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G.R. No.

L-64261 December 26, 1984


JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA
SERVICES, INC., petitioners,
vs.
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE
CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND,
THE JUDGE ADVOCATE GENERAL, ET AL., respondents.
Lorenzo M. Taada, Wigberto E. Taada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo,
Jejomar Binay and Rene Saguisag for petitioners.
The Solicitor General for respondents.

ESCOLIN, J.:
Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and
prohibitory injunction is the validity of two [2] search warrants issued on December 7, 1982 by
respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal
[Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City, and
784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the
"Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office and
printing machines, equipment, paraphernalia, motor vehicles and other articles used in the
printing, publication and distribution of the said newspapers, as well as numerous papers,
documents, books and other written literature alleged to be in the possession and control of
petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized.
Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued
for the return of the seized articles, and that respondents, "particularly the Chief Legal Officer,
Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of Quezon
City, their representatives, assistants, subalterns, subordinates, substitute or successors" be
enjoined from using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and
the other accused in Criminal Case No. Q- 022782 of the Regional Trial Court of Quezon City,
entitled People v. Jose Burgos, Jr. et al. 1
In our Resolution dated June 21, 1983, respondents were required to answer the petition. The
plea for preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983,
later reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents.
At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ
of preliminary mandatory injunction, manifested that respondents "will not use the aforementioned
articles as evidence in the aforementioned case until final resolution of the legality of the seizure
of the aforementioned articles. ..." 2 With this manifestation, the prayer for preliminary prohibitory
injunction was rendered moot and academic.
Respondents would have this Court dismiss the petition on the ground that petitioners had come
to this Court without having previously sought the quashal of the search warrants before
respondent judge. Indeed, petitioners, before impugning the validity of the warrants before this
Court, should have filed a motion to quash said warrants in the court that issued them. 3 But this
procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness
and urgency of the constitutional issues raised not to mention the public interest generated by the
search of the "We Forum" offices, which was televised in Channel 7 and widely publicized in all

metropolitan dailies. The existence of this special circumstance justifies this Court to exercise its
inherent power to suspend its rules. In the words of the revered Mr. Justice Abad Santos in the
case of C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the power of the court [Supreme
Court] to suspend its rules or to except a particular case from its operation, whenever the
purposes of justice require it...".
Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is
laid on the fact that while said search warrants were issued on December 7, 1982, the instant
petition impugning the same was filed only on June 16, 1983 or after the lapse of a period of
more than six [6] months.
Laches is failure or negligence for an unreasonable and unexplained length of time to do that
which, by exercising due diligence, could or should have been done earlier. It is negligence or
omission to assert a right within a reasonable time, warranting a presumption that the party
entitled to assert it either has abandoned it or declined to assert it. 5
Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the
petition thus:
Respondents should not find fault, as they now do [p. 1, Answer, p. 3,
Manifestation] with the fact that the Petition was filed on June 16, 1983, more
than half a year after the petitioners' premises had been raided.
The climate of the times has given petitioners no other choice. If they had waited
this long to bring their case to court, it was because they tried at first to exhaust
other remedies. The events of the past eleven fill years had taught them that
everything in this country, from release of public funds to release of detained
persons from custody, has become a matter of executive benevolence or
largesse
Hence, as soon as they could, petitioners, upon suggestion of persons close to
the President, like Fiscal Flaminiano, sent a letter to President Marcos, through
counsel Antonio Coronet asking the return at least of the printing equipment and
vehicles. And after such a letter had been sent, through Col. Balbino V. Diego,
Chief Intelligence and Legal Officer of the Presidential Security Command, they
were further encouraged to hope that the latter would yield the desired results.
After waiting in vain for five [5] months, petitioners finally decided to come to
Court. [pp. 123-124, Rollo]
Although the reason given by petitioners may not be flattering to our judicial system, We find no
ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial
efforts exerted by petitioners quite evidently negate the presumption that they had abandoned
their right to the possession of the seized property, thereby refuting the charge of laches against
them.
Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked
as evidence some of the seized documents in Criminal Case No. Q- 022872, he is now estopped
from challenging the validity of the search warrants. We do not follow the logic of respondents.
These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he
pleases with them, within legal bounds. The fact that he has used them as evidence does not and
cannot in any way affect the validity or invalidity of the search warrants assailed in this petition.

Several and diverse reasons have been advanced by petitioners to nullify the search warrants in
question.
1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath
or affirmation of the applicant and his witnesses, as mandated by the above-quoted constitutional
provision as wen as Sec. 4, Rule 126 of the Rules of Court . 6 This objection, however, may
properly be considered moot and academic, as petitioners themselves conceded during the
hearing on August 9, 1983, that an examination had indeed been conducted by respondent judge
of Col. Abadilla and his witnesses.
2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No.
19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon
City, respectively. Objection is interposed to the execution of Search Warrant No. 20-82[b] at the
latter address on the ground that the two search warrants pinpointed only one place where
petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e.,
No. 19, Road 3, Project 6, Quezon City. This assertion is based on that portion of Search Warrant
No. 20- 82[b] which states:
Which have been used, and are being used as instruments and means of
committing the crime of subversion penalized under P.D. 885 as amended and he
is keeping and concealing the same at 19 Road 3, Project 6, Quezon City.
The defect pointed out is obviously a typographical error. Precisely, two search warrants were
applied for and issued because the purpose and intent were to search two distinct premises. It
would be quite absurd and illogical for respondent judge to have issued two warrants intended for
one and the same place. Besides, the addresses of the places sought to be searched were
specifically set forth in the application, and since it was Col. Abadilla himself who headed the
team which executed the search warrants, the ambiguity that might have arisen by reason of the
typographical error is more apparent than real. The fact is that the place for which Search
Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue,
Quezon City, which address appeared in the opening paragraph of the said warrant. 7 Obviously
this is the same place that respondent judge had in mind when he issued Warrant No. 20-82 [b].
In the determination of whether a search warrant describes the premises to be searched with
sufficient particularity, it has been held "that the executing officer's prior knowledge as to the place
intended in the warrant is relevant. This would seem to be especially true where the executing
officer is the affiant on whose affidavit the warrant had issued, and when he knows that the judge
who issued the warrant intended the building described in the affidavit, And it has also been said
that the executing officer may look to the affidavit in the official court file to resolve an ambiguity in
the warrant as to the place to be searched." 8
3. Another ground relied upon to annul the search warrants is the fact that although the warrants
were directed against Jose Burgos, Jr. alone, articles b belonging to his co-petitioners Jose
Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized.
Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized
under a search warrant, to wit:
Sec. 2. Personal Property to be seized. A search warrant may be issued for
the search and seizure of the following personal property:
[a] Property subject of the offense;

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


the offense; and
[c] Property used or intended to be used as the means of
committing an offense.
The above rule does not require that the property to be seized should be owned by the person
against whom the search warrant is directed. It may or may not be owned by him. In fact, under
subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen
property. Necessarily, stolen property must be owned by one other than the person in whose
possession it may be at the time of the search and seizure. Ownership, therefore, is of no
consequence, and it is sufficient that the person against whom the warrant is directed has control
or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to
have in relation to the articles and property seized under the warrants.
4. Neither is there merit in petitioners' assertion that real properties were seized under the
disputed warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery,
receptables, instruments or implements intended by the owner of the tenement for an industry or
works which may be carried on in a building or on a piece of land and which tend directly to meet
the needs of the said industry or works" are considered immovable property. In Davao Sawmill
Co. v. Castillo 9 where this legal provision was invoked, this Court ruled that machinery which is
movable by nature becomes immobilized when placed by the owner of the tenement, property or
plant, but not so when placed by a tenant, usufructuary, or any other person having only a
temporary right, unless such person acted as the agent of the owner.
In the case at bar, petitioners do not claim to be the owners of the land and/or building on which
the machineries were placed. This being the case, the machineries in question, while in fact
bolted to the ground remain movable property susceptible to seizure under a search warrant.
5. The questioned search warrants were issued by respondent judge upon application of Col.
Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom. 10 The application was
accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members of
the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a surveillance
of the premises prior to the filing of the application for the search warrants on December 7, 1982.
It is contended by petitioners, however, that the abovementioned documents could not have
provided sufficient basis for the finding of a probable cause upon which a warrant may validly
issue in accordance with Section 3, Article IV of the 1973 Constitution which provides:
SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other responsible officer
as may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such
facts and circumstances which would lead a reasonably discreet and prudent man to believe that
an offense has been committed and that the objects sought in connection with the offense are in
the place sought to be searched. And when the search warrant applied for is directed against a
newspaper publisher or editor in connection with the publication of subversive materials, as in the
case at bar, the application and/or its supporting affidavits must contain a specification, stating
with particularity the alleged subversive material he has published or is intending to publish. Mere
generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that
petitioner "is in possession or has in his control printing equipment and other paraphernalia, news

publications and other documents which were used and are all continuously being used as a
means of committing the offense of subversion punishable under Presidential Decree 885, as
amended ..." 12 is a mere conclusion of law and does not satisfy the requirements of probable
cause. Bereft of such particulars as would justify a finding of the existence of probable cause,
said allegation cannot serve as basis for the issuance of a search warrant and it was a grave
error for respondent judge to have done so.
Equally insufficient as basis for the determination of probable cause is the statement contained in
the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered and
collated by our unit clearly shows that the premises above- mentioned and the articles and things
above-described were used and are continuously being used for subversive activities in
conspiracy with, and to promote the objective of, illegal organizations such as the Light-a-Fire
Movement, Movement for Free Philippines, and April 6 Movement." 13
In mandating that "no warrant shall issue except upon probable cause to be determined by the
judge, ... after examination under oath or affirmation of the complainant and the witnesses he
may produce; 14 the Constitution requires no less than personal knowledge by the complainant
or his witnesses of the facts upon which the issuance of a search warrant may be justified. In
Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required must refer to the truth
of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose
thereof is to convince the committing magistrate, not the individual making the affidavit and
seeking the issuance of the warrant, of the existence of probable cause." As couched, the quoted
averment in said joint affidavit filed before respondent judge hardly meets the test of sufficiency
established by this Court in Alvarez case.
Another factor which makes the search warrants under consideration constitutionally
objectionable is that they are in the nature of general warrants. The search warrants describe the
articles sought to be seized in this wise:
1] All printing equipment, paraphernalia, paper, ink, photo (equipment,
typewriters, cabinets, tables, communications/recording equipment, tape
recorders, dictaphone and the like used and/or connected in the printing of the
"WE FORUM" newspaper and any and all documents communication, letters and
facsimile of prints related to the "WE FORUM" newspaper.
2] Subversive documents, pamphlets, leaflets, books, and other publication to
promote the objectives and piurposes of the subversive organization known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement;
and,
3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and
other subversive materials and propaganda, more particularly,
1] Toyota-Corolla, colored yellow with Plate No. NKA 892;
2] DATSUN pick-up colored white with Plate No. NKV 969
3] A delivery truck with Plate No. NBS 524;
4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665;
and,

5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with
marking "Bagong Silang."
In Stanford v. State of Texas 16 the search warrant which authorized the search for "books,
records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written
instruments concerning the Communist Party in Texas," was declared void by the U.S. Supreme
Court for being too general. In like manner, directions to "seize any evidence in connectionwith
the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a
search warrant which authorized the seizure of any "paraphernalia which could be used to violate
Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of
conspiracy]" was held to be a general warrant, and therefore invalid. 17 The description of the
articles sought to be seized under the search warrants in question cannot be characterized
differently.
In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history:
the era of disaccord between the Tudor Government and the English Press, when "Officers of the
Crown were given roving commissions to search where they pleased in order to suppress and
destroy the literature of dissent both Catholic and Puritan Reference herein to such historical
episode would not be relevant for it is not the policy of our government to suppress any
newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and
imminent danger to state security.
As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result that the printing and
publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the
press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is patently anathematic to a
democratic framework where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry.
Respondents would justify the continued sealing of the printing machines on the ground that they
have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which
authorizes "the sequestration of the property of any person, natural or artificial, engaged in
subversive activities against the government and its duly constituted authorities ... in accordance
with implementing rules and regulations as may be issued by the Secretary of National Defense."
It is doubtful however, if sequestration could validly be effected in view of the absence of any
implementing rules and regulations promulgated by the Minister of National Defense.
Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than
President Marcos himself denied the request of the military authorities to sequester the property
seized from petitioners on December 7, 1982. Thus:
The President denied a request flied by government prosecutors for
sequestration of the WE FORUM newspaper and its printing presses, according
to Information Minister Gregorio S. Cendana.
On the basis of court orders, government agents went to the We Forum offices in
Quezon City and took a detailed inventory of the equipment and all materials in
the premises.

Cendaa said that because of the denial the newspaper and its equipment
remain at the disposal of the owners, subject to the discretion of the court. 19
That the property seized on December 7, 1982 had not been sequestered is further confirmed by
the reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S.
Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the "WE
FORUM " case. 20 In this reply dated February 11, 1983, Minister Romulo stated:
2. Contrary to reports, President Marcos turned down the recommendation of our
authorities to close the paper's printing facilities and confiscate the equipment
and materials it uses. 21
IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by
respondent judge on December 7, 1982 are hereby declared null and void and are accordingly
set aside. The prayer for a writ of mandatory injunction for the return of the seized articles is
hereby granted and all articles seized thereunder are hereby ordered released to petitioners. No
costs.
SO ORDERED.

G.R. No. L-19550

June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK,


petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in
his capacity as Acting Director, National Bureau of Investigation; SPECIAL
PROSECUTORS PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and
ASST. FISCAL MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of Manila;
JUDGE ROMAN CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG,
Court of First Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ,
Municipal Court of Quezon City, respondents.
Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for
petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro,
Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua
for respondents.
CONCEPCION, C.J.:
Upon application of the officers of the government named on the margin 1 hereinafter referred
to as Respondents-Prosecutors several judges2 hereinafter referred to as RespondentsJudges issued, on different dates,3 a total of 42 search warrants against petitioners herein 4
and/or the corporations of which they were officers, 5 directed to the any peace officer, to search
the persons above-named and/or the premises of their offices, warehouses and/or residences,
and to seize and take possession of the following personal property to wit:
Books of accounts, financial records, vouchers, correspondence, receipts, ledgers,
journals, portfolios, credit journals, typewriters, and other documents and/or papers
showing all business transactions including disbursements receipts, balance sheets and
profit and loss statements and Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used
or intended to be used as the means of committing the offense," which is described in the
applications adverted to above as "violation of Central Bank Laws, Tariff and Customs Laws,
Internal Revenue (Code) and the Revised Penal Code."
Alleging that the aforementioned search warrants are null and void, as contravening the
Constitution and the Rules of Court because, inter alia: (1) they do not describe with
particularity the documents, books and things to be seized; (2) cash money, not mentioned in the
warrants, were actually seized; (3) the warrants were issued to fish evidence against the
aforementioned petitioners in deportation cases filed against them; (4) the searches and seizures
were made in an illegal manner; and (5) the documents, papers and cash money seized were not
delivered to the courts that issued the warrants, to be disposed of in accordance with law on
March 20, 1962, said petitioners filed with the Supreme Court this original action for certiorari,
prohibition, mandamus and injunction, and prayed that, pending final disposition of the present
case, a writ of preliminary injunction be issued restraining Respondents-Prosecutors, their agents
and /or representatives from using the effects seized as aforementioned or any copies thereof, in
the deportation cases already adverted to, and that, in due course, thereafter, decision be
rendered quashing the contested search warrants and declaring the same null and void, and
commanding the respondents, their agents or representatives to return to petitioners herein, in
accordance with Section 3, Rule 67, of the Rules of Court, the documents, papers, things and
cash moneys seized or confiscated under the search warrants in question.

In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are
valid and have been issued in accordance with law; (2) that the defects of said warrants, if any,
were cured by petitioners' consent; and (3) that, in any event, the effects seized are admissible in
evidence against herein petitioners, regardless of the alleged illegality of the aforementioned
searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition.
However, by resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as
the papers, documents and things seized from the offices of the corporations above mentioned
are concerned; but, the injunction was maintained as regards the papers, documents and things
found and seized in the residences of petitioners herein. 7
Thus, the documents, papers, and things seized under the alleged authority of the warrants in
question may be split into two (2) major groups, namely: (a) those found and seized in the offices
of the aforementioned corporations, and (b) those found and seized in the residences of
petitioners herein.
As regards the first group, we hold that petitioners herein have no cause of action to assail the
legality of the contested warrants and of the seizures made in pursuance thereof, for the simple
reason that said corporations have their respective personalities, separate and distinct from the
personality of herein petitioners, regardless of the amount of shares of stock or of the interest of
each of them in said corporations, and whatever the offices they hold therein may be. 8 Indeed, it
is well settled that the legality of a seizure can be contested only by the party whose rights have
been impaired thereby,9 and that the objection to an unlawful search and seizure is purely
personal and cannot be availed of by third parties. 10 Consequently, petitioners herein may not
validly object to the use in evidence against them of the documents, papers and things seized
from the offices and premises of the corporations adverted to above, since the right to object to
the admission of said papers in evidence belongs exclusively to the corporations, to whom the
seized effects belong, and may not be invoked by the corporate officers in proceedings against
them in their individual capacity. 11 Indeed, it has been held:
. . . that the Government's action in gaining possession of papers belonging to the
corporation did not relate to nor did it affect the personal defendants. If these papers
were unlawfully seized and thereby the constitutional rights of or any one were invaded,
they were the rights of the corporation and not the rights of the other defendants. Next, it
is clear that a question of the lawfulness of a seizure can be raised only by one whose
rights have been invaded. Certainly, such a seizure, if unlawful, could not affect the
constitutional rights of defendants whose property had not been seized or the privacy of
whose homes had not been disturbed; nor could they claim for themselves the benefits of
the Fourth Amendment, when its violation, if any, was with reference to the rights of
another. Remus vs. United States (C.C.A.)291 F. 501, 511. It follows, therefore, that the
question of the admissibility of the evidence based on an alleged unlawful search and
seizure does not extend to the personal defendants but embraces only the corporation
whose property was taken. . . . (A Guckenheimer & Bros. Co. vs. United States, [1925] 3
F. 2d. 786, 789, Emphasis supplied.)
With respect to the documents, papers and things seized in the residences of petitioners herein,
the aforementioned resolution of June 29, 1962, lifted the writ of preliminary injunction previously
issued by this Court, 12 thereby, in effect, restraining herein Respondents-Prosecutors from using
them in evidence against petitioners herein.
In connection with said documents, papers and things, two (2) important questions need be
settled, namely: (1) whether the search warrants in question, and the searches and seizures
made under the authority thereof, are valid or not, and (2) if the answer to the preceding question

is in the negative, whether said documents, papers and things may be used in evidence against
petitioners herein.1wph1.t
Petitioners maintain that the aforementioned search warrants are in the nature of general
warrants and that accordingly, the seizures effected upon the authority there of are null and void.
In this connection, the Constitution 13 provides:
The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue
but upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be seized.
Two points must be stressed in connection with this constitutional mandate, namely: (1) that no
warrant shall issue but upon probable cause, to be determined by the judge in the manner set
forth in said provision; and (2) that the warrant shall particularly describe the things to be seized.
None of these requirements has been complied with in the contested warrants. Indeed, the same
were issued upon applications stating that the natural and juridical person therein named had
committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code)
and Revised Penal Code." In other words, no specific offense had been alleged in said
applications. The averments thereof with respect to the offense committed were abstract. As a
consequence, it was impossible for the judges who issued the warrants to have found the
existence of probable cause, for the same presupposes the introduction of competent proof that
the party against whom it is sought has performed particular acts, or committed specific
omissions, violating a given provision of our criminal laws. As a matter of fact, the applications
involved in this case do not allege any specific acts performed by herein petitioners. It would be
the legal heresy, of the highest order, to convict anybody of a "violation of Central Bank Laws,
Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code," as alleged in
the aforementioned applications without reference to any determinate provision of said laws or
To uphold the validity of the warrants in question would be to wipe out completely one of the most
fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile
and the privacy of communication and correspondence at the mercy of the whims caprice or
passion of peace officers. This is precisely the evil sought to be remedied by the constitutional
provision above quoted to outlaw the so-called general warrants. It is not difficult to imagine
what would happen, in times of keen political strife, when the party in power feels that the minority
is likely to wrest it, even though by legal means.
Such is the seriousness of the irregularities committed in connection with the disputed search
warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of
Court 14 by providing in its counterpart, under the Revised Rules of Court 15 that "a search warrant
shall not issue but upon probable cause in connection with one specific offense." Not satisfied
with this qualification, the Court added thereto a paragraph, directing that "no search warrant shall
issue for more than one specific offense."
The grave violation of the Constitution made in the application for the contested search warrants
was compounded by the description therein made of the effects to be searched for and seized, to
wit:
Books of accounts, financial records, vouchers, journals, correspondence, receipts,
ledgers, portfolios, credit journals, typewriters, and other documents and/or papers
showing all business transactions including disbursement receipts, balance sheets and
related profit and loss statements.

Thus, the warrants authorized the search for and seizure of records pertaining to all business
transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The
warrants sanctioned the seizure of all records of the petitioners and the aforementioned
corporations, whatever their nature, thus openly contravening the explicit command of our Bill of
Rights that the things to be seized be particularly described as well as tending to defeat its
major objective: the elimination of general warrants.
Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that,
even if the searches and seizures under consideration were unconstitutional, the documents,
papers and things thus seized are admissible in evidence against petitioners herein. Upon mature
deliberation, however, we are unanimously of the opinion that the position taken in the Moncado
case must be abandoned. Said position was in line with the American common law rule, that the
criminal should not be allowed to go free merely "because the constable has blundered," 16 upon
the theory that the constitutional prohibition against unreasonable searches and seizures is
protected by means other than the exclusion of evidence unlawfully obtained, 17 such as the
common-law action for damages against the searching officer, against the party who procured the
issuance of the search warrant and against those assisting in the execution of an illegal search,
their criminal punishment, resistance, without liability to an unlawful seizure, and such other legal
remedies as may be provided by other laws.
However, most common law jurisdictions have already given up this approach and eventually
adopted the exclusionary rule, realizing that this is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizures. In the language of Judge
Learned Hand:
As we understand it, the reason for the exclusion of evidence competent as such, which
has been unlawfully acquired, is that exclusion is the only practical way of enforcing the
constitutional privilege. In earlier times the action of trespass against the offending official
may have been protection enough; but that is true no longer. Only in case the prosecution
which itself controls the seizing officials, knows that it cannot profit by their wrong will that
wrong be repressed.18
In fact, over thirty (30) years before, the Federal Supreme Court had already declared:
If letters and private documents can thus be seized and held and used in evidence
against a citizen accused of an offense, the protection of the 4th Amendment, declaring
his rights to be secure against such searches and seizures, is of no value, and, so far as
those thus placed are concerned, might as well be stricken from the Constitution. The
efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as
they are, are not to be aided by the sacrifice of those great principles established by
years of endeavor and suffering which have resulted in their embodiment in the
fundamental law of the land.19
This view was, not only reiterated, but, also, broadened in subsequent decisions on the same
Federal Court. 20 After reviewing previous decisions thereon, said Court held, in Mapp vs. Ohio
(supra.):
. . . Today we once again examine the Wolf's constitutional documentation of the right of
privacy free from unreasonable state intrusion, and after its dozen years on our books,
are led by it to close the only courtroom door remaining open to evidence secured by
official lawlessness in flagrant abuse of that basic right, reserved to all persons as a
specific guarantee against that very same unlawful conduct. We hold that all evidence
obtained by searches and seizures in violation of the Constitution is, by that same
authority, inadmissible in a State.

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

guarantee under consideration, overlooks the fact that violations thereof are, in general,
committed By agents of the party in power, for, certainly, those belonging to the minority could not
possibly abuse a power they do not have. Regardless of the handicap under which the minority
usually but, understandably finds itself in prosecuting agents of the majority, one must not
lose sight of the fact that the psychological and moral effect of the possibility 21 of securing their
conviction, is watered down by the pardoning power of the party for whose benefit the illegality
had been committed.
In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29,
1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008,
Dewey Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-Navy Club,
should be included among the premises considered in said Resolution as residences of herein
petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and
that, furthermore, the records, papers and other effects seized in the offices of the corporations
above referred to include personal belongings of said petitioners and other effects under their
exclusive possession and control, for the exclusion of which they have a standing under the latest
rulings of the federal courts of federal courts of the United States. 22
We note, however, that petitioners' theory, regarding their alleged possession of and control over
the aforementioned records, papers and effects, and the alleged "personal" nature thereof, has
Been Advanced, not in their petition or amended petition herein, but in the Motion for
Reconsideration and Amendment of the Resolution of June 29, 1962. In other words, said theory
would appear to be readjustment of that followed in said petitions, to suit the approach intimated
in the Resolution sought to be reconsidered and amended. Then, too, some of the affidavits or
copies of alleged affidavits attached to said motion for reconsideration, or submitted in support
thereof, contain either inconsistent allegations, or allegations inconsistent with the theory now
advanced by petitioners herein.
Upon the other hand, we are not satisfied that the allegations of said petitions said motion for
reconsideration, and the contents of the aforementioned affidavits and other papers submitted in
support of said motion, have sufficiently established the facts or conditions contemplated in the
cases relied upon by the petitioners; to warrant application of the views therein expressed, should
we agree thereto. At any rate, we do not deem it necessary to express our opinion thereon, it
being best to leave the matter open for determination in appropriate cases in the future.
We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby,
abandoned; that the warrants for the search of three (3) residences of herein petitioners, as
specified in the Resolution of June 29, 1962, are null and void; that the searches and seizures
therein made are illegal; that the writ of preliminary injunction heretofore issued, in connection
with the documents, papers and other effects thus seized in said residences of herein petitioners
is hereby made permanent; that the writs prayed for are granted, insofar as the documents,
papers and other effects so seized in the aforementioned residences are concerned; that the
aforementioned motion for Reconsideration and Amendment should be, as it is hereby, denied;
and that the petition herein is dismissed and the writs prayed for denied, as regards the
documents, papers and other effects seized in the twenty-nine (29) places, offices and other
premises enumerated in the same Resolution, without special pronouncement as to costs.
It is so ordered.

G.R. No. 93516 August 12, 1992


THE PEOPLE OF THE PHILLIPPINES, plaintiff-appellee,
vs.
BASILIO DAMASO @ Bernardo/BERNIE MENDOZA @ KA DADO, accused-appellant.
The Solicitor General for plaintiff-appellee.

MEDIALDEA, J.:
The accused-appellant, Basilio Damaso, was originally charged in an information filed before the
Regional Trial Court of Dagupan City with violation of Presidential Decree No. 1866 in furtherance
of, or incident to, or in connection with the crime of subversion, together with Luzviminda Morados
y Galang @ Ka Mel, Teresita Calosa y Macabangon @ Ka Tessie, Ricardo Calosa y Perez @ Ka
Ric, Marites Calosa y Evangelista @ Ka Tess, Eric Tanciangco y Capira @ Ka Ric and Luz
Tanciangco y Pencial @ Ka Luz (Records, p. 3). Such information was later amended to exclude
all the above-enumerated persons except the accused-appellant from the criminal charge. The
amended information reads:
That an or about the 19th day of June, 1988, in the City of Dagupan, Philippines,
and within the territorial jurisdiction of this Honorable Court, the above-named
accused, Basilio DAMASO @ Bernardo/Bernie Mendoza @ KA DADO, did then
and there, willfully, unlawfully and criminally, have in his possession, custody and
control one (1) M14 Rifle bearing Serial No. 1249935 with magazine and FiftySeven (57) live ammunition, in furtherance of, or incident to, or in connection with
the crime of subversion, filed against said accused in the above-entitled case for
Violation of Republic Act 1700, as amended by Executive Order No. 276.
Contrary to Third Paragraph of Sec. 1, P.D. 1866. (Records, p. 20)
Upon arraignment, the accused-appellant pleaded not guilty to the crime charged (Records, p.
37). Trial on the merits ensued. The prosecution rested its case and offered its exhibits for
admission. The counsel for accused-appellant interposed his objections to the admissibility of the
prosecution's evidence on grounds of its being hearsay, immaterial or irrelevant and illegal for
lack of a search warrant. On these bases, he, thereafter, manifested that he was not presenting
any evidence for the accused (TSN, December 28, 1989, p. 139). On January 17, 1990, the trial
court rendered decision, the dispositive portion of which states:
WHEREFORE, the Court finds accused Basilio Damaso alias Bernardo/Bernie
Mendoza alias Ka Dado guilty beyond reasonable doubt of Violation of
Presidential Decree Number 1866, and considering that the Violation is in
furtherance of, or incident to, or in connection with the crime of subversion,
pursuant to Section 1, Paragraph 3 of Presidential Decree Number 1866 hereby
sentences the accused to suffer the penalty of Reclusion Perpetua and to pay the
costs of the proceedings.
The M14 Rifle bearing Serial Number 1249935 and live ammunition and all the
articles and/or items seized on June 19, 1988 in connection with this case and
marked and submitted in court as evidence are ordered confiscated and forfeited
in favor of the government, the same to be turned over to the Philippine
Constabulary Command at Lingayen, Pangasinan.

SO ORDERED. (Rollo, p. 31)


Thus, this present recourse with the following assignment of errors:
A. THE TRIAL COURT ERRED IN FINDING ACCUSED APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME OF ILLEGAL POSSESSION
OF FIREARMS AND AMMUNITIONS IN FURTHERANCE OF, OR INCIDENT
TO, OR IN CONNECTION WITH THE CRIME OF SUBVERSION DESPITE THE
WOEFULLY INADEQUATE EVIDENCE PRESENTED BY THE PROSECUTION.
B. THE COURT ERRED IN CONVICTING THE ACCUSED WHEN THE
QUALIFYING CIRCUMSTANCES OF SUBVERSION WAS NOT PROVEN BY
THE PROSECUTION.
C. THE LOWER COURT ERRED IN CONSIDERING AS EVIDENCE THE
FIREARMS DOCUMENTS AND ITEMS LISTED IN EXHIBIT E AFTER THEY
WERE DECLARED INADMISSIBLE WITH FINALITY BY ANOTHER BRANCH
OF THE SAME COURT AND THE SAID EVIDENCE ARE THE FRUITS OF AN
ILLEGAL SEARCH.
D. THE TRIAL COURT ERRED IN DENYING THE MOTIONS TO QUASH FILED
BY ACCUSED-APPELLANT BECAUSE THE SEPARATE CHARGE FOR
SUBVERSION AGAINST HIM ABSORBED THE CHARGE FOR ILLEGAL
POSSESSION OF FIREARMS IN FURTHERANCE OF OR INCIDENT TO, OR
IN CONNECTION WITH THE CRIME OF SUBVERSION. (pp. 55-66, Rollo)
The antecedent facts are set forth by the Solicitor General in his Brief, as follows:
On June 18, 1988, Lt. Candido Quijardo, a Philippine Constabulary officer
connected with the 152nd PC Company at Lingayen, Pangasinan, and some
companions were sent to verify the presence of CPP/NPA members in Barangay
Catacdang, Arellano-Bani, Dagupan City. In said place, the group apprehended
Gregorio Flameniano, Berlina Aritumba, Revelina Gamboa and Deogracias
Mayaoa. When interrogated, the persons apprehended revealed that there was
an underground safehouse at Gracia Village in Urdaneta, Pangasinan. After
coordinating with the Station Commander of Urdaneta, the group proceeded to
the house in Gracia Village. They found subversive documents, a radio, a 1 x 7
caliber .45 firearm and other items (pp. 4, 6-7, tsn, October 23, 1989).
After the raid, the group proceeded to Bonuan, Dagupan City, and put under
surveillance the rented apartment of Rosemarie Aritumba, sister of Berlina
Aritumba whom they earlier arrested. They interviewed Luzviminda Morados, a
visitor of Rosemarie Aritumba. She stated that she worked with Bernie Mendoza,
herein appellant. She guided the group to the house rented by appellant. When
they reached the house, the group found that it had already been vacated by the
occupants. Since Morados was hesitant to give the new address of Bernie
Mendoza, the group looked for the Barangay Captain of the place and requested
him to point out the new house rented by appellant. The group again required
Morados to go with them. When they reached the house, the group saw Luz
Tanciangco outside. They told her that they already knew that she was a member
of the NPA in the area. At first, she denied it, but when she saw Morados she
requested the group to go inside the house. Upon entering the house, the group,
as well as the Barangay Captain, saw radio sets, pamphlets entitled "Ang
Bayan," xerox copiers and a computer machine. They also found persons who

were companions of Luz Tanciangco (namely, Teresita Calosa, Ricardo Calosa,


Maries Calosa, Eric Tanciangco and Luzviminda Morados). The group requested
the persons in the house to allow them to look around. When Luz Tanciangco
opened one of the rooms, they saw books used for subversive orientation, one
M-14 rifle, bullets and ammunitions, Kenwood radio, artificial beard, maps of the
Philippines, Zambales, Mindoro an(d) Laguna and other items. They confiscated
the articles and brought them to their headquarters for final inventory. They
likewise brought the persons found in the house to the headquarters for
investigation. Said persons revealed that appellant was the lessee of the house
and owned the items confiscated therefrom (pp. 8-12, tsn, ibid; pp. 2-4, 6, 8-10,
31, tsn, October 31, 1989). (p. 5, Brief of Plaintiff-Appellee, p. 91, Rollo)
While We encourage and support law enforcement agencies in their drive against lawless
elements in our society, We must, however, stress that the latter's efforts to this end must be done
within the parameters of the law. In the case at bar, not only did We find that there are serious
flaws in the method used by the law officers in obtaining evidence against the accused-appellant
but also that the evidence as presented against him is weak to justify conviction.
We reverse.
The records of this case show that the accused-appellant was singled out as the sole violator of
P.D. No. 1866, in furtherance of, or incident to, or in connection with the crime of subversion. Yet,
there is no substantial and credible evidence to establish the fact that the appellant is allegedly
the same person as the lessee of the house where the M-14 rifle and other subversive items were
found or the owner of the said items. The prosecution presented two witnesses who attested to
this fact, thus:
Lieutenant Candito Quijardo
Fiscal
Q How about this Bernie Mendoza, who was the one renting the
house?
A He was not around at that time, but according to Luz
(Tanciangco) who mentioned the name Bernie Mendoza (as) the
one who was renting the house and at the same time claiming
that it was Bernie Mendoza who owns the said items. (TSN of
October 31, 1989, p. 40)
xxx xxx xxx
Q I am showing you another picture which we request to be
marked as Exhibit "K-2," tell us if it has any connection to the
house?
A The same house, sir.
Q Now, this person who according to you allegedly occupied the
house at Bonuan Gueset, by the name of Bernie Mendoza, in
your capacity as a Military officer, did you find out the identity?

A I am not the proper (person) to tell the real identity of Bernie


de Guzman.
Q Can you tell the Honorable Court the proper person who could
tell the true identity of Bernie Mendoza?
A The Intelligence of the Pangasinan PC Command.
Q Can you name these officers?
A Captain Roberto Rosales and his assistant, First Lt. Federico
Castro. (ibid, pp. 54-55)
M/Sqt. Artemio Gomez
Q That underground house, do you know who was the principal
occupant of that house?
xxx xxx xxx
A During our conversation with the occupants, they revealed that
a certain Ka Bernie is the one occupying the house, Bernie
Mendoza alias Basilio Damaso.
. . . (TSN, December 27, 1989, pp. 126-128)
Clearly, the aforequoted testimonies are hearsay because the witnesses testified on matters not
on their own personal knowledge. The Solicitor General, however, argues that while the
testimonies may be hearsay, the same are admissible because of the failure of counsel for
appellant to object thereto.
It is true that the lack of objection to a hearsay testimony results in its being admitted as
evidence. But, one should not be misled into thinking that since these testimonies are admitted as
evidence, they now have probative value. Hearsay evidence, whether objected to or not, cannot
be given credence. In People vs. Valero, We emphatically declared that:
The failure of the defense counsel to object to the presentation of incompetent
evidence, like hearsay evidence or evidence that violates the rule of res inter
alios acta, or his failure to ask for the striking out of the same does not give such
evidence any probative value. The lack of objection may make any incompetent
evidence admissible. But admissibility of evidence should not be equated with
weight of evidence. Hearsay evidence whether objected to or not has no
probative value.
(L-45283-84, March 19, 1982, 112 SCRA 675, emphasis supplied)
It is unfortunate that the prosecution failed to present as witnesses the persons who knew
the appellant as the lessee and owner of the M-14 rifle. In this way, the appellant could
have exercised his constitutional right to confront the witnesses and to cross-examine
them for their truthfulness. Likewise, the records do not show any other evidence which
could have identified the appellant as the lessee of the house and the owner of the
subversive items. To give probative value to these hearsay statements and convict the
appellant on this basis alone would be to render his constitutional rights useless and
without meaning.

Even assuming for the sake of argument that the appellant is the lessee of the house, the case
against him still will not prosper, the reason being that the law enforcers failed to comply with the
requirements of a valid search and seizure proceedings.
The right against unreasonable searches and seizures is enshrined in the Constitution (Article III,
Section 2). The purpose of the law is to prevent violations of private security in person and
property, and unlawful invasions of the sanctity of the home by officers of the law acting under
legislative or judicial sanction and to give remedy against such usurpations when attempted (see
Alvero v. Dizon, 76 Phil. 637, 646). However, such right is not absolute. There are instances when
a warrantless search and seizure becomes valid, namely: (1) search incidental to an arrest; (2)
search of a moving vehicle; and (3) seizure of evidence in plain view (Manipon, Jr. v.
Sandiganbayan, L-58889, July 31, 1986, 143 SCRA 267, 276). None of these exceptions is
present in this case.
The Solicitor General argues otherwise. He claims that the group of Lt. Quijardo entered the
appellant's house upon invitation of Luz Tanciangco and Luzviminda Morados, helper of the
appellant; that when Luz Tanciangco opened one of the rooms, they saw a copier machine,
computer, M-14 rifle, bullets and ammunitions, radio set and more subversive items; that
technically speaking, there was no search as the group was voluntarily shown the articles used in
subversion; that besides, a search may be validly conducted without search warrant with the
consent of the person searched in this case, appellant's helper and Luz Tanciangco allowed them
to enter and to look around the appellant's house; and that since the evidence seized was in plain
view of the authorities, the same may be seized without a warrant.
We are not persuaded. The constitutional immunity from unreasonable searches and seizures,
being personal one, cannot be waived by anyone except the person whose rights are invaded or
one who is expressly authorized to do so in his or her behalf (De Garcia v. Locsin, 65 Phil. 689,
695). In the case at bar, the records show that appellant was not in his house at that time Luz
Tanciangco and Luz Morados, his alleged helper, allowed the authorities to enter it (TSN, October
31, 1989, p. 10). We Find no evidence that would establish the fact that Luz Morados was indeed
the appellant's helper or if it was true that she was his helper, that the appellant had given her
authority to open his house in his absence. The prosecution likewise failed to show if Luz
Tanciangco has such an authority. Without this evidence, the authorities' intrusion into the
appellant's dwelling cannot be given any color of legality. While the power to search and seize is
necessary to the public welfare, still it must be exercised and the law enforced without
transgressing the constitutional rights of the citizens, for the enforcement of no statute is of
sufficient importance to justify indifference to the basic principles of government (Rodriguez v.
Evangelista, 65 Phil. 230, 235). As a consequence, the search conducted by the authorities was
illegal. It would have been different if the situation here demanded urgency which could have
prompted the authorities to dispense with a search warrant. But the record is silent on this point.
The fact that they came to the house of the appellant at nighttime (Exh. J, p. 7, Records), does
not grant them the license to go inside his house. In Alih v. Castro, We ruled that:
The respondents cannot even plead the urgency of the raid because it was in
fact not urgent. They knew where the petitioners were. They had every
opportunity to get a search warrant before making the raid. If they were worried
that the weapons inside the compound would be spirited away, they could have
surrounded the premises in the meantime, as a preventive measure. There was
absolutely no reason at all why they should disregard the orderly processes
required by the Constitution and instead insist on arbitrarily forcing their way into
the petitioner's premises with all the menace of a military invasion. (G.R. No.
69401, June 23, 1987, 151 SCRA 279, 286)
Another factor which illustrates the weakness of the case against the accused-appellant is in the
identification of the gun which he was charged to have illegally possessed. In the amended

information (supra, pp. 1-2), the gun was described as an M-14 rifle with serial no. 1249935. Yet,
the gun presented at the trial bore a different serial number thus:
FISCAL
Q Will you kindly restate again the items that you found inside
the house?
Lt. Quijardo:
A When she opened the doors of the rooms that we requested
for, we immediately saw different kinds of books of which we
believed to be used for subversive orientation and the M-14 rifle.
Q In what portion of the house did you find this M-14 rifle which
you mentioned?
A In the same room of which the subversive documents were
placed.
Q If this firearm would be shown to you would you be able to
identify the same?
A Yes, sir.
Q I am showing to you a rifle bearing a serial number 1249985
which for purposes of identification, may we request your Honor,
that this rifle be marked as Exhibit "D."
COURT:
Mark it.
FISCAL:
Q Kindly examine the said firearm and tell the Honorable Court
the relation of that firearm to the firearm which according to you
you found inside the room allegedly occupied by one Bernie
Mendoza?
A This is the same rifle which was discovered during our raid in
the same house. (TSN, October 31, 1989, pp. 36-38, emphasis
supplied).
The Solicitor General contends that the discrepancy is merely a typographical error.
We do not think so. This glaring error goes into the substance of the charge. Its correction or lack
of it could spell the difference between freedom and incarceration of the accused-appellant.
In crimes of illegal possession of firearm as in this case, the prosecution has the burden to prove
the existence of the firearm and that the accused who possessed or owned the firearm does not
have the corresponding license for it. Since the gun as identified at the trial differs from the gun

described in the amended information, the corpus delicti (the substance of the crime, the fact that
a crime has actually been committed) has not been fully established. This circumstance coupled
with dubious claims of appellant's connection to the house (where the gun was found) have totally
emasculated the prosecution's case.
But even as We find for the accused-appellant, We, take exception to the argument raised by the
defense that the crime of subversion absorbs the crime of illegal possession of firearm in
furtherance of or incident to or in connection with the crime of subversion. It appears that the
accused-appellant is facing a separate charge of subversion. The defense submits that the trial
court should have peremptorily dismissed this case in view of the subversion charge. In People of
the Philippines v. Asuncion, et al., We set forth in no uncertain terms the futility of such argument.
We quote:
If We are to espouse the theory of the respondents that force and violence are
the very essence of subversion, then it loses its distinction from rebellion. In
People v. Liwanag (G.R. No. 27683, 1976, 73 SCRA 473, 480 [1976]), the Court
categorically distinguished subversion from rebellion, and held:
Violation of Republic Act No. 1700, or subversion, as it is more
commonly called, is a crime distinct from that of actual rebellion.
The crime of rebellion is committed by rising publicly and taking
up arms against the Government for any of the purposes
specified in Article 134 of the Revised Penal Code; while the
Anti-Subversion Act (Republic Act No. 1700) punishes affiliation
or membership in a subversive organization as defined therein.
In rebellion, there must be a public uprising and taking of arms
against the Government; whereas, in subversion, mere
membership in a subversive association is sufficient and the
taking up of arms by a member of a subversive organization
against the Government is but a circumstance which raises the
penalty to be imposed upon the offender. (Emphasis supplied)
Furthermore, in the case of Buscayno v. Military Commission (G.R. 58284, 109
289 (1981]), this Court said that subversion, like treason, is a crime against
national security, while rebellion is a crime against public order. Rising publicly
and taking arms against the Government is the very element of the crime on
rebellion. On the other hand, R.A. 1700 was enacted to outlaw the Communist
Party of the Philippines (CPP) , other similar associations and its successors
because their existence and activities constitute a clear, present and grave
danger to national security.
The first Whereas clause of R.A. 1700 states that the CPP is an organized
conspiracy to overthrow the Government, not only by force and violence but also
by deceit, subversion, and other illegal means. This is a recognition that
subversive acts do not only constitute force and violence (contrary to the
arguments of private respondents), but may partake of other forms as well. One
may in fact be guilty of subversion by authoring subversive materials, where
force and violence is neither necessary or indispensable.
Private respondents contended that the Court in Misolas v. Panga impliedly ruled
that if an accused is simultaneously charged with violation of P.D. 1866 and
subversion, the doctrine of absorption of common crimes as applied in rebellion
would have found application therein. The respondents relied on the opinion of
this Court when it said:

. . . in the present case, petitioner is being charged specifically


for the qualified offense of illegal possession of firearms and
ammunition under PD 1866. HE IS NOT BEING CHARGED
WITH THE COMPLEX CRIME OF SUBVERSION WITH
ILLEGAL POSSESSION OF FIREARMS. NEITHER IS HE
BEING SEPARATELY CHARGED FOR SUBVERSION AND
FOR ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings
of the Court in Hernandez, Geronimo and Rodriguez find no
application in this case.
This is however a mere obiter. In the above case, the Court upheld the validity of
the charge under the third paragraph of Section 1 of P.D. 1866. The Court opined
that the dictum in the Hernandez case is not applicable in that case, considering
that the legislature deemed it fit to provide for two distinct offenses: (1) illegal
possession of firearms qualified by subversion (P.D. 1866) and (2) subversion
qualified by the taking up of arms against the Government (R.A. 1700). The
practical result of this may be harsh or it may pose grave difficulty on an accused
in instances similar to those that obtain in the present case, but the wisdom of
the legislature in the lawful exercise of its power to enact laws is something that
the Court cannot inquire into . . . (G.R. Nos. 83837-42, April 22, 1992).
Nonetheless, the evidence in hand is too weak to convict the accused-appellant of the charge of
illegal possession of firearm in furtherance of, or incident to or in connection with the crime of
subversion, We are therefore, left with no option, but to acquit the accused on reasonable doubt.
ACCORDINGLY, the decision appealed from is hereby REVERSED and the appellant is
ACQUITTED with costs de oficio.
SO ORDERED.

G.R. No. 81561 January 18, 1991


PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.


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

BIDIN, J.:p
This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional
Trial Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in
relation to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended,
otherwise known as the Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his
common-law wife, Shirley Reyes, went to the booth of the "Manila Packing and
Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with
them four (4) gift wrapped packages. Anita Reyes (the proprietress and no
relation to Shirley Reyes) attended to them. The appellant informed Anita Reyes
that he was sending the packages to a friend in Zurich, Switzerland. Appellant
filled up the contract necessary for the transaction, writing therein his name,
passport number, the date of shipment and the name and address of the
consignee, namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland"
(Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and inspect the
packages. Appellant, however, refused, assuring her that the packages simply
contained books, cigars, and gloves and were gifts to his friend in Zurich. In view
of appellant's representation, Anita Reyes no longer insisted on inspecting the
packages. The four (4) packages were then placed inside a brown corrugated
box one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and on
top of the packages before the box was sealed with masking tape, thus making
the box ready for shipment (Decision, p. 8).
Before delivery of appellant's box to the Bureau of Customs and/or Bureau of
Posts, Mr. Job Reyes (proprietor) and husband of Anita (Reyes), following
standard operating procedure, opened the boxes for final inspection. When he
opened appellant's box, a peculiar odor emitted therefrom. His curiousity
aroused, he squeezed one of the bundles allegedly containing gloves and felt
dried leaves inside. Opening one of the bundles, he pulled out a cellophane
wrapper protruding from the opening of one of the gloves. He made an opening
on one of the cellophane wrappers and took several grams of the contents
thereof (tsn, pp. 29-30, October 6, 1987; Emphasis supplied).
Job Reyes forthwith prepared a letter reporting the shipment to the NBI and
requesting a laboratory examination of the samples he extracted from the
cellophane wrapper (tsn, pp. 5-6, October 6, 1987).
He brought the letter and a sample of appellant's shipment to the Narcotics
Section of the National Bureau of Investigation (NBI), at about 1:30 o'clock in the
afternoon of that date, i.e., August 14, 1987. He was interviewed by the Chief of
Narcotics Section. Job Reyes informed the NBI that the rest of the shipment was
still in his office. Therefore, Job Reyes and three (3) NBI agents, and a

photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6,
1987).
Job Reyes brought out the box in which appellant's packages were placed and,
in the presence of the NBI agents, opened the top flaps, removed the styro-foam
and took out the cellophane wrappers from inside the gloves. Dried marijuana
leaves were found to have been contained inside the cellophane wrappers (tsn,
p. 38, October 6, 1987; Emphasis supplied).
The package which allegedly contained books was likewise opened by Job
Reyes. He discovered that the package contained bricks or cake-like dried
marijuana leaves. The package which allegedly contained tabacalera cigars was
also opened. It turned out that dried marijuana leaves were neatly stocked
underneath the cigars (tsn, p. 39, October 6, 1987).
The NBI agents made an inventory and took charge of the box and of the
contents thereof, after signing a "Receipt" acknowledging custody of the said
effects (tsn, pp. 2-3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in
his passport being the Manila Central Post Office, the agents requested assistance from the
latter's Chief Security. On August 27, 1987, appellant, while claiming his mail at the Central Post
Office, was invited by the NBI to shed light on the attempted shipment of the seized dried leaves.
On the same day the Narcotics Section of the NBI submitted the dried leaves to the Forensic
Chemistry Section for laboratory examination. It turned out that the dried leaves were marijuana
flowering tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).
Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known
as the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY
SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.
THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE
UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE
UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE
EXPLANATION OF THE APPELLANT ON HOW THE FOUR PARCELS CAME
INTO HIS POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had been obtained in
violation of his constitutional rights against unreasonable search and seizure and privacy of
communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should be
held inadmissible in evidence (Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:

Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the
persons or things to be seized.
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order requires
otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
Our present constitutional provision on the guarantee against unreasonable search and seizure
had its origin in the 1935 Charter which, worded as follows:
The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated, and no
warrants shall issue but upon probable cause, to be determined by the judge
after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched, and the
persons or things to be seized. (Sec. 1 [3], Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the United States
Constitution. As such, the Court may turn to the pronouncements of the United States Federal
Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme
Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20
SCRA 383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective
search and seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v.
People's Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the
illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling
and is carried over up to the present with the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the
admissibility of evidence obtained in violation of the constitutional safeguard against
unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971];
Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v.
Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510,
March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so obtained were
invariably procured by the State acting through the medium of its law enforcers or other
authorized government agencies.
On the other hand, the case at bar assumes a peculiar character since the evidence sought to be
excluded was primarily discovered and obtained by a private person, acting in a private capacity
and without the intervention and participation of State authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional right against unreasonable searches and
seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in
violation of appellant's constitutional rights, be invoked against the State?

We hold in the negative. In the absence of governmental interference, the liberties guaranteed by
the Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against unreasonable search and seizure) refers to
the immunity of one's person, whether citizen or alien, from interference by
government, included in which is his residence, his papers, and other
possessions. . . .
. . . There the state, however powerful, does not as such have the access except
under the circumstances above noted, for in the traditional formulation, his
house, however humble, is his castle. Thus is outlawed any unwarranted
intrusion by government, which is called upon to refrain from any invasion of his
dwelling and to respect the privacies of his life. . . . (Cf. Schermerber v. California,
384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis
supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in
construing the right against unreasonable searches and seizures declared that:
(t)he Fourth Amendment gives protection against unlawful searches and
seizures, and as shown in previous cases, its protection applies to governmental
action. Its origin and history clearly show that it was intended as a restraint upon
the activities of sovereign authority, and was not intended to be a limitation upon
other than governmental agencies; as against such authority it was the purpose
of the Fourth Amendment to secure the citizen in the right of unmolested
occupation of his dwelling and the possession of his property, subject to the right
of seizure by process duly served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking
attendant who searched the automobile to ascertain the owner thereof found marijuana instead,
without the knowledge and participation of police authorities, was declared admissible in
prosecution for illegal possession of narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and
seizure clauses are restraints upon the government and its agents, not upon private individuals
(citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391
S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:
The search of which appellant complains, however, was made by a private
citizen the owner of a motel in which appellant stayed overnight and in which
he left behind a travel case containing the evidence*** complained of. The search
was made on the motel owner's own initiative. Because of it, he became
suspicious, called the local police, informed them of the bag's contents, and
made it available to the authorities.
The fourth amendment and the case law applying it do not require exclusion of
evidence obtained through a search by a private citizen. Rather, the amendment
only proscribes governmental action."

The contraband in the case at bar having come into possession of the Government without the
latter transgressing appellant's rights against unreasonable search and seizure, the Court sees
no cogent reason why the same should not be admitted against him in the prosecution of the
offense charged.
Appellant, however, would like this court to believe that NBI agents made an illegal search and
seizure of the evidence later on used in prosecuting the case which resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days. In both
instances, the argument stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition that NBI
agents conducted an illegal search and seizure of the prohibited merchandise. Records of the
case clearly indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who
made search/inspection of the packages. Said inspection was reasonable and a standard
operating procedure on the part of Mr. Reyes as a precautionary measure before delivery of
packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 1518; pp. 7-8; Original Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of
the same to the NBI and later summoned the agents to his place of business. Thereafter, he
opened the parcel containing the rest of the shipment and entrusted the care and custody thereof
to the NBI agents. Clearly, the NBI agents made no search and seizure, much less an illegal one,
contrary to the postulate of accused/appellant.
Second, the mere presence of the NBI agents did not convert the reasonable search effected by
Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe
and look at that which is in plain sight is not a search. Having observed that which is open, where
no trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135).
Where the contraband articles are identified without a trespass on the part of the arresting officer,
there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202
[1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d
122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was
taken into custody of the police at the specific request of the manager and where the search was
initially made by the owner there is no unreasonable search and seizure within the constitutional
meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of
private individuals finds support in the deliberations of the Constitutional Commission. True, the
liberties guaranteed by the fundamental law of the land must always be subject to protection. But
protection against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights
answers the query which he himself posed, as follows:
First, the general reflections. The protection of fundamental liberties in the
essence of constitutional democracy. Protection against whom? Protection
against the state. The Bill of Rights governs the relationship between the
individual and the state. Its concern is not the relation between individuals,
between a private individual and other individuals. What the Bill of Rights does is
to declare some forbidden zones in the private sphere inaccessible to any power
holder. (Sponsorship Speech of Commissioner Bernas , Record of the
Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as a
restraint directed only against the government and its agencies tasked with the enforcement of
the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary
and unreasonable exercise of power is imposed.
If the search is made upon the request of law enforcers, a warrant must generally be first secured
if it is to pass the test of constitutionality. However, if the search is made at the behest or initiative
of the proprietor of a private establishment for its own and private purposes, as in the case at bar,
and without the intervention of police authorities, the right against unreasonable search and
seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved.
In sum, the protection against unreasonable searches and seizures cannot be extended to acts
committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by
the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has been modified
by the present phraseology found in the 1987 Charter, expressly declaring as inadmissible any
evidence obtained in violation of the constitutional prohibition against illegal search and seizure, it
matters not whether the evidence was procured by police authorities or private individuals
(Appellant's Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the principles of the
government and fundamental liberties of the people, does not govern relationships between
individuals. Moreover, it must be emphasized that the modifications introduced in the 1987
Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of
arrest vis-a-vis the responsibility of the judge in the issuance thereof (See Soliven v. Makasiar,
167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987].
The modifications introduced deviate in no manner as to whom the restriction or inhibition against
unreasonable search and seizure is directed against. The restraint stayed with the State and did
not shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may only be invoked
against the State by an individual unjustly traduced by the exercise of sovereign authority. To
agree with appellant that an act of a private individual in violation of the Bill of Rights should also
be construed as an act of the State would result in serious legal complications and an absurd
interpretation of the constitution.
Similarly, the admissibility of the evidence procured by an individual effected through private
seizure equally applies, in pari passu, to the alleged violation, non-governmental as it is, of
appellant's constitutional rights to privacy and communication.
2. In his second assignment of error, appellant contends that the lower court erred in convicting
him despite the undisputed fact that his rights under the constitution while under custodial
investigation were not observed.
Again, the contention is without merit, We have carefully examined the records of the case and
found nothing to indicate, as an "undisputed fact", that appellant was not informed of his
constitutional rights or that he gave statements without the assistance of counsel. The law
enforcers testified that accused/appellant was informed of his constitutional rights. It is presumed
that they have regularly performed their duties (See. 5(m), Rule 131) and their testimonies should
be given full faith and credence, there being no evidence to the contrary. What is clear from the
records, on the other hand, is that appellant refused to give any written statement while under
investigation as testified by Atty. Lastimoso of the NBI, Thus:
Fiscal Formoso:

You said that you investigated Mr. and Mrs. Job Reyes. What about the accused
here, did you investigate the accused together with the girl?
WITNESS:
Yes, we have interviewed the accused together with the girl but the accused
availed of his constitutional right not to give any written statement, sir. (TSN,
October 8, 1987, p. 62; Original Records, p. 240)
The above testimony of the witness for the prosecution was not contradicted by the defense on
cross-examination. As borne out by the records, neither was there any proof by the defense that
appellant gave uncounselled confession while being investigated. What is more, we have
examined the assailed judgment of the trial court and nowhere is there any reference made to the
testimony of appellant while under custodial investigation which was utilized in the finding of
conviction. Appellant's second assignment of error is therefore misplaced.
3. Coming now to appellant's third assignment of error, appellant would like us to believe that he
was not the owner of the packages which contained prohibited drugs but rather a certain Michael,
a German national, whom appellant met in a pub along Ermita, Manila: that in the course of their
30-minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for
the cost of the shipment since the German national was about to leave the country the next day
(October 15, 1987, TSN, pp. 2-10).
Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, selfserving and contrary to human experience. It can easily be fabricated. An acquaintance with a
complete stranger struck in half an hour could not have pushed a man to entrust the shipment of
four (4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to
comply with the undertaking without first ascertaining its contents. As stated by the trial court, "(a)
person would not simply entrust contraband and of considerable value at that as the marijuana
flowering tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The
Accused, on the other hand, would not simply accept such undertaking to take custody of the
packages and ship the same from a complete stranger on his mere say-so" (Decision, p. 19,
Rollo, p. 91). As to why he readily agreed to do the errand, appellant failed to explain. Denials, if
unsubstantiated by clear and convincing evidence, are negative self-serving evidence which
deserve no weight in law and cannot be given greater evidentiary weight than the testimony of
credible witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989];
People vs. Sariol, 174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect considering that, as per records of the
Interpol, he was previously convicted of possession of hashish by the Kleve Court in the Federal
Republic of Germany on January 1, 1982 and that the consignee of the frustrated shipment,
Walter Fierz, also a Swiss national, was likewise convicted for drug abuse and is just about an
hour's drive from appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66;
Original Records, p. 244; Decision, p. 21; Rollo, p. 93).
Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must
be credible in itself such as the common experience and observation of mankind can approve as
probable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van
Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123
SCRA 327 [1983]); Castaares v. CA, 92 SCRA 567 [1979]). As records further show, appellant
did not even bother to ask Michael's full name, his complete address or passport number.
Furthermore, if indeed, the German national was the owner of the merchandise, appellant should
have so indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the contrary,
appellant signed the contract as the owner and shipper thereof giving more weight to the

presumption that things which a person possesses, or exercises acts of ownership over, are
owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim
otherwise.
Premises considered, we see no error committed by the trial court in rendering the assailed
judgment.
WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the
crime charged is hereby AFFIRMED. No costs.
SO ORDERED.

G.R. No. 143944

July 11, 2002

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
BASHER BONGCARAWAN y MACARAMBON, accused-appellant.
PUNO, J.:

This is an appeal from the Decision1 dated December 27, 1999 of the Regional Trial Court of
Iligan City, Branch 06, in Criminal Case No. 06-7542, finding accused Basher Bongcarawan y
Macarambon guilty beyond reasonable doubt of violation of Section 16, Article III of Republic Act
No. 64252 as amended, and sentencing him to suffer the penalty of reclusion perpetua, and to
pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in
case of insolvency.1wphi1.nt
Accused Basher Bongcarawan y Macarambon was charged in an Information which reads, thus:
"That on or about March 13, 1999, in the City of Iligan, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, without authority of law, did then
and there wilfully, unlawfully and feloniously have in his possession, custody and control
eight (8) packs of Methamphetamine Hydrochloride, a regulated drug commonly known
as Shabu, weighing approximately 400 grams, without the corresponding license or
prescription.
Contrary to and in violation of Section 16, Article III of RA 6425, otherwise known as the
Dangerous Drugs Act of 1972, as amended by RA 7659."3
During the arraignment, the accused pleaded not guilty. Trial ensued.
Evidence for the prosecution shows that on March 11, 1999, an interisland passenger ship, M/V
Super Ferry 5, sailed from Manila to Iligan City. At about 3:00 a.m. on March 13, 1999, the vessel
was about to dock at the port of Iligan City when its security officer, Mark Diesmo, received a
complaint from passenger Lorena Canoy about her missing jewelry. Canoy suspected one of her
co-passengers at cabin no. 106 as the culprit. Diesmo and four (4) other members of the vessel
security force accompanied Canoy to search for the suspect whom they later found at the
economy section.4 The suspect was identified as the accused, Basher Bongcarawan. The
accused was informed of the complaint and was invited to go back to cabin no. 106. With his
consent, he was bodily searched, but no jewelry was found. He was then escorted by two (2)
security agents back to the economy section to get his baggage. The accused took a Samsonite
suitcase and brought this back to the cabin. When requested by the security, the accused opened
the suitcase, revealing a brown bag and small plastic packs containing white crystalline
substance. Suspecting the substance to be "shabu," the security personnel immediately reported
the matter to the ship captain and took pictures of the accused beside the suitcase and its
contents. They also called the Philippine Coast Guard for assistance. 5 At about 6:00 a.m., Lt.
Robert Patrimonio, YN Aurelio Estoque, CD2 Phoudinie Lantao and RM3 Merchardo De Guzman
of the Philippine Coast Guard arrived and took custody of the accused and the seized items--the
Samsonite suitcase, a brown bag6 and eight (8) small plastic packs of white crystalline
substance.7 When asked about the contraband articles, the accused explained that he was just
requested by a certain Alican "Alex" Macapudi to bring the suitcase to the latter's brother in Iligan
City.8 The accused and the seized items were later turned over by the coast guard to the
Presidential Anti-Organized Crime Task Force (PAOCTF). Chief Inspector Graciano Mijares and
his men brought the accused to the PAOCTF Headquarters, 9 while the packs of white crystalline
substance were sent to the NBI Regional Office in Cagayan de Oro City for laboratory
examination. NBI Forensic Chemist Nicanor Cruz later confirmed the substance to be
methamphetamine hydrochloride, commonly known as "shabu," weighing 399.3266 grams. 10
The accused testified and proffered his own version. On March 11, 1999, at about 10:00 p.m., he
was in Quiapo, Manila where he met Alican "Alex" Macapudi, a neighbor who has a store in
Marawi City. He was requested by Macapudi to bring a Samsonite suitcase containing
sunglasses and watches to Iligan City, and to give it to Macapudi's brother at the Iligan port. He
boarded the M/V Super Ferry 5 on the same night, carrying a big luggage full of clothes, a small
luggage or "maleta" containing the sunglasses and brushes he bought from Manila, and the
Samsonite suitcase of Macapudi.11 He stayed at cabin no. 106. At about 4:00 a.m of March 13,

1999, as the vessel was about to dock at the Iligan port, he took his baggage and positioned
himself at the economy section to be able to disembark ahead of the other passengers. There, he
met a friend, Ansari Ambor. While they were conversing, five (5) members of the vessel security
force and a woman whom he recognized as his co-passenger at cabin no. 106 came and told him
that he was suspected of stealing jewelry. He voluntarily went with the group back to cabin no.
106 where he was frisked. Subsequently, he was asked to get his baggage, so he went back to
the economy section and took the big luggage and Macapudi's Samsonite suitcase. He left the
small "maleta" containing sunglasses and brushes for fear that they would be confiscated by the
security personnel. When requested, he voluntarily opened the big luggage, but refused to do the
same to the Samsonite suitcase which he claimed was not his and had a secret combination lock.
The security personnel forcibly opened the suitcase and found packs of white crystalline
substance inside which they suspected to be "shabu." They took pictures of him with the
merchandise, and asked him to sign a turn over receipt which was later given to the Philippine
Coast Guard, then to the PAOCTF.12
On December 27, 1999, the trial court rendered judgment, the dispositive portion of which reads:
"WHEREFORE, the court finds the accused Basher Bongcarawan y Macarambon
GUILTY beyond reasonable doubt as principal of the offense of violation of Section 16,
Art. III, R.A. No. 6425 as amended by R.A. No. 7659 and hereby imposes upon him the
penalty of RECLUSION PERPETUA and a fine of FIVE HUNDRED THOUSAND
(P500,000.00) PESOS, without subsidiary imprisonment in case of insolvency.
Having been under preventive imprisonment since March 13, 1999 until the present, the
period of such preventive detention shall be credited in full in favor of the accused in the
service of his sentence.
The 399.3266 grams of methamphetamine hydrochloride or shabu is hereby ordered
delivered to the National Bureau of Investigation for proper disposition.
SO ORDERED."13
Hence, this appeal where the accused raises the following assignment of errors:
"I.
THE COURT A QUO ERRED IN SO HOLDING THAT THE DRUG CONFISCATED IS
ADMISSIBLE IN EVIDENCE AGAINST THE ACCUSED/APPELLANT.
II.
THE COURT A QUO ERRED IN SO HOLDING THAT THE APPELLANT OWNED THE
CONFISCATED EVIDENCE AND THEREFORE ADMISSIBLE IN EVIDENCE AGAINST
HIM."14
On the first assignment of error, the accused-appellant contends that the Samsonite suitcase
containing the methamphetamine hydrochloride or "shabu" was forcibly opened and searched
without his consent, and hence, in violation of his constitutional right against unreasonable search
and seizure. Any evidence acquired pursuant to such unlawful search and seizure, he claims, is
inadmissible in evidence against him. He also contends that People v. Marti15 is not applicable in
this case because a vessel security personnel is deemed to perform the duties of a policeman.
The contentions are devoid of merit.

The right against unreasonable search and seizure is a fundamental right protected by the
Constitution.16 Evidence acquired in violation of this right shall be inadmissible for any purpose in
any proceeding.17 Whenever this right is challenged, an individual may choose between invoking
the constitutional protection or waiving his right by giving consent to the search and seizure. It
should be stressed, however, that protection is against transgression committed by the
government or its agent. As held by this Court in the case of People v. Marti,18 "[i]n the absence
of governmental interference, liberties guaranteed by the Constitution cannot be invoked against
the State."19 The constitutional proscription against unlawful searches and seizures applies as a
restraint directed only against the government and its agencies tasked with the enforcement of
the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary
and unreasonable exercise of power is imposed.20
In the case before us, the baggage of the accused-appellant was searched by the vessel security
personnel. It was only after they found "shabu" inside the suitcase that they called the Philippine
Coast Guard for assistance. The search and seizure of the suitcase and the contraband items
was therefore carried out without government intervention, and hence, the constitutional
protection against unreasonable search and seizure does not apply.
There is no merit in the contention of the accused-appellant that the search and seizure
performed by the vessel security personnel should be considered as one conducted by the police
authorities for like the latter, the former are armed and tasked to maintain peace and order. The
vessel security officer in the case at bar is a private employee and does not discharge any
governmental function. In contrast, police officers are agents of the state tasked with the
sovereign function of enforcement of the law. Historically and until now, it is against them and
other agents of the state that the protection against unreasonable searches and seizures may be
invoked.
On the second assignment of error, the accused-appellant contends that he is not the owner of
the Samsonite suitcase and he had no knowledge that the same contained "shabu." He submits
that without knowledge or intent to possess the dangerous drug, he cannot be convicted of the
crime charged.21
We are not persuaded.
In a prosecution for illegal possession of dangerous drugs, the following facts must be proven
beyond reasonable doubt, viz: (1) that the accused is in possession of the object identified as a
prohibited or a regulated drug; (2) that such possession is not authorized by law; and (3) that the
accused freely and consciously possessed the said drug.22 The first two elements were
sufficiently proven in this case, and were in fact undisputed. We are left with the third.
As early as 1910 in the case of United States v. Tan Misa,23 this Court has ruled that to warrant
conviction, the possession of dangerous drugs must be with knowledge of the accused, or that
animus possidendi existed together with the possession or control of such articles. 24 It has been
ruled, however, that possession of dangerous drugs constitutes prima facie evidence of
knowledge or animus possidendi sufficient to convict an accused in the absence of a satisfactory
explanation of such possession.25 Hence, the burden of evidence is shifted to the accused to
explain the absence of knowledge or animus possidendi.26
In this respect, the accused-appellant has utterly failed. His testimony, uncorroborated, selfserving and incredulous, was not given credence by the trial court. We find no reason to disagree.
Well-settled is the rule that in the absence of palpable error or grave abuse of discretion on the
part of the trial judge, the trial court's evaluation of the credibility of witnesses will not be disturbed
on appeal.27 Moreover, evidence must be credible in itself to deserve credence and weight in law.
In this case, the accused-appellant admits that when he was asked to get his baggage, he knew it

would be inspected.28 Why he got the Samsonite suitcase allegedly not owned by him and which
had a combination lock known only to the owner remains unclear. He also claims that he did not
present his small "maleta" for inspection for fear that its contents consisting of expensive
sunglasses and brushes would be confiscated,29 but he brought the Samsonite suitcase which is
not his and also contained expensive sunglasses, and even watches. 30
The things in possession of a person are presumed by law to be owned by him. 31 To overcome
this presumption, it is necessary to present clear and convincing evidence to the contrary. In this
case, the accused points to a certain Alican "Alex" Macapudi as the owner of the contraband, but
presented no evidence to support his claim. As aptly observed by the trial judge:
"First, who is Alex Macap[u]di aka Ali[c]an Macap[u]di? Does he really exist or simply a
figment of the imagination? He says that Alex Macap[u]di is a friend and a fellow
businessman who has a stall selling sunglasses in Marawi City. But no witnesses were
presented to prove that there is such a living, breathing, flesh and blood person named
Alex Macap[u]di who entrusted the Samsonite to the accused. Surely, if he does exist, he
has friends, fellow businessmen and acquaintances who could testify and support the
claim of the accused."32
Mere denial of ownership will not suffice especially if, as in the case at bar, it is the keystone of
the defense of the accused-appellant. Stories can easily be fabricated. It will take more than barebone allegations to convince this Court that a courier of dangerous drugs is not its owner and has
no knowledge or intent to possess the same.1wphi1.nt
WHEREFORE, the decision of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case
No. 06-7542, convicting accused-appellant Basher Bongcarawan of violation of Section 16, Article
III of Republic Act No. 6425, as amended, and sentencing him to suffer the penalty of Reclusion
Perpetua and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary
imprisonment in case of insolvency, is AFFIRMED.
Costs against the accused-appellant.
SO ORDERED.

[G.R. Nos. 148712-15. January 21, 2004]


PEOPLE OF THE PHILIPPINES, appellee, vs. DOMINADOR CACHOLA y SALAZAR, ERNESTO
AMAY y PASCUA, NESTOR MARQUEZ y MANUEL, BENJAMIN LAEGEN y CAMADO,
RODOLFO SAGUN y JIMENEZ, RODEMIR GUERZO y LATAOAN, MELLKE IGNACIO y
SALVADOR, and NELSON C. ECHABARIA, appellants.
DECISION
PER CURIAM:
In just an instant, 12-year-old Jessie E. Barnachea lost his mother, an elder brother, an uncle, and
a cousin as a result of the carnage that took place at around 6:00 p.m. of 28 December 1999 right

inside their house in Barangay Calumbaya, Bauang, La Union. Their horrible death was attributed
to herein appellants, who, however, pleaded not guilty to the four separate informations for
murder.
At the trial before the Regional Trial Court of Bauang, La Union, Branch 67, the prosecution
presented as witnesses Jessie and his brother and neighbors, as well as several police officers.
Their testimonies disclose as follows:
Jessie was about to leave their house to watch cartoons in his uncles house next door when two
armed men suddenly entered the front door of their house. The two ordered Jessie to drop to the
floor, and then hit him in the back with the butt of a long gun. Without much ado, the intruders
shot to death Jessies uncle, Victorino V. Lolarga, who was then in the living room. Jessie
forthwith crawled and hid under a bed, from where he saw the feet of a third man who had also
entered the house. The men entered the kitchen and continued shooting. When the rampage was
over and after the malefactors had already departed, Jessie came out of his hiding place and
proceeded to the kitchen. There he saw his mother, Carmelita Barnachea; his brother Felix
Barnachea, Jr.; and his cousin Rubenson Abance - all slaughtered.1[1]
Meanwhile, Jessies eldest brother, Robert E. Barnachea, was in his uncles house watching
television with his aunt and young cousins when he sensed a commotion outside. When Robert
went out to see what was transpiring, he saw armed men running towards their house. One of
them turned and pointed a gun at him, prompting him to scamper away and hide at the back of
his uncles house. From where he was hiding, he noticed a stainless jeep, with blue rim and
marking fruits and vegetables dealer, parked in front of the fence of their house. Standing
behind the jeep were three armed men wearing bonnets, with only their nose and eyes exposed.
In the next instant, he heard gunshots and then saw men running from his house. The men
hurriedly boarded the jeep and left the place.2[2]
The jeep did not go unnoticed by the neighbors. Russel Tamba was with some friends in front of
Rodas Store, around 100 meters away from the Barnachea residence, when the jeep passed by
very slowly going towards the Barnachea residence. According to him, the jeep had a marking El
Shaddai in front, aside from the marking fruits and vegetables dealer on the sides. 3[3]
Francisco Andrada was also talking with some people in front of the Calumbaya Barangay Hall,
only five meters away from Rodas Store, when he noticed that jeep, with the El Shaddai
marking, pass by.4[4] Not long after, both heard gunshots and later saw the jeep pass by again,
this time running very fast.5[5]
The incident was immediately reported to the police, and the description of the El Shaddai jeep
used by the malefactors was relayed through radio to the police stations in the province of La
Union.6[6] At around 7:45 p.m., the jeep was intercepted at a checkpoint set up in the highway by
the police force in Aringay, La Union. On board were the eight appellants. No firearms were found
in the vehicle. The jeep and the eight appellants were thereafter brought to the Aringay police
station and then turned over to the Bauang police.7[7]
When the Chief of Police of Bauang Benjamin M. Lusad was informed of the apprehension of the
eight appellants, he went to the Barnachea residence, where he came to know that Jessie was an

1
2
3
4
5
6
7

eyewitness. He invited Jessie to ride with him to pick up the suspects. While Lusad was
supervising the boarding of the suspects into the vehicle, Jessie was in another police vehicle
with PO3 Juan Casern, Jr., to see whether he could recognize any one of the eight men. Jessie
pointed to Dominador Cachola and Ernesto Amay as the two armed men who entered his house
and killed his relatives. During the police line-up at the Bauang Police Station, Jessie again
identified Cachola and Amay as the assailants.8[8] The next day, when the police conducted the
third confirmatory investigation, which was to present Jessie with photographs of the suspects,
Jessie identified the two for the third time.
The eight appellants were thereafter subjected to paraffin test. But only the right hands of
Cachola and Amay yielded positive results for gunpowder nitrates.9[9]
The Death Certificates attest to the gruesome and merciless killings. Carmelita sustained one
gunshot wound on her head and three on her body; 10[10] Felix, Jr., two gunshot wounds on his
head and on his body, and stab wounds on his chest and arms; 11[11] Victorino, two gunshot
wounds on his head, three on his body, and with his penis excised; 12[12] Rubenson, one gunshot
wound on his head and a stab wound that lacerated his liver.13[13]
The testimonies of the other prosecution witnesses were dispensed with upon the stipulation by
the public prosecutor and the counsels for the appellants that the nature of their testimonies
would be that (1) PO3 Juan Casern, Jr., was inside the police car with Jessie when the latter
recognized appellants Cachola and Amay; (2) Mark Garcia would corroborate the testimony of
Felix Andrada regarding the description of the jeep; (3) Felix Barnachea, Sr., suffered actual
damages amounting to P177,000 as a result of the death of his wife Carmelita and son Felix, Jr.;
(4) a police officer of Aringay, La Union, flagged down the jeep at the checkpoint and saw the
appellants on board; and (5) a police officer of Bauang, La Union, would identify the pictures
taken at the crime scene.
After the prosecution had rested its case, the defense counsels orally asked for leave of court to
file a demurrer to evidence. The trial court denied the motion outright and set the schedule for the
presentation of the evidence for the defense.14[14] Instead of presenting their evidence, however,
the appellants, through their respective counsels, filed a Demurrer to Evidence 15[15] even without
leave of court.
On 26 September 2000, the trial court rendered a decision 16[16] (1) convicting (a) Cachola and
Amay, as principals, of four counts of murder and sentencing them to suffer four counts of the
supreme penalty of death; and (b) Marquez, Laegen, Sagun, Guerzo, Ignacio, and Echabaria, as
accomplices, of four counts of murder and sentencing them to suffer four counts of the
indeterminate penalty of eight years of prision mayor as minimum to twelve years and one day of
reclusion temporal as maximum; and (2) ordering all of them to pay the heirs of the victims a total
of P300,000 as death indemnity; P200,000 as moral damages; and P177,000 as actual or
compensatory damages.

8
9
10
11
12
13
14
15
16

Before us on automatic review, appellants Cachola, Sagun, Ignacio, and Marquez contend that
the trial court erred (1) in finding conspiracy among them and their co-appellants; (2) in finding
proof beyond reasonable doubt; and (3) in not dismissing the informations outright despite a
motion before arraignment, there having been a clear illegal arrest and denial of due process.
As for appellants Amay, Guerzo, Laegen, and Echabaria, they assert that the trial court erred (1)
in finding appellant Amay guilty beyond reasonable doubt as principal in the crime of murder; and
(2) in not acquitting appellants Guerzo, Laegen, and Echabaria for insufficiency of evidence and
on reasonable doubt.
In its Consolidated Reply Brief, the Office of the Solicitor General (OSG) recommends the
affirmance of the conviction for murder of appellants Cachola and Amay, and the acquittal of the
other appellants for failure of the prosecution to establish their identity and participation beyond
reasonable doubt.
We agree with the recommendation of the OSG to acquit appellants Sagun, Ignacio, Marquez,
Guerzo, Laegen, and Echabaria. Upon a thorough review of the records of the case, we found
nothing that would show their participation in the commission of the crimes. Not one of the
prosecution witnesses identified them as among the malefactors who were at the Barnachea
residence on that fateful day. Surprisingly, even as the trial court declared that the prosecution
failed to establish the actual participation of the other appellants in the commission of the crime, it
found that they cooperated in the execution of the offense by previous or simultaneous
acts.17[17] It appears, however, that the only reason why they were implicated was that they were
with Cachola and Amay on board the jeep that was intercepted in Aringay, La Union, almost two
hours after the killings. What constitute previous or simultaneous acts that would make them
liable as accomplices are not found in the decision or in any evidence on record.
To hold a person liable as an accomplice, two elements must concur: (1) community of design,
which means that the accomplice knows of, and concurs with, the criminal design of the principal
by direct participation; and (2) the performance by the accomplice of previous or simultaneous
acts that are not indispensable to the commission of the crime. 18[18] In the present case, neither
element was proved. The mere presence of the six appellants in the company of appellants
Cachola and Amay on board a jeep is not evidence of their knowledge of, or assent to, the
criminal design to perpetuate the massacre.19[19] That they were found to be with appellants
Cachola and Amay almost two hours after the commission of the crime does not constitute
previous or simultaneous act. Absent a link between the crime and their presence in the jeep two
hours later, we cannot consider their participation even as accessories to the crime.
It is a basic evidentiary rule in criminal law that the prosecution has the burden of proving the guilt
of the accused beyond reasonable doubt.20[20] If the prosecution fails to discharge that burden,
the accused need not present any evidence.21[21] Thus, for utter lack of evidence against the six
appellants, their acquittal is in order.
However, as regards appellants Cachola and Amay, we concur with the trial court and the OSG
that the prosecution had presented sufficient evidence to prove their guilt beyond reasonable
doubt. The credible testimony of, and positive identification by, Jessie Barnachea, which are
corroborated by forensic evidence, i.e., the positive results of the paraffin test on the right hands
of Cachola and Amay, constitute sufficient evidence to sustain their conviction.

17
18
19
20
21

As to the credibility of Jessie Barnachea, the trial court made the following observations:
The Court observed the demeanor of Jessie Barnachea on the witness stand and ... did not
observe any indication of falsehood in his narration. He showed obvious readiness to answer
questions propounded to him. His reactions and answers to the questions displayed evident
respect for truth. He remained consistent on cross-examination. He positively identified accused
Amay and Cachola as the one who shot and killed his family. The Court did not observe any
hesitancy or indication of uncertainty - and his recital of the events appeared spontaneous. 22[22]
There is nothing on record that gives this Court cause to interfere with the trial courts
determination of the credibility of Jessie. Indeed, his testimony was unwavering despite attempts
of the defense counsels to confuse or trap him. The alleged inconsistency between Jessies
sworn statement and testimony on the number of malefactors, if at all, does not detract from his
credibility. That Jessie saw two armed men enter his house is clear. While the defense claims
ambiguity as to the presence of a third man, Jessies statement easily reveals that the third man
was not immediately mentioned because he (the third man) only followed the two and Jessie did
not see his face.
It is also pointed out that Jessies identification of Cachola and Amay runs counter to Roberts
testimony that the armed men were wearing bonnets. Again, from their testimonies, it is apparent
that the brothers saw different men. Besides, Robert also stated that one of the men did not have
his head covered. As to the alleged improbability of the lookouts wearing bonnets while the
principal shooters were unmasked, or of the malefactors sparing Jessie, suffice it to say that such
circumstances are not so incredible as to cast reasonable doubt on the truth of the narrated
events.
In sum, none of the alleged inconsistencies, minor as they are, could leave us with doubt that
Jessie was present in his house and saw armed men shoot his relatives. Barely two hours had
passed since he witnessed the gruesome murders when Jessie identified appellants Cachola and
Amay as the malefactors. Reasonably, the memory of their faces was still fresh on his mind.
Moreover, Jessie identified the two appellants two times more at the police station and once in
open court, and he never faltered in his identification.
Significantly, the appellants have not imputed any ill motive to Jessie for testifying against
Cachola and Amay. Where there is no evidence to show a doubtful reason or improper motive
why a prosecution witness should testify against the accused or falsely implicate him in a crime,
the said testimony is trustworthy and should be accorded full faith and credit. 23[23]
In all, there does not appear on record to be some fact or circumstance of weight and influence
which the trial court has overlooked or the significance of which it has misapprehended or
misinterpreted. 24[24] We rely, therefore, on the competence of the trial court to decide the
question of credibility of the witnesses, having heard them and observed their deportment and
manner of testifying during the trial.25[25]
The reliance by appellant Cachola on People v. Teehankee26[26] is misplaced. In that case the
negative result of the paraffin test did not preclude a finding of guilt by the trial court, the reason
being that the accused was tested for the presence of nitrates only after more than 72 hours had
lapsed from the time of the shooting. In the present case, the paraffin test was conducted on the

22
23
24
25
26

same night the shooting incident occurred; hence, the lapse of only a few hours increases its
reliability. While the presence of nitrates on accuseds hand is not conclusive of guilt, it bolsters
the testimony of an eyewitness that the accused fired a gun.
As to whether the trial court erred in not allowing the appellants to present evidence after filing
their demurrer to evidence without leave of court, then Section 15, Rules 119 of the Rules of
Court27[27] is clear on the matter, thus:
SEC. 15. - Demurrer to evidence. - After the prosecution has rested its case, the court may
dismiss the case on the ground of insufficiency of evidence: (1) on its own initiative after giving
the prosecution an opportunity to be heard; or (2) on motion of the accused filed with prior leave
of court.
If the court denies the motion for dismissal, the accused may adduce evidence in his defense.
When the accused files such motion to dismiss without express leave of court, he waives the
right to present evidence and submits the case for judgment on the basis of the evidence for the
prosecution. (Underscoring supplied).
The filing by the appellants of a demurrer to evidence in the absence of prior leave of court was a
clear waiver of their right to present their own evidence. To sustain their claim that they had been
denied due process because the evidence they belatedly sought to offer would have exculpated
them would be to allow them to wager on the outcome of judicial proceedings by espousing
inconsistent viewpoints whenever dictated by convenience. 28[28] Furthermore, it cannot be said
that the waiver was not clear. The trial court postponed the hearings on the motion for demurrer,
even after leave of court had been denied, and then granted extensions to Amay until he finally
adopted the position of his co-appellants. At no time other than in this automatic review was there
any attempt that is contrary to the waiver of the presentation of evidence.
Neither can the question of the legality of the warrantless arrest of the appellants be raised for the
first time before this Court. As arrests fall into the question of the exercise by the trial court of its
jurisdiction over the person of the accused, the question should have been raised prior to their
arraignment. That the appellants objected to the arrests prior to the arraignment 29[29] is
unsubstantiated. Their claim that they requested an extension of time to file a motion to quash the
information or to dismiss the case,30[30] which the trial court allegedly denied, cannot save the
day for them. The fact remains that before arraignment, no such motion was filed. Even assuming
that their arrest was illegal, their act of entering a plea during their arraignment constituted a
waiver of their right to question their arrest.31[31]
We now discuss the circumstances that attended the commission of the crimes.
The information alleges the qualifying circumstances of treachery and evident premeditation.
There is no doubt that the killings were done with treachery, considering that the assailants
suddenly barged in and immediately went on a shooting rampage. We have time and again ruled
that when the attack is sudden and unexpected, there is treachery.32[32] The presence of even
this single qualifying circumstance is sufficient to qualify the killing to murder.33[33]

27
28
29
30
31
32
33

As to the qualifying circumstance of evident premeditation, we find the same lacking, for there is
no evidence of planning or preparation to kill, much less of the time when the plot was
conceived.34[34]
It may not be amiss to mention that the death certificate of Victorino Lolarga reveals that his penis
was excised. One may wonder whether such circumstance amounted to ignominy that can
aggravate the offense.
For ignominy to be appreciated, it is required that the offense be committed in a manner that
tends to make its effect more humiliating, thus adding to the victims moral suffering. Where the
victim was already dead when his body or a part thereof was dismembered, ignominy cannot be
taken against the accused.35[35] In this case, the information states that Victorinos sexual organ
was severed after he was shot and there is no allegation that it was done to add ignominy to the
natural effects of the act. We cannot, therefore, consider ignominy as an aggravating
circumstance.
However, as regards Carmelita and Felix, Jr., we appreciate the aggravating circumstance of
dwelling, since it was alleged in the information and proved during the trial that they were killed
inside their house. Appellants Cachola and Amay, therefore, violated the sanctity of the said
victims home.
Article 248 of the Revised Penal Code provides that the penalty for murder is reclusion perpetua
to death. In conjunction, Article 63 of the Revised Penal Code provides that when the law
prescribes two indivisible penalties, the greater penalty shall be imposed when in the commission
of the deed, there is present one aggravating circumstance. In the cases of Carmelita and Felix
Jr., in Criminal Cases Nos. 2324 and 2325, there is one aggravating circumstance and no
mitigating circumstance to offset it; hence, the higher penalty of death imposed by the trial court
stands.
Three members of the Court maintain their adherence to the separate opinions expressed in
People vs. Echegaray36[36] that Republic Act No. 7659, insofar as it prescribes the penalty of
death, is unconstitutional; nevertheless they submit to the ruling of the majority that the law is
constitutional and that the death penalty should accordingly be imposed.
But in the cases of Victorino and Rubenson, in Criminal Cases Nos. 2323 and 2326, there being
no aggravating or mitigating circumstance, the penalty should be reclusion perpetua, which is the
lower of the two indivisible penalties prescribed by law.
As regards the civil liability of appellants Cachola and Amay, we hold them jointly and severally
liable to pay the heirs of each of the victims death indemnity and moral damages each in the
amount of P50,000, or a total of P400,000. They are further ordered to pay the respective heirs of
Carmelita and Felix Jr. exemplary damages in the amount of P25,000, or a total of P50,000, in
view of the presence of one aggravating circumstance in the commission of the crime against the
said victims. As to the claim for damages by Felix Barnachea Sr. in the amount of P177,000, we
sustain the same even if only a list of expenses, 37[37] not official receipts, was submitted
because such amount was admitted by the defense during the trial. 38[38] Moreover, although
there is no evidence as to the amount spent as a result of the death of Victorino and Rubenson,

34
35
36
37
38

their respective heirs shall be awarded temperate damages in the amount of P25,000, since they
clearly incurred funeral expenses.39[39]
WHEREFORE, the assailed decision dated 26 September 2000 of the Regional Trial Court of
Bauang, La Union, Branch 67, is hereby AFFIRMED insofar as DOMINADOR CACHOLA y
SALAZAR and ERNESTO AMAY y PASCUA are found GUILTY of four counts of murder in
Criminal Cases Nos. 2323-26 and sentenced to suffer the supreme penalty of death in Criminal
Cases Nos. 2324 and 2325. The said decision is, however, MODIFIED in that they are (1)
sentenced to suffer the penalty of reclusion perpetua, instead of death, in Criminal Cases Nos.
2323 and 2326; and (2) ordered to pay, jointly and severally, the following damages:
a. P50,000 as death indemnity in favor of the heirs of each victim, or a total of
P200,000;
b. P50,000 as moral damages in favor of the heirs of each victim, or a total of
P200,000;
c. P25,000 as exemplary damages in favor of the respective heirs of Carmelita
Barnachea and Felix Barnachea Jr., or a total of P50,000;
d. P177,000 as actual damages in favor of the heirs of Carmelita Barnachea and Felix
Barnachea Jr.; and
e. P25,000 as temperate damages in favor of the respective heirs of Rubenson Abance
and Victorino Lolarga, or a total of P50,000.
The assailed decision is REVERSED insofar as appellants NESTOR MARQUEZ y MANUEL,
BENJAMIN LAEGEN y CAMADO, RODOLFO SAGUN y JIMENEZ, RODEMIR GUERZO y
LATAOAN, MELLKE IGNACIO y SALVADOR, and NELSON C. ECHABARIA are concerned, and
another one is hereby rendered (1) acquitting them of the crimes charged for insufficiency of
evidence; (2) ordering their immediate release from confinement unless their further detention is
warranted by virtue of any lawful cause; and (3) directing the Director of the Bureau of
Corrections to submit a report on their release within five days from notice hereof.
Costs de oficio.
SO ORDERED.

39

[G.R. No. 127755. April 14, 1999]


PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSELITO DEL ROSARIO y PASCUAL,
accused-appellant.
DECISION
BELLOSILLO, J.:
ON AUTOMATIC REVIEW is the decision of the court a quo finding accused Joselito del Rosario
y Pascual guilty as co-principal in the crime of Robbery with Homicide and sentencing him to
death and to pay the heirs of the victim Virginia Bernas P550,000.00 as actual damages and
P100,000.00 as moral and exemplary damages.i[1]
Joselito del Rosario y Pascual, Ernesto Marquez alias Jun, Virgilio Santos alias Boy Santos
and John Doe alias Dodong were charged with special complex crime of Robbery with Homicide
for having robbed Virginia Bernas, a 66-year old businesswoman, of P200,000.00 in cash and
jewelry and on the occasion thereof shot and killed her.ii[2]
While accused Joselito del Rosario pleaded not guilty,iii[3] Virgilio Boy Santos and John Doe
alias Dodong remained at large. Ernesto Jun Marquez was killed in a police encounter. Only
Joselito del Rosario was tried.
These facts were established by the prosecution from the eyewitness account of tricycle driver
Paul Vincent Alonzo: On 13 May 1996 between 6:00 and 6:30 in the evening, Alonzo stopped his

tricycle by the side of Nitas Drugstore, General Luna St., Cabanatuan City, when three women
flagged him. Parked at a distance of about one and a-half (1) meters in front of him was a
tricycle driven by accused Joselito del Rosario. At that point, Alonzo saw two (2) men and a
woman grappling for possession of a bag. After taking hold of the bag one of the two men armed
with a gun started chasing a man who was trying to help the woman, while the other snatcher
kicked the woman sending her to the ground. Soon after, the armed man returned and while the
woman was still on the ground he shot her on the head. The bag taken by the man was brought
to the tricycle of accused del Rosario where someone inside received the bag. The armed man
then sat behind the driver while his companion entered the sidecar. When the tricycle sped away
Alonzo gave chase and was able to get the plate number of the tricycle. He also recognized the
driver, after which he went to the nearest police headquarters and reported the incident. iv[4]
Accused Joselito del Rosario gave his own version of the incident: At around 5:30 in the
afternoon he was hired for P120.00v[5] by a certain Boy Santos,vi[6] his co-accused. Their
original agreement was that he would drive him to cockpit at the Blas Edward Coliseum. vii[7]
However, despite their earlier arrangement boy Santos directed him to proceed to the market
place to fetch Jun Marquez and Dodong Bisaya. He (del Rosario) acceded. viii[8] Marquez and
Bisaya boarded in front of the parking lot of Merced Drugstore at the public market.ix[9]
Subsequently, he was asked to proceed and stop at the corner of Burgos and General Luna Sts.
where Bisaya alighted on the pretest of buying a cigarette. The latter then accosted the victim
Virginia Bernas and grappled with her for the possession of her bag. Jun Marquez alighted from
the tricycle to help Dodong Bisaya.x[10] Accused del Rosario tried to leave and seek help but
Boy Santos who stayed inside the tricycle prevented him from leaving and threatened in fact to
shoot him.
Meanwhile, Dodong Bisaya succeeded in taking the victims bag, but before boarding the
tricycle Jun Marquez mercilessly shot the victim on the head while she was lying prone on the
ground. After the shooting, Dodong Bisaya boarded the sidecar of the tricycle while Jun
Marquez rode behind del Rosario and ordered him to start the engine and drive towards
Dicarma. While inside his tricycle, del Rosario overheard his passengers saying that they would
throw the bag at Zulueta St. where there were cogon grasses. xi[11] Upon arriving at Dicarma, the
three (3) men alighted and warned del Rosario not to inform the police authorities about the
incident otherwise he and his family would be harmed. xii[12] Del Rosario then went home.xiii[13]
Because of the threat, however, he did not report the matter to the owner of the tricycle nor to the
barangay captain and the police.xiv[14]
As earlier stated, the court a quo found accused Joselito del Rosario guilty as charged and
sentenced him to death. He now contends in this automatic review that the court a quo erred in:
(1) Not finding the presence of threat and irresistible force employed upon him by his co-accused
Virgilio Boy Santos, Ernesto Jun Marquez and Dodong Bisaya; (2) Not considering his
defense that he was not part of the conspiracy among co-accused "Boy" Santos, "Jun" Marquez
and "Dodong" Bisaya to commit the crime of Robbery with Homicide; (3) Not considering the
violations on his constitutional rights as an accused; and, (4) Not considering that there was no
lawful warrantless arrest within the meaning of Sec. 5, Rule 113, of the Rules of Court. xv[15]
The conviction of del Rosario must be set aside. His claim for exemption from criminal liability
under Art. 12, par. 5, Revised Penal Code as he acted under the compulsion of an irresistible
force must be sustained. He was then unarmed and unable to protect himself when he was
prevented at gunpoint by his co-accused from leaving the crime scene during the perpetration of
the robbery and killing, and was only forced to help them escape after the commission of the
crime.xvi[16]
But the trial court ruled that his fear was merely speculative, fanciful and remote, hence, could not
be considered uncontrollable; and that a gun pointed at him did not constitute irresistible force
because it fell short of the test required by law and jurisprudence. xvii[17]

We disagree. A person who acts under the compulsion of an irresistible force, like one who acts
under the impulse of an uncontrollable fear of equal or greater injury, is exempt from criminal
liability because he does not act with freedom. Actus me invito factus non est meus actus. An
act done by me against my will is not my act. The force contemplated must be so formidable as
to reduce the actor to a mere instrument who acts not only without will but against his will. The
duress, force, fear or intimidation must be present, imminent and impending, and of such nature
as to induce a well-grounded apprehension of death or serious bodily harm if the act be done. A
threat of future injury is not enough. The compulsion must be of such a character as to leave no
opportunity for the accused for escape or self-defense in equal combat. xviii[18]
As a rule, it is natural for people to be seized by fear when threatened with weapons, even those
less powerful that a gun, such as knives and clubs. People will normally, usually and probably do
what an armed man asks them to do, nothing more, nothing less. In the instant case, del Rosario
was threatened with a gun. He could not therefore be expected to flee nor risk his life to help a
stranger. A person under the same circumstances would be more concerned with his personal
welfare and security rather than the safety of a person whom he only saw for the first time that
day.xix[19]
Corollary with defense of del Rosario, we hold that the trial court erred when it said that it was
Boy Santos who left the tricycle to chase the companion of the victim and then shot the victim
on the head, instantly killing her.xx[20] A careful and meticulous scrutiny of the transcripts and
records of the case, particularly the testimonies of the witness Alonzo and del Rosario himself,
reveals that it was Jun Marquez who ran after the victims helper and fired at the victim.
Witness Alonzo testified on direct examination Q:What was that unusual incident that transpired in that place at that time?
A:

I saw two men and a lady grappling for the possession of a bag, sir x x x x

Q:

What happened after the bag of the lady was grabbed by the two men?

A:

One helper of the lady was chased by the other man, sir.

Q:

Who was that man who chased the helper of the lady?

A:

He was the one holding the gun, sir x x x x

Q:
What happened when the bag of the woman was already taken by the two men who
grappled the same from her?
A:
The man who chased the helper of the lady returned to the scene while the other man
was then kicking the lady who in turn fell to the ground, sir.
Q:

What happened to the lady who to the ground?

A:
The man who chased the helper of the lady returned and then shot the woman who was
then lying on the ground, sir x x x x
Q:

What about the bag, what happened to the bag?

A:

The bag was taken to a motorcycle, sir.

Q:
Will you please state before the Court what you noticed from the tricycle which was at a
distance of about one and a half meter?
A:

There was a passenger inside the tricycle, sir x x x x

Q:
What happened to that woman that was shot by the man who grappled for the
possession of the bag?
A:

She was no longer moving and lying down, sir.

Q:

After the shooting by one of the two men of the woman what else happened?

A:

They went away, sir x x x x

Q:
Will you please tell the Court in what portion of the tricycle did these men sit in the
tricycle?
A:
The man who was holding the gun sat himself behind the driver while the other man
entered the sidecar, sir.xxi[21]
On the continuation of his direct examination, after an ocular inspection on the crime scene
conducted by the trial court, witness Alonzo categorically stated
Q:Will you please tell us where in particular did you see the accused who was then holding the
gun fired at the victim?
A:
At the time one man was kicking the victim it was then his other companion holding the
gun chased the helper of the deceased going towards Burgos Avenue, sir.
Q:

What happen (sic) afterwards?

A:
The man with the gun returned and then while the victim was lying down in this spot the
man holding the gun shot the victim, sir.xxii[22]
On cross-examination, the same witness further clarified
Q:So, you saw the two other accused returned back to the tricycle?
A:

Yes, sir.

Q:

And one of their companion was already inside the tricycle?


xxxx

Court: There was somebody inside the tricycle where the handbag was given.
xxxx
A:

Yes, sir.

Q:

And the one who sat at the back of the tricycle driver was the person with the gun?

A:

Yes, sir.xxiii[23]

On the other hand, accused Del Rosario declared during the direct examination that
Q:x x x x On the evening of May 13, 1996 you were the driver of the tricycle as testified to by
Eduardo Nalagon?
A:

Yes, sir.

Q:
Now, you also heard that there was a shoot out near the Cathedral and the Nitas
Drugstore at Gen. Tinio St.?
A:

Yes, sir.
xxxx

Court: At that time you were seated at the tricycle, which tricycle was used by the assailants?
A:

Yes, sir.

Q:

Then what did you do?

A:

I tried to escape, sir, but I was stopped by them.

Q:

When you said they to whom are you referring?

A:

Boy Santos and Jun Marquez, sir.

Q:

And at that time where was Boy Santos?

A:

He was inside the tricycle, sir.

Q:

And what about Jun Marquez?

A:

He alighted from the tricycle and helped him grabbed (sic) the bag of the victim.

Q:

And was the bag grabbed and by whom?

A:

Yes, sir, by Dodong Visaya was able to grab the bag.

Q:

And after that what happened?

A:

Both of them rode inside my tricycle, sir.

Court: Did you not see any shooting?


A:

There was, sir.

Q:

Who was shot?

A:

Jun Marquez shot the woman, sir x x x x

Q:
When the bag of the woman was being grabbed you know that what was transpiring was
wrong and illegal?
A:

Yes, sir.

Q:

But you did not try to leave?

A:

I tried to leave but Boy Santos who was inside my tricycle prevented me.

Q:

During that time before you leave (sic) how many firearms did you see?

A:
Two firearms, sir, one in the possession of Boy (Jun?) Marquez and one in the
possession of Boy Santos x x x x
Q:

And at the time when the shooting took place where was Boy Santos?

A:

He was still inside my tricycle, sir.

Q:
And during the shooting when Boy Santos was inside the tricycle and when you tried to
escape that was the time when Boy Santos threatened you if you will escape something will
happen to your family?
A:

Yes, sir.

Q:

After the shooting who first boarded the tricycle, Boy (Jun?) Marquez or Dodong Visaya?

A:

Dodong Visaya, sir.

Q:

And immediately thereafter Jun Marquez boarded your tricycle sitting at your back?

A:

Yes, sir.xxiv[24]

On cross-examination, accused further stated


Q:After shopping in that place for one minute what else happened?
A:

I saw Dodong Bisaya grabbing the bag of the woman, sir.

Q:
How about your two companions, what are (sic) they doing while Dodong Bisaya was
grabbing the bag of the woman?
A:

Jun Marquez was helping Dodong Bisaya, sir.

Q:

What happened after Jun Marquez helped Dodong Bisaya?

A:

I heard a gunshot and I saw the woman lying down x x x x

Q:

You could have ran away to seek the help of the police or any private persons?

A:

I was not able to ask for help because Boy Santos pointed his gun to me, sir.

Q:
Was the gun being carried by Boy Santos, is the one that is used in shooting the old
woman?
A:

No, sir x x x x.

Q:
Where was Boy Santos when Dodong Bisaya and Jun Marquez were grappling for the
possession of the handbag?
A:

He was then inside the tricycle, sir x x x xxxv[25]

Q:Mr. Witness, you testified that the reason why you just cannot leave the area where the
incident occurred is because a gun was pointed to you by Boy Santos and he was telling you that
you should not do anything against their will, they will kill you and your family will be killed also, is
that correct?
A:

Yes, sir.

Q:
Now, is it not a fact that at the time you stop (sic) your tricycle which was loaded by your
other three co-accused in this case, all of them alighted and that Boy Santos ran after a helper of
the victim going towards the public market along Burgos Street?
A:

He did not alight from the tricycle, sir.

Court: Are you quite sure of that?


A:

Yes, sir.xxvi[26]

Del Rosario maintains that Boy Santos never left the tricycle and that the latter pointed his gun
at him and threatened to shoot if he tried to escape. He also asserted that it was Jun Marquez
who shot the victim and sat behind him in the tricycle.
From the narration of witness Alonzo, these events stood out: that after the bag of the victim was
grabbed, her male helper was chased by a man holding a gun; that the gunwielder returned and
shot the victim and then sat behind the driver of the tricycle; and, the bag was given to a person
who was inside the tricycle. Taking the testimony of witness Alonzo in juxtaposition with the
testimony of del Rosario, it can be deduced that Jun Marquez was the person witness Alonzo
was referring to when he mentioned that a helper of the lady was chased by the other man and
that this other man could not be Boy Santos who stayed inside the tricycle and to whom the
bag was handed over. This conclusion gives credence to the claim of del Rosario that Boy
Santos never left the tricycle, and to his allegation that Boy Santos stayed inside the tricycle
precisely to threaten him with violence and prevent him from fleeing; that there could have been
no other plausible reason for Boy Santos to stay in the tricycle if the accused was indeed a
conspirator; that Boy Santos could have just left the tricycle and helped in the commission of the
crime, particularly when he saw the victim grappling with Dodong Bisaya and resisting the
attempts to grab her bag; and, that Boy Santos opted to remain inside the tricycle to fulfill his
preordained role of threatening del Rosario and insuring that he would not escape and leave
them behind.xxvii[27]
Even if the tricycle of del Rosario was only parked one meter and a half (1) in front of the
tricycle of witness Alonzo, the latter still could not have totally seen and was not privy to events
that were transpiring inside the vehicle, i.e., the pointing of the gun by Boy Santos at del Rosario
simultaneously with the robbing and shooting of the victim. From the exhibits submitted by the
prosecution panel the back of the sidecar of del Rosario tricycle was not transparent. xxviii[28]

There is no doubt that the fear entertained by del Rosario because of the gun directly pointed at
him was real and imminent. Such fear rendered him immobile and subject to the will of Boy
Santos, making him for the moment of automaton without a will of his own. In other words, in
effect, he could not be any more than a mere instrument acting involuntarily an against his will.
He is therefore exempt from criminal liability since by reason of fear of bodily harm he was
compelled against his will to transport his co-accused away from the crime scene.
On the issue of conspiracy, the trial court anchored del Rosarios conviction on his participation in
the orchestrated acts of Boy Santos, Jun Marquez and Dodong Bisaya. According to the trial
court, del Rosario facilitated the escape of the other malefactors from the crime scene and
conspiracy between accused and his passengers was evident because while the grappling of the
bag, the chasing of the helper of the victim and the shooting that led to the death of Virginia
Bernas were happening, accused Joselito del Rosario was riding on his tricycle and the engine of
the motor was running;xxix[29] that the accused did not deny that the tricycle driven by him and
under his control was hired and used by his co-accused in the commission of the crime; neither
did he deny his failure to report to the authorities the incident of robbery, killing and fleeing away
from the scene of the crime.xxx[30]
We disagree with the trial court. A conspiracy in the statutory language exists when two or more
persons come to an agreement concerning the commission of a felony and decide to commit it.
The objective of the conspirators is to perform an act or omission punishable by law. That must
be their intent. There is need for concurrence of wills or unity of action and purpose or for
common and joint purpose and design. Its manifestation could be shown by united and
concerted action.xxxi[31]
Admittedly, direct proof is not essential to establish conspiracy. Since by its nature conspiracy is
planned in utmost secrecy, it can rarely be proved by direct evidence. Consequently, the
presence of the concurrence of minds which is involved in conspiracy may be inferred from proof
of facts and circumstances which, taken together, apparently indicate that they are merely parts
of some complete whole. If it is proved that two or more persons aimed by their acts towards the
accomplishment of the same unlawful object, each doing a part so that their combined acts,
though apparently independent, were in fact connected and cooperative, indicating a closeness of
personal association and a concurrence of sentiment, a conspiracy may be inferred though no
actual meeting among them to concert means is proved. That would be termed an implied
conspiracy.xxxii[32] Nevertheless, mere knowledge, acquiescence or approval of the act, without
the cooperation or agreement to cooperate, is not enough to constitute one a party to a
conspiracy, but that there must be intentional participation in the transaction with a view to the
furtherance of the common design and purpose. Conspiracy must be established, not by
conjectures, but by positive and conclusive evidence. In fact, the same degree of proof
necessary to establish the crime is required to support a finding of the presence of a criminal
conspiracy, which is, proof beyond reasonable doubt.xxxiii[33]
In the instant case, while del Rosario admits that he was at the locus criminis as he was the driver
of the getaway vehicle, he nonetheless rebuts the imputation of guilt against him by asserting that
he had no inkling of the malevolent design of his co-accused to rob and kill since he was not
given any briefing thereof. He was merely hired by Boy Santos to drive to an agreed destination
and he was prevented at gunpoint from leaving the scene of the crime since he was ordered to
help them escape.
In this case, the trial court stated that "there is no evidence that the accused came to an
agreement concerning the commission of the felony and decided to commit the same." xxxiv[34]
Therefore, in order to convict the accused, the presence of an implied conspiracy is required to
be proved beyond reasonable doubt. However, the fact that del Rosario was with the other
accused when the crime was committed is insufficient proof to show cabal. Mere companionship
does not establish conspiracy.xxxv[35] The only incriminating evidence against del Rosario is that

he was at the scene of the crime but he has amply explained the reason for his presence and the
same has not been successfully refuted by the prosecution. As stated earlier, he feared for his
safety and security because of the threat made by his co-accused that he would, be killed should
he shout for help. No complicity can be deduced where there is absolutely no showing that the
accused directly participated in the overt act of robbing and shooting although he was with the
persons who robbed and killed the victim.xxxvi[36]
That del Rosario did not disclose what he knew about the incident to the authorities, to his
employer or to the barangay captain does not affect his credibility. The natural hesitance of most
people to get involved in a criminal case is of judicial notice. xxxvii[37] It must be recalled that del
Rosario was merely a tricycle driver with a family to look after. Given his quite limited means, del
Rosario understandably did not want to get involved in the case so he chose to keep his silence.
Besides, he was threatened with physical harm should he squeal.
Del Rosario further contends that there was violation of his right to remain silent, right to have
competent and independent counsel preferably of his own choice, and right to be informed of
these rights as enshrined and guaranteed in the Bill of Rights. xxxviii[38] As testified to by SP04
Geronimo de Leon, the prosecution witness who was the team leader of the policemen who
investigated the 13 May incident, during his cross-examination Upon finding the name of the owner of the tricycle, they proceeded to Bakod Bayan in the house
of the barangay captain where the owner of the tricycle was summoned and who in turn revealed
the driver's name and was invited for interview. The driver was accused Joselito del Rosario who
volunteered to name his passengers on May 13, 1996. On the way to the police station, accused
informed them of the bag and lunch kit's location and the place where the hold-uppers may be
found and they reported these findings to their officers, Capt. Biag and Capt. Cruz. After lunch,
they proceeded to Brgy. Dicarma composed of 15 armed men where a shoot-out transpired that
lasted from 1:00 to 4:00 o'clock in the afternoon. After a brief encounter, they went inside the
house where they found Marquez dead holding a magazine and a gun. While all of these were
happening, accused del Rosario was at the back of the school, after which they went back to the
police station. The investigator took the statement of the accused on May 14,1996, and was only
subscribed on May 22,1996. All the while, he was detained in the police station as ordered by the
Fiscal. His statements were only signed on May 16, 1996. He also executed a waiver of his
detention. His Sinumpaang Salaysay was done with the assistance of Ex-Judge Talavera. xxxix[39]
A further perusal of the transcript reveals that during the encounter at Brgy. Dicarma, del Rosario
was handcuffed by the police because allegedly they had already gathered enough evidence
against him and they were afraid that he might attempt to escape. xl[40]
Custodial investigation is the stage where the police investigation is no longer a general inquiry
into an unsolved crime but has begun to focus on a particular suspect taken into custody by the
police who carry out a process of interrogation that lends itself to elicit incriminating statements.
It is well-settled that it encompasses any question initiated by law enforcers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant way.xli
[41] This concept of custodial investigation has been broadened by RA 7438 xlii[42] to include "the
Practice of issuing an 'invitation' to a person who is investigated in connection with an offense
he is suspected to have committed." Section 2 of the same Act further provides that x x x x Any public officer or employee, or anyone acting under his order or in his place, who
arrests, detains or investigates any person for the commission of an offense shall inform the
latter, in a language known and understood by him of his right to remain silent and to have
competent and independent counsel, preferably of his own choice, who shall at all times be
allowed to confer privately with the person arrested, detained or under custodial investigation. If
such person cannot afford the services of his own counsel, he must be provided with a competent
and independent counsel by the investigating officer.

From the foregoing, it is clear that del Rosario was deprived of his rights during custodial
investigation. From the time he was "invited" for questioning at the house of the barangay
captain, he was already under effective custodial investigation, but he was not apprised nor made
aware thereof by the investigating officers. The police already knew the name of the tricycle
driver and the latter was already a suspect in the robbing and senseless slaying of Virginia
Bernas. Since the prosecution failed to establish that del Rosario had waived his right to remain
silent, his verbal admissions on his participation in the crime even before his actual arrest were
inadmissible against him, as the same transgressed the safeguards provided by law and the Bill
of Rights.
Del Rosario also avers that his arrest was unlawful since there was no warrant therefor. Section
5, Rule 113 of the Rules of Court provides:xliii[43]
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 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 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.
It must be recalled that del Rosario was arrested by SPO4 De Leon during the police raid at the
place of "Jun" Marquez at Brgy. Dicarma on 14 May 1996. In People vs Sucroxliv[44] we held that
when a police officer sees the offense, although at a distance, or hears the disturbances created
thereby, and proceeds at once to the scene thereof, he may effect an arrest without a warrant on
the basis of Sec. 5, par. (a), Rule 113, since the offense is deemed committed in his presence or
within his view. In essence, Sec. 5, par. (a), Rule 113, requires that the accused be caught in
flagrante delicto or caught immediately after the consummation of the act. The arrest of del
Rosario is obviously outside the purview of the aforequoted rule since he was arrested on the day
following the commission of the robbery with homicide.
On the other hand, Sec. 5, par. (b), Rule 113, necessitates two (2) stringent requirements before
a warrantless arrest can be effected: (1) an offense has just been committed; and (2) the person
making the arrest has personal knowledge of facts indicating that the person to be arrested had
committed it. Hence, there must be a large measure of immediacy between the time the offense
was committed and the time of the arrest, and if there was an appreciable lapse of time between
the arrest and the commission of the crime, a warrant of arrest must be secured. Aside from the
sense of immediacy, it is also mandatory that the person making the arrest must have personal
knowledge of certain facts indicating that the person to be taken into custody has committed the
crime.xlv[45] Again, the arrest of del Rosario does not comply with these requirements since, as
earlier explained, the arrest came a day after the consummation of the crime and not immediately
thereafter. As such, the crime had not been "just committed" at the time the accused was
arrested. Likewise, the arresting officers had no personal knowledge of facts indicating that the
person to be arrested had committed the offense since they were not present and were not actual
eyewitnesses to the crime, and they became aware of his identity as the driver of the getaway
tricycle only during the custodial investigation.
However the conspicuous illegality of del Rosario's arrest cannot affect the jurisdiction of the court
a quo because even in instances not allowed by law, a warrantless arrest is not a jurisdictional
defect and any objection thereto is waived when the person arrested submits to arraignment
without any objection, as in this case.xlvi[46]
A transgression of the law has occurred. Unfortunately, an innocent person lost her life and
property in the process. Someone therefore must be held accountable, but it will not be accused
Joselito del Rosario; we must acquit him. Like victim Virginia Bernas, he too was a hapless victim

who was forcibly used by other persons with nefarious designs to perpetrate a dastardly act. Del
Rosario's defense of "irresistible force" has been substantiated by clear and convincing evidence.
On the other hand, conspiracy between him and his co-accused was not proved beyond a
whimper of a doubt by the prosecution, thus clearing del Rosario of any complicity in the crime
charged.
WHEREFORE, the decision of the Regional Trial Court of Cabanatuan City convicting accused
JOSELITO DEL ROSARIO Y PASCUAL of Robbery with Homicide and sentencing him to death,
is REVERSED and SET ASIDE, and the accused is ACQUITTED of the crime charged. His
immediate RELEASE from confinement is ordered unless held for some other lawful cause. In
this regard, the Director of Prisons is directed to report to the Court his compliance herewith
within five (5) days from receipt hereof.
SO ORDERED.

ii

iii

iv

viG.R. No. 81510 March 14, 1990


HORTENCIA SALAZAR, petitioner,
vs.
HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine Overseas Employment
Administration, and FERDIE MARQUEZ, respondents.
Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:
This concerns the validity of the power of the Secretary of Labor to issue warrants of arrest and seizure under
Article 38 of the Labor Code, prohibiting illegal recruitment.
The facts are as follows:
xxx xxx xxx
1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza, Pasay City, in a sworn
statement filed with the Philippine Overseas Employment Administration (POEA for brevity)
charged petitioner Hortencia Salazar, viz:
04. T: Ano ba ang dahilan at ikaw ngayon ay narito at
nagbibigay ng salaysay.

S: Upang ireklamo sa dahilan ang aking PECC Card ay


ayaw ibigay sa akin ng dati kong manager. Horty
Salazar 615 R.O. Santos, Mandaluyong, Mla.
05. T: Kailan at saan naganap and ginawang panloloko sa
iyo ng tao/mga taong inireklamo mo?
S. Sa bahay ni Horty Salazar.
06. T: Paano naman naganap ang pangyayari?
S. Pagkagaling ko sa Japan ipinatawag niya ako. Kinuha
ang PECC Card ko at sinabing hahanapan ako ng
booking sa Japan. Mag 9 month's na ako sa Phils. ay
hindi pa niya ako napa-alis. So lumipat ako ng ibang
company pero ayaw niyang ibigay and PECC Card
ko.
2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom said complaint
was assigned, sent to the petitioner the following telegram:
YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE MARQUEZ
POEA ANTI ILLEGAL RECRUITMENT UNIT 6TH FLR. POEA BLDG. EDSA
COR. ORTIGAS AVE. MANDALUYONG MM ON NOVEMBER 6, 1987 AT 10
AM RE CASE FILED AGAINST YOU. FAIL NOT UNDER PENALTY OF LAW.
4. On the same day, having ascertained that the petitioner had no license to operate a
recruitment agency, public respondent Administrator Tomas D. Achacoso issued his challenged
CLOSURE AND SEIZURE ORDER NO. 1205 which reads:
HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila
Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive Order
No. 1022, I hereby order the CLOSURE of your recruitment agency being operated at No. 615
R.O. Santos St., Mandaluyong, Metro Manila and the seizure of the documents and
paraphernalia being used or intended to be used as the means of committing illegal recruitment,
it having verified that you have
(1) No valid license or authority from the Department of Labor and Employment
to recruit and deploy workers for overseas employment;
(2) Committed/are committing acts prohibited under Article 34 of the New Labor
Code in relation to Article 38 of the same code.
This ORDER is without prejudice to your criminal prosecution under existing
laws.
Done in the City of Manila, this 3th day of November, 1987.
5. On January 26, 1988 POEA Director on Licensing and Regulation Atty. Estelita B. Espiritu
issued an office order designating respondents Atty. Marquez, Atty. Jovencio Abara and Atty.
Ernesto Vistro as members of a team tasked to implement Closure and Seizure Order No. 1205.
Doing so, the group assisted by Mandaluyong policemen and mediamen Lito Castillo of the

People's Journal and Ernie Baluyot of News Today proceeded to the residence of the petitioner
at 615 R.O. Santos St., Mandaluyong, Metro Manila. There it was found that petitioner was
operating Hannalie Dance Studio. Before entering the place, the team served said Closure and
Seizure order on a certain Mrs. Flora Salazar who voluntarily allowed them entry into the
premises. Mrs. Flora Salazar informed the team that Hannalie Dance Studio was accredited with
Moreman Development (Phil.). However, when required to show credentials, she was unable to
produce any. Inside the studio, the team chanced upon twelve talent performers practicing a
dance number and saw about twenty more waiting outside, The team confiscated assorted
costumes which were duly receipted for by Mrs. Asuncion Maguelan and witnessed by Mrs.
Flora Salazar.
6. On January 28, 1988, petitioner filed with POEA the following letter:
Gentlemen:
On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila, we respectfully
request that the personal properties seized at her residence last January 26, 1988 be
immediately returned on the ground that said seizure was contrary to law and against the will of
the owner thereof. Among our reasons are the following:
1. Our client has not been given any prior notice or hearing, hence the Closure
and Seizure Order No. 1205 dated November 3, 1987 violates "due process of
law" guaranteed under Sec. 1, Art. III, of the Philippine Constitution.
2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution which
guarantees right of the people "to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature
and for any purpose."
3. The premises invaded by your Mr. Ferdi Marquez and five (5) others
(including 2 policemen) are the private residence of the Salazar family, and the
entry, search as well as the seizure of the personal properties belonging to our
client were without her consent and were done with unreasonable force and
intimidation, together with grave abuse of the color of authority, and constitute
robbery and violation of domicile under Arts. 293 and 128 of the Revised Penal
Code.
Unless said personal properties worth around TEN THOUSAND PESOS
(P10,000.00) in all (and which were already due for shipment to Japan) are
returned within twenty-four (24) hours from your receipt hereof, we shall feel
free to take all legal action, civil and criminal, to protect our client's interests.
We trust that you will give due attention to these important matters.
7. On February 2, 1988, before POEA could answer the letter, petitioner filed the instant petition;
on even date, POEA filed a criminal complaint against her with the Pasig Provincial Fiscal,
docketed as IS-88-836. 1
On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to be barred are
already fait accompli, thereby making prohibition too late, we consider the petition as one for certiorari in view of
the grave public interest involved.
The Court finds that a lone issue confronts it: May the Philippine Overseas Employment Administration (or the
Secretary of Labor) validly issue warrants of search and seizure (or arrest) under Article 38 of the Labor Code? It
is also an issue squarely raised by the petitioner for the Court's resolution.

Under the new Constitution, which states:


. . . no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized. 2
it is only a judge who may issue warrants of search and arrest. 3 In one case, it was declared that mayors may
not exercise this power:
xxx xxx xxx
But it must be emphasized here and now that what has just been described is the state of the
law as it was in September, 1985. The law has since been altered. No longer does the mayor
have at this time the power to conduct preliminary investigations, much less issue orders of
arrest. Section 143 of the Local Government Code, conferring this power on the mayor has been
abrogated, rendered functus officio by the 1987 Constitution which took effect on February 2,
1987, the date of its ratification by the Filipino people. Section 2, Article III of the 1987
Constitution pertinently provides that "no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the
place to be searched and the person or things to be seized." The constitutional proscription has
thereby been manifested that thenceforth, the function of determining probable cause and
issuing, on the basis thereof, warrants of arrest or search warrants, may be validly exercised
only by judges, this being evidenced by the elimination in the present Constitution of the phrase,
"such other responsible officer as may be authorized by law" found in the counterpart provision
of said 1973 Constitution, who, aside from judges, might conduct preliminary investigations and
issue warrants of arrest or search warrants. 4
Neither may it be done by a mere prosecuting body:
We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was meant to
exercise, prosecutorial powers, and on that ground, it cannot be said to be a neutral and
detached "judge" to determine the existence of probable cause for purposes of arrest or search.
Unlike a magistrate, a prosecutor is naturally interested in the success of his case. Although his
office "is to see that justice is done and not necessarily to secure the conviction of the person
accused," he stands, invariably, as the accused's adversary and his accuser. To permit him to
issue search warrants and indeed, warrants of arrest, is to make him both judge and jury in his
own right, when he is neither. That makes, to our mind and to that extent, Presidential Decree
No. 1936 as amended by Presidential Decree No. 2002, unconstitutional. 5
Section 38, paragraph (c), of the Labor Code, as now written, was entered as an amendment by Presidential
Decrees Nos. 1920 and 2018 of the late President Ferdinand Marcos, to Presidential Decree No. 1693, in the
exercise of his legislative powers under Amendment No. 6 of the 1973 Constitution. Under the latter, the then
Minister of Labor merely exercised recommendatory powers:
(c) The Minister of Labor or his duly authorized representative shall have the power to
recommend the arrest and detention of any person engaged in illegal recruitment. 6
On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowed purpose of giving
more teeth to the campaign against illegal recruitment. The Decree gave the Minister of Labor arrest and closure
powers:
(b) The Minister of Labor and Employment shall have the power to cause the arrest and
detention of such non-licensee or non-holder of authority if after proper investigation it is
determined that his activities constitute a danger to national security and public order or will lead

to further exploitation of job-seekers. The Minister shall order the closure of companies,
establishment and entities found to be engaged in the recruitment of workers for overseas
employment, without having been licensed or authorized to do so. 7
On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, giving the Labor Minister
search and seizure powers as well:
(c) The Minister of Labor and Employment or his duly authorized representatives shall have the
power to cause the arrest and detention of such non-licensee or non-holder of authority if after
investigation it is determined that his activities constitute a danger to national security and public
order or will lead to further exploitation of job-seekers. The Minister shall order the search of the
office or premises and seizure of documents, paraphernalia, properties and other implements
used in illegal recruitment activities and the closure of companies, establishment and entities
found to be engaged in the recruitment of workers for overseas employment, without having
been licensed or authorized to do so. 8
The above has now been etched as Article 38, paragraph (c) of the Labor Code.
The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in its twilight
moments.
We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest warrants.
Hence, the authorities must go through the judicial process. To that extent, we declare Article 38, paragraph (c),
of the Labor Code, unconstitutional and of no force and effect.
The Solicitor General's reliance on the case of Morano v. Vivo 9 is not well-taken. Vivo involved a deportation
case, governed by Section 69 of the defunct Revised Administrative Code and by Section 37 of the Immigration
Law. We have ruled that in deportation cases, an arrest (of an undesirable alien) ordered by the President or his
duly authorized representatives, in order to carry out a final decision of deportation is valid. 10 It is valid, however,
because of the recognized supremacy of the Executive in matters involving foreign affairs. We have held: 11
xxx xxx xxx
The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs. Forbes, 228
U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be exercised by the Chief
Executive "when he deems such action necessary for the peace and domestic tranquility of the
nation." Justice Johnson's opinion is that when the Chief Executive finds that there are aliens
whose continued presence in the country is injurious to the public interest, "he may, even in the
absence of express law, deport them". (Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534,
568, 569; In re McCulloch Dick, 38 Phil. 41).
The right of a country to expel or deport aliens because their continued presence is detrimental
to public welfare is absolute and unqualified (Tiu Chun Hai and Go Tam vs. Commissioner of
Immigration and the Director of NBI, 104 Phil. 949, 956). 12
The power of the President to order the arrest of aliens for deportation is, obviously, exceptional. It (the power to
order arrests) can not be made to extend to other cases, like the one at bar. Under the Constitution, it is the sole
domain of the courts.
Moreover, the search and seizure order in question, assuming, ex gratia argumenti, that it was validly issued, is
clearly in the nature of a general warrant:
Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive Order
No. 1022, I hereby order the CLOSURE of your recruitment agency being operated at No. 615
R.O. Santos St., Mandaluyong, Metro Manila and the seizure of the documents and
paraphernalia being used or intended to be used as the means of committing illegal recruitment,

it having verified that you have


(1) No valid license or authority from the Department of Labor and Employment
to recruit and deploy workers for overseas employment;
(2) Committed/are committing acts prohibited under Article 34 of the New Labor
Code in relation to Article 38 of the same code.
This ORDER is without prejudice to your criminal prosecution under existing laws.

13

We have held that a warrant must identify clearly the things to be seized, otherwise, it is null and void, thus:
xxx xxx xxx
Another factor which makes the search warrants under consideration constitutionally
objectionable is that they are in the nature of general warrants. The search warrants describe
the articles sought to be seized in this wise:
1) All printing equipment, paraphernalia, paper, ink, photo equipment,
typewriters, cabinets, tables, communications/ recording equipment, tape
recorders, dictaphone and the like used and/or connected in the printing of the
"WE FORUM" newspaper and any and all documents/communications, letters
and facsimile of prints related to the "WE FORUM" newspaper.
2) Subversive documents, pamphlets, leaflets, books, and other publications to
promote the objectives and purposes of the subversive organizations known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement;
and
3) Motor vehicles used in the distribution/circulation of the "WE FORUM" and
other subversive materials and propaganda, more particularly,
1) Toyota-Corolla, colored yellow with Plate No. NKA 892;
2) DATSUN, pick-up colored white with Plate No. NKV 969;
3) A delivery truck with Plate No. NBS 542;
4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and
5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking "Bagong
Silang."
In Stanford v. State of Texas, the search warrant which authorized the search for "books,
records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written
instruments concerning the Communist Parties of Texas, and the operations of the Community
Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like
manner, directions to "seize any evidence in connection with the violation of SDC 13-3703 or
otherwise" have been held too general, and that portion of a search warrant which authorized
the seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut
General Statutes (the statute dealing with the crime of conspiracy)" was held to be a general
warrant, and therefore invalid. The description of the articles sought to be seized under the
search warrants in question cannot be characterized differently.

In the Stanford case, the U.S. Supreme court calls to mind a notable chapter in English history;
the era of disaccord between the Tudor Government and the English Press, when "Officers of
the Crown were given roving commissions to search where they pleased in order to suppress
and destroy the literature of dissent both Catholic and Puritan." Reference herein to such
historical episode would not be relevant for it is not the policy of our government to suppress any
newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and
imminent danger to state security. 14
For the guidance of the bench and the bar, we reaffirm the following principles:
1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no other, who may
issue warrants of arrest and search:
2. The exception is in cases of deportation of illegal and undesirable aliens, whom the President
or the Commissioner of Immigration may order arrested, following a final order of deportation,
for the purpose of deportation.
WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared
UNCONSTITUTIONAL and null and void. The respondents are ORDERED to return all materials seized as a
result of the implementation of Search and Seizure Order No. 1205.
No costs.
SO ORDERED.

vii

viii

ix

xi

G.R. No. 82544 June 28, 1988


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

MELENCIO-HERRERA, J.:
A petition for Habeas Corpus.
Petitioners Andrew Harvey and John Sherman, 52 and 72 years, respectively, are both American nationals
residing at Pagsanjan, Laguna, while Adriaan Van Elshout, 58 years old, is a Dutch citizen also residing at
Pagsanjan, Laguna.
The case stems from the apprehension of petitioners on 27 February 1988 from their respective residences by
agents of the Commission on Immigration and Deportation (CID) by virtue of Mission Orders issued by
respondent Commissioner Miriam Defensor Santiago of the CID. Petitioners are presently detained at the CID
Detention Center.

Petitioners were among the twenty-two (22) suspected alien pedophiles who were apprehended after three
months of close surveillance by CID agents in Pagsanjan, Laguna. Two (2) days after apprehension, or on 29
February 1988, seventeen (17) of the twenty-two (22) arrested aliens opted for self-deportation and have left the
country. One was released for lack of evidence; another was charged not for being a pedophile but for working
without a valid working visa. Thus, of the original twenty two (22), only the three petitioners have chosen to face
deportation.
Seized during petitioners apprehension were rolls of photo negatives and photos of the suspected child
prostitutes shown in salacious poses as well as boys and girls engaged in the sex act. There were also posters
and other literature advertising the child prostitutes.
The "Operation Report," on Andrew Harvey and Richard Sherman dated 29 February 1988 stated:
xxx xxx xxx
ANDREW MARK HARVEY was found together with two young boys.
RICHARD SHERMAN was found with two naked boys inside his room.
In respect of Van Den Elshout the "After Mission Report," dated 27 February 1988 read in part:
Noted:
There were two (2) children ages 14 & 16 which subject readily accepted having
been in his care and live-in for quite sometime.
On 4 March 1988, deportation proceedings were instituted against petitioners for being undesirable aliens under
Section 69 of the Revised Administrative Code (Deportation Case No. 88-13). The "Charge Sheet" read inter
alia:
Wherefore, this Office charges the respondents for deportation, as undesirable aliens, in that:
they, being pedophiles, are inimical to public morals, public health and public safety as provided
in Section 69 of the Revised Administrative Code.
On 7 March 1988, Warrants of Arrest were issued by respondent against petitioners for violation of Sections 37,
45 and 46 of the Immigration Act and Section 69 of the Revised Administrative Code On the same date, the
Board of Special Inquiry III commenced trial against petitioners.
On 14 March 1988, petitioners filed an Urgent Petition for Release Under Bond alleging that their health was
being seriously affected by their continuous detention. Upon recommendation of the Board of Commissioners for
their provisional release, respondent ordered the CID doctor to examine petitioners, who certified that petitioners
were healthy.
On 22 March 1988, petitioners filed a Petition for Bail which, however, respondent denied considering the
certification by the CID physician that petitioners were healthy. To avoid congestion, respondent ordered
petitioners' transfer to the CID detention cell at Fort Bonifacio, but the transfer was deferred pending trial due to
the difficulty of transporting them to and from the CID where trial was on-going.
On 4 April 1988 petitioner Andrew Harvey filed a Manifestation/Motion stating that he had "finally agreed to a
self-deportation" and praying that he be "provisionally released for at least 15 days and placed under the custody
of Atty. Asinas before he voluntarily departs the country." On 7 April 1988, the Board of Special Inquiry III
allowed provisional release of five (5) days only under certain conditions. However, it appears that on the same
date that the aforesaid Manifestation/ Motion was filed, Harvey and his co-petitioners had already filed the
present petition.

On 4 April 1988, as heretofore stated, petitioners availed of this Petition for a Writ of Habeas Corpus. A Return of
the Writ was filed by the Solicitor General and the Court heard the case on oral argument on 20 April 1988. A
Traverse to the Writ was presented by petitioners to which a Reply was filed by the Solicitor General.
Petitioners question the validity of their detention on the following grounds:
1) There is no provision in the Philippine Immigration Act of 1940 nor under Section 69 of the Revised
Administrative Code, which legally clothes the Commissioner with any authority to arrest and detain petitioners
pending determination of the existence of a probable cause leading to an administrative investigation.
2) Respondent violated Section 2, Article III of the 1987 Constitution prohibiting unreasonable searches and
seizures since the CID agents were not clothed with valid Warrants of arrest, search and seizure as required by
the said provision.
3) Mere confidential information made to the CID agents and their suspicion of the activities of petitioners that
they are pedophiles, coupled with their association with other suspected pedophiles, are not valid legal grounds
for their arrest and detention unless they are caught in the act. They further allege that being a pedophile is not
punishable by any Philippine Law nor is it a crime to be a pedophile.
We reject petitioners' contentions and uphold respondent's official acts ably defended by the Solicitor General.
There can be no question that the right against unreasonable searches and seizures guaranteed by Article III,
Section 2 of the 1987 Constitution, is available to all persons, including aliens, whether accused of crime or not
(Moncado vs. People's Court, 80 Phil. 1 [1948]. One of the constitutional requirements of a valid search warrant
or warrant of arrest is that it must be based upon probable cause. Probable cause has been defined as referring
to "such facts and circumstances antecedent to the issuance of the warrant that in themselves are sufficient to
induce a cautious man to rely on them and act in pursuance thereof." (People vs. Syjuco 64 Phil. 667 [1937];
Alverez vs. CFI, 64 Phil. 33 [1937]).
The 1985 Rules on Criminal Procedure also provide that an arrest wit a warrant may be effected by a peace
officer or even a private person (1) when such person has committed, actually committing, or is attempting to
commit an offense in his presence; and (2) when an offense has, in fact, been committed and he has personal
knowledge of facts indicating that the person to be arrested has committed it (Rule 113, Section 5).
In this case, the arrest of petitioners was based on probable cause determined after close surveillance for three
(3) months during which period their activities were monitored. The existence of probable cause justified the
arrest and the seizure of the photo negatives, photographs and posters without warrant (See Papa vs. Mago, L27360, February 28, 1968,22 SCRA 857; People vs. Court of First Instance of Rizal, L-41686, November 17,
1980, 101 SCRA 86, cited in CRUZ, Constitutional Law, 1987 ed., p. 143). Those articles were seized as an
incident to a lawful arrest and, are therefore, admissible in evidence (Section 12, Rule 126,1985 Rules on
criminal Procedure).
But even assuming arguendo that the arrest of petitioners was not valid at its inception, the records show that
formal deportation charges have been filed against them, as undesirable aliens, on 4 March 1988. Warrants of
arrest were issued against them on 7 March 1988 "for violation of Section 37, 45 and 46 of the Immigration Act
and Section 69 of the Administrative Code." A hearing is presently being conducted by a Board of Special
Inquiry. The restraint against their persons, therefore, has become legal. The Writ has served its purpose. The
process of the law is being followed (Cruz vs. Montoya, L-39823, February 25, 1975, 62 SCRA 543). "were a
person's detention was later made by virtue of a judicial order in relation to criminal cases subsequently filed
against the detainee, his petition for hebeas corpus becomes moot and academic" (Beltran vs. Garcia, L-49014,
April 30, 1979, 89 SCRA 717). "It is a fumdamental rule that a writ of habeas corpus will not be granted when the
confinement is or has become legal, although such confinement was illegal at the beginning" (Matsura vs.
Director of Prisons, 77 Phil. 1050 [1947]).
That petitioners were not "caught in the act" does not make their arrest illegal. Petitioners were found with young
boys in their respective rooms, the ones with John Sherman being naked. Under those circumstances the CID

agents had reasonable grounds to believe that petitioners had committed "pedophilia" defined as "psychosexual
perversion involving children" (Kraft-Ebbing Psychopatia Sexualis p. 555; Paraphilia (or unusual sexual activity)
in which children are the preferred sexual object" (Webster's Third New International Dictionary, 1971 ed., p.
1665) [Solicitor General's Return of the Writ, on p. 101. While not a crime under the Revised Penal Code, it is
behavior offensive to public morals and violative of the declared policy of the State to promote and protect the
physical, moral, spiritual, and social well-being of our youth (Article II, Section 13, 1987 Constitution).
At any rate, the filing by petitioners of a petition to be released on bail should be considered as a waiver of any
irregularity attending their arrest and estops them from questioning its validity (Callanta v. Villanueva, L-24646 &
L-24674, June 20, 1977, 77 SCRA 377; Bagcal vs. Villaraza, L-61770, January 31, 1983, 120 SCRA 525).
The deportation charges instituted by respondent Commissioner are in accordance with Section 37(a) of the
Philippine Immigration Act of 1940, in relation to Section 69 of the Revised Administrative Code. Section 37(a)
provides in part:
(a) The following aliens shall be arrested upon the warrant of the Commissioner of Immigration
and Deportation or any other officer designated by him for the purpose and deported upon the
warrant of the Commissioner of Immigration and Deportation after a determination by the Board
of Commissioners of the existence of the ground for deportation as charged against the alien;
xxx xxx xxx
The foregoing provision should be construed in its entirety in view of the summary and indivisible nature of a
deportation proceeding, otherwise, the very purpose of deportation proceeding would be defeated.
Section 37(a) is not constitutionally proscribed (Morano vs. Vivo, L-22196, June 30, 1967, 20 SCRA 562). The
specific constraints in both the 1935 1 and 1987 2 Constitutions, which are substantially Identical, contemplate
prosecutions essentially criminal in nature. Deportation proceedings, on the other hand, are administrative in
character. An order of deportation is never construed as a punishment. It is preventive, not a penal process. It
need not be conducted strictly in accordance with ordinary Court proceedings.
It is of course well-settled that deportation proceedings do not constitute a criminal action. The
order of deportation is not a punishment, (Maliler vs. Eby, 264 U.S., 32), it being merely the
return to his country of an alien who has broken the conditions upon which he could continue to
reside within our borders (U.S. vs. De los Santos, 33 Phil., 397). The deportation proceedings
are administrative in character, (Kessler vs. Stracker 307 U.S., 22) summary in nature, and need
not be conducted strictly in accordance with the ordinary court proceedings (Murdock vs. Clark,
53 F. [2d], 155). It is essential, however, that the warrant of arrest shall give the alien sufficient
information about the charges against him, relating the facts relied upon. (U.S. vs. Uhl 211 F.,
628.) It is also essential that he be given a fair hearing with the assistance of counsel, if he so
desires, before unprejudiced investigators (Strench vs. Pedaris, 55 F. [2d], 597; Ex parte Jew
You On, 16 F. [2d], 153). However, all the strict rules of evidence governing judicial controversies
do not need to be observed; only such as are fumdamental and essential like the right of crossexamination. (U.S. vs. Hughes, 104 F. [2d], 14; Murdock vs. Clark, 53 F. [2d], 155.) Hearsay
evidence may even be admitted, provided the alien is given the opportunity to explain or rebut it
(Morrell vs. Baker, 270 F., 577; Sercerchi vs. Ward, 27 F. Supp., 437). (Lao Tang Bun vs. Fabre
81 Phil. 682 [1948]).
The ruling in Vivo vs. Montesa (G. R. No. 24576, July 29, 1968, 24 SCRA 155) that "the issuance of warrants of
arrest by the Commissioner of Immigration, solely for purposes of investigation and before a final order of
deportation is issued, conflicts with paragraph 3, Section I of Article III of the Constitution" (referring to the 1935
Constitution) 3 is not invocable herein. Respondent Commissioner's Warrant of Arrest issued on 7 March 1988
did not order petitioners to appear and show cause why they should not be deported. They were issued
specifically "for violation of Sections 37, 45 and 46 of the Immigration Act and Section 69 of the Revised
Administrative Code." Before that, deportation proceedings had been commenced against them as undesirable
aliens on 4 March 1988 and the arrest was a step preliminary to their possible deportation.

Section 37 of the Immigration Law, which empowers the Commissioner of Immigration to issue
warrants for the arrest of overstaying aliens is constitutional. The arrest is a stop preliminary to
the deportation of the aliens who had violated the condition of their stay in this country. (Morano
vs. Vivo, L-22196, June 30, 1967, 20 SCRA 562).
To rule otherwise would be to render the authority given the Commissioner nugatory to the detriment of the
State.
The pertinent provision of Commonwealth Act No. 613, as amended, which gives authority to the
Commissioner of Immigration to order the arrest of an alien temporary visitor preparatory to his
deportation for failure to put up new bonds required for the stay, is not unconstitutional.
xxx xxx xxx
... Such a step is necessary to enable the Commissioner to prepare the ground for his
deportation under Section 37[al of Commonwealth Act 613. A contrary interpretation would
render such power nugatory to the detriment of the State. (Ng Hua To vs. Galang, G. R. No.
10145, February 29, 1964, 10 SCRA 411).
"The requirement of probable cause, to be determined by a Judge, does not extend to deportation proceedings."
(Morano vs. Vivo, supra, citing Tiu Chun Hai vs. Commissioner, infra). There need be no "truncated" recourse to
both judicial and administrative warrants in a single deportation proceedings.
The foregoing does not deviate from the ruling in Qua Chee Gan vs. Deportation Board (G. R. No. 10280,
September 30, 1963, 9 SCRA 27 [1963]) reiterated in Vivo vs. Montesa, supra, that "under the express terms of
our Constitution (the 1935 Constitution), it is therefore even doubtful whether the arrest of an individual may be
ordered by any authority other than a judge if the purpose is merely to determine the existence of a probable
cause, leading to an administrative investigation." For, as heretofore stated, probable cause had already been
shown to exist before the warrants of arrest were issued.
What is essential is that there should be a specific charge against the alien intended to be arrested and
deported, that a fair hearing be conducted (Section 37[c]) with the assistance of counsel, if desired, and that the
charge be substantiated by competent evidence. Thus, Section 69 of the Revised Administrative Code explicitly
provides:
Sec. 69. Deportation of subject of foreign power. A subject of a foreign power residing in the
Philippines shall not be deported, expelled, or excluded from said Islands or repatriated to his
own country by the President of the Philippines except upon prior investigation, conducted by
said Executive or his authorized agent, of the ground upon which such action is contemplated.
In such a case the person concerned shall be informed of the charge or charges against him
and he shall be allowed not less than 3 days for the preparation of his defense. He shall also
have the right to be heard by himself or counsel, to produce witnesses in his own behalf, and to
cross-examine the opposing witnesses.
The denial by respondent Commissioner of petitioners' release on bail, also challenged by them, was in order
because in deportation proceedings, the right to bail is not a matter of right but a matter of discretion on the part
of the Commissioner of Immigration and Deportation. Thus, Section 37(e) of the Philippine Immigration Act of
1940 provides that "any alien under arrest in a deportation proceeding may be released under bond or under
such other conditions as may be imposed by the Commissioner of Immigration." The use of the word "may" in
said provision indicates that the grant of bail is merely permissive and not mandatory on the part of the
Commissioner. The exercise of the power is wholly discretionary (Ong Hee Sang vs. Commissioner of
Immigration, L-9700, February 28,1962, 4 SCRA 442). "Neither the Constitution nor Section 69 of the Revised
Administrative Code guarantees the right of aliens facing deportation to provisional liberty on bail." (Tiu Chun Hai
et al vs. Deportation Board, 104 Phil. 949 [1958]). As deportation proceedings do not partake of the nature of a
criminal action, the constitutional guarantee to bail may not be invoked by aliens in said proceedings (Ong Hee
Sang vs. Commissioner of Immigration, supra).

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

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G.R. No. L-69899 July 15, 1985


ROMMEL CORRO, petitioner,
vs.
HON. ESTEBAN LISING Presiding Judge, Regional Trial Court, Quezon City, Branch XCV HON. REMIGIO
ZARI Regional Trial Court, Quezon City, Branch 98; CITY FISCAL'S OFFICE, Quezon City; LT. COL.
BERLIN A. CASTILLO and 1ST LT. GODOFREDO M. IGNACIO, respondents,
Reynaldo L. Bagatsing for petitioner.
RELOVA, J.:
On September 29, 1983, respondent Regional Trial Court judge Esteban Lising of Quezon City, upon application
filed by Lt. Col. Berlin Castillo of the Philippine Constabulary Criminal Investigation Service, issued Search
Warrant No. Q-00002 authorizing the search and seizure of
1. Printed copies of Philippine Times;
2. Manuscripts/drafts of articles for publication in the Philippine Times;
3. Newspaper dummies of the Philippine Times;
4. Subversive documents, articles, printed matters, handbills, leaflets, banners;
5. Typewriters, duplicating machines, mimeographing and tape recording machines, video
machines and tapes
which have been used and are being used as instrument and means of committing the crime of inciting to
sedition defined and penalized under Article 142 of the Revised Penal Code, as amended by PD 1835 ... (p. 24,
Rollo)
On November 6, 1984, petitioner filed an urgent motion to recall warrant and to return documents/personal
properties alleging among others that:
2. ... the properties seized are typewriters, duplicating machines, mimeographing and tape
recording machines, video machines and tapes which are not in any way, inanimate or mute
things as they are, connected with the offense of inciting to sedition.

3. More so, documents or papers seized purporting to do the body of the crime has been
rendered moot and academic due to the findings of the Agrava Board that a military conspiracy
was responsible for the slaying of the late Senator Benigno Aquino, Jr. on August 21, 1983 at
the Manila International Airport. The Agrava Board which has the exclusive jurisdiction to
determine the facts and circumstances behind the killing had virtually affirmed by evidence
testamentary and documentary the fact that soldiers killed Benigno Aquino, Jr.
4. More so, the grave offense of libel, RTC, Q.C. Branch XCV has dismissed said case against
the accused on all documents pertinent and more so as we repeat, rendered moot and
academic by the recent Agrava Report. (p. 27, Rollo)
On January 28, 1985, respondent Judge Lising denied the motion in a resolution, pertinent portions of which
state:
... The said articles presently form part of the evidence of the prosecution and they are not under
the control of the prosecuting arm of the government. Under these circumstances, the proper
forum from which the petition to withdraw the articles should be addressed, is the Office of the
City Fiscal, Quezon City and not with this Branch of the Court. It is to be further noted that it is
not even with this Branch of the Court that the offense of inciting to sedition is pending. (p 29,
Rollo)
Hence, this petition for certiorari and mandamus, with application for preliminary injunction and restraining order
to enjoin respondent Regional Trial Court, National Capital Region, Branch 98 from proceeding with the trial of
Criminal Case No. S3-Q-29243, praying (a) that Search Warrant No. Q-00002 issued by respondent Judge
Esteban M. Lising be declared null and void ab initio and that a mandatory injunction be issued directing
respondents City Fiscal's Office of Quezon City and Lt. Col. Berlin Castillo and 1st Lt. Godofredo Ignacio jointly
and severally to return immediately the documents/properties illegally seized from herein petitioner and that final
injunction be issued enjoining respondents City Fiscal's Office of Quezon City, Lt. Col. Castillo and 1st Lt. Ignacio
from utilizing said documents/properties as evidence in Criminal Case No. 29243; and (b) that respondent PCCIS officers Lt. Col. Berlin A. Castillo and lst Lt. Godofredo Ignacio be directed to reopen the padlocked office
premises of the Philippine Times at 610 Mezzanine Floor, Gochengco Building, T.M., Kalaw, Ermita, Manila.
In Our Resolution of February 19, 1985, respondents were required to file their comment. The plea for temporary
restraining order was granted and respondents City Fiscal's Office of Quezon City, Lt. Col. Berlin Castillo and 1st
Lt. Godofredo Ignacio were enjoined from introducing as evidence for the state the documents/properties seized
under Search Warrant No. Q-00002 in Criminal Cage No. Q-29243 (Sedition case against petitioner), pending
before the Regional Trial Court of Quezon City, Branch 98, effective immediately and continuing until further
orders from the Court.
Respondents would have this Court dismiss the petition on the ground that (1) the present action is premature
because petitioner should have filed a motion for reconsideration of respondent Judge Lising's order of January
28, 1985; (2) probable cause exists justifying the issuance of a search warrant; (3) the articles seized were
adequately described in the search warrant; (4) a search was conducted in an orderly manner; (5) the
padlocking of the searched premises was with the consent of petitioner's wife; (6) the findings of the Agrava
Board is irrelevant to the issue of the validity of the search warrant; (7) press freedom is not an issue; and, (8)
the petition is barred by laches.
There is merit in the petition.
Respondents contend that petitioner should have filed a motion for reconsideration of the order in question
before coming to Us. This is not always so. When the questions raised before the Supreme Court are the same
as those which were squarely raised in and passed upon by the lower court, the filing of the motion for
reconsideration in said court before certiorari can be instituted in the Supreme Court is no longer a pre-requisite.
As held in Bache & Co. (Phil.), Inc. vs. Ruiz, 37 SCRA 823, (t)he rule requiring the filing of a motion for
reconsideration before an application for a writ of certiorari can be entertained was never intended to be applied
without considering the circumstances. The rule does not apply where, the deprivation of petitioners'
fundamental right to due process taints the proceeding against them in the court below not only with irregularity

but also with nullity." Likewise, in Pajo, et al. vs. Ago, et al., 108 Phil. 905 and in Gonzales vs. Court of Appeals,
3 SCRA 465, this Court ruled that "it is only when questions are raised for the first time before the high court in a
certiorari case that the writ shall not issue, unless the lower court had first been given an opportunity to pass
upon the same." Further, in the case of Matute vs. Court of Appeals, 26 SCRA 768, We held that "while as a
matter of policy a motion for reconsideration in the lower court has often been considered a condition sine qua
non for the granting of a writ of certiorari, this rule does not apply where the proceeding in which the error
occurred is a patent nullity or where 'the deprivation of petitioner's fundamental right to due process ... taints the
proceeding against him in the court below not only with irregularity but with nullity (Luzon Surety Co. v. Marbella
et al., L-16038, Sept. 30, 1960), or when special circumstances warrant immediate and more direct action. ..."
The records of this petition clearly disclose that the issues herein raised have already been presented to and
passed upon by the court a quo.
Section 3, Article IV of the 1973 Constitution provides:
SEC. 3. ...no search warrant or warrant of arrest issue except upon probable cause to be
determined by the judge, or such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things to be seized.
and, Section 3, Rule 126 of the New Rules of Court, states that:
SEC. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon
probable cause in connection with one specific offense to be determined by the judge or justice
of the peace after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched and the persons or things
to be seized.
Probable cause may be defined as "such reasons, supported by facts and circumstances, as will warrant a
cautious man in the belief that his actions, and the means taken in prosecuting it, are legally just and proper
(Burton vs. St. Paul, M & M. Ry. Co., 33 Minn. 189, cited in U.S. vs. Addison, 28 Phil. 566)." Thus, an application
for search warrant must state with particularly the alleged subversive materials published or intended to be
published by the publisher and editor of the Philippine Times, Rommel Corro. As We have stated in Burgos, Sr.
vs. Chief of Staff of the Armed Forces of the Philippines, 133 SCRA 800, "mere generalization will not suffice." A
search warrant should particularly describe the place to be searched and the things to be seized. "The evident
purpose and intent of this requirement is to limit the things to be seized to those, and only those, particularly
described in the search warrant- to leave the officers of the law with no discretion regarding what articles they
should seize, to the end that unreasonable searches and seizures may not be committed, that abuses may
not be committed Bache & Co. Phil. Inc. vs, Ruiz, supra)." The affidavit of Col. Castillo states that in several
issues of the Philippine Times:
... we found that the said publication in fact foments distrust and hatred against the government
of the Philippines and its duly constituted authorities, defined and penalized by Article 142 of the
Revised Penal Code as amended by Presidential Decree No. 1835; (p. 22, Rollo)
and, the affidavit of Lt. Ignacio reads, among others
... the said periodical published by Rommel Corro, contains articles tending to incite distrust and
hatred for the Government of the Philippines or any of its duly constituted authorities. (p. 23,
Rollo)
The above statements are mere conclusions of law and will not satisfy the requirements of probable cause. They
can not serve as basis for the issuance of search warrant, absent of the existence of probable cause. In fact, as
a consequence of the search warrant issued, the items confiscated from the premises of the office of the
Philippine Times at 610 Mezzanine Floor, Gochengco Bldg., T.M. Kalaw, Ermita, Manila were the following:
1. One bundle of assorted negative;

2. One bundle of assorted lay out;


3. Three folders of assorted articles/writings used by Philippine Times news and other
paraphernalias;
4. Four tape alleged speech of Mayor Climaco, two alleged speeches of Aquino and a speech
of one various artist;
5. One bundle Dummies;
6. Ten bundles of assorted copies of Philippine Times issued on different dates (Nos. 6, 7, 8, 9,
10, 11, 12, 13, 14 & 15):
7. One Typewriter Remington Brand Long Carriage with No. J-2479373;
8. OneTypewriterAdler-short with No. 9003011;
9. Three (3) bundles of Philippine Times latest issue for Baguio City (p. 26, Rollo)
In Stonehill vs. Diokno, 20 SCRA 383, this Court held that search warrants authorizing the seizure of books of
accounts and records "showing all the business transactions" of certain persons, regardless of whether the
transactions were legal or illegal, contravene the explicit comment of the Bill of Rights that the things to be
seized should be particularly described and defeat its major objective of eliminating general warrants. In the case
at bar, the search warrant issued by respondent judge allowed seizure of printed copies of the Philippine Times,
manuscripts/drafts of articles for publication, newspaper dummies, subversive documents, articles, etc., and
even typewriters, duplicating machines, mimeographing and tape recording machines. Thus, the language used
is so all embracing as to include all conceivable records and equipment of petitioner regardless of whether they
are legal or illegal. The search warrant under consideration was in the nature of a general warrant which is
constitutionally objectionable.
Respondents do not deny the fact that the business office of the "Philippine Times" of which petitioner was the
publisher-editor was padlocked and sealed. The consequence is, the printing and publication of said newspaper
were discontinued. In Burgos, Sr. vs. Chief of Staff of the Armed Forces of the Philippines, supra, We held that
"[sluch closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press
guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to express
themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert
and even militant press is essential for the political enlightenment and growth of the citizenry."
Finally, respondents argue that while the search warrant was issued on September 29, 1983 and was executed
on the very same day, it was only on November 6, 1984, or one (1) year, one (1) month and six (6) days when
petitioner filed his motion for the recall of the warrant and the return of the documents/personal properties.
Having failed to act seasonably, respondents claim that petitioner is guilty of laches.
Laches is the failure or neglect, for an unreasonable and unexplained length of time, to do that which by
exercising due diligence, could or should have been done earlier. The negligence or omission to assert a right
within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or
declined to assert it (Tijam vs. Sibonghanoy, L-21450, April 15, 1968, 23 SCRA 35).
In his petition, Corro alleged that on October 1, 1983, less than forty-two (42) hours after the military operatives
shut down his newspaper on September 29, 1983, he was invited by the Director-General PC/INP, and
subsequently detained. Thereafter, he was charged with the crime of inciting to sedition before the City Fiscal's
Office in Quezon City, and on October 7, 1983, a preventive detention action was served upon him.
Consequently, he had to file a petition for habeas corpus. It was only on November 8, 1984 when this Court
issued its Resolution in G.R. No. 68976, entitled: In the Matter of the Petition for Habeas Corpus of Rommel
Corro Angle Corro vs. Minister Juan Ponce Enrile, et al., releasing Rommel Corro on recognizance of his
lawyers, Attys. Humberto B. Basco, Reynaldo Bagatsing and Edilberto Balce, In the same month, November

1984, petitioner filed his motion to recall warrant and to return the seized documents. When respondent judge
denied the motion, he came to Us.
Considering the above circumstances, the claim that petitioner had abandoned his right to the possession of the
seized properties is incorrect.
WHEREFORE, Search Warrant No. Q-00002 issued by the respondent judge on September 29, 1983 is
declared null and void and, accordingly, SET ASIDE.
The prayer for a writ of mandatory injunction for the return of the seized articles is GRANTED and all properties
seized thereunder are hereby ordered RELEASED to petitioner. Further, respondents Lt. Col. Berlin A. Castillo
and lst Lt. Godofredo M. Ignacio are ordered to RE-OPEN the padlocked office premises of the Philippine Times
at 610 Mezzanine Floor, Gochengco Bldg., T.M. Kalaw, Ermita, Manila.
SO ORDERED.

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FIRST DIVISIONG.R. No. 153087

August 7, 2003

BERNARD R. NALA, Petitioner,


vs.
JUDGE JESUS M. BARROSO, JR., Presiding Judge, Regional Trial Court, Branch 10, 10th Judicial
Region, Malaybalay City, Respondent.
DECISION
YNARES-SANTIAGO, J.:

In determining the existence of probable cause for the issuance of a search warrant, the examining magistrate
must make probing and exhaustive, not merely routine or pro forma examination of the applicant and the
witnesses.1 Probable cause must be shown by the best evidence that could be obtained under the
circumstances. The introduction of such evidence is necessary especially where the issue is the existence of a
negative ingredient of the offense charged, e.g., the absence of a license required by law.2
This is a petition for certiorari under Rule 65 of the Rules of Court, seeking to annul the October 18, 2001 3 and
February 15, 20024 Orders5 of the Regional Trial Court of Malaybalay City, Branch 10, which denied petitioners
Omnibus Motion to Quash6 Search and Seizure Warrant No. 30-01.7
On June 25, 2001, PO3 Macrino L. Alcoser applied for the issuance of a warrant to search the person and
residence of petitioner Bernard R. Nala, who was referred to in the application as "Rumolo8 Nala alias Long"9 of
"Purok 4, Poblacion, Kitaotao, Bukidnon."10 The application was filed in connection with petitioners alleged
illegal possession of one caliber .22 magnum and one 9 mm. pistol in violation of Republic Act No. 8294, which
amended Presidential Decree No. 1866, or the law on Illegal Possession of Firearms. On the same day, after
examining Alcoser and his witness Ruel Nalagon, respondent Presiding Judge of RTC of Malaybalay City,
Branch 10, issued Search and Seizure Warrant No. 30-01, against "Romulo Nala alias Lolong Nala who is said
to be residing at Purok 4, Poblacion, Kitaotao, Bukidnon."
At around 6:30 in the morning of July 4, 2001, Alcoser and other police officers searched petitioners house and
allegedly seized the following articles, to wit
-1- one piece caliber .38 revolver (snub-nose) with Serial Number 1125609
-1- one pc. fragmentation grenade (cacao type)
-1- one pc. .22 long barrel
-5- pcs live ammunition for caliber .38 revolver
-4- four pcs. of disposable lighter and unestimated numbers of cellophane used for packing of shabu 11
On July 5, 2001, Criminal Cases Nos. 10943-2001-P and 10944-2001-P for illegal possession of firearms,
ammunitions and explosives were filed against the petitioner before the 5th Municipal Circuit Trial Court of
Kitaotao, Bukidnon.12
On August 8, 2001, petitioner filed an Omnibus Motion 13 seeking to (1) quash Search and Seizure Warrant No.
30-01; (2) declare inadmissible for any purpose the items allegedly seized under the said warrant; and (3) direct
the release of the air rifle seized by the police officers.
Respondent judge denied the Omnibus Motion to Quash but ordered the return of the air rifle to petitioner. As to
the validity of the search warrant, respondent found that probable cause was duly established from the
deposition and examination of witness Ruel Nalagon and the testimony of PO3 Macrino L. Alcoser who
personally conducted a surveillance to confirm the information given by Nalagon. The fact that the items seized
were not exactly the items listed in the warrant does not invalidate the same because the items seized bear a
direct relation to the crime of illegal possession of firearms. Respondent judge also found that petitioner was
sufficiently identified in the warrant although his first name was erroneously stated therein as "Romulo" and not
"Bernard", considering that the warrant was couched in terms that would make it enforceable against the person
and residence of petitioner and no other. The dispositive portion of the questioned Order reads:
WHEREFORE, finding the Omnibus Motion to be without merit, the same is hereby DENIED. However, as to the
questioned Air Rifle, the same is allowed to be withdrawn and ordered returned to herein movant.
SO ORDERED.14

Petitioner filed a motion for reconsideration but the same was denied on February 15, 2002. 15 Hence, he filed the
instant petition alleging that respondent judge committed grave abuse of discretion in issuing the questioned
orders.
The issues for resolution are as follows: (1) Was petitioner sufficiently described in the search and seizure
warrant? (2) Was there probable cause for the issuance of a search and seizure warrant against petitioner? and
(3) Whether or not the firearms and explosive allegedly found in petitioners residence are admissible in
evidence against him even though said firearms were not listed in the search and seizure warrant.
At the outset, it must be noted that the instant petition for certiorari was filed directly with this Court in disregard
of the rule on hierarchy of courts. In the interest of substantial justice and speedy disposition of cases, however,
we opt to take cognizance of this petition in order to address the urgency and seriousness of the constitutional
issues raised.16 In rendering decisions, courts have always been conscientiously guided by the norm that on the
balance, technicalities take a backseat against substantive rights, and not the other way around. Thus, if the
application of the Rules would tend to frustrate rather than promote justice, it is always within our power to
suspend the rules, or except a particular case from its operation. 17
Article III, Section 2 of the Constitution guarantees every individual the right to personal liberty and security of
homes against unreasonable searches and seizures, viz:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
The purpose of the constitutional provision against unlawful searches and seizures is to prevent violations of
private security in person and property, and unlawful invasion of the sanctity of the home, by officers of the law
acting under legislative or judicial sanction, and to give remedy against such usurpations when attempted. 18
Corollarily, Rule 126, Sections 4 and 5 of the 2000 Rules on Criminal Procedure provide for the requisites for the
issuance of a search warrant, to wit:
SEC. 4. Requisites for issuing search warrant. A search warrant shall not issue except upon probable cause
in connection with one specific offense to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witness he may produce, and particularly describing the place to be
searched and the things to be seized which may be anywhere in the Philippines.
SEC. 5. Examination of complainant; record. The judge must, before issuing the warrant, personally
examine in the form of searching questions and answers, in writing and under oath, the complainant and the
witnesses he may produce on facts personally known to them and attach to the record their sworn statements,
together with the affidavits submitted.
More simply stated, the requisites of a valid search warrant are: (1) probable cause is present; (2) such presence
is determined personally by the judge; (3) the complainant and the witnesses he or she may produce are
personally examined by the judge, in writing and under oath or affirmation; (4) the applicant and the witnesses
testify on facts personally known to them; and (5) the warrant specifically describes the person and place to be
searched and the things to be seized.19
On the first issue, the failure to correctly state in the search and seizure warrant the first name of petitioner,
which is "Bernard" and not "Romulo" or "Rumolo", does not invalidate the warrant because the additional
description "alias Lolong Nala who is said to be residing at Purok 4, Poblacion, Kitaotao, Bukidnon" sufficiently
enabled the police officers to locate and identify the petitioner. What is prohibited is a warrant against an
unnamed party, and not one which, as in the instant case, contains a descriptio personae that will enable the
officer to identify the accused without difficulty.20

The "probable cause" for a valid search warrant has been defined as such facts and circumstances which would
lead a reasonably discreet and prudent man to believe that an offense has been committed, and that objects
sought in connection with the offense are in the place sought to be searched. This probable cause must be
shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based
on mere hearsay.21 In determining its existence, the examining magistrate must make a probing and exhaustive,
not merely routine or pro forma examination of the applicant and the witnesses.22 Probable cause must be
shown by the best evidence that could be obtained under the circumstances. On the part of the applicant and
witnesses, the introduction of such evidence is necessary especially where the issue is the existence of a
negative ingredient of the offense charged, e.g., the absence of a license required by law.23 On the other hand,
the judge must not simply rehash the contents of the affidavits but must make his own extensive inquiry on the
existence of such license, as well as on whether the applicant and the witnesses have personal knowledge
thereof.
In Paper Industries Corporation of the Philippines (PICOP) v. Asuncion,24 we declared as void the search warrant
issued by the trial court in connection with the offense of illegal possession of firearms, ammunitions and
explosives, on the ground, inter alia, of failure to prove the requisite probable cause. The applicant and the
witness presented for the issuance of the warrant were found to be without personal knowledge of the lack of
license to possess firearms of the management of PICOP and its security agency. They likewise did not testify as
to the absence of license and failed to attach to the application a "no license certification" from the Firearms and
Explosives Office of the Philippine National Police. Thus Bacolod appeared during the hearing and was extensively examined by the judge. But his testimony showed that
he did not have personal knowledge that the petitioners, in violation of PD 1866, were not licensed to possess
firearms, ammunitions or explosives
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When questioned by the judge, Bacolod stated merely that he believed that the PICOP security guards had no
license to possess the subject firearms. This, however, does not meet the requirement that a witness must testify
on his personal knowledge, not belief.
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Moreover, Bacolod failed to affirm that none of the firearms seen inside the PICOP compound was licensed.
Bacolod merely declared that the security agency and its guards were not licensed. He also said that some of
the firearms were owned by PICOP. Yet, he made no statement before the trial court that PICOP, aside from the
security agency, had no license to possess those firearms. Worse, the applicant and his witnesses inexplicably
failed to attach to the application a copy of the aforementioned "no license" certification from the Firearms and
Explosives Office (FEO) of the PNP, or to present it during the hearing. Such certification could have been easily
obtained, considering that the FEO was located in Camp Crame where the unit of Bacolod was also based. 25
In the case at bar, the search and seizure warrant was issued in connection with the offense of illegal possession
of firearms, the elements of which are (1) the existence of the subject firearm; and (2) the fact that the accused
who owned or possessed it does not have the license or permit to possess the same. 26 Probable cause as
applied to illegal possession of firearms would therefore be such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that a person is in possession of a firearm and that he does not
have the license or permit to possess the same. Nowhere, however, in the affidavit and testimony of witness
Ruel Nalagon nor in PO3 Macrino L. Alcosers application for the issuance of a search warrant was it mentioned
that petitioner had no license to possess a firearm. While Alcoser testified before the respondent judge that the
firearms in the possession of petitioner are not licensed, this does not qualify as "personal knowledge" but only
"personal belief" because neither he nor Nalagon verified, much more secured, a certification from the
appropriate government agency that petitioner was not licensed to possess a firearm. This could have been the
best evidence obtainable to prove that petitioner had no license to possess firearms and ammunitions, but the
police officers failed to present the same.
Regrettably, even the examination conducted by the respondent judge on Nalagon and Alcoser fell short of the
required probing and exhaustive inquiry for the determination of the existence of probable cause. Thus

COURT: [To witness Ruel Nalagon]


Q I am showing you this document/sworn statement of Ruel Nala[gon] given to PO3 Rodrigo Delfin, Investigator,
SCOT/PDEU Bukidnon Police Provincial Office, Camp Ramon Onahon, Malaybalay City on or about 12:30 in the
afternoon of June 25, 2001, in the presence of PO3 Macrino Alcoser, Operative of Special Case Operation
Team. Are you the same Ruel Nalagon who has given a statement before the above-named police officer?
A Yes, Sir.
Q You have given a statement before the abovenamed police officer or Investigator that you have personal
knowledge that a certain Romulo Nala in Purok 4, Poblacion, Kitaotao, Bukidnon has in his possession a .22
magnum pistol and 9MM pistol[?] Why and how do you know that he has in his possession such pistols?
A Because I personally saw and witnessed him bringing or carrying said pistols.
Q Where did you see him bringing or carrying said pistols?
A I saw him personally in the public market of Kitaotao, Bukidnon. I also witnessed him firing said pistol
especially when he is drunk.
Q How often did you see him carrying and firing said pistols?
A Many times.
Q Do you know Romulo Nala? Are you friends with said person?
A Yes, sir because we are neighbors in Purok 4, Poblacion, Kitaotao, Bukidnon.
Q This Romulo Nala, is he bringing these two (2) pistols at the same time?
A No sir, he is bringing often times the .22 magnum and I saw him only twice bringing 9MM pistol.
Q Do you have something more to add or say in this investigation?
A None as of this moment.
That is all.27
COURT:
Next witness [PO3 Macrino L. Alcoser]
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Q Regarding this application filed by your office, what is your basis in arriving into a conclusion that this certain
Romulo Nala of Purok 4, Poblacion, Kitaotao, Bukidnon has in his possession illegal firearms?
A Based on the report of our reliable asset, a civilian agent who was able to personally witness this Mr.
Romulo Nala who has in his possession one (1) .22 magnum and one (1) 9MM pistols which are unlicensed.
Q What action [was] commenced by your office if any as to the report made by your asset regarding the alleged
possession of Mr. Romulo Nala of unlicensed firearms?
A Our officer through authorized personnel, conducted surveillance operation on the spot, headed by this affiant.

Q What was the result of the surveillance conducted by your office?


A The result turned out to be positive and we have [concrete] evidence that indeed this Romulo Nala is engaged
with the above illegal act.
Q Are there more information you wish to inform this Court.
A None, as of the moment.
Q Do you affirm the truthfulness of the above statement made by you and [will you] voluntarily sign the same?
A Yes, sir.
That is all.28
It did not even occur to the examining judge to clarify how did the police officers conduct an "on the spot"
surveillance on June 25, 2001 on a 2-hour interval between 12:30 p.m., 29 when Nalagon executed the affidavit,
and 2:30 p.m.,30 when PO3 Macrino L. Alcoser testified before the respondent judge that they "conducted
surveillance operation on the spot" right after Nalagon executed his affidavit. Even if we apply the presumption of
regularity in the performance of duty, the "on the spot" surveillance claimed by Alcoser contradicts his statement
in the application for the issuance of warrant that he "conducted long range surveillance" of petitioner. At any
rate, regardless of the nature of the surveillance and verification of the information carried out by the police
officers, the fact remains that both the applicant, PO3 Macrino L. Alcoser, and his witness Ruel Nalagon did not
have personal knowledge of petitioners lack of license to possess firearms, ammunitions and explosive; and did
not adduce the evidence required to prove the existence of probable cause that petitioner had no license to
possess a firearm. Hence, the search and seizure warrant issued on the basis of the evidence presented is void.
Can petitioner be charged with illegal possession of firearms and explosive allegedly seized from his house?
Petitioner contends that said articles are inadmissible as evidence against him because they were not the same
items specifically listed in the warrant. The Office of the Provincial Prosecutor, on the other hand, claims that
petitioner should be held liable because the items seized bear a direct relation to the offense of illegal
possession of firearms. These arguments, however, become immaterial in view of the nullity of the search
warrant which made possible the seizure of the questioned articles.
The settled rule is that where entry into the premises to be searched was gained by virtue of a void search
warrant, prohibited articles seized in the course of the search are inadmissible against the accused. In Roan v.
Gonzales,31 the prosecution sought to charge the accused with illegal possession of firearms on the basis of the
items seized in a search through a warrant which the Court declared as void for lack of probable cause. In ruling
against the admissibility of the items seized, the Court said
Prohibited articles may be seized but only as long as the search is valid. In this case, it was not because: 1)
there was no valid search warrant; and 2) absent such a warrant, the right thereto was not validly waived by the
petitioner. In short, the military officers who entered the petitioners premises had no right to be there and
therefore had no right either to seize the pistol and bullets." 32
Conformably, the articles allegedly seized in the house of petitioner cannot be used as evidence against him
because access therein was gained by the police officer using a void search and seizure warrant. It is as if they
entered petitioners house without a warrant, making their entry therein illegal, and the items seized,
inadmissible.
Moreover, it does not follow that because an offense is malum prohibitum, 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 warrant is still necessary,33 because possession of any
firearm becomes unlawful only if the required permit or license therefor is not first obtained. 34

So also, admissibility of the items seized cannot be justified under the plain view doctrine. It is true that, as an
exception, the police officer may seize without warrant illegally possessed firearm, or any contraband for that
matter, inadvertently found in plain view. However, said officer must have a prior right to be in the position to
have that view of the objects to be seized. The "plain view" doctrine applies when the following requisites concur:
(a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position
from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is
immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or
otherwise subject to seizure. The law enforcement officer must lawfully make an initial intrusion or properly be in
a position from which he can particularly view the area. In the course of such lawful intrusion, he came
inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand
and its discovery inadvertent.351wphi1
No presumption of regularity may be invoked in aid of the process when the officer undertakes to justify an
encroachment of rights secured by the Constitution. In this case, the firearms and explosive were found at the
rear portion of petitioners house36 but the records do not show how exactly were these items discovered.
Clearly, therefore, the plain view doctrine finds no application here not only because the police officers had no
justification to search the house of petitioner (their search warrant being void for lack of probable cause), but
also because said officers failed to discharge the burden of proving that subject articles were inadvertently found
in petitioners house.
The issue of the reasonableness of the implementation of the search and seizure warrant, i.e., whether the
search was conducted in the presence of witnesses and whether the air rifle which the trial court ordered to be
returned to petitioner was indeed among the items seized during the search, are matters that would be best
determined in the pending administrative case for grave misconduct and irregularity in the performance of duty
against the police officers who conducted the search.
Considering that the search and seizure warrant in this case was procured in violation of the Constitution and the
Rules of Court, all the items seized in petitioners house, being "fruits of the poisonous tree", are "inadmissible
for any purpose in any proceeding." The exclusion of these unlawfully seized evidence is the only practical
means of enforcing the constitutional injunction against unreasonable searches and seizures. 37 Hence, the
complaints filed against petitioner for illegal possession of firearms and explosive based on illegally obtained
evidence have no more leg to stand on.38 Pending resolution of said cases, however, the articles seized are to
remain in custodia legis.39
Finally, the Court notes that among the items seized by the officers were "four pcs. of disposable lighter and
unestimated numbers of cellophane used for packing of shabu." These items are not contraband per se, nor
objects in connection with the offense of illegal possession of firearms for which the warrant was issued.
Moreover, it is highly preposterous to assume that these items were used in connection with offenses involving
illegal drugs. Even granting that they were, they would still be inadmissible against the petitioner for being
products of an illegal search. Hence, the subject articles should be returned to petitioner. 40
WHEREFORE, in view of all the foregoing, the petition is GRANTED. The October 18, 2001 and February 15,
2002 Orders of the Regional Trial Court of Malaybalay City, Branch 10, are REVERSED and SET ASIDE insofar
as it denied petitioners omnibus motion to quash the search warrant. Search and Seizure Warrant No. 30-01
dated June 25, 2001 is declared VOID and the articles seized by virtue thereof are declared inadmissible in
evidence. Pending resolution of Criminal Case Nos. 10943-2001-P and 10944-2001-P for illegal possession of
firearms, ammunitions and explosive against petitioner, the items (caliber .38 revolver with Serial Number
1125609 and 5 pieces live ammunitions; fragmentation grenade; and .22 long barrel) subject thereof, must
remain in custodia legis. The four pieces of disposable lighter and cellophane seized should be returned to
petitioner.
SO ORDERED.

xlv

xlvi

[G.R. No. 118821. February 18, 2000]


MAYOR BAI UNGGIE D. ABDULA and ODIN ABDULA, petitioners, vs. HON. JAPAL M. GUIANI, in his
capacity as Presiding Judge, of Branch 14 of the Regional Trial Court of Cotabato City, respondent.
DECISION
GONZAGA_REYES, J.:
At bench is a petition for certiorari and prohibition to set aside the warrant of arrest issued by herein respondent
Japal M. Guiani, then presiding judge of Branch 14 of the Regional Trial Court of Cotabato City, ordering the
arrest of petitioners without bail in Criminal Case No. 2376 for murder.
The antecedent facts of the case are as follows:
On 24 June 1994, a complaint for murder, docketed as I.S. No. 94-1361, was filed before the Criminal
Investigation Service Command, ARMM Regional Office XII against herein petitioners and six (6) other
persons[1] in connection with the death of a certain Abdul Dimalen, the former COMELEC Registrar of
Kabuntalan, Maguindanao.[2] The complaint alleged that herein petitioners paid the six other respondents the
total amount of P200,000.00 for the death of Abdul Dimalen.[3]
Acting on this complaint, the Provincial Prosecutor of Maguindanao, Salick U. Panda, in a Resolution dated 22
August 1994[4], dismissed the charges of murder against herein petitioners and five other respondents on a
finding that there was no prima facie case for murder against them. Prosecutor Panda, however, recommended
the filing of an information for murder against one of the respondents, a certain Kasan Mama. Pursuant to this
Resolution, an information for murder was thereafter filed against Kasan Mama before the sala of respondent
Judge.
In an Order dated 13 September 1994[5], respondent Judge ordered that the case, now docketed as Criminal
Case No. 2332, be returned to the Provincial Prosecutor for further investigation. In this Order, respondent judge
noted that although there were eight (8) respondents in the murder case, the information filed with the court
"charged only one (1) of the eight (8) respondents in the name of Kasan Mama without the necessary resolution
required under Section 4, Rule 112 of the Revised Rules of Court to show how the investigating prosecutor

arrived at such a conclusion." As such, the respondent judge reasons, the trial court cannot issue the warrant of
arrest against Kasan Mama.
Upon the return of the records of the case to the Office of the Provincial Prosecutor for Maguindanao, it was
assigned to 2nd Assistant Prosecutor Enok T. Dimaraw for further investigation. In addition to the evidence
presented during the initial investigation of the murder charge, two new affidavits of witnesses were submitted to
support the charge of murder against herein petitioners and the other respondents in the murder complaint.
Thus, Prosecutor Dimaraw treated the same as a refiling of the murder charge and pursuant to law, issued
subpoena to the respondents named therein.[6] On December 6, 1994, herein petitioners submitted and filed
their joint counter-affidavits.
After evaluation of the evidence, Prosecutor Dimaraw, in a Resolution dated 28 December 1994,[7] found a
prima facie case for murder against herein petitioners and three (3) other respondents.[8] He thus recommended
the filing of charges against herein petitioners Bai Unggie Abdula and Odin Abdula, as principals by inducement,
and against the three (3) others, as principals by direct participation.
Likewise in this 28 December 1994 Resolution, Provincial Prosecutor Salick U. Panda, who conducted the
earlier preliminary investigation of the murder charge, added a notation stating that he was inhibiting himself
from the case and authorizing the investigating prosecutor to dispose of the case without his approval. The
reasons he cited were that the case was previously handled by him and that the victim was the father-in-law of
his son.[9]
On 2 January 1995, an information for murder dated 28 December 1994[10] was filed against the petitioner
spouses and Kasan Mama, Cuenco Usman and Jun Mama before Branch 14 of the Regional Trial Court of
Cotabato City, then the sala of respondent judge. This information was signed by investigating prosecutor Enok
T. Dimaraw. A notation was likewise made on the information by Provincial Prosecutor Panda, which explained
the reason for his inhibition.[11]
The following day, or on 3 January 1995, the respondent judge issued a warrant[12] for the arrest of petitioners.
Upon learning of the issuance of the said warrant, petitioners filed on 4 January 1995 an Urgent Ex-parte
Motion[13] for the setting aside of the warrant of arrest on 4 January 1995. In this motion, petitioners argued that
the enforcement of the warrant of arrest should be held in abeyance considering that the information was
prematurely filed and that the petitioners intended to file a petition for review with the Department of Justice.
A petition for review[14] was filed by the petitioners with the Department of Justice on 11 January 1995.[15]
Despite said filing, respondent judge did not act upon petitioners pending Motion to Set Aside the Warrant of
Arrest.
Hence, this Petition for Certiorari and Prohibition wherein petitioners pray for the following:
"1. upon filing of this petition, a temporary restraining order be issued enjoining the
implementation and execution of the order of arrest dated January 3, 1995 and enjoining the
respondent judge from further proceeding with Criminal Case No. 2376 entitled People of the
Philippines vs. Bai Unggie D. Abdula, et al. upon such bond as may be required by the
Honorable Court;
2. this petition be given due course and the respondent be required to answer;
3. after due hearing, the order of arrest dated January 3, 1995 be set aside and declared void ab
initio and the respondent judge be disqualified from hearing Criminal Case No. 2376 entitled
People of the Philippines vs. Bai Unggie D. Abdula, et al."[16]
In a Resolution[17] dated 20 February 1995, this Court resolved to require respondent judge to submit a
comment to the petition. The Court further resolved to issue a temporary restraining order[18] enjoining the
respondent judge from implementing and executing the Order of Arrest dated 3 January 1995 and from further
proceeding with Criminal Case No. 2376.

At the onset, it must be noted that petitions for certiorari and prohibition require that there be no appeal, nor any
plain, speedy and adequate remedy in the ordinary course of law available to the petitioner.[19] In the instant
case, it cannot be said that petitioners have no other remedy available to them as there is pending before the
lower court an Urgent Motion[20] praying for the lifting and setting aside of the warrant of arrest. Ordinarily, we
would have dismissed the petition on this ground and let the trial court decide the pending motion. However, due
to the length of time that the issues raised in the petition have been pending before the courts, it behooves us to
decide the case on the merits in order to preclude any further delay in the resolution of the case.
Respondent Japal M. Guiani retired from the judiciary on 16 April 1996. For this reason, respondent is no longer
the presiding judge of the Regional Trial Court Branch 14 of Cotabato City; and the prayer of petitioner as to
respondents disqualification from hearing Criminal Case No. 2376 is now moot and academic. Thus, there
remain two issues left for the determination of the Court: first, the legality of the second information for murder
filed before respondents court; and second, the validity of the warrant of arrest issued against petitioners.
With respect to the first issue, petitioners aver that it is the respondent judge himself who is orchestrating the
filing of the alleged murder charge against them. In support, petitioners cite five (5) instances wherein
respondent judge allegedly issued illegal orders in a mandamus case pending in respondents sala filed against
petitioner Mayor Bai Unggie Abdula. These allegedly illegal orders formed the basis for a criminal complaint
which they filed on 6 October 1994 against respondent and ten (10) others before the Office of the Ombudsman
for Mindanao.[21] In this complaint, herein petitioners alleged that the respondent judge illegally ordered the
release of the total amount of P1,119,125.00 from the municipal funds of Kabuntalan, Mindanao to a certain
Bayoraiz Saripada, a purported niece of respondent judge. The Office of the Ombudsman for Mindanao, in an
Order[22] dated 12 December 1994, found "sufficient basis to proceed with the preliminary investigation of the
case" and directed the respondents therein to file their respective counter-affidavits and controverting evidence.
From these facts, petitioners argue, it is clear that it is the respondent judge himself who is orchestrating and
manipulating the charges against the petitioner.
Petitioners further state that respondent judge exhibited extreme hostility towards them after the filing of the said
complaint before the Ombudsman. Petitioners claim that immediately after the issuance of the Order of the
Ombudsman requiring respondent judge to file his counter-affidavit, respondent allegedly berated petitioner Bai
Unggie Abdula in open court when she appeared before him in another case Allegedly, in full view of the lawyers
and litigants, respondent judge uttered the following words in the Maguindanaoan dialect:
"If I cannot put you in jail within your term, I will cut my neck. As long as I am a judge here, what
I want will be followed."[23]
Respondent judge, in compliance with the Order of this Court, filed a Comment dated 3 March 1995.[24] In this
Comment, he argues that petitioners enumeration of "incontrovertible facts" is actually a list of misleading facts
which they are attempting to weave into Criminal Case No. 2376 for the purpose of picturing respondent as a
partial judge who abused his discretion to favor petitioners accuser.[25] He claims that the anti-graft charge filed
by petitioners against him is a harassment suit concocted by them when they failed to lay their hands on the
amount of P1,119,125.00 of municipal funds which respondent had previously ruled as rightfully belonging to the
municipal councilors of Kabuntalan, Maguindanao. Respondent vehemently denies having personally profited
from the release of the municipal funds. Moreover, respondent points out that the allegations in the complaint
seem to imply that the Vice Mayor of Kabuntalan, Bayoraiz Sarupada, was a party to the mandamus case filed
with respondents court when in truth, there was no case filed by the vice mayor pending in his court. Finally,
respondent denies berating petitioner Bai Unggie Abdula and uttering the words attributed to him in the petition.
According to respondent, the last time petitioner Bai Unggie Abdula appeared in his sala on December 28, 1994,
in connection with the lifting of an order for her apprehension in another case, he neither berated nor scolded her
and in fact, he even lifted the said order of arrest.
In its Comment with Urgent Motion for the Lifting of the Temporary Restraining Order dated 5 June 1995,[26] the
Office of the Solicitor-General states that petitioners allegation that the respondent judge was biased and
prejudiced was pure speculation as no proof was presented that respondent assumed the role of prosecutor.
Moreover, the OSG argued that the fact that the respondent judge and petitioners had pending cases against
each other did not necessarily result in the respondents bias and prejudice.

An analysis of these arguments shows that these should have been properly raised in a motion for the
disqualification or inhibition of respondent judge. As previously stated however, the issue as to whether
respondent should be disqualified from proceeding with the case has been rendered moot and academic as he
is no longer hearing the case against petitioners. As such, there is no need for a prolonged discussion on this
issue. It is sufficient to say that in order to disqualify a judge on the ground of bias and prejudice, petitioner must
prove the same by clear and convincing evidence.[27] This is a heavy burden which petitioners have failed to
discharge. This Court has to be shown acts or conduct of the judge clearly indicative of arbitrariness or prejudice
before the latter can be branded the stigma of being biased and partial.[28]
Petitioners next argue that the act of respondent in motu proprio ordering a reinvestigation of the murder charge
against them is another indication of the latters bias and prejudice.[29] They claim that the filing of their
complaint against respondent motivated the latters Order of 13 September 1994 which ordered the return of the
records of the murder case to the provincial prosecutor. Furthermore, they posit that the latter had no authority to
order the reinvestigation considering that same had already been dismissed as against them by the provincial
prosecutor in his Resolution dated 22 August 1994.
A review of the pertinent dates in the petition however show that respondent could not have been motivated by
the Ombudsmans complaint when he issued the 13 September 1994 Order. Petitioner Bai Unggie Abdula filed
the complaint before the Ombudsman of Cotabato City on October 6, 1994[30] or about a month after the
issuance of the 13 September 1994 Order. As such, when respondent issued the said Order, the same could not
have been a retaliatory act considering that at that time, there was as yet no complaint against him.
With respect to the allegation that the respondent had no legal authority to order a reinvestigation of the criminal
charge considering that the said charge had been previously dismissed as against them, we hold that
respondent did not abuse his discretion in doing so.[31]
It is true that under the circumstances, the respondent judge, upon seeing that there were no records attached to
the complaint, could have simply ordered the office of the provincial prosecutor to forward the same. Upon
receipt of these records, respondent judge would then have sufficient basis to determine whether a warrant of
arrest should issue. However, from the bare terms of the questioned order alone, we fail to see any illegal reason
that could have motivated the judge in issuing the same. The order merely stated that the records of the case
should be returned to the Office of the Provincial Prosecutor for further investigation or reinvestigation. He did
not unduly interfere with the prosecutors duty to conduct a preliminary investigation by ordering the latter to file
an information against any of the respondents or by choosing the fiscal who should conduct the reinvestigation
which are acts certainly beyond the power of the court to do.[32] It was still the prosecutor who had the final say
as to whom to include in the information.[33]
As pointed out by the Office of the Solicitor General, petitioners only imputed bias against the respondent judge
and not against the investigating prosecutor.[34] Consequently, this imputation is of no moment as the discretion
to file an information is under the exclusive control and supervision of the prosecutor and not of respondent
judge. Furthermore, petitioners cannot claim that they were denied due process in the reinvestigation of the
charges against them as they actively participated therein by submitting their joint counter-affidavit.
Petitioners likewise allege that the information charging petitioners with murder is null and void because it was
filed without the authority of the Provincial Prosecutor. They note that in the Resolution dated 28 December 1994
and in the corresponding information, it clearly appears that the same were not approved by the Provincial
Prosecutor as it was signed only by the investigating prosecutor, Anok T. Dimaraw.
Petitioners contention is not well-taken.
The pertinent portion of the Rules of Court on this matter state that "(n)o complaint or information shall be filed or
dismissed by an investigating fiscal without the prior written authority or approval of the provincial or city fiscal or
chief state prosecutor (underscoring ours)." In other words, a complaint or information can only be filed if it is
approved or authorized by the provincial or city fiscal or chief state prosecutor.
In the case at bench, while the Resolution and the Information were not approved by Provincial Prosecutor
Salick U. Panda, the filing of the same even without his approval was authorized. Both the Resolution and

information contain the following notation:*


"The herein Provincial Prosecutor is inhibiting himself from this case and Investigating
Prosecutor Enok Dimaraw may dispose of the case without his approval on the following
ground:
That this case has been previously handled by him, and whose findings differ from the findings
of Investigating Prosecutor Dimaraw; and the victim is a relative by affinity, he being a father-inlaw of his son.
(Signed) Salick U. Panda
Provincial Prosecutor
It must be stressed that the Rules of Court speak of authority or approval by the provincial, city, or chief state
prosecutor. The notation made by Prosecutor Panda clearly shows that Investigating Prosecutor Dimaraw was
authorized to "dispose of the case without his approval." In issuing the resolution and in filing the information, the
investigating prosecutor was acting well within the authority granted to him by the provincial prosecutor. Thus,
this resolution is sufficient compliance with the aforecited provision of the Rules of Court.
Having thus ruled on the validity of the information filed against the respondents, we now address the issue as to
the legality of the warrant of arrest issued by respondent judge by virtue of the said information.
On this issue, petitioners, citing the case of Allado vs. Diokno[35] argue that the warrant for his arrest should be
recalled considering that the respondent judge "did not personally examine the evidence nor did he call the
complainant and his witnesses in the face of their incredible accounts." As proof, he points to the fact that the
information was filed at around 4:00 p.m. of the January 2, 1995 and the order of arrest was immediately issued
the following day or on January 3, 1995. Moreover, petitioner argues, respondent judge did not even issue an
order stating that there is probable cause for the issuance of the warrant of arrest, a clear violation of the
guidelines set forth in the Allado case.
Respondent, in his Comment, denies any irregularity in the issuance of the warrant of arrest. He argues as
follows:
"Written authority having been granted by the Provincial Prosecutor, as required by the third
paragraph of Section 4, Rule 112 of (the) Rules on Criminal Procedure, and there having been
no reason for the respondent to doubt the validity of the certification made by the Assistant
Prosecutor that a preliminary investigation was conducted and that probable cause was found to
exist as against those charged in the Information filed, and recognizing the prosecutions legal
authority to initiate and control criminal prosecution (Rule 110, Section 5) and considering that
the court cannot interfere in said prosecutions authority (People vs. Moll, 68 Phil. 626), the
respondent issued the warrant for the arrest of the accused pursuant to paragraph (a), section 6,
Rule 112;"[36]
The OSG, in defending the act of respondent judge, argues that the allegation that respondent did not personally
examine the evidence is not supported by current jurisprudence. In support, the OSG invokes the
pronouncement in Soliven vs. Makasiar[37] that "(I)n satisfying himself of the existence of probable cause, the
judge is not required to personally examine the complainant and his witnesses." Moreover, the OSG points out
that the judge enjoys a wide degree of latitude in the determination of probable cause for the issuance of
warrants of arrest depending on the circumstances of each case.[38]
The OSG further argues that the case of Allado vs. Diokno, relied upon by petitioners, has no application in the
case at bar considering that in the cited case, the documents submitted before the court failed to establish any
probable cause as they were conflicting and contradictory. Significantly, the OSG continues, petitioners could not
point out a single flaw in the evidence presented by the prosecutor to negate the existence of probable cause.
Finally, the OSG points out that petitioners unfounded allegations cannot prevail over the well-settled rule that

official duty is presumed to be regularly performed.[39]


After a careful analysis of these arguments, we find merit in the contention of petitioners.
The pertinent provision of the Constitution reads:
"Section 2 [Article III]. 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." (Undersoring supplied.)
It must be stressed that the 1987 Constitution requires the judge to determine probable cause "personally," a
requirement which does not appear in the corresponding provisions of our previous constitutions. This emphasis
evinces the intent of the framers to place a greater degree of responsibility upon trial judges than that imposed
under previous Constitutions.[40]
In Soliven vs. Makasiar, this Court pronounced:
"What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence
of probable cause for the issuance of a warrant of arrest, the judge is not required to personally
examine the complainant and his witnesses. Following established doctrine and procedure, he
shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or
(2) if on the basis thereof he finds no probable cause, he may disregard the fiscals report and
require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion
as to the existence of probable cause."
Ho vs. People[41] summarizes existing jurisprudence on the matter as follows:
"Lest we be too repetitive, we only wish to emphasize three vital matters once more: First, as
held in Inting, the determination of probable cause by the prosecutor is for a purpose different
from that which is to be made by the judge. Whether there is reasonable ground to believe that
the accused is guilty of the offense charged and should be held for trial is what the prosecutor
passes upon. The judge, on the other hand, determines whether a warrant of arrest should be
issued against the accused, i.e., whether there is a necessity for placing him under immediate
custody in order not to frustrate the ends of justice. Thus, even if both should base their findings
on one and the same proceeding or evidence, there should be no confusion as to their distinct
objectives.
Second, since their objectives are different, the judge cannot rely solely on the report of the
prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and
understandably, the contents of the prosecutors report will support his own conclusion that there
is reason to charge the accused for an offense and hold him for trial. However, the judge must
decide independently. Hence, he must have supporting evidence, other than the prosecutors
bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of
probable cause to issue an arrest order. This responsibility of determining personally and
independently the existence or nonexistence of probable cause is lodged in him by no less than
the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the
judge and speed up the litigation process by forwarding to the latter not only the information and
his bare resolution finding probable cause, but also so much of the records and the evidence on
hand as to enable the His Honor to make his personal and separate judicial finding on whether
to issue a warrant of arrest.

Lastly, it is not required that the complete or entire records of the case during the preliminary
investigation be submitted to and examined by the judge. We do not intend to unduly burden trial
courts by obliging them to examine the complete records of every case all the time simply for the
purpose of ordering the arrest of an accused. What is required, rather, is that the judge must
have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn
statements of witnesses or transcript of stenographic notes, if any) upon which to make his
independent judgment or, at the very least, upon which to verify the findings of the prosecutor as
to the existence of probable cause. The point is: he cannot rely solely and entirely on the
prosecutors recommendation, as Respondent Court did in this case. Although the prosecutor
enjoys the legal presumption of regularity in the performance of his official duties and functions,
which in turn gives his report the presumption of accuracy, the Constitution, we repeat,
commands the judge to personally determine probable cause in the issuance of warrants of
arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely
on the certification or the report of the investigating officer." (citations omitted)
In the case at bench, respondent admits that he issued the questioned warrant as there was "no reason for (him)
to doubt the validity of the certification made by the Assistant Prosecutor that a preliminary investigation was
conducted and that probable cause was found to exist as against those charged in the information filed." The
statement is an admission that respondent relied solely and completely on the certification made by the fiscal
that probable cause exists as against those charged in the information and issued the challenged warrant of
arrest on the sole basis of the prosecutors findings and recommendations. He adopted the judgment of the
prosecutor regarding the existence of probable cause as his own.
Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties, which
in turn gives his report the presumption of accuracy, nothing less than the fundamental law of the land
commands the judge to personally determine probable cause in the issuance of warrants of arrest. A judge fails
in this constitutionally mandated duty if he relies merely on the certification or report of the investigating officer.
To be sure, we cannot determine beforehand how cursory or exhaustive the respondents examination of the
records should be.[42] The extent of the judges examination depends on the exercise of his sound discretion as
the circumstances of the case require. In the case at bench, the respondent had before him two different
informations and resolutions charging two different sets of suspects. In the face of these conflicting resolutions, it
behooves him not to take the certification of the investigating prosecutor at face value. The circumstances thus
require that respondent look beyond the bare certification of the investigating prosecutor and examine the
documents supporting the prosecutors determination of probable cause. The inordinate haste that attended the
issuance of the warrant of arrest and respondents own admission are circumstances that tend to belie any
pretense of the fulfillment of this duty.
Clearly, respondent judge, by merely stating that he had no reason to doubt the validity of the certification made
by the investigating prosecutor has abdicated his duty under the Constitution to determine on his own the issue
of probable cause before issuing a warrant of arrest. Consequently, the warrant of arrest should be declared null
and void.
WHEREFORE, premises considered, the petition for certiorari and prohibition is GRANTED. The temporary
restraining order we issued on 20 February 1995 in favor of petitioners insofar as it enjoins the implementation
and execution of the order of arrest dated 3 January 1995 is made permanent. Criminal Case No. 2376 is
REMANDED to Branch 14 of the Regional Trial Court of Cotabato City for a proper determination of whether a
warrant of arrest should be issued and for further proceedings.
SO ORDERED.

A.M. No. RTJ-01-1610

October 5, 2001

ATTY. EDGAR H. TALINGDAN, complainant,


vs.
JUDGE HENEDINO P. EDUARTE, RTC-Br. 20, Cauayan, Isabela, respondent.
RESOLUTION
BELLOSILLO, J.:
Atty. Edgar H. Talingdan, a private practitioner, charges respondent Judge Henedino P. Eduarte, RTC-Br. 20,
Cauayan, Isabela, with improvidently issuing a warrant of arrest in Crim. Case No. Br. 20-1373 for libel without
the requisite preliminary investigation being first conducted by the Office of the Public Prosecutor.
Specifically, complainant alleged in his Letter-Complaint dated 14 June 2000 that sometime in April 2000
elements of the PNP Bambang, Nueva-Vizcaya stormed into his residence to arrest him and his client, Modesto
Luzano, on the strength of a Warrant of Arrest dated 12 April 20001 issued by respondent Judge Eduarte in Crim.
Case No. Br. 20-1373 entitled "People v. Edgar Talingdan and Modesto Luzano" of the RTC-Br. 20, Cauayan,
Isabela for the supposed crime of libel. Surprised that such a case existed against him and his client as they had
not been previously charged, complainant filed a Very Urgent Motion to Quash and/or Set Aside Warrant of
Arrest and Direct Prosecutor's Office to Conduct Preliminary Investigation dated 5 May 2000 asking that the
Warrant of Arrest be set aside for being premature since they had not been previously notified of the charge
against them and no preliminary investigation was ever conducted by the public prosecutor's office yet, and for
being defective since the amount of bail was not specified therein in violation of their constitutional right to bail.
Respondent Judge granted the motion and recalled the warrant of arrest in an Order dated 12 May 2000
admitting that he issued the same under the mistaken belief that a preliminary investigation had already been
conducted and an information already filed in court.
Complainant nonetheless filed this administrative case allegedly to help the Court in purging the Judiciary of
those who undermine its dignity and credibility as his faith therein was almost eroded by the unfortunate incident.
In his Comments dated 28 August 20002 respondent Judge did not deny that he issued the improvident warrant
of arrest. He only alleged by way of explanation and exculpation that on 24 March 2000 a complaint for libel was
directly filed with the RTC-Br. 19, Cauayan, Isabela, by Leoncio Dalin Sr. which was docketed as Crim. Case No.
2881. The case was assigned to his sala after raffle and was re-docketed as Crim. Case No. Br. 20-1373. The
records of the case then went to the Criminal Docket Clerk, Ms. Imelda Severino who, under the Check List for
Criminal Cases3 that he had prepared for her, was supposed to verify from the records first whether an
information had already been filed and if there was, to prepare the corresponding warrant of arrest if the accused
had not yet been arrested. Thus when he saw the Warrant of Arrest prepared by Ms. Severino in Crim. Case No.
Br. 20-1373, he signed the same honestly thinking that she had faithfully complied first with her duty of going
over the records of the case. Respondent Judge assured the Court that the incident was a simple mistake on his
part and that he had not been actuated by malice, corrupt motive, or improper consideration in its commission.
We referred this case on 17 January 2001 to the Presiding Justice, Court of Appeals, for assignment who would
conduct an investigation and thereafter submit a report and recommendation within ninety (90) days from
notice.4
In his Report and Recommendation5 Associate Justice Salvador J. Valdez, Jr. recommended that respondent
Judge be adjudged guilty as charged and fined Ten Thousand Pesos (P10,000.00) for the improvident issuance
of the Warrant of Arrest in Crim. Case No. Br. 20-1373.
We find the recommendation to be well-taken and adopt the same.
Enshrined in our Constitution is the rule that "[n]o x x x 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 x x x the persons x x x to be seized."6 Interpreting the
words "personal determination" we said7 that it does not thereby mean that judges are obliged to conduct the
personal examination of the complainant and his witnesses themselves. To require thus would be to unduly
laden them with preliminary examinations and investigations of criminal complaints instead of concentrating on
hearing and deciding cases filed before them. Rather what is emphasized merely is the exclusive and personal
responsibility of the issuing judge to satisfy himself as to the existence of probable cause. To this end he may:
(a) personally evaluate the report and the supporting documents submitted by the prosecutor regarding the
existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (b) if on the basis thereof he
finds no probable cause, disregard the prosecutor's report and require the submission of supporting affidavits of
witnesses to aid him in determining its existence. What he is never allowed to do is follow blindly the
prosecutor's bare certification as to the existence of probable cause. Much more is required by the constitutional
provision. Judges have to go over the report, the affidavits, the transcript of stenographic notes if any, and other
documents supporting the prosecutor's certification. Although the extent of the judge's personal examination
depends on the circumstances of each case, to be sure, he cannot just rely on the bare certification alone but
must go beyond it. This is because the warrant of arrest issues not on the strength of the certification standing
alone but because of the records which sustain it. 8 He should even call for the complainant and the witnesses to
answer the court's probing questions when the circumstances warrant. 9
In the case at bench respondent Judge not only failed to follow the required procedure but worse, was negligent
enough not to have noticed that there was not even a prosecutor's certification to rely upon since no information
had even been filed yet in court, and that Crim. Case No. Br. 20-1373 was merely docketed as such on the
strength of a mere complaint filed by the private complainant Leoncio Dalin Sr. himself. Respondent Judge
admitted that he signed the Warrant of Arrest against complainant and the latter's client simply because it was
presented to him for signature by the Criminal Docket Clerk. There was thus a total and unwarranted abdication
of a judicial function. Respondent cannot exculpate himself from administrative liability by contending that the
mistake was entirely attributable to the Criminal Docket Clerk who failed to faithfully comply with her "duty" of
going over the records of criminal cases and ensuring first that an information had already been filed in court
before preparing the warrant of arrest. As we have already repeatedly said, a judge cannot take refuge behind
the inefficiency of his court personnel for they are not guardians of his responsibilities. 10 More importantly the
responsibility delegated by respondent was clearly unauthorized and unwarranted, as already explained above.
He cannot without abandoning his judicial obligation just instruct the Criminal Docket Clerk, through the much
vaunted Check List for Criminal Cases that he had prepared for her to follow, to automatically prepare warrants
of arrest simply because informations have been filed against the accused. Although respondent's purpose in
preparing the Check List, i.e., to help him comply with RA 8493 otherwise known as the Speedy Trial Act of
1998,11 may be considered laudable, we have already said that shortcuts in judicial processes are to be avoided
when they impede rather than promote a judicious dispensation of justice. 12 Much more when, as in the instant
case, the shortcut amounted to a violation of a constitutional provision.
A judge fails in his bounden duty if he relies merely on the certification of the investigating officer as to the
existence of probable cause13 making him administratively liable. We can do no less in the case of herein
respondent who issued the subject warrant of arrest without even such certification to rely upon, and worse,
merely at the instance of the Criminal Docket Clerk who mechanically typed the Warrant of Arrest for his
signature.
ACCORDINGLY, respondent Judge Henedino P. Eduarte, RTC-Br. 20, Cauayan, Isabela, is FINED P10,000.00
for improvidently issuing the Warrant of Arrest dated 12 April 2000 in Crim. Case No. Br. 20-1373 in violation of
the constitutional requirement of personal determination by the issuing judge as to the existence of probable
cause. He is WARNED that any repetition of the procedure he had heretofore observed in the issuance of
warrants of arrest will merit a more severe sanction.
SO ORDERED.

G.R. No. 78631 June 29, 1993


COLUMBIA PICTURES, INC., ORION PICTURES CORP., PARAMOUNT PICTURES CORP., TWENTIETH
CENTURY FOX FILM CORP., UNITED ARTISTS CORP., UNIVERSAL CITY STUDIOS, INC., THE WALT
DISNEY COMPANY, and WARNER BROS., INC., petitioners,
vs.
HON. JUDGE ALFREDO C. FLORES, FGT VIDEO NETWORK, INC., MANUEL MENDOZA, ALFREDO C.
ONGYANCO, ERIC APOLONIO, SUSAN YANG and EDUARDO A. YOTOKO, respondents.
Siguion Reyna, Montecillo & Ongsiako Law Office for petitioners.
Santos & Associates and San Jose, Enrique, Lucas, Santos & Borje Law Offices for respondents.

MELO, J.:
Before us is a petition for certiorari seeking to set aside the order dated May 29, 1987 of the Regional Trial Court
of the National Capital Region (Branch 167, Pasig) directing the immediate release and return of television sets,
video cassette recorders, rewinders, tape head cleaners, accessories, equipment, and other paraphernalia or
pieces of machinery which had been seized by operatives of the National Bureau of Investigation by virtue of a
search warrant.
Petitioners herein are all foreign corporations organized and existing under the laws of the United States of
America and represented in the Philippines by their attorney-in-fact, Rebecca Benitez-Cruz of the Motion Picture
Association of America, Inc. (MPAA for brevity). Private respondent FGT Video Network, Inc. is a merger of Fox,

Galactic, and Technica Video. It is registered with and licensed by the Videogram Regulatory Board as a
distributor under License No. 1333 VMM. Technica Video, Inc. which is part of the merger, is registered with and
licensed as a reproducer by the said board under License No. 967 VMM (p. 11, Rollo).
In a letter dated April 20, 1987, the MPAA, through counsel Rico V. Domingo, lodged a complaint before then
Director Antonio Carpio of the National Bureau of Investigation (NBI) against certain video establishments for
violation of Presidential Decree No. 49 (Protection of Intellectual Property), as amended by Presidential Decree
No. 1988, in connection with its anti-piracy campaign. Specifically complaining of the "unauthorized sale, rental,
reproduction and/or disposition of copyrighted film", the MPAA sought the NBI's "urgent assistance in the
conduct of search and seizure operations in Metro Manila and elsewhere". (p. 29, Rollo.)
On the basis of said letter, NBI and private agents conducted discreet surveillance operations on certain video
establishments, among them private respondent FGT Video Network, Inc. (FGT). Thus, on April 20, 1987, Danilo
Manalang, a.k.a. Ronaldo Lim, allegedly an NBI agent, went to the office of FGT to have the copyrighted motion
pictures "Cleopatra" owned by Twentieth Century Fox Film Corp. and "The Ten Commandments" owned by
Paramount Pictures, Inc. reproduced or retaped in video format. For the reproduction services, FGT issued
Order Slip No. 3482 dated April 20, 1987 and Delivery Slip No. 118667 dated April 22, 1987, for which services
Danilo Manalang paid P45.00. On May 5, 1987, Manalang also had MGM's copyrighted film "Walk Like a Man"
reproduced or retaped by FGT for P15.00 (p. 5, Rollo).
Consequently, on May 14, 1987, NBI Agent III Lauro C. Reyes, with Manalang and Rebecca Benitez-Cruz as
witnesses, applied for a search warrant with the Regional Trial Court in Pasig. Introduced as evidence in support
of the application were the following: the letter dated April 20, 1987 of the MPAA through Rico V. Domingo (Exh.
A) FGT's Order Slip No. 3842 (Exh. B); FGT's Delivery Slip No. 118667 (Exh. B-1); video cassettes containing
the film "The Ten Commandments" (Exhs. B-1-A, B-1-B); video cassette containing the film "Cleopatra" (Exh. B1-C); video cassette containing the film "Walk Like a Man" (Exh. B-1-D); FGT's Order Slip No. 3923 dated May 5,
1987 (Exh. B-2); FGT's Delivery Slip No. 123321 dated May 6, 1987 (Exh. B-3); list of copyrighted MPAA
member company titles (Exh. C); sketch of location of FGT's office or premises (Exh. D); affidavit of Rebecca
Benitez-Cruz (Exh. E); special power of attorney designating Ms. Benitez-Cruz as petitioners' attorney-in- fact
(Exh. F to F-8); and affidavit of Danilo Manalang (Exh. G).
Upon the offer of these pieces of evidence, Judge Alfredo C. Flores of the aforesaid court, issued Search
Warrant No. 45 which reads:
TO ANY PEACE OFFICER:
GREETINGS:
It appearing to the satisfaction of the Undersigned after examining under oath NBI Senior Agent
Lauro C. Reyes and his witnesses Mr. Danilo Manalang and Ms. Rebecca Benitez-Cruz, that
there is a probable cause to believe that Violation of Section 56 P.D. No. 49 as amended by P.D.
No. 1988 (otherwise known as the Decree on Protection of Intellectual Property) has been
committed and that there are good and sufficient reasons to believe that FGT Video Network,
Inc., Manuel Mendoza, Alfredo C. Ongyanco, Eric Apolonio, Susan Yang and Eduardo Yotoko
are responsible and have in control/possession at No. 4 Epifanio de los Santos corner
Connecticut, Greenhills, San Juan, Metro Manila (per attached sketch and list of MPAA member
Company Titles) the following properties to wit:
(a) Pirated video tapes of the copyrighted motion pictures/films the titles of
which are mentioned in the attached list;
(b) Posters, advertising leaflets, flyers, brochures, invoices, lists of titles being
reproduced or retaped, journals, ledgers, jon (sic) order slips, delivery slips and
books of accounts bearing and/or mentioning the pirated films with titles (as per
attached list), or otherwise used in the reproduction/repating business of the
defendants;

(c) Television sets, video cassette recorders, rewinders, tape head cleaners,
accessories, equipment and other machines and paraphernalia or materials
used or intended to be used in the unlawful sale, lease, distribution, or
possession for purpose of sale, lease, distribution, circulation or public
exhibition of the above-mentioned pirated video tapes which they are keeping
and concealing in the premises above-described, which should be seized and
brought to the Undersigned.
You are hereby commanded to make an immediate search at any time in the
day between 8:00 A.M. to 5:00 P.M. of the premises above-described and
forthwith seize and take possession of the above-enumerated personal
properties, and bring said properties to the undersigned immediately upon
implementation to be dealt with as the law directs.
WITNESS MY HAND this 14th day of May 1987, at Pasig, Metro Manila. (pp.
30-31, Rollo; Emphasis supplied.)
At or about high noon of the same day, agents from the NBI, led by Lauro C. Reyes and Mamerto Espartero,
with the assistance of the personnel of the Videogram Regulatory Board headed by Elmer San Pascual, duly
served Search Warrant No. 45 on the operators or representatives of FGT. In the course of the search of the
premises of FGT, the NBI agents found and seized various video tapes of duly copyrighted motion pictures or
films owned and exclusively distributed by petitioners. Also seized were machines and equipment, television
sets, paraphernalia, materials, accessories, rewinders, tape head cleaners, statements of order, return slips,
video prints, flyers, production orders, and posters. Inventories of these seized articles were then prepared and
copies thereof were furnished Jess Ayson, production manager of FGT. On May 18, 1987, the NBI agents filed a
return of the search warrant with a motion to retain custody of the seized items (p. 32, Rollo).
Meanwhile, FGT filed an urgent motion for the immediate release of equipment and accessories "not covered"
by the search warrant, without prejudice to the filing of a motion to quash the said search warrant (p. 101, Rollo).
It argued that as a licensed video reproducer, FGT had the right to maintain possession of the seized
reproduction equipment and paraphernalia which are not contraband or illegal per se, but are rather "exclusively
used and intended to be used for reproduction" and not in the "sale, lease, distribution or possession for
purposes of sale, lease distribution, circulation or public exhibition of pirated video tapes". (p. 102, Rollo.)
Petitioners opposed the motion, asserting that the seized articles were all lawfully taken. They explained that
since FGT was a videogram distributor and not a reproducer, "it may be logically concluded that such 634 VCRs,
accessories, etc." were "used or intended to be used in the unlawful sale, lease, distribution or possession for
purposes of sale, lease, distribution, circulation or public exhibition of, at the very least, the 310 videocassette
tapes containing the copyrighted films/motion pictures." They asserted that Search Warrant No. 45 was issued
upon the proper determination of probable cause and that, therefore, it is not for FGT "to second-guess the
wisdom" of the court's directive to seize the questioned VCRs and accessories "as an inquiry thereon would
involve evidentiary matters which are better ventilated in the criminal prosecution proper". (pp. 107-116, Rollo.)
Finding that FGT was a "registered and duly licensed distributor and in certain instances and under special
instructions and conditions . . . reproducer of videograms" and that, therefore, its right to possess and use the
seized equipment had been "placed in serious doubt", the lower court resolved the doubt "against the
Government and in favor of a lawful business enterprise." Applying the constitutional precept of presumption of
innocence and considering that the seized articles are not contraband, respondent court ruled that to allow the
Government "to keep possession of the equipment(s) and machines where there is no actual criminal charge"
would amount to a "confiscation in violation of the due process clause of the constitution, notwithstanding the
filing by the Director of the NBI of a letter to the Department of Justice recommending that the defendants be
charged with violation of Section 56 of P.D. No. 49, as amended by P.D. No. 1988." (pp. 131-132, Rollo.)
Thus, in its order on May 29, 1987, the lower court granted FGT's motion and ordered the immediate release
and return of the "television sets, video cassette recorders, rewinders, tape head cleaners, accessories,
equipment and other machines or paraphernalias, as reflected in the "Receipt for Properties Seized" attached to
the records of the case beginning from page 84 to page 130, to the defendants, excluding video cassette tapes

reflected in the "Receipts for Properties Seized", beginning from page 132 to page 146 of the records."
Respondent court also ordered the inventory of all articles returned with individual descriptions "to evidence their
existence" copies of which inventory should be furnished the NBI and the court (p. 132, Rollo).
Hence, the present recourse.
As prayed for by petitioners, on June 17, 1987, the Court issued a temporary restraining order enjoining
respondents from implementing the lower court's order of May 29, 1987 upon a bond in the amount of
P750,000.00 which petitioners accordingly posted on June 19, 1987, (pp. 138-141, Rollo.)
The sole issue to be resolved is whether or not the lower court acted with grave abuse of discretion amounting to
lack of jurisdiction in ordering the immediate release and return of some of the items seized by virtue of the
search warrant.
Petitioners insist that the search warrant was issued upon due determination of probable cause. They argue that
FGT's act of illegally reproducing copyrighted films had been clearly established by evidence on record and that
FGT's principal ground in praying for the immediate release of the seize articles is a matter of defense which
should be ventilated at the trial of the case on the merits.
Private respondents, on the other hand, claim that the issuance of Search Warrant No. 45 is tainted with illegality
as no particular or specific acts or omissions constituting the offense charged had been alleged in the application
for its issuance.
The right to security against unreasonable searches and seizures is guaranteed under Section 2, Article III of the
1987 Constitution which provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined 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.
Thus, Sections 3 and 4 of Rule 126 of the Rules of Court provide for the requisites in the issuance of search
warrants:
Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon
probable cause in connection with one specific offense to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the things to be seized.
Sec. 4. Examination of complainant; record. The judge must, before issuing the warrant,
personally examine in the form of searching questions and answers, in writing and under oath
the complainant and the witnesses he may produce on facts personally known to them and
attach to the record their sworn statements together with any affidavits submitted.
In issuing a search warrant, the judge must strictly comply with the constitutional and statutory requirements. He
must determine the existence of probable cause by personally examining the applicant and his witnesses in the
form of searching questions (Silva vs. Presiding Judge, RTC of Negros Oriental, Br. XXXIII (203 SCRA 140
(1991]). The search warrant must contain a specific description of the place to be searched and the articles
sought to be seized must be described with particularity (Pendon vs. Court of Appeals, 191 SCRA 429 [1990]).
Withal, measured by the aforegoing constitutional and legal provisions as well as the existing jurisprudence on
the matter, we find that Search Warrant No. 45 fails to satisfy the test of legality. More so because the Court has
previously decided a case dealing with virtually the same search warrant.

In 20th Century Fox Film Corp. vs. Court of Appeals (164 SCRA 655 [1988]), wherein therein petitioner is also
one of the petitioners herein, we upheld the legality of the order of the lower court lifting the search warrant
issued under circumstances similar to those obtaining in the case at bar.
A striking similarity between the case at bar and 20th Century Fox is the fact that Search Warrant No. 45,
specifically paragraph (c) thereof describing the articles to be seized, contains an almost identical description as
the warrant issued in the 20th Century Fox case, to wit:
(c) Television sets, Video Cassettes Recorders, rewinders, tape head cleaners, accessories,
equipments and other machines used or intended to be used in the unlawful reproduction, sale,
rental/lease, distribution of the above-mentioned video tapes which she is keeping and
concealing in the premises above-described. (at p. 664.)
On the propriety of the seizure of the articles above-described, we held in said case:
Television sets, video cassette recorders, rewinders and tape cleaners are articles which can be
found in a video tape store engaged in the legitimate business of lending or renting out betamax
tapes. In short, these articles and appliances are generally connected with, or related to a
legitimate business not necessarily involving piracy of intellectual property or infringement of
copyright laws. Hence, including these articles without specification and/or particularity that they
were really instruments in violating an Anti-Piracy law makes the search warrant too general
which could result in the confiscation of all items found in any video store. (at p. 665.)
The language used in paragraph (c) of Search Warrant No. 45 is thus too all-embracing as to include all the
paraphernalia of FGT in the operation of its business. As the search warrant is in the nature of a general one, it
is constitutionally objectionable (Corro vs. Lising, 137 SCRA 541 [1985]).
In consequence, respondent court was merely correcting its own erroneous conclusions in issuing Search
Warrant No. 45 when it ordered the return of the seized television sets and other paraphernalia specified in the
motion filed by FGT. This can be gleaned from its statement that ". . . the machines and equipment could have
been used or intended to be used in the illegal reproduction of tapes of the copyrighted motion pictures/films,
yet, it cannot be said with moral certainty that the machines or equipment(s) were used in violating the law by the
mere fact that pirated video tapes of the copyrighted motion pictures/films were reproduced. As already stated,
FGT Video Network, Inc. is a registered and duly licensed distributor and in certain instances and under special
instructions . . . reproducer of videograms, and as such, it has the right to keep in its possession, maintain and
operate reproduction equipment (s) and paraphernalia (s)." (pp. 131-132, Rollo.)
Far from being despotic or arbitrary, respondent judge must be commended for rectifying his error when he
found that his initial conclusions were inaccurate and erroneous, colliding as they did with the constitutional
rights of private respondent.
Much has been said in the media about piracy of films and videotapes and that violators of the law must be
brought to the courts but, as the Court said in Bagalihog vs. Fernandez (198 SCRA 614 [1991]), "[z]eal in the
pursuit of criminals cannot ennoble the use of arbitrary methods that the Constitution itself abhors." (at p. 622.)
WHEREFORE, the petition is DISMISSED, the assailed order of May 29, 1987 AFFIRMED, and the temporary
restraining order issued on June 18, 1987, vacated and lifted.
SO ORDERED.

[G.R. No. L-32409. February 27, 1971.]


BACHE & CO. (PHIL.), INC. and FREDERICK E. SEGGERMAN, Petitioners, v. HON. JUDGE VIVENCIO M.
RUIZ, MISAEL P. VERA, in his capacity as Commissioner of Internal Revenue, ARTURO LOGRONIO,
RODOLFO DE LEON, GAVINO VELASQUEZ, MIMIR DELLOSA, NICANOR ALCORDO, JOHN DOE, JOHN
DOE, JOHN DOE, and JOHN DOE, Respondents.
San Juan, Africa, Gonzales & San Agustin, for Petitioners.
Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V . Bautista, Solicitor Pedro A.
Ramirez and Special Attorney Jaime M. Maza for Respondents.
DECISION
VILLAMOR, J.:
This is an original action of certiorari, prohibition and mandamus, with prayer for a writ of preliminary mandatory
and prohibitory injunction. In their petition Bache & Co. (Phil.), Inc., a corporation duly organized and existing
under the laws of the Philippines, and its President, Frederick E. Seggerman, pray this Court to declare null and
void Search Warrant No. 2-M-70 issued by respondent Judge on February 25, 1970; to order respondents to
desist from enforcing the same and/or keeping the documents, papers and effects seized by virtue thereof, as
well as from enforcing the tax assessments on petitioner corporation alleged by petitioners to have been made
on the basis of the said documents, papers and effects, and to order the return of the latter to petitioners. We
gave due course to the petition but did not issue the writ of preliminary injunction prayed for therein.
The pertinent facts of this case, as gathered from record, are as follows:chanrob1es virtual 1aw library

On February 24, 1970, respondent Misael P. Vera, Commissioner of Internal Revenue, wrote a letter addressed
to respondent Judge Vivencio M. Ruiz requesting the issuance of a search warrant against petitioners for
violation of Section 46(a) of the National Internal Revenue Code, in relation to all other pertinent provisions
thereof, particularly Sections 53, 72, 73, 208 and 209, and authorizing Revenue Examiner Rodolfo de Leon, one
of herein respondents, to make and file the application for search warrant which was attached to the letter.
In the afternoon of the following day, February 25, 1970, respondent De Leon and his witness, respondent Arturo
Logronio, went to the Court of First Instance of Rizal. They brought with them the following papers: respondent
Veras aforesaid letter-request; an application for search warrant already filled up but still unsigned by
respondent De Leon; an affidavit of respondent Logronio subscribed before respondent De Leon; a deposition in
printed form of respondent Logronio already accomplished and signed by him but not yet subscribed; and a
search warrant already accomplished but still unsigned by respondent Judge.
At that time respondent Judge was hearing a certain case; so, by means of a note, he instructed his Deputy
Clerk of Court to take the depositions of respondents De Leon and Logronio. After the session had adjourned,
respondent Judge was informed that the depositions had already been taken. The stenographer, upon request of
respondent Judge, read to him her stenographic notes; and thereafter, respondent Judge asked respondent
Logronio to take the oath and warned him that if his deposition was found to be false and without legal basis, he
could be charged for perjury. Respondent Judge signed respondent de Leons application for search warrant and
respondent Logronios deposition, Search Warrant No. 2-M-70 was then sign by respondent Judge and
accordingly issued.
Three days later, or on February 28, 1970, which was a Saturday, the BIR agents served the search warrant
petitioners at the offices of petitioner corporation on Ayala Avenue, Makati, Rizal. Petitioners lawyers protested
the search on the ground that no formal complaint or transcript of testimony was attached to the warrant. The
agents nevertheless proceeded with their search which yielded six boxes of documents.
On March 3, 1970, petitioners filed a petition with the Court of First Instance of Rizal praying that the search
warrant be quashed, dissolved or recalled, that preliminary prohibitory and mandatory writs of injunction be
issued, that the search warrant be declared null and void, and that the respondents be ordered to pay
petitioners, jointly and severally, damages and attorneys fees. On March 18, 1970, the respondents, thru the
Solicitor General, filed an answer to the petition. After hearing, the court, presided over by respondent Judge,
issued on July 29, 1970, an order dismissing the petition for dissolution of the search warrant. In the meantime,
or on April 16, 1970, the Bureau of Internal Revenue made tax assessments on petitioner corporation in the total
sum of P2,594,729.97, partly, if not entirely, based on the documents thus seized. Petitioners came to this Court.
The petition should be granted for the following reasons:chanrob1es virtual 1aw library
1. Respondent Judge failed to personally examine the complainant and his witness.
The pertinent provisions of the Constitution of the Philippines and of the Revised Rules of Court
are:jgc:chanrobles.com.ph
"(3) The right of the people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched, and the persons or things to be seized." (Art.
III, Sec. 1, Constitution.)
"SEC. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in
connection with one specific offense to be determined by the judge or justice of the peace after examination
under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
"No search warrant shall issue for more than one specific offense.
"SEC. 4. Examination of the applicant. The judge or justice of the peace must, before issuing the warrant,
personally examine on oath or affirmation the complainant and any witnesses he may produce and take their
depositions in writing, and attach them to the record, in addition to any affidavits presented to him." (Rule 126,

Revised Rules of Court.)


The examination of the complainant and the witnesses he may produce, required by Art. III, Sec. 1, par. 3, of the
Constitution, and by Secs. 3 and 4, Rule 126 of the Revised Rules of Court, should be conducted by the judge
himself and not by others. The phrase "which shall be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce," appearing in the said constitutional provision,
was introduced by Delegate Francisco as an amendment to the draft submitted by the Sub-Committee of Seven.
The following discussion in the Constitutional Convention (Laurel, Proceedings of the Philippine Constitutional
Convention, Vol. III, pp. 755-757) is enlightening:jgc:chanrobles.com.ph
"SR. ORENSE. Vamos a dejar compaero los piropos y vamos al grano.
En los casos de una necesidad de actuar inmediatamente para que no se frusten los fines de la justicia
mediante el registro inmediato y la incautacion del cuerpo del delito, no cree Su Seoria que causaria cierta
demora el procedimiento apuntado en su enmienda en tal forma que podria frustrar los fines de la justicia o si
Su Seoria encuentra un remedio para esto casos con el fin de compaginar los fines de la justicia con los
derechos del individuo en su persona, bienes etcetera, etcetera.
"SR. FRANCISCO. No puedo ver en la practica el caso hipottico que Su Seoria pregunta por la siguiente
razon: el que solicita un mandamiento de registro tiene que hacerlo por escrito y ese escrito no aparecer en la
Mesa del Juez sin que alguien vaya el juez a presentar ese escrito o peticion de sucuestro. Esa persona que
presenta el registro puede ser el mismo denunciante o alguna persona que solicita dicho mandamiento de
registro. Ahora toda la enmienda en esos casos consiste en que haya peticion de registro y el juez no se
atendra solamente a sea peticion sino que el juez examiner a ese denunciante y si tiene testigos tambin
examiner a los testigos.
"SR. ORENSE. No cree Su Seoria que el tomar le declaracion de ese denunciante por escrito siempre
requeriria algun tiempo?.
"SR. FRANCISCO. Seria cuestio de un par de horas, pero por otro lado minimizamos en todo lo posible las
vejaciones injustas con la expedicion arbitraria de los mandamientos de registro. Creo que entre dos males
debemos escoger. el menor.
x

"MR. LAUREL. . . . The reason why we are in favor of this amendment is because we are incorporating in our
constitution something of a fundamental character. Now, before a judge could issue a search warrant, he must
be under the obligation to examine personally under oath the complainant and if he has any witness, the
witnesses that he may produce . . ."cralaw virtua1aw library
The implementing rule in the Revised Rules of Court, Sec. 4, Rule 126, is more emphatic and candid, for it
requires the judge, before issuing a search warrant, to "personally examine on oath or affirmation the
complainant and any witnesses he may produce . . ."cralaw virtua1aw library
Personal examination by the judge of the complainant and his witnesses is necessary to enable him to
determine the existence or non-existence of a probable cause, pursuant to Art. III, Sec. 1, par. 3, of the
Constitution, and Sec. 3, Rule 126 of the Revised Rules of Court, both of which prohibit the issuance of warrants
except "upon probable cause." The determination of whether or not a probable cause exists calls for the exercise
of judgment after a judicial appraisal of facts and should not be allowed to be delegated in the absence of any
rule to the contrary.
In the case at bar, no personal examination at all was conducted by respondent Judge of the complainant
(respondent De Leon) and his witness (respondent Logronio). While it is true that the complainants application
for search warrant and the witness printed-form deposition were subscribed and sworn to before respondent
Judge, the latter did not ask either of the two any question the answer to which could possibly be the basis for
determining whether or not there was probable cause against herein petitioners. Indeed, the participants seem to
have attached so little significance to the matter that notes of the proceedings before respondent Judge were not

even taken. At this juncture it may be well to recall the salient facts. The transcript of stenographic notes (pp. 6176, April 1, 1970, Annex J-2 of the Petition) taken at the hearing of this case in the court below shows that per
instruction of respondent Judge, Mr. Eleodoro V. Gonzales, Special Deputy Clerk of Court, took the depositions
of the complainant and his witness, and that stenographic notes thereof were taken by Mrs. Gaspar. At that time
respondent Judge was at the sala hearing a case. After respondent Judge was through with the hearing, Deputy
Clerk Gonzales, stenographer Gaspar, complainant De Leon and witness Logronio went to respondent Judges
chamber and informed the Judge that they had finished the depositions. Respondent Judge then requested the
stenographer to read to him her stenographic notes. Special Deputy Clerk Gonzales testified as
follows:jgc:chanrobles.com.ph
"A And after finishing reading the stenographic notes, the Honorable Judge requested or instructed them,
requested Mr. Logronio to raise his hand and warned him if his deposition will be found to be false and without
legal basis, he can be charged criminally for perjury. The Honorable Court told Mr. Logronio whether he affirms
the facts contained in his deposition and the affidavit executed before Mr. Rodolfo de Leon.
"Q And thereafter?
"A And thereafter, he signed the deposition of Mr. Logronio.
"Q Who is this he?
"A The Honorable Judge.
"Q The deposition or the affidavit?
"A The affidavit, Your Honor."cralaw virtua1aw library
Thereafter, respondent Judge signed the search warrant.
The participation of respondent Judge in the proceedings which led to the issuance of Search Warrant No. 2-M70 was thus limited to listening to the stenographers readings of her notes, to a few words of warning against
the commission of perjury, and to administering the oath to the complainant and his witness. This cannot be
consider a personal examination. If there was an examination at all of the complainant and his witness, it was
the one conducted by the Deputy Clerk of Court. But, as stated, the Constitution and the rules require a personal
examination by the judge. It was precisely on account of the intention of the delegates to the Constitutional
Convention to make it a duty of the issuing judge to personally examine the complainant and his witnesses that
the question of how much time would be consumed by the judge in examining them came up before the
Convention, as can be seen from the record of the proceedings quoted above. The reading of the stenographic
notes to respondent Judge did not constitute sufficient compliance with the constitutional mandate and the rule;
for by that manner respondent Judge did not have the opportunity to observe the demeanor of the complainant
and his witness, and to propound initial and follow-up questions which the judicial mind, on account of its
training, was in the best position to conceive. These were important in arriving at a sound inference on the allimportant question of whether or not there was probable cause.
2. The search warrant was issued for more than one specific offense.
Search Warrant No. 2-M-70 was issued for" [v]iolation of Sec. 46(a) of the National Internal Revenue Code in
relation to all other pertinent provisions thereof particularly Secs. 53, 72, 73, 208 and 209." The question is: Was
the said search warrant issued "in connection with one specific offense," as required by Sec. 3, Rule 126?
To arrive at the correct answer it is essential to examine closely the provisions of the Tax Code referred to above.
Thus we find the following:chanrob1es virtual 1aw library
Sec. 46(a) requires the filing of income tax returns by corporations.
Sec. 53 requires the withholding of income taxes at source.
Sec. 72 imposes surcharges for failure to render income tax returns and for rendering false and fraudulent
returns.

Sec. 73 provides the penalty for failure to pay the income tax, to make a return or to supply the information
required under the Tax Code.
Sec. 208 penalizes" [a]ny person who distills, rectifies, repacks, compounds, or manufactures any article subject
to a specific tax, without having paid the privilege tax therefore, or who aids or abets in the conduct of illicit
distilling, rectifying, compounding, or illicit manufacture of any article subject to specific tax . . .," and provides
that in the case of a corporation, partnership, or association, the official and/or employee who caused the
violation shall be responsible.
Sec. 209 penalizes the failure to make a return of receipts, sales, business, or gross value of output removed, or
to pay the tax due thereon.
The search warrant in question was issued for at least four distinct offenses under the Tax Code. The first is the
violation of Sec. 46(a), Sec. 72 and Sec. 73 (the filing of income tax returns), which are interrelated. The second
is the violation of Sec. 53 (withholding of income taxes at source). The third is the violation of Sec. 208 (unlawful
pursuit of business or occupation); and the fourth is the violation of Sec. 209 (failure to make a return of receipts,
sales, business or gross value of output actually removed or to pay the tax due thereon). Even in their
classification the six above-mentioned provisions are embraced in two different titles: Secs. 46(a), 53, 72 and 73
are under Title II (Income Tax); while Secs. 208 and 209 are under Title V (Privilege Tax on Business and
Occupation).
Respondents argue that Stonehill, Et. Al. v. Diokno, Et Al., L-19550, June 19, 1967 (20 SCRA 383), is not
applicable, because there the search warrants were issued for "violation of Central Bank Laws, Internal Revenue
(Code) and Revised Penal Code;" whereas, here Search Warrant No 2-M-70 was issued for violation of only one
code, i.e., the National Internal Revenue Code. The distinction more apparent than real, because it was precisely
on account of the Stonehill incident, which occurred sometime before the present Rules of Court took effect on
January 1, 1964, that this Court amended the former rule by inserting therein the phrase "in connection with one
specific offense," and adding the sentence "No search warrant shall issue for more than one specific offense," in
what is now Sec. 3, Rule 126. Thus we said in Stonehill:jgc:chanrobles.com.ph
"Such is the seriousness of the irregularities committed in connection with the disputed search warrants, that this
Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court that a search warrant shall not
issue but upon probable cause in connection with one specific offense. Not satisfied with this qualification, the
Court added thereto a paragraph, directing that no search warrant shall issue for more than one specific
offense."
3. The search warrant does not particularly describe the things to be seized.
The documents, papers and effects sought to be seized are described in Search Warrant No. 2-M-70 in this
manner:jgc:chanrobles.com.ph
"Unregistered and private books of accounts (ledgers, journals, columnars, receipts and disbursements books,
customers ledgers); receipts for payments received; certificates of stocks and securities; contracts, promissory
notes and deeds of sale; telex and coded messages; business communications, accounting and business
records; checks and check stubs; records of bank deposits and withdrawals; and records of foreign remittances,
covering the years 1966 to 1970."cralaw virtua1aw library
The description does not meet the requirement in Art III, Sec. 1, of the Constitution, and of Sec. 3, Rule 126 of
the Revised Rules of Court, that the warrant should particularly describe the things to be seized.
In Stonehill, this Court, speaking thru Mr. Chief Justice Roberto Concepcion, said:jgc:chanrobles.com.ph
"The grave violation of the Constitution made in the application for the contested search warrants was
compounded by the description therein made of the effects to be searched for and seized, to wit:chanrob1es
virtual 1aw library
Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit
journals, typewriters, and other documents and/or paper showing all business transactions including

disbursement receipts, balance sheets and related profit and loss statements.
"Thus, the warrants authorized the search for and seizure of records pertaining to all business transactions of
petitioners herein, regardless of whether the transactions were legal or illegal. The warrants sanctioned the
seizure of all records of the petitioners and the aforementioned corporations, whatever their nature, thus openly
contravening the explicit command of our Bill of Rights that the things to be seized be particularly described
as well as tending to defeat its major objective: the elimination of general warrants."cralaw virtua1aw library
While the term "all business transactions" does not appear in Search Warrant No. 2-M-70, the said warrant
nevertheless tends to defeat the major objective of the Bill of Rights, i.e., the elimination of general warrants, for
the language used therein is so all-embracing as to include all conceivable records of petitioner corporation,
which, if seized, could possibly render its business inoperative.
In Uy Kheytin, Et. Al. v. Villareal, etc., Et Al., 42 Phil. 886, 896, this Court had occasion to explain the purpose of
the requirement that the warrant should particularly describe the place to be searched and the things to be
seized, to wit:jgc:chanrobles.com.ph
". . . Both the Jones Law (sec. 3) and General Orders No. 58 (sec. 97) specifically require that a search warrant
should particularly describe the place to be searched and the things to be seized. The evident purpose and
intent of this requirement is to limit the things to be seized to those, and only those, particularly described in the
search warrant to leave the officers of the law with no discretion regarding what articles they shall seize, to
the end that unreasonable searches and seizures may not be made, that abuses may not be committed.
That this is the correct interpretation of this constitutional provision is borne out by American authorities."cralaw
virtua1aw library
The purpose as thus explained could, surely and effectively, be defeated under the search warrant issued in this
case.
A search warrant may be said to particularly describe the things to be seized when the description therein is as
specific as the circumstances will ordinarily allow (People v. Rubio; 57 Phil. 384); or when the description
expresses a conclusion of fact not of law by which the warrant officer may be guided in making the search
and seizure (idem., dissent of Abad Santos, J.,); or when the things described are limited to those which bear
direct relation to the offense for which the warrant is being issued (Sec. 2, Rule 126, Revised Rules of Court).
The herein search warrant does not conform to any of the foregoing tests. If the articles desired to be seized
have any direct relation to an offense committed, the applicant must necessarily have some evidence, other than
those articles, to prove the said offense; and the articles subject of search and seizure should come in handy
merely to strengthen such evidence. In this event, the description contained in the herein disputed warrant
should have mentioned, at least, the dates, amounts, persons, and other pertinent data regarding the receipts of
payments, certificates of stocks and securities, contracts, promissory notes, deeds of sale, messages and
communications, checks, bank deposits and withdrawals, records of foreign remittances, among others,
enumerated in the warrant.
Respondents contend that certiorari does not lie because petitioners failed to file a motion for reconsideration of
respondent Judges order of July 29, 1970. The contention is without merit. In the first place, when the questions
raised before this Court are the same as those which were squarely raised in and passed upon by the court
below, the filing of a motion for reconsideration in said court before certiorari can be instituted in this Court is no
longer a prerequisite. (Pajo, etc., Et. Al. v. Ago, Et Al., 108 Phil., 905). In the second place, the rule requiring the
filing of a motion for reconsideration before an application for a writ of certiorari can be entertained was never
intended to be applied without considering the circumstances. (Matutina v. Buslon, Et Al., 109 Phil., 140.) In the
case at bar time is of the essence in view of the tax assessments sought to be enforced by respondent officers
of the Bureau of Internal Revenue against petitioner corporation, On account of which immediate and more
direct action becomes necessary. (Matute v. Court of Appeals, Et Al., 26 SCRA 768.) Lastly, the rule does not
apply where, as in this case, the deprivation of petitioners fundamental right to due process taints the
proceeding against them in the court below not only with irregularity but also with nullity. (Matute v. Court of
Appeals, Et Al., supra.)
It is next contended by respondents that a corporation is not entitled to protection against unreasonable search
and seizures. Again, we find no merit in the contention.

"Although, for the reasons above stated, we are of the opinion that an officer of a corporation which is charged
with a violation of a statute of the state of its creation, or of an act of Congress passed in the exercise of its
constitutional powers, cannot refuse to produce the books and papers of such corporation, we do not wish to be
understood as holding that a corporation is not entitled to immunity, under the 4th Amendment, against
unreasonable searches and seizures. A corporation is, after all, but an association of individuals under an
assumed name and with a distinct legal entity. In organizing itself as a collective body it waives no constitutional
immunities appropriate to such body. Its property cannot be taken without compensation. It can only be
proceeded against by due process of law, and is protected, under the 14th Amendment, against unlawful
discrimination . . ." (Hale v. Henkel, 201 U.S. 43, 50 L. ed. 652.)
"In Linn v. United States, 163 C.C.A. 470, 251 Fed. 476, 480, it was thought that a different rule applied to a
corporation, the ground that it was not privileged from producing its books and papers. But the rights of a
corporation against unlawful search and seizure are to be protected even if the same result might have been
achieved in a lawful way." (Silverthorne Lumber Company, Et. Al. v. United States of America, 251 U.S. 385, 64
L. ed. 319.)
In Stonehill, Et. Al. v. Diokno, Et Al., supra, this Court impliedly recognized the right of a corporation to object
against unreasonable searches and seizures, thus:jgc:chanrobles.com.ph
"As regards the first group, we hold that petitioners herein have no cause of action to assail the legality of the
contested warrants and of the seizures made in pursuance thereof, for the simple reason that said corporations
have their respective personalities, separate and distinct from the personality of herein petitioners, regardless of
the amount of shares of stock or the interest of each of them in said corporations, whatever, the offices they hold
therein may be. Indeed, it is well settled that the legality of a seizure can be contested only by the party whose
rights have been impaired thereby, and that the objection to an unlawful search and seizure is purely personal
and cannot be availed of by third parties. Consequently, petitioners herein may not validly object to the use in
evidence against them of the documents, papers and things seized from the offices and premises of the
corporations adverted to above, since the right to object to the admission of said papers in evidence belongs
exclusively to the corporations, to whom the seized effects belong, and may not be invoked by the corporate
officers in proceedings against them in their individual capacity . . ."cralaw virtua1aw library
In the Stonehill case only the officers of the various corporations in whose offices documents, papers and effects
were searched and seized were the petitioners. In the case at bar, the corporation to whom the seized
documents belong, and whose rights have thereby been impaired, is itself a petitioner. On that score, petitioner
corporation here stands on a different footing from the corporations in Stonehill.
The tax assessments referred to earlier in this opinion were, if not entirely as claimed by petitioners at least
partly as in effect admitted by respondents based on the documents seized by virtue of Search Warrant
No. 2-M-70. Furthermore, the fact that the assessments were made some one and one-half months after the
search and seizure on February 25, 1970, is a strong indication that the documents thus seized served as basis
for the assessments. Those assessments should therefore not be enforced.
PREMISES CONSIDERED, the petition is granted. Accordingly, Search Warrant No. 2-M-70 issued by
respondent Judge is declared null and void; respondents are permanently enjoined from enforcing the said
search warrant; the documents, papers and effects seized thereunder are ordered to be returned to petitioners;
and respondent officials the Bureau of Internal Revenue and their representatives are permanently enjoined from
enforcing the assessments mentioned in Annex "G" of the present petition, as well as other assessments based
on the documents, papers and effects seized under the search warrant herein nullified, and from using the same
against petitioners in any criminal or other proceeding. No pronouncement as to costs.

G.R. Nos. 140546-47

January 20, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
MODESTO TEE a.k.a. ESTOY TEE, accused-appellant.
QUISUMBING, J.:
For automatic review is the consolidated judgment1 of the Regional Trial Court (RTC) of Baguio City, Branch 6,
dated September 17, 1999, in Criminal Cases Nos. 15800-R and 15822-R, involving violations of Section 8,
Article II, of the Dangerous Drugs Law.2 Since appellant was acquitted in the second case, we focus on the first
case, where appellant has been found guilty and sentenced to death and fined one million pesos.
The decretal portion of the trial courts decision reads:
WHEREFORE, judgment is hereby rendered, as follows:
1. In Crim. Case No. 15800-R, the Court finds the accused Modesto Tee guilty beyond reasonable doubt
of the offense of illegal possession of marijuana of about 591.81 kilos in violation of Section 8, Article II
of RA 6425 as amended by Section 13 of RA 7659 as charged in the Information, seized by virtue of a
search warrant and sentences him to the supreme penalty of death and to pay a fine of 1 million pesos
without subsidiary imprisonment in case of insolvency.
The 591.81 kilos of marijuana contained in 26 boxes and one yellow sack (Exhibits U-1 to U-27) are
ordered forfeited in favor of the State to be destroyed immediately in accordance with law.
2. In Crim. Case No. 15822-R, the Court finds that the prosecution failed to prove the guilt of accused
Modesto Tee beyond reasonable doubt and hereby acquits him of the charge of illegal possession of
marijuana in violation of Section 8, Art. 2 of RA 6425 as amended by Section 13 of RA 7659 as charged
in the Information since the marijuana confiscated have to be excluded in evidence as a product of
unreasonable search and seizure.
The 336.93 kilos of marijuana contained in 13 sacks and four boxes (Exh. B to S and their component
parts) although excluded in evidence as the product(s) of unreasonable search and seizure, are
nevertheless ordered forfeited in favor of the State to be destroyed immediately in accordance with law
considering that they are prohibited articles.
The City Jail Warden is, therefore, directed to release the accused Modesto Tee in connection with Crim.
Case No. 15822-R unless held on other charges.

COST(S) DE OFFICIO.
SO ORDERED.3
Appellant is a Chinese national in his forties, a businessman, and a resident of Baguio City. A raid conducted by
operatives of the National Bureau of Investigation (NBI) and Philippine National Police Narcotics Command
(PNP NARCOM) at premises allegedly leased by appellant and at his residence yielded huge quantities of
marijuana.
On July 20, 1998, appellant moved to quash the search warrant on the ground that it was too general and that
the NBI had not complied with the requirements for the issuance of a valid search warrant. The pendency of said
motion, however, did not stop the filing of the appropriate charges against appellant. In an information dated July
24, 1998, docketed as Criminal Case No. 15800-R, the City Prosecutor of Baguio City charged Modesto Tee,
alias "Estoy Tee," with illegal possession of marijuana, allegedly committed as follows:
That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and
knowingly have in his possession the following, to wit:
1. Ninety-two (92) bricks of dried flowering tops separately contained in four (4) boxes; and
2. One hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-three (23) bags of dried
flowering tops separately contained in thirteen (13) sacks, with a total weight of 336.93 kilograms; and
3 Six hundred two (602) bricks of dried flowering tops separately contained in twenty-six (boxes) and a
yellow sack, weighing 591.81 kilograms,
all having a grand total weight of 928.74 kilograms, a prohibited drug, without the authority of law to
possess, in violation of the above-cited provision of law.
CONTRARY TO LAW.4
On August 7, 1998, the prosecution moved to "amend" the foregoing charge sheet "considering that subject
marijuana were seized in two (2) different places." 5
As a result, the information in Criminal Case No. 15800-R was amended to read as follows:
That on or about the 1st day of July, 1998, in the City of Baguio, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and
knowingly have in his possession the following, to wit:
- Six hundred two (602) bricks of dried flowering tops separately contained in twenty-six (26) boxes and
a yellow sack, weighing 591.81 kilograms
a prohibited drug, without the authority of law to possess, in violation of the above-cited provision of law.
CONTRARY TO LAW.6
A separate amended information docketed as Criminal Case No. 15822-R was likewise filed, the accusatory
portion of which reads:
That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and
knowingly have in his possession the following, to wit:

1. Ninety-two (92) bricks of dried flowering tops separately contained in four (4) boxes; and
2. hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-three (23) bags of dried
flowering tops separately contained in thirteen (13) sacks, with a total weight of 336.93
kilograms;
a prohibited drug, without the authority of law to possess, in violation of the above-cited provision of law.
CONTRARY TO LAW.7
On September 4, 1998, the trial court denied the motion to quash the search warrant and ordered appellants
arraignment.
When arraigned in Criminal Cases Nos. 15800-R and 15822-R, appellant refused to enter a plea. The trial court
entered a plea of not guilty for him.8 Trial on the merits then ensued.
The facts of this case, as gleaned from the records, are as follows:
Prosecution witness Danilo Abratique, a Baguio-based taxi driver, and the appellant Modesto Tee are well
acquainted with each other, since Abratiques wife is the sister of Tees sister-in-law.9
Sometime in late June 1998, appellant asked Abratique to find him a place for the storage of smuggled
cigarettes.10 Abratique brought appellant to his friend, Albert Ballesteros, who had a house for rent in Bakakeng,
Baguio City. After negotiating the terms and conditions, Ballesteros agreed to rent out his place to appellant.
Appellant then brought several boxes of purported "blue seal" cigarettes to the leased premises.
Shortly thereafter, however, Ballesteros learned that the boxes stored in his place were not "blue seal" cigarettes
but marijuana. Fearful of being involved, Ballesteros informed Abratique. Both later prevailed upon appellant to
remove them from the premises.11
Appellant then hired Abratiques taxi and transported the boxes of cannabis from the Ballesteros place to
appellants residence at Km. 6, Dontogan, Green Valley, Sto. Tomas, Baguio City.12
On June 30, 1998, appellant hired Abratique to drive him to La Trinidad, Benguet on the pretext of buying and
transporting strawberries. Upon reaching La Trinidad, however, appellant directed Abratique to proceed to
Sablan, Benguet, where appellant proceeded to load several sacks of marijuana in Abratiques taxi. He then
asked Abratique to find him a place where he could store the contraband. 13
Abratique brought appellant to his grandmothers house at No. 27 Dr. Cario St., QM Subdivision, Baguio City,
which was being managed by Abratiques aunt, Nazarea Abreau. Nazarea agreed to rent a room to appellant.
Abratique and appellant unloaded and stored there the sacks of marijuana brought from Sablan. 14 Abratique was
aware that they were transporting marijuana as some of the articles in the sacks became exposed in the process
of loading.15
Eventually, Abratique and Nazarea were bothered by the nature of the goods stored in the rented room. She
confided to her daughter, Alice Abreau Fianza, about their predicament. As Alice Fianzas brother-in-law, Edwin
Fianza, was an NBI agent, Alice and Abratique phoned him and disclosed what had transpired. 16
On the morning of July 1, 1998, alerted by information that appellant would retrieve the sacks of prohibited drugs
that day, Edwin Fianza and other NBI operatives conducted a stake out at No. 27, Dr. Cario St. While the NBI
agents were conducting their surveillance, they noticed that several PNP NARCOM personnel were also
watching the place.17 The NBI then learned that the PNP NARCOM had received a tip from one of their informers
regarding the presence of a huge amount of drugs in that place. The NBI and PNP NARCOM agreed to have a
joint operation.

As the day wore on and appellant did not show up, the NBI agents became apprehensive that the whole
operation could be jeopardized. They sought the permission of Nazarea Abreau to enter the room rented by
appellant. She acceded and allowed them entry. The NBI team then searched the rented premises and found
four (4) boxes and thirteen (13) sacks of marijuana, totaling 336.93 kilograms. 18
Later that evening, NBI Special Agent Darwin Lising, with Abratique as his witness, applied for a search warrant
from RTC Judge Antonio Reyes at his residence.19 Judge Reyes ordered the NBI agents to fetch the Branch
Clerk of Court, Atty. Delilah Muoz, so the proceedings could be properly recorded. After Atty. Muoz arrived,
Judge Reyes questioned Lising and Abratique. Thereafter, the judge issued a warrant directing the NBI to search
appellants residence at Km. 6, Dontogan, Green Valley, Baguio City for marijuana. 20
The NBI operatives, with some PNP NARCOM personnel in tow, proceeded to appellants residence where they
served the warrant upon appellant himself.21 The search was witnessed by appellant, members of his family,
barangay officials, and members of the media.22 Photographs were taken during the actual search. 23 The law
enforcers found 26 boxes and a sack of dried marijuana 24 in the water tank, garage, and storeroom of appellants
residence.25 The total weight of the haul was 591.81 kilograms.26 Appellant was arrested for illegal possession of
marijuana.
The seized items were then submitted to the NBI laboratory for testing. NBI Forensic Chemist Maria Carina
Madrigal conducted the tests. Detailed microscopic and chromatographic examinations of the items taken from
appellants rented room at No. 27, Dr. Cario St., as well as those from his residence at Green Valley, showed
these to be marijuana.27
In his defense, appellant contended that the physical evidence of the prosecution was illegally obtained, being
the products of an unlawful search, hence inadmissible. Appellant insisted that the search warrant was too
general and the process by which said warrant was acquired did not satisfy the constitutional requirements for
the issuance of a valid search warrant. Moreover, Abratiques testimony, which was heavily relied upon by the
judge who issued the warrant, was hearsay.
In Criminal Case No. 15822-R, the trial court agreed with appellant that the taking of the 336.93 kilograms of
marijuana was the result of an illegal search and hence, inadmissible in evidence against appellant. Appellant
was accordingly acquitted of the charge. However, the trial court found that the prosecutions evidence was more
than ample to prove appellants guilt in Criminal Case No. 15800-R and as earlier stated, duly convicted him of
illegal possession of marijuana and sentenced him to death.
Hence, this automatic review.
Before us, appellant submits that the trial court erred in:
1UPHOLDING THE LEGALITY OF THE SEARCH WARRANT DESPITE LACK OF COMPLIANCE OF
(sic) SEVERAL REQUIREMENTS BEFORE IT SHOULD HAVE BEEN ISSUED AND IT BEING A
GENERAL WARRANT;
2.GRAVELY ABUSED ITS DISCRETION IN REOPENING THE CASE AND ALLOWING ABRITIQUE
TO TESTIFY AGAINST APPELLANT;
3GIVING CREDENCE TO THE TESTIMONY OF ABRITIQUE;
4. NOT ACQUITTING THE ACCUSED IN BOTH CASES AND SENTENCING HIM TO DEATH DESPITE
THE ILLEGALLY OBTAINED EVIDENCE AS FOUND IN THE FIRST CASE.28
We find that the pertinent issues for resolution concern the following: (1) the validity of the search conducted at
the appellants residence; (2) the alleged prejudice caused by the reopening of the case and absences of the
prosecution witness, on appellants right to speedy trial; (3) the sufficiency of the prosecutions evidence to
sustain a finding of guilt with moral certainty; and (4) the propriety of the penalty imposed.

1. On the Validity of the Search Warrant; Its Obtention and Execution


Appellant initially contends that the warrant, which directed the peace officers to search for and seize "an
undetermined amount of marijuana," was too general and hence, void for vagueness. He insists that Abratique
could already estimate the amount of marijuana supposed to be found at appellants residence since Abratique
helped to transport the same.
For the appellee, the Office of the Solicitor General (OSG) counters that a search warrant is issued if a judge
finds probable cause that the place to be searched contains prohibited drugs, and not that he believes the place
contains a specific amount of it. The OSG points out that, as the trial court observed, it is impossible beforehand
to determine the exact amount of prohibited drugs that a person has on himself.
Appellant avers that the phrase "an undetermined amount of marijuana" as used in the search warrant fails to
satisfy the requirement of Article III, Section 229 of the Constitution that the things to be seized must be
particularly described. Appellants contention, in our view, has no leg to stand on. The constitutional requirement
of reasonable particularity of description of the things to be seized is primarily meant to enable the law enforcers
serving the warrant to: (1) readily identify the properties to be seized and thus prevent them from seizing the
wrong items;30 and (2) leave said peace officers with no discretion regarding the articles to be seized and thus
prevent unreasonable searches and seizures.31 What the Constitution seeks to avoid are search warrants of
broad or general characterization or sweeping descriptions, which will authorize police officers to undertake a
fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to an offense. 32
However, it is not required that technical precision of description be required, 33 particularly, where by the nature
of the goods to be seized, their description must be rather general, since the requirement of a technical
description would mean that no warrant could issue. 34
Thus, it has been held that term "narcotics paraphernalia" is not so wanting in particularity as to create a general
warrant.35 Nor is the description "any and all narcotics" and "all implements, paraphernalia, articles, papers and
records pertaining to" the use, possession, or sale of narcotics or dangerous drugs so broad as to be
unconstitutional.36 A search warrant commanding peace officers to seize "a quantity of loose heroin" has been
held sufficiently particular.37
Tested against the foregoing precedents, the description "an undetermined amount of marijuana" must be held to
satisfy the requirement for particularity in a search warrant. Noteworthy, what is to be seized in the instant case
is property of a specified character, i.e., marijuana, an illicit drug. By reason of its character and the
circumstances under which it would be found, said article is illegal. A further description would be unnecessary
and ordinarily impossible, except as to such character, the place, and the circumstances. 38 Thus, this Court has
held that the description "illegally in possession of undetermined quantity/amount of dried marijuana leaves and
Methamphetamine Hydrochloride (Shabu) and sets of paraphernalia" particularizes the things to be seized. 39
The search warrant in the present case, given its nearly similar wording, "undetermined amount of marijuana or
Indian hemp," in our view, has satisfied the Constitutions requirements on particularity of description. The
description therein is: (1) as specific as the circumstances will ordinarily allow; (2) expresses a conclusion of fact
not of law by which the peace officers may be guided in making the search and seizure; and (3) limits the
things to be seized to those which bear direct relation to the offense for which the warrant is being issued. 40 Said
warrant imposes a meaningful restriction upon the objects to be seized by the officers serving the warrant. Thus,
it prevents exploratory searches, which might be violative of the Bill of Rights.
Appellant next assails the warrant for merely stating that he should be searched, as he could be guilty of
violation of Republic Act No. 6425. Appellant claims that this is a sweeping statement as said statute lists a
number of offenses with respect to illegal drugs. Hence, he contends, said warrant is a general warrant and is
thus unconstitutional.
For the appellee, the OSG points out that the warrant clearly states that appellant has in his possession and
control marijuana or Indian hemp, in violation of Section 8 of Republic Act No. 6425.
We have carefully scrutinized Search Warrant No. 415 (7-98), 41 and we find that it is captioned "For Violation of
R.A. 6425, as amended."42 It is clearly stated in the body of the warrant that "there is probable cause to believe

that a case for violation of R.A. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as
further amended by R.A. 7659 has been and is being committed by one MODESTO TEE a.k.a. ESTOY TEE of
Km. 6, Dontogan Bgy., Green Valley, Sto. Tomas, Baguio City by having in his possession and control an
UNDETERMINED AMOUNT OF MARIJUANA or INDIAN HEMP in violation of the aforementioned law." 43 In an
earlier case, we held that though the specific section of the Dangerous Drugs Law is not pinpointed, "there is no
question at all of the specific offense alleged to have been committed as a basis for the finding of probable
cause."44 Appellants averment is, therefore, baseless. Search Warrant No. 415 (7-98) appears clearly issued for
one offense, namely, illegal possession of marijuana.
Appellant next faults the Judge who issued Search Warrant No. 415 (7-98) for his failure to exhaustively examine
the applicant and his witness. Appellant points out that said magistrate should not have swallowed all of
Abratiques statements hook, line, and sinker. He points out that since Abratique consented to assist in the
transport of the marijuana, the examining judge should have elicited from Abratique his participation in the crime
and his motive for squealing on appellant. Appellant further points out that the evidence of the NBI operative who
applied for the warrant is merely hearsay and should not have been given credit at all by Judge Reyes.
Again, the lack of factual basis for appellants contention is apparent. The OSG points out that Abratique
personally assisted appellant in loading and transporting the marijuana to the latters house and to appellants
rented room at No. 27 Dr. Cario St., Baguio City. Definitely, this indicates personal knowledge on Abratiques
part. Law enforcers cannot themselves be eyewitnesses to every crime; they are allowed to present witnesses
before an examining judge. In this case, witness Abratique personally saw and handled the marijuana. Hence,
the NBI did not rely on hearsay information in applying for a search warrant but on personal knowledge of the
witness, Abratique.
Before a valid search warrant is issued, both the Constitution 45 and the 2000 Revised Rules of Criminal
Procedure46 require that the judge must personally examine the complainant and his witnesses under oath or
affirmation. The personal examination must not be merely routinary or pro forma, but must be probing and
exhaustive.47 In the instant case, it is not disputed that Judge Antonio Reyes personally examined NBI Special
Investigator III Darwin A. Lising, the applicant for the search warrant as well as his witness, Danilo G. Abratique.
Notes of the proceedings were taken by Atty. Delilah Muoz, Clerk of Court, RTC of Baguio City, Branch 61,
whom Judge Reyes had ordered to be summoned. In the letter of transmittal of the Clerk of Court of the RTC of
Baguio City, Branch 61 to Branch 6 of said court, mention is made of "notes" at "pages 7-11." 48 We have
thoroughly perused the records of Search Warrant No. 415 (7-98) and nowhere find said "notes." The
depositions of Lising and Abratique were not attached to Search Warrant No. 415 (7-98) as required by the
Rules of Court. We must stress, however, that the purpose of the Rules in requiring depositions to be taken is to
satisfy the examining magistrate as to the existence of probable cause. 49 The Bill of Rights does not make it an
imperative necessity that depositions be attached to the records of an application for a search warrant. Hence,
said omission is not necessarily fatal, for as long as there is evidence on the record showing what testimony was
presented.50 In the testimony of witness Abratique, Judge Reyes required Abratique to confirm the contents of his
affidavit;51 there were instances when Judge Reyes questioned him extensively.52 It is presumed that a judicial
function has been regularly performed,53 absent a showing to the contrary. A magistrates determination of
probable cause for the issuance of a search warrant is paid great deference by a reviewing court, 54 as long as
there was substantial basis for that determination.55 Substantial basis means that the questions of the examining
judge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to believe
that an offense has been committed, and the objects in connection with the offense sought to be seized are in
the place sought to be searched.
On record, appellant never raised the want of adequate depositions to support Warrant No. 415 (7-98) in his
motion to quash before the trial court. Instead, his motion contained vague generalities that Judge Reyes failed
to ask searching questions of the applicant and his witness. Belatedly, however, he now claims that Judge Reyes
perfunctorily examined said witness.56 But it is settled that when a motion to quash a warrant is filed, all grounds
and objections then available, existent or known, should be raised in the original or subsequent proceedings for
the quashal of the warrant, otherwise they are deemed waived. 57
In this case, NBI Special Investigator Lisings knowledge of the illicit drugs stored in appellants house was
indeed hearsay. But he had a witness, Danilo Abratique, who had personal knowledge about said drugs and their
particular location. Abratiques statements to the NBI and to Judge Reyes contained credible and reliable details.

As the NBIs witness, Abratique was a person on whose statements Judge Reyes could rely. His detailed
description of appellants activities with respect to the seized drugs was substantial. In relying on witness
Abratique, Judge Reyes was not depending on casual rumor circulating in the underworld, but on personal
knowledge Abratique possessed.
In Alvarez vs. Court of First Instance of Tayabas, 64 Phil. 33, 44 (1937), we held that:
The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether
it has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for
damages caused.58
Appellant argues that the address indicated in the search warrant did not clearly indicate the place to be
searched. The OSG points out that the address stated in the warrant is as specific as can be. The NBI even
submitted a detailed sketch of the premises prepared by Abratique, thus ensuring that there would be no
mistake.
A description of the place to be searched is sufficient if the officer serving the warrant can, with reasonable effort,
ascertain and identify the place intended59 and distinguish it from other places in the community.60 A designation
or description that points out the place to be searched to the exclusion of all others, and on inquiry unerringly
leads the peace officers to it, satisfies the constitutional requirement of definiteness.
Appellant finally harps on the use of unnecessary force during the execution of the search warrant. Appellant
fails, however, to point to any evidentiary matter in the record to support his contention. Defense witness
Cipriana Tee, appellants mother, testified on the search conducted but she said nothing that indicated the use of
force on the part of the NBI operatives who conducted the search and seizure. 61 What the record discloses is
that the warrant was served on appellant,62 who was given time to read it,63 and the search was witnessed by the
barangay officials, police operatives, members of the media, and appellants kith and kin. 64 No breakage or other
damage to the place searched is shown. No injuries sustained by appellant, or any witness, appears on record.
The execution of the warrant, in our view, has been orderly and peaceably performed.
2. On The Alleged Violation of Appellants Substantive Rights
Appellant insists that the prosecutions unjustified and willful delay in presenting witness Abratique unduly
delayed the resolution of his case. He points out that a total of eight (8) scheduled hearings had to be reset due
to the failure or willful refusal of Abratique to testify against him. Appellant insists that said lapse on the
prosecutions part violated Supreme Court Circular No. 38-98. 65 Appellant now alleges that the prosecution
deliberately resorted to delaying the case to cause him untold miseries.
For the appellee, the OSG points out that the two-month delay in the trial is not such a great length of time as to
amount to a violation of appellants right to a speedy trial. A trial is always subject to reasonable delays or
postponements, but absent any showing that these delays are capricious and oppressive, the State should not
be deprived of a reasonable opportunity to prosecute the criminal action.
On record, the trial court found that prosecution witness Danilo G. Abratique failed to appear in no less than
eighteen (18) hearings, namely those set for February 1, 2, 3, 4, 8, 9, 10, and 24; March 9, 15, 22, and 23; April
6, 7, 8, 16, and 19, all in 1999.66 No less than four (4) warrants of arrest were issued against him to compel him
to testify.67 The NBI agent who supposedly had him in custody was found guilty of contempt of court for failing to
produce Abratique at said hearings and sanctioned.68 The prosecution had to write the NBI Regional Director in
Baguio City and NBI Director in Manila regarding the failure of the Bureaus agents to bring Abratique to court. 69
Nothing on record discloses the reason for Abratiques aforecited absences. On the scheduled hearing of June
7, 1999, he was again absent thus causing the trial court to again order his arrest for the fifth time.70 He also
failed to show up at the hearing of June 8, 1999. 71
Appellant now stresses that the failure of Abratique to appear and testify on twenty (20) hearing dates violated
appellants constitutional72 and statutory right to a speedy trial.

A speedy trial means a trial conducted according to the law of criminal procedure and the rules and regulations,
free from vexatious, capricious, and oppressive delays.73 In Conde v. Rivera and Unson, 45 Phil. 650, 652
(1924), the Court held that "where a prosecuting officer, without good cause, secures postponements of the trial
of a defendant against his protest beyond a reasonable period of time, as in this instance, for more than a year,
the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he
be restrained of his liberty, by habeas corpus to obtain his freedom."
The concept of speedy trial is necessarily relative. A determination as to whether the right has been violated
involves the weighing of several factors such as the length of the delay, the reason for the delay, the conduct of
the prosecution and the accused, and the efforts exerted by the defendant to assert his right, as well as the
prejudice and damage caused to the accused.74
The Speedy Trial Act of 1998, provides that the trial period for criminal cases in general shall be one hundred
eighty (180) days.75 However, in determining the right of an accused to speedy trial, courts should do more than
a mathematical computation of the number of postponements of the scheduled hearings of the case. 76 The right
to a speedy trial is deemed violated only when: (1) the proceedings are attended by vexatious, capricious, and
oppressive delays;77 or (2) when unjustified postponements are asked for and secured; 78 or (3) when without
cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried. 79
In the present case, although the absences of prosecution witness Abratique totaled twenty (20) hearing days,
there is no showing whatsoever that prosecution capriciously caused Abratiques absences so as to vex or
oppress appellant and deny him his rights. On record, after Abratique repeatedly failed to show up for the taking
of his testimony, the prosecution went to the extent of praying that the trial court order the arrest of Abratique to
compel his attendance at trial. The prosecution likewise tried to get the NBI to produce Abratique as the latter
was in the Bureaus custody, but to no avail. Eventually, the trial court ordered the prosecution to waive its right
to present Abratique and rest its case on the evidence already offered. 80
Nor do we find a delay of twenty (20) hearing days to be an unreasonable length of time. Delay of less than two
months has been found, in fact, to be not an unreasonably lengthy period of time. 81
Moreover, nothing on record shows that appellant Modesto Tee objected to the inability of the prosecution to
produce its witness. Under the Rules, appellant could have moved the trial court to require that witness
Abratique post bail to ensure that the latter would testify when required. 82 Appellant could have moved to have
Abratique found in contempt and duly sanctioned. Appellant did neither. It is a bit too late in the day for appellant
to invoke now his right to speedy trial.
No persuasive reason supports appellants claim that his constitutional right to speedy trial was violated. One
must take into account that a trial is always subject to postponements and other causes of delay. But in the
absence of a showing that delays were unreasonable and capricious, the State should not be deprived of a
reasonable opportunity of prosecuting an accused. 83
Appellant next contends that the trial court gravely abused its discretion, and exhibited partiality, when it allowed
the reopening of the case after the prosecution had failed to present Abratique on several occasions and had
been directed to rest its case. Appellant stresses that the lower courts order to reopen the case to receive
Abratiques further testimony is an indication that the trial court favored the prosecution and unduly prejudiced
appellant.
On appellees behalf, the Solicitor General points out that the trial courts order was in the interest of substantial
justice and hence, cannot be termed as an abuse of discretion. The OSG points out that the prosecution had not
formally rested its case and had yet to present its formal offer of evidence, hence, the submission of additional
testimony by the same witness cannot be prejudicial to the accused, it being but the mere continuation of an
uncompleted testimony. Furthermore, appellant did not properly oppose the prosecutions motion to reopen the
case.
At the time Criminal Cases Nos. 15800-R and 15822-R were being tried, the 1985 Rules of Criminal Procedure
were in effect. There was no specific provision at that time governing motions to reopen. 84 Nonetheless, long and
established usage has led to the recognition and acceptance of a motion to reopen. In view of the absence of a

specific procedural rule, the only controlling guideline governing a motion to reopen was the paramount interests
of justice. As a rule, the matter of reopening of a case for reception of further evidence after either prosecution or
defense has rested its case is within the discretion of the trial court. 85 However, a concession to a reopening
must not prejudice the accused or deny him the opportunity to introduce counter evidence. 86
Strictly speaking, however, there was no reopening of the cases in the proceedings below. A motion to reopen
may properly be presented only after either or both parties have formally offered and closed their evidence, but
before judgment.87 In the instant case, the records show that on April 19, 1999, the prosecution was directed to
close its evidence and given 15 days to make its formal offer of evidence. 88 This order apparently arose from the
manifestation of the prosecution on April 16, 1999 that should they fail to produce witness Abratique on the next
scheduled hearing the prosecution would rest its case. 89 On April 19, 1999, which was the next scheduled
hearing after April 16, 1999, Abratique was absent notwithstanding notices, orders, and warrants of arrest.
However, on April 27, 1999, or before the prosecution had formally offered its evidence, Abratique was brought
to the trial court by the NBI. In its order of said date, the trial court pointed out that the prosecution could move to
"reopen" the case for the taking of Abratiques testimony.90 On May 7, 1999, the prosecution so moved, stressing
that it had not yet formally offered its evidence and that the substantial rights of the accused would not be
prejudiced inasmuch as the latter had yet to present his evidence. Appellant filed no opposition to the motion.
The trial court granted the motion six days later. Plainly, there was nothing to reopen, as the prosecution had not
formally rested its case. Moreover, the taking of Abratiques testimony was not for the purpose of presenting
additional evidence, but more properly for the completion of his unfinished testimony. In U.S. vs. Base,91 we held
that a trial court is not in error, if it opts to reopen the proceedings of a case, even after both sides had rested
and the case submitted for decision, by the calling of additional witnesses or recalling of witnesses so as to
satisfy the judges mind with reference to particular facts involved in the case. A judge cannot be faulted should
he require a material witness to complete his testimony, which is what happened in this case. It is but proper that
the judges mind be satisfied on any and all questions presented during the trial, in order to serve the cause of
justice.
Appellants claim that the trial courts concession to "reopen" the case unduly prejudiced him is not well taken.
We note that appellant had every opportunity to present his evidence to support his case or to refute the
prosecutions evidence point-by-point, after the prosecution had rested its case. In short, appellant was never
deprived of his day in court. A day in court is the touchstone of the right to due process in criminal justice. 92 Thus,
we are unable to hold that a grave abuse of discretion was committed by the trial court when it ordered the socalled "reopening" in order to complete the testimony of a prosecution witness.
3. On the Sufficiency of the Prosecutions Evidence
In bidding for acquittal, appellant assails the credibility of Abratique as a witness. Appellant insists that
Abratiques testimony is profuse with lies, contrary to human nature, hence incredible. According to appellant,
Abratique was evasive from the outset with respect to certain questions of the trial court. He adds that it
appeared the court entertained in particular the suspicion that witness Abratique had conspired with appellant in
committing the crime charged. Appellant questions Abratiques motive in informing the NBI about his activities
related to the marijuana taking, transfer, and warehousing.
The OSG contends that Abratiques testimony, taken as a whole, is credible. It points out that Abratique testified
in a straightforward manner as to his knowledge of the huge cache of prohibited drugs stashed by appellant in
two different places. His testimony, said the OSG, when fused with the physical evidence consisting of 591.81
kilograms of marijuana found by law enforcers at appellants residence, inexorably leads to the inculpation of
appellant.
It is the bounden duty of the courts to test the prosecution evidence rigorously, so that no innocent person is
made to suffer the unusually severe penalties meted out for drug offenses. 93 Though we scrutinized minutely the
testimony of Abratique, we find no cogent reason to disbelieve him. From his account, Abratique might appear
aware treading the thin line between innocence and feeling guilty, with certain portions of his story tending to be
self-exculpatory. However, his whole testimony could not be discredited. The established rule is that testimony of
a witness may be believed in part and disbelieved in other parts, depending on the corroborative evidence and
the probabilities and improbabilities of the case. But it is accepted, as a matter of common sense, that if certain
parts of a witness testimony are found true, his testimony cannot be disregarded entirely.94

Abratique testified in open court that appellant rented the taxicab he was driving, and he helped appellant
transport huge amounts of marijuana to appellants rented room at No. 27 Dr. Cario St., Baguio City and to
appellants residence at Km. 6, Dontogan, Green Valley, Sto. Tomas, Baguio City. He also declared on the
witness stand that out of fear of being involved, he decided to divulge his knowledge of appellants possession of
large caches of marijuana to the NBI. When the places referred to by Abratique were searched by the
authorities, marijuana in staggering quantities was found and seized by the law enforcers. Stated plainly, the
physical evidence in this case corroborated Abratiques testimony on material points.
Appellant imputes questionable motives to Abratique in an effort to discredit him. He demands that Abratique
should likewise be prosecuted. However, by no means is the possible guilt of Abratique a tenable defense for
appellant. Nor would Abratiques prosecution mean appellants absolution.
In a prosecution for illegal possession of dangerous drugs, the following facts must be proven with moral
certainty: (1) that the accused is in possession of the object identified as prohibited or regulated drug; (2) that
such possession is not authorized by law; and (3) that the accused freely and consciously possessed the said
drug.95
We find the foregoing elements proven in Criminal Case No. 15800-R beyond reasonable doubt.
In said case, the testimony of Abratique and the recovery of 591.81 kilograms of marijuana from appellants
residence served to prove appellants possession of a prohibited drug. Tests conducted by the NBI forensic
chemist proved the seized articles to be marijuana. These articles were seized pursuant to a valid search
warrant and hence, fully admissible in evidence.
In People v. de los Reyes, 239 SCRA 439 (1994), we held that the Dangerous Drugs Act applies generally to all
persons and proscribes the sale of dangerous drugs by any person, and no person is authorized to sell such
drugs. Said doctrine is equally applicable with respect to possession of prohibited drugs. Republic Act No. 6425,
which penalizes the possession of prohibited drugs, applies equally to all persons in this jurisdiction and no
person is authorized to possess said articles, without authority of law.
Anent the third element, we have held that to warrant conviction, possession of illegal drugs must be with
knowledge of the accused or that animus possidendi existed together with the possession or control of said
articles.96 Nonetheless, this dictum must be read in consonance with our ruling 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. 97 In effect, the onus probandi is shifted to accused to
explain the absence of knowledge or animus possidendi98 in this situation.
Appellant Modesto Tee opted not to testify in his defense. Instead, he presented his mother as his lone witness,
who testified on matters totally irrelevant to his case. We can only conclude that, failing to discharge the burden
of the evidence on the possession of prohibited drug, appellants guilt in Criminal Case No. 15800-R was
established beyond reasonable doubt.
4. On The Proper Penalty
Under Republic Act No. 6425 as amended by Republic Act No. 7659, the penalty of reclusion perpetua to death
and a fine ranging from five hundred thousand pesos (P500,000.00) to ten million pesos (P10,000,000.00) 99 shall
be imposed if the quantity of marijuana involved in a conviction for possession of marijuana or Indian hemp shall
be 750 grams or more.100
In the present case, the quantity of marijuana involved has been shown by the prosecution to be far in excess of
750 grams, as stressed by the trial court:
The volume is rather staggering. It is almost one whole house or one whole room. In fact, when they
were first brought to the court, it took hours to load them on the truck and hours also to unload them
prompting the court to direct that the boxes and sack of marijuana be instead kept at the NBI office in
Baguio. And the identification of said marijuana during the trial was made in the NBI premises itself by

the witnesses since it was physically cumbersome and inconvenient to keep bringing them to the court
during every trial.101
In sentencing appellant to death, the trial court noted not only the huge quantity of marijuana bales involved, but
also "the acts of accused of hiding them in different placesand transferring them from place to place and
making them appear as boxes of cigarettes to avoid and evade apprehension and detection." They showed his
being a big supplier, said the trial court, [whose] criminal perversity and craft that "deserve the supreme penalty
of death."102
We are unable to agree, however, with the penalty imposed by the trial court. The legislature never intended that
where the quantity involved exceeds those stated in Section 20 of Republic Act No. 6425 the maximum penalty
of death shall automatically be imposed.103 The statute prescribes two indivisible penalties: reclusion perpetua
and death. Hence, the penalty to be imposed must conform with Article 63 104 of the Revised Penal Code. As
already held, the death penalty law, Republic Act No. 7659 did not amend Article 63 of the Revised Penal
Code.105 The rules in Article 63 apply although the prohibited drugs involved are in excess of the quantities
provided for in Section 20 of Republic Act No. 6425. 106 Thus, finding neither mitigating nor aggravating
circumstances in the present case, appellants possession of 591.81 kilograms of marijuana in Criminal Case
No. 15800-R, does not merit capital punishment but only the lesser penalty of reclusion perpetua.
The trial court imposed a fine on appellant in the sum of One Million Pesos (P1,000,000.00), without subsidiary
imprisonment in case of insolvency. The imposition of a fine is mandatory in cases of conviction of possession of
illegal drugs. This being within the limits allowed by the law, the amount of the fine must be sustained. All these
sanctions might not remedy all the havoc wrought by prohibited drugs on the moral fiber of our society,
especially the youth.107 But these penalties should warn peddlers of prohibited drugs that they cannot ply their
trade in our streets with impunity.
WHEREFORE, the decision of the Regional Trial Court of Baguio City, Branch 6, in Criminal Case No. 15800-R,
convicting appellant MODESTO TEE alias "ESTOY" TEE of violation of Section 8 of Republic Act No. 6425, as
amended, is AFFIRMED with the MODIFICATION that appellant is hereby sentenced to suffer the penalty of
reclusion perpetua. The fine of ONE MILLION (P1,000,000.00) PESOS imposed on him is sustained. Appellant
is likewise directed to pay the costs of suit.
SO ORDERED.

G.R. No. L-69803 October 8, 1985


CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and WILLIE C. TOLENTINO, petitioners,
vs.
HON. ERNANI CRUZ PAO, Executive Judge, Regional Trial Court of Quezon City; HON. ANTONIO P.
SANTOS, Presiding Judge, Branch XLII, Metropolitan Trial Court of Quezon City: HON. SERGIO F.
APOSTOL, City Fiscal, Quezon City; HON. JUAN PONCE ENRILE, LT. GEN. FIDEL RAMOS and COL.
JESUS ALTUNA, respondents.
Jose W .Diokno, Joker P. Arroyo, Rene A. V. Sarmiento, Dan Malabonga and Cesar Maravilla for petitioners.

MELENCIO-HERRERA, J.:
The facts before the Court in these Certiorari, Prohibition, and mandamus proceedings will be briefly stated. The
three petitioners will be referred to through their surnames of NOLASCO, AGUILAR-ROQUE and TOLENTINO.
1. Prior to August 6, 1984 (hereinafter to be referred to without the year), AGUILAR-ROQUE was one of the
accused of Rebellion in Criminal Case No.
MC-25-113 of Military Commission No. 25, both cases being entitled "People of the Philippines vs. Jose Ma.
Sison, et al." She was then still at large.
2. At 11:30 A.M. on August 6th, AGUILAR-ROQUE and NOLASCO were arrested by a Constabulary Security
Group (CSG) at the intersection of Mayon Street and P. Margall Street, Quezon City. The stated time is an
allegation of petitioners, not denied by respondents. The record does not disclose that a warrant of arrest had
previously beeen issued against NOLASCO.
3. At 12:00 N. on August 6th, elements of the CSG searched the premises at 239-B Mayon Street, Quezon City.
The stated time is an allegation of petitioners, not specifically denied by respondents. In their COMMENT,
however, respondents have alleged that the search was conducted "late on the same day"; that is late on august
6th.
4. On August 6th, at around 9:00 A.M., Lt. Col. Virgilio G. Saldajeno of the CSG, applied for a Search Warrant
from respondent Hon. Ernani Cruz Pao, Executive Judge of the Regional Trial Court in Quezon City, to be
served at No. 239-B Mayon Street, Quezon City, determined tyo be the leased residence of AGUILAR-ROQUE,
after almost a month of "round the clock surveillance" of the premises as a "suspected underground house of the
CPP/NPA." AGUILAR-ROQUE has been long wanted by the military for being a high ranking officer of the
Communist Party of the Philippines, particularly connected with the MV Karagatan/Doa Andrea cases.
In connection with the Search Warrant issued, the following may be stated:

(a) The Search Warrant was issued in proceedings entitled "People of the Philippines vs. Mila Aguilar-Roque,
Accused, Search Warrant No. 80- 84 for rebellion" (the SEARCH WARRANT CASE). Judge Panos Court was
Branch 88.
(b) It does not appear from the records before us that an application in writing was submitted by Lt. Col.
Saldajeno to Judge Pao.
(c) According to the record, Lt. Col. Saldajeno and his witness S/A Dionicio A. Lapus, were examined under oath
by Judge Pao but only the deposition of S/A Lapus has been submitted to us. The latter deposed that to his
personal knowledge, there were kept in the premises to be searched records, documents and other papers of
the CPP/NPA and the National Democratic Front, including support money from foreign and local sources
intended to be used for rebellion. 1
5. In connection with the search made at 12:00 N. of August 6th the following may be stated:
(a) TOLENTINO was a person then in charge of the premises. He was arrested by the searching party
presumably without a warrant of arrest.
(b) The searching party seized 428 documents and written materials, 2 and additionally a portable typewriter, and
2 wooden boxes, making 431 items in all. 3
(c) According to the Return, submitted in the SEARCH WARRANT CASE on August 10th, 4 the search was made
in the presence of Dra. Marciana Galang, owner of the premises, and of two (2) Barangay Tanods. No mention
was made that TOLENTINO was present. The list of the 428 articles and documents attached to the Return was
signed by the two Barangay Tanods, but not by Dra. Galang.
6. (a) On August 10th, the three petitioners, AGUILAR-ROQUE, NOLASCO and TOLENTINO, were charged
before the Quezon City Fiscal's Office (the CITY FISCAL, for short) upon complaint filed by the CSG against
petitioners for "Subversion/Rebellion and/or Conspiracy to Commit Rebellion/Subversion."
(b) On August 13th, the CITY FISCAL filed an Information for Violation of Presidential Decree No. 33 (Illegal
Possession of Subversive Documents) against petitioners before Branch 42 of the Metropolitan Trial Court of
Quezon City (the SUBVERSIVE DOCUMENTS CASE), respondent Judge Antonio P. Santos, presiding.
(c) On August 16th, CSG filed a Motion for Reconsideration with the CITY FISCAL, praying that AGUILARROQUE and NOLASCO be charged with Subversion. The Motion was denied on November 16th.
7. (a) On September 10th, the CSG submitted an Amended Return in the SEARCH WARRANT CASE praying,
inter alia, that the CSG be allowed to retain the seized 431 documents and articles, in connection with cases that
are presently pending against Mila Aguilar Roque before the Quezon City Fiscal's Office and the court. 5
(b) On September 28th, petitioners were required by Judge Pano to comment on the Amended Return, which
AGUILAR-ROQUE did on October 18th, raising the issue of the inadmissibility of any evidence obtained
pursuant to the Search Warrant.
(c) On December 13, 1984, Judge Pao admitted the Amended Return and ruled that the seized documents
"shall be subject to disposition of the tribunal trying the case against respondent."
8. (a) On December 12th, petitioners filed a Motion to Suppress in the SUBVERSIVE DOCUMENTS CASE,
praying that such of the 431 items belonging to them be returned to them. It was claimed that the proceedings
under the Search Warrant were unlawful. Judge Santos denied the Motion on January 7, 1985 on the ground
that the validity of the Search Warrant has to be litigated in the SEARCH WARRANT CASE. He was apparently
not aware of the Order of Judge Pao of December 13th issued in the SEARCH WARRANT CASE.

Hence, this Petition for Certiorari, Prohibition and mandamus to annul and set aside the (1) Search Warrant
issued by respondent RTC Judge Pao; (2) his Order admitting the Amended Return and granting the Motion to
Retain Seized Items; and (3) Order of respondent MTC Judge Santos denying petitioners' Motion to Suppress.
This Court, on February 12, 1985, issued a Temporary Restraining Order enjoining the respondents or their duly
authorized representatives from introducing evidence obtained under the Search Warrant.
The PETITIONERS principally assert that the Search Warrant is void because it is a general warrant since it
does not sufficiently describe with particularity the things subject of the search and seizure, and that probable
cause has not been properly established for lack of searching questions propounded to the applicant's witness.
The respondents, represented by the Solicitor General, contend otherwise, adding that the questions raised
cannot be entertained in this present petition without petitioners first moving for the quashal of the disputed
Search Warrant with the issuing Judge.
We find merit in the Petition.
Section 3, Article IV of the Constitution, guarantees the right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of whatever nature and for any purpose. It also
specifically provides that no Search Warrant shall issue except upon probable cause to be determined by the
Judge or such other responsible officer as may be authorized by law, after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing the place to be searched and
the things to be seized.
The disputed Search Warrant (No. 80-84) describes the personalities to be seized as follows:
Documents, papers and other records of the Communist Party of the Phihppines/New Peoples
Army and/or the National Democratic Front, such as Minutes of the Party Meetings, Plans of
these groups, Programs, List of possible supporters, subversive books and instructions,
manuals not otherwise available to the public, and support money from foreign or local sources.
It is at once evident that the foregoing Search Warrant authorizes the seizure of personal properties vaguely
described and not particularized. It is an all- embracing description which includes everything conceivable
regarding the Communist Party of the Philippines and the National Democratic Front. It does not specify what
the subversive books and instructions are; what the manuals not otherwise available to the public contain to
make them subversive or to enable them to be used for the crime of rebellion. There is absent a definite
guideline to the searching team as to what items might be lawfully seized thus giving the officers of the law
discretion regarding what articles they should seize as, in fact, taken also were a portable typewriter and 2
wooden boxes. It is thus in the nature of a general warrant and infringes on the constitutional mandate requiring
particular description of the things to be seized. In the recent rulings of this Court, search warrants of similar
description were considered null and void for being too general. Thus:
Subversive documents, pamphlets, leaflets, books, and other publications to promote the
objectives and purposes of the subversive organizations known as Movement for Free
Philippines. Light-a-Fire Movement and April 6 Movement. 6
The things to be seized under the warrant issued by respondent judge were described as
'subversive documents, propaganda materials, FAs, printing paraphernalia and all other
subversive materials Such description hardly provided a definite guideline to the search team as
to what articles might be lawfully seized thereunder. Said description is no different from if not
worse than, the description found in the search warrants in "Burgos, et al. v. the Chief of
Staff"which this Court declared null and void for being too general. 7
In the case at bar, the search warrant issued by respondent judge allowed the seizure of printed
copies of the Philippine Times, manuscripts/drafts of articles for publication, newspaper
dummies subversive documents, articles, etc., and even typewriters, duplicating machines,
mimeographing and tape recording machines. Thus, the language used is so all embracing as to

include all conceivable records and equipment of petitioner regardless of whether they are legal
or illegal. The search warrant under consideration was in the nature of a general warrant which
is constitutionally objectionable. 8
The lack of particularization is also evident in the examination of the witness presented by the applicant for
Search Warrant.
Q Mr. Dionicio Lapus, there is an application for search warrant filed by Lt. Col.
Virgilio Saldajeno and the Court would like to know if you affirm the truth of your
answer in this deposition?
(The deposition instead)
A Yes, sir,
Q How long did it take you for the surveillance?
A Almost a month, sir.
Q Are you a lawyer, Mr. Lapus?
A No, Your Honor, but I was a student of law.
Q So, you are more or less familiar with the requisites of the application for
search warrant?
A Yes, Your Honor.
Q How did you come to know of the person of Mila Aguilar-Roque?
A Because of our day and night surveillance, Your Honor, there were so many
suspicious persons with documents.
Q What kind of documents do you refer to?
A Documents related to the Communist Party of Philippines and New People's
Army.
Q What else?
A Conferences of the top ranking officials from the National Democratic Front,
Organization of the Communist Party of the Philippines ...
Q And may include what else?
A Other papers and documents like Minutes of the Party Meetings, Plans of
these groups, Programs, List of possible supporters, subversive books and
instructions, manuals not otherwise available to the public and support money
from foreign and local sources. 9
The foregoing questions propounded by respondent Executive Judge to the applicant's witness are not
sufficiently searching to establish probable cause. The "probable cause" required to justify the issuance of a
search warrant comprehends such facts and circumstances as will induce a cautious man to rely upon them and
act in pursuant thereof. 10 Of the 8 questions asked, the 1st, 2nd and 4th pertain to Identity. The 3rd and 5th are

leading not searching questions. The 6th, 7th and 8th refer to the description of the personalities to be seized,
which is Identical to that in the Search Warrant and suffers from the same lack of particularity. The examination
conducted was general in nature and merely repetitious of the deposition of said witness. Mere generalization
will not suffice and does not satisfy the requirements of probable cause upon which a warrant may issue. 11
Respondents claim, however, that the proper forum for questioning the illegality of a Search Warrant is with the
Court that issued it instead of this original, independent action to quash. The records show, however, that
petitioners did raise that issue in the SEARCH WARRANT CASE in their Comment, dated October 18, 1984. In
fact, they already questioned the admissibility of the evidence obtained under the Search Warrant, even during
the inquest investigation on August 10, 1984. And in the SUBVERSIVE DOCUMENTS CASE, they filed a Motion
to Suppress on December 12, 1984 claiming that the proceedings under the Search Warrant were unlawful.
Substantially, therefore, while not denominated as a motion to quash, petitioners had questioned the legality of
the Search Warrant.
Parenthetically, it strikes the Court that the pendency of the SEARCH WARRANT CASE and of the
SUBVERSIVE DOCUMENTS CASE before two different Courts is not conducive to an orderly administration of
justice. It should be advisable that, whenever a Search Warrant has been issued by one Court, or Branch, and a
criminal prosecution is initiated in another Court, or Branch, as a result of the service of the Search Warrant, the
SEARCH WARRANT CASE should be consolidated with the criminal case for orderly procedure. The later
criminal case is more substantial than the Search Warrant proceeding, and the Presiding Judge in the criminal
case should have the right to act on petitions to exclude evidence unlawfully obtained.
Notwithstanding the irregular issuance of the Search Warrant and although, ordinarily, the articles seized under
an invalid search warrant should be returned, they cannot be ordered returned in the case at bar to AGUILARROQUE. Some searches may be made without a warrant. Thus, Section 12, Rule 126, Rules of Court, explicitly
provides:
Section 12. Search without warrant of person arrested.A person charged with an offense may
be searched for dangerous weapons or anything which may be used as proof of the commission
of the offense.
The provision is declaratory in the sense that it is confined to the search, without a search warrant, of a person
who had been arrested. It is also a general rule that, as an incident of an arrest, the place or premises where the
arrest was made can also be search without a search warrant. In this latter case, "the extent and
reasonableness of the search must be decided on its own facts and circumstances, and it has been stated that,
in the application of general rules, there is some confusion in the decisions as to what constitutes the extent of
the place or premises which may be searched. 12 "What must be considered is the balancing of the individual's
right to privacy and the public's interest in the prevention of crime and the apprehension of criminals." 13
Considering that AGUILAR-ROQUE has been charged with Rebellion, which is a crime against public order; that
the warrant for her arrest has not been served for a considerable period of time; that she was arrested within the
general vicinity of her dwelling; and that the search of her dwelling was made within a half hour of her arrest, we
are of the opinion that in her respect, the search at No. 239-B Mayon Street, Quezon City, did not need a search
warrant; this, for possible effective results in the interest of public order.
Such being the case, the personalities seized may be retained. by CSG, for possible introduction as evidence in
the Rebellion Case, leaving it to AGUILAR-ROQUE to object to their relevance and to ask Special Military
Commission No.1 to return to her any and all irrelevant documents and articles.
WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by respondent Executive Judge
Ernani Cruz Pao is hereby annulled and set aside, and the Temporary Restraining Order enjoining respondent
from introducing evidence obtained pursuant to the Search Warrant in the Subversive Documents case hereby
made permanent, the, personalities seized may be retained by the Constabulary Security Group for possible
introduction as evidence in Criminal Case No. SMC-1-1, pending before Special Military commission No. 1,
without prejudice to petitioner Mila Aguilar-Roque objecting to their relevance and asking said Commission to
return to her any and all irrelevant documents and articles.

SO ORDERED.

G.R. No. 144639. September 12, 2003]


PEOPLE OF THE PHILIPPINES, appellee, vs. BENNY GO, appellant.
DECISION
CARPIO-MORALES, J.:
On direct appeal before this Court is the Decision of the Regional Trial Court of Manila, Branch 41, in Criminal
Case No. 99-174439 finding appellant Benny Go guilty of violating Section 16, Article III in relation to Section 2
(e-2), Article I of Republic Act No. 6425,[1] as amended, and sentencing him to suffer the penalty of reclusion
perpetua and to pay a fine of P1,000,000.00.
The Information filed against appellant charged as follows:
That on or about June 14, 1999, in the City of Manila, Philippines, the said accused without being authorized by
law to possess or use any regulated drug, did then and there willfully, unlawfully and knowingly have in his
possession and under his custody and control one (1) knot tied transparent plastic bag containing TWO
HUNDRED FOUR (204) grams of white crystalline substance known as Shabu containing methamphetamine
hydrochloride, a regulated drug, without the corresponding license or prescription thereof.
Contrary to law.[2]
Upon arraignment, appellant, assisted by counsel, pleaded not guilty to the offense charged.[3] Subsequently, at
the pre-trial conference on August 10, 1999, the parties stipulated that (1) the subject Search Warrant is valid;
and (2) the Forensic Chemist conducted only a qualitative examination on the subject specimen.[4]
The prosecution presented the following witnesses: (1) Police Inspector Edwin Zata, Forensic Chemical Officer
of the Philippine National Police (PNP) Crime Laboratory; (2) PO2 Gerardo Abulencia (PO2 Abulencia); (3)
SPO1 Edgardo G. Fernandez (SPO1 Fernandez); and (4) SPO1 Ver M. Serquea (SPO1 Ver Serquea) whose
testimonies sought to establish the following facts:
On April 28, 1999, SPO1 Fernandez, SPO1 Serquea and a confidential informant conducted a test buy
operation at the residence of appellant at 1480 General Luna Street, Ermita, Manila during which they purchased
from him P1,500.00 worth of methamphetamine hydrochloride or shabu.[5] The police officers did not
immediately arrest him, however. Instead, they applied for a Search Warrant for appellants residence from the
Regional Trial Court (RTC) of Pasay City[6] based on their firm belief that there was a large quantity of illegal

drugs in his house.[7]


On June 14, 1999, a raiding team composed of SPO1 Fernandez and SPO1 Serquea, together with PO2
Abulencia, PO3 Noel Adtu and PO2 Gerardo Jimenez,[8] proceeded to appellants above-said residence armed
with Search Warrant No. 99-0038[9] issued by Br. 109 of the RTC of Pasay City commanding them to make an
immediate search anytime of the day or night of appellants residence and to seize and take possession of
METAMPHETAMINE HYDROCHLORIDE (Shabu), weighing scale, other drug paraphernalias and proceeds of
the above crime.
Soon after the police officers arrived at appellants residence at around 6:00 in the evening,[10] they, to enable
them to gain entry to the two-storey house, sideswept (sinagi) a little appellants Toyota Corolla GLI car which
was parked outside.[11] Jack Go, appellants son and the only one present at the house at the time, thereupon
opened the door of the house and the policemen at once introduced themselves, informed him that they had a
warrant for the search of the premises, and promptly handcuffed him to a chair. SPO1 Fernandez, SPO1
Serquea and PO2 Abulencia entered the house, while PO3 Adtu and PO2 Jimenez remained outside. [12]
On instruction of SPO1 Fernandez, SPO1 Serquea left to summon barangay officials to witness the search.
SPO1 Serquea returned five minutes later with Barangay Kagawads Gaspar Lazaro (Kagawad Lazaro) and
Emmanuel Manalo (Kagawad Manalo) who were advised by SPO1 Fernandez to be witnesses to the search and
to afterwards sign the inventory receipt and affidavit of orderly search.
As instructed, the two barangay kagawads proceeded to the upper floor of appellants house with SPO1
Serquea and PO2 Abulencia.[13] While SPO1 Fernandez, who remained downstairs in the sala,[14] instructed
the handcuffed Jack Go to witness the search, the latter refused since there will be no more left in the sala of
the house anyway there is a barangay official.[15]
In the course of the search of the premises which took place from 6:00 to 11:00 in the evening,[16] Kagawad
Lazaro and PO2 Abulencia recovered one knot tied transparent plastic bag containing white crystalline
substance[17] from the drawer of a cabinet.
Also seized from the residence of appellant were the following: (a) one plastic bag containing yellowish
substance[18] found by SPO1 Serquea;[19] (b) a weighing scale discovered by SPO1 Fernandez; (c) assorted
documents; (d) passports; (e) bank books; (f) checks; (g) a typewriter; (h) a check writer; (i) several dry seals
and (j) stamp pads;[20] (k) Chinese and Philippine currency;[21] (l) and appellants Toyota Corolla GLI[22] car
(the car).
The plastic bag containing the white crystalline substance was marked by SPO1 Fernandez as EGF-A-1, while
the plastic bag with the yellowish substance was marked as EGF-A-2.[23]
With the exception of the car, all the seized items were brought to the dining table on the ground floor of
appellants house for inventory.[24]
In the meantime, appellants wife Shi Xiu Ong and his friends Samson Go and Peter Co arrived one after the
other at the house.[25] Appellant himself arrived at 9:30 in the evening when the search was almost through.[26]
After the inventory had been taken, SPO1 Fernandez prepared a handwritten Inventory Receipt[27] and a
document captioned Affidavit of Orderly Search,[28] the contents of which he read to appellant. On instruction
of SPO1 Fernandez, Jack Go also explained the contents of the documents to appellant who then signed them
as did kagawads Manalo and Lazaro and Jack Go as witnesses.[29]
The police officers then brought appellant, his wife, son and friends, along with the seized items, to Camp
Bagong Diwa, Bicutan, Taguig, Metro Manila for verification and investigation.
Appellant was detained while the others were eventually released. [30] The arresting officers jointly prepared an
Affidavit of Arrest dated June 15, 1999[31] which, among other things, contained an enumeration of the seized
items identical to that in the handwritten Inventory Receipt. And SPO1 Fernandez prepared a Return of Search

Warrant 99-0038 dated June 18, 1999 and a referral paper 1 st Indorsement[32] with the same enumeration
of seized items.
Also on June 15, 1999, SPO1 Serquea brought the plastic bag containing the white crystalline substance
(Exhibit A) and the plastic bag containing the yellowish substance (Exhibit B) to the PNP Crime
Laboratory[33] together with a request for laboratory examination.[34] Upon examination, Exhibit A was found
to contain 204 grams of white crystalline substance containing methamphetamine hydrochloride, a regulated
drug.[35] Exhibit B, on the other hand, was found negative for any prohibited and/or regulated drug.[36]
Meanwhile, the seized documents, passports, dry seals and stamp pads were brought to the Bureau of
Immigration and Deportation,[37] while the bank books were forwarded to the corresponding banks for
verification.[38]
The prosecution presented in evidence the Yamato weighing scale,[39] claimed to have been recovered by
SPO1 Fernandez from the top of appellants refrigerator,[40] although it was not among those listed in the
handwritten Inventory Receipt, Affidavit of Arrest or Return of the Search Warrant.[41] Also presented by the
prosecution, as a hostile witness, to corroborate in part the foregoing facts was Kagawad Lazaro. He claimed,
however, that the first page of the handwritten Inventory Receipt submitted in evidence had been substituted with
another, asserting that he and the other witnesses affixed their signatures on the left-hand margin of the first
page of the handwritten Inventory Receipt which they were asked to sign whereas that submitted in court did not
bear their signatures.[42]
Kagawad Lazaro further claimed that the first entry on the first page of the Inventory Receipt, whereon he and
his co-witnesses affixed their signatures, reading Chinese Medicine had been replaced with undetermined
quantity of white crystalline granules;[43] that what was recovered from the room of Jack Go by PO2 Abulencia
was Exhibit B, the plastic bag containing the yellowish powder, and not Exhibit A, the plastic bag containing
the suspected shabu; and that Exhibit A was not even among the items seized and inventoried.[44]
The defense, which adopted the testimony of Kagawad Lazaro, presented appellant, his son Jack Go, and
Kagawad Manalo whose version of the facts of the case follows:
In November 1998, while appellant was walking along Gen. Luna Street, he was accosted by SPO1 Serquea
and another police officer who accused him of manufacturing shabu and divested him of money amounting to
more than P5,000.00. He was later released as the policemen could not charge him with anything.[45]
On July 14, 1999 at around 5:30 in the afternoon, Jack Go opened the door of their house after hearing
somebody shout that the car had been bumped. Five armed policemen then entered the house, one of whom
handcuffed him while two went up to the upper floor of the house and searched for about thirty (30) minutes. [46]
At past 6:00 p.m., as the two kagawads entered the house which was already in disarray, SPO1 Fernandez
formed two groups to conduct the search at the second floor: (1) that of PO2 Abulencia, with Kagawad Lazaro to
serve as witness, and (2) that of SPO1 Serquea, with Kagawad Manalo to serve as witness.[47]
PO2 Abulencia, together with Kagawad Lazaro, searched the room of Jack Go. SPO1 Serquea, accompanied
by Kagawad Manalo, searched the study room where he seized documents, passports and assorted papers.
SPO1 Serquea and Kagawad Manalo then proceeded to the room of appellant followed by PO2 Abulencia and
Kagawad Lazaro. From the room of appellant, the policemen seized documents, passports, bankbooks and
money.[48]
After the search, the policemen and barangay kagawads went down with three boxes containing passports,
money and assorted Chinese medicine.[49]
When appellants wife arrived at around 7:30 p.m.,[50] SPO1 Fernandez ordered her to open the safe (kaha de
yero) inside appellants room where the police officers seized money, passports, bankbooks, Chinese currency
and pieces of jewelry.[51]

The seized items were placed on appellants table on the first floor of the house where they were inventoried by
SPO1 Fernandez[52] during which the barangay kagawads did not see either Exhibit A, the plastic bag
containing the suspected shabu, or the weighing scale.[53]
After SPO1 Fernandez prepared a two-page Inventory Receipt and Affidavit of Orderly Search, he asked Jack
Go to sign the receipt. While Jack Go initially refused, he eventually did sign both documents without having
read them completely after he was hit by the policemen. The two barangay kagawads also signed both pages of
the Inventory Receipt as witnesses.[54]
When appellant arrived at around 8:30 p.m., he was handcuffed and likewise made to sign the Inventory Receipt
without having been able to read its contents.[55] Jack Go was prevented from explaining its contents to him.[56]
The first page of the handwritten Inventory Receipt presented in court, which includes an undetermined quantity
of white crystalline granules placed inside a transparent plastic envelope as among those seized from the
residence of appellant, does not bear the signatures of appellant, the kagawads and Jack Go, hence, it is not the
same first page of the handwritten Inventory Report on which they affixed their signatures.[57] In fact the
policemen did not leave a copy of this Inventory Receipt with either appellant or the barangay kagawads.[58]
The policemen continued to search appellants residence until around 11:00 p.m. when they brought appellant,
Jack Go, Shi Xiu Ong, Samson Go and Peter Co, together with the seized items, to Bicutan.[59]
On the way to Bicutan, PO2 Abulencia, who boarded the same vehicle as appellant, told the latter that the
policemen wanted P10,000,000.00 from him or he would be charged with possession of illegal drugs. The
amount demanded was later reduced to P5,000,000.00, then to P2,000,000.00, and finally to P500,000.00.
Appellant refused, however, to heed the policemens demands since he did not commit any crime.[60]
Finding for the prosecution, the trial court rendered the appealed Decision on June 7, 2000, the dispositive
portion of which reads:
WHEREFORE, judgment is hereby ordered rendered finding the accused Benny Go guilty of the offense
charged in the information and sentencing him to suffer the penalty of reclusion perpetua and a fine of One
Million Pesos (P1,000,000.00).
The subject shabu is hereby ordered forfeited in favor of the government and the Clerk of Court is hereby
directed to deliver and/or cause the delivery of the said shabu to the Dangerous Drugs Board for proper
disposition, upon the finality of this Decision.
SO ORDERED.[61]
His Motion for Reconsideration[62] of the decision having been denied by Order of July 24, 2000,[63] appellant
lodged the present appeal. In his Brief,[64] he assigns the following errors:
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN ACCORDING THE POLICE OFFICERS THE PRESUMPTION OF
REGULARITY IN THE PERFORMANCE OF DUTY IN IMPLEMENTING THE SEARCH WARRANT BASED ON
THEIR TESTIMONIES, THERE BEING CONVINCING PROOFS TO THE CONTRARY.
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN HOLDING THAT 204 GRAMS OF SHABU WAS RECOVERED FROM THE
HOUSE OF ACCUSED-APPELLANT ON JUNE 14, 1999 BASED ON THE TESTIMONY OF PO1 GERARDO
ABULENCIA AND THE SUPPORTING INVENTORY RECEIPT, BOTH OF WHICH WERE COMPLETELY
CONTRADICTED BY THE PROSECUTION WITNESS BARANGAY KAGAWAD GASPAR LAZARO AS WELL
AS BY DEFENSE WITNESSES.

THIRD ASSIGNMENT OF ERROR


THE TRIAL COURT ERRED IN RENDERING JUDGMENT FINDING ACCUSED-APPELLANT GUILTY OF
ILLEGAL POSSESSION OF TWO HUNDRED FOUR (204) GRAMS OF SHABU AS CHARGED IN THE
INFORMATION AND SENTENCING HIM TO SUFFER THE (sic) PENALTY OF RECLUSION PERPETUA AND
A FINE OF ONE MILLION PESOS (P1,000,000.00), INSTEAD OF ACQUITTING ACCUSED-APPELLANT FOR
FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.[65] (Emphasis
supplied)
During the pendency of the appeal, appellant filed a verified Motion for Return of Personal Documents, Vehicle
and Paraphernalia dated September 10, 2001[66] praying for the release of the following seized properties:
a.several pcs. transparent plastic envelopes
b.

one (1) unit Toyota Corolla GLI with PN UTT 658

c.

Cash amounting to Fifty Two Thousand Seven Hundred Sixty Pesos (P52,760.00) in different
denominations

d.

Twenty-Five Thousand Chinese Yuan (CY25,000.00)

e.

Sixty-Seven (67) pieces of Chinese passports

f.

Twenty-Eight (28) pieces of assorted bankbooks

g.

Two Hundred Eighty Five (285) pieces of assorted checks

h.

Fifty-Three (53) pcs. rubber stamp and related paraphernalia

i.

One (1) piece Underwood typewriter with SN 9861952

j.

One (1) piece check writer

k.

Two (2) pieces of dry seal

m.

Five (5) boxes of assorted documents

n.

Three (3) bags of assorted documents[67]

This Court is thus called upon to determine (1) whether appellants guilt has been proven beyond reasonable
doubt; and (2) whether the items enumerated in appellants Motion for Return of Personal Documents, Vehicle
and Paraphernalia, which items are allegedly not among those particularly described in Search Warrant No. 990038, should be returned to him. These issues shall be resolved in seriatim.
Illegal Possession of 204 Grams of Shabu
As appellant questions the legality of the search of his residence, the actions of the police officers, as agents of
the State, must be carefully considered in light of appellants right against unreasonable searches and seizures
guaranteed by Sections 2 and 3, Article III of the Constitution.[68]
What constitutes a reasonable or unreasonable search or seizure is a purely judicial question determinable from
a consideration of the attendant circumstances including the purpose of the search, 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.[69]

Since no presumption of regularity may be invoked by an officer to justify an encroachment of rights secured by
the Constitution,[70] courts must cautiously weigh the evidence before them. As early as in the 1937 case of
People v. Veloso,[71] this Court held:
A search warrant must conform strictly to the requirements of the constitutional and statutory
provisions under which it is issued. Otherwise, it is void. The proceedings upon search warrants, it has
rightly been held, must be absolutely legal, for there is not a description of process known to law, the execution
of which is more distressing to the citizen. Perhaps there is none which excites such intense feeling in
consequence of its humiliating and degrading effect. The warrant will always be construed strictly without,
however, going the full length of requiring technical accuracy. No presumptions of regularity are to be
invoked in aid of the process when an officer undertakes to justify under it.[72] (Emphasis supplied;
citations omitted)
Indeed, a strict interpretation of the constitutional, statutory and procedural rules authorizing search and seizure
is required, and strict compliance therewith is demanded because:
x x x Of all the rights of a citizen, few are of greater importance or more essential to his peace and happiness
than the right of personal security, and that involves the exemption of his private affairs, books, and papers from
the inspection and scrutiny of others. 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 citizens, for the
enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government.
[73]
In arriving at the appealed decision, the trial court placed greater weight on the testimony of the police officers to
whom it accorded the presumption of regularity in the performance of duty, viz:
Coming to the first issue raised, the Court gives credence to the testimonies of the police officers and
accords them the presumption of regularity in the performance of their duty. The Court has observed
the demeanor of the witnesses and finds the prosecution witnesses more credible than the defense
witnesses. x x x
On the other hand, there is no showing that the police officers had ill motive when they applied for and
secured the Search Warrant, raided the house of the accused and arrested him. Accused is a Chinese
national who appeared to have no quarrel with the arresting police officers and thus the police officers had no
reason to fabricate or trump up charges against him. Hence, there appears to be no reason the police
officers should not be accorded the presumption of regularity in the performance of their duty. As held
by the Supreme Court, (L)aw enforcers are presumed to have regularly performed their official duty, in the
absence of the evidence to the contrary. x x x We see no valid obstacle to the application of the ruling in People
vs. Capulong, (160 SCRA 533 {1988}) that credence is accorded to the testimonies of the prosecution
witnesses who are law enforcers for it is presumed that they have regularly performed their duty in the
absence of convincing proof to the contrary. The appellant has not shown that the prosecution witnesses
were motivated by any improper motive other than that of accomplishing their mission. (People of the
Philippines, Plaintiff-appellee, vs. Said Sariol Y Muhamading, accused-appellant, 174 SCRA 238).[74] (Emphasis
supplied)
At the same time, the trial court based its finding that the search of appellants residence was proper and valid
on the so-called Affidavit of Orderly Search.
On the second issue raised, the validity of the Search Warrant is clearly shown by the Affidavit of Orderly
Search signed by the accused and his son Jack Go and his witnesses Salvador Manalo and Gaspar
Lazaro. Such Affidavit of Orderly Search coupled with the testimonies of the police officers have clearly
established the propriety and validity of the search.[75] (Emphasis supplied)
The rule that a trial courts findings are accorded the highest degree of respect, it being in a position to observe
the demeanor and manner of testifying of the witnesses,[76] is not absolute and does not apply when a careful
review of the records and a meticulous evaluation of the evidence reveal vital facts and circumstances which the
trial court overlooked or misapprehended and which if taken into account would alter the result of the case.[77]

In the case at bar, an examination of the testimonies of the police officers brings to light several irregularities in
the manner by which the search of appellants residence was conducted.
By PO2 Abulencias own account, in order to enter the premises to be searched, the police officers deliberately
side-swiped appellants car which was parked alongside the road, instead of following the regular knock and
announce procedure as outlined in Section 7 (formerly Section 6), Rule 126 of the Rules of Court.[78]
Q

Mr. Witness, how did you enter the house of Benny Go?

A
Its really heard (sic) to enter the house. Before the door, there was a still (sic) supporting the door and
they will not allow us to enter because they dont know us. Then, in order that we could enter the house, we
side swept (sinagi) a little the vehicle that was parked in front of their house. And their neighbor
knocked at the house of the subject and thats the time that we were able to enter.[79] (Emphasis supplied)
Since the police officers had not yet notified the occupant of the residence of their intention and authority to
conduct a search and absent a showing that they had any reasonable cause to believe that prior notice of
service of the warrant would endanger its successful implementation, the deliberate sideswiping of appellants
car was unreasonable and unjustified.
Also by PO2 Abulencias own account, upon entry to appellants residence, he immediately handcuffed Jack Go
to a chair. Justifying his action, PO2 Abulencia explained that not only was he unfamiliar with Jack Go and
unsure of how the latter would react, but it was a standard operating procedure:
Pros. Rebagay:
Now, what happened on June 14, 1999 at 6:00 p.m. when you were armed with the Search Warrant
issued by Judge Lilia Lopez?
A
We entered inside the house of the subject and we were able to see (nadatnan naming) Jack Go, the
son of Benny Go, sir.
xxx
Q

And what was the reaction of Jack Go, if any?

A
We introduced ourselves as police officers and we have a Search Warrant to conduct a search to the
above subject place and also we handcuffed Jack Go to the chair, sir.
Q

Why did you do that, Mr. witness?

A
Hindi naming kakilala iyong mga tao, sir kaya ganoon ang ginawa namin para hindi kami maano,
eh hindi naming kabisado iyong ugali, sir.
Pros. Rebagay:
And is that an (sic) standard operating procedure Mr. witness, when you are serving a search warrant?
A

Yes, sir.[80] (Emphasis supplied)

There is no showing, however, of any action or provocation by Jack Go when the policemen entered appellants
residence. Considering the degree of intimidation, alarm and fear produced in one suddenly confronted under
similar circumstances, the forcible restraint of Jack Go all the more was unjustified as was his continued restraint
even after Barangay Kagawads Lazaro and Manalo had arrived to justify his forcible restraint.

While Search Warrant No. 99-99-0038 authorized the immediate search of appellants residence to seize
METAMPHETAMINE HYDROCHLORIDE (Shabu), weighing scale, other drug paraphernalias and proceeds of
the above crime, the policemen, by SPO1 Fernandezs admission, seized numerous other items, which are
clearly unrelated to illegal drugs or illegal drug paraphernalia:
Q
In the presence of the barangay officials, what are those items which you seized or your raiding team
seized, if any?
A

With the permission of the Honorable Court, Your Honor, can I take a look at my notes.

Court
Proceed.
Witness
Thank you very much.
A
Seized or confiscated form the said residence are: (1) undetermined quantity of white crystalline
granules placed inside the transparent plastic envelope, (2) undetermined quantity of yellowish powder placed
inside the transparent plastic envelope; (3) several pieces of transparent plastic envelopes; (4) one unit Toyota
Corolla GLI with Plate No. UPT-658; (5) P52,760.00 in different denominations; (6) 25,000.00 Chinese Yuan; (7)
67 pieces of Chinese passports; (8) 28 pieces of assorted bank book; (9) 285 pieces of assorted checks; (10) 53
pieces rubber stamps and related paraphernalia; (11) one piece Underwood typewriter with Serial No. 9861952;
(12) one piece checkwriter; (13) two pieces dry seals; (14) 5 boxes of assorted documents; (15) 3 bags of
assorted documents; and I will add another one Your Honor, a weighing scale.[81]
While an inventory of the seized items was prepared, also by SPO1 Fernandezs admission, it did not contain a
detailed list of all the items seized, particularly the voluminous documents:
Q
Why is it that you did not make a detailed inventory or receipt of the passports? Why did you not give
any detailed receipt or inventory on the passports.
A
There were lots of documents during the time on the table, voluminous documents that I was not
able to make a listing of the said passports.
Q
And it was only this October 8, 1999 or four months after that you made a detailed receipt of
those seized items, am I right?
A

Yes, sir.
xxx

Q
Is it your standard operating procedure that when there are voluminous seized items you will not
(sic) longer made (sic) an inventory report, am I right?
A

Its not an SOP.

Why did you not make a detailed inventory or receipt?

As Ive said earlier, its voluminous. [82] (Emphasis supplied)

In Asian Surety And Insurance Co., Inc. v. Herrera,[83] this Court stressed the necessity for a detailed receipt of
the items seized in order to adequately safeguard the constitutional rights of the person searched:

Moreover, as contended by petitioner, respondents in like manner transgressed Section 10 of Rule 126 of
the Rules for failure to give a detailed receipt of the things seized. Going over the receipts (Annexes B
B-1, B-2, B-3 and B-4 of the Petition) issued, We found the following: one bordereau of reinsurance, 8 fire
registers, 1 marine register, four annual statements, folders described only as Bundle gm-1 red folders;
bundle 17-22 big carton folders; folders of various sizes, etc., without stating therein the nature and kind
of documents contained in the folders of which there were about a thousand of them that were seized.
In the seizure of two carloads of documents and other papers, the possibility that the respondents took
away private papers of the petitioner, in violation of his constitutional rights, is not remote, for the NBI
agents virtually had a field day with the broad and unlimited search warrant issued by respondent Judge as their
passport.[84] (Emphasis and underscoring supplied)
After the inventory had been prepared, PO2 Abulencia presented it to appellant for his signature[85] without any
showing that appellant was informed of his right not to sign such receipt and to the assistance of counsel.
Neither was he warned that the same could be used as evidence against him. Faced with similar circumstances,
this Court in People v. Gesmundo[86] stated:
It is true that the police were able to get an admission from the accused-appellant that marijuana was found in
her possession but said admission embodied in a document entitled PAGPATUNAY previously prepared
by the police, is inadmissible in evidence against the accused-appellant for having been obtained in
violation of her rights as a person under custodial investigation for the commission of an offense. The
records show that the accused-appellant was not informed of her right not to sign the document; neither
was she informed of her right to the assistance of counsel and the fact that the document may be used
as evidence against her.[87] (Emphasis and underscoring supplied, citations omitted)
In People v. Policarpio,[88] this Court held that such practice of inducing suspects to sign receipts for property
allegedly confiscated from their possession is unusual and violative of the constitutional right to remain silent,
viz:
What the records show is that appellant was informed of his constitutional right to be silent and that he may
refuse to give a statement which may be used against him, that is why he refused to give a written statement
unless it is made in the presence of his lawyer as shown by the paper he signed to this effect. However, he was
made to acknowledge that the six (6) small plastic bags of dried marijuana leaves were confiscated from him by
signing a receipt and to sign a receipt for the P20.00 bill as purchase price of the dried marijuana leaves he sold
to Pat. Mangila.
Obviously the appellant was the victim of a clever ruse to make him sign these alleged receipts which in effect
are extra-judicial confessions of the commission of the offense. Indeed it is unusual for appellant to be made
to sign receipts for what were taken from him. It is the police officers who confiscated the same who
should have signed such receipts. No doubt this is a violation of the constitutional right of appellant to
remain silent whereby he was made to admit the commission of the offense without informing him of his
right. Such a confession obtained in violation of the Constitution is inadmissible in evidence.[89] (Emphasis
supplied)
The Inventory Receipt signed by appellant is thus not only inadmissible for being violative of appellants custodial
right to remain silent; it is also an indicium of the irregularity in the manner by which the raiding team conducted
the search of appellants residence.
At the same time, it is unclear whether appellant was furnished a copy of the Inventory Receipt as mandated by
Sec. 11, Rule 126 of the Rules of Court.[90]
Q
Now, while you were making an inventory of that, am I right, that you did not give a copy to Benny Go,
am I right?
A

I gave them a xerox copy. I remember I gave them a xerox copy.

Is there any proof that they received an inventory report?

Nothing, sir.[91]

Moreover, an examination of Exhibit Z, the Return of Search Warrant No. 99-0038 submitted by SPO1
Fernandez to Br. 109 of the RTC of Pasay City was not verified under oath,[92] as required by Section 12 (a)
(formerly Section 12), Rule 126 of the Rules of Court.[93]
The delivery of the items seized to the court which issued the warrant together with a true and accurate inventory
thereof, duly verified under oath, is mandatory in order to preclude the substitution of said items by interested
parties.[94] Under Section 12 of Rule 126,[95] the judge which issued the search warrant is mandated to ensure
compliance with the requirements for (1) the issuance of a detailed receipt for the property received, (2) delivery
of the seized property to the court, together with (3) a verified true inventory of the items seized. Any violation of
the foregoing constitutes contempt of court.
Given the foregoing deviations from the normal and prescribed manner of conducting a search, as disclosed by
the members of the raiding team themselves, the reliance by the trial court on the disputable presumption that
the police officers regularly performed their official duty was evidently misplaced.
The Affidavit of Orderly Search is not of any help in indicating the regularity of the search. Not having been
executed under oath, it is not actually an affidavit, but a pre-prepared form which the raiding team brought with
them. It was filled up after the search by team leader SPO1 Fernandez who then instructed appellant to sign it
as he did instruct Jack Go, Kagawad Manalo and Kagawad Lazaro to sign as witnesses.
More importantly, since the Affidavit of Orderly Search purports to have been executed by appellant, the same
cannot establish the propriety and validity of the search of his residence for he was admittedly not present when
the search took place, he having arrived only when it was almost through.
Q
And while your officers and the barangay kagawad were searching the house Mr. Benny Go is not yet
present in that house, am I right?
A

Yes, sir.

And you made to sign Benny Go in the inventory receipt when the search was already over, am I right?

He was already present when I was making the inventory. He arrived at around 9:30.

Yes, and the search was already finished, am I right?

Almost through.[96]

In fine, since appellant did not witness the search of his residence, his alleged Affidavit of Orderly Search,
prepared without the aid of counsel and by the very police officers who searched his residence and eventually
arrested him, provides no proof of the regularity and propriety of the search in question.
On the contrary, from the account of the police officers, their search of appellants residence failed to comply with
the mandatory provisions of Section 8 (formerly Section 7), Rule 126 of the Rules of Court, viz:
SEC. 8. Search of house, room, or premises, to be made in presence of two witnesses. No search of a house,
room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member
of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same
locality. (Underscoring supplied)
As pointed out earlier, the members of the raiding team categorically admitted that the search of the upper floor,
which allegedly resulted in the recovery of the plastic bag containing the shabu, did not take place in the
presence of either the lawful occupant of the premises, i.e. appellant (who was out), or his son Jack Go (who
was handcuffed to a chair on the ground floor). Such a procedure, whereby the witnesses prescribed by law are

prevented from actually observing and monitoring the search of the premises, violates both the spirit and letter of
the law:
Furthermore, the claim of the accused-appellant that the marijuana was planted is strengthened by the manner
in which the search was conducted by the police authorities. The accused-appellant was seated at the sala
together with Sgt. Yte when they heard someone in the kitchen uttered ito na. Apparently, the search of
the accused-appellants house was conducted in violation of Section 7, Rule 126 of the Rules of Court which
specifically provides that no search of a house, room or any other premise shall be made except in the
presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the
presence of two (2) witnesses of sufficient age and discretion residing in the same locality. This
requirement is mandatory to ensure regularity in the execution of the search warrant. Violation of said
rule is in fact punishable under Article 130 of the Revised Penal Code.
As we have ruled in Eduardo Quintero vs. The National Bureau of Investigation, et al. a procedure, wherein
members of a raiding party can roam around the raided premises unaccompanied by any witness, as the
only witnesses available as prescribed by law are made to witness a search conducted by the other
members of the raiding party in another part of the house, is violative of both the spirit and letter of the
law.[97] (Emphasis and underscoring supplied)
That the raiding party summoned two barangay kagawads to witness the search at the second floor is of no
moment. The Rules of Court clearly and explicitly establishes a hierarchy among the witnesses in whose
presence the search of the premises must be conducted. Thus, Section 8, Rule 126 provides that the search
should be witnessed by two witnesses of sufficient age and discretion residing in the same locality only in the
absence of either the lawful occupant of the premises or any member of his family. Thus, the search of
appellants residence clearly should have been witnessed by his son Jack Go who was present at the time. The
police officers were without discretion to substitute their choice of witnesses for those prescribed by the law.
The claim of SPO1 Fernandez and PO2 Abulencia that Jack Go voluntarily waived his right to witness the
search, allegedly because there would be no one left in the sala and anyway barangay officials were present,
cannot be accepted. To be valid, a waiver must be made voluntarily, knowingly and intelligently.[98]
Furthermore, the presumption is always against the waiver of a constitutionally protected right.[99]
While Jack Go was present from the time the raiding team entered the premises until after the search was
completed, he was, however, handcuffed to a chair in the sala. [100] All alone and confronted by five police
officers who had deprived him of his liberty, he cannot thus be considered to have voluntarily, knowingly and
intelligently waived his right to witness the search of the house. Consent given under such intimidating,
coercive circumstances is no consent within the purview of the constitutional guaranty.[101]
The search conducted by the police officers of appellants residence is essentially no different from that in
People v. Del Rosario[102] where this Court observed:
We thus entertain serious doubts that the shabu contained in a small canister was actually seized or
confiscated at the residence of accused-appellant. In consequence, the manner the police officers
conducted the subsequent and much-delayed search is highly irregular. Upon barging into the
residence of accused-appellant, the police officers found him lying down and they immediately arrested
and detained him in the living room while they searched the other parts of the house. Although they
fetched two persons to witness the search, the witnesses were called in only after the policemen had
already entered accused-appellants residence (pp. 22-23, tsn, December 11, 1991), and, therefore, the
policemen had more than ample time to plant the shabu. Corollary to the Constitutional precept that, in all
criminal prosecutions, the accused shall be presumed innocent until the contrary is proved (Sec. 14 (2), Article
III, Constitution of the Republic of the Philippines) is the rule that in order to convict an accused the
circumstances of the case must exclude all and each and every hypothesis consistent with his innocence
(People vs. Tanchoco, 76 Phil. 463 [1946]; People vs. Constante, 12 SCRA 653 [1964]; People vs. Jara, 144
SCRA 516 [1986]). The facts of the case do not rule out the hypothesis that accused-appellant is innocent.[103]
(Emphasis supplied)

The raiding teams departure from the procedure mandated by Section 8, Rule 126 of the Rules of Court, taken
together with the numerous other irregularities attending the search of appellants residence, tainted the search
with the vice of unreasonableness, thus compelling this Court to apply the exclusionary rule and declare the
seized articles inadmissible in evidence. This must necessarily be so since it is this Courts solemn duty to be
ever watchful for the constitutional rights of the people, and against any stealthy encroachments thereon.[104] In
the oft-quoted language of Judge Learned Hand:
As we understand it, the reason for the exclusion of evidence competent as such, which has been unlawfully
acquired, is that exclusion is the only practical way of enforcing the constitutional privilege. In earlier
times the action of trespass against the offending official may have been protection enough; but that is true no
longer. Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit
by their wrong, will that wrong be repressed.[105] (Emphasis supplied)
In all prosecutions for violation of The Dangerous Drugs Act, the existence of the dangerous drug is a condition
sine qua non for conviction since the dangerous drug is the very corpus delicti of the crime.[106] With the
exclusion of Exhibit A, the plastic bag containing the shabu allegedly recovered from appellants residence by
the raiding team, the decision of the trial court must necessarily be reversed and appellant acquitted.
What is more, a thorough evaluation of the testimonies and evidence given before the trial court fails to provide
the moral certainty necessary to sustain the conviction of appellant.
In particular, Barangay Kagawads Lazaro and Manalo, the two witnesses to the search chosen by the police
officers in substitution of Jack Go, both categorically testified under oath that no shabu was recovered from
appellants residence by the police. Thus, Kagawad Lazaro testified that the plastic bag containing white
crystalline granules, later found positive for shabu, was not recovered from the room of Jack Go:
Atty. Reyes:
You were shown a while ago by the prosecution of (sic) an Inventory Receipt allegedly prepared by
Officer Fernandez which includes the list of the items seized from the premises of Benny Go, now, you said that
theres no white crystalline granules included in that list which you signed during the inventory?
A

Yes, sir.

Can you recall what was the first item included in that list which you signed in the first page?

Chinese medicine, sir.

Q
Now, you also testified that you were with Officer Abulencia when you conducted the search inside the
room of Jack Go, now, did you recover anything from the room of Jack Go?
A

PO2 Abulencia recovered one small plastic in the drawer of Jack Go and Naphthalene balls, sir.
xxx

Atty. Reyes:
If that small plastic will be shown to you, will you be able to identify it?
A

Yes, sir.

Atty. Reyes:
I have here a plastic which contained yellowish powder. Could you go over this and tell us if this was the
one recovered from the room of Jack Go?

This is the one, sir.

Q
I have here another plastic containing white crystalline substance marked by the prosecution as
Exh. A. Will you tell us if this is also recovered from the room of Jack Go?
A

No, this was not recovered from the room of Jack Go, sir.

During the preparation of the inventory of the seized items, was this also included?

I did not see that, sir.[107] (Emphasis supplied)

Similarly, Kagawad Manalo testified that neither the plastic bag of shabu nor the weighing scale was among the
seized items inventoried by the raiding team:
Q
You said that you were present during the time when SPO1 Fernandez was preparing the inventory of all
the items taken from the premises of Benny Go, can you recall what are these items?
A
Yes sir, assorted Chinese medicines, assorted documents, papers, passports, stamp pad, bankbooks
and checks and it was placed in five (5) boxes and three (3) ladies bag.
Q

What about a weighing scale? Is there a weighing scale, Mr. Witness?

I did not see any weighing scale, sir.

How about drugs or shabu contained in a plastic pack?

I did not see any also.[108] (Emphasis supplied)

On rebuttal, SPO1 Fernandez alleged that the two barangay kagawads were lying when they claimed that no
shabu was recovered from appellants residence, and implied that they had been asked to falsify their
testimonies in court:
Pros. Rebagay:
Mr. witness, when Salvador Manalo testified before this Honorable Court when he was confronted with
Exh. B which is the inventory receipt the said witness denied that the first page of Exh. B" was genuine on the
fact that his signature and likewise [that of] his co-colleague did not appear on the first page of the said inventory
receipt, what can you say to that statement made by Salvador Manalo?
A
Well, it has not been our practice to let the witness sign on the first page of the 2-page inventory receipt
and with regards to the said inventory receipt that he signed on June 4, it is the same inventory receipt that I
prepared, sir.
xxx
Q
Likewise, Mr. witness, the said witness Salvador Manalo also denied that the shabu which is the
subject of this case has never been recovered by them, what can you say to that?
A

Well, its a lie, sir.

Why do you say that?

A
Because when the illegal drug was found by PO2 Abulencia, he was accompanied by Gaspar
Lazaro at that time. Then he called my attention and he also called the attention of SPO2 Serquea as

well as the attention of Mr. Salvador Manalo. When I went upstairs, they were already inside the said
room so the five of us saw the illegal drugs, sir.
xxx
Pros. Rebagay:
Mr. witness, when Salvador Manalo testified here on cross-examination, he mentioned that after the search of
the house of Benny Go, a certain investigator, a policeman pretended that he is making a follow-up with respect
to the search made by you and your team, will you please tell us if immediately after the incident or after the
investigation conducted by the City Prosecutors Office when you had an occasion to meet Salvador Manalo
after that?
A

Yes, sir.

And what happened to that meeting with Salvador Manalo after the preliminary investigation?

Witness:
Because during the preliminary investigation, we were surprised why our witness has taken side,
it is on the side of the accused Benny Go so I decided to pay him a visit that day after that confrontation
on June 23 and I asked him what happened, tinanong ko siya kung ano ang nangyari bakit mukhang
nakampi na siya roon sa kabila. Ang sagot niya sa akin ang sabi sa amin ni Atty. Galing kakausapin ka
rin niya. That is the exact words.
Atty. Reyes:
We will object to that for being hearsay. May we move that the latter portion be stricken off the record.
Court:
Let it remain
Pros. Rebagay:
And will you please tell us exactly when this incident occur (sic), Mr. witness?
A

That was after June 23, sir.

Where?

At his store in A. Linao Street, Paco, sir.

Q
And what was your response after you heard that answer from Salvador Manalo, if any, Mr.
witness?
Witness:
Siyempre nagtaka ako, bakit ganoon ibig sabihin implied baka nagka-aregluhan na, iyan ang
iniisip ko, sir.[109] (Emphasis supplied)
Regrettably, no further evidence, aside from the foregoing allegations and suspicions of SPO1 Fernandez, was
ever presented to substantiate the claim that the two kagawads had deliberately falsified their testimonies. On
the contrary, it appears that the police officers did not actively pursue their complaint for obstruction of justice

against the two kagawads with the Department of Justice. Moreover, to completely discount the testimonies of
kagawads Lazaro and Manalo would be tantamount to having no witnesses to the search of appellants
residence at all except the police officers themselves, a situation clearly contrary to the tenor and spirit of
Section 8 of Rule 126.
The prosecutions attempt to introduce the weighing scale, supposedly seized during the search, only casts more
doubt on its case. Said weighing scale was conspicuously absent from the enumeration of seized items in the
handwritten Inventory Receipt, the Return of the Search Warrant and the Affidavit of Arrest prepared by the
police officers. SPO1 Fernandezs claim that the omission was an honest mistake, to wit:
Pros. Rebagay
Q
Mr. Witness, a while ago you added another item which was not included in the inventory list and this
was the weighing scale. Please tell us, why is it only now that you are adding it to the list of those items that you
seized?
A
Well, with all honesty Your Honor, I cannot offer any alibi except to say that I committed an honest
mistake when I did not include that weighing scale in the inventory receipts.[110]
does not inspire credence. Neither does SPO1 Serqueas explanation:
Q

What was the search warrant all about? It commands you to search and seize what items?

Regarding drugs, drug paraphernalias and proceeds of the crime, sir.

Atty. Reyes:
What else?
A

Weighing scale, sir.

Q
Weighing scale is included in the search warrant. So the warrant specifically commands you to seize
drugs, drug paraphernalias and weighing scale?
A

Yes, sir.

Q
And you read this Affidavit of Arrest before you signed this. Did you notice that the weighing scale is not
included here?
A

Yes, sir. Now I noticed.

No, during the time that you signed this?

No, sir.

You did not notice that?

No, sir.

Q
As well as the time when Officer Fernandez was preparing this Inventory, you did not call his attention
that there are some items missing in that Inventory?
A

I did not call his attention. Honestly speaking (unfinished)

xxx
A
Honestly speaking, we confiscated so many evidence including papers, boxes, voluminous quantity of
evidence recovered and only one officer is conducting the Inventory. We cannot conduct Inventory two at a time
or three at a time, only one. Because maybe, you see, hes only one. Maybe he did not list it because of that so
many evidence confiscated.
Atty. Reyes:
But the weighing scale is not a small item, is that correct? Its a big item?
A

Yes, sir.

Do you want to tell us that you missed that item?

I was not the one who missed it, sir.

How about your Affidavit of Arrest?

Officer Fernandez prepared that Affidavit, sir.

So you are not the one who prepared this? You merely signed it?

I signed it in their presence, sir.[111]

The foregoing explanations are improbable and far from persuasive. Considering that a weighing scale was
among the items particularly described in Search Warrant No. 99-0038, it would be expected that the police
officers would be actively searching for it and, if found, they would take care to include it in the inventory and the
return of the search warrant. But while numerous seals, stamps, checks and documents not described in the
search warrant were seized and carefully inventoried by the raiding team, none of the five police officers
bothered to point out that the weighing scale had not been included in the inventory.
The implausibility of the story put forward by the police officers leads to no other conclusion than that the
weighing scale was introduced as an afterthought in order to bolster the case against appellant.
With the persistence of nagging doubts surrounding the alleged discovery and seizure of the shabu, it is evident
that the prosecution has failed to discharge its burden of proof and overcome the constitutional presumption of
innocence. It is thus not only the accuseds right to be freed; it is, even more, this Courts constitutional duty to
acquit him. [112] Apropos is the ruling in People v. Aminnudin,[113] viz:
The Court strongly supports the campaign of the government against drug addiction and commends the efforts
of our law enforcement officers against those who would inflict this malediction upon our people, especially the
susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of
the Bill of Rights for the protection of liberty of every individual in the realm, including the basest of criminals.
The Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of
high-handedness from the authorities, however praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in disregarding the right of the individual in the
name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said I think it is less
evil that some criminals should escape than that the government should play an ignoble part. It is simply not
allowed in the free society to violate a law to enforce another, especially if the law violated is the Constitution
itself. [114]
Return of Seized Property Not Described in the Search Warrant

Turning now to the Motion for Return of Personal Documents, Vehicle and Paraphernalia, the general rule is that
only the personal properties particularly described in the search warrant may be seized by the authorities. Thus,
in Tambasen v. People,[115] this Court held:
Moreover, by their seizure of articles not described in the search warrant, the police acted beyond the
parameters of their authority under the search warrant. Section 2, Article III of the 1987 Constitution requires
that a search warrant should particularly describe the things to be seized. The evident purpose and intent of
the requirement is to limit the things to be seized to those, and only those, particularly described in the
search warrant to leave the officers of the law with no discretion regarding what articles they should
seize, to the end that unreasonable searches and seizures may not be made and that abuses may not be
committed (Corro v. Lising, 137 SCRA 541, 547 [1985]; Bache & Co. [Phil.], Inc. v. Ruiz, 37 SCRA 823 [1971];
Uy Kheytin v. Villareal, 42 Phil. 886 [1920]).[116] (Emphasis supplied)
There are, however, several well-recognized exceptions to the foregoing rule. Thus, evidence obtained through
a warrantless search and seizure may be admissible under the following circumstances: (1) search incident to a
lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of customs laws; (4) seizure of
evidence in plain view; and (5) when the accused himself waives his right against unreasonable searches and
seizures.[117]
To be valid, therefore, the seizure of the items enumerated in appellants Motion for Return of Personal
Documents, Vehicle and Paraphernalia must fall within the ambit of Search Warrant No. 99-0038 or under any of
the foregoing recognized exceptions to the search warrant requirement.
In this regard, the raiding team sought to justify the seizure of the car, the Fifty Two Thousand Seven Hundred
Sixty Pesos (P52,760.00) in different denominations, and the Twenty Five Thousand Chinese Yuan
(CY25,000.00) as either proceeds of the offense or means of committing an offense within the purview of the
warrant. Thus PO2 Abulencia testified:
Q

And how about the money, Mr. witness? Why did you confiscate the money?

Its considered as proceed of the crime, sir.

Q
How about the vehicle, Mr. witness? Why did you took (sic) custody of the vehicle when it was not listed
in the search warrant?
A

This is part and parcel of the evidence, sir. Because its being used in transporting drugs, sir.[118]

Similarly, with respect to the car, SPO1 Fernandez stated:


Q
This vehicle, Toyota Corolla GLI with Plate No. PNU-TT-658, where was it during the time that you. . .
(unfinished)
A

It was parked in front of the house of Benny Go.

And you seized it?

Yes, sir.

Why?

Because during the surveillance operation we saw some known pusher riding in that car?

Who are these drug pushers?

One of those guys is Mr. Peter Co, also a subject of our investigation.

Q
Which (sic) you released after the arrest, after he was invited for investigation in your office on June 14,
1999?
A

Yes, sir.[119]

The foregoing rationalizations are unacceptable. Admittedly, neither the money nor the car was particularly
described in the search warrant. In seizing the said items then, the police officers were exercising their own
discretion and determining for themselves which items in appellants residence they believed were proceeds of
the crime or means of committing the offense. This is absolutely impermissible. It bears reiterating that the
purpose of the constitutional requirement that the articles to be seized be particularly described in the warrant is
to limit the things to be seized to those, and only those, particularly described in the search warrant to leave
the officers of the law with no discretion regarding what articles they should seize. A search warrant is not a
sweeping authority empowering a raiding party to undertake a fishing expedition to seize and confiscate any and
all kinds of evidence or articles relating to a crime. [120]
At the same time, the raiding team characterized the seizure of the assorted documents, passports, bankbooks,
checks, check writer, typewriter, dry seals and stamp pads as seizure of evidence in plain view. [121]
Under the plain view doctrine, objects falling in the plain view of an officer who has a right to be in the position
to have that view are subject to seizure and may be presented as evidence.[122] This Court had the opportunity
to summarize the rules governing plain view searches in the recent case of People v. Doria, supra, to wit:
The plain view doctrine applies when the following requisites concur: (a) the law enforcement officer in search
of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular
area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer
that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. The law
enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can
particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of
evidence incriminating the accused. The object must be open to eye and hand and its discovery inadvertent.
(Underscoring supplied; citations omitted)[123]
Measured against the foregoing standards, it is readily apparent that the seizure of the passports, bankbooks,
checks, typewriter, check writer, dry seals and stamp pads and other assorted documents does not fall within the
plain view exception. The assertions of the police officers that said objects were inadvertently seized within
their plain view are mere legal conclusions which are not supported by any clear narration of the factual
circumstances leading to their discovery. PO2 Abulencia could not even accurately describe how the raiding
team came across these items:
Q

This Box A marked as Exhibit G, in what part of the room did you recover this?

A
We recovered all the evidence within our plain view, sir. The evidence were scattered in his house. I
cannot remember whether Box A or Box B, but all the evidence were within our plain view thats why we
confiscated them, sir.
Q

What do you mean by plain view?

Nakikita namin, sir. Yung kitang-kita namin.

Where in the premises of Benny Go did you see all these documents?

Ground floor and upstairs but mostly in the ground floor, on the table and on the floor, sir.

Atty. Reyes:
This Box A marked as Exh. G contains what documents again?

Can I see my notes, sir?

Atty. Reyes:
Go ahead.
A
Box A contains different bundle of pieces of document, NBI and BI clearances, Application of Chinese
National, different papers, sir.
Q

Can you remember where in particular did you recover these documents?

I cannot remember, sir.

All of these documents were recovered primarily on the ground floor and on the second floor?

Yes, sir.

Where in particular at the second floor, there are three to four rooms there?

A
Sir, nandoon sa mesa lahat iyan eh don sa taas rin may mesa din doon at saka doon naming nakuha
ang ibang mga dokumento.
Q

Is (sic) that room belongs (sic) to Jack Go?

I dont know, sir, but all these (sic) evidence were recovered from the house of Benny Go.[124]

SPO1 Fernandezs account of how he came across the dry seals, rubber stamps and papers is just as opaque:
Q

For how long have you been inside the house of Benny Go when you noticed these dry seals?

I think more than an hour, I dont exactly remember the time.

Q
But during the time you have not yet noticed the documents which you brought to this Court, what call
(sic) your attention was these dry seals first?
A
Well, actually the dry seals and the rubber stamps were all placed atop the table and as well as the
documents because the box where the documents were placed are half opened. They are opened actually
thats why I saw them.
Q

So, you first saw the rubber stamps and the dry seals, is that correct? Because they are atop the table?

Yes, sir.

And then later on you also saw the documents?

Yes, sir its beside the table.

Contained in a box half opened?

Yes, sir.

Which did you touch first, the rubber stamps, the dry seals or the documents?

A
I did not touch anything, I only inventoried that when the searching team were through with what they
are doing. Now, all the evidence were placed atop the dining table, located also at the sala of the house or at
the dining area. Then, thats when I asked some of my co-members to place all those document and the other
confiscated items atop the table also.[125]
The foregoing testimonies are clearly evasive and do not establish how the police officers became aware of the
seized items which were allegedly within their plain view.
Finally, it appears from the testimony of SPO1 Fernandez that the supposed illegal character of the items
claimed to have been seized within the plain view of the policemen was not readily and immediately apparent.
Rather, the suspicions of the policemen appear to have been aroused by the presence of the numerous
passports and immigration documents which they discovered in the course of their search. After they confirmed
that appellant was not operating a travel agency, they concluded that his possession of said documents and
passports was illegal even though they could not identify the alleged law supposedly violated.[126]
To be sure, the policemen also filed a complaint against appellant for alleged possession of instruments or
implements intended for the commission of falsification under paragraph 2 of Article 176 of the Revised Penal
Code on the basis of dry seals and rubber stamps also found in appellants residence.[127]
However, the illegal character of said dry seals and stamp pads cannot be said to have been immediately
apparent. For SPO1 Fernandez had to first make an impression of the dry seal on paper before he could
determine that it purported to be the seal of the Bureau of Immigration and Deportation. [128] The counterfeit
nature of the seals and stamps was in fact not established until after they had been turned over to the Chinese
embassy and Bureau of Immigration and Deportation for verification. It is, therefore, incredible that SPO1
Fernandez could make such determination from a plain view of the items from his vantage point in the sala.
In sum, the circumstances attendant to the case at bar do not warrant the application of the plain view doctrine
to justify the seizure and retention of the questioned seized items. The things belonging to appellant not
specifically mentioned in the warrants, like those not particularly described, must thus be ordered returned to
him.[129]
Be that as it may, considering that the two (2) dry seals and eight (8) of the rubber stamps have been certified to
be counterfeit by the Bureau of Immigration and Deportation,[130] they may not be returned and are hereby
declared confiscated in favor of the State to be disposed of according to law.[131] Moreover, the various
bankbooks and passports not belonging to appellant may not be ordered returned in the instant proceedings.
The legality of a seizure can be contested only by the party whose rights have been impaired thereby, and the
objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties.[132]
WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 41, convicting appellant Benny Go of
violation of Section 16, Article III in relation to Section 2 (e-2) Article I of Republic Act No. 6425, as amended, is
REVERSED and SET ASIDE.
Appellant Benny Go is ACQUITTED of the crime charged and is hereby ordered immediately RELEASED from
confinement, unless he is lawfully held in custody for another cause.
The Director of the Bureau of Corrections is ORDERED to forthwith IMPLEMENT this Decision and to INFORM
this Court, within ten (10) days from receipt hereof, of the date appellant was actually released from
confinement.
Appellants Motion For Return of Personal Documents, Vehicle and Paraphernalia is GRANTED IN PART, and
the trial court is hereby ordered to return to him those items seized from the subject premises which belong to
him as listed in said Motion.
The subject shabu is ORDERED forfeited in favor of the State and the trial court is hereby directed to deliver
and/or cause its delivery to the Dangerous Drugs Board for proper disposition.

The two (2) dry seals and eight (8) of the rubber stamps certified to be counterfeit by the Bureau of Immigration
and Deportation are likewise ORDERED forfeited in favor of the State for proper disposition.
SO ORDERED.

[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.
DECISION
TINGA, J.:
. 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.
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 Soliers 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 Tudtuds 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 Tudtuds 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 Tudtuds 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.
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 Levis
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 Levis 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 cousins 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 prosecutions 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 vehicles 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 Courts 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 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;
.
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 Peoples 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 appellants wife.
At the time of the appellants 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 accuseds
constitutional rights against unreasonable searches and seizures.
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 informer pointed to him
as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the
furtive finger that triggered his arrest. The identification by the informer was the probable cause as determined
by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him.[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 ones abdomen,[79] or of standing on a
corner with ones eyes moving very fast, looking at every person who came near,[80] does not justify a
warrantless arrest under said Section 5 (a). Neither does putting something in ones pocket,[81] handing over
ones 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 accuseds 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
latters 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 appellants 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 drugs. 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 majoritys 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.
.
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 majoritys ruling would open loopholes that would
allow unreasonable arrests, searches and seizures.[101]
Montilla would shortly find mention in Justice Panganibans 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 coaccused. PO3 Manlangit, however, declared in his direct examination that appellant Doria named his coaccused in response to his (PO3 Manlangits) 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 coaccused in pushing drugs. Appellant Doria may have left the money in her house, with or without any conspiracy.
Save for accused-appellant Dorias word, the Narcom agents had no showing that the person who affected the
warantless 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 Punos 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.
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?

His friends were the once who told me about it.

For how long have you know [sic] this fact of alleged activity of Tudtud in proliferation of marijuana?

About a month.

.
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?
.
A

Because of the information of his neighbor.[107]

In other words, Soliers information itself is hearsay. He did not even elaborate on how his neighbors or Tudtuds
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 reliablility of their informant. He testified on crossexamination:
Q

You mean to say that Bobot Solier, is not reliable?

He is trustworthy.

Why [did] you not consider his information not reliable if he is reliable?

(witness did not answer).

ATTY. CAETE:
Never mind, do not answer anymore. Thats 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
latters 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 Desiertos assertions of lack of time[110] notwithstanding. Records show that the police had ample
opportunity to apply for a warrant, having received Soliers 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 Courts
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 Floretas 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 Floretas 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.

Why?

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.

.
Q

And Bobot Solier told you that Tudtud, that he would already bring marijuana?

Yes, sir.

And this was 9:00 a.m.?

Yes, sir.

The arrival of Tudtud was expected at 6:00 p.m.?

Yes, sir.

Toril is just 16 kilometers from Davao City?

Yes, sir.

And the Office of the Regional Trial Court is only about 16 kilometers, is that correct?

Yes, sir.

And it can be negotiated by thirty minutes by a jeep ride?

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?

They help.

But you did not come to Davao City, to asked [sic] for a search warrant?

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 officers
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.
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 officers 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.[117] [Underscoring 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.

How did he point it at you?

Like this (Witness demonstrating as if pointing with his two arms holding something towards somebody).

This man[,] what did he tell you when he pointed a gun at you?

He said do not run.

What did you do?

I raised my hands and said Sir, what is this about?

Why did you call him Sir?

I was afraid because when somebody is holding a gun, I am afraid.

Precisely, why did you address him as Sir?

Because he was holding a gun and I believed that somebody who is carrying a gun is a policeman.

When you asked him what is this? What did he say?

He said I would like to inspect what you are carrying.[]

What did you say when you were asked to open that carton box?

I told him that is not mine.

What did this man say?

He again pointed to me his revolver and again said to open.

What did you do?

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.
SO ORDERED.

[G.R. No. 138881. December 18, 2000]


THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.LEILA JOHNSON Y REYES, accused-appellant.
DECISION

MENDOZA, J.:
This is an appeal from the decision,[1] dated May 14, 1999, of the Regional Trial Court, Branch 110, Pasay City,
finding accused-appellant Leila Johnson y Reyes guilty of violation of 16 of R.A. No. 6425 (Dangerous Drugs
Act), as amended by R.A. No. 7659, and sentencing her to suffer the penalty of reclusion perpetua and to pay a
fine of P500,000.00 and the costs of the suit.
The information against accused-appellant alleged:
That on June 26, 1998 inside the Ninoy Aquino International Airport, and within the jurisdiction of this Honorable
Court, the above-named Accused did then and there willfully, unlawfully and feloniously possess three plastic
bags of methamphetamine hydrochloride, a regulated drug, each bag weighing:
#1 ONE HUNDRED EIGHTY SEVEN POINT FIVE (187.5) grams;
#2 ONE HUNDRED NINETY EIGHT POINT ZERO (198.0) grams; and
#3 ONE HUNDRED NINETY FOUR POINT SEVEN (194.7) grams, respectively,
or a total of FIVE HUNDRED EIGHTY POINT TWO (580.2) grams of methamphetamine hydrochloride.
That the above-named accused does not have the corresponding
license or prescription to possess or use said regulated drug.
CONTRARY TO LAW.[2]
Upon being arraigned, accused-appellant pleaded not guilty,[3] whereupon trial was held.
The prosecution presented four witnesses, namely, NBI Forensic Chemist George de Lara, SPO4 Reynaldo
Embile, duty frisker Olivia Ramirez, and SPO1 Rizalina Bernal. The defense presented accused-appellant who
testified in her own behalf.
The facts are as follows:
Accused-appellant Leila Reyes Johnson was, at the time of the incident, 58 years old, a widow, and a resident of
Ocean Side, California, U.S.A. She is a former Filipino citizen who was naturalized as an American on June 16,
1968 and had since been working as a registered nurse, taking care of geriatric patients and those with
Alzheimers disease, in convalescent homes in the United States.[4]
On June 16, 1998, she arrived in the Philippines to visit her sons family in Calamba, Laguna. She was due to fly
back to the United States on July 26. On July 25, she checked in at the Philippine Village Hotel to avoid the
traffic on the way to the Ninoy Aquino International Airport (NAIA) and checked out at 5:30 p.m. the next day,
June 26, 1998.[5]
At around 7:30 p.m. of that day, Olivia Ramirez was on duty as a lady frisker at Gate 16 of the NAIA departure
area. Her duty was to frisk departing passengers, employees, and crew and check for weapons, bombs,
prohibited drugs, contraband goods, and explosives.[6]
When she frisked accused-appellant Leila Johnson, a departing passenger bound for the United States via
Continental Airlines CS-912, she felt something hard on the latters abdominal area. Upon inquiry, Mrs. Johnson
explained she needed to wear two panty girdles as she had just undergone an operation as a result of an ectopic
pregnancy.[7]

Not satisfied with the explanation, Ramirez reported the matter to her superior, SPO4 Reynaldo Embile, saying
Sir, hindi po ako naniniwalang panty lang po iyon. (Sir, I do not believe that it is just a panty.) She was
directed to take accused-appellant to the nearest womens room for inspection. Ramirez took accused-appellant
to the rest room, accompanied by SPO1 Rizalina Bernal. Embile stayed outside.[8]
Inside the womens room, accused-appellant was asked again by Ramirez what the hard object on her stomach
was and accused-appellant gave the same answer she had previously given. Ramirez then asked her to bring
out the thing under her girdle. Accused-appellant brought out three plastic packs, which Ramirez then turned
over to Embile, outside the womens room.[9]
The confiscated packs, marked as Exhibits C-1, C-2 and C-3, contained a total of 580.2 grams of a substance
which was found by NBI Chemist George de Lara to be methamphetamine hydrochloride or shabu.[10]
Embile took accused-appellant and the plastic packs to the 1st Regional Aviation and Security Office (1st RASO)
at the arrival area of the NAIA, where accused-appellants passport and ticket were taken and her luggage
opened. Pictures were taken and her personal belongings were itemized.[11]
In her defense, accused-appellant alleged that she was standing in line at the last boarding gate when she was
approached by Embile and two female officers. She claimed she was handcuffed and taken to the womens
room. There, she was asked to undress and was then subjected to a body search. She insisted that nothing
was found on her person. She was later taken to a room filled with boxes, garbage, and a chair. Her passport
and her purse containing $850.00 and some change were taken from her, for which no receipt was issued to her.
After two hours, she said, she was transferred to the office of a certain Col. Castillo.[12]
After another two hours, Col. Castillo and about eight security guards came in and threw two white packages on
the table. They told her to admit that the packages were hers. But she denied knowledge and ownership of the
packages. She was detained at the 1st RASO office until noon of June 28, 1999 when she was taken before a
fiscal for inquest.[13] She claimed that throughout the period of her detention, from the night of June 26 until
June 28, she was never allowed to talk to counsel nor was she allowed to call the U.S. Embassy or any of her
relatives in the Philippines.[14]
On May 14, 1999, the trial court rendered a decision, the dispositive portion of which reads:[15]
WHEREFORE, judgment is hereby rendered finding the accused LEILA JOHNSON Y REYES, GUILTY beyond
reasonable doubt of the offense of Violation of Section 16 of Republic Act 6425 as amended and hereby
imposes on her the penalty of RECLUSION PERPETUA and condemns said accused to pay a fine of FIVE
HUNDRED THOUSAND PESOS (P500,000.00) without subsidiary imprisonment in case of insolvency and to
pay the costs of suit.
The Methamphetamine Hydrochloride (shabu) having a total net weight of 580.2 grams (Exhibits G, C-2 and
C-3) are hereby confiscated in favor of the government and the Branch Clerk of Court is hereby ordered to
cause the transportation thereof to the Dangerous Drugs Board for disposition in accordance with law.
The accused shall be credited in full for the period of her detention at the City Jail of Pasay City during the
pendency of this case provided that she agreed in writing to abide by and comply strictly with the rules and
regulations of the City Jail.
SO ORDERED.
Accused-appellant contends that the trial court convicted her: (1) despite failure of the prosecution in proving
the negative allegation in the information; (2) despite failure of the prosecution in proving the quantity of
methamphetamine hydrochloride; (3) despite violation of her constitutional rights; and (4) when guilt was not
proven beyond reasonable doubt.[16]
First. Accused-appellant claims that she was arrested and detained in gross violation of her constitutional rights.
She argues that the shabu confiscated from her is inadmissible against her because she was forced to affix her

signature on the plastic bags while she was detained at the 1 st RASO office, without the assistance of counsel
and without having been informed of her constitutional rights. Hence, she argues, the methamphetamine
hydrochloride, or shabu, should have been excluded from the evidence.[17]
The contention has no merit. No statement, if any, was taken from accused-appellant during her detention and
used in evidence against her. There is, therefore, no basis for accused-appellants invocation of Art. III, 12(1)
and (3). On the other hand, what is involved in this case is an arrest in flagrante delicto pursuant to a valid
search made on her person.
The trial court held:
The constitutional right of the accused was not violated as she was never placed under custodial investigation
but was validly arrested without warrant pursuant to the provisions of Section 5, Rule 113 of the 1985 Rules of
Criminal Procedure which provides:
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
(Underscoring supplied)
xxxx
A custodial investigation has been defined in People. v. Ayson 175 SCRA 230 as the questioning initiated by law
enforcement officers after a person has been taken [in] custody or otherwise deprived of his freedom in any
significant way. This presupposes that he is suspected of having committed an offense and that the investigator
is trying to elicit information or [a] confession from him."
The circumstances surrounding the arrest of the accused above falls in either paragraph (a) or (b) of the Rule
above cited, hence the allegation that she has been subjected to custodial investigation is far from being
accurate.[18]
The methamphetamine hydrochloride seized from her during the routine frisk at the airport was acquired
legitimately pursuant to airport security procedures.
Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the
public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to
recognize as reasonable.[19] Such recognition is implicit in airport security procedures. With increased concern
over airplane hijacking and terrorism has come increased security at the nations airports. Passengers
attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked
luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious
objects, physical searches are conducted to determine what the objects are. There is little question that such
searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the
reduced privacy expectations associated with airline travel.[20] Indeed, travelers are often notified through
airport public address systems, signs, and notices in their airline tickets that they are subject to search and, if
any prohibited materials or substances are found, such would be subject to seizure. These announcements
place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do
not apply to routine airport procedures.
The packs of methamphetamine hydrochloride having thus been obtained through a valid warrantless search,
they are admissible in evidence against the accused-appellant herein. Corollarily, her subsequent arrest,

although likewise without warrant, was justified since it was effected upon the discovery and recovery of shabu
in her person in flagrante delicto.
Anent her allegation that her signature on the said packs (Exhibits C-1, C-2 and C-3 herein) had been obtained
while she was in the custody of the airport authorities without the assistance of counsel, the Solicitor General
correctly points out that nowhere in the records is it indicated that accused-appellant was required to affix her
signature to the packs. In fact, only the signatures of Embile and Ramirez thereon, along with their testimony to
that effect, were presented by the prosecution in proving its case.
There is, however, no justification for the confiscation of accused-appellants passport, airline ticket, luggage,
and other personal effects. The pictures taken during that time are also inadmissible, as are the girdle taken
from her, and her signature thereon. Rule 126, 2 of the Revised Rules of Criminal Procedure authorizes the
search and seizure only of the following:
Personal property to be seized. A search warrant may be issued for the search and seizure of personal
property:
(a)

Subject of the offense;

(b)

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

(c)

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

Accordingly, the above items seized from accused-appellant should be returned to her.
Second. Accused-appellant argues that the prosecution failed to fully ascertain the quantity of
methamphetamine hydrochloride to justify the imposition of the penalty of reclusion perpetua.
Section 20 of R.A. No. 6425, as amended by R.A. No. 7659, states:
Section 20 - Application Of Penalties, Confiscation And Forfeiture Of The Proceeds or Instrument Of The Crime
The penalties for offenses under Section 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article
III of this Act, shall be applied if the dangerous drugs involved is in any of the following quantities:
1.

40 grams or more of opium;

2.

40 grams or more of morphine;

3.

200 grams or more of shabu, or methylamphetamine hydrochloride;

4.

40 grams or more of heroin;

5.

750 grams or more of indian hemp of marijuana;

6.

50 grams of marijuana resin or marijuana resin oil;

7.

40 grams or more of cocaine or cocaine hydrochloride; or

8.
In case of other dangerous drugs, the quantity of which is far beyond therapeutic requirements as
determined and promulgated by the Dangerous Drugs Board, after public consultation/hearings conducted for
the purpose.
Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision
correccional to reclusion perpetua depending upon the quantity.

Under this provision, accused-appellant therefore stands to suffer the penalty of reclusion perpetua to death for
her possession of 580.2 grams of shabu.
Accused-appellant attempts to distinguish between a quantitative and a qualitative examination of the substance
contained in Exhibits C-1, C-2 and C-3. She argues that the examination conducted by the NBI forensic chemist
was a qualitative one which merely yielded positive findings for shabu, but failed to establish its purity; hence, its
exact quantity remains indeterminate and unproved.
This contention is likewise without merit.
The expert witness, George De Lara, stated that the tests conducted would have indicated the presence of
impurities if there were any. He testified:
PROS. VELASCO
By mixing it twice, Mr. Witness, if there are any adulterants or impurities, it will be
discovered by just mixing it?
WITNESS
examination.

If some drugs or additives were present, it will appear in a thin layer chromatographic

PROS. VELASCO

Did other drugs or other additives appear Mr. Witness?

WITNESS
In my thin layer chromatographic plate, it only appears one spot which resembles or the same
as the Methamphetamine Hydrochloride sample
....
PROS. VELASCO
So, Mr. Witness, if there are any adulterants present in the chemicals you have
examined, in chemical examination, what color it will register, if any?
WITNESS
In sample, it contained a potassium aluminum sulfate, it will not react with the reagent, therefore
it will not dissolve. In my examination, all the specimens reacted on the re-agents, sir.
PROS. VELASCO
WITNESS

And what is potassium aluminum sulfate in laymans term?

It is only a tawas.

....
COURTIn this particular case, did you find any aluminum sulfate or tawas in the specimen?
WITNESS

None, your Honor.

....
ATTY. AGOOT I will cite an example, supposing ten grams of Methamphetamine Hydrochloride is mixed with
200 grams of tawas, you will submit that to qualitative examination, what will be your findings, negative or
positive, Mr. Witness?
WITNESS

It will give a positive result for Methamphetamine Hydrochloride.

ATTY. AGOOT That is qualitative examination.


WITNESS

And also positive for aluminum sulfate.[21]

A qualitative determination relates to the identity of the material, whereas a quantitative analysis requires the
determination of the percentage combination of the components of a mixture. Hence, a qualitative identification
of a powder may reveal the presence of heroin and quinine, for instance, whereas a quantitative analysis may
conclude the presence of 10 percent heroin and 90 percent quinine.[22]
De Lara testified that he used a chromatography test to determine the contents of Exhibits C-1, C-2 and C-3.
Chromatography is a means of separating and tentatively identifying the components of a mixture. It is
particularly useful for analyzing the multicomponent specimens that are frequently received in a crime lab. For
example, illicit drugs sold on the street may be diluted with practically any material that is at the disposal of the
drug dealer to increase the quantity of the product that is made available to prospective customers. Hence, the
task of identifying an illicit drug preparation would be an arduous one without the aid of chromatographic
methods to first separate the mixture into its components.[23]
The testimony of De Lara established not only that the tests were thorough, but also that the scientifically correct
method of obtaining an accurate representative sample had been obtained.[24] At any rate, as the SolicitorGeneral has pointed out, if accused-appellant was not satisfied with the results, it would have been a simple
matter for her to ask for an independent examination of the substance by another chemist. This she did not do.
Third. Accused-appellant argues that the prosecution failed to prove the negative allegation in the information
that she did not have a license to possess or use methamphetamine hydrochloride or shabu.
Art. III of Republic Act No. 6425, as amended by Republic Act No. 7659 provides:
SEC. 16. Possession or Use of Regulated 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 shall
possess or use any regulated drug without the corresponding license or prescription, subject to the provisions of
Section 20 hereof.
Accused-appellant claims that possession or use of methamphetamine hydrochloride or shabu,a regulated
drug, is not unlawful unless the possessor or user does not have the required license or prescription. She points
out that since the prosecution failed to present any certification that she is not authorized to possess or use
regulated drugs, it therefore falls short of the quantum of proof needed to sustain a conviction.
The contention has no merit.
The question raised in this case is similar to that raised in United States v. Chan Toco.[25] The accused in that
case was charged with smoking opium without being duly registered. He demurred to the information on the
ground that it failed to allege that the use of opium had not been prescribed as a medicine by a duly licensed and
practicing physician.
This Court denied the motion and said:
The evident interest and purpose of the statute is to prohibit and to penalize generally the smoking of opium in
these Islands. But the legislator desired to withdraw from the operation of the statute a limited class of smokers
who smoked under the advice and by prescription of a licensed and practicing physician . . . . Hence where one
is charged with a violation of the general provisions of the Opium Law, it is more logical as well as more
practical and convenient, if he did in fact smoke opium under the advice of a physician, that he should set up this
fact by way of defense, than that the prosecution should be called upon to prove that every smoker, charged with
a violation of the law, does so without such advice or prescription. Indeed, when it is considered that under the
law any person may, in case of need and at any time, procure the advice of a physician to use opium or some of
its derivatives, and that in the nature of things no public record of prescriptions of this kind is or can be required
to be kept, it is manifest that it would be wholly impracticable and absurd to impose on the prosecution the
burden of alleging and proving the fact that one using opium does so without the advice of a physician. To prove
beyond a reasonable doubt, in a particular case, that one using opium does so without the advice or prescription
of a physician would be in most cases a practical impossibility without the aid of the defendant himself, while a
defendant charged with the illegal use of opium should find little difficulty in establishing the fact that he used it

under the advice and on the prescription of a physician, if in fact he did so.[26]
An accused person sometimes owes a duty to himself if not to the State. If he does not perform that duty he
may not always expect the State to perform it for him. If he fails to meet the obligation which he owes to himself,
when to meet it is an easy thing for him to do, he has no one but himself to blame.
Moreover, as correctly pointed out by the Solicitor General, there is nothing in R.A. No. 6425 or the Dangerous
Drugs Act, as amended, which requires the prosecution to present a certification that accused-appellant has no
license or permit to possess shabu. Mere possession of the prohibited substance is a crime per se and the
burden of proof is upon accused-appellant to show that she has a license or permit under the law to possess the
prohibited drug.
Fourth. Lastly, accused-appellant contends that the evidence presented by the prosecution is not sufficient to
support a finding that she is guilty of the crime charged.
This contention must likewise be rejected.
Credence was properly accorded to the testimonies of the 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 arresting accused-appellant. This Court accords great respect to the findings of the trial court
on the matter of credibility of the witnesses in the absence of any palpable error or arbitrariness in its findings.
[27]
It is noteworthy that, aside from the denial of accused-appellant, no other witness was presented in her behalf.
Her denial cannot prevail over the positive testimonies of the prosecution witnesses.[28] As has been held,
denial as a rule is a weak form of defense, particularly when it is not substantiated by clear and convincing
evidence. The defense of denial or frame-up, like 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 prosecutions for violation
of the Dangerous Drugs Act.[29]
The Court is convinced that the requirements of the law in order that a person may be validly charged with and
convicted of illegal possession of a dangerous drug in violation of R.A. No. 6425, as amended, have been
complied with by the prosecution in this case. The decision of the trial court must accordingly be upheld.
As regards the fine imposed by the trial court, it has been held that courts may fix any amount within the limits
established by law.[30] Considering that five hundred eighty point two (580.2) grams of shabu were confiscated
from accused-appellant, the fine imposed by the trial court may properly be reduced to P50,000.00.
WHEREFORE, the decision of the Regional Trial Court of Pasay City, Branch 110, finding accused-appellant
guilty of violation of 16 of R.A. No. 6425, as amended, and imposing upon her the penalty of reclusion perpetua
is hereby AFFIRMED with the MODIFICATION that the fine imposed on accused-appellant is reduced to
P50,000.00. Costs against appellant.
The passport, airline ticket, luggage, girdle and other personal effects not yet returned to the accused-appellant
are hereby ordered returned to her.
SO ORDERED.

G.R. Nos. 119772-73 February 7, 1997


PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NIGEL RICHARD GATWARD, and U AUNG WIN, accused.

NIGEL RICHARD GATWARD, accused-appellant.

REGALADO, J.:
The accession into our statute books on December 31, 1993 of Republic Act No. 7659, 1 which authorized the reimposition of the death penalty and amended certain provisions of the Revised Penal Code and the Dangerous
Drugs Act of 1972, raised the level of expectations in the drive against criminality. As was to be expected,
however, some innovations therein needed the intervention of this Court for a judicial interpretation of
amendments introduced to the dangerous drugs law. 2
The same spin-off of novelty, this time by the new provision fixing the duration of reclusion perpetua which
theretofore had not been spelled out with specificity in the Revised Penal Code, produced some conflicting
constructions, more specifically on whether such penalty is divisible or indivisible in nature. That is actually the
major issue in these cases, the factual scenario and the culpability of both accused having been relegated to
secondary importance for lack of any controversial features.
The antecedents being undisputed, and with a careful review and assessment of the records of this case having
sustained the same, we reproduce hereunder the pertinent parts of the decision of the trial court jointly deciding
the criminal cases separately filed against each of the accused. Although only one of them, Nigel Richard
Gatward, has appealed his conviction to us, for reasons hereinafter explained we shall likewise include the
disposition by the court a quo of the case against U Aung Win.
1. The lower court stated the cases against the accused, the proceedings therein and its findings thereon, as
follows:
In Criminal Case No. 94-6268, the accused is charged with violating Section 4 of Republic Act
No. 6425, the Dangerous Drugs Act of 1972, allegedly in this manner:
"That on or about the 31st (sic) day of August 1994, in the
vicinity of the Ninoy Aquino International Airport, Pasay
City, . . ., the above-named accused not being authorized by
law, did then and there wilfully, unlawfully and feloniously
transport heroin (2605.70 grams and 2632.0 grams) contained
in separate carton envelopes with a total weight of 5237.70
grams which is legally considered as a prohibited drug."
(Information dated Sept. 14, 1994)
In Criminal Case No. 94-6269, the accused is indicted for transgressing Section 3 of the
Dangerous Drugs Act of 1972, purportedly in this way:
"That on or about the 30th day of August 1994, at the arrival area of Ninoy
Aquino International Airport, Pasay City, x x x, the above-named accused not
being authorized by law, did, then and there wilfully, unlawfully and feloniously
import and bring into the Philippines 5579.80 grams of heroin which is legally
considered as a prohibited drug." (Information also dated Sept. 14, 1994)
Accused Nigel Richard Gatward in Criminal Case No. 94-6268 pleaded not guilty of the charge
when arraigned.
On the other hand, accused U Aung Win in Criminal Case No. 94-6269, assisted by Atty. Willy
Chan of the Public Attorney's Office of the Department of Justice, entered a plea of guilty of the
crime charged upon his arraignment. Since it is a capital offense, the Court asked searching
questions to determine the voluntariness and the full comprehension by the accused of the
consequences of his plea. The accused manifested that he was entering a plea of guilty

voluntarily without having been forced or intimidated into doing it. The nature of the charge was
explained to him, with emphasis that the offense carries with it the penalty of reclusion perpetua
to death and his pleading guilty of it might subject him to the penalty of death. The accused
answered that he understood fully the charge against him and the consequences of his entering
a plea of guilty. The defense counsel likewise made an assurance in open court that he had
explained to U Aung Win the nature of the charge and the consequences of his pleading guilty of
it.
Having been thus apprised, the accused still maintained his plea of guilty of the offense charged
against him. Since the offense admitted by him is punishable by death, the case was still set for
trial for the reception of the evidence of the prosecution to prove the guilt and the degree of
culpability of the accused and that of the defense to establish mitigating circumstances.
Upon motion of the prosecution without any objection from te defense, these two cases were
consolidated and tried jointly, since the offenses charged arose from a series of related incidents
and the prosecution would be presenting common evidence in both.
At about 3:30 in the afternoon of August 30, 1994, accused U Aung Win, a passenger of TG
Flight No. 620 of the Thai Airways which had just arrived from Bangkok, Thailand, presented his
luggage, a travelling bag about 20 inches in length, 14 inches in width and 10 inches in
thickness, for examination to Customs Examiner Busran Tawano, who was assigned at the
Arrival Area of the Ninoy Aquino International Airport (NAIA) in Pasay City. The accused also
handed to Tawano his Customs Declaration No. 128417 stating that he had no articles to
declare. When Tawano was about to inspect his luggage, the accused suddenly left, proceeding
towards the direction of Carousel No. 1, the conveyor for the pieces of luggage of the
passengers of Flight No. 620, as if to retrieve another baggage from it.
After having inspected the luggages of the other incoming passengers, Tawano became alarmed
by the failure of U Aung Win to return and suspected that the bag of the accused contained
illegal articles. The Customs Examiner reported the matter to his superiors. Upon their
instructions, the bag was turned over to the office of the Customs Police in the NAIA for x-ray
examination where it was detected that it contained some powdery substance. When opened,
the bag revealed two packages containing the substance neatly hidden in between its partitions.
Representative samples of the substance were examined by Elizabeth Ayonon, a chemist of the
Crime Laboratory Service of the Philippine National Police (PNP) assigned at the Arrival Area of
the NAIA, and by Tita Advincula, another chemist of' the PNP Crime Laboratory Service at Camp
Crame, and found to be positive for heroin. The two chemists concluded that the entire
substance, with a total weight of 5,579.80 grams, contained in the two packages found in the
bag of U Aung Win, is heroin.
A manhunt was conducted to locate U Aung Win. The personnel of the Bureau of Immigration
and Deportation in the NAIA were asked to place the accused in the hold order list. The offices
of the different airlines in the airport were also alerted to inform the Enforcement and Security
Service and the Customs Police Division of the NAIA of any departing passenger by the name of
U Aung Win who would check in at their departure counters. A team was likewise sent to the
Park Hotel in Belen St., Paco, Manila, which accused U Aung Win had indicated in his Customs
Declaration as his address in the Philippines. But the accused was not found in that hotel.
At about 7:45 p.m. of the same date of August 30, 1994, Rey Espinosa, an employee of the
Lufthansa Airlines, notified the commander of the NAIA Customs Police District Command that a
certain Burmese national by the name of U Aung Win appeared at the check-in counter of the
airline as a departing passenger. Immediately, a team of law enforcers proceeded to the
Departure Area and apprehended the accused after he had been identified through his
signatures in his Customs Declaration and in his Bureau of Immigration and Deportation Arrival
Card. Customs Examiner Tawano also positively identified the accused as the person who left
his bag with him at the Arrival Area of the NAIA.

During the investigation of U Aung Win, the agents of the Customs Police and the Narcotics
Command (NARCOM) gathered the information that the accused had a contact in Bangkok and
that there were other drug couriers in the Philippines. Following the lead, a team of lawmen,
together with U Aung Win, was dispatched to the City Garden Hotel in Mabini St., Ermita,
Manila, to enable U Aung Win to communicate with his contact in Bangkok for further
instructions. While the police officers were standing by, they noticed two persons, a Caucasian
and an oriental, alight from a car and enter the hotel. U Aung Win whispered to Customs Police
Special Agent Edgar Quinones that he recognized the two as drug couriers whom he saw talking
with his contact in Bangkok named Mau Mau. The members of the team were able to establish
the identity of the two persons as accused Nigel Richard Gatward and one Zaw Win Naing, a
Thailander, from the driver of the hotel service car used by the two when they arrived in the
hotel. It was gathered by the law enforcers that Gatward and Zaw Win Naing were scheduled to
leave for Bangkok on board a KLM flight.
On August 31, 1994, operatives of the NAIA Customs Police mounted a surveillance operation
at the Departure Area for Gatward and Zaw Win Naing who might be leaving the country. At
about 7:45 p.m. of the same date, Special Agent Gino Minguillan of the Customs Police made a
verification on the passenger manifest of KLM Royal Dutch Airlines Flight No. 806, bound for
Amsterdam via Bangkok, which was scheduled to depart at about 7:55 that evening. He found
the name "GATWARD/NRMR" listed therein as a passenger for Amsterdam and accordingly
informed his teammates who responded immediately. Customs Police Captain Juanito Algenio
requested Victorio Erece, manager of the KLM airline at the NAIA, to let passenger Gatward
disembark from the aircraft and to have his checked-in luggage, if any, unloaded. The manager
acceded to the request to off-load Gatward but not to the unloading of his check-in bag as the
plane was about to depart and to do so would unduly delay the flight. However, Erece made an
assurance that the bag would be returned immediately to the Philippines on the first available
flight from Bangkok. Upon his disembarkment, Gatward was invited by the police officers for
investigation.
At about 3:00 o'clock in the afternoon of September 1, 1994, Gatward's luggage, a travelling bag
almost of the same size as that of U Aung Win, was brought back to the NAIA from Bangkok
through the Thai Airways, pursuant to the request of Erece which was telexed in the evening of
August 31, 1994, to the KLM airline manager in Bangkok. Upon its retrieval, the law enforcers
subjected the bag to x-ray examinations in the presence of accused Gatward and some
Customs officials. It was observed to contain some powdery substance. Inside the bag were two
improvised envelopes made of cardboard each containing the powdery substance, together with
many clothes. The envelopes were hidden inside the bag, one at the side in between a doublewall, the other inside a partition in the middle. Upon its examination by Chemists Ayonon and
Advincula pursuant to the request of Police Senior Inspector John Campos of the NARCOM, the
powdery substance contained in the two cardboard envelopes, with a net weight of 5,237.70
grams, was found to be heroin. 3
The court below made short shrift of the defense raised by herein appellant. Apart from the well-known rule on
the respect accorded to the factual findings of trial courts because of the vantage position they occupy in that
regard, we accept its discussion thereon by reason of its clear concordance with the tenets of law and logic.
Again we quote:
Accused Gatward denied that the bag containing the heroin was his luggage. However, that the
said bag belongs to him is convincingly shown by the fact that the serial number of the luggage
tag, which is KL 206835, corresponds to the serial number of the luggage claim tag attached to
the plane ticket of the accused. Moreover, as testified to by Manager Erece of the KLM airline,
the luggage of Gatward located in Container No. 1020 of KLM Flight No. 806 was the same
luggage which was returned to the NAIA on September 1, 1994, on board Thai Airways TG
Flight No. 620, pursuant to the request made by him to the KLM manager in Bangkok. The
testimony of Erece should be given weight in accordance with the presumption that the ordinary
course of business has been followed. (Sec. 3(q), Rule 131, Revised Rules on Evidence). No
circumstance was shown by the defense which would create, a doubt as to the identity of the
bag as the luggage of Gatward which he checked in for KLM Flight No. 806 for Amsterdam with

stopover in Bangkok.
Accused Gatward was present during the opening of his bag and the examination of its
contents. He was also interviewed by some press reporters in connection with the prohibited
drug found in the bag. Gatward did not then disclaim ownership of the bag and its heroin
contents. His protestations now that the bag does not belong to him should be deemed as an
afterthought which deserves no credence.
Gatward posited that he checked in a different bag when he bearded KLM Flight No. 806,
explaining that upon his apprehension by the agents of the NAIA Customs Police, he threw
away the claim tag for the said luggage. He alleged that the said bag contained, among other
things, not only important documents and papers pertaining to his cellular phone business in the
pursuit of which he came to the Philippines, but also money amounting to 1,500.00. Gatward
stressed that the bag did not have any illegal articles in it. If this were so, it was unusual for him,
and certainly not in accordance with the common habit of man, to have thrown away the claim
tag, thereby in effect abandoning the bag with its valuable contents. Not having been
corroborated by any other evidence, and being rendered unbelievable by the circumstances
accompanying it as advanced by him, the stand of accused Gatward that his luggage was
different from that which contained the 5,237.70 grams of heroin in question commands outright
rejection. 4
The trial court was also correct in rejecting the challenge to the admissibility in evidence of the heroin retrieved
from the bag of appellant. While no search warrant had been obtained for that purpose, when appellant checked
in his bag as his personal luggage as a passenger of KLM Flight No. 806 he thereby agreed to the inspection
thereof in accordance with customs rules and regulations, an international practice of strict observance, and
waived any objection to a warrantless search. His subsequent arrest, although likewise without a warrant, was
justified since it was effected upon the discovery and recovery of the heroin in his bag, or in flagrante delicto.
The conviction of accused U Aung Win in Criminal Case No. 94-6269 is likewise unassailable. His culpability was
not based only upon his plea of guilty but also upon the evidence of the prosecution, the presentation of which
was required by the lower court despite said plea. The evidence thus presented convincingly proved his having
imported into this country the heroin found in his luggage which he presented for customs examination upon his
arrival at the international airport. There was, of course, no showing that he was authorized by law to import such
dangerous drug, nor did he claim or present any authority to do so.
2. It is, however, the penalties imposed by the trial court on the two accused which this Court cannot fully accept.
This is the presentation made, and the rationalization thereof, by the court below:
According to Section 20 of the Dangerous Drugs Act of 1972, as amended by Republic Act No.
7659, the penalties for the offenses under Sections 3 and 4 of the said Act shall be applied if the
dangerous drugs involved, with reference to heroin, is 40 grams or more. Since the heroin
subject of each of these two cases exceeds 40 grams, it follows that the penalty which may be
imposed on each accused shall range from reclusion perpetua to death.
To fix the proper penalty, it becomes necessary to determine whether any mitigating or
aggravating circumstance had attended the commission of the offenses charged against the
accused. With respect to Gatward, no aggravating or mitigating circumstance was shown which
might affect his criminal liability. Relative to U Aung Win, no aggravating circumstance was
likewise established by the prosecution. However, the voluntary plea of guilty of the said
accused, which was made upon his arraignment and therefore before the presentation of the
evidence of the prosecution, should be appreciated as a mitigating circumstance.
Under Article 63 of the Revised Penal Code, which prescribes the rules for the application of
indivisible penalties, in all cases in which the law prescribes a penalty composed of two
indivisible penalties, the lesser penalty shall be applied, if neither mitigating nor aggravating
circumstances are present in the commission of the crime, or if the act is attended by a
mitigating circumstance and there is no aggravating circumstance. However, this rule may no

longer be followed in these cases, although the penalty prescribed by law is reclusion perpetua
to death, since reclusion perpetua, which was an indivisible penalty before, is now a divisible
penalty with a duration from 20 years and one (1) day to 40 years, in accordance with Article 27
of the Revised Penal Code, as amended by Republic Act No. 7659.
Consequently, the penalty of "reclusion perpetua to death" should at present be deemed to fall
within the purview of the "penalty prescribed" which "does not have one of the forms specially
provided for" in the Revised Penal Code, the periods of which "shall be distributed," applying by
analogy the prescribed rules, in line with Article 77 of the Revised Penal Code. Pursuant to this
principle, the penalty of "reclusion perpetua to death" shall have the following periods: Death, as
the maximum; thirty (30) years and one (1) day to forty (40) years, as the medium; and twenty
(20) years and one (1) day to thirty (30) years, as the minimum.
As there is no mitigating or aggravating circumstance shown to have attended the commission of the offense
charged against Gatward, the penalty to be imposed on him shall be within the range of the medium period. On
the other hand, since U Aung Win is favored by one mitigating circumstance without any aggravating
circumstance to be taken against him, the penalty which may be imposed on him shall be within the range of the
minimum period. (Art. 64(1) & (2), Revised Penal Code)
The accused in these cases may not enjoy the benefit of Act No. 4103, the Indeterminate
Sentence Law, for under Section 2 of the said Act, its provisions shall not apply to those
convicted of offenses punished with life imprisonment, which has been interpreted by the
Supreme Court as similar to the penalty of reclusion perpetua as far as the non-application of
the Indeterminate Sentence Law is concerned. (People vs. Simon, G.R. No. 93028, July 29,
1994) 5
On those considerations, the trial court handed down its verdict on March 3, 1995 finding both accused guilty as
charged, thus:
WHEREFORE, in Criminal Case No. 94-6268, accused Nigel Richard Gatward is found guilty
beyond reasonable doubt of transporting, without legal authority therefor, 5,237.70 grams of
heroin, a prohibited drug, in violation of Section 4 of Republic Act No. 6425, otherwise known as
the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659; and there being no
aggravating or mitigating circumstance shown to have attended the commission of the crime, he
is sentenced to suffer the penalty of imprisonment for thirty-five (35) years of reclusion perpetua
and to pay a fine of Five Million Pesos (P5,000,000.00).
In Criminal Case No. 94-6269, accused U Aung Win is found guilty beyond reasonable doubt of
importing or bringing into the Philippines 5,579.80 grams of heroin, a prohibited drug, without
being authorized by law to do so, contrary to Section 3 of Republic Act No. 6425, the Dangerous
Drugs Act of 1972, as amended by Republic Act No. 7659; and in view of the presence of one
(1) mitigating circumstance of voluntary plea of guilty, without any aggravating circumstance to
offset it, he is sentenced to suffer the penalty of imprisonment for twenty-five (25) years of
reclusion perpetua and to pay a fine of One Million Pesos (P1,000,000.00).
The heroin involved in these cases is declared forfeited in favor of the government and ordered
turned over to the Dangerous Drugs Board for proper disposal.
With costs de oficio. 6
It is apropos to mention at this juncture that during the pendency of this appeal, and while awaiting the filing of
appellant's brief on an extended period granted to his counsel de parte, the Court received on September 5,
1995 a mimeographed form of a so-called "Urgent Motion to Withdraw Appeal." It bears the signature of
appellant but without the assistance or signature of his counsel indicated thereon. No reason whatsoever was
given for the desired withdrawal and considering the ambient circumstances, the Court resolved on September
27, 1995 to deny the same for lack of merit. 7

On June 10, 1996, a letter was received from one H.M. Consul M.B. Evans of the British Embassy, Consular
Section, Manila, seeking an explanation for the aforesaid resolution and with the representation that "a convicted
person who did not, on reflection, wish to continue with an appeal would not need to prove merit but could simply
notify the courts of his wish to withdraw and that would be the end of the matter." To be sure, this is not the first
time that members of foreign embassies and consulates feel that they have a right to intrude into our judicial
affairs and processes, to the extent of imposing their views on our judiciary, seemingly oblivious or arrogantly
disdainful of the fact that our courts are entitled to as much respect as those in their own countries.
Such faux pas notwithstanding, a reply was sent to Mr. Evans informing him that, while there is no arrangement
whereby a foreign consular officer may intervene in a judicial proceeding in this Court but out of courtesy as
enjoined in Republic Act No. 6713, the unauthorized pleading of appellant was made under unacceptable
circumstances as explained in said reply; that it is not mandatory on this Court to dismiss an appeal on mere
motion of an appellant; that the Court does not discuss or transmit notices of judicial action except to counsel of
the parties; and that, should he so desire, he could coordinate with appellant's counsel whose address was
furnished therein. 8
In a resolution dated June 19, 1996, appellant's counsel was ordered to show cause why he should not be
disciplinarily dealt with or held for contempt for his failure to file appellant's brief. On July 24, 1996, said counsel
and the Solicitor General were required to comment on the aforestated motion of appellant to withdraw his
appeal, no brief for him having yet been filed. Under date of September 6, 1996, the Solicitor General filed his
comment surprisingly to the effect that the People interposed no objection to the motion to withdraw appeal.
Appellant's counsel, on the other hand, manifested on November 4, 1996 that he was willing to file the brief but
he could not do so since appellant asked for time to consult his pastor who would later inform said counsel, but
neither that pastor nor appellant has done so up to the present.
It would then be worthwhile to restate for future referential purposes the rules in criminal cases on the withdrawal
of an appeal pending in the appellate courts. The basic rule is that, in appeals taken from the Regional Trial
Court to either the Court of Appeals or the Supreme Court, the same may be withdrawn and allowed to be
retracted by the trial court before the records of the case are forwarded to the appellate court. 9 Once the records
are brought to the appellate court, only the latter may act on the motion for withdrawal of appeal. 10 In the
Supreme Court, the discontinuance of appeals before the filing of the appellee's brief is generally permitted. 11
Where the death penalty is imposed, the review shall proceed notwithstanding withdrawal of the appeal as the
review is automatic and this the Court can do without the benefit of briefs or arguments filed by the appellant. 12
In the case at bar, however, the denial of the motion to withdraw his appeal by herein appellant is not only
justified but is necessary since the trial court had imposed a penalty based on an erroneous interpretation of the
governing law thereon. Thus, in People vs. Roque, 13 the Court denied the motion of the accused to withdraw his
appeal, to enable it to correct the wrongful imposition by the trial court of the penalty of "reclusion temporal to
reclusion perpetua" for the crime of simple rape, in clear derogation of the provisions of Article 335 of the
Revised Penal Code and the Indeterminate Sentence Law. Similarly, in another case, 14 the motion to withdraw
his appeal by the accused, whose guilt for the crime of murder was undeniable and for which he should suffer
the medium period of the imposable penalty which is reclusion perpetua, was not allowed; otherwise, to permit
him to recall the appeal would enable him to suffer a lesser indeterminate sentence erroneously decreed by the
trial court which imposed the minimum of the penalty for murder, that is, reclusion temporal in its maximum
period.
In the cases at bar, the same legal obstacle constrained the Court to deny appellant's motion to withdraw his
appeal. The trial court had, by considering reclusion perpetua as a divisible penalty, imposed an unauthorized
penalty on both accused which would remain uncorrected if the appeal had been allowed to be withdrawn. In
fact, it would stamp a nihil obstantium on a penalty that in law does not exist and which error, initially committed
by this Court in another case on which the trial court relied, had already been set aright by this Court.
3. As amended by Republic Act No. 7569, the respective penalties imposable under Sections 3 and 4 of the
Dangerous Drugs Act, in relation to Section 20 thereof, would range from reclusion perpetua to death and a fine
of P500,000.00 to P10,000,000.00 if the quantity of the illegal drug involved, which is heroin in this case, should
be 40 grams or more. In the same amendatory law, the penalty of reclusion perpetua is now accorded a "defined
duration" ranging from twenty (20) years and one (1) day to forty (40) years, through the amendment introduced

by it to Article 27 of the Revised Penal Code.


This led the trial court to conclude that said penalty is now divisible in nature, and that "(c)onsequently, the
penalty of "reclusion perpetua to death" should at present be deemed to fall within the purview of the "penalty
prescribed" which "does not have one of the forms specially provided for" in the Revised Penal Code, and the
periods of which "shall be distributed" by an analogous application of the rules in Article 77 of the Code.
Pursuant to its hypothesis, the penalty of "reclusion perpetua to death shall have the following periods: death, as
the maximum; thirty (30) years and one (1) day to forty (40) years, as the medium; and twenty (20) years and
one (1) day to thirty (30) years, as the minimum." 15
We cannot altogether blame the lower court for this impasse since this Court itself inceptively made an identical
misinterpretation concerning the question on the indivisibility of reclusion perpetua as a penalty. In People vs.
Lucas, 16 the Court was originally of the view that by reason of the amendment of Article 27 of the Code by
Section 21 of Republic Act No. 7569, there was conferred upon said penalty a defined duration of 20 years and 1
day to 40 years; but that since there was no express intent to convert said penalty into a divisible one, there
having been no corresponding amendment to Article 76, the provisions of Article 65 could be applied by analogy.
The Court then declared that reclusion perpetua could be divided into three equal portions, each portion
composing a period. In effect, reclusion perpetua was then to be considered as a divisible penalty.
In a subsequent re-examination of and a resolution in said case on January 9, 1995, occasioned by a motion for
clarification thereof, 17 the Court en banc realized the misconception, reversed its earlier pronouncement, and
has since reiterated its amended ruling in three succeeding appellate litigations. 18 The Court, this time, held that
in spite of the amendment putting the duration of reclusion perpetua at 20 years and 1 day to 40 years, it should
remain as an indivisible penalty since there was never any intent on the part of Congress to reclassify it into a
divisible penalty. This is evident from the undisputed fact that neither Article 63 nor Article 76 of the Code had
been correspondingly altered, to wit:
Verily, if reclusion perpetua was reclassified as a divisible penalty, then Article 63 of the Revised
Penal Code would lose its reason and basis for existence. To illustrate, the first paragraph of
Section 20 of the amended R.A. No. 6425 provides for the penalty of reclusion perpetua to
death whenever the dangerous drugs involved are of any of the quantities stated therein. If
Article 63 of the Code were no longer applicable because reclusion perpetua is supposed to be
a divisible penalty, then there would be no statutory rules for determining when either reclusion
perpetua or death should be the imposable penalty. In fine, there would be no occasion for
imposing reclusion perpetua as the penalty in drug cases, regardless of the attendant modifying
circumstances.
This problem revolving around the non-applicability of the rules in Article 63 assumes serious
proportions since it does not involve only drug cases, as aforesaid. Under the amendatory
sections of R.A. No. 7659, the penalty of reclusion perpetua to death is also imposed on treason
by a Filipino (Section 2), qualified piracy (Section 3), parricide (Section 5), murder (Section 6),
kidnapping and serious illegal detention (Section 8), robbery with homicide (Section 9),
destructive arson (Section 10), rape committed under certain circumstances (Section 11), and
plunder
(Section 12).
In the same resolution, the Court adverted to its holding in People vs. Reyes, 19 that while the original Article 27
of the Revised Penal Code provided for the minimum and the maximum ranges of all the penalties therein, from
arresto menor to reclusion temporal but with the exceptions of bond to keep the peace, there was no parallel
specification of either the minimum or the maximum range of reclusion perpetua. Said article had only provided
that a person sentenced to suffer any of the perpetual penalties shall, as a general rule, be extended pardon
after service thereof for 30 years. Likewise, in laying down the procedure on successive service of sentence and
the application of the three-fold rule, the duration of perpetual penalties is computed at 30 years under Article 70
of the Code.
Furthermore, since in the scales of penalties provided in the Code, specifically those in Articles 25, 70 and 71,
reclusion perpetua is the penalty immediately higher than reclusion temporal, then its minimum range should by

necessary implication start at 20 years and 1 day while the maximum thereunder could be co-extensive with the
rest of the natural life of the offender. However, Article 70 provides that the maximum period in regard to service
of the sentence shall not exceed 40 years.
Thus, the maximum duration of reclusion perpetua is not and has never been 30 years which is merely the
number of years which the convict must serve in order to be eligible for pardon or for the application of the threefold rule. Under these accepted propositions, the Court ruled in the motion for clarification in the Lucas case that
Republic Act No. 7659 had simply restated existing jurisprudence when it specified the duration of reclusion
perpetua at 20 years and 1 day to 40 years.
The error of the trial court was in imposing the penalties in these cases based on the original doctrine in Lucas
which was not yet final and executory, hence open to reconsideration and reversal. The same having been
timeously rectified, appellant should necessarily suffer the entire extent of 40 years of reclusion perpetua, in line
with that reconsidered dictum subsequently handed down by this Court. In passing, it may be worth asking
whether or not appellant subsequently learned of the amendatory resolution of the Court under which he stood to
serve up to 40 years, and that was what prompted him to move posthaste for the withdrawal of his appeal from a
sentence of 35 years.
4. The case of U Aung Win ostensibly presents a more ticklish legal poser, but that is not actually so. It will be
recalled that this accused was found guilty and sentenced to suffer the penalty of reclusion perpetua supposedly
in its minimum period, consisting of imprisonment for 25 years, and to pay a fine of P1,000,000.00. He did not
appeal, and it may be contended that what has been said about the corrected duration of the penalty of
reclusion perpetua which we hold should be imposed on appellant Gatward, since reclusion perpetua is after all
an indivisible penalty, should not apply to this accused.
Along that theory, it may be asserted that the judgment against accused U Aung Win has already become final. It
may also be argued that since Section 11(a) of Rule 122 provides that an appeal taken by one accused shall not
affect those who did not appeal except insofar as the judgment of the appellate court is favorable and applicable
to the latter, our present disposition of the correct duration of the penalty imposable on appellant Gatward should
not affect accused U Aung Win since it would not be favorable to the latter. To use a trite and tired legal phrase,
those objections are more apparent than real.
At bottom, all those postulations assume that the penalties decreed in the judgment of the trial court are valid,
specifically in the sense that the same actually exist in law and are authorized to be meted out as punishments.
In the case of U Aung Win, and the same holds true with respect to Gatward, the penalty inflicted by the court a
quo was a nullity because it was never authorized by law as a valid punishment. The penalties which consisted
of aliquot one-third portions of an indivisible penalty are self-contradictory in terms and unknown in penal law.
Without intending to sound sardonic or facetious, it was akin to imposing the indivisible penalties of public
censure, or perpetual absolute or special disqualification, or death in their minimum or maximum periods.
This was not a case of a court rendering an erroneous judgment by inflicting a penalty higher or lower than the
one imposable under the law but with both penalties being legally recognized and authorized as valid
punishments. An erroneous judgment, as thus understood, is a valid judgment. 20 But a judgment which ordains
a penalty which does not exist in the catalogue of penalties or which is an impossible version of that in the roster
of lawful penalties is necessarily void, since the error goes into the very essence of the penalty and does not
merely arise from the misapplication thereof. Corollarily, such a judgment can never become final and executory.
Nor can it be said that, despite the failure of the accused to appeal, his case was reopened in order that a higher
penalty may be imposed on him. There is here no reopening of the case, as in fact the judgment is being
affirmed but with a correction of the very substance of the penalty to make it conformable to law, pursuant to a
duty and power inherent in this Court. The penalty has not been changed since what was decreed by the trial
court and is now being likewise affirmed by this Court is the same penalty of reclusion perpetua which,
unfortunately, was imposed by the lower court in an elemental form which is non-existent in and not authorized
by law. Just as the penalty has not been reduced in order to be favorable to the accused, neither has it been
increased so as to be prejudicial to him.

Finally, no constitutional or legal right of this accused is violated by the imposition upon him of the corrected
duration, inherent in the essence and concept, of the penalty. Otherwise, he would be serving a void sentence
with an illegitimate penalty born out of a figurative liaison between judicial legislation and unequal protection of
the law. He would thus be the victim of an inadvertence which could result in the nullification, not only of the
judgment and the penalty meted therein, but also of the sentence he may actually have served. Far from
violating any right of U Aung Win, therefore, the remedial and corrective measures interposed by this opinion
protect him against the risk of another trial and review aimed at determining the correct period of imprisonment.
WHEREFORE, the judgment of the.court a quo, specifically with regard to the penalty imposed on accusedappellant Nigel Richard Gatward in Criminal Case No. 94-6268 and that of accused U Aung Win in Criminal
Case No. 94-6269, is hereby MODIFIED in the sense that both accused are sentenced to serve the penalty of
reclusion perpetua in its entire duration and full extent. In all other respects, said judgment is hereby AFFIRMED,
but with costs to be assessed against both accused in all instances of these cases.
SO ORDERED.

[G.R. No. 123872. January 30, 1998]


PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUBEN MONTILLA y GATDULA, accused-appellant.
DECISION
REGALADO, J.:

Accused-Appellant Ruben Montilla y Gatdula, alias "Joy," was charged on August 22, 1994 for violating Section
4, Article II of the Dangerous Drugs Act of 1972, Republic Act No. 6425, as amended by Republic Act No. 7659,
before the Regional Trial Court, Branch 90, of Dasmarias, Cavite in an information which alleges:
That on or about the 20th day of June 1994, at Barangay Salitran, Municipality of Dasmarias, Province of
Cavite, 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, administer, transport, and deliver
twenty-eight (28) kilos of dried marijuana leaves, which are considered prohibited drugs, in violation of the
provisions of R.A. 6425 thereby causing damage and prejudice to the public interest.[1]
The consequent arraignment conducted on September 14, 1994 elicited a plea of not guilty from appellant who
was assisted therein by his counsel de parte.[2] Trial was held on scheduled dates thereafter, which culminated
in a verdict of guilty in a decision of the trial court dated June 8, 1995 and which imposed the extreme penalty of
death on appellant. He was further ordered to pay a fine in the amount of P500,000.00 and to pay the costs of
the proceedings.[3]
It appears from the evidence of the prosecution that appellant was apprehended at around 4:00 A.M. of June 20,
1994 near a waiting shed located at Barangay Salitran, Dasmarias, Cavite by SPO1 Concordio Talingting and
SPO1 Armando Clarin, both members of the Cavite Philippine National Police Command based in Dasmarias.
Appellant, according to the two officers, was caught transporting 28 marijuana bricks contained in a traveling bag
and a carton box, which marijuana bricks had a total weight of 28 kilos.
These two officers later asserted in court that they were aided by an informer in the arrest of appellant. That
informer, according to Talingting and Clarin, had informed them the day before, or on June 19, 1994 at about
2:00 P.M., that a drug courier, whom said informer could recognize, would be arriving somewhere in Barangay
Salitran, Dasmarias from Baguio City with an undetermined amount of marijuana. It was the same informer
who pinpointed to the arresting officers the appellant when the latter alighted from a passenger jeepney on the
aforestated day, hour, and place.[4]
Upon the other hand, appellant disavowed ownership of the prohibited drugs. He claimed during the trial that
while he indeed came all the way from Baguio City, he traveled to Dasmarias, Cavite with only some pocket
money and without any luggage. His sole purpose in going there was to look up his cousin who had earlier
offered a prospective job at a garment factory in said locality, after which he would return to Baguio City. He
never got around to doing so as he was accosted by SPO1 Talingting and SPO1 Clarin at Barangay Salitran.
He further averred that when he was interrogated at a house in Dasmarias, Cavite, he was never informed of
his constitutional rights and was in fact even robbed of the P500.00 which he had with him. Melita Adaci, the
cousin, corroborated appellant's testimony about the job offer in the garment factory where she reportedly
worked as a supervisor,[5] although, as the trial court observed, she never presented any document to prove her
alleged employment.
In the present appellate review, appellant disputes the trial court's finding that he was legally caught in flagrante
transporting the prohibited drugs. This Court, after an objective and exhaustive review of the evidence on
record, discerns no reversible error in the factual findings of the trial court. It finds unassailable the reliance of
the lower court on the positive testimonies of the police officers to whom no ill motives can be attributed, and its
rejection of appellant's fragile defense of denial which is evidently self-serving in nature.
1. Firstly, appellant asserts that the court a quo grossly erred in convicting him on the basis of insufficient
evidence as no proof was proffered showing that he wilfully, unlawfully, and feloniously administered,
transported, and delivered 28 kilos of dried marijuana leaves, since the police officers "testified only on the
alleged transporting of Marijuana from Baguio City to Cavite."
Further, the failure of the prosecution to present in court the civilian informant is supposedly corrosive of the
People's cause since, aside from impinging upon appellant's fundamental right to confront the witnesses against
him, that informant was a vital personality in the operation who would have contradicted the hearsay and
conflicting testimonies of the arresting officers on how appellant was collared by them.

The pertinent provision of the penal law here involved, in Section 4 of Article II thereof, as amended, is as
follows:
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.
Now, the offense ascribed to appellant is a violation of the Dangerous Drugs Act, some of the various modes of
commission[6] being the sale, administration, delivery, distribution, and transportation of prohibited drugs as set
forth in the epigraph of Section 4, Article II of said law. The text of Section 4 expands and extends its punitive
scope to other acts besides those mentioned in its headnote by including these who 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." Section 4 could thus be violated by the commission of any of the acts
specified therein, or a combination thereof, such as selling, administering, delivering, giving away, distributing,
dispatching in transit or transporting, and the like.
As already stated, appellant was charged with a violation of Section 4, the transgressive acts alleged therein and
attributed to appellant being that he administered, delivered, and transported marijuana. The governing rule with
respect to an offense which may be committed in any of the different modes provided by law is that an indictment
would suffice if the offense is alleged to have been committed in one, two or more modes specified therein. This
is so as allegations in the information of the various ways of committing the offense should be considered as a
description of only one offense and the information cannot be dismissed on the ground of multifariousness.[7] In
appellant's case, the prosecution adduced evidence clearly establishing that he transported marijuana from
Baguio City to Cavite. By that act alone of transporting the illicit drugs, appellant had already run afoul of that
particular section of the statute, hence, appellant's asseverations must fail.
The Court also disagrees with the contention of appellant that the civilian informer should have been produced in
court considering that his testimony was "vital" and his presence in court was essential in order to give effect to
or recognition of appellant's constitutional right to confront the witnesses arrayed by the State against him.
These assertions are, however, much too strained. Far from compromising the primacy of appellant's right to
confrontation, the non-presentation of the informer in this instance was justified and cannot be faulted as error.
For one, the testimony of said informer would have been, at best, merely corroborative of the declarations of
SPO1 Talingting and SPO1 Clarin before the trial court, which testimonies are not hearsay as both testified upon
matters in which they had personally taken part. As such, the testimony of the informer could be dispensed with
by the prosecution,[8] more so where what he would have corroborated are the narrations of law enforcers on
whose performance of duties regularity is the prevailing legal presumption. Besides, informants are generally
not presented in court because of the need to hide their identities and preserve their invaluable services to the
police.[9] Moreover, it is up to the prosecution whom to present in court as its witnesses, and not for the defense
to dictate that course.[10] Finally, appellant could very well have resorted to the coercive process of subpoena to
compel that eyewitness to appear before the court below,[11] but which remedy was not availed of by him.
2. Appellant contends that the marijuana bricks were confiscated in the course of an unlawful warrantless search
and seizure. He calls the attention of the Court to the fact that as early as 2:00 P.M. of the preceding day, June
19, 1994, the police authorities had already been apprised by their so-called informer of appellant's impending
arrival from Baguio City, hence those law enforcers had the opportunity to procure the requisite warrant. Their
misfeasance should therefore invalidate the search for and seizure of the marijuana, as well as the arrest of
appellant on the following dawn. Once again, the Court is not persuaded.
Section 2, Article III of the Constitution lays down the general rule that a search and seizure must be carried out
through or on the strength of a judicial warrant, absent which such search and seizure becomes "unreasonable"
within the meaning of said constitutional provision.[12] Evidence secured on the occasion of such an

unreasonable search and seizure is tainted and should be excluded for being the proverbial fruit of a poisonous
tree. In the language of the fundamental law, it shall be inadmissible in evidence for any purpose in any
proceeding. This exclusionary rule is not, however, an absolute and rigid proscription. Thus, (1) customs
searches;[13] (2) searches of moving vehicles,[14] (3) seizure of evidence in plain view;[15] (4) consented
searches;[16] (5) searches incidental to a lawful arrest;[17] and (6) "stop and frisk" measures[18] have been
invariably recognized as the traditional exceptions.
In appellant's case, it should be noted that the information relayed by the civilian informant to the law enforcers
was that there would be delivery of marijuana at Barangay Salitran by a courier coming from Baguio City in the
"early morning" of June 20, 1994. Even assuming that the policemen were not pressed for time, this would be
beside the point for, under these circumstances, the information relayed was too sketchy and not detailed
enough for the obtention of the corresponding arrest or search warrant. While there is an indication that the
informant knew the courier, the records do not reveal that he knew him by name.
While it is not required that the authorities should know the exact name of the subject of the warrant applied for,
there is the additional problem that the informant did not know to whom the drugs would be delivered and at
which particular part of the barangay there would be such delivery. Neither did this asset know the precise time
of the suspect's arrival, or his means of transportation, the container or contrivance wherein the drugs were
concealed and whether the same were arriving together with, or were being brought by someone separately
from, the courier.
On such bare information, the police authorities could not have properly applied for a warrant, assuming that
they could readily have access to a judge or a court that was still open by the time they could make preparations
for applying therefor, and on which there is no evidence presented by the defense. In determining the
opportunity for obtaining warrants, not only the intervening time is controlling but all the coincident and ambient
circumstances should be considered, especially in rural areas. In fact, the police had to form a surveillance team
and to lay down a dragnet at the possible entry points to Barangay Salitran at midnight of that day
notwithstanding the tip regarding the "early morning" arrival of the courier. Their leader, SPO2 Cali, had to
reconnoiter inside and around the barangay as backup, unsure as they were of the time when and the place in
Barangay Salitran, where their suspect would show up, and how he would do so.
On the other hand, that they nonetheless believed the informant is not surprising for, as both SPO1 Clarin and
SPO1 Talingting recalled, he had proved to be a reliable source in past operations. Moreover, experience shows
that although information gathered and passed on by these assets to law enforcers are vague and piecemeal,
and not as neatly and completely packaged as one would expect from a professional spymaster, such tip-offs
are sometimes successful as it proved to be in the apprehension of appellant. If the courts of justice are to be of
understanding assistance to our law enforcement agencies, it is necessary to adopt a realistic appreciation of the
physical and tactical problems of the latter, instead of critically viewing them from the placid and clinical
environment of judicial chambers.
3. On the defense argument that the warrantless search conducted on appellant invalidates the evidence
obtained from him, still the search on his belongings and the consequent confiscation of the illegal drugs as a
result thereof was justified as a search incidental to a lawful arrest under Section 5(a), Rule 113 of the Rules of
Court. Under that provision, 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.
A legitimate warrantless arrest, as above contemplated, necessarily cloaks the arresting police officer with
authority to validly search and seize from the offender (1) dangerous weapons, and (2) those that may be used
as proof of the commission of an offense.[19] On the other hand, the apprehending officer must have been
spurred by probable cause in effecting an arrest which could be classified as one in cadence with the
instances of permissible arrests set out in Section 5(a).[20] These instances have been applied to arrests carried
out on persons caught in flagrante delicto. The conventional view is that probable cause, while largely a relative
term the determination of which must be resolved according to the facts of each case, is understood as having
reference to such facts and circumstances which could lead a reasonable, discreet, and prudent man to believe
and conclude as to the commission of an offense, and that the objects sought in connection with the offense are
in the place sought to be searched.[21]

Parenthetically, if we may digress, it is time to observe that the evidentiary measure for the propriety of filing
criminal charges and, correlatively, for effecting a warrantless arrest, has been reduced and liberalized. In the
past, our statutory rules and jurisprudence required prima facie evidence, which was of a higher degree or
quantum,[22] and was even used with dubiety as equivalent to "probable cause." Yet, even in the American
jurisdiction from which we derived the term and its concept, probable cause is understood to merely mean a
reasonable ground for belief in the existence of facts warranting the proceedings complained of,[23] or an
apparent state of facts found to exist upon reasonable inquiry which would induce a reasonably intelligent and
prudent man to believe that the accused person had committed the crime.[24]
Felicitously, those problems and confusing concepts were clarified and set aright, at least on the issue under
discussion, by the 1985 amendment of the Rules of Court which provides in Rule 112 thereof that the quantum
of evidence required in preliminary investigation is such evidence as suffices to "engender a well founded belief"
as to the fact of the commission of a crime and the respondent's probable guilt thereof.[25] It has the same
meaning as the related phraseology used in other parts of the same Rule, that is, that the investigating fiscal
"finds cause to hold the respondent for trial," or where "a probable cause exists."[26] It should, therefore, be in
that sense, wherein the right to effect a warrantless arrest should be considered as legally authorized.
In the case at bar, as soon as appellant had alighted from the passenger jeepney the informer at once indicated
to the officers that their suspect was at hand by pointing to him from the waiting shed. SPO1 Clarin recounted
that the informer told them that the marijuana was likely hidden inside the traveling bag and carton box which
appellant was carrying at the time. The officers thus realized that he was their man even if he was simply
carrying a seemingly innocent looking pair of luggage for personal effects. Accordingly, they approached
appellant, introduced themselves as policemen, and requested him to open and show them the contents of the
traveling bag, which appellant voluntarily and readily did. Upon cursory inspection by SPO1 Clarin, the bag
yielded the prohibited drugs, so, without bothering to further search the box, they brought appellant and his
luggage to their headquarters for questioning.
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 not 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 drugs. 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.
Furthermore, that appellant also consented to the search is borne out by the evidence. To repeat, when the
officers approached appellant and introduced themselves as policemen, they asked him about the contents of
his luggage, and after he replied that they contained personal effects, the officers asked him to open the
traveling bag. Appellant readily acceded, presumably or in all likelihood resigned to the fact that the law had
caught up with his criminal activities. 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.
After all, the right to be secure from unreasonable search may, like other rights, be waived either expressly or
impliedly.[27] Thus, while it has been held that the silence of the accused during a warrantless search should not
be taken to mean consent to the search but as a demonstration of that person's regard for the supremacy of the
law,[28] the case of herein appellant is evidently different for, here, he 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.[29]

4. Appellant likewise harps on the alleged failure of the prosecution to "legally, properly and adequately establish
that the 28 bricks of marijuana allegedly confiscated from (him) were the same marijuana examined by the
forensic chemist and presented in court." Indeed, the arresting officers did not identify in court the marijuana
bricks seized from appellant since, in fact they did not have to do so. It should be noted that the prosecution
presented in the court below and formally offered in evidence those 28 bricks of marijuana together with the
traveling bag and the carton box in which the same were contained. The articles were properly marked as
confiscated evidence and proper safeguards were taken to ensure that the marijuana turned over to the chemist
for examination, and which subsequently proved positive as such, were the same drugs taken from appellant.
The trial court, therefore, correctly admitted them in evidence, satisfied that the articles were indubitably no other
than those taken from appellant.
Complementarily, the corpus delicti was firmly established by SPO1 Clarin and SPO1 Talingting who
categorically related that when they had ascertained that the contents of the traveling bag of appellant appeared
to be marijuana, they forthwith asked him where he had come from, and the latter readily answered "Baguio
City," thus confirming the veracity of the report of the informer. No other conclusion can therefore be derived
than that appellant had transported the illicit drugs all the way to Cavite from Baguio City. Coupled with the
presentation in court of the subject matter of the crime, the marijuana bricks which had tested positive as being
indian hemp, the guilt of appellant for transporting the prohibited drugs in violation of the law is beyond doubt.
Appellant questions the interrogation conducted by the police authorities, claiming that he was not allowed to
communicate with anybody, and that he was not duly informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. Indeed, appellant has a point. The police
authorities here could possibly have violated the provision of Republic Act No. 7438[30] which defines certain
rights of persons arrested, detained, or under custodial investigation, as well as the duties of the arresting,
detaining, and investigating officers, and providing corresponding penalties for violations thereof.
Assuming the existence of such irregularities, however, the proceedings in the lower court will not necessarily be
struck down. Firstly, appellant never admitted or confessed anything during his custodial investigation. Thus, no
incriminatory evidence in the nature of a compelled or involuntary confession or admission was elicited from him
which would otherwise have been inadmissible in evidence. Secondly and more importantly, the guilt of
appellant was clearly established by other evidence adduced by the prosecution, particularly the testimonies of
the arresting officers together with the documentary and object evidence which were formally offered and
admitted in evidence in the court below.
5. The reversible error of the trial court lies in its imposition of the penalty of death on appellant. As amended by
Republic Act No. 7659, Section 20, Article IV of the Dangerous Drugs Act now provides inter alia that the penalty
in Section 4 of Article II shall be applied if the dangerous drugs involved is, in the case of indian hemp or
marijuana, 750 grams or more. In said Section 4, the transporting of prohibited drugs carries with it the penalty
of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. Thus,
the law prescribes a penalty composed of two indivisible penalties, reclusion perpetua and death. In the present
case, Article 63 of the Revised Penal Code consequently provides the rules to be observed in the application of
said penalties.
As found by the trial court, there were neither mitigating nor aggravating circumstances attending appellant's
violation of the law, hence the second paragraph of Article 63 must necessarily apply, in which case the lesser
penalty of reclusion perpetua is the proper imposable penalty. Contrary to the pronouncement of the court a
quo, it was never intended by the legislature that where the quantity of the dangerous drugs involved exceeds
those stated in Section 20, the maximum penalty of death shall be imposed. Nowhere in the amendatory law is
there a provision from which such a conclusion may be gleaned or deduced. On the contrary, this Court has
already concluded that Republic Act No. 7659 did not amend Article 63 of the Revised Penal Code,[31] the rules
wherein were observed although the cocaine subject of that case was also in excess of the quantity provided in
Section 20.
It is worth mentioning at this juncture that the law itself provides a specific penalty where the violation thereof is
in its aggravated form as laid down in the second paragraph of Section 4 whereby, regardless of Section 20 of
Article IV, if the victim is a minor, or should a prohibited drug involved in any offense in said section be the
proximate cause of the death of a victim thereof, the maximum penalty shall be imposed.[32] While the minority

or the death of the victim will increase the liability of the offender, these two facts do not constitute generic
aggravating circumstances, as the law simply provides for the imposition of the single indivisible penalty of death
if the offense is attended by either of such factual features. In that situation, obviously the rules on the
graduation of penalties in Article 63 cannot apply. In herein appellant's case, there was neither a minor victim
nor a consequent death of any victim. Hence, the basic rules in Article 63 of the Code govern.
WHEREFORE, the judgment of the Regional Trial Court, Branch 90, of Dasmarias, Cavite in Criminal Case No.
3401-94 is hereby MODIFIED in the sense that accused-appellant Ruben Montilla y Gatdula shall suffer the
penalty of reclusion perpetua. In all other respects, the judgment of the trial court is hereby AFFIRMED, with
costs against accused-appellant.
SO ORDERED.

[G.R. Nos. 138539-40. January 21, 2003]


PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO C. ESTELLA, appellant.
DECISION
PANGANIBAN, J.:
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.
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 oficio.
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 oclock 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 prosecutions 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
Barnaceha 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 appellants 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 oclock and 11:00 oclock 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
accuseds 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 prosecutions principal witness, Intelligence and Investigation Officer SPO1 Antonio Buloron. He was among
the members of the police team that searched appellants 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 officers 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.
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 Courts 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 OSGs 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 Bulorons 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?

What I know is that Narding Estella bought that house, sir.

Who is that Narding Estella?

The brother of Tony Estella, sir.

And you know that that has been rent[ed] to people?

Yes, sir.

Now, so far how many people [rented] that place or that house?

I do not have any information about that[,] sir.

Why did you know that that place was rented?

Because when I asked Eva she replied that they [were] only renting that house, sir.

How long has Eva been renting that house?

I do not have any information about that[,] sir.

Do you know who was living with Eva?

No, sir.

So, what you know is that Eva lives alone in that house?

Yes, sir.

And you do not know anybody who is renting that house?

I have no information, sir.

And you do not know if the accused was renting [it] or not?

I dont 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 OSGs 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 prosecutions dubious story. It failed to see patent
inconsistencies in the prosecution witnesses testimonies about the search undertaken.
A review of the TSNs shows that SPO1 Buloron, the prosecution's 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]?

What I saw is that Tony Estella is sitting in the rocking chair outside the house drinking coffee, sir.

And you saw him and then the search warrant was presented, isnt it?

Yes, sir.

And when it was presented what did Tony Estella do?

A
sir.

What they did they show to Tony the search warrant and I also read the contents of the search warrant,

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.

And when he stood up what else did he do?

Nothing, sir. The NARCOM g[o]t inside the house, sir.

And where did Antonio Estella go when the police entered the house?

He was just outside the house, sir.

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?

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 appellants alleged voluntary
surrender of the prohibited drug to the authorities. And yet, his testimony completely contradicted the
policemens 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] Barnacheas
statements sow doubts as to the veracity of SPO1 Bulorons 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 latters 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 prosecutions 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 latters 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 officers 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 arrestees 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 arrestees 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 appellants
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 appellants 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 Bulorons credibility as a
prosecution witness and raise serious doubts concerning the prosecutions 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.
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 formers counsel objected to the offer of the latters
testimony on items allegedly confiscated during the search. Appellants 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.
SO ORDERED.

[G.R. No. 116001. March 14, 2001]


PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUISITO GO y KO alias KING LOUIE, accusedappellant.
[G.R. No. 123943. March 14, 2001]
LUISITO GO y CO, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondent.
DECISION
YNARES-SANTIAGO, J.:
On October 22, 1992, at around 10:00 oclock in the evening, SPO1 Mauro Piamonte and SPO3 Candido
Liquido, members of the Intelligence and Follow-up Unit of the Calamba Police, went to the police outpost at
Crossing, Calamba, Laguna, to follow up an intelligence report that methamphetamine hydrochloride, or shabu,
a regulated drug, was being supplied there. Police civilian agent Ronnie Panuringan arrived and reported to
them that he saw accused-appellant Luisito Go, also known as King Louie, enter the Flamingo Disco House
with two women. Panuringan said that he spotted a gun tucked in accused-appellants waist. Together, the
three policemen proceeded to the Flamingo, which was located about a hundred meters away from the outpost.
When they arrived at the Flamingo, the police officers informed the owner that they were conducting an
Operation Bakal, whereby they search for illegally possessed firearms. The owner allowed them in and told a
waiter to accompany them. They went up to the second floor of the disco. The waiter turned on the lights, and
the police officers saw accused-appellant and his lady companions seated at a table. They identified themselves
and asked accused-appellant to stand up. When the latter did so, the policemen saw the gun tucked in his
waist. SPO1 Piamonte asked for the license of the gun, but accused-appellant was unable to produce any.
Instead, accused-appellant brought out the drivers license of a certain Tan Antonio Lerios. SPO1 Piamonte
confiscated the gun, which was later identified as a 9mm Walther P88, Serial Number 006784, with a magazine
containing ten (10) rounds of live ammunition. Accused-appellant was invited to the police precinct for
questioning.
On the way out of the disco, accused-appellant asked permission to bring his car, which was parked outside.
The police officers accompanied accused-appellant to his car, a Honda Civic with license plate number TCM789. Through the windshield, SPO3 Liquido noticed a Philippine National Police identification card hanging from
the rearview mirror. He asked accused-appellant if he was a member of the PNP, and he said no. The police

officers asked accused-appellant for his drivers license and the registration papers of the vehicle, but he was
unable to produce them. When accused-appellant opened the door, SPO3 Liquido took the ID card and found
that the same belonged to SPO4 Zenaida Bagadiong. The police officers saw pieces of glass tooters and tin
foils on the backseat and floor of the car. They asked accused-appellant why he had these items, but he did not
say anything. Instead, accused-appellant suggested that they talk the matter over, and intimated that he had
money. SPO3 Liquido replied that they should talk at the police headquarters. Accused-appellant took out an
attach case from the car and opened it. There were two black clutch bags inside. Accused-appellant opened
the first bag, which contained shiny white substance wrapped in cellophane. The second bag contained
P120,000.00 in cash.
The police officers brought accused-appellant to the police station. When they arrived at the precinct, they
turned over the attach case together with the two black clutch bags to the investigator. The investigator found
eight cellophane bags containing granules suspected to be shabu in one of the clutch bags. When the attach
case was opened, the police officers found that it also contained three glass tooters, tin foils, an improvised
burner, magazines and newspapers.[1]
Consequently, two Informations were filed against accused-appellant before the Regional Trial Court of
Calamba, Laguna, Branch 34. The first Information, which was docketed as Criminal Case No. 3308-92-C,
charged accused-appellant with violation of Article III of R.A. 6452 (Dangerous Drugs Act), committed as follows:
That on or about October 22, 1992 at Brgy. I, Crossing, Municipality of Calamba, province of Laguna, and within
the jurisdiction of this Honorable Court, the above-named accused, not being authorized/permitted by law, did
then and there wilfully, unlawfully and feloniously have in his possession, control and custody 750 grams of
methamphetamine hydrochloride known as SHABU, a regulated drug, in violation of the above-stated law.[2]
The other Information, docketed as Criminal Case No. 3309-92-C, charged accused-appellant with violation of
P.D. 1866, committed as follows:
That on or about October 22, 1992, at Flamingo Beerhouse, Crossing, Municipality of Calamba, Province of
Laguna and within the jurisdiction of this Honorable Court, the accused above-named not being licensed or
authorized by law, did then and there wilfully, unlawfully and feloniously have in his possession, custody and
control one (1) caliber .9mm marked WALTHER with serial number 006784 with one (1) magazine loaded with
ten (10) live ammunitions of same caliber, in violation of the aforementioned law.[3]
After a joint trial, the lower court rendered judgment convicting accused-appellant in the two criminal cases, to
wit:
WHEREFORE, judgment is hereby rendered finding the accused in Criminal Case No. 3308-92-C, to be GUILTY
beyond reasonable doubt of having in his possession of 750.39 grams of methamphetamine hydrochloride, a
regulated drug. He is hereby sentenced to a penalty of imprisonment of six (6) years and one (1) day to twelve
(12) years and a fine of TWELVE THOUSAND (P12,000.00) PESOS; and in Criminal Case No. 3309-92-C, the
accused is also found GUILTY beyond reasonable doubt of the crime of Illegal Possession of Firearm, and is
hereby sentenced to suffer an imprisonment of reclusion perpetua.
Considering that the accused appears to be detained at the Makati Police Station, jailer, Makati Police Station is
hereby ordered to commit the accused to the New Bilibid Prison, Bureau of Correction, Muntinlupa, Metro
Manila. The bond posted by the accused in Criminal Cases No. 3308-92-C & 3309-92-C, are hereby ordered
cancelled.[4]
Accused-appellant appealed his conviction in Criminal Case No. 3309-92-C directly to this Court, considering
that the penalty imposed was reclusion perpetua, which appeal was docketed as G.R. No. 116001.
On the other hand, accused-appellant brought his appeal of the judgment in Criminal Case No. 3308-92-C
before the Court of Appeals.[5] In an Amended Decision dated February 21, 1996, the Court of Appeals affirmed
accused-appellants conviction but modified the penalty imposed by the trial court by sentencing him, in addition
to imprisonment of six (6) years and one (1) day to twelve (12) years, to pay a fine of six thousand pesos

(P6,000.00), citing Section 8 of R.A. 6425, with subsidiary imprisonment in case of insolvency.[6] Hence, this
petition for review, docketed as G.R. No. 123943.
The two cases were consolidated.[7]
Accused-appellant assails the validity of his arrest and his subsequent convictions for the two crimes. Both the
trial court and the Court of Appeals found that the arrest and subsequent seizure were legal. A review of the
records at bar shows no reason to depart therefrom.
The constitutional proscription, that no person shall be arrested without any warrant of arrest having been issued
prior thereto,[8] is not a hard-and-fast rule. The Rules of Court and jurisprudence recognize exceptional cases
where an arrest may be effected without a warrant.[9] Among these are when, in the presence of a peace officer,
the person to be arrested has committed, is actually committing, or is attempting to commit an offense; or when
an offense has in fact just been committed, and the arresting officer has personal knowledge of facts indicating
that the person to be arrested has committed it.
In the cases at bar, the police saw the gun tucked in appellants waist when he stood up. The gun was plainly
visible. No search was conducted as none was necessary. Accused-appellant could not show any license for
the firearm, whether at the time of his arrest or thereafter. Thus, he was in effect committing a crime in the
presence of the police officers. No warrant of arrest was necessary in such a situation, it being one of the
recognized exceptions under the Rules.
As a consequence of appellants valid warrantless arrest, he may be lawfully searched for dangerous weapons
or anything which may be used as proof of the commission of an offense, without a search warrant, as provided
in Rule 126, Section 12. This is a valid search incidental to the lawful arrest.[10] The subsequent discovery in his
car of drug paraphernalia and the crystalline substance, which was later identified as shabu, though in a distant
place from where the illegal possession of firearm was committed, cannot be said to have been made during an
illegal search. As such, the seized items do not fall within the exclusionary clause, which states that any
evidence obtained in violation of the right against warrantless arrest cannot be used for any purposes in any
proceeding.[11] Hence, not being fruits of the poisonous tree, so to speak, the objects found at the scene of the
crime, such as the firearm, the shabu and the drug paraphernalia, can be used as evidence against appellant.
Besides, it has been held that drugs discovered as a result of a consented search is admissible in evidence.[12]
Under P.D. 1866, the essence of the crime is the accuseds lack of license or permit to carry or possess firearm,
ammunition, or explosive. Possession by itself is not prohibited by law.[13] In prosecutions for illegal possession
of firearm, the element of absence of license to possess the firearm may be established through the testimony of
or a certification from a representative of the Firearms and Explosives Bureau[14]of the Philippine National
Police (FEB-PNP), attesting that a person is not a licensee of any firearm.[15] In this case, a representative of
the FEB-PNP testified that accused-appellant was not a holder of any gun license.[16] Moreover, a
certification[17]to that effect was presented to corroborate his testimony. These pieces of evidence suffice to
establish the second element of the offense of possession of unlicensed firearms.[18] However, in a vain attempt
to exculpate himself, accused-appellant presented for the first time an alleged firearm license, which was
described as Annex 2 of his petition. Accused-appellants counsel admitted that said document was not
presented below for some reason.[19] Whatever those reasons are, he did not specify. The document,
however, is dubious. It is too late in the day for accused-appellant to proffer this very vital piece of evidence
which might exculpate him. First, the reception of evidence is best addressed to the trial court because it entails
questions of fact. It should be emphasized that this Court is not a trier of facts.[20] Second, the document
marked as Annex 2 of the petition in G.R. No. 123943 is not the license referred to, but an order of the trial
court resetting the date of arraignment.[21] Third, there is attached to the petition a firearm license[22] which is a
mere photocopy and, as such, cannot be appreciated by this Court. Indeed, considering that this was the one
piece of evidence which could spell accused-appellants acquittal of the unlicensed firearm charge, and
assuming that, as shown in the face of the license, it was issued on October 7, 1992, there should be no reason
for its non-production during the trial. Fourth, and most importantly, the genuineness of the purported license
becomes all the more suspect in view of the Certification issued by the FEO-PNP that accused-appellant was
not a licensed firearm holder.

Anent the certification issued by the FEO-PNP to the effect that Luisito Go y Ko was not a licensed gun holder,
accused-appellant claims that he was not the person alluded to therein because the correct spelling of his middle
name is not Ko but Co. Whatever the correct spelling of his name is, the fact remains that he had no license
on the day the gun was found in his possession. All that he could present then was a photocopy of his
application for gun license,[23] which is not the equivalent of a license. Appellant testified that he presented a
firearm license to the police,[24] but he could not produce that alleged license in court. If appellant was indeed a
licensed gun holder and if that license existed on October 22, 1992, he could have easily presented it to the
police when he was asked for his papers inside the disco, or if the alleged license was in his car, he could have
easily shown it to them when they went to his car. Otherwise, he could have easily asked his lawyer or relative
to bring the license to the police precinct when he was being investigated. Despite several opportunities to
produce a license, he failed to do so. In fact, during trial, he never presented any such license. And on appeal,
he could only submit for the first time and for unknown reasons an alleged photocopy of a purported license.
The only plausible conclusion that can be drawn is that there was no such license in the first place. Hence, his
guilt of illegal possession of firearm was duly established.
Accused-appellants guilt for illegal possession of shabu has likewise been proven beyond reasonable doubt.
The white crystalline substance found in his possession, upon laboratory examination, were positively identified
as methamphetamine hydrochloride or shabu, a regulated drug.[25]
The bulk of accused-appellants defense revolves around the factual findings of the trial court. It should be
recalled that factual findings of the trial court, if supported by evidence on record, and particularly when affirmed
by the appellate court, are binding on this Court.[26] As discussed above, the records substantiate the trial
courts and the appellate courts findings as to accused-appellants culpability. There is no reason to depart from
these findings as no significant facts and circumstances were shown to have been overlooked or disregarded
which, if considered, would have altered the outcome of the case.[27] Moreover, questions as to credibility of
witness are matters best left to the appreciation of the trial court because of its unique opportunity of having
observed that elusive and incommunicable evidence of the witness deportment on the stand while testifying,
which opportunity is denied to the reviewing tribunal.[28]
In the case at bar, the trial court found:
The narration of the incident by the police is far more worthy of belief coming as it does from law enforcers who
are presumed to have regularly performed their duties and were not demonstrated to have been unduly biased
against the accused.[29]
Similarly, the Court of Appeals held that:
(T)he findings of fact of the trial court are generally respected by the appellate court, unless they are found to be
clearly biased or arbitrary. We do not find any in these cases.[30]
The crime of illegal possession of firearm, committed in 1992, regardless of whether the firearm is low powered
or high powered, was punished with the penalty of reclusion perpetua to death, as provided in P.D. 1866.
However, under R.A. No. 8294, which took effect on July 6, 1997,[31] the penalty was lowered to prision
correcional in its maximum period and a fine of P30,000.00, if the firearm[32] is classified as low powered. In
this case, the unlicensed firearm found in appellants possession was a 9mm Walther pistol, which under the
amendatory law, is considered as low powered. Inasmuch as the new law imposes a reduced penalty and is,
thus, more favorable to accused-appellant, the same may be given retroactive effect.[33] Therefore, accusedappellant is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision
correccional, as minimum, to four (4) years, two (2) months and one (1) day of prision correccional, as
maximum, and a fine of P30,000.00.
On the other hand, the crime of illegal possession of regulated drug, under the law in force at the time of the
commission of the offense in this case, was punished by imprisonment of from six (6) years and one (1) day to
twelve (12) years and a fine ranging from P6,000.00 to P12,000.00,[34] regardless of the amount of drugs
involved. Hence, accused-appellant is sentenced to an indeterminate penalty of six (6) years and one (1) day,
as minimum, to twelve (12) years, as maximum, and to pay a fine of P12,000.00.

WHEREFORE, the decision of the trial court finding accused-appellant guilty beyond reasonable doubt of illegal
possession of firearm is AFFIRMED, with the MODIFICATION that he is sentenced to an indeterminate penalty
of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to four (4) years, two (2)
months and one (1) day of prision correccional, as maximum, and a fine of P30,000.00. The decision of the trial
court finding accused-appellant guilty beyond reasonable doubt of illegal possession of 750.39 grams of shabu
and drug paraphernalia, is likewise AFFIRMED with the MODIFICATION that he is sentenced to an
indeterminate penalty of six (6) years and one (1) day, as minimum, to twelve (12) years, as maximum, and to
pay a fine of P12,000.00. The shabu and subject drug paraphernalia seized from appellant shall be destroyed
as provided by law.
SO ORDERED.

G.R. No. 128222 June 17, 1999


PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CHUA HO SAN @ TSAY HO SAN, accused-appellant.

DAVIDE, JR., C.J.:


Chua Ho San @ Tsay Ho San (hereafter CHUA) prays for his acquitttal and the reversal of the judgment of 10
February 1997 of the Regional Trial Court (RTC) of San Fernando, La Union, Branch 66, finding him guilty of
transporting, without appropriate legal authority, the regulated substance methamphetamine hydrochloride, in
violation of Section 15, 1 Article III of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of
1972 as further amended by R.A. No. 7659, 2 and sentencing him to "die by lethal injection." In view thereof, the
judgement was brought to this Court for automatic review pursuant to Article 47 of the Revised Penal Code, as
amended by Section 11 of R.A. No. 7659.
In response to reports of rampant smuggling of firearms and other contraband, Jim Lagasca Cid (hereafter CID),
as Chief of Police of the Bacnotan Police Station, of La Union began patrolling the Bacnotan coastline with his
officers. While monitoring the coastal area of Barangay Bulala on 29 March 1995, he intercepted a radio call at
around 12:45 p.m. from Barangay Captain Juan Almoite (hereafter ALMOITE) of Barangay Tammocalao
requesting police assistance regarding an unfamiliar speedboat the latter had spotted. According to ALMOITE,
the vessel looked different from the boats ordinarily used by fisherfolk of the area and was poised to dock at
Tammocalao shores. CID and six of his men led by his Chief Investigator, SPO1 Reynoso Badua (hereafter
BADUA), proceeded forthwith to Tammocalao beach and there conferred with ALMOITE. CID then observed that
the speedboat ferried a lone male passenger. As it was routine for CID to deploy his men in strategic places
when dealing with similar situations, he ordered his men to take up positions thirty meters from the coastline.

When the speedboat landed, the male passenger alighted, and using both hands, carried what appeared a
multicolored strawbag. He then walked towards the road. By this time, ALMOITE, CID and BADUA, the latter two
conspicuous in their uniform and issued side-arms, became suspicious of the man as he suddenly changed
direction and broke into a run upon seeing the approaching officers. BADUA, however, prevented the man from
fleeing by holding on to his right arm. Although CID introduced themselves as police officers, the man appeared
impassive. Speaking in English, CID then requested the man to open his bag, but he seem not to understand.
CID thus tried speaking Tagalog, then Ilocano, but still to no avail. CID then resorted to what he termed "sign
language;" he motioned with his hands for the man to open the bag. This time, the man apparently understood
and acceded to the request. A search of the bag yielded several transparent plastic packets containing yellowish
crystalline substances. CID then gestured to the man to close the bag, which he did. As CID wished to proceed
to the police station, he signaled the man to follow, but the latter did not to comprehend. Hence, CID placed his
arm around the shoulders of the man and escorted the latter to the police headquarters.
At the police station, CID surmised, after having observed the facial features of the man, that he was probably
Taiwanese. CID then "recited and informed the man of his constitutional rights" to remain silent, to have the
assistance of a counsel, etc. Eliciting no response from the man, CID ordered his men to find a resident of the
area who spoke Chinese to act as an enterpreter. In the meantime, BADUA opened the bag and counted twentynine (29) plastic packets containing yellowish crystalline substance which he and CID suspected was shabu. The
interpreter, Mr. Go Ping Guan, finally arrived, through whom the man was "apprised of his constitutional rights."
The police authorities were satisfied that the man and the interpreter perfectly understood each other despite
their uncertainty as to what language was spoken. But when the policemen asked the man several questions, he
retreated to his obstinate reticence and merely showed his I.D. with the name Chua Ho San printed thereon.
CHUA's bag and its contents were sent to the PNP Crime Laboratory at Camp Diego Silang, Carlatan, San
Fernando, La Union for laboratory examination. In the meantime, CHUA was detained at the Bacnotan Police
Station.1wphi1.nt
Later that same day, Police Chief Inspector and Forensic Chemist Theresa Ann Bugayong Cid of the Philippine
National Police, Region I, received a letter request 3 from CID incidentally her husband to conduct a
laboratory examination of twenty-nine (29) plastic packets placed inside a multicolored strawbag. In her
Chemistry Report No. D-025-95, 4 she stated that her qualitative examination established the contents of the
plastic packets, weighing 28.7 kilos, to be positive of methamphetamine hydrochloride or shabu, a regulated
drug.
CHUA was initially charged with illegal possession of methaphetamine hydrochloride before the RTC which
docketed the case as Criminal Case No. 4037. However, pursuant to the recommendation of the Office of the
Provincial Prosecutor, La Union, that the facts of the case could support an indictment for illegal transport of a
regulated drug, the information was subsequently amended to allege that CHUA "willfully, unlawfully and
feloniously transpor(ted) 28.7 kilos of [m]ethamphetamine [h]ydrochloride (shabu) without the necessary permit
or authority to transport the same" in violation of Section 15, Article III of R.A. 6425 as amended by R.A. 7659.
At his arraignment on 31 July 1995, CHUA entered a plea of not guilty. The RTC was satisfied that CHUA
understood the amended information read to him in Fukien by the Fukien-speaking interpreter, Thelma Sales
Go.
Thereafter, the RTC exerted all efforts to obtain the services of a Taiwanese Interpreter through the auspices of
the Department of Foreign Affairs. However, it was only after directing the request to the Taipei Economic and
Cultural Office in the Philippines that interpreters were assigned to CHUA.
Trial finally ensued. The State presented evidence tending to establish the above narration of facts which were
culled chiefly from the testimony of CID, its first witness, and whose testimony, in turn, was substantially
corroborated by witnesses BADUA and ALMOITE.
Experts witness Theresa Ann Cid, confirmed the entries of her chemistry report in that the contents of the 29
plastic packets weighing 28.7 kilos sent to her for chemical analysis were pure, unadulterated methamphetamine
hydrochloride or shabu. She also explained that they were unwashed, hence they appeared yellowish.

For the defense, CHUA testified in his own behalf through interpreter Steven Yu. He disclosed that he hails from
Taiwan and was employed in a shipbuilding and repairing company. On 21 March 1995, he was instructed by his
employer Cho Chu Rong (hereafter RONG) to board the latter's 35-tonner ship which would embark for Nan Au
Port, Mainland China where they would buy fish. Upon arrival at their destination, RONG left the ship, came back
without the fish, but with two bags, the contents of which he never divulged to CHUA. RONG then showed to
CHUA a document purportedly granting them authority to fish on Philippine waters. So they sailed towards the
Philippines and reached Dagupan, Pangasinan on 29 March 1995. At around 10:30 a.m., they disembarked on a
small speedboat with the two bags RONG brought with him from China. While, sailing, RONG made several
phone calls using his mobile phone. CHUA heard RONG asked the person on the other side of the line if he
could see the speedboat they were riding. Apparently, the person on shore could not see them so they cruised
over the waters for about five hours more when finally, low on fuel and telephone battery, they decided to dock.
CHUA anchored the boat while RONG carried the bags to shore. The tasks completed, RONG left to look for a
telephone while CHUA rested and sat one and half (1 1/2) meters away from one bag. A child thereafter pointed
out to him that one bag was missing much to RONG's dismay when he learned of it. When a crowd started to
mill around them, the police arrived. CHUA then realized that RONG was nowhere to be found. The police
immediately approached CHUA, and with nary any spoken word, only gestures and hand movements, they
escorted him to the precinct where he was handcuffed and tied to a chair. Later, the police, led by an officer who
CHUA guessed as the Chief of Police arrived with the motor engine of the speedboat and a bag. They presented
the bag to him, opened it, inspected and weighed the contents, then proclaimed them as methaphetamine
hydrochloride.
CHUA denounced the prosecution's story as a distortion of the truth. He denied he was ever favored with an
interpreter or informed of his "constitutional rights," particularly of his right to counsel. Consequently, his arrest
was tainted with illegality and the methamphetamine hydrochloride found in the bag should have been regarded
inadmissible as evidence. He also maintained that CID never graced the occasion of his setting foot for the first
time at Tammocalao beach. BADUA certainly never prevented him from running away, as such thought failed to
make an impression in his mind. Most significantly, he denied ownership and knowledge of the contents of the
bag, emphasizing that RONG alone exercised dominion over the same.
Elmer Parong, (hereafter PARONG) a Sangguniang Bayan member, recalled that on the date in question, he
arrived at the beach with the police. He saw CHUA standing with a bag beside him. He also remembered
hearing from the people congregating at the beach that CHUA arrived with a companion and a certain policeman
Anneb had chased the latter's car. He additionally claimed that when the crowd became unruly, the police
decided to bring CHUA to police headquarters. There, the mayor took charge of the situation he opened
CHUA's bag with the assistance of the police, he called for a forensic chemist surnamed CID to take a sample of
the contents of the bag, and he ordered his officials to find an interpreter. Throughout the proceedings,
photographers were busy taking pictures to document the event.
Last to testify was Arsenio CRAIG, a farmer and resident of Tammocalao who narrated that he was standing with
CHUA on the beach when two men and a lady arrived. They were about to get a bag situated near CHUA when
they detected the arrival of the local police. They quickly disappeared. CRAIG then noticed ALMOITE and
PARONG at the beach but not CID.
In a decision promulgated on 10 February 1997, the RTC found that the prosecution successfully discharged its
burden of proving that CHUA transported 28.7 kilos of methamphetamine hydrochloride without legal authority to
do so. Invoking People v. Tagliben 5 as authority, the RTC characterized the search as incidental to a valid in
flagrante delicto arrest, hence it allowed the admission of the methamphetamine hydrochloride as corpus delicti.
The RTC also noted the futility of informing CHUA of his constitutional rights to remain silent, and to have
competent and independent counsel preferably of his own choice, considering the language barrier and the
observation that such irregularity was "rectified when accused was duly arraigned and . . . (afterwards)
participated in the trial of this case." The RTC then disregarded the inconsistencies and contradictions in the
testimonies of the prosecution witnesses as these referred to minor details which did not impair the credibility of
the witnesses or tarnish the credence conferred on the testimonies thus delivered.
The RTC also believed that CHUA conspired not only with his alleged employer RONG and the Captain of the
35-tonner vessel in the illegal trade of prohibited drugs on Philippine shores, but with several other members of
an organized syndicate bent on perpetrating said illicit traffic. Such predilection was plainly evident in the

dispositive portion, to wit:


WHEREFORE, and in view of all the foregoing, as proven and established by convincing and
satisfactory evidence that the accused had conspired and acted in concert with one Cho Chu
Rong, not to mention Chen Ho Fa, the Skipper of the 35-tonner ship they used in coming to the
Country from China and Taiwan, this Court finds the accused Chua Ho San @ Tsay Ho San
guilty beyond reasonable doubt of the offense of Violation of Sec. 15, Art. III of R.A. No. 6425, as
amended by R.A. No. 7659 as charged in the Information, and considering the provisions of
Sec. 20 of R.A. No. 7659 that the maximum penalty shall be imposed if the quantity
sold/possessed/transported is "200 grams or more" in the case of Shabu, and considering,
further that the quantity involved in this case is 28.7 kilograms which is far beyond the weight
ceiling specified in said Act, coupled with the findings of conspiracy or that accused is a member
of an organized syndicated crime group, this Court, having no other recourse but to impose the
maximum penalty to accused, this Court hereby sentences the said accused Chua Ho San @
Tsay Ho San to die by lethal injection; to pay a fine of Ten Million Pesos (P10,000,000.00); and
to pay the costs.
The Court hereby orders Director Ricareido [sic] Sarmiento of the Philippine National Police to
immediately form an investigating Committee to be composed by [sic] men of unimpeachable
integrity, who will conduct an exhaustive investigation regarding this case to determine whether
there was negligence or conspiracy in the escape of Cho Chu Rong and the two (2) or three (3)
persons who approached the accused in the seashore of Tammocalao, Bacnotan, La Union, and
attempted to take the remaining bag from accused, as well as the whereabouts of the other bag;
and to furnish this Court a copy of the report/result of the said investigation in order to show
compliance herewith sixty (60) days from receipt hereof.
The confiscated 28.7 kilograms of Methaphetamine Hydrochloride or Shabu is ordered turned
over immediately to the Dangerous Drugs Board for destruction in accordance with the law.
The fiberglass boat with its motor engine is hereby ordered confiscated in favor of the
government and to be turned over to the Philippine National Police, La Union Command, for use
in their Bantay-Dagat operations against all illegal seaborne activities.
SO ORDERED. 6
Before this Court, CHUA posits that the RTC erred in (1) admitting as competent evidence the 29 plastic packets
of methamphetamine hydrochloride since they were indubitably "forbidden fruits;" (2) granting weight and
credence to the testimonies of prosecution witnesses despite glaring inconsistencies on material points; and in
(3) appreciating conspiracy between him and an organized syndicate in the illicit commerce of prohibited drugs
since this was not alleged in the information.
The Solicitor General traverses CHUA's contentions by asserting that: (1) the search was licitly conducted
despite the absence of search and seizure warrants as circumstances immediately preceding to and
comtemporaneous with the search necessitated and validated the police action; and (2) that there was an
effective and valid waiver of CHUA's right against unreasonable searches and seizures since he consented to
the search.
We reverse the RTC.
Enshrined in the Constitution is the inviolable right to privacy home and person. It explicitly ordains that people
have the right to be secure in their persons, houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose. 7 Inseparable, and not merely corollary or incidental to said
right and equally hallowed in and by the Constitution, is the exclusionary principle which decrees that any
evidence obtained in violation of said right is inadmissible for any purpose in any proceedings. 8

The Cosntitutional proscription against unreasonable searches and seizures does not, of course, forestall
reasonable searches and seizure. What constitutes a reasonable or even an unreasonable search in any
particular case is purely a judicial question, determinable from a consideration of the circumstances involved. 9
Verily, the rule is, the Constitution bars State intrusions to a person's body, personal effects or residence except
if conducted by virtue of a valid of a valid search warrant issued in compliance with the procedure outlined on the
Constitution and reiterated in the Rules of Court; "otherwise such search and seizure become "unreasonable"
within the meaning of the aforementioned constitutional provision." 10 This interdiction against warrantless
searches and seizures, however, is not absolute and such warrantless searches and seizures have long been
deemed permissible by jurisprudence 11 in instances of (1) search of moving vehicles, (2) seizure in plain view,
(3) customs searches, (4) waiver or consent searches, (5) stop and frisk situations (Terry search), 12 and (6)
search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuan to an
equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid
wararnt of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante
delicto, (2) arrests effected in hot pursuit, and (3) arrests of escaped prisoners. 13
This Court is therefore tasked to determine whether the warrantless arrest, search and seizure conducted under
the facts of the case at bar constitute a valid exemption from the warrant requirement. Expectedly and quite
understandably, the prosecution and the defense painted extremely divergent versions of the incident. But this
Court is certain that CHUA was arrested and his bag searched without the benefit of a warrant.
In cases of in fragrante delicto, arrests, 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. The arresting officer, therefore, must have personal knowledge of such facts 14 or as recent
case law 15 adverts to, personal knowledge of facts or circumstances convincingly indicative or constitutive of
probable cause. The term probable cause had been understood to mean a reasonable ground of suspicion
supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person
accused is guilty of the offense with which he is charged. 16 Specifically with respect to arrests, it is such facts
and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been
committed by the person sought to be
arrested. 17 In People v. Montilla, 18 the Court acknowledged that "the evidentiary measure for the propriety of
filing criminal charges, and correlatively, for effecting warrantless arrest, has been reduced and liberalized."
Noting that the previous statutory and jurisprudential evidentiary standard was "prima facie evidence" and that it
had been dubiously equated with probable cause, the Court explained:
[F]elicitously, those problems and confusing concepts (referring to prima facie evidence and
probable cause) were clarified and set aright, at least on the issue under discussion, by the
1985 amendment of the Rules of Court which provides in Rule 112 thereof that the quantum of
evidence required in preliminary investigation is such evidence as suffices to "engender as well
founded belief" as to the fact of the commission of the crime and the respondent's probable guilt
thereof. It has the same meaning as the related phraseology used in other parts of the same
Rule, that is, that the investigating fiscal "finds cause to hold the respondent for trial," or where
"a probable cause exists." It should, therefore, be in that sense, wherein the right to effect a
warrantless arrest should be considered as legally authorized." (emphasis supplied) 19
Guided by these principles, this Court finds that there are no facts on record reasonably suggestive or
demonstrative of CHUA's participation in on going criminal enterprise that could have spurred police officers from
conducting the obtrusive search. The RTC never took the pains of pointing to such facts, but predicated mainly
its decision on the finding that was "accused was caught red-handed carrying the bagful of [s]habu when
apprehended." In short, there is no probable cause. At least in People v. Tangliben, the Court agreed with the
lower court's finding that compelling reasons (e.g., accused was acting suspiciously, on the spot identification by
an informant that accused was transporting prohibitive drug, and the urgency of the situation) constitutive of
probable cause impelled police officers from effecting an in flagrante delicto arrest. 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 (he
lacked the necessary travel documents or visa), 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, 20 confidential report and/or positive
identification by informers of courier(s) of prohibited drug and/or the time and place where they will
transport/deliver the same, 21 suspicious demeanor or behavior 22 and suspicious bulge in the waist 23
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. And despite claims by CID and BADUA that CHUA attempted to flee,
ALMOITE testified that the latter was merely walking and oblivious to any attempt at conversation when the
officers approached him. This cast serious doubt on the truthfulness of the claim, thus:
Q: How far were you when the accused put the bag on his sholder?
A: We were then very near him about three meters away from the male person
carrying the bag.
Q: To what direction was he facing when he put the bag on his shoulder?
A: To the east direction.
Q: In relation to you, where were you.
A: With the company of Sgt. Reynoso and Maj. Cid we approached the accused
and when Maj. Cid went near him, he spoke in Tagalong, English and Ilocano
which accused did not understand because he did not respond.
Q: When Maj. Cid was talking, what was the accused doing at that time?
A: He was walking.
Q: To what direction he was walking?
A: He was walking to the east direction. (sic)
Q: He was walking away from you or going near you?
A: He was going away from us. That is why Sgt. Reynoso held the right arm of
the accused.
Q: Was Sgt. Badua able to hold the right arm of the accused?
A: Yes sir and he stopped. 24
True, CHUA entered Philippine territory without a visa. This was not obvious to the police. But gossamer to the
officers' sense perception and view were CHUA disembarking from a speedboat, CHUA walking casually
towards the road, and CHUA carrying a multicolored strawbag. These acts did not convey any impression that
he illegally entered Philippine shores. Neither were these overt manifestations of an ongoing felonious activity
nor of CHUA's criminal behevior as clearly established in CID's testimony, thus:
Q Was the accused committing a crime when you introduced yourselves:
A No, sir.

Q No, so there was no reason for you to approach the accused because he was
not doing anything wrong?
A No, sir, that is our objective, to approach the person and if ever or whatever
assistance that we can give we will give. 25
The search cannot therefore be denominated as incidental to an arrest. While a contemporaneous search of a
person arrested may be effected to deliver dangerous weapons or proofs or implements used in the commission
of the crime and which search may extend to the area within his immediate control where he might gain
possession of a weapon or evidence he can destroy, 26 a valid arrest must precede the search. The process
cannot be reversed.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the
incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g.,
whether an arrest was merely used as a pretext for conducting a search. In this instance, the
law requires that there be first a lawful arrest before a search can be made the process
cannot be reversed. 27
To reiterate, the search was not incidental to an arrest. There was no warrant of arrest and the
warrantless arrest did not fall under the exemptions allowed by the Rules of Court 28 as already shown.
Fom all indications, the search was nothing but a fishing expedition. It is worth mentioning here that after
introducing themselves, the police officcers immediately inquired about the contents of the bag. What
else could have impelled the officers from displaying such inordinate interest in the bag but to ferret out
evidence and discover if a felony had indeed been committed by CHUA in effect to "retroactively
establish probable cause and validate an illegal search and seizure."
The State then attempted to persuade this Court that there was a consented search, a legitimate waiver of the
constitutional guarantee against obtrusive searches. It is fundamental, however, that to constitute a waiver, it
must first appear that the right exists; secondly, that the person involved had knowledge, actual or constructive,
of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right. 29
CHUA never exhibited that he knew, actually or constructively of his right against unreasonable searches or that
he intentionally conceded the same. This can be inferred from the manner by which the search performed, thus:
Q Together with your Chief Investigator, what was the first thing that you did
when you approached him (CHUA)?
A We introduced ourselves as police officers, sir.
Q Okey, in the first place why did you introduce yourselves?
A That is normal practice in our part, sir.
xxx xxx xxx
Q If it is possible. Okey (sic) now, after introducing yourselves what did you do?
A He did not answer me and he did not utter any word,
Q When he did not utter any word. What else did he do?
A I asked again a question that if he can open his bag sir.
Q And did he understand your question when you requested him to open his
bag?

A No, sir, there is no answer.


Q No answer?
A Yes, sir, no answer.
Q And when there was no answer what did you do next?
A I used sign language sir.
Q Will you demonstrate to this Honorable Court how you demonstrated that sign
language of opening the bag mr. (sic) witness?
A I pointed to the zipper of the bag and then made an action like this sir.
xxx xxx xxx
SHERIFF:
The witness demonstrating (sic) by pointing to the straw bag and then
manifesting a sign to open the zipper of the straw bag moving his right hand
from left to right or from the opening to the end of the zipper.
COURT: From the start of the zipper where you open it up to the end of the
zipper.
Witness: Yes, sir, and then I made a motion like this.
(The witness repeating the motion described on record.)
COURT: Did you open that personally?
WITNESS:
A No, your honor.
Q Now, mr. (sic) witness, why did you request the accused to open the bag?
A Because it is our duty also to inspect his belongings sir.
Q Why, why was it no, I reform my question your honor. Is it normal
procedure for you to examine anybody or to request anybody to open his bag?
A The fact that he was a foreigner, sir, it is also our duty to inspect the baggage,
it is our routine duty of a police (sic), sir.
Q Is that the normal duty of a police officer to request a person to open his bag?
A yes, sir.
Q Okey, (sic) you did not ask the accused, mr. (sic) witness, to open his bag?
A No, sir.

Q But you simply requested him to open the nag?


A Yes, sir. 30
CHUA obviously failed to understand the events that overran and overwhelmed him. The police officers already
introduced themselves to CHUA in three languages, but he remained completely deadpan. The police hence
concluded that CHUA failed to comprehend the three languages. When CHUA failed to respond again to the
police's request to open the bag, they resorted to what they called "sign language." They claimed that CHUA
finally understood their hand motions and gestures. This Court disagrees. If CHUA could not understand what
was orally articulated to him, how could he understand the police's "sign language." More importantly, it cannot
logically be inferred from his alleged cognizance of the "sign language" that he deliberately, intelligently, and
consciously waived his right against such an intrusive search. 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 instances, the accused even verbally replied to the request
demonstrating that he also understood the nature and consequences of such request. 31
It was eventually discovered that the bag contained the regulated subtance. But this is a trifling matter. If
evidence obtained during an illegal search even if tending to confirm or actually confirming initial information or
suspicion of felonious activity is absolutely considered inadmissible for any purpose in any proceeding, the same
being the fruit of a poisonous trees 32 how much more of "forbidden fruits" which did not confirm any initial
suspicion of criminal enterprise as in this case because the police admitted that they never harbored any
initial suspicion. Casting aside the regulated substance as evidence, the remaining evidence on record are
insufficient, feeble and ineffectual to sustain CHUA's conviction.
Indeed, the likelihood of CHUA having actually transported methamphetamine hydrochloride cannot be quickly
dispelled. But the constitutional guarantee against unreasonable searches and seizures cannot be so carelessly
disregarded, as overzealous police officers are sometimes wont to do. Fealty to the Constitution and the rights it
guarantees should be paramount in their minds, otherwise their good intentions will remain as such simply
because they have blundered. "There are those who say that . . . 'the criminal is to go free because the
constable has blundered.'. . . In some cases this will undoubtedly be the result. But . . . 'there is another
consideration the imperative of judicial integrity . . . The criminal goes free, if he must, but it is the law that
sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse,
its disregard of the charter of its own existence." 33
As to the averred glaring inconsistencies in the testimonies of the posecution witnesses, this Court considers
them trivial as they refer to insignificant details which will not affect the outcome of the case. On a passing note,
this Court calls the attention of the trial court regarding its erroneous appreciation of conspiracy. This aggravating
circumstance is without question unsupported by the records. Conspiracy was not included in the indictment nor
raised in the pleadings or proceedings of the trial court. It is also fundamental that conspiracy must be proven
just like any other criminal accusation, that is, independently and beyond reasonable doubt. 34
WHEREFORE, for all the foregoing, the decision of the Regional Trial Court, Branch 66, San Fernando, La
Union in Criminal Case No. 4037 is hereby REVERSED and SET ASIDE and accused-appellant CHUA HO SAN
@ TSAY HO SAN is hereby ACQUITTED of the crime charged, the evidence not being sufficient to establish his
guilt beyond reasonable doubt.
Costs de oficio.
SO ORDERED.

[G.R. No. 113447. October 9, 1997]

ALAIN MANALILI y DIZON, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES,
respondents.
DECISION
PANGANIBAN, J.:
When dealing with a rapidly unfolding and potentially criminal situation in the city streets where unarguably there
is no time to secure an arrest or a search warrant, policemen should employ limited, flexible responses -- like
stop-and-frisk -- which are graduated in relation to the amount of information they possess, the lawmen being
ever vigilant to respect and not to violate or to treat cavalierly the citizens constitutional rights against
unreasonable arrest, search and seizure.
The Case
This rule is reiterated as we resolve this petition for review on certiorari under Rule 45 of the Rules of Court,
seeking the reversal of the Decision of the Court of Appeals dated April 19, 1993 and its Resolution dated
January 20, 1994 in CA G.R. CR No. 07266, entitled People of the Philippines vs. Alain Manalili y Dizon.
In an Information dated April 11, 1988,[1] Petitioner Alain Manalili y Dizon was charged by Assistant Caloocan
City Fiscal E. Juan R. Bautista with violation of Section 8, Article II of Republic Act No. 6425, allegedly committed
as follows:[2]
That on or about the 11th day of April 1988 in Caloocan City, MM, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused without any authority of law, did then and there wilfully, unlawfully
and feloniously have in his custody, possession and control crushed marijuana residue, which is a prohibited
drug and knowing the same to be such.
Contrary to Law.
Upon his arraignment on April 21, 1988, appellant pleaded not guilty to the charge.[3] With the agreement of
the public prosecutor, appellant was released after filing a P10,000.00 bail bond.[4] After trial in due course, the
Regional Trial Court of Caloocan City, Branch 124, acting as a Special Criminal Court, rendered on May 19,
1989 a decision[5] convicting appellant of illegal possession of marijuana residue. The dispositive portion of the
decision reads:[6]
WHEREFORE, in view of all the foregoing, this Court finds the accused ALAIN MANALILI Y DIZON guilty
beyond reasonable doubt of violation of Section 8, Article II, of Republic Act No. 6425, as amended (Illegal
Possession of Marijuana residue), and hereby snetences (sic) said accused to suffer imprisonment of SIX (6)
YEARS and ONE (1) DAY; and to pay a fine of P6,000.00; and to pay the costs.
xxx

xxx

xxx.

Appellant remained on provisional liberty.[7] Atty. Benjamin Razon, counsel for the defense, filed a Notice of
Appeal[8] dated May 31, 1989. On April 19, 1993, Respondent Court[9] promulgated its assailed Decision,
denying the appeal and affirming the trial court:[10]
ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby AFFIRMED in all respects. Costs
against appellant.
Respondent Court[11] denied reconsideration via its assailed Resolution dated January 20, 1994, disposing:
ACCORDINGLY, accused-appellants motion for reconsideration is, as is hereby DENIED.
The Facts

Version of the Prosecution


The facts, as found by the trial court, are as follows:[12]
At about 2:10 oclock in the afternoon of April 11, 1988, policemen from the Anti-Narcotics Unit of the Kalookan
City Police Station were conducting a surveillance along A. Mabini street, Kalookan City, in front of the Kalookan
City Cemetery. The policemen were Pat. Romeo Espiritu and Pat. Anger Lumabas and a driver named Arnold
Enriquez was driving a Tamaraw vehicle which was the official car of the Police Station of Kalookan City. The
surveillance was being made because of information that drug addicts were roaming the area in front of the
Kalookan City Cemetery.
Upon reaching the Kalookan City Cemetery, the policemen alighted from their vehicle. They then chanced upon
a male person in front of the cemetery who appeared high on drugs. The male person was observed to have
reddish eyes and to be walking in a swaying manner. When this male person tried to avoid the policemen, the
latter approached him and introduced themselves as police officers. The policemen then asked the male person
what he was holding in his hands. The male person tried to resist. Pat. Romeo Espiritu asked the male person
if he could see what said male person had in his hands. The latter showed the wallet and allowed Pat. Romeo
Espiritu to examine the same. Pat. Espiritu took the wallet and examined it. He found suspected crushed
marijuana residue inside. He kept the wallet and its marijuana contents.
The male person was then brought to the Anti-Narcotics Unit of the Kalookan City Police Headquarters and was
turned over to Cpl. Wilfredo Tamondong for investigation. Pat. Espiritu also turned over to Cpl. Tamondong the
confiscated wallet and its suspected marijuana contents. The man turned out to be the accused ALAIN
MANALILI y DIZON.
Upon receipt of the confiscated suspected marijuana residue from Pat. Espiritu, Cpl. Tamondong wrapped the
same with a white sheet of paper on which he wrote Evidence A 4/11/88 Alain Manalili. The white sheet of
paper was marked as Exhibit E-3. The residue was originally wrapped in a smaller sheet of folded paper.
(Exhibit E-4).
Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic Chemistry Section requesting a
chemical analysis of the subject marijuana residue (Exhibit D). Cpl. Tamondong thereafter prepared a Joint
Affidavit of the apprehending policemen (Exhibit A). Pat. Angel Lumabas handcarried the referral slip (Exhibit
D) to the National Bureau of Investigation (NBI), including the subject marijuana residue for chemical analysis.
The signature of Pat. Lumabas appears on the left bottom corner of Exhibit D.
The Forensic Chemistry Section of the NBI received the aforesaid referral slip and the subject marijuana residue
at 7:40 oclock in the evening of April 11, 1988 as shown on the stamped portion of Exhibit D.
It was NBI Aida Pascual who conducted the microscopic and chemical examinations of the specimen which she
identified. (Exhibit E)[13] Mrs. Pascual referred to the subject specimen as crushed marijuana leaves in her
Certification dated April 11, 1988 (Exhibit F).[14] These crushed marijuana leaves gave positive results for
marijuana, according to the Certificate.
Mrs. Pascual also conducted a chromatographic examination of the specimen. In this examination, she also
found that the crushed marijuana leaves gave positive results for marijuana. She then prepared a Final Report
of her examinations (Exhibit G).
After conducting the examinations, Ms. Pascual placed the specimen in a white letter-envelope and sealed it.
(Exhibit E). She then wrote identification notes on this letter-envelope. (Exhibit E-1).
Pat. Lumabas carried the Certification marked as Exhibit F from the NBI Forensic Chemistry Section to Cpl.
Tamondong. Upon receipt thereof, Cpl. Tamondong prepared a referral slip addressed to the City Fiscal of
Kalookan City. (Exhibit C)

On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was walking in front of the cemetery
when he was apprehended.[15]
Version of the Defense
The trial court summarized the testimonies of the defense witnesses as follows:[16]
At about 2:00 oclock in the afternoon of April 11, 1988, the accused ALAIN MANALILI was aboard a tricycle at
A. Mabini street near the Kalookan City Cemetery on the way to his boarding house. Three policemen ordered
the driver of the tricycle to stop because the tricycle driver and his lone passenger were under the influence of
marijuana. The policemen brought the accused and the tricycle driver inside the Ford Fiera which the policemen
were riding in. The policemen then bodily searched the accused and the tricycle driver. At this point, the
accused asked the policemen why he was being searched and the policemen replied that he (accused) was
carrying marijuana. However, nothing was found on the persons of the accused and the driver. The policemen
allowed the tricycle driver to go while they brought the accused to the police headquarters at Kalookan City
where they said they would again search the accused.
On the way to the police headquarters, the accused saw a neighbor and signaled the latter to follow him. The
neighbor thus followed the accused to the Kalookan City Police Headquarters. Upon arrival thereat, the accused
was asked to remove his pants in the presence of said neighbor and another companion. The policemen turned
over the pants of the accused over a piece of bond paper trying to look for marijuana. However, nothing was
found, except for some dirt and dust. This prompted the companion of the neighbor of the accused to tell the
policemen to release the accused. The accused was led to a cell. The policemen later told the accused that
they found marijuana inside the pockets of his pants.
At about 5:00 oclock in the afternoon on the same day, the accused was brought outside the cell and was led to
the Ford Fiera. The accused was told by the policemen to call his parents in order to settle the case. The
policemen who led the accused to the Ford Fiera were Pat. Lumabas, Pat. Espiritu and Cpl. Tamondong. Pat.
Lumabas was the policeman who told the accused to call his parents. The accused did not call his parents and
he told the policemen that his parents did not have any telephone.
At about 5:30 oclock in the afternoon of the same day, the accused was brought in the office of an inquest
Fiscal. There, the accused told the Fiscal that no marijuana was found on his person but the Fiscal told the
accused not to say anything. The accused was then brought back to the Kalookan City Jail.
Loreto Medenilla, the tricycle driver who was allegedly with the accused when he and the accused were stopped
by policemen and then bodily searched on April 11, 1988, testified. He said that the policemen found nothing
either on his person or on the person of the accused when both were searched on April 11, 1988.
Roberto Abes, a neighbor of the accused, testified that he followed the accused at the Kalookan City Police
Headquarters on April 11, 1988. He said that the police searched the accused who was made to take off his
pants at the police headquarters but no marijuana was found on the body of the accused.
Appellant, who was recalled to the stand as sur-rebuttal witness, presented several pictures showing that
tricycles were allowed to ply in front of the Caloocan Cemetery.[17]
The Rulings of the Trial and the Appellate Courts
The trial court convicted petitioner of illegal possession of marijuana residue largely on the strength of the
arresting officers testimony. Patrolmen Espiritu and Lumabas were neutral and disinterested witnesses,
testifying only on what transpired during the performance of their duties. Substantially, they asserted that the
appellant was found to be in possession of a substance which was later identified as crushed marijuana residue.
The trial court disbelieved appellants defense that this charge was merely trumped up, because the appellant
neither took any legal action against the allegedly erring policemen nor moved for a reinvestigation before the
city fiscal of Kalookan City.

On appeal, Respondent Court found no proof that the decision of the trial court was based on speculations,
surmises or conjectures. On the alleged serious discrepancies in the testimonies of the arresting officers, the
appellate court ruled that the said inconsistencies were insubstantial to impair the essential veracity of the
narration. It further found petitioners contention -- that he could not be convicted of illegal possession of
marijuana residue -- to be without merit, because the forensic chemist reported that what she examined were
marijuana leaves.
Issues
Petitioner assigns the following errors on the part of Respondent Court:
I
The Court of Appeals erred in upholding the findings of fact of the trial court.
II
The Court of Appeals erred in upholding the conviction of (the) accused (and) in ruling that the guilt of the
accused had been proved (beyond) reasonable doubt.
III
The Court of Appeals erred in not ruling that the inconsistencies in the testimonies of the prosecution
witnesses were material and substantial and not minor.
IV
The Court of Appeals erred in not appreciating the evidence that the accused was framed for the purpose of
extorting money.
V
The Court of Appeals erred in not acquitting the accused when the evidence presented is consistent with
both innocence and guilt.
VI
The Court of Appeals erred in admitting the evidence of the prosecution which are inadmissible in
evidence.
Restated more concisely, petitioner questions (1) the admissibility of the evidence against him, (2) the credibility
of prosecution witnesses and the rejection by the trial and the appellate courts of the defense of extortion, and
(3) the sufficiency of the prosecution evidence to sustain his conviction.
The Courts Ruling
The petition has no merit.
First Issue: Admissibility of the Evidence Seized During a Stop-and-Frisk
Petitioner protests the admission of the marijuana leaves found in his possession, contending that they were
products of an illegal search. The Solicitor General, in his Comment, dated July 5, 1994, which was adopted as
memorandum for respondent, counters that the inadmissibility of the marijuana leaves was waived because
petitioner never raised this issue in the proceedings below nor did he object to their admissibility in evidence. He

adds that, even assuming arguendo that there was no waiver, the search was legal because it was incidental to
a warrantless arrest under Section 5 (a), Rule 113 of the Rules of Court.
We disagree with petitioner and hold that the search was valid, being akin to a stop-and-frisk. In the landmark
case of Terry vs. Ohio,[18] a stop-and-frisk was defined as the vernacular designation of the right of a police
officer to stop a citizen on the street, interrogate him, and pat him for weapon(s):
x x x (W)here a police officer observes an unusual conduct which leads him reasonably to conclude in light of
his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed
and presently dangerous, where in the course of investigating this behavior he identified himself as a policeman
and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his
reasonable fear for his own or others safety, he is entitled for the protection of himself and others in the area to
conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which
might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any
weapon seized may properly be introduced in evidence against the person from whom they were taken.[19]
In allowing such a search, the United States Supreme Court held that the interest of effective crime prevention
and detection allows a police officer to approach a person, in appropriate circumstances and manner, for
purposes of investigating possible criminal behavior even though there is insufficient probable cause to make an
actual arrest. This was the legitimate investigative function which Officer McFadden discharged in that case,
when he approached petitioner and his companion whom he observed to have hovered alternately about a street
corner for an extended period of time, while not waiting for anyone; paused to stare in the same store window
roughly 24 times; and conferred with a third person. It would have been sloppy police work for an officer of 30
years experience to have failed to investigate this behavior further.
In admitting in evidence two guns seized during the stop-and-frisk, the US Supreme Court held that what justified
the limited search was the more immediate interest of the police officer in taking steps to assure himself that the
person with whom he was dealing was not armed with a weapon that could unexpectedly and fatally be used
against him.
It did not, however, abandon the rule that the police must, whenever practicable, obtain advance judicial
approval of searches and seizures through the warrant procedure, excused only by exigent circumstances.
In Philippine jurisprudence, the general rule is that a search and seizure must be validated by a previously
secured judicial warrant; otherwise, such search and seizure is unconstitutional and subject to challenge.[20]
Section 2, Article III of the 1987 Constitution, gives this guarantee:
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.
Any evidence obtained in violation of the mentioned provision is legally inadmissible in evidence as a fruit of the
poisonous tree, falling under the exclusionary rule:
SEC. 3. x x x
(2)
Any evidence obtained in violation of x x x the preceding section shall be inadmissible for any purpose in
any proceeding.
This right, however, is not absolute.[21] The recent case of People vs. Lacerna enumerated five recognized
exceptions to the rule against warrantless search and seizure, viz.: (1) search incidental to a lawful arrest, (2)
search of moving vehicles, (3) seizure in plain view, (4) customs search, and (5) waiver by the accused
themselves of their right against unreasonable search and seizure.[22] In People vs. Encinada,[23] the Court
further explained that [i]n these cases, the search and seizure may be made only with probable cause as the

essential requirement. Although the term eludes exact definition, probable cause for a search is, at best, defined
as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a
cautious man in the 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 item(s), article(s) or object(s) sought in connection with said
offense or subject to seizure and destruction by law is in the place to be searched.
Stop-and-frisk has already been adopted as another exception to the general rule against a search without a
warrant. In Posadas vs. Court of Appeals ,[24] the Court held that there are many instances where a search and
seizure can be effected without necessarily being preceded by an arrest, one of which is stop-and-frisk. In said
case, members of the Integrated National Police of Davao stopped petitioner, who was carrying a buri bag and
acting suspiciously. They found inside petitioners bag one .38-cal. revolver with two rounds of live ammunition,
two live ammunitions for a .22-cal. gun and a tear gas grenade. In upholding the legality of the search, the Court
said that to require the police officers to search the bag only after they had obtained a search warrant might
prove to be useless, futile and much too late under the circumstances. In such a situation, it was reasonable for
a police officer to stop a suspicious individual briefly in order to determine his identity or to maintain the status
quo while obtaining more information, rather than to simply shrug his shoulders and allow a crime to occur.
In the case at hand, Patrolman Espiritu and his companions observed during their surveillance that appellant had
red eyes and was wobbling like a drunk along the Caloocan City Cemetery, which according to police information
was a popular hangout of drug addicts. From his experience as a member of the Anti-Narcotics Unit of the
Caloocan City Police, such suspicious behavior was characteristic of drug addicts who were high. The
policemen therefore had sufficient reason to stop petitioner to investigate if he was actually high on drugs.
During such investigation, they found marijuana in petitioners possession:[25]
FISCAL RALAR:
Q
City?

And why were you conducting surveillance in front of the Caloocan Cemetery, Sangandaan, Caloocan

A
Because there were some informations that some drug dependents were roaming around at A. Mabini
Street in front of the Caloocan Cemetery, Caloocan City.
xxx

xxx

xxx

Q
While you were conducting your surveillance, together with Pat. Angel Lumabas and one Arnold
Enriquez, what happened, if any?
A
We chanced upon one male person there in front of the Caloocan Cemetery then when we called his
attention, he tried to avoid us, then prompting us to approach him and introduce ourselves as police officers in a
polite manner.
xxx

xxx

xxx

Could you describe to us the appearance of that person when you chanced upon him?

That person seems like he is high on drug.

How were you able to say Mr. Witness that that person that you chanced upon was high on drug?

Because his eyes were red and he was walking on a swaying manner.

What was he doing in particular when you chanced upon him?

He was roaming around, sir.

You said that he avoided you, what did you do when he avoided you?

We approached him and introduced ourselves as police officers in a polite manner, sir.

How did you introduce yourselves?

In a polite manner, sir.

What did you say when you introduced yourselves?

We asked him what he was holding in his hands, sir.

And what was the reaction of the person when you asked him what he was holding in his hands?

He tried to resist, sir.

When he tried to resist, what did you do?

I requested him if I can see what was he was(sic) holding in his hands.

What was the answer of the person upon your request?

He allowed me to examine that something in his hands, sir.

xxx

xxx

What was he holding?

He was holding his wallet and when we opened it, there was a marijuana (sic) crushed residue.

xxx

Furthermore, we concur with the Solicitor Generals contention that petitioner effectively waived the
inadmissibility of any evidence illegally obtained when he failed to raise this issue or to object thereto during the
trial. A valid waiver of a right, more particularly of the constitutional right against unreasonable search, requires
the concurrence of the following requirements: (1) the right to be waived existed; (2) the person waiving it had
knowledge, actual or constructive, thereof; and (3) he or she had an actual intention to relinquish the right.[26]
Otherwise, the Courts will indulge every reasonable presumption against waiver of fundamental safeguards and
will not deduce acquiescence from the failure to exercise this elementary right. In the present case, however,
petitioner is deemed to have waived such right for his failure to raise its violation before the trial court. In
petitions under Rule 45, as distinguished from an ordinary appeal of criminal cases where the whole case is
opened for review, the appeal is generally limited to the errors assigned by petitioner. Issues not raised below
cannot be pleaded for the first time on appeal.[27]
Second Issue: Assessment of Evidence
Petitioner also contends that the two arresting officers testimony contained polluted, irreconcilable and
unexplained contradictions which did not support petitioners conviction.
We disagree. Time and again, this Court has ruled that the trial courts assessment of the credibility of
witnesses, particularly when affirmed by the Court of Appeals as in this case, is accorded great weight and
respect, since it had the opportunity to observe their demeanor and deportment as they testified before it.
Unless substantial facts and circumstances have been overlooked or misappreciated by the trial court which, if
considered, would materially affect the result of the case, we will not countenance a departure from this rule.[28]
We concur with Respondent Courts ruling:

(e)ven assuming as contended by appellant that there had been some inconsistencies in the prosecution
witnesses testimonies, We do not find them substantial enough to impair the essential veracity of their narration.
In People vs. Avila, it was held that As long as the witnesses concur on the material points, slight differences in
their remembrance of the details, do not reflect on the essential veracity of their statements.
However, we find that, aside from the presumption of regularity in the performance of duty, the bestowal of full
credence on Pat. Espiritus testimony is justified by tangible evidence on record. Despite Pat. Lumabas
contradictory testimony, that of Espiritu is supported by the Joint Affidavit[29] signed by both arresting policemen.
The question of whether the marijuana was found inside petitioners wallet or inside a plastic bag is immaterial,
considering that petitioner did not deny possession of said substance. Failure to present the wallet in evidence
did not negate that marijuana was found in petitioners possession. This shows that such contradiction is minor,
and does not destroy Espiritus credibility.[30]
Third Issue: Sufficiency of Evidence
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.[31]
The substance found in petitioners possession was identified by NBI Forensic Chemist Aida Pascual to be
crushed marijuana leaves. Petitioners lack of authority to possess these leaves was established. His
awareness thereof was undeniable, considering that petitioner was high on drugs when stopped by the
policemen and that he resisted when asked to show and identify the thing he was holding. Such behavior clearly
shows that petitioner knew that he was holding marijuana and that it was prohibited by law.
Furthermore, like the trial and the appellate courts, we have not been given sufficient grounds to believe the
extortion angle in this case. Petitioner did not file any administrative or criminal case against the arresting
officers or present any evidence, other than his bare claim. His argument that he feared for his life was lame
and unbelievable, considering that he was released on bail and continued to be on bail as early as April 26,
1988.[32] Since then, he could have made the charge in relative safety, as he was no longer in the custody of
the police. His defense of frame-up, like alibi, is viewed by this Court with disfavor, because it is easy to concoct
and fabricate.[33]
The Proper Penalty
The trial and the appellate courts overlooked the Indeterminate Sentence Law (Act No. 4103, as amended) by
sentencing petitioner to a straight penalty of six years and one day of imprisonment, aside from the imposed fine
of six thousand pesos. This Act requires the imposition of an indeterminate penalty:
SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or
its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which
shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said
Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code
for the offense; and if the offense is punished by any other law, 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 shall not be less than the minimum term prescribed by the same. (As amended by Act No. 4225.)
SEC. 2. This Act shall not apply to persons convicted of offenses punished with death penalty or lifeimprisonment; to those convicted of treason; to those convicted of misprision of treason, rebellion, sedition or
espionage; to those convicted of piracy; to those who are habitual delinquents; to those who shall have escaped
from confinement or evaded sentence; to those who having been granted conditional pardon by the Chief
Executive shall have violated the terms thereof; to those whose maximum term of imprisonment does not exceed
one year, not to those already sentenced by final judgment at the time of approval of this Act, except as provided
in Section 5 hereof. (Underscoring supplied)

The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the following penalty for illegal
possession of marijuana:
Sec. 8. x x x x
The penalty of imprisonment ranging from six years and one day to twelve years and a fine ranging from six
thousand to twelve thousand pesos shall be imposed upon any person who, unless authorized by law, shall
possess or use Indian hemp.
Prescinding from the foregoing, the Court holds that the proper penalty is an indeterminate sentence of
imprisonment ranging from six years and one day to twelve years.[34]
WHEREFORE, the assailed Decision and Resolution are hereby AFFIRMED with MODIFICATION. Petitioner is
sentenced to suffer IMPRISONMENT of SIX (6) YEARS, as minimum, to TWELVE (12) YEARS, as maximum,
and to PAY a FINE of SIX THOUSAND PESOS. Costs against petitioner.
SO ORDERED.

[G.R. Nos. 136066-67. February 4, 2003]


PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BINAD SY CHUA, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
Accused-appellant Binad Sy Chua was charged with violation of Section 16, Article III of R.A. 6425, as amended
by R.A. 7659, and for Illegal Possession of ammunitions in two separate Informations which read as follows:
Criminal Case No. 96-507[1]
That on or about the 21st day of September 1996, 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 control two (2) plastic bags containing Methamphetamine Hydrochloride (SHABU)
weighing more or less two (2) kilos and one (1) small plastic bag containing Methamphetamine Hydrocloride
weighing more or less fifteen (15) grams, which is a regulated drug, without any authority whatsoever.
Criminal Case No. 96-513[2]
That on or about the 21st day of September 1996, 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 control twenty (20) pieces of live .22 cal. ammunitions, without first having obtained
a license or permit to possess or carry the same.

Accused-appellant pleaded not guilty on arraignment. The two cases were then jointly tried.
The prosecution presented three (3) witnesses, all members of the police force of Angeles City. Their
testimonies can be synthesized as follows:
On September 21, 1996, at around 10:00 in the evening, SPO2 Mario Nulud and PO2 Emmeraldo Nunag
received a report from their confidential informant that accused-appellant was about to deliver drugs that night at
the Thunder Inn Hotel in Balibago, Angeles City. The informer further reported that accused-appellant distributes
illegal drugs in different karaoke bars in Angeles City. On the basis of this lead, the PNP Chief of Angeles City,
Col. Neopito Gutierrez, immediately formed a team of operatives composed of Major Bernardino, Insp. Tullao,
Insp. Emmanuel Nunag, P02 Emmeraldo Nunag, SP01 Fernando Go, and some civilian assets, with SPO2
Mario Nulud, as team investigator. The group of SPO2 Nulud, PO2 Nunag and the civilian informer positioned
themselves across McArthur Highway near Bali Hai Restaurant, fronting Thunder Inn Hotel. The other group
acted as their back up.
At around 11:45 in the evening, their informer pointed to a car driven by accused-appellant which just arrived and
parked near the entrance of the Thunder Inn Hotel. After accused-appellant alighted from the car carrying a
sealed Zest-O juice box, SPO2 Nulud and PO2 Nunag hurriedly accosted him and introduced themselves as
police officers. As accused-appellant pulled out his wallet, a small transparent plastic bag with a crystalline
substance protruded from his right back pocket. Forthwith, SPO2 Nulud subjected him to a body search which
yielded twenty (20) pieces of live .22 caliber firearm bullets from his left back pocket. When SPO2 Nunag peeked
into the contents of the Zest-O box, he saw that it contained a crystalline substance. SPO2 Nulud instantly
confiscated the small transparent plastic bag, the Zest-O juice box, the twenty (20) pieces of .22 caliber firearm
bullets and the car used by accused-appellant. Afterwards, SPO2 Nulud and the other police operatives who
arrived at the scene brought the confiscated items to the office of Col. Guttierez at the PNP Headquarters in
Camp Pepito, Angeles City.[3]
When Col. Gutierrez opened the sealed Zest-O juice box, he found 2 big plastic bags containing crystalline
substances. The initial field test conducted by SPO2 Danilo Cruz at the PNP Headquarters revealed that the
siezed items contained shabu.[4] Thereafter, SPO2 Nulud together with accused-appellant brought these items
for further laboratory examination to the Crime Laboratory at Camp Olivas, San Fernando, Pampanga. After due
testing, forensic chemist S/Insp. Daisy Babor concluded that the crystalline substances yielded positive results
for shabu. The small plastic bag weighed 13.815 grams while the two big plastic bags weighed 1.942 kilograms
of shabu.[5]
Accused-appellant vehemently denied the accusation against him and narrated a different version of the
incident.
Accused-appellant alleged that on the night in question, he was driving the car of his wife to follow her and his
son to Manila. He felt sleepy, so he decided to take the old route along McArthur Highway. He stopped in front of
a small store near Thunder Inn Hotel in Balibago, Angeles City to buy cigarettes and candies. While at the store,
he noticed a man approach and examine the inside of his car. When he called the attention of the onlooker, the
man immediately pulled out a .45 caliber gun and made him face his car with raised hands. The man later on
identified himself as a policeman. During the course of the arrest, the policeman took out his wallet and
instructed him to open his car. He refused, so the policeman took his car keys and proceeded to search his car.
At this time, the police officers companions arrived at the scene in two cars. PO2 Nulud, who just arrived at the
scene, pulled him away from his car in a nearby bank, while the others searched his car.
Thereafter, he was brought to the Salakot Police Station and was held inside a bathroom for about fifteen
minutes until Col. Guttierez arrived, who ordered his men to call the media. In the presence of reporters, Col.
Guttierez opened the box and accused-appellant was made to hold the box while pictures were being taken.[6]
Wilfredo Lagman corroborated the story of the accused-appellant in its material points. He testified that he
witnessed the incident while he was conducting a routine security check around the premises of the Guess
Building, near Thunder Inn Hotel.[7]
On September 15, 1998 the Regional Trial Court of Angeles City, Branch 59, rendered a decision,[8] the
dispositive portion of which reads:

WHEREFORE, the foregoing considered, judgement is hereby rendered as follows:


1.
In Criminal Case No. 96-513 for Illegal Possession of Ammunitions, the accused is hereby acquitted of
the crime charged for insufficiency of evidence.
2.
In Criminal Case No. 96-507 for Illegal Possession of 1,955.815 grams of shabu, accused Binad Sy
Chua is found GUILTY beyond reasonable doubt of the crime charge and is hereby sentenced to suffer the
penalty of reclusion perpetua and to pay a fine of One Million (P1,000,000.00) Pesos.
SO ORDERED.[9]
Hence, the instant appeal where accused-appellant raised the following errors:
THE TRIAL COURT ERRED GRAVELY IN ITS FOLLOWING FINDINGS:
A.

THE ARREST OF ACCUSED-APPELLANT BINAD SY CHUA WAS LAWFUL;

B.
THE SEARCH OF HIS PERSON AND THE SUBSEQUENT CONFISCATION OF SHABU ALLEGEDLY
FOUND ON HIM WERE CONDUCTED IN A LAWFUL AND VALID MANNER;
C.
THE PROSECUTION EVIDENCE SUPPORTING THE CRIME CHARGED IS SUFICIENT TO PROVE
THE GUILT OF THE ACCUSED-APPELLANT BEYOND REAONABLE DOUBT.[10]
Accused-appellant maintains that the warrantless arrest and search made by the police operatives was unlawful;
that in the light of the testimony of SPO2 Nulud that prior to his arrest he has been under surveillance for two
years, there was therefore no compelling reason for the haste within which the arresting officers sought to arrest
and search him without a warrant; that the police officers had sufficient information about him and could have
easily arrested him. Accused-appellant further argues that since his arrest was null an void, the drugs that were
seized should likewise be inadmissible in evidence since they were obtained in violation of his constitutional
rights against unreasonable search and seizures and arrest.
Accused-appellants argument is impressed with merit.
Although the trial courts evaluation of the credibility of witnesses and their testimonies is entitled to great respect
and will not be disturbed on appeal, however, this rule is not a hard and fast one.
It is a time-honored rule that the assessment of the trial court with regard to the credibility of witnesses deserves
the utmost respect, if not finality, for the reason that the trial judge has the prerogative, denied to appellate
judges, of observing the demeanor of the declarants in the course of their testimonies. The only exception is if
there is a showing that the trial judge overlooked, misunderstood, or misapplied some fact or circumstance of
weight and substance that would have affected the case.[11]
In the case at bar, there appears on record some facts of weight and substance that have been overlooked,
misapprehended, or misapplied by the trial court which casts doubt on the guilt of accused-appellant. An appeal
in a criminal case opens the whole case for review and this includes the review of the penalty and indemnity
imposed by the trial court.[12] We are clothed with ample authority to review matters, even those not raised on
appeal, if we find that their consideration is necessary in arriving at a just disposition of the case. Every
circumstance in favor of the accused shall be considered.[13] This is in keeping with the constitutional mandate
that every accused shall be presumed innocent unless his guilt is proven beyond reasonable doubt.
First, with respect to the warrantless arrest and consequent search and seizure made upon accused-appellant,
the court a quo made the following findings:
Accused was searched and arrested while in possession of regulated drugs (shabu). A crime was actually being
committed by the accused and he was caught in flagrante delicto. Thus, the search made upon his personal

effects x x x allow a warrantless search incident to a lawful arrest. x x x x


While it is true that the police officers were not armed with a search warrant when the search was made over the
personal affects (sic) of the 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.
xxx

xxx

xxx

In the present case, the police received information that the accused will distribute illegal drugs that evening at
the Thunder Inn Hotel and its vicinities. The police officer had to act quickly and there was no more time to
secure a search warrant. The search is valid being akin to a stop and frisk.[14]
A thorough review of the evidence on record belies the findings and conclusion of the trial court. It confused the
two different concepts of a search incidental to a lawful arrest (in flagrante delicto) and of a stop-and-frisk.
In Malacat v. Court of Appeals,[15] we distinguished the concepts of a stop-and-frisk and of a search incidental
to a lawful arrest, to wit:
At the outset, we note that the trial court confused the concepts of a stop-and-frisk and of a search incidental
to a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof
before they may be validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental
search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was
merely used as a pretext for conducting a search. In this instance, the law requires that there first be arrest
before a search can be madethe process cannot be reversed. At bottom, assuming a valid arrest, the
arresting officer may search the person of the arrestee and the area within which the latter may reach for a
weapon or for evidence to destroy, and seize any money or property found which was used in the commission of
the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee
with the means of escaping or committing violence.
xxx

xxx

xxx

We now proceed to the justification for and allowable scope of a stop-and-frisk as a limited protective search
of outer clothing for weapons, as laid down in Terry, thus:
We merely hold today that where a police officer observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is
dealing may be armed and presently dangerous, where in the course of investigating this behavior he
identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of
the encounter serves to dispel his reasonable fear for his own or others safety, he is entitled for the protection of
himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under
the Fourth amendment.
Other notable points of Terry are that while probable cause is not required to conduct a stop-and-frisk, it
nevertheless holds that mere suspicion or a hunch will not validate a stop-and-frisk. A genuine reason
must exist, in light of the police officers experience and surrounding conditions, to warrant the belief
that the person detained has weapons concealed about him. Finally, a stop-and-frisk serves a two-fold
interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that
a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for
purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing
interest of safety and self-preservation which permit the police officer to take steps to assure himself that the
person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used
against the police officer.[16] (Emphasis ours)

In the case at bar, neither the in flagrante delicto nor the stop and frisk principles is applicable to justify the
warrantless arrest and consequent search and seizure made by the police operatives on accused-appellant.
In in flagrante delicto arrests, the accused is apprehended at the very moment he is committing or attempting to
commit or has just committed an offense in the presence of the arresting officer. Emphasis should be laid on the
fact that the law requires that the search be incidental to a lawful arrest. Therefore it is beyond cavil that a lawful
arrest must precede the search of a person and his belongings.[17] Accordingly, for this exception to apply two
elements must concur: (1) the person to be arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the
presence or within the view of the arresting officer.[18]
We find the two aforementioned elements lacking in the case at bar. The record reveals that when accusedappellant arrived at the vicinity of Thunder Inn Hotel, he merely parked his car along the McArthur Highway,
alighted from it and casually proceeded towards the entrance of the Hotel clutching a sealed Zest-O juice box.
Accused-appellant did not act in a suspicious manner. For all intents and purposes, there was no overt
manifestation that accused-appellant has just committed, is actually committing, or is attempting to commit a
crime.
However, notwithstanding the absence of any overt act strongly manifesting a violation of the law, the group of
SPO2 Nulud hurriedly accosted[19] accused-appellant and later on introduced themselves as police
officers.[20] Accused-appellant was arrested before the alleged drop-off of shabu was done. Probable cause in
this case was more imagined than real. Thus, there could have been no in flagrante delicto arrest preceding the
search, in light of the lack of an overt physical act on the part of accused-appellant that he had committed a
crime, was committing a crime or was going to commit a crime. As applied to in flagrante delicto arrests, it has
been held that reliable information alone, absent any overt act indicative of a felonious enterprise in the
presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would
justify an in flagrante delicto arrest.[21] Hence, in People v. Aminudin,[22] we ruled that the accused-appellant
was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or
that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there
was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers
innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became suspect and so subject to apprehension (Emphasis supplied).
The reliance of the prosecution in People v. Tangliben[23] to justify the polices actions is misplaced. In the said
case, based on the information supplied by informers, police officers conducted a surveillance at the Victory
Liner Terminal compound in San Fernando, Pampanga against persons who may commit misdemeanors and
also on those who may be engaged in the traffic of dangerous drugs. At 9:30 in the evening, the policemen
noticed a person carrying a red travelling bag who was acting suspiciously. They confronted him and
requested him to open his bag but he refused. He acceded later on when the policemen identified themselves.
Inside the bag were marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the
activities of Tangliben on the night of his arrest.
In the instant case, the apprehending policemen already had prior knowledge from the very same informant of
accused-appellants activities. No less than SPO2 Mario Nulud, the team leader of the arresting operatives,
admitted that their informant has been telling them about the activities of accused-appellant for two years prior to
his actual arrest on September 21, 1996. An excerpt of the testimony of SPO2 Mario Nulud reveals the illegality
of the arrest of accused-appellant as follows:
Q.

Did the civilian informer of yours mentioned to you the name of this chinese drug pusher?

A.

He is mentioning the name of Binad or Jojo Chua.

Q.

And he had been mentioning these names to you even before September 21, 1996?

A.

Yes, sir.

Q.
How long did this civilian informant have been telling you about the activities of this chinese drug pusher
reckoning in relation to September 21, 1996?
A.

That was about two years already.

Q.
Nothwithstanding his two years personal knowledge which you gained from the civilian informant that
this chinese drug pusher have been engaged pushing drugs here in Angeles City, you did not think of applying
for a search warrant for this chinese drug pusher?
A.

No, sir.

xxx

xxx

xxx

Q.
When you accosted this Binad Chua, he was casually walking along the road near the Thunder Inn
Hotel, is that right?
A.

He was pinpointed by the civilian informer that he is the chinese drug pusher that will deliver to him also.

Q.
My question Mr. Witness, is this Jojo Chua or Binad Chua the accused in this case he alighted with a
Corolla car with plate number 999, I think, he just alighted when you saw him?
A.

Yes, sir.

Q.

From the car when he alighted, he casually walked towards near the entrance of the Thunder Inn Hotel?

A.
He was about to proceed towards Thunder Inn Hotel but he was pinpointed already by the civilian
informer.
Q.

But he was just walking towards the entrance of the Thunder Inn Hotel?

A.

Yes, sir, he is about to enter Thunder Inn Hotel.

xxx

xxx

xxx

Q.
While he was walking, then you and PO2 Nunag pounced on him as you used pounced on him in your
affidavit?
A.

Yes, sir.

xxx

xxx

Q.

And you pounced on Jojo Chua before you saw that alleged small plastic bag, is that correct?

A.

Yes, sir.

Q.

And after that you also confiscated this Zesto juice box?

A.

Yes, sir.

xxx

xxx

Q.

But would you agree with me that not all crystalline substance is shabu?

xxx

xxx

A.
No, that is shabu and it is been a long time that we have been tailing the accused that he is really a drug
pusher.
Q.
So you have been tailing this accused for quite a long time that you are very sure that what was brought
by him was shabu?
A.

Yes, sir.[24]

The police operatives cannot feign ignorance of the alleged illegal activities of accused-appellant. Considering
that the identity, address and activities of the suspected culprit was already ascertained two years previous to
the actual arrest, there was indeed no reason why the police officers could not have obtained a judicial warrant
before arresting accused-appellant and searching his person. Whatever information their civilian asset relayed to
them hours before accused-appellants arrest was not a product of an on-the-spot tip which may excuse them
from obtaining a warrant of arrest. Accordingly, the arresting teams contention that their arrest of accusedappellant was a product of an on-the-spot tip is untenable.
In the same vein, there could be no valid stop-and-frisk in this case. A stop-and-frisk was defined as the act of a
police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s)[25] or contraband. The
police officer should properly introduce himself and make initial inquiries, approach and restrain a person who
manifests unusual and suspicious conduct, in order to check the latters outer clothing for possibly concealed
weapons.[26] The apprehending police officer must have a genuine reason, in accordance with the police
officers experience and the surrounding conditions, to warrant the belief that the person to be held has weapons
(or contraband) concealed about him.[27] It should therefore be emphasized that a search and seizure should
precede the arrest for this principle to apply.[28]
This principle of stop-and-frisk search was invoked by the Court in Manalili v. Court of Appeals.[29] In said
case, the policemen chanced upon the accused who had reddish eyes, walking in a swaying manner, and who
appeared to be high on drugs. Thus, we upheld the validity of the search as akin to a stop-and-frisk. In People
v. Solayao,[30] we also found justifiable reason to stop-and-frisk the accused after considering the following
circumstances: the drunken actuations of the accused and his companions, the fact that his companions fled
when they saw the policemen, and the fact that the peace officers were precisely on an intelligence mission to
verify reports that armed persons where roaming the vicinity.
The foregoing circumstances do not obtain in the case at bar. There was no valid stop-and-frisk in the case of
accused-appellant. To reiterate, accused-appellant was first arrested before the search and seizure of the
alleged illegal items found in his possession. The apprehending police operative failed to make any initial inquiry
into accused-appellants business in the vicinity or the contents of the Zest-O juice box he was carrying. The
apprehending police officers only introduced themselves when they already had custody of accused-appellant.
Besides, at the time of his arrest, accused-appellant did not exhibit manifest unusual and suspicious conduct
reasonable enough to dispense with the procedure outlined by jurisprudence and the law. There was, therefore,
no genuine reasonable ground for the immediacy of accused-appellants arrest.
Obviously, the acts of the police operatives wholly depended on the information given to them by their
confidential informant. Accordingly, before and during that time of the arrest, the arresting officers had no
personal knowledge that accused-appellant had just committed, was committing, or was about to commit a
crime.
At any rate, even if the fact of delivery of the illegal drugs actually occurred, accused-appellants warrantless
arrest and consequent search would still not be deemed a valid stop-and frisk. For a valid stop-and-frisk the
search and seizure must precede the arrest, which is not so in this case. Besides, as we have earlier
emphasized, the information about the illegal activities of accused-appellant was not unknown to the
apprehending officers. Hence, the search and seizure of the prohibited drugs cannot be deemed as a valid stopand-frisk.
Neither can there be valid seizure in plain view on the basis of the seized items found in accused-appellants
possession. First, there was no valid intrusion. Second, the evidence, i.e., the plastic bags found in the Zest-O
juice box which contained crystalline substances later on identified as methamphetamine hydrochloride (shabu)

and the 20 rounds of .22 caliber ammunition, were not inadvertently discovered. The police officers first arrested
accused-appellant and intentionally searched his person and peeked into the sealed Zest-O juice box before
they were able to see and later on ascertain that the crystalline substance was shabu. There was no clear
showing that the sealed Zest-O juice box accused-appellant carried contained prohibited drugs. Neither were the
small plastic bags which allegedly contained crystalline substance and the 20 rounds of .22 caliber ammunition
visible. These prohibited substances were not in plain view of the arresting officers; hence, inadmissible for
being the fruits of the poisonous tree.
In like manner, the search cannot be categorized as a search of a moving vehicle, a consented warrantless
search, or a customs search. It cannot even fall under exigent and emergency circumstances, for the evidence
at hand is bereft of any such showing.
All told, the absence of ill-motive on the part of the arresting team cannot simply validate, much more cure, the
illegality of the arrest and consequent warrantless search of accused-appellant. Neither can the presumption of
regularity of performance of function be invoked by an officer in aid of the process when he undertakes to justify
an encroachment of rights secured by the Constitution.[31] In People v. Nubla,[32] we clearly stated that:
The presumption of regularity in the performance of official duty cannot be used as basis for affirming accusedappellants conviction because, first, the presumption is precisely just that a mere presumption. Once
challenged by evidence, as in this case, xxx [it] cannot be regarded as binding truth. Second, the presumption of
regularity in the performance of official functions cannot preponderate over the presumption of innocence that
prevails if not overthrown by proof beyond reasonable doubt.
Furthermore, we entertain doubts whether the items allegedly seized from accused-appellant were the very
same items presented at the trial of this case. The record shows that the initial field test where the items seized
were identified as shabu, was only conducted at the PNP headquarters of Angeles City.[33] The items were
therefore not marked at the place where they were taken. In People v. Casimiro,[34] we struck down with
disbelief the reliability of the identity of the confiscated items since they were not marked at the place where they
were seized, thus:
The narcotics field test, which initially identified the seized item as marijuana, was likewise not conducted at the
scene of the crime, but only at the narcotics office. There is thus reasonable doubt as to whether the item
allegedly seized from accused-appellant is the same brick of marijuana marked by the policemen in their
headquarters and given by them to the crime laboratory.
The governments drive against illegal drugs needs the support of every citizen. But it should not undermine the
fundamental rights of every citizen as enshrined in the Constitution. The constitutional guarantee against
warrantless arrests and unreasonable searches and seizures cannot be so carelessly disregarded as
overzealous police officers are sometimes wont to do. Fealty to the constitution and the rights it guarantees
should be paramount in their minds, otherwise their good intentions will remain as such simply because they
have blundered. The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a
government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own
existence.[35]
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Angeles City, Branch 59, in
Criminal Cases Nos. 96-507 and 96-513, convicting accused-appellant Binad Sy Chua of violation of Section 16,
Article III, Republic Act No. 6425 and sentencing him to suffer the penalty of reclusion perpetua and to pay a fine
of P1,000,000.00, is REVERSED and SET ASIDE. Accused-appellant Binad Sy Chua is ACQUITTED on the
ground of reasonable doubt. Consequently, he is ordered forthwith released from custody, unless he is being
lawfully held for another crime.
SO ORDERED.

G.R. Nos. 129756-58. January 28, 2000]


PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULIAN DEEN ESCAO, VIRGILIO TOME USANA
and JERRY CASABAAN LOPEZ, accused.
VIRGILIO TOME USANA and JERRY CASABAAN LOPEZ, accused-appellants.
DECISION
DAVIDE, JR., C.J.:
Accused-appellants Virgilio T. Usana and Jerry C. Lopez, together with Julian D. Escao, were charged before
the Regional Trial Court of Makati City, Branch 64, in Criminal Case No. 95-936 with violation of Section 4, Article
II of Republic Act No. 6425,[1] as amended. Escao and Usana were also charged in Criminal Case No. 95-937
and No. 95-938 with illegal possession of firearms and ammunition in violation of Presidential Decree No. 1866.
The accusatory portion of the Information in Criminal Case No. 95-936 reads as follows:
That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and all of them mutually helping and aiding one another, without being
authorized by law, did then and there willfully, unlawfully and feloniously sell, distribute and
transport 3.3143 kilograms of "HASHISH", a prohibited drug, in violation of the above-cited law.
[2]
The charge against accused Julian D. Escao in Criminal Case No. 95-937 reads as follows:
That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, 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, direct custody and control one (1) pc.
of cal. .45 pistol, government model with Serial No. 990255, with magazine containing 7 live
ammos and two (2) more magazines for cal. .45 pistol containing 7 live ammos each, without
first securing the necessary license or permit from the proper government authorities and which
firearm and ammunitions he carried outside of his residence.[3]
The accusatory portion of the information against Virgilio Usana in Criminal Case No. 95-938 reads:
That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, 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, direct custody and control One (1) pc.
of rifle carbine with Serial No. 7176644 with a banana type magazine loaded with 28 live
ammunitions without first securing the necessary license or permit from the proper government
authorities and which firearms and ammunitions he carried outside of his residence.[4] Es-mso
The cases were consolidated and jointly tried.

In its Decision of 30 May 1997,[5] which was promulgated on 17 June 1997, the trial court convicted Escao and
herein appellants in Criminal Case No. 95-936, Escao in Criminal Case No. 95-937, and appellant Usana in
Criminal Case No. 95-938.
Escao filed on 19 June 1997 a Notice of Appeal, but on 16 July 1997, he filed a Manifestation and Withdrawal
of Appeal,[6] which was granted by the trial court in its Order of 17 July 1997.[7]
Usana and Lopez filed a Notice of Appeal on 30 June 1997,[8] manifesting therein that they were appealing to
this Court and to the Court of Appeals. Considering the penalties imposed, the decision in Criminal Case No. 95936 was appealed to this Court, while the Court of Appeals took cognizance of the appeal from Criminal Case
No. 95-938. In its Order of 30 June 1997,[9] the trial court gave due course to the appeal and ordered the
transmittal of the record in Criminal Case No. 95-936 to this Court and the record of Criminal Case No. 95-938 to
the Court of Appeals.
Accordingly, it is only the appeal from the judgment in Criminal Case No. 95-936 that is now before this Court.
Due to the differing versions of the parties, there is a need to narrate each of the testimonies of the key players
in this case.
The prosecution has this version of the events: On the 5th of April 1995 and during a COMELEC gun ban, some
law enforcers of the Makati Police, namely, PO3 Eduardo P. Suba, PO3 Bernabe Nonato, SPO4 Juan de los
Santos, and Inspector Ernesto Guico,[10] were manning a checkpoint at the corner of Senator Gil Puyat Ave.
and the South Luzon Expressway (SLEX).[11] They were checking the cars going to Pasay City, stopping those
they found suspicious, and imposing merely a running stop on the others. At about past midnight, they stopped a
Kia Pride car with Plate No. TBH 493.[12] PO3 Suba saw a long firearm on the lap of the person seated at the
passenger seat, who was later identified as Virgilio Usana. They asked the driver, identified as Escao, to open
the door. PO3 Suba seized the long firearm, an M-1 US Carbine, from Usana. When Escao, upon order of the
police, parked along Sen. Gil Puyat Ave., the other passengers were search for more weapons. Their search
yielded a .45 caliber firearm which they seized from Escao.[13]
The three passengers were thereafter brought to the police station Block 5 in the Kia Pride driven by PO3
Nonato.[14] Upon reaching the precinct, Nonato turned over the key to the desk officer. Since SPO4 de los
Santos was suspicious of the vehicle, he requested Escao to open the trunk.[15] Escao readily agreed and
opened the trunk himself using his key.[16] They noticed a blue bag inside it,[17] which they asked Escao to
open. The bag contained a parcel wrapped in tape,[18] which, upon examination by National Bureau of
Investigation Forensic Chemist Emilia A. Rosaldos, was found positive for hashish weighing 3.3143 kilograms.
[19] lex
A certification was issued by the Firearms and Explosive Office of the National Police Commission
(NAPOLCOM) to the effect that Escao was not a licensed/registered firearms holder of any kind and caliber.
Usana, however, according to the same certification is a licensed/registered holder of a pistol Colt .45 caliber
with license issued on 14 October 1994 and to expire on April 1996. Usana also has an application for a pistol
Uzi Cal. 9mm. Neither of the two guns seized were licensed/registered with the NAPOLCOM.[20]
For his part, Escao (or Jovy) testified that on the 4th of April 1995, between 11:00 and 11:30 in the morning, he
was at the lobby of Legend Hotel, at Pioneer St., Mandaluyong City, to meet with his business partners, including
Usana and Lopez. He saw his friend and erstwhile co-employee at Philippine Airlines, Ramon Cabrera, who had
borrowed his wifes car. Since it was his wifes birthday the following day, he asked Cabrera if he could get back
the car. Cabrera readily gave him the keys of the car.[21]
He left the hotel at around 11:45 in the evening with Usana and Lopez. Using his wifes car, they cruised
southward along Epifanio de los Santos Avenue (EDSA) and turned right at Sen. Gil Puyat Avenue. They
stopped before crossing SLEX because the traffic light turned red. From the other side of SLEX, he could see a
group of policemen. Upon crossing SLEX, they were flagged down by one of the policemen, so he slowed down
and stopped. PO3 Nonato asked him to roll down the window and demanded to see his license. He asked if he
had committed any violation, but PO3 Nonato accused him of being drunk, which he denied. The policemen
persisted in asking for his license, but he did not budge and instead reiterated that there was no reason for him

to surrender his license for he had not committed any violation. A verbal tussle ensued resulting in the drawing of
firearms by the policemen which prompted Usana to suggest that they go to the police station because the
policemen were carrying guns and they have not done anything wrong.[22] Jjj uris
He stated further that he was the one who drove to the police station along Dian St. with his companions. He
parked the car then they were brought to the office of the Deputy Station Commander, Lieutenant Eco.[23] The
policemen asked if they could search his car. He then inquired if he was not entitled to a lawyer and why they
needed to conduct a search when they had not even told him what he had violated. Apparently, he thought they
were there only for verification purposes. Lt. Eco explained that that was the reason why they were going to
search his car, to see if he had done anything illegal. Although the police were insistent in asking for the keys to
his car, he continuously refused. Lt. Eco asked his men to usher the trio into the detention cell.[24]
After two hours, he was brought back to Lt. Ecos office. Lt. Eco pointed to a bag, a rifle, a pistol and a package
wrapped in masking tape or packing tape on his desk, and said these items constituted evidence of illegal
possession of firearms and transporting of drugs. He was surprised that they found those items from his car
because his key had been with him all the time. He was handcuffed, brought to his car, and again was surprised
to see its trunk open.[25]
On the other hand, Lopez had a different story. He claimed he was the mechanic of Usana and they lived in the
same subdivision.[26] On 4 April 1995, he was working on Usanas pick-up truck at the latters house when
Escao dropped by at around 4:30 in the afternoon looking for Usana who was then working in Forbes Park.[27]
At around 5:30 p.m., they left Usanas house in Escaos metallic gray Kia Pride. Inside the car, he saw a .45
caliber pistol and two spare magazines tucked in the right side and left side of Escaos waist. He also saw a
carbine under the right passenger seat. When he inquired about the guns, Escao replied that such did not pose
any problem since they were licensed. Before going to Usana, they went to Pasay City to see a certain Jerry.[28]
They met Usana at the Sen. Gil Puyat Station of the LRT at around 9:00 p.m. He gave his seat to Usana but was
unaware if the latter noticed the rifle beneath the seat.[29] Lexj uris
They went home via Sen. Gil Puyat Avenue but were stopped at a checkpoint after crossing SLEX. The
policemen directed their flashlights at them and one opened the front passenger door.[30] The latter saw the rifle
under Usanas seat. Usana and Escao were ordered to get out of the car. PO3 Nonato immediately saw the
gun tucked in Escaos waist and asked if he was a policeman. Escao replied that everything would be
explained at the police station. He was also asked to step out. No firearm was, however, found in his possession.
[31]
When confronted about the guns, Escao tried to intercede for his two companions and said that "... these two
dont know anything about it, I just took them for a drive." They subsequently went to police station Block 5. A
certain Toto, a policeman, drove the Kia Pride to Block 5.[32]
Upon reaching the police station, Escao was immediately brought to the office of Lt. Eco while he and Usana
were asked to sit on the bench. After a few minutes, PO3 de los Santos came out of the office of Lt. Eco to talk
to him. He told him that all he knew about Escao is that he was a wealthy flight attendant with military
connections. After returning to Lt. Ecos office, PO3 de los Santos went out of the police station with Lt. Eco and
Escao. The three came back with a blue bag which he had never seen before. The bag was opened before the
three suspects. Escao reiterated that his two companions had nothing to do with the bag.[33]
He and Usana stayed overnight in their cell and only saw Escao in the morning of April 5. At around 4:00 p.m.,
they were transferred to the CID and stayed in the office of a certain Inspector Sipin. Escao admitted he owned
the bag/case.[34]
For his part, Usana testified that he was a duly licensed architect who was gainfully employed by Rolando de
Asis and Taytay Management Corporation.[35] He admitted owning a licensed .45 caliber pistol.[36] In March
1995, he hired as mechanic Lopez, who lives in Bernabe Subdivision Phase II where he also lives. Escao on
the other hand, was introduced to him by a certain Roberto Samparado, a neighbor of Lopez. Escao, an
international flight attendant of Philippine Airlines and a businessman who owns Verge Enterprises, also supplied
materials to the Philippine Army and planned to engage in a construction business.[37]

On 4 April 1995, at around 7:30 p.m., he paged Escao to talk about the materials for the five prototype gunship
helicopters they were supposed to supply. They talked on the phone, agreeing to meet between 8:30 and 9:00
p.m. at the Sen. Gil Puyat Ave. Station of the Light Rail Transit,[38] and met at around a quarter past nine.
Escao was on board a metallic Kia Pride with Lopez on the passenger seat. Lopez vacated the seat for him.
They went to Magallanes Village to meet a certain Norman Garcia and talk about the documents[39] relating to
the helicopter gunship of the Air Force. They arrived there at 11:30 p.m. While they were talking with Garcia, he
noticed a gun and magazines tucked in Escaos waist. Upon inquiry, Escao said it was not a problem and only
for his protection.[40] On their way to Roxas Boulevard, they were stopped at a checkpoint along Sen. Gil Puyat
Ave. Policemen knocked on the car windows so he and Escao rolled down their windows. A person in civilian
clothes suddenly opened the right door, took something from the side of his seat and shouted, "Theres a gun."
He was surprised because he did not carry anything when he boarded the car; neither did he see anything inside
the car because it was dark and he was not wearing his eyeglasses.[41] The person who took the gun asked if
he was a policeman, and he said he was an architect. He was then asked to alight from the car, then frisked.
Escao was also asked to alight from a car. They saw a gun tucked in his waist, so they asked if he was a
policeman, and Escao answered in the negative. Lopez was then ordered to get out of the car by the person in
civilian clothes and was also searched. They rode the Anfra service vehicle of the police. One of the policemen
asked Lopez to handcuff him and Escao. The policeman who asked Escao to get out of the car drove the
Anfra van to Block 5 where they arrived at 1:30 in the morning of 5 April.[42] J lexj
He and Lopez waited outside the office of Lt. Eco while Escao was inside with the arresting officers. Lt. Eco
came out of his office and urged Lopez to tell the truth. He heard Lopez say that they were both just with Escao
and that they knew nothing about the guns; neither do they own any. SPO4 de los Santos entered the office of
Lt. Eco and came out five minutes later with Escao, Lt. Eco, and the other arresting officers, Nonato, Suba and
Erwin Eco, the person in civilian clothes. All six went out to the parking area and returned after about five
minutes. Lt. Eco was carrying a bag which he placed on top his desk. Lopez and Escao were asked about the
contents of the bag. The two replied it was the first time they saw that bag. Lt. Eco opened the bag before them.
They all saw something in brown paper. He and Lopez simultaneously exclaimed that they knew nothing about
the contents of the bag, and they implored Escao to tell the police that they had nothing to do with it.[43]
The trial court found the prosecutions version more credible than that of any one of the accused, and ruled that
the evidence presented by the prosecution was sufficient to convict the accused as charged. It decreed:
WHEREFORE, in view of the foregoing judgment is hereby rendered as follows:
1. In Criminal Case No. 95-936, accused JULIAN ESCAO y DEEN, VIRGILIO USANA y TOME
and JERRY LOPEZ y CASABAAN are GUILTY as charged and are sentenced to suffer
imprisonment of RECLUSION PERPETUA, and to pay a fine of P500,000.00.
The Branch Clerk of Court is directed to turn over to the Dangerous Drugs Board the 3.314
kilograms of Hashish (marijuana) for its appropriate disposition in accordance with law; and
2. In criminal Cases Nos. 95-937 and 95-938, accused JULIAN ESCAO y DEEN and
VIRGILIO USANA y TOME are GUILTY as charged in the two separate informations respectively
filed against them and are sentenced to suffer the indeterminate prison term from TEN (10)
YEARS of PRISION MAYOR maximum, as minimum to SEVENTEEN (17) YEARS, FOUR (4)
MONTHS and ONE (1) DAY of RECLUSION TEMPORAL maximum as maximum.[44] Court
The firearms and ammunitions subject matter of these cases which are still with the City
Prosecutors Office are forfeited in favor of the Government are directed to be turned over to the
Firearms and Explosive Unit, PNP, Camp Crame, Quezon City for its appropriate disposition.
SO ORDERED. [45]
Accused-appellants Usana and Lopez anchor their appeal on the following arguments:

1. The trial court erred in admitting in evidence the hashish seized without search warrant when
the police officers already had the opportunity to secure a search warrant before searching the
bag found at the baggage compartment at the back of the car;
2. Assuming that the hashish is admissible in evidence, the trial court erred in finding appellants
to have conspired with Escao in transporting the hashish when the evidence clearly shows that
the hashish was owned and possessed solely by Escao;
3. The trial court erred in convicting appellants of illegal possession of hashish despite the fact
that they were neither in actual nor constructive possession of the illegal drug; and
4. The trial court erred in not considering the exculpatory testimony of Julian Escao in favor of
appellants.
Before going any further, some words are in order regarding the establishment of checkpoints.
Accused-appellants assail the manner by which the checkpoint in question was conducted. They contend that
the checkpoint manned by elements of the Makati Police should have been announced. They also complain of
its having been conducted in an arbitrary and discriminatory manner.
We take judicial notice of the existence of the COMELEC resolution[46] imposing a gun ban during the election
period issued pursuant to Section 52(c) in relation to Section 26(q) of the Omnibus Election Code (Batas
Pambansa Blg. 881). The national and local elections in 1995 were held on 8 May, the second Monday of the
month. The incident, which happened on 5 April 1995, was well within the election period. Supreme
This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public
order and are conducted in a way least intrusive to motorists are allowed.[47] For, admittedly, routine
checkpoints do intrude, to a certain extent, on motorists right to "free passage without interruption," but it cannot
be denied that, as a rule, it involves only a brief detention of travelers during which the vehicles occupants are
required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants
subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks
cannot be regarded as violative of an individuals right against unreasonable search. In fact, these routine
checks, when conducted in a fixed area, are even less intrusive.[48]
The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC
would be hard put to implement the ban if its deputized agents were limited to a visual search of pedestrians. It
would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun during said
period would know that they only need a car to be able to easily perpetrate their malicious designs.
The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused against
illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed suspicious,
such as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At best
they would merely direct their flashlights inside the cars they would stop, without opening the cars doors or
subjecting its passengers to a body search. There is nothing discriminatory in this as this is what the situation
demands.
We see no need for checkpoints to be announced, as the accused have invoked. Not only would it be
impractical, it would also forewarn those who intend to violate the ban. Even so, badges of legitimacy of
checkpoints may still be inferred from their fixed location and the regularized manner in which they are operated.
[49]
Usana and Lopez also question the validity of the search. The trial court, in convicting the three accused for
violation of R.A. No. 6425, accepted as aboveboard the search done by the Makati Police of the trunk of the car.
Jurisprudence recognizes six generally accepted exceptions to the warrant requirement: (1) search incidental to
an arrest; (2) search of moving vehicles; (3) evidence in plain view; (4) customs searches; (5) consented
warrantless search;[50] and (6) stop-and-frisk situations.[51]

Even though there was ample opportunity to obtain a search warrant, we cannot invalidate the search of the
vehicle, for there are indications that the search done on the car of Escao was consented to by him. Both Lopez
and Usana testified that Escao was with the police officers when they searched the car.[52] There was no
apparent objection made by Escao as he seemed to have freely accompanied the police officers to the car.
PO3 Suba, on the other hand, testified that "Escao readily agreed to open the trunk," upon request of SPO4 de
los Santos.[53] But according to Escao, he refused the request of the police officers to search his car.[54] We
must give credence to the testimony of PO3 Suba. Not only is it buttressed by the testimony of Usana and Lopez
that Escao freely accompanied the police officers to the car, it is also deemed admitted by Escao in failing to
appeal the decision. The findings of fact of the trial court are thus deemed final as against him. Esmsc
Despite the validity of the search, we cannot affirm the conviction of Usana and Lopez for violation of R.A. No.
6425, as amended. The following facts militate against a finding of conviction: (1) the car belonged to Escao;
(2) the trunk of the car was not opened soon after it was stopped and after the accused were searched for
firearms; (3) the car was driven by a policeman from the place where it was stopped until the police station; (4)
the cars trunk was opened, with the permission of Escao, without the presence of Usana and Lopez; and (5)
after arrival at the police station and until the opening of the cars trunk, the car was in the possession and
control of the police authorities. No fact was adduced to link Usana and Lopez to the hashish found in the trunk
of the car. Their having been with Escao in the latters car before the "finding" of the hashish sometime after the
lapse of an appreciable time and without their presence left much to be desired to implicate them to the offense
of selling, distributing, or transporting the prohibited drug. In fact, there was no showing that Usana and Lopez
knew of the presence of hashish in the trunk of the car or that they saw the same before it was seized.
IN VIEW WHEREOF, that portion of the challenged decision of 30 May 1997 of the Regional Trial Court, Makati,
Branch 64, insofar as Criminal Case No. 95-936 is concerned with regard to accused-appellants VIRGILIO T.
USANA and JERRY C. LOPEZ, holding them guilty of violation of Section 4, Article II of R.A. No 6425, as
amended, is hereby REVERSED and SET ASIDE and another is hereby rendered ACQUITTING them therein on
ground of reasonable doubt and ORDERING their immediate release from confinement at the New Bilibid
Prison, unless their further detention is justified for any lawful ground. The Director of the Bureau of Corrections
is hereby directed to report to the Court the release of said accused-appellants within five (5) days from notice of
this decision.
SO ORDERED.

G.R. No. 136292

January 15, 2002

RUDY CABALLES y TAIO, petitioner,


vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
PUNO, J.:
This is an appeal by certiorari from the decision1 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 Taio, guilty beyond reasonable doubt of the crime of theft, and the resolution 2 dated
November 9, 1998 which denied petitioner's motion for reconsideration.
In an Information3 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 judgment5 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. x x x 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.1wphi1.nt
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 order22 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 x x x, 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. x x x." (emphasis
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 sacks39 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?

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.

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
Q

xxx

xxx

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?

Yes, sir, I asked him what his load was.

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.1wphi1.nt
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.

SO ORDERED.

[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.
DECISION
PUNO, J.:
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.
Appellant and her co-accused were charged under the following Information:
That on or about October 20, 1996 at around 1:00 oclock 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 oclock 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 oclock 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 twos 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.
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 passengers 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 companys 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
prosecutions 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 appellants 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, 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.
x x x.[21] (emphasis 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 prosecutions evidence, both accused can be convicted.[22]
(emphasis supplied)
Appellant then faults the trial court for appreciating and taking into account the object and documentary evidence
of the prosecution despite the latters 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, appellants 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, appellants 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, appellants 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.
SO ORDERED.

G.R. No. 96177 January 27, 1993


PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARI MUSA y HANTATALU, accused-appellant.
The Solicitor General for plaintiff-appellee.
Pablo L. Murillo for accused-appellant.

ROMERO, J.:
The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31, 1990, 1 of the
Regional Trial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of selling marijuana in violation of
Article II, Section 4 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of
1972.
The information filed on December 15, 1989 against the appellant reads:
That on or about December 14, 1989, in the City of Zamboanga, Philippines, and within the
jurisdiction of this Honorable Court, the
above-named accused, not being authorized by law, did then and there, wilfully, unlawfully and
feloniously sell to one SGT. AMADO ANI, two (2) wrappers containing dried marijuana leaves,
knowing the same to be a prohibited drug.
CONTRARY TO LAW. 2
Upon his arraignment on January 11, 1990, the appellant pleaded not guilty. 3
At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the 9th Narcotics
Command (NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy-bust operation made against
the appellant; (2) T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of Zamboanga City, who was the
NARCOM team leader of the buy-bust operation; and (3) Athena Elisa P. Anderson, the Document Examiner and
Forensic Chemist of PC-INP Crime Laboratory of Regional Command (RECOM) 9. The evidence of the

prosecution was summarized by the trial court as follows:


Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus Belarga,
leader of a NARCOTICS COMMAND (NARCOM) team based at Calarian, Zamboanga City,
instructed Sgt. Amado Ani to conduct surveillance and test buy on a certain Mari Musa of
Suterville, Zamboanga City. Information received from civilian informer was that this Mari Musa
was engaged in selling marijuana in said place. So Sgt. Amado Ani, another NARCOM agent,
proceeded to Suterville, in company with a NARCOM civilian informer, to the house of Mari
Musa to which house the civilian informer had guided him. The same civilian informer had also
described to him the appearance of Mari Musa. Amado Ani was able to buy one newspaperwrapped dried marijuana (Exh. "E") for P10.00. Sgt. Ani returned to the NARCOM office and
turned over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga inspected
the stuff turned over to him and found it to be marijuana.
The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt. Amado Ani
was assigned as the poseur buyer for which purpose he was given P20.00 (with SN GA955883)
by Belarga. The
buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali Mihasun, Chief
of Investigation Section, and for which Belarga signed a receipt (Exh. "L" & "L-l" ) The team
under Sgt. Foncargas was assigned as back-up security. A pre-arranged signal was arranged
consisting of Sgt. Ani's raising his right hand, after he had succeeded to buy the marijuana. The
two NARCOM teams proceeded to the target site in two civilian vehicles. Belarga's team was
composed of Sgt. Belarga, team leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt.
Biong.
Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest of the
NARCOM group positioned themselves at strategic places about 90 to 100 meters from Mari
Musa's house. T/Sgt. Belarga could see what went on between Ani and suspect Mari Musa from
where he was. Ani approached Mari Musa, who came out of his house, and asked Ani what he
wanted. Ani said he wanted some more stuff. Ani gave Mari Musa the P20.00 marked money.
After receiving the money, Mari Musa went back to his house and came back and gave Amado
Ani two newspaper wrappers containing dried marijuana. Ani opened the two wrappers and
inspected the contents. Convinced that the contents were marijuana, Ani walked back towards
his companions and raised his right hand. The two NARCOM teams, riding the two civilian
vehicles, sped towards Sgt. Ani. Ani joined Belarga's team and returned to the house.
At the time Sgt. Ani first approached Mari Musa, there were four persons inside his house: Mari
Musa, another boy, and two women, one of whom Ani and Belarga later came to know to be
Mari Musa's wife. The second time, Ani with the NARCOM team returned to Mari Musa's house,
the woman, who was later known as Mari Musa's wife, slipped away from the house. Sgt.
Belarga frisked Mari Musa but could not find the P20.00 marked money with him. Mari Musa
was then asked where the P20.00 was and he told the NARCOM team he has given the money
to his wife (who had slipped away). Sgt. Belarga also found a plastic bag containing dried
marijuana inside it somewhere in the kitchen. Mari Musa was then placed under arrest and
brought to the NARCOM office. At Suterville, Sgt. Ani turned over to Sgt. Belarga the two
newspaper-wrapped marijuana he had earlier bought from Mari Musa (Exhs. "C" & "D").
In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on, Mari Musa
gave his true name Mari Musa. T/Sgt. Jesus Belarga turned over the two newspaperwrapped marijuana (bought at the buy-bust), the one newspaper-wrapped marijuana (bought at
the test-buy) and the plastic bag containing more marijuana (which had been taken by Sgt. Lego
inside the kitchen of Mari Musa) to the PC Crime Laboratory, Zamboanga City, for laboratory
examination. The turnover of the marijuana specimen to the PC Crime Laboratory was by way of
a letter-request, dated December 14, 1989 (Exh. "B"), which was stamped "RECEIVED" by the
PC Crime Laboratory (Exh. "B-1") on the same day.

Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory, examined the
marijuana specimens subjecting the same to her three tests. All submitted specimens she
examined gave positive results for the presence of marijuana. Mrs. Anderson reported the
results of her examination in her Chemistry Report D-100-89, dated December 14, 1989, (Exh.
"J", "J-1", "J-2", "J-3", "J-4" and "J-5"). Mrs. Anderson identified in court the two newspaper
wrapped marijuana bought at the
buy-bust on December 14, 1989, through her initial and the weight of each specimen written
with red ink on each wrapper (Exhs. "C-1" and "D-1"). She also identified the one newspaperwrapped marijuana bought at the test-buy on December 13, 1989, through her markings (Exh.
"E-1"). Mrs. Anderson also identified her Chemistry Report (Exh. "J" & sub-markings.)
T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through his initial, the
words "buy-bust" and the words "December 14, 1989, 2:45 P.M." (written on Exhs. "C" and "D").
Belarga also identified the receipt of the P20 marked money (with SN GA955883) (Exh. "L"),
dated December 14, 1989, and his signature thereon (Exh.
"L-1"). He also identified the letter-request, dated December 14, 1989, addressed to the PC
Crime Laboratory (Exh. "B") and his signature thereon (Exh. "B-2") and the stamp of the PC
Crime Laboratory marked "RECEIVED" (Exh. "B-1"). 4
For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa; and (2) Ahara R.
Musa, his wife. The trial court summarized the version of the defense, thus:
[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house at
Suterville, Zamboanga City. With him were his wife, Ahara Musa, known as Ara, his one-year old
child, a woman manicurist, and a male cousin named Abdul Musa. About 1:30 that afternoon,
while he was being manicured at one hand, his wife was inside the one room of their house,
putting their child to sleep. Three NARCOM agents, who introduced themselves as NARCOM
agents, dressed in civilian clothes, got inside Mari Musa's house whose door was open. The
NARCOM agents did not ask permission to enter the house but simply announced that they
were NARCOM agents. The NARCOM agents searched Mari Musa's house and Mari Musa
asked them if they had a search warrant. The NARCOM agents were just silent. The NARCOM
agents found a red plastic bag whose contents, Mari Musa said, he did not know. He also did
not know if the plastic bag belonged to his brother, Faisal, who was living with him, or his father,
who was living in another house about ten arms-length away. Mari Musa, then, was handcuffed
and when Mari Musa asked why, the NARCOM agents told him for clarification.
Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at Calarian,
Zamboanga City. Inside the NARCOM Office, Mari Musa was investigated by one NARCOM
agent which investigation was reduced into writing. The writing or document was interpreted to
Mari Musa in Tagalog. The document stated that the marijuana belonged to Mari Musa and Mari
Musa was asked to sign it. But Mari Musa refused to sign because the marijuana did not belong
to him. Mari Musa said he was not told that he was entitled to the assistance of counsel,
although he himself told the NARCOM agents he wanted to be assisted by counsel.
Mari Musa said four bullets were then placed between the fingers of his right hand and his
fingers were pressed which felt very painful. The NARCOM agents boxed him and Mari Musa
lost consciousness. While Mari Musa was maltreated, he said his wife was outside the
NARCOM building. The very day he was arrested (on cross-examination Mari Musa said it was
on the next day), Mari Musa was brought to the Fiscal's Office by three NARCOM agents. The
fiscal asked him if the marijuana was owned by him and he said "not." After that single question,
Mari Musa was brought to the City Jail. Mari Musa said he did not tell the fiscal that he had been
maltreated by the NARCOM agents because he was afraid he might be maltreated in the fiscal's
office.
Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of marijuana to
them; that he had received from them a P20.00 bill which he had given to his wife. He did not
sell marijuana because he was afraid that was against the law and that the person selling

marijuana was caught by the authorities; and he had a wife and a very small child to support.
Mari Musa said he had not been arrested for selling marijuana before. 5
After trial, the trial court rendered the assailed decision with the following disposition:
WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable doubt of
selling marijuana and pursuant to Sec. 4, Art II of Rep. Act No. 6425, he is sentenced to life
imprisonment and to pay the fine of P20,000.00, the latter imposed without subsidiary
imprisonment. 6
In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and impugns the
credibility of the prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1) prior to the
buy-bust operation, neither Sgt. Ani nor the other NARCOM agents were personally known by the appellant or
vice-versa; and (2) there was no witness to the alleged giving of the two wrappers of marijuana by the appellant
to Sgt. Ani.
Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he conducted a test-buy
operation on the appellant whereby he bought one wrapper of marijuana for P15.00 from the latter. 7 He reported
the successful operation to T/Sgt. Belarga on the same day. 8 Whereupon, T/Sgt. Belarga conducted a
conference to organize a buy-bust operation for the following day. 9
On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by T/Sgt. Belarga and a
certain Sgt. Foncardas went to the place of operation, which was the appellant's house located in Laquian
Compound, Suterville, Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga, whose other members
were Sgts. Lego and Biong. 10 Sgt. Ani was given a marked P20.00 bill by T/Sgt. Belarga, which was to be used
in the operation.
Upon reaching the place, the NARCOM agents positioned themselves at strategic places. 11 Sgt. Ani approached
the house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt. Ani asked him for some more
marijuana. 12 Sgt. Ani gave him the marked P20.00 bill and the appellant went inside the house and brought back
two paper wrappers containing marijuana which he handed to Sgt. Ani. 13 From his position, Sgt. Ani could see
that there were other people in the house. 14
After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged signal of raising
his right hand. 15 The NARCOM agents, accompanied by Sgt. Ani, went inside the house and made the arrest.
The agents searched the appellant and unable to find the marked money, they asked him where it was. The
appellant said that he gave it to his wife. 16
The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-bust operation,
which resulted in the apprehension, prosecution and subsequent conviction of the appellant, to be direct, lucid
and forthright. Being totally untainted by contradictions in any of the material points, it deserves credence.
The contention that the appellant could not have transacted with Sgt. Ani because they do not know each other
is without merit. The day before the
buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of marijuana from the
appellant. Through this previous transaction, Sgt. Ani was able to gain the appellant's confidence for the latter to
sell more marijuana to Sgt. Ani the following day, during the buy-bust operation. Moreover, the Court has held
that what matters is not an existing familiarity between the buyer and the seller, for quite often, the parties to the
transaction may be strangers, but their agreement and the acts constituting the sale and delivery of the
marijuana. 17
The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the appellant to
sell marijuana while his wife, cousin and manicurist were present. But the place of the commission of the crime
of selling prohibited drugs has been held to be not 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.
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.
Bian testified that they were able to tell that the four cigarettes were marijuana cigarettes
because according to him, the rolling of ordinary cigarettes are different from those of marijuana
cigarettes. (tsn, November 13, 1984, p. 10).
It is however, incredible to believe that they could discern the type of rolling done on those
cigarettes from the distance where they were observing the alleged sale of more or less 10 to 15
meters. 21
In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over
marijuana to Sgt. Ani. What he said was that there was an exchange of certain articles between the two. The
relevant portion of T/Sgt. Belarga's testimony reads: 22
Q Now, do you remember whether Sgt. Ani was able to reach the house of Mari
Musa?
A Yes, ma'am.
Q After reaching Mari Musa, did you see what happened (sic)?
A Yes, ma'am.
Q Could you please tell us?
A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt. Biong
were boarded, I saw that Sgt. Ani proceeded to the house near the road and he
was met by one person and later known as Mari Musa who was at the time
wearing short pants and later on I saw that Sgt. Ani handed something to him,
thereafter received by Mari Musa and went inside the house and came back
later and handed something to Sgt. Ani.
Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a
distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give to the former
"something."

Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received from the
appellant was marijuana because of the distance, his testimony, nevertheless, corroborated the direct evidence,
which the Court earlier ruled to be convincing, presented by Sgt. Ani on the following material points: (1) T/Sgt.
Belarga instructed Sgt. Ani to conduct a surveillance and test-buy operation on the appellant at Suterville,
Zamboanga City on December 13, 1989; 23 (2) later that same day, Sgt. Ani went back to their office and
reported a successful operation and turned over to T/Sgt. Belarga one wrapper of marijuana; 24 (3) T/Sgt.
Belarga then organized a team to conduct a buy-bust operation the following day; 25 (4) on December 14, 1989,
T/Sgt. Belarga led a team of NARCOM agents who went to Suterville, Zamboanga City; 26 (5) T/Sgt. Belarga
gave a P20.00 marked bill to Sgt. Ani which was to be used in the buy-bust operation; 27 (6) upon the arrival of
the NARCOM agents in Suterville, Zamboanga City, Sgt. Ani proceeded to the house of the appellant while some
agents stayed in the vehicles and others positioned themselves in strategic places; 28 the appellant met Sgt. Ani
and an exchange of articles took place. 29
The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani. Additionally, the
Court has ruled that the fact that the police officers who accompanied the poseur-buyer were unable to see
exactly what the appellant gave the poseur-buyer because of their distance or position will not be fatal to the
prosecution's 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
The appellant next assails the seizure and admission as evidence of a plastic bag containing marijuana which
the NARCOM agents found in the appellant's kitchen. It appears that after Sgt. Ani gave the pre-arranged signal
to the other NARCOM agents, the latter moved in and arrested the appellant inside the house. They searched
him to retrieve the marked money but didn't find it. Upon being questioned, the appellant said that he gave the
marked money to his wife. 31 Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed what
T/Sgt. Belarga described as a "cellophane colored white and stripe hanging at the corner of the kitchen." 32 They
asked the appellant about its contents but failing to get a response, they opened it and found dried marijuana
leaves. At the trial, the appellant questioned the admissibility of the plastic bag and the marijuana it contains but
the trial court issued an Order ruling that these are admissible in evidence. 33
Built into the Constitution are guarantees on the freedom of every individual against unreasonable searches and
seizures by providing in Article III, Section 2, the following:
The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witness he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v. Diokno, 34 declares
inadmissible, any evidence obtained in violation of the freedom from unreasonable searches and seizures. 35
While a valid search warrant is generally necessary before a search and seizure may be effected, exceptions to
this rule are recognized. Thus, in Alvero v. Dizon, 36 the Court stated that. "[t]he most important exception to the
necessity for a search warrant is the right of search and seizure as an incident to a lawful arrest." 37
Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure incident to a
lawful arrest, thus:
Sec. 12. Search incident to lawful arrest. A person lawfully arrested may be searched for
dangerous weapons or anything which may be used as proof of the commission of an offense,
without a search warrant.
There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make
a search upon the person of the person arrested. As early as 1909, the Court has ruled that "[a]n officer making
an arrest may take from the person arrested any money or property found upon his person which was used in
the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of

committing
violence or of escaping, or which may be used as evidence in the trial of the cause . . . " 38 Hence, in a buy-bust
operation conducted to entrap a drug-pusher, the law enforcement agents may seize the marked money found
on the person
of the pusher immediately after the arrest even without arrest and search warrants. 39
In the case at bar, the NARCOM agents searched the person of the appellant after arresting him in his house but
found nothing. They then searched the entire house and, in the kitchen, found and seized a plastic bag hanging
in a corner.
The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person
of the one arrested to include the premises or surroundings under his immediate control. 40 Objects in the "plain
view" of an officer who has the right to be in the position to have that view are subject to seizure and may be
presented as evidence. 41
In Ker v. 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 vs. California, where the police officer had reason to walk to the doorway of
the adjacent kitchen and from which position he saw the marijuana, the NARCOM agents in this case went from
room to room with the obvious intention of fishing for more evidence.

Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue
as to its contents. They had to ask the appellant what the bag contained. When the appellant refused to respond,
they opened it and found the marijuana. Unlike Ker v. California, where the marijuana was visible to the police
officer's eyes, the NARCOM agents in this case could not have discovered the inculpatory nature of the contents
of the bag had they not forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came
across the plastic bag because it was within their "plain view," what may be said to be the object in their "plain
view" was just the plastic bag and not the marijuana. The incriminating nature of the contents of the plastic bag
was not immediately apparent from the "plain view" of said object. It cannot be claimed that the plastic bag
clearly betrayed its contents, whether by its distinctive configuration, its transprarency, or otherwise, that its
contents are obvious to an observer. 48
We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply and the
marijuana contained in the plastic bag was seized illegally and cannot be presented in evidence pursuant to
Article III, Section 3(2) of the Constitution.
The exclusion of this particular evidence does not, however, diminish, in any way, the damaging effect of the
other pieces of evidence presented by the prosecution to prove that the appellant sold marijuana, in violation of
Article II, Section 4 of the Dangerous Drugs Act of 1972. We hold that by virtue of the testimonies of Sgt. Ani and
T/Sgt. Belarga and the two wrappings of marijuana sold by the appellant to Sgt. Ani, among other pieces of
evidence, the guilt of the appellant of the crime charged has been proved beyond reasonable doubt.
WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court AFFIRMED.
SO ORDERED.

[G.R. No. 129296. September 25, 2000]


PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABE VALDEZ y DELA CRUZ, accused-appellant.
DECISION
QUISUMBING, J.:
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
"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]
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]
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.
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 highhandedness of law enforcers, regardless of the praiseworthiness of their intentions.
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.
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 cu