonable." Id., at 66.
Rabinowitz has come to stand for the proposition, inter alia, that a
warrantless search "incident to a lawful arrest" may generally extend
to the area that is considered to be in the "possession" or under the
"control" of the person arrested. 4 And it was on the basis of that
proposition that the California courts upheld the search of the
petitioner's entire house in this case. That doctrine, however, at least
in the broad sense in which it was applied by the California courts in
this case, can withstand neither historical nor rational analysis.
Even limited to its own facts, the Rabinowitz decision was, as we
have seen, hardly founded on an unimpeachable line of authority. As
Mr. Justice Frankfurter commented in dissent in that case, the "hint"
contained in Weeks was, without persuasive justification, "loosely
turned into dictum and finally elevated to a decision." 339 U.S., at
75 . And the approach taken in cases such as Go-Bart, Lefkowitz, and
Trupiano was essentially disregarded by the Rabinowitz Court.
Nor is the rationale by which the State seeks here to sustain the search
of the petitioner's house supported by a reasoned view of the
background and purpose of the Fourth Amendment. Mr. Justice
Frankfurter wisely pointed out in his Rabinowitz dissent that the
Amendment's proscription of "unreasonable searches and
seizures" [395 U.S. 752, 761] must be read in light of "the history
that gave rise to the words" - a history of "abuses so deeply felt by the
Colonies as to be one of the potent causes of the Revolution . . .
." 339 U.S., at 69 . The Amendment was in large part a reaction to the
general warrants and warrantless searches that had so alienated the
colonists and had helped speed the movement for independence. 5 In
the scheme of the Amendment, therefore, the requirement that "no
Warrants shall issue, but upon probable cause," plays a crucial part.
As the Court put it in McDonald v. United States, 335 U.S. 451 :
"We are not dealing with formalities. The presence of a search
warrant serves a high function. Absent some grave emergency, the
Fourth Amendment has interposed a magistrate between the citizen
and the police. This was done not to shield criminals nor to make the
home a safe haven for illegal activities. It was done so that an
objective mind might weigh the need to invade that privacy in order
to enforce the law. The right of privacy was deemed too precious to
entrust to the discretion of those whose job is the detection of crime
and the arrest of criminals. . . . And so the Constitution requires a
magistrate to pass on the desires of the police before they violate the
privacy of the home. We cannot be true to that constitutional
requirement and excuse the absence of a search warrant without a
showing by those who seek exemption from the constitutional
mandate that the exigencies of the situation made that course
imperative." Id., at 455-456. [395 U.S. 752, 762]
Even in the Agnello case the Court relied upon the rule that "[b]elief,
however well founded, that an article sought is concealed in a
dwelling house furnishes no justification for a search of that place
without a warrant. And such searches are held unlawful
notwithstanding facts unquestionably showing probable cause." 269
U.S., at 33 . Clearly, the general requirement that a search warrant be
obtained is not lightly to be dispensed with, and "the burden is on
those seeking [an] exemption [from the requirement] to show the
need for it . . . ." United States v. Jeffers, 342 U.S. 48, 51 .
Only last Term in Terry v. Ohio, 392 U.S. 1 , we emphasized that "the
police must, whenever practicable, obtain advance judicial approval
of searches and seizures through the warrant procedure," id., at
20, 6 and that "[t]he scope of [a] search must be `strictly tied to and
justified by' the circumstances which rendered its initiation
permissible." Id., at 19. The search undertaken by the officer in that
"stop and frisk" case was sustained under that test, because it was no
more than a "protective . . . search for weapons." Id., at 29. But in a
companion case, Sibron v. New York, 392 U.S. 40 , we applied the
same standard to another set of facts and reached a contrary result,
holding that a policeman's action in thrusting his hand into a suspect's
pocket had been neither motivated by nor limited to the objective of
protection. 7 Rather, the search had been made in order to find
narcotics, which were in fact found.
A similar analysis underlies the "search incident to arrest" principle,
and marks its proper extent. When an [395 U.S. 752, 763] arrest is
made, it is reasonable for the arresting officer to search the person
arrested in order to remove any weapons that the latter might seek to
use in order to resist arrest or effect his escape. Otherwise, the
officer's safety might well be endangered, and the arrest itself
frustrated. In addition, it is entirely reasonable for the arresting officer
to search for and seize any evidence on the arrestee's person in order
to prevent its concealment or destruction. And the area into which an
arrestee might reach in order to grab a weapon or evidentiary items
must, of course, be governed by a like rule. A gun on a table or in a
drawer in front of one who is arrested can be as dangerous to the
arresting officer as one concealed in the clothing of the person
arrested. There is ample justification, therefore, for a search of the
arrestee's person and the area "within his immediate control" -
construing that phrase to mean the area from within which he might
gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching
any room other than that in which an arrest occurs - or, for that
matter, for searching through all the desk drawers or other closed or
concealed areas in that room itself. Such searches, in the absence of
well-recognized exceptions, may be made only under the authority of
a search warrant. 8 The "adherence to judicial processes" mandated
by the Fourth Amendment requires no less.
This is the principle that underlay our decision in Preston v. United
States, 376 U.S. 364 . In that case three men had been arrested in a
parked car, which had later been towed to a garage and searched by
police. We held the search to have been unlawful under the Fourth
Amendment, despite the contention that it had [395 U.S. 752,
764] been incidental to a valid arrest. Our reasoning was
straightforward:
"The rule allowing contemporaneous searches is justified, for
example, by the need to seize weapons and other things which might
be used to assault an officer or effect an escape, as well as by the need
to prevent the destruction of evidence of the crime - things which
might easily happen where the weapon or evidence is on the accused's
person or under his immediate control. But these justifications are
absent where a search is remote in time or place from the arrest." Id.,
at 367. 9
The same basic principle was reflected in our opinion last Term in
Sibron. That opinion dealt with Peters v. New York, No. 74, as well
as with Sibron's case, and Peters involved a search that we upheld as
incident to a proper arrest. We sustained the search, however, only
because its scope had been "reasonably limited" by the "need to seize
weapons" and "to prevent the destruction of evidence," to which
Preston had referred. We emphasized that the arresting officer "did
not engage in an unrestrained and thoroughgoing examination of
Peters and his personal effects. He seized him to cut short his flight,
and he searched him primarily for weapons." 392 U.S., at 67 .
It is argued in the present case that it is "reasonable" to search a man's
house when he is arrested in it. But that argument is founded on little
more than a subjective view regarding the acceptability of certain
sorts of police [395 U.S. 752, 765] conduct, and not on
considerations relevant to Fourth Amendment interests. Under such
an unconfined analysis, Fourth Amendment protection in this area
would approach the evaporation point. It is not easy to explain why,
for instance, it is less subjectively "reasonable" to search a man's
house when he is arrested on his front lawn - or just down the street -
than it is when he happens to be in the house at the time of
arrest. 10 As Mr. Justice Frankfurter put it:
"To say that the search must be reasonable is to require some criterion
of reason. It is no guide at all either for a jury or for district judges or
the police to say that an `unreasonable search' is forbidden - that the
search must be reasonable. What is the test of reason which makes a
search reasonable? The test is the reason underlying and expressed by
the Fourth Amendment: the history and the experience which it
embodies and the safeguards afforded by it against the evils to which
it was a response." United States v. Rabinowitz, 339 U.S., at
83 (dissenting opinion).
Thus, although "[t]he recurring questions of the reasonableness of
searches" depend upon "the facts and circumstances - the total
atmosphere of the case," id., at 63, 66 (opinion of the Court), those
facts and circumstances must be viewed in the light of established
Fourth Amendment principles. [395 U.S. 752, 766]
It would be possible, of course, to draw a line between Rabinowitz
and Harris on the one hand, and this case on the other. For
Rabinowitz involved a single room, and Harris a four-room
apartment, while in the case before us an entire house was searched.
But such a distinction would be highly artificial. The rationale that
allowed the searches and seizures in Rabinowitz and Harris would
allow the searches and seizures in this case. No consideration relevant
to the Fourth Amendment suggests any point of rational limitation,
once the search is allowed to go beyond the area from which the
person arrested might obtain weapons or evidentiary items. 11 The
only reasoned distinction is one between a search of the person
arrested and the area within his reach on the one hand, and more
extensive searches on the other. 12 [395 U.S. 752, 767]
The petitioner correctly points out that one result of decisions such as
Rabinowitz and Harris is to give law enforcement officials the
opportunity to engage in searches not justified by probable cause, by
the simple expedient of arranging to arrest suspects at home rather
than elsewhere. We do not suggest that the petitioner is necessarily
correct in his assertion that such a strategy was utilized here, 13 but
the fact remains that had he been arrested earlier in the day, at his
place of employment rather than at home, no search of his house
could have been made without a search warrant. In any event, even
apart from the possibility of such police tactics, the general point so
forcefully made by Judge Learned Hand in United States v.
Kirschenblatt, 16 F.2d 202, remains:
"After arresting a man in his house, to rummage at will among his
papers in search of whatever will convict him, appears to us to be
indistinguishable from what might be done under a general warrant;
indeed, the warrant would give more protection, for presumably it
must be issued by a magistrate. True, by hypothesis the power would
not exist, if the supposed offender were not found on the
premises; [395 U.S. 752, 768] but it is small consolation to know
that one's papers are safe only so long as one is not at home." Id., at
203.
Rabinowitz and Harris have been the subject of critical commentary
for many years, 14 and have been relied upon less and less in our own
decisions. 15 It is time, for the reasons we have stated, to hold that on
their own facts, and insofar as the principles they stand for are
inconsistent with those that we have endorsed today, they are no
longer to be followed.
Application of sound Fourth Amendment principles to the facts of
this case produces a clear result. The search here went far beyond the
petitioner's person and the area from within which he might have
obtained either a weapon or something that could have been used as
evidence against him. There was no constitutional justification, in the
absence of a search warrant, for extending the search beyond that
area. The scope of the search was, therefore, "unreasonable" under the
Fourth and Fourteenth Amendments, and the petitioner's conviction
cannot stand. 16
Reversed.

SECOND DIVISION
[G.R. No. 83260. April 18, 1990.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN
DE LA CRUZ y GONZALES and REYNALDO BELTRAN y
ANIBAN, accused-appellants.
The Solicitor General for plaintiff-appellee.
Augusto J. Salas for accused-appellants.
SYLLABUS
1. CRIMINAL LAW; ENTRAPMENT; BUY-BUST
OPERATION; EFFECTIVE MEANS OF APPREHENDING DRUG
PEDDLER IN FLAGRANTE DELICTO. — The Solicitor General
explains that a buy-bust operation is the method employed by peace
officers to trap and catch a malefactor in flagrante delicto. It is
essentially a form of entrapment since the peace officer neither
instigates nor induces the accused to commit a crime. Entrapment is
the employment of such ways and means for the purpose of trapping
or capturing a lawbreaker from whose mind the criminal intent
originated. Oftentimes, it is the only effective way of apprehending a
criminal in the act of the commission of the offense.
2. ID.; ID.; ID.; SEARCH WARRANT, NOT NECESSARY,
RATIONALE; CONFISCATED ARTICLES, ADMISSIBLE IN
EVIDENCE. — While it is conceded that in a buy-bust operation,
there is seizure of evidence from one's person without a search
warrant, needless to state a search warrant is not necessary, the search
being incident to a lawful arrest. A peace officer may, without a
warrant, arrest a person when, in his presence, the person to be
arrested has committed, is actually committing or is attempting to
commit an offense. It is a matter of judicial experience that in the
arrest of violators of the Dangerous Drugs Act in a buy-bust
operation, the malefactors were invariably caught red-handed. There
being no violation of the constitutional right against unreasonable
search and seizure, the confiscated articles are admissible in evidence.
3. REMEDIAL LAW; EVIDENCE; ABSENCE OF CIVILIAN
WITNESS IN DRUG CASES; DOES NOT UNDERMINE THE
CASE FOR PROSECUTION; RATIONALE. — The absence of any
civilian witness should not undermine the case for the prosecution.
The natural reaction of a civilian to inhibit himself from being a
witness to a crime is understandable. A criminal proceeding entails a
lot of unavoidable inconveniences, aside from the time involved in
attendance as a witness in investigations and hearings. Adding to this
the inherent fear of reprisal, we have the natural reticence and
abhorrence of most people to get involved in a criminal case. At any
rate, the testimony of other witnesses in this case would only be
cumulative or corroborative as they would only be repeating the facts
already amply testified to by the government witnesses. Credence
should be accorded to the prosecution's evidence more so as it
consisted mainly of testimonies of policemen. Law enforcers are
presumed to have regularly performed their duty in the absence of
proof to the contrary. Appellant reproaches the prosecution for not
presenting the civilian informer as a witness. It is settled that the non-
presentation of a certain witness by the prosecution is not a
sufficiently plausible defense. If the accused believes that the
testimony of said witness is important to his cause, he should avail
thereof, even by compulsory judicial process if necessary.
Furthermore, the non-presentation of some prosecution witnesses
does not detract from the prosecution's case, since the number of such
witnesses who should be called to testify is addressed to the sound
discretion of the prosecuting officers.
4. ID.; ID.; RECEIPT OF MARIJUANA FROM ACCUSED
PREPARED AT THE SCENE OF THE CRIME; NEED NOT BE
THE ORIGINAL COPY; CASE AT BAR. — Appellant maintains
that the court below should have rejected Exhibit E, which evidences
the receipt of marijuana from appellant and which was prepared by
Sgt. Vicente Jimenez, in the absence of the original receipt prepared
at the scene of the crime by P/Pfc. Arcoy who was the poseur-buyer.
We agree with the Solicitor General, since this is borne out by the
records, that Exhibit E is actually based on, as it is merely a clearer
copy of, the receipt prepared at the scene of the crime by P/Pfc.
Arcoy. Since the draft receipt had to be prepared hurriedly at the
scene in order that the accused could be brought to the Narcotics
Command, such draft receipt was not clearly written, so Sgt. Vicente
Jimenez mechanically transferred the written entries of P/Pfc. Arcoy
into a more legible copy. Nonetheless, there is no dispute that Sgt.
Jimenez, a member of the team, had personal knowledge of the facts
set forth in both receipts, being an eyewitness to the events that had
transpired.
5. ID.; ID.; NON-PRESENTATION OF MARKED MONEY,
DOES NOT MILITATE AGAINST THE PROSECUTION'S CASE.
— The testimony of T/Sgt. Jaime Raposas, the team leader who gave
P/Pfc. Arcoy the money to pay for the marijuana, is challenged in that
he failed to identify the marked money utilized in the operation.
Appellant insists that the marked money must be recorded, if not
photographed, in order to be admissible as evidence. This is clutching
at evidentiary and argumental straws. As found by the trial court, the
money was in the possession of P/Pfc. Arcoy who had been assigned
as the poseur-buyer. In the ensuing transaction, the foil of marijuana
was handed to Arcoy by appellant and then Arcoy gave the money to
accused Juan dela Cruz. Suffice it to say that even if the money given
to De la Cruz was not presented in court, the same would not militate
against the People's case. In fact, there was even no need to prove that
the marked money was handed to the appellants in payment of the
goods. The crime could have been consummated by the mere delivery
of the prohibited drugs. What the law proscribes is not only the act of
selling but also, albeit not limited to, the act of delivering. In the latter
case, the act of knowingly passing a dangerous drug to another
personally or otherwise, and by any means, with or without
consideration, consummates the offense.
6. ID.; ID.; CREDIBILITY OF WITNESS; FINDINGS OF
TRIAL COURT; GIVEN GREAT WEIGHT AND HIGHEST
DEGREE OF RESPECT. — On the trial court's rejection of the
testimony of the alleged two disinterested witnesses for the defense,
namely, Lolita Mendoza and Maribeth Manapat, we find no reason to
disturb its ruling. We reiterate the time-honored principle that on the
issue of which version to accept, the findings of the trial court on the
credibility of witnesses are given great weight and the highest degree
of respect by the appellate court. Subject to exceptions which do not
obtain in the present case, the trial court is in a better position to
decide this question, having seen and heard the witnesses themselves
and observed their deportment and manner of testifying during the
trial.
7. ID.; ID.; ID.; ACCUSED MUST PROVE THAT THE
WITNESS WAS PROMPTED BY EVIL MOTIVE IN TESTIFYING
AGAINST HIM. — Appellant imputes insidious motives on the part
of the military to manufacture evidence, theorizing that a buy-bust
operation is for the purpose either of extorting money or, in line with
alleged internal policies, complying with a quota of arrests. These are
bare unsupported allegations. From the evidence of record, we find no
reason why the prosecution witnesses should fabricate their
testimonies and implicate appellant in such a serious crime. The
defense has not established any cogent motive for the police officers
to falsely charge the accused with peddling marijuana. As found by
the trial court, there is not even a breath, much less an accusation by
the defense, that the military and police personnel involved were
indeed engaged in such nefarious activities.
D E C I S I O N
REGALADO, J p:
Accused-appellant Juan de la Cruz y Gonzales and his co-accused
Reynaldo Beltran y Aniban were charged in Criminal Case No. 87-
54417 of the Regional Trial Court of Manila with violation of Section
4, Art. II, in relation to Section 21, Article IV of Republic Act No.
6425, as amended, in an information which reads:
"That on or about May 4, 1987, in the City of Manila, Philippines, the
said accused, conspiring and confederating together and mutually
helping each other, not being authorized by law to sell, deliver, give
away to another or distribute any prohibited drug, did then and there
wilfully, unlawfully, and knowingly sell, deliver or give away to
another the following:
1. One (1) cigarette foil wrapper containing marijuana;
2. Two (2) cigarette foil wrapper (sic) containing marijuana
which are prohibited drugs.
"Contrary to law." 1
The accused, who were assisted by a counsel de oficio, pleaded not
guilty when arraigned on May 26, 1987. On August 18, 1987, trial on
the merits started, with the prosecution thereafter presenting as its
witnesses P/Pfc. Adolfo Arcoy, P/Capt. Luena Layador, T/Sgt. Jaime
Raposas, Sgt. Vicente Jimenez, and S/Sgt. Armando Isidro. On its
part, the defense presented both accused, Lolita Mendoza and
Maribeth Manapat as its witnesses.
The court a quo, in a comparative evaluation of evidence,
painstakingly summarized the clashing factual versions of the
prosecution and defense, as follows:
". . . On its part, the prosecution alleged that after receiving a
confidential report from Arnel, their informant, a 'buy-bust' operation
was conducted by the 13th Narcotics Regional Unit through a team
composed of T/Sgt. Jaime Raposas as Team Leader, S/Sgt. Rodelito
Obice, Sgt. Dante Yang, Sgt. Vicente Jimenez, P/Pfc. Adolfo Arcoy
as poseur-buyer and Pat. Deogracias Gorgonia at Maliclic St., Tondo,
Manila at around 2:30 o'clock in the afternoon of May 4, 1987 to
catch the pusher/s. P/Pfc. Adolfo Arcoy acted as the poseur-buyer
with Arnel as his companion to buy marijuana worth P10.00 from the
two accused, Juan de la Cruz and Reynaldo Beltran. At the scene, it
was Juan de la Cruz whom Arcoy first negotiated (with) on the
purchase and when Arcoy told De la Cruz that he was buying P10.00
worth of marijuana, De la Cruz instructed Reynaldo Beltran to give
one aluminum foil of marijuana which Beltran got from his pants'
pocket and delivered it to Arcoy. After ascertaining that the foil of
suspected marijuana was really marijuana, Arcoy gave the
prearranged signal to his teammates by scratching his head and his
teammates who were strategically positioned in the vicinity,
converged at the place, identified themselves as NARCOM agents
and effected the arrest of De la Cruz and Beltran. The P10.00 marked
bill (Exhibit C-1) used by Arcoy was found in the possession of Juan
de la Cruz together with two aluminum foils and containing
marijuana (Exhibits 'B-2' and 'B-3').
"Traversing this version is that of the defense which, in brief, consists
of a denial to (sic) the prosecution's theory and the claim that accused
Juan de la Cruz, who was then suffering from loose bowel movement,
was all the time in bed at their place at 3034 Maliclic St., Tondo,
Manila; that he never left their place throughout that day of May 4,
1987; that he never had a visitor on that day and that he was never
engaged in the sale of marijuana. The NARCOM agents raided his
place without search warrant or without first securing his previous
permission. One searched thoroughly his place, the second acted as a
guard posted at the door of De la Cruz' place and the third agent was a
mere observer. His place was ransacked and he was even bodily
searched. As regards accused Reynaldo Beltran, he was arrested by
the same group (prior to the arrest of Juan de la Cruz) while he was
playing 'pool' at Aling Ely's place along Maliclic St. that afternoon
and that without much ado, he was taken because he was fingered by
one Arnel to be engaged in selling marijuana. Both accused were
brought to a parked vehicle of the raiding team. From there, they were
taken to NARCOM headquarters for investigation where for the first
time they came to know that they were being charged of selling
marijuana." 2
Finding the version of the prosecution more worthy of credit, the
court a quo rendered its decision 3 on March 15, 1988, the decretal
portion of which states:
"WHEREFORE, in the light of the foregoing consideration, the Court
finds the accused, JUAN DE LA CRUZ y GONZALES and
REYNALDO BELTRAN y ANIBAN, guilty beyond reasonable
doubt of the Violation of Section 4, Article II, in relation to Section
21, Article IV, both of Republic Act No. 6425, otherwise known as
Dangerous Drugs Act of 1972, as further amended by Presidential
Decree No. 1675 and as charged in the Information, and, accordingly,
hereby sentences each of them to suffer the penalty of reclusion
perpetua, with the accessory penalties provided by law; to pay a fine
of TWENTY THOUSAND (P20,000.00) PESOS, Philippine
currency, without subsidiary imprisonment in case of insolvency, and
each to pay one-half of the costs.
"The three (3) aluminum foils containing marijuana (Exhibits 'B-2' to
'B-4') placed in an empty Marlboro pack (Exhibit 'B-1') are hereby
ordered confiscated and forfeited in favor of the government and once
this Decision shall become final and executory, the same shall be
turned over to the Dangerous Drugs Board through the Director,
National Bureau of Investigation, Manila, for proper disposition while
the P10.00 bill (Exhibit 'C-1') bearing Serial No. F-215962 shall be
returned to T/Sgt. Jaime Raposas.
"Furnish copy of this Decision to the Honorable Supreme Court
through the Honorable Court Administrator." 4
From this decision, accused Juan de la Cruz y Gonzales and co-
accused Reynaldo Beltran y Aniban interposed the instant appeal.
In a letter of the Warden, Manila City Jail, dated March 3, 1989, 5
the Court was informed of the death of accused-appellant Juan de la
Cruz y Gonzales on February 21, 1989. Counsel de oficio having
thereafter submitted a certified true copy of the death certificate of the
accused, 6 as directed by the Court, the criminal case against said
accused-appellant was dismissed in our resolution of September 25,
1989. 7
The present appellate proceeding is, therefore, limited only to
appellant Reynaldo Beltran y Aniban who now faults the trial court
with the following assignment of errors: prLL
1. The Buy-Bust Operation being done to enforce Republic Act
6425 is unconstitutional and any evidence acquired under such
method should not be admissible in court.
2. The Buy-Bust Operation should be declared illegal for it
breeds corruption of police and military officers through planting of
evidence for purposes of extortion.
3. The Court erred in giving probable value to the confiscated
marijuana sticks despite the fact that no civilian or other neutral
person signed as a witness to its taking. If it were true, there must be
at least one civic-minded citizen who could easily be convinced by
the police to witness it.
4. The Court erred in considering the evidence, Exhibits "B-2,"
"B-3" and "B-4", as the very once confiscated.
If they were the very ones taken from the accused, the original receipt
prepared at the scene of the crime would not have been thrown away
by the very agent who acted as the buyer. Exhibit "E" should have
been given no probative value for having been executed by someone
who did not actually confiscate the marijuana.
5. The Court erred in giving probative value to the Buy-Bust
Operation when even the alleged marked money utilized in the
operation could not be Identified by the leader, T/Sgt. Jaime Raposas.
6. The Court erred in not giving value to the testimony of the
two disinterested witnesses for the defense, namely, Lolita Mendoza
and Maribeth Manapat, whose testimony corroborated substantially
that of the accused.
7. The Court erred in concluding that there was no motive for the
military to manufacture evidence. It is common knowledge that
apprehensions of this kind are made to fill up a quota of arrest in
cases handled to comply with standard operating procedure and
efficiency reports. 8
We affirm the judgment of conviction.
Appellant assails, unconstitutional, the manner in which the so-called
buy-bust operation is conducted in order to enforce the Dangerous
Drugs Act. He stigmatizes it as no different from seizure of evidence
from one's person or abode without a search warrant. He argues that
this procedure is pregnant with opportunities, and gives rise to
situations, for corrupting our law enforcers.
We are not unmindful of the fact that the common modus operandi of
narcotic agents in utilizing poseur-buyers does not always commend
itself as the most reliable way to go after violators of the Dangerous
Drugs Act as it is susceptible of mistakes as well as harassment,
extortion and abuse. 9 By the very nature of this anti-narcotics
operation, the possibility of abuse is great. 10
We are not, however, inclined to shackle the hands of narcotics
agents whose task, as it is, is already formidable and attended with
great risk, lest their dedicated efforts for the apprehension and
successful prosecution of prohibited drug violators be unduly
hampered. The proliferation of drug addiction and trafficking has
already reached an alarming level and has spawned a network of
incorrigible, cunning and dangerous operations. Our experience has
proven entrapment to be an effective means of apprehending drug
peddlers as exemplified by this case.
The Solicitor General explains that a buy-bust operation is the method
employed by peace officers to trap and catch a malefactor in flagrante
delicto. It is essentially a form of entrapment since the peace officer
neither instigates nor induces the accused to commit a crime. 11
Entrapment is the employment of such ways and means for the
purpose of trapping or capturing a lawbreaker from whose mind the
criminal intent originated. Oftentimes, it is the only effective way of
apprehending a criminal in the act of the commission of the offense.
12
While it is conceded that in a buy-bust operation, there is seizure of
evidence from one's person without a search warrant, needless to state
a search warrant is not necessary, the search being incident to a
lawful arrest. 13 A peace officer may, without a warrant, arrest a
person when, in his presence, the person to be arrested has
committed, is actually committing or is attempting to commit an
offense. 14 It is a matter of judicial experience that in the arrest of
violators of the Dangerous Drugs Act in a buy-bust operation, the
malefactors were invariably caught red-handed. 15 There being no
violation of the constitutional right against unreasonable search and
seizure, the confiscated articles are admissible in evidence. prLL
Appellant castigates the prosecution for not having presented any
civilian or other neutral person who could attest that the foils of
marijuana were indeed confiscated from him. The absence of any
civilian witness should not undermine the case for the prosecution.
The natural reaction of a civilian to inhibit himself from being a
witness to a crime is understandable. A criminal proceeding entails a
lot of unavoidable inconveniences, aside from the time involved in
attendance as a witness in investigations and hearings. Adding to this
the inherent fear of reprisal, we have the natural reticence and
abhorrence of most people to get involved in a criminal case.
At any rate, the testimony of other witnesses in this case would only
be cumulative or corroborative as they would only be repeating the
facts already amply testified to by the government witnesses.
Credence should be accorded to the prosecution's evidence more so as
it consisted mainly of testimonies of policemen. Law enforcers are
presumed to have regularly performed their duty in the absence of
proof to the contrary. 16
Appellant maintains that the court below should have rejected Exhibit
E, which evidences the receipt of marijuana from appellant and which
was prepared by Sgt. Vicente Jimenez, in the absence of the original
receipt prepared at the scene of the crime by P/Pfc. Arcoy who was
the poseur-buyer.
We agree with the Solicitor General, since this is borne out by the
records, that Exhibit E is actually based on, as it is merely a clearer
copy of, the receipt prepared at the scene of the crime by P/Pfc.
Arcoy. Since the draft receipt had to be prepared hurriedly at the
scene in order that the accused could be brought to the Narcotics
Command, such draft receipt was not clearly written, so Sgt. Vicente
Jimenez mechanically transferred the written entries of P/Pfc. Arcoy
into a more legible copy. 17 Nonetheless, there is no dispute that
Sgt. Jimenez, a member of the team, had personal knowledge of the
facts set forth in both receipts, being an eyewitness to the events that
had transpired. LexLib
The testimony of T/Sgt. Jaime Raposas, the team leader who gave
P/Pfc. Arcoy the money to pay for the marijuana, is challenged in that
he failed to identify the marked money utilized in the operation.
Appellant insists that the marked money must be recorded, if not
photographed, in order to be admissible as evidence. This is clutching
at evidentiary and argumental straws.
As found by the trial court, the money was in the possession of P/Pfc.
Arcoy who had been assigned as the poseur-buyer. In the ensuing
transaction, the foil of marijuana was handed to Arcoy by appellant
and then Arcoy gave the money to accused Juan dela Cruz. 18
Suffice it to say that even if the money given to De la Cruz was not
presented in court, the same would not militate against the People's
case. 19 In fact, there was even no need to prove that the marked
money was handed to the appellants in payment of the goods. The
crime could have been consummated by the mere delivery of the
prohibited drugs. What the law proscribes is not only the act of
selling but also, albeit not limited to, the act of delivering. In the latter
case, the act of knowingly passing a dangerous drug to another
personally or otherwise, and by any means, with or without
consideration, consummates the offense. 20
On the trial court's rejection of the testimony of the alleged two
disinterested witnesses for the defense, namely, Lolita Mendoza and
Maribeth Manapat, we find no reason to disturb its ruling. We
reiterate the time-honored principle that on the issue of which version
to accept, the findings of the trial court on the credibility of witnesses
are given great weight and the highest degree of respect by the
appellate court. Subject to exceptions which do not obtain in the
present case, the trial court is in a better position to decide this
question, having seen and heard the witnesses themselves and
observed their deportment and manner of testifying during the trial.
21
Appellant imputes insidious motives on the part of the military to
manufacture evidence, theorizing that a buy-bust operation is for the
purpose either of extorting money or, in line with alleged internal
policies, complying with a quota of arrests. 22 These are bare
unsupported allegations. From the evidence of record, we find no
reason why the prosecution witnesses should fabricate their
testimonies and implicate appellant in such a serious crime. The
defense has not established any cogent motive for the police officers
to falsely charge the accused with peddling marijuana. As found by
the trial court, there is not even a breath, much less an accusation by
the defense, that the military and police personnel involved were
indeed engaged in such nefarious activities. 23
Finally, appellant reproaches the prosecution for not presenting the
civilian informer as a witness. 24 It is settled that the non-
presentation of a certain witness by the prosecution is not a
sufficiently plausible defense. If the accused believes that the
testimony of said witness is important to his cause, he should avail
thereof, even by compulsory judicial process if necessary.
Furthermore, the non-presentation of some prosecution witnesses
does not detract from the prosecution's case, since the number of such
witnesses who should be called to testify is addressed to the sound
discretion of the prosecuting officers. 25
WHEREFORE, the judgment of the Regional Trial Court of Manila
in Criminal Case No. 87-54417, insofar as accused-appellant
Reynaldo Beltran y Aniban is concerned, is hereby AFFIRMED.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Sarmiento, JJ., concur.
FIRST DIVISION
[G.R. No. 84079. May 6, 1991.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
NESTOR KALUBIRAN, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; FACTUAL FINDINGS OF
TRIAL JUDGE; ACCORDED WITH RESPECT BY APPELLATE
COURT. — This Court places much reliance upon the factual
findings of the trial judge who has the advantages of directly
observing the witnesses on the stand and to gauge by their demeanor
whether they are being true to their oath or lying in their teeth. Such
an opportunity is not available to the appellate judge, who must
depend on the inanimate record that cannot reveal the tell-tale signs
by which the truth may be discerned and the falsehood exposed.
Lacking any showing of arbitrariness — and there is none in the case
at bar — such findings of the trial court cannot be faulted by this
Court.
2. ID.; ID.; CREDIBILITY OF WITNESS' TESTIMONY; NOT
AFFECTED BY MINOR INCONSISTENCIES. — There are some
inconsistencies in the testimonies of the prosecution witnesses but we
do not find them substantial enough to impair the essential veracity of
their narration of Kalubiran's arrest as it actually happened. We have
said often enough that such imperfections may in fact bolster rather
than emasculate a person's credibility as one cannot be expected to
remember a particular incident with unerring accuracy in every
minute detail.
3. ID.; ID.; SALE OF PROHIBITED DRUGS; MAY TAKE
PLACE IN PUBLIC PLACE AND IN PUBLIC VIEW. — The
defense argues that Kalubiran would not have sold marijuana at a
public place and in plain view of the people as this would be contrary
to human nature and caution. We are not impressed. The people he
was with at the time were his own group, friends who were probably
aware of his unlawful trade and did not care much what he did.
Moreover, it is to be expected that he did not sell the marijuana
openly or with reckless fanfare but with appropriate furtiveness, as
befitted his shameful trade. At any rate, we have already observed in
People vs. Paco that: Drug-pushing when done on a small level as in
this case belongs to that class of crimes that may be committed at
anytime and at any place. After the offer to buy is accepted and the
exchange is made, the illegal transaction is completed in a few
minutes. The fact that the parties are in a public place and in the
presence of other people may not always discourage them from
pursuing their illegal trade as these factors may even serve to
camouflage the same. Hence, the Court has sustained the conviction
of drug pushers caught selling illegal drugs in a billiard hall (People
vs. Rubio, G.R. No. 66875, June 19, 1986, 142 SCRA 329, and other
cases).
4. ID.; ID.; ID.; MARKED MONEY PAID TO SELLER;
SUFFICIENTLY IDENTIFIED IN CASE AT BAR. — The
argument that the marijuana and the marked money were not
sufficiently identified must also be rejected. The exhibits were placed
in a steel cabinet by Villamor for safekeeping before he personally
took the marijuana to the PC Crime Laboratory for examination. It
was also Villamor who had also earlier initiated the P5.00 bill and
later identified it at the trial as the money paid to the accused-
appellant in exchange for the two sticks of marijuana.
5. CONSTITUTIONAL LAW; BILL OF RIGHTS;
WARRANTLESS ARREST LAWFUL IN CASE AT BAR. — The
defense posture that Kalubiran's arrest and search violated the Bill of
Rights demonstrates an unfamiliarity with the applicable rules and
jurisprudence. The accused-appellant was arrested in flagrante delicto
as a result of the entrapment and so came under Section 5, Rule 113
of the Rules of Court, authorizing a warrantless arrest of any person
actually committing a crime. The search was made as an incident of a
lawful arrest and so was also lawful under Section 12 of Rule 116. In
addition to the aforecited Rules, there is abundant jurisprudence
justifying warrantless searches and seizures under the conditions
established in this case.
6. ID.; ID.; PRESUMPTION OF INNOCENCE; MAY BE
OVERCOME WITH OVERWHELMING EVIDENCE
ESTABLISHING THE GUILT OF THE ACCUSED. — It is futile
for Kalubiran to invoke the constitutional presumption of innocence
because it has been overcome with overwhelming evidence
establishing his guilt. His defense is not only weak; what is worse for
him is that the prosecution is clearly strong and has proved his
offense beyond the whisper of a doubt.
D E C I S I O N
CRUZ, J p:
The accused-appellant is questioning his conviction by the Regional
Trial Court of Dumaguete City of selling marijuana in violation of the
Dangerous Drugs Act. He contends that the trial court erred in giving
credence to the evidence of the prosecution, in violating his
constitutional rights against unreasonable searches and seizures, and
in not according him the presumption of innocence.
Nestor Kalubiran was arrested on July 12, 1985, at about nine o'clock
in the evening, at Real Street in Dumaguete City, by elements of the
Narcotics Command stationed in that city. His arrest was the result of
a "buy-bust" operation in which Pat. Leon Quindo acted as the buyer
while the other team members lay in wait to arrest Kalubiran at the
pre-arranged signal. Quindo approached the accused-appellant, who
was with a group of friends in front of the Gamo Memorial Clinic,
and asked if he could "score," the jargon for buying marijuana.
Kalubiran immediately produced two sticks of marijuana, for which
Quindo paid him a previously marked P5.00 bill. Quindo then gave
the signal and Cpl. Levi Dorado approached and arrested Kalubiran.
Dorado frisked the accused-appellant. He recovered the marked
money and found 17 more sticks of marijuana on Kalubiran's person.
The other team members, namely M/Sgt. Ranulfo Villamor and Sgt.
Ruben Laddaran, came later in a jeep, where they boarded Kalubiran
to take him to the police station.
The 19 sticks of marijuana were marked and then taken to the PC
Crime Laboratory, where they were analyzed, with positive results, as
reported and later testified on by Forensic Chemist Myrna Arreola.
The above-named Narcotics agents all testified and corroborated each
other in narrating the "buy-bust" operation.
As might be expected, the defense had a different version of the
accused-appellant's arrest. Kalubiran said he and his friends were in
front of the Gamo Memorial Clinic that evening of July 12, 1985,
when a jeep stopped in front of them and several persons alighted.
One of them — whom he subsequently identified as Quindo —
approached and frisked him. Finding nothing on him, Quindo went
back to the jeep, and he for his part left for his house. However, he
was called back by another person he later came to know as Villamor.
He was told at gun point to board the jeep and taken to PC
headquarters, then to the police station. He was released the following
day with the help of a lawyer his girl friend, Norma Diez, had
contacted. He denied having sold marijuana and insisted that the 19
sticks of marijuana and the marked bill never came from him. llcd
Norma Diez corroborated Kalubiran. So did the other defense
witness, Bob Reloj, except that he testified he was also frisked and
likewise taken to PC headquarters and later to the police station,
where he and Kalubiran were detained for three days.
After examining and evaluating the evidence of the parties, Judge
Enrique C. Garrovillo found in favor of the prosecution, declared
Kalubiran guilty as charged, and sentenced him to life imprisonment
plus a P20,000.00 fine and the costs. It is from this judgment that
Kalubiran has filed this appeal.
This Court places much reliance upon the factual findings of the trial
judge who has the advantages of directly observing the witnesses on
the stand and to gauge by their demeanor whether they are being true
to their oath or lying in their teeth. Such an opportunity is not
available to the appellate judge, who must depend on the inanimate
record that cannot reveal the tell-tale signs by which the truth may be
discerned and the falsehood exposed. Lacking any showing of
arbitrariness — and there is none in the case at bar — such findings
of the trial court cannot be faulted by this Court.
There are indeed some inconsistencies in the testimonies of the
prosecution witnesses but we do not find them substantial enough to
impair the essential veracity of their narration of Kalubiran's arrest as
it actually happened. We have said often enough that such
imperfections may in fact bolster rather than emasculate a person's
credibility as one cannot be expected to remember a particular
incident with unerring accuracy in every minute detail.
It is the defense evidence that in fact suffers from the defects it would
impute to the prosecution. While it has not been shown that the
Narcotics agents were acting with ulterior motives rather than merely
pursuing their duties, Norma Diez's testimony is reasonably suspect
as she is the girl friend of Kalubiran and can be expected to be loyal
to him, to the point of even lying for him. As for Reloj, his
inconsistency with Kalubiran's testimony is not merely insignificant
but loudly proclaims its own falsity. It is noted that Reloj said he was
also arrested with the accused-appellant and the two of them were
detained at the police station for three days. The accused-appellant
said he was the only one arrested and that he was released the
following morning.
The defense argues that Kalubiran would not have sold marijuana at a
public place and in plain view of the people as this would be contrary
to human nature and caution. We are not impressed. The people he
was with at the time were his own group, friends who were probably
aware of his unlawful trade and did not care much what he did.
Moreover, it is to be expected that he did not sell the marijuana
openly or with reckless fanfare but with appropriate furtiveness, as
befitted his shameful trade. LexLib
At any rate, we have already observed in People vs. Paco 1 that:
Drug-pushing when done on a small level as in this case belongs to
that class of crimes that may be committed at anytime and at any
place. After the offer to buy is accepted and the exchange is made, the
illegal transaction is completed in a few minutes. The fact that the
parties are in a public place and in the presence of other people may
not always discourage them from pursuing their illegal trade as these
factors may even serve to camouflage the same. Hence, the Court has
sustained the conviction of drug pushers caught selling illegal drugs
in a billiard hall (People vs. Rubio, G.R. No. 66875, June 19, 1986,
142 SCRA 329; People vs. Sarmiento, G.R. No. 72141, January 12,
1987, 147 SCRA 252), in front of a store (People vs. Khan, supra)
along a street at 1:45 p.m. (People vs. Toledo, G.R. No. 67609,
November 22, 1985, 140 SCRA 259), and in front of a house (People
vs. Policarpio, G.R. No. 69844, February 23, 1988).
The defense posture that Kalubiran's arrest and search violated the
Bill of Rights demonstrates an unfamiliarity with the applicable rules
and jurisprudence. The accused-appellant was arrested in flagrante
delicto as a result of the entrapment and so came under Section 5,
Rule 113 of the Rules of Court, authorizing a warrantless arrest of
any person actually committing a crime. The search was made as an
incident of a lawful arrest and so was also lawful under Section 12 of
Rule 116. In addition to the aforecited Rules, there is abundant
jurisprudence justifying warrantless searches and seizures under the
conditions established in this case. 2
The argument that the marijuana and the marked money were not
sufficiently identified must also be rejected. The exhibits were placed
in a steel cabinet by Villamor for safekeeping before he personally
took the marijuana to the PC Crime Laboratory for examination. It
was also Villamor who had also earlier initiated the P5.00 bill and
later identified it at the trial as the money paid to the accused-
appellant in exchange for the two sticks of marijuana.
The Court notes that Kalubiran was accused only of selling the two
sticks of marijuana under Section 4 of the Dangerous Drugs Act when
he should also have been charged with possession of the 17 other
sticks found on his person at the time of his arrest. It is unfortunate
that he cannot be held to answer for the second offense because he
has not been impleaded in a separate information for violation of
Section 8 of the said law.
It is futile for Kalubiran to invoke the constitutional presumption of
innocence because it has been overcome with overwhelming evidence
establishing his guilt. His defense is not only weak; what is worse for
him is that the prosecution is clearly strong and has proved his
offense beyond the whisper of a doubt. cdll
Persons like the accused-appellant deserve the severe sanctions of the
law for the misery they spread among our people, especially the
youth, many of whom have forfeited their future because of the evil
influence of drugs. The strong arm of the law must never weaken
against the onslaughts of this terrible affliction.
WHEREFORE, the appealed judgment is AFFIRMED in toto.
SO ORDERED.
Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.
EN BANC
[G.R. No. 91107. June 19, 1991.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
MIKAEL MALMSTEDT, * defendant-appellant.
The Solicitor General for plaintiff-appellee.
Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for
defendant-appellant.
D E C I S I O N
PADILLA, J p:
In an information dated 15 June 1989, accused-appellant Mikael
Malmstedt (hereinafter referred to as the accused) was charged before
the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 10,
in Criminal Case No. 89-CR-0663, for violation of Section 4, Art. II
of Republic Act 6425, as amended, otherwise known as the
Dangerous Drugs Act of 1972, as amended. The factual background
of the case is as follows:
Accused Mikael Malmstedt, a Swedish national, entered the
Philippines for the third time in December 1988 as a tourist. He had
visited the country sometime in 1982 and 1985.
In the evening of 7 May 1989, accused left for Baguio City. Upon his
arrival thereat in the morning of the following day, he took a bus to
Sagada and stayed in that place for two (2) days.
At around 7:00 o'clock in the morning of 11 May 1989, accused went
to the Nangonogan bus stop in Sagada to catch the first available trip
to Baguio City. From Baguio City, accused planned to take a late
afternoon trip to Angeles City, then proceed to Manila to catch his
flight out of the country, scheduled on 13 May 1989. From Sagada,
accused took a Skyline bus with body number 8005 and Plate number
AVC 902. 1
At about 8:00 o'clock in the morning of that same day (11 May 1989),
Captain Alen Vasco, the Commanding Officer of the First Regional
Command (NARCOM) stationed at Camp Dangwa, ordered his men
to set up a temporary checkpoint at Kilometer 14, Acop, Tublay,
Mountain Province, for the purpose of checking all vehicles coming
from the Cordillera Region. The order to establish a checkpoint in the
said area was prompted by persistent reports that vehicles coming
from Sagada were transporting marijuana and other prohibited drugs.
Moreover, information was received by the Commanding Officer of
NARCOM, that same morning, that a Caucasian coming from Sagada
had in his possession prohibited drugs. 2
The group composed of seven (7) NARCOM officers, in coordination
with Tublay Police Station, set up a checkpoint at the designated area
at about 10:00 o'clock in the morning and inspected all vehicles
coming from the Cordillera Region.
At about 1:30 o'clock in the afternoon, the bus where accused was
riding was stopped. Sgt. Fider and CIC Galutan boarded the bus and
announced that they were members of the NARCOM and that they
would conduct an inspection. The two (2) NARCOM officers started
their inspection from the front going towards the rear of the bus.
Accused who was the sole foreigner riding the bus was seated at the
rear thereof.
During the inspection, CIC Galutan noticed a bulge on accused's
waist. Suspecting the bulge on accused's waist to be a gun, the officer
asked for accused's passport and other identification papers. When
accused failed to comply, the officer required him to bring out
whatever it was that was bulging on his waist. The bulging object
turned out to be a pouch bag and when accused opened the same bag,
as ordered, the officer noticed four (4) suspicious-looking objects
wrapped in brown packing tape, prompting the officer to open one of
the wrapped objects. The wrapped objects turned out to contain
hashish, a derivative of marijuana.
Thereafter, accused was invited outside the bus for questioning. But
before he alighted from the bus, accused stopped to get two (2)
travelling bags from the luggage carrier.
Upon stepping out of the bus, the officers got the bags and opened
them. A teddy bear was found in each bag. Feeling the teddy bears,
the officer noticed that there were bulges inside the same which did
not feel like foam stuffing. It was only after the officers had opened
the bags that accused finally presented his passport.
Accused was then brought to the headquarters of the NARCOM at
Camp Dangwa, La Trinidad, Benguet for further investigation. At the
investigation room, the officers opened the teddy bears and they were
found to also contain hashish. Representative samples were taken
from the hashish found among the personal effects of accused and the
same were brought to the PC Crime Laboratory for chemical analysis.
In the chemistry report, it was established that the objects examined
were hashish, a prohibited drug which is a derivative of marijuana.
Thus, an information was filed against accused for violation of the
Dangerous Drugs Act.
During the arraignment, accused entered a plea of "not guilty." For
his defense, he raised the issue of illegal search of his personal
effects. He also claimed that the hashish was planted by the
NARCOM officers in his pouch bag and that the two (2) travelling
bags were not owned by him, but were merely entrusted to him by an
Australian couple whom he met in Sagada. He further claimed that
the Australian couple intended to take the same bus with him but
because there were no more seats available in said bus, they decided
to take the next ride and asked accused to take charge of the bags, and
that they would meet each other at the Dangwa Station.
Likewise, accused alleged that when the NARCOM officers
demanded for his passport and other identification papers, he handed
to one of the officers his pouch bag which was hanging on his neck
containing, among others, his passport, return ticket to Sweden and
other papers. The officer in turn handed it to his companion who
brought the bag outside the bus. When said officer came back, he
charged the accused that there was hashish in the bag. He was told to
get off the bus and his picture was taken with the pouch bag placed
around his neck. The trial court did not give credence to accused's
defense. LibLex
The claim of the accused that the hashish was planted by the
NARCOM officers, was belied by his failure to raise such defense at
the earliest opportunity. When accused was investigated at the
Provincial Fiscal's Office, he did not inform the Fiscal or his lawyer
that the hashish was planted by the NARCOM officers in his bag. It
was only two (2) months after said investigation when he told his
lawyer about said claim, denying ownership of the two (2) travelling
bags as well as having hashish in his pouch bag.
In a decision dated 12 October 1989, the trial court found accused
guilty beyond reasonable doubt for violation of the Dangerous Drugs
Act, specifically Section 4, Art. II of RA 6425, as amended. 3 The
dispositive portion of the decision reads as follows:
"WHEREFORE, finding the guilt of the accused Mikael Malmstedt
established beyond reasonable doubt, this Court finds him GUILTY
of violation of Section 4, Article II of Republic Act 6425, as
amended, and hereby sentences him to suffer the penalty of life
imprisonment and to pay a fine of Twenty Thousand Pesos
(P20,000.00), with subsidiary imprisonment in case of insolvency and
to pay the costs.
Let the hashish subject of this case be turned over to the First
Narcotics Regional Unit at Camp Bado; Dangwa, La Trinidad,
Benguet for proper disposition under Section 20, Article IV of
Republic Act 425, as amended.
SO ORDERED." 4
Seeking the reversal of the decision of the trial court finding him
guilty of the crime charged, accused argues that the search of his
personal effects was illegal because it was made without a search
warrant and, therefore, the prohibited drugs which were discovered
during the illegal search are not admissible as evidence against him.
The Constitution guarantees the right of the people to be secure in
their persons, houses, papers and effects against unreasonable
searches and seizures. 5 However, where the search is made pursuant
to a lawful arrest, there is no need to obtain a search warrant. A
lawful arrest without a warrant may be made by a peace officer or a
private person under the following circumstances. 6
"SEC. 5. Arrest without warrant; when lawful. — A peace
officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested
has committed it; and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the nearest
police station or jail, and he shall be proceeded against in accordance
with Rule 112, Section 7. (6a, 17a)."
Accused was searched and arrested while transporting prohibited
drugs (hashish). A crime was actually being committed by the
accused and he was caught in flagrante delicto. Thus, the search made
upon his personal effects falls squarely under paragraph (1) of the
foregoing provisions of law, which allow a warrantless search
incident to a lawful arrest. 7
While it is true that the NARCOM officers were not armed with a
search warrant when the search was made over the personal effects of
accused, however, under the circumstances of the case, there was
sufficient probable cause for said officers to believe that accused was
then and there committing a crime. LLphil
Probable cause has been defined as such facts and circumstances
which could lead a reasonable, discreet and prudent man to believe
that an offense has been committed, and that the objects sought in
connection with the offense are in the place sought to be searched. 8
The required probable cause that will justify a warrantless search and
seizure is not determined by any fixed formula but is resolved
according to the facts of each case. 9
Warrantless search of the personal effects of an accused has been
declared by this Court as valid, because of existence of probable
cause, where the smell of marijuana emanated from a plastic bag
owned by the accused, 10 or where the accused was acting
suspiciously, 11 and attempted to flee. 12
Aside from the persistent reports received by the NARCOM that
vehicles coming from Sagada were transporting marijuana and other
prohibited drugs, their Commanding Officer also received
information that a Caucasian coming from Sagada on that particular
day had prohibited drugs in his possession. Said information was
received by the Commanding Officer of NARCOM the very same
morning that accused came down by bus from Sagada on his way to
Baguio City.
When NARCOM received the information, a few hours before the
apprehension of herein accused, that a Caucasian travelling from
Sagada to Baguio City was carrying with him prohibited drugs, there
was no time to obtain a search warrant. In the Tangliben case, 13 the
police authorities conducted a surveillance at the Victory Liner
Terminal located at Bgy. San Nicolas, San Fernando Pampanga,
against persons engaged in the traffic of dangerous drugs, based on
information supplied by some informers. Accused Tangliben who
was acting suspiciously and pointed out by an informer was
apprehended and searched by the police authorities. It was held that
when faced with on-the spot information, the police officers had to
act quickly and there was no time to secure a search warrant.
It must be observed that, at first, the NARCOM officers merely
conducted a routine check of the bus (where accused was riding) and
the passengers therein, and no extensive search was initially made. It
was only when one of the officers noticed a bulge on the waist of
accused, during the course of the inspection, that accused was
required to present his passport. The failure of accused to present his
identification papers, when ordered to do so, only managed to arouse
the suspicion of the officer that accused was trying to hide his
identity. For is it not a regular norm for an innocent man, who has
nothing to hide from the authorities, to readily present his
identification papers when required to do so?
The receipt of information by NARCOM that a Caucasian coming
from Sagada had prohibited drugs in his possession, plus the
suspicious failure of the accused to produce his passport, taken
together as a whole, led the NARCOM officers to reasonably believe
that the accused was trying to hide something illegal from the
authorities. From these circumstances arose a probable cause which
justified the warrantless search that was made on the personal effects
of the accused. In other words, the acts of the NARCOM officers in
requiring the accused to open his pouch bag and in opening one of the
wrapped objects found inside said bag (which was discovered to
contain hashish) as well as the two (2) travelling bags containing two
(2) teddy bears with hashish stuffed inside them, were prompted by
accused's own attempt to hide his identity by refusing to present his
passport, and by the information received by the NARCOM that a
Caucasian coming from Sagada had prohibited drugs in his
possession. To deprive the NARCOM agents of the ability and
facility to act accordingly, including, to search even without warrant,
in the light of such circumstances, would be to sanction impotence
and ineffectiveness in law enforcement, to the detriment of society.
WHEREFORE, premises considered, the appealed judgment of
conviction by the trial court is hereby AFFIRMED. Costs against the
accused-appellant.
SO ORDERED.
Melencio-Herrera, Paras, Feliciano, Bidin, Griño-Aquino, Medialdea,
Regalado and Davide, Jr., JJ., concur.
Sarmiento, J., is on leave.
THIRD DIVISION
[G.R. No. 120431. April 1, 1998.]
RODOLFO ESPANO, accused-petitioner, vs. COURT OF
APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
Ceferino Padua Law Office for petitioner.
The Solicitor General for respondents.
SYNOPSIS
This is a petition for review of the decision of the court of Appeals in
CA G.R. CR No. 13976 dated January 16, 1995 which affirmed in
toto the judgment of the Regional Trial Court of Manila, Branch 1,
convicting petitioner Rodolfo Espano for violation of Article II
Section 8 of Republic Act No. 6425, as amended, otherwise known as
the Dangerous Drugs Act of 1972. The records of the case reveal that
herein petitioner was caught in possession of and under his custody
twelve plastic cellophane bags weighing 5.5 grams containing
crushed flowering tops, marijuana which is a prohibited drug. In his
appeal before the Supreme Court, petitioner contends that the trial
and appellate courts erred in convicting him because (1) the pieces of
evidence seized were inadmissible; (2) the superiority of his
constitutional right to be presumed innocent over the doctrine of
presumption of regularity; (3) he was denied the constitutional right
of confrontation and to compulsory process; and (4) his conviction
was based on evidence which was irrelevant and not properly
identified. CIScaA
The Supreme Court finds that there was no compelling reason to
reverse the decisions of the trial and appellate courts. In this case, the
findings of the trial court that the prosecution witnesses were more
credible than those of the defense must stand. Petitioner failed to
show that Pat. Romeo Pagilagan, in testifying against him, was
motivated by reasons other than his duty to curb drug abuse and had
any intent to falsely impute to him such a serious crime as possession
of prohibited drugs. In the absence of such ill motive, the
presumption of regularity in the performance of his official duty must
prevail. Furthermore, the defense of alibi set up by petitioner
deserved scant consideration. He simply contended that he was in his
house sleeping at the time of the incident. Lastly, the two cellophane
bags of marijuana seized were admissible in evidence because he was
caught in flagranti as a result of a buy-bust operation conducted by
police officers. However, as for the other ten cellophane bags of
marijuana found at petitioner's residence, the same are inadmissible in
evidence considering that the said bags were seized at petitioner's
house after his arrest, hence, do not fall under the exceptions provided
under Article III, Section 2 of the 1987 Constitution. In view thereof,
the instant petition is denied and the challenged decision is affirmed
with modification as to the penalty.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF
WITNESSES; FINDINGS OF TRIAL COURTS ON THE
CREDIBILITY OF WITNESSES DESERVE A HIGH DEGREE OF
RESPECT; CASE AT BAR. — It is a well-settled doctrine that
findings of trial courts on the credibility of witness deserve a high
degree of respect. Having observed the deportment of witnesses
during the trial, the trial judge is in a better position to determine the
issue of credibility and, thus, his findings will not be disturbed during
appeal in the absence of any clear and showing that he had
overlooked, misunderstood or misapplied some facts or circumstances
of weight and substance which could have altered the conviction of
the appellants. In this case, the findings of the trial court that the
prosecution witnesses were more credible that those of the defense
must stand. Petitioner failed to show that Pat. Pagilagan, in testifying
against him, was motivated by reasons other than his duty to curb
drug abuse and had any intent to falsely impute to him such a serious
crime as possession of prohibited drugs. In the absence of such ill
motive, the presumption of regularity in the performance of his
official duty must prevail.
2. ID.; ID.; ID.; CLAIM OF FRAME-UP, LIKE ALIBI, IS A
DEFENSE THAT HAS BEEN INVARIABLY VIEWED BY THE
COURT WITH DISFAVOR; CASE AT BAR. — The defense set up
by petitioner does not deserve any consideration. He simply
contended that he was in his house sleeping at the time of the
incident. This court has consistently held that alibi is the weakest of
all defenses; and for it to prosper, the accused has the burden of
proving that he was not at the scene of the crime at the time of its
commission and that it was physically impossible for him to be there.
Moreover, the "claim of 'frame-up,' like alibi, is a defense that has
been invariably viewed by the Court with disfavor for it can just as
easily be concocted but difficult to prove, and is a common and
standard line of defense in most prosecutions arising from violations
of the Dangerous Drugs Act." No clear and convincing evidence was
presented by petitioner to prove his defense of alibi.
3. ID.; CRIMINAL PROCEDURE; WARRANTLESS
ARREST; THE MARIJUANA SEIZED FROM PETITIONER'S
HOUSE AFTER HIS ARREST IS INADMISSIBLE IN EVIDENCE;
CASE AT BAR. — The 1987 Constitution guarantees freedom
against unreasonable searches and seizures under Article III, Section
2 which provides: "The right of the people to be secure in their
persons, houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized." An exception to the
said rule is a warrantless search incidental to a lawful arrest of
dangerous weapons or anything which may be used as proof of the
commission of an offense. It may extend beyond the person of the
one arrested to include the premises or surroundings under his
immediate control. In this case, the ten cellophane bags of marijuana
seized at petitioner's house after his arrest at Pandacan and Zamora
Streets do not fall under the said exceptions. . . . The articles seized
from petitioner during his arrest were valid under the doctrine of
search made incidental to a lawful arrest. The warrantless search
made in his house, however, which yielded ten cellophane bags of
marijuana became unlawful since the police officers were not armed
with a search warrant at the time. Moreover, it was beyond the reach
and control of petitioner. HTScEI
4. CRIMINAL LAW; REPUBLIC ACT NO. 6425 AS
AMENDED BY REPUBLIC ACT 7659; IF THE QUANTITY OF
MARIJUANA INVOLVED IS LESS THAN 750 GRAMS, THE
IMPOSABLE PENALTY RANGES FROM PRISION
CORRECCIONAL TO RECLUSION TEMPORAL; CASE AT BAR.
— This Court finds petitioner Rodolfo Espano guilty beyond
reasonable doubt of violating Article II, Section 8, in relation to
Section 2 (e-L)(I) of Republic Act No. 6425, as amended. Under the
said provision, the penalty imposed is six years and one day to twelve
years and a fine ranging from six thousand to twelve thousand pesos.
With the passage of Republic Act No. 7659, which took effect on
December 31, 1993, the imposable penalty shall now depend on the
quantity of drugs recovered. Under the provisions of Republic Act
No. 7659, Section 20, and as interpreted in People v. Simon (234
SCRA 555 [1994]) and People v. Lara, (236 SCRA 291 [1994]) if the
quantity of marijuana involved is less than 750 grams, the imposable
penalty ranges from prision correccional to reclusion temporal.
Taking into consideration that petitioner is not a habitual delinquent,
the amendatory provision is favorable to him and the quantity of
marijuana involved is less than 750 grams, the penalty imposed under
Republic Act No. 7659 should be applied.
5. ID.; ID.; PROPER PENALTY THEREOF; CASE AT BAR.
— There being no mitigating nor aggravating circumstances, the
imposable penalty shall be prision correccional in its medium period.
Applying the Indeterminate Sentence Law, the maximum penalty
shall be taken from the medium period of prision correccional, which
is two (2) years, four (4) months and one (1) day to four (4) years and
two (2) months, while the minimum shall be taken from the penalty
next lower in degree, which is one (1) month and one (1) day to six
(6) months of arresto mayor. cSDHEC
D E C I S I O N
ROMERO, J p:
This is a petition for review of the decision of the Court of Appeals in
CA-G.R. CR No. 13976 dated January 16, 1995, 1 which affirmed in
toto the judgment of the Regional Trial Court of Manila, Branch 1,
convicting petitioner Rodolfo Espano for violation of Article II,
Section 8 of Republic Act No. 6425, as amended, otherwise known as
the Dangerous Drugs Act. aisadc
Petitioner was charged under the following information:
"That on or about July 14, 1991, in the City of Manila, Philippines the
said accused, not being authorized by law to possess or use any
prohibited drug, did then and there wilfully, unlawfully and
knowingly have in his possession and under his custody and control
twelve (12) plastic cellophane (bags) containing crushed flowering
tops, marijuana weighing 5.5 grams which is prohibited drug.
Contrary to law." 2
The evidence for the prosecution, based on the testimony of Pat.
Romeo Pagilagan, shows that on July 14, 1991, at about 12:30 a.m.,
he and other police officers, namely, Pat. Wilfredo Aquilino,
Simplicio Rivera, and Erlindo Lumboy of the Western Police District
(WPD), Narcotics Division went to Zamora and Pandacan Streets,
Manila to confirm reports of drug pushing in the area. They saw
petitioner selling "something" to another person. After the alleged
buyer left, they approached petitioner, identified themselves as
policemen, and frisked him. The search yielded two plastic
cellophane tea bags of marijuana . When asked if he had more
marijuana, he replied that there was more in his house. The policemen
went to his residence where they found ten more cellophane tea bags
of marijuana. Petitioner was brought to the police headquarters where
he was charged with possession of prohibited drugs. On July 24,
1991, petitioner posted bail 3 and the trial court issued his order of
release on July 29, 1991. 4
Annabelle Alip, forensic chemist of the WPD Criminal Investigation
Laboratory Section, testified that the articles sent to her by Pat.
Wilfredo Aquino regarding the apprehension of a certain Rodolfo
Espano for examination tested positive for marijuana, with total
weight of 5.5 grams.
By way of defense, petitioner that on said evening, he was sleeping in
house and was awakened only when the policemen handcuffed him.
He alleged that the policemen were looking for his brother-in-law
Lauro, and when they could not find the latter, he was brought to the
police station for investigation and later indicted for possession of
prohibited drugs. His wife Myrna corroborated his story.
The trial court rejected petitioner's defense as a "mere afterthought"
and found the version of the prosecution "more credible and
trustworthy."
Thus, on August 14, 1992, the trial court rendered a decision,
convicting petitioner of the crime charged, the dispositive portion of
which reads:
"WHEREFORE there being proof beyond reasonable doubt, the court
finds the accused Rodolfo Espano y Valeria guilty of the crime of
violation of Section 8, Article II, in relation to Section 2 (e-L) (I) of
Republic Act No. 6425 as amended by Batas Pambansa Blg. 179, and
pursuant to law hereby sentences him to suffer imprisonment of six
(6) years and one (1) day to twelve (12) years and to pay a fine of
P6,000.00 with subsidiary imprisonment in case of default plus costs.
The marijuana is declared fortified in favor of government and shall
be turned over to the Dangerous Drugs Board without delay.
SO ORDERED." 5
Petitioner appealed the decision to the Court of Appeals. The
appellate court, however, affirmed the decision of the trial court in
toto.
Hence, this petition.
Petitioner contends that the trial and appellate courts erred in
convicting him on the basis of the following: (a) the pieces of
evidence seized were inadmissible; (b) the superiority of his
constitutional right to be presumed innocent over the doctrine of
presumption of regularity; (c) he was denied the constitutional right
of confrontation and to compulsory process; and (d) his conviction
was based on evidence which was irrelevant and not properly
identified.
After a careful examination of the records of the case, this Court finds
no compelling reason sufficient to reverse the decisions of the trial
and appellate courts.
First, it is a well settled doctrine that findings of trial courts on the
credibility of witnesses deserve a high degree of respect. Having
observed the deportment of witnesses during the trial, the trial judge
is in a better position to determine the issue of credibility and, thus,
his findings will not be disturbed during appeal in the absence of any
clear showing that he had overlooked, misunderstood or misapplied
some facts or circumstances of weight and substance which could
have altered the conviction of the appellants. 6
In this case, the findings of the trial court that the prosecution
witnesses were more credible than those of the defense must stand.
Petitioner failed to show that Pat. Pagilagan, in testifying against him,
was motivated by reasons other than his duty to curb drug abuse and
had any intent to falsely impute to him such a serious crime as
possession of prohibited drugs. In the absence of such ill motive, the
presumption of regularity of his official duty must prevail.
In People v. Velasco, 7 this Court reiterated the doctrine of
presumption of regularity in the performance of official duty which
provides:
". . . Appellant failed to establish that Pat. Godoy and the other
members of the buy-bust team are policemen engaged in mulcting or
other unscrupulous activities who where motivated either by the
desire to extort money or exact personal vengeance, or by sheer whim
and caprice, when they entrapped her. And in the absence of proof of
any intent on the part of the police authorities to falsely impute such a
serious crime against appellant, as in this case, the presumption of
regularity in the performance of official duty, . . ., must prevail over
the self-serving and uncorroborated claim of appellant that she had
been framed." 8
Furthermore, the defense set up by petitioner does not deserve any
consideration. He simply contended that he was in his house sleeping
at the time of the incident. This Court has consistently held that alibi
is the weakest of all defenses; and for it to prosper, the accused has
the burden of proving that he was not at the scene of the crime of its
commission and that it was physically impossible for him to be there.
Moreover, the "claim of a 'frame-up', like alibi, is a defense that has
been invariably viewed by the Court with disfavor for it can just as
easily be concocted but difficult to prove, and is a common and
standard line of defense in most prosecutions arising from violations
of the Dangerous Drugs Act." 9 No clear and convincing evidence
was presented by petitioner to prove his defense of alibi.
Second, petitioner contends that the prosecution's failure to present
the alleged informant in court cast a reasonable doubt which warrants
his acquittal. This is again without merit, since failure of the
prosecution to produce the informant in court is of no moment
especially when he is not even the best witness to establish the fact
that a buy-bust operation had indeed been conducted. In this case, Pat.
Pagilagan, one of the policemen who apprehended petitioner, testified
on the actual incident of July 14, 1991, and identified him as the one
they caught in possession of prohibited drugs. Thus,
"We find that the prosecution had satisfactorily proved its case
against appellants. There is no compelling reason for us to overturn
the finding of the trial court that the testimony of Sgt. Gamboa, the
lone witness for the prosecution, was straightforward, spontaneous
and convincing. The testimony of a sole witness, if credible and
positive and satisfies the court beyond reasonable doubt, is sufficient
to convict." 10
Thus on the basis of Pat. Pagilagan's testimony, the prosecution was
able to prove that petitioner indeed committed the crime charged;
consequently, the finding of conviction was proper.
Lastly, the issue on the admissibility of the marijuana seized should
likewise be ruled upon. Rule 113 Section 5(a) of the Rules of Court
provides:
"A peace officer or a private person may, without a warrant, arrest a
person:
a. when, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;
xxx xxx xxx."
Petitioner's arrest falls squarely under the aforecited rule. He was
caught in flagranti as a result of a buy-bust operation conducted by
police officers on the basis of information received regarding the
illegal trade of drugs within the area of Zamora and Pandacan Streets,
Manila. The police officer saw petitioner handing over something to
an alleged buyer. After the buyer left, they searched him and
discovered two cellophanes of marijuana. His arrest was, therefore,
lawful and the two cellophane bags of marijuana seized were
admissible in evidence, being the fruits of the crime.
As for the ten cellophane bags of marijuana found at petitioner's
residence, however, the same inadmissible in evidence.
The 1987 Constitution guarantees freedom against unreasonable
searches and seizures under Article III, Section 2 which provides:
"The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever
nature and for any purposes shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized."
An exception to the said rule is a warrantless search incidental to a
lawful arrest for dangerous weapons or anything which may be used
as proof of the commission of an offense. 11 It may extend beyond
the person of the one arrested to include the premises or surroundings
under his immediate control. In this case, the ten cellophane bags of
marijuana seized at petitioner's house after his arrest at Pandacan and
Zamora Streets do not fall under the said exceptions.
In the case of People v. Lua, 12 this Court held:
"As regards the brick of marijuana found inside the appellant's house,
the trial court correctly ignored it apparently in view of its
inadmissibility. While initially the arrest as well as the body search
was lawful, the warrantless search made inside the appellant's house
became unlawful since the police operatives were not armed with a
search warrant. Such search cannot fall under "search made incidental
to a lawful arrest," the same being limited to body search and to that
point within reach or control of the person arrested, or that which may
furnish him with the means of committing violence or of escaping. In
the case at bar, appellant was admittedly outside his house when he
was arrested. Hence, it can hardly be said that the inner portion of his
house was within his reach or control."
The articles seized from petitioner during his arrest were valid under
the doctrine of search made incidental to a lawful arrest. The
warrantless search made in his house, however, which yielded ten
cellophane bags of marijuana became unlawful since the police
officers were not armed with a search warrant at the time. Moreover,
it was beyond the reach and control of petitioner.
In sum, this Court finds petitioner Rodolfo Espano guilty beyond
reasonable doubt of violating Article II, Section 8, in relation to
Section 2 (e-L) (I) of Republic Act No. 6425, as amended. Under the
said provision, the penalty imposed is six years and one day to twelve
years and a fine ranging from six thousand to twelve thousands pesos.
With the passage of Republic Act No. 7659, with took effect on
December 31, 1993, the imposable penalty shall now depend on the
quantity of drugs recovered. Under the provisions of Republic Act
No. 7659, Section 20, and as interpreted in People v. Simon 13 and
People v. Lara, 14 if the quantity of marijuana involved is less than
750 grams, the imposable penalty ranges from prision correccional to
reclusion temporal. Taking into consideration that petitioner is not a
habitual delinquent, the amendatory provision is favorable to him and
the quantity of marijuana involved is less than 750 grams, the penalty
imposed under Republic Act No. 7659 should be applied. There being
no mitigating nor aggravating circumstances, the imposable penalty
shall be prision correccional in its medium period. Applying the
Indeterminate Sentence Law, the maximum penalty shall be taken
from the medium period of prision correccional, which is two (2)
years, four (4) months and one (1) day to four (4) years and two (2)
months, while the minimum shall be taken from the penalty next
lower in degree, which is one (1) month and one (1) day six (6)
months of arresto mayor.
WHEREFORE, the instant petition is hereby DENIED. The decision
of the Court of Appeals in C.A.-G.R. CR No. 13976 dated January
16, 1995 is AFFIRMED with the MODIFICATION that petitioner
Rodolfo Espano is sentenced to suffer an indeterminate penalty of
TWO (2) months and ONE (1) day of arresto mayor, as minimum of
TWO (2) years, FOUR (4) months and ONE (1) day of prision
correccional, as minimum.
SO ORDERED.
Narvasa, C .J ., Kapunan and Purisima, JJ ., concur. Aisadc
THIRD DIVISION
[G.R. No. L-63630. April 6, 1990.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MEDEL
TANGLIBEN Y BERNARDINO, defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
Katz N. Tierra for defendant-appellant.
SYLLABUS
1. REMEDIAL LAW; 1985 RULES ON CRIMINAL
PROCEDURE; EXCEPTIONS TO THE REQUIRING SEARCH
WARRANT; CASE AT BAR. — One of the exceptions to the
general rule requiring a search warrant is a search incident to a lawful
arrest. Thus, Section 12 of Rule 126 of the 1985 Rules on Criminal
Procedure provides: "Section 12. Search incident to a lawful arrest. A
person lawfully arrested may be searched for dangerous weapons or
anything which may be used as proof of the commission of an
offense, without a search warrant." Meanwhile, Rule 113, Sec. 5(a)
provides: ". . . A peace officer or a private person may, without a
warrant, arrest a person: (a) When, in his presence, the person to be
arrested has committed, is actually committing, or is attempting to
commit an offense." Accused was caught in flagrante, since he was
carrying marijuana at the time of his arrest. This case therefore falls
squarely within the exception. The warrantless search was incident to
a lawful arrest and is consequently valid. Although the trial court's
decision did not mention it, the transcript of stenographic notes
reveals that there was an informer who pointed to the accused-
appellant as carrying marijuana. (TSN, pp. 52-53) Faced with such
on-the-spot information, the police officers had to act quickly. There
was not enough time to secure a search warrant. We cannot therefore
apply the ruling in Aminnudin to the case at bar. To require search
warrants during on-the-spot apprehensions of drug pushers, illegal
possessors of firearms, jueteng collectors, smugglers of contraband
goods, robbers, etc. would make it extremely difficult, if not
impossible to contain the crimes with which these persons are
associated.
2. ID.; EVIDENCE; CREDIBILITY OF WITNESS; TRIAL
COURT'S FINDING; ENTITLED TO GREAT RESPECT AND
ACCORDED THE HIGHEST CONSIDERATION. — As to
doubtfulness of evidence, well-settled is the rule that findings of the
trial court on the issue of credibility of witnesses and their testimonies
are entitled to great respect and accorded the highest consideration by
the appellate court. Since credibility is a matter that is peculiarly
within the province of the trial judge, who had first hand opportunity
to watch and observe the demeanor and behavior of witnesses both
for the prosecution and the defense at the time of their testimony
(People v. Tejada, G.R. No. 81520, February 21, 1989; People v.
Turla, 167 SCRA 278), we find no reason to disturb the following
findings.
3. ID.; ID.; REGULARITY OF OFFICIAL ACTS RELATIVE
TO ADMISSIBILITY OF STATEMENT TAKEN DURING IN-
CUSTODY INTERROGATION, MUST BE PROVED DURING
TRIAL. — The alleged extrajudicial confession of the accused which,
on the other hand, he categorically denied in court, that he is
transporting the marijuana leaves to Olongapo City cannot be relied
upon. Even assuming it to be true, the extrajudicial confession cannot
be admitted because it does not appear in the records that the accused,
during custodial investigation, was apprised of his rights to remain
silent and to counsel and to be informed of such rights. In People v.
Duero, 104 SCRA 379 [1981], the Court pronounced that "inasmuch
as the prosecution failed to prove that before Duero made his alleged
oral confession he was informed of his rights to remain silent and to
have counsel and because there is no proof that he knowingly and
intelligently waived those rights, his confession is inadmissible in
evidence. This ruling was reiterated in People v. Tolentino, 145
SCRA 597 [1986], where the Court added that: "In effect, the Court
not only abrogated the rule on presumption of regularity of official
acts relative to admissibility of statements taken during in-custody
interrogation but likewise dispelled any doubt as to the full adoption
of the Miranda doctrine in this jurisdiction It is now incumbent upon
the prosecution to prove during a trial that prior to questioning, the
confessant was warned of his constitutionally protected rights."
4. ID.; ID.; DANGEROUS DRUG ACT (R.A. 6425); PROPER
AUTHENTICATION OF MARIJUANA LEAVES SEIZED;
SUFFICIENTLY COMPLIED IN CASE AT BAR. — Accused-
appellant likewise asserts that the package of marijuana leaves
supposedly seized from him was never authenticated and therefore
should not have been admitted as evidence. He capitalizes on the fact
that the marijuana package brought by Patrolman Roberto Quevedo to
the PC Crime Laboratory for examination did not contain a tag
bearing the name of the accused. We rule, however, that since
Patrolman Quevedo testified that he gave the marijuana package
together with a letter-request for examination, and the forensic
chemist Marilene Salangad likewise testified that she received the
marijuana together with the letter-request and said letter-request bore
the name of the accused, then the requirements of proper
authentication of evidence were sufficiently complied with. The
marijuana package examined by the forensic chemist was
satisfactorily identified as the one seized from accused. Even
assuming arguendo that the marijuana sent to the PC Crime
Laboratory was not properly authenticated, still, we cannot discount
the separate field test conducted by witness Roberto Quevedo which
yielded positive results for marijuana.
5. ID.; ID.; ID.; NON-PRESENTATION OF INFORMER NOT
FATAL TO PROSECUTION'S CASE. — Lastly, the appellant
claims that the evidence upon which he was convicted was
insufficient and doubtful and that the prosecution failed to prove his
guilt. In attacking the sufficiency of evidence, the appellant avers that
the informer should have been presented before the lower court. We
discard this argument as a futile attempt to revive an already settled
issue. This Court has ruled in several cases that non-presentation of
the informer, where his testimony would be merely corroborative or
cumulative, is not fatal to the prosecution's case. (People v. Asio,
G.R. No. 84960, September 1, 1989; People v. Viola, G.R. No.
64262, March 16, 1989; People v. Capulong, 160 SCRA 533 [1988];
People v. Cerelegia, 147 SCRA 538).
6. ID.; ID.; ID.; ACTUAL POSSESSION OF MARIJUANA
LEAVES; PROVED BEYOND REASONABLE DOUBT. — The
trial judge likewise found the marijuana to weigh one kilo, more or
less, and from this finding extracted a clear intent to transport the
marijuana leaves. It may be pointed out, however, that although the
information stated the weight to be approximately one kilo, the
forensic chemist who examined the marijuana leaves testified that the
marijuana weighed only 600 grams. Such amount is not a
considerable quantity as to conclusively confer upon the accused an
intent to transport the marijuana leaves. Nor can it be said that the
intent to transport is clearly established from the fact that the accused
was arrested at San Fernando, Pampanga, a place which is not his
residence. Conviction of a crime with an extremely severe penalty
must be based on evidence which is clearer and more convincing than
the inferences in this case. What was therefore proved beyond
reasonable doubt is not his intent to transport the marijuana leaves but
his actual possession.
D E C I S I O N
GUTIERREZ, JR., J p:
This is an appeal from the decision of the Regional Trial Court,
Branch 41, Third Judicial Region at San Fernando, Pampanga,
Branch 41, finding appellant Medel Tangliben y Bernardino guilty
beyond reasonable doubt of violating Section 4, Article II of Republic
Act 6425 (Dangerous Drugs Act of 1972 as amended) and sentencing
him to life imprisonment, to pay a fine of P20,000 and to pay the
costs.
The information filed against the appellant alleged:
"That on or about the 2nd day of March, 1982, in the municipality of
San Fernando, Province of Pampanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused
MEDEL TANGLIBEN y BERNARDINO, knowing fully well that
Marijuana is a prohibited drug, did then and there willfully,
unlawfully and feloniously have in his possession, control and
custody one (1) bag of dried marijuana leaves with an approximate
weight of one (1) kilo and to transport (sic) the same to Olongapo
City, without authority of law to do so." (At p. 6, Rollo)
The prosecution's evidence upon which the finding of guilt beyond
reasonable doubt was based is narrated by the trial court as follows:
"It appears from the evidence presented by the prosecution that in the
late evening of March 2, 1982, Patrolmen Silverio Quevedo and
Romeo L. Punzalan of the San Fernando Police Station, together with
Barangay Tanod Macario Sacdalan, were conducting surveillance
mission at the Victory Liner Terminal compound located at Barangay
San Nicolas, San Fernando, Pampanga; that the surveillance mission
was aimed not only against persons who may commit misdemeanors
at the said place but also on persons who may be engaging in the
traffic of dangerous drugs based on informations supplied by
informers; that it was around 9:30 in the evening that said Patrolmen
noticed a person carrying a red traveling bag (Exhibit G) who was
acting suspiciously and they confronted him; that the person was
requested by Patrolmen Quevedo and Punzalan to open the red
traveling bag but the person refused, only to accede later on when the
patrolmen identified themselves; that found inside the bag were
marijuana leaves (Exhibit B) wrapped in a plastic wrapper and
weighing one kilo, more or less; that the person was asked of his
name and the reason why he was at the said place and he gave his
name as Medel Tangliben and explained that he was waiting for a ride
to Olongapo City to deliver the marijuana leaves; that the accused
was taken to the police headquarters at San Fernando, Pampanga, for
further investigation; and that Pat. Silverio Quevedo submitted to his
Station Commander his Investigator's Report (Exhibit F).
It appears also from the prosecution's evidence that in the following
morning or on March 3, 1982, Pat. Silverio Quevedo asked his co-
policeman Pat. Roberto Quevedo, who happens to be his brother and
who has had special training on narcotics, to conduct a field test on a
little portion of the marijuana leaves and to have the remaining
portion examined by the PCCL at Camp Olivas, San Fernando,
Pampanga; that Pat. Roberto Quevedo conducted a field test (Exhibit
H) on the marijuana leaves and found positive result for marijuana
(Exhibit E); that the remaining bigger quantity of the marijuana
leaves were taken to the PCCL at Camp Olivas by Pat. Roberto
Quevedo that same day of March 3, 1982 (Exhibit A and A-1) and
when examined, the same were also found to be marijuana (Exhibit C
and C-1)." (At pp. 910, Rollo)
Only the accused testified in his defense. His testimony is narrated by
the trial court as follows:
"The accused declared that he got married on October 25, 1981 and
his wife begot a child on June 10, 1982; that he was formerly
employed in the poultry farm of his uncle Alejandro Caluma in
Antipolo, Rizal; that he is engaged in the business of selling poultry
medicine and feeds, including chicks, and used to conduct his
business at Taytay, Rizal; that he goes to Subic at times in connection
with his business and whenever he is in Subic, he used to buy C-
rations from one Nena Ballon and dispose the same in Manila; that he
never left his residence at Antipolo, Rizal, on March 2, 1982; that on
March 3, 1982, he went to Subic to collect a balance of P100.00 from
a customer thereat and to buy C-rations; that he was able to meet
Nena Ballon at 6:00 o'clock in the evening and he stayed in Nena's
house up to 8:00 o'clock because he had a drinking spree with Nena's
son; that he tried to catch the 8:00 o'clock trip to Manila from
Olongapo City but he failed and was able to take the bus only by 9:00
o'clock that evening; that it was a Victory Liner Bus that he rode and
because he was tipsy, he did not notice that the bus was only bound
for San Fernando Pampanga; that upon alighting at the Victory Liner
Compound at San Fernando, Pampanga he crossed the street to wait
for a bus going to Manila; that while thus waiting for a bus, a man
whom he came to know later as Pat. Punzalan, approached him and
asked him if he has any residence certificate; that when he took out
his wallet, Pat. Punzalan got the wallet and took all the money inside
the wallet amounting to P545.00; that Pat. Punzalan told him that he'll
be taken to the municipal building for verification as he may be an
NPA member; that at the municipal building, he saw a policeman,
identified by him later as Pat. Silverio Quevedo, sleeping but was
awakened when he arrived; that Pat. Quevedo took him upstairs and
told him to take out everything from his pocket saying that the
prisoners inside the jail may get the same from him; that inside his
pocket was a fifty-peso bill and Pat. Quevedo took the same, telling
him that it shall be returned to him but that it was never returned to
him; that he was thereafter placed under detention and somebody told
him that he is being charged with possession of marijuana and if he
would like to be bailed out, somebody is willing to help him; and, that
when he was visited by his wife, he told his wife that Patrolman
Silverio Quevedo took away all his money but he told his wife not to
complain anymore as it would be useless." (Rollo, pp. 10-11)
Appellant, through counsel de oficio Atty. Enrique Chan, raised the
lone assignment of error in his appeal:
"THE COURT A QUO ERRED IN CONVICTING THE
ACCUSED-APPELLANT AND FINDING HIM GUILTY OF THE
CRIME CHARGED ON INSUFFICIENT AND DOUBTFUL
EVIDENCE." (At p. 48, Rollo)
The Solicitor-General likewise filed his brief, basically reiterating the
lower court's findings.
However, before this Court had the chance to act on appeal, counsel
de oficio Atty. Enrique Chan died. Thereafter, this court appointed a
new counsel de oficio, Atty. Katz Tierra, and pursuant thereto, the
Deputy Clerk of Court, in behalf of the Clerk of Court, required the
new counsel to file her appellant's brief. The latter complied and, in
her brief, raised the following assignment of errors:
I
"THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE
THE PACKAGE OF MARIJUANA ALLEGEDLY SEIZED FROM
DEFENDANT-APPELLANT AS IT WAS A PRODUCT OF AN
UNLAWFUL SEARCH WITHOUT A WARRANT.
II
THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE
THE ALLEGED PACKAGE OF MARIJUANA LEAVES AS THE
LEAVES SUPPOSEDLY SEIZED FROM ACCUSED WHEN IT
WAS NEVER AUTHENTICATED.
III
THE LOWER COURT ERRED IN NOT RULING THAT THE
PROSECUTION FAILED TO PROVE THE GUILT OF
DEFENDANT-APPELLANT." (At pp. 92-93, Rollo)
It is contended that the marijuana allegedly seized from the accused
was a product of an unlawful search without a warrant and is
therefore inadmissible in evidence.
This contention is devoid of merit.
One of the exceptions to the general rule requiring a search warrant is
a search incident to a lawful arrest. Thus, Section 12 of Rule 126 of
the 1985 Rules on Criminal Procedure provides:
"Section 12. Search incident to a lawful arrest. A person lawfully
arrested may be searched for dangerous weapons or anything which
may be used as proof of the commission of an offense, without a
search warrant."
Meanwhile, Rule 113, Sec. 5(a) provides:
". . . A peace officer or a private person may, without a warrant, arrest
a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense."
Accused was caught in flagrante, since he was carrying marijuana at
the time of his arrest. This case therefore falls squarely within the
exception. The warrantless search was incident to a lawful arrest and
is consequently valid.
In the case of People v. Claudio, 160 SCRA 646, [1988] this Court,
confronted with the same issue, held that:
"Appellant Claudio was caught transporting prohibited drugs. Pat.
Daniel did not need a warrant to arrest Claudio as the latter was
caught in flagrante delicto. The warrantless search being an incident
to a lawful arrest is in itself lawful. (Nolasco v Pano, 147 SCRA 509).
Therefore, there was no infirmity in the seizure of the 1.1 kilos of
marijuana."
We are not unmindful of the decision of this Court in People v.
Aminnudin, 163 SCRA 402 [1988]. In that case the PC officers had
earlier received a tip from an informer that accused-appellant was on
board a vessel bound for Iloilo City and was carrying marijuana.
Acting on this tip, they waited for him one evening, approached him
as he descended from the gangplank, detained him and inspected the
bag he was carrying. Said bag contained marijuana leaves. The Court
held that the marijuana could not be admitted in evidence since it was
seized illegally.
The records show, however, that there were certain facts, not existing
in the case before us, which led the Court to declare the seizure as
invalid. As stated therein: prLL
"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 of 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 contrast, the case before us presented urgency. Although the trial
court's decision did not mention it, the transcript of stenographic
notes reveals that there was an informer who pointed to the accused-
appellant as carrying marijuana. (TSN, pp. 52-53) Faced with such
on-the-spot information, the police officers had to act quickly. There
was not enough time to secure a search warrant. We cannot therefore
apply the ruling in Aminnudin to the case at bar. To require search
warrants during on-the-spot apprehensions of drug pushers, illegal
possessors of firearms, jueteng collectors, smugglers of contraband
goods, robbers, etc. would make it extremely difficult, if not
impossible to contain the crimes with which these persons are
associated.
Accused-appellant likewise asserts that the package of marijuana
leaves supposedly seized from him was never authenticated and
therefore should not have been admitted as evidence. He capitalizes
on the fact that the marijuana package brought by Patrolman Roberto
Quevedo to the PC Crime Laboratory for examination did not contain
a tag bearing the name of the accused. We rule, however, that since
Patrolman Quevedo testified that he gave the marijuana package
together with a letter-request for examination, and the forensic
chemist Marilene Salangad likewise testified that she received the
marijuana together with the letter-request and said letter-request bore
the name of the accused, then the requirements of proper
authentication of evidence were sufficiently complied with. The
marijuana package examined by the forensic chemist was
satisfactorily identified as the one seized from accused.
Even assuming arguendo that the marijuana sent to the PC Crime
Laboratory was not properly authenticated, still, we cannot discount
the separate field test conducted by witness Roberto Quevedo which
yielded positive results for marijuana.
Lastly, the appellant claims that the evidence upon which he was
convicted was insufficient and doubtful and that the prosecution
failed to prove his guilt.
In attacking the sufficiency of evidence, the appellant avers that the
informer should have been presented before the lower court. We
discard this argument as a futile attempt to revive an already settled
issue. This Court has ruled in several cases that non-presentation of
the informer, where his testimony would be merely corroborative or
cumulative, is not fatal to the prosecution's case. (People v. Asio,
G.R. No. 84960, September 1, 1989; People v. Viola, G.R. No.
64262, March 16, 1989; People v. Capulong, 160 SCRA 533 [1988];
People v. Cerelegia, 147 SCRA 538).
As to doubtfulness of evidence, well-settled is the rule that findings of
the trial court on the issue of credibility of witnesses and their
testimonies are entitled to great respect and accorded the highest
consideration by the appellate court. Since credibility is a matter that
is peculiarly within the province of the trial judge, who had first hand
opportunity to watch and observe the demeanor and behavior of
witnesses both for the prosecution and the defense at the time of their
testimony (People v. Tejada, G.R. No. 81520, February 21, 1989;
People v. Turla, 167 SCRA 278), we find no reason to disturb the
following findings: LLjur
"The testimony of prosecution witnesses Patrolmen Silverio Quevedo
and Romeo Punzalan are positive and sufficiently clear to show the
commission by the accused of the offense herein charged. These
prosecution witnesses have no motive to fabricate the facts and to
foist a very serious offense against the accused. The knowledge on
what these witnesses testified to were (sic) acquired by them in the
official performance of their duties and their (sic) being no showing
that they are prejudiced against the accused, their testimonies deserve
full credit.
The testimonies of the afore-mentioned patrolmen that what they
found in the possession of the accused were marijuana leaves were
corroborated by the examination findings conducted by Pat. Roberto
Quevedo (Exhibit H) and by Forensic Chemist Marlene Salangad of
the PCCL, with station at Camp Olivas, San Fernando, Pampanga
(Exhibits C and C-1). (Rollo, p. 11)
"Moreover, if there is truth in the testimony of the accused to the
effect that Pat. Punzalan got all the money from his wallet when he
was accosted at the Victory Liner Terminal and was told just to keep
quiet, otherwise he will be 'salvaged', why will Pat. Punzalan still
bring the accused to the Municipal Building for interrogation and/or
verification? Would not Pat. Punzalan be exposing his identity to the
accused? This is unnatural. And this is also true on the testimony of
the accused that Pat. Silverio Quevedo got his fifty-peso bill and
never returned the same to him. If the two policemen really got any
money from the accused and that the marijuana leaves do not belong
to the accused, why will the two policemen still produce in Court as
evidence that expensive-looking traveling red bag (Exhibit G) taken
from the accused and which contained the marijuana leaves in
question if the instant case is a mere fabrication?
As already stated, all the evidence, oral and documentary, presented
by the prosecution in this case were all based on personal knowledge
acquired by the prosecution witnesses in the regular performance of
their official duties and there is nothing in their testimonies to show
that they are bias (sic) or that they have any prejudice against the
herein accused. Between the testimonies of these prosecution
witnesses and that of the uncorroborated and self-serving testimony
of the accused, the former should prevail." (Rollo, p. 13)
Likewise, the appellant chose to limit his defense to his own
testimony. He could have availed himself through compulsory court
processes of several witnesses to buttress his defense. Since not one
other witness was presented nor was any justification for the non-
appearance given, the inadequacy of his lone and uncorroborated
testimony remains. It cannot prevail vis-a-vis the positive testimonies
given by the prosecution witnesses.
Moreover, the appellant's having jumped bail is akin to flight which,
as correctly observed by the lower court, is an added circumstance
tending to establish his guilt. LibLex
We take exception, however, to the trial court's finding that:
"The dried marijuana leaves found in the possession of the accused
weighs one (1) kilo, more or less. The intent to transport the same is
clear from the testimony of Pat. Silverio Quevedo who declared,
among other things, that when he confronted the accused that night,
the latter told him that he (accused) is bringing the marijuana leaves
to Olongapo City. Moreover, considering the quantity of the
marijuana leaves found in the possession of the accused and the place
he was arrested which is at San Fernando, Pampanga, a place where
the accused is not residing, it can be said that the intent to transport
the marijuana leaves has been clearly established." (Rollo, pp. 13-14)
The alleged extrajudicial confession of the accused which, on the
other hand, he categorically denied in court, that he is transporting the
marijuana leaves to Olongapo City cannot be relied upon. Even
assuming it to be true, the extrajudicial confession cannot be admitted
because it does not appear in the records that the accused, during
custodial investigation, was apprised of his rights to remain silent and
to counsel and to be informed of such rights. In People v. Duero, 104
SCRA 379 [1981], the Court pronounced that "inasmuch as the
prosecution failed to prove that before Duero made his alleged oral
confession he was informed of his rights to remain silent and to have
counsel and because there is no proof that he knowingly and
intelligently waived those rights, his confession is inadmissible in
evidence. This ruling was reiterated in People v. Tolentino, 145
SCRA 597 [1986], where the Court added that:
"In effect, the Court not only abrogated the rule on presumption of
regularity of official acts relative to admissibility of statements taken
during in-custody interrogation but likewise dispelled any doubt as to
the full adoption of the Miranda doctrine in this jurisdiction It is now
incumbent upon the prosecution to prove during a trial that prior to
questioning, the confessant was warned of his constitutionally
protected rights."
The trial judge likewise found the marijuana to weigh one kilo, more
or less, and from this finding extracted a clear intent to transport the
marijuana leaves. It may be pointed out, however, that although the
information stated the weight to be approximately one kilo, the
forensic chemist who examined the marijuana leaves testified that the
marijuana weighed only 600 grams. Such amount is not a
considerable quantity as to conclusively confer upon the accused an
intent to transport the marijuana leaves.
Nor can it be said that the intent to transport is clearly established
from the fact that the accused was arrested at San Fernando,
Pampanga, a place which is not his residence. Conviction of a crime
with an extremely severe penalty must be based on evidence which is
clearer and more convincing than the inferences in this case. LexLib
What was therefore proved beyond reasonable doubt is not his intent
to transport the marijuana leaves but his actual possession.
The offense committed by the appellant is possession of marijuana
under Section 8 of Republic Act No. 6425 (Dangerous Drugs Act of
1972 as amended).
WHEREFORE, the judgment of conviction by the trial court is
hereby AFFIRMED but MODIFIED. The appellant is sentenced to
suffer the penalty of imprisonment ranging from six (6) years and one
(1) day to twelve (12) years and fine of Six Thousand (P6,000.00)
Pesos.
SO ORDERED.
Fernan, C.J., Feliciano, Bidin and Cortes, JJ., concur.
EN BANC
[G.R. Nos. 130568-69. March 21, 2000.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CHE
CHUN TING alias "DICK", accused-appellant.
The Solicitor General for plaintiff-appellee.
Teddy C. Macapagal for accused-appellant.
SYNOPSIS
Accused-appellant CHE CHUN TING, a Hongkong national, was
caught in flagrante delicto as a result of the entrapment conducted by
the NARCOM operatives on the basis of the information provided by
Mabel Cheung Mei Po regarding accused-appellant's illegal trade.
NARCOM agents P/lnsp. Santiago and SPO3 Campanilla saw him
handing over a bag of white crystalline substance to Mabel Cheung
Mei Po, which, upon forensic examination, was found positive for
methylamphetamine hydrochloride or shabu. AaCEDS
On 22 August 1997, the trial court found accused-appellant guilty of
delivering, distributing and dispatching in transit 999.43 grams of
shabu (Criminal Case No. 96-8932) and, having in his custody,
possession and control 5,578.68 grams of the same regulated drug
(Criminal Case No. 96-8933). He was meted two (2) death sentences,
one for violation of Sec. 15 and the other for violation of Sec. 16,
both of Art. III, of RA 6425 (The Dangerous Drugs Act of 1972, as
amended). He was likewise ordered to pay a fine. Hence, this
automatic review.
The inadmissibility of the 5,578.68 grams of shabu in evidence does
not totally exonerate accused-appellant. The illegal search in Unit 122
was preceded by a valid arrest. His arrest was lawful and the seized
bag of shabu weighing 999.43 grams was admissible in evidence,
being the fruit of the crime.
The testimony of the police informant in an illegal drug case is not
essential for the conviction of the accused since that testimony would
merely be corroborative and cumulative. In the instant case, the Court
found the narration of events by the police officers positive, credible
and entirely in accord with human experience. It has not been shown
that they had an improper motive for testifying as they did.
There is no law or rule of evidence requiring the forensic chemist to
test the entire quantity of seized drugs to determine whether the
whole lot is really prohibited or regulated drugs as suspected. A
sample taken from a package may be logically presumed to be
representative of the whole contents of the package. Hence, the Court
is satisfied that the prosecution has established the guilt of the
accused-appellant in Criminal Case No. 96-8932. However, it
reduced the penalty to reclusion perpetua since there were neither
mitigating nor aggravating circumstances attending appellant's
violation of the law. On the other hand, the Court acquitted appellant
in Criminal Case No. 96-8933 since his constitutional right against
unreasonable searches and seizures was violated, rendering the
evidence against him inadmissible.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT
AGAINST UNREASONABLE SEARCHES AND SEIZURES; ANY
EVIDENCE OBTAINED IN VIOLATION THEREOF,
INADMISSIBLE IN EVIDENCE; EXCEPTIONS. — The 1987
Constitution ordains that no arrest, search or seizure can be made
without a valid warrant issued by a competent judicial authority. 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 mandates that any evidence obtained in
violation thereof shall be inadmissible for any purpose in any
proceeding. The right is not absolute and admits of certain well-
recognized exceptions. For instance, a person lawfully arrested may
be searched for dangerous weapons or anything which may be used as
proof of the commission of the offense, without a search warrant. The
search may extend beyond the person of the one arrested to include
the permissible area or surroundings within his immediate control.
CaTSEA
2. ID.; ID.; ID.; ID.; ID.; WARRANTLESS SEARCH; TO BE
VALID, IT MUST BE LIMITED TO AND CIRCUMSCRIBED BY
SUBJECT, TIME AND PLACE OF ARREST. — The lawful arrest
being the sole justification for the validity of the warrantless search
under the exception, the same must be limited to and circumscribed
by the subject, time and place of the arrest. As to subject, the
warrantless search is sanctioned only with respect to the person of the
suspect, and things that may be seized from him are limited to
"dangerous weapons" or "anything which may be used as proof of the
commission of the offense." With respect to the time and place of the
warrantless search, it must be contemporaneous with the lawful
arrest. Stated otherwise, to be valid, the search must have been
conducted at about the time of the arrest or immediately thereafter
and only at the place where the suspect was arrested, or the premises
or surroundings under his immediate control. It must be stressed that
the purposes of the exception are only to protect the arresting officer
against physical harm from the person being arrested who might be
armed with a concealed weapon, and also to prevent the person
arrested from destroying the evidence within his reach. The exception
therefore should not be strained beyond what is needed in order to
serve its purposes, as what the Solicitor General would want us to do.
3. ID.; ID.; ID.; VIOLATED IN CASE AT BAR. — The
accused was admittedly outside Unit 122 and in the act of delivering
to Mabel Cheung Mei Po a bag of shabu when he was arrested by the
NARCOM operatives. Moreover, it is borne by the records that Unit
122 was not even his residence but that of his girlfriend Nimfa Ortiz,
and that he was merely a sojourner therein. Hence, it can hardly be
said that the inner portion of the house constituted a permissible area
within his reach or immediate control, to justify a warrantless search
therein. We therefore hold that the search in Unit 122 and the seizure
therein of some 5,578.68 grams of shabu do not fall within the
exception, hence, were illegal for being violative of one's basic
constitutional right and guarantee against unreasonable searches and
seizures.
4. ID.; ID.; ID.; THINGS SEIZED ON OCCASION OF
ILLEGAL SEARCH ARE INADMISSIBLE IN EVIDENCE;
OBJECTS AND PROPERTIES POSSESSION OF WHICH IS
PROHIBITED BY LAW CANNOT BE RETURNED TO THEIR
OWNERS NOTWITHSTANDING ILLEGALITY OF SEIZURE. —
As a consequence of the illegal search, the things seized on the
occasion thereof are inadmissible in evidence under the exclusionary
rule. They are regarded as having been obtained from a polluted
source, the "fruit of a poisonous tree." However, objects and
properties the possession of which is prohibited by law cannot be
returned to their owners notwithstanding the illegality of their seizure.
Thus, the shabu seized by the NARCOM operatives which cannot
legally be possessed by the accused under the law, can and must be
retained by the government to be disposed of in accordance with law.
CaEIST
5. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY:
INADMISSIBILITY OF 5,578.68 GRAMS OF SHABU DOES NOT
TOTALLY EXONERATE ACCUSED; CASE AT BAR. — The
inadmissibility of the 5,578.68 grams of shabu in evidence does not
totally exonerate the accused. The illegal search in Unit 122 was
preceded by a valid arrest. The accused was caught in flagrante
delicto as a result of an entrapment conducted by NARCOM
operatives on the basis of the information provided by Mabel Cheung
Mei Po regarding the accused' illegal trade. NARCOM agents P/Insp.
Santiago and SPO3 Campanilla saw him handing over a bag of white
crystalline substance to Mabel Cheung Mei Po. His arrest was lawful
and the seized bag of shabu weighing 999.43 grams was admissible in
evidence, being the fruit of the crime.
6. ID.; ID.; CREDIBILITY OF WITNESSES; FINDINGS OF
TRIAL COURT WITH RESPECT THERETO GIVEN WEIGHT
AND AT TIMES EVEN FINALITY BY APPELLATE COURTS;
TESTIMONY OF POLICE INFORMANT IN ILLEGAL DRUG
CASE NOT ESSENTIAL FOR CONVICTION OF ACCUSED. —
As we have consistently stressed in the majority of appeals in
criminal cases, appellate courts give weight, and at times even
finality, to the findings of the trial judge who is in a better position to
determine the credibility of witnesses, as he can observe firsthand
their demeanor and deportment while testifying. Appellate courts
have none of the judge's advantageous position; they rely merely on
the cold records of the case and on the judge's discretion. As
mentioned earlier, Mabel Cheung Mei Po turned hostile witness in the
course of the trial. The defense capitalized on such fact and
hammered the prosecution on this point, arguing that Mabel's
testimony during her cross-examination virtually belied the
prosecution's factual theory of the case and cast doubt on the
testimony of the NARCOM agents. But we are not persuaded. Mabel
Cheung Mei Po turned hostile witness understandably because of her
adverse interest in the case. She was separately charged for violation
of Sec. 15, Art. III, RA 6425, although she was subsequently
acquitted by the trial court on reasonable doubt. It is therefore to be
expected that she would be extremely cautious in giving her
testimony as it might incriminate her. At any rate, the testimony of
the police informant in an illegal drug case is not essential for the
conviction of the accused since that testimony would merely be
corroborative and cumulative. Hence, even if we concede that Mabel
Cheung Mei Po's testimony was discredited on account of the
dismissal of the criminal case against her, the prosecution could still
rely on the testimonies of the arresting officers and secure a
conviction on the basis thereof.
7. ID.; ID.; ID.; LACK OF IMPROPER MOTIVE TO TESTIFY
FALSELY AGAINST ACCUSED; NO REASON TO DENIGRATE
DECLARATION OF LAW ENFORCERS; CASE AT BAR. — The
attempt of the accused to downgrade the testimonies of the
NARCOM agents is bereft of substantial basis since it has not been
shown that they had an improper motive for testifying as they did. It
would not be amiss to point out that NARCOM agents are not just
ordinary witnesses but are law enforcers. As compared to the baseless
disclaimers of the witnesses for the defense, the narration of the
incident of the police officers is far more worthy of belief coming as
it does from law enforcers who are presumed to have regularly
performed their duty in the absence of proof to the contrary. From the
evidence at hand, we find no reason to denigrate their declarations.
8. ID.; ID.; ID.; TESTIMONY OF POLICE OFFICERS GIVEN
CREDENCE. — There is no doubt from the records that the accused
was caught in flagrante delicto, i.e., in the act of delivering shabu.
The evidence for the prosecution is both substantial and convincing.
At its core is the testimony of P/Insp. Santiago and SPO3 Campanilla
who categorically pointed to the accused as the person who handed to
Mabel a plastic bag of white crystalline substance which, upon
forensic examination, was found positive for methylamphetamine
hydrochloride or shabu. As can be gleaned from the assailed decision
of the trial court, the narration of events by the police officers is
positive, credible and entirely in accord with human experience. It
bears all the earmarks of truth that it is extremely difficult for a
rational mind not to give credence to it. They testified in a clear,
precise and straightforward manner, and even the rigid cross-
examination by the defense could not dent the essence of their
testimonies.
9. ID.; ID.; CHEMICAL ANALYSIS NOT INDISPENSABLE
PREREQUISITE TO ESTABLISH WHETHER CERTAIN
SUBSTANCE OFFERED IN EVIDENCE IS A PROHIBITED
DRUG; DEGREE OF FAMILIARITY OF A WITNESS WITH
PROHIBITED DRUGS ONLY AFFECTS WEIGHT AND NOT
COMPETENCY OF TESTIMONY. — Primarily, there is no law or
rule of evidence requiring the forensic chemist to test the entire
quantity of seized drugs to determine whether the whole lot is really
prohibited or regulated drugs as suspected. On the contrary, it has
always been the standard procedure in the PNP Crime Laboratory to
test only samples of the drugs submitted for laboratory examination.
A sample taken from a package may be logically presumed to be
representative of the whole contents of the package. Moreover, we
held in one case that chemical analysis is not an indispensable
prerequisite to establish whether a certain substance offered in
evidence is a prohibited drug. The ability to recognize these drugs can
be acquired without any knowledge of chemistry to such an extent
that the testimony of a witness on the point may be entitled to great
weight. Such technical knowledge is not required, and the degree of
familiarity of a witness with such drugs only affects the weight and
not the competency of his testimony. At any rate, it was up to the
defense to prove by clear and convincing evidence that the findings of
the forensic chemist were erroneous. In the absence of such evidence,
the positive results of the tests conducted by the chemist should be
accepted as conclusive. After all, she has in her favor the presumption
that she regularly performed her official duty, which was to carry out
those tests in accordance with the accepted standard procedure.
10. CRIMINAL LAW; THE DANGEROUS DRUGS ACT OF
1972, AS AMENDED; PENALTY. — This Court is satisfied that the
prosecution has established the guilt of the accused beyond
reasonable doubt in Crim. Case No. 96-8932. Accordingly, he must
suffer for his serious crime of poisoning the health and future of this
nation. However, we refrain from imposing the capital punishment.
As amended by RA 7659, Sec. 20, Art. IV of The Dangerous Drugs
Act now provides in part that the penalty in Sec. 15, Art. III, shall be
applied if the dangerous drug involved is, in the case of shabu or
methamphetamine hydrochloride 200 grams or more and the delivery
or distribution of regulated drugs without proper authority is
penalized with reclusion perpetua to death and a fine ranging from
P500,000.00 to P10,000,000.00. Thus the law prescribes two (2)
indivisible penalties, reclusion perpetua and death. Pursuant to Art. 63
of The Revised Penal Code, since there were neither mitigating nor
aggravating circumstances attending accused's violation of the law,
the lesser penalty of reclusion perpetua is the proper imposable
penalty. The legislature never intended that where the quantity of the
dangerous drugs involved exceeds those stated in Sec. 20, the
maximum penalty of death shall automatically be imposed. Nowhere
in the amendatory law is there a provision from which such a
conclusion may be drawn. On the contrary, this Court has already
concluded in People v. Gatward that RA 7659 did not amend Art. 63
of the Revised Penal Code, and the rules therein were observed
although the cocaine subject of that case was also in excess of the
quality provided in Sec. 20. DScTaC
D E C I S I O N
BELLOSILLO, J p:
CHE CHUN TING alias "DICK," a Hong Kong national, was found
guilty by the trial court on 22 August 1997 of delivering, distributing
and dispatching in transit 999.43 grams of shabu; 1 and, having in his
custody, possession and control 5,578.68 grams of the same regulated
drug. 2 He was meted two (2) death sentences, one for violation of
Sec. 15 and the other for violation of Sec. 16, both of Art. III, of RA
6425 (The Dangerous Drugs Act of 1972, as amended). 3 He was
likewise ordered to pay a fine of P1,000,000.00 in the first case, and
P12,000,000.00 in the second. 4 He is now before us on automatic
review. cdll
The antecedent facts: Following a series of buy-bust operations, the
elements of the Special Operation Unit, Narcotics Command,
apprehended a suspected drug courier, Mabel Cheung Mei Po, after
she delivered a transparent plastic bag containing a white crystalline
substance to an informant, in full view of NARCOM agents. When
questioned, Mabel Cheung Mei Po cooperated with the government
agents and revealed the name of accused Che Chun Ting as the source
of the drugs.
On 27 June 1996 the Narcotics Command deployed a team of agents
for the entrapment and arrest of Che Chun Ting. The team was
composed of Major Marcelo Garbo, a certain Captain Campos, 5
P/Insp. Raymond Santiago, SPO3 Renato Campanilla, and a civilian
interpreter. The members of the NARCOM team were in two (2)
vehicles: a Nissan Sentra Super Saloon driven by Mabel with P/Insp.
Santiago and SPO3 Campanilla as passengers; and the other vehicle,
with Major Garbo, Captain Campos and the civilian interpreter on
board. At around 7 o'clock in the morning they proceeded to the
Roxas Seafront Garden in Pasay City where Che Chun Ting was and
had the place under surveillance. Later, they moved to the
McDonald's parking lot where the civilian interpreter transferred to
the Nissan car. Mabel then called Che Chun Ting through her cellular
phone and spoke to him in Chinese. According to the interpreter, who
translated to the NARCOM agents the conversation between Mabel
and Che Chun Ting, Mabel ordered one (1) kilo of shabu.
At around 10:30 o'clock in the morning of the same day, Mabel
received a call from the accused that he was ready to deliver the stuff.
She immediately relayed the message to the NARCOM agents. After
receiving the go-signal from Major Garbo, P/Insp. Santiago, SPO3
Campanilla and Mabel proceeded to the Roxas Seafront Garden. The
other vehicle followed but trailed behind within reasonable distance
to serve as a blocking force. LexLib
Upon arriving at the Roxas Seafront Garden, Mabel honked twice and
went to Unit 122. The two (2) NARCOM agents, who waited inside
the car parked two (2) meters away, saw the door of the unit open as a
man went out to hand Mabel a transparent plastic bag containing a
white crystalline substance. The NARCOM agents immediately
alighted and arrested the surprised man who was positively identified
by Mabel as Che Chun Ting. Then the agents radioed their superiors
in the other car and coordinated with the security guard on duty at the
Roxas Seafront Garden to make a search of Unit 122. During the
search SPO3 Campanilla seized a black bag with several plastic bags
containing a white crystalline substance in an open cabinet at the
second floor. The bag was examined in the presence of Major Garbo,
the accused himself, and his girlfriend Nimfa Ortiz. The accused
together with the evidence was then brought to Camp Crame where
Forensic Chemist P/Sr. Inspector Julita T. de Villa after conducting
laboratory tests found the white crystalline substance to be positive
for methylamphetamine hydrochloride or shabu. 6
The defense has a different version. Nimfa Ortiz narrated that she sent
her brother Noli Ortiz to meet Mabel Cheung Mei Po in front of the
Allied Bank at the EDSA Extension to help the latter find a lawyer
and at the same time get the laser disc she lent to Mabel. Noli testified
that when he got inside the car of Mabel a policeman sitting at the
back of the car suddenly hit him on the head. The car then proceeded
to McDonald's at Roxas Boulevard near the Roxas Seafront Garden
where he was moved to another car, a green Nissan Sentra, with
Major Garbo, Captain Lukban and a certain Palma (perceived to be
the civilian interpreter) on board. Mabel stayed behind at McDonald's
until she was brought back to Camp Crame.
Noli Ortiz, Major Garbo, Captain Lukban and Palma went to the
Roxas Seafront Garden where they parked the car five (5) to seven (7)
meters away from Unit 122. Noli rang the doorbell of the unit. When
Nimfa opened the door, two (2) NARCOM officers suddenly forced
their way inside and searched the premises. Noli denied having seen
any black bag seized by SPO3 Campanilla; instead, what he saw was
his sister's video camera being carted away by the NARCOM agents.
He further testified that when his sister was made to sign a
certification on the conduct of the search on Unit 122 she was
frightened and crying. He claimed that accused Che Chun Ting was
then asleep at the second floor of the unit.
The defense presented documents showing that the owner of Unit 122
was Nimfa Ortiz and not accused Che Chun Ting who lived at 1001
Domingo Poblete St., BF Homes, Parañaque. 7 This information,
according to the defense, was vital for purposes of ascertaining the
legality of the search on Unit 122 as well as the seizure therein of a
black bag containing several plastic bags of shabu. Finally, the
defense assailed the lower court for relying on the testimony of Mabel
who turned hostile witness in the course of the trial. 8
Accused Che Chun Ting now contends that the trial court erred: (a) in
convicting him on the basis of the shabu seized inside Unit 122,
which was constitutionally inadmissible as evidence since it was
seized without a search warrant; (b) in failing to recognize that the
testimony of Mabel Cheung Mei Po, who turned hostile witness in the
course of the trial, has discredited the prosecution case and cast doubt
on the testimonies of P/Insp. Santiago and SPO3 Campanilla; and, (c)
in assuming that the entire white crystalline substance seized is
positive for methylamphetamine hydrochloride. cdtai
We resolve. The 1987 Constitution ordains that no arrest, search or
seizure can be made without a valid warrant issued by a competent
judicial authority. Thus —
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. 9
It further mandates that any evidence obtained in violation thereof
shall be inadmissible for any purpose in any proceeding. 10
The right is not absolute and admits of certain well-recognized
exceptions. For instance, a person lawfully arrested may be searched
for dangerous weapons or anything which may be used as proof of the
commission of the offense, without a search warrant. 11 The search
may extend beyond the person of the one arrested to include the
permissible area or surroundings within his immediate control. 12
The issue is whether this case falls within the exception.
The accused was admittedly outside unit 122 and in the act of
delivering to Mabel Cheung Mei Po a bag of shabu when he was
arrested by the NARCOM operatives. Moreover, it is borne by the
records that Unit 122 was not even his residence but that of his
girlfriend Nimfa Ortiz, and that he was merely a sojourner therein.
Hence, it can hardly be said that the inner portion of the house
constituted a permissible area within his reach or immediate control,
13 to justify a warrantless search therein.
The lawful arrest being the sole justification for the validity of the
warrantless search under the exception, the same must be limited to
and circumscribed by the subject, time and place of the arrest. As to
subject, the warrantless search is sanctioned only with respect to the
person of the suspect, and things that may be seized from him are
limited to "dangerous weapons" or "anything which may be used as
proof of the commission of the offense." With respect to the time and
place of the warrantless search, it must be contemporaneous with the
lawful arrest. Stated otherwise, to be valid, the search must have been
conducted at about the time of the arrest or immediately thereafter
and only at the place where the suspect was arrested, 14 or the
premises or surroundings under his immediate control.
It must be stressed that the purposes of the exception are only to
protect the arresting officer against physical harm from the person
being arrested who might be armed with a concealed weapon, and
also to prevent the person arrested from destroying the evidence
within his reach. 15 The exception therefore should not be strained
beyond what is needed in order to serve its purposes, as what the
Solicitor General would want us to do. prcd
We therefore hold that the search in Unit 122 and the seizure therein
of some 5,578.68 grams of shabu do not fall within the exception,
hence, were illegal for being violative of one's basic constitutional
right and guarantee against unreasonable searches and seizures.
As a consequence of the illegal search, the things seized on the
occasion thereof are inadmissible in evidence under the exclusionary
rule. They are regarded as having been obtained from a polluted
source, the "fruit of a poisonous tree." However, objects and
properties the possession of which is prohibited by law cannot be
returned to their owners notwithstanding the illegality of their seizure.
Thus, the shabu seized by the NARCOM operatives which cannot
legally be possessed by the accused under the law, can and must be
retained by the government to be disposed of in accordance with law.
Be that as it may, the inadmissibility of the 5,578.68 grams of shabu
in evidence does not totally exonerate the accused. The illegal search
in Unit 122 was preceded by a valid arrest. The accused was caught in
flagrante delicto as a result of an entrapment conducted by NARCOM
operatives on the basis of the information provided by Mabel Cheung
Mei Po regarding the accused's illegal trade. NARCOM agents
P/Insp. Santiago and SPO3 Campanilla saw him handing over a bag
of white crystalline substance to Mabel Cheung Mei Po. His arrest
was lawful and the seized bag of shabu weighing 999.43 grams was
admissible in evidence, being the fruit of the crime.
The second assigned error hinges on the credibility of witnesses. As
we have consistently stressed in the majority of appeals in criminal
cases, appellate courts give weight, and at times even finality, to the
findings of the trial judge who is in a better position to determine the
credibility of witnesses, as he can observe firsthand their demeanor
and deportment while testifying. Appellate courts have none of the
judge's advantageous position; they rely merely on the cold records of
the case and on the judge's discretion.
As mentioned earlier, Mabel Cheung Mei Po turned hostile witness in
the course of the trial. The defense capitalized on such fact and
hammered the prosecution on this point, arguing that Mabel's
testimony during her cross-examination virtually belied the
prosecution's factual theory of the case and cast doubt on the
testimony of the NARCOM agents.
But we are not persuaded. Mabel Cheung Mei Po turned hostile
witness understandably because of her adverse interest in the case.
She was separately charged for violation of Sec. 15, Art. III, RA
6425, 16 although she was subsequently acquitted by the trial court
on reasonable doubt. 17 It is therefore to be expected that she would
be extremely cautious in giving her testimony as it might incriminate
her. At any rate, the testimony of the police informant in an illegal
drug case is not essential for the conviction of the accused since that
testimony would merely be corroborative and cumulative. 18 Hence,
even if we concede that Mabel Cheung Mei Po's testimony was
discredited on account of the dismissal of the criminal case against
her, the prosecution could still rely on the testimonies of the arresting
officers and secure a conviction on the basis thereof.
Further, the attempt of the accused to downgrade the testimonies of
the NARCOM agents is bereft of substantial basis since it has not
been shown that they had an improper motive for testifying as they
did. It would not be amiss to point out that NARCOM agents are not
just ordinary witnesses but are law enforcers. As compared to the
baseless disclaimers of the witnesses for the defense, the narration of
the incident of the police officers is far more worthy of belief coming
as it does from law enforcers who are presumed to have regularly
performed their duty in the absence of proof to the contrary. 19 From
the evidence at hand, we find no reason to denigrate their
declarations.
Indeed, there is no doubt from the records that the accused was
caught in flagrante delicto, i.e., in the act of delivering shabu. The
evidence for the prosecution is both substantial and convincing. At its
core is the testimony of P/Insp. Santiago and SPO3 Campanilla who
categorically pointed to the accused as the person who handed to
Mabel a plastic bag of white crystalline substance which, upon
forensic examination, was found positive for methylamphetamine
hydrochloride or shabu. As can be gleaned from the assailed decision
of the trial court, the narration of events by the police officers is
positive, credible and entirely in accord with human experience. It
bears all the earmarks of truth that it is extremely difficult for a
rational mind not to give credence to it. They testified in a clear,
precise and straightforward manner, and even the rigid cross-
examination by the defense could not dent the essence of their
testimonies. cdrep
As regards the third assigned error, the accused questions the
accuracy of the laboratory tests conducted by the forensic chemist on
the seized articles. He contends that the PNP Crime Laboratory
should have subjected the entire 999.43 grams and 5,578.66 grams of
white crystalline substance taken from him, to laboratory examination
and not merely representative samples thereof in milligrams.
The argument is untenable. Primarily, there is no law or rule of
evidence requiring the forensic chemist to test the entire quantity of
seized drugs to determine whether the whole lot is really prohibited or
regulated drugs as suspected. On the contrary, it has always been the
standard procedure in the PNP Crime Laboratory to test only samples
of the drugs submitted for laboratory examination. A sample taken
from a package may be logically presumed to be representative of the
whole contents of the package. 20
Moreover, we held in one case that chemical analysis is not an
indispensable prerequisite to establish whether a certain substance
offered in evidence is a prohibited drug. The ability to recognize these
drugs can be acquired without any knowledge of chemistry to such an
extent that the testimony of a witness on the point may be entitled to
great weight. Such technical knowledge is not required, and the
degree of familiarity of a witness with such drugs only affects the
weight and not the competency of his testimony. 21
At any rate, it was up to the defense to prove by clear and convincing
evidence that the findings of the forensic chemist were erroneous. In
the absence of such evidence, the positive results of the tests
conducted by the chemist should be accepted as conclusive. After all,
she has in her favor the presumption that she regularly performed her
official duty, which was to carry out those tests in accordance with
the accepted standard procedure. 22
All told, this Court is satisfied that the prosecution has established the
guilt of the accused beyond reasonable doubt in Crim. Case No. 96-
8932. Accordingly, he must suffer for his serious crime of poisoning
the health and future of this nation. However, we refrain from
imposing the capital punishment. As amended by RA 7659, Sec. 20,
Art. IV of The Dangerous Drugs Act now provides in part that the
penalty in Sec. 15, Art. III, shall be applied if the dangerous drug
involved is, in the case of shabu or methylamphetamine
hydrochloride 200 grams or more and the delivery or distribution of
regulated drugs without proper authority is penalized with reclusion
perpetua to death and a fine ranging from P500,000.00 to
P10,000,000.00. Thus the law prescribes two (2) indivisible penalties,
reclusion perpetua and death. Pursuant to Art. 63 of The Revised
Penal Code, since there were neither mitigating nor aggravating
circumstances attending accused's violation of the law, the lesser
penalty of reclusion perpetua is the proper imposable penalty. llcd
The legislature never intended that where the quantity of the
dangerous drugs involved exceeds those stated in Sec. 20, the
maximum penalty of death shall automatically be imposed. Nowhere
in the amendatory law is there a provision from which such a
conclusion may be drawn. On the contrary, this Court has already
concluded in People v. Gatward 23 that RA 7659 did not amend Art.
63 of The Revised Penal Code, and the rules therein were observed
although the cocaine subject of that case was also in excess of the
quantity provided in Sec. 20. 24
With respect to Crim. Case No. 96-8933, since the constitutional right
of the accused against unreasonable searches and seizures was
violated, which rendered the evidence against him inadmissible, he is
acquitted of the offense charged.
Finally, we take this opportunity to remonstrate the law enforcement
agencies regarding respect for the constitutional rights of persons
suspected of committing crimes. As the phalanx of our united efforts
to stem the surging tide of drug-trafficking in this country, the police
force is not only expected to be well-trained and well-equipped in the
detection and apprehension of drug pushers, but more importantly, it
must also be aware that arrests, searches and seizures should at all
times and in all instances be done within the context of the
Constitution. While we encourage an active and vigorous law
enforcement, we nevertheless defer to and uphold the sacredness of
constitutional rights. In the instant case, while the penalty of reclusion
perpetua imposed by this Court on the accused may be sufficient to
put him away for good, it is nonetheless lamentable that he will walk
away unpunished in the other case of possession of more than 5,000
grams of illegal narcotics on account of a blunder which could have
easily been avoided had the NARCOM officers faithfully adhered to
the requirements of the Constitution.
WHEREFORE, the Decision of the trial court in Crim. Case No. 96-
8932 convicting accused CHE CHUN TING alias "DICK" for
violation of Sec. 15, Art. III, of RA 6425 (The Dangerous Drugs Act
of 1972, as amended) is AFFIRMED, subject to the modification that
the penalty imposed by the trial court is reduced to reclusion
perpetua. The accused is ordered to pay a fine in the increased
amount of P2,000,000.00, and the costs.
In Crim. Case No. 96-8933, accused CHE CHUN TING alias "DICK"
is ACQUITTED for failure of the prosecution to prove his guilt
beyond reasonable doubt the evidence against him being
inadmissible.
The 999.43 grams and 5,578.68 grams of shabu, subject of Crim.
Case Nos. 96-8932 and 96-8933 are FORFEITED in favor of the
government to be turned over immediately to the Dangerous Drugs
Board and the National Bureau of Investigation for proper
disposition. cdasia
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-
Santiago and De Leon, Jr., JJ., concur.
THIRD DIVISION
[G.R. Nos. 138539-40. January 21, 2003.]
PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO C.
ESTELLA, appellant.
The Solicitor General for plaintiff-appellee.
Sancho A. Abasta, Jr. for accused-appellant.
SYNOPSIS
Armed with a search warrant, police officers proceeded to appellant's
house and saw appellant sitting on a rocking chair outside a hut
owned by appellant's brother and rented by appellant's live-in partner.
Upon presentation of the warrant, appellant surrendered two cans of
dried marijuana fruiting tops inside the hut. Further search, however,
led the officers to 20 bricks more of fruiting tops. Thus, appellant was
found guilty of illegal possession of marijuana. cDCEHa
The pivotal issue is the legality of the police search undertaken in the
hut where the subject marijuana was seized. The Court ruled that the
only thing proved by the prosecution is that appellant was outside the
hut owned by appellant's brother, rented by someone who is allegedly
the live-in partner of appellant. To make it appear, therefore, that
appellant is occupying the hut or in control of it, is merely
conjectural. On the allegation that appellant turned over dried
marijuana fruiting tops, the same was belied by another prosecution
witness. All considered, the Court acquitted appellant from the crime
charged.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; WEIGHT AND
SUFFICIENCY; PROOF BEYOND REASONABLE DOUBT;
MERE SUSPICION IS NOT SUFFICIENT. — The testimony of the
prosecution witness shows that the subject hut where bricks of
marijuana were found, was bought by appellant's brother and rented
by someone named Eva, alleged live-in partner of appellant. The
attempt to make it appear that appellant occupied it, or that it was
under his full control, is merely conjectural and speculative. We have
often ruled that courts do not rely on evidence that arouses mere
suspicion or conjecture. To lead to conviction, evidence must do more
than raise the mere possibility or even probability of guilt. It must
engender moral certainty. In a criminal prosecution, the court is
always guided by evidence that is tangible, verifiable, and in harmony
with the usual course of human experience — not by mere conjecture
or speculation. While the guilty should not escape, the innocent
should not suffer.
2. ID.; ID.; ID.; ID.; NOT ESTABLISHED IN THE ABSENCE
OF SUFFICIENT INADMISSIBLE EVIDENCE. — With the failure
of the prosecution to establish the propriety of the search undertaken
— during which the incriminating evidence was allegedly recovered
— we hold that the search was illegal. Without the badge of legality,
any evidence obtained therein becomes ipso facto inadmissible.
Without sufficient admissible evidence against appellant, the
prosecution failed to establish his guilt with moral certainty. Not only
did its evidence fall short of the quantum of proof required for a
conviction, it has also failed to present any evidence at all. Under our
Bill of Rights, among the fundamental rights of the accused is to be
presumed innocent until the contrary is proved. To overcome such
presumption, the prosecution must establish guilt beyond reasonable
doubt. Our criminal justice system dictates that if the prosecution fails
to do so, it becomes not only the right of the accused to be set free,
but also the constitutional duty of the court to set them free. This
principle leaves this Court no option but to acquit appellant for
insufficiency of evidence.
3. ID.; ID.; TESTIMONY OF WITNESSES; PROBATIVE
VALUE BASED ON TRANSCRIPTS MAY BE ASSESSED BY
THE COURT. — It is well-settled that this Court is not precluded
from assessing the probative value of witnesses' testimonies on the
basis of the transcript of stenographic notes (TSNs). In the case at bar,
we believe that the trial court erred in adopting the prosecution's
dubious story. It failed to see patent inconsistencies in the prosecution
witnesses' testimonies about the search undertaken.
4. ID.; CRIMINAL PROCEDURE; SEARCH INCIDENT TO A
LAWFUL ARREST; NOT APPRECIATED IN THE ABSENCE OF
EVIDENCE TO THE COMMISSION OF OFFENSE AS REASON
FOR LAWFUL ARREST. — There is no convincing proof that
appellant indeed surrendered the prohibited drug, whether voluntarily
or otherwise. In fact, the testimony of Prosecution Witness Barnachea
clouds rather than clarifies the prosecution's story. Thus, the police
authorities cannot claim that the search was incident to a lawful
arrest. Such a search presupposes a lawful or valid arrest and can only
be invoked through Section 5, Rule 113 of the Revised Rules on
Criminal Procedure. Never was it proven that appellant, who was the
person to be arrested, was in possession of the subject prohibited drug
during the search. It follows, therefore; that there was no way of
knowing if he had committed or was actually committing an offense
in the presence of the arresting officers. Without that knowledge,
there could have been no search incident to a lawful arrest. EHSCcT
5. ID.; ID.; ID.; ELUCIDATED. — Searches and seizures
incident to lawful arrests are governed by Section 12, Rule 126 of the
Revised Rules of Criminal Procedure, which reads: "Section 12.
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." However, the scope of the search should be limited
to the area within which the person to be arrested can reach for a
weapon or for evidence that he or she can destroy. The prevailing rule
is that the arresting officer may take from the arrested individual any
money or property found upon the latter's person — that which was
used in the commission of the crime or was the fruit of the crime, or
which may provide the prisoner with the means of committing
violence or escaping, or which may be used in evidence in the trial of
the case. The purpose of the exception is to protect the arresting
officer from being harmed by the person being arrested, who might be
armed with a concealed weapon, and to prevent the latter from
destroying evidence within reach. The exception, therefore, should
not be strained beyond what is needed to serve its purpose. In the case
before us, searched was the entire hut, which cannot be said to have
been within appellant's immediate control. Thus, the search exceeded
the bounds of that which may be considered to be incident to a lawful
arrest.
D E C I S I O N
PANGANIBAN, J p:
The Constitution bars the admission of evidence gathered in violation
of the right against unreasonable search and seizure. In the present
case, the illegal drug was searched for and found in a hut that has not
been proven to be owned, controlled, or used by appellant for
residential or any other purpose. Hence, he cannot be held guilty of
illegal possession of the illegal drug found therein. EcATDH
The Case
Antonio C. Estella appeals the August 25, 1998 Decision 1 of the
Regional Trial Court (RTC) of Iba, Zambales (Branch 69) in Criminal
Case No. RTC 2143-I. The trial court found him guilty of violating
Section 8, Article II of RA 6425, as amended by RA 7659, and
sentenced him to reclusion perpetua as follows:
"WHEREFORE, foregoing considered, in Criminal Case No. RTC
2143-I, accused Antonio C. Estella is found GUILTY beyond
reasonable doubt for Violation of Section 8, Article II of R.A. 6425 as
amended by R.A. 7659 and is sentenced to suffer the penalty of
reclusion perpetua.
"The 8.320 kilograms of dried marijuana is ordered confiscated in
favor of the government. The Sheriff is directed to deliver the subject
marijuana to the Dangerous Drugs Board for its proper disposition.
"In Criminal Case No. RTC 2144-I, accused Antonio C. Estella is
ACQUITTED and the Information dated 07 January 1997 filed
against him for violation of P.D. 1866 is dismissed with costs de
officio.
"The .38 caliber revolver without serial number and four (4) live
ammunitions, subject of the offense, are ordered delivered to any
authorized representative of the Philippine National Police, Firearms
and Explosives Division, Camp Crame, Quezon City." 2
The Information dated January 7, 1997, charged appellant thus:
"That on or about the 20th day of November, 1996 at about 11:15
o'clock in the morning, at Purok Yakal, Barangay Baloganon, in the
Municipality of Masinloc, Province of Zambales, Philippines, and
within the jurisdiction of this Honorable Court, said accused, did then
and there, wil[l]fully, unlawfully and feloniously have in his
possession, custody and control, [o]ne (1) tin can labeled 'CLASSIC'
containing twenty (20) small bricks of dried marijuana fruiting tops
having a total weight of 589.270 grams each wrapped with a piece of
reading material; [o]ne (1) tin can labeled 'CLASSIC' containing
dried marijuana fruiting tops weighing 41.126 grams; [t]wo (2) white
sando plastic bag each containing one (1) [brick] of dried marijuana
fruiting tops having a total weight of 1.710 kilograms each wrapped
with a piece of newspaper, [o]ne (1) white sando plastic bag
containing two (2) bricks of dried marijuana fruiting tops having a
total weight of 1.820 kilograms each wrapped with a piece of
newspaper, all in the total of 8.320 kilograms of dried marijuana,
without any authority to possess the same." 3
After the Information had been read to him in Filipino, a language he
fully understood, 4 appellant, assisted by his counsel de parte, 5
pleaded not guilty when arraigned on March 11, 1997. After due trial,
the RTC convicted appellant of illegal possession of dangerous drugs
(marijuana), but acquitted him of illegal possession of firearms. On
November 4, 1998, his counsel filed a Notice of Appeal. 6
The Facts
Version of the Prosecution
In its Brief, 7 the Office of the Solicitor General (OSG) presents the
prosecution's version of the facts as follows:
"Prior to November 20, 1996, Executive Judge Romulo Estrada of the
Regional Trial Court of Zambales issued a warrant for the conduct of
a search and seizure in the residence of appellant at Purok Yakal,
Barangay Baloganon, Masinloc, Zambales.
"In the morning of November 20, 1996, Senior Police Officer 1
(SPO1) Antonio Bulor[o]n, then Intelligence and Investigation
Officer, together with SPO1 Jose Arca and several other members of
the Provincial Special Operation Group based in Burgos, San
Marcelino, Zambales proceeded to Masinloc. They coordinated with
the members of the Philippine National Police (PNP) in Masinloc and
sought the assistance of Barangay Captain Rey Barnachea of
Baloganon, Masinloc for the enforcement of the search warrant.
Barangay Captain Barnachea accompanied the police officers to
Purok Yakal, Barangay Baloganon, Masinloc, the place mentioned in
the search warrant.
"On their way to Purok Yakal, SPO1 Buloron saw appellant sitting on
a rocking chair located about two (2) meters away from a hut owned
by Narding Estella, brother of appellant, and being rented by
appellant's live-in partner, named Eva. They approached appellant
and introduced themselves as police officers. They showed appellant
the search warrant and explained the contents to him. SPO1 Buloron
asked appellant if indeed he had in his possession prohibited drug and
if so, to surrender the same so he would deserve a lesser penalty.
"While inside the hut, appellant surrendered to the team two cans
containing dried marijuana fruiting tops. One can contained twenty
(20) bricks of fruiting tops. The team searched the hut in the presence
of appellant and his live-in partner. They found a plastic container
under the kitchen table, which contained four (4) big bricks of dried
marijuana leaves and a .38 caliber revolver with four live
ammunitions. The team seized the prohibited drug, the revolver and
ammunitions. The team seized and signed a receipt for the seized
items. Barangay Captain Barnachea and SPO1 Edgar Bermudez of
the Masinloc Police Station also signed the receipt as witnesses.
SPO1 Buloron and his companions arrested appellant and brought
him to San Marcelino, Zambales.
"At their office in San Marcelino, Zambales, SPO1 Buloron and
SPO1 Arca placed their markings on the seized items for purposes of
identification. SPO1 Arca kept the seized items under his custody.
The next day, SPO1 Buloron and SPO1 Arca brought the seized items
to San Antonio, Zambales, where Police Senior Inspector Florencio
Sahagun examined the suspected marijuana dried leaves. Inspector
Sahagun prepared a certification of field test.
"On November 29, 1996, the suspected marijuana dried leaves were
delivered to the PNP Crime Laboratory at Camp Olivas for further
examination. Senior Inspector Daisy Babor, a forensic chemist,
examined the suspected marijuana dried leaves and issued Chemistry
Report No. D-768-96 stating that the specimens are positive for
marijuana, a prohibited drug. Specimen A weighed 1.710 kilograms,
while Specimen D weighed 1.820 kilograms." 8 (Citations omitted)
Version of the Defense
For his version of the facts, appellant merely reproduced the narration
in the assailed RTC Decision as follows:
"Accused Antonio C. Estella [i]s married to Gloria Atrero Estella.
They have three (3) children, namely: Carmen Estella (8 years old),
Antonio Estella, Jr. (5 years old) and Roen Estella (3 years old). Since
1982, Antonio Estella has been [a] resident of Barangay Baloganon,
Masinloc, Zambales.
"On 20 November 1996 between 10:30 o'clock and 11:00 o'clock in
the morning, while accused was talking with his friends Rael Tapado
and Victor de Leon at a vacant lot just outside the house of Camillo
Torres and about 70 meters away from his house, a group of men
approached them. The group introduced themselves as policemen and
told them that they were looking for Antonio Estella because they
have a search warrant issued against him. Accused identified himself
to them. The policemen inquired from the accused as to where his
house is located and accused told them that his house is located across
the road. The police did not believe him and insisted that accused's
house (according to their asset) is that house located about 5–8 meters
away from them. Accused told the policemen to inquire from the
Barangay Captain Barnachea as to where his house is and heard the
latter telling the policemen that his house is located near the
Abokabar junk shop. After about half an hour, the policemen went
inside the house nearby and when they came out, they had with them
a bulk of plastic and had it shown to the accused. They photographed
the accused and brought him to their office at San Marcelino,
Zambales. Accused Antonio Estella was investigated a[t] San
Marcelino, Zambales where he informed the police officers of the fact
that the house they searched was occupied by Spouses Vicente and
Fely Bakdangan.
"Accused denied having surrendered to policeman Buloron tin cans
containing marijuana and likewise having any firearm.
"Miguel Buccat, who personally knew the accused for about ten (10)
years, identified the house depicted on a photograph as that house
belonging to the accused." 9 (Citations omitted)
Ruling of the Trial Court
In finding appellant guilty of violating the Dangerous Drugs Act, the
court a quo relied heavily on the testimony of the prosecution's
principal witness, Intelligence and Investigation Officer SPO1
Antonio Buloron. He was among the members of the police team that
searched appellant's alleged house. Since the defense failed to present
proof of any intent on the part of SPO1 Buloron to falsely impute to
appellant such a serious crime, the trial court accorded full faith and
credence to the police officer's testimony.
Moreover, the RTC held that no less than the barangay captain of the
place named in the search warrant led the police to the house. Thus,
appellant could not deny that he owned it.
As to the charge of illegal possession of firearms, the lower court
ruled that the search warrant did not cover the seized firearm, making
it inadmissible against appellant. He was thus acquitted of the charge.
cADSCT
Hence, this recourse. 10
The Issues
In his appeal, appellant assigns the following alleged errors for our
consideration:
"A. The trial court erred in convicting the accused based on the
conjectural and conflicting testimonies of the prosecution witnesses;
"B. The trial court gravely failed to consider the serious
contradictions in the facts and evidences adduced by the prosecution;
"C. The trial court gravely erred in finding that the guilt of the
accused-appellant for the crime charged has been prove[n] beyond
reasonable doubt, instead of judgment of acquittal demanded by the
constitutional presumption of innocence[.]" 11
Though not clearly articulated by appellant, the pivotal issue here is
the legality of the police search undertaken in the hut where the
subject marijuana was seized.
The Court's Ruling
The appeal is meritorious.
Main Issue:
Legality of the Search Undertaken
Once again, this Court is confronted with a situation that involves a
well-enshrined dogma in our Constitution: the inviolable right of the
people to be secure in their persons and properties against
unreasonable searches and seizures. 12 The exclusionary rule
prescribed by Section 3(2), Article III of the Constitution, bars the
admission of evidence obtained in violation of this right. 13
The conviction or the acquittal of appellant hinges primarily on the
validity of the police officers' search and seizure, as well as the
admissibility of the evidence obtained by virtue thereof. Without that
evidence, the prosecution would not be able to prove his guilt beyond
reasonable doubt.
Ownership of the Subject House
Appellant claims that the hut, 14 which was searched by the police
and where the subject marijuana was recovered, does not belong to
him. He points to another house 15 as his real residence. To support
his claim, he presents a document 16 that shows that the subject hut
was sold to his brother Leonardo C. Estella by one Odilon Eclarinal.
The OSG, on the other hand, argues that just because "appellant has
another house in a place away from the hut that was searched does
not necessarily mean that the hut is not occupied by him or under his
full control." 17 The prosecution cites the testimony of Rey
Barnachea, the barangay captain of that place, to show that the hut in
question belongs to appellant.
The only link that can be made between appellant and the subject hut
is that it was bought by his brother Leonardo a.k.a. "Narding" Estella.
18 We cannot sustain the OSG's supposition that since it was being
rented by the alleged live-in partner of appellant, it follows that he
was also occupying it or was in full control of it. In the first place,
other than SPO1 Buloron's uncorroborated testimony, no other
evidence was presented by the prosecution to prove that the person
renting the hut was indeed the live-in partner of appellant — if he
indeed had any. Moreover, the testimony of Barnachea serves to
undermine, not advance, the position of the prosecution. We quote
from his testimony:
"Q Do you know who is the owner of that house?
A What I know is that Narding Estella bought that house, sir.
Q Who is that Narding Estella?
A The brother of Tony Estella, sir.
Q And you know that that has been rent[ed] to people?
A Yes, sir.
Q Now, so far how many people [rented] that place or that
house?
A I do not have any information about that[,] sir.
Q Why did you know that that place was rented?
A Because when I asked Eva she replied that they [were] only
renting that house, sir.
Q How long has Eva been renting that house?
A I do not have any information about that[,] sir.
Q Do you know who was living with Eva?
A No, sir.
Q So, what you know is that Eva lives alone in that house?
A Yes, sir.
Q And you do not know anybody who is renting that house?
A I have no information, sir.
Q And you do not know if the accused was renting [it] or not?
A I don't have any information, sir." 19
At most, the testimony shows that the subject hut was bought by
Narding Estella and rented by someone named Eva. The attempt to
make it appear that appellant occupied it, or that it was under his full
control, is merely conjectural and speculative. We have often ruled
that courts do not rely on evidence that arouses mere suspicion or
conjecture. 20 To lead to conviction, evidence must do more than
raise the mere possibility or even probability of guilt. 21 It must
engender moral certainty.
Neither do we find merit in the OSG's argument that appellant cannot
deny ownership or control of the hut, since he was found in front of it,
sitting on a rocking chair and drinking coffee. 22 Indeed, to uphold
this proposition would be to stretch our imagination to the extreme.
The OSG maintains that when appellant was "shown the search
warrant and asked about the existence of prohibited drug in his
possession, appellant went inside the hut, took his stock of marijuana
and turned it [over] to the police officers." 23 This, according to the
prosecution, clearly showed that he was not only occupying the hut,
but was in fact using it to store the prohibited drug. 24
It is well-settled that this Court is not precluded from assessing the
probative value of witnesses' testimonies on the basis of the transcript
of stenographic notes (TSNs). 25
In the case at bar, we believe that the trial court erred in adopting the
prosecution's dubious story. It failed to see patent inconsistencies in
the prosecution witnesses' testimonies about the search undertaken.
SECATH
A review of the TSNs shows that SPO1 Buloron, the prosecutions
principal witness, testified that appellant had allegedly gone inside the
hut; and that the latter had done so to get his stock of illegal drugs,
which he turned over to the police. Ironically, Captain Barnachea,
who was purposely presented by the prosecution to corroborate SPO1
Buloron's story, belied it when he testified thus:
"PROS. QUINTILLAN:
Q When the police officer showed that search warrant what did
Antonio Estella said, if any, if you hear[d]?
A What I saw is that Tony Estella is sitting in the rocking chair
outside the house drinking coffee, sir.
Q And you saw him and then the search warrant was presented,
isn't it?
A Yes, sir.
Q And when it was presented what did Tony Estella do?
A What they did they show to Tony the search warrant and I also
read the contents of the search warrant, sir.
Q And when Tony was shown that search warrant what did he
do immediately after being shown that search warrant?
A He just [sat] and then he stood up, sir.
Q And when he stood up what else did he do?
A Nothing, sir. The NARCOM g[o]t inside the house, sir.
Q And where did Antonio Estella go when the police entered the
house?
A He was just outside the house, sir.
Q And how far is that house from Antonio Estella?
INTERPRETER:
Witness estimating the distance of about five (5) meters.
COURT:
Do the prosecution and defense agree to 5 meters?
BOTH COUNSEL:
Yes, Your Honor.
PROS. QUINTILLAN:
Q And when the police entered the house did not Tony go with
them?
A I did not notice, sir." 26
It is undisputed that even before arriving at the hut, the police officers
were already being assisted by Barangay Captain Barnachea. Thus, it
was highly improbable for him not to see personally appellant's
alleged voluntary surrender of the prohibited drug to the authorities.
And yet, his testimony completely contradicted the policemen's
version of the events. He testified that appellant, after being served
the search warrant, remained outside the hut and did nothing. In fact,
the former categorically stated that when the police officers had gone
inside the hut to conduct the search, appellant remained seated on a
rocking chair outside. 27 Barnachea's statements sow doubts as to the
veracity of SPO1 Buloron's claim that, after being apprised of the
contents of the search warrant, appellant voluntarily surrendered the
prohibited drug to the police. 28
Apart from the testimony of Barnachea — which contradicted rather
than validated the story of SPO1 Buloron — no other evidence was
presented to corroborate the latter's narration of the events. Without
any independent or corroborative proof, it has little or no probative
value at all.
In a criminal prosecution, the court is always guided by evidence that
is tangible, verifiable, and in harmony with the usual course of human
experience — not by mere conjecture or speculation. 29 While the
guilty should not escape, the innocent should not suffer. 30
Search Incident to Lawful Arrest
The OSG argues that "[e]ven assuming that appellant was not the
occupant of the hut, the fact remains that he voluntarily surrendered
the marijuana to the police officers. After appellant had surrendered
the prohibited stuff, the police had a right to arrest him even without a
warrant and to conduct a search of the immediate vicinity of the
arrestee for weapons and other unlawful objects as an incident to the
lawful arrest." 31
The above argument assumes that the prosecution was able to prove
that appellant had voluntarily surrendered the marijuana to the police
officers. As earlier adverted to, there is no convincing proof that he
indeed surrendered the prohibited drug, whether voluntarily or
otherwise. In fact, the testimony of Prosecution Witness Barnachea
clouds rather than clarifies the prosecution's story.
Given this backdrop, the police authorities cannot claim that the
search was incident to a lawful arrest. Such a search presupposes a
lawful or valid arrest and can only be invoked through Section 5,
Rule 113 of the Revised Rules on Criminal Procedure, which we
quote:
"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 Rule 112."
Never was it proven that appellant, who was the person to be arrested,
was in possession of the subject prohibited drug during the search. It
follows, therefore, that there was no way of knowing if he had
committed or was actually committing an offense in the presence of
the arresting officers. Without that knowledge, there could have been
no search incident to a lawful arrest.
Assuming arguendo that appellant was indeed committing an offense
in the presence of the arresting officers, and that the arrest without a
warrant was lawful, it still cannot be said that the search conducted
was within the confines of the law. Searches and seizures incident to
lawful arrests are governed by Section 12, Rule 126 of the Revised
Rules of Criminal Procedure, which reads:
"Section 12. 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."
However, the scope of the search should be limited to the area within
which the person to be arrested can reach for a weapon or for
evidence that he or she can destroy. 32 The prevailing rule is that the
arresting officer may take from the arrested individual any money or
property found upon the latter's person — that which was used in the
commission of the crime or was the fruit of the crime, or which may
provide the prisoner with the means of committing violence or
escaping, or which may be used in evidence in the trial of the case. 33
In the leading case Chimel v. California, 34 the Supreme Court of the
United States of America laid down this rule:
"When an arrest is made, it is reasonable for the arresting officer to
search the person arrested in order to remove any weapons that the
latter might seek to use in order to resist arrest or effect his escape.
Otherwise, the officer's safety might well be endangered, and the
arrest itself frustrated. In addition, it is entirely reasonable for the
arresting officer to search for and seize any evidence on the arrestee's
person in order to prevent its concealment or destruction. And the
area into which an arrestee might reach in order to grab a weapon or
evidentiary items must, of course, be governed by a like rule. A gun
on a table or in a drawer in front of one who is arrested can be as
dangerous to the arresting officer as one concealed in the clothing of
the person arrested. There is ample justification, therefore, for a
search of the arrestee's person and the area 'within his immediate
control' — construing that phrase to mean the area from within which
he might gain possession of a weapon or destructible evidence.
"There is no comparable justification, however, for routinely
searching any room other than that in which an arrest occurs — or,
for that matter, for searching through all the desk drawers or other
closed or concealed areas in that room itself." 35
The purpose of the exception is to protect the arresting officer from
being harmed by the person being arrested, who might be armed with
a concealed weapon, and to prevent the latter from destroying
evidence within reach. The exception, therefore, should not be
strained beyond what is needed to serve its purpose. 36
In the case before us, searched was the entire hut, which cannot be
said to have been within appellant's immediate control. Thus, the
search exceeded the bounds of that which may be considered to be
incident to a lawful arrest.
The Presence of the Accused or the
Witnesses During the Search
Having ruled that the prosecution failed to prove appellant's
ownership, control of or residence in the subject hut, we hold that the
presence of appellant or of witnesses during the search now becomes
moot and academic.
Obviously, appellant need not have been present during the search, if
he was neither the owner nor the lawful occupant of the premises in
question. Besides, as we have noted, the testimonies of the
prosecution witnesses regarding these crucial circumstances were
contradictory. They erode SPO1 Buloron's credibility as a prosecution
witness and raise serious doubts concerning the prosecution's
evidence. This Court is thus constrained to view his testimony with
caution and care.
With the failure of the prosecution to establish the propriety of the
search undertaken — during which the incriminating evidence was
allegedly recovered — we hold that the search was illegal. Without
the badge of legality, any evidence obtained therein becomes ipso
facto inadmissible. HScDIC
Objections to the
Legality of the Search
Finally, the OSG argues that appellant is deemed to have waived his
right to object to the legality of the search and the admissibility of the
evidence seized through that search because, during the trial, he did
not raise these issues.
On the contrary, during the trial, appellant constantly questioned the
legality of the search. In fact, when SPO1 Buloron was presented as a
prosecution witness, the former's counsel objected to the offer of the
latter's testimony on items allegedly confiscated during the search.
Appellant's counsel argued that these items, which consisted of the
marijuana and the firearm, had been seized illegally and were
therefore inadmissible. 37
Further, in his Comments and Objections to Formal Offer of Exhibits,
38 appellant once again questioned the legality of the search
conducted by the police, a search that had yielded the evidence being
used against him.
Finally, on October 21, 1997, he filed a Demurrer to Evidence 39
reiterating his objection to the search and to the eventual use against
him of the evidence procured therefrom.
All told, without sufficient admissible evidence against appellant, the
prosecution failed to establish his guilt with moral certainty. 40 Not
only did its evidence fall short of the quantum of proof required for a
conviction, it has also failed to present any evidence at all. Under our
Bill of Rights, among the fundamental rights of the accused is to be
presumed innocent until the contrary is proved. 41 To overcome such
presumption, the prosecution must establish guilt beyond reasonable
doubt. Our criminal justice system dictates that if the prosecution fails
to do so, it becomes not only the right of the accused to be set free,
but also the constitutional duty of the court to set them free. 42 This
principle leaves this Court no option but to acquit Appellant Antonio
C. Estella for insufficiency of evidence.
WHEREFORE, the appealed Decision is SET ASIDE. Antonio C.
Estella is ACQUITTED and ordered immediately RELEASED from
custody, unless he is being held for some other lawful cause.
The director of the Bureau of Corrections is ORDERED to implement
this Decision forthwith and to INFORM this Court, within five (5)
days from receipt hereof, of the date appellant was actually released
from confinement. Costs de oficio. SHEIDC
SO ORDERED.
Puno, Sandoval-Gutierrez, Corona and Carpio-Morales, JJ., concur.
THIRD DIVISION
[G.R. No. 136860. January 20, 2003.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
AGPANGA LIBNAO y KITTEN and ROSITA NUNGA y
VALENCIA, accused.
AGPANGA LIBNAO y KITTEN, accused-appellant.
The Solicitor General for plaintiff-appellee.
Molintas & Molintas Law Office for accused-appellant.
SYNOPSIS
This is an appeal from the decision of the Regional Trial Court of
Tarlac City finding appellant and her co-accused guilty of violating
Article II, Section 4 of R.A. No. 6425, otherwise known as the
Dangerous Drugs Act of 1972. For their conviction, each was
sentenced to suffer an imprisonment of reclusion perpetua. The
appellant argued that her arrest was unlawful and capitalized on the
absence of a warrant for her arrest. She contended that at the time she
was apprehended by the police officers, she was not committing any
offense but was merely riding a tricycle. She also impugned the
search made on her belongings as illegal as it was not done without a
valid warrant or under circumstances when warrantless search is
permissible. Consequently, she claimed that the evidence obtained
therein were inadmissible against her. HDITCS
The Supreme Court affirmed the conviction of the appellant.
According to the Court, the general rule is that a search may be
conducted by law enforcers only on the strength of a search warrant
validly issued by a judge as provided in the Constitution. However,
the constitutional guarantee is not a blanket prohibition against all
searches and seizures. The warrantless search in this case is not bereft
of a probable cause. It was also clear that at the time she was
apprehended, she was committing a criminal offense, transporting
prohibited drugs. Against the credible positive testimonies of the
prosecution witnesses, appellant's defense of denial and alibi could
not stand. cHaCAS
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; SEARCHES
AND SEIZURES; UNREASONABLE UNLESS AUTHORIZED BY
A VALIDLY ISSUED SEARCH WARRANT OR WARRANT OF
ARREST, AS A RULE. — The general rule is that a search may be
conducted by law enforcers only on the strength of a search warrant
validly issued by a judge as provided in Article III, Section 2 of the
1987 Constitution, thus: "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 and 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 constitutional
guarantee is not a blanket prohibition against all searches and seizures
as it operates only against "unreasonable" searches and seizures.
Searches and seizures are as a rule unreasonable unless authorized by
a validly issued search warrant or warrant of arrest. Thus, the
fundamental protection accorded by the search and seizure clause is
that between persons and police must stand the protective authority of
a magistrate clothed with power to issue or refuse to issue search
warrants and warrants of arrest. HIACEa
2. ID.; ID.; ID.; ID.; SEARCH AND SEIZURE OF MOVING
VEHICLE AS AN EXCEPTION; RATIONALE. — Be that as it
may, the requirement that a judicial warrant must be obtained prior to
the carrying out of a search and seizure is not absolute. There are
certain familiar exceptions to the rule, one of which relates to search
of moving vehicles. Warrantless search and seizure of moving
vehicles are allowed in recognition of the impracticability of securing
a warrant under said circumstances as the vehicle can be quickly
moved out of the locality or jurisdiction in which the warrant may be
sought. Peace officers in such cases, however, are limited to routine
checks where the examination of the vehicle is limited to visual
inspection. When a vehicle is stopped and subjected to an extensive
search, such would be constitutionally permissible only if the officers
made it upon probable cause, i.e., upon a belief, reasonably arising
out of circumstances known to the seizing officer, that an automobile
or other vehicle contains as item, article or object which by law is
subject to seizure and destruction.
3. ID.; ID.; ID.; ID.; ID.; PRESENT IN CASE AT BAR. — The
warrantless search in the case at bench is not bereft of a probable
cause. The Tarlac Police Intelligence Division had been conducting
surveillance operation for three months in the area. The surveillance
yielded the information that once a month, appellant and her co-
accused Rosita Nunga transport drugs in big bulks. At 10:00 pm of
October 19, 1996, the police received a tip that the two will be
transporting drugs that night riding a tricycle. Surely, the two were
intercepted three hours later, riding a tricycle and carrying a
suspicious-looking black bag, which possibly contained the drugs in
bulk. When they were asked who owned it and what its content was,
both became uneasy. Under these circumstances, the warrantless
search and seizure of appellant's bag was not illegal. It is also clear
that at the time she was apprehended, she was committing a criminal
offense. She was making a delivery or transporting prohibited drugs
in violation of Article II, Section 4 of R.A. No. 6425. Under the Rules
of Court, one of the instances a police officer is permitted to carry out
a warrantless arrest is when the person to be arrested is caught
committing a crime in flagrante delicto. aDcTHE
4. REMEDIAL LAW; EVIDENCE; WHEN PRESENTATION
THEREOF EVEN WITHOUT FORMAL OFFER MAY
ESTABLISH THE PROSECUTION'S CASE; CASE AT BAR. —
Evidence not formally offered can be considered by the court as long
as they have been properly identified by testimony duly recorded and
they have themselves, been incorporated in the records of the case.
All the documentary and object evidence in this case were properly
identified, presented and marked as exhibits in court, including the
bricks of marijuana. Even without their formal offer, therefore, the
prosecution can still establish the case because witnesses properly
identified those exhibits, and their testimonies are recorded.
Furthermore, appellant's counsel had cross-examined the prosecution
witnesses who testified on the exhibits.
5. ID.; ID.; CREDIBILITY OF WITNESSES; NOT AFFECTED
BY INCONSISTENCIES ON MINOR DETAILS; APPLICATION
IN CASE AT BAR. — The alleged inconsistencies she mentions
refer only to minor details and not to material points regarding the
basic elements of the crime. They are inconsequential that they do not
affect the credibility of the witnesses nor detract from the established
fact that appellant and her co-accused were transporting marijuana.
Testimonies of witnesses need only corroborate each other on
important and relevant details concerning the principal occurrence.
The identity of the person who opened the bag is clearly immaterial to
the guilt of the appellant. Besides, it is to be expected that the
testimony of witnesses regarding the same incident may be
inconsistent in some aspects because different persons may have
different recollections of the same incident.
6. ID.; ID.; ID.; CREDENCE MAY BE PROPERLY
ACCORDED TO TESTIMONIES OF POLICE OFFICERS WHO
EXHIBITED NO IMPROPER MOTIVE TO ARREST THE
APPELLANT. — To be sure, credence was properly accorded to the
testimonies of prosecution witnesses, who are law enforcers. When
police officers have no motive to testify falsely against the accused,
courts are inclined to uphold this presumption. In this case, no
evidence has been presented to suggest any improper motive on the
part of the police enforcers in attesting the appellant. ATSIED
7. ID.; ID.; DENIAL AND ALIBI, AS DEFENSE; CANNOT
STAND AGAINST CREDIBLE POSITIVE TESTIMONIES OF
THE PROSECUTION WITNESS. — Against the credible positive
testimonies of the prosecution witnesses, appellant's defense of denial
and alibi cannot stand. The defense of denial and alibi has been
invariably viewed by the courts with disfavor for it can just as easily
be concocted and is a common and standard defense ploy in most
cases involving violation of the Dangerous Drugs Act. It has to be
substantiated by clear and convincing evidence. The sole proof
presented in the lower court by the appellant to support her claim of
denial and alibi was a sworn statement, which was not even affirmed
on the witness stand by the affiant.
D E C I S I O N
PUNO, J p:
Before us is an appeal from the Decision dated November 19, 1998 of
the Regional Trial Court, Branch 65, Tarlac City, finding appellant
Agpanga Libnao and her co-accused Rosita Nunga guilty of violating
Article II, Section 4 of R.A. No. 6425, otherwise known as the
Dangerous Drugs Act of 1972. 1 For their conviction, each was
sentenced to suffer an imprisonment of reclusion perpetua and to pay
a fine of two million pesos. ISCHET
Appellant and her co-accused were charged under the following
Information:
"That on or about October 20, 1996 at around 1:00 o'clock dawn, in
the Municipality of Tarlac, Province of Tarlac, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused conspiring, confederating and helping with one another,
without being lawfully authorized, did then and there willfully,
unlawfully and feloniously make delivery/transport with intent to sell
marijuana leaves wrapped in a transparent plastic weighing
approximately eight (8) kilos, which is in violation of Section 4,
Article II of RA 6425, otherwise known as the Dangerous Drugs Act
of 1972, as amended.
CONTRARY TO LAW." 2
During their arraignment, both entered a plea of Not Guilty. Trial on
the merits ensued.
It appears from the evidence adduced by the prosecution that in
August of 1996, intelligence operatives of the Philippine National
Police (PNP) stationed in Tarlac, Tarlac began conducting
surveillance operation on suspected drug dealers in the area. They
learned from their asset that a certain woman from Tajiri, Tarlac and
a companion from Baguio City were transporting illegal drugs once a
month in big bulks.
On October 19, 1996, at about 10 o'clock in the evening, Chief
Inspector Benjamin Arceo, Tarlac Police Chief, held a briefing in
connection with a tip which his office received that the two drug
pushers, riding in a tricycle, would be making a delivery that night.
An hour later, the Police Alert Team installed a checkpoint in
Barangay Salapungan to apprehend the suspects. Witness SPO1
Marlon Gamotea, PO3 Florante Ferrer and SPO3 Roberto Aquino
were assigned to man the checkpoint.
At about 1:00 o'clock in the morning of the following day, SPO1
Gamotea and PO3 Ferrer flagged down a passing tricycle. It had two
female passengers seated inside, who were later identified as the
appellant Agpanga Libnao and her co-accused Rosita Nunga. 3 In
front of them was a black bag. Suspicious of the black bag and the
two's uneasy behavior when asked about its ownership and content,
the officers invited them to Kabayan Center No. 2 located at the same
barangay. They brought with them the black bag.
Upon reaching the center, PO3 Ferrer fetched Barangay Captain Roy
Pascual to witness the opening of the black bag. In the meantime, the
two women and the bag were turned over to the investigator on duty,
SPO3 Arthur Antonio. As soon as the barangay captain arrived, the
black bag was opened in the presence of the appellant, her co-accused
and personnel of the center. Found inside it were eight bricks of
leaves sealed in plastic bags and covered with newspaper. The leaves
were suspected to be marijuana.
To determine who owns the bag and its contents, SPO3 Antonio
interrogated the two. Rosita Nunga stated that it was owned by the
appellant. The latter, in turn, disputed this allegation. Thereafter, they
were made to sign a confiscation receipt without the assistance of any
counsel, as they were not informed of their right to have one. During
the course of the investigation, not even close relatives of theirs were
present. HIDCTA
The seized articles were later brought to the PNP Crime Laboratory in
San Fernando, Pampanga on October 23, 1996. Forensic Chemist
Daisy P. Babu conducted a laboratory examination on them. She
concluded that the articles were marijuana leaves weighing eight
kilos. 4
For their part, both accused denied the accusation against them.
Rosita Nunga testified that in the evening of October 19, 1996, she
went to buy medicine for her ailing child at a pharmacy near the
Tarlac Provincial Hospital. The child was suffering from diarrhea,
occasioned by abdominal pain. To return to their house, she boarded a
tricycle bound for Barangay Tariji, where she resides. Along the way,
the tricycle she was riding was flagged down by a policeman at a
checkpoint in Barangay Salapungan. She was taken aback when the
officer invited her to the Kabayan Center. It was there that she was
confronted with the black bag allegedly containing eight bricks of
marijuana leaves. She disputed owning the bag and knowing its
contents. She also denied sitting beside the appellant in the
passenger's seat inside the tricycle, although she admitted noticing a
male passenger behind the driver.
Remarkably, appellant did not appear in court and was only
represented by her lawyer. The latter marked and submitted in
evidence an affidavit executed by one Efren Gannod, a security guard
of Philippine Rabbit Bus Lines in Tarlac, Tarlac. The sworn statement
declared that at about 0220H on October 20, 1996, SPO2 Antonio
arrived at their terminal and arrested a certain woman who boarded
their Bus No. 983. The incident was recorded in the company's
logbook. Gannod, however, was not presented in court to attest that
the woman referred in his affidavit was the appellant.
After trial, the court convicted appellant and her co-accused Rosita
Nunga, thus:
"WHEREFORE, finding both accused guilty beyond reasonable
doubt of the offense of violation of Article II, Section 4 of RA 6425
in relation to RA 7659, they are hereby sentenced to suffer an
imprisonment of reclusion perpetua and to pay a fine of two million
pesos.
SO ORDERED." 5
Aggrieved by the verdict, appellant interposed the present appeal. In
her brief, she assigned the following errors:
"1. The Honorable Regional Trial Court failed to appreciate the
contention of the defense that the right of accused against illegal and
unwarranted arrest and search was violated by the police officers who
arrested both accused.
2. The Honorable Court failed to appreciate the contention of the
defense that the right of the accused to custodial investigation was
deliberately violated by the peace officers who apprehended and
investigated the accused.
3. The Honorable Court miserably failed to evaluate the material
inconsistencies in the testimonies of the prosecution's witnesses
which inconsistencies cast doubt and make incredible the contention
and version of the prosecution.
4. The Honorable Court gravely abused its discretion when it
appreciated and considered the documentary and object evidence of
the prosecution not formally offered amounting to ignorance of the
law." 6
We are not persuaded by these contentions; hence, the appeal must be
dismissed.
In arguing that her arrest was unlawful, appellant capitalizes on the
absence of a warrant for her arrest. She contends that at the time she
was apprehended by the police officers, she was not committing any
offense but was merely riding a tricycle. In the same manner, she
impugns the search made on her belongings as illegal as it was done
without a valid warrant or under circumstances when warrantless
search is permissible. Consequently, any evidence obtained therein is
inadmissible against her.
These arguments fail to impress. The general rule is that a search may
be conducted by law enforcers only on the strength of a search
warrant validly issued by a judge as provided in Article III, Section 2
of the 1987 Constitution, thus:
"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
and 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." 7
The constitutional guarantee is not a blanket prohibition against all
searches and seizures as it operates only against "unreasonable"
searches and seizures. Searches and seizures are as a rule
unreasonable unless authorized by a validly issued search warrant or
warrant of arrest. Thus, the fundamental protection accorded by the
search and seizure clause is that between persons and police must
stand the protective authority of a magistrate clothed with power to
issue or refuse to issue search warrants and warrants of arrest. 8
Be that as it may, the requirement that a judicial warrant must be
obtained prior to the carrying out of a search and seizure is not
absolute. There are certain familiar exceptions to the rule, one of
which relates to search of moving vehicles. 9 Warrantless search and
seizure of moving vehicles are allowed in recognition of the
impracticability of securing a warrant under said circumstances as the
vehicle can be quickly moved out of the locality or jurisdiction in
which the warrant may be sought. 10 Peace officers in such cases,
however, are limited to routine checks where the examination of the
vehicle is limited to visual inspection. 11 When a vehicle is stopped
and subjected to an extensive search, such would be constitutionally
permissible only if the officers made it upon probable cause, i.e.,
upon a belief, reasonably arising out of circumstances known to the
seizing officer, that an automobile or other vehicle contains as item,
article or object which by law is subject to seizure and destruction. 12
In earlier decisions, we held that there was probable cause in the
following instances: (a) where the distinctive odor of marijuana
emanated from the plastic bag carried by the accused; 13 (b) where an
informer positively identified the accused who was observed to be
acting suspiciously; 14 (c) where 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
quantity of marijuana; 15 (d) where Narcom agents had received
information that a Caucasian coming from Sagada, Mountain
Province had in his possession prohibited drugs and when the Narcom
agents confronted the accused Caucasian because of a conspicuous
bulge in his waistline, he failed to present his passport and other
identification papers when requested to do so; 16 (f) 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 belong — that said accused were
bringing prohibited drugs into the country; 17 (g) where the arresting
officers had received a confidential information that the accused,
whose identity as a drug distributor was established in a previous test-
buy operation, would be boarding MV Dona Virginia and probably
carrying shabu with him; 18 (h) where police officers received an
information that the accused, who was carrying a suspicious-looking
gray luggage bag, would transport marijuana in a bag to Manila; 19
and (i) where the appearance of the accused and the color of the bag
he was carrying fitted the description given by a civilian asset. 20
The warrantless search in the case at bench is not bereft of a probable
cause. The Tarlac Police Intelligence Division had been conducting
surveillance operation for three months in the area. The surveillance
yielded the information that once a month, appellant and her co-
accused Rosita Nunga transport drugs in big bulks. At 10:00 pm of
October 19, 1996, the police received a tip that the two will be
transporting drugs that night riding a tricycle. Surely, the two were
intercepted three hours later, riding a tricycle and carrying a
suspicious-looking black bag, which possibly contained the drugs in
bulk. When they were asked who owned it and what its content was,
both became uneasy. Under these circumstances, the warrantless
search and seizure of appellant's bag was not illegal. EaSCAH
It is also clear that at the time she was apprehended, she was
committing a criminal offense. She was making a delivery or
transporting prohibited drugs in violation of Article II, Section 4 of
R.A. No. 6425. Under the Rules of Court, one of the instances a
police officer is permitted to carry out a warrantless arrest is when the
person to be arrested is caught committing a crime in flagrante
delicto, thus:
"Section 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
probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
xxx xxx xxx." 21 (italics supplied)
Appellant also takes issue of the fact that she was not assisted by a
lawyer when police officers interrogated her. She claimed that she
was not duly informed of her right to remain silent and to have
competent counsel of her choice. Hence, she argues that the
confession or admission obtained therein should be considered
inadmissible in evidence against her.
These contentions deserve scant attention. Appellant did not make
any confession during her custodial investigation. In determining the
guilt of the appellant and her co-accused, the trial court based its
decision on the testimonies of prosecution witnesses and on the
existence of the confiscated marijuana. We quote the relevant portion
of its decision:
"Earlier in the course of the proceedings, the court then presided by
Judge Angel Parazo, granted bail to accused Agpanga Libnao, ruling
that the confiscation receipt signed by both accused (Exhibit "C") is
inadmissible because they were not assisted by a counsel. Confronted
with this same issue, this court finds the postulate to rest on good
authority and will therefore reiterate its inadmissibility.
Since the prosecution had not presented any extrajudicial confession
extracted from both accused as evidence of their guilt, the court finds
it needless to discuss any answer given by both accused as a result of
the police interrogation while in their custody. By force of necessity,
therefore, the only issue to be resolved by the court is whether or not,
based on the prosecution's evidence, both accused can be convicted."
22 (italics supplied).
Appellant then faults the trial court for appreciating and taking into
account the object and documentary evidence of the prosecution
despite the latter's failure to formally offer them. Absent any formal
offer, she argues that they again must be deemed inadmissible.
The contention is untenable. Evidence not formally offered can be
considered by the court as long as they have been properly identified
by testimony duly recorded and they have themselves been
incorporated in the records of the case. 23 All the documentary and
object evidence in this case were properly identified, presented and
marked as exhibits in court, including the bricks of marijuana. 24
Even without their formal offer, therefore, the prosecution can still
establish the case because witnesses properly identified those
exhibits, and their testimonies are recorded. 25 Furthermore,
appellant's counsel had cross-examined the prosecution witnesses
who testified on the exhibits. 26
Appellant also assails the credibility of the testimonies of the
prosecution witnesses. She first cites the inconsistency between the
testimony of SPO1 Marlon Gamotea, who said that it was SPO2
Antonio who opened the black bag containing the marijuana; and that
of SPO2 Antonio, who declared that the bag was already open when
he arrived at the Kabayan Center. She then focuses on the police
officers' failure to remember the family name of the driver of the
tricycle where she allegedly rode, claiming that this is improbable and
contrary to human experience.
Again, appellant's arguments lack merit. The alleged inconsistencies
she mentions refer only to minor details and not to material points
regarding the basic elements of the crime. They are inconsequential
that they do not affect the credibility of the witnesses nor detract from
the established fact that appellant and her co-accused were
transporting marijuana. Testimonies of witnesses need only
corroborate each other on important and relevant details concerning
the principal occurrence. 27 The identity of the person who opened
the bag is clearly immaterial to the guilt of the appellant. Besides, it is
to be expected that the testimony of witnesses regarding the same
incident may be inconsistent in some aspects because different
persons may have different recollections of the same incident. 28
Likewise, we find nothing improbable in the failure of the police
officers to note and remember the name of the tricycle driver for the
reason that it was unnecessary for them to do so. It was not shown
that the driver was in complicity with the appellant and her co-
accused in the commission of the crime.
To be sure, credence was properly accorded to the testimonies of
prosecution witnesses, who are law enforcers. When police officers
have no motive to testify falsely against the accused, courts are
inclined to uphold this presumption. 29 In this case, no evidence has
been presented to suggest any improper motive on the part of the
police enforcers in arresting the appellant.
Against the credible positive testimonies of the prosecution witnesses,
appellant's defense of denial and alibi cannot stand. The defense of
denial and alibi has been invariably viewed by the courts with
disfavor for it can just as easily be concocted and is a common and
standard defense ploy in most cases involving violation of the
Dangerous Drugs Act. 30 It has to be substantiated by clear and
convincing evidence. 31 The sole proof presented in the lower court
by the appellant to support her claim of denial and alibi was a sworn
statement, which was not even affirmed on the witness stand by the
affiant. Hence, we reject her defense.
IN VIEW WHEREOF, the instant appeal is DENIED. The decision of
the trial court finding appellant guilty beyond reasonable doubt of the
offense of violation of Article II, Section 4 of R.A. No. 6425 in
relation to R.A. No. 7659, and sentencing her to an imprisonment of
reclusion perpetua and to pay a fine of two million pesos is hereby
AFFIRMED. EcATDH
SO ORDERED.
Panganiban, Sandoval-Gutierrez, Corona and Carpio-Morales, JJ.,
concur.
THIRD DIVISION
[G.R. No. 96177. January 27, 1993.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARI
MUSA y HANTATALU, accused-appellant.
The Solicitor General for plaintiff-appellee.
Pablo L. Murillo for accused-appellant.
SYLLABUS
1. CRIMINAL LAW; DANGEROUS DRUGS ACT (R.A.
6425); ILLEGAL SALE OF MARIJUANA DRUGS;
FAMILIARITY BETWEEN BUYER AND SELLER, NOT
MATERIAL. — The contention that the appellant could not have
transacted with Sgt. Ani because they do not know each other is
without merit. The day before the buy-bust operation, Sgt. Ani
conducted a test-buy and he successfully bought a wrapper of
marijuana from the appellant. Through this previous transaction, Sgt.
Ani was able to gain the appellant's confidence for the latter to sell
more marijuana to Sgt. Ani the following day, during the buy-bust
operation. Moreover, the Court has held that what matters is not an
existing familiarity between the buyer and the seller, for quite often,
the parties to the transaction may be strangers, but their agreement
and the acts constituting the sale and delivery of the marijuana.
2. ID.; ID.; ID.; PRESENCE OF OTHER PEOPLE, NOT
CRUCIAL. — The appellant, again to cast doubt on the credibility of
Sgt. Ani, argues that it was impossible for the appellant to sell
marijuana while his wife, cousin and manicurist were present. But the
place of the commission of the crime of selling prohibited drugs has
been held to be not crucial and the presence of other people apart
from the buyer and seller will not necessarily prevent the
consummation of the illegal sale. As the Court observed in People v.
Paco, these factors may sometimes camouflage the commission of the
crime. In the instant case, the fact that the other people inside the
appellant's house are known to the appellant may have given him
some assurance that these people will not report him to the
authorities.
3. ID.; ID.; ID.; CASE OF PEOPLE VS. ALE, NOT
APPLICABLE IN CASE AT BAR. — The case of People v. Ale
does not apply here because the policeman in that case testified that
he and his companion were certain that the appellant therein handed
marijuana cigarettes to the poseur-buyer based on the appearance of
the cigarette sticks. The Court rejected this claim. In the case at bar,
however, T/Sgt. Belarga did not positively claim that he saw the
appellant hand over marijuana to Sgt. Ani. What he said was that
there was an exchange of certain articles between the two. Contrary to
the contention of the appellant, it was not impossible for T/Sgt.
Belarga to have seen, from a distance of 90-100 meters, Sgt. Ani hand
to the appellant "something" and for the latter to give to the former
"something."
4. REMEDIAL LAW; EVIDENCE; CORROBORATIVE
EVIDENCE SUPPORTING DIRECT EVIDENCE; SUFFICIENT
TO PROVE THE CRIME COMMITTED. — Notwithstanding the
fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani
received from the appellant was marijuana because of the distance,
his testimony, nevertheless, corroborated the direct evidence, which
the Court earlier ruled to be convincing. The corroborative testimony
of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani.
Additionally, the Court has ruled that the fact that the police officers
who accompanied the poseur-buyer were unable to see exactly what
the appellant gave the poseur-buyer because of their distance or
position will not be fatal to the prosecution's case provided there
exists other evidence, direct or circumstantial, e.g., the testimony of
the poseur-buyer, which is sufficient to prove the consummation of
the sale of the prohibited drug.
5. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM
AGAINST UNREASONABLE SEARCH AND SEIZURE;
EVIDENCE OBTAINED IN VIOLATION THEREOF. — Built into
the Constitution are guarantees on the freedom of every individual
against unreasonable searches and seizures. Furthermore, the
Constitution, in conformity with the doctrine laid down in Stonehill v.
Diokno, (G.R. No. L-19550, June 19, 1967, 20 SCRA 383) declares
inadmissible, any evidence obtained in violation of the freedom from
unreasonable searches and seizures.
6. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH &
SEIZURE; SEARCH INCIDENTAL TO LAWFUL ARREST. —
While a valid search warrant is generally necessary before a search
and seizure may be effected, exceptions to this rule are recognized.
Thus, in Alvero v. Dizon, the Court stated that "[t]he most important
exception to the necessity for a search warrant is the right of search
and seizure as an incident to a lawful arrest." Rule 126, Section 12 of
the Rules of Court expressly authorizes a warrantless search and
seizure incident to a lawful arrest. There is no doubt that the
warrantless search incidental to a lawful arrest authorizes the
arresting officer to make a search upon the person of the person
arrested. As early as 1909, the Court has ruled that "[a]n officer
making an arrest may take from the person arrested and money or
property found upon his person which was used in the commission of
the crime or was the fruit of the crime or which might furnish the
prisoner with the means of committing violence or of escaping, or
which may be used as evidence in the trial of the cause . . ." Hence, in
a buy-bust operation conducted to entrap a drug-pusher, the law
enforcement agents may seize the marked money found on the person
of the pusher immediately after the arrest even without arrest and
search warrants.
7. ID.; ID.; ID.; ID.; DOCTRINE OF "PLAIN VIEW". — The
warrantless search and seizure, as an incident to a suspect's lawful
arrest, may extend beyond the person of the one arrested to include
the premises or surroundings under his immediate control. Objects in
the "plain view" of an officer who has the right to be in the position to
have that view are subject to seizure and may be presented as
evidence.
8. ID.; ID.; ID.; ID.; ID.; LIMITATION. — The "plain view"
doctrine may not, however, be used to launch unbridled searches and
indiscriminate seizures nor to extend a general exploratory search
made solely to find evidence of defendant's guilt. The "plain view"
doctrine is usually applied where a police officer is not searching for
evidence against the accused, but nonetheless inadvertently comes
across an incriminating object. It has also been suggested that even if
an object is observed in "plain view," the "plain view" doctrine will
not justify the seizure of the object where the incriminating nature of
the object is not apparent from the "plain view" of the object. Stated
differently, it must be immediately apparent to the police that the
items that they observe may be evidence of a crime, contraband, or
otherwise subject to seizure.
9. ID.; ID.; ID.; ID.; ID.; NOT APPLICABLE IN CASE AT
BAR. — In the instant case, the appellant was arrested and his person
searched in the living room. Failing to retrieve the marked money
which they hoped to find, the NARCOM agents searched the whole
house and found the plastic bag in the kitchen. The plastic bag was,
therefore, not within their "plain view" when they arrested the
appellant as to justify its seizure. The NARCOM agents had to move
from one portion of the house to another before they sighted the
plastic bag. Moreover, when the NARCOM agents saw the plastic
bag hanging in one corner of the kitchen, they had no clue as to its
contents. They had to ask the appellant what the bag contained. When
the appellant refused to respond, they opened it and found the
marijuana. Unlike Ker v. California, where the marijuana was visible
to the police officer's eyes, the NARCOM agents in this case could
not have discovered the inculpatory nature of the contents of the bag
had they not forcibly opened it. Even assuming then, that the
NARCOM agents inadvertently came across the plastic bag because it
was within their "plain view," what may be said to be the object in
their "plain view" was just the plastic bag and not the marijuana. The
incriminating nature of the contents of the plastic bag was not
immediately apparent from the "plain view" of said object. It cannot
be claimed that the plastic bag clearly betrayed its contents, whether
by its distinctive configuration, its transparency, or otherwise, that its
contents are obvious to an observer. We, therefore, hold that under
the circumstances of the case, the "plain view" doctrine does not
apply and the marijuana contained in the plastic bag was seized
illegally and cannot be presented in evidence pursuant to Article III,
Section 3(2) of the Constitution.
10. REMEDIAL LAW; EVIDENCE; QUANTUM OF PROOF
REQUIRED IN CRIMINAL; SATISFIED IN CASE AT BAR. — By
virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the two
wrappings of marijuana sold by the appellant to Sgt. Ani, among
other pieces of evidence, the guilt of the appellant of the crime
charged has been proved beyond reasonable doubt.
D E C I S I O N
ROMERO, J p:
The appellant, Mari Musa, seeks, in this appeal, the reversal of the
decision, dated August 31, 1990, 1 of the Regional Trial Court (RTC)
of Zamboanga City, Branch XII, finding him guilty of selling
marijuana in violation of Article II, Section 4 of Republic Act No.
6425, as amended, otherwise known as the Dangerous Drugs Act of
1972.
The information filed on December 15, 1989 against the appellant
reads:
"That on or about December 14, 1989, in the City of Zamboanga,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, not being authorized by law, did then and
there, wilfully, unlawfully and feloniously sell to one SGT. AMADO
ANI, two (2) wrappers containing dried marijuana leaves, knowing
the same to be a prohibited drug.
CONTRARY TO LAW." 2
Upon his arraignment on January 11, 1990, the appellant pleaded not
guilty. 3
At the trial, the prosecution presented three (3) witnesses, namely: (1)
Sgt. Amado Ani, Jr. of the 9th Narcotics Command (NARCOM) of
Zamboanga City, who acted as poseur-buyer in the buy-bust
operation made against the appellant; (2) T/Sgt. Jesus Belarga, also of
the 9th Narcotics Command of Zamboanga City, who was the
NARCOM team leader of the buy-bust operation; and (3) Athena
Elisa P. Anderson, the Document Examiner and Forensic Chemist of
PC-INP Crime Laboratory of Regional Command (RECOM) 9. The
evidence of the prosecution was summarized by the trial court as
follows: LLjur
"Prosecution evidence shows that in the morning of December 13,
1989, T/Sgt. Jesus Belarga, leader of a NARCOTICS COMMAND
(NARCOM) team based at Calarian, Zamboanga City, instructed Sgt.
Amado Ani to conduct surveillance and test buy on a certain Mari
Musa of Suterville, Zamboanga City. Information received from
civilian informer was that this Mari Musa was engaged in selling
marijuana in said place. So Sgt. Amado Ani, another NARCOM
agent, proceeded to Suterville, in company with a NARCOM civilian
informer, to the house of Mari Musa to which house the civilian
informer had guided him. The same civilian informer had also
described to him the appearance of Mari Musa. Amado Ani was able
to buy one newspaper-wrapped dried marijuana (Exh. 'E') for P10.00.
Sgt. Ani returned to the NARCOM office and turned over the
newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga
inspected the stuff turned over to him and found it to be marijuana.
The next day, December 14, 1989, about 1:30 P.M., a buy-bust was
planned. Sgt. Amado Ani was assigned as the poseur buyer for which
purpose he was given P20.00 (with SN GA955883) by Belarga. The
buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt.
Noh Sali Mihasun, Chief of Investigation Section, and for which
Belarga signed a receipt (Exh. 'L' & 'L-1'). The team under Sgt.
Foncargas was assigned as back-up security. A pre-arranged signal
was arranged consisting of Sgt. Ani's raising his right hand, after he
had succeeded to buy the marijuana. The two NARCOM teams
proceeded to the target site in two civilian vehicles. Belarga's team
was composed of Sgt. Belarga, team leader, Sgt. Amado Ani, poseur
buyer, Sgt. Lego and Sgt. Biong.
Arriving at the target site, Sgt. Ani proceeded to the house of Mari
Musa, while the rest of the NARCOM group positioned themselves at
strategic places about 90 to 100 meters from Mari Musa's house.
T/Sgt. Belarga could see what went on between Ani and suspect Mari
Musa from where he was. Ani approached Mari Musa, who came out
of his house, and asked Ani what he wanted. Ani said he wanted
some more stuff. Ani gave Mari Musa the P20.00 marked money.
After receiving the money, Mari Musa went back to his house and
came back and gave Amado Ani two newspaper wrappers containing
dried marijuana. Ani opened the two wrappers and inspected the
contents. Convinced that the contents were marijuana, Ani walked
back towards his companions and raised his right hand. The two
NARCOM teams, riding the two civilian vehicles, sped towards Sgt.
Ani. Ani joined Belarga's team and returned to the house.
At the time Sgt. Ani first approached Mari Musa, there were four
persons inside his house: Mari Musa, another boy, and two women,
one of whom Ani and Belarga later came to know to be Mari Musa's
wife. The second time, Ani with the NARCOM team returned to Mari
Musa's house, the woman, who was later known as Mari Musa's wife,
slipped away from the house. Sgt. Belarga frisked Mari Musa but
could not find the P20.00 marked money with him. Mari Musa was
then asked where the P20.00 was and he told the NARCOM team he
has given the money to his wife (who had slipped away). Sgt. Belarga
also found a plastic bag containing dried marijuana inside it
somewhere in the kitchen. Mari Musa was then placed under arrest
and brought to the NARCOM office. At Suterville, Sgt. Ani turned
over to Sgt. Belarga the two newspaper-wrapped marijuana he had
earlier bought from Mari Musa (Exhs. 'C' & 'D'). LexLib
In the NARCOM office, Mari Musa first gave his name as Hussin
Musa. Later on, Mari Musa gave his true name - Mari Musa. T/Sgt.
Jesus Belarga turned over the two newspaper-wrapped marijuana
(bought at the buy-bust), the one newspaper-wrapped marijuana
(bought at the test-buy) and the plastic bag containing more marijuana
(which had been taken by Sgt. Lego inside the kitchen of Mari Musa)
to the PC Crime Laboratory, Zamboanga City, for laboratory
examination. The turnover of the marijuana specimen to the PC
Crime Laboratory was by way of a letter-request, dated December 14,
1989 (Exh. 'B'), which was stamped 'RECEIVED' by the PC Crime
Laboratory (Exh. 'E-1') on the same day.
Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC
Crime Laboratory, examined the marijuana specimens subjecting the
same to her three tests. All submitted specimens she examined gave
positive results for the presence of marijuana. Mrs. Anderson reported
the results of her examination in her Chemistry Report D-100-89,
dated December 14, 1989, (Exh. 'J', 'J-1', 'J-2', 'J-3', 'J-4' and 'J-5').
Mrs. Anderson identified in court the two newspaper wrapped
marijuana bought at the buy-bust on December 14, 1989, through her
initial and the weight of each specimen written with red ink on each
wrapper (Exhs. 'C-1' and 'D-1'). She also identified the one
newspaper-wrapped marijuana bought at the test-buy on December
13, 1989, through her markings (Exh. 'E-1'). Mrs. Anderson also
identified her Chemistry Report (Exh. 'J' & sub-markings.)
T. Sgt. Belarga identified the two buy-bust newspaper wrapped
marijuana through his initial, the words 'buy-bust' and the words
'December 14, 1989, 2:45 P.M.' (written on Exhs. 'C' and 'D'). Belarga
also identified the receipt of the P20 marked money (with SN
GA955883) (Exh. 'L'), dated December 14, 1989, and his signature
thereon (Exh. 'L-1'). He also identified the letter-request, dated
December 14, 1989, addressed to the PC Crime Laboratory (Exh. 'B')
and his signature thereon (Exh. 'B-2') and the stamp of the PC Crime
Laboratory marked 'RECEIVED' (Exh. 'B-1')." 4
For the defense, the following testified as witnesses: (1) the accused-
appellant Mari H. Musa; and (2) Ahara R. Musa, his wife. The trial
court summarized the version of the defense, thus:
"[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa
was in his house at Suterville, Zamboanga City. With him were his
wife, Ahara Musa, known as Ara, his one-year old child, a woman
manicurist, and a male cousin named Abdul Musa. About 1:30 that
afternoon, while he was being manicured at one hand, his wife was
inside the one room of their house, putting their child to sleep. Three
NARCOM agents, who introduced themselves as NARCOM agents,
dressed in civilian clothes, got inside Mari Musa's house whose door
was open. The NARCOM agents did not ask permission to enter the
house but simply announced that they were NARCOM agents. The
NARCOM agents searched Mari Musa's house and Mari Musa asked
them if they had a search warrant. The NARCOM agents were just
silent. The NARCOM agents found a red plastic bag whose contents,
Mari Musa said, he did not know. He also did not know if the plastic
bag belonged to his brother, Faisal, who was living with him, or his
father, who was living in another house about ten arms-length away.
Mari Musa, then, was handcuffed and when Mari Musa asked why,
the NARCOM agents told him for clarification.
Mari Musa was brought in a pick-up, his wife joining him to the
NARCOM Office at Calarian, Zamboanga City. Inside the NARCOM
Office, Mari Musa was investigated by one NARCOM agent which
investigation was reduced into writing. The writing or document was
interpreted to Mari Musa in Tagalog. The document stated that the
marijuana belonged to Mari Musa and Mari Musa was asked to sign
it. But Mari Musa refused to sign because the marijuana did not
belong to him. Mari Musa said he was not told that he was entitled to
the assistance of counsel, although he himself told the NARCOM
agents he wanted to be assisted by counsel.
Mari Musa said four bullets were then placed between the fingers of
his right hand and his fingers were pressed which felt very painful.
The NARCOM agents boxed him and Mari Musa lost consciousness.
While Mari Musa was maltreated, he said his wife was outside the
NARCOM building. The very day he was arrested (on cross-
examination Mari Musa said it was on the next day), Mari Musa was
brought to the Fiscal's Office by three NARCOM agents. The fiscal
asked him if the marijuana was owned by him and he said "not."
After that single question, Mari Musa was brought to the City Jail.
Mari Musa said he did not tell the fiscal that he had been maltreated
by the NARCOM agents because he was afraid he might be
maltreated in the fiscal's office. cdll
Mari Musa denied the NARCOM agents' charge that he had sold two
wrappers of marijuana to them; that he had received from them a
P20.00 bill which he had given to his wife. He did not sell marijuana
because he was afraid that was against the law and that the person
selling marijuana was caught by the authorities; and he had a wife and
a very small child to support. Mari Musa said he had not been
arrested for selling marijuana before. 5
After trial, the trial court rendered the assailed decision with the
following disposition:
"WHEREFORE, finding accused Mari Musa y Hantatalu guilty
beyond reasonable doubt of selling marijuana and pursuant to Sec. 4,
Art II of Rep. Act No. 6425, he is sentenced to life imprisonment and
to pay the fine of P20,000.00, the latter imposed without subsidiary
imprisonment." 6
In this appeal, the appellant contends that his guilt was not proved
beyond reasonable doubt and impugns the credibility of the
prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the poseur-buyer,
is not credible because: (1) prior to the buy-bust operation, neither
Sgt. Ani nor the other NARCOM agents were personally known by
the appellant or vice-versa; and (2) there was no witness to the
alleged giving of the two wrappers of marijuana by the appellant to
Sgt. Ani.
Sgt. Ani testified that on December 13, 1989, upon instruction by
T/Sgt. Jesus Belarga, he conducted a test-buy operation on the
appellant whereby he bought one wrapper of marijuana for P15.00
from the latter. 7 He reported the successful operation to T/Sgt.
Belarga on the same day. 8 Whereupon, T/Sgt. Belarga conducted a
conference to organize a buy-bust operation for the following day. 9
On December 14, 1989, at 1:30 p.m., two NARCOM teams in
separate vehicles headed by T/Sgt. Belarga and a certain Sgt.
Foncardas went to the place of operation, which was the appellant's
house located in Laquian Compound, Suterville, Zamboanga City.
Sgt. Ani was with the team of T/Sgt. Belarga, whose other members
were Sgts. Lego and Biong. 10 Sgt. Ani was given a marked P20.00
bill by T/Sgt. Belarga, which was to be used in the operation.
Upon reaching the place, the NARCOM agents positioned themselves
at strategic places. 11 Sgt. Ani approached the house. Outside the
house, the appellant asked Sgt. Ani what he wanted. Sgt. Ani asked
him for some more marijuana. 12 Sgt. Ani gave him the marked
P20.00 bill and the appellant went inside the house and brought back
two paper wrappers containing marijuana which he handed to Sgt.
Ani. 13 From his position, Sgt. Ani could see that there were other
people in the house. 14
After the exchange, Sgt. Ani approached the other NARCOM agents
and made the pre-arranged signal of raising his right hand. 15 The
NARCOM agents, accompanied by Sgt. Ani, went inside the house
and made the arrest. The agents searched the appellant and unable to
find the marked money, they asked him where it was. The appellant
said that he gave it to his wife. 16
The Court, after a careful reading of the record, finds the testimony of
Sgt. Ani regarding the buy-bust operation, which resulted in the
apprehension, prosecution and subsequent conviction of the appellant,
to be direct, lucid and forthright. Being totally untainted by
contradictions in any of the material points, it deserves credence.
The contention that the appellant could not have transacted with Sgt.
Ani because they do not know each other is without merit. The day
before the buy-bust operation, Sgt. Ani conducted a test-buy and he
successfully bought a wrapper of marijuana from the appellant.
Through this previous transaction, Sgt. Ani was able to gain the
appellant's confidence for the latter to sell more marijuana to Sgt. Ani
the following day, during the buy-bust operation. Moreover, the Court
has held that what matters is not an existing familiarity between the
buyer and the seller, for quite often, the parties to the transaction may
be strangers, but their agreement and the acts constituting the sale and
delivery of the marijuana. 17
The appellant, again to cast doubt on the credibility of Sgt. Ani,
argues that it was impossible for the appellant to sell marijuana while
his wife, cousin and manicurist were present. But the place of the
commission of the crime of selling prohibited drugs has been held to
be not crucial 18 and the presence of other people apart from the
buyer and seller will not necessarily prevent the consummation of the
illegal sale. As the Court observed in People v. Paco, 19 these factors
may sometimes camouflage the commission of the crime. In the
instant case, the fact that the other people inside the appellant's house
are known to the appellant may have given him some assurance that
these people will not report him to the authorities. cdll
The appellant, besides assailing Sgt. Ani's credibility, also questions
the credibility of T/Sgt. Belarga. The appellant submits that since
T/Sgt. Belarga admitted that he was about 90 meters away from Sgt.
Ani and the appellant, he could not have possibly witnessed the sale.
The appellant invokes People v. Ale 20 where the Court observed that
from a distance of 10-15 meters, a policeman cannot distinguish
between marijuana cigarette from ordinary ones by the type of rolling
done on the cigarette sticks. And since T/Sgt. Belarga allegedly did
not see the sale, the appellant contends that the uncorroborated
testimony of Sgt. Ani can not stand as basis for his conviction.
People v. Ale does not apply here because the policeman in that case
testified that he and his companion were certain that the appellant
therein handed marijuana cigarettes to the poseur-buyer based on the
appearance of the cigarette sticks. The Court rejected this claim,
stating that:
"This Court cannot give full credit to the testimonies of the
prosecution witnesses marked as they are with contradictions and
tainted with inaccuracies.
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, 1939; 23 (2) later that same day, Sgt. Ani went back to
their office and reported a successful operation and turned over to
T/Sgt. Belarga one wrapper of marijuana; 24 (3) T/Sgt. Belarga then
organized a team to conduct a buy-bust operation the following day;
25 (4) on December 14, 1989, T/Sgt. Belarga led a team of
NARCOM agents who went to Suterville, Zamboanga City; 26 (5)
T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be
used in the buy-bust operation; 27 (6) upon the arrival of the
NARCOM agents in Suterville, Zamboanga City, Sgt. Ani proceeded
to the house of the appellant while some agents stayed in the vehicles
and others positioned themselves in strategic places; 28 the appellant
met Sgt. Ani and an exchange of articles took place. 29
The corroborative testimony of T/Sgt. Belarga strengthens the direct
evidence given by Sgt. Ani. Additionally, the Court has ruled that the
fact that the police officers who accompanied the poseur-buyer were
unable to see exactly what the appellant gave the poseur-buyer
because of their distance or position will not be fatal to the
prosecution's case 30 provided there exists other evidence, direct or
circumstantial, e.g., the testimony of the poseur-buyer, which is
sufficient to prove the consummation of the sale of the prohibited
drug. cdll
The appellant next assails the seizure and admission as evidence of a
plastic bag containing marijuana which the NARCOM agents found
in the appellant's kitchen. It appears that after Sgt. Ani gave the pre-
arranged signal to the other NARCOM agents, the latter moved in and
arrested the appellant inside the house. They searched him to retrieve
the marked money but didn't find it. Upon being questioned, the
appellant said that he gave the marked money to his wife. 31
Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and
noticed what T/Sgt. Belarga described as a "cellophane colored white
and stripe hanging at the corner of the kitchen." 32 They asked the
appellant about its contents but failing to get a response, they opened
it and found dried marijuana leaves. At the trial, the appellant
questioned the admissibility of the plastic bag and the marijuana it
contains but the trial court issued an Order ruling that these are
admissible in evidence. 33
Built into the Constitution are guarantees on the freedom of every
individual against unreasonable searches and seizures by providing in
Article III, Section 2, the following:
"The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witness he may produce, and
particularly describing the place to be searched and the persons or
things to be seized."
Furthermore, the Constitution, in conformity with the doctrine laid
down in Stonehill v. Diokno, 34 declares inadmissible, any evidence
obtained in violation of the freedom from unreasonable searches and
seizures. 35
While a valid search warrant is generally necessary before a search
and seizure may be effected, exceptions to this rule are recognized.
Thus, in Alvero v. Dizon, 36 the Court stated that "[t]he most
important exception to the necessity for a search warrant is the right
of search and seizure as an incident to a lawful arrest." 37
Rule 126, Section 12 of the Rules of Court expressly authorizes a
warrantless search and seizure incident to a lawful arrest, thus:
SECTION 12. Search incident to lawful arrest. — A person lawfully
arrested may be searched for dangerous weapons or anything which
may be used as proof of the commission of an offense, without a
search warrant.
There is no doubt that the warrantless search incidental to a lawful
arrest authorizes the arresting officer to make a search upon the
person of the person arrested. As early as 1909, the Court has ruled
that "[a]n officer making an arrest may take from the person arrested
and money or property found upon his person which was used in the
commission of the crime or was the fruit of the crime or which might
furnish the prisoner with the means of committing violence or of
escaping, or which may be used as evidence in the trial of the cause."
38 Hence, in a buy-bust operation conducted to entrap a drug-pusher,
the law enforcement agents may seize the marked money found on
the person of the pusher immediately after the arrest even without
arrest and search warrants. 39
In the case at bar, the NARCOM agents searched the person of the
appellant after arresting him in his house but found nothing. They
then searched the entire house and, in the kitchen, found and seized a
plastic bag hanging in a corner. LLjur
The warrantless search and seizure, as an incident to a suspect's
lawful arrest, may extend beyond the person of the one arrested to
include the premises or surroundings under his immediate control. 40
Objects in the "plain view" of an officer who has the right to be in the
position to have that view are subject to seizure and may be presented
as evidence. 41
In Ker v. California, 42 police officers, without securing a search
warrant but having information that the defendant husband was
selling marijuana from his apartment, obtained from the building
manager a passkey to defendants' apartment, and entered it. There
they found the defendant husband in the living room. The defendant
wife emerged from the kitchen, and one of the officers, after
identifying himself, observed through the open doorway of the
kitchen, a small scale atop the kitchen sink, upon which lay a brick-
shaped package containing green leafy substance which he
recognized as marijuana. The package of marijuana was used as
evidence in prosecuting defendants for violation of the Narcotic Law.
The admissibility of the package was challenged before the U.S.
Supreme Court, which held, after observing that it was not
unreasonable for the officer to walk to the doorway of the adjacent
kitchen on seeing the defendant wife emerge therefrom, that "the
discovery of the brick of marijuana did not constitute a search, since
the officer merely saw what was placed before him in full view." 43
The U.S. Supreme Court ruled that the warrantless seizure of the
marijuana was legal on the basis of the "plain view" doctrine and
upheld the admissibility of the seized drugs as part of the
prosecution's evidence. 44
The "plain view" doctrine may not, however, be used to launch
unbridled searches and indiscriminate seizures nor to extend a general
exploratory search made solely to find evidence of defendant's guilt.
The "plain view" doctrine is usually applied where a police officer is
not searching for evidence against the accused, but nonetheless
inadvertently comes across an incriminating object. 45 Furthermore,
the U.S. Supreme Court stated the following limitations on the
application of the doctrine:
"What the 'plain view' cases have in common is that the police officer
in each of them had a prior justification for an intrusion in the course
of which he came inadvertently across a piece of evidence
incriminating the accused. The doctrine serves to supplement the
prior justification — whether it be a warrant for another object, hot
pursuit, search incident to lawful arrest, or some other legitimate
reason for being present unconnected with a search directed against
the accused — and permits the warrantless seizure. Of course, the
extension of the original justification is legitimate only where it is
immediately apparent to the police that they have evidence before
them; the 'plain view' doctrine may not be used to extend a general
exploratory search from one object to another until something
incriminating at last emerges." 46
It has also been suggested that even if an object is observed in "plain
view," the "plain view" doctrine will not justify the seizure of the
object where the incriminating nature of the object is not apparent
from the "plain view" of the object. 47 Stated differently, it must be
immediately apparent to the police that the items that they observe
may be evidence of a crime, contraband, or otherwise subject to
seizure.
In the instant case, the appellant was arrested and his person searched
in the living room. Failing to retrieve the marked money which they
hoped to find, the NARCOM agents searched the whole house and
found the plastic bag in the kitchen. The plastic bag was, therefore,
not within their "plain view" when they arrested the appellant as to
justify its seizure. The NARCOM agents had to move from one
portion of the house to another before they sighted the plastic bag.
Unlike Ker v. California, where the police officer had reason to walk
to the doorway of the adjacent kitchen and from which position he
saw the marijuana, the NARCOM agents in this case went from room
to room with the obvious intention of fishing for more evidence.
Moreover, when the NARCOM agents saw the plastic bag hanging in
one corner of the kitchen, they had no clue as to its contents. They
had to ask the appellant what the bag contained. When the appellant
refused to respond, they opened it and found the marijuana. Unlike
Ker v. California, where the marijuana was visible to the police
officer's eyes, the NARCOM agents in this case could not have
discovered the inculpatory nature of the contents of the bag had they
not forcibly opened it. Even assuming then, that the NARCOM agents
inadvertently came across the plastic bag because it was within their
"plain view," what may be said to be the object in their "plain view"
was just the plastic bag and not the marijuana. The incriminating
nature of the contents of the plastic bag was not immediately apparent
from the "plain view" of said object. It cannot be claimed that the
plastic bag clearly betrayed its contents, whether by its distinctive
configuration, its transparency, or otherwise, that its contents are
obvious to an observer. 48
We, therefore, hold that under the circumstances of the case, the
"plain view" doctrine does not apply and the marijuana contained in
the plastic bag was seized illegally and cannot be presented in
evidence pursuant to Article III, Section 3(2) of the Constitution.
cdrep
The exclusion of this particular evidence does not, however, diminish,
in any way, the damaging effect of the other pieces of evidence
presented by the prosecution to prove that the appellant sold
marijuana, in violation of Article II, Section 4 of the Dangerous
Drugs Act of 1972. We hold that by virtue of the testimonies of Sgt.
Ani and T/Sgt. Belarga and the two wrappings of marijuana sold by
the appellant to Sgt. Ani, among other pieces of evidence, the guilt of
the appellant of the crime charged has been proved beyond reasonable
doubt.
WHEREFORE, the appeal is DISMISSED and the judgment of the
Regional Trial Court AFFIRMED.
SO ORDERED.
Gutierrez, Jr., Bidin, Davide, Jr. and Melo, JJ ., concur.
THIRD DIVISION
[G.R. No. 121917. March 12, 1997.]
ROBIN CARIÑO PADILLA @ ROBINHOOD PADILLA,
petitioner, vs. COURT OF APPEALS and PEOPLE of the
PHILIPPINES, respondents.
Raval and Lokin, Robert A. Padilla and Philip Jurado and R.A.V.
Saguisag and Gina C. Garcia for petitioner.
The Solicitor General for respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST;
WARRANTLESS ARREST; GROUNDS. — Warrantless arrests are
sanctioned in the following instances: "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; (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.
2. ID.; ID.; ID.; ID.; "PRESENCE OF ARRESTING OFFICER
OR PRIVATE PERSON"; PRESENCE DOES NOT ONLY
REQUIRE THE PERSON TO SEE THE OFFENSE BUT ALSO
WHEN HE "HEARS THE DISTURBANCE CREATED AND
PROCEEDS AT ONCE TO THE SCENE"; CASE AT BAR. —
Paragraph (a) requires that the person be arrested (i) after he has
committed or while he is actually committing or is at least attempting
to commit an offense, (ii) in the presence of the arresting officer or
private person. Both elements concurred here, as it has been
established that petitioner's vehicle figured in a hit and run — an
offense committed in the "presence" of Manarang, a private person,
who then sought to arrest petitioner. It must be stressed at this point
that "presence" does not only require that the arresting person sees the
offense, but also when he "hears the disturbance created thereby AND
proceeds at once to the scene." As testified to by Manarang, he heard
the screeching of tires followed by a thud, saw the sideswiped victim
(balut vendor), reported the incident to the police and thereafter gave
chase to the erring Pajero vehicle using his motorcycle in order to
apprehend its driver. After having sent a radio report to the PNP for
assistance, Manarang proceeded to the Abacan bridge where he found
responding policemen SPO2 Borja and SPO2 Miranda already
positioned near the bridge who effected the actual arrest of petitioner.
3. ID.; ID.; ID.; ID.; RATIONALE. — It is appropriate to state
at this juncture that a suspect, like petitioner herein, cannot defeat the
arrest which has been set in motion in a public place for want of a
warrant as the police was confronted by an urgent need to render aid
or take action. The exigent circumstances of hot pursuit, a fleeing
suspect, a moving vehicle, the public place and the raining nighttime
all created a situation in which speed is essential and delay
improvident. The court acknowledges police authority to make the
forcible stop since they had more than mere "reasonable and
articulable" suspicion that the occupant of the vehicle has been
engaged in criminal activity.
4. ID.; ID.; ID.; ID.; WHEN CAUGHT IN FLAGRANTE
DELICTO. — When caught in flagrante delicto with possession of an
unlicensed arm (Smith & Wesson) and ammunition (M-16 magazine),
petitioner's warrantless arrest was proper as he was again actually
committing another offense (illegal possession of firearm and
ammunitions) and this time in the presence of a peace officer.
Besides, the policemen's warrantless arrest of petitioner could
likewise be justified under paragraph (b) as he had in fact just
committed an offense. There was no supervening event or a
considerable lapse of time between the hit and run and the actual
apprehension. Moreover, after having stationed themselves at the
Abacan bridge in response to Manarang's report, the policemen saw
for themselves the fast approaching Pajero of petitioner, its dangling
plate number (PMA 777 as reported by Manarang), and the dented
hood and railings thereof. These formed part of the arresting police
officer's personal knowledge of the facts indicating that, petitioner's
Pajero was indeed the vehicle involved in the hit and run accident.
Verily their, the arresting police officers acted upon verified personal
knowledge and not on unreliable hearsay information.
5. ID; ID.; ID.; OBJECTION, DEFECT OR IRREGULARITY
MUST BE MADE BEFORE PLEA. — Any objection, defect or
irregularity attending an arrest must be made before the accused
enters his plea. Petitioner's belated challenge thereto aside from his
failure to quash the information, his participation in the trial and by
presenting his evidence, placed him in estoppel to assail the legality
of his arrest. Likewise, by applying for bail, petitioner patently
waived such irregularities and defects.
6. ID.; ID.; WARRANTLESS SEARCH AND SEIZURE OF
PROPERTY; WHEN VALID. — The five (5) well-settled instances
when a warrantless search and seizure of property is valid, are as
follows: 1. warrantless search incidental to a lawful arrest recognized
under Section 12, Rule 126 of the Rules of Court 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, and 5. customs search.
7. ID.; ID.; ID.; "PLAINVIEW" DOCTRINE; APPLIED IN
CASE AT BAR. — The seizure of the Smith & Wesson revolver and
an M-16 rifle magazine was justified for they came within "plain
view" of the policemen who inadvertently discovered the revolver
and magazine tucked in petitioner's waist and back pocket
respectively, when he raised his hands after alighting from his Pajero.
The same justification applies to the confiscation of the M-16
armalite rifle which was immediately apparent to the policemen as
they took a casual glance at the Pajero and saw said rifle lying
horizontally near the driver's seat. Thus, it has been held that:
"(W)hen in pursuing an illegal action or in the commission of a
criminal offense, the . . . police officers should happen to discover a
criminal offense being committed by any person, they are not
precluded from performing their duties as police officers for the
apprehension of the guilty person and the taking of the corpus
delicti."
8. ID.; ID.; ID.; VOLUNTARY SURRENDER OF FIREARM
AND ASSORTED MAGAZINE, WAIVER OF RIGHT AGAINST
ILLEGAL SEARCH AND SEIZURE. — With respect to the Berreta
pistol and a black bag containing assorted magazines, petitioner
voluntarily surrendered them to the police. This latter gesture of
petitioner indicated a waiver of his right against the alleged search
and seizure, and that his failure to quash the information estopped
him from assailing any purported defect.
9. ID.; ID.; SEARCH INCIDENTAL TO AN ARREST. — Even
assuming that the firearms and ammunitions were products of an
active search done by the authorities on the person and vehicle of
petitioner, their seizure without a search warrant nonetheless can still
be justified under a search incidental to a lawful arrest (first instance).
Once the lawful arrest was effected, the police may undertake a
protective search of the passenger compartment and containers in the
vehicle which are within petitioner's grabbing distance regardless of
the nature of the offense. This satisfied the two-tiered test of an
incidental search: (i) the item to be searched (vehicle) was within the
arrestee's custody or area of immediate control and (ii) the search was
contemporaneous with the arrest. The products of that search are
admissible evidence not excluded by the exclusionary rule. Another
justification is a search of a moving vehicle (third instance). In
connection therewith, a warrantless search is constitutionally
permissible when, as in this case, the officers conducting the search
have reasonable or probable cause to believe, before the search, that
either the motorist is a law-offender (like herein petitioner with
respect to the hit and run) or the contents or cargo of the vehicle are
or have been instruments or the subject matter or the proceeds of
some criminal offense.
10. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARM;
REQUISITES. — In crimes involving illegal possession of firearm,
two requisites must be established, viz.: (1) the existence of the
subject firearm and, (2) the fact that the accused who owned or
possessed the firearm does not have the corresponding license permit
to possess.
11. ID.; ID.; ID.; CASE AT BAR. — The first element is beyond
dispute as the subject firearms and ammunitions were seized from
petitioner's possession via a valid warrantless search, identified and
offered in evidence during trial. As to the second element, the same
was convincingly proven by the prosecution. Indeed, petitioner's
purported Mission Order and Memorandum Receipt are inferior in the
face of the more formidable evidence for the prosecution as our
meticulous review of the records reveals that the Mission Order and
Memorandum Receipt were mere afterthoughts contrived and issued
under suspicious circumstances.
12. ID.; ID.; TESTIMONY OF REPRESENTATIVE OR
CERTIFICATION FROM PNP-FEO THAT A PERSON IS NOT A
LICENSEE OF ANY FIREARM, SUFFICIENT TO PROVE
SECOND ELEMENT. — In several occasions, the Court has ruled
that either the testimony of a representative of, or a certification from,
the PNP Firearms and Explosives Office (FEO) attesting that a person
is not a licensee of any firearm would suffice to prove beyond
reasonable doubt the second element of illegal possession of firearm.
In People vs. Tobias, we reiterated that such certification is sufficient
to show that a person has in fact no license.
13. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT OF
THE TRIAL COURT, GENERALLY ACCORDED RESPECT AND
FINALITY ON APPEAL. — The fact that petitioner does not have
the license or permit to possess was overwhelmingly proven by the
prosecution. The certification may even be dispensed with in the light
of the evidence that an M-16 rifle and any short firearm higher than a
.38 caliber pistol, akin to the confiscated firearms cannot be licensed
to a civilian, as in the case of petitioner. The Court entertains no
doubt in affirming petitioner's conviction especially as we find no
plausible reason, and none was presented, to depart from the factual
findings of both the trial court and respondent court which, as a rule,
are accorded by the Court with respect and finality.
14. CRIMINAL LAW, OFFENSES, COURTS ARE BOUND TO
APPLY GOVERNING LAW AT THE TIME OF COMMISSION OF
OFFENSE. — The trial court and the respondent court are bound to
apply the governing law at the time of appellant's commission of the
offense for it is a rule that laws are repealed only by subsequent ones.
Indeed, it is the duty of judicial officers to respect and apply the law
as it stands. And until its repeal, respondent court can not be faulted
for applying P.D. 1866 which abrogated the previous statutes
adverted to by petitioner.
15. POLITICAL LAW; CONSTITUTION; BILL OF RIGHTS;
CRUEL AND UNUSUAL PUNISHMENT; PENALTY FOR
ILLEGAL POSSESSION OF FIREARMS, NOT EMBRACED
THEREIN. — Equally lacking in merit is appellant's allegation that
the penalty for simple illegal possession is unconstitutional. The
penalty for simple possession of firearm, it should be stressed, ranges
from reclusion temporal maximum to reclusion perpetua contrary to
appellant's erroneous averment. The severity of a penalty does not
ipso facto make the same cruel and excessive. "It takes more than
merely being harsh, excessive, out of proportion, or severe for a
penalty to be obnoxious to the Constitution. 'The fact that the
punishment authorized by the statute is severe does not make it cruel
and unusual.' (24 C.J.S., 1187-1188). Expressed in other terms, it has
been held that to come under the ban, the punishment must be
'flagrantly and plainly oppressive,' wholly disproportionate to the
nature of the offense as to shock the moral sense of the community.'"
It is well-settled that as far as the constitutional prohibition goes, it is
not so much the extent as the nature of the punishment that
determines whether it is, or is not, cruel and unusual and that
sentences of imprisonment, though perceived to be harsh, are not
cruel or unusual if within statutory limits.
16. ID.; ID.; LAWS ON ILLEGAL POSSESSION OF
FIREARMS, CONSTITUTIONAL. — Every law has in its favor the
presumption of constitutionality. The burden of proving the invalidity
of the statute in question lies with the appellant which burden, we
note, was not convincingly discharged. To justify nullification of the
law, there must be a clear and unequivocal breach of the Constitution,
not a doubtful and argumentative implication, as in this case. In fact,
the constitutionality of P.D. 1866 has been upheld twice by this
Court. Just recently, the Court declared that "the pertinent laws on
illegal possession of firearms [are not] contrary to any provision of
the Constitution. . ."
17. REMEDIAL LAW; COURT; NOT CONCERNED WITH
THE WISDOM OR MORALITY OF LAWS. — Appellant's
grievance on the wisdom of the prescribed penalty should not be
addressed to us. Courts are not concerned with the wisdom, efficacy
or morality of laws. That question falls exclusively within the
province of Congress which enacts them and the Chief Executive who
approves or vetoes them. The only function of the courts, we reiterate,
is to interpret and apply the laws.
18. CRIMINAL LAW; ILLEGAL POSSESSION OF
FIREARMS; MINIMUM PENALTY. — With respect to the penalty
imposed by the trial court as affirmed by respondent court (17 years 4
months and 1 day of reclusion temporal as minimum, to 21 years of
reclusion perpetua, as maximum), we reduce the same in line with the
fairly recent case of People v. Lian where the Court en banc provided
that the indeterminate penalty imposable for simple illegal possession
of firearm, without any mitigating or aggravating circumstance,
should be within the range of ten (10) years and one (1) day to twelve
(12) years of prision mayor, as minimum, to eighteen (18) years, eight
(8) months and one (1) day to twenty (20) years of reclusion
temporal, as maximum.
D E C I S I O N
FRANCISCO, J p:
On October 26, 1992, high-powered firearms with live ammunitions
were found in the possession of petitioner Robin @ Robinhood
Padilla, i.e.:
"(1) One .357 Caliber revolver, Smith and Wesson, SN-32919 with
six (6) live ammunitions;
"(2) One M-16 Baby Armalite rifle, SN-RP 131120 with four (4)
long and one (1) short magazine with ammunitions;
"(3) One .380 Pietro Beretta, SN-A 35723 Y with clip and eight
(8) ammunitions; and
"(4) Six additional live double action ammunitions of .38 caliber
revolver." 1
Petitioner was correspondingly charged on December 3, 1992, before
the Regional Trial Court (RTC) of Angeles City with illegal
possession of firearms and ammunitions under P.D. 1866 2 thru the
following Information: 3
"That on or about the 26th day of October, 1992, in the City of
Angeles, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there willfully,
unlawfully and feloniously have in his possession and under his
custody and control one (1) M-16 Baby Armalite rifle, SN-RP
131120 with four (4) long and one (1) short magazines with
ammunitions, one (1) .357 caliber revolver Smith and Wesson, SN-
32919 with six (6) live ammunitions and one (1) 380 Pietro Beretta,
SN-A35723Y with clip and eight (8) ammunitions, without having
the necessary authority and permit to carry and possess the same.
ALL CONTRARY TO LAW." 4
The lower court then ordered the arrest of petitioner, 5 but granted his
application for bail. 6 During the arraignment on January 20, 1993, a
plea of not guilty was entered for petitioner after he refused, 7 upon
advice of counsel, 8 to make any plea. 9 Petitioner waived in writing
his right to be present in any and all stages of the case. 10
After trial, Angeles City RTC Judge David Rosete rendered judgment
dated April 25, 1994 convicting petitioner of the crime charged and
sentenced him to an "indeterminate penalty from 17 years, 4 months
and 1 day of reclusion temporal as minimum, to 21 years of reclusion
perpetua, as maximum". 11 Petitioner filed his notice of appeal on
April 28, 1994. 12 Pending the appeal in the respondent Court of
Appeals, 13 the Solicitor-General, convinced that the conviction
shows strong evidence of guilt, filed on December 2, 1994 a motion
to cancel petitioner's bail bond. The resolution of this motion was
incorporated in the now assailed respondent court's decision
sustaining petitioner's conviction, 14 the dispositive portion of which
reads:
"WHEREFORE, the foregoing circumstances considered, the
appealed decision is hereby AFFIRMED, and furthermore, the
P200,000.00 bailbond posted by accused-appellant for his provisional
liberty, FGU Insurance Corporation Bond No. JCR (2) 6523, is
hereby cancelled. The Regional Trial Court, Branch 61, Angeles City,
is directed to issue the Order of Arrest of accused-appellant and
thereafter his transmittal to the National Bureau of Prisons thru the
Philippine National Police where the said accused-appellant shall
remain under confinement pending resolution of his appeal, should he
appeal to the Supreme Court. This shall be immediately executory.
The Regional Trial Court is further directed to submit a report of
compliance herewith.
SO ORDERED. 15
Petitioner received a copy of this decision on July 26, 1995. 16 On
August 9, 1995 he filed a "motion for reconsideration (and to recall
the warrant of arrest)" 17 but the same was denied by respondent
court in its September 20, 1995 Resolution, 18 copy of which was
received by, petitioner on September 27, 1995. The next day,
September 28, petitioner filed the instant petition for review on
certiorari with application for bail 19 followed by two "supplemental
petitions" filed by different counsels, 20 a "second supplemental
petition" 21 and an urgent motion for the separate resolution of his
application for bail. Again, the Solicitor-General 22 sought the denial
of the application for bail, to which the Court agreed in a Resolution
promulgated on July 31, 1996. 23 The Court also granted the
Solicitor-General's motion to file a consolidated comment on the
petitions and thereafter required the petitioner to file his reply. 24
However, after his vigorous resistance and success on the intramural
of bail (both in the respondent court and this Court) and thorough
exposition of petitioner's guilt in his 55-page Brief in the respondent
court, the Solicitor-General now makes a complete turnabout by filing
a "Manifestation In Lieu Of Comment" praying for petitioner's
acquittal. 25
The People's detailed narration of facts, well-supported by evidence
on record and given credence by respondent court, is as follows: 26
"At about 8:00 o'clock in the evening of October 26, 1992, Enrique
Manarang and his compadre Danny Perez were inside the Manukan
sa Highway Restaurant in Sto. Kristo, Angeles City where they took
shelter from the heavy downpour (pp. 5-6, TSN, February 15, 1993)
that had interrupted their ride on motorcycles (pp. 5-6, ibid.) along
Mac Arthur Highway (ibid). While inside the restaurant, Manarang
noticed a vehicle, a Mitsubishi Pajero, running fast down the highway
prompting him to remark that the vehicle might get into an accident
considering the inclement weather. (p. 7, Ibid.) In the local
vernacular, he said thus: 'Ka bilis na, mumuran pa naman pota
makaaksidente ya.' (p. 7, ibid.). True enough, immediately after the
vehicle had passed the restaurant, Manarang and Perez heard a
screeching sound produced by the sudden and hard braking of a
vehicle running very fast (pp. 7-8, ibid.) followed by a sickening
sound of the vehicle hitting something (p. 8, ibid.). Danny Cruz, quite
sure of what had happened, remarked 'oy ta na' signifying that
Manarang had been right in his observation (pp. 8-9, ibid).
"Manarang and Cruz went out to investigate and immediately saw the
vehicle occupying the edge or shoulder of the highway giving it a
slight tilt to its side (pp. 9-10, ibid). Manarang, being a member of
both the Spectrum, a civic group and the Barangay Disaster
Coordinating Council, decided to report the incident to the Philippine
National Police of Angeles City (p. 10, ibid.). He took out his radio
and called the Viper, the radio controller of the Philippine National
Police of Angeles City (p. 10, ibid.). By the time Manarang
completed the call, the vehicle had started to leave the place of the
accident taking the general direction to the north (p. 11, ibid).
"Manarang went to the location of the accident and found out that the
vehicle had hit somebody (p. 11, ibid).
"He asked Cruz to look after the victim while he went back to the
restaurant, rode on his motorcycle and chased the vehicle (p. 11,
ibid.). During the chase he was able to make out the plate number of
the vehicle as PMA 777 (p. 33, TSN, February 15, 1993). He called
the Viper through the radio once again (p. 34, ibid.) reporting that a
vehicle heading north with plate number PMA 777 was involved in a
hit and run accident (p. 20, TSN, June 8, 1993). The Viper, in the
person of SPO2 Ruby Buan, upon receipt of the second radio call
flashed the message to all units of PNP Angeles City with the order to
apprehend the vehicle (p. 20, ibid.). One of the units of the PNP
Angeles City reached by the alarm was its Patrol Division at Jake
Gonzales Street near the Traffic Division (pp. 5-7, TSN, February 23,
1993). SPO2 Juan C. Borja III and SPO2 Emerlito Miranda
immediately boarded a mobile patrol vehicle (Mobile No. 3) and
positioned themselves near the south approach of Abacan bridge
since it was the only passable way going to the north (pp. 8-9, ibid.).
It took them about ten (10) seconds to cover the distance between
their office and the Abacan bridge (p. 9, ibid).
"Another PNP mobile patrol vehicle that responded to the flash
message from SPO2 Buan was Mobile No. 7 of the Pulongmaragal
Detachment which was then conducting patrol along Don Juico
Avenue (pp. 8-9, TSN, March 8, 1993). On board were SPO Ruben
Mercado and SPO3 Tan and SPO2 Odejar (p. 8, ibid.). SPO Ruben
Mercado immediately told SPO3 Tan to proceed to the MacArthur
Highway to intercept the vehicle with plate number PMA 777 (p. 10,
ibid).
"In the meantime, Manarang continued to chase the vehicle which
figured in the hit and run incident, even passing through a flooded
portion of the MacArthur Highway two (2) feet deep in front of the
Iglesia ni Kristo church but he could not catch up with the same
vehicle (pp. 11-12, February 15, 1993). When he saw that the car he
was chasing went towards Magalang, he proceeded to Abacan bridge
because he knew Pulongmaragal was not passable (pp. 12-14, ibid.).
When he reached the Abacan bridge, he found Mobile No. 3 and
SPO2 Borja and SPO2 Miranda watching all vehicles coming their
way (p. 10, TSN, February 23, 1993). He approached them and
informed them that there was a hit and run incident (p. 10, ibid.).
Upon learning that the two police officers already knew about the
incident, Manarang went back to where he came from (pp. 10-11;
ibid.). When Manarang was in front of Tina's Restaurant, he saw the
vehicle that had figured in the hit and run incident emerging from the
corner adjoining Tina's Restaurant (p. 15, TSN, February 15, 1993).
He saw that the license plate hanging in front of the vehicle bore the
identifying number PMA 777 and he followed it (p. 15, ibid.) towards
the Abacan bridge.
"Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda
of Mobile No. 3 (p. 10, TSN, February 23, 1993). When the vehicle
was about twelve (12) meters away from their position, the two police
officers boarded their Mobile car, switched on the engine, operated
the siren and strobe light and drove out to intercept the vehicle (p. 11,
ibid.). They cut into the path of the vehicle forcing it to stop (p. 11,
ibid).
"SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (p. 12,
TSN, February 23, 1993). SPO2 Miranda went to the vehicle with
plate number PMA 777 and instructed its driver to alight (p. 12,
ibid.). The driver rolled down the window and put his head out while
raising both his hands. They recognized the driver as Robin C.
Padilla, appellant in this case (p. 13, ibid.). There was no one else
with him inside the vehicle (p. 24). At that moment, Borja noticed
that Manarang arrived and stopped his motorcycle behind the vehicle
of appellant (p. 14, ibid). SPO2 Miranda told appellant to alight to
which appellant complied. Appellant was wearing a short leather
jacket (p. 16, TSN, March 8, 1993) such that when he alighted with
both his hands raised, a gun (Exhibit 'C') tucked on the left side of his
waist was revealed (p. 15; TSN, February 23, 1993), its butt
protruding (p. 15, ibid.). SPO2 Borja made the move to confiscate the
gun but appellant held the former' s hand alleging that the gun was
covered by legal papers (p. 16, ibid.). SPO2 Borja, however, insisted
that if the gun really was covered by legal papers, it would have to be
shown in the office (p. 16, ibid.). After disarming appellant, SPO2
Borja told him about the hit and run incident which was angrily
denied by appellant (p. 17, ibid.). By that time, a crowd had formed at
the place (p. 19, ibid.). SPO2 Borja checked the cylinder of the gun
and find six (6) live bullets inside (p. 20, ibid).
"While SPO2 Borja and appellant were arguing, Mobile No. 7 with
SPO Ruben Mercado, SPO3 Tan and SPO2 Odejar on board arrived
(pp. 11-12, TSN, March 8, 1993). As the most senior police officer in
the group, SPO Mercado took over the matter and informed appellant
that he was being arrested for the hit and run incident (p. 13, ibid.).
He pointed out to appellant the fact that the plate number of his
vehicle was dangling and the railing and the hood were dented (p. 12,
ibid.). Appellant, however, arrogantly denied his misdeed and,
instead, played with the crowd by holding their hands with one hand
and pointing to SPO2 Borja with his right hand saying 'iyan, kinuha
ang baril ko' (pp. 13-15, ibid.). Because appellant's jacket was short,
his gesture exposed a long magazine of an armalite rifle tucked in
appellant's back right pocket (p. 16, ibid.). SPO Mercado saw this and
so when appellant turned around as he was talking and proceeding to
his vehicle, Mercado confiscated the magazine from appellant (pp.
16-17, ibid.). Suspecting that appellant could also be carrying a rifle
inside the vehicle since he had a magazine, SPO2 Mercado prevented
appellant from going back to his vehicle by opening himself the door
of appellant's vehicle (16-17, ibid.). He saw a baby armalite rifle
(Exhibit D) lying horizontally at the front by the driver's seat. It had a
long magazine filled with live bullets in a semi-automatic mode (pp.
17-21, ibid.). He asked appellant for the papers covering the rifle and
appellant answered angrily that they were at his home (pp. 26-27,
ibid.). SPO Mercado modified the arrest of appellant by including as
its ground illegal possession of firearms (p. 28, ibid.). SPO Mercado
then read to appellant his constitutional rights (pp. 28-29, ibid).
"The police officers brought appellant to the Traffic Division at Jake
Gonzales Boulevard (pp. 31-32, ibid.) where appellant voluntarily
surrendered a third firearm, a pietro berreta pistol (Exhibit 'L') with a
single round in its chamber and a magazine (pp. 33-35, ibid.) loaded
with seven (7) other live bullets. Appellant also voluntarily
surrendered a black bag containing two additional long magazines
and one short magazine (Exhibits M, N, and O, pp. 36-37, ibid.) After
appellant had been interrogated by the Chief of the Traffic Division,
he was transferred to the Police Investigation Division at Sto. Rosario
Street beside the City Hall Building where he and the firearms and
ammunitions were turned over to SPO2 Rene Jesus Gregorio (pp. 5-
10, TSN, July 13, 1993) During the investigation, appellant admitted
possession of the firearms stating that he used them for shooting (p.
14, ibid.). He was not able to produce any permit to carry or
memorandum receipt to cover the three firearms (pp. 16-18, TSN,
January 25, 1994).
"On November 28, 1992, a certification (Exhibit 'F') was issued by
Captain, Senior Inspector Mario Espino, PNP, Chief, Record Branch
of the Firearms and Explosives Office (pp. 7-8, TSN, March 4, 1993).
The Certification stated that the three firearms confiscated from
appellant, an M-16 Baby armalite rifle SN-RP 1312 80, a .357 caliber
revolver Smith and Wesson SN 32919 and a .380 Pietro Beretta SN-
A35720, were not registered in the name of Robin C. Padilla (p. 6,
ibid.). A second Certification dated December 11, 1992 issued by
Captain Espino stated that the three firearms were not also registered
in the name of Robinhood C. Padilla (p. 10, ibid)."
Petitioner's defenses are as follows: (1) that his arrest was illegal and
consequently, the firearms and ammunitions taken in the course
thereof are inadmissible in evidence under the exclusionary rule; (2)
that he is a confidential agent authorized, under a Mission Order and
Memorandum Receipt, to carry the subject firearms; and (3) that the
penalty for simple illegal possession constitutes excessive and cruel
punishment proscribed by the 1987 Constitution. cdtai
After a careful review of the records 27 of this case, the Court is
convinced that petitioner's guilt of the crime charged stands on terra
firma, notwithstanding the Solicitor-General's change of heart.
Anent the first defense, petitioner questions the legality of his arrest.
There is no dispute that no warrant was issued for the arrest of
petitioner, but that per se did not make his apprehension at the
Abacan bridge illegal.
Warrantless arrests are sanctioned in the following instances: 28
"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;
(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.
Paragraph (a) requires that the person be arrested (i) after he has
committed or while he is actually committing or is at least attempting
to commit an offense, (ii) in the presence of the arresting officer or
private person. 29 Both elements concurred here, as it has been
established that petitioner's vehicle figured in a hit and run — an
offense committed in the "presence" of Manarang, a private person,
who then sought to arrest petitioner. It must be stressed at this point
that "presence" does not only require that the arresting person sees the
offense, but also when he "hears the disturbance created thereby AND
proceeds at once to the scene." 30 As testified to by Manarang, he
heard the screeching of tires followed by a thud, saw the sideswiped
victim (balut vendor), reported the incident to the police and
thereafter gave chase to the erring Pajero vehicle using his motorcycle
in order to apprehend its driver After having sent a radio report to the
PNP for assistance, Manarang proceeded to the Abacan bridge where
he found responding policemen SPO2 Borja and SPO2 Miranda
already positioned near the bridge who effected the actual arrest of
petitioner. 31
Petitioner would nonetheless insist on the illegality of his arrest by
arguing that the policemen who actually arrested him were not at, the
scene of the hit and run. 32 We beg to disagree. That Manarang
decided to seek the aid of the policemen (who admittedly were
nowhere in the vicinity of the hit and run) in effecting petitioner's
arrest, did not in any way affect the propriety of the apprehension. It
was in fact the most prudent action Manarang could have taken rather
than collaring petitioner by himself, inasmuch as policemen are
unquestionably better trained and well-equipped in effecting an arrest
of a suspect (like herein petitioner) who, in all probability, could have
put up a degree of resistance which an untrained civilian may not be
able to contain without endangering his own life. Moreover, it is a
reality that curbing lawlessness gains more success when law
enforcers function in collaboration with private citizens. It is precisely
through this cooperation that the offense herein involved fortunately
did not become an additional entry to the long list of unreported and
unsolved crimes.
It is appropriate to state at this juncture that a suspect, like petitioner
herein, cannot defeat the arrest which has been set in motion in a
public place for want of a warrant as the police was confronted by an
urgent need to render aid or take action. 33 The exigent circumstances
of — hot pursuit, 34 a fleeing suspect, a moving vehicle, the public
place and the raining nighttime — all created a situation in which
speed is essential and delay improvident. 35 The Court acknowledges
police authority to make the forcible stop since they had more than
mere "reasonable and articulable" suspicion that the occupant of the
vehicle has been engaged in criminal activity. 36 Moreover, when
caught in flagrante delicto with possession of an unlicensed firearm
(Smith & Wesson) and ammunition (M-16 magazine), petitioner's
warrantless arrest was proper as he was again actually committing
another offense (illegal possession of firearm and ammunitions) and
this time in the presence of a peace officer. 37
Besides, the policemen's warrantless arrest of petitioner could
likewise be justified under paragraph (b) as he had in fact just
committed an offense. There was no supervening event or a
considerable lapse of time between the hit and run and the actual
apprehension. Moreover, after having stationed themselves at the
Abacan bridge in response to Manarang's report, the policemen saw
for themselves the fast approaching Pajero of petitioner, 38 its
dangling plate number (PMA 777 as reported by Manarang), and the
dented hood and railings thereof. 39 These formed part of the
arresting police officer's personal knowledge of the facts indicating
that petitioner's Pajero was indeed the vehicle involved in the hit and
run incident. Verily then, the arresting police officers acted upon
verified personal knowledge and not on unreliable hearsay
information. 40
Furthermore, in accordance with settled jurisprudence, any objection,
defect or irregularity attending an arrest must be made before the
accused enters his plea. 41 Petitioner's belated challenge thereto aside
from his failure to quash the information, his participation in the trial
and by presenting his evidence, placed him in estoppel to assail the
legality of his arrest. 42 Likewise, by applying for bail, petitioner
patently waived such irregularities and defects. 43
We now go to the firearms and ammunitions seized from petitioner
without a search warrant, the admissibility in evidence of which, we
uphold.
The five (5) well-settled instances when a warrantless search and
seizure of property is valid, 44 are as follows:
1. warrantless search incidental to a lawful arrest recognized
under Section 12, Rule 126 of the Rules of Court 45 and by prevailing
jurisprudence; 46
2. Seizure of evidence in "plain view", the elements of which
are: 47
(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. 48
3. Search of a moving vehicle. 49 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. 50
4. consented warrantless search, and
5. customs search.
In conformity with respondent court's observation, it indeed appears
that the authorities stumbled upon petitioner s firearms and
ammunitions without even undertaking any active search which, as it
is commonly understood, is a prying into hidden places for that which
is concealed. 51 The seizure of the Smith & Wesson revolver and an
M-16 rifle magazine was justified for they came within "plain view"
of the policemen who inadvertently discovered the revolver and
magazine tucked in petitioner's waist and back pocket respectively,
when he raised his hands after alighting from his Pajero. The same
justification applies to the confiscation of the M-16 armalite rifle
which was immediately apparent to the policemen as they took a
casual glance at the Pajero and saw said rifle lying horizontally near
the driver's seat. 52 Thus it has been held that:
"(W)hen in pursuing an illegal action or in the commission of a
criminal offense, the . . . police officers should happen to discover a
criminal offense being committed by any person, they are not
precluded from performing their duties as police officers for the
apprehension of the guilty person and the taking of the corpus delicti.
53
"Objects whose possession are prohibited by law inadvertently found
in plain view are subject to seizure even without a warrant." 54
With respect to the Berreta pistol and a black bag containing assorted
magazines, petitioner voluntarily surrendered them to the police. 55
This latter gesture of petitioner indicated a waiver of his right against
the alleged search and seizure, 56 and that his failure to quash the
information estopped him from assailing any purported defect. 57
Even assuming. that the firearms and ammunitions were products of
an active search done by the authorities on the person and vehicle of
petitioner, their seizure without a search warrant nonetheless can still
be justified under a search incidental to a lawful arrest (first instance).
Once the lawful arrest was effected, the police may undertake a
protective search 58 of the passenger compartment and containers in
the vehicle 59 which are within petitioner's grabbing distance
regardless of the nature of the offense. 60 This satisfied the two-tiered
test of an incidental search: (i) the item to be searched (vehicle) was
within the arrestee's custody or area of immediate control 61 and (ii)
the search was contemporaneous with the arrest. 62 The products of
that search are admissible evidence not excluded by the exclusionary
rule. Another justification is a search of a moving vehicle (third
instance). In connection therewith, a warrantless search is
constitutionally permissible when, as in this case, the officers
conducting the search have reasonable or probable cause to believe,
before the search, that either the motorist is a law-offender (like
herein petitioner with respect to the hit and run) or the contents or
cargo of the vehicle are or have been instruments or the subject matter
or the proceeds of some criminal offense. 63
Anent his second defense, petitioner contends that he could not be
convicted of violating P.D. 1866 because he is an appointed civilian
agent authorized to possess and carry the subject firearms and
ammunition as evidenced by a Mission Order 64 and Memorandum
Receipt duly issued by PNP Supt. Rodialo Gumtang, the deputy
commander of Task Force Aguila, Lianga, Surigao del Sur. The
contention lacks merit.
In crimes involving illegal possession of firearm, two requisites must
be established, viz.: (1) the existence of the subject firearm and, (2)
the fact that the accused who owned or possessed the firearm does not
have the corresponding license or permit to possess. 65 The first
element is beyond dispute as the subject firearms and ammunitions 66
were seized from petitioner's possession via a valid warrantless
search, identified and offered in evidence during trial. As to the
second element, the same was convincingly proven by the
prosecution. Indeed, petitioner's purported Mission Order and
Memorandum Receipt are inferior in the face of the more formidable
evidence for the prosecution as our meticulous review of the records
reveals that the Mission Order and Memorandum Receipt were mere
afterthoughts contrived and issued under suspicious circumstances.
On this score, we lift from respondent court's incisive observation.
Thus:
"Appellant's contention is predicated on the assumption that the
Memorandum Receipts and Mission Order were issued before the
subject firearms were seized and confiscated from him by the police
officers in Angeles City. That is not so. The evidence adduced
indicate that the Memorandum Receipts and Mission Order were
prepared and executed long after appellant had been apprehended on
October 26, 1992.
"Appellant, when apprehended, could not show any document as
proof of his authority to possess and carry the subject firearms.
During the preliminary investigation of the charge against him for
illegal possession of firearms and ammunitions he could not, despite
the ample time given him, present any proper document showing his
authority. If he had, in actuality, the Memorandum Receipts and
Missions Order, he could have produced those documents easily, if
not at the time of apprehension, at least during the preliminary
investigation. But neither appellant nor his counsel inform the
prosecutor that appellant is authorized to possess and carry the subject
firearms under Memorandum Receipt and Mission Order. At the
initial presentation of his evidence in court, appellant could have
produced these documents to belie the charged against him. Appellant
did not. He did not even take the witness stand to explain his
possession of the subject firearms.
"Even in appellant's Demurrer to Evidence filed after the prosecution
rested contain no allegation of a Memorandum Receipts and Mission
Order authorizing appellant to possess and carry the subject firearms.
"At the initial presentation of appellant's evidence, the witness cited
was one James Neneng to whom a subpoena was issued.
Superintendent Gumtang was not even mentioned. James Neneng
appeared in court but was not presented by the defense. Subsequent
hearings were reset until the defense found Superintendent Gumtang
who appeared in court without subpoena on January 13, 1994" 67
The Court is baffled why petitioner failed to produce and present the
Mission Order and Memorandum Receipt if they were really issued
and existing before his apprehension. Petitioner's alternative excuses
that the subject firearms were intended for theatrical purposes, or that
they were owned by the Presidential Security Group, or that his
Mission Order and Memorandum Receipt were left at home, further
compound their irregularity. As to be reasonably expected, an
accused claiming innocence, like herein petitioner, would grab the
earliest opportunity to present the Mission Order and Memorandum
Receipt in question and save himself from the long and agonizing
public trial and spare him from proffering inconsistent excuses. In
fact, the Mission Order itself, as well as the Letter-Directive of the
AFP Chief of Staff, is explicit in providing that: cdtai
"VIII. c. When a Mission Order is requested for verification by
enforcement units/personnel such as PNP, Military Brigade and other
Military Police Units of AFP, the Mission Order should be shown
without resentment to avoid embarrassment and/or misunderstanding.
"IX. d. Implicit to this Mission Order is the injunction that the
confidential instruction will be carried out through all legal means
and do not cover an actuation in violation of laws. In the latter event,
this Mission Order is rendered inoperative in respect to such
violation." 68
which directive petitioner failed to heed without cogent explanation.
The authenticity and validity of the Mission Order and Memorandum
Receipt, moreover, were ably controverted. Witness for the
prosecution Police Supt. Durendes denied under oath his signature on
the dorsal side of the Mission Order and declared further that he did
not authorize anyone to sign in his behalf. 69 His surname thereon,
we note, was glaringly misspelled as "Durembes." 70 In addition,
only Unit Commanders and Chief of Offices have the authority to
issue Mission Orders and Memorandum Receipts under the
Guidelines on the Issuance of Mos, MRs, & PCFORs. 71 PNP Supt.
Rodialo Gumtang who issued petitioner's Mission Order and
Memorandum Receipt is neither a Unit Commander nor the Chief of
Office, but a mere deputy commander. Having emanated from an
unauthorized source, petitioner's Mission Order and Memorandum
Receipt are infirm and lacking in force and effect. Besides, the
Mission Order covers "Recom 1-12-Baguio City." 72 areas outside
Supt. Gumtang's area of responsibility thereby needing prior approval
"by next higher Headquarters" 73 which is absent in this case. The
Memorandum Receipt is also unsupported by a certification as
required by the March 5, 1988 Memorandum of the Secretary of
Defense which pertinently provides that:
"No memorandum receipt shall be issued for a CCS firearms without
corresponding certification from the corresponding Responsible
Supply Officer of the appropriate AFP unit that such firearm has been
officially taken up in that unit's property book, and that report of such
action has been reported to higher AFP authority."
Had petitioner's Memorandum Receipt been authentic, we see no
reason why he cannot present the corresponding certification as well.
What is even more peculiar is that petitioner's name, as certified to by
the Director for Personnel of the PNP, does not even appear in the
Plantilla of Non-Uniform Personnel or in the list of Civilian Agents
or Employees of the PNP which could justify the issuance of a
Mission Order, a fact admitted by petitioner's counsel. 74 The
implementing rules of P.D. 1866 issued by the then PC-INP Chief
and Director-General Lt. Gen. Fidel V. Ramos are clear and
unambiguous, thus:
"No Mission Order shall be issued to any civilian agent authorizing
the same to carry firearms outside residence unless he/she is included
in the regular plantilla of the government agency involved in law
enforcement and is receiving regular compensation for the services
he/she is rendering in the agency. Further, the civilian agent must be
included in a special law enforcement/police/intelligence project
proposal or special project which specifically required the use of
firearms(s) to insure its accomplishment and that the project is duly
approved at the PC Regional Command level or its equivalent level in
other major services of the AFP, INP and-NBI, or at higher levels of
command." 75
Circular No. 1, dated January 6, 1986, of the then Ministry of Justice
likewise provides as follows:
"If mission orders are issued to civilians (not members of the
uniformed service), they must be civilian agents included in the
regular plantilla of the government agency involved in law
enforcement and are receiving regular compensation for the service
they are rendering."
That petitioner's Mission Order and Memorandum Receipt were
fabricated pieces of evidence is accentuated all the more by the
testimony and certification of the Chief of the Records Branch of the
firearms and Explosives Office of the PNP declaring that petitioner's
confiscated firearms are not licensed or registered in the name of the
petitioner. 76 Thus:
"Q. In all these files that you have just mentioned Mr. Witness,
what did you find, if any?
"A. I found that a certain Robin C Padilla is a licensed registered
owner of one 9 mm pistol, Smith and Wesson with Serial No. TCT
8214 and the following firearms being asked whether it is registered
or not, I did not find any records, the M-16 and the caliber .357 and
the caliber .380 but there is a firearm with the same serial number
which is the same as that licensed and/or registered in the name of
one Albert Villanueva Fallorina.
"Q. So in short, the only licensed firearms in the name of accused
Robin C. Padilla is a pistol, Smith and Wesson, caliber 9 mm with
Serial No. TCT 8214?
"A. Yes, sir.
"Q. And the firearms that were the subject of this case are not
listed in the names of the accused in this case?
"A. Yes, sir. 77
xxx xxx xxx
And the certification which provides as follows:
Republic of the Philippines
Department of the Interior and Local Government
GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE
FIREARMS AND EXPLOSIVES OFFICE
Camp Crame, Quezon City
"PNPFEO5 November 28, 1992
"C E R T I F I C A T I O N
"TO WHOM IT MAY CONCERN:
"THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon
City is a licensed/registered holder of Pistol Smith and Wesson Cal
9mm with serial number TCT8214 covered by License No. RL
M76C4476687.
"Further certify that the following firearms are not registered with this
Office per verification from available records on file this Office as of
this date:
M16 Baby Armalite SN-RP131120
Revolver Cal 357 SN-3219
Pistol Cal 380 Pietro Beretta SN-35723
"However, we have on file one Pistol Cal 380, Beretta with serial
number 35723Y, licensed/registered to one Albert Villanueva
Fallorina of 29 San Juan St., Capitol Pasig, MM under Re-Registered
License.
"This certification is issued pursuant to Subpoena from City of
Angeles.
"FOR THE CHIEF, FEO:
(Sgd.)
JOSE MARIO M. ESPINO
Sr. Inspector, PNP
Chief, Records Branch" 78
In several occasions, the Court has ruled that either the testimony of a
representative of, or a certification from, the. PNP Firearms and
Explosives Office (FEO) attesting that a person is not a licensee of
any firearm would suffice to prove beyond reasonable doubt the
second element of illegal possession of firearm. 79 In People vs.
Tobias, 80 we reiterated that such certification is sufficient to show
that a person has in fact no license. From the foregoing discussion,
the fact that petitioner does not have the license or permit to possess
was overwhelmingly proven by the prosecution. The certification
may even be dispensed with in the light of the evidence 81 that an M-
16 rifle and any short firearm higher than a .38 caliber pistol, akin to
the confiscated firearms, cannot be licensed to a civilian, 82 as in the
case of petitioner The Court, therefore, entertains no doubt in
affirming petitioner's conviction especially as we find no plausible
reason and none was presented, to depart from the factual findings of
both the trial court and respondent court which, as a rule, are
accorded by the Court with respect and finality. 83
Anent his third defense, petitioner faults respondent court "in
applying P.D. 1866 in a democratic ambience (sic) and a non
subversive context" and adds that respondent court should have
applied instead the previous laws on illegal possession of firearms
since the reason for the penalty imposed under P.D. 1866 no longer
exists. 84 He stresses that the penalty of 17 years and 4 months to 21
years for simple illegal possession of firearm is cruel and excessive in
contravention of the Constitution. 85
The contentions do not merit serious consideration. The trial court
and the respondent court are bound to apply the governing law at the
time of appellant's commission of the offense for it is a rule that laws
are repealed only by subsequent ones. 86 Indeed, it is the duty of
judicial officers to respect and apply the law as it stands. 87 And until
its repeal, respondent court can not be faulted for applying P.D. 1866
which abrogated the previous statutes adverted to by petitioner.
Equally lacking in merit is appellant's allegation that the penalty for
simple illegal possession is unconstitutional. The penalty for simple
possession of firearm, it should be stressed, ranges from reclusion
temporal maximum to reclusion perpetua contrary to appellant's
erroneous averment. The severity of a penalty does not ipso facto
make the same cruel and excessive.
"It takes more than merely being harsh, excessive, out of proportion,
or severe for a penalty to be obnoxious to the Constitution. 'The fact
that the punishment authorized by the statute is severe does not make
it cruel and unusual' (24 C.J.S., 1187-1188). Expressed in other terms,
it has been held that to come under the ban, the punishment must be
'flagrantly and plainly oppressive', 'wholly disproportionate to the
nature of the offense as to shock the moral sense of the community."
88
It is well-settled that as far as the constitutional prohibition goes, it is
not so much the extent as the nature of the punishment that
determines whether it is, or is not, cruel and unusual and that
sentences of imprisonment, though perceived to be harsh, are not
cruel or unusual if within statutory limits. 89
Moreover, every law has in its favor the presumption of
constitutionality. The burden of proving the invalidity of the statute in
question lies with the appellant which burden, we note, was not
convincingly discharged. To justify nullification of the law, there
must be a clear and unequivocal breach of the Constitution, not a
doubtful and argumentative implication, 90 as in this case. In fact, the
constitutionality of P.D. 1866 has been upheld twice by this Court. 91
Just recently, the Court declared that "the pertinent laws on illegal
possession of firearms [are not] contrary to any provision of the
Constitution. . . " 92 Appellant's grievance on the wisdom of the
prescribed penalty should not be addressed to us. Courts are not
concerned with the wisdom, efficacy or morality of laws. That
question falls exclusively within the province of Congress which
enacts them and the Chief Executive who approves or vetoes them.
The only function of the courts, we reiterate, is to interpret and apply
the laws.
With respect to the penalty imposed by the trial court as affirmed by
respondent court (17 years 4 months and 1 day of reclusion temporal,
as minimum, to 21 years of reclusion perpetua, as maximum), we
reduce the same in line with the fairly recent case of People v. Lian
93 where the Court en banc provided that the indeterminate penalty
imposable for simple illegal possession of firearm, without any
mitigating or aggravating circumstance, should be within the range of
ten (10) years and one (1) day to twelve years (12) of prision mayor,
as minimum, to eighteen (18) years, eight (8) months and one (1 ) day
to twenty (20) of reclusion temporal, as maximum. This is discernible
from the following explanation by the Court:
"In the case at bar, no mitigating or aggravating circumstances have
been alleged or proved, In accordance with the doctrine regarding
special laws explained in People v. Simon, 94 although Presidential
Decree No. 1866 is a special law, the penalties therein were taken
from the Revised Penal Code, hence the rules in said Code for
graduating by degrees or determining the proper period should be
applied
Consequently, the penalty for the offense of simple illegal possession
of firearm is the medium period of the complex penalty in said
Section 1, that is, 18 years, 8 months and 1 day to 20 years.
"This penalty, being that which is to be actually imposed in
accordance with the rules therefor and not merely imposable as a
general prescription under the law, shall be the maximum of the range
of the indeterminate sentence. The minimum thereof shall be taken, as
aforesaid, from any period of the penalty next lower in degree, which
is, prision mayor in its maximum period to reclusion temporal in its
medium period. 95
WHEREFORE, premises considered, the decision of the Court of
Appeals sustaining petitioner's conviction by the lower court of the
crime of simple illegal possession of firearms and ammunitions is
AFFIRMED EXCEPT that petitioner's indeterminate penalty
MODIFIED to "ten (10) years and one (1) day, as minimum, to
eighteen (18) years, eight (8) months and one (1) day, as maximum.
cdtai
SO ORDERED.
Narvasa, C .J ., Davide, Jr., Melo and Panganiban, JJ ., concur.
EN BANC
[G.R. No. 129296. September 25, 2000.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABE
VALDEZ y DELA CRUZ, accused-appellant.
The Solicitor General for plaintiff-appellee.
Chavez Laureta & Associates for accused-appellant.
SYNOPSIS
In an information filed before the Regional Trial Court of
Bayombong, Nueva Vizcaya herein appellant was charged with
violation of the Dangerous Drug Act of 1972 for being caught in
flagranti delicto in planting and cultivating seven full grown
marijuana plants weighing 2.194 kilos in sitio Bulan, Bulan Ibung,
Villaverde, Nueva Vizcaya. On November 15, 1996, appellant was
arraigned and pleaded not guilty to the charge. Trial on the merits
ensued. Finding appellant's defense insipid, the trial court held
appellant liable as charged for cultivation and ownership of marijuana
plants and sentenced him to suffer the penalty of death. In view of the
penalty imposed by the trial court, the case was forwarded to the
Supreme Court for automatic review.
The Supreme Court found the appeal meritorious. The Court ruled
that the confiscated plants were evidently obtained during an illegal
search and seizure. Particularly, the seized marijuana plants were not
immediately apparent and a further search was needed. In sum, the
marijuana plants in question were not in "plain view" or "open to eye
and hand." The plain view doctrine thus, cannot be made to apply. As
to the second issue, which involves the admissibility of the marijuana
plants as evidence for the prosecution, the Court found that said
plants cannot, as products of an unlawful search and seizure, be used
as evidence against appellant. They are fruits of the proverbial
poisoned tree. It was, therefore, a reversible error on the part of the
court a quo to have admitted and relied upon the seized marijuana
plants as evidence to convict appellant. Additionally, the Court found
the appellant's extrajudicial confession flawed with respect to its
admissibility. The records showed that the admission by appellant
was verbal. It was also uncounselled. A verbal admission allegedly
made by an accused during the investigation, without the assistance
of counsel at the time of his arrest and even before his formal
investigation, is not only inadmissible for being violative of the right
to counsel during criminal investigations, it is also hearsay. Even if
the confession or admission were gospel truth, if it was made without
assistance of counsel and without a valid waiver of such assistance,
the confession is inadmissible in evidence, regardless of the absence
of coercion or even if it had been voluntarily given. Accordingly, the
appealed decision was reversed and set aside for insufficiency of
evidence. Appellant was acquitted and ordered released immediately
from confinement unless held for another lawful cause.
SYLLABUS
1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF
RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND
SEIZURE; THE MANTLE OF PROTECTION EXTENDED BY
THE BILL OF RIGHTS COVERS BOTH INNOCENT AND
GUILTY ALIKE AGAINST ANY FORM OF HIGH-
HANDEDNESS OF LAW ENFORCEMENT, REGARDLESS OF
THE PRAISEWORTHINESS OF THEIR INTENTION. — The
Constitution lays down the general rule that a search and seizure must
be carried on the strength of a judicial warrant. Otherwise, the search
and seizure is deemed "unreasonable." Evidence procured on the
occasion of an unreasonable search and seizure is deemed tainted for
being the proverbial fruit of a poisonous tree and should be excluded.
Such evidence shall be inadmissible in evidence for any purpose in
any proceeding. In the instant case, there was no search warrant
issued by a judge after personal determination of the existence of
probable cause. From the declarations of the police officers
themselves, it is clear that they had at least one (1) day to obtain a
warrant to search appellant's farm. Their informant had revealed his
name to them. The place where the cannabis plants were planted was
pinpointed. From the information in their possession, they could have
convinced a judge that there was probable cause to justify the
issuance of a warrant. But they did not. Instead, they uprooted the
plants and apprehended the accused on the excuse that the trip was a
good six hours and inconvenient to them. We need not underscore
that the protection against illegal search and seizure is constitutionally
mandated and only under specific instances are searches allowed
without warrants. The mantle of protection extended by the Bill of
Rights covers both innocent and guilty alike against any form of high-
handedness of law enforcers, regardless of the praiseworthiness of
their intentions.
2. REMEDIAL LAW; CRIMINAL PROCEDURE;
WARRANTLESS SEARCH; PLAIN VIEW DOCTRINE;
ELEMENTS; NOT APPLICABLE IN CASE AT BAR. — We find
no reason to subscribe to Solicitor General's contention that we apply
the "plain view" doctrine. For the doctrine to apply, the following
elements must be present: (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 have the right to be where they are; and
(c) the evidence must be immediately apparent; and d) plain view
justified mere seizure of evidence without further search. In the
instant case, recall that PO2 Balut testified that they first located the
marijuana plants before appellant was arrested without a warrant.
Hence, there was no valid warrantless arrest which preceded the
search of appellant's premises. Note further that the police team was
dispatched to appellant's kaingin precisely to search for and uproot
the prohibited flora. The seizure of evidence in "plain view" applies
only where the police officer is not searching for evidence against the
accused, but inadvertently comes across an incriminating object.
Clearly, their discovery of the cannabis plants was not inadvertent.
We also note the testimony of SPO2 Tipay that upon arriving at the
area, they first had to "look around the area" before they could spot
the illegal plants. Patently, the seized marijuana plants were not
"immediately apparent" and a "further search" was needed. In sum,
the marijuana plants in question were not in "plain view" or "open to
eye and hand." The "plain view" doctrine, thus, cannot be made to
apply.
3. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF
RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND
SEIZURES; REFERS TO THE RIGHT OF PERSONAL
SECURITY. — Nor can we sustain the trial court's conclusion that
just because the marijuana plants were found in an unfenced lot,
appellant could not invoke the protection afforded by the Charter
against unreasonable searches by agents of the State. The right
against unreasonable searches and seizures is the immunity of one's
person, which includes his residence, his papers, and other
possessions. The guarantee refers to "the right of personal security" of
the individual. As appellant correctly points out, what is sought to be
protected against the State's unlawful intrusion are persons, not
places. To conclude otherwise would not only mean swimming
against the stream, it would also lead to the absurd logic that for a
person to be immune against unreasonable searches and seizures, he
must be in his home or office, within a fenced yard or a private place.
The Bill of Rights belongs as much to the person in the street as to the
individual in the sanctuary of his bedroom. HEDSCc
4. ID.; ID.; ID.; RIGHTS OF PERSON UNDER
INVESTIGATION; CANNOT BE WAIVED EXCEPT IN
WRITING AND IN THE PRESENCE OF COUNSEL. — The
Constitution plainly declares that any person under investigation for
the commission of an offense shall have the right: (1) to remain silent;
(2) to have competent and independent counsel preferably of his own
choice; and (3) to be informed of such rights. These rights cannot be
waived except in writing and in the presence of counsel. An
investigation begins when it is no longer a general inquiry but starts
to focus on a particular person as a suspect, i.e., when the police
investigator starts interrogating or exacting a confession from the
suspect in connection with an alleged offense. The moment the police
try to elicit admissions or confessions or even plain information from
a person suspected of having committed an offense, he should at that
juncture be assisted by counsel, unless he waives the right in writing
and in the presence of counsel.
5. REMEDIAL LAW; EVIDENCE; EXTRAJUDICIAL
CONFESSION; REQUIREMENTS; A VERBAL ADMISSION
ALLEGEDLY MADE BY AN ACCUSED DURING THE
INVESTIGATION, WITHOUT THE ASSISTANCE OF COUNSEL
AT THE TIME OF HIS ARREST AND EVEN BEFORE HIS
FORMAL INVESTIGATION IS NOT ONLY INADMISSIBLE FOR
BEING VIOLATIVE OF THE RIGHT TO COUNSEL DURING
CRIMINAL INVESTIGATIONS, IT IS ALSO HEARSAY. — We
find appellant's extrajudicial confession flawed with respect to its
admissibility. For a confession to be admissible, it must satisfy the
following requirements: (1) it must be voluntary; (2) it must be made
with the assistance of competent and independent counsel; (3) it must
be express; and (4) it must be in writing. The records show that the
admission by appellant was verbal. It was also uncounselled. A verbal
admission allegedly made by an accused during the investigation,
without the assistance of counsel at the time of his arrest and even
before his formal investigation is not only inadmissible for being
violative of the right to counsel during criminal investigations, it is
also hearsay. Even if the confession or admission were "gospel truth,"
if it was made without assistance of counsel and without a valid
waiver of such assistance, the confession is inadmissible in evidence,
regardless of the absence of coercion or even if it had been
voluntarily given.
D E C I S I O N
QUISUMBING, J p:
For automatic review is the decision 1 promulgated on February 18,
1997, by the Regional Trial Court of Bayombong, Nueva Vizcaya,
Branch 27, in Criminal Case No. 3105. It found appellant Abe Valdez
y Dela Cruz guilty beyond reasonable doubt for violating Section 9 of
the Dangerous Drugs Act of 1972 (R.A. No. 6425), as amended by
R.A. No. 7659. He was sentenced to suffer the penalty of death by
lethal injection.
In an Information dated September 26, 1996, appellant was charged
as follows:
"That on or about September 25, 1996, at Sitio Bulan, Barangay
Sawmill, Municipality of Villaverde, Province of Nueva Vizcaya,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, who was caught in flagrante delicto and
without authority of law, did then and there wilfully (sic), unlawfully
and feloniously plant, cultivate and culture seven (7) fully grown
marijuana plants known as Indian Hemp weighing 2.194 kilos, from
which dangerous drugs maybe (sic) manufactured or derived, to the
damage and prejudice of the government of the Republic of the
Philippines.
"That the property where the said seven (7) fully grown marijuana
plants were planted, cultivated and cultured shall be confiscated and
escheated in favor of the government.
"CONTRARY TO LAW." 2
On November 15, 1996, appellant was arraigned and, with assistance
of counsel, pleaded not guilty to the charge. Trial on the merits then
ensued.
The first witness for the prosecution was SPO3 Marcelo Tipay, a
member of the police force of Villaverde, Nueva Vizcaya. He
testified that at around 10:15 a.m. of September 24, 1996, he received
a tip from an unnamed informer about the presence of a marijuana
plantation, allegedly owned by appellant at Sitio Bulan, Ibung,
Villaverde, Nueva Vizcaya. 3 The prohibited plants were allegedly
planted close to appellant's hut. Police Inspector Alejandro R.
Parungao, Chief of Police of Villaverde, Nueva Vizcaya then formed
a reaction team from his operatives to verify the report. The team was
composed of SPO3 Marcelo M. Tipay, SPO2 Noel V. Libunao, SPO2
Pedro S. Morales, SPO1 Romulo G. Tobias and PO2 Alfelmer I.
Balut. Inspector Parungao gave them specific instructions to "uproot
said marijuana plants and arrest the cultivator of same." 4
At approximately 5:00 o'clock A.M. the following day, said police
team, accompanied by their informer, left for the site where the
marijuana plants were allegedly being grown. After a three-hour,
uphill trek from the nearest barangay road, the police operatives
arrived at the place pinpointed by their informant. The police found
appellant alone in his nipa hut. They, then, proceeded to look around
the area where appellant had his kaingin and saw seven (7) five-foot
high, flowering marijuana plants in two rows, approximately 25
meters from appellant's hut. 5 PO2 Balut asked appellant who owned
the prohibited plants and, according to Balut, the latter admitted that
they were his. 6 The police uprooted the seven marijuana plants,
which weighed 2.194 kilograms. 7 The police took photos of
appellant standing beside the cannabis plants. 8 Appellant was then
arrested. One of the plants, weighing 1.090 kilograms, was sent to the
Philippine National Police Crime Laboratory in Bayombong, Nueva
Vizcaya for analysis. 9 Inspector Prevy Fabros Luwis, the Crime
Laboratory forensic analyst, testified that upon microscopic
examination of said plant, she found cystolitic hairs containing
calcium carbonate, a positive indication for marijuana. 10 She next
conducted a chemical examination, the results of which confirmed her
initial impressions. She found as follows:
"SPECIMEN SUBMITTED: Exh "A" — 1.090 grams of uprooted
suspected marijuana plant placed inside a white sack with markings.
xxx xxx xxx
"FINDINGS: Qualitative examination conducted on the above stated
specimen gave POSITIVE result to the test for Marijuana, a
prohibited drug." 11
The prosecution also presented a certification from the Department of
Environment and Natural Resources that the land cultivated by
appellant, on which the growing marijuana plants were found, was
Lot 3224 of Timberland Block B, which formed part of the Integrated
Social Forestry Area in Villaverde, Nueva Vizcaya. 12 This lot was
part of the public domain. Appellant was acknowledged in the
certification as the occupant of the lot, but no Certificate of
Stewardship had yet been issued in his favor. 13
As its sole witness, the defense presented appellant. He testified that
at around 10:00 o'clock A.M., September 25, 1996, he was weeding
his vegetable farm in Sitio Bulan when he was called by a person
whose identity he does not know. He was asked to go with the latter
to "see something." 14 This unknown person then brought appellant
to the place where the marijuana plants were found, approximately
100 meters away from his nipa hut. 15 Five armed policemen were
present and they made him stand in front of the hemp plants. He was
then asked if he knew anything about the marijuana growing there.
When he denied any knowledge thereof, SPO2 Libunao poked a fist
at him and told him to admit ownership of the plants. 16 Appellant
was so nervous and afraid that he admitted owning the marijuana. 17
IaHSCc
The police then took a photo of him standing in front of one of the
marijuana plants. He was then made to uproot five of the cannabis
plants, and bring them to his hut, where another photo was taken of
him standing next to a bundle of uprooted marijuana plants. 18 The
police team then brought him to the police station at Villaverde. On
the way, a certain Kiko Pascua, a barangay peace officer of Barangay
Sawmill, accompanied the police officers. Pascua, who bore a grudge
against him, because of his refusal to participate in the former's illegal
logging activities, threatened him to admit owning the marijuana,
otherwise he would "be put in a bad situation." 19 At the police
headquarters, appellant reiterated that he knew nothing about the
marijuana plants seized by the police. 20
On cross-examination, appellant declared that there were ten other
houses around the vicinity of his kaingin, the nearest house being 100
meters away. 21 The latter house belonged to one Carlito (Lito)
Pascua, an uncle of the barangay peace officer who had a grudge
against him. The spot where the marijuana plants were found was
located between his house and Carlito Pascua's. 22
The prosecution presented SPO3 Tipay as its rebuttal witness. His
testimony was offered to rebut appellant's claim that the marijuana
plants were not planted in the lot he was cultivating. 23 Tipay
presented a sketch he made, 24 which showed the location of
marijuana plants in relation to the old and new nipa huts of appellant,
as well as the closest neighbor. According to Tipay, the marijuana
plot was located 40 meters away from the old hut of Valdez and 250
meters distant from the hut of Carlito Pascua. 25 Tipay admitted on
cross-examination that no surveyor accompanied him when he made
the measurements. 26 He further stated that his basis for claiming that
appellant was the owner or planter of the seized plants was the
information given him by the police informer and the proximity of
appellant's hut to the location of said plants. 27 TSIDaH
Finding appellant's defense insipid, the trial court held appellant liable
as charged for cultivation and ownership of marijuana plants as
follows:
"WHEREFORE, finding the accused GUILTY beyond reasonable
doubt of cultivating marijuana plants punishable under Section 9 of
the Dangerous Drugs Act of 1972, as amended, accused is hereby
sentenced to death by lethal injection. Costs against the accused.
"SO ORDERED." 28
Appellant assigns the following errors for our consideration:
I
THE TRIAL COURT GRAVELY ERRED IN ADMITTING AS
EVIDENCE THE SEVEN (7) MARIJUANA PLANTS DESPITE
THEIR INADMISSIBILITY BEING PRODUCTS OF AN ILLEGAL
SEARCH.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING
APPELLANT OF VIOLATION OF SECTION 9, REPUBLIC ACT
NO. 6425 DESPITE THE INADMISSIBILITY OF THE CORPUS
DELICTI AND THE FAILURE OF THE PROSECUTION TO
PROVE HIS GUILT BEYOND REASONABLE DOUBT.
III
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE
SUPREME PENALTY OF DEATH UPON APPELLANT DESPITE
FAILURE OF THE PROSECUTION TO PROVE THAT THE
LAND WHERE THE MARIJUANA PLANTS WERE PLANTED IS
A PUBLIC LAND ON THE ASSUMPTION THAT INDEED
APPELLANT PLANTED THE SUBJECT MARIJUANA. 29
Simply stated, the issues are:
(1) Was the search and seizure of the marijuana plants in the
present case lawful?
(2) Were the seized plants admissible in evidence against the
accused?
(3) Has the prosecution proved appellant's guilt beyond
reasonable doubt?
(4) Is the sentence of death by lethal injection correct?
The first and second issues will be jointly discussed because they are
interrelated.
Appellant contends that there was unlawful search. First, the records
show that the law enforcers had more than ample time to secure a
search warrant. Second, that the marijuana plants were found in an
unfenced lot does not remove appellant from the mantle of protection
against unreasonable searches and seizures. He relies on the ruling of
the US Supreme Court in Terry v. Ohio, 392 US 1, 20 L. Ed 2d 898,
88 S. Ct. 1868 (1968), to the effect that the protection against
unreasonable government intrusion protects people, not places.
For the appellee, the Office of the Solicitor General argues that the
records clearly show that there was no search made by the police
team, in the first place. The OSG points out that the marijuana plants
in question were grown in an unfenced lot and as each grew about
five (5) feet tall, they were visible from afar, and were, in fact,
immediately spotted by the police officers when they reached the site.
The seized marijuana plants were, thus, in plain view of the police
officers. The instant case must, therefore, be treated as a warrantless
lawful search under the "plain view" doctrine. CTEaDc
The court a quo upheld the validity of the search and confiscation
made by the police team on the finding that:
". . . It seems there was no need for any search warrant. The
policemen went to the plantation site merely to make a verification.
When they found the said plants, it was too much to expect them to
apply for a search warrant. In view of the remoteness of the plantation
site (they had to walk for six hours back and forth) and the dangers
lurking in the area if they stayed overnight, they had a valid reason to
confiscate the said plants upon discovery without any search warrant.
Moreover, the evidence shows that the lot was not legally occupied
by the accused and there was no fence which evinced the occupant's
desire to keep trespassers out. There was, therefore, no privacy to
protect, hence, no search warrant was required." 30
The Constitution 31 lays down the general rule that a search and
seizure must be carried on the strength of a judicial warrant.
Otherwise, the search and seizure is deemed "unreasonable."
Evidence procured on the occasion of an unreasonable search and
seizure is deemed tainted for being the proverbial fruit of a poisonous
tree and should be excluded. 32 Such evidence shall be inadmissible
in evidence for any purpose in any proceeding. 33
In the instant case, there was no search warrant issued by a judge after
personal determination of the existence of probable cause. From the
declarations of the police officers themselves, it is clear that they had
at least one (1) day to obtain a warrant to search appellant's farm.
Their informant had revealed his name to them. The place where the
cannabis plants were planted was pinpointed. From the information in
their possession, they could have convinced a judge that there was
probable cause to justify the issuance of a warrant. But they did not.
Instead, they uprooted the plants and apprehended the accused on the
excuse that the trip was a good six hours and inconvenient to them.
We need not underscore that the protection against illegal search and
seizure is constitutionally mandated and only under specific instances
are searches allowed without warrants. 34 The mantle of protection
extended by the Bill of Rights covers both innocent and guilty alike
against any form of high-handedness of law enforcers, regardless of
the praiseworthiness of their intentions. EICSDT
We find no reason to subscribe to Solicitor General's contention that
we apply the "plain view" doctrine. For the doctrine to apply, the
following elements must be present:
(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
have the right to be where they are; and
(c) the evidence must be immediately apparent; and
(d) plain view justified mere seizure of evidence without further
search. 35
In the instant case, recall that PO2 Balut testified that they first
located the marijuana plants before appellant was arrested without a
warrant. 36 Hence, there was no valid warrantless arrest which
preceded the search of appellant's premises. Note further that the
police team was dispatched to appellant's kaingin precisely to search
for and uproot the prohibited flora. The seizure of evidence in "plain
view" applies only where the police officer is not searching for
evidence against the accused, but inadvertently comes across an
incriminating object. 37 Clearly, their discovery of the cannabis
plants was not inadvertent. We also note the testimony of SPO2 Tipay
that upon arriving at the area, they first had to "look around the area"
before they could spot the illegal plants. 38 Patently, the seized
marijuana plants were not "immediately apparent" and a "further
search" was needed. In sum, the marijuana plants in question were not
in "plain view" or "open to eye and hand." The "plain view" doctrine,
thus, cannot be made to apply.
Nor can we sustain the trial court's conclusion that just because the
marijuana plants were found in an unfenced lot, appellant could not
invoke the protection afforded by the Charter against unreasonable
searches by agents of the State. The right against unreasonable
searches and seizures is the immunity of one's person, which includes
his residence, his papers, and other possessions. 39 The guarantee
refers to "the right of personal security" 40 of the individual. As
appellant correctly points out, what is sought to be protected against
the State's unlawful intrusion are persons, not places. 41 To conclude
otherwise would not only mean swimming against the stream, it
would also lead to the absurd logic that for a person to be immune
against unreasonable searches and seizures, he must be in his home or
office, within a fenced yard or a private place. The Bill of Rights
belongs as much to the person in the street as to the individual in the
sanctuary of his bedroom. ICTacD
We therefore hold, with respect to the first issue, that the confiscated
plants were evidently obtained during an illegal search and seizure.
As to the second issue, which involves the admissibility of the
marijuana plants as evidence for the prosecution, we find that said
plants cannot, as products of an unlawful search and seizure, be used
as evidence against appellant. They are fruits of the proverbial
poisoned tree. It was, therefore, a reversible error on the part of the
court a quo to have admitted and relied upon the seized marijuana
plants as evidence to convict appellant.
We now proceed to the third issue, which revolves around the
sufficiency of the prosecution's evidence to prove appellant's guilt.
Having declared the seized marijuana plants inadmissible in evidence
against appellant, we must now address the question of whether the
remaining evidence for the prosecution suffices to convict appellant?
In convicting appellant, the trial court likewise relied on the
testimony of the police officers to the effect that appellant admitted
ownership of the marijuana when he was asked who planted them. It
made the following observation:
"It may be true that the admission to the police by the accused that he
planted the marijuana plants was made in the absence of any
independent and competent counsel. But the accused was not, at the
time of police verification; under custodial investigation. His
admission is, therefore, admissible in evidence and not violative of
the constitutional fiat that admission given during custodial
investigation is not admissible if given without any counsel." 42
Appellant now argues that his admission of ownership of the
marijuana plants in question cannot be used against him for being
violative of his right to counsel during the police investigation. Hence
it was error for the trial court to have relied upon said admission of
ownership. He submits that the investigation conducted by the police
officers was not a general inquiry, but was meant to elicit information
on the ownership of the marijuana plants. Appellant theorizes that
since the investigation had narrowed down to him, competent and
independent counsel should have assisted him, when the police
sought information from him regarding the ownership of the
prohibited plants. Appellant claims the presumption of regularity of
duty of officers cannot be made to apply to his purported voluntarily
confession of ownership of the marijuana plants. Nor can it override
his constitutional right to counsel during investigation.
The Office of the Solicitor General believes otherwise. The OSG
avers that appellant was not yet under custodial investigation when he
admitted to the police that he owned the marijuana plants. His right to
competent and independent counsel, accordingly, had not yet
attached. Moreover, appellant's failure to impute any false motive for
the police officers to falsely accuse him indicates that the
presumption of regularity in the performance of official duties by
police officers was not sufficiently rebutted. HIACac
The Constitution plainly declares that any person under investigation
for the commission of an offense shall have the right: (1) to remain
silent; (2) to have competent and independent counsel preferably of
his own choice; and (3) to be informed of such rights. These rights
cannot be waived except in writing and in the presence of counsel. 43
An investigation begins when it is no longer a general inquiry but
starts to focus on a particular person as a suspect, i.e., when the police
investigator starts interrogating or exacting a confession from the
suspect in connection with an alleged offense. 44 The moment the
police try to elicit admissions or confessions or even plain
information from a person suspected of having committed an offense,
he should at that juncture be assisted by counsel, unless he waives the
right in writing and in the presence of counsel. 45
In the instant case we find that, from the start, a tipster had furnished
the police appellant's name as well as the location of appellant's farm,
where the marijuana plants were allegedly being grown. While the
police operation was supposedly meant to merely "verify" said
information, the police chief had likewise issued instructions to arrest
appellant as a suspected marijuana cultivator. Thus, at the time the
police talked to appellant in his farm, the latter was already under
investigation as a suspect. The questioning by the police was no
longer a general inquiry. 46
Under cross-examination, PO2 Balut stated, he "did not yet admit that
he is the cultivator of that marijuana so we just asked him and I think
there is no need to inform (him of) his constitutional rights because
we are just asking him . . ." 47 In trying to elicit information from
appellant, the police was already investigating appellant as a suspect.
At this point, he was already under custodial investigation and had a
right to counsel even if he had not yet been arrested. Custodial
investigation is "questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way." 48 As a suspect, two
armed policemen interrogated appellant. Behind his inquisitors were a
barangay peace officer and three other armed policemen. 49 All had
been dispatched to arrest him. 50 From these circumstances, we may
infer that appellant had already been deprived of his freedom of
action in a significant way, even before the actual arrest. Note that
even before he was arrested, the police made him incriminatingly
pose for photos in front of the marijuana plants. cATDIH
Moreover, we find appellant's extrajudicial confession flawed with
respect to its admissibility. For a confession to be admissible, it must
satisfy the following requirements: (1) it must be voluntary; (2) it
must be made with the assistance of competent and independent
counsel; (3) it must be express; and (4) it must be in writing. 51 The
records show that the admission by appellant was verbal. It was also
uncounselled. A verbal admission allegedly made by an accused
during the investigation, without the assistance of counsel at the time
of his arrest and even before his formal investigation is not only
inadmissible for being violative of the right to counsel during
criminal investigations, it is also hearsay. 52 Even if the confession or
admission were "gospel truth," if it was made without assistance of
counsel and without a valid waiver of such assistance, the confession
is inadmissible in evidence, regardless of the absence of coercion or
even if it had been voluntarily given. 53
It is fundamental in criminal prosecutions that before an accused may
be convicted of a crime, the prosecution must establish by proof
beyond reasonable doubt that a crime was committed and that the
accused is the author thereof. 54 The evidence arrayed against the
accused, however, must not only stand the test of reason, 55 it must
likewise be credible and competent. 56 Competent evidence is
"generally admissible" evidence. 57 Admissible evidence, in turn, is
evidence "of such a character that the court or judge is bound to
receive it, that is, allow it to be introduced at trial." 58
In the instant case, the trial court relied on two pieces of probative
matter to convict appellant of the offense charged. These were the
seized marijuana plants, and appellant's purportedly voluntary
confession of ownership of said marijuana plants to the police. Other
than these proofs, there was no other evidence presented to link
appellant with the offense charged. As earlier discussed, it was error
on the trial court's part to have admitted both of these proofs against
the accused and to have relied upon said proofs to convict him. For
said evidence is doubly tainted. TEcAHI
First, as earlier pointed out, the seized marijuana plants were obtained
in violation of appellant's constitutional rights against unreasonable
searches and seizures. The search and seizure were void ab initio for
having been conducted without the requisite judicial warrant. The
prosecution's very own evidence clearly establishes that the police
had sufficient time to obtain a warrant. There was no showing of such
urgency or necessity for the warrantless search or the immediate
seizure of the marijuana plants subject of this case. To reiterate, said
marijuana plants cannot be utilized to prove appellant's guilt without
running afoul of the constitutional guarantees against illegal searches
and the inadmissibility of evidence procured pursuant to an unlawful
search and seizure.
Second, the confession of ownership of the marijuana plants, which
appellant allegedly made to the police during investigation, is not
only hearsay but also violative of the Bill of Rights. The purported
confession was made without the assistance of competent and
independent counsel, as mandated by the Charter. Thus, said
confession cannot be used to convict appellant without running afoul
of the Constitution's requirement that a suspect in a criminal
investigation must have the services of competent and independent
counsel during such investigation.
In sum, both the object evidence and the testimonial evidence as to
appellant's voluntary confession of ownership of the prohibited plants
relied upon to prove appellant's guilt failed to meet the test of
Constitutional competence.
The Constitution decrees that, "In all criminal prosecutions, the
accused shall be presumed innocent until the contrary is proved . . ."
59 To justify the conviction of the accused, the prosecution must
adduce that quantum of evidence sufficient to overcome the
constitutional presumption of innocence. The prosecution must stand
or fall on its evidence and cannot draw strength from the weakness of
the evidence for the accused. 60 Absent the required degree of proof
of an accused's guilt, he is entitled to an acquittal. 61 In this case, the
seized marijuana plants linking appellant to the crime charged are
miserably tainted with constitutional infirmities, which render these
inadmissible "for any purpose in any proceeding." 62 Nor can the
confession obtained during the uncounselled investigation be used
against appellant, "it being inadmissible in evidence against him." 63
Without these proffered but proscribed materials, we find that the
prosecution's remaining evidence did not even approximate the
quantum of evidence necessary to warrant appellant's conviction.
Hence, the presumption of innocence in his favor stands. Perforce, his
acquittal is in order. EIAScH
In acquitting an appellant, we are not saying that he is lily-white, or
pure as driven snow. Rather, we are declaring his innocence because
the prosecution's evidence failed to show his guilt beyond reasonable
doubt. For that is what the basic law requires. Where the evidence is
insufficient to overcome the presumption of innocence in favor of the
accused, then his "acquittal must follow in faithful obeisance to the
fundamental law." 64
WHEREFORE, the decision promulgate on February 18, 1997, by the
Regional Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in
Criminal Case No. 3105, finding Abe Valdez y Dela Cruz, guilty
beyond reasonable doubt of violating Section 9 of the Dangerous
Drugs Act of 1972, and imposing upon him the death penalty, is
hereby REVERSED and SET ASIDE for insufficiency of evidence.
Appellant is ACQUITTED and ordered RELEASED immediately
from confinement unless held for another lawful cause.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Kapunan, Panganiban, Pardo,
Gonzaga-Reyes, Melo, Vitug, Mendoza, Purisima, Buena and De
Leon, Jr., JJ., concur.
Ynares-Santiago, J., is on leave.
U.S. Supreme Court
ARIZONA v. HICKS, 480 U.S. 321 (1987)
480 U.S. 321
ARIZONA v. HICKS
CERTIORARI TO THE COURT OF APPEALS OF ARIZONA

No. 85-1027.

Argued December 8, 1986
Decided March 3, 1987
A bullet fired through the floor of respondent's apartment injured a
man on the floor below. Police entered the apartment to search for the
shooter, for other victims, and for weapons, and there seized three
weapons and discovered a stocking-cap mask. While there, one of the
policemen noticed two sets of expensive stereo components and,
suspecting that they were stolen, read and recorded their serial
numbers - moving some of them, including a turntable, to do so - and
phoned in the numbers to headquarters. Upon learning that the
turntable had been taken in an armed robbery, he seized it
immediately. Respondent was subsequently indicted for the robbery,
but the state trial court granted his motion to suppress the evidence
that had been seized, and the Arizona Court of Appeals affirmed.
Relying upon a statement in Mincey v. Arizona, 437 U.S. 385 , that a
warrantless search must be "strictly circumscribed by the exigencies
which justify its initiation," the Court of Appeals held that the
policeman's obtaining the serial numbers violated the Fourth
Amendment because it was unrelated to the shooting, the exigent
circumstance that justified the initial entry and search. Both state
courts rejected the contention that the policeman's actions were
justified under the "plain view" doctrine.
Held:
1. The policeman's actions come within the purview of the Fourth
Amendment. The mere recording of the serial numbers did not
constitute a "seizure" since it did not meaningfully interfere with
respondent's possessory interest in either the numbers or the stereo
equipment. However, the moving of the equipment was a "search"
separate and apart from the search that was the lawful objective of
entering the apartment. The fact that the search uncovered nothing of
great personal value to respondent is irrelevant. Pp. 324-325.
2. The "plain view" doctrine does not render the search "reasonable"
under the Fourth Amendment. Pp. 325-329.
(a) The policeman's action directed to the stereo equipment was not
ipso facto unreasonable simply because it was unrelated to the
justification for entering the apartment. That lack of relationship
always exists when the "plain view" doctrine applies. In saying that a
warrantless search must be "strictly circumscribed by the exigencies
which justify its initiation," Mincey was simply addressing the
scope[480 U.S. 321, 322] of the primary search itself, and was not
overruling the "plain view" doctrine by implication. Pp. 325-326.
(b) However, the search was invalid because, as the State concedes,
the policeman had only a "reasonable suspicion" - i. e., less than
probable cause to believe - that the stereo equipment was stolen.
Probable cause is required to invoke the "plain view" doctrine as it
applies to seizures. It would be illogical to hold that an object is
seizable on lesser grounds, during an unrelated search and seizure,
than would have been needed to obtain a warrant for it if it had been
known to be on the premises. Probable cause to believe the equipment
was stolen was also necessary to support the search here, whether
legal authority to move the equipment could be found only as the
inevitable concomitant of the authority to seize it, or also as a
consequence of some independent power to search objects in plain
view. Pp. 326-328.
3. The policeman's action cannot be upheld on the ground that it was
not a "full-blown search" but was only a "cursory inspection" that
could be justified by reasonable suspicion instead of probable cause.
A truly cursory inspection - one that involves merely looking at what
is already exposed to view, without disturbing it - is not a "search" for
Fourth Amendment purposes, and therefore does not even require
reasonable suspicion. This Court is unwilling to create a subcategory
of "cursory" searches under the Fourth Amendment. Pp. 328-329.
146 Ariz. 533, 707 P.2d 331, affirmed.
SCALIA, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, BLACKMUN, and STEVENS,
JJ., joined. WHITE, J., filed a concurring opinion, post, p. 329.
POWELL, J., filed a dissenting opinion, in which REHNQUIST, C.
J., and O'CONNOR, J., joined, post, p. 330. O'CONNOR, J., filed a
dissenting opinion, in which REHNQUIST, C. J., and POWELL, J.,
joined, post, p. 333.
Linda A. Akers, Assistant Attorney General of Arizona, argued the
cause for petitioner. With her on the briefs were Robert K. Corbin,
Attorney General, Steven A. LaMar, Assistant Attorney General, and
Steven J. Twist, Chief Assistant Attorney General.
John W. Rood III, by appointment of the Court, 476 U.S. 1113 ,
argued the cause for respondent. With him on the brief was James H.
Kemper. *
[ Footnote * ] David Crump, Daniel B. Hales, William C. Summers,
Jack E. Yelverton, Fred E. Inbau, Wayne W. Schmidt, and James P.
Manak filed a brief for Americans for Effective Law Enforcement,
Inc., et al. as amici curiae urging reversal.
William J. Taylor, George Kannar, and Burt Neuborne filed a brief
for the American Civil Liberties Union Foundation as amicus curiae
urging affirmance. [480 U.S. 321, 323]
JUSTICE SCALIA delivered the opinion of the Court.
In Coolidge v. New Hampshire, 403 U.S. 443 (1971), we said that in
certain circumstances a warrantless seizure by police of an item that
comes within plain view during their lawful search of a private area
may be reasonable under the Fourth Amendment. See id., at 465-471
(plurality opinion); id., at 505-506 (Black, J., concurring and
dissenting); id., at 521-522 (WHITE, J., concurring and dissenting).
We granted certiorari, 475 U.S. 1107 (1986), in the present case to
decide whether this "plain view" doctrine may be invoked when the
police have less than probable cause to believe that the item in
question is evidence of a crime or is contraband.
I
On April 18, 1984, a bullet was fired through the floor of respondent's
apartment, striking and injuring a man in the apartment below. Police
officers arrived and entered respondent's apartment to search for the
shooter, for other victims, and for weapons. They found and seized
three weapons, including a sawed-off rifle, and in the course of their
search also discovered a stocking-cap mask.
One of the policemen, Officer Nelson, noticed two sets of expensive
stereo components, which seemed out of place in the squalid and
otherwise ill-appointed four-room apartment. Suspecting that they
were stolen, he read and recorded their serial numbers - moving some
of the components, including a Bang and Olufsen turntable, in order
to do so - which he then reported by phone to his headquarters. On
being advised that the turntable had been taken in an armed robbery,
he seized it immediately. It was later determined that some of the
other serial numbers matched those on other stereo equipment taken
in the same armed robbery, and a warrant [480 U.S. 321, 324] was
obtained and executed to seize that equipment as well. Respondent
was subsequently indicted for the robbery.
The state trial court granted respondent's motion to suppress the
evidence that had been seized. The Court of Appeals of Arizona
affirmed. It was conceded that the initial entry and search, although
warrantless, were justified by the exigent circumstance of the
shooting. The Court of Appeals viewed the obtaining of the serial
numbers, however, as an additional search, unrelated to that exigency.
Relying upon a statement in Mincey v. Arizona, 437 U.S. 385 (1978),
that a "warrantless search must be `strictly circumscribed by the
exigencies which justify its initiation,'" id., at 393 (citation omitted),
the Court of Appeals held that the police conduct violated the Fourth
Amendment, requiring the evidence derived from that conduct to be
excluded. 146 Ariz. 533, 534-535, 707 P.2d 331, 332-333 (1985).
Both courts - the trial court explicitly and the Court of Appeals by
necessary implication - rejected the State's contention that Officer
Nelson's actions were justified under the "plain view" doctrine of
Coolidge v. New Hampshire, supra. The Arizona Supreme Court
denied review, and the State filed this petition.
II
As an initial matter, the State argues that Officer Nelson's actions
constituted neither a "search" nor a "seizure" within the meaning of
the Fourth Amendment. We agree that the mere recording of the
serial numbers did not constitute a seizure. To be sure, that was the
first step in a process by which respondent was eventually deprived of
the stereo equipment. In and of itself, however, it did not
"meaningfully interfere" with respondent's possessory interest in
either the serial numbers or the equipment, and therefore did not
amount to a seizure. See Maryland v. Macon, 472 U.S. 463,
469(1985).
Officer Nelson's moving of the equipment, however, did constitute a
"search" separate and apart from the search for [480 U.S. 321,
325] the shooter, victims, and weapons that was the lawful objective
of his entry into the apartment. Merely inspecting those parts of the
turntable that came into view during the latter search would not have
constituted an independent search, because it would have produced no
additional invasion of respondent's privacy interest. See Illinois v.
Andreas, 463 U.S. 765, 771(1983). But taking action, unrelated to the
objectives of the authorized intrusion, which exposed to view
concealed portions of the apartment or its contents, did produce a new
invasion of respondent's privacy unjustified by the exigent
circumstance that validated the entry. This is why, contrary to
JUSTICE POWELL'S suggestion, post, at 333, the "distinction
between `looking' at a suspicious object in plain view and `moving' it
even a few inches" is much more than trivial for purposes of the
Fourth Amendment. It matters not that the search uncovered nothing
of any great personal value to respondent - serial numbers rather than
(what might conceivably have been hidden behind or under the
equipment) letters or photographs. A search is a search, even if it
happens to disclose nothing but the bottom of a turntable.
III
The remaining question is whether the search was "reasonable" under
the Fourth Amendment.
On this aspect of the case we reject, at the outset, the apparent
position of the Arizona Court of Appeals that because the officers'
action directed to the stereo equipment was unrelated to the
justification for their entry into respondent's apartment, it was ipso
facto unreasonable. That lack of relationship always exists with
regard to action validated under the "plain view" doctrine; where
action is taken for the purpose justifying the entry, invocation of the
doctrine is superfluous. Mincey v. Arizona, supra, in saying that a
warrantless search must be "strictly circumscribed by the exigencies
which justify its initiation," 437 U.S., at 393 (citation omitted), was
addressing only the scope of the primary [480 U.S. 321, 326] search
itself, and was not overruling by implication the many cases
acknowledging that the "plain view" doctrine can legitimate action
beyond that scope.
We turn, then, to application of the doctrine to the facts of this case.
"It is well established that under certain circumstances the police may
seize evidence in plain view without a warrant," Coolidge v. New
Hampshire, 403 U.S., at 465 (plurality opinion) (emphasis added).
Those circumstances include situations "[w]here the initial intrusion
that brings the police within plain view of such [evidence] is
supported . . . by one of the recognized exceptions to the warrant
requirement," ibid., such as the exigent-circumstances intrusion here.
It would be absurd to say that an object could lawfully be seized and
taken from the premises, but could not be moved for closer
examination. It is clear, therefore, that the search here was valid if the
"plain view" doctrine would have sustained a seizure of the
equipment.
There is no doubt it would have done so if Officer Nelson had
probable cause to believe that the equipment was stolen. The State
has conceded, however, that he had only a "reasonable suspicion," by
which it means something less than probable cause. See Brief for
Petitioner 18-19. * We have not ruled on the question whether
probable cause is required in order to invoke the "plain view"
doctrine. Dicta in Payton v. New York, 445 U.S. 573, 587 (1980),
suggested that the standard of probable cause must be met, but our
later opinions in Texas v. Brown, 460 U.S. 730 (1983), explicitly
regarded the issue as unresolved, see id., at 742, n. 7 (plurality
opinion); id., at 746 (STEVENS, J., concurring in judgment).
We now hold that probable cause is required. To say otherwise would
be to cut the "plain view" doctrine loose from its theoretical and
practical moorings. The theory of that doctrine consists of extending
to nonpublic places such as the [480 U.S. 321, 327] home, where
searches and seizures without a warrant are presumptively
unreasonable, the police's longstanding authority to make warrantless
seizures in public places of such objects as weapons and contraband.
See Payton v. New York, supra, at 586-587. And the practical
justification for that extension is the desirability of sparing police,
whose viewing of the object in the course of a lawful search is as
legitimate as it would have been in a public place, the inconvenience
and the risk - to themselves or to preservation of the evidence - of
going to obtain a warrant. See Coolidge v. New Hampshire, supra, at
468 (plurality opinion). Dispensing with the need for a warrant is
worlds apart from permitting a lesser standard of cause for the seizure
than a warrant would require, i. e., the standard of probable cause. No
reason is apparent why an object should routinely be seizable on
lesser grounds, during an unrelated search and seizure, than would
have been needed to obtain a warrant for that same object if it had
been known to be on the premises.
We do not say, of course, that a seizure can never be justified on less
than probable cause. We have held that it can - where, for example,
the seizure is minimally intrusive and operational necessities render it
the only practicable means of detecting certain types of crime. See, e.
g., United States v. Cortez, 449 U.S. 411 (1981) (investigative
detention of vehicle suspected to be transporting illegal aliens);
United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (same); United
States v. Place, 462 U.S. 696, 709 , and n. 9 (1983) (dictum) (seizure
of suspected drug dealer's luggage at airport to permit exposure to
specially trained dog). No special operational necessities are relied on
here, however - but rather the mere fact that the items in question
came lawfully within the officer's plain view. That alone cannot
supplant the requirement of probable cause.
The same considerations preclude us from holding that, even though
probable cause would have been necessary for a seizure, the search of
objects in plain view that occurred here [480 U.S. 321, 328] could be
sustained on lesser grounds. A dwelling-place search, no less than a
dwelling-place seizure, requires probable cause, and there is no
reason in theory or practicality why application of the "plain view"
doctrine would supplant that requirement. Although the interest
protected by the Fourth Amendment injunction against unreasonable
searches is quite different from that protected by its injunction against
unreasonable seizures, see Texas v. Brown, supra, at 747-748
(STEVENS, J., concurring in judgment), neither the one nor the other
is of inferior worth or necessarily requires only lesser protection. We
have not elsewhere drawn a categorical distinction between the two
insofar as concerns the degree of justification needed to establish the
reasonableness of police action, and we see no reason for a distinction
in the particular circumstances before us here. Indeed, to treat
searches more liberally would especially erode the plurality's warning
in Coolidge that "the `plain view' doctrine may not be used to extend
a general exploratory search from one object to another until
something incrimination at last emerges." 403 U.S., at 466 . In short,
whether legal authority to move the equipment could be found only as
an inevitable concomitant of the authority to seize it, or also as a
consequence of some independent power to search certain objects in
plain view, probable cause to believe the equipment was stolen was
required.
JUSTICE O'CONNOR'S dissent suggests that we uphold the action
here on the ground that it was a "cursory inspection" rather than a
"full-blown search," and could therefore be justified by reasonable
suspicion instead of probable cause. As already noted, a truly cursory
inspection - one that involves merely looking at what is already
exposed to view, without disturbing it - is not a "search" for Fourth
Amendment purposes, and therefore does not even require reasonable
suspicion. We are unwilling to send police and judges into a new
thicket of Fourth Amendment law, to seek a creature of uncertain
description that is neither a "plain view" inspection nor [480 U.S.
321, 329] yet a "full-blown search." Nothing in the prior opinions of
this Court supports such a distinction, not even the dictum from
Justice Stewart's concurrence in Stanley v. Georgia, 394 U.S. 557,
571 (1969), whose reference to a "mere inspection" describes, in our
view, close observation of what lies in plain sight.
JUSTICE POWELL'S dissent reasonably asks what it is we would
have had Officer Nelson do in these circumstances. Post, at 332. The
answer depends, of course, upon whether he had probable cause to
conduct a search, a question that was not preserved in this case. If he
had, then he should have done precisely what he did. If not, then he
should have followed up his suspicions, if possible, by means other
than a search - just as he would have had to do if, while walking
along the street, he had noticed the same suspicious stereo equipment
sitting inside a house a few feet away from him, beneath an open
window. It may well be that, in such circumstances, no effective
means short of a search exist. But there is nothing new in the
realization that the Constitution sometimes insulates the criminality of
a few in order to protect the privacy of us all. Our disagreement with
the dissenters pertains to where the proper balance should be struck;
we choose to adhere to the textual and traditional standard of
probable cause.
The State contends that, even if Officer Nelson's search violated the
Fourth Amendment, the court below should have admitted the
evidence thus obtained under the "good faith" exception to the
exclusionary rule. That was not the question on which certiorari was
granted, and we decline to consider it.
For the reasons stated, the judgment of the Court of Appeals of
Arizona is
Affirmed.
FIRST DIVISION
[G.R. No. 124442. July 20, 2001.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
ARMANDO COMPACION y SURPOSA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Vic J. Agravante & Emiliano A. Mariano for accused-appellant.
SYNOPSIS
Acting on a confidential tip supplied by a police informant that
Armando S. Compacion (herein accused-appellant) was growing and
cultivating marijuana plants, members of the Narcotic Regional Field
Unit of the Narcotics Command (NARCOM) of the Bacolod City
Detachment conducted a surveillance of the residence of accused-
appellant, who was then the barangay captain of barangay Bagonbon,
San Carlos City, Negros Occidental. During the said surveillance,
they saw two (2) tall plants in the backyard of the accused-appellant,
which they suspected to be marijuana plants. They immediately
formed a team who applied for a search warrant but were not able to
do so. Nonetheless, the team proceeded to the residence of the
accused-appellant and were allegedly permitted entry to come in.
Finding the suspected marijuana plants, they uprooted them and
conducted an initial test on the plant using the Narcotics Drug
Identification Kit. The test yielded a positive result. Thereafter,
accused-appellant was charged with violating Section 9 of R.A. No.
6425 (known as the Dangerous Drugs Act of 1972). Upon
arraignment, the accused pleaded not guilty to the crime charged.
Thereafter, trial ensued. The trial court convicted the accused and
sentenced him to reclusion perpetua and to pay a fine of half a million
(P500,000.00) pesos. The accused appealed his conviction to the
Supreme Court and asked the Court to reverse the same. HAaECD
Turning to the legal defenses of accused-appellant, the Supreme
Court considered his allegation that his constitutional right against
unreasonable searches and seizures had been violated by the police
authorities. In the instant case, the search and seizure conducted by
the composite team in the house of accused-appellant was not
authorized by a search warrant. It did not appear either that the
situation fell under any of the recognized exceptions thereto.
Consequently, accused-appellant's right against unreasonable search
and seizure was clearly violated. Since the evidence was secured on
the occasion of an unreasonable search and seizure, the same was
tainted and illegal and should, therefore, be excluded for being the
proverbial fruit of a poisonous tree. Accused-appellant Armando S.
Compacion was acquitted of the crime charged on grounds of
reasonable doubt.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; SEARCH
AND SEIZURE; WHEN UNREASONABLE; EFFECT THEREOF.
— The relevant constitutional provisions are found in Sections 2 and
3 [2], Article III of the 1987 Constitution which read as follows: Sec.
2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and
the persons or things to be seized. Sec. 3. . . . (2) Any evidence
obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding. Said constitutional
provisions are safeguards against reckless, malicious and
unreasonable invasion of privacy and liberty. The Court, in
Villanueva v. Querubin, underscored their importance: It is deference
to one's personality that lies at the core of this right, but it could be
also looked upon as a recognition of a constitutionally protected area,
primarily one's home, but not necessarily thereto confined. What is
sought to be guarded is a man's prerogative to choose who is allowed
entry to his residence. In that haven of refuge, his individuality can
assert itself not only in the choice of who shall be welcome but
likewise in the kind of objects he wants around him. There the state,
however powerful, does not as such have access except under the
circumstances above noted, for in the traditional formulation, his
house, however humble, is his castle. Thus is outlawed any
unwarranted intrusion by government, which is called upon to refrain
from any invasion of his dwelling and to respect the privacies of his
life. In the same vein, Landynski in his authoritative work could fitly
characterize this constitutional right as the embodiment of "a spiritual
concept: the belief that to value the privacy of home and person and
to afford its constitutional protection against the long reach of
government is no less than to value human dignity, and that his
privacy must not be disturbed except in case of overriding social
need, and then only under stringent procedural safeguards." A search
and seizure, therefore, must be carried out through or with a judicial
warrant; otherwise, such search and seizure becomes "unreasonable"
within the meaning of the constitutional provision. Evidence secured
thereby, i.e., "fruits" of the search and seizure, will be inadmissible in
evidence for any purpose in any proceeding." SaTAED
2. ID.; ID.; ID.; JUDICIAL WARRANT REQUIRED;
EXCEPTIONS. — The requirement that a warrant must be obtained
from the proper judicial authority prior to the conduct of a search and
seizure is, however, not absolute. There are several instances when
the law recognizes exceptions, such as when the owner of the
premises consents or voluntarily submits to a search; when the owner
of the premises waives his rights against such incursion; when the
search is incidental to a lawful arrest; when it is made on vessels and
aircraft for violation of customs laws; when it is made on automobiles
for the purpose of preventing violations of smuggling or immigration
laws; when it involves prohibited articles in plain view; when it
involves a "stop and frisk" situation; when the search is under exigent
and emergency circumstances; or in cases of inspection of buildings
and other premises for the enforcement of fire, sanitary and building
regulations. In these instances, a search may be validly made even
without a warrant.
3. ID.; ID.; ID.; ID.; VALID WAIVER THEREOF MUST BE
MADE VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY;
ABSENT IN CASE AT BAR. — While the right to be secure from
unreasonable search and seizure may, like every right, be waived
either expressly or impliedly, such waiver must constitute a valid
waiver made voluntarily, knowingly and intelligently. The act of the
accused-appellant in allowing the members of the military to enter his
premises and his consequent silence during the unreasonable search
and seizure could not be construed as voluntary submission or an
implied acquiescence to warrantless search and seizure especially so
when members of the raiding team were intimidatingly numerous and
heavily armed. His implied acquiescence, if any, could not have been
more than mere passive conformity given under coercive or
intimidating circumstances and is, thus, considered no consent at all
within the purview of the constitutional guarantee. Consequently,
herein accused appellant's lack of objection to the search and seizure
is not tantamount to a waiver of his constitutional right or a voluntary
submission to the warrantless search and seizure.
4. ID.; ID.; ID.; AS A GENERAL RULE, 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 WITHOUT A WARRANT; WHEN APPLICABLE. — As
a general rule, 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
without a warrant. It is usually applied where a police officer is not
searching for evidence against the accused, but nonetheless
inadvertently comes across an incriminating object. Thus, the
following elements must be present before the doctrine may be
applied: (a) a prior valid intention 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 have the right to be where they are; (c) the evidence must
be immediately apparent; and (d) "plain view" justified were seizure
of evidence without further search.
5. ID.; ID.; ID.; WARRANTLESS ARREST; NOT VALID IN
CASE AT BAR. — Here, there was no valid warrantless arrest. They
forced their way into accused-appellant's premises without the latter's
consent. It is undisputed that the NARCOM agents conducted a
surveillance of the residence of accused-appellant on July 9, 1995 on
the suspicion that he was growing and cultivating marijuana when
they allegedly came in "plain view" of the marijuana plants. When the
agents entered his premises on July 13, 1995, their intention was to
seize the evidence against him. In fact, they initially wanted to secure
a search warrant but could not simply wait for one to be issued. The
NARCOM agents, therefore, did not come across the marijuana
plants inadvertently when they conducted a surveillance and barged
into accused-appellant's residence. It was not even apparent to the
members of the composite team whether the plants involved herein
were indeed marijuana plants. After said plants were uprooted, SPO1
Linda had to conduct a field test on said plants by using a Narcotics
Drug Identification Kit to determine if the same were indeed
marijuana plants. Later, Senior Inspector Villavicencio, a forensic
chemist, had to conduct three (3) qualitative examinations to
determine if the plants were indeed marijuana. Since the evidence
was secured on the occasion of an unreasonable search and seizure,
the same is tainted and illegal and should therefore be excluded for
being the proverbial fruit of a poisonous tree. TaCIDS
D E C I S I O N
KAPUNAN, J p:
Armando S. Compacion was charged with violating Section 9 of R.A.
No. 6425 (known as the Dangerous Drugs Act of 1972), as amended
by R.A. No. 7659, in an information which reads as follows:
The undersigned accuses ARMANDO COMPACION y Surposa,
Barangay Captain of Barangay Bagonbon, San Carlos City, Negros
Occidental, of the crime of "VIOLATION OF SECTION 9,
REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE
DANGEROUS DRUGS ACT OF 1972 AS AMENDED BY
REPUBLIC ACT NO. 7659" committed as follows:
"That on or about 1:30 o'clock A.M., July 13, 1995, at Barangay
Bagonbon, San Carlos City, Negros Occidental, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, without any authority of law, did, then and there, willfully,
unlawfully and criminally plant, cultivate or culture two (2) full
grown Indian Hemp Plants, otherwise known as "Marijuana plants",
more or less eleven (11) feet tall, in gross violation of Section 9,
Republic Act No. 6425, otherwise known as the Dangerous Drugs
Act of 1972 as amended by Republic Act No. 7659." AHTICD
CONTRARY TO LAW. 1
Upon arraignment on August 16, 1995, the accused pleaded not guilty
to the crime charged.
Thereafter, trial ensued.
On January 2, 1996, the trial court convicted the accused of the crime
charged. The decretal portion of the decision reads as follows:
WHEREAS, the Court finds the accused ARMANDO COMPACION
Y SURPOSA GUILTY BEYOND REASONABLE DOUBT of the
crime of "Violation of Section 9, R.A. No. 6425, otherwise known as
The Dangerous Drugs Act of 1972, as amended by R.A. No. 7659"
whereof he is charged in the information in the instant case and
sentences him to reclusion perpetua and to pay a fine of half a million
(P500,000.00) Pesos, Philippine Currency. The portion of the
backyard of his residence in the poblacion proper of Brgy. Bagonbon
this City and Province, in which the two (2) marijuana plants, Exh.
"F", subject-matter of this case, were planted, cultivated and cultured,
is hereby ordered confiscated and escheated in favor of the State,
pursuant to the aforequoted Sec. 13 R.A. 7659. SEHDIC
It would seem that the penalty imposed upon the accused in the
instant case for having planted, cultivated and cultured just two (2)
marijuana plants is extremely harsh. But there is nothing in the law
which allows the Court to impose a lesser penalty in view of the
peculiar facts and circumstances in this particular case. Hence, dura
lex, sed lex. The law is, indeed, harsh but it is the law.
The obvious message of the law is that people should not have a
nonchalant or cavalier attitude towards dangerous prohibited drugs.
They should not dabble in it as if they were a flippant thing. These
dangerous and prohibited drugs are a terrible menace to the minds
and morality of our people for their distortive and pervertive effects
on them resulting in rampant criminality. That is why the government
wants this evil exterminated from our country. It is too bad that the
accused instead of helping the government in this drive, in his
capacity as barangay captain of his barangay, made a mockery of it
by planting, cultivating and culturing said two (2) marijuana plants
himself.
A word of counsel and hope for the accused. This is a time of
reflection forced upon him by the result of his own act in violating the
law. It is time for him to humbly submit to the compassion of God
and of his only begotten Son, whose birth on earth to become the
Saviour of all sinners, we have just celebrated, to change and
transform his own life by his coming to Him for the purpose, so that
with a changed life, God might be gracious enough to move the heart
of His Excellency, the President, of this Country, to pardon and let
him walk out of prison a freeman. It would be good for him to read
God's Word daily while in prison for his guidance, comfort and hope.
cTCEIS
Accused convicted of the crime whereof he is charged in the
information in the instant case.
SO ORDERED. 2
The accused now appeals from the above judgment of conviction and
asks the Court to reverse the same on the following grounds, viz:
The lower court erred:
1. In holding that Exhibit "F" of the prosecution, consisting of
two marijuana plants wrapped in plastic, is admissible in evidence
against the accused as the corpus delicti in the instant case, inspite of
the fact that the prosecution failed to prove that the specimens of
marijuana (Exhibit "F") examined by the forensic chemist were the
ones purportedly planted and cultivated by the accused, and of the
fact that the prosecution failed to establish the evidence's chain of
custody; and cDEICH
2. In holding that the warrantless search of the residence of the
accused at 1:30 o'clock in the morning of July 13, 1995 at Barangay
Bagonbon, San Carlos City, Negros Occidental, and seizure of two
eleven feet tall, more or less, full grown suspected Indian Hemp,
otherwise known as Marijuana plants, leading to the subsequent arrest
of the accused, were valid on the ground that the accused has
committed the crime of cultivating the said marijuana plants in
violation of Sec. 9, RA 6425 (Dangerous Drugs Act of 1972), as
amended by RA 7659 in open view, inspite of the fact that they had to
enter the dwelling of the accused to get to the place where the
suspected marijuana plants were planted, and in admitting in evidence
the said plants, later marked as Exhibit "F", against the accused,
inspite of the fact that the said plants were the fruits of the poisonous
tree. 3
The relevant facts are as follows:
Acting on a confidential tip supplied by a police informant that
accused-appellant was growing and cultivating marijuana plants,
SPO1 Gilbert L. Linda and SPO2 Basilio Sarong of the 6th Narcotic
Regional Field Unit of the Narcotics Command (NARCOM) of the
Bacolod City Detachment conducted a surveillance of the residence
of accused-appellant who was then the barangay captain of barangay
Bagonbon, San Carlos City, Negros Occidental on July 9, 1995.
During the said surveillance, they saw two (2) tall plants in the
backyard of the accused-appellant which they suspected to be
marijuana plants. 4
SPO1 Linda and SPO2 Sarong reported the result of their surveillance
to SPO4 Ranulfo T. Villamor, Jr., Chief of NARCOM, Bacolod City,
who immediately formed a team composed of the members of the
Intelligence Division Provincial Command, the Criminal
Investigation Command and the Special Action Force. Two members
of the media, one from DYWF Radio and another from DYRL Radio,
were also included in the composite team.
On July 12, 1995, the team applied for a search warrant with the
office of Executive Judge Bernardo Ponferrada in Bacolod City.
However, Judge Ponferrada informed them that he did not have
territorial jurisdiction over the matter. 5 The team then left Bacolod
City for San Carlos City. They arrived there around six-thirty in the
evening, then went to the house of Executive Judge Roberto S.
Javellana to secure a search warrant. They were not able to do so
because it was nighttime and office hours were obviously over. They
were told by the judge to go back in the morning. 6
Nonetheless, the team proceeded to barangay Bagonbon and arrived
at the residence of accused-appellant in the early morning of July 13,
1995. SPO4 Villamor knocked at the gate and called out for the
accused-appellant. What happened thereafter is subject to conflicting
accounts. The prosecution contends that the accused-appellant opened
the gate and permitted them to come in. He was immediately asked
by SPO4 Villamor about the suspected marijuana plants and he
admitted that he planted and cultivated the same for the use of his
wife who was suffering from migraine. SPO4 Villamor then told him
that he would be charged for violation of Section 9 of R.A. No. 6425
and informed him of his constitutional rights. The operatives then
uprooted the suspected marijuana plants. SPO1 Linda conducted an
initial field test of the plants by using the Narcotics Drug
Identification Kit. The test yielded a positive result. 7
On July 15, 1995, the plants were turned over to the Philippine
National Police (PNP) Crime Laboratory, Bacolod City Police
Command, particularly to Senior Inspector Reah Abastillas
Villavicencio. Senior Inspector Villavicencio weighed and measured
the plants, one was 125 inches and weighed 700 grams while the
other was 130 inches and weighed 900 grams. Three (3) qualitative
examinations were conducted, namely: the microscopic test, the
chemical test, and the thin layer chromatographic test. All yielded
positive results. 8
On his part, accused-appellant maintains that around one-thirty in the
early morning of July 13, 1995 while he and his family were sleeping,
he heard somebody knocking outside his house. He went down
bringing with him a flashlight. After he opened the gate, four (4)
persons who he thought were members of the military, entered the
premises then went inside the house. It was dark so he could not
count the others who entered the house as the same was lit only by a
kerosene lamp. One of the four men told him to sit in the living room.
Some of the men went upstairs while the others went around the
house. None of them asked for his permission to search his house and
the premises. 9
After about twenty (20) minutes of searching, the men called him
outside and brought him to the backyard. One of the military men
said: "Captain, you have a (sic) marijuana here at your backyard" to
which accused-appellant replied: "I do not know that they were (sic)
marijuana plants but what I know is that they are medicinal plants for
my wife" who was suffering from migraine. 10
After he was informed that the plants in his backyard were marijuana,
the men took pictures of him and themselves. Thereafter, he was
brought inside the house where he and the military men spent the
night. 11
At around ten o'clock that same morning, they brought him with them
to the city hall. Accused-appellant saw that one of the two (2) service
vehicles they brought was fully loaded with plants. He was later told
by the military men that said plants were marijuana. 12 Upon arrival
at the city hall, the men met with the mayor and then unloaded the
alleged marijuana plants. A picture of him together with the arresting
team was taken with the alleged marijuana as back drop. Soon
thereafter, he was taken to Hda. Socorro at the SAF Headquarters. 13
A criminal complaint for violation of Section 9 of R.A. No. 6425, as
amended by R.A. No. 7659 was filed against accused-appellant.
TCSEcI
Turning to the legal defenses of accused-appellant, we now consider
his allegation that his constitutional right against unreasonable
searches and seizures had been violated by the police authorities.
The relevant constitutional provisions are found in Sections 2 and 3
[2], Article III of the 1987 Constitution which read as follows:
Sec. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and
the persons or things to be seized.
Sec. 3. . . .
(2) Any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any proceeding.
cADEHI
Said constitutional provisions are safeguards against reckless,
malicious and unreasonable invasion of privacy and liberty. The
Court, in Villanueva v. Querubin, 14 underscored their importance:
It is deference to one's personality that lies at the core of this right,
but it could be also looked upon as a recognition of a constitutionally
protected area, primarily one's home, but not necessarily thereto
confined. What is sought to be guarded is a man's prerogative to
choose who is allowed entry to his residence. In that haven of refuge,
his individuality can assert itself not only in the choice of who shall
be welcome but likewise in the kind of objects he wants around him.
There the state, however powerful, does not as such have access
except under the circumstances above noted, for in the traditional
formulation, his house, however humble, is his castle. Thus is
outlawed any unwarranted intrusion by government, which is called
upon to refrain from any invasion of his dwelling and to respect the
privacies of his life. In the same vein, Landynski in his authoritative
work could fitly characterize this constitutional right as the
embodiment of "a spiritual concept: the belief that to value the
privacy of home and person and to afford its constitutional protection
against the long reach of government is no less than to value human
dignity, and that his privacy must not be disturbed except in case of
overriding social need, and then only under stringent procedural
safeguards." 15
A search and seizure, therefore, must be carried out through or with a
judicial warrant; otherwise, such search and seizure becomes
"unreasonable" within the meaning of the constitutional provision. 16
Evidence secured thereby, i.e., the "fruits" of the search and seizure,
will be inadmissible in evidence for any purpose in any proceeding."
17
The requirement that a warrant must be obtained from the proper
judicial authority prior to the conduct of a search and seizure is,
however, not absolute. There are several instances when the law
recognizes exceptions, such as when the owner of the premises
consents or voluntarily submits to a search; 18 when the owner of the
premises waives his right against such incursion; 19 when the search
is incidental to a lawful arrest; 20 when it is made on vessels and
aircraft for violation of customs laws; 21 when it is made on
automobiles for the purpose of preventing violations of smuggling or
immigration laws; 22 when it involves prohibited articles in plain
view; 23 when it involves a "stop and frisk" situation; 24 when the
search is under exigent and emergency circumstances; 25 or in cases
of inspection of buildings and other premises for the enforcement of
fire, sanitary and building regulations. 26 In these instances, a search
may be validly made even without a warrant.
In the instant case, the search and seizure conducted by the composite
team in the house of accused-appellant was not authorized by a search
warrant. It does not appear either that the situation falls under any of
the above mentioned cases. Consequently, accused-appellant's right
against unreasonable search and seizure was clearly violated.
IaAHCE
It is extant from the records that accused-appellant did not consent to
the warrantless search and seizure conducted. While the right to be
secure from unreasonable search and seizure may, like every right, be
waived either expressly or impliedly, 27 such waiver must constitute
a valid waiver made voluntarily, knowingly and intelligently. The act
of the accused-appellant in allowing the members of the military to
enter his premises and his consequent silence during the unreasonable
search and seizure could not be construed as voluntary submission or
an implied acquiescence to warrantless search and seizure especially
so when members of the raiding team were intimidatingly numerous
and heavily armed. His implied acquiescence, if any, could not have
been more than mere passive conformity given under coercive or
intimidating circumstances and is, thus, considered no consent at all
within the purview of the constitutional guarantee. Consequently,
herein accused-appellant's lack of objection to the search and seizure
is not tantamount to a waiver of his constitutional right or a voluntary
submission to the warrantless search and seizure. 28 The case of
People v. Burgos, 29 is instructive. In Burgos, the Court ruled that the
accused is not to be presumed to have waived the unlawful search
"simply because he failed to object." There, we held:
. . . To constitute a waiver, it must appear first that the right exists;
secondly, that the person involved had knowledge, actual or
constructive, of the existence of such a right; and lastly, that said
person had an actual intention to relinquish the right (Pasion Vda. De
Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to
object to the entry into his house does not amount to a permission to
make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed
out by Justice Laurel in the case of Pasion Vda. De Garcia v. Locsin
(supra);
xxx xxx xxx
. . . As the constitutional guaranty is not dependent upon any
affirmative act of the citizen, the courts do not place the citizen in the
position of either contesting an officer's authority by force, or waiving
his constitutional rights; but instead they hold that a peaceful
submission to a search or seizure is not a consent or an invitation
thereto, but is merely a demonstration of regard for the supremacy of
the law. IADCES
We apply the rule that: "courts indulge every reasonable presumption
against waiver of fundamental constitutional rights and that we do not
presume acquiescence in the loss of fundamental rights." 30
Neither could the members of the composite team have justified their
search of accused-appellant's premises by invoking the necessity and
urgency of the situation. It was admitted by the members of the
arresting team that the residence of accused-appellant had already
been put under surveillance following a tip from a confidential
informant. The surveillance was conducted on July 9, 1995 while the
alleged marijuana plants were seized four (4) days later or on July 13,
1995. Surely, the raiding team had all the opportunity to have first
secured a search warrant before forcing their way into accused-
appellant's premises. In fact, they earlier had approached then
Executive Judge Ponferrada of Bacolod City who declined to issue
one on the ground that the matter was outside his territorial
jurisdiction. Then, they went to Executive Judge Javellana of San
Carlos City in the evening of July 12, 1995 who asked them to come
back in the morning as it was already nighttime and outside of office
hours. However, in their haste to apprehend the accused-appellant on
the pretext that information of his impending arrest may be leaked to
him, the team proceeded to go to his residence to arrest him and seize
the alleged marijuana plants. The team's apprehension of a tip-off was
unfounded. It is far-fetched that one could have gone to accused-
appellant's place before the following morning to warn him of his
impending arrest as barangay Bagonbon is an isolated and difficult to
reach mountain barangay. The road leading to it was rough, hilly and
eroded by rain and flood. 31 A few hours delay to await the issuance
of a warrant in the morning would not have compromised the team's
operation. AcDHCS
In justifying the validity of the warrantless arrest, search and seizure
on July 13, 1995, the trial court ruled that the accused-appellant was
caught "in flagrante delicto of having planted, grown and cultivated
the marijuana plants" which was "easily visible from outside of the
residence of the accused." 32 Thus, the trial court concluded that:
. . . (T)he said two (2) marijuana plants, Exh. "F", were the very
corpus delicti of the crime the accused has been committing since the
time he planted them in the backyard of his residence for whatever
reason — a corpus delicti which the NARCOM agents saw with their
very own eyes as the same were in plain view when they made a
surveillance in the accused's place on July 9, 1995. Said corpus delicti
has remained on the spots in accused's backyard where they had been
growing since the time they were planted there and, therefore, any
peace officer or even private citizen, for that matter, who has seen
said plants and recognized them as marijuana, was by law empowered
and authorized to arrest the accused even without any warrant of
arrest. EICScD
The accused was caught in flagrante delicto for he was carrying
marijuana, hence, committing a crime, at the time of his arrest. The
warrantless search which was conducted following a lawful arrest,
was valid.
— People vs. Bandin (Dec. 10, 1993)
226 SCRA 299, at p. 300
The accused was caught in flagrante delicto growing, cultivating and
culturing said two (2) marijuana plants, Exh. "F", in the backyard of
his residence, which the NARCOM agents uprooted from there at the
time they arrested and apprehended him. Under said circumstances, a
search warrant and/or warrant of arrest were not legally needed before
the NARCOM agents could effect the arrest of the accused. 33
As a general rule, 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
without a warrant. 34 It is usually applied where a police officer is not
searching for evidence against the accused, but nonetheless
inadvertently comes across an incriminating object. 35 Thus, the
following elements must be present before the doctrine may be
applied: (a) a prior valid intention 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 have the right to be where they are; (c) the evidence must
be immediately apparent; and (d) "plain view" justified were seizure
of evidence without further search. 36
Here, there was no valid warrantless arrest. They forced their way
into accused-appellant's premises without the latter's consent. It is
undisputed that the NARCOM agents conducted a surveillance of the
residence of accused-appellant on July 9, 1995 on the suspicion that
he was growing and cultivating marijuana when they allegedly came
in "plain view" of the marijuana plants. When the agents entered his
premises on July 13, 1995, their intention was to seize the evidence
against him. In fact, they initially wanted to secure a search warrant
but could not simply wait for one to be issued. The NARCOM agents,
therefore, did not come across the marijuana plants inadvertently
when they conducted a surveillance and barged into accused-
appellant's residence.
In People v. Musa, 37 the Court held:
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. [Coolidge v. New
Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564 (1971)] Furthermore, the
U.S. Supreme Court stated the following limitations on the
application of the doctrine:
What the "plain view" cases have in common is that the police officer
in each of them had a prior justification for an intrusion in the course
of which he came inadvertently across a piece of evidence
incriminating the accused. The doctrine serves to supplement the
prior justification — whether it be a warrant for another object, hot
pursuit, search incident to lawful arrest, or some other legitimate
reason for being present unconnected with a search directed against
the accused — and permits the warrantless seizure. Of course, the
extension of the original justification is legitimate only where it is
immediately apparent to the police that they have evidence before
them; the "plain view" doctrine may not be used to extend a general
exploratory search from one object to another until something
incriminating at last emerges. [Id., 29 L. Ed. 2d 583. See also Texas
v. Brown, 460 U.G. 730, 75 L. Ed. 2d 502 (1983)] STaIHc
It was not even apparent to the members of the composite team
whether the plants involved herein were indeed marijuana plants.
After said plants were uprooted, SPO1 Linda had to conduct a field
test on said plants by using a Narcotics Drug Identification Kit to
determine if the same were indeed marijuana plants. 38 Later, Senior
Inspector Villavicencio, a forensic chemist, had to conduct three (3)
qualitative examinations to determine if the plants were indeed
marijuana. 39
Since the evidence was secured on the occasion of an unreasonable
search and seizure, the same is tainted and illegal and should
therefore be excluded for being the proverbial fruit of a poisonous
tree. 40 In People v. Aruta, 41 we held that:
The exclusion of such evidence is the only practical means of
enforcing the constitutional injunction against unreasonable searches
and seizure. The non-exclusionary rule is contrary to the letter and
spirit of the prohibition against unreasonable searches and seizures.
cAHITS
While conceding that the officer making the unlawful search and
seizure may be held criminally and civilly liable, the Stonehill case
observed that most jurisdictions have realized that the exclusionary
rule is "the only practical means of enforcing the constitutional
injunction" against abuse. This approach is based on the justification
made by Judge Learned Hand that "only in case the prosecution
which itself controls the seizing officials, knows that it cannot profit
by their wrong, will the wrong be repressed."
Unreasonable searches and seizures are the menace against which the
constitutional guarantees afford full protection. While the power to
search and seize may at times be necessary to the public welfare, still
it may be exercised and the law enforced without transgressing the
constitutional rights of the citizens, for the enforcement of no statute
is of sufficient importance to justify indifference to the basic
principles of government.
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 to pay for the loss of liberty. As Justice Holmes
declared: "I think it is less evil that some criminals escape than that
the government should play an ignoble part." It is simply not allowed
in free society to violate a law to enforce another, especially if the law
violated is the Constitution itself. 42
WHEREFORE, the decision of the Regional Trial Court of San
Carlos City, Branch 58 is hereby REVERSED and SET ASIDE.
Accused-appellant Armando S. Compacion is hereby ACQUITTED
of the crime charged on ground of reasonable doubt. He is ordered
released from confinement unless he is being held for some other
legal grounds. The subject marijuana is ordered disposed of in
accordance with law. TSAHIa
SO ORDERED.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
SECOND DIVISION
[G.R. No. 139301. September 29, 2004.]
PEOPLE OF THE PHILIPPINES, appellee, vs. HUANG ZHEN
HUA and JOGY LEE, appellants.
The Solicitor General for plaintiff-appellee.
Yolando F. Busmente and Benedicto M. Gonzales, Jr. for Huang
Zhen Hua.
Jojo Soriano Vijiga for Jogy Lee.
SYNOPSIS
The Regional Trial Court of Parañaque City convicted appellants
Huang Zhen Hua and Jogy Lee of violation of Section 16, Article III
of Republic Act No. 6425, as amended and sentenced them to
reclusion perpetua and to pay a fine. Found and confiscated by the
policemen in their condominium unit were shabu and assorted pieces
of shabu paraphernalia. Both appellants questioned the decision of the
trial court before the Supreme Court. DScTaC
The Court acquitted appellant Zhen Hua of the crime charged for
failure of the prosecution to prove his guilt beyond reasonable doubt.
The Court found that the prosecution failed to prove that appellant
Zhen Hua, at any time, had actual or constructive possession of the
regulated drug found in the master's bedroom where appellant Lee
was sleeping; or that the appellant had access in the said room at any
given time; or that he had knowledge of the existence of shabu in
appellant Lee's bedroom. The policemen likewise did not find any
regulated drug in the room where appellant Zhen Hua was sleeping
when they made their search. There was also no evidence that
appellant Zhen Hua was aware of the alleged illegal drug activities
and/or transactions of Henry Lao, Peter Chan and appellant Lee.
On the other hand, the Court found that the prosecution had adduced
proof beyond reasonable doubt of appellant Lee's guilt of the crime
charged. The police officers received reliable information and
verified, after surveillance, that appellant Lee and Lao were living
together as husband and wife in the condominium unit and that
appellant Lee handled the accounting of the payments and proceeds
of the illegal drug trafficking activities of Lao. The policemen found
that appellant Lee occupied the bedroom and slept in the same bed
used by Lao. Appellant Lee took her clothes from the same cabinet
where the subject shabu and paraphernalia were found by the
policemen. Such facts and circumstances were sufficient on which to
base a reasonable belief that appellant Lee had joint control and
possession of the bedroom, as well as of the articles, paraphernalia,
and the shabu found therein. For prosecution for violation of the
Dangerous Drugs Law, possession can be constructive and need not
be exclusive, but may be joint. Moreover, appellant Lee failed to
prove, with clear and convincing evidence, her contention that she
was a victim of a frame-up by the policemen. While such defense
cannot and should not always be considered as contrived,
nonetheless, it is generally rejected for it can easily be concocted but
is difficult to prove. Police officers are, after all, presumed to have
acted regularly in the performance of their official functions, in the
absence of clear and convincing proof to the contrary, or that they are
motivated by ill-will. The Court affirmed the Decision of the trial
court convicting appellant Lee of violation of Section 16 of Republic
Act No. 6425, as amended.
SYLLABUS
1. CRIMINAL LAW; REPUBLIC ACT NO. 6425, AS
AMENDED; SECTION 16, ARTICLE III THEREOF;
POSSESSION OF REGULATED DRUGS AS A JURIDICAL
CONCEPT. — In a case of recent vintage, this Court, in People vs.
Tira, ruminated and expostulated on the juridical concept of
"possession" under Section 16, Article III of Rep. Act No. 6425, as
amended, and the evidence necessary to prove the said crime, thus:
The essential elements of the crime of possession of regulated drugs
are the following: (a) the accused is found in possession of a
regulated drug; (b) the person is not authorized by law or by duly
constituted authorities; and, (c) the accused has knowledge that the
said drug is a regulated drug. This crime is mala prohibita, and, as
such, criminal intent is not an essential element. However, the
prosecution must prove that the accused had the intent to possess
(animus posidende) the drugs. Possession, under the law, includes not
only actual possession, but also constructive possession. Actual
possession exists when the drug is in the immediate physical
possession or control of the accused. On the other hand, constructive
possession exists when the drug is under the dominion and control of
the accused or when he has the right to exercise dominion and control
over the place where it is found. Exclusive possession or control is
not necessary. The accused cannot avoid conviction if his right to
exercise control and dominion over the place where the contraband is
located, is shared with another. Thus, conviction need not be
predicated upon exclusive possession, and a showing of non-
exclusive possession would not exonerate the accused. Such fact of
possession may be proved by direct or circumstantial evidence and
any reasonable inference drawn therefrom. However, the prosecution
must prove that the accused had knowledge of the existence and
presence of the drug in the place under his control and dominion and
the character of the drug. Since knowledge by the accused of the
existence and character of the drugs in the place where he exercises
dominion and control is an internal act, the same may be presumed
from the fact that the dangerous drug is in the house or place over
which the accused has control or dominion, or within such premises
in the absence of any satisfactory explanation. aEHADT
2. ID.; CONSPIRACY; MERE ASSOCIATION WITH THE
PRINCIPALS BY DIRECT PARTICIPATION OR MERE
KNOWLEDGE OF CONSPIRACY, WITHOUT MORE, IS NOT
SUFFICIENT AS THE ELEMENT OF CONSPIRACY MUST
ALSO BE PROVED BEYOND REASONABLE DOUBT. — The
evidence of the prosecution against appellant Zhen Hua falls short of
the requisite quantum of evidence to prove conspiracy between him,
appellant. Lee and Chan or Lao. There is conspiracy when two or
more persons agree to commit a crime and decide to commit it.
Conspiracy cannot be presumed. Conspiracy must be proved beyond
reasonable doubt like the crime subject of the conspiracy. Conspiracy
may be proved by direct evidence or by proof of the overt acts of the
accused, before, during and after the commission of the crime
charged indicative of a common design.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; SECURITY
AGAINST UNREASONABLE SEARCH AND SEIZURE;
APPLIES TO FILIPINO CITIZENS AS WELL AS ALIENS
TEMPORARILY RESIDING IN THE COUNTRY. — We agree
with the contention of the appellant that the constitutional
proscription against unreasonable search and seizure applies to
Filipino citizens, as well as to aliens temporarily residing in the
country. The rule against unreasonable search and seizure forbids
every search that is unreasonable; it protects all those suspected or
known to be offenders, as well as the innocent. The guarantee is as
important and imperative as the guarantee of the other fundamental
rights of the citizens. All owes the duty for its effective enforcement
lest there shall be an impairment of the right for the purpose for
which it was adopted.
4. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH
AND SEIZURE; RIGHT TO BREAK DOOR OR WINDOW TO
EFFECT SEARCH; KNOCK AND ANNOUNCE PRINCIPLE. —
Section 7, Rule 126 of the Revised Rules of Criminal Procedure
provides: Sec. 7. Right to break door or window to effect search. . . . .
The police officers were obliged to give the appellant notice, show to
her their authority, and demand that they be allowed entry. They may
only break open any outer or inner door or window of a house to
execute the search warrant if, after such notice and demand, such
officers are refused entry to the place of directed search. This is
known as the "knock and announce" principle which is embodied in
Anglo-American Law. The method of entry of an officer into a
dwelling and the presence or absence of such notice are as important
considerations in assessing whether subsequent entry to search and/or
arrest is constitutionally reasonable. In Gouled v. The United States,
it was held that a lawful entry is the indispensable predicate of a
reasonable search. A search would violate the Constitution if the
entry were illegal, whether accomplished by force, by illegal threat or
mere show of force. SHTcDE
5. ID.; ID.; ID.; ID.; ID.; REQUISITES; A LAWFUL ENTRY
IS THE INDISPENSABLE PREDICATE OF A REASONABLE
SEARCH. — Generally, officers implementing a search warrant must
announce their presence, identify themselves to the accused and to the
persons who rightfully have possession of the premises to be
searched, and show to them the search warrant to be implemented by
them and explain to them said warrant in a language or dialect known
to and understood by them. The requirement is not a mere procedural
formality but is of the essence of the substantial provision which
safeguards individual liberty. No precise form of words is required. It
is sufficient that the accused has notice of the officers, their authority
and the purpose of the search and the object to be seized. It must be
emphasized that the notice requirement is designed not only for the
protection of the liberty of the person to be searched or of his
property but also the safety and well-being of the officers serving and
implementing the search warrant. Unless the person to whom the
warrant is addressed and whose property is to be searched is notified
of the search warrant and apprised of the authority of the person
serving the warrant, he may consider the unannounced intrusion into
the premises as an unlawful aggression on his property which he will
be justified in resisting, and in the process, may cause injury even to
the life of the officer implementing the warrant for which he would
not be criminally liable. Also, there is a very real possibility that the
police serving and implementing the search warrant may be
misinformed as to the name or address of the suspect, or to other
material affirmations. Innocent citizens should not suffer the shock,
fright, shame or embarrassment attendant upon an unannounced
intrusion. Indeed, a lawful entry is the indispensable predicate of a
reasonable search. A search would violate the constitutional
guarantee against unreasonable search and seizure if the entry were
illegal, whether accomplished by force, or by threat or show of force
or obtained by stealth, or coercion.
6. ID.; ID.; ID.; ID.; ID.; UNANNOUNCED INTRUSION
INTO THE PREMISES WHEN PERMISSIBLE. — Unannounced
intrusion into the premises is permissible when (a) a party whose
premises or is entitled to the possession thereof refuses, upon
demand, to open it; (b) when such person in the premises already
knew of the identity of the officers and of their authority and persons;
(c) when the officers are justified in the honest belief that there is an
imminent peril to life or limb; and (d) when those in the premises,
aware of the presence of someone outside (because, for example,
there has been a knock at the door), are then engaged in activity
which justifies the officers to believe that an escape or the destruction
of evidence is being attempted. Suspects have no constitutional right
to destroy evidence or dispose of evidence. However, the exceptions
above are not exclusive or conclusive. At times, without the benefit of
hindsight and ordinarily on the spur of the moment, the officer must
decide whether or not to make an unannounced intrusion into the
premises. Although a search and seizure of a dwelling might be
constitutionally defective, if the police officers' entry was without
prior announcement, law enforcement interest may also establish the
reasonableness of an unannounced entry. Indeed, there is no formula
for the determination of reasonableness. Each case is to be decided on
its own facts and circumstances. In determining the lawfulness of an
unallowed entry and the existence of probable cause, the courts are
concerned only with what the officers had reason to believe and the
time of the entry. CDaSAE
7. ID.; ID.; ID.; ID.; ID.; ENTRY OBTAINED THROUGH
THE USE OF DECEPTION, ACCOMPLISHED WITHOUT FORCE
IS NOT A "BREAKING" REQUIRING PRIOR
ANNOUNCEMENT. — As articulated in Benefield v. State of
Florida, what constitutes breaking includes the lifting of a latch,
turning a door knob, unlocking a chain or hasp, removing a prop to or
pushing open a closed door of entrance to the house, even a closed
screen door. However, entry obtained through the use of deception,
accomplished without force is not a "breaking" requiring officers to
first announce their authority and purpose because the reasons behind
the rule are satisfied — there was no real likelihood of violence, no
unwarranted intrusion or privacy and no damage to the residence of
the accused.
8. ID.; ID.; ID.; ID.; ID.; THE PROPER TRIGGER POINT IN
DETERMINING WHETHER THE POLICE WAITED LONG
ENOUGH BEFORE ENTERING THE RESIDENCE TO EXECUTE
A WARRANT IS WHEN THOSE INSIDE SHOULD HAVE BEEN
ALERTED THAT THE POLICE WANTED ENTRY TO EXECUTE
A WARRANT. — As to how long an officer implementing a search
warrant must wait before breaking open any door cannot be distilled
into a constitutional stopwatch. Each case has to be decided on a
case-to-case basis requiring an examination of all the circumstances.
The proper trigger point in determining, under the "knock and
announce" rule, whether the police waited long enough before
entering the residence to execute a warrant, is when those inside
should have been alerted that the police wanted entry to execute a
warrant. aIcHSC
9. ID.; ID.; ID.; PLAIN VIEW DOCTRINE; APPLICABILITY;
SEIZURE OF ARTICLES NOT LISTED IN A SEARCH
WARRANT DOES NOT RENDER THE SEIZURE OF THE
ARTICLES DESCRIBED AND LISTED THEREIN ILLEGAL. —
Admittedly, Anciro, Jr. seized and took custody of certain articles
belonging to the appellant and Lao which were not described in the
search warrants. However, the seizure of articles not listed in a search
warrant does not render the seizure of the articles described and listed
therein illegal; nor does it render inadmissible in evidence such
articles which were described in the warrant and seized pursuant
thereto. Moreover, it bears stressing that Anciro, Jr. saw the unlisted
articles when he and the other policemen implemented the search
warrants. Such articles were in plain view of Anciro, Jr. as he
implemented the search warrants and was authorized to seize the said
articles because of their close connection to the crime charged. As
held in Coolidge, Jr. v. New Hampshire: An example of the
applicability of the 'plain view' doctrine is the situation in which the
police have a warrant to search a given area for specified objects, and
in the course of the search come across some other article of
incriminating character . . . Where the initial intrusion that brings the
police within plain view of such an article is supported, not by a
warrant, but by one of the recognized exceptions to the warrant
requirement, the seizure is also legitimate. Thus, the police may
inadvertently come across evidence while in 'hot pursuit' of a fleeing
suspect . . . And an object that comes into view during a search
incident to arrest that is appropriately limited in scope under existing
law may be seized without a warrant . . . Finally, the 'plain view'
doctrine has been applied where a police officer is not searching for
evidence against the accused, but nonetheless inadvertently comes
across an incriminating object . . .
10. ID.; ID.; ARREST; WHEN PROBABLE CAUSE EXISTS
TO JUSTIFY WARRANTLESS. — In Draper v. United States, it
was held that informations from a reliable informant, corroborated by
the police officer's observations as to the accuracy of the description
of the accused, and of his presence at a particular place, is sufficient
to establish probable cause. In this case, the police officers received
reliable information and verified, after surveillance, that appellant Lee
and Lao were living together as husband and wife in the
condominium unit and that appellant Lee handled the accounting of
the payments and proceeds of the illegal drug trafficking activities of
Lao. Indeed, the policemen found that the appellant occupied the
bedroom and slept in the same bed used by Lao. The appellant took
her clothes from the same cabinet where the subject shabu and
paraphernalia were found by Anciro, Jr. The appellant had been living
in the same condominium unit with Lao since October 1, 1996 until
her arrest on October 25, 1996. Along with Lao, the appellant thus
had joint control and possession of the bedroom, as well as of the
articles, paraphernalia, and the shabu found therein. Such facts and
circumstances are sufficient on which to base a reasonable belief that
the appellant had joint possession of the regulated drugs found in the
bedroom along with Lao, her live-in partner, in line with our ruling in
People v. Tira. For the purpose of prosecution for violation of the
Dangerous Drugs Law, possession can be constructive and need not
be exclusive, but may be joint.
11. ID.; EVIDENCE; DEFENSE OF FRAME-UP; GENERALLY
REJECTED FOR IT CAN EASILY BE CONCOCTED AND IS
DIFFICULT TO PROVE. — The appellant failed to prove, with clear
and convincing evidence, her contention that Anciro, Jr. placed the
shabu on her bed before he continued his search in the bedroom, and
that she was a victim of frame-up by the policemen. She relied on her
testimony and those of Pangan and Ferias that they did not see
Anciro, Jr. discover and take custody of the shabu in the cabinet. The
appellant's defense of frame-up is nothing new. It is a common and
standard line of defense in most prosecutions for violation of the
Dangerous Drugs Law. While such defense cannot and should not
always be considered as contrived, nonetheless, it is generally
rejected for it can easily be concocted but is difficult to prove. Police
officers are, after all, presumed to have acted regularly in the
performance of their official functions, in the absence of clear and
convincing proof to the contrary, or that they are motivated by ill-
will. CIDTcH
D E C I S I O N
CALLEJO, SR., J p:
This is an appeal from the Decision 1 of the Regional Trial Court
(RTC) of Parañaque City, Metro Manila, Branch 259, convicting the
appellants of violation of Section 16, Article III of Republic Act No.
6425, as amended. DISHEA
The Case for the Prosecution
Police operatives of the Public Assistance and Reaction Against
Crime (PARAC) under the Department of Interior and Local
Government received word from their confidential informant that
Peter Chan and Henry Lao, 2 and appellants Jogy Lee and Huang
Zhen Hua were engaged in illegal drug trafficking. The policemen
also learned that appellant Lee was handling the payments and
accounting of the proceeds of the illegal drug trafficking activities of
Lao and Chan. 3 PO3 Belliardo Anciro, Jr. and other police
operatives conducted surveillance operations and were able to verify
that Lao and appellant Lee were living together as husband and wife.
They once spotted Chan, Lao, the appellants and two others, in a
seafood restaurant in Bocobo Street, Ermita, Manila, late in the
evening. On another occasion, the policemen saw Chan, Lao, and the
appellants, at the Celicious Restaurant along R. Sanchez Street,
Ermita, Manila, at about 8:30 p.m. They were spotted the third time at
the Midtown Hotel at about 7:00 p.m. to 8:00 p.m. 4 The police
operatives also verified that Chan and Lao resided at Room Nos. 1245
and 1247, Cityland Condominium, De la Rosa Street, Makati City,
and in a two-storey condominium unit at No. 19 Atlantic Drive,
Pacific Grand Villa, Sto. Niño, Parañaque, Metro Manila. 5
On October 25, 1996, SPO2 Cesar N. Teneros of the PARAC secured
Search Warrant No. 96-801 for violation of Presidential Decree (P.D.)
No. 1866 (illegal possession of firearms and explosives) and Search
Warrant No. 96-802, for violation of Sections 12, 14 and 16 of Rep.
Act No. 6425, as amended, from Judge William M. Bayhon,
Executive Judge of the RTC of Manila. 6 Senior Police Inspector
Lucio Margallo supervised the enforcement of Search Warrant No.
96-801 at the Cityland Condominium at about 11:00 p.m. on October
29, 1996. With him were PO3 Anciro, Jr., PO3 Wilhelm Castillo,
SPO3 Roger Ferias and seven other policemen of the PARAC, who
were all in uniform, as well as a Cantonese interpreter by the name of
Chuang. While no persons were found inside, the policemen found
two kilos of methamphetamine hydrochloride, popularly known as
shabu, paraphernalia for its production, and machines and tools
apparently used for the production of fake credit cards. 7
Thereafter, the police operatives received information that Lao and
Chan would be delivering shabu at the Furama Laser Karaoke
Restaurant at the corner of Dasmariñas and Mancha Streets, Manila.
The policemen rushed to the area on board their vehicles. It was 2:00
a.m. of October 26, 1996. The policemen saw Chan and Lao on board
the latter's Honda Civic car. As the two men alighted, one of the men
approached them and introduced himself, but Chan and Lao fired
shots. Thus, a shoot-out ensued between the members of the raiding
team and the two suspects. Chan and Lao were shot to death during
the encounter. The policemen found two plastic bags, each containing
one kilo of shabu, in Lao's car. THcaDA
The policemen then proceeded to No. 19 Atlantic Drive, Pacific
Grand Villa, to enforce Search Warrant No. 96-802. When the
policemen arrived at the place, they coordinated with Antonio
Pangan, the officer in charge of security in the building. 8 The men
found that the Condominium Unit No. 19 was leased to Lao under the
name Henry Kao Tsung. The policemen, Pangan and two security
guards of the Pacific Grand Villa proceeded to the condominium unit.
Anciro, Jr. knocked repeatedly on the front door, but no one
responded. Pangan, likewise, knocked on the door. 9 Appellant Lee
peeped through the window beside the front door. 10 The men
introduced themselves as policemen, 11 but the appellant could not
understand them as she could not speak English. 12 The policemen
allowed Pangan to communicate with appellant Lee by sign language
and pointed their uniforms to her to show that they were policemen.
The appellant then opened the door and allowed the policemen,
Pangan and the security guards into the condominium unit. 13 The
policemen brought appellant Lee to the second floor where there were
three bedrooms — a master's bedroom and two other rooms. When
asked where she and Lao slept, appellant Lee pointed to the master's
bedroom. 14 Anciro, Jr., Margallo and PO3 Wilhelm Castillo then
searched the master's bedroom, while Ferias and Pangan went to the
other bedroom where appellant Zhen Hua was sleeping. 15 Ferias
awakened appellant Zhen Hua and identified himself as a policeman.
Appellant Zhen Hua was surprised. 16
Anciro, Jr. saw a small cabinet inside the master's bedroom about six
feet high. He stood on a chair, opened the cabinet and found two
transparent plastic bags each containing one kilo of shabu, 17 a
feeding bottle, a plastic canister 18 and assorted paraphernalia. 19
Inside the drawer of the bed's headboard, Anciro, Jr. also found
assorted documents, pictures, bank passbooks issued by the Allied
Banking Corporation, credit cards, passports and identification cards
of Lao and Lee. 20 Anciro, Jr. asked appellant Lee who was the
owner of the crystalline substance, but the latter did not respond
because she did not know English. 21 Anciro, Jr. asked Margallo for
instructions on what to do with the things he had found, and the latter
told him to keep the same for future reference, 22 and as evidence
against any other suspect for illegal drug transactions. 23 Anciro, Jr.,
Pangan and Margallo later showed the seized articles to the other
members of the team. 24
Anciro, Jr. told appellant Lee to bring some of her clothes because
they were bringing her to the PARAC headquarters. Appellant Lee
did as she was told and took some clothes from the cabinet in the
master's bedroom where Anciro, Jr. had earlier found the shabu. 25
The policemen brought the appellants to the PARAC headquarters.
The following articles were found and confiscated by the policemen
in the condominium unit: ESTCHa
a. TWO (2) Big Transparent Plastic Bags containing about one
(1) Kilo each of white crystalline granules later tested to be
Methamphetamine Hydrochloride or Shabu, a regulated drug;
b. ONE (1) Transparent Plastic Baby Feeding Bottle containing
an undetermined quantity of suspected Shabu;
c. ONE (1) Small Plastic Cannister also containing
undetermined amount of suspected Shabu . . .
d. Assorted Pieces of Shabu Paraphernalia consisting of
Improvised Tooters used for sniffing shabu, Improvised Burners used
for burning Shabu, aluminum foils, etc.; 26
Anciro, Jr. placed the articles he found in the cabinet inside a box. 27
The appellants were then brought to the PARAC headquarters where
they were detained. Pangan signed a Certification 28 that the search
conducted by the policemen had been orderly and peaceful. Anciro,
Jr. affixed his initials on the transparent plastic bags and their
contents, the transparent baby feeding bottle and the plastic cannister
and their contents. On October 26, 1996, he and Ferias 29 brought the
seized items to the PNP Crime Laboratory for laboratory examination
30 along with the letter-request 31 thereon. IAETSC
On the same day, Forensic Chemist Officer Isidro L. Cariño signed
Chemistry Report No. D-1243-96 which contained his findings on the
laboratory examination of the items which were marked as Exhibits
"A" to "A-4," viz:
SPECIMEN SUBMITTED:
Exh. "A" — One (1) "must de Cartier Paris" carton containing the
following:
Exh. "A-1" — One (1) heat-sealed transparent plastic bag containing
1,000.40 grams of white crystalline substance.
Exh. "A-2" — One (1) heat-sealed transparent plastic bag containing
998.10 grams of white crystalline substance.
Exh. "A-3" — One (1) transparent plastic "Babyflo Nurser" feeding
bottle with pink cover containing 18.52 grams of white crystalline
substance. ACIEaH
Exh. "A-4" — One (1) transparent plastic container with white cover
containing 3.28 grams of white crystalline substance.
NOTE: The above-stated specimen were allegedly taken from the
residence of the above-named subjects . . .
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of prohibited and/or regulated drug.
FINDINGS:
Qualitative examination conducted on the above-stated specimens,
Exhs. "A-1" through "A-4" gave POSITIVE result to the test for
Methamphetamine hydrochloride, a regulated drug. . . 32
The police officers executed an affidavit of arrest. 33 Pangan and the
two security guards signed a certification stating that nothing was
destroyed in the condominium unit and that the search was orderly
and peaceful. 34 The policemen also accomplished an inventory of
the articles seized during the search. 35
The appellants were charged of violation of Section 16, Rep. Act No.
6425, as amended, in an Information filed in the RTC of Parañaque,
Metro Manila, the accusatory portion of which reads: DETACa
That on or about the 26th day of October 1996, in the Municipality of
Parañaque, Metro Manila, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring and
confederating together and both of them mutually helping and aiding
one another, not being lawfully authorized to possess or otherwise use
any regulated drug and without the corresponding license or
prescription, did then and there willfully, unlawfully and feloniously
have, in their possession and under their control and custody, the
following to wit:
A. One (1) heat-sealed transparent plastic bag containing
1,000.40 grams of white crystalline substance;
B. One (1) heat-sealed transparent plastic bag containing 998.1
grams of white crystalline substance; TAEcSC
C. One (1) transparent plastic "Babyflo Nurser" feeding bottle
with pink cover containing 18.52 grams of white crystalline
substance;
D. One (1) transparent plastic container with white cover
containing 3.28 grams of white crystalline substance
which when examined were found to be positive for
Methamphetamine Hydrochloride (Shabu), a regulated drug.
CONTRARY TO LAW. 36
Both appellants, assisted by counsel, were duly arraigned on
November 29, 1992, and pleaded not guilty to the charge.
The Case for the Appellants
Appellant Jogy Lee denied the charge. She testified that she was a
resident of Kwantong, China, a college graduate who could not speak
nor understand English. She was once employed in a real estate firm.
One of her co-employees was Huang Zhen Hua. 37 She met Henry
Lao in China sometime in 1995, 38 and he brought her to Belgium
that same year. Lao also helped her procure a Belguim passport, for
he explained that if she only had a Chinese passport, it would be
difficult to secure visas from countries she wanted to go to and visit;
whereas many countries did not require a Belgian passport holder to
secure visas before allowing entry therein. In the process, he and Lao
fell in love and became lovers. aEHADT
Upon Lao's invitation, appellant Lee visited the Philippines as a
tourist for the first time in April 1996. Lao met her at the airport, and
she was, thereafter, brought to a hotel in Manila where she stayed for
less than a month. 39 She returned to the Philippines a second time
and was again billeted in a hotel in Manila. All her expenses were
shouldered by Lao, who was engaged in the garlic business. 40 As far
as she knew, Lao was not engaged in any other business. 41 In June
1996, she invited her friend, appellant Huang Zhen Hua to visit the
Philippines to enjoy the tourist spots. 42 They were then in China.
In the evening of October 1, 1996, appellant Lee returned to the
Philippines on a tourist visa. She was fetched by Lao, and she was
brought to his condominium unit at No. 19, Atlantic Drive, Pacific
Grand Villa, Sto. Niño, Parañaque. She had been residing there since
then. She and Lao used to go to the shopping malls 43 and she even
saw Chan once when he cleaned his Nissan car in Lao's garage.
CaTcSA
On October 22, 1996, appellant Zhen Hua arrived from China at the
NAIA and was met by Lao at the airport. He tried to check in at the
Diamond Hotel but Lee told him that he could stay in the
condominium unit. Zhen Hua was brought to the Villa where he had
been staying since then. The appellants had made plans to visit Cebu.
At about 6:00 a.m. on October 26, 1996, appellant Lee was sleeping
in the master's bedroom at the condominium unit. She had closed all
the windows because she had turned the air conditioning unit on.
Zhen Hua was sleeping in the other bedroom in the second floor
beside the master's bedroom. Lao's Honda Civic car and Chan's
Nissan car were in the garage beside the condominium unit.
Momentarily, Lee heard someone knocking on the bedroom door.
When she opened it, three (3) policemen barged into the bedroom and
at the room where appellant Zhen Hua was sleeping. Anciro, Jr. was
not among the men. Lee did not hear the policemen knock at the main
door before they entered. 44 The policemen were accompanied by
Chuang, a Cantonese interpreter, who told her that the policemen
were going to search the house. 45 Appellant Lee saw a policeman
holding two papers, but no search warrant was shown to her. 46 She
was so frightened. DEHaAS
The policemen placed two plastic bags on the bed before they
searched the master's bedroom. Appellant Lee went to the room of
appellant Zhen Hua and when she returned to the master's bedroom,
she saw shabu on the bed. 47 The policemen took her ring, watch and
the P600,000 owned by Lao which had earlier been placed in the
cabinet, her papers and documents, and those of Lao's as well. She
had never seen any shabu in the room before the incident. Thereafter,
she and appellant Zhen Hua were brought to the PARAC
headquarters where they were detained. Chuang, the cantonese
interpreter, informed her that shabu had been found in the
condominium unit and that the policemen were demanding
P5,000,000 for her release. She was also told that if she did not pay
the amount, she would be charged with drug trafficking, and that the
leader of the group who arrested her would be promoted. However,
she told Chuang that she had no money. Since she could not pay the
amount, she was boarded on a PARAC owner-type jeep and returned
to the condominium unit where the policemen took all the household
appliances, such as the television, compact discs, washing machine,
including laundry detergent. Only the sofa and the bed were not
taken. About ten (10) days later, the appellants secured the services of
counsel. THaDAE
Antonio Pangan testified that he and the policemen knocked on the
door to the condominium unit but that no one responded. He shouted,
"Sir Henry," referring to Lao, but there was no response from inside
the condominium. After about three (3) to five (5) minutes, a
policeman kicked the door open and they entered the house. They
went to the second floor and saw the appellants sleeping.
Pangan testified that he did not see any shabu that was seized by the
policemen. He learned that shabu had been found and taken from the
condominium unit only when he saw someone holding up the
substance on television during the daily news program TV Patrol. 48
Appellant Zhen Hua also denied the charge. He corroborated the
testimony of appellant Lee that upon her invitation, he arrived in the
Philippines on a tourist visa on October 22, 1996. He claimed that he
did not see Anciro, Jr. in the condominium unit when policemen
arrived and searched the house. He testified that aside from the
PARAC policemen, he was also investigated by policemen from
Taiwan. EIcSDC
After trial, the court rendered judgment on January 10, 1999,
convicting both appellants of the crime charged. The decretal portion
of the decision reads:
WHEREFORE, PREMISES CONSIDERED, finding accused Jogy
Lee and Huang Zhen Hua GUILTY beyond reasonable doubt for
violation of Sec. 16, Art. III, RA 6425, as amended by RA 7659, and
considering the absence of any aggravating circumstances, this Court
hereby sentences both accused to suffer the penalty of Reclusion
Perpetua and to pay a fine of P500,000.00 each. The properties seized
in accordance with the search warrants issued relative to this case are
hereby ordered confiscated in favor of the government and the Clerk
of Court of this Court is directed to turn over to the Dangerous Drugs
Board, the drugs and paraphernalia subject hereof for proper
disposition.
The Clerk of Court is also directed to prepare the Mittimus for the
immediate transfer of both accused Jogy Lee and Huang Zhen Hua
from the Parañaque City Jail to the Bureau of Correccions (sic) in
Muntinlupa City.
SO ORDERED. 49
The Present Appeal
On appeal to this Court, appellant Zhen Hua, asserts that: EHSADc
First. The evidence for the prosecution, as a whole, is so far as self-
contradictory, inherently improbable and palpably false to be
accepted as a faithful reflection of the true facts of the case;
Second. Appellant Huang Zhen Hua's conviction was based merely
on the trial court's conclusion that he "is not an epitome of first class
tourist and that he appeared nonchalant throughout the proceedings;"
Third. In convicting said appellant, the court below completely
disregarded the glaring facts and admissions of the prosecution's
principal witnesses that no regulated drug was ever found in his
possession;
Fourth. The trial court, likewise, ignored the fact that the appellant's
arrest was illegal and in violation of his constitutional and basic rights
against arrest without probable cause as determined by a Judge and
that his arraignment did not constitute a waiver of such right;
SIEHcA
Fifth. The trial court failed to consider the fact that the presumption
of regularity of performance of the police officers who took part in
the search had been overcome by prosecution's own evidence, thereby
wrongly giving such presumption substance over and above the
constitutional presumption of innocence of the appellant. 50
For her part, appellant Lee contends that:
1.01 THE ALLEGED TWO KILOS OF SHABU FOUND INSIDE
ONE OF THE ROOMS IN THE TOWNHOUSE RENTED BY
HENRY LAU WERE MERELY PLANTED BY PARAC
OPERATIVES;
1.02 THE IMPLEMENTATION OF THE SEARCH WARRANT
WAS HIGHLY IRREGULAR, DUBIOUS AND UNREASONABLE
AS THE SEARCH WARRANT DID NOT CONTAIN ANY
PARTICULAR DESCRIPTION OF THE ROOM TO BE
SEARCHED, NOR WAS THERE ANY INTERPRETER TO
ASSIST AND GUIDE JOGY LEE, WHO NEITHER KNEW NOR
UNDERSTAND THE ENGLISH LANGUAGE, DURING THE
SEARCH AND EVEN DURING THE TRIAL; cACTaI
2. THE LOWER COURT ERRED IN NOT ACQUITTING
ACCUSED JOGY LEE UPON THE GROUND THAT HER GUILT
WAS NOT ESTABLISHED BY PROOF BEYOND REASONABLE
DOUBT. 51
For its part, the Office of the Solicitor General (OSG) posits that
appellant Zhen Hua should be acquitted on the ground of reasonable
doubt, but that the conviction of appellant Lee should be affirmed.
The Court's Ruling
We shall delve into and resolve the assigned errors of the appellants
Huang Zhen Hua and Jogy Lee sequentially.
On Appellant Zhen Hua
The OSG contends that the prosecution failed to muster the requisite
quantum of evidence to prove appellant Zhen Hua's guilt beyond
reasonable doubt for the crime charged, thus: aTcHIC
Huang Zhen Hua denies having anything to do with the bags of
"shabu" found in the townhouse unit of Henry Lau. He claims that he
arrived in the Philippines as a tourist on October 22, 1996, upon the
invitation of Jogy Lee. Allegedly, at the time of his arrest, he had
been in the Philippines for barely four days. He claims that he was
just temporarily billeted as a guest at the townhouse where Jogy Lee
was staying. And that he had no control whatsoever over said
townhouse. He puts emphasis on the fact that the search of his room
turned out to be "negative" and that the raiding team failed to seize or
confiscate any prohibited or regulated drug in his person or
possession. He, therefore, prays for his acquittal.
The People submits that Huang Zhen Hua is entitled to acquittal. The
prosecution's evidence fails to meet the quantum of evidence required
to overcome the constitutional presumption of innocence; thus,
regardless of the supposed weakness of his defense, and his
innocence may be doubted, he is nonetheless entitled to an acquittal
(Natividad v. Court of Appeals, 98 SCRA 335 (1980), cited in People
v. Fronda, G.R. No. 130602, March 15, 2000). The constitutional
presumption of innocence guaranteed to every individual is of
primary importance, and the conviction of the accused must rest not
on the weakness of the defense but on the strength of the evidence for
the prosecution. aHESCT
In the instant case, as pointed out by appellant Huang Zhen Hua, the
trial court erred when it did not give much weight to the admission
made by the prosecution witnesses that no regulated drug was found
in his person. No regulated drug was also found inside his room or in
his other belongings such as suitcases, etc. Thus, he had no actual or
constructive possession of the confiscated "shabu."
Moreover, it is not disputed that Huang Zhen Hua had only been in
the country for barely four (4) days at the time when he was arrested.
The prosecution was unable to show that in these four (4) days Huang
Zhen Hua committed acts which showed that he was in cahoots with
the drug syndicate Henry Lau and Peter Chan. It was not even shown
that he was together with Henry Lau and Peter Chan on any occasion.
As for Huang Zhen Hua, therefore, there is no direct evidence of any
culpability. Nor is there any circumstantial evidence from which any
culpability may be inferred. 52
We agree with the OSG. In a case of recent vintage, this Court, in
People vs. Tira, 53 ruminated and expostulated on the juridical
concept of "possession" under Section 16, Article III of Rep. Act No.
6425, as amended, and the evidence necessary to prove the said
crime, thus: EHSADc
The essential elements of the crime of possession of regulated drugs
are the following: (a) the accused is found in possession of a
regulated drug; (b) the person is not authorized by law or by duly
constituted authorities; and, (c) the accused has knowledge that the
said drug is a regulated drug. This crime is mala prohibita, and, as
such, criminal intent is not an essential element. However, the
prosecution must prove that the accused had the intent to possess
(animus possidendi) the drugs. Possession, under the law, includes
not only actual possession, but also constructive possession. Actual
possession exists when the drug is in the immediate physical
possession or control of the accused. On the other hand, constructive
possession exists when the drug is under the dominion and control of
the accused or when he has the right to exercise dominion and control
over the place where it is found. Exclusive possession or control is
not necessary. The accused cannot avoid conviction if his right to
exercise control and dominion over the place where the contraband is
located, is shared with another. ScTCIE
Thus, conviction need not be predicated upon exclusive possession,
and a showing of non-exclusive possession would not exonerate the
accused. Such fact of possession may be proved by direct or
circumstantial evidence and any reasonable inference drawn
therefrom. However, the prosecution must prove that the accused had
knowledge of the existence and presence of the drug in the place
under his control and dominion and the character of the drug. Since
knowledge by the accused of the existence and character of the drugs
in the place where he exercises dominion and control is an internal
act, the same may be presumed from the fact that the dangerous drug
is in the house or place over which the accused has control or
dominion, or within such premises in the absence of any satisfactory
explanation. 54
In this case, the prosecution failed to prove that the appellant, at any
time, had actual or constructive possession of the regulated drug
found in the master's bedroom where appellant Lee was sleeping; or
that the appellant had accessed the said room at any given time; or
that he had knowledge of the existence of shabu in appellant Lee's
bedroom. Appellant Zhen Hua had arrived in the Philippines upon the
invitation of appellant Lee only on October 22, 1996 or barely four
(4) days before the arrival of the policemen and the search conducted
in the condominium unit leased by Henry Lao. He was a mere visitor
of appellant Lee. There is no evidence that appellant Zhen Hua was
aware of the alleged illegal drug activities and/or transactions of
Henry Lao, Peter Chan and appellant Lee. The policemen did not find
any regulated drug in the room where appellant Zhen Hua was
sleeping when they made their search.
The evidence of the prosecution against appellant Zhen Hua falls
short of the requisite quantum of evidence to prove conspiracy
between him, appellant Lee and Chan or Lao. SDHITE
There is conspiracy when two or more persons agree to commit a
crime and decide to commit it. 55 Conspiracy cannot be presumed. 56
Conspiracy must be proved beyond reasonable doubt like the crime
subject of the conspiracy. 57 Conspiracy may be proved by direct
evidence or by proof of the overt acts of the accused, before, during
and after the commission of the crime charged indicative of a
common design. 58
The bare fact that on two or three occasions after the arrival of
appellant Zhen Hua from China, and before the search conducted in
Lao's condominium unit, appellant Zhen Hua had been seen with Lao,
Chan and appellant Lee. Having dinner or lunch at a restaurant does
not constitute sufficient proof that he had conspired with them or with
any of them to possess the subject-regulated drug. Mere association
with the principals by direct participation or mere knowledge of
conspiracy, without more, does not suffice. 59 Anciro, Jr. even
admitted that during his surveillance, he could have mistaken
appellant Zhen Hua for another group of Chinese persons who were
also being watched. 60 Appellant Zhen Hua should, thus, be
acquitted.
On Appellant Lee
Appellant Lee avers that certain irregularities were attendant in the
issuance and implementation of Search Warrant No. 96-802, as
follows: (a) the policemen who implemented the search warrant failed
in their duty to show to her the said warrant, inform her of their
authority and explain their presence in the condominium unit; (b) the
policemen gained entry into the condominium unit by force while she
was sleeping; and (c) articles and personal effects owned by her and
Lao were taken and confiscated by the policemen, although not
specified in the search warrant.
The appellant concludes that the articles procured by the policemen
on the occasion of the search of the condominium unit are
inadmissible in evidence.
Appellant Lee, likewise, contends that she was a victim of a frame-up
because the policemen planted the regulated drug on her bed even
before they searched the bedroom. She went to the room of appellant
Zhen Hua to find out if he was already awake, and when she returned
to the bedroom, she noticed shabu on her bed. She avers that the sole
testimony of Anciro, Jr., that he found the regulated drug in the
master's bedroom, is incredible because he was not with the
policemen who barged into the bedroom. She notes that even Pangan,
the caretaker of the Villa, testified that he did not see any illegal drug
confiscated by the policemen. aSHAIC
According to appellant Lee, the trial court erred in convicting her of
the crime charged, considering that Lao and Chan were the suspects
identified in the search warrants, not her. She avers that she had no
knowledge of the alleged illegal drug transactions of her lover Lao.
She contends that there was no probable cause for her arrest as her
mere presence in the condominium unit does not render her liable for
the shabu found in the master's bedroom of the condominium unit
leased by Lao. She further avers that the testimonies of the witnesses
for the prosecution are inconsistent; hence, barren of probative
weight. The appellant also asserts that she was deprived of her right
to due process when the trial court conducted a trial without a
Chinese interpreter to assist her.
The OSG, for its part, avers that the police officers are presumed to
have performed their duties. Based on the testimony of Anciro, Jr.,
appellant Lee was shown the search warrant, through the window,
and the policemen identified themselves through their uniforms. The
security guards of the condominium also explained the search warrant
to the appellant. Although she was, at first, reluctant to open the door,
appellant Lee later voluntarily opened the door and allowed them
entry into the unit. There was no evidence of forcible entry into the
unit and no breakage of any door. The OSG further avers that the
appellant had been in the country for quite sometime already and
could not have gotten around without understanding English. In fact,
the OSG argues that when Anciro, Jr. told the appellant to get some
of her clothes since she would be brought to the police headquarters
in Quezon City, she did as she was told and took her clothes from the
cabinet where the shabu were found by the policemen.
The OSG further points out that Pangan, the chief of security of the
subdivision who was a witness for appellant Lee, even testified that
the search was orderly. The OSG contends that there was probable
cause for the appellant's arrest because an informant had tipped off
the arresting officers that the appellant was a member of a syndicate
dealing with illegal drugs, and that she handled the accounts of Lao
and Chan. The appellant was not a victim of frame-up because she
was present when the policemen searched the master's bedroom
where she was sleeping and where she kept her clothes, and witnessed
the discovery of the regulated drugs and paraphernalia.
We agree with the contention of the appellant that the constitutional
proscription against unreasonable search and seizure applies to
Filipino citizens, as well as to aliens temporarily residing in the
country. The rule against unreasonable search and seizure forbids
every search that is unreasonable; it protects all those suspected or
known to be offenders, as well as the innocent. The guarantee is as
important and imperative as the guarantee of the other fundamental
rights of the citizens. 61 All owes the duty for its effective
enforcement lest there shall be an impairment of the right for the
purpose for which it was adopted. 62
Section 7, Rule 126 of the Revised Rules of Criminal Procedure
provides: cDIaAS
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 or liberate himself or any person
lawfully aiding him when unlawfully detained therein.
The police officers were obliged to give the appellant notice, show to
her their authority, and demand that they be allowed entry. They may
only break open any outer or inner door or window of a house to
execute the search warrant if, after such notice and demand, such
officers are refused entry to the place of directed search. This is
known as the "knock and announce" principle which is embodied in
Anglo-American Law. The method of entry of an officer into a
dwelling and the presence or absence of such notice are as important
considerations in assessing whether subsequent entry to search and/or
arrest is constitutionally reasonable. 63 In Gouled v. The United
States, 64 it was held that a lawful entry is the indispensable predicate
of a reasonable search. A search would violate the Constitution if the
entry were illegal, whether accomplished by force, by illegal threat or
mere show of force.
The principle may be traced to a statute in England way back in 1275
providing that "if a person takes the beasts of another and causes them
to be driven into a castle or fortress, if the sheriff makes a solemn
demand for the deliverance of the beasts, and if the person did not
cause the beasts to be delivered incontinent, the king shall cause the
said castle or fortress to be beaten down without recovery." Common
law courts appended an important qualification: DIEACH
But before he breaks it, he ought to signify the cause of his coming,
and to make request to open doors . . ., for the law without a default in
the owner abhors the destruction or breaking of any house (which is
for the habitation and safety of man) by which great damage and
inconvenience might ensue to the party, when no default is in him; for
perhaps he did not know of the process, of which, if he had noticed, it
is to be presumed that he would obey it . . . 65
Blackstone simply stated the principle that the sheriff may justify
breaking open doors if the possession be not quietly delivered. 66 The
principle was woven quickly into the fabric of early American law
and in the Fourth Amendment in the United States Federal
Constitution. It is an element of the reasonableness inquiry under the
Fourth Amendment as held in Wilson v. Arkansas. 67
Generally, officers implementing a search warrant must announce
their presence, identify themselves to the accused and to the persons
who rightfully have possession of the premises to be searched, and
show to them the search warrant to be implemented by them and
explain to them said warrant in a language or dialect known to and
understood by them. The requirement is not a mere procedural
formality but is of the essence of the substantial provision which
safeguards individual liberty. 68 No precise form of words is
required. It is sufficient that the accused has notice of the officers,
their authority and the purpose of the search and the object to be
seized. It must be emphasized that the notice requirement is designed
not only for the protection of the liberty of the person to be searched
or of his property but also the safety and well-being of the officers
serving and implementing the search warrant. Unless the person to
whom the warrant is addressed and whose property is to be searched
is notified of the search warrant and apprised of the authority of the
person serving the warrant, he may consider the unannounced
intrusion into the premises as an unlawful aggression on his property
which he will be justified in resisting, and in the process, may cause
injury even to the life of the officer implementing the warrant for
which he would not be criminally liable. Also, there is a very real
possibility that the police serving and implementing the search
warrant may be misinformed as to the name or address of the suspect,
or to other material affirmations. Innocent citizens should not suffer
the shock, fright, shame or embarrassment attendant upon an
unannounced intrusion. 69 Indeed, a lawful entry is the indispensable
predicate of a reasonable search. A search would violate the
constitutional guarantee against unreasonable search and seizure if the
entry were illegal, whether accomplished by force, or by threat or
show of force or obtained by stealth, or coercion. 70
Unannounced intrusion into the premises is permissible when (a) a
party whose premises or is entitled to the possession thereof refuses,
upon demand, to open it; (b) when such person in the premises
already knew of the identity of the officers and of their authority and
persons; (c) when the officers are justified in the honest belief that
there is an imminent peril to life or limb; and (d) when those in the
premises, aware of the presence of someone outside (because, for
example, there has been a knock at the door), are then engaged in
activity which justifies the officers to believe that an escape or the
destruction of evidence is being attempted. Suspects have no
constitutional right to destroy evidence or dispose of evidence. 71
However, the exceptions above are not exclusive or conclusive. At
times, without the benefit of hindsight and ordinarily on the spur of
the moment, the officer must decide whether or not to make an
unannounced intrusion into the premises. Although a search and
seizure of a dwelling might be constitutionally defective, if the police
officers' entry was without prior announcement, law enforcement
interest may also establish the reasonableness of an unannounced
entry. 72 Indeed, there is no formula for the determination of
reasonableness. Each case is to be decided on its own facts and
circumstances. 73 In determining the lawfulness of an unallowed
entry and the existence of probable cause, the courts are concerned
only with what the officers had reason to believe and the time of the
entry. 74 In Richards v. Wisconsin, 75 it was held that: IDEHCa
[1] In order to justify a "no-knock" entry, the police must have a
reasonable suspicion that knocking and announcing their presence,
under the particular circumstances, would be dangerous or futile, or
that it would inhibit the effective investigation of the crime by, for
example, allowing the destruction of evidence. This standard — as
opposed to a probable-cause requirement — strikes the appropriate
balance between the legitimate law enforcement concerns at issue in
the execution of search warrants and the individual privacy interest
affected by no-knock entries. 76
As articulated in Benefield v. State of Florida, 77 what constitutes
breaking includes the lifting of a latch, turning a door knob,
unlocking a chain or hasp, removing a prop to or pushing open a
closed door of entrance to the house, even a closed screen door. 78
However, entry obtained through the use of deception, accomplished
without force is not a "breaking" requiring officers to first announce
their authority and purpose because the reasons behind the rule are
satisfied – there was no real likelihood of violence, no unwarranted
intrusion or privacy and no damage to the residence of the accused.
79
As to how long an officer implementing a search warrant must wait
before breaking open any door cannot be distilled into a constitutional
stopwatch. Each case has to be decided on a case-to-case basis
requiring an examination of all the circumstances. 80 The proper
trigger point in determining, under the "knock and announce" rule,
whether the police waited long enough before entering the residence
to execute a warrant, is when those inside should have been alerted
that the police wanted entry to execute a warrant. 81
In this case, we rule that the policemen complied with Section 7, Rule
126 of the Revised Rules of Criminal Procedure before entering the
condominium unit. Appellant Lee admitted, when she testified, that
the police officers were accompanied by Chuang, a Cantonese
interpreter, who informed her that his companions were police
officers and had a search warrant for the premises, and also explained
to her that the officers were going to search the condominium unit. 82
The appellant was sufficiently aware of the authority of the
policemen, who wore PARAC uniforms, to conduct the search and
their purpose. Moreover, Anciro, Jr. told the appellant, in English, to
bring some clothes with her as she was to be brought to the police
headquarters. Without such request being interpreted to the appellant,
the latter did as she was directed and took some clothes from the
cabinet atop the headboard. 83
The evidence on record shows that the police officers knocked on the
outer door before entering the condominium unit, and after a while,
the appellant opened the door and allowed the policemen and Pangan
to enter. Anciro, Jr. testified, thus: TaDCEc
Q Do you still recall Mr. Witness the identities of the security
guards who helped you or assisted you in implementing said search
warrants at Grand Villa Subdivision?
A The OIC of the Home Owners' Association, Antonio Pangan,
and the OIC of the Security Agency and two (2) other security
guards.
Q Do you recall the names of those persons you mentioned Mr.
Witness?
A I can hardly recall their names.
Q After having been assisted or coordinated with said security
officers and the OIC of the Home Owners' Association, what did you
do next?
A We told them that if we could ask them if they have a
duplicate key and also knock and introduce ourselves, knock on the
said condominium.
Q Did they do that, the request?
A Yes, Sir.
Q Meaning to say, you arrived at #19 Atlantic Drive, Pacific
Grand Villa?
A Yes, Sir.
Q While you were already at the door of that targeted house to
implement said search warrants, what happened next, if any? What
did you do after that?
A We knocked on the door and tried to find out if there was
somebody there because the Home Owners' Association doesn't have
any key for the door. We asked them to knock also because they are
the ones who have access with the tenants.
Q And after knocking, what happened next?
A There were around 5 minutes, no one was trying to open the
door. By that time, we thought they were still asleep.
Q And then after that what did you do, if any?
A We asked Mr. Pangan to knock and introduce himself and
another security guard to try to knock on the kitchen which is on the
back door. IASCTD
Q And then after that?
A And then after that, it was a female person who showed up to
(sic) the window of the kitchen and asked who we are in a sign
language.
Q And this female person who showed up to (sic) the window . .
. I withdraw. Were you able to have a good look on that female
person who showed herself thru the window?
A Yes, Sir.
Q And who is this person Mr. Witness?
A She was identified as Jogy Lee, Sir. 84
The appellant failed to prove that the policemen broke open the door
to gain entry into the condominium unit. She could have asked the
court for an ocular inspection to show the door which was allegedly
broken into by the policemen, or at least adduce in evidence pictures
showing the said breakage. The appellant failed to do so. The
testimony of the appellant is even belied by Pangan, who was a
witness for the appellant, who certified, along with three other
security guards, that nothing was destroyed and that the search was
conducted in a peaceful and orderly manner. 85
We are not impervious of the testimony of Pangan that the policemen
kicked the outer door to gain entry into the condominium unit, which
testimony is seemingly in derogation of his certification. However,
Pangan admitted that the policemen did so only after knocking on the
door for three (3) to five (5) minutes and after he had called Lao in a
loud voice and received no response from the appellants:
Q Did you come to know the persons wherein your presence was
being required according to your security guards?
A According to my security guards, they introduced themselves
as police operatives. aDSTIC
Q Did you comply with the invitation of these police authorities?
A Yes, they called me and according to them, they will search
Unit 19, that is what they told me.
Q Can you please tell us what time did the police operatives
conduct the search?
A I cannot recall anymore because the incident happened in
1996. I don't know what time was that.
Q When they conducted the search, were you there?
A I was there because that unit cannot be opened if the caretaker
is not present.
Q Are you trying to say that you were the one who opened the
door of that unit occupied by Henry Kau Chung?
A They kicked the door and when nobody opened the door, they
pushed the door and the door was opened.
Q They forcibly opened the door when nobody opened it?
A Kaya naman po ginawa 'yon dahil nandoon naman po ang
caretaker, wala naman pong masamang mangyayari dahil nandoon
naman po ang namamahala.
Q From the time you knocked at the door of this unit up to the
time that the police operatives forcibly break open the door, how
many minutes had elapsed?
A Matagal din po silang kumakatok sa pintuan. I said, "Mr.
Henry, pakibuksan n'yo ang pinto, would you mind to open the door,
kasi merong mga police officers na gustong ma-search itong unit mo.
Then, when nobody was answering, they forcibly opened the door.
Q Was there any other occupant other than Henry Kau Chung in
that unit at that time?
A At the second floor, they saw this Jogy Lee and her male
companion whom I do not know. aSADIC
Q But during the time that you were trying to seek entry to the
door, there was no one who responded, is that correct?
A Pardon, Sir?
Q At the time that you were trying to knock at the door, there
was no one who responded to your knocking at the door?
A Nobody was answering, Sir.
Q And that compelled the police operatives to open the door
forcibly?
A Yes, Sir. 86
xxx xxx xxx
COURT:
From the first time you knocked at the door, how long a time
lapsed before the police officer broke open the door?
A Matagal din po.
Q For how long?
A Maybe for about three to five minutes.
Q When nobody was answering, they forced open the door?
A Yes, Your Honor.
COURT:
Continue. 87
The appellant failed to prove, with clear and convincing evidence, her
contention that Anciro, Jr. placed the shabu on her bed before he
continued his search in the bedroom, and that she was a victim of
frame-up by the policemen. She relied on her testimony and those of
Pangan and Ferias that they did not see Anciro, Jr. discover and take
custody of the shabu in the cabinet. SHcDAI
The appellant's defense of frame-up is nothing new. It is a common
and standard line of defense in most prosecutions for violation of the
Dangerous Drugs Law. While such defense cannot and should not
always be considered as contrived, nonetheless, it is generally
rejected for it can easily be concocted but is difficult to prove. Police
officers are, after all, presumed to have acted regularly in the
performance of their official functions, in the absence of clear and
convincing proof to the contrary, or that they are motivated by ill-
will. 88
It is true, as testified by Pangan and Ferias that, they did not see
Anciro, Jr. discover and take custody of the shabu subject of this case.
However, as explained by Pangan, he remained in the ground floor of
the condominium unit while Anciro, Jr., Castillo and Margallo
searched the bedroom of appellant Lee and her lover Lao, and Ferias
proceeded to the room occupied by appellant Zhen Hua where he
conducted his search. Thus, Pangan testified:
Q When the master's bedroom was searched where Jogy Lee was
then, according to you, sleeping, did you accompany the PARAC
members?
A No, Sir, because I was talking to a member of the PARAC
downstairs.
Q What about the members of the security force?
A They were outside, Sir.
Q During the search made on the master's bedroom?
A Yes, Sir.
Q How about when the search was made in the room occupied
by Huang Zhen Hua, were you present then?
A No, Sir, I was still downstairs.
Q How about the other guards?
A They were also outside. 89
For his part, Ferias declared:
Q In other words, you did not go inside the biggest room?
A No, Sir.
Q You proceeded to another room where co-accused Huang
Zhen Hua was then sleeping?
A Yes, Sir. ETaHCD
Q What happened next?
A We woke up Huang Zhen Hua and we introduced ourselves to
him as police officers.
Q What was the reaction of Huang Zhenhua?
A He was surprised. 90
xxx xxx xxx
Q In other words, you did not go inside the biggest room?
A No, Sir.
Q You proceeded to another room where co-accused Huang
Zhen Hua was then sleeping?
A Yes, Sir.
Q What happened next?
A We woke up Huang Zhen Hua and we introduced ourselves to
him as police officers.
Q What was the reaction of Huang Zhen Hua?
A He was surprised. 91
Pangan testified that before the police officers conducted their search
in the second floor of the condominium unit, he did not see them
bring in anything: TCHEDA
Q But you are very sure that before the police officers searched
the unit, you did not see them bringing anything with them, they were
all empty-handed?
A I did not see, Sir. 92
No less than Pangan himself, a witness for the appellants, and three of
the security guards of the subdivision, who accompanied the
policemen in implementing the search warrants, certified that, what
was found inside the condominium unit and confiscated by the
policemen were two plastic bags which contained white crystalline
powder substances suspected to be shabu. 93
The appellant admitted that she saw shabu in her bedroom while the
policemen were there. She claimed that the policemen placed the
plastic bag on the bed before they started the search and that she
noticed the shabu only after he returned from the room of appellant
Zhen Hua to see if he was already awake is hard to believe.
First. We find it incredible that the policemen placed the shabu on the
appellant's bed, in her full view, for which the latter could be
prosecuted for planting evidence and, if convicted, sentenced to death
under Section 19 of Rep. Act 7659:
SECTION 19. Section 24 of Republic Act No. 6425, as amended,
known as the Dangerous Act of 1972, is hereby amended to read as
follows:
Sec. 24. Penalties for Government Officials and Employees and
Officers and Members of Police Agencies and the Armed Forces,
'Planting' of Evidence. — The maximum penalties provided for [in]
Section 3, 4(1), 5(1), 6, 7, 8, 9, 11, 12 and 13 of Article II and
Sections 14, 14-A, 15(1), 16 and 19 of Article III shall be imposed, if
those found guilty of any of the said offenses are government
officials, employees or officers, including members of police agencies
and the armed forces.
Any such above government official, employee or officer who is
found guilty of "planting" any dangerous drugs punished in Sections
3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15 and 16 of
Article III of this Act in the person or in the immediate vicinity of
another as evidence to implicate the latter, shall suffer the same
penalty as therein provided.
Second. The appellant failed to inform her counsel of the alleged
planting of evidence by the policemen; if she had done so, for sure,
the said counsel would have prepared her affidavit and filed the
appropriate motion in court for the suppression of the things/articles
seized by the policemen.
Third. The appellant failed to charge the policemen with planting of
evidence before or after she was charged of violation of Rep. Act No.
6425, as amended. SHADEC
Fourth. The appellant cannot even identify and describe the
policeman or policemen who allegedly planted the evidence.
The fact is that, as gleaned from the affidavit of arrest signed by
Anciro, Jr. and Ferias, the articles and substances found and
confiscated from the condominium unit of Lao and appellant Lee at
Atlantic Drive and at the Cityland condominium unit of Lao and
Chan were itemized as follows:
a. TWO (2) Big Transparent Plastic Bags containing about one
(1) kilo each of white crystalline granules later tested to be
Methamphetamine Hydrochloride or Shabu, a regulated drug;
b. ONE (1) Transparent Plastic Baby Feeding Bottle containing
undetermined quantity of suspected Shabu;
c. ONE (1) Small Plastic Canister also containing undetermined
amount of suspected Shabu . . .
d. Assorted Pieces of Shabu Paraphernalia consisting of
Improvised Tooters used for sniffing shabu, Improvised Burners used
for burning Shabu, aluminum foils, etc.;
xxx xxx xxx
a. TWO (2) Kettles/Pots containing more or less 1 1/2 kilos of
Raw Shabu or Methamphetamine Hydrochloride;
b. Two (2) Big Transparent Plastic Bags containing more or less
Two (2) Kilos of Shabu;
c. Three (3) Plastic Basins, small, medium, large, used for
containers of finished/cooked Shabu;
d. Several pieces of Plastic Strainers used for draining out
liquids from finished Shabu;
e. One (1) Plastic Container with liquid chemical of
undetermined element; HDAaIS
f. Several pieces of Spoons and ladles with traces of raw Shabu
used in stirring mixtures;
g. One (1) Electric Cooking Stove w/one coil burner;
h. One (1) Unit Card Making Machine;
i. One (1) Unit Card Stamping Machine;
j. Several pieces of Credit Cards and Telephone Cards; 94
Anciro, Jr. placed his initials on the plastic bags containing white
crystalline powder which were found and confiscated at Atlantic
Drive and, in the company of Ferias, delivered the same to the PNP
Crime Laboratory for examination, per the request of Police
Superintendent Janice P. de Guzman, the chief of the PARAC.
We agree with the appellant that she was not one of the accused
named in the search warrants. However, such fact did not proscribe
the policemen from arresting her and charging her of violation of
Rep. Act No. 6425, as amended. There was, in fine, probable cause
for her warrantless arrest independent of that found by Judge William
Bayhon when he issued the search warrants against Lao and Chan for
search of the condominium units at Atlantic Drive and Cityland.
Probable cause exists for the warrantless detention and arrest of one
at the premises being searched when the facts and circumstances
within their knowledge and of which they had reliable and
trustworthy information are sufficient to themselves warrant a
reasonable belief of a cautious person that an offense has been or is
being committed. 95 It has been held that: cEAaIS
Probable cause for the arrest of petitioner Diane Ker, while not
present at the time the officers entered the apartment to arrest her
husband, was nevertheless present at the time of her arrest. Upon their
entry and announcement of their identity, the officers were met not
only by George Ker but also by Diane Ker, who was emerging from
the kitchen. Officer Berman immediately walked to the doorway from
which she emerged and, without entering, observed the brick-shaped
package of marijuana in plain view. Even assuming that her presence
in a small room with the contraband in a prominent position on the
kitchen sink would not alone establish a reasonable ground for the
officers' belief that she was in joint possession with her husband, that
fact was accompanied by the officers' information that Ker had been
using his apartment as a base of operations for his narcotics activities.
Therefore, we cannot say that at the time of her arrest there were no
sufficient grounds for a reasonable belief that Diane Ker, as well as
her husband, were committing the offense of possession of marijuana
in the presence of the officers. 96
In Draper v. United States, 97 it was held that informations from a
reliable informant, corroborated by the police officer's observations as
to the accuracy of the description of the accused, and of his presence
at a particular place, is sufficient to establish probable cause. In this
case, the police officers received reliable information and verified,
after surveillance, that appellant Lee and Lao were living together as
husband and wife in the condominium unit and that appellant Lee
handled the accounting of the payments and proceeds of the illegal
drug trafficking activities of Lao. Indeed, the policemen found that
the appellant occupied the bedroom and slept in the same bed used by
Lao. The appellant took her clothes from the same cabinet where the
subject shabu and paraphernalia were found by Anciro, Jr. The
appellant had been living in the same condominium unit with Lao
since October 1, 1996 until her arrest on October 25, 1996. Along
with Lao, the appellant thus had joint control and possession of the
bedroom, as well as of the articles, paraphernalia, and the shabu
found therein. Such facts and circumstances are sufficient on which to
base a reasonable belief that the appellant had joint possession of the
regulated drugs found in the bedroom along with Lao, her live-in
partner, in line with our ruling in People v. Tira. 98 For the purpose
of prosecution for violation of the Dangerous Drugs Law, possession
can be constructive and need not be exclusive, but may be joint. 99
Admittedly, Anciro, Jr. seized and took custody of certain articles
belonging to the appellant and Lao which were not described in the
search warrants. However, the seizure of articles not listed in a search
warrant does not render the seizure of the articles described and listed
therein illegal; nor does it render inadmissible in evidence such
articles which were described in the warrant and seized pursuant
thereto. Moreover, it bears stressing that Anciro, Jr. saw the unlisted
articles when he and the other policemen implemented the search
warrants. Such articles were in plain view of Anciro, Jr. as he
implemented the search warrants and was authorized to seize the said
articles because of their close connection to the crime charged. As
held in Coolidge, Jr. v. New Hampshire: 100
An example of the applicability of the 'plain view' doctrine is the
situation in which the police have a warrant to search a given area for
specified objects, and in the course of the search come across some
other article of incriminating character . . . aTDcAH
Where the initial intrusion that brings the police within plain view of
such an article is supported, not by a warrant, but by one of the
recognized exceptions to the warrant requirement, the seizure is also
legitimate. Thus, the police may inadvertently come across evidence
while in 'hot pursuit' of a fleeing suspect . . . And an object that comes
into view during a search incident to arrest that is appropriately
limited in scope under existing law may be seized without a warrant .
. . Finally, the 'plain view' doctrine has been applied where a police
officer is not searching for evidence against the accused, but
nonetheless inadvertently comes across an incriminating object . . .
101
It cannot be denied that the cards, passbook, passport and other
documents and papers seen by the policemen have an intimate nexus
with the crime charged or, at the very least, incriminating. The
passport of the appellant would show when and how often she had
been in and out of the country. Her credit cards and bank book would
indicate how much money she had amassed while in the country and
how she acquired or earned the same. The pictures and those of the
other persons shown therein are relevant to show her relationship to
Lao and Chan. 102
Contrary to the claim of the appellant, it is not true that the trial court
failed to provide an interpreter when she testified. The records show
that a Cantonese interpreter attended the trial and interpreted her
testimony. The Rules of Court does not require the trial court to
provide the appellant with an interpreter throughout the trial. An
interpreter is required only if the witness on the stand testifies in a
language other than in English or is a deaf-mute. The appellant may
procure the services of an interpreter at her own expense.
Contrary to the claim of appellant Lee, the prosecution adduced proof
beyond reasonable doubt of her guilt of the crime charged. She and
Lao, her lover, had joint possession of the shabu which the policemen
found and confiscated from her bedroom. CDHaET
IN LIGHT OF ALL THE FOREGOING, the appeal of appellant
Huang Zhen Hua is GRANTED. The Decision of the Regional Trial
Court of Parañaque City, convicting him of the crime charged, is
REVERSED AND SET ASIDE. The said appellant is ACQUITTED
of said charge. The Director of the Bureau of Corrections is hereby
directed to release the said appellant from detention unless he is
detained for another cause or charge, and to submit to the Court,
within five (5) days from notice hereof, a report of his compliance
with the directive of the Court.
The appeal of appellant Jogy Lee is DENIED. The Decision dated
January 10, 1999, of the Regional Trial Court of Parañaque City,
convicting her of violation of Section 16, Rep. Act No. 6425 is
AFFIRMED. No costs.
SO ORDERED. HDCTAc
Puno, Austria-Martinez and Tinga, JJ ., concur.
Chico-Nazario, J ., is on leave.
FIRST DIVISION
[G.R. No. L-25434. July 25, 1975.]
HONORABLE ARSENIO N. ROLDAN, JR., in his capacity as
Acting Commissioner, Philippine Fisheries Commission, and
THE PHILIPPINE NAVY, petitioners, vs. HONORABLE
FRANCISCO ARCA, as Presiding Judge of the Court of First
Instance of Manila (Branch I) and MORABE, DE GUZMAN &
COMPANY, respondents.
Solicitor General Arturo A. Alafriz and Solicitor Augusto M .
Amores for petitioners.
J . C . Yuseco and A. R. Narvasa for private respondent.
SYNOPSIS
The Court of First Instance of Palawan ordered the seizure of two
vessels of respondent company in connection with illegal fishing with
dynamite committed within the territorial waters of Palawan.
Respondent company filed a complaint with application for a writ of
preliminary mandatory injunction with the Court of First Instance of
Manila. Respondent Judge issued the writ of preliminary mandatory
injunction after a bond was filed for the release of the vessels.
Petitioner's motion to reconsider the order was denied. Hence, this
petition for certiorari and prohibition with preliminary injunction to
restrain respondent judge from enforcing the questioned order.
The Supreme Court granted the petition ruling that respondent judge
committed a grave abuse of discretion in issuing the preliminary
mandatory injunction and further in denying the motion to reconsider
the same. It is basic that a court cannot interfere with the judgments,
orders and decrees of another court of concurrent or coordinate
jurisdiction having equal power to grant the relief sought by
injunction. Since the two vessels were already in custodia legis under
the sole control of the Palawan Court of First Instance, the Manila
Court of First Instance cannot interfere with and change that
possession. cdasia
Writ of preliminary mandatory injunction set aside as null and void.
SYLLABUS
1. ACTIONS; JURISDICTION; PLACE WHERE CRIMINAL
OFFENSE WAS COMMITTED DETERMINES JURISDICTION.
— The Court of First Instance of Palawan has jurisdiction to order the
seizure of boats caught in connection with illegal fishing with
dynamite within the territorial waters of Palawan. The rule is that "the
place where a criminal offense was committed not only determines
the venue of the action but is an essential element of jurisdiction."
2. ID.; ID.; ID.; COURT MAY NOT INTERFERE WITH
JUDGMENTS, ORDERS OR DECREES OF COURT OF
CONCURRENT/ COORDINATE JURISDICTION; REASON. —
One court cannot interfere with the judgments, order or decrees of
another court of concurrent or coordinate jurisdiction having equal
power to grant the relief sought by injunction; because if coordinate
courts were allowed to interfere with each other's judgments, decrees
or injunctions, the same would obviously lead to confusion and might
seriously hinder the administration of justice.
3. ID.; ID.; ID.; ID.; CASE AT BAR. — Where the vessels
which were subject to forfeiture as instruments of the crime to be
utilized as evidence in the criminal cases for illegal fishing committed
within the territorial waters of Palawan were already in custodia legis
under the sole control of the Palawan Court of First Instance, the
Manila Court of First Instance cannot interfere with and change that
possession.
4. ID.; DISMISSAL; PRELIMINARY WRIT CANNOT
SURVIVE THE MAIN CASE. — A preliminary writ, like any other
interlocutory order, cannot survive the main case of which it was but
an incident; because "an ancillary writ of preliminary injunction loses
its force and effect after the dismissal of the main petition."
5. FISHERIES ACT (ACT NO. 4003); FISHING WITH
DYNAMITE; PENALTY THEREOF. — Section 12 of the Fisheries
Act otherwise known as Act No. 4003, as amended, prohibits fishing
with dynamite or other explosives which is penalized by Section 76
thereof "by a fine of not less than P1,500.00 nor more than P5,000.00,
and by imprisonment for not less than one (1) year and six (6) months
nor more than five (5) years, aside from the confiscation and
forfeiture of all explosives, boats, tackles, apparel, furniture, and
other apparatus used in fishing in violation of Section 12 of this Act."
Section 78 of the same Fisheries Law provides that "in case of second
offense, the vessel, together with its tackles, apparel, furniture and
stores shall be forfeited to the Government."
6. ID.; ID.; PRESUMPTION THAT EXPLOSIVES ARE USED
IN FISHING. — Under the second paragraph of Section 12 of the
Fisheries Act "the possession and or finding of dynamite, blasting
caps and other explosives in any fishing boat shall constitute a
presumption that the said dynamite and/or blasting caps and
explosives are being used for fishing purposes in violation of this
Section, and that the possession or discovery in any fishing boat of
fish caught or killed by the use of dynamite or other explosives, under
expert testimony shall constitute a presumption that the owner, if
present in the fishing boat, or the fishing crew have been fishing with
dynamite or other explosives."
7. ID.; FISHING WITHOUT LICENSE; PENALTY
THEREFOR. — Under Section 78 of the Fisheries Act, as amended,
any person, association or corporation fishing in deep sea fishery
without the corresponding license prescribed in Section 17 and 22 of
Article V of the Fisheries Act or any other order or regulation
deriving force from its provisions shall be punished for each offense
by a fine of not more than P5,000.00 or imprisonment for not more
than one year, or both, in the discretion of the Court: . . . provided, . .
., That in case of second offense, the vessel together with its tackle,
apparel, furniture and stores shall be forfeited to the Government."
8. ID.; PHILIPPINE NAVY MAY ENFORCE FISHERIES
ACT. — Under Section 13 of Executive Order no. 389 of December
23, 1950, reorganizing the Armed Forces of the Philippines, the Navy
has the function, among others, "to assist the proper governmental
agencies in the enforcement of laws and regulations pertaining to . . .
fishing. . ."
9. TARIFF AND CUSTOMS CODE; AUTHORITY OF
PERSON EXERCISING POLICE AUTHORITY TO
SEARCH/SEIZE ANY VESSEL. — Section 2210 of the Tariff and
Customs Code, as amended by DP No. 34 of October 27, 1972,
authorizes any official or person exercising police authority under the
provisions of the Code, to search and seize any vessel or air craft as
well as any trunk, package, bar or envelope on board for any breach
or violation of the customs and tariff laws.
10. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT
AGAINST UNREASONABLE SEARCH/SEIZURE; EXCEPTION,
REASON. — Search and seizure without search warrant of vessels
and aircraft for violations of the custom laws have been the traditional
exception to the constitutional requirement of a search warrant,
because the vessel can be quickly moved out of the locality in which
the search warrant must be sought before such warrant could be
secured; hence, it is not practicable to require a search warrant before
such search or seizure can be constitutionally effected.
11. ID.; ID.; ID.; SEARCH/SEIZURE AS AN INCIDENT OF
LAWFUL ARREST. — Another exception to the constitutional
requirements of a search warrant for a valid search and seizure is a
search or seizure as an incident of a lawful arrest. Under our Rules of
Court a police officer or a private individual may, without a warrant,
arrest a person (a) who has committed, is actually committing or is
about to commit an offense in his presence; (b) who is reasonably
believed to have committed an offense which has been actually
committed; or (c) who is a prisoner who has escaped from
confinement while serving a final judgment or from temporary
detention during the pendency of his case or while being transferred
from one confinement to another (Sec. 6, Rule 113, Revised Rules of
Court).
12. ID.; ID.; ID.; ID.; CASE AT BAR. — Where the members of
the crew of fishing vessels were caught in flagrante illegally fishing
with dynamite and without the requisite license, their apprehension
without a warrant of arrest while committing a crime was lawful.
Consequently, the seizure of the vessel, its equipment and dynamites
therein was equally valid as an incident to a lawful arrest.
13. COMPROMISE AGREEMENT; COMPROMISE DOES
NOT COVER INSTANT CASE. — The alleged compromise
approved by the Secretary of Agriculture and Natural Resources
cannot be invoked by the respondents because the same referred to
about thirty (30) violations of the Fisheries Law committed by the
private respondent from March 28, 1963 to March 11, 1964. The
violation by the two vessels of private respondent, by reason of which
these were apprehended and detained by the Philippine Navy upon
request of the Commissioner of Fisheries, were committed on August
5 or 6, 1965.
14. ID.; WHEN THE SAME MAY BE AVAILED OF. — The
power to compromise would exist only before a criminal prosecution
is instituted; otherwise the Department Secretary or any of his sub-
alterns can render criminal prosecutions for violation of the fisheries
law a mere mockery. Section 80 (j) of Act No. 4003, as amended,
precludes such a compromise the moment the Fisheries
Commissioner decides to prosecute the criminal action in accordance
with Section 76 and 78 of the other penal provisions of the fisheries
law.
15. WORDS AND PHRASES; "VESSEL", CONSTRUED. —
The two vessels in the case at bar fall under the term "vessel" used in
Secs. 17, 76 and 78, as well as the term utilized in the second
paragraph of Section 76 of the Fisheries Act. They can also fall under
the term "fishing equipment" employed in Section 4 of Republic Act
3512; because a fishing equipment is never complete and cannot be
effectively used in offshore or deep sea fishing without the fishing
boat or fishing vessel itself. And these two vessels of private
respondent certainly come under the term "fishing vessels" employed
in paragraph 5 of Section 4 of the same Republic Act 3512 creating
the fisheries Commission. The word "boat" in its ordinary sense,
means any water craft. The fishing boats in the instant case are
likewise vessels within the meaning of the term "vessel" used in
Section 903 and 2210 of the Tariff and Customs Code.
D E C I S I O N
MAKASIAR, J p:
A petition for certiorari and prohibition with preliminary injunction to
restrain respondent Judge from enforcing his order dated October 18,
1965, and the writ of preliminary mandatory injunction thereunder
issued.
On April 3, 1964, respondent company filed with the Court of First
Instance of Manila a civil case docketed as No. 56701 against
petitioner Fisheries Commissioner Arsenio N. Roldan, Jr., for the
recovery of fishing vessel Tony Lex VI (one of two fishing boats in
question) which had been seized and impounded by petitioner
Fisheries Commissioner through the Philippine Navy.
On April 10, 1964, respondent company prayed for a writ of
preliminary mandatory injunction with respondent court, but said
prayer was, however, denied.
On April 28, 1964, the Court of First Instance of Manila set aside its
order of April 10, 1964 and granted respondent company's motion for
reconsideration praying for preliminary mandatory injunction. Thus,
respondent company took possession of the vessel Tony Lex VI from
herein petitioners by virtue of the above said writ.
On December 10, 1964, the Court of First Instance of Manila
dismissed Civil Case No. 56701 for failure of therein petitioner
(respondent company herein) to prosecute as well as for failure of
therein defendants (petitioners herein) to appear on the scheduled date
of hearing. The vessel, Tony Lex VI or Srta. Winnie however,
remained in the possession of respondent company.
On July 20, 1965, petitioner Fisheries Commissioner requested the
Philippine Navy to apprehend vessels Tony Lex VI and Tony Lex III,
also respectively called Srta. Winnie and Srta. Agnes, for alleged
violations of some provisions of the Fisheries Act and the rules and
regulations promulgated thereunder.
On August 5 or 6, 1965, the two fishing boats were actually seized for
illegal fishing with dynamite. Fish caught with dynamite and sticks of
dynamite were then found aboard the two vessels.
On August 18, 1965, the Fisheries Commissioner requested the
Palawan Provincial Fiscal to file criminal charges against the crew
members of the fishing vessels.
On September 30, 1965, there were filed in the Court of First Instance
of Palawan a couple of informations, one against the crew members
of Tony Lex III, and another against the crew members of Tony Lex
VI — both for violations of Act No. 4003, as amended by
Commonwealth Acts Nos. 462, 659 and 1088, i.e., for illegal fishing
with the use of dynamite. On the same day, the Fiscal filed an ex
parte motion to hold the boats in custody as instruments and therefore
evidence of the crime (p. 54, rec.), and cabled the Fisheries
Commissioner to detain the vessels (p. 56, rec.)
On October 2 and 4, likewise, the Court of First Instance of Palawan
ordered the Philippine Navy to take the boats in custody.
On October 2, 1965, respondent company filed a complaint with
application for preliminary mandatory injunction, docketed as Civil
Case No. 62799 with the Court of First Instance of Manila against
herein petitioners. Among others, it was alleged that at the time of the
seizure of the fishing boats in issue, the same were engaged in
legitimate fishing operations off the coast of Palawan; that by virtue
of the offer of compromise dated September 13, 1965 by respondent
company to the Secretary of Agriculture and Natural Resources, the
numerous violations of the Fishery Laws, if any, by the crew
members of the vessels were settled.
On October 9, 1965, petitioners, represented by the Solicitor General,
opposed the above-mentioned complaint, alleging among others, that:
(1) the issuance of the writ would disrupt the status quo of the parties
and would render nugatory any decision of the respondent court
favorable to the defendant; (2) that the vessels, being instruments of a
crime in criminal cases Nos. 3416 and 3417 filed with the Court of
First Instance of Palawan, the release of the vessels sans the
corresponding order from the above-mentioned court would deprive
the same of its authority to dispose of the vessels in the criminal cases
and the Provincial Fiscal would not be able to utilize said vessels as
evidence in the prosecution of said cases; (3) that as petitioners herein
were in possession of one of the vessels in point, they cannot now be
deprived of the legal custody thereof by reason of the dismissal of
Civil Case No. 56701; (4) that petitioner Fisheries Commissioner has
the power to seize and detain the vessels pursuant to Section 5 of
Republic Act No 3215 in relation to Sections 903 and 2210 of the
Revised Tariff and Customs Code: (5) that respondents herein have
not exhausted administrative remedies before coming to court; (6)
that the compromise agreement approved by the Secretary of
Agriculture and Natural Resources and indorsed to the Fisheries
Commissioner is never a bar to the prosecution of the crime
perpetrated by the crew members of the vessels belonging to
respondent company.
And again, on October 15, 1965, herein petitioners filed their
memorandum praying for the denial of the application for preliminary
mandatory injunction.
On the same day, October 15, 1965, herein petitioners filed an urgent
motion to submit additional documentary evidence.
On October 18, 1965, herein petitioners, as defendants in said Civil
Case No. 62799, filed their answer to the complaint with affirmative
defenses, reiterating the grounds in their opposition to the issuance of
a writ of preliminary mandatory injunction and adding that herein
private respondent admitted committing the last violation when it
offered in its letter dated September 21, 1965 to the Acting
Commissioner of Fisheries, to compromise said last violation (Exh.
12, pp. 60-61, rec.)
On said day, October 18, 1965, the respondent Judge issued the
challenged order granting the issuance of the writ of preliminary
mandatory injunction and issued the preliminary writ upon the filing
by private respondent of a bond of P5,000.00 for the release of the
two vessels (pp. 95-102, rec.)
On October 19, 1965, herein petitioners filed a motion for
reconsideration of the order issuing the preliminary writ on October
18, 1965 on the ground, among others, that on October 18, 1965 the
Philippine Navy received from the Palawan Court of First Instance
two orders dated October 2 and 4, 1965 requiring the Philippine Navy
to hold the fishing boats in custody and directing that the said vessels
should not be released until further orders from the Court, and that the
bond of P5,000.00 is grossly insufficient to cover the Government's
losses in case the two vessels, which are worth P495,000.00, are
placed beyond the reach of the Government, thus frustrating their
forfeiture as instruments of the crime (pp. 103-109, rec.)
On November 23, 1965, respondent Judge denied the said motion for
reconsideration (p. 110, rec.)
WE rule that the respondent Judge of the Manila Court of First
Instance acted without jurisdiction and with grave abuse of discretion
when he issued on October 18, 1965 the order directing the issuance
of a writ of preliminary mandatory injunction and when he refused to
reconsider the same.
I
When the respondent Judge issued the challenged order on October
18, 1965 and the writ of preliminary mandatory injunction pursuant
thereto, the fishing vessels were already under the jurisdiction of the
Court of First Instance of Palawan by virtue of its orders of October 2
and 4, 1965, upon motion of the Provincial Fiscal (pp. 54, 55, rec.),
directing the Philippine Navy to detain (pp. 108, 109, rec.) said
vessels, which are subject to forfeiture as instruments of the crime, to
be utilized as evidence in Criminal Cases Nos. 3416 and 3417 for
illegal fishing pending in said court (pp. 54-55, rec.). The said vessels
were seized while engaging in prohibited fishing within the territorial
waters of Palawan (pp. 45, 48,-53, rec.) and hence within the
jurisdiction of the Court of First Instance of Palawan, in obedience to
the rule that "the place where a criminal offense was committed not
only determines the venue of the action but is an essential element of
jurisdiction" (Lopez vs. Paras, L-25795, Oct. 29, 1966, 18 SCRA 616,
619). The jurisdiction over the vessels acquired by the Palawan Court
of First Instance cannot be interfered with by another Court of First
Instance. The orders of October 2 and 4, 1965 by the Palawan Court
of First Instance expressly direct the Philippine Navy "to hold in
custody" the two vessels and that "same should not be released
without prior order or authority from this Court" (pp. 108, 109, rec.).
Only the Palawan court can order the release of the two vessels. Not
even the Secretary of Agriculture and Natural Resources nor the
Fisheries Commissioner can direct that the fishing boats be turned
over to private respondent without risking contempt of court.
The grave abuse of discretion committed by the respondent Judge was
heightened by the fact that he did not reconsider his order of October
18, 1965 after he was informed by petitioners in their motion for
reconsideration filed on October 19, 1965 that the Palawan Court of
First Instance had already issued the two orders dated October 2 and
4, 1965 directing the Philippine Navy to hold in custody the fishing
boats until further orders.
It is basic that one court cannot interfere with the judgments, orders
or decrees of another court of concurrent or coordinate jurisdiction
having equal power to grant the relief sought by injunction; because if
coordinate courts were allowed to interfere with each other's
judgments, decrees or injunctions, the same would obviously lead to
confusion and might seriously hinder the administration of justice
(Ongsinco, etc. vs. Tan, et al., 97 Phil. 330; PNB vs. Javellana, 92
Phil. 525; Montesa vs. Manila Cordage Company, 92 Phil. 25;
Hubahib vs. Insular Drug Company, 64 Phil. 119; Hacbang, et al. vs.
The Leyte Auto Bus Company, et al., G.R. No. L-17907, May 30,
1963, 8 SCRA, 103, 107-109; NPC vs. Hon. Jesus de Vera, G.R. No.
L-15763, Dec. 22, 1961, 3 SCRA, 646, 648; Cabigao vs. del Rosario,
44 Phil. 182; Araneta & Uy vs. Commonwealth Insurance Company,
55 OG 431; Moran, Comments on the Rules of Court, Vol. III, 1970
ed., p. 64).
As early as October 2 and 4, 1965, the two boats were already in
custodia legis under the sole control of the Palawan Court of First
Instance. The Manila Court of First Instance cannot interfere with and
change that possession (Hacbang vs. Leyte Bus Co., Inc., supra; NPC
vs. Hon. Jesus de Vera, supra).
It is immaterial that the vessels were then in the Philippine Navy
basin in Manila; for the same in no way impugns the jurisdiction
already vested in the Palawan court, which has custody thereof
through the Philippine Navy. This is analogous to the situation in
Colmenares versus Villar (L-27124, May 29, 1970, 33 SCRA 186,
188-9), wherein We ruled "where the illegal possession of firearms
was committed in the town where the Court sits, the fact that the
firearms were confiscated from the accused in another town does not
affect the jurisdiction of the Court" (pp. 186, 189).
It is likewise of no moment that the herein respondents were not
notified by the herein petitioners of the seizure of the questioned
vessels by the Philippine Navy, because such previous notice is not
required by law.
II
The dismissal on December 10, 1964 of the first Civil Case No.
56701 by the Court of First Instance of Manila had the necessary
effect of automatically dissolving the writ of preliminary mandatory
injunction issued therein on April 28, 1964, directing the return of
fishing vessel Tony Lex VI (pp. 156-157, rec.). Such a preliminary
writ, like any other interlocutory order, cannot survive the main case
of which it was but an incident; because "an ancillary writ of
preliminary injunction loses its force and effect after the dismissal of
the main petition" (National Sugar Workers' Union, etc., vs. La
Carlota Sugar Central, et al., L-23569, May 25, 1972, 45 SCRA 104,
109; Lazaro vs. Mariano, 59 Phil. 627, 631; Saavedra vs. Ibañez, 56
Phil. 33, 37; Hi Caiji vs. Phil. Sugar Estate and Development
Company, 50 Phil. 592, 594).
Moreover, the writ of preliminary injunction issued on April 28, 1964
in Civil Case No. 56701 was directed against the detention of the
vessel Tony Lex VI for violations committed prior to August 5, 1965,
and therefore cannot and does not extend to the seizure and detention
of said vessel for violations on August 5 or 6, 1965, which violations
were not and could not possibly be the subject-matter of said Civil
Case No. 56701 which was filed on April 3, 1964 (p. 12, rec.)
III
Herein petitioners can validly direct and/or effect the seizure of the
vessels of private respondent for illegal fishing by the use of
dynamite and without the requisite licenses.
Section 4 of Republic Act No. 3512 approved on March 20, 1963
empowers the Fisheries Commissioner to carry out the provisions of
the Fisheries Act, as amended, and all rules and regulations
promulgated thereunder, to make searches and seizures personally or
through his duly authorized representatives in accordance with the
Rules of Court, of "explosives such as . . . dynamites and the like . . .;
including fishery products, fishing equipment, tackle and other things
that are subject to seizure under existing fishery laws"; and "to
effectively implement the enforcement of existing fishery laws on
illegal fishing."
Paragraph 5 of Section 4 of the same Republic Act 3512 likewise
transferred to and vested in the Philippine Fisheries Commission "all
the powers, functions and duties heretofore exercised by the Bureau
of Customs, Philippine Navy and Philippine Constabulary over
fishing vessels and fishery matters . . . "
Section 12 of the Fisheries Act, otherwise known as Republic Act No.
4003, as amended, prohibits fishing with dynamites or other
explosives which is penalized by Section 76 thereof "by a fine of not
less than P1,500.00 nor more than P5,000.00, and by imprisonment
for not less than one (1) year and six (6) months nor more than five
(5) years, aside from the confiscation and forfeiture of all explosives,
boats, tackles, apparel, furniture, and other apparatus used in fishing
in violation of said Section 12 of this Act." Section 78 of the same
Fisheries Law provides that "in case of a second offense, the vessel,
together with its tackle, apparel, furniture and stores shall be forfeited
to the Government."
The second paragraph of Section 12 also provides that "the possession
and/or finding, of dynamite, blasting caps and other explosives in any
fishing boat shall constitute a presumption that the said dynamite
and/or blasting caps and explosives are being used for fishing
purposes in violation of this Section, and that the possession or
discover in any fishing boat or fish caught or killed by the use of
dynamite or other explosives, under expert testimony, shall constitute
a presumption that the owner, if present in the fishing boat, or the
fishing crew have been fishing with dynamite or other explosives."
(Italics supplied).
Under Section 78 of the Fisheries Act, as amended, any person,
association or corporation fishing in deep sea fishery without the
corresponding license prescribed in Sections 17 to 22 Article V of the
Fisheries Act or any other order or regulation deriving force from its
provisions, "shall be punished for each offense by a fine of not more
than P5,000.00, or imprisonment, for not more than one year, or both,
in the discretion of the Court; Provided, That in case of an association
or corporation, the President or manager shall be directly responsible
for the acts of his employees or laborers if it is proven that the latter
acted with his knowledge; otherwise the responsibility shall extend
only as far as fine is concerned: Provided, further, That in the absence
of a known owner of the vessel, the master, patron or person in
charge of such vessel shall be responsible for any violation of this
Act: and Provided, further, That in case of a second offense, the
vessel together with its tackle, apparel, furniture and stores shall be
forfeited to the Government" (Emphasis supplied).
Under Section 13 of Executive Order No. 389 of December 23, 1950,
reorganizing the Armed Forces of the Philippines, the Philippine
Navy has the function, among others, "to assist the proper
governmental agencies in the enforcement of laws and regulations
pertaining to . . . Fishing . . . (46 OG 5905, 5911).
Section 2210 of the Tariff and Customs Code, as amended by PD No.
34 of October 27, 1972, authorized any official or person exercising
police authority under the provisions of the Code, to search and seize
any vessel or air craft as well as any trunk, package, bag or envelope
on board and to search any person on board for any breach or
violation of the customs and tariff laws.
When the Philippine Navy, upon request of the Fisheries
Commissioner, apprehended on August 5 or 6, 1965 the fishing boats
Tony Lex III and Tony Lex VI, otherwise known respectively as Srta.
Agnes and Srta. Winnie, these vessels were found to be without the
necessary license in violation of Section 903 of the Tariff and
Customs Code and therefore subject to seizure under Section 2210 of
the same Code, and illegally fishing with explosives and without
fishing license required by Sections 17 and 18 of the Fisheries Law
(pp. 46-47, rec.)
The operation of the fishing boat Tony Lex III was suspended
pursuant to the order dated January 28, 1964 issued by the
Commissioner of Fisheries pending the final determination of the
case against it for illegal fishing with explosives on January 21, 1964
(p. 34, rec.) and remained suspended until its apprehension on August
5 or 6, 1965 (p. 46, rec.)
For illegal fishing with explosives on March 23, 1963, the renewal of
the fishing boat license of Tony Lex VI was suspended for one year
from the time said boat was moored at Pier 14 at North Harbor,
Manila, without prejudice to the institution of a criminal case against
its owner and/or operator, pursuant to the order dated May 19, 1964
issued by the Commissioner of Fisheries (pp. 35-36, rec.), the motion
for reconsideration of which order was denied by the Commissioner
of Fisheries in an order dated August 17, 1964 (pp. 41-42, rec.)
For illegal fishing with dynamite on March 28, 1963, the operation of
Tony Lex VI was suspended by the Commissioner of Fisheries in an
order dated April 1, 1963 (p. 62, rec.)
For illegal fishing again with explosives on April 25, 1963, the
fishing boat Tony Lex VI together with its tackle, apparel, furniture
and all other apparatus used in fishing was ordered confiscated and
forfeited in favor of the Government and a fine in the amount of
P5,000.00 was imposed on its owners-operators, without prejudice to
the filing of the necessary criminal action, pursuant to the order of
June 2, 1964 of the Commissioner of Fisheries (pp. 37-38, rec.)
Again, for committing the same violation on June 19, 1963, a fine in
the amount of P5,000.00 was imposed on the owners-operators of
fishing boat Tony Lex VI pursuant to the order of June 4, 1964 issued
by the Commissioner of Fisheries (pp. 39-40, rec.)
It appears, therefore, that since January 28,1964, the fishing boat
Tony Lex III was suspended from operating and was ordered moored
at Pier 14, North Harbor, Manila (pp. 34, 46-47, rec.); and that the
fishing vessel Tony Lex VI was suspended for one year from May
24,1964 and was actually ordered forfeited to the Government
pursuant to the order of June 2, 1964 for repeated violations of
Section 12 of the Fisheries Act (pp. 37-38, rec.). As a matter of fact,
when apprehended on August 5 or 6, 1965, both vessels were found
to be without any license or permit for coastwise trade or for fishing
and unlawfully fishing with explosives, for which reason their owners
and crew were accordingly indicted by the Provincial Fiscal of
Palawan for illegal fishing with dynamite and without the requisite
license (pp. 48-53, rec.)
As heretofore intimated, the two fishing boats were apprehended on
numerous occasions for fishing with dynamite from March 28, 1963
to March 11, 1964, which violations private respondent, as owner-
operator, sought to compromise by offering to pay a fine of
P21,000.00 for all said prior violations.
Such previous violations of Sections 12, 17 and 18 of the Fisheries
Act committed by the two fishing boats, Tony Lex III and Tony Lex
VI, from March 28, 1963 until August 5 or 6, 1965, rendered the said
vessels subject to forfeiture under Sections 76 and 78 of the Fisheries
Act, as amended.
Search and seizure without search warrant of vessels and air crafts for
violations of the customs laws have been the traditional exception to
the constitutional requirement of a search warrant, because the vessel
can be quickly moved out of the locality or jurisdiction in which the
search warrant must be sought before such warrant could be secured;
hence it is not prac