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arresting officer (there is personal knowledge on the part of

Exceptions Stop and Frisk the officer).

Alvin Comerciante (accused) [Commerciante]
An information was filed with the RTC of Mandaluyong, Branch 213, against Erick Dasilla (person Comerciante was standing with, was eventually acquitted
Alvin Comerciante ("Comerciante"). He was found to have in possession two before Comerciante) [Dasilla]
(2) heat-sealed transparent plastic sachets with shabu which the police Agent Eduardo Radan (Agent of NARCOTICS Group) [Agent Radan]
acquired after he was frisked after the police spotted him (from a distance of PO3 Bienvy Calag II (arresting officer) [PO3 Calag]
ten [10] meters) standing and showing "improper and unpleasant movements"
together with Erick Dasilla ("Dasilla"), with one of them passing a plastic sachet FACTS
to the other. The RTC convicted him of the crime of Illegal Possession of 1. 30 July 2003 Agent Radan and PO3 Calag were on a motorcycle
Dangerous Drugs. Accordingly, Comerciante appealed with the Court of patrolling the area on their way to visit their friend.
Appeals but the CA merely re-affirmed the decision of the RTC. On appeal a. On the way to visit their friend
with the Supreme Court, it was held that the search conducted on Comerciante b. Cruising at a speed of 30 KM/HR along Private Rode,
was illegal as "improper and unpleasant movements" cannot be considered as Mandaluyong
probable cause, hence, the warrantless arrest was unlawful. Considering the c. Spotted at a distance of ten (10) meters, two (2) men in front of a
foregoing, the evidence acquired from such search is inadmissible (Fruit of the jeepney
Poisonous Tree Doctrine). Hence, the SC acquitted Comerciante and d. Men were identified as: Comerciante and Dasilla
exonerated him from all criminal liability. i. Men were standing and showing "improper and
unpleasant movements"
ii. One of them was handing plastic sachets to the other
DOCTRINE e. At five (5) meters, PO3 Calag introduced himself as a police officer
Exclusionary Rule and arrested the two men, confiscating two small plastic sachets
To protect people from unreasonable searches and seizures, Section containing shabu.
3(2), Article III of the Constitution provides an exclusionary rule 2. After the prosecution rested its case, Dasilla filed a demurrer to evidence
which instructs that evidence obtained and confiscated during subsequently granted by the RTC, which resulted to Dasilla's acquittal.
unreasonable searches and seizures are deemed tainted and 3. Comerciante failed to file his own demurrer and the RTC considered this
should be excluded for being the fruit of a poisonous tree. Such as him waiving his right to do so and ordered him to present his evidence
pieces of evidence are therefore inadmissible. 4. Comerciante averred, in his defense, that:
The law requires that there first be a lawful arrest before a search a. PO3 Calag was looking for "Barok" a notorious drug pusher.
can be made and this process cannot be done in the reverse. b. That after being arrested, they were asked money in exchange for
While the stop and frisk is an instance wherein a warrantless is their release.
allowed, the same cannot be done without probable cause based on c. When they failed to meet the demand, they were brought to
the circumstances. another police station and underwent inquest proceedings.
For a warrantless arrest to operate the following elements must be 5. The RTC ruled on 29 July 2009 that Comerciante was guilty of violating
met: Section 11, Article II of RA 9165
o Person arrested must execute an overt act indicating that a. RTC ruled that PO3 Calag conducted a valid warrantless search
he has just committed, is actually committing or is since the officer saw Comerciante in plain view carrying the
attempting to commit a crime; and sachets.
o Such act is done in the presence or within the view of the b. Sentenced to twelve (12) years and one (1) day to twenty (20)
years release, unless he is being lawfully held for any other reason.
c. Ordered to pay the fine of Php 300,000.
6. Comerciante appealed to the CA but the CA affirmed his conviction on 20 SO ORDERED.
October 2011.
7. With the denial of his Motion for Reconsideration, Comerciante filed a Rule OTHER NOTES
45 petition with the Supreme Court. Evidence obtained through unlawful seizures should be excluded as evidence
because it is "the only practical means of enforcing the constitutional injunction
against unreasonable searches and seizures." (People v. Cogaed, 731 SCRA
ISSUE with HOLDING 427 [2014]).
1. Whether or not the CA correctily affirmed Comerciante's conviction. No.
The evidence against Comerciante is inadmissible as it was procured
through an unlawful search (fruit of the poisonous tree doctrine). The
same should result in his acquittal.
a. The OSG's argument, on behalf of the People of the Philippines,
was that the warrantless arrest was valid pursuant to the stop and
frisk rule, and hence Comerciante's conviction should be upheld.
b. However, the SC held that:
i. There was no lawful arrest.
ii. Because it is highly implausible that PO3 Calag, even
assuming that he has perfect vision, would be able to
identify from 10 meters, while moving at a speed of 30
km/hr on the motorcycle, miniscule amounts of shabu
inside two (2) very small plastic sachets as held by
iii. There is no overt act that could be properly attributed to
Comerciante as to rouse suspicion in the mind of PO3
Calag that the former had just committed, was currently
committing, or was about to commit a crime.
iv. The acts of standing around with a companion handing
over something cannot be considered as a criminal act.
c. Hence, there being no lawful arrest, the evidence procured is
inadmissible, being a fruit of the poisonous tree.

WHEREFORE, the petition is GRANTED. Accordingly, the Decision dated
October 20, 2011 and the Resolution dated February 29, 2013 of the Court of
Appeals in C.A.-G.R. CR No. 32813 are hereby REVERSED and SET ASIDE.
Accordingly, petitioner Alvin Comerciante y. Gonzales is hereby ACQUITTED
of the crime violating Section 11, Article II of Republic Act No. 9165. The
Director of the Bureau of Corrections is ordered to cause his immediate