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#3 People vs Tudtud - PELAYO Police asked Tudtud to unwrap the packages.

They contained
what seemed to the police officers as MJ leaves.
FACTS: The police thus arrested Tudtud and his companion,
The Toril Police Station, Davao City received a report from a informed them of their rights and brought them to the police
civilian asset named Bobong Solier about a certain Noel station.
Tudtud who was allegedly responsible for the proliferation of The two did not resist.
marijuana in their area. (Complaint by neighbors) Drugs were brought to the Crime Lab for inspection.
PO1 Desierto and Floreta and their superior, SPO1 The plastic bag -> 3,200 grams of MJ leaves, Newspapers ->
Villalonghan, conducted surveillance in Soliers 890 grams.
neighborhood in Sapa, Toril, Davao City for 5 days and they Tudtud and Bulong - charged before the RTC of Davao City
confirmed that he may be involved in the drug business. (MJ) with illegal possession of prohibited drugs.
Subsequently, Solier informed the police that Tudtud had Upon Arraignment: Not Guilty.
headed to Cotabato and would be back later that day with They reserved their right to question the validity of their
new stocks of MJ. arrest and the seizure of the evidence against them.
Solier described Tudtud as big-bodied and short, and usually RTC: Guilty.
wore a hat. On appeal, Noel Tudtud and Dindo Bolong assign, among
The officers posted themselves at the corner of Saipon and other errors, the admission in evidence of the marijuana
McArthur Highway to await Tudtuds arrival. All wore civilian leaves, which they claim were seized in violation of their right
clothes. against unreasonable searches and seizures.
2 men disembarked from a bus and helped each other carry
a carton marked King Flakes. ISSUE: Whether the Tudtuds implied acquiescence (Tudtuds
Standing some 5 feet away from the men, PO1 Desierto and statement of its all right when the police officers requested that
Floreta observed that one of the men fit Tudtuds description the box be opened) be considered a waiver.
same man also toted a plastic bag.
They approached the suspects and identified themselves as HELD: Held: The RTC justified the warrantless search of appellants
police officers. They told them about the info the got about belongings under the first exception, as a search incident to a lawful
drugs that would be arriving that night. arrest. It is significant to note that the search in question preceded
The man who resembled Tudtuds description denied that he the arrest. Recent jurisprudence holds that the arrest must precede
was carrying any drugs. Police asked him if he could see the the search; the process cannot be reversed. Nevertheless, a search
contents of the box. Tudtud replied it was alright. substantially contemporaneous with an arrest can precede the arrest
Tudtud opened the box himself as his companion looked on if the police have probable cause to make the arrest at the outset of
which contained pieces of dried fish, on the bottom were two the search.
bundles, one wrapped in a striped plastic bag and another in
newspapers.
The question, therefore, is whether the police herein had probable (3) Said person had an actual intention to relinquish the right.
cause to arrest Tudtud, et. al. The long-standing rule in this Here, the prosecution failed to establish the second and third
jurisdiction, applied with a great degree of consistency, is that requisites. Records disclose that when the police officers introduced
reliable information alone is not sufficient to justify a warrantless themselves as such and requested Tudtud that they see the contents
arrest under Section 5 (a), Rule 113. of the carton box supposedly containing the marijuana, Tudtud said
The rule requires, in addition, that the accused perform some overt it was alright. He did not resist and opened the box himself.
act that would indicate that he has committed, is actually Tudtud's implied acquiescence, if at all, could not have been more
committing, or is attempting to commit an offense. than mere passive conformity given under coercive or intimidating
For the exception in Section 5 (a), Rule 113 to apply, this Court ruled, circumstances and is, thus, considered no consent at all within the
two elements must concur: purview of the constitutional guarantee.
(1) the person to be arrested must execute an overt act Consequently, Tudtud's lack of objection to the search and seizure is
indicating he has just committed, is actually committing, or is not tantamount to a waiver of his constitutional right or a voluntary
attempting to commit a crime; and submission to the warrantless search and seizure.
(2) such overt act is done in the presence or within the view As the search of Tudtud's box does not come under the recognized
of the arresting officer. Reliable information alone is exceptions to a valid warrantless search, the marijuana leaves
insufficient. obtained thereby are inadmissible in evidence.
Thus, herein, in no sense can the knowledge of the arresting officers
that Tudtud was in possession of marijuana be described as DISPOSTIVE: RTC decision Reversed, Tudtud acquitted.
personal, having learned the same only from their informant Solier,
which he obtained his information only from his neighbors. Soliers
information is hearsay.
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 Tudtud to catch him
in the illegal act but gathering of information from the assets there.
The police officers who conducted such surveillance did not
identify who these assets were or the basis of the latters
information. Clearly, such information is also hearsay, not of personal
knowledge.
Finally, there is an effective waiver of rights against unreasonable
searches and seizures only 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;