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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 margin1 — hereinafter referred to as
Respondents-Prosecutors — several judges2 — hereinafter referred to as Respondents-Judges — issued,
on different dates,3 a total of 42 search warrants against petitioners herein4 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.1äwphï1.ñët

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 13provides:

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. 20After 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.

Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.

CASTRO, J., concurring and dissenting:


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
Fifty-Seven (57) live ammunition, in furtherance of, or incident to, or in connection with the crime of
subversion, filed against said accused in the above-entitled case for Violation of Republic Act 1700, as
amended by Executive Order No. 276.

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.

Griño-Aquino and Bellosillo, JJ., concur.


G.R. No. 113271 October 16, 1997

WATEROUS DRUG CORPORATION and MS. EMMA CO, petitioners,


vs.
NATIONAL LABOR RELATIONS COMMISSION and ANTONIA MELODIA CATOLICO, respondents.

DAVIDE, JR., J.:

Nor is he a true Servant [who] buys dear to share in the Profit with the Seller.1

This petition for certiorari under Rule 65 of the Rules of Court seeks to declare private respondent
Antonia Melodia Catolico (hereafter Catolico) not a "true Servant," thereby assailing the 30 September
1993 decision2 and December 1993 Resolution3 of the National Labor Relations Commission (NLRC) in
NLRC-NCR CA No. 005160-93, which sustained the reinstatement and monetary awards in favor of
private respondent4 and denied the petitioners' motion for reconsideration.5

The facts are as follows:

Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation (hereafter WATEROUS) on
15 August 1988.

On 31 July 1989, Catolico received a memorandum6 from WATEROUS Vice President-General Manager
Emma R. Co warning her not to dispense medicine to employees chargeable to the latter's accounts
because the same was a prohibited practice. On the same date, Co issued another memorandum7 to
Catolico warning her not to negotiate with suppliers of medicine without consulting the Purchasing
Department, as this would impair the company's control of purchases and, besides she was not
authorized to deal directly with the suppliers.

As regards the first memorandum, Catolico did not deny her responsibility but explained that her act
was "due to negligence," since fellow employee Irene Soliven "obtained the medicines in bad faith and
through misrepresentation when she claimed that she was given a charge slip by the Admitting Dept."
Catolico then asked the company to look into the fraudulent activities of Soliven.8

In a memorandum9 dated 21 November 1989, WATEROUS Supervisor Luzviminda E. Bautro warned


Catolico against the "rush delivery of medicines without the proper documents."

On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed Co that he noticed an
irregularity involving Catolico and Yung Shin Pharmaceuticals, Inc. (hereafter YSP), which he described as
follows:

. . . A case in point is medicine purchased under our Purchase Order (P.O.) No. 19045 with YSP Sales
Invoice No. 266 representing purchase of ten (10) bottles of Voren tablets at P384.00 per unit. Previews
P.O.s issued to YSP, Inc. showed that the price per bottle is P320.00 while P.O. No. 19045 is priced at
P384.00 or an over price of P64.00 per bottle (or total of P640.00). WDRC paid the amount of P3,840.00
thru MBTC Check No. 222832 dated December 15, 1988. Verification was made to YSP, Inc. to determine
the discrepancy and it was found that the cost per bottle was indeed overpriced. YSP, Inc. Accounting
Department (Ms. Estelita Reyes) confirmed that the difference represents refund of jack-up price of ten
bottles of Voren tablets per sales invoice no. 266 as per their check voucher no. 629552 (shown to the
undersigned), which was paid to Ms. Catolico through China Bank check no. 892068 dated November 9,
1989 . . . .

The undersigned talked to Ms. Catolico regarding the check but she denied having received it and that
she is unaware of the overprice. However, upon conversation with Ms. Saldana, EDRC Espana Pharmacy
Clerk, she confirmed that the check amounting to P640.00 was actually received by Ms. Catolico. As a
matter of fact, Ms. Catolico even asked Ms. Saldana if she opened the envelope containing the check but
Ms. Saldana answered her "talagang ganyan, bukas." It appears that the amount in question (P640.00)
had been pocketed by Ms. Catolico.10

Forthwith, in her memorandum11 dated 37 January 1990, Co asked Catolico to explain, within twenty-
four hours, her side of the reported irregularity. Catolico asked for additional time to give her
explanation,12 and she was granted a 48-hour extension from 1 to 3 February 1990. However, on 2
February 1990, she was informed that effective 6 February 1990 to 7 March 1990, she would be placed
on preventive suspension to protect the interests of the company.13

In a letter dated 2 February 1990, Catolico requested access to the file containing Sales Invoice No. 266
for her to be able to make a satisfactory explanation. In said letter she protested Saldaña's invasion of
her privacy when Saldaña opened an envelope addressed to Catolico.14

In a letter15 to Co dated 10 February 1990, Catolico, through her counsel, explained that the check she
received from YSP was a Christmas gift and not a "refund of overprice." She also averred that the
preventive suspension was ill-motivated, as it sprang from an earlier incident between her and Co's
secretary, Irene Soliven.

On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued a memorandum16 notifying Catolico
of her termination; thus:

We received your letter of explanation and your lawyer's letter dated Feb. 2, 1990 and Feb. 10, 1990
respectively regarding our imposition of preventive suspension on you for acts of dishonesty. However,
said letters failed to rebut the evidences [sic] in our possession which clearly shows that as a Pharmacist
stationed at Espana Branch, you actually made Purchase Orders at YSP Phils., Inc. for 10 bottles of Voren
tablets at P384.00/bottle with previous price of P320.00/bottle only. A check which you received in the
amount of P640.00 actually represents the refund of over price of said medicines and this was
confirmed by Ms. Estelita Reyes, YSP Phils., Inc. Accounting Department.

Your actuation constitutes an act of dishonesty detrimental to the interest of the company. Accordingly,
you are hereby terminated effective March 8, 1990.

On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a complaint for unfair labor practice,
illegal dismissal, and illegal suspension.17

In his decision18 of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found no proof of unfair labor
practice against petitioners. Nevertheless, he decided in favor of Catolico because petitioners failed to
"prove what [they] alleged as complainant's dishonesty," and to show that any investigation was
conducted. Hence, the dismissal was without just cause and due process. He thus declared the dismissal
and suspension illegal but disallowed reinstatement, as it would not be to the best interest of the
parties. Accordingly, he awarded separation pay to Catolico computed at one-half month's pay for every
year of service; back wages for one year; and the additional sum of P2,000.00 for illegal suspension
"representing 30 days work." Arbiter Lopez computed the award in favor of Catolico as follows:

30 days Preventive Suspension P2,000.00


Backwages 26,858.50
1/12 of P26,858.50 2,238.21
Separation pay (3 years) 4,305.15
—————
TOTAL AWARD P35,401.86
—————

Petitioners seasonably appealed from the decision and urged the NLRC to set it aside because the Labor
Arbiter erred in finding that Catolico was denied due process and that there was no just cause to
terminate her services.

In its decision19 of 30 September 1993, the NLRC affirmed the findings of the Labor Arbiter on the
ground that petitioners were not able to prove a just cause for Catolico's dismissal from her
employment. It found that petitioner's evidence consisted only of the check of P640.00 drawn by YSP in
favor of complainant, which her co-employee saw when the latter opened the envelope. But, it declared
that the check was inadmissible in evidence pursuant to Sections 2 and 3(1 and 2) of Article III of the
Constitution.20 It concluded:

With the smoking gun evidence of respondents being rendered inadmissible, by virtue of the
constitutional right invoked by complainants, respondents' case falls apart as it is bereft of evidence
which cannot be used as a legal basis for complainant's dismissal.

The NLRC then dismissed the appeal for lack of merit, but modified the dispositive portion of the
appealed decision by deleting the award for illegal suspension as the same was already included in the
computation of the aggregate of the awards in the amount of P35,401.86.

Their motion for reconsideration having been denied, petitioners filed this special civil action
for certiorari, which is anchored on the following grounds:

I. Public respondent committed grave abuse of discretion in its findings of facts.

II. Due process was duly accorded to private respondent.

III. Public respondent gravely erred in applying Section 3, Article III of the 1987 Constitution.

As to the first and second grounds, petitioners insist that Catolico had been receiving "commissions"
from YSP, or probably from other suppliers, and that the check issued to her on 9 November 1989 was
not the first or the last. They also maintained that Catolico occupied a confidential position and that
Catolico's receipt of YSP's check, aggravated by her "propensity to violate company rules," constituted
breach of confidence. And contrary to the findings of NLRC, Catolico was given ample opportunity to
explain her side of the controversy.

Anent the third ground, petitioners submit that, in light of the decision in the People v. Marti,21 the
constitutional protection against unreasonable searches and seizures refers to the immunity of one's
person from interference by government and cannot be extended to acts committed by private
individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.

In its Manifestation in Lieu of Comment, the Office of the Solicitor General (OSG) disagreed with the
NLRC's decision, as it was of the persuasion that (a) the conclusions reached by public respondent are
inconsistent with its findings of fact; and (b) the incident involving the opening of envelope addressed to
private respondent does not warrant the application of the constitutional provisions. It observed that
Catolico was given "several opportunities" to explain her side of the check controversy, and concluded
that the opportunities granted her and her subsequent explanation "satisfy the requirements of just
cause and due process." The OSG was also convinced that Catolico's dismissal was based on just cause
and that Catolico's admission of the existence of the check, as well as her "lame excuse" that it was a
Christmas gift from YSP, constituted substantial evidence of dishonesty. Finally, the OSG echoed
petitioners' argument that there was no violation of the right of privacy of communication in this
case,22adding that petitioner WATEROUS was justified in opening an envelope from one of its regular
suppliers as it could assume that the letter was a business communication in which it had an interest.

In its Comment which we required to be filed in view of the adverse stand of the OSG, the NLRC
contends that petitioners miserably failed to prove their claim that it committed grave abuse of
discretion in its findings of fact. It then prays that we dismiss this petition.

In her Comment, Catolico asserts that petitioners' evidence is too "flimsy" to justify her dismissal. The
check in issue was given to her, and she had no duty to turn it over to her employer. Company rules do
not prohibit an employee from accepting gifts from clients, and there is no indication in the contentious
check that it was meant as a refund for overpriced medicines. Besides, the check was discovered in
violation of the constitutional provision on the right to privacy and communication; hence, as correctly
held by the NLRC, it was inadmissible in evidence.

Catolico likewise disputes petitioners' claim that the audit report and her initial response that she never
received a check were sufficient to justify her dismissal. When she denied having received a check from
YSP, she meant that she did not receive any refund of overprice, consistent with her position that what
she received was a token gift. All that can be gathered from the audit report is that there was apparently
an overcharge, with no basis to conclude that Catolico pocketed the amount in collusion with YSP. She
thus concluded that her dismissal was based on a mere suspicion.

Finally, Catolico insists that she could not have breached the trust and confidence of WATEROUS
because, being merely a pharmacist, she did not handle "confidential information or sensitive
properties." She was doing the task of a saleslady: selling drugs and making requisitions when supplies
were low.

A thorough review of the record leads us to no other conclusion than that, except as to the third ground,
the instant petition must fail.

Concededly, Catolico was denied due process. Procedural due process requires that an employee be
apprised of the charge against him, given reasonable time to answer the charge, allowed ample
opportunity to be heard and defend himself, and assisted by a representative if the employee so
desires.23 Ample opportunity connotes every kind of assistance that management must accord the
employee to enable him to prepare adequately for his defense, including legal representation.24
In the case at bar, although Catolico was given an opportunity to explain her side, she was dismissed
from the service in the memorandum of 5 March 1990 issued by her Supervisor after receipt of her
letter and that of her counsel. No hearing was ever conducted after the issues were joined through said
letters. The Supervisor's memorandum spoke of "evidences [sic] in [WATEROUS] possession," which
were not, however, submitted. What the "evidences" [sic] other than the sales invoice and the check
were, only the Supervisor knew.

Catolico was also unjustly dismissed. It is settled that the burden is on the employer to prove just and
valid cause for dismissing an employee, and its failure to discharge that burden would result in a finding
that the dismissal is unjustified.25 Here, WATEROUS proved unequal to the task.

It is evident from the Supervisor's memorandum that Catolico was dismissed because of an alleged
anomalous transaction with YSP. Unfortunately for petitioners, their evidence does not establish that
there was an overcharge. Control Clerk Eugenio C. Valdez, who claims to have discovered Catolico's
inappropriate transaction, stated in his affidavit:26

4. My findings revealed that on or before the month of July 31, 1989, Ms. Catolico in violation of the
[company] procedure, made an under the table deal with YSP Phils. to supply WDRC needed medicines
like Voren tablets at a jack-up price of P384.00 per bottle of 50 mg. which has a previous price of only
P320.00;

5. I verified the matter to YSP Phils. to determine the discrepancy and I found out that the cost per
bottle was indeed overpriced. The Accounting Department of YSP Phils. through Ms. Estelita Reyes
confirmed that there was really an overprice and she said that the difference was refunded through
their check voucher no. 629552 which was shown to me and the payee is Melodia Catolico, through a
China Bank Check No. 892068 dated November 9, 1989.

It clearly appears then that Catolico's dismissal was based on hearsay information. Estelita Reyes never
testified nor executed an affidavit relative to this case; thus, we have to reject the statements attributed
to her by Valdez. Hearsay evidence carries no probative value.27

Besides, it was never shown that petitioners paid for the Voren tablets. While Valdez informed Co,
through the former's memorandum28 of 29 January 1990, that WATEROUS paid YSP P3,840.00 "thru
MBTC Check No. 222832," the said check was never presented in evidence, nor was any receipt from
YSP offered by petitioners.

Moreover, the two purchase orders for Voren tablets presented by petitioners do not indicate an
overcharge. The purchase order dated 16 August 198929 stated that the Voren tablets cost P320.00 per
box, while the purchase order dated 5 October 198930 priced the Voren tablets at P384.00 per bottle.
The difference in price may then be attributed to the different packaging used in each purchase order.

Assuming that there was an overcharge, the two purchase orders for the Voren tablets were
recommended by Director-MMG Mario R. Panuncio, verified by AVP-MNG Noli M. Lopez and approved
by Vice President-General Manager Emma R. Co. The purchase orders were silent as to Catolico's
participation in the purchase. If the price increase was objectionable to petitioners, they or their officers
should have disapproved the transaction. Consequently, petitioners had no one to blame for their
predicament but themselves. This set of facts emphasizes the exceedingly incredible situation proposed
by petitioners. Despite the memorandum warning Catolico not to negotiate with suppliers of medicine,
there was no proof that she ever transacted, or that she had the opportunity to transact, with the said
suppliers. Again, as the purchase orders indicate, Catolico was not at all involved in the sale of the Voren
tablets. There was no occasion for Catolico to initiate, much less benefit from, what Valdez called an
"under the table deal" with YSP.

Catolico's dismissal then was obviously grounded on mere suspicion, which in no case can justify an
employee's dismissal. Suspicion is not among the valid causes provided by the Labor Code for the
termination of
employment;31 and even the dismissal of an employee for loss of trust and confidence must rest on
substantial grounds and not on the employer's arbitrariness, whims, caprices, or suspicion.32 Besides,
Catolico was not shown to be a managerial employee, to which class of employees the term "trust and
confidence" is restricted.33

As regards the constitutional violation upon which the NLRC anchored its decision, we find no reason to
revise the doctrine laid down in People vs. Marti34 that the Bill of Rights does not protect citizens from
unreasonable searches and seizures perpetrated by private individuals. It is not true, as counsel for
Catolico claims, that the citizens have no recourse against such assaults. On the contrary, and as said
counsel admits, such an invasion gives rise to both criminal and civil liabilities.

Finally, since it has been determined by the Labor Arbiter that Catolico's reinstatement would not be to
the best interest of the parties, he correctly awarded separation pay to Catolico. Separation pay in lieu
of reinstatement is computed at one month's salary for every year of service.35 In this case, however,
Labor Arbiter Lopez computed the separation pay at one-half month's salary for every year of service.
Catolico did not oppose or raise an objection. As such, we will uphold the award of separation pay as
fixed by the Labor Arbiter.

WHEREFORE, the instant petition is hereby DISMISSED and the challenged decision and resolution of the
National Labor Relations Commission dated 30 September 1993 and 2 December 1993, respectively, in
NLRC-NCR CA No. 005160-93 are AFFIRMED, except as to its reason for upholding the Labor Arbiter's
decision, viz., that the evidence against private respondent was inadmissible for having been obtained in
violation of her constitutional rights of privacy of communication and against unreasonable searches
and seizures which is hereby set aside.

Costs against petitioners.

SO ORDERED.
[G.R. No. 143944. July 11, 2002]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BASHER BONGCARAWAN y


MACARAMBON, accused-appellant.

DECISION

PUNO, J.:

This is an appeal from the Decision[1] 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. 6425[2] 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.

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 bag[6] 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 latters 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 Macapudis 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 Macapudis 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. Marti[15] 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, self-serving 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 courts 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 bare-bone
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.

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.


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. Tañada, Wigberto E. Tañada, 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. Castillo9 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.

Cendaña 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.

Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Relova, Gutierrez, Jr., De
la Fuente and Cuevas, JJ., concur.

Aquino, J., took no part.

Separate Opinions

ABAD SANTOS, J., concurring

I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish to state
my own reasons for holding that the search warrants which are the subject of the petition are utterly
void.

The action against "WE FORUM" was a naked suppression of press freedom for the search warrants
were issued in gross violation of the Constitution.

The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points, 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."
(Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].)

Any search warrant is conducted in disregard of the points mentioned above will result in wiping "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." (Ibid, p. 748.)

The two search warrants were issued without probable cause. To satisfy the requirement of probable
cause a specific offense must be alleged in the application; abstract averments will not suffice. In the
case at bar nothing specifically subversive has been alleged; stated only is the claim that certain objects
were being used as instruments and means of committing the offense of subversion punishable under
P.D. No. 885, as amended. There is no mention of any specific provision of the decree. I n the words of
Chief Justice C Concepcion, " It would be legal heresy of the highest order, to convict anybody" of
violating the decree without reference to any determinate provision thereof.

The search warrants are also void for lack of particularity. Both search warrants authorize Col. Rolando
Abadilla to seize and take possession, among other things, of the following:

Subversive documents, pamphlets, leaflets, books and other publication to promote the objectives and
purposes of the subversive organizations known as Movement for Free Philippines, Light-a-Fire
Movement and April 6 Movement.

The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive? What
did they contain to make them subversive? There is nothing in the applications nor in the warrants
which answers the questions. I must, therefore, conclude that the warrants are general warrants which
are obnoxious to the Constitution.

In point of fact, there was nothing subversive published in the WE FORUM just as there is nothing
subversive which has been published in MALAYA which has replaced the former and has the same
content but against which no action has been taken.

Conformably with existing jurisprudence everything seized pursuant to the warrants should be returned
to the owners and all of the items are subject to the exclusionary rule of evidence.

Teehankee, J., concur.

Separate Opinions

ABAD SANTOS, J., concurring

I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish to state
my own reasons for holding that the search warrants which are the subject of the petition are utterly
void.

The action against "WE FORUM" was a naked suppression of press freedom for the search warrants
were issued in gross violation of the Constitution.
The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points, 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."
(Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].)

Any search warrant is conducted in disregard of the points mentioned above will result in wiping "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." (Ibid, p. 748.)

The two search warrants were issued without probable cause. To satisfy the requirement of probable
cause a specific offense must be alleged in the application; abstract averments will not suffice. In the
case at bar nothing specifically subversive has been alleged; stated only is the claim that certain objects
were being used as instruments and means of committing the offense of subversion punishable under
P.D. No. 885, as amended. There is no mention of any specific provision of the decree. I n the words of
Chief Justice C Concepcion, " It would be legal heresy of the highest order, to convict anybody" of
violating the decree without reference to any determinate provision thereof.

The search warrants are also void for lack of particularity. Both search warrants authorize Col. Rolando
Abadilla to seize and take possession, among other things, of the following:

Subversive documents, pamphlets, leaflets, books and other publication to promote the objectives and
purposes of the subversive organizations known as Movement for Free Philippines, Light-a-Fire
Movement and April 6 Movement.

The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive? What
did they contain to make them subversive? There is nothing in the applications nor in the warrants
which answers the questions. I must, therefore, conclude that the warrants are general warrants which
are obnoxious to the Constitution.

In point of fact, there was nothing subversive published in the WE FORUM just as there is nothing
subversive which has been published in MALAYA which has replaced the former and has the same
content but against which no action has been taken.

Conformably with existing jurisprudence everything seized pursuant to the warrants should be returned
to the owners and all of the items are subject to the exclusionary rule of evidence.

Teehankee, J., concur.


G.R. No. 88919 July 25, 1990

PEOPLE OF THE PHILIPPINES, petitioner,


vs.
HONORABLE ENRIQUE B. INTING, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 38,
DUMAGUETE CITY, AND OIC MAYOR DOMINADOR S. REGALADO, JR., respondents.

GUTIERREZ, JR., J.:

Does a preliminary investigation conducted by a Provincial Election Supervisor involving election


offenses have to be coursed through the Provincial Fiscal now Provincial Prosecutor, before the Regional
Trial Court may take cognizance of the investigation and determine whether or not probable cause
exists?

On February 6, 1988, Mrs. Editha Barba filed a letter-complaint against OIC-Mayor Dominador Regalado
of Tanjay, Negros Oriental with the Commission on Elections (COMELEC), for allegedly transferring her, a
permanent Nursing Attendant, Grade I, in the office of the Municipal Mayor to a very remote barangay
and without obtaining prior permission or clearance from COMELEC as required by law.

Acting on the complaint, COMELEC directed Atty. Gerardo Lituanas, Provincial Election Supervisor of
Dumaguete City: (1) to conduct the preliminary investigation of the case; (2) to prepare and file the
necessary information in court; (3) to handle the prosecution if the evidence submitted shows a prima
facie case and (3) to issue a resolution of prosecution or dismissal as the case may be. The directive to
conduct the preliminary investigation was pursuant to COMELEC Resolution No. 1752 dated January 14,
1986. The resolution, in turn, is based on the constitutional mandate that the COMELEC is charged with
the enforcement and administration of all laws relative to the conduct of elections for the purpose of
ensuring free, orderly and honest elections (sec. 2, Article XII-C of the 1973 Constitution) and on the
Omnibus Election Code which implements the constitutional provision. The Resolution provides, among
others:

xxx xxx xxx

Further, Regional Election Directors and Provincial Election Supervisors are hereby authorized to
conduct preliminary investigations of election offenses committed in their respective jurisdictions, file
the corresponding complaints and/or informations in court whenever warranted, and to prosecute the
same pursuant to Section 265 of the Omnibus Election Code. (Rollo, p. 15)

After a preliminary investigation of Barba's complaint, Atty. Lituanas found a prima facie case. Hence, on
September 26, 1988, he filed with the respondent trial court a criminal case for violation of section 261,
Par. (h), Omnibus Election Code against the OIC-Mayor.

In an Order dated September 30, 1988, the respondent court issued a warrant of arrest against the
accused OIC Mayor. It also fixed the bail at five thousand pesos (P5,000.00) as recommended by the
Provincial Election Supervisor.

However, in an order dated October 3, 1988 and before the accused could be arrested, the trial court
set aside its September 30, 1988 order on the ground that Atty. Lituanas is not authorized to determine
probable cause pursuant to Section 2, Article III of the 1987 Constitution. The court stated that it "will
give due course to the information filed in this case if the same has the written approval of the Provincial
Fiscal after which the prosecution of the case shall be under the supervision and control of the latter."
(at p. 23, Rollo, emphasis supplied)

In another order dated November 22, 1988, the court gave Atty. Lituanas fifteen (15) days from receipt
to file another information charging the same offense with the written approval of the Provincial Fiscal.

Atty. Lituanas failed to comply with the order. Hence, in an order dated December 8, 1988, the trial
court quashed the information. A motion for reconsideration was denied.

Hence, this petition.

The respondent trial court justifies its stand on the ground that the COMELEC through its Provincial
Election Supervisor lacks jurisdiction to determine the existence of probable cause in an election offense
which it seeks to prosecute in court because:

While under Section 265 of the Omnibus Election Code approved on December 3, 1985 duly authorized
legal officers of the Commission on Elections have the exclusive power to conduct preliminary
investigation of all election offenses and to prosecute the same, it is doubtful whether said authority
under the auspices of the 1973 Constitution, still subsists under the 1987 Constitution which has deleted
in its Section 2, Article III, the phrase "and such other responsible officer as may be authorized by law" in
the equivalent section and article of the 1973 Constitution. (Rollo, p. 24)

The petition is impressed with merit.

We emphasize important features of the constitutional mandate that " ... no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by the judge ... " (Article
III, Section 2, Constitution)

First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or
Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this
determination.

Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to
make the determination of probable cause. The Judge does not have to follow what the Prosecutor
presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual. It is the report,
the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind
the Prosecutor's certification which are material in assisting the Judge to make his determination.

And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines
probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which
ascertains whether the offender should be held for trial or released. Even if the two inquiries are
conducted in the course of one and the same proceeding, there should be no confusion about the
objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper-whether or not there is reasonable ground to believe that the accused
is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense,
rigors and embarrassment of trial is the function of the Prosecutor.
The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [1989]):

Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct
preliminary investigations. That authority, at one time reposed in them under Sections 13, 14 and 16
Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47
Phil. 443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from
them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated on
November 11, 1984) which deleted all provisions granting that power to said Judges. We had occasion
to point this out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic
propositions, namely: (1) that the conduct of a preliminary investigation is "not a judicial function ...
(but) part of the prosecution's job, a function of the executive," (2) that wherever "there are enough
fiscals or prosecutors to conduct preliminary investigations, courts are counseled to leave this job which
is essentially executive to them," and the fact "that a certain power is granted does not necessarily
mean that it should be indiscriminately exercised."

The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988,
(The 1988 Amendments were published in the issue of Bulletin Today of October 29, 1988) did not
restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with
the officers or courts having authority to conduct preliminary investigations.

This is not to say, however, that somewhere along the line RTC Judges also lost the power to make
a preliminary examination for the purpose of determining whether probable cause exists to justify the
issuance of a warrant of arrest (or search warrant). Such a power — indeed, it is as much a duty as it is a
power — has been and remains vested in every judge by the provision in the Bill of Rights in the 1935,
the 1973 and the present (1987) Constitutions securing the people against unreasonable searches and
seizures, thereby placing it beyond the competence of mere Court rule or statute to revoke. The
distinction must, therefore, be made clear while an RTC Judge may no longer conduct preliminary
investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or
information, he retains the authority, when such a pleading is filed with his court, to determine whether
there is probable cause justifying the issuance of a warrant of arrest. It might be added that this
distinction accords, rather than conflicts, with the rationale of Salta because both law and rule, in
restricting to judges the authority to order arrest, recognize that function to be judicial in nature.

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation


for the determination of a sufficient ground for the filing of the information or it is an investigation for
the determination of a probable cause for the issuance of a warrant of arrest. The first kind of
preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of
preliminary investigation which is more properly called preliminary examination is judicial in nature and
is lodged with the judge. It is in this context that we address the issue raised in the instant petition so as
to give meaning to the constitutional power vested in the COMELEC regarding election offenses.

Article IX C Section 2 of the Constitution provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall.
xxx xxx xxx

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of
votes, investigate and, where appropriate, prosecute cases of violation of election laws, including acts or
omission constituting election frauds, offenses, and practices. (Emphasis supplied)

In effect the 1987 Constitution mandates the COMELEC not only to investigate but also to prosecute
cases of violation of election laws. This means that the COMELEC is empowered to conduct preliminary
investigations in cases involving election offenses for the purpose of helping the Judge determine
probable cause and for filing an information in court. This power is exclusive with COMELEC.

The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to
the conduct of election and the concomittant authority to investigate and prosecute election offenses is
not without compelling reason. The evident constitutional intendment in bestowing this power to the
COMELEC is to insure the free, orderly and honest conduct of elections, failure of which would result in
the frustration of the true will of the people and make a mere idle ceremony of the sacred right and
duty of every qualified citizen to vote. To divest the COMELEC of the authority to investigate and
prosecute offenses committed by public officials in relation to their office would thus seriously impair its
effectiveness in achieving this clear constitutional mandate.

From a careful scrutiny of the constitutional provisions relied upon by the Sandiganbayan, We perceived
neither explicit nor implicit grant to it and its prosecuting arm, the Tanodbayan, of the authority to
investigate, prosecute and hear election offenses committed by public officers in relation to their office
as contradistinguished from the clear and categorical bestowal of said authority and jurisdiction upon
the COMELEC and the courts of first instance under Sections 182 and 184, respectively, of the Election
Code of 1978.

An examination of the provisions of the Constitution and the Election Code of 1978 reveals the clear
intention to place in the COMELEC exclusive jurisdiction to investigate and prosecute election offenses
committed by any person, whether private individual or public officer or employee, and in the latter
instance, irrespective of whether the offense is committed in relation to his official duties or not. In
other words, it is the nature of the offense and not the personality of the offender that matters. As long
as the offense is an election offense jurisdiction over the same rests exclusively with the COMELEC, in
view of its all-embracing power over the conduct of elections. (Corpus v. Tanodbayan, 149 SCRA 281
[1987])

Hence, the Provincial Fiscal, as such, assumes no role in the prosecution of election offenses. If the Fiscal
or Prosecutor files an information charging an election offense or prosecutes a violation of election law,
it is because he has been deputized by the COMELEC. He does not do so under the sole authority of his
office. (People v. Basilla, et al., G.R. Nos. 83938-40, November 6, 1989).i•t•c-aüsl In the instant case,
there is no averment or allegation that the respondent Judge is bringing in the Provincial Fiscal as a
deputy of COMELEC. He wants the Fiscal to "approve" the COMELEC's preliminary investigation.

It is to be noted that on February 27, 1987 (when the 1987 Constitution was already in effect) the
President issued Executive Order No. 134 which was the ENABLING ACT FOR ELECTIONS FOR MEMBERS
OF CONGRESS ON MAY 11, 1987 AND FOR OTHER PURPOSES." Section 11 thereof provides:
Prosecution. The Commission shall, through its duly authorized legal officers, have exclusive power to
conduct preliminary investigation of all election offenses punishable as provided for in the preceding
section, and to prosecute the same: Provided, That in the event that the Commission fails to act on any
complaint within two (2) months from filing, the complainant may file the complaint with the Office of
the Fiscal or with the Department of Justice for proper investigation and prosecution, if warranted.

The Commission may avail of the assistance of other prosecuting arms of the government.

It is only after a preliminary examination conducted by the COMELEC through its officials or its deputies
that section 2, Article III of the 1987 Constitution comes in. This is so, because, when the application for
a warrant of arrest is made and the information is filed with the court, the judge will then determine
whether or not a probable cause exists for the issuance of a warrant of arrest.

Bearing these principles in mind, it is apparant that the respondent trial court misconstrued the
constitutional provision when it quashed the information filed by the Provincial Election Supervisor. As
indicated above what the respondent trial court should have done was to enforce its September 30,
1988 order, to wit:

Pursuant to Circular No. 12 of the Chief Justice of the Supreme Court dated June 30, 1987 and
considering that after a personal examination of the evidence submitted by the investigating Provincial
Election Supervisor III Negros Oriental (Designated Legal Officer), there is reasonable ground for this
Court to rely on the certification of said Provincial Election Supervisor III in the information that a
probable cause exists, let a warrant issue for the arrest of the accused filing the bail at FIVE THOUSAND
(P5,000.00) PESOS as recommended by the Provincial Election Supervisor III.

The order to get the approval of the Provincial Fiscal is not only superfluous but unwarranted.

WHEREFORE, the instant petition is GRANTED. The questioned Orders dated October 3, 1988, November
22, 1988 and December 8, 1988 are REVERSED and SET ASIDE. The respondent trial court's Order dated
September 30, 1988 is REINSTATED. The respondent court is ordered to proceed hearing the case with
deliberate speed until its termination.

SO ORDERED.
G.R. No. 82585 November 14, 1988

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L.


MANZANAS, petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch 35,
UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C. VICTOR, THE CITY FISCAL
OF MANILA and PRESIDENT CORAZON C. AQUINO, respondents.

G.R. No. 82827 November 14, 1988

LUIS D. BELTRAN, petitioner,


vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila,
THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF
THE WESTERN POLICE DISTRICT, and THE MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL
TRIAL COURT OF MANILA, respondents.

G.R. No. 83979 November 14, 1988.

LUIS D. BELTRAN, petitioner,


vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY ORDOÑEZ,
UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF MANILA JESUS F. GUERRERO,
and JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at
Manila, respondents.

Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.

Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos. 82827 and
83979.

RESOLUTION

PER CURIAM:

In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were
denied due process when informations for libel were filed against them although the finding of the
existence of a prima faciecase was still under review by the Secretary of Justice and, subsequently, by
the President; (2) whether or not the constitutional rights of Beltran were violated when respondent
RTC judge issued a warrant for his arrest without personally examining the complainant and the
witnesses, if any, to determine probable cause; and (3) whether or not the President of the Philippines,
under the Constitution, may initiate criminal proceedings against the petitioners through the filing of a
complaint-affidavit.

Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary
of Justice denied petitioners' motion for reconsideration and upheld the resolution of the
Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against petitioners. A
second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on
April 7, 1988. On appeal, the President, through the Executive Secretary, affirmed the resolution of the
Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by the Executive
Secretary on May 16, 1988. With these developments, petitioners' contention that they have been
denied the administrative remedies available under the law has lost factual support.

It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of
law in the preliminary investigation is negated by the fact that instead of submitting his counter-
affidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his right to refute the
complaint by filing counter-affidavits. Due process of law does not require that the respondent in a
criminal case actually file his counter-affidavits before the preliminary investigation is deemed
completed. All that is required is that the respondent be given the opportunity to submit counter-
affidavits if he is so minded.

The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision
on the issuance of warrants of arrest. The pertinent provision reads:

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination nder oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.

The addition of the word "personally" after the word "determined" and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized
by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to
personally examine the complainant and his witnesses in his determination of probable cause for the
issuance of warrants of arrest. This is not an accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally
evaluate the report and the supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds
no probable cause, he may disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary
examination and investigation of criminal complaints instead of concentrating on hearing and deciding
cases filed before their courts.

On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for
the issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this
resolution.
It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with
regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack
or excess of jurisdiction cannot be sustained.

Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential
immunity from suit impose a correlative disability to file suit." He contends that if criminal proceedings
ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently have to be a
witness for the prosecution, bringing her under the trial court's jurisdiction. This, continues Beltran,
would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness
stand, she would be exposing herself to possible contempt of court or perjury.

The rationale for the grant to the President of the privilege of immunity from suit is to assure the
exercise of Presidential duties and functions free from any hindrance or distraction, considering that
being the Chief Executive of the Government is a job that, aside from requiring all of the office holder's
time, also demands undivided attention.

But this privilege of immunity from suit, pertains to the President by virtue of the office and may be
invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an
accused in a criminal case in which the President is complainant cannot raise the presidential privilege
as a defense to prevent the case from proceeding against such accused.

Moreover, there is nothing in our laws that would prevent the President from waiving the privilege.
Thus, if so minded the President may shed the protection afforded by the privilege and submit to the
court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's
prerogative. It is a decision that cannot be assumed and imposed by any other person.

As regards the contention of petitioner Beltran that he could not be held liable for libel because of the
privileged character or the publication, the Court reiterates that it is not a trier of facts and that such a
defense is best left to the trial court to appreciate after receiving the evidence of the parties.

As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect"
on press freedom, the Court finds no basis at this stage to rule on the point.

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

WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part
of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and
83979. The Order to maintain the status quo contained in the Resolution of the Court en banc dated
April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Griño-Aquino Medialdea and Regalado, JJ., concur.

Separate Opinions
GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues mentioned in its
opening statement. However, as to the more important issue on whether or not the prosecution of the
libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is
the more important issue in these petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not
hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice
where it is not alone the criminal liability of an accused in a seemingly minor libel case which is involved
but broader considerations of governmental power versus a preferred freedom.

We have in these four petitions the unusual situation where the highest official of the Republic and one
who enjoys unprecedented public support asks for the prosecution of a newspaper columnist, the
publisher and chairman of the editorial board, the managing editor and the business manager in a not
too indubitable a case for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman
who, instead of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible
twisting of facts, of malicious distortions of half-truths which tend to cause dishonor, discredit, or
contempt of the complainant. However, this case is not a simple prosecution for libel. We have as
complainant a powerful and popular President who heads the investigation and prosecution service and
appoints members of appellate courts but who feels so terribly maligned that she has taken the
unorthodox step of going to court inspite of the invocations of freedom of the press which would
inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals and
defense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the harassment
goes beyond the usual difficulties encountered by any accused and results in an unwillingness of media
to freely criticize government or to question government handling of sensitive issues and public affairs,
this Court and not a lower tribunal should draw the demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete
liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp
incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile
and unjust accusation; the wound can be assuaged with the balm of a clear conscience." The Court
pointed out that while defamation is not authorized, criticism is to be expected and should be borne for
the common good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority of such exalted position that
the citizen must speak of him only with bated breath. "In the eye of our Constitution and laws, every
man is a sovereign, a ruler and a freeman, and has equal rights with every other man." (at p. 900)
In fact, the Court observed that high official position, instead of affording immunity from slanderous and
libelous charges, would actually invite attacks by those who desire to create sensation. It would seem
that what would ordinarily be slander if directed at the typical person should be examined from various
perspectives if directed at a high government official. Again, the Supreme Court should draw this fine
line instead of leaving it to lower tribunals.

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a
prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the
free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where
after discounting the possibility that the words may not be really that libelous, there is likely to be a
chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and
publishers to courageously perform their critical role in society. If, instead of merely reading more
carefully what a columnist writes in his daily column, the editors tell their people to lay off certain issues
or certain officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution, I must call
attention to our decisions which caution that "no inroads on press freedom should be allowed in the
guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court of
Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra).

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to give any more
weight to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C. P. v. Button,
371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of unlawful acts,
breach of the peace, obscenity, solicitation of legal business, and the other various other formulae for
the repression of expression that have been challenged in this Court, libel can claim no talismanic
immunity from constitutional limitations. It must be measured by standards that satisfy the First
Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a political duty; and that this
should be a fundamental principle of the American government. They recognized the risk to which all
human institutions are subject. But they knew that order cannot be secured merely through fear of
punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear
breeds repression; that repression breeds hate; that hate menaces stable government; that the path of
safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the
fitting remedy for evil counsel is good ones. Believing in the power of reason as applied through public
discussion, they eschewed silence coerced by law—the argument of force in its worst form. ...

Thus we consider this case against the background of a profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and wide open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ... (at
pp. 700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs.
Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly
participated in a wilful purveying of falsehood? Considering the free speech aspects of these petitions,
should not a differentiated approach to their particular liabilities be taken instead of lumping up
everybody with the offending columnist? I realize that the law includes publishers and editors but
perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis
newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech
clause but we have to understand that some provocative words, which if taken literally may appear to
shame or disparage a public figure, may really be intended to provoke debate on public issues when
uttered or written by a media personality. Will not a criminal prosecution in the type of case now before
us dampen the vigor and limit the variety of public debate? There are many other questions arising from
this unusual case which have not been considered.

I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn
ones. I see no reason to disagree with the way the Court has resolved them. The first issue on
prematurity is moot. The second issue discusses a procedure now embodied in the recently amended
Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent the third
issue, considerations of public policy dictate that an incumbent President should not be sued. At the
same time, the President cannot stand by helplessly bereft of legal remedies if somebody vilifies or
maligns him or her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I know
that most of our fiscals and judges are courageous individuals who would not allow any considerations
of possible consequences to their careers to stand in the way of public duty. But why should we subject
them to this problem? And why should we allow the possibility of the trial court treating and deciding
the case as one for ordinary libel without bothering to fully explore the more important areas of
concern, the extremely difficult issues involving government power and freedom of expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to
reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343
U. S. 250) when he said:

If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws
are consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent
their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression
should be faithfully applied.
G.R. No. L-22196 June 30, 1967

ESTEBAN MORANO, CHAN SAU WAH and FU YAN FUN, petitioners-appellants,


vs.
HON. MARTINIANO VIVO in his capacity as Acting Commissioner of Immigration, respondent-
appellant.

Engracio Fabre Law Office for petitioners-appellants.


Office of the Solicitor General Arturo A. Alafriz and Solicitor A. M. Amores for respondent-appellant.

SANCHEZ, J.:

Chan Sau Wah, a Chinese citizen born in Fukien, China on January 6, 1932, arrived in the Philippines on
November 23, 1961 to visit her cousin, Samuel Lee Malaps. She left in mainland China two of her
children by a first marriage: Fu Tse Haw and Fu Yan Kai With her was Fu Yan Fun, her minor son also by
the first marriage, born in Hongkong on September 11, 1957.

Chan Sau Wah and her minor son Fu Yan Fun were permitted only into the Philippines under a
temporary visitor's visa for two (2) months and after they posted a cash bond of P4,000.00.

On January 24, 1962, Chan Sau Wah married Esteban Morano, a native-born Filipino citizen. Born to this
union on September 16, 1962 was Esteban Morano, Jr.

To prolong their stay in the Philippines, Chan Sau Wah and Fu Yan Fun obtained several extensions. The
last extension expired on September 10, 1962.1äwphï1.ñët

In a letter dated August 31, 1962, the Commissioner of Immigration ordered Chan Sau Wah and her son,
Fu Yan Fun, to leave the country on or before September 10, 1962 with a warning that upon failure so to
do, he will issue a warrant for their arrest and will cause the confiscation of their bond.

Instead of leaving the country, on September 10, 1962, Chan Sau Wah (with her husband Esteban
Morano) and Fu Yan Fun petitioned the Court of First Instance of Manila for mandamus to compel the
Commissioner of Immigration to cancel petitioners' Alien Certificates of Registration; prohibition to stop
the Commissioner from issuing a warrant for their arrest, and preliminary injunction to restrain the
Commissioner from confiscating their cash bond and from issuing warrants of arrest pending resolution
of this case.1 The trial court, on November 3, 1962, issued the writ of preliminary injunction prayed for,
upon a P2,000-bond. After trial and the stipulations of facts filed by the parties, the Court of First
Instance rendered judgment, viz:

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered as follows:

(a) Granting this petition for Mandamus and Prohibition with respect to petitioner CHAN SAU WAH, who
is hereby declared a citizen of the Philippines; ordering the respondent to cancel her Alien Certificate of
Registration and other immigration papers, upon the payment of proper dues; and declaring the
preliminary injunction with respect to her permanent, prohibiting the respondent, his representatives or
subordinates from arresting and/or deporting said petitioner;

(b) Dismissing this petition with respect to petitioner FU YAN FUN, and dissolving the writ of preliminary
injunction issued herein, restraining the respondent, his representatives or subordinates from arresting
and/or deporting said petitioner;
(c) Authorizing respondent Commissioner to forfeit the bond filed by herein petitioners CHAN SAU WAH
and FU YAN FUN in the amount of P4,000.00; and

(d) Denying, for lack of merit, the prayer to declare Sec. 37 (a) of the Philippine Immigration Act of 1940
unconstitutional;

Without pronouncement, as to costs.

Petitioners and respondent Commissioner both appealed.

We will deal with the claims of both appellants in their proper sequence.

1. The Solicitor General's brief assails the trial court's declaration that Chan Sau Wah is a citizen of the
Philippines. The court a quo took the position that "Chan Sau Wah became, by virtue of, and upon, her
marriage to Esteban Morano, a natural-born Filipino, a Filipino citizen.2

Placed to the fore is paragraph 1, Section 15 of Commonwealth Act 473 [Revised Naturalization Act],
which reads:

Sec. 15. Effect of the naturalization on wife children. — Any woman who is now or may hereafter be
married to a citizen of the Philippines, and who might herself be lawfully naturalized shall be deemed a
citizen of the Philippines.

To apply this provision, two requisites must concur: (a) valid marriage of an alien woman to a citizen of
the Philippines and (b) the alien woman herself might be lawfully naturalized.

We may concede that the first requisite has been properly met. The validity of the marriage is
presumed.

But can the same be said of the second requisite? This question by all means is not new. In a series of
cases, this Court has declared that the marriage of an alien woman to a Filipino citizen does not ipso
facto make her a Filipino citizen. She must satisfactorily show that she has all the qualifications and none
of the disqualifications required by the Naturalization Law.3 Ly Giok Ha alias Wy Giok Ha et al. vs. Emilio
Galang, L-21332, March 18, 1966,* clearly writes down the philosophy behind the rule in the following
expressive language, viz:

Reflection will reveal why this must be so. The qualifications prescribed under section 2 of the
Naturalization Act, and the disqualifications enumerated in its section 4, are not mutually exclusive; and
if all that were to be required is that the wife of a Filipino be not disqualified under section 4, the result
might well be that citizenship would be conferred upon persons in violation of the policy of the statute.
For example, section 4 disqualifies only —

"(c) Polygamists or believers in the practice of polygamy; and

(b) Persons convicted of crimes involving moral turpitude,"

so that a blackmailer, or a maintainer of gambling or bawdy houses, not previously convicted by a


competent court, would not be thereby disqualified; still it is certain that the law did not intend such a
person to, be admitted as a citizen in view of the requirement of section 2 that an applicant for
citizenship "must be of good moral character."
Similarly, the citizen's wife might be a convinced believer in racial supremacy, in government by certain
selected classes, in the right to vote exclusively by certain "herrenvolk," and thus disbelieve in the
principles underlying the Philippine Constitution; yet she would not be disqualified under section 4, as
long as she is not "opposed to organized government," nor affiliated to groups "upholding or teaching
doctrines opposing all organized governments," nor "defending or teaching the necessity or propriety of
violence, personal assault or assassination for the success or predominance of their ideas." Et sic de
caeteris.

Upon the principle of selective citizenship, we cannot afford to depart from the wise precept affirmed
and reaffirmed in the cases heretofore noted.

In the additional stipulation of facts of July 3, 1963, petitioners admit that Chan Sau Wah is not
possessed of all the qualifications required by the Naturalization Law.

Because of all these we are left under no doubt that petitioner Chan Sau Wah did not become a Filipino
citizen.

2. Squarely put in issue by petitioners is the constitutionality of Section 37 (a) of the Immigration Act of
1940, which reads:

Sec. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner of Immigration
or of any other officer designated by him for the purpose and deported upon the warrant of the
Commissioner of Immigration after a determination by the Board of Commissioners of the existence of
the ground for deportation as charged against the alien:

xxx xxx xxx

(7) Any alien who remains in the Philippines in violation of any limitation or condition under which he
was admitted as a nonimmigrant.

Petitioners argue that the legal precept just quoted trenches upon the constitutional mandate in Section
1 (3), Article III [Bill of Rights] of the Constitution, to wit:

(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.

They say that the Constitution limits to judges the authority to issue warrants of arrest and that the
legislative delegation of such power to the Commissioner of Immigration is thus violative of the Bill of
Rights.

Section 1 (3), Article III of the Constitution, we perceive, does not require judicial intervention in the
execution of a final order of deportation issued in accordance with law. The constitutional limitation
contemplates an order of arrest in the exercise of judicial power4 as a step preliminary or incidental to
prosecution or proceedings for a given offense or administrative action, not as a measure indispensable
to carry out a valid decision by a competent official, such as a legal order of deportation, issued by the
Commissioner of Immigration, in pursuance of a valid legislation.
The following from American Jurisprudence,5 is illuminating:

It is thoroughly established that Congress has power to order the deportation of aliens whose presence
in the country it deems hurtful. Owing to the nature of the proceeding, the deportation of an alien who
is found in this country in violation of law is not a deprivation of liberty without due process of law. This
is so, although the inquiry devolves upon executive officers, and their findings of fact, after a fair though
summary hearing, are made conclusive.

xxx xxx xxx

The determination of the propriety of deportation is not a prosecution for, or a conviction of, crime; nor
is the deportation a punishment, even though the facts underlying the decision may constitute a crime
under local law. The proceeding is in effect simply a refusal by the government to harbor persons whom
it does not want. The coincidence of local penal law with the policy of Congress is purely accidental, and,
though supported by the same facts, a criminal prosecution and a proceeding for deportation are
separate and independent.

In consequence, the constitutional guarantee set forth in Section 1 (3), Article III of the Constitution
aforesaid, requiring that the issue of probable cause be determined by a judge, does not extend to
deportation proceedings.6

The view we here express finds support in the discussions during the constitutional convention. The
convention recognized, as sanctioned by due process, possibilities and cases of deprivation of liberty,
other than by order of a competent court.7

Indeed, the power to deport or expel aliens is an attribute of sovereignty. Such power is planted on the
"accepted maxim of international law, that every sovereign nation has the power, as inherent in
sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its
dominions."8 So it is, that this Court once aptly remarked that there can be no controversy on the fact
that where aliens are admitted as temporary visitors, "the law is to the effect that temporary visitors
who do not depart upon the expiration of the period of stay granted them are subject to deportation by
the Commissioner of Immigration, for having violated the limitation or condition under which they were
admitted as non-immigrants (Immigration Law, Sec. 37 (a), subsection (7); C.A. 613, as amended)."9

And, in a case directly in point, where the power of the Commissioner to issue warrants of arrest was
challenged as unconstitutional, because "such power is only vested in a judge by Section 1, paragraph 3,
Article III of our Constitution," this Court declared —

This argument overlooks the fact that the stay of appellant Ng Hua To as temporary visitor is subject to
certain contractual stipulations as contained in the cash bond put up by him, among them, that in case
of breach the Commissioner may require the recommitment of the person in whose favor the bond has
been filed. The Commissioner did nothing but to enforce such condition. Such a step is necessary to
enable the Commissioner to prepare the ground for his deportation under section 37 (a) of
Commonwealth Act 613. A contrary interpretation would render such power nugatory to the detriment
of the State.10

It is in this context that we rule that Section 37 (a) of the Immigration Act of 1940 is not constitutionally
proscribed.
3. A sequel to the questions just discussed is the second error set forth in the government's brief. The
Solicitor General balks at the lower court's ruling that petitioner Chan Sau Wah is entitled to permanent
residence in the Philippines without first complying with the requirements of Sections 9 and 13 of the
Immigration Act of 1940, as amended by Republic Act 503.

We first go to the law, viz:

SEC. 9 [last paragraph]

An alien who is admitted as a nonimmigrant cannot remain in the Philippines permanently. To obtain
permanent admission, a nonimmigrant alien must depart voluntarily to some foreign country and
procure from the appropriate Philippine consul the proper visa and thereafter undergo examination by
the officers of the Bureau of Immigration at a Philippine port of entry for determination of his
admissibility in accordance with the requirements of this Act.

SEC. 13. Under the conditions set forth in this Act there may be admitted into the Philippines
immigrants, termed "quota immigrants" not in excess of fifty (50) of any one nationality or without
nationality for any one calendar year, except that the following immigrants, termed "nonquota
immigrants," maybe admitted without regard to such numerical limitations.

The corresponding Philippine Consular representative abroad shall investigate and certify the eligibility
of a quota immigrant previous to his admission into the Philippines. Qualified and desirable aliens who
are in the Philippines under temporary stay may be admitted within the quota, subject to the provisions
of the last paragraph of section 9 of this Act.

(a) The wife or the husband or the unmarried child under twenty-one years of age of a Philippine citizen,
if accompanying or following to join such citizen;

(b) A child of alien parents born during the temporary visit abroad of the mother, the mother having
been previously lawfully admitted into the Philippine for permanent residence, if the child is
accompanying or coming to join a parent and applies for admission within five years from the date of its
birth;

Concededly, Chan Sau Wah entered the Philippines on a tourist-temporary visitor's visa. She is a non-
immigrant. Under Section 13 just quoted, she may therefore be admitted if she were a qualified and
desirable alien and subject to the provisions of the last paragraph of Section 9. Therefore, first, she must
depart voluntarily to some foreign country; second, she must procure from the appropriate consul the
proper visa; and third, she must thereafter undergo examination by the officials of the Bureau of
Immigration at the port of entry for determination of her admissibility in accordance with the
requirements of the immigration Act.

This Court in a number of cases has ruled, and consistently too, that an alien admitted as a temporary
visitor cannot change his or her status without first departing from the country and complying with the
requirements of Section 9 of the Immigration Act. 11

The gravamen of petitioners' argument is that Chan Sau Wah has, since her entry, married in Manila a
native-born Filipino, Esteban Morano. It will not particularly help analysis for petitioners to appeal to
family solidarity in an effort to thwart her deportation. Chan Sau Wah, seemingly is not one who has a
high regard for such solidarity. Proof: She left two of her children by the first marriage, both minors, in
the care of neighbors in Fukien, China.

Then, the wording of the statute heretofore adverted to is a forbidding obstacle which will prevent this
Court from writing into the law an additional provision that marriage of a temporary alien visitor to a
Filipino would ipso facto make her a permanent resident in his country. This is a field closed to judicial
action. No breadth of discretion is allowed us. We cannot insulate her from the State's power of
deportation.

Really, it would be an easy matter for an alien woman to enter the Philippines as a temporary visitor, go
through a mock marriage, but actually live with another man as husband and wife, and thereby skirt the
provisions of our immigration law. Also, a woman of undesirable character may enter this country, ply a
pernicious trade, marry a Filipino, and again throw overboard Sections 9 and 13 of the Act. Such a
flanking movement, we are confident, is impermissible.

Recently we confirmed the rule that an alien wife of a Filipino may not stay permanently without first
departing from the Philippines. Reason: Discourage entry under false pretenses. 12

The ruling of the trial court on this score should be reversed.

4. It is petitioners' turn to point as error the dismissal of the petition for mandamus and prohibition with
respect to petitioner Fu Yan Fun.

Petitioners' line of thought is this: Fu Yan Fun follows the citizenship of his mother. They cite Section 15,
paragraph 3, Commonwealth Act 473, which says that:

A foreign-born minor child, if dwelling in the Philippines at the time of the naturalization of the parent,
shall automatically become a Philippine citizen. . . .

Petitioners' position is based on the assumption that Chan Sau Wah, the mother, is a Filipino citizen. We
have held that she is not. At best, Fu Yan Fun is a step-son of Esteban Morano, husband of Chan Sau
Wah. A step-son is not a foreign-born child of the step-father. The word child, we are certain, means
legitimate child, not a step-child. We are not wanting in precedents. Thus, when the Constitution
provides that "[t]hose whose fathers are citizens of the Philippines" are citizens thereof, 13 the
fundamental charter intends "those" to apply to legitimate children. 14 In another case, the term "minor
children" or "minor child" in Section 15 of the Revised Naturalization Law refers only to legitimate
children of Filipino citizens. This Court, thru Mr. Chief Justice Roberto Concepcion, there said: 15

It is claimed that the phrases "minor children" and "minor child," used in these provisions, include
adopted children. The argument is predicated upon the theory that an adopted child is, for all intents
and purposes, a legitimate child. Whenever, the word "children" or "child" is used in statutes, it is
generally understood, however, to refer to legitimate children, unless the context of the law and its
spirit indicate clearly the contrary. Thus, for instance, when the Constitution provides that "those whose
fathers are citizens of the Philippines," and "those whose mothers are citizens of the Philippines" who
shall elect Philippine citizenship upon reaching the age of majority, are citizens of the Philippines (Article
IV, Section 1, subdivisions [3] and [4]), our fundamental law clearly refers to legitimate children
(Chiongbian vs. De Leon, 46 Off. Gaz., 3652-3654; Serra v. Republic, L-4223, May 12, 1952).
At any rate, Fu Yan Fun entered the Philippines as a temporary visitor. The status of a temporary visitor
cannot be converted into, that of a permanent resident, as we have heretofore held, without first
complying with Section 9 of the Immigration Law.

5. Petitioners finally aver that the lower court erred in authorizing respondent Commissioner to forfeit
the bond filed by petitioners Chan Sau Wah and Fu Yan Fun in the amount of P4,000.00.

Here is petitioners' posture. They enjoyed their stay in the Philippines upon a bond. Now they come to
court and say that as the prescribed form of this bond was not expressly approved by the Secretary of
Justice in accordance with Section 3 of Commonwealth Act 613, which reads —

SEC. 3. . . . He [Commissioner of Immigration] shall issue, subject to the approval of the Department
Head, such rules and regulations and prescribes such forms of bond, reports, and other papers, and shall
issue from time to time such instruction, not inconsistent with law, as he shall deem best calculated to
carry out the provisions of the immigration laws. . . .

that bond is void.

Reasons there are which prevent us from giving our imprimatur to this argument.

The provision requiring official approval of a bond is merely directory. "Irregularity or entire failure in
this respect does not affect the validity of the bond. 16 The reason for the rule, is found in 9 C.J., p. 26
(footnote), which reads:

(a) Reason for rule. — "Statutes requiring bonds to be approved by certain officials are not for the
purpose of protecting the obligors in the bond, but are aimed to protect the public, to insure their
solvency, and to create evidence of an unimpeachable character of the fact of their execution. When
they are executed for a legal purpose, before a proper tribunal, and are in fact accepted and approved
by the officer or body, whose duty it was to approve them, it could serve no useful purpose of the law to
hold them invalid, to release all the obligors thereon, and to defeat every purpose of its execution,
simply because the fact of approval was not indorsed precisely as had been directed by the Legislature."
American Book Co. vs. Wells, 83 SW 622, 627, 26 Ky L-1159. (emphasis supplied)

And another. This bond was accepted by the government. It had been there. The form of the bond here
used is of long continued usage. If the government did not question the form of the bond at all, then we
must assume that it counted with the Secretary's approval. For the presumption is that official duty has
been legally performed.

Surely enough, equitable considerations will stop petitioners from pleading invalidity of the bond. They
offered that bond to enable them to enter and stay in this country. They enjoyed benefits therefrom.
They cannot, "in law, and good conscience, be allowed to reap the fruits" of that bond, and then jettison
the same. They are "precluded from attacking the validity" of such bond. 17

Actually, to petitioners the bond was good while they sought entry into the Philippines; they offered it
as security for the undertaking; that they "will actually depart from the Philippines" when their term of
stay expires. Now that the bond is being confiscated because they overstayed, they make an about-face
and say that such bond is null and void. They shall not profit from this inconsistent position. Their bond
should be confiscated.
Conformably to the foregoing, the judgment under review is hereby modified as follows:

(1) The portion thereof which reads:

(a) Granting their petition for Mandamus and Prohibition with respect to petitioner CHAN SAU WAH,
who is hereby declared a citizen of the Philippines; ordering the respondent to cancel her Alien
Certificate of Registration and other immigration papers, upon the payment of proper dues; and
declaring preliminary injunction with respect to her permanent, prohibiting the respondent, his
representatives or subordinates from arresting and/or deporting said petitioner;

is hereby reversed: and, in consequence —

The petition for mandamus and prohibition with respect to petitioner Chan Sau Wah is hereby denied;
and the judgment declaring her a citizen of the Philippines, directing respondent to cancel her Alien
Certificate of Registration and other immigration papers, and declaring the preliminary injunction with
respect to her permanent, are all hereby set aside; and

(2) In all other respects, the decision appealed from is hereby affirmed.

No costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Bengzon J.P., Zaldivar and Castro, J.J., concur.

Separate Opinions

DIZON, J., concurring:

I concur (in the result) with the majority opinion penned by Mr. Justice Conrado Sanchez, for the reason
that, as stated therein, — "In the additional stipulation of facts of July 3, 1963, petitioners admit that
Chan Sau Wah is not possessed of all the qualifications required by the Naturalization Law."
G.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 alreadyfait 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.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.
SECOND DIVISION

[G.R. No. 50720. March 26, 1984.]

SORIANO MATA, Petitioner, v. HON. JOSEPHINE K. BAYONA, in her capacity as Presiding Judge of the
City Court of Ormoc, BERNARDO GOLES and REYNALDO MAYOTE, Respondents.

Valeriano R. Ocubillo for Petitioner.

The Solicitor General for Respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNLAWFUL SEARCH AND SEIZURE;
REQUISITES FOR ISSUANCE OF SEARCH WARRANT. — Under the Constitution "no search warrant shall
issue but upon probable cause to be determined by the Judge or such other responsible officer as may
be authorized by law after examination under oath or affirmation of the complainant and the witnesses
he may produce." More emphatic and detailed is the implementing rule of the constitutional injunction,
Section 4 of Rule 126 which provides that the judge must before issuing the warrant personally examine
on oath or affirmation the complainant and any witnesses he may produce and take their depositions in
writing, and attach them to the record, in addition to any affidavits presented to him.

2. ID.; ID.; ID.; ID.; INSUFFICIENCY OF AFFIDAVITS OF COMPLAINANT AND HIS WITNESSES IN THE CASE
AT BAR. — Before issuing a search warrant, the examining Judge has to take depositions in writing of the
complainant and the witnesses he may produce and to attach them to the record. Such written
deposition is necessary in order that the Judge may be able to properly determine the existence or non-
existence of the probable cause, and to hold liable for perjury the person giving it if it will be found later
that his declarations are false. Mere affidavits of the complainant and his witnesses are thus not
sufficient.

3. ID.; ID.; ID.; ID.; NO "DEPOSITION IN WRITING" ATTACHED TO RECORDS OF CASE IN CASE AT BAR. —
The judge’s insistence that she examined the complainants under oath has become dubious by
petitioner’s claim that at the particular time when he examined all the relevant papers connected with
the issuance of the questioned search warrant, after he demanded the same from the lower court since
they were not attached to the records, he did not find any certification at the back of the joint affidavit
of the complainants. Before he filed his motion to quash the search warrant and for the return of the
articles seized, he was furnished, upon his request, certified true copies of the said affidavits by the
Clerk of Court but which certified true copies do not bear any certification at the back. Petitioner
likewise claims that his xerox copy of the said joint affidavit obtained at the outset of this case does not
show also the certification of respondent judge. This doubt becomes more confirmed by respondent
Judge’s own admission, while insisting that she did examine thoroughly the applicants, that "she did not
take the deposition of Mayote and Goles because to have done so would be to hold a judicial
proceeding which will be open and public", such that, according to her, the persons subject of the
intended raid will just disappear and move his illegal operations somewhere else. Could it be that the
certification was made belatedly to cure the defect of the warrant? Be that as it may, there was no
"deposition in writing" attached to the records of the case in palpable disregard of the statutory
prohibition heretofore quoted.

4. ID.; ID.; ID.; ID.; DEPOSITIONS, HOW TAKEN. — The searching questions propounded to the applicants
of the search warrant and his witnesses must depend to a large extent upon the discretion of the Judge
just as long as the answers establish a reasonable ground to believe the commission of a specific offense
and that the applicant is one authorized by law, and said answers particularly describe with certainty the
place to be searched and the persons or things to be seized. The examination or investigation which
must be under oath may not be in public. It may even be held in the secrecy of his chambers. Far more
important is that the examination or investigation is not merely routinary but one that is thorough and
elicit the required information. To repeat, it must be under oath and must be in writing.

5. ID.; ID.; ID.; ID.; MUST BE STRICTLY COMPLIED WITH; CASE AT BAR. — Nothing can justify the issuance
of the search warrant but the fulfillment of the legal requisites. Thus, in issuing a search warrant the
Judge must strictly comply with the requirements of the Constitution and the statutory provisions. In the
case at bar, the search warrant is tainted with illegality by the failure of the Judge to conform with
essential requisites of taking the depositions in writing and attaching them to record, rendering the
search warrant invalid.

6. ID.; ID.; ID.; ALTHOUGH ILLEGAL, THINGS SEIZED CANNOT BE RETURNED; CASE AT BAR. — While the
search warrant is illegal, the return of the things seized cannot be ordered. In Castro v. Pabalan (70 SCRA
478), it was held that the illegality of the search warrant does not call for the return of the things seized,
the possession of which is prohibited.

DECISION

DE CASTRO, J.:

The validity of the search warrant issued by respondent Judge (not reappointed) is challenged by
petitioner for its alleged failure to comply with the requisites of the Constitution and the Rules of Court.

Specifically, the contention is that the search warrant issued by respondent Judge was based merely on
the application for search warrant and a joint affidavit of private respondents which were wrongfully it is
alleged subscribed, and sworn to before the Clerk of Court of respondent Judge. Furthermore, there was
allegedly a failure on the part of respondent Judge to attach the necessary papers pertinent to the
issuance of the search warrant to the records of Criminal Case No. 4298-CC wherein petitioner is
accused under PD 810, as amended by PD 1306, the information against him alleging that Soriano Mata
offered, took and arranged bets on the Jai Alai game by "selling illegal tickets known as ‘Masiao tickets’
without any authority from the Philippine Jai Alai & Amusement Corporation or from the government
authorities concerned." 1

Petitioner claims that during the hearing of the case, he discovered that nowhere from the records of
the said case could be found the search warrant and other pertinent papers connected to the issuance
of the same, so that he had to inquire from the City Fiscal its whereabouts, and to which inquiry
respondent Judge replied, "it is with the court." The Judge then handed the records to the Fiscal who
attached them to the records.chanrobles.com : virtual law library

This led petitioner to file a motion to quash and annul the search warrant and for the return of the
articles seized, citing and invoking, among others, Section 4 of Rule 126 of the Revised Rules of Court.
The motion was denied by respondent Judge on March 1, 1979, stating that the court has made a
thorough investigation and examination under oath of Bernardo U. Goles and Reynaldo T. Mayote,
members of the Intelligence Section of 352nd PC Co./Police District II INP; that in fact the court made a
certification to that effect; and that the fact that documents relating to the search warrant were not
attached immediately to the record of the criminal case is of no moment, considering that the rule does
not specify when these documents are to be attached to the records. 2 Petitioner’s motion for
reconsideration of the aforesaid order having been denied, he came to this Court, with the instant
petition, praying, among others, that this Court declare the search warrant to be invalid and all the
articles confiscated under such warrant as inadmissible as evidence in the case, or in any proceedings on
the matter.

We hold that the search warrant is tainted with illegality for being violative of the Constitution and the
Rules of Court.

Under the Constitution "no search warrant shall issue but upon probable cause to be determined by the
Judge or such other responsible officer as may be authorized by law after examination under oath or
affirmation of the complainant and the witnesses he may produce." More emphatic and detailed is the
implementing rule of the constitutional injunction, Section 4 of Rule 126 which provides that the judge
must before issuing the warrant personally examine on oath or affirmation the complainant and any
witnesses he may produce and take their depositions in writing, and attach them to the record, in
addition to any affidavits presented to him.

Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to
take depositions in writing of the complainant and the witnesses he may produce and to attach them to
the record. Such written deposition is necessary in order that the Judge may be able to properly
determine the existence or non-existence of the probable cause, to hold liable for perjury the person
giving it if it will be found later that his declarations are false.
We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to
conform with the essential requisites of taking the depositions in writing and attaching them to the
record, rendering the search warrant invalid.chanroblesvirtualawlibrary

The judge’s insistence that she examined the complainants under oath has become dubious by
petitioner’s claim that at the particular time when he examined all the relevant papers connected with
the issuance of the questioned search warrant, after he demanded the same from the lower court since
they were not attached to the records, he did not find any certification at the back of the joint affidavit
of the complainants. As stated earlier, before he filed his motion to quash the search warrant and for
the return of the articles seized, he was furnished, upon his request, certified true copies of the said
affidavits by the Clerk of Court but which certified true copies do not bear any certification at the back.
Petitioner likewise claims that his xerox copy of the said joint affidavit obtained at the outset of this case
does not show also the certification of respondent judge. This doubt becomes more confirmed by
respondent Judge’s own admission, while insisting that she did examine thoroughly the applicants, that
"she did not take the deposition of Mayote and Goles because to have done so would be to hold a
judicial proceeding which will be open and public", 3 such that, according to her, the persons subject of
the intended raid will just disappear and move his illegal operations somewhere else.

Could it be that the certification was made belatedly to cure the defect of the warrant? Be that as it
may, there was no "deposition in writing" attached to the records of the case in palpable disregard of
the statutory prohibition heretofore quoted.

Respondent Judge impresses this Court that the urgency to stop the illegal gambling that lures every
man, woman and child, and even the lowliest laborer who could hardly make both ends meet justifies
her action. She claims that in order to abate the proliferation of this illegal "masiao" lottery, she thought
it more prudent not to conduct the taking of deposition which is done usually and publicly in the court
room.

Two points must be made clear. The term "depositions" is sometimes used in a broad sense to describe
any written statement verified by oath; but in its more technical and appropriate sense the meaning of
the word is limited to written testimony of a witness given in the course of a judicial proceeding in
advance of the trial or hearing upon oral examination. 4 A deposition is the testimony of a witness, put
or taken in writing, under oath or affirmation before a commissioner, examiner or other judicial officer,
in answer to interlocutory and cross interlocutory, and usually subscribed by the witnesses. 5 The
searching questions propounded to the applicants of the search warrant and his witnesses must depend
to a large extent upon the discretion of the Judge just as long as the answers establish a reasonable
ground to believe the commission of a specific offense and that the applicant is one authorized by law,
and said answers particularly describe with certainty the place to be searched and the persons or things
to be seized. The examination or investigation which must be under oath may not be in public. It may
even be held in the secrecy of his chambers. Far more important is that the examination or investigation
is not merely routinary but one that is thorough and elicit the required information. To repeat, it must
be under oath and must be in writing.cralawnad

The other point is that nothing can justify the issuance of the search warrant but the fulfillment of the
legal requisites. It might be well to point out what has been said in Asian Surety & Insurance Co., Inc. v.
Herrera:jgc:chanrobles.com.ph

"It has been said that 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 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 the citizens, for the enforcement of no statute is of sufficient importance to
justify indifference to the basic principles of government." 6

Thus, in issuing a search warrant the Judge must strictly comply with the requirements of the
Constitution and the statutory provisions. A liberal construction should be given in favor of the
individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the
Constitution. 7 No presumption of regularity are to be invoked in aid of the process when an officer
undertakes to justify it. 8

While We hold that the search warrant is illegal, the return of the things seized cannot be ordered. In
Castro v. Pabalan, 9 it was held that the illegality of the search warrant does not call for the return of the
things seized, the possession of which is prohibited.

WHEREFORE, the writ of certiorari is granted and the order of March 1, 1979 denying the motion to
annul the search warrant as well as the order of March 21, 1979 denying the motion for reconsideration
are hereby reversed, the search warrant, being declared herein as illegal. Notwithstanding such
illegality, the things seized under such warrant, such as stock of "masiao" tickets; "masiao" issue tickets;
bet money; control pad or "masiao" numbers; stamping pad with rubber stamp marked Ormoc City Jai-
Alai," cannot be returned as sought by petitioner. No costs.

SO ORDERED.
G.R. No. L-45358 January 29, 1937

NARCISO ALVAREZ, petitioner,


vs.
THE COURT OF FIRST INSTANCE OF TAYABAS and THE ANTI-USURY BOARD, respondents.

Godofredo Reyes for petitioner.


Adolfo N. Feliciano for respondents Anti-Usury Board.
No appearance for other respondent.

IMPERIAL, J.:

The petitioner asks that the warrant of June 3, 1936, issued by the Court of First Instance of Tayabas,
ordering the search of his house and the seizure, at any time of the day or night, of certain accounting
books, documents and papers belonging to him in his residence situated in Infanta, Province of Tayabas,
as well as the order of a later date, authorizing the agents of the Anti-Usury Board to retain the articles
seized, be declared illegal and set aside, and prays that all the articles in question be returned to him.

On the date above-mentioned, the chief of the secret service of the Anti-Usury Board, of the
Department of Justice, presented to Judge Eduardo Gutierrez David then presiding over the Court of
First Instance of Tayabas, an affidavit alleging that according to reliable information, the petitioner kept
in his house in Infanta, Tayabas, books, documents, receipts, lists, chits and other papers used by him in
connection with his activities as a money-lender charging usurious rates of interest in violation of the
law. In his oath at the and of the affidavit, the chief of the secret service stated that his answers to the
questions were correct to the best of his knowledge and belief. He did not swear to the truth of his
statements upon his own knowledge of the facts but upon the information received by him from a
reliable person. Upon the affidavit in question the Judge, on said date, issued the warrant which is the
subject matter of the petition, ordering the search of the petitioner's house at nay time of the day or
night, the seizure of the books and documents above-mentioned and the immediate delivery thereof to
him to be disposed of in accordance with the law. With said warrant, several agents of the Anti-Usury
Board entered the petitioner's store and residence at seven o'clock on the night of June 4, 1936, and
seized and took possession of the following articles: internal revenue licenses for the years 1933 to
1936, one ledger, two journals, two cashbooks, nine order books, four notebooks, four checks stubs,
two memorandums, three bankbooks, two contracts, four stubs, forty-eight stubs of purchases of copra,
two inventories, two bundles of bills of lading, one bundle of credit receipts, one bundle of stubs of
purchases of copra, two packages of correspondence, one receipt book belonging to Luis Fernandez,
fourteen bundles of invoices and other papers many documents and loan contracts with security and
promissory notes, 504 chits, promissory notes and stubs of used checks of the Hongkong & Shanghai
Banking Corporation. The search for and a seizure of said articles were made with the opposition of the
petitioner who stated his protest below the inventories on the ground that the agents seized even the
originals of the documents. As the articles had not been brought immediately to the judge who issued
the search warrant, the petitioner, through his attorney, filed a motion on June 8, 1936, praying that the
agent Emilio L. Siongco, or any other agent, be ordered immediately to deposit all the seized articles in
the office of the clerk of court and that said agent be declared guilty of contempt for having disobeyed
the order of the court. On said date the court issued an order directing Emilio L. Siongco to deposit all
the articles seized within twenty-four hours from the receipt of notice thereof and giving him a period of
five (5) days within which to show cause why he should not be punished for contempt of court. On June
10th, Attorney Arsenio Rodriguez, representing the Anti-Usury Board, filed a motion praying that the
order of the 8th of said month be set aside and that the Anti-Usury Board be authorized to retain the
articles seized for a period of thirty (30) days for the necessary investigation. The attorney for the
petitioner, on June 20th, filed another motion alleging that, notwithstanding the order of the 8th of said
month, the officials of the Anti-Usury Board had failed to deposit the articles seized by them and praying
that a search warrant be issued, that the sheriff be ordered to take all the articles into his custody and
deposit of the Anti-Usury Board be punished for contempt of court. Said attorney, on June 24th, filed an
ex parte petition alleging that while agent Emilio L. Siongco had deposited some documents and papers
in the office of the clerk of court, he had so far failed to file an inventory duly verified by oath of all the
documents seized by him, to return the search warrant together with the affidavit it presented in
support thereof, or to present the report of the proceedings taken by him; and prayed that said agent
be directed to filed the documents in question immediately. On the 25th of said month the court issued
an order requiring agent Emilio L. Siongco forthwith to file the search warrant and the affidavit in the
court, together with the proceedings taken by him, and to present an inventory duly verified by oath of
all the articles seized. On July 2d of said year, the attorney for the petitioner filed another petition
alleging that the search warrant issue was illegal and that it had nit yet been returned to date together
with the proceedings taken in connection therewith, and praying that said warrant be cancelled, that an
order be issued directing the return of all the articles seized to the petitioner, that the agent who seized
them be declared guilty of contempt of court, and that charges be filed against him for abuse of
authority. On September 10, 1936, the court issued an order holding: that the search warrant was
obtained and issued in accordance with the law, that it had been duly complied with and, consequently,
should not be cancelled, and that agent Emilio L. Siongco did not commit any contempt of court and
must, therefore, be exonerated, and ordering the chief of the Anti-Usury Board in Manila to show case,
if any, within the unextendible period of two (2) days from the date of notice of said order, why all the
articles seized appearing in the inventory, Exhibit 1, should not be returned to the petitioner. The
assistant chief of the Anti-Usury Board of the Department of Justice filed a motion praying, for the
reasons stated therein, that the articles seized be ordered retained for the purpose of conducting an
investigation of the violation of the Anti-Usury Law committed by the petitioner. In view of the
opposition of the attorney for the petitioner, the court, on September 25th, issued an order requiring
the Anti-Usury Board to specify the time needed by it to examine the documents and papers seized and
which of them should be retained, granting it a period of five (5) days for said purpose. On the 30th of
said month the assistant chief of the Anti-Usury Board filed a motion praying that he be granted ten (10)
days to comply with the order of September 25th and that the clerk of court be ordered to return to him
all the documents and papers together with the inventory thereof. The court, in an order of October 2d
of said year, granted him the additional period of ten(10) days and ordered the clerk of court to send
him a copy of the inventory. On October 10th, said official again filed another motion alleging that he
needed sixty (60) days to examine the documents and papers seized, which are designated on pages 1 to
4 of the inventory by Nos. 5, 1016, 23, 25, 26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, and
praying that he be granted said period of sixty (60) days. In an order of October 16th, the court granted
him the period of sixty (60) days to investigate said nineteen (19) documents. The petitioner alleges, and
it is not denied by the respondents, that these nineteen (19)documents continue in the possession of
the court, the rest having been returned to said petitioner.

I. A search warrant is an order in writing, issued in the name of the People of the Philippine Islands,
signed by a judge or a justice of the peace, and directed to a peace officer, commanding him to search
for personal property and bring it before the court (section 95, General Orders. No. 58, as amended by
section 6 of Act No. 2886). 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 (In re Pacific Railways
Commission, 32 Fed., 241; Interstate Commerce Commission vs Brimson, 38 Law. ed., 1047; Broyd vs. U.
S., 29 Law. ed., 746; Caroll vs. U. S., 69 Law. ed., 543, 549). 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 or citizen, for the enforcement of no statue is of sufficient importance to justify
indifference to the basis principles of government (People vs.Elias, 147 N. E., 472).

II. As the protection of the citizen and the maintenance of his constitutional right is one of the highest
duties and privileges of the court, these constitutional guaranties should be given a liberal construction
or a strict construction in favor of the individual, to prevent stealthy encroachment upon, or gradual
depreciation on, the rights secured by them(State vs. Custer County, 198 Pac., 362; State vs. McDaniel,
231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule that statutes
authorizing searches and seizure or search warrants must be strictly construed (Rose vs. St. Clair, 28
Fed., [2d], 189; Leonard vs. U. S., 6 Fed. [2d], 353; Perry vs. U. S. 14 Fed. [2d],88; Cofer vs. State, 118 So.,
613).

III. The petitioner claims that the search warrant issued by the court is illegal because it has been based
upon the affidavit of agent Mariano G. Almeda in whose oath he declared that he had no personal
knowledge of the facts which were to serve as a basis for the issuance of the warrant but that he had
knowledge thereof through mere information secured from a person whom he considered reliable. To
the question "What are your reason for applying for this search warrant", appearing in the affidavit, the
agent answered: "It has been reported to me by a person whom I consider to be reliable that there are
being kept in said premises, books, documents, receipts, lists, chits, and other papers used by him in
connection with his activities as a money-lender, charging a usurious rate of interest, in violation of the
law" and in attesting the truth of his statements contained in the affidavit, the said agent states that he
found them to be correct and true to the best of his knowledge and belief.

Section 1, paragraph 3, of Article III of the Constitution, relative to the bill of rights, provides that "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 top be searched, and the persons or
things to be seized." Section 97 of General Orders, No. 58 provides that "A search warrant shall not issue
except for probable cause and upon application supported by oath particularly describing the place to
be searched and the person or thing to be seized." It will be noted that both provisions require that
there be not only probable cause before the issuance of a search warrant but that the search warrant
must be based upon an application supported by oath of the applicant ands the witnesses he may
produce. In its broadest sense, an oath includes any form of attestation by which a party signifies that
he is bound in conscience to perform an act faithfully and truthfully; and it is sometimes defined asan
outward pledge given by the person taking it that his attestation or promise is made under an
immediate sense of his responsibility to God (Bouvier's Law Dictionary; State vs. Jackson, 137 N. W.,
1034; In re Sage, 24 Oh. Cir. Ct. [N. S.], 7; Pumphery vs. State, 122 N. W., 19; Priest vs. State, 6 N. W.,
468; State vs. Jones, 154 Pac., 378; Atwood vs. State, 111 So., 865). 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 (U. S. vs. Tureaud, 20 Fed., 621; U.
S. vs. Michalski, 265 Fed., 8349; U. S. vs. Pitotto, 267 Fed., 603; U. S. vs. Lai Chew, 298 Fed., 652). The
true test of sufficiency of an affidavit to warrant issuance of a search warrant is whether it has been
drawn in such a manner that perjury could be charged thereon and affiant be held liable for damages
caused (State vs. Roosevelt Country 20th Jud. Dis. Ct., 244 Pac., 280; State vs. Quartier, 236 Pac., 746).

It will likewise be noted that section 1, paragraph 3, of Article III of the Constitution prohibits
unreasonable searches and seizure. Unreasonable searches and seizures are a menace against which the
constitutional guarantee afford full protection. The term "unreasonable search and seizure" is not
defined in the Constitution or in General Orders No. 58, and it is said to have no fixed, absolute or
unchangeable meaning, although the term has been defined in general language. All illegal searches and
seizure are unreasonable while lawful ones are reasonable. What constitutes a reasonable or
unreasonable search or seizure in any particular case is purely a judicial question, determinable from a
consideration of the circumstances involved, including the purpose of the search, the presence or
absence or probable cause, the manner in which the search and seizure was made, the place or thing
searched, and the character of the articles procured (Go-Bart Importing Co. vs. U. S. 75 Law. ed., 374;
Peru vs. U. S., 4 Fed., [2d], 881;U. S. vs. Vatune, 292 Fed., 497; Angelo vs. U. S. 70 Law, ed., 145;
Lambert vs. U. S. 282 Fed., 413; U. S. vs. Bateman, 278 Fed., 231; Mason vs. Rollins, 16 Fed. Cas. [No.
9252], 2 Biss., 99).

In view of the foregoing and under the above-cited authorities, it appears that the affidavit, which
served as the exclusive basis of the search warrant, is insufficient and fatally defective by reason of the
manner in which the oath was made, and therefore, it is hereby held that the search warrant in question
and the subsequent seizure of the books, documents and other papers are illegal and do not in any way
warrant the deprivation to which the petitioner was subjected.

IV. Another ground alleged by the petitioner in asking that the search warrant be declared illegal and
cancelled is that it was not supported by other affidavits aside from that made by the applicant. In other
words, it is contended that the search warrant cannot be issued unless it be supported by affidavits
made by the applicant and the witnesses to be presented necessity by him. Section 1, paragraph 3, of
Article III of the Constitution provides that 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. Section 98 of General Orders, No. 58 provides that the judge or justice must,
before issuing the warrant, examine under oath the complainant and any witnesses he may produce and
take their depositions in writing. It is the practice in this jurisdiction to attach the affidavit of at least the
applicant or complainant to the application. It is admitted that the judge who issued the search warrant
in this case, relied exclusively upon the affidavit made by agent Mariano G. Almeda and that he did not
require nor take the deposition of any other witness. Neither the Constitution nor General Orders. No.
58 provides that it is of imperative necessity to take the deposition of the witnesses to be presented by
the applicant or complainant in addition to the affidavit of the latter. The purpose of both in requiring
the presentation of depositions is nothing more than to satisfy the committing magistrate of the
existence of probable cause. Therefore, if the affidavit of the applicant or complainant is sufficient, the
judge may dispense with that of other witnesses. Inasmuch as the affidavit of the agent in this case was
insufficient because his knowledge of the facts was not personal but merely hearsay, it is the duty of the
judge to require the affidavit of one or more witnesses for the purpose of determining the existence of
probable cause to warrant the issuance of the search warrant. When the affidavit of the applicant of the
complaint contains sufficient facts within his personal and direct knowledge, it is sufficient if the judge is
satisfied that there exist probable cause; when the applicant's knowledge of the facts is mere hearsay,
the affidavit of one or more witnesses having a personal knowledge of the fact is necessary. We
conclude, therefore, that the warrant issued is likewise illegal because it was based only on the affidavit
of the agent who had no personal knowledge of the facts.

V. The petitioner alleged as another ground for the declaration of the illegality of the search warrant and
the cancellation thereof, the fact that it authorized its execution at night. Section 101 of General Orders,
No. 58 authorizes that the search be made at night when it is positively asserted in the affidavits that
the property is on the person or in the place ordered to be searched. As we have declared the affidavits
insufficient and the warrant issued exclusively upon it illegal, our conclusion is that the contention is
equally well founded and that the search could not legally be made at night.

VI. One of the grounds alleged by the petitioner in support of his contention that the warrant was issued
illegally is the lack of an adequate description of the books and documents to be seized. Section 1,
paragraphs 3, of Article III of the Constitution, and section 97 of General Orders, No. 58 provide that the
affidavit to be presented, which shall serve as the basis for determining whether probable cause exist
and whether the warrant should be issued, must contain a particular description of the place to be
searched and the person or thing to be seized. These provisions are mandatory and must be strictly
complied with (Munch vs. U. S., 24 Fed. [2d], 518; U. S. vs. Boyd, 1 Fed. [2d], 1019; U. S. vs. Carlson, 292
Fed., 463; U. S. vs.Borkowski, 268 Fed., 408; In re Tri-State Coal & Coke Co., 253 Fed., 605;
People vs. Mayen, 188 Cal., 237; People vs. Kahn, 256 Ill. App., 4125); but where, by the nature of the
goods to be seized, their description must be rather generally, it is not required that a technical
description be given, as this would mean that no warrant could issue (People vs. Rubio, 57 Phil., 284;
People vs. Kahn, supra). The only description of the articles given in the affidavit presented to the judge
was as follows: "that there are being kept in said premises books, documents, receipts, lists, chits and
other papers used by him in connection with his activities as money-lender, charging a usurious rate of
interest, in violation of the law." Taking into consideration the nature of the article so described, it is
clear that no other more adequate and detailed description could have been given, particularly because
it is difficult to give a particular description of the contents thereof. The description so made
substantially complies with the legal provisions because the officer of the law who executed the warrant
was thereby placed in a position enabling him to identify the articles, which he did.

VII. The last ground alleged by the petitioner, in support of his claim that the search warrant was
obtained illegally, is that the articles were seized in order that the Anti-Usury Board might provide itself
with evidence to be used by it in the criminal case or cases which might be filed against him for violation
of the Anti-usury Law. At the hearing of the incidents of the case raised before the court it clearly
appeared that the books and documents had really been seized to enable the Anti-Usury Board to
conduct an investigation and later use all or some of the articles in question as evidence against the
petitioner in the criminal cases that may be filed against him. The seizure of books and documents by
means of a search warrant, for the purpose of using them as evidence in a criminal case against the
person in whose possession they were found, is unconstitutional because it makes the warrant
unreasonable, and it is equivalent to a violation of the constitutional provision prohibiting the
compulsion of an accused to testify against himself (Uy Kheytin vs.Villareal, 42 Phil,, 886; Brady vs. U. S.,
266 U. S., 620; Temperani vs. U. S., 299 Fed., 365; U. S. vs. Madden, 297 Fed., 679; Boyd vs. U. S.,116 U.
S., 116; Caroll vs. U. S., 267 U. S., 132). Therefore, it appearing that at least nineteen of the documents in
question were seized for the purpose of using them as evidence against the petitioner in the criminal
proceeding or proceedings for violation against him, we hold that the search warrant issued is illegal and
that the documents should be returned to him.

The Anti-Usury Board insinuates in its answer that the petitioner cannot now question the validity of the
search warrant or the proceedings had subsequent to the issuance thereof, because he has waived his
constitutional rights in proposing a compromise whereby he agreed to pay a fine of P200 for the
purpose of evading the criminal proceeding or proceedings. We are of the opinion that there was no
such waiver, first, because the petitioner has emphatically denied the offer of compromise and, second,
because if there was a compromise it reffered but to the institution of criminal proceedings fro violation
of the Anti-Usury Law. The waiver would have been a good defense for the respondents had the
petitioner voluntarily consented to the search and seizure of the articles in question, but such was not
the case because the petitioner protested from the beginning and stated his protest in writing in the
insufficient inventory furnished him by the agents.

Said board alleges as another defense that the remedy sought by the petitioner does not lie because he
can appeal from the orders which prejudiced him and are the subject matter of his petition. Section 222
of the Code of Civil Procedure in fact provides that mandamus will not issue when there is another plain,
speedy and adequate remedy in the ordinary course of law. We are of the opinion, however, that an
appeal from said orders would have to lapse before he recovers possession of the documents and
before the rights, of which he has been unlawfully deprived, are restored to him (Fajardo vs. Llorente, 6
Phil., 426; Manotoc vs. McMicking and Trinidad, 10 Phil., 119; Cruz Herrera de Lukban vs. McMicking, 14
Phil., 641; Lamb vs. Phipps, 22 Phil., 456).

Summarizing the foregoing conclusions, we hold:

1. That the provisions of the Constitution and General Orders, No. 58, relative to search and seizure,
should be given a liberal construction in favor of the individual in order to maintain the constitutional
guaranties whole and in their full force;

2. That since the provisions in question are drastic in their form and fundamentally restrict the
enjoyment of the ownership, possession and use of the personal property of the individual, they should
be strictly construed;

3. That the search and seizure made are illegal for the following reasons: (a) Because the warrant was
based solely upon the affidavit of the petitioner who had no personal knowledge of the facts of
probable cause, and (b) because the warrant was issued for the sole purpose of seizing evidence which
would later be used in the criminal proceedings that might be instituted against the petitioner, for
violation of the Anti-Usury Law;

4. That as the warrant had been issued unreasonably, and as it does not appear positively in the affidavit
that the articles were in the possession of the petitioner and in the place indicated, neither could the
search and seizure be made at night;

5. That although it is not mandatory to present affidavits of witnesses to corroborate the applicant or a
complainant in cases where the latter has personal knowledge of the facts, when the applicant's or
complainant's knowledge of the facts is merely hearsay, it is the duty of the judge to require affidavits of
other witnesses so that he may determine whether probable cause exists;

6. That a detailed description of the person and place to be searched and the articles to be seized is
necessary, but whereby, by the nature of the articles to be seized, their description must be rather
general, but is not required that a technical description be given, as this would mean that no warrant
could issue;

7. That the petitioner did not waive his constitutional rights because the offer of compromise or
settlement attributed to him, does not mean, if so made, that he voluntarily tolerated the search and
seizure; and

8. That an appeal from the orders questioned by the petitioner, if taken by him, would not be an
effective, speedy or adequate remedy in the ordinary course of law, and, consequently, the petition
for mandamus filed by him, lies.

For the foregoing considerations, the search warrant and the seizure of June 3, 1936, and the orders of
the respondent court authorizing the relation of the books and documents, are declared illegal and are
set aside, and it is ordered that the judge presiding over the Court of First Instance of Tayabas direct the
immediate return to the petitioner of the nineteen (19) documents designated on pages 1 to 4 of the
inventory by Nos. 5, 10, 16, 23, 25,26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, without
special pronouncement as to costs. So ordered.

Avanceña, C.J., Villa-Real, Diaz and Concepcion, JJ., concur.


PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MODESTO TEE a.k.a. ESTOY TEE, accused-appellant.

DECISION

QUISUMBING, J.:

For automatic review is the consolidated judgment[1] 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 ITBEING 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 2[29] 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
Procedure[46] 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 intended[59] 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 constitutional[72] 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 so-called 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
possidendi[98] 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.

3. 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. 71782 April 14, 1988

HADJI IBRAHIM SOLAY PANGANDAMAN, MAGAMBAAN PANGANDAMAN, MACARIAN


PANGANDAMAN, MAMINTAL PANGANDAMAN, PACALUNDO PANGANDAMAN, MANGORAMAS
PANGANDAMAN, MACADAOB P. PANGORANGAN KILATUN PANGANDAMAN, MARIO
PANGANDAMAN, MACABIDAR PANGANDAMAN, PUYAT P. ROMAMPAT, SANTORANI P.
DIMAPENGEN, NASSER P. DIMAPENGEN and DIAMA OPAO petitioners,
vs.
DIMAPORO T. CASAR, AS MUNICIPAL CIRCUIT TRIAL JUDGE OF POONABAYABAO, TAMPARAN AND
MASIU, LANAO DEL SUR and THE PEOPLE OF THE PHILIPPINES, respondents.

NARVASA, J.:

The petitioners ask this Court:

1) to annul the warrant for their arrest issued by respondent Judge Dimaporo T. Casar of the Municipal
Circuit Court of Masiu, Lanao del Sur, in Criminal Case No. 1748 entitled People vs. Hadji Ibrahim Solay
Pangandaman et al.;

2) to prohibit the Judge from taking further cognizance of said Criminal Case No. 1748; and

3) to compel the Judge to forward the entire record of Criminal Case No. 1748 to the Provincial Fiscal of
Lanao del Sur for proper disposition. 1

Their plea is essentially grounded on the claim that the warrant for their arrest was issued by the
respondent Judge without a proper preliminary investigation. 2 The Solicitor General agrees and
recommends that their petition be granted and the warrant of arrest voided. 3

On July 27, 1985, a shooting incident occurred in Pantao, Masiu, Lanao del Sur, which left at least five
persons dead and two others wounded. What in fact transpired is still unclear. According to one version,
armed men had attacked a residence in Pantao, Masiu, with both attackers and defenders suffering
casualties. 4 Another version has it that a group that was on its way to another place, Lalabuan, also in
Masiu, had been ambushed.5

On the following day, Atty. Mangurun Batuampar, claiming to represent the widow of one of the
victims, filed a letter-complaint with the Provincial Fiscal at Marawi City, asking for a "full blast
preliminary investigation" of the incident. 6The letter adverted to the possibility of innocent persons
being implicated by the parties involved on both sides — none of whom was, however, identified — and
promised that supporting affidavits would shortly be filed. Immediately the Provincial Fiscal addressed a
"1st indorsement" to the respondent Judge, transmitting Atty. Batuampar's letter and requesting that
"all cases that may be filed relative .. (to the incident) that happened in the afternoon of July 27, 1985,"
be forwarded to his office, which "has first taken cognizance of said cases." 7

No case relative to the incident was, however, presented to the respondent Judge until Saturday, August
10, 1985, when a criminal complaint for multiple murder was filed before him by P.C. Sgt. Jose L. Laruan,
which was docketed as Case No. 1748. 8 On that same day, the respondent Judge "examined personally
all (three) witnesses (brought by the sergeant) under oath thru .. (his) closed and direct supervision,"
reducing to writing the questions to the witnesses and the latter's answers. 9 Thereafter the Judge
"approved the complaint and issued the corresponding warrant of arrest" against the fourteen (14)
petitioners (who were named by the witnesses) and fifty (50) "John Does." 10

An "ex-parte" motion for reconsideration was filed on August 14, 1985 by Atty. Batuampar (joined by
Atty. Pama L. Muti), seeking recall of the warrant of arrest and subsequent holding of a "thorough
investigation" on the ground that the Judge's initial investigation had been "hasty and manifestly
haphazard" with "no searching questions" having been propounded. 11 The respondent Judge denied the
motion for "lack of basis;" 12 hence the present petition.

While they concede the authority of the respondent Judge to conduct a preliminary investigation of the
offenses involved, which are cognizable by Regional Trial Courts, the petitioners and the Solicitor
General argue that the Judge in the case at bar failed to conduct the investigation in accordance with
the procedure prescribed in Section 3, Rule 112 of the Rules of Court ; 13 and that that failure constituted
a denial to petitioners of due process which nullified the proceedings leading to the issuance of the
warrant for the petitioners' arrest. 14 It is further contended that August 10, 1985 was a Saturday during
which "Municipal Trial Courts are open from 8:00 a.m. to 1:00 p.m. only, ..." and "... it would hardly have
been possible for respondent Judge to determine the existence of probable cause against sixty- four (64)
persons whose participations were of varying nature and degree in a matter of hours and issue the
warrant of arrest in the same day;" 15 and that there was undue haste and an omission to ask searching
questions by the Judge who relied "mainly on the supporting affidavits which were obviously prepared
already when presented to him by an enlisted PC personnel as investigator." 16

The petitioners further assert that the respondent Judge conducted the preliminary investigation of the
charges "... in total disregard of the Provincial Fiscal ..." who, as said respondent well knew, had already
taken cognizance of the matter twelve (12) days earlier and was poised to conduct his own investigation
of the same; 17 and that issuance of a warrant of arrest against fifty (50) "John Does" transgressed the
Constitutional provision requiring that such warrants should particularly describe the persons or things
to be seized.18

There can be no debate about the proposition that in conducting a pre investigation of any crime
cognizable by the Regional Trial Courts, a judge of an inferior court (other than in Metro-Manila or the
chartered cities, where no authority to conduct preliminary investigation is vested in such officials) must
observe the procedure prescribed in Section 3 of Rule 112, 1985 Rules on Criminal Procedure. And
although not specifically so declared, the procedure mandated by the Rule actually consists of two
phases or stages.

The first phase consists of an ex-parte inquiry into the sufficiency of the complaint and the affidavits and
other documents offered in support thereof. And it ends with the determination by the Judge either: (1)
that there is no ground to continue with the inquiry, in which case he dismisses the complaint and
transmits the order of dismissal, together with the records of the case, to the provincial fiscal; or (2) that
the complaint and the supporting documents show sufficient cause to continue with the inquiry and this
ushers in the second phase.

This second phase is designed to give the respondent notice of the complaint, access to the
complainant's evidence and an opportunity to submit counter-affidavits and supporting documents. At
this stage also, the Judge may conduct a hearing and propound to the parties and their witnesses
questions on matters that, in his view, need to be clarified. The second phase concludes with the Judge
rendering his resolution, either for dismissal of the complaint or holding the respondent for trial, which
shall be transmitted, together with the record, to the provincial fiscal for appropriate action.

The procedure above described must be followed before the complaint or information is filed in the
Regional Trial Court. Failure to do so will result in a denial of due process. 19

Here, no information has as yet been filed with the Regional Trial Court. There is no pretense that the
preliminary investigation has been completed, insofar as the respondent Judge is concerned, and that
he does not intend to undertake the second phase. In this situation, it cannot be said that he has failed
to observe the prescribed procedure. What has happened is simply that after receiving the complaint
and examining the complainant's witnesses, and having come to believe, on the basis thereof, that the
offenses charged had been committed, the respondent Judge issued the warrant now complained of
against the fourteen (14) respondents (now petitioners) named and Identified by the witnesses as the
perpetrators of the killings and injuries, as well as against 50 "John Does."

The real question, therefore, is whether or not the respondent Judge had the power to issue the
warrant of arrest without completing the entire prescribed procedure for preliminary investigation.
Stated otherwise, is completion of the procedure laid down in Section 3 of Rule 112 a condition sine qua
non for the issuance of a warrant of arrest?

There is no requirement that the entire procedure for preliminary investigation must be completed
before a warrant of arrest may be issued. What the Rule 20 provides is that no complaint or information
for an offense cognizable by the Regional Trial Court may be filed without completing that procedure.
But nowhere is it provided that the procedure must be completed before a warrant of arrest may issue.
Indeed, it is the contrary that is true. The present Section 6 of the same Rule 112 clearly authorizes the
municipal trial court to order the respondent's arrest even before opening the second phase of the
investigation if said court is satisfied that a probable cause exists and there is a necessity to place the
respondent under immediate custody in order not to frustrate the ends of justice.

Sec. 6. When warrant of arrest may issue.-

xxx xxx xxx

(b) By the Municipal Trial Court. If the municipal trial judge conducting the preliminary investigation is
satisfied after an examination in writing and under oath of the complainant and his witnesses in the
form of searching question and answers, that a probable cause exists and that there is a necessity of
placing the respondent under immediate custody in order not to frustrate the ends of justice, he shag
issue a warrant of arrest. 21

This was equally true under the former rules, where the first phase of the investigation was expressly
denominated "preliminary examination" to distinguish it from the second phase, or preliminary
investigation proper. Thus, the former Section 6 of Rule 112 provided:

SEC. 6. Warrant of arrest, when issued. — If the judge be satisfied from the preliminary e petition
conducted by him or by the investigating officer that the offense complained of has been committed
and that there is reasonable ground to believe that the accused has committed it, he must issue a
warrant or order for his arrest.
In Mayuga vs. Maravilla, 22 this Court found occasion to dwell in some detail on the process of
preliminary investigation and, incidentally, to affirm the power of a justice of the peace or municipal
judge conducting a preliminary investigation to order the arrest of the accused after the first stage
(preliminary examination), saying:

Appellant should bear in mind that a preliminary investigation such as was conducted by the Justice of
the Peace has for its purpose only the determination of whether a crime has been committed and
whether there is probable cause to believe the accused guilty thereof, and if so, the issuance of a
warrant of arrest. And it should not be forgotten that a preliminary investigation has two stages: First, a
preliminary examination of the complainant and his witnesses prior to the arrest of the accused; and,
second, the reading to the accused after his arrest of the complaint or information filed against him, and
his being informed of the substance of the evidence against him, after which he is allowed to present
evidence in his favor, if he so desires. Probable cause, in regard to the first stage of preliminary
investigation, depends on the discretion of the judge or magistrate empowered to issue the warrant of
arrest. It suffices that facts are presented to him to convince him, not that a person has committed the
crime, but that there is probable cause to believe that such person committed the crime charged. The
proceeding is generally ex parte unless the defendant desires to be present and while under the old
Rules the Justice of the Peace or investigating officer must take the testimony of the complainant and
the latter's witnesses under oath, only the testimony of the complainant shall be in writing and only an
abstract of the testimony of the other is required. Regarding preliminary investigation, it has thus been
ruled that 'the occasion is not for the full and exhaustive display of the parties' evidence; it is for the
presentation of such evidence only as may engender well-grounded belief that an offense has been
committed and that the accused is probably guilty thereof. ... 23

The rule on arrest after preliminary examination has, of course, been modified somewhat since the
occurrence of the facts upon which Mayuga was decided, but not to abrogate the authority of the
investigating judge to order such arrest, and only to prescribe the requirement that before he may do
so, he must examine the witnesses to the complaint, the examination to be under oath and reduced to
writing in the form of searching questions and answers. This modification was introduced by Republic
Act 3838, approved June 22, 1963, amending Section 87 of the Judiciary Act of 1948, and the "searching
questions and answers" requirement is incorporated in the present Section 6 of Rule 112 already
quoted.

The argument, therefore, must be rejected that the respondent Judge acted with grave abuse of
discretion in issuing the warrant of arrest against petitioners without first completing the preliminary
investigation in accordance with the prescribed procedure. The rule is and has always been that such
issuance need only await a finding of probable cause, not the completion of the entire procedure of
preliminary investigation .

Also without appreciable merit is petitioners' other argument that there was scarcely time to determine
probable cause against sixty-four persons (the fourteen petitioners and fifty "Does") within a matter of
hours on a Saturday when municipal trial courts are open only from 8:00 a.m. to 1:00 p.m. That
argument founders upon the respondent Judge's positive affirmations that he had personally and closely
examined under oath the three witnesses to the complaint 24 and that he had issued the warrant of
arrest "believing that the offense thus filed had been committed." 25 Nothing in the record before this
Court belies or discredits those affirmations which have, besides, the benefit of the legal presumption
that official duty has been regularly performed. 26 The contention that the witnesses to the complaint
had merely sworn before the respondent Judge to statements prepared beforehand and submitted by a
military investigator 27 must, in view of the foregoing considerations and for lack of any support in the
record, be dismissed as mere speculation.

The same argument also unwarrantedly assumes that the respondent Judge limited the proceedings on
preliminary examination to the usual Saturday office hours of 8:00 a.m. to 1:00 p.m., in addition to not
making any persuasive showing that such proceedings could not have been completed within that time-
frame. For all that appears, said respondent could have put off the 1:00 p.m. adjournment until he had
finished interrogating the witnesses to his satisfaction. And there is really nothing unusual in completing
within a three-hour period the questioning of three witnesses in a preliminary examination to determine
the existence of probable cause.

The record which, lacking proof to the contrary, must be accepted as an accurate chronicle of the
questioned proceedings, shows prima facie that the respondent Judge had personally examined the
witnesses to the complaint, and a consideration of the latter's sworn answers to his questions satisfies
this Court that the finding of probable cause against the petitioners was neither arbitrary nor
unfounded.

The three witnesses to the complaint, Misandoning Monasprang, a student, Lawandato Ripors, an
engineering graduate, and Sanny Monib a farmer gave mutually corroborative accounts of the incident.
Under separate questioning, they declared that they were members of a party that was passing by
Pantao on its way to Lalabuan from Talaguian, all in Masiu, Lanao del Sur, at about 10:00 a.m. on July 27,
1985, when they were ambushed and fired upon by an armed group which included the petitioners and
about fifty other unidentified persons; that five of the party had been killed and two (the witnesses
Lawandato Ripors and Sanny Monib) wounded; that even after they had killed their victims, the
ambushers had continued to fire at the dead bodies; that the witnesses managed to escape their
attackers and return to Talaguian, where they informed their relatives about what had happened, and
thence went to the municipal hall in Masiu to report to the authorities; that the dead victims were
recovered only late in the afternoon of that day because the authorities could not "penetrate" the area
and the ambushers refused to release the bodies; and that the ambush was an offshoot of a grudge
between the families of the ambushers and those of the victims. 28

The witnesses named and Identified the dead victims as Cadar Monasprang, Macacrao Guiling Macrang
Hadji Alawi, Alicman Ripors and Malabato Diator. All of them also Identified by name each of the
fourteen petitioners as members of the ambush group. The respondent Judge can hardly be faulted for
finding enough cause to hold the petitioners named in the statements of three eyewitnesses to killings
perpetrated in broad daylight.

In Luna vs. Plaza, 29 this Court ruled that the term "searching questions and answers" means —

...only, taking into consideration the purpose of the preliminary examination which is to determine
"whether there is a reasonable ground to believe that an offense has been committed and the accused
is probably guilty thereof so that a warrant of arrest may be issued and the accused held for trial," such
questions as have tendency to show the commission of a crime and the perpetuator thereof. What
would be searching questions would depend on what is sought to be inquired into, such as: the nature
of the offense, the date, time, and place of its commission, the possible motives for its commission; the
subject, his age, education, status, financial and social circumstances, his attitude toward the
investigation, social attitudes, opportunities to commit the offense; the victim, his age, status, family
responsibilities, financial and social circumstances, characteristics, etc. The points that are the subject of
inquiry may differ from case to case. The questions, therefore must to a great degree depend upon the
Judge making the investigation. ...

Upon this authority, and considering what has already been stated above, this Court is not prepared to
question the propriety of the respondent Judge's finding of probable cause or substitute its judgment
for his in the matter of what questions to put to the witnesses during the preliminary examination.

Upon the facts and the law, therefore, the warrant of arrest in question validly issued against the
petitioners, such issuance having been ordered after proceedings, to which no irregularity has been
shown to attach, in which the respondent Judge found sufficient cause to commit the petitioners to
answer for the crime complained of.

Insofar, however, as said warrant is issued against fifty (50) "John Does" not one of whom the witnesses
to the complaint could or would Identify, it is of the nature of a general warrant, one of a class of writs
long proscribed as unconstitutional and once anathematized as "totally subversive of the liberty of the
subject." 30 Clearly violative of the constitutional injunction that warrants of arrest should particularly
describe the person or persons to be seized, 31the warrant must, as regards its unidentified subjects, be
voided.

The fact that the Provincial Fiscal may have announced his intention of investigating the incident himself
did not, in the view of the Court, legally inhibit the respondent Judge from conducting his own inquiry
into the matter if, as is made to appear here, it was regularly brought before him and no formal
complaint was filed before the Fiscal. Courtesy may have dictated that in those circumstances he leave
the investigation to the Fiscal and simply endorse to the latter the complaint filed with him; duty did
not, and if he nonetheless chose to conduct his own investigation, nothing in the rules states or implies
that he could not do so.

Be that as it may, since the action and final resolution of the respondent Judge after completing the
second stage of the preliminary investigation are subject to review by the Provincial Fiscal, practical
considerations of expediency and the avoidance of duplication of work dictate that the latter official be
permitted to take over the investigation even in its present stage.

WHEREFORE, the warrant complained of is upheld and declared valid insofar as it orders the arrest of
the petitioners. Said warrant is voided to the extent that it is issued against fifty (50) "John Does." The
respondent Judge is directed to forward to the Provincial Fiscal of Lanao del Sur the record of the
preliminary investigation of the complaint in Criminal Case No. 1728 of his court for further appropriate
action. Without pronouncement as to costs.

SO ORDERED.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO SALANGUIT y KO, accused-appellant.

DECISION

MENDOZA, J.:

This is an appeal from the decision,[1] dated January 27, 1998, of the Regional Trial Court, Branch 96,
Quezon City, finding accused-appellant Roberto Salanguit y Ko guilty of violation of 16 of Republic Act
No. 6425, as amended, and sentencing him accordingly to suffer imprisonment ranging from six (6)
months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as
maximum, and of 8 of the same law and sentencing him for such violation to suffer the penalty
of reclusion perpetua and to pay a fine of P700,000.00.

Charges against accused-appellant for violations of R.A. No. 6425 were filed on December 28, 1995. In
Criminal Case No. Q-95-64357, the information alleged:

That on or about the 26th day of December 1995, in Quezon City, Philippines, the said accused, did then
and there willfully, unlawfully and knowingly possess and/or use 11.14 grams of Methamphetamine
Hydrochloride (Shabu) a regulated drug, without the necessary license and/or prescription therefor, in
violation of said law.

CONTRARY TO LAW.[2]

In Criminal Case No. Q-95-64358, the information charged:

That on or about the 26th day of December 1995, in Quezon City, Philippines, the said accused not being
authorized by law to possess or use any prohibited drug, did, then and there willfully, unlawfully and
knowingly have in his possession and under his custody and control 1,254 grams of Marijuana, a
prohibited drug.

CONTRARY TO LAW.[3]

When arraigned on May 21, 1996, accused-appellant pleaded not guilty,[4] whereupon he was tried.

Three witnesses were presented by the prosecution: P/Insp. Sonia S. Ludovico, forensic chemist and
chief of the Physical Science Branch of the Philippine National Police Crime Laboratory, Senior Inspector
Rodolfo Aguilar of the Narcotics Command, Camp Crame, Quezon City, and PO3 Rolando Duazo of
Station 10, Kamuning, Quezon City, a field operative. The prosecution evidence established the
following:

On December 26, 1995, Sr. Insp. Aguilar applied for a warrant[5] in the Regional Trial Court, Branch 90,
Dasmarias, Cavite, to search the residence of accused-appellant Robert Salanguit y Ko on Binhagan St.,
Novaliches, Quezon City. He presented as his witness SPO1 Edmund Badua, who testified that as a
poseur-buyer, he was able to purchase 2.12 grams of shabu from accused-appellant. The sale took place
in accused-appellants room, and Badua saw that the shabu was taken by accused-appellant from a
cabinet inside his room. The application was granted, and a search warrant was later issued by Presiding
Judge Dolores L. Espaol.

At about 10:30 p.m. of December 26, 1995, a group of about 10 policemen, along with one civilian
informer, went to the residence of accused-appellant to serve the warrant.[6]
The police operatives knocked on accused-appellants door, but nobody opened it. They heard people
inside the house, apparently panicking. The police operatives then forced the door open and entered
the house.[7]

After showing the search warrant to the occupants of the house, Lt. Cortes and his group started
searching the house.[8] They found 12 small heat-sealed transparent plastic bags containing a white
crystalline substance, a paper clip box also containing a white crystalline substance, and two bricks of
dried leaves which appeared to be marijuana wrapped in newsprint[9] having a total weight of
approximately 1,255 grams.[10] A receipt of the items seized was prepared, but the accused-appellant
refused to sign it.[11]

After the search, the police operatives took accused-appellant with them to Station 10, EDSA, Kamuning,
Quezon City, along with the items they had seized.[12]

PO3 Duazo requested a laboratory examination of the confiscated evidence.[13] The white crystalline
substance with a total weight of 2.77 grams and those contained in a small box with a total weight of
8.37 grams were found to be positive for methamphetamine hydrochloride. On the other hand, the two
bricks of dried leaves, one weighing 425 grams and the other 850 grams, were found to be marijuana.[14]

For the defense, accused-appellant testified in his own behalf. His testimony was corroborated by his
mother-in-law, Soledad Arcano.

Accused-appellant testified that on the night of December 26, 1995, as they were about to leave their
house, they heard a commotion at the gate and on the roof of their house. Suddenly, about 20 men in
civilian attire, brandishing long firearms, climbed over the gate and descended through an opening in
the roof.[15]

When accused-appellant demanded to be shown a search warrant, a piece of paper inside a folder was
waved in front of him. As accused-appellant fumbled for his glasses, however, the paper was withdrawn
and he had no chance to read it.[16]

Accused-appellant claimed that he was ordered to stay in one place of the house while the policemen
conducted a search, forcibly opening cabinets and taking his bag containing money, a licensed .45
caliber firearm, jewelry, and canned goods.[17]

The policemen left at around 12:30 a.m. of December 27, 1995, and, after putting handcuffs on accused-
appellant, took him with them to the NARCOM on EDSA, Quezon City, where accused-appellant was
detained.[18]

Accused-appellants mother-in law, Soledad Arcano, corroborated his testimony. Arcano testified that
the policemen ransacked their house, ate their food, and took away canned goods and other
valuables.[19]

After hearing, the trial court rendered its decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered:

1. In Criminal Case No. Q-95-64357, for violation of Sec. 16, Republic Act No. 6425, as amended, finding
the accused ROBERTO SALANGUIT y KO guilty beyond reasonable doubt of the crime charged and he is
hereby accordingly sentenced to suffer an indeterminate sentence with a minimum of six (6) months
of arresto mayor and a maximum of four (4) years and two (2) months of prision correccional; and,

2. In Criminal Case No. Q-95-64358, for violation of Sec. 8, Republic Act No. 6425, as amended, finding
the accused ROBERTO SALANGUIT y KO guilty beyond reasonable doubt of the crime charged and he is
hereby accordingly sentenced to suffer reclusion perpetua and to pay a fine of P700,000.00.

The accused shall further pay the costs of suit.

The 11.14 grams of methamphetamine hydrochloride and the 1,254 grams of marijuana bricks are
hereby confiscated and condemned for disposition according to law. The evidence custodian of this
Court is hereby directed to turn such substances over to the National Bureau of Investigation pursuant
to law.

SO ORDERED.[20]

Hence this appeal. Accused-appellant contends that -

THE COURT A QUO GRAVELY ERRED IN DECLARING THE SEARCH WARRANT VALID

THE COURT A QUO ERRED IN CONVICTING ACCUSED-APPELLANT FOR ILLEGAL POSSESSION OF


METHAMPHETAMINE HYDRO-CHLORIDE (SHABU)

THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT FOR VIOLATION 8, R.A. NO.
6425

THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE TWO (2) BRICKS OF MARIJUANA

THE COURT A QUO ERRED IN NOT FINDING THAT THE POLICEMEN USED EXCESSIVE FORCE IN
ENFORCING THE SEARCH WARRANT.

Accused-appellant is contesting his conviction on three grounds. First, the admissibility of


the shabu allegedly recovered from his residence as evidence against him on the ground that the
warrant used in obtaining it was invalid. Second, the admissibility in evidence of the marijuana allegedly
seized from accused-appellant pursuant to the plain view doctrine. Third, the employment of
unnecessary force by the police in the execution of the warrant.

First. Rule 126, 4 of the Revised Rules on Criminal Procedure[21] provides that 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 witnesses he may
produce, and particularly describing the place to be searched and the things to be seized which may be
anywhere in the Philippines.

In issuing a search warrant, judges must comply strictly with the requirements of the Constitution and
the Rules of Criminal Procedure. No presumption of regularity can be invoked in aid of the process when
an officer undertakes to justify its issuance.[22] Nothing can justify the issuance of the search warrant
unless all the legal requisites are fulfilled.

In this case, the search warrant issued against accused-appellant reads:

SEARCH WARRANT NO. 160


For: Violation of RA 6425

SEARCH WARRANT

TO ANY PEACE OFFICER:

GREETINGS:

It appearing to the satisfaction of the undersigned after examining under oath SR. INSP. RODOLFO V.
AGUILAR, PNP and his witness SPO1 EDMUND M. BADUA, PNP that there is probable cause to believe
that ROBERT SALANGUIT has in his possession and control in his premises Binhagan St., San Jose,
Quezon City as shown in Annex A, the properties to wit:

UNDETERMINED QUANTITY OF SHABU AND DRUG PARAPHERNALIA

which should be seized and brought to the undersigned.

You are hereby commanded to make an immediate search anytime of the day/night of the premises
above-described and forthwith seize and take possession of the above-stated properties and bring said
properties to the undersigned to be dealt with as the law directs.

GIVEN UNDER MY HAND this 26th day of December 1995 at Imus, Cavite, Philippines.

(SGD.) DOLORES L. ESPAOL

Judge

Accused-appellant assails the validity of the warrant on three grounds: (1) that there was no probable
cause to search for drug paraphernalia; (2) that the search warrant was issued for more than one
specific offense; and (3) that the place to be searched was not described with sufficient particularity.
Existence of Probable Cause

The warrant authorized the seizure of undetermined quantity of shabu and drug
paraphernalia. Evidence was presented showing probable cause of the existence of methamphetamine
hydrochloride or shabu. Accused-appellant contends, however, that the search warrant issued is void
because no evidence was presented showing the existence of drug paraphernalia and the same should
not have been ordered to be seized by the trial court.[23]

The contention has no merit. To be sure, SPO1 Edmund Badua, the intelligence officer who acted as a
poseur-buyer, did not testify in the proceedings for the issuance of a search warrant on anything about
drug paraphernalia. He stated:

Q - Being a member of the Intelligence and Operation Section, NMDU, NARCOM, do you remember if
you were assigned into a monitoring or surveillance work?

A - Yes, sir.

Q - Of what particular assignment or area were you assigned for monitoring or surveillance?

A - Its within the Quezon City area particularly a house without a number located at Binhagan St., San
Jose, Quezon City, sir.
Q - Do you know the person who occupies the specific place?

A - Yes, sir, he is ROBERT SALANGUIT @ Robert.

Q - Are you familiar with that place?

A - Yes, sir, as part of my surveillance, I was able to penetrate inside the area and established contract
with ROBERT SALANGUIT alias Robert through my friend who introduced me to the former.

Q - In what particular occasion did you meet ROBERT SALANGUIT alias Robert?

A - When I was introduced by my friend as a good buyer and drug pusher of shabu, sir.

Q - Were you able to buy at that time?

A - Yes, sir.

Q - How much if you can still remember the amount involved?

A - I was able to buy two point twelve (2.12) grams of shabu in the amount of Two Thousand Seven
Hundred Fifty (P2,750.00) pesos, sir.

Q - Having established contact with ROBERT SALANGUIT @ Robert, do you know where the stuff (shabu)
were being kept?

A - Yes, sir, inside a cabinet inside his room.

Q - How were you able to know the place where he kept the stuff?

A - When I first bought the 2.12 grams of shabu from him, it was done inside his room and I saw that the
shabu was taken by him inside his cabinet.

Q - Do you know who is in control of the premises?

A - Yes, sir, it was ROBERT SALANGUIT @ Robert.

Q - How sure are you, that the shabu that you bought from ROBERT SALANGUIT @ Robert is genuine
shabu?

A - After I left the house of ROBERT SALANGUIT @ Robert, I proceeded back to our office and reported
the progress of my mission to our Chief and presented to him the 2.12 grams of shabu I bought from the
subject.Then afterwards, our Chief formally requested the Chief PNP Central Crime Laboratory Services,
NPDC, for Technical Analysis which yielded positive result for shabu, a regulated drug as shown in the
attached certification of PNP CLS result No. D-414-95 dated 19 Dec. 95.

Q - Do you have anything more to add or retract from your statement?

A - Yes, sir, I was offered by him (ROBERT SALANGUIT @ Robert) that anything I wish to buy bigger
quantity of shabu, he is willing to transact to me on cash basis at his price of One Thousand Seven
Hundred Fifty (P1,750.00) pesos per gram.

Q - Are you willing to sign your statement freely and voluntarily?

A - Yes, sir.[24]
However, the fact that there was no probable cause to support the application for the seizure of drug
paraphernalia does not warrant the conclusion that the search warrant is void. This fact would be
material only if drug paraphernalia was in fact seized by the police. The fact is that none was taken by
virtue of the search warrant issued. If at all, therefore, the search warrant is void only insofar as it
authorized the seizure of drug paraphernalia, but it is valid as to the seizure of methamphetamine
hydrochloride as to which evidence was presented showing probable cause as to its existence. Thus,
in Aday v. Superior Court,[25] the warrant properly described two obscene books but improperly
described other articles. It was held:

Although the warrant was defective in the respects noted, it does not follow that it was invalid as a
whole. Such a conclusion would mean that the seizure of certain articles, even though proper if viewed
separately, must be condemned merely because the warrant was defective with respect to other
articles. The invalid portions of the warrant are severable from the authorization relating to the named
books, which formed the principal basis of the charge of obscenity. The search for and seizure of these
books, if otherwise valid, were not rendered illegal by the defects concerning other articles. . . . In so
holding we do not mean to suggest that invalid portions of a warrant will be treated as severable under
all circumstances. We recognize the danger that warrants might be obtained which are essentially
general in character but as to minor items meet the requirement of particularity, and that wholesale
seizures might be made under them, in the expectation that the seizure would in any event be upheld as
to the property specified. Such an abuse of the warrant procedure, of course, could not be tolerated.

It would be a drastic remedy indeed if a warrant, which was issued on probable cause and particularly
describing the items to be seized on the basis thereof, is to be invalidated in toto because the judge
erred in authorizing a search for other items not supported by the evidence.[26] Accordingly, we hold that
the first part of the search warrant, authorizing the search of accused-appellants house for an
undetermined quantity of shabu, is valid, even though the second part, with respect to the search for
drug paraphernalia, is not.
Specificity of the Offense Charged

Accused-appellant contends that the warrant was issued for more than one specific offense because
possession or use of methamphetamine hydrochloride and possession of drug paraphernalia are
punished under two different provisions of R.A. No. 6425.[27] It will suffice to quote what this Court said
in a similar case to dispose of this contention:

While it is true that the caption of the search warrant states that it is in connection with Violation of R.A.
6425, otherwise known as the Dangerous Drugs Act of 1972, it is clearly recited in the text thereof that
There is probable cause to believe that Adolfo Olaes alias Debie and alias Baby of No. 628 Comia St.,
Filtration, Sta. Rita, Olongapo City, has in their session and control and custody of marijuana dried
stalks/leaves/seeds/cigarettes and other regulated/prohibited and exempt narcotics preparations which
is the subject of the offense stated above. Although the specific section of the Dangerous Drugs Act 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. The search warrant also satisfies the requirement in the Bill of
Rights of the particularity of the description to be made of the place to be searched and the persons or
things to be seized. [28]
Indeed, in People v. Dichoso[29] the search warrant was also for Violation of R.A. 6425, without specifying
what provisions of the law were violated, and it authorized the search and seizure of dried marijuana
leaves and methamphetamine hydrochloride (shabu) and sets of paraphernalias (sic). This Court,
however, upheld the validity of the warrant:

Appellants contention that the search warrant in question was issued for more than (1) offense, hence,
in violation of Section 3, Rule 126 of the Rules of Court, is unpersuasive. He engages in semantic juggling
by suggesting that since illegal possession of shabu, illegal possession of marijuana and illegal possession
of paraphernalia are covered by different articles and sections of the Dangerous Drugs Act of 1972, the
search warrant is clearly for more than one (1) specific offense. In short, following this theory, there
should have been three (3) separate search warrants, one for illegal possession of shabu, the second for
illegal possession of marijuana and the third for illegal possession of paraphernalia. This argument is
pedantic. The Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs
which are subsumed into prohibited and regulated drugs and defines and penalizes categories of
offenses which are closely related or which belong to the same class or species. Accordingly, one (1)
search warrant may thus be validly issued for the said violations of the Dangerous Drugs Act.[30]

Similarly, in another case,[31] the search warrant was captioned: For Violation of P.D. No. 1866 (Illegal
Possession of Firearms, etc.). The validity of the warrant was questioned on the ground that it was
issued without reference to any particular provision in P.D. No. 1866, which punished several
offenses. We held, however, that while illegal possession of firearms is penalized under 1 of P.D. No.
1866 and illegal possession of explosives is penalized under 3 thereof, the decree is a codification of the
various laws on illegal possession of firearms, ammunitions, and explosives which offenses are so
related as to be subsumed within the category of illegal possession of firearms, etc. under P.D. No.
1866. Thus, only one warrant was necessary to cover the violations under the various provisions of the
said law.
Particularity of the Place

Accused-appellant contends that the search warrant failed to indicate the place to be searched with
sufficient particularity.

This contention is without merit. As the Solicitor General states:

. . . While the address stated in the warrant is merely Binhagan St., San Jose, Quezon City, the trial court
took note of the fact that the records of Search Warrant Case No. 160 contained several documents
which identified the premises to be searched, to wit: 1) the application for search warrant which stated
that the premises to be searched was located in between No. 7 and 11 at Binhagan Street, San Jose,
Quezon City; 2) the deposition of witness which described the premises as a house without a number
located at Binhagan St., San Jose, Quezon City; and 3) the pencil sketch of the location of the premises
to be searched. In fact, the police officers who raided appellants house under the leadership of Police
Senior Inspector Rodolfo Aguilar could not have been mistaken as Inspector Aguilar resides in the same
neighborhood in Binhagan where appellant lives and in fact Aguilars place is at the end of appellants
place in Binhagan. Moreover, the house raided by Aguilars team is undeniably appellants house and it
was really appellant who was the target. The raiding team even first ascertained through their informant
that appellant was inside his residence before they actually started their operation.[32]
The rule is that a description of the place to be searched is sufficient if the officer with the warrant can,
with reasonable effort, ascertain and identify the place intended to be searched.[33] For example, a
search warrant authorized a search of Apartment Number 3 of a building at 83 Pleasant Street,
Malborough, Massachusetts. As it turned out, there were five apartments in the basement and six
apartments on both the ground and top floors and that there was an Apartment Number 3 on each
floor. However, the description was made determinate by a reference to the affidavit supporting the
warrant that the apartment was occupied by the accused Morris Ferrante of 83 Pleasant Street, Malboro
Mass.[34] In this case, the location of accused-appellants house being indicated by the evidence on
record, there can be no doubt that the warrant described the place to be searched with sufficient
particularity.

In sum, we hold that with respect to the seizure of shabu from accused-appellants residence, Search
Warrant No. 160 was properly issued, such warrant being founded on probable cause personally
determined by the judge under oath or affirmation of the deposing witness and particularly describing
the place to be searched and the things to be seized.

Second. The search warrant authorized the seizure of methamphetamine hydrochloride or shabu but
not marijuana. However, seizure of the latter drug is being justified on the ground that the drug was
seized within the plain view of the searching party. This is contested by accused-appellant.

Under the plain view doctrine, unlawful objects within 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 in evidence.[35] For this
doctrine to apply, there must be: (a) prior justification; (b) inadvertent discovery of the evidence; and (c)
immediate apparent illegality of the evidence before the police.[36] The question is whether these
requisites were complied with by the authorities in seizing the marijuana in this case.
Prior Justification and Discovery by Inadvertence

Because the location of the shabu was indicated in the warrant and thus known to the police operatives,
it is reasonable to assume that the police found the packets of the shabu first. Once the valid portion of
the search warrant has been executed, the plain view doctrine can no longer provide any basis for
admitting the other items subsequently found. As has been explained:

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.[37]

The only other possible justification for an intrusion by the police is the conduct of a search pursuant to
accused-appellants lawful arrest for possession of shabu. However, a search incident to a lawful arrest is
limited to the person of the one arrested and the premises within his immediate control.[38] The
rationale for permitting such a search is to prevent the person arrested from obtaining a weapon to
commit violence, or to reach for incriminatory evidence and destroy it.

The police failed to allege in this case the time when the marijuana was found, i.e., whether prior to, or
contemporaneous with, the shabu subject of the warrant, or whether it was recovered on accused-
appellants person or in an area within his immediate control. Its recovery, therefore, presumably during
the search conducted after the shabu had been recovered from the cabinet, as attested to by SPO1
Badua in his depostion, was invalid.
Apparent Illegality of the Evidence

The marijuana bricks were wrapped in newsprint. There was no apparent illegality to justify their
seizure. This case is similar to People. v. Musa[39] in which we declared inadmissible the marijuana
recovered by NARCOM agents because the said drugs were contained in a plastic bag which gave no
indication of its contents. We explained:

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 officers 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, is transparency, or otherwise, that its contents are
obvious to an observer.[40]

No presumption of regularity may be invoked by an officer in aid of the process when he undertakes to
justify an encroachment of rights secured by the Constitution.[41] In this case, the marijuana allegedly
found in the possession of accused-appellant was in the form of two bricks wrapped in newsprint. Not
being in a transparent container, the contents wrapped in newsprint could not have been readily
discernible as marijuana. Nor was there mention of the time or manner these items were discovered.
Accordingly, for failure of the prosecution to prove that the seizure of the marijuana without a warrant
was conducted in accordance with the plain view doctrine, we hold that the marijuana is inadmissible in
evidence against accused-appellant. However, the confiscation of the drug must be upheld.

Third. Accused-appellant claims that undue and unnecessary force was employed by the searching party
in effecting the raid.

Rule 126, 7 of the Revised Rules on Criminal Procedure[42] provides:

Right to break door or window to effect search. The officer, if refused admittance to the place of
directed search after giving notice of his purpose and authority, may break open any outer or inner door
or window of a house or any part of a house or anything therein to execute the warrant or liberate
himself or any person lawfully aiding him when unlawfully detained therein.
Accused-appellants claim that the policemen had clambered up the roof of his house to gain entry and
had broken doors and windows in the process is unsupported by reliable and competent proof. No
affidavit or sworn statement of disinterested persons, like the barangay officials or neighbors, has been
presented by accused-appellant to attest to the truth of his claim.

In contrast, Aguilar and Duanos claim that they had to use some force in order to gain entry cannot be
doubted. The occupants of the house, especially accused-appellant, refused to open the door despite
the fact that the searching party knocked on the door several times. Furthermore, the agents saw the
suspicious movements of the people inside the house. These circumstances justified the searching
partys forcible entry into the house, founded as it is on the apprehension that the execution of their
mission would be frustrated unless they do so.

WHEREFORE, in Criminal Case No. Q-95-64357, the decision of the Regional Trial Court, Branch 96,
Quezon City, finding accused-appellant Roberto Salanguit y Ko guilty of possession of illegal drugs under
16 of R.A. No. 6425, otherwise known as the Dangerous Drugs Act, as amended, and sentencing him to
suffer a prison term ranging from six (6) months of arresto mayor, as minimum, and four (4) years and
two (2) months of prision correccional, as maximum, and ordering the confiscation of 11.14 grams of
methamphetamine hydrochloride is AFFIRMED.

In Criminal Case No. Q-95-64358, the decision of the same court finding accused-appellant Roberto
Salanguit y Ko guilty of possession of prohibited drugs under 8 of R.A. No. 6425, as amended, and
sentencing him to suffer the penalty of reclusion perpetua and to pay a fine of P700,000.00 is hereby
REVERSED and SET ASIDE and accused-appellant is ACQUITTED of the crime charged. However, the
confiscation of the 1,254 grams of marijuana, as well as the 11.14 grams of methamphetamine
hydrochloride, and its disposition as ordered by the trial court is AFFIRMED.

SO ORDERED.
G.R. No. 93239 March 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
EDISON SUCRO, accused-appellant.

The Solicitor General for plaintiff-appellee.


Fidencio S. Raz for accused-appellant.

GUTIERREZ, JR., J.:

Edison Sucro was charged with and convicted of violation of Section 4, Article II of the Dangerous Drugs
Act, under an Information which reads:

That on or about the 21st day of March, 1989, in the evening, in the Poblacion, Municipality of Kalibo,
Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, acting as a pusher or broker in the business of selling, administering, delivery,
giving away to another and/or distributing prohibited drugs, did then and there wilfully, unlawfully and
feloniously and without authority of law have in his possession and control nineteen (19) pieces of
marijuana cigarette sticks and four (4) tea bags of dried marijuana leaves which were confiscated from
him by the police authorities of Kalibo, Aklan, shortly after having sold one tea bag of dried marijuana
leaves to a customer. (Rollo, p. 9)

Upon arraignment, the accused-appellant, assisted by counsel, entered a plea of "not guilty" to the
offense charged. Trial ensued and a judgment of conviction was rendered, the pertinent portion of
which reads:

WHEREFORE, judgment is rendered finding the accused Edison Sucro guilty of the sale of prohibited drug
under Section 4, Article II of the Dangerous Drug Act, as amended, and sentencing him to suffer the
penalty of life imprisonment, and pay a fine of P20,000, and costs. He shall be entitled to full credit in
the service of his sentence with the period for which he has undergone preventive imprisonment to the
date of promulgation of this judgment. All the items of marijuana confiscated in this case are declared
forfeited in favor of the State. (Rollo, p. 41)

From the foregoing judgment of conviction, accused-appellant interposes this appeal, assigning the
following as errors allegedly committed by the court a quo, to wit:

THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE FOR THE PROSECUTION EXHIBITS "E"-"E-4", TEA
BAGS OF ALLEGED MARIJUANA, TO BE THE CORPUS DELICTI; FURTHERMORE, THAT THE SAME WERE
TAKEN WITHOUT THE REQUIRED WARRANT OF SEARCH AND ARREST SINCE THE ACCUSED WAS NOT IN
THE ACT OF COMMITTING ANY OFFENSE AT THE TIME OF HIS ARREST.

II

THE LOWER COURT ERRED IN FINDING THE ACCUSED EDISON SUCRO GUILTY OF THE SALE OF
PROHIBITED DRUGS UNDER SECTION 4, ARTICLE II, OF THE DANGEROUS DRUGS ACT AND SENTENCING
HIM TO SUFFER A PENALTY OF LIFE IMPRISONMENT AND TO PAY A FINE OF P 20,000.00. (Appellant's
Brief, p. 1)
The antecedent facts of the case as summarized by the Solicitor General are as follows:

On March 21, 1989, Pat. Roy Fulgencio, a member of the INP, Kalibo, Aklan, was instructed by P/Lt.
Vicente Seraspi, Jr. (Station Commander of the INP Kalibo, Aklan) to monitor the activities of appellant
Edison Sucro, because of information gathered by Seraspi that Sucro was selling marijuana. (p. 6, TSN,
May 2,1989).

As planned, at about 5:00 P.M. on said date, Pat. Fulgencio Positioned himself under the house of a
certain Arlie Regalado at C. Quimpo Street. Adjacent to the house of Regalado, about 2 meters away,
was a chapel. Thereafter, Pat. Fulgencio saw appellant enter the chapel, taking something which turned
out later to be marijuana from the compartment of a cart found inside the chapel, and then return to
the street where he handed the same to a buyer, Aldie Borromeo. After a while appellant went back to
the chapel and again came out with marijuana which he gave to a group of persons. (pp. 6-8, 15-
18, Ibid). It was at this instance that Pat. Fulgencio radioed P/Lt. Seraspi and reported the activity going
on. P/Lt. Seraspi instructed Pat. Fulgencio to continue monitoring developments. At about 6:30 P.M.,
Pat. Fulgencio again called up Seraspi to report that a third buyer later Identified as Ronnie Macabante,
was transacting with appellant. (pp. 18-19, Ibid)

At that point, the team of P/Lt. Seraspi proceeded to the area and while the police officers were at the
Youth Hostel at Maagma St., Pat. Fulgencio told P/Lt. Seraspi to intercept Macabante and appellant.
P/Lt. Seraspi and his team caught up with Macabante at the crossing of Mabini and Maagma Sts. in front
of the Aklan Medical Center. Upon seeing the police, Macabante threw something to the ground which
turned out to be a tea bag of marijuana. (pp. 6-8, TSN, June 19, 1989) When confronted, Macabante
readily admitted that he bought the same from appellant (Edison Sucro) in front of the chapel. (p. 6,
TSN, May 24, 1989) The police team was able to overtake and arrest appellant at the corner of C.
Quimpo and Veterans Sts. The police recovered 19 sticks and 4 teabags of marijuana from the cart inside
the chapel and another teabag from Macabante, The teabags of marijuana were sent to the PC-INP
Crime Laboratory Service, at Camp Delgado, Iloilo City for analysis. The specimens (Exhibits "G" to "G-
18", Exhibits "E" to "E-4") were all found positive of marijuana. (pp. 47, TSN, Sept. 4, 1989)" (Appellee's
Brief, pp. 3-6)

As can be seen from the facts, the issue hinges mainly on whether or not the arrest without warrant of
the accused is lawful and consequently, whether or not the evidence resulting from such arrest is
admissible.

We rule in the affirmative.

The accused-appellant contends that his arrest was illegal, being a violation of his rights granted under
Section 2, Article III of the 1987 Constitution. He stresses that there was sufficient time for the police
officers to apply for a search and arrest warrants considering that Fulgencio informed his Station
Commander of the activities of the accused two days before March 21, 1989, the date of his arrest.

This contention is without merit.

Section 5, Rule 113 of the Rules on Criminal Procedure provides for the instances where arrest without
warrant is considered lawful. The rule states:
Arrest without warrant, when lawful. — A peace officer or 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 personal knowledge of facts indicating
that the person to be arrested has committed it; (Emphasis supplied)

An offense is committed in the presence or within the view of an officer, within the meaning of the rule
authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or
hears the disturbances created thereby and proceeds at once to the scene thereof. (U.S. v. Fortaleza, 12
Phil. 472 [1909]; and U.S. v. Samonte, 16 Phil. 516 [1910])

The records show that Fulgencio went to Arlie Regalado's house at C. Quimpo Street to monitor the
activities of the accused who was earlier reported to be selling marijuana at a chapel two (2) meters
away from Regalado's house.

Fulgencio, within a distance of two meters saw Sucro conduct his nefarious activity. He saw Sucro talk to
some persons, go inside the chapel, and return to them and exchange some things. These, Sucro did
three times during the time that he was being monitored. Fulgencio would then relay the on-going
transaction to P/Lt. Seraspi.

Anent the second requirement, the fact that Macabante, when intercepted by the police, was caught
throwing the marijuana stick and when confronted, readily admitted that he bought the same from
accused-appellant clearly indicates that Sucro had just sold the marijuana stick to Macabante, and
therefore, had just committed an illegal act of which the police officers had personal knowledge, being
members of the team which monitored Sucro's nefarious activity.

The court earlier indicated in the case of People v. Bati (G.R. No. 87429, August 27, 1990) that police
officers have personal knowledge of the actual commission of the crime when it had earlier conducted
surveillance activities of the accused. Thus, it stated:

When Luciano and Caraan reached the place where the alleged transaction would take place and while
positioned at a street comer, they saw appellant Regalado Bati and Warner Marquez by the side of the
street about forty to fifty meters away from them (the public officers). They saw Marquez giving
something to Bati, who, thereafter handed a wrapped object to Marquez who then inserted the object
inside the front of his pants in front of his abdomen while Bati, on his part, placed the thing given to him
inside his pocket. (p. 2)

xxx xxx xxx

. . . Both Patrolman Luciano and Caraan actually witnessed the same and their testimonies were based
on their actual and personal knowledge of the events that took place leading to appellant's arrest. They
may not have been within hearing distance, specially since conversation would expectedly be carried on
in hushed tones, but they were certainly near enough to observe the movements of the appellant and
the buyer. Moreover, these prosecution witnesses are all law enforcers and are, therefore, presumed to
have regularly performed their duties in the absence of proof to the contrary (People v.
Bati, supra citing People v. Agapito, G.R. No. 73786, October 12, 1987)
The accused questions the failure of the police officers to secure a warrant considering that Fulgencio
himself knew of Sucro's activities even prior to the former's joining the police force. Fulgencio reported
Sucro's activities only three days before the incident.

As the records reveal, Fulgencio and Sucro had known each other since their childhood years and that
after Fulgencio joined the police force, he told the accused-appellant not to sell drugs in their locality.
Hence, it is possible that because of this friendship, Fulgencio hesitated to report his childhood friend
and merely advised him not to engage in such activity. However, because of reliable information given
by some informants that selling was going on everyday, he was constrained to report the matter to the
Station Commander.

On the other hand, the failure of the police officers to secure a warrant stems from the fact that their
knowledge acquired from the surveillance was insufficient to fulfill the requirements for the issuance of
a search warrant. What is paramount is that probable cause existed. Thus, it has been held in the case
of People v. Lo Ho Wing, et al. (G.R. No. 88017, January 21, 1991):

In the instant case, it was firmly established from the factual findings of the trial court that the
authorities had reasonable ground to believe that appellant would attempt to bring in contraband and
transport it within the country. The belief was based on intelligence reports gathered from surveillance
activities on the suspected syndicate, of which appellant was touted to be a member. Aside from this,
they were also certain as to the expected date and time of arrival of the accused from China. But such
knowledge was clearly insufficient to enable them to fulfill the requirements for the issuance of a search
warrant. 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.

As the Solicitor General has pointed out:

There are several instances when a warrantless search and seizure can be effected without necessarily
being preceded by an arrest provided the same is effected on the basis of probable cause (e.g. stop and
search without warrant at checkpoints). Between warrantless searches and seizures at checkpoints and
in the case at bar the latter is more reasonable considering that unlike in the former, it was effected on
the basis of probable cause. Under the circumstances (monitoring of transactions) there existed
probable cause for the arresting officers, to arrest appellant who was in fact selling marijuana and to
seize the contraband.

That searches and seizures must be supported by a valid warrant is not an absolute rule (Manipon, Jr. v.
Sandiganbayan, 143 SCRA 267 [1986]). Among the exceptions granted by law is a search incidental to a
lawful arrest under Sec. 12, Rule 126 of the Rules on Criminal Procedure, which provides that 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. (People v. Castiller, G.R. No. 87783, August 6,
1990)

The accused-appellant claims that the arrest having been done without warrant, it follows that the
evidence obtained therefrom is inadmissible.

As earlier discussed, there is nothing unlawful about the arrest considering its compliance with the
requirements of a warrantless arrest. Ergo, the fruits obtained from such lawful arrest are admissible in
evidence.
Edison Sucro assails the trial court's reliance on the statement of Macabante whose reason for testifying
could be merely to escape prosecution.

We quote the trial court's finding as to the testimony of Macabante:

The non-filing of a complaint against him for possession of marijuana may have been the reason of (sic)
his willingness to testify in court against the accused. But this does not necessarily taint the evidence
that proceeds from his lips. As explained by Lt. Seraspi, the best sources of information against drug
pushers are usually their customers, especially if as in this case, there is no other direct evidence of the
selling except the testimony of the buyer. We accept this observation as a realistic appraisal of a
situation in which drug users are, and should be employed by law enforcement authorities to bolster the
drive against pushers who are the real felons in our society. We have observed the demeanor of the
witness in court, and found him to be straightforward, unhesitating, and spontaneous in his
declarations, so that we are satisfied as to his intention and disposition to tell the truth (Rollo, p. 40)

Time and again it has been held that the findings of the trial court are entitled to great weight and
should not be disturbed on appeal unless it is shown that the trial court had overlooked certain facts of
weight and importance, it being acknowledged. that the court below, having seen and heard the
witnesses during the trial, is in a better position to evaluate their testimonies (People v. Umali, et al.,
G.R. No. 84450, February 4, 1991 citing People v. Alvarez, 163 SCRA 745 [1988]; People v. Dorado, 30
SCRA 53 [1969]; and People v. Espejo, 36 SCRA 400 [1970]).

Furthermore, the testimony of Macabante was corroborated on material points by public officers
Fulgencio and Seraspi.

There is nothing in the record to suggest that the police officers were compelled by any motive than to
accomplish their mission to capture a drug pusher in the execution of the crime, the presumption being
that police officers perform their duties regularly in the absence of any evidence to the contrary (Rule
131, Sec. 3(m), Revised Rules on Evidence; People v. Castiller, supra citing People v. Natipravat, 145
SCRA 483 [1986]).

The prosecution evidence was further bolstered by the findings of the Forensic Chemist that the items
seized were all positive for marijuana.

In contrast to the evidence presented by the prosecution, accused-appellant's defense is alibi which is
unavailing considering that he was positively identified by Macabante to be the person from whom he
bought marijuana.

Sucro alleges that he could not have committed the crime since he was with his uncle and cousin
distributing handbills for his Auntie's candidacy. The fact, however, remains that it does not preclude
the possibility that he was present in the vicinity as established by his admission that he moved a lot and
even had the occasion to meet Macabante on the street.

It is well-settled that mere denials cannot prevail against the positive identification of the appellant as
the seller of the prohibited substances. (People v. Khan, 161 SCRA 406 [1988]; and People v. Paco, 170
SCRA 681 [1989])

Premises considered, this Court is convinced that appellant Edison Sucro had indeed committed the
offense charged. The trial court's decision must be upheld.
WHEREFORE, the decision appealed from is hereby AFFIRMED.

SO ORDERED.

[G.R. No. 141943-45. November 13 ,2002]

THE PEOPLE OF THE PHILIPPINES, appellee, vs. DIOSDADO RECEPCION Y PALASO (deceased), FELIPE
DELA CRUZ Y REYES, AUDIE DONA Y BINAN, ALFREDO BARACAS Y CONCEPCION, EDUARDO PALACPAC
Y ROSALES, BERNARDO RANARA Y MORATALLA (at large), JOEMARI DELOS REYES Y CONCEPCION,
DOMINADOR RECEPCION Y PALASO and ROBERT ALFONSO Y MARTIZANO, appellants.

DECISION

VITUG, J.:

Five innocent men met their sudden death at a not-so-forlorn corner of Caloocan City when a group of
malefactors, without apparent provocation or reason, had cast their terror on the early morning of 28
July 1999.

Eight1 persons were charged with multiple murder, violation of Presidential Decree (P.D.) No. 1866,2 and
robbery in band in three separate accusatory Informations that read:

In Criminal Case No. 57208

That on or about 1:15 oclock a.m. of July 28, 1999 in

Caloocan City, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping each other, did then and there willfully,
unlawfully and feloniously, with intent to kill, evident premeditation and treachery after posing as
customers and armed with unlicensed handguns entered Sabungan Fastfood & Videoke and once inside,
without any provocation from anyone suddenly, unexpectedly and in totally senseless and surprising act
or rampage attacked, assaulted and shot five (5) customers, namely: Benjamin E. Valdez, Rodolfo O.
Ortega, Augusto A. Billodo, Ruperto S. San Juan and Renato T. Cleofas, Sr., thereby hitting and mortally
wounding the said five (5) persons causing their instantaneous death.3

In Criminal Case No. 57209 -That on or about 1:00 to 3:00 A.M. or thereabout, on July 28, 1999 in
Caloocan City, Philippines, and within the jurisdiction of this Honorable court, the above-named accused
had in their possession, custody and control the following firearms/handguns loaded with ammunitions
to wit:

a. One (1) Cal. 38 Armscor SN-760006;

b. One (1) Cal. 38 Armscor SN-51 900;

c. One (1) Cal. 38 Armscor SN-51952;

d. One (1) Cal. 38 Squires Bingham SN-1095906;

e. One (1) Pistol 9mm Noringco SN-861406966;

f. Fifty-two (52) pcs. Cal. 38 live ammunitions;


g. Twenty eight (28) pcs. 9 MM live ammunitions;

h. Eight (8) pcs. Cal. 38 empty shells,

without the necessary license or authority as required by law and which firearms were used in the
commission of multiple murder (killing of five persons, namely: Benjamin E. Valdez, Rodolfo D. Ortega,
Augusto A. Billodo, Ruperto S. San Juan and Renato T. Cleofas, Sr. at Sabungan Fastfood & Videoke,
which is within the jurisdiction of this Honorable Court).4

In Criminal Case No. 57210

That on or about 1:15 A.M. on July 28, 1999 in Caloocan City, Philippines, and within the jurisdiction of
this Honorable court, the above-named accused, acting in concert, conspiring, confederating and
mutually helping one another, with intent of gain, by means of force, threats, violence or intimidation,
and immediately after accused totally unprovoked and unexpected shooting rampage, which resulted in
the death of several customers, did then and there willfully, unlawfully and feloniously, with the use of
their unlicensed firearm, forcibly and violently take, divest, and carry away from LENY GATICA,
FREDEBERT DADON, DENNIS SERRANO and RODEL FESARIT, the following cash and personal belongings,
namely: a lady bracelet worth P3,500.00, three (3) men wristwatches worth P7,500.00 and the
establishment earnings of P5,000.00, to the loss, damage and prejudice of the above-named owner/s.5

The indictees, when arraigned, pled not guilty to all the charges. The cases were tried jointly.

The Version of the Prosecution -

Marie Flamiano was a waitress at Sabungan Fastfood and Videoke Pub, located along Samson Road, in
Caloocan City. At about one-thirty on the morning of 28 July 1999, she was attending to customers when
seven men, she identified to be Diosdado Recepcion, Alfredo Baracas, Joemari delos Reyes, Bernardo
Ranara, Dominador Recepcion, Robert Alfonso and Audie Dona, entered the pub while one was tailing
behind at the entrance. The men occupied table 12 and ordered beer from waitress Eliza Bautista. A few
minutes later, three men from the group transferred to table 10. Just as Marie was approaching table 13
to get the microphone from a customer, one of the men stood up and fired his gun at another customer.
Marie identified this gunman to be Alfredo Baracas.

Eliza Bautista, the waitress who served the group, among them Diosdado Recepcion, Robert Alfonso,
Audie Dona, Alfredo Baracas, Eduardo Palacpac, Joemari delos Reyes and Dominador Recepcion, saw
another man pull out a gun and shot a customer, Rodolfo Ortega, while on his knees. The women later
identified the gunman to be Diosdado Recepcion. Rosalia Juanica, a co-waitress who had meanwhile
dashed out and hid at the nearby St. Joseph Store, saw Rodolfo Ortega, kneeling with both hands raised
in plea, but one of the men, she likewise identified to be Diosdado Recepcion, fired his gun at pointblank
range.

Jojo Paraiso was with his co-security guards having a drinking spree when a group of armed men, started
shooting. Some of the men shouted, dapa, but Jojos companion, Benjamin Valdez, unfortunately took a
bullet shot before he could get the chance to heed the warning. Jojo identified the person who fired at
Valdez to be Robert Alfonso. He hid under the table and could only watch the men gone berserk. The
last of the gunmen who left the pub, still firing his gun, was Joemari delos Reyes.
Jhosa Reyes, a waitress at the A & E Kitchenette just across the Sabungan, saw the gunmen and their
cohorts scamper away after the shooting incident. She recognized three of the gunmen, Robert Alfonso,
Joemari delos Reyes and Eduardo Palacpac, as being regular customers at the A & E Kitchenette. Shortly
before the shooting, Alfonso, delos Reyes, Palacpac and another companion were drinking at the
kitchenette but soon headed towards the alley near the pub.

Found sprawled on the floor, when the shooting finally stopped, were the lifeless bodies of five men -
Benjamin Valdez, Augusto Billodo, Renato Cleofas, Rodolfo Ortega and Ruperto San Juan.

Ruben Labjata, a jeepney driver, was waiting for passengers at Dagohoy Street, Caloocan City, when he
heard gunshots. He was about to leave with only a few passengers when, unexpectedly, three men
arrived and ordered all the passengers to get off the vehicle. The men menacingly pointed their guns at
Labjata and ordered him to drive. Moments later, five more men boarded his jeepney. Three of the men
stayed with the driver at the front seat while the other five sat at the rear. The group directed Labjata to
drive towards Monumento and then to EDSA. After stopping briefly at Petron Station to refuel, the
group proceeded to Quezon City. At a 7-11 convenience store in Tandang Sora, some of the men
alighted from the vehicle. More gunshots were fired. Boarding once again the jeepney, the men told
Labjata to go north until they finally reached, hours later, Paniqui, Tarlac. At Paniqui, the men debated
on the drivers fate. After hearing one suggest that he should be killed (tumba), Labjata panicked and
begged the group to spare him -maawa po kayo, may pamilya po ako. One of the men allowed him to
go home with a warning that he should not report the incident to the police. In open court, he identified
the malefactors to be Audie Dona, Alfredo Baracas, Diosdado Recepcion, Bernardo Ranara, Eduardo
Palacpac, Dominador Recepcion, Joemari delos Reyes and Robert Alfonso.

Conrado Marquez, a tricycle driver, was waiting for passengers along the highway of Paniqui, Tarlac,
when he saw a group of men alight from a dirty jeepney. Four of the men rode in his tricycle, while the
other four took two more tricycles. Marquez brought the group to Brgy. Coral, Ramos, Tarlac.

Around lunchtime on 29 July 1999, the Bulacan Police invited Ruben Labjata for questioning. Taken by
police authorities to Tarlac, he pointed to the exact place where the armed men got off from his vehicle.
Conrado Marquez, likewise invited by the police for interrogation, readily informed the police of the
place where he brought the men who hired his tricycle. The police promptly cordoned the area and the
group, along with FO1 Felipe dela Cruz, surrendered after several calls by the police. Taken into custody
were Felipe dela Cruz, Joemari delos Reyes, Audie Dona, Alfredo Baracas, Eduardo Palacpac, Bernardo
Ranara, Robert Alfonso, and Dominador Recepcion. Diosdado Recepcion, then a special agent of the
Narcotics Command, was intercepted at the national highway of Cuyapo, Nueva Ecija, on board a
tricycle. At the Tarlac Police Station, Labjata identified his passengers, namely, Audie Dona, Alfredo
Baracas, Diosdado Recepcion, Bernardo Ranara, Eduardo Palacpac, Dominador Recepcion, Joemari delos
Reyes and Robert Alfonso.

Diosdado Recepcion, Felipe dela Cruz, Audie Dona, Alfredo Baracas, Eduardo Palacpac, Bernardo Ranara,
Joemari delos Reyes, Dominador Recepcion, and Roberto Alfonso were charged with multiple murder,
violation of P.D. No. 1866, and robbery in band before the Regional Trial Court, National Capital Region,
Branch 129, Caloocan City. The incident that occurred at the 7-11 convenience store also spawned
several separate criminal informations (not involved in the instant cases under review).
During the trial, Diosdado Recepcion died in an escape attempt, while accused Bernardo Ranara escaped
and remained at large.

The Version of the Defense

The defense interposed alibi.

According to Dominador Recepcion, he was, at the time of the reported shooting incident, fast asleep at
Greenwoods Subdivision in Cainta, Rizal, where he was a construction worker. His co-workers were
Eduardo Palacpac and Robert Alfonso. On the evening of 27 July 1999, the trio went to Pansi, Paniqui,
Tarlac, to help Dominador Recepcions nephew, Joemari delos Reyes, find a job. It was after one oclock in
the afternoon when Joemari brought them to the house of his cousin FO1 Felipe dela Cruz.

Joemari delos Reyes testified that, on the afternoon of 28 July 1999, he was at home when his uncle
Dominador Recepcion arrived with Robert Alfonso and Eduardo Palacpac. He brought his guests to the
house of Felipe dela Cruz where they partook of beer.

Felipe dela Cruz stated that on 28 July 1999, about one oclock in the afternoon, his father fetched him
from a cousins house. When he arrived home, he was met by Joemari delos Reyes along with the latters
companions, namely, Eduardo Palacpac, Robert Alfonso, and Dominador Recepcion. In the evening of
the same day, about eight oclock, he invited his visitors to join him in attending a wake just a few meters
away, and they stayed there until dawn. The following morning of 29 July 1999, policemen arrived and
cordoned his house. He was arrested together with Joemari delos Reyes, Audie Dona and Alfredo
Baracas. During a series of questioning at the Caloocan Police Station, dela Cruz insisted that he was
attending a wake at the time the shooting incident occurred in Caloocan City.

Audie Dona said that on 28 July 1999, he and his friend Alfredo Baracas, went to Pansi, Ramos, Tarlac, to
visit his cousin Joemari delos Reyes and to get some fresh fish and vegetables. When he did not find
Joemari at his house, he and Baracas proceeded to the place of dela Cruz where they were invited to
join the group of Felipe dela Cruz, Joemari delos Reyes, Eduardo Palacpac, and Dominador Recepcion in
a drinking spree. Dona and Baracas stayed until nine oclock in the evening when they repaired to the
house of Joemari to spend the night. On 29 July 1999, he and Baracas went back to see dela Cruz but
found Joemari still sleeping. The two dozed off while waiting for Joemari to wake up until they all found
themselves surrounded by the police.

When the trial was over and weighing the evidence before it, the court a quo found the several accused
guilty in Criminal Case No. C-57208 for multiple murder but acquitted them in Criminal Case No. C-57209
for the charge of illegal possession of firearm and Criminal Case No. 57210 for robbery in band because
of insufficiency of evidence. The trial court adjudged thusly:

WHEREFORE, premises considered, this Court finds the following accused GUILTY beyond reasonable
doubt of Multiple Murder in Criminal Case No. C-57208, as defined and penalized under Art. 248 of the
Revised Penal Code, as amended by Section 6 of Rep. Act No. 7659:

1. Audie Dona

2. Alfredo Baracas

3. Bernardo Ranara (escaped)


4. Eduardo Palacpac

5. Dominador Recepcion

6. Joemari delos Reyes

7. Robert Alfonso

Accordingly, the 7 above-named accused shall each serve the penalty of DEATH FIVE (5) TIMES
OVER corresponding to the 5 victims they murdered.

By way of civil liabilities, the 7 above-named accused shall jointly and severally pay the following
amounts of money to the following complaining witnesses, without subsidiary imprisonment in case of
insolvency:

1. Divina Ortega -

a) Death Indemnity - P 50,000.00

b) Moral Damages - 100,000.00

c) Funeral expense - 20,000.00

T O T A L - 170,000.00

2. Virginia Cleofas -

a) Death Indemnity - P 50,000.00

b) Moral Damages - 100,000.00

c) Funeral expense - 20,000.00

TOTAL - 170,000.00

3. Jocelyn Valdez -

a) Death Indemnity - P 50,000.00

b) Moral Damages - 100,000.00

c) Funeral expense - 36,000.00

TOTAL - 186,000.00

4. Estella Ablong San Juan -

a) Death Indemnity - P 50,000.00

b) Moral Damages - 100,000.00

c) Funeral expense - 17,500.00

TOTAL - 167,500.00

5. Heirs of Augusto Billodo -


a) Death Indemnity - P 50,000.00

b) Moral Damages - 100,000.00

TOTAL - 150,000.00

or the aggregate amount of P843,500.00.

Considering that the accused Diosdado Recepcion is now deceased, he is hereby dropped from these
cases, pursuant to Article 89 of the Revised Penal Code.

Considering also that the accused Bernardo Ranara is now at large after having escaped on November
22, 1999, let an Order of Arrest be issued against him for the service of his sentence in Criminal Case No.
C-57208 for Multiple Murder.

As an Accessory to Multiple Murder under Article 19 of the Revised Penal Code, the accused FOl Felipe
dela Cruz shall serve the indeterminate penalty of imprisonment from 10 years and 1 day of Prision
Mayor, as minimum, to 17 years, 4 months and 1 day of Reclusion Temporal, as maximum, with all the
accessory penalties under the law and shall pay the costs.

Criminal Case No. C-57209 for Illegal Possession of Firearms is ordered dismissed, the filing thereof
being unnecessary, pursuant to Section 1 of Rep. Act No. 8294.

Criminal Case No. C-57210 for Robbery in Band is likewise ordered dismissed for insufficiency of
evidence.

The Branch Clerk of this Court shall now issue the corresponding Commitment Order to the Director,
Bureau of Corrections, thru the City Jail Warden of Quezon City.

Pursuant to Section 22 of Rep. Act 7659, the Branch Clerk shall elevate the complete records of this case
to the Honorable Supreme Court within 20 days but not earlier than 15 days after this promulgation, for
automatic review.6

The capital punishment having been imposed on herein appellants for the crime of multiple murder, the
case was elevated to this Court for automatic review. In their brief, appellants ascribed to the trial court
a number of alleged errors but, by and large, they focused on the issue of credibility of the witnesses
and the imposition of the death penalty.

Appellants argue that the witnesses presented by the prosecution have committed several
inconsistencies, mainly on the identities of the gunmen, said to be well enough to discredit their
testimony. The poor lighting condition of the pub, they claim, could have easily blurred the vision of the
witnesses frustrating any clear identification of the assailants. The defense also belabors the finding of
conspiracy and, in general, of their conviction by the trial court.

In criminal cases, particularly where the capital punishment is imposed, this Court takes a most
painstaking effort to ascertain the guilt or innocence of the convicted accused. Nevertheless, it has long
been a standing rule that the findings on the credibility of witnesses by the trial court are hardly
disturbed on appeal. The appellate court adheres to such deference in view of the vantage that a trial
court enjoys in its reception of testimonial evidence, It is only when there evidently are matters of
substance that have been overlooked that an appellate court would feel justified to ignore the
evaluation and assessment made by the trial court on such evidence. Looking closely at the records,
nothing significant is disclosed to warrant a reversal of the rule. Observe thusly -

Testimony of Eliza Bautista

Q Miss Bautista, you said you are a waitress of Sabungan Fastfood and Videoke?

A Yes, sir.

Q And as such, one of your duties is to serve food, drinks or whatever to your customers?

A Yes, sir.

Fiscal Daosos

Q Did you recall if you reported for work sometime at around 12 to 1:00 oclock midnight at Sabungan
Fastfood on July 28, 1999?

A Yes, sir. I was there, sir.

xxx xxx xxx

Fiscal Daosos

Q Alright. You said you have 2 customers in the name of San Juan and Ortega. And then, you said also
you pointed to the group of the accused and you said that they were [y]our last customers. Alright,
more or less, what time did [these] new customers or last customers of yours arrived?

A 1:15 a.m., sir.

xxx xxx xxx

Q Now, when you saw them entering the Sabungan Restaurant, what if any did you do being a waitress?

A After they entered together, they ordered 7 beers. So, I served 7 beers and then occupied a table and
after occupying the table, the 3 transferred to another table, sir.

xxx xxx xxx

Q Lets go back Miss Bautista to your last customers. You said that you served beer to 7 customers and
you said they were your last and in fact, you just pointed them because they are here, is that correct?

A Yes, sir.

Interpreter

Witness pointing to the accused.

Fiscal Daosos

Q Alright. How are you so sure that they were the last customers on that early morning of July 28, 1999
at around 1:20 in the morning?

A Because I was the one serving them and I was able to talk to them, sir.
Q Can you recall who among the 7 whom you talked with first?

A That one, sir.

Interpreter

As witness pointing to the person who identified himself as Robert Alfonso when asked.

Fiscal Daosos

Q Was he also the one who ordered beer from you?

A That one, sir. He was the one who ordered the 7 beers.

Interpreter

As witness pointing to the person who ordered 7 beers and identified himself as Audie Dona.

xxx xxx xxx

Fiscal Daosos

Q Is there anything unusual that happened?

Court

Answer.

A I did not notice anything unusual when I served beer, sir. Because after I gave them a bottle of beer,
after that they have put their beers on a glass, sir.

xxx xxx xxx

Q After pouring beer to their glass, what else happened?

A Nothing happened, sir. They just sat [there].

Q Alright. You said that Ortega and San Juan [were] shot dead. Now, would you know or recall who shot
Ortega and San Juan?

A I know who shot Ortega. But I dont know who shot San Juan, sir.

Q Alright, who shot Ortega?

A That man, sir.

Interpreter

Witness pointing to a person who identified himself as Diosdado Recepcion when asked.

xxx xxx xxx

Fiscal Daosos
Q Alright. We go back Miss Witness to the 7 customers that you served beer. Now, [these] 7 customers
that you [said] became your last customer[s] that evening, would you be able to identify or recognize
their faces if you see them again?

A Yes, sir.

xxx xxx xxx

Court

Teka, isa-isahin mo. Sige.

Interpreter

As witness pointing to Diosdado Recepcion, Alfredo Baracas, Audie Dona, Robert Alfonso, Eduardo
Palacpac, Joemari delos Reyes, Dominador Recepcion.

Fiscal Daosos

Q Thank you Miss Witness. Alright, Miss Bautista, do you recall if all or anyone of these 7 customers that
you have just identified were old or former customers of Sabungan Restaurant?

A Not our former customers, sir.7

Testimony of Marie Flamiano

Asst. Chief Pros. Mariano

Ms. Witness, you said you are a waitress at Sabungan Restaurant, how long have you been a waitress
thereat?

A For 7 months, now, sir.

Q Do you remember having reported for work on the evening of July 27, 1999?

A Yes, sir.

Q And what is your working hours at the Sabungan Restaurant?

A From 6:00 p.m., sir.

Q In the evening of July 27, 1999?

A 6:00 p.m., sir.

Q Up to what time?

A Up to 2:00 a.m., sir.

Q In the early morning of July 28, 1999 at about 1:20, do you recall of any unusual incident that occurred
in Sabungan Restaurant?

A Yes, sir.

Q What was that incident?


A They shot somebody, sir.

Q Who shot somebody?

A They are here in Court, sir.

Q Whom did you see shooting somebody at that time?

A Para silang walang awang namaril..

Atty. Ongteco

Your Honor, the answer is irresponsive.

Court

Let it remain, just answer what is being asked of you.

Asst. Chief Pros. Mariano

You said that there were persons who shot individuals in Sabungan, how many were they?

A Seven (7), sir.

Q Now, if they are here in Court, will you be able to recognize them?

A Yes, sir.

Q Will you point to them if they are here in Court? Interpreter

Witness is pointing to 7 male persons inside this Courtroom, who when asked their names,
answered..Diosdado Recepcion, Alfredo Baracas, Joemari delos Reyes, Bernardo Ranara, Dominador
Recepcion, Robert Alfonso and Audie Dona.

Asst. Chief Pros. Mariano

These 7 persons whom you identified, do you know what particular acts they did at the Sabungan
incident?

A They were shooting.

xxx xxx xxx

Q Aside from the fact that you saw them with guns, what else did you see?

A I saw the dead person outside, that person was already kneeling and begging for life but they still
killed that person.

Q And do you know who shot that person who was already kneeling?

A The first person I pointed out in Court.

Q And you are referring to?

A Diosdado Recepcion, sir.8


On cross-examination, this witness elaborated:

Q And what could be your basis in pointing to Diosdado Recepcion as well as to accused Alfredo Baracas
and the rest, when you did not see who shot whom?

A Because I saw them, sir.

Q How far were you from these two accused that I mentioned during the shooting incident?

A About 7 to 8 meters, sir.

Q At that time the shooting incident occurred, what was your duty, if ever?

A Because it was almost our closing time, I was just sitting, I have nobody to serve.

Q When these 7 persons entered, were there other customers in the establishment?

A Yes, sir.

xxx xxx xxx

Q In other words, when you scampered outside, you did not see with particularity the accused shooting
the victim, is that correct?

A While I was running, I saw them, they were shooting the victims, sir.

Q You mean to tell me that during the time you were running outside, your head was turning back to
where the accused were situated shooting?

A Yes, sir. (Witness is pointing as to the direction of the door of the restaurant)

Q With that distance you are pointing to, to the corner of this room, you could have not ascertain[ed]
Mr. Diosdado Recepcion holding a gun and shooting at somebody, is that correct?

A I saw him, sir.

Q In fact in your testimony, you cannot identify whether it was a short gun or a long gun?

A Yes, sir, I could not identify the kind of guns they were using.

Q Because you became very scared, frightened and nervous that is why you scampered outside?

A Yes, sir.

Q And also because of that nervousness and fright that you experienced, you are in doubt whether it
was really Diosdado Recepcion whom you saw?

A I saw him sir. (Siya po).

Q That incident on July 28, 1999 was the first time that you saw this person whom you pointed as
Diosdado Recepcion, is that right?

A Yes, sir.
Q So, how can you be very sure that it was him who was holding a gun and shooting at somebody when
you said that was the first time that you saw him and your distance was quite far and likewise you
cannot determine or ascertain whether he was holding a long gun or short gun?

A Because I saw them standing, sir.

Q You mean to tell me that aside from Diosdado Recepcion, all the 7 accused were all standing?

A Yes, sir, they were all standing.

Q And you also would like to impress before this Court that all the 7 accused were holding a gun and
were all standing and were all shooting at somebody?

A I am not sure but all of them stood up and shot somebody.9

Testimony of Jojo Paraiso

Q Now, on the said date, July 28, 1999 at around 1:30 in the morning, do you still remember your
whereabouts?

A Yes, sir.

Q Where were you?

A I was at Sabungan Restaurant, sir.

Q Accordingly, you were on duty on said date, July 28, 1999. Why were you at Sabungan Fastfood?

A I was already off-duty at that time, sir.

Q Now, who were with you at Sabungan Restaurant, if any?

A We were 5, sir.

Q Please tell us their names or some of them?

A Our Asst. OIC, Benjamin Valdez, Fisaret, Daniel Aycardo, Jimmy Serrano and myself, sir.

Q Would I get from you that all these companions of yours were also security guards?

A Yes, sir.

Fiscal Bajar

While you and your 4 other companions were inside the Sabungan Restaurant on July 28, 1999 at
around 1:30 in the early morning, do you remember any unusual incident that happened inside or
outside thereat?

A Yes, sir.

Q But before that, what were you and your other 4 companions doing at the Sabungan Restaurant on
the wee-hours of July 28, 1999?

A We were having a drinking spree, sir.


Q What was that unusual incident that happened inside the Sabungan Restaurant?

A A shooting incident suddenly took place and then we dropped ourselves on the ground because of
that shooting incident, sir.

Q But before that shooting incident, do you recall what particular place inside the Sabungan Restaurant
were you seated?

A Yes, sir.

Q Where were you particularly seated?

A Near the side of the Sabungan Fastfood and we were in front of the videoke machine, sir.

Q When you said in front you were just very near?

A Yes, sir.

Q Now, [was] there any other persons inside the Sabungan Fastfood aside from you and your
companions?

A Yes, sir.

Q How many, if you remember?

A We were 9, sir.

Court

And aside from the 5 of them?

A There were 9 customers in all in that restaurant, sir.

Court

Q Including you or excluding you?

A Including me, sir. We were 9 customers.

Fiscal Bajar

Q How about the non-customers?

A 7, sir.

Q And what were [these] non-customers doing inside the Sabungan Restaurant?

A They also ordered beer and they also posed as customers, sir.

But they were not able to drink beer and when they ordered they already fired their guns, sir.

Fiscal Bajar

Q Now, where were [these] other non-customers who were ordering beers situated inside the Sabungan
Restaurant in relation to where you were seated?
A They positioned themselves at the center of the videoke machine but at first they were together and
then they ordered, the 3 separated from the group, sir.

Q And how far was your table from this table of the non-customers?

A About 3 meters away from our table, sir.

xxx xxx xxx

Fiscal Bajar

Q Okay. Now, after the group parted ways and the 3 occupied another table, what happened?

A 3 minutes after, the 3 separated from the group and the shooting started, sir.

Q And where did the shooting come from?

A From the 3 persons who separated from the group, sir.

Q Why did you say that it came from the 3 persons?

A Because after hearing the first shot, I looked at that direction, sir.

Q And were you able to see the firearms used in firing the shots?

A I saw a light or spark that came out from the nozzle of the gun after I heard the shot, sir.

Q And to what direction does the firing directed or pointed to?

A To the persons they shot, sir.

Q Where were [these] persons firing located?

A They were seated because they were also drinking, sir.

Q In relation to where you were seated and drinking, where were these persons located?

A They were at the side of the restaurant and near the table who fired the shots, sir.

Q And how many table[s] were [occupied by these] persons and to where the firing was directed?

A Only one (1), sir.

xxx xxx xxx

Fiscal Bajar

Q Now, how many shots did you hear?

A Many, sir. And I could not count it, sir.

Q And how about you, what did you do when you heard this successive shots from the table of this 3
persons?

A One of them shouted dapa, that is why I hid myself under the table, sir.
Q Now, how about your other 4 companions, what did they do after you dropped yourself [on] the
ground?

A The other one who was shot remained seated in front of his table. But my other 3 companions docked
on the table, sir.

Q And what happened to that person who was shot? That [lone] person that according to you who was
shot?

A He died, sir.

Q And after you have yuko, did you notice what happened next?

A I looked outside, sir. And then I found out that my [companion was] shot and then the one beside him
was shot next, sir.

Q Now, where did this person who shot your companions come from because, according to you, you
were looking outside?

A That person who shot my companion was near the table of my other companion that was shot and the
distance of my companion from the one who shot him was only about a meter away, sir.

Q When you said companion who was shot, you referring to the one who transferred to another table?

A Yes, sir. Our companion, sir.

xxx xxx xxx

Q So, after you saw your companions shot, what did you do, if any?

A I remained there under the table but sometimes I would look and sometimes I would bow my head.

Q And to whom were you looking at?

A To our companions, sir.

Q And do you remember how many times [you performed] that yuko, tingin, yuko, tingin?

A Whenever I noticed that they were looking at me, I [would] look down or bow my head, sir.

Court

What do you mean they?

A The one who [shot] my companions, your Honor.

Fiscal Bajar

Q And how far was this person who [shot] your companions from you who was looking at him and to the
one who looked at you?

A About 4 meters, sir.

Q Now, if that person is in Court, would you be able to identify him?


A Yes, sir.

Q Please point to him if he is around? You [tap] his shoulder, if you want?

A Yes, sir. This one, sir.

Interpreter

Witness tapped the shoulder of Robert Alfonso.

xxx xxx xxx

Q Could you recognize anyone of them?

A The one who shot our companions and he was with the 4 persons in that table, sir.

Q So, the question is if you have recognized anyone of the persons who remained in the table?

A Yes, sir. The one who came out last after the shooting, sir. But when he came out he fired a gun.

Q If that last person you saw was on their way out from the Sabungan Restaurant is in Court, can you
point to him? Please step down and tap the shoulder if he is around?

A Yes, sir. This one, sir.

Interpreter

As witness stepped down from the witness stand and tapped the shoulder of the accused Joemari Delos
Reyes.

xxx xxx xxx

Q Now, please demonstrate to us how your companion was shot by Robert Alfonso?

A Like this, sir. The accused was in the standing position when he fired [at] my companion at a distance
of one (1) meter. And after shooting my companion, that gun man fired again at a man beside my
companion, sir.

Q And what was the position of your companion when he was fired upon?

A He was seated, sir. -

Q And what was then your position when you saw your companion being shot?

A I was under the table but I was looking at their direction, sir.10

On cross-examination, Paraiso continued:

Q Mr. Witness, you said that the shooting incident happened at 1:30 in the early morning of July 28,
1999. What time did you start drinking at the Sabungan Restaurant?

A About 12:45 a.m., sir.

Q How many bottles of what were you drinking?


A Beer, sir.

Q How many bottles of beer have you already consumed?

A During the shooting incident 2 bottles, sir.

Q Now, according also to you it was the 3 men who separated from the larger group [who] transferred
to another table?

A Yes, sir.

Q And it was after about 15 minutes that one of them started shooting?

A Yes, sir.

xxx xxx xxx

Q How did you position yourself when you hid yourself under the table? How did you position yourself?
Did the table completely cover you?

A The table completely covered me, sir.

Q Could you say that you were not shot because you were not seen by the gunman?

A Yes, sir. I know that they did not notice me there under the table, sir. Maybe if they noticed me that I
was there under the table looking at them, maybe they would shoot me, sir.

Q So, we can presume that you were not shot because you were not seen by the gunman?

A Yes, sir.

Q You were not seen because the table was about 3 x 3 ft. Do you mean to tell us Mr. Witness that 3 ft. x
3 ft. table was able to accommodate all 5 of you?

A Yes, sir.

Q Now, you were also not seen by the gunman because the table was covered by the table cloth?

A No cover, sir.

Q You felt that at that time that you present yourself under the table was not detected by the gunman
because none of them noticed you under the table?

A I know that I was [not] noticed by them, sir. Because they have noticed me under the table and they
know that I was looking at them, they will shoot me, sir.11

Testimony of Jhosa Reyes

Q In the early morning of July 28, 1999, do you remember of any unusual incident that happened at your
place of work?

A Yes, sir.

Q What was that incident, if you can still recall?


A There was a shooting incident, sir.

Q Where was that shooting incident?

A In Sabungan, sir, in front of the place where I work.

Q How far is that Sabungan from your place of work?

A Across the highway, sir.

Q Do you know who were the persons who fired their guns at Sabungan?

A Yes, sir.

Q Why do you know these persons?

A Because the persons who fired their guns were our customers first before they transferred to
Sabungan, sir.

Q How often do you see these persons at your dining place?

A Twice, sir.

Q When was the first time that you saw them?

A Every week, sir.

Q What were they doing when they [went] to your place?

A They [drank], sir.

Q How many are these persons, if your can remember?

A Because the 3 persons used to go to our place but recently they were 4 already but the other one was
not drinking, sir, just [went] back and forth.

Q These customers whom you said were the ones who started shooting at Sabungan, who were these
persons, if you know?

A I was able to recognize Ricky, Edwin.

Q Who else? I thought you said there were 4 of them. Court

The question [was], who fired the gun?

FISCAL MARIANO

Q Who were these persons who fired the gun?

Court

Ricky, Edwin, sino pa?

Witness

Those are the only two but almost all of them, Your Honor.
Fiscal Mariano

If they are in Courtroom, will you be able to identify them?

A Yes, sir.

Q Please point them out.

Atty. Ongteco

May we request that the witness tell the Court who is Ricky, Edwin?

Court

Unahin si Ricky. Tumayo ang itinuro.

Mr. dela Cruz

Witness pointed to a person who when asked of his name, answered to the name of Robert Alfonso.

Court

Sino pa? Iyong bumaril, ha?

Mr. dela Cruz

Witness pointed to a person who when asked of his name answered to the name of Joemari delos
Reyes.

Court

Sino pa?

Mr. dela Cruz

Witness pointed to a person who when asked of his name answered to the name of Eduardo Palacpac.12

Testimony of Ruben Labiata

Q Mr. Labjata, will you tell this Honorable Court where were you in the early morning of July 28, 1999?

A I was in Dagohoy with my jeepney waiting for passengers, sir.

Q More or less, what time was that when you were with your jeep and waiting for passengers?

A Between twelve and one a.m., sir.

Q Do you recall, Mr. Labjata, of any unusual incident that occurred while waiting for passengers inside
your jeepney?

A While my jeep was parked there, I heard gunshots, sir.

Q What else, if any, happened?

A I was about to leave then and I have already passengers when some people suddenly arrived, sir.
xxx xxx xxx

Q Did you, if you did notice if the 3 men who ordered immediately to let your passengers get off the
jeep, if they were armed?

Atty. Ongteco

The same objection.

Court

Same ruling, you are practically telling the witness that they were armed.

Fiscal Daosos

Q Alright, while the 3 ordered you, did you notice anything, if you did any?

A They were armed with guns, sir.

Q What kind of guns, are they long arms or short arms?

A Short arms, sir.

xxx xxx xxx

Q Other than the 3 were there other persons who boarded your jeep?

Atty. Ongteco

Same objection.

Court

I will allow that.

Atty. Ongteco

But that is the same banana because according to the witness, the 3 persons ordered the other
passengers of the jeep to alight.

Court

That was ordering the passengers to alight. The question now is, were there other persons who boarded
your jeep. I will allow that. Answer that.

Witness

When they told me to start the jeep, there were some persons who boarded the jeep, sir.

Fiscal Daosos

Q Can you also tell the Honorable Court briefly what was the condition of this other group who also
boarded?

A They were also holding guns, sir.


Q More or less, how many of them, the one[s] that boarded again?

A When I start[ed] the engine or already driving the jeep I saw 8, sir.

xxx xxx xxx

Fiscal Daosos

Q When you were ordered to go, what did you do, if any?

A I drove the jeep and then we made a turn near the Monumento Circle and proceeded to Edsa, sir.

Q While you were proceeding to Edsa, did you notice anything unusual again?

A Yes, sir, I noticed something unusual because while they were conversing to each other, I heard
somebody said that hindi ako ang bumaril.

xxx xxx xxx

Q From Petron Gas Station after you have gassed up, where did you go, if you went somewhere else?

A We proceeded to the highway and then when we were already far from Petron, we made a left turn,
sir.

Q In what direction was this left [turn] going towards?

A I am not familiar with that route, sir.

Q By the way, who among the group ordered you to what direction you [were] going to?

A The one on my left side, sir.

Q At that point of time, did the group tell you where you [were] going?

A I do not know where to go but they ordered me and I followed them.

Q Now, as a jeepney driver from Bulacan, can you tell the Honorable Court to what direction or route
you were going?

A After making a left turn, we passed by a 711 store, sir.

xxx xxx xxx

Q While you were driving your jeep from Caloocan City to Tarlac, was there a time whether one of the
group told you what to do?

A Yes, sir. They poked a gun at me and told me to follow them whatever they wanted me to do, sir.

xxx xxx xxx

Q While you were so scared because you were ordered and you realized that you reached Paniqui, was
there at any moment while driving your jeep that you [felt] that you might be killed by this armed men?

Atty. Ongteco
Leading.

Fiscal Daosos

I am asking for his feelings.

Court

Did you ever feel that you might be killed? I will allow it.

Witness

Because when we arrived [at] Tarlac, I heard one of them said tumba.

xxx xxx xxx

Court

What did you do after hearing tumba? Witness may answer.

Witness

I told them, Sir, maawa naman po kayo.

Fiscal Daosos

Q To whom did you address your words?

A I just said, Maawa naman po kayo, huwag ninyo po akong itumba because, I have a family.

Q After you told the group of the accused that, Sir, huwag naman ninyo akong itumba, what else
transpired?

A One of them said, in behalf of your family, bubuhayin ka namin for the sake of your family. (Alang-
alang sa pamilya mo).

Q What else, if any, after one of them told you that for the sake of your family, we will not kill you.

A They told me that after reaching Tarlac, I will return back and without turning my head and do not
report to the police or else they will shoot me.

Q So, after you received those orders, what did you do, if any?

A When they alighted from the jeep, I did not look at them. Once they alighted, I proceeded or went
back to Bulacan, sir.

Q You said that after hearing their orders and reaching Paniqui, Tarlac, they went down. They alighted.
Did all of them alight at the same time?

A They alighted one after the other, sir.

Q After they have alighted, what else if any transpired?

A I left at a place where they alighted and then I went back to Bulacan, sir.
xxx xxx xxx

Q When did you see them again?

A After they were arrested from their hideout, sir.

Q Where exactly did you meet them at Paniqui, Tarlac?

A At the Municipal Hall of Paniqui, Tarlac, sir.

Q More or less, what time was that already?

A About past eight in the morning, sir.

Q You said that at around past eight, you saw the group again who commandeered your jeep. How did
you know that they were the same persons who commandeered your jeep that early morning of July 28,
1999?

A Because I was able to recognize the faces of the others, sir.

Q Mr. Witness, if you can see the faces of this group of persons who commandeered your jeep and who
threatened to kill you and who ordered you to stop at Paniqui, Tarlac, and which you saw again the
following day in the morning at Paniqui, Tarlac, would you be able to recognize their faces again if you
will see these people?

A Yes, sir.

Q Now, will you please stand, Mr. Witness, and look around this courtroom and then point to the faces
of those people whom you said commandeered your jeep in that early morning?

Mr. Nestor dela Cruz

The witness pointed to a man, who when asked of his name, answered to the name of Audie Dona.

Fiscal Daosos

Who else?

Mr. dela Cruz

The witness pointed to a man, who when asked of his name, answered to the name of Alfredo Baracas.

Fiscal Daosos

Who else?

Mr. dela Cruz

The witness pointed to a man, who when asked of his name, answered to the name of Diosdado
Recepcion.

Fiscal Daosos

Who else?
Mr. dela Cruz

The witness pointed to a man, who when asked of his name, answered to the name of Bernardo Ranara.

Fiscal Daosos

Who else?

Mr. dela Cruz

The witness pointed to a man, who when asked of his name, answered to the name of Eduardo
Palacpac.

Fiscal Daosos

Who else?

Mr. dela Cruz

The witness pointed to a man, who when asked of his name, answered to the name of Dominador
Recepcion.

Fiscal Daosos

Who else?

Mr. dela Cruz

The witness pointed to a man, who when asked of his name, answered to the name of Joemari delos
Reyes.

Fiscal Daosos

Who else?

Mr. dela Cruz

The witness pointed to a man, who when asked of his name, answered to the name of Robert Alfonso.13

The eyewitnesses categorically identified the malefactors. The alleged discrepancies in the testimony of
the witnesses could easily be explained by the fact that they saw the incident from different angles of
the shooting. The impact of events, as well as the unconscious working of the mind, it is said, could
readily warp the human perception in varying ways and degrees. Empiric data is yet to be found in order
to accurately measure the value of testimony of a witness other than its conformity to human behavior
and the common experience of mankind.14

The defense of alibi proffered by appellants is much too weak against the positive identification made
by the eyewitnesses. It is not enough for an alibi to prosper to prove that the person raising it has been
somewhere else when the crime is committed; it must likewise be demonstrated that it would have
been physically impossible for him to be at the scene of the crime.15 Where there is the least chance to
be present at the locus criminis, alibi will not hold much water.16 The bare evidence given by appellants
to vouch their individual claims and establish alibi is far from being iron-clad against the possibility of
their having been at the crime scene.
Article 24817 of the Revised Penal Code, as amended by Republic Act (R.A.) No. 7659, makes a person
guilty of murder if the killing is attended by, among other circumstances (but not here appurtenant),
treachery or evident premeditation. An essence of treachery is not only the swiftness and the surprise in
the attack upon an unsuspecting victim but also the attendance of two concurring conditions, i.e., that
the malefactor must have employed means, method or manner of execution that would insure his
safety from the retaliatory act of the victim, and such means, method or form of execution are
consciously and deliberately adopted by the malefactor. The qualifying circumstance of evident
premeditation, on the other hand, requires that the execution of the criminal act be preceded by cool
thought and reflection upon a resolution to carry out the criminal intent during the space of time
sufficient to arrive at a calm judgment.18Evident premeditation needs proof of the time when the intent
to commit the crime is engendered in the mind of the accused, the motive which gives rise to it, and the
means which are beforehand selected to carry out that intent. All such facts and antecedents which
make notorious the pre-existing design to accomplish the criminal purpose must be proven to the
satisfaction of the court.19

A scrutiny of the facts in evidence would indicate a scanty showing of the requirements to qualify the
senseless killing of the five victims, either by treachery or by evident premeditation, to murder. While
the attack upon the victims could be described as being unexpected, somehow voiding any risk to the
perpetrators thereof, there, is, however, insufficient evidence to indicate that the means adopted by the
appellants have consciously been adopted. Mere suddenness of the attack is not enough to show
treachery; it should also be shown that the mode of attack has knowingly been intended to accomplish
the wicked intent.20 Neither would evident premeditation qualify the offense to murder in the absence
of clear substantiation that the appellants have definitely resolved to commit the offense and have
reflected on the means to bring about the execution following an appreciable length of time.

The trial court, however, correctly appreciated conspiracy. The presence of conspiracy could be revealed
by the acts done before, during and after the commission of the crime that made evident a joint
purpose, concerted action and concurrence of sentiments.21 The several acts of appellants during and
after the shooting rampage disclosed a unison of objectives. Not one tried to stop the other in the
perpetration of the crime. All were clearly in it together, performing specific acts with such closeness
and coordination as would unmistakably show a common scheme. The attendance of treachery would
thus render it unnecessary for the prosecution to show who among the conspirators actually hit and
killed their victims, each of them being equally liable with the other in the perpetration of the crime.

Without proof of any circumstance that would qualify it, the killing could not amount to murder.
Appellants should thus be held liable only for homicide for the death of each of the victims. It was
alleged in the accusatory information and shown in evidence that the crimes were indeed perpetrated
with the use of unlicensed firearms. Pursuant to Republic Act 829422(amending Presidential Decree No.
1866), which was already in effect when the killing spree occurred, if homicide or murder is committed
with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an
aggravating circumstance.

The trial court has convicted FOl Felipe dela Cruz as an accessory. This Court, however, finds no evidence
to convict him as such accessory. Under Article 19 of the Revised Penal Code, the actual knowledge of
the commission of the crime is an important element to being an encubridor, and the records are bereft
of sound proof that dela Cruz has had knowledge of any or all of the nefarious deeds earlier committed
by his guests.

The arrest of appellants has been made in hot pursuit, an exception from the rule that warrantless
arrests are illegal. In any event, appellants can no longer assail the illegality of their arrest since such a
claim has not been brought up before or during the arraignment. The failure to timely move for the
quashal of the Information on this basis operates as a waiver of the right to question the supposed
irregularity of the arrest.23

The crime of homicide is punishable under Article 249 of the Revised Penal Code by reclusion
temporal with a duration of 12 years and 1 day to 20 years. Applying the Indeterminate Sentence Law,
the appellants may be held to suffer imprisonment, as minimum, of anywhere within the full range
of prision mayor of from 6 years and 1 day to 12 years and, as maximum, to anywhere within the range
of reclusion temporal in its maximum period, considering the attendance of the aggravating
circumstance of use of an unlicensed firearm, of from 14 years, 8 months and 1 day to 20 years.

The damages awarded by the trial court accord with prevailing jurisprudence except for the grant of
P100,000.00 moral damages to the heirs of each of the victims which amount should be reduced to
P50,000.00.

WHEREFORE, the assailed judgment of the court a quo convicting appellants is AFFIRMED subject to the
following MODIFICATIONS, to wit:
G.R. No. 101837 February 11, 1992

ROLITO GO y TAMBUNTING, petitioner,


vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial
Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents.

FELICIANO, J.:

According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon
Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St.
Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or
"wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly
bumped each other. Petitioner alighted from his car, walked over and shot Maguan inside his car.
Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was able to
take down petitioner's car plate number. The police arrived shortly thereafter at the scene of the
shooting and there retrieved an empty shell and one round of live ammunition for a 9 mm caliber pistol.
Verification at the Land Transportation Office showed that the car was registered to one Elsa Ang Go.

The following day, the police returned to the scene of the shooting to find out where the suspect had
come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the
shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the
cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and he
positively identified him as the same person who had shot Maguan. Having established that the
assailant was probably the petitioner, the police launched a manhunt for petitioner.

On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports
that he was being hunted by the police; he was accompanied by two (2) lawyers. The police forthwith
detained him. An eyewitness to the shooting, who was at the police station at that time, positively
identified petitioner as the gunman. That same day, the police promptly filed a complaint for frustrated
homicide 2 against petitioner with the Office of the Provincial Prosecutor of Rizal. First Assistant
Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence of his
lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a
waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such
waiver.

On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be
filed in court, the victim, Eldon Maguan, died of his gunshot wound(s).

Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide,
filed an information for murder 3 before the Regional Trial Court. No bail was recommended. At the
bottom of the information, the Prosecutor certified that no preliminary investigation had been
conducted because the accused did not execute and sign a waiver of the provisions of Article 125 of the
Revised Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an
omnibus motion for immediate release and proper preliminary investigation,4 alleging that the
warrantless arrest of petitioner was unlawful and that no preliminary investigation had been conducted
before the information was filed. Petitioner also prayed that he be released on recognizance or on bail.
Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last page of the
motion itself that he interposed no objection to petitioner being granted provisional liberty on a cash
bond of P100,000.00.

On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite action
on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on
the same date, approved the cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was
in fact released that same day.

On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct
preliminary investigation8 and prayed that in the meantime all proceedings in the court be suspended.
He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal an omnibus
motion for immediate release and preliminary investigation, which motion had been granted by
Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of P100,000.00. The
Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11 July 1991.

Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary investigation
and cancelling the arraignment set for 15 August 1991 until after the prosecution shall have concluded
its preliminary investigation.

On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the following:
(1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of
the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to
conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus motion for
immediate release and preliminary investigation dated 11 July 1991 was treated as a petition for bail
and set for hearing on 23 July 1991.

On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme
Court assailing the 17 July 1991 Order, contending that the information was null and void because no
preliminary investigation had been previously conducted, in violation of his right to due process.
Petitioner also moved for suspension of all proceedings in the case pending resolution by the Supreme
Court of his petition; this motion was, however, denied by respondent Judge.

On 23 July 1991, petitioner surrendered to the police.

By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition
and mandamus to the Court of Appeals.

On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of
petitioner on 23 August 1991.

On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment.

On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of
Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was
arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea of not
guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26 September; on
2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11

On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged
that in view of public respondent's failure to join issues in the petition for certiorari earlier filed by him,
after the lapse of more than a month, thus prolonging his detention, he was entitled to be released
on habeas corpus.

On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition for certiorari,
prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon the other, were
subsequently consolidated in the Court of Appeals.

The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain
his arraignment on the ground that that motion had become moot and academic.

On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first
witness.

On 23 September 1991, the Court of Appeals rendered a consolidated decision 14 dismissing the two (2)
petitions, on the following grounds:

a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and charged
had been "freshly committed." His identity had been established through investigation. At the time he
showed up at the police station, there had been an existing manhunt for him. During the confrontation
at the San Juan Police Station, one witness positively identified petitioner as the culprit.

b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived
his right to preliminary investigation by not invoking it properly and seasonably under the Rules.

c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial
court had the inherent power to amend and control its processes so as to make them conformable to
law and justice.

d. Since there was a valid information for murder against petitioner and a valid commitment order
(issued by the trial judge after petitioner surrendered to the authorities whereby petitioner was given to
the custody of the Provincial Warden), the petition for habeas corpus could not be granted.

On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for
petitioner also filed a "Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity.

On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the
Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the criminal
case below until further orders from this Court.

In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful
warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and second,
whether petitioner had effectively waived his right to preliminary investigation. We consider these
issues seriatim.
In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had
been validly arrested without warrant. Since petitioner's identity as the gunman who had shot Eldon
Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly arrested
six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno v. Station
Commander, etc., et al., 16 one of the seven (7) cases consolidated with In the Matter of the Petition for
Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17 where a majority of the Court upheld a
warrantees arrest as valid although effected fourteen (14) days after the killing in connection with which
Nazareno had been arrested. Accordingly, in the view of the Solicitor General, the provisions of Section
7, Rule 112 of the Rules of Court were applicable and because petitioner had declined to waive the
provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the
information for murder even without preliminary investigation.

On the other hand, petitioner argues that he was not lawfully arrested without warrant because he
went to the police station six (6) days after the shooting which he had allegedly perpetrated. Thus,
petitioner argues, the crime had not been "just committed" at the time that he was arrested. Moreover,
none of the police officers who arrested him had been an eyewitness to the shooting of Maguan and
accordingly none had the "personal knowledge" required for the lawfulness of a warrantees arrest.
Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the Rules of Court which
establishes the only exception to the right to preliminary investigation, could not apply in respect of
petitioner.

The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of
this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the
warrantless arrests of petitioners made from one (1) to fourteen days after the actual commission of the
offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses were
subversion, membership in an outlawed organization like the New People's Army, etc. In the instant
case, the offense for which petitioner was arrested was murder, an offense which was obviously
commenced and completed at one definite location in time and space. No one had pretended that the
fatal shooting of Maguan was a "continuing crime."

Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case
falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as
follows:

Sec. 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 personal knowledge of facts indicating
that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail, and he shall be proceed against in accordance
with Rule 112, Section 7.

Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers
obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly shot
Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably regarded as
effected "when [the shooting had] in fact just been committed" within the meaning of Section 5(b).
Moreover, none of the "arresting" officers had any "personal knowledge" of facts indicating that
petitioner was the gunman who had shot Maguan. The information upon which the police acted had
been derived from statements made by alleged eyewitnesses to the shooting — one stated that
petitioner was the gunman; another was able to take down the alleged gunman's car's plate number
which turned out to be registered in petitioner's wife's name. That information did not, however,
constitute "personal knowledge." 18

It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning
of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides:

Sec. 7 When accused lawfully arrested without warrant. — When a person is lawfully arrested without a
warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed
by the offended party, peace officer or fiscal without a preliminary investigation having been first
conducted, on the basis of the affidavit of the offended party or arresting office or person

However, before the filing of such complaint or information, the person arrested may ask for a
preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of
the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and
in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver,
he may apply for bail as provided in the corresponding rule and the investigation must be terminated
within fifteen (15) days from its inception.

If the case has been filed in court without a preliminary investigation having been first conducted, the
accused may within five (5) days from the time he learns of the filing of the information, ask for a
preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed
in this Rule. (Emphasis supplied)

is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan Police
Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police
authorities. He did not state that he was "surrendering" himself, in all probability to avoid the
implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a crime.
When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should have
immediately scheduled a preliminary investigation to determine whether there was probable cause for
charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor
proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and required
petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying
out a preliminary investigation. This was substantive error, for petitioner was entitled to a preliminary
investigation and that right should have been accorded him without any conditions. Moreover, since
petitioner had not been arrested, with or without a warrant, he was also entitled to be released
forthwith subject only to his appearing at the preliminary investigation.

Turning to the second issue of whether or not petitioner had waived his right to preliminary
investigation, we note that petitioner had from the very beginning demanded that a preliminary
investigation be conducted. As earlier pointed out, on the same day that the information for murder was
filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for
immediate release and preliminary investigation. The Solicitor General contends that that omnibus
motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner
should accordingly be held to have waived his right to preliminary investigation. We do not believe that
waiver of petitioner's statutory right to preliminary investigation may be predicated on such a slim basis.
The preliminary investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It
is true that at the time of filing of petitioner's omnibus motion, the information for murder had already
been filed with the Regional Trial Court: it is not clear from the record whether petitioner was aware of
this fact at the time his omnibus motion was actually filed with the Prosecutor. In Crespo
v. Mogul, 19 this Court held:

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima
facie case exists to warranting the prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of said information sets in motion the
criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation
of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the
finding and recommendations of the fiscal should be submitted to the Court for appropriate action.While
it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case
should be filed in court or not, once the case had already been brought to Court whatever disposition
the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of
the Court. The only qualification is that the action of the Court must not impair the substantial rights of
the accused., or the right of the People to due process of law.

xxx xxx xxx

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case [such] as its dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in Court he cannot impose his opinion on the trial court.
The Court is the best and sole judge on what to do with the case before it. . . . 20 (Citations omitted;
emphasis supplied)

Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for
a re-investigation (Crespo v. Mogul involved a re-investigation), and since the Prosecutor himself did file
with the trial court, on the 5th day after filing the information for murder, a motion for leave to conduct
preliminary investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude
that petitioner's omnibus motion was in effect filed with the trial court. What was crystal clear was that
petitioner did ask for a preliminary investigation on the very day that the information was filed without
such preliminary investigation, and that the trial court was five (5) days later apprised of the desire of
the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the Prosecutor's
prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken) supposition
apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was applicable, the
5-day reglementary period in Section 7, Rule 112 must be held to have been substantially complied with.

We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that
right is statutory rather than constitutional in its fundament, since it has in fact been established by
statute, it is a component part of due process in criminal justice. 21 The right to have a preliminary
investigation conducted before being bound over to trial for a criminal offense and hence formally at
risk of incarceration or some other penalty, is not a mere formal or technical right; it is
a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety,
aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process painful
to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a
preliminary investigation would be to deprive him the full measure of his right to due process.

The question may be raised whether petitioner still retains his right to a preliminary investigation in the
instant case considering that he was already arraigned on 23 August 1991. The rule is that the right to
preliminary investigation is waived when the accused fails to invoke it before or at the time of entering a
plea at arraignment. 22 In the instant case, petitioner Go had vigorously insisted on his right to
preliminary investigation before his arraignment. At the time of his arraignment, petitioner was already
before the Court of Appeals on certiorari, prohibition and mandamusprecisely asking for a preliminary
investigation before being forced to stand trial.

Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his
right to preliminary investigation. In People v. Selfaison, 23 we did hold that appellants there had waived
their right to preliminary investigation because immediately after their arrest, they filed bail and
proceeded to trial "without previously claiming that they did not have the benefit of a preliminary
investigation." 24 In the instant case, petitioner Go asked for release on recognizance or on bail and for
preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by petitioner and ordered his
release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on
the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct
preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary
investigation was a legitimate one.

We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary
investigation, while constituting a denial of the appropriate and full measure of the statutory process of
criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of
the trial court. 25

It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This
was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt then in
his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent Judge
recalling his own order granting bail and requiring petitioner to surrender himself within forty-eight (48)
hours from notice, was plainly arbitrary considering that no evidence at all — and certainly
no new or additional evidence — had been submitted to respondent Judge that could have justified the
recall of his order issued just five (5) days before. It follows that petitioner was entitled to be released
on bail as a matter of right.
The final question which the Court must face is this: how does the fact that, in the instant case, trial on
the merits has already commenced, the Prosecutor having already presented four (4) witnesses, impact
upon, firstly, petitioner's right to a preliminary investigation and, secondly, petitioner's right to be
released on bail? Does he continue to be entitled to have a preliminary investigation conducted in
respect of the charge against him? Does petitioner remain entitled to be released on bail?

Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a
preliminary investigation although trial on the merits has already began. Trial on the merits should be
suspended or held in abeyance and a preliminary investigation forthwith accorded to petitioner. 26 It is
true that the Prosecutor might, in view of the evidence that he may at this time have on hand, conclude
that probable cause exists; upon the other hand, the Prosecutor conceivably could reach the conclusion
that the evidence on hand does not warrant a finding of probable cause. In any event, the constitutional
point is that petitioner was not accorded what he was entitled to by way of procedural due
process. 27 Petitioner was forced to undergo arraignment and literally pushed to trial without
preliminary investigation, with extraordinary haste, to the applause from the audience that filled the
courtroom. If he submitted to arraignment at trial, petitioner did so "kicking and screaming," in a
manner of speaking . During the proceedings held before the trial court on 23 August 1991, the date set
for arraignment of petitioner, and just before arraignment, counsel made very clear petitioner's
vigorous protest and objection to the arraignment precisely because of the denial of preliminary
investigation. 28 So energetic and determined were petitioner's counsel's protests and objections that an
obviously angered court and prosecutor dared him to withdraw or walkout, promising to replace him
with counsel de oficio. During the trial, before the prosecution called its first witness, petitioner through
counsel once again reiterated his objection to going to trial without preliminary investigation:
petitioner's counsel made of record his "continuing objection." 29 Petitioner had promptly gone to the
appellate court on certiorari and prohibition to challenge the lawfulness of the procedure he was being
forced to undergo and the lawfulness of his detention.30 If he did not walk out on the trial, and if he
cross-examined the prosecution's witnesses, it was because he was extremely loath to be represented
by counsel de oficio selected by the trial judge, and to run the risk of being held to have waived also his
right to use what is frequently the only test of truth in the judicial process.

In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be
released on bail as a matter of right. Should the evidence already of record concerning petitioner's guilt
be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court for
cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective
assessment of the evidence on record, to grant or deny the motion for cancellation of bail.

To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary investigation
and to bail were effectively obliterated by evidence subsequently admitted into the record would be to
legitimize the deprivation of due process and to permit the Government to benefit from its own wrong
or culpable omission and effectively to dilute important rights of accused persons well-nigh to the
vanishing point. It may be that to require the State to accord petitioner his rights to a preliminary
investigation and to bail at this point, could turn out ultimately to be largely a ceremonial exercise. But
the Court is not compelled to speculate. And, in any case, it would not be idleceremony; rather, it would
be a celebration by the State of the rights and liberties of its own people and a re-affirmation of its
obligation and determination to respect those rights and liberties.
ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of the trial
court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the Court of Appeals
dated 23 September 1991 hereby REVERSED.

The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary
investigation of the charge of murder against petitioner Go, and to complete such preliminary
investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits of
the criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the
preliminary investigation.

Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One
Hundred Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful order that
the trial court may issue, should the Office of the Provincial Prosecutor move for cancellation of bail at
the conclusion of the preliminary investigation.

No pronouncement as to costs. This Decision is immediately executory.

SO ORDERED.

Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur.


G.R. No. 95847-48. March 10, 1993.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GABRIEL GERENTE y BULLO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; LAWFUL WHEN ARRESTING
OFFICER HAS PERSONAL KNOWLEDGE THAT THE PERSON TO BE ARRESTED HAS COMMITTED THE
CRIME; CASE AT BAR. — The policemen arrested Gerente only some three (3) hours after Gerente and
his companions had killed Blace. They saw Blace dead in the hospital and when they inspected the scene
of the crime, they found the instruments of death: a piece of wood and a concrete hollow block which
the killers had used to bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the
happening to the policemen and pinpointed her neighbor, Gerente, as one of the killers. Under those
circumstances, since the policemen had personal knowledge of the violent death of Blace and of facts
indicating that Gerente and two others had killed him, they could lawfully arrest Gerente without a
warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the law
as his two companions did.

2. ID.; ID.; SEARCH AND SEIZURE; VALID EVEN WITHOUT A WARRANT WHEN MADE AS AN INCIDENT TO
LAWFUL ARREST; RATIONALE. — The search conducted on Gerente's person was likewise lawful because
it was made as an incident to a valid arrest. This is in accordance with Section 12, Rule 126 of the
Revised Rules of Court which provides: "Section 12. Search incident to lawful arrest. — A person lawfully
arrested may be searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant." The frisk and search of appellant's person upon
his arrest was a permissible precautionary measure of arresting officers to protect themselves, for the
person who is about to be arrested may be armed and might attack them unless he is first disarmed. In
Adams vs. Williams, 47 U.S. 143, cited in Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p.
150, it was ruled that "the individual being arrested may be frisked for concealed weapons that may be
used against the arresting officer and all unlawful articles found his person, or within his immediate
control may be seized."

3. CRIMINAL LAW; CONSPIRACY; LIABILITY OF CONSPIRATORS; RULE; CASE AT BAR. — There is no merit
in appellant's allegation that the trial court erred in convicting him of having conspired and cooperated
with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr. Valentin Bernales that the
fracture on the back of the victim's skull could have been inflicted by one person only. what Dr. Bernales
stated was a mere possibility that only one person dropped the concrete hollow block on the head of
the victim, smashing it. That circumstance, even if true, does not absolve the other two co-conspirators
in the murder of Blace for when there is a conspiracy to commit a crime, the act of one conspirator is
the act of all. The conspiracy was proven by the eyewitness-testimony of Edna Edwina Reyes, that she
overheard the appellant and his companions conspire to kill Blace, that acting in concert, they attacked
their victim with a piece of wood and a hollow block and caused his death. "When there is no evidence
indicating that the principal witness for the prosecution was moved by improper motive, the
presumption is that he was not so moved and his testimony is entitled to full faith and credit" (People
vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in giving full credit to Edna Reyes'
testimony.

4. ID.; CIVIL INDEMNITY FOR DEATH; INCREASED TO P50,000.00. — The Solicitor General correctly
pointed out in the appellee's brief that the award of P30,000.00 as civil indemnity for the death of
Clarito Blace should be increased to P50,000.00 in accordance with our ruling in People vs. Sison, 189
SCRA 643.

DECISION

GRIÑO-AQUINO, J p:

This is an appeal from the decision of the Regional Trial Court of Valenzuela, Metro Manila, Branch 172,
which found the appellant guilty of Violation of Section 8 of Republic Act 6425 (Dangerous Drugs Act of
1972) and sentenced him to suffer the penalty of imprisonment for a term of twelve (12) years and one
(1) day, as minimum, to twenty (20) years, as maximum; and also found him guilty of Murder for which
crime he was sentenced to suffer the penalty of reclusion perpetua. The dispositive portion of the
appealed decision reads:

"WHEREFORE, in view of the foregoing the Court finds the accused Gabriel Gerente in Criminal Case No.
10255-V-90 guilty beyond reasonable doubt of Violation of Section 8 of R.A. 6425 and hereby sentences
him to suffer the penalty of imprisonment of twelve years and one day as minimum to twenty years as
maximum, and a fine of twelve thousand, without subsidiary imprisonment in case of insolvency, and to
pay the costs.

"In Criminal Case No. 10256-V-90, the Court finds the accused Gabriel Gerente guilty beyond reasonable
doubt of the crime of Murder, and there by (sic) no aggravating circumstances nor mitigating
circumstances, is hereby sentenced to suffer the penalty of reclusion perpetua; to indemnify the heirs of
the victim in the sum of P30,000.00, and in the amount of P17,609.00 as funeral expenses, without
subsidiary imprisonment in case of insolvency, and to pay the costs. The accused Gabriel Gerente shall
be credited with the full term of his preventive imprisonment." (p. 25, Rollo.)

Appellant Gabriel Gerente y Bullo was charged with Violation of Section 8, Art. II of R.A. 6425, which was
docketed as Criminal Case No. 10255-V-90 of the Regional Trial Court of Valenzuela, Metro Manila. The
Information reads:

"That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without
justification, did then and there wilfully, unlawfully and feloniously have in his possession and control
dried flowering tops wrapped in foil with markings and place in a transparent plastic bag which are
considered prohibited drugs." (p. 2, Rollo.)

The same accused, together with Totoy and Fredo Echigoren who are both at large, was charged with
Murder in Criminal Case No. 10256-V-90 in an information of the same date and signed by the same
Assistant Provincial Prosecutor, as follows:

"That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused together with
two (2) others who are still at large and against whom the preliminary investigation has not yet been
terminated by the Office of the Provincial Prosecutor of Bulacan, conspiring, confederating together and
mutually helping one another, armed with a piece of wood and hallow (sic) block and with intent to kill
one Clarito B. Blace, did then and there wilfully, unlawfully and feloniously, with evident premeditation
and treachery, attack, assault and hit with the said piece of wood and hollow block the said Clarito B.
Blace, hitting the latter on the different parts of his body, thereby inflicting serious physical injuries
which directly caused the death of the said victim." (p. 3, Rollo.)

Edna Edwina Reyes testified that at about 7:00 a.m. of April 30, 1990, appellant Gabriel Gerente,
together with Fredo Echigoren and Totoy Echigoren, started drinking liquor and smoking marijuana in
the house of the appellant which is about six (6) meters away from the house of the prosecution witness
who was in her house on that day. She overheard the three men talking about their intention to kill
Clarito Blace. She testified that she heard Fredo Echigoren saying, "Gabriel, papatayin natin si Clarito
Blace," and Totoy Echigoren allegedly seconded Fredo's suggestion saying: "Papatayin natin 'yan
mamaya." Appellant allegedly agreed: "Sigue, papatayin natin mamaya." (pp. 3-4, tsn, August 24, 1990.)

Fredo and Totoy Echigoren and Gerente carried out their plan to kill Clarito Blace at about 2:00 p.m. of
the same day. The prosecution witness, Edna Edwina Reyes, testified that she witnessed the killing.
Fredo Echigoren struck the first blow against Clarito Blace, followed by Totoy Echigoren and Gabriel
Gerente who hit him twice with a piece of wood in the head and when he fell, Totoy Echigoren dropped
a hollow block on the victim's head. Thereafter, the three men dragged Blace to a place behind the
house of Gerente.

At about 4:00 p.m. of the same day, Patrolman Jaime Urrutia of the Valenzuela Police Station received a
report from the Palo Police Detachment about a mauling incident. He went to the Valenzuela District
Hospital where the victim was brought. He was informed by the hospital officials that the victim died on
arrival. The cause of death was massive fracture of the skull caused by a hard and heavy object. Right
away, Patrolman Urrutia, together with Police Corporal Romeo Lima and Patrolman Alex Umali,
proceeded to Paseo de Blas where the mauling incident took place. There they found a piece of wood
with blood stains, a hollow block and two roaches of marijuana. They were informed by the prosecution
witness, Edna Edwina Reyes, that she saw the killing and she pointed to Gabriel Gerente as one of the
three men who killed Clarito.

The policemen proceeded to the house of the appellant who was then sleeping. They told him to come
out of the house and they introduced themselves as policemen. Patrolman Urrutia frisked appellant and
found a coin purse in his pocket which contained dried leaves wrapped in cigarette foil. The dried leaves
were sent to the National Bureau of Investigation for examination. The Forensic Chemist found them to
be marijuana.

Only the appellant, Gabriel Gerente, was apprehended by the police. The other suspects, Fredo and
Totoy Echigoren, are still at large.

On May 2, 1990, two separate informations were filed by Assistant Provincial Prosecutor Benjamin
Caraig against him for Violation of Section 8, Art. II, of R.A. 6425, and for Murder.

When arraigned on May 16, 1990, the appellant pleaded not guilty to both charges. A joint trial of the
two cases was held. On September 24, 1990, the trial court rendered a decision convicting him of
Violation of Section 8 of R.A. 6425 and of Murder.
In this appeal of the appellant, the following errors are ascribed to the trial court:

1. the court a quo gravely erred in admitting the marijuana leaves adduced in evidence by the
prosecution; and

2. the court a quo gravely erred in convicting the accused-appellant of the crimes charged despite the
absence of evidence required to prove his guilt beyond reasonable doubt.

The appellant contends that the trial court erred in admitting the marijuana leaves as evidence in
violation of his constitutional right not to be subjected to illegal search and seizure, for the dried
marijuana leaves were seized from him in the course of a warrantless arrest by the police officers. We
do not agree.

The search of appellant's person and the seizure of the marijuana leaves in his possession were valid
because they were incident to a lawful warrantless arrest.

Paragraphs (a) and (b), Section 5, Rule 113 of the Revised Rules of Court provide:

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

"(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;"

"(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating
that the person to be arrested has committed it; . . .'

The policemen arrested Gerente only some three (3) hours after Gerente and his companions had killed
Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime, they found
the instruments of death: a piece of wood and a concrete hollow block which the killers had used to
bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the happening to the policemen
and pinpointed her neighbor, Gerente, as one of the killers. Under those circumstances, since the
policemen had personal knowledge of the violent death of Blace and of facts indicating that Gerente and
two others had killed him, they could lawfully arrest Gerente without a warrant. If they had postponed
his arrest until they could obtain a warrant, he would have fled the law as his two companions did.

In Umil vs. Ramos, 187 SCRA 311, the arrest of the accused without a warrant was effected one (1) day
after he had shot to death two Capcom soldiers. The arrest was held lawful by this Court upon the
rationale stated by us in People vs. Malasugui, 63 Phil. 221, 228, thus:

"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."

The search conducted on Gerente's person was likewise lawful because it was made as an incident to a
valid arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court which provides:

"SECTION 12. Search incident to lawful arrest. — A person lawfully arrested may be searched for
dangerous weapons or anything which may be used as proof of the commission of an offense, without a
search warrant."
The frisk and search of appellant's person upon his arrest was a permissible precautionary measure of
arresting officers to protect themselves, for the person who is about to be arrested may be armed and
might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in Justice Isagani
A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual being arrested may be
frisked for concealed weapons that may be used against the arresting officer and all unlawful articles
found in his person, or within his immediate control may be seized."

There is no merit in appellant's allegation that the trial court erred in convicting him of having conspired
and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr. Valentin
Bernales that the fracture on the back of the victim's skull could have been inflicted by one person only.

What Dr. Bernales stated was a mere possibility that only one person dropped the concrete hollow block
on the head of the victim, smashing it. That circumstance, even if true, does not absolve the other two
co-conspirators in the murder of Blace for when there is a conspiracy to commit a crime, the act of one
conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony of Edna Edwina
Reyes, that she overheard the appellant and his companions conspire to kill Blace, that acting in concert,
they attacked their victim with a piece of wood and a hollow block and caused his death. "When there is
no evidence indicating that the principal witness for the prosecution was moved by improper motive,
the presumption is that he was not so moved and his testimony is entitled to full faith and credit"
(People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in giving full credit to Edna
Reyes' testimony.

Appellant's failure to escape (because he was very drunk) is no indicium of his innocence.

The Solicitor General correctly pointed out in the appellee's brief that the award of P30,000.00 as civil
indemnity for the death of Clarito Blace should be increased to P50,000.00 in accordance with our ruling
in People vs. Sison, 189 SCRA 643.

WHEREFORE, the appealed decision is hereby AFFIRMED, with modification of the civil indemnity
awarded to the heirs of the victim, Clarito Blace, which is hereby increased to P50,000.00.

SO ORDERED.
PEOPLE OF THE PHILIPPINES, appellee, vs. SUSAN CANTON, appellant.

DECISION

DAVIDE, JR., C.J.:

Appellant Susan Canton (hereafter SUSAN) was charged before the Regional Trial Court of Pasay City
with the violation of Section 16 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425),
as amended, under an Information[1] whose accusatory portion reads as follows:

That on February 12, 1998 at 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 has
in her possession NINE HUNDRED NINETY EIGHT POINT TWO EIGHT HUNDRED ZERO NINE (998.2809)
GRAMS of methamphetamine hydrochloride, a regulated drug, without the corresponding prescription
or license.

CONTRARY TO LAW.

The case was docketed as Criminal Case No. 98-0189 and raffled to Branch 110 of said court.

SUSAN entered a plea of not guilty upon her arraignment.

At the trial, the prosecution presented as witnesses Forensic Chemist Julieta Flores, lady frisker Mylene
Cabunoc, and SPO4 Victorio de los Reyes.

For its part, the defense presented SPO2 Jerome Cause as its witness and had prosecution witness
Mylene Cabunoc recalled to be presented as hostile witness. It opted not to let SUSAN take the witness
stand.

The evidence for the prosecution established that on 12 February 1998, at about 1:30 p.m., SUSAN was
at the Ninoy Aquino International Airport (NAIA), being a departing passenger bound for Saigon,
Vietnam.[2] When she passed through the metal detector booth, a beeping sound was
emitted. Consequently, Mylene Cabunoc, a civilian employee of the National Action Committee on
Hijacking and Terrorism (NACHT) and the frisker on duty at that time, called her attention, saying Excuse
me maam, can I search you?[3] Upon frisking SUSAN, Mylene felt something bulging at her abdominal
area. Mylene inserted her hand under the skirt of SUSAN, pinched the package several times and
noticed that the package contained what felt like rice granules.[4] When Mylene passed her hand, she
felt similar packages in front of SUSANs genital area and thighs. She asked SUSAN to bring out the
packages, but the latter refused and said: Money, money only. Mylene forthwith reported the matter to
SPO4 Victorio de los Reyes, her supervisor on duty.[5]

SPO4 De los Reyes instructed Mylene to call Customs Examiner Lorna Jalac and bring SUSAN to a
comfort room for a thorough physical examination. Upon further frisking in the ladies room, Mylene
touched something in front of SUSANs sex organ. She directed SUSAN to remove her skirt, girdles and
panty. SUSAN obliged. Mylene and Lorna discovered three packages individually wrapped and sealed in
gray colored packing tape, which SUSAN voluntarily handed to them.[6] The first was taken from SUSANs
abdominal area; the second, from in front of her genital area; and the third, from her right
thigh.[7] Mylene turned over the packages to SPO4 De los Reyes.[8] The latter forthwith informed his
superior officer Police Superintendent Daniel Santos about the incident. Together with SUSAN, they
brought the gray plastic packs to the customs examination table, opened the same and found that they
contained white crystalline substances[9] which, when submitted for laboratory examination, yielded
positive results for methamphetamine hydrochloride or shabu, a regulated drug.[10]

For the defense, SPO2 Jerome Cause, an investigator of the First Regional Aviation Office, testified that
no investigation was ever conducted on SUSAN.[11] However, SUSAN signed a receipt of the following
articles seized from her: (1) three bags of methamphetamine hydrochloride or shabu approximately
1,100 grams; (2) one American passport bearing Number 700389994; (3) one Continental Micronesia
plane ticket with stock control number 0414381077; and (4) two panty girdles.[12] He said that he
informed SUSAN of her constitutional rights but admitted that she did not have a counsel when she
signed the receipt.[13] Yet he told her that she had the option to sign or not to sign the receipt.[14]

When recalled as witness for the defense, Mylene merely reiterated the circumstances surrounding the
arrest and search of SUSAN and the seizure of the prohibited items found on her person.[15]

After consideration of the evidence presented, the trial court rendered a decision[16] finding SUSAN
guilty beyond reasonable doubt of the offense of violation of Section 16 of Article III of Republic Act No.
6425, as amended, and sentencing her to suffer the penalty of reclusion perpetua and to pay a fine of P1
million.

SUSAN filed a Motion for Reconsideration and/or New Trial,[17] alleging therein that the trial judge erred
in (1) giving weight to the medical certificate executed by a certain Dr. Ma. Bernadette Arcena because it
was not presented in court nor marked or admitted, and is therefore hearsay evidence; (2) upholding
the presumption of regularity in the performance of duty of police officers, since lady frisker Mylene
Cabunoc is not even a police officer; (3) making statements which gave the impression that the burden
of proof was shifted to the accused; and (4) deliberately ignoring the decisive issue of how the evidence
was secured. SUSAN also assailed the propriety of the search and seizure without warrant on the ground
that the seized items were not in plain view. Furthermore, alleging bias and prejudice on the part of the
trial judge, SUSAN filed a motion to inhibit Judge Porfirio G. Macaraeg from resolving the Motion for
Reconsideration and/or New Trial.[18]

After conducting a hearing on 24 November 2000 to resolve appellants Motion for Reconsideration
and/or New Trial, as well as the Motion to Inhibit the Judge, the trial court issued an order[19] on 26
November 2001 denying the motions. According to the trial judge (1) he explained to SUSANs counsel
the effects of the filing of a motion for reconsideration, but the latter chose to magnify the judges
statement which was uttered in jest; (2) SUSANs conviction was not based on the medical report which
was not presented in court; (3) there was no violation of SUSANs constitutional rights because she was
never interrogated during her detention without counsel; and (4) the specimens seized from her were
found after a routine frisk at the airport and were therefore acquired legitimately pursuant to airport
security procedures.

Unsatisfied with the decision of the trial court, SUSAN seasonably appealed to us, imputing to the trial
court the following errors: (1) in justifying the warrantless search against her based on the alleged
existence of probable cause; (2) in holding that she was caught flagrante delicto and that the
warrantless search was incidental to a lawful arrest; (3) in not ruling that the frisker went beyond the
limits of the Terry search doctrine; (4) in not ruling that SUSAN was under custodial investigation
without counsel; (5) in admitting to the records of the case the report of Dr. Ma. Bernadette Arcena,
which was not testified on or offered in evidence, and using the same in determining her guilt; (6) in
justifying under the rule on judicial notice its cognizance of the medical report that has not been offered
in evidence; and (7) in applying the ruling in People v. Johnson.[20]

For assigned errors nos. 1 and 2, SUSAN asserts that the strip search conducted on her in the ladies
room was constitutionally infirmed because it was not incidental to an arrest. The arrest could not be
said to have been made before the search because at the time of the strip search, the arresting officers
could not have known what was inside the plastic containers hidden on her body, which were wrapped
and sealed with gray tape. At that point then, they could not have determined whether SUSAN was
actually committing a crime. The strip search was therefore nothing but a fishing expedition. Verily, it is
erroneous to say that she was caught flagrante delicto and that the warrantless search was incidental to
a lawful arrest.

For assigned error no. 3, SUSAN maintains that, following the doctrine enunciated in Terry v.
Ohio,[21] such stop and frisk search should have been limited to the patting of her outer garments in
order to determine whether she was armed or dangerous and therefore a threat to the security of the
aircraft.

For assigned error no. 4, SUSAN alleges that from the moment frisker Mylene felt a package at her
abdominal area, started inquiring about the contents thereof, detained her, and decided to submit her
to a strip search in the ladies room, she was under custodial investigation without counsel, which was
violative of Section 12, Article III of the Constitution.

For assigned errors nos. 5 and 6, SUSAN assails the propriety of the admission of the medical report
executed by Dr. Ma. Bernadette Arcena on the ground that it was neither testified on nor offered in
evidence.

Lastly, SUSAN questions the application of People v. Johnson[22] because of its sweeping statement
allowing searches and seizures of departing passengers in airports in view of the gravity of the safety
interests involved. She stresses that the pertinent case should have been Katz v. United States,[23] which
upholds the Fourth Amendment of the United States of America that protects people and not places.

In its Appellants Brief, the Office of the Solicitor General (OSG) declares that SUSAN was found flagrante
delicto in possession of a regulated drug without being authorized by law.Thus, the case falls squarely
within the exception, being a warrantless search incidental to a lawful arrest. Moreover, SUSAN
voluntarily submitted herself to the search and seizure when she allowed herself to be frisked and
brought to the comfort room for further inspection by airport security personnel. It likewise maintains
that the methamphetamine hydrochloride seized from SUSAN during the routine frisk at the airport was
acquired legitimately pursuant to airport security procedures.

Anent the admission of the medical certificate issued by Dr. Ma. Bernadette Arcena, the OSG argues that
SUSANs conviction was not solely based on the questioned document but also on the fact that she was
caught flagrante delicto in possession of a regulated drug without being authorized by
law. Consequently, it supports SUSANs conviction but recommends the reduction of the fine from P1
million to P100,000.

We affirm SUSANs conviction.


We do not agree that the warrantless search and subsequent seizure of the regulated drugs, as well as
the arrest of SUSAN, were violative of her constitutional rights.

Sections 2 and 3(2) of Article III of the 1987 Constitution 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 personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.

Sec. 3.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.

What constitutes a reasonable or unreasonable search in any particular case is a judicial question,
determinable from a consideration of the circumstances involved. The rule is that the Constitution bars
State intrusions to a person's body, personal effects or residence except if conducted by virtue of a valid
search warrant issued in compliance with the procedure outlined in the Constitution and reiterated in
the Rules of Court. [24]

The interdiction against warrantless searches and seizures is not absolute. The recognized exceptions
established by jurisprudence are (1) search of moving vehicles; (2) seizure in plain view; (3) customs
searches; (4) waiver or consented searches; (5) stop and frisk situations (Terry search); and (6) search
incidental to a lawful arrest.[25]

I. The search conducted on SUSAN was not incidental to a lawful arrest.

We do not agree with the trial court and the OSG that the search and seizure conducted in this case
were incidental to a lawful arrest. SUSANs arrest did not precede the search. When the metal detector
alarmed while SUSAN was passing through it, the lady frisker on duty forthwith made a pat down search
on the former. In the process, the latter felt a bulge on SUSANs abdomen. The strip search that followed
was for the purpose of ascertaining what were the packages concealed on SUSANs body. If ever at the
time SUSAN was deprived of her will and liberty, such restraint did not amount to an arrest. Under
Section 1 of Rule 113 of the Revised Rules of Criminal Procedure, as amended, arrest is the taking of a
person into custody in order that he may be bound to answer for the commission of an offense.

As pointed out by the appellant, prior to the strip search in the ladies room, the airport security
personnel had no knowledge yet of what were hidden on SUSANs body; hence, they did not know yet
whether a crime was being committed. It was only after the strip search upon the discovery by the
police officers of the white crystalline substances inside the packages, which they believed to be shabu,
that SUSAN was arrested. The search cannot, therefore, be said to have been done incidental to a lawful
arrest. In a search incidental to a lawful arrest, the law requires that there be first a lawful arrest before
a search can be made; the process cannot be reversed.[26]

II. The scope of a search pursuant to airport security procedure is not confined only to search for
weapons under the Terry search doctrine.
The Terry search or the stop and frisk situation refers to a case where a police officer approaches a
person who is acting suspiciously, for purposes of investigating possibly criminal behavior in line with
the general interest of effective crime prevention and detection. To assure himself that the person with
whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him,
he could validly conduct a carefully limited search of the outer clothing of such person to discover
weapons which might be used to assault him.[27]

In the present case, the search was made pursuant to routine airport security procedure, which is
allowed under Section 9 of Republic Act No. 6235 reading as follows:

SEC. 9. Every ticket issued to a passenger by the airline or air carrier concerned shall contain among
others the following condition printed thereon: Holder hereof and his hand-carried luggage(s) are
subject to search for , and seizure of, prohibited materials or substances. Holder refusing to be searched
shall not be allowed to board the aircraft, which shall constitute a part of the contract between the
passenger and the air carrier.

This constitutes another exception to the proscription against warrantless searches and seizures. As
admitted by SUSAN and shown in Annex D of her Brief, the afore-quoted provision is stated in the
Notice to All Passengers located at the final security checkpoint at the departure lounge. From the said
provision, it is clear that the search, unlike in the Terry search, is not limited to weapons. Passengers are
also subject to search for prohibited materials or substances.

In this case, after the metal detector alarmed SUSAN consented to be frisked, which resulted in the
discovery of packages on her body. It was too late in the day for her to refuse to be further searched
because the discovery of the packages whose contents felt like rice granules, coupled by her
apprehensiveness and her obviously false statement that the packages contained only money, aroused
the suspicion of the frisker that SUSAN was hiding something illegal. It must be repeated that R.A. No.
6235 authorizes search for prohibited materials or substances. To limit the action of the airport security
personnel to simply refusing her entry into the aircraft and sending her home (as suggested by
appellant), and thereby depriving them of the ability and facility to act accordingly, including to further
search without warrant, in light of such circumstances, would be to sanction impotence and ineffectivity
in law enforcement, to the detriment of society.[28] Thus, the strip search in the ladies room was justified
under the circumstances.

III. The ruling in People v. Johnson is applicable to the instant case.

The case of People v. Johnson, which involves similar facts and issues, finds application to the present
case. That case involves accused-appellant Leila Johnson, who was also a departing passenger bound for
the United States via Continental Airlines CS-912. Olivia Ramirez was then the frisker on duty, whose
task was to frisk departing passengers, employees and crew to check for weapons, bombs, prohibited
drugs, contraband goods and explosives. When Olivia frisked Leila, the former felt something hard on
the latters abdominal area. Upon inquiry, Leila explained that she needed to wear two panty girdles, as
she had just undergone an operation as a result of an ectopic pregnancy. Not satisfied with the
explanation, Olivia reported the matter to her superior, who then directed her to take Leila to the
nearest womens room for inspection. In the comfort room, Leila was asked to bring out the thing under
her girdle. She acceded and brought out three plastic packs which contained a total of 580.2 grams of
methamphetamine hydrochloride or shabu. This Court ruled that the packs of methamphetamine
hydrochloride seized during the routine frisk at the airport was acquired legitimately pursuant to airport
security procedures and are therefore admissible in evidence against Leila. Corollarily, her subsequent
arrest, although likewise without warrant, was justified, since it was effected upon the discovery and
recovery of shabu in her person flagrante delicto. The Court held in this wise:

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. 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. 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.

SUSANs reliance on Katz v. U.S.[29] is misplaced. The facts and circumstances of that case are entirely
different from the case at bar. In that case, the accused was convicted in the United States District Court
for the Southern District of California of transmitting wagering information by telephone. During the
trial, the government was permitted, over the accuseds objection, to introduce evidence of accuseds
end of telephone conversations, which was overheard by FBI agents who had attached an electronic
listening and recording device to the outside of the public telephone booth from which he placed his
calls. The Court of Appeals for the Ninth Circuit affirmed the conviction. On certiorari, however, the
Supreme Court of the United States of America reversed the decision, ruling that antecedent judicial
authorization, which was not given in the instant case, was a constitutional precondition of the kind of
electronic surveillance involved. It ruled that what a person knowingly exposes to the public, even in his
own house or office, is not a subject the Fourth Amendment protection, but what he seeks to preserve
as private, even in an area accessible to the public, may be constitutionally protected.

The maxim stare decisis et non quieta movere invokes adherence to precedents and mandates not to
unsettle things which are established. When the court has once laid down a principle of law as
applicable to a certain state of facts, it must adhere to that principle and apply it to all future cases
where the facts are substantially the same.[30] There being a disparity in the factual milieu of Katz v.
U.S. and the instant case, we cannot apply to this case the ruling in Katz.

IV. The appellant, having been caught flagrante delicto, was lawfully arrested without a warrant.

Section 5, Rule 113 of the Rules of Court, as amended, 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 just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and

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

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

The present case falls under paragraph (a) of the afore-quoted Section. The search conducted on SUSAN
resulted in the discovery and recovery of three packages containing white crystalline substances, which
upon examination yielded positive results for methamphetamine hydrochloride or shabu. As discussed
earlier, such warrantless search and seizure were legal.Armed with the knowledge that SUSAN was
committing a crime, the airport security personnel and police authorities were duty-bound to arrest
her. As held in People v. Johnson, her subsequent arrest without a warrant was justified, since it was
effected upon the discovery and recovery of shabu in her person flagrante delicto.

V. The constitutional right to counsel afforded an accused under custodial investigation was not violated.

Entrenched is the rule that the rights provided in Section 12, Article III of the Constitution may be
invoked only when a person is under custodial investigation or is in custody interrogation.[31] Custodial
investigation refers to the questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any significant way.[32] This
presupposes that he is suspected of having committed a crime and that the investigator is trying to elicit
information or a confession from him.[33] And the right to counsel attaches upon the start of such
investigation.[34] The objective is to prohibit incommunicado interrogation of individuals in a police-
dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional
rights.[35]

In this case, as testified to by the lone witness for the defense, SPO2 Jerome Cause, no custodial
investigation was conducted after SUSANs arrest. She affixed her signature to the receipt of the articles
seized from her, but before she did so, she was told that she had the option to sign or not to sign it. In
any event, her signature to the packages was not relied upon by the prosecution to prove its
case. Moreover, no statement was taken from her during her detention and used in evidence against
her.[36] Hence, her claim of violation of her right to counsel has no leg to stand on.

VI. The admission of the medical report was erroneous.

SUSAN assails, on the ground of violation of the hearsay rule, the admission of the medical report on the
physical and medical examination conducted upon appellants request, which contained the following:

On subsequent examinations, she was seen behaved and cooperative. She related that she was an
illegitimate daughter, married, but divorced in 1995. She verbalized, I gamble like an addict. I gambled
since I was young and I lost control of myself when I played cards. When I lost control, I want my money
back. I owe other people lots of money. I lost all the cash of my husband. This is the first time I carried
shabu. I need the money. She denied having any morbid thoughts and perceptual disturbances.
(Emphasis supplied).

This argument is meritorious. The admission of the questioned document was erroneous because it was
not properly identified. Nevertheless, even without the medical report, appellants conviction will stand,
as the courts finding of guilt was not based on that document.

VII. SUSANs conviction and the penalty imposed on her are correct.

Having found the warrantless search and seizure conducted in this case to be valid, we do not hesitate
to rule that that the three packages of shabu recovered from SUSAN are admissible in evidence against
her. Supported by this evidence and the testimonies of the prosecution witnesses, her conviction must
inevitably be sustained.

Sections 16 and 20 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as
amended, 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.

SEC. 20. Application of Penalties, confiscation and Forfeiture of the Proceeds or Instruments 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 [are] in any of the following
quantities:

3. 200 grams or more of shabu or methylamphetamine hydrochloride.

There being no aggravating nor mitigating circumstance, the proper penalty is reclusion
perpetua pursuant to Article 63(2) of the Revised Penal Code.

As regards the fine, courts may fix any amount within the limits established by law. For possession of
regulated drugs, the law fixes the range of the fine from P500,000 to P10 million. In view of the net
weight of methamphetamine hydrochloride found in the possession of SUSAN, the trial courts
imposition of fine in the amount of P1 million is well within the range prescribed by law.

VIII. The other items seized from the appellant should be returned to her.

Section 3 of Rule 126 of the Revised Rules of Criminal Procedure authorizes the confiscation of the
following:

SEC. 3. Personal property to be seized. A search warrant may be issued for the search and seizure of
personal property:

(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds, or fruits of the offense; or

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


Clearly, the seizure of SUSANs passport, plane tickets, and girdles exceeded the limits of the afore-
quoted provision. They, therefore, have to be returned to her.[37]

IN VIEW OF ALL THE FOREGOING, the judgment of the Regional Trial Court of Pasay City, Branch 110, in
Criminal Case No. 98-0189 finding appellant SUSAN CANTON guilty beyond reasonable doubt of the
violation of Section 16, Article III of the Dangerous Act of 1972 (Republic Act No. 6425), as amended, and
sentencing her to suffer the penalty of reclusion perpetua and to pay a fine of One Million Pesos
(P1,000,000) and the costs is hereby AFFIRMED. The appellants passport, plane tickets, and girdles are
hereby ordered to be returned to her.

Costs de oficio.

SO ORDERED.

Vitug, Ynares-Santiago, Carpio, and Azcuna, JJ., concur.


THIRD DIVISION

[G.R. No. 99050. September 2, 1992.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CONWAY B. OMAWENG, Accused-Appellant.

The Solicitor General for Plaintiff-Appellee.

Joel C. Obar for Accused-Appellant.

SYLLABUS

1. CRIMINAL LAW; DANGEROUS DRUG ACT; ILLEGAL POSSESSION OF PROHIBITED DRUGS; PROOF OF
OWNERSHIP THEREOF BY THE ACCUSED NOT REQUIRED. — The accused contends that the prosecution
failed to prove that he is the owner of the marijuana found inside the travelling bag which he had in his
vehicle, a Ford Fiera Proof of ownership is immaterial. Accused was prosecuted for the dispatching in
transit or transporting of prohibited drugs pursuant to Section 4, Article II of R.A. No. 6425, as amended.
This section does not require that for one to be liable for participating in any of the proscribed
transactions enumerated therein, he must be the owner of the prohibited drug. This section penalizes
the pusher, who need not be the owner of the prohibited drug. The law defines pusher as "any person
who sells, administers, delivers, or gives away to another, on any terms whatsoever, or distributes,
dispatches in transit or transports any dangerous drug or who acts as a broker in any of such
transactions, in violation of this Act. [Section 2 (m), R.A. No. 6425, as amended.] In People v. Alfonso,
[186 SCRA (1990)] where the accused was charged with the unlawful transportation of marijuana under
the aforesaid Section 4, this Court ruled that ownership is not a basic issue.

2. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE COMBINATION THEREOF; WARRANTS A


CONVICTION BEYOND REASONABLE DOUBT. — The facts, as proven by the prosecution, establish
beyond cavil that the accused was caught in the act of transporting the prohibited drug or, in other
words, in flagrante delicto. That he knew fully well what he was doing is shown beyond moral certainty
by the following circumstances: (a) the prohibited drug was found in a travelling bag, (b) he is the owner
of the said bag, (c) he concealed the bag behind a spare tire, (d) he was travelling alone, and (e) the Ford
Fiera in which he loaded the bag was under his absolute control, pursuant to Section 4, Rule 133 of the
Rules of Court (on circumstantial evidence), the combination of all these circumstances is such as to
produce a conviction beyond reasonable doubt. Such circumstances, unrebutted by strong and
convincing evidence by the accused, even gave rise to the presumption that he is the owner of the
prohibited drug. [Section 3(j), Rule 131, Rules of Court.]

3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCH & SEIZURE; WHEN
DEEMED WAIVED. — Accused was not subjected to any search which may be stigmatized as a violation
of his Constitutional right against unreasonable searches and seizures. [Section 2, Article III, 1987
Constitution.] If one had been made, this Court would be the first to condemn it "as the protection of
the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of
the Court." [Rodriguez v. Villamiel, 65 Phil. 230 (1937).] He willingly gave prior consent to the search and
voluntarily agreed to have it conducted on his vehicle and travelling bag. Thus, the accused waived his
right against unreasonable searches and seizures As this Court stated in People v. Malasugui: (63 Phil.
221, 226 [1936]. See also Vda. de Garcia v. Locsin, 65 Phil. 689 [1938]; People v. Donato, 198 SCRA 130
[1991]; People v. Rodrigueza, 205 SCRA 791 [1992].)." . . When one voluntarily submits to a search or
consents to have it made of (sic) his person or premises, he is precluded from later complaining thereof
(Cooley, Constitutional Limitations, 8th ed., vol. I, page 631.) The right to be secure from unreasonable
search may, like every right, be waived and such waiver may be made either expressly or impliedly."
Since in the course of the valid search forty-one (41) packages of drugs were found, it behooved the
officers to seize the same; no warrant was necessary for such seizure. Besides, when said packages were
identified by the prosecution witnesses and later on formally offered in evidence, the accused did not
raise any objection whatsoever.

DECISION

DAVIDE, JR., J.:

Accused Conway B. Omaweng was originally indicted for the violation of Section 4, Article II of Republic
Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, in a criminal
complaint filed with the Municipal Trial Court of Bontoc, Mountain Province on 12 September 1988. 1
Upon his failure to submit counter-affidavits despite the granting of an extension of time to do so, the
court declared that he had waived his right to a preliminary investigation and, finding probable cause
against the accused, ordered the elevation of the case to the proper court. 2

On 14 November 1988, the Office of the Provincial Fiscal of Mountain Province filed an Information
charging the accused with the violation of Section 47 Article II of the Dangerous Drugs Act of 1972, as
amended. The accusatory portion thereof reads:chanrobles virtual lawlibrary

"That on or about September 12, 1988, at Dantay, Bontoc, Mountain Province, and within the
jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did
then and there willfully, unlawfully and feloniously dispatch in transit or transport in a Ford Fiera, owned
and driven by him, 10 1/4 kilos of processed marijuana in powder form contained in al plastic bags of
different sizes which were placed in a travelling bag destained (sic) and intended for delivery, disposition
and sale in Sagada, Mountain Province, with full knowledge that said processed marijuana is (sic)
prohibited drug or from which (sic) prohibited drug maybe manufactured.
CONTRARY TO LAW." 3

The case was docketed as Criminal Case No. 713.

After his motion for reinvestigation was denied by the Provincial Fiscal, 4 the accused entered a plea of
not guilty during his arraignment on 20 June 1989.

During the trial on the merits, the prosecution presented four (4) witnesses. The accused did not present
any evidence other than portions of the Joint Clarificatory Sworn Statement, dated 23 December 1988,
of prosecution witnesses Joseph Layong and David Fomocod.

On 21 March 1991, the trial court promulgated its Judgment 5 convicting the accused of the crime of
transporting prohibited drugs penalized under Section 4, Article II of R.A. No. 6425, as amended. The
dispositive portion of the decision reads:jgc:chanrobles.com.ph

"WHEREFORE, judgment is hereby rendered imposing upon the accused herein the penalty of life
imprisonment and a fine of Twenty Five Thousand Pesos.

Pursuant to Sec. 20, Art. IV of the aforecited special law, the drugs subject of the crime are ordered
confiscated and forfeited in favor of the Government. Accordingly, it is further directed that such drugs
so confiscated and forfeited be destroyed without delay per existing rules and regulations on the
matter.chanrobles lawlibrary : rednad

Costs against the accused.

SO ORDERED." 6

Hence, this appeal.

In the Appellant’s Brief, Accused imputes upon the trial court the commission of the following errors.

"I

. . . IN CONVICTING THE ACCUSED DESPITE INSUFFICIENCY OF EVIDENCE TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.

II

. . . IN NOT CONSIDERING THE JOINT CLARIFICATORY STATEMENT OF THE ARRESTING OFFICERS TO THE
EFFECT THAT THE ACCUSED IS NOT THE OWNER OF THE PROHIBITED DRUG SUBJECT OF THIS CASE.

III
. . . IN NOT RULING THAT THE CONTRABAND SUBJECT OF THE INSTANT CASE IS INADMISSIBLE IN
EVIDENCE FOR HAVING BEEN OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHT OF THE
ACCUSED AGAINST UNREASONABLE SEARCH (sic) AND SEIZURE." 7

The appeal is without merit. The decision appealed from must be upheld.

After a careful review and evaluation of the evidence, We find to have been fully proven the following
facts as summarized by the Solicitor General in the Brief for the Appellee. 8

"In the morning of September 12, 1988, Joseph Layong, a PC constable with the Mt. Province PC
Command at Bontoc, Mt. Province proceeded with other PC soldiers to Barrio Dantay, Bontoc and, per
instruction of their officer, Capt. Eugene Martin, put up a checkpoint at the junction of the roads, one
going to Sagada and the other to Bontoc (TSN, November 9, 1989, pp. 3-4). They stopped and checked
all vehicles that went through the checkpoint (TSN, April 5, 1990, p. 12).

At about 9:15 A.M., Layong and his teammate, Constable David Osborne Famocod (sic), saw and flagged
down a cream-colored Ford Fiera bearing Plate No. ABT-634 coming from the Bontoc Poblacion and
headed towards Baguio (TSN, November 9, 1989, pp. 4-5, 8). The vehicle was driven by appellant and
had no passengers (TSN, November 9, 1989, pp. 4-5).

Layong and his companions asked permission to inspect the vehicle and appellant acceded to the
request. (TSN, November 9, 1989, pp. 4-5). When they peered into the rear of the vehicle, they saw a
travelling bag which was partially covered by the rim of a spare tire under the passenger seat on the
right side of the vehicle (TSN, November 9, 1989, pp. 6, 10, 11).chanrobles.com:cralaw:red

Layong and his companions asked permission to see the contents of the bag (TSN, November 9, 1989, p.
6). Appellant consented to the request but told them that it only contained some clothes (TSN,
November 9, 1989, p. 6). When Layong opened the bag, he found that it contained forty-one (41) plastic
packets of different sizes containing pulverized substances (TSN, November 9, 1989, pp. 7, 9).

Layong gave a packet to his team leader, constable David Osborne Fomocod, who, after sniffing the stuff
concluded that it was marijuana (TSN, November 9, 1989, p. 16).

The PC constables, together with appellant, boarded the latter’s Ford Fiera and proceeded to the Bontoc
poblacion to report the incident to the PC Headquarters (TSN, November 9, 1989, pp. 7-8) The
prohibited drugs were surrendered to the evidence custodian, Sgt. Angel Pokling (TSN, November 9,
1989, pp. 7-8).

Major Carlos Figueroa, a PC Forensic Chemist at Camp Dangwa, La Trinidad, Benguet, who has
conducted more than 2500 professional examinations of marijuana, shabu and cocaine samples,
conducted two chemistry examinations of the substance contained in the plastic packets taken from
appellant and found them to be positive for hashish or marijuana (TSN, October 24, 1990, pp. 3, 5-81)."
9

Anent the first assigned error, the accused contends that the prosecution failed to prove that he is the
owner of the marijuana found inside the travelling bag which he had in his vehicle, a Ford Fiera Proof of
ownership is immaterial. Accused was prosecuted for the dispatching in transit or transporting of
prohibited drugs pursuant to Section 4, Article II of R.A. No. 6425, as amended. This section does not
require that for one to be liable for participating in any of the proscribed transactions enumerated
therein, he must be the owner of the prohibited drug. It simply reads:jgc:chanrobles.com.ph

"SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. — The
penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos
shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give
away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker
in any of such transactions. If the victim of the offense is a minor, or should a prohibited drug involved in
any offense under this Section be the proximate cause of the death of a victim thereof, the maximum
penalty herein provided shall be imposed."cralaw virtua1aw library

This section penalizes the pusher, who need not be the owner of the prohibited drug. The law defines
pusher as "any person who sells, administers, delivers, or gives away to another, on any terms
whatsoever, or distributes, dispatches in transit or transports any dangerous drug or who acts as a
broker in any of such transactions, in violation of this Act. 10

In People v. Alfonso, 11 where the accused was charged with the unlawful transportation of marijuana
under the aforesaid Section 4, this Court ruled that ownership is not a basic issue.cralawnad

The facts, as proven by the prosecution, establish beyond cavil that the accused was caught in the act of
transporting the prohibited drug or, in other words, in flagrante delicto. That he knew fully well what he
was doing is shown beyond moral certainty by the following circumstances: (a) the prohibited drug was
found in a travelling bag, (b) he is the owner of the said bag, (c) he concealed the bag behind a spare
tire, (d) he was travelling alone, and (e) the Ford Fiera in which he loaded the bag was under his
absolute control, pursuant to Section 4, Rule 133 of the Rules of Court (on circumstantial evidence), the
combination of all these circumstances is such as to produce a conviction beyond reasonable doubt.
Such circumstances, unrebutted by strong and convincing evidence by the accused, even gave rise to the
presumption that he is the owner of the prohibited drug. 12

The second assigned error is devoid of merit. The declaration in the joint clarificatory sworn statement
executed by the apprehending officers, that the marijuana subject of the case was surreptitiously placed
by an unknown person in the bag of the accused, is not supported by evidence. Said sworn statement
cannot be used as a basis for exoneration because the very same officers who signed the same
reiterated on the witness stand their statements in their original affidavit implicating the accused, both
the criminal complaint before the Municipal Trial Court of Lontoc and the information in this case were
based on this original affidavit. No probative value could be assigned to it not only because it was
procured by the defense under questionable circumstances, but also because the affiants therein merely
expressed their personal opinion. The trial court’s correct exposition on this point, to which nothing
more may be added, deserves to be quoted, thus:jgc:chanrobles.com.ph

"From the portions of the ‘Joint Clarificatory Sworn Statement- of prosecution witnesses Layong and
Fomocod cited (Exhs. "I" to "I-C" ; p 155, Record), the defense would want this Court to draw the
inference that the accused Conway Omaweng is innocent as confirmed by no less than the persons who
apprehended the suspect in flagranti (sic). In other words, that the said accused is not the owner of the
contraband confiscated but someone else; that to (sic) mysterious individual placed the prohibited
articles inside the travelling bag of the accused without the knowledge and consent of the latter; and
that the identity of this shadowy third person is known by the PC/INP investigators. The isolated
declarations, albeit under oath are much too asinine to be true and do not affect the credibilities of the
witnesses — affiants and the truth of their affirmations on the stand. As gleaned from parts of the
record of the reinvestigation of this case conducted by the Provincial Fiscal (Exhs "G" and "D" ; pp. 158
and 161, Record), it appears that Layong and Fomocod were prevailed upon to affix their signatures to
(sic) the document styled as ‘Joint Clarificatory Sworn Statement’ by interested persons in a vain ploy to
extricate the accused from the morass he got himself into. Testifying in open court, the same witnesses
maintained the tenor of their original affidavit supporting the filing of the criminal complaint in the
lower court (Exh. "C" ; p. 2, Record) No additional information was elicited from said witnesses during
their examination from which it can reasonably be deduced that a third person instead of the accused is
the culprit and that the suspect is being framed-up for a crime he did not commit. Nonetheless, granting
arguendo that the declarations of Layong and Fomocod now the bone of contention, are on the level,
the same are but mere opinions and conclusions without bases. Any which way, to believe that any
person in his right mind owning several kilos of hot hashish worth tens of thousands of pesos would
simply stash it away in the travelling bag of someone he has no previous agreement with is a mockery of
common sense. And to think further that the PC/INP agents know of such fact yet they kept the vital
information under ‘confidential Status’ (whatever that means in police parlance) while an innocent
person is being prosecuted and practically in the shadow of the gallows for the offense would be
stretching human credulity to the snapping point. By and large, the fact remains as the circumstances
logically indicate that the accused Conway Omaweng has knowledge of the existence of the contraband
inside his vehicle and he was caught red-handed transporting the hot stuff." 13

The third assignment of error hardly deserves any consideration Accused was not subjected to any
search which may be stigmatized as a violation of his Constitutional right against unreasonable searches
and seizures. 14 If one had been made, this Court would be the first to condemn it "as the protection of
the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of
the Court." 15 He willingly gave prior consent to the search and voluntarily agreed to have it conducted
on his vehicle and travelling bag. Prosecution witness Joseph Layong testified thus:chanrobles lawlibrary
: rednad

"PROSECUTOR AYOCHOK:chanrob1es virtual 1aw library

Q When you and David Fomocod saw the travelling bag, what did you do?

A When we saw that travelling bag, we asked the driver if we could see the contents.
Q And what did or what was the reply of the driver, if there was any?

A He said ‘you can see the contents but those are only clothings (sic).’

Q When he said that, what did you do?

A We asked him if we could open and see it.

Q When you said that, what did he tell you?

A He said you can see it.

Q And when he said ‘you can see and open it,’ what did you do?

A When I went inside and opened the bag, I saw that it was not clothings (sic) that was contained in the
bag.

Q And when you saw that it was not clothings (sic), what did you do?

A When I saw that the contents were not clothes, I took some of the contents and showed it to my
companion Fomocod and when Fomocod smelled it, he said it was marijuana." 16

This testimony was not dented on cross-examination or rebutted by the accused for he chose not to
testify on his own behalf.

Thus, the accused waived his right against unreasonable searches and seizures As this Court stated in
People v. Malasugui: 17

". . . When one voluntarily submits to a search or consents to have it made of (sic) his person or
premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th ed.,
vol. I, page 631.) The right to be secure from unreasonable search may, like every right, be waived and
such waiver may be made either expressly or impliedly."cralaw virtua1aw library

Since in the course of the valid search forty-one (41) packages of drugs were found, it behooved the
officers to seize the same; no warrant was necessary for such seizure. Besides, when said packages were
identified by the prosecution witnesses and later on formally offered in evidence, the accused did not
raise any objection whatsoever. Thus, in the accused’s Comments And/Or Objections To Offer of
Evidence, 18 We merely find the following:chanrobles law library

"EXHIBIT COMMENTS AND/OR OBJECTIONS

"A" The bag was not positively identified to be

the same bag allegedly found inside the


vehicle driven by the accused. The

arresting officers failed to show any

identifying marks; thug, said bag is an

irrelevant evidence not admissible in court;

"A-1" to "A-40" Objected to also as irrelevant as the 40

bags now being offered are not the same

bags alleged in the information which is 41

bags. The prosecution failed to proved (sic)

beyond reasonable doubt that Exhibit "A-1"

to "A-40" are the same bags allegedly taken

from inside Exhibit "A" because what is

supposed to be inside the bag are 41 bags

and not 40 bags."cralaw virtua1aw library

x x x

WHEREFORE, the decision of Branch 36 of the Regional Trial t of Bontoc, Mountain Province of 21 March
1991 in Criminal Case No. 713 finding the accused CONWAY B. OMAWENG guilty beyond reasonable
doubt of the crime charged, is hereby AFFIRMED.

Costs against the accused.

SO ORDERED.
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.

xxxxxxxxx

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.

xxxxxxxxx

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
accused-appellant 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.

xxxxxxxxx

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.

xxxxxxxxx
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.

xxxxxxxxx

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.

xxxxxxxxx

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

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 accused-appellant 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 stop-and-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
accused-appellants 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.

Davide, Jr., C.J., (Chairman), Vitug, Carpio and Azcuna. JJ., concur.
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:

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.

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

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

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

A That person seems like he is high on drug.

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

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

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


A He was roaming around, sir.

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

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

Q How did you introduce yourselves?

A In a polite manner, sir.

Q What did you say when you introduced yourselves?

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

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

A He tried to resist, sir.

Q When he tried to resist, what did you do?

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

Q What was the answer of the person upon your request?

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

xxx xxx xxx

Q What was he holding?

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

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 life-
imprisonment; 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.

Narvasa, C.J., (Chairman), Romero, Melo, and Francisco, JJ., concur.


G.R. No. 91107 June 19, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
MIKAEL MALMSTEDT, *defendant-appellant.

The Solicitor General for plaintiff-appellee.


Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendant-appellant.

PADILLA, J.:

In an information dated 15 June 1989, accused-appellant Mikael Malmstedt (hereinafter referred to as


the accused) was charged before the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 10, in
Criminal Case No. 89-CR-0663, for violation of Section 4, Art. II of Republic Act 6425, as amended,
otherwise known as the Dangerous Drugs Act of 1972, as amended. The factual background of the case
is as follows:

Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in December
1988 as a tourist. He had visited the country sometime in 1982 and 1985.

In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in the morning of the
following day, he took a bus to Sagada and stayed in that place for two (2) days.

At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus stop in
Sagada to catch the first available trip to Baguio City. From Baguio City, accused planned to take a late
afternoon trip to Angeles City, then proceed to Manila to catch his flight out of the country, scheduled
on 13 May 1989. From Sagada, accused took a Skyline bus with body number 8005 and Plate number
AVC 902.1

At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen Vasco, the
Commanding Officer of the First Regional Command (NARCOM) stationed at Camp Dangwa, ordered his
men to set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain Province, for the
purpose of checking all vehicles coming from the Cordillera Region. The order to establish a checkpoint
in the said area was prompted by persistent reports that vehicles coming from Sagada were transporting
marijuana and other prohibited drugs. Moreover, information was received by the Commanding Officer
of NARCOM, that same morning, that a Caucasian coming from Sagada had in his possession prohibited
drugs.2

The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station, set up a
checkpoint at the designated area at about 10:00 o'clock in the morning and inspected all vehicles
coming from the Cordillera Region.

At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped. Sgt. Fider and
CIC Galutan boarded the bus and announced that they were members of the NARCOM and that they
would conduct an inspection. The two (2) NARCOM officers started their inspection from the front going
towards the rear of the bus. Accused who was the sole foreigner riding the bus was seated at the rear
thereof.

During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on accused's
waist to be a gun, the officer asked for accused's passport and other identification papers. When
accused failed to comply, the officer required him to bring out whatever it was that was bulging on his
waist. The bulging object turned out to be a pouch bag and when accused opened the same bag, as
ordered, the officer noticed four (4) suspicious-looking objects wrapped in brown packing tape,
prompting the officer to open one of the wrapped objects. The wrapped objects turned out to contain
hashish, a derivative of marijuana.

Thereafter, accused was invited outside the bus for questioning. But before he alighted from the bus,
accused stopped to get two (2) travelling bags from the luggage carrier.

Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was found in
each bag. Feeling the teddy bears, the officer noticed that there were bulges inside the same which did
not feel like foam stuffing. It was only after the officers had opened the bags that accused finally
presented his passport.

Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad, Benguet
for further investigation. At the investigation room, the officers opened the teddy bears and they were
found to also contain hashish. Representative samples were taken from the hashish found among the
personal effects of accused and the same were brought to the PC Crime Laboratory for chemical
analysis.

In the chemistry report, it was established that the objects examined were hashish. a prohibited drug
which is a derivative of marijuana. Thus, an information was filed against accused for violation of the
Dangerous Drugs Act.

During the arraignment, accused entered a plea of "not guilty." For his defense, he raised the issue of
illegal search of his personal effects. He also claimed that the hashish was planted by the NARCOM
officers in his pouch bag and that the two (2) travelling bags were not owned by him, but were merely
entrusted to him by an Australian couple whom he met in Sagada. He further claimed that the Australian
couple intended to take the same bus with him but because there were no more seats available in said
bus, they decided to take the next ride and asked accused to take charge of the bags, and that they
would meet each other at the Dangwa Station.

Likewise, accused alleged that when the NARCOM officers demanded for his passport and other
Identification papers, he handed to one of the officers his pouch bag which was hanging on his neck
containing, among others, his passport, return ticket to Sweden and other papers. The officer in turn
handed it to his companion who brought the bag outside the bus. When said officer came back, he
charged the accused that there was hashish in the bag. He was told to get off the bus and his picture
was taken with the pouch bag placed around his neck. The trial court did not give credence to accused's
defense.

The claim of the accused that the hashish was planted by the NARCOM officers, was belied by his failure
to raise such defense at the earliest opportunity. When accused was investigated at the Provincial
Fiscal's Office, he did not inform the Fiscal or his lawyer that the hashish was planted by the NARCOM
officers in his bag. It was only two (2) months after said investigation when he told his lawyer about said
claim, denying ownership of the two (2) travelling bags as well as having hashish in his pouch bag.

In a decision dated 12 October 1989, the trial court found accused guilty beyond reasonable doubt for
violation of the Dangerous Drugs Act, specifically Section 4, Art. II of RA 6425, as amended.3 The
dispositive portion of the decision reads as follows:

WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond reasonable doubt,
this Court finds him GUILTY of violation of Section 4, Article 11 of Republic Act 6425, as amended, and
hereby sentences him to suffer the penalty of life imprisonment and to pay a fine of Twenty Thousand
Pesos (P20,000.00), with subsidiary imprisonment in case of insolvency and to pay the costs.

Let the hashish subject of this case be turned over to the First Narcotics Regional Unit at Camp Bado;
Dangwa, La Trinidad Benguet for proper disposition under Section 20, Article IV of Republic Act 6425, as
amended.

SO ORDERED.4

Seeking the reversal of the decision of the trial court finding him guilty of the crime charged, accused
argues that the search of his personal effects was illegal because it was made without a search warrant
and, therefore, the prohibited drugs which were discovered during the illegal search are not admissible
as evidence against him.

The Constitution guarantees the right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures.5 However, where the search is made pursuant to a
lawful arrest, there is no need to obtain a search warrant. A lawful arrest without a warrant may be
made by a peace officer or a private person under the following circumstances.6

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

(a) When, in his presence, the person to be arrested has committed is actually committing, or is
attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating
that the person to be arrested has committed it; and

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

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance
with Rule 112, Section 7. (6a 17a).

Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was actually
being committed by the accused and he was caught in flagrante delicto. Thus, the search made upon his
personal effects falls squarely under paragraph (1) of the foregoing provisions of law, which allow a
warrantless search incident to a lawful arrest.7
While it is true that the NARCOM officers were not armed with a search warrant when the search was
made over the personal effects of accused, however, under the circumstances of the case, there was
sufficient probable cause for said officers to believe that accused was then and there committing a
crime.

Probable cause has been defined as such facts and circumstances which could lead a reasonable,
discreet and prudent man to believe that an offense has been committed, and that the objects sought in
connection with the offense are in the place sought to be searched.8 The required probable cause that
will justify a warrantless search and seizure is not determined by any fixed formula but is resolved
according to the facts of each case.9

Warrantless search of the personal effects of an accused has been declared by this Court as valid,
because of existence of probable cause, where the smell of marijuana emanated from a plastic bag
owned by the accused,10 or where the accused was acting suspiciously,11 and attempted to flee.12

Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were
transporting marijuana and other prohibited drugs, their Commanding Officer also received information
that a Caucasian coming from Sagada on that particular day had prohibited drugs in his possession. Said
information was received by the Commanding Officer of NARCOM the very same morning that accused
came down by bus from Sagada on his way to Baguio City.

When NARCOM received the information, a few hours before the apprehension of herein accused, that
a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there was no
time to obtain a search warrant. In the Tangliben case,13 the police authorities conducted a surveillance
at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando Pampanga, against persons
engaged in the traffic of dangerous drugs, based on information supplied by some informers. Accused
Tangliben who was acting suspiciously and pointed out by an informer was apprehended and searched
by the police authorities. It was held that when faced with on-the-spot information, the police officers
had to act quickly and there was no time to secure a search warrant.

It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus
(where accused was riding) and the passengers therein, and no extensive search was initially made. It
was only when one of the officers noticed a bulge on the waist of accused, during the course of the
inspection, that accused was required to present his passport. The failure of accused to present his
identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that
accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has nothing
to hide from the authorities, to readily present his identification papers when required to do so?

The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in his
possession, plus the suspicious failure of the accused to produce his passport, taken together as a
whole, led the NARCOM officers to reasonably believe that the accused was trying to hide something
illegal from the authorities. From these circumstances arose a probable cause which justified the
warrantless search that was made on the personal effects of the accused. In other words, the acts of the
NARCOM officers in requiring the accused to open his pouch bag and in opening one of the wrapped
objects found inside said bag (which was discovered to contain hashish) as well as the two (2) travelling
bags containing two (2) teddy bears with hashish stuffed inside them, were prompted by accused's own
attempt to hide his identity by refusing to present his passport, and by the information received by the
NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive the
NARCOM agents of the ability and facility to act accordingly, including, to search even without warrant,
in the light of such circumstances, would be to sanction impotence and ineffectiveness in law
enforcement, to the detriment of society.

WHEREFORE, premises considered, the appealed judgment of conviction by the trial court is hereby
AFFIRMED. Costs against the accused-appellant.

SO ORDERED.

Melencio-Herrera, Paras, Feliciano, Bidin, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.
Sarmiento, J., is on leave.

Separate Opinions

NARVASA, J., concurring and dissenting:

The ancient tradition that a man's home is his castle, safe from intrusion even by the king, has not only
found its niche in all our charters, from 1935 to the present; it has also received unvarying recognition
and acceptance in our case law.1 The present Constitution2 declares that —

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose, shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched, and the persons or things to be seized.

It further ordains that any evidence obtained in violation of said right, among others, "shall be
inadmissible for any purpose in any proceeding."3

The rule is that no person may be subjected by the police or other government authority to a search of
his body, or his personal effects or belongings, or his residence except by virtue of a search warrant or
on the occasion of a legitimate arrest.4

An arrest is legitimate, of course, if effected by virtue of a warrant of arrest. Even without a warrant, an
arrest may also be lawfully made by a peace officer or a private person:5

(a) when, in his presence, the person to be arrested has committed is actually committing, or is
attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating
that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance
with Rule 112, Section 7.

In any of these instances of a lawful arrest, the person 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."6 And it has been held that the search may extend to the area "within his immediate
control," i.e., the area from which said person arrested might gain possession of a weapon or
destructible evidence.7

Apart from "search incidental to an arrest," a warrantless search has also been held to be proper in
cases of "search of a moving vehicle,8 and "seizure of evidence in plain view."9 This was the
pronouncement in Manipon, Jr. v. Sandiganbayan, 143 SCRA 267, 276, which drew attention to Moreno
v. Ago Chi;10 Alvero v. Dizon,11 Papa v. Mago,12 and an American precedent, Harris v. U.S.13

If, on the other, a person is searched without a warrant, or under circumstances other than those
justifying an arrest without warrant in accordance with law, supra, merely on suspicion that he is
engaged in some felonious enterprise, and in order to discover if he has indeed committed a crime, it is
not only the arrest which is illegal but also, the search on the occasion thereof, as being "the fruit of the
poisonous tree.14 In that event, any evidence taken, even if confirmatory of the initial suspicion, is
inadmissible "for any purpose in any proceeding."15 But the right against an unreasonable search and
seizure may be waived by the person arrested, provided he knew of such right and knowingly decided
not to invoke it.16

There is unanimity among the members of the Court upon the continuing validity of these established
principles. However, the Court is divided as regards the ultimate conclusions which may properly be
derived from the proven facts and consequently, the manner in which the principles just cited should
apply thereto.

The proofs of the prosecution and those of the defense are diametrically at odds. What is certain,
however, is that the soldiers had no warrant of arrest when they conducted a search of Malmstedt's
person and the things in his possession at the time. Indeed, the Court a quo acknowledged that the
soldiers could "not be expected to be armed with a warrant or arrest nor a search warrant everytime
they establish a temporary checkpoint . . . (and) no judge would issue them one considering that
searching questions have to be asked before a warrant could be issued." Equally plain is that prior to the
search, a warrantless arrest of Malmstedt could not validly have been in accordance with the norms of
the law. For Malmstedt had not committed, nor was he actually committing or attempting to commit a
crime, in the soldiers' presence, nor did said soldiers have personal and competent knowledge that
Malmstedt had in fact just committed a crime. All they had was a suspicion that Malmstedt might have
some prohibited drug on him or in his bags; all they had was, in the words of the Trial Court, "the hope
of intercepting any dangerous drug being transported," or, as the Office of the Solicitor General asserts,
"information that most of the buses coming . . . (from the Cordillera) were transporting marijuana and
other prohibited drugs."

This case, is remarkably similar to Peo. v. Aminnudin, decided on July 6, 1988 also by the First
Division.17 There, Aminnudin was arrested without a warrant by PC officers as he was disembarking from
an inter-island vessel. The officers were waiting for him because he was, according to an informer's
report, then transporting marijuana. The search of Aminnudin's bag confirmed the informer's report;
the bag indeed contained marijuana. The Court nevertheless held that since the PC officers had failed to
procure a search warrant although they had sufficient time (two days) to do so and therefore, the case
presented no such urgency as to justify a warrantless search, the search of Aminnudin's person and bag,
the seizure of the marijuana and his subsequent arrest were illegal; and the marijuana was inadmissible
in evidence in the criminal action subsequently instituted against Aminnudin for violating the Dangerous
Drugs Act.

There are, on the other hand, other cases adjudicated by this Court in which apparently different
conclusions were reached. It is needful to devote a few words to them so that the relevant
constitutional and legal propositions are not misunderstood.

In People v. Claudio (decision promulgated on April 15, 1988),18 the accused boarded a "Victory Liner"
passenger bus going to Olongapo from Baguio City. She placed the plastic bag she was carrying at the
back of the seat then occupied by Obiña, an INP member "on Detached Service with the Anti-Narcotics
Unit." This avowedly aroused Obiña's suspicion, and at the first opportunity, and without Claudio's
knowledge, he surreptitiously looked into the plastic bag and noted that it contained camote tops as
well as a package, and that there emanated from the package the smell of marijuana with which he had
become familiar on account of his work. So when the bus stopped at Sta. Rita, and Claudio alighted,
Obiña accosted her, showed her his ID, identified himself as a policeman, and announced his intention
to search her bag which he said contained marijuana because of the distinctive odor detected by him.
Ignoring her plea — "Please go with me, let us settle this at home" — he brought her to the police
headquarters., where examination of the package in Claudio's bag confirmed his suspicion that it indeed
contained marijuana. The Court held the warrantless arrest under the circumstances to be lawful, the
search justified, and the evidence thus discovered admissible in evidence against the accused.

In People v. Tangliben (decision promulgated on April 6, 1990),19 two police officers and a barangay
tanod were conducting a "surveillance mission" at the Victory Liner Terminal at San Nicolas, San
Fernando, Pampanga, "aimed not only against persons who may commit misdemeanors . . . (there) but
also on persons who may be engaging in the traffic of dangerous drugs based on information supplied
by informers; . . . they noticed a person carrying a red travelling bag . . who was acting suspiciously;"
they asked him to open the bag; the person did so only after they identified themselves as peace
officers; found in the bag were marijuana leaves wrapped in plastic weighing one kilogram, more or less;
the person was then taken to the police headquarters at San Fernando, Pampanga, where he was
investigated; and an information was thereafter filed against that person, Tangliben, charging him with a
violation of the Dangerous Drugs Act of 1972 (RA 6425), as amended. Upon these facts it was
ruled, citing Claudio, supra, that there was a valid warrantless arrest and a proper warrantless search
incident thereto.

The facts in Tangliben were pronounced to be different from those in People v. Aminnudin, supra. "In
contrast" to Aminnudin where the Court perceived no urgency as to preclude the application for and
obtention of a search warrant, it was declared that the Tangliben case —

. . . presented urgency. . . (The evidence revealed) that there was an informer who pointed to the
accused-appellant as carrying marijuana . . . Faced with such on-the-spot information, the police officers
had to act quickly. There was not enough time to secure a search warrant . . . To require search warrants
during on-the-spot apprehensions of drug pushers, illegal possessors of firearms, jueteng collectors,
smugglers of contraband goods, robber, etc. would make it extremely difficult, if not impossible to
contain the crimes with which these persons are associated.

In Tangliben, therefore, there was in the Court's view sufficient evidence on hand to enable the PC
officers to secure a search warrant, had there been time. But because there was actually no time to get
the warrant, and there were "on-the-spot" indications that Tangliben was then actually committing a
crime, the search of his person and his effects was considered valid.

Two other decisions presented substantially similar circumstance instances: Posadas v. C.A., et al.,
decided on August 2, 1990,20 and People v. Moises Maspil, Jr., et al., decided on August 20, 1990.21

In the first case, Posadas was seen to be acting suspiciously by two members of the INP, Davao
Metrodiscom, and when he was accosted by the two, who identified themselves as police officers, he
suddenly fled. He was pursued, overtaken and, notwithstanding his resistance, placed in custody.
The buri bag Posadas was then carrying was found to contain a revolver, for which he could produce no
license or authority to possess, four rounds of live ammunition, and a tear gas grenade. He was
prosecuted for illegal possession of firearms and ammunition and convicted after trial. This Court
affirmed Posadas' conviction, holding that there was, in the premises, probable cause for a search
without warrant, i.e., the appellant was acting suspiciously and attempted to flee with the buri bag he
had with him at the time. The Court cited with approval the ruling of the U.S. Federal Supreme Court
in John W. Terry v. State of Ohio,22 a 1968 case, which the Solicitor General had invoked to justify the
search.

In the case of Maspil, et al., a checkpoint was set up by elements of the First Narcotics Regional Unit of
the Narcotics Command at Sayangan, Atok, Benguet, to monitor, inspect and scrutinize vehicles on the
highway going towards Baguio City. This was done because of a confidential report by informers that
Maspil and another person, Bagking, would be transporting a large quantity of marijuana to Baguio City.
In fact, the informers were with the policemen manning the checkpoint. As expected, at about 2 o'clock
in the early morning of November 1, 1986, a jeepney approached the checkpoint, driven by Maspil, with
Bagking as passenger. The officers stopped the vehicle and saw that on it were loaded 2 plastic sacks, a
jute sack, and 3 big round tin cans. When opened, the sacks and cans were seen to contain what
appeared to be marijuana leaves. The policemen thereupon placed Maspil and Bagking under arrest,
and confiscated the leaves which, upon scientific examination, were verified to be marijuana leaves. The
Court upheld the validity of the search thus conducted, as being incidental to a lawful warrantless
arrest,23 and declared that, as in Tangliben, supra, Maspil and Bagking had been caught in flagrante
delictotransporting prohibited drugs at the time of their arrest. Again, the Court took occasion to
distinguish the case from Aminnudin24 in which, as aforestated, it appeared that the police officers were
aware of Aminnudin's identity, his projected criminal enterprise and the vessel on which he would be
arriving, and, equally as importantly, had sufficient time and opportunity to obtain a search warrant. In
the case of Maspil and Bagking, the Court found that the officers concerned had no exact description of
the vehicle the former would be using to transport marijuana, and no inkling of the definite time of the
suspects' arrival, and pointed out that a jeepney on the road is not the same as a passenger boat on the
high seas whose route and time of arrival are more or less certain, and which ordinarily cannot deviate
from or otherwise alter its course, or select another destination.25

The most recent decision treating of warrantless search and seizure appears to be People v. Lo Ho Wing;
et al., G.R. No. 88017, decided on January 21, 1991 (per Gancayco, J.). In that case, an undercover or
"deep penetration" agent, Tia, managed somehow to gain acceptance into a group of suspected drug
smugglers, which included Peter Lo and Lim Ching Huat. Tia accompanied Peter Lo to Guangzhou, China,
where he saw him and other person empty the contents of six (6) tins of tea and replace them with
white powder. On their return to Manila with the cans of substituted "tea," they were met at the airport
by Lim. As they were leaving the airport in separate vehicles, they were intercepted by officers and
operatives of the Narcotics Command (NARCOM), who had earlier been tipped off by Tia, and placed
under arrest. As search of the luggage brought in by Tia and Peter Lo, loaded on the group's vehicles,
quickly disclosed the six (6) tin cans containing fifty-six (56) bags of white crystalline powder which,
upon analysis, was identified as metamphetamine. Tia, Lo and Lim were indicted for violation of the
Dangerous Drugs Act of 1972. Tia was discharged as state witness. Lo and Lim were subsequently
convicted and sentenced to life imprisonment. One of the questions raised by them in this Court on
appeal was whether the warrantless search of their vehicles and personal effects was legal. The
Court, citing Manipon, Jr. v. Sandiganbayan, 143 SCRA 267 (1986),26 held legal the search of the
appellants' moving vehicles and the seizure therefrom of the dangerous drug, considering that there
was intelligence information, including clandestine reports by a planted spy actually participating in the
activity, that the appellants were bringing prohibited drugs into the country; that the requirement of
obtaining a search warrant "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," and "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.27

In all five cases, Claudio, Tangliben, Posadas, Maspil, and Lo Ho Wing, facts existed which were found by
the Court as justifying warantless arrests. In Claudio, the arresting officer had secretly ascertained that
the woman he was arresting was in fact in possession of marijuana; he had personally seen that her bag
contained not only vegetables but also a package emitting the odor of marijuana. In Tangliben, the
person arrested and searched was acting suspiciously, and had been positively pointed to as carrying
marijuana. And in both cases, the accused were about to board passenger buses, making it urgent for
the police officers concerned to take quick and decisive action. In Posadas, the person arrested and
searched was acting suspiciously, too, and when accosted had attempted to flee from the police
officers. And in Maspil and Lo Ho Wing, there was definite information of the precise identity of the
persons engaged in transporting prohibited drugs at a particular time and place.

Now, as regards the precise issue at hand, whether or not the facts in the case at bar make out a
legitimate instance of a warrantless search and seizure, there is, as earlier pointed out, a regrettable
divergence of views among the members of the Court.

Contrary to the conclusion reached by the majority, I believe that the appellant should be absolved on
reasonable doubt. There was in this case no confidential report from, or positive identification by an
informer; no attempt to flee; no bag or package emitting tell-tale odors; no other reasonably persuasive
indications that Malmstedt was at the time in process of perpetrating the offense for which he was
subsequently prosecuted. Hence, when the soldiers searched Malmstedt's pouch and the bags in his
possession, they were simply "fishing" for evidence. It matters not that the search disclosed that the
bags contained prohibited substances, confirming their initial information and suspicion. The search was
not made by virtue of a warrant or as an incident of a lawful warrantless arrest, i.e., under
circumstances sufficient to engender a reasonable belief that some crime was being or about to be
committed, or adjust been committed. There was no intelligent and intentional waiver of the right
against unreasonable searches and seizure. The search was therefore illegal, since the law requires that
there first be a lawful arrest of an individual before a search of his body and his belongings may licitly be
made. The process cannot be reversed, i.e., a search be first undertaken, and then an arrest effected, on
the strength of the evidence yielded by the search. An arrest made in that case would be unlawful, and
the search undertaken as an incident of such an unlawful arrest, also unlawful.

The fact that when investigated at the headquarters of the Narcotic Command at Camp Dangwa, La
Trinidad, Malmstedt had, it is said, willingly admitted that there were was hashish inside the "teddy
bears" in the luggage found in his possession — an admission subsequently confirmed by laboratory
examination — does not help the cause of the prosecution one bit. Nothing in the record even remotely
suggests that Malmstedt was accorded the rights guaranteed by the Constitution to all persons under
custodial investigation.28 He was not informed, prior to being interrogated, that he had the "right to
remain silent and to have competent and independent counsel preferably of his own choice," and that if
he could not afford the services of counsel, he would be provided with one; not does it appear at all that
he waived those rights "in writing and in the presence of counsel." The soldiers and the police officers
simply went ahead with the investigation of Malmstedt, without counsel. The admissions elicited from
Malmstedt under these circumstances, as the Constitution clearly states, are "inadmissible in evidence
against him.29

The prohibited drugs supposedly discovered in Malmstedt's bags, having been taken in violation of the
constitutional right against unreasonable searches and seizures, are inadmissible against him "for any
purpose in any proceeding." Also pronounced as incompetent evidence against him are the admissions
supposedly made by him without his first being accorded the constitutional rights of persons under
custodial investigation. Without such object evidence and admissions, nothing remains of the case
against Malmstedt.

It may be conceded that, as the Trial Court points out, the evidence presented by Malmstedt in his
defense is feeble, unworthy of credence. This is beside the point; for conformably to the familiar axiom,
the State must rely on the strength of its evidence and not on the weakness of the defense. The
unfortunate fact is that although the existence of the hashish is an objective physical reality that cannot
but be conceded, there is in law no evidence to demonstrate with any degree of persuasion, much less
beyond reasonable doubt, that Malmstedt was engaged in a criminal activity. This is the paradox created
by the disregard of the applicable constitutional safeguards. The tangible benefit is that the hashish in
question has been correctly confiscated and thus effectively withdrawn from private use.

What is here said should not by any means be taken as a disapproval or a disparagement of the efforts
of the police and military authorities to deter and detect offenses, whether they be possession of and
traffic in prohibited drugs, or some other. Those efforts obviously merit the support and commendation
of the Courts and indeed of every responsible citizen. But those efforts must take account of the basic
rights granted by the Constitution and the law to persons who may fall under suspicion of engaging in
criminal acts. Disregard of those rights may not be justified by the objective of ferreting out and
punishing crime, no matter how eminently desirable attainment of that objective might be. Disregard of
those rights, as this Court has earlier stressed, may result in the escape of the guilty, and all because the
"constable has blundered," rendering the evidence inadmissible even if truthful or otherwise credible.30

I therefore vote to reverse the Trial Court's judgment of October 12, 1989 and to acquit the appellant on
reasonable doubt.
CRUZ, J., dissenting:

I join Mr. Justice Andres R. Narvasa in his dissent, which I believe represents the correct application to
the facts of this case of the provisions of the Bill of Rights and the Rules of Court on searches and
seizures. It is consistent with my ponencia in People v. Aminnudin, 163 SCRA 402, and also with Alih v.
Castro, 151 SCRA 279, the latter being a unanimous decision of the Court en banc, and my dissents in
Umil v. Ramos (on warrantless arrests, 187 SCRA 311, Valmonte v. De Villa (on checkpoints), 178, SCRA
211, 185 SCRA 665, and Guazon v. De Villa (on "zonas"), 181 SCRA 623.

I write this separate opinion merely to remark on an observation made during the deliberation on this
case that some members of the Court seem to be coddling criminals instead of extending its protection
to society, which deserves our higher concern. The inference is that because of our wrong priorities,
criminals are being imprudently let free, to violate our laws again; and it is all our fault.

Believing myself to be among those alluded to, I will say without apology that I do not consider a person
a criminal, until he is convicted by final judgment after a fair trial by a competent and impartial court.
Until then, the Constitution bids us to presume him innocent. He may seem boorish or speak crudely or
sport tattoos or dress weirdly or otherwise fall short of our own standards of propriety and decorum.
None of these makes him a criminal although he may look like a criminal.

It is so easy to condemn a person on the basis of his appearance but it is also so wrong.

On the question before us, it seems to be the inclination of some judges to wink at an illegal search and
seizure as long as the suspect has been actually found in possession of a prohibited article That fact will
retroactively validate the violation of the Bill of Rights for after all, as they would rationalize, the
suspect is a criminal. What matters to them is the fact of illegal possession, not the fact of illegal search
and seizure.

This kind of thinking takes us back to the intolerant days of Moncado v. People's Court, 80 Phil. 1, which
was discredited in Stonehill v. Diokno, 20 SCRA 383, even before it was definitely rejected by an express
provision in the 1973 Constitution. That provision, which has been retained in the present Constitution,
again explicitly declares that any evidence illegally obtained "shall be inadmissible for any purpose in any
proceeding."

The fruit of the poisonous tree should not be allowed to poison our system of criminal
justice.1âwphi1 In the case at bar, the search was made at a checkpoint established for the
preposterous reason that the route was being used by marijuana dealers and on an individual who had
something bulging at his waist that excited the soldier's suspicion. Was that probable cause?
The ponencia notes that the military had advance information that a Caucasian was coming from the
Sagada with prohibited drugs in his possession. This is what the military says now, after the fact, to
justify the warrantless search. It is so easy to make such a claim, and I am surprised that the majority
should readily accept it.

The conclusion that there was probable cause may have been influenced by the subsequent discovery
that the accused was carrying a prohibited drug. This is supposed to justify the soldier's suspicion. In
other words, it was the fact of illegal possession that retroactively established the probable cause that
validated the illegal search and seizure. It was the fruit of the poisonous tree that washed clean the tree
itself.

In Olmstead v. U.S., 277 U.S. 438, Justice Holmes said sixty-four years ago:

. . . It is desirable that criminals should be detected, and to that end that all available evidence should be
used.1avvphi1 It is also 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 in the future 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.

If by deterring the government from playing "an ignoble part," I am "coddling criminals," I welcome the
accusation and take pride in it. I would rather err in favor of the accused who is impaled with outlawed
evidence than exalt order at the price of liberty.
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 twenty-nine (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.1âwphi1.nêt

Later that same day, Police Chief Inspector and Forensic Chemist Theresa Ann Bugayong Cid of the
Philippine National Police, Region I, received a letter request3 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. Tagliben5 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 jurisprudence11in
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 facts14 or as recent case law15adverts 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 waist23 — 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 Court28 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 trees32 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.
RODOLFO ESPANO, accused-petitioner, vs. COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.

DECISION

ROMERO, J.:

This is a petition for review of the decision of the Court of Appeals in CA-G.R. CR No. 13976 dated
January 16, 1995,[1] which affirmed in toto the judgment of the Regional Trial Court of Manila, Branch 1,
convicting petitioner Rodolfo Espano for violation of Article II, Section 8 of Republic Act No. 6425, as
amended, otherwise known as the Dangerous Drugs Act.

Petitioner was charged under the following information:

That on or about July 14, 1991, in the City of Manila, Philippines, the said accused, not being authorized
by law to possess or use any prohibited drug, did then and there wilfully, unlawfully and knowingly have
in his possession and under his custody and control twelve (12) plastic cellophane (bags) containing
crushed flowering tops, marijuana weighing 5.5 grams which is a prohibited drug.

Contrary to law.[2]

The evidence for the prosecution, based on the testimony of Pat. Romeo Pagilagan, shows that on July
14, 1991, at about 12:30 a.m., he and other police officers, namely, Pat. Wilfredo Aquino, Simplicio
Rivera, and Erlindo Lumboy of the Western Police District (WPD), Narcotics Division went to Zamora and
Pandacan Streets, Manila to confirm reports of drug pushing in the area. They saw petitioner selling
something to another person. After the alleged buyer left, they approached petitioner, identified
themselves as policemen, and frisked him. The search yielded two plastic cellophane tea bags of
marijuana. When asked if he had more marijuana, he replied that there was more in his house. The
policemen went to his residence where they found ten more cellophane tea bags of marijuana.
Petitioner was brought to the police headquarters where he was charged with possession of prohibited
drugs. On July 24, 1991, petitioner posted bail[3] and the trial court issued his order of release on July 29,
1991.[4]

Annabelle Alip, forensic chemist of the WPD Criminal Investigation Laboratory Section, testified that the
articles sent to her by Pat. Wilfredo Aquino regarding the apprehension of a certain Rodolfo Espano for
examination tested positive for marijuana, with a total weight of 5.5 grams.

By way of defense, petitioner testified that on said evening, he was sleeping in his house and was
awakened only when the policemen handcuffed him. He alleged that the policemen were looking for his
brother-in-law Lauro, and when they could not find the latter, he was instead brought to the police
station for investigation and later indicted for possession of prohibited drugs. His wife Myrna
corroborated his story.

The trial court rejected petitioners defense as a mere afterthought and found the version of the
prosecution more credible and trustworthy.

Thus, on August 14, 1992, the trial court rendered a decision, convicting petitioner of the crime charged,
the dispositive portion of which reads:
WHEREFORE there being proof beyond reasonable doubt, the court finds the accused Rodolfo Espano y
Valeria guilty of the crime of violation of Section 8, Article II, in relation to Section 2 (e-L) (I) of Republic
Act No. 6425 as amended by Batas Pambansa Blg. 179, and pursuant to law hereby sentences him to
suffer imprisonment of six (6) years and one (1) day to twelve (12) years and to pay a fine of P6,000.00
with subsidiary imprisonment in case of default plus costs.

The marijuana is declared forfeited in favor of government and shall be turned over to the Dangerous
Drugs Board without delay.

SO ORDERED.[5]

Petitioner appealed the decision to the Court of Appeals. The appellate court, however, affirmed the
decision of the trial court in toto.

Hence, this petition.

Petitioner contends that the trial and appellate courts erred in convicting him on the basis of the
following: (a) the pieces of evidence seized were inadmissible; (b) the superiority of his constitutional
right to be presumed innocent over the doctrine of presumption of regularity; (c) he was denied the
constitutional right of confrontation and to compulsory process; and (d) his conviction was based on
evidence which was irrelevant and not properly identified.

After a careful examination of the records of the case, this Court finds no compelling reason sufficient to
reverse the decisions of the trial and appellate courts.

First, it is a well settled doctrine that findings of trial courts on the credibility of witnesses deserve a high
degree of respect. Having observed the deportment of witnesses during the trial, the trial judge is in a
better position to determine the issue of credibility and, thus, his findings will not be disturbed during
appeal in the absence of any clear showing that he had overlooked, misunderstood or misapplied some
facts or circumstances of weight and substance which could have altered the conviction of the
appellants.[6]

In this case, the findings of the trial court that the prosecution witnesses were more credible than those
of the defense must stand. Petitioner failed to show that Pat. Pagilagan, in testifying against him, was
motivated by reasons other than his duty to curb drug abuse and had any intent to falsely impute to him
such a serious crime as possession of prohibited drugs. In the absence of such ill motive, the
presumption of regularity in the performance of his official duty must prevail.

In People v. Velasco,[7] this Court reiterated the doctrine of presumption of regularity in the
performance of official duty which provides:

x x x. Appellant failed to establish that Pat. Godoy and the other members of the buy-bust team are
policemen engaged in mulcting or other unscrupulous activities who were motivated either by the
desire to extort money or exact personal vengeance, or by sheer whim and caprice, when they
entrapped her. And in the absence of proof of any intent on the part of the police authorities to falsely
impute such a serious crime against appellant, as in this case, the presumption of regularity in the
performance of official duty, . . ., must prevail over the self-serving and uncorroborated claim of
appellant that she had been framed.[8]
Furthermore, the defense set up by petitioner does not deserve any consideration. He simply contended
that he was in his house sleeping at the time of the incident. This Court has consistently held that alibi is
the weakest of all defenses; and for it to prosper, the accused has the burden of proving that he was not
at the scene of the crime at the time of its commission and that it was physically impossible for him to
be there. Moreover, the claim of a frame-up, like alibi, is a defense that has been invariably viewed by
the Court with disfavor for it can just as easily be concocted but difficult to prove, and is a common and
standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act.[9] No
clear and convincing evidence was presented by petitioner to prove his defense of alibi.

Second, petitioner contends that the prosecutions failure to present the alleged informant in court cast
a reasonable doubt which warrants his acquittal. This is again without merit, since failure of the
prosecution to produce the informant in court is of no moment especially when he is not even the best
witness to establish the fact that a buy-bust operation had indeed been conducted. In this case, Pat.
Pagilagan, one of the policemen who apprehended petitioner, testified on the actual incident of July 14,
1991, and identified him as the one they caught in possession of prohibited drugs. Thus,

We find that the prosecution had satisfactorily proved its case against appellants. There is no compelling
reason for us to overturn the finding of the trial court that the testimony of Sgt. Gamboa, the lone
witness for the prosecution, was straightforward, spontaneous and convincing. The testimony of a sole
witness, if credible and positive and satisfies the court beyond reasonable doubt, is sufficient to
convict.[10]

Thus on the basis of Pat. Pagilagans testimony, the prosecution was able to prove that petitioner indeed
committed the crime charged; consequently, the finding of conviction was proper.

Lastly, the issue on the admissibility of the marijuana seized should likewise be ruled upon. Rule 113
Section 5(a) of the Rules of Court provides:

A peace officer or a private person may, without a warrant, arrest a person:

a. when, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

x x x x x x x x x.

Petitioners arrest falls squarely under the aforecited rule. He was caught in flagranti as a result of a buy-
bust operation conducted by police officers on the basis of information received regarding the illegal
trade of drugs within the area of Zamora and Pandacan Streets, Manila. The police officer saw petitioner
handing over something to an alleged buyer. After the buyer left, they searched him and discovered two
cellophanes of marijuana. His arrest was, therefore, lawful and the two cellophane bags of marijuana
seized were admissible in evidence, being the fruits of the crime.

As for the ten cellophane bags of marijuana found at petitioners residence, however, the same are
inadmissible in evidence.

The 1987 Constitution guarantees freedom against unreasonable searches and seizures under Article III,
Section 2 which provides:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.

An exception to the said rule is a warrantless search incidental to a lawful arrest for dangerous weapons
or anything which may be used as proof of the commission of an offense.[11] It may extend beyond the
person of the one arrested to include the premises or surroundings under his immediate control. In this
case, the ten cellophane bags of marijuana seized at petitioners house after his arrest at Pandacan and
Zamora Streets do not fall under the said exceptions.

In the case of People v. Lua,[12] this Court held:

As regards the brick of marijuana found inside the appellants house, the trial court correctly ignored it
apparently in view of its inadmissibility. While initially the arrest as well as the body search was lawful,
the warrantless search made inside the appellants house became unlawful since the police operatives
were not armed with a search warrant. Such search cannot fall under search made incidental to a lawful
arrest, the same being limited to body search and to that point within reach or control of the person
arrested, or that which may furnish him with the means of committing violence or of escaping. In the
case at bar, appellant was admittedly outside his house when he was arrested. Hence, it can hardly be
said that the inner portion of his house was within his reach or control.

The articles seized from petitioner during his arrest were valid under the doctrine of search made
incidental to a lawful arrest. The warrantless search made in his house, however, which yielded ten
cellophane bags of marijuana became unlawful since the police officers were not armed with a search
warrant at the time. Moreover, it was beyond the reach and control of petitioner.

In sum, this Court finds petitioner Rodolfo Espano guilty beyond reasonable doubt of violating Article II,
Section 8, in relation to Section 2 (e-L) (I) of Republic Act No. 6425, as amended. Under the said
provision, the penalty imposed is six years and one day to twelve years and a fine ranging from six
thousand to twelve thousand pesos. With the passage of Republic Act No. 7659, which took effect on
December 31, 1993, the imposable penalty shall now depend on the quantity of drugs recovered. Under
the provisions of Republic Act No. 7629, Section 20, and as interpreted in People v. Simon[13] and People
v. Lara,[14] if the quantity of marijuana involved is less than 750 grams, the imposable penalty ranges
from prision correccional to reclusion temporal. Taking into consideration that petitioner is not a
habitual delinquent, the amendatory provision is favorable to him and the quantity of marijuana
involved is less than 750 grams, the penalty imposed under Republic Act No. 7659 should be applied.
There being no mitigating nor aggravating circumstances, the imposable penalty shall be prision
correccional in its medium period. Applying the Indeterminate Sentence Law, the maximum penalty
shall be taken from the medium period of prision correccional, which is two (2) years, four (4) months
and one (1) day to four (4) years and two (2) months, while the minimum shall be taken from the
penalty next lower in degree, which is one (1) month and one (1) day to six (6) months of arresto mayor.

WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of Appeals in C.A.-G.R. CR
No. 13976 dated January 16, 1995 is AFFIRMED with the MODIFICATION that petitioner Rodolfo Espano
is sentenced to suffer an indeterminate penalty of TWO (2) months and ONE (1) day of arresto mayor, as
minimum to TWO (2) years, FOUR (4) months and ONE (1) day of prision correccional, as maximum.

SO ORDERED.

Narvasa, C.J., (Chairman), Kapunan, and Purisima, JJ., concur.

G.R. No. 80806 October 5, 1989

LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents.

William C. Arceno for petitioner.

Casibang, Perello and De Dios for private respondent.

SARMIENTO, J.:

The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision of the
Court of Appeals, 1 rejecting his appeal from the decision of the Regional Trial Court, dismissing his
complaint for injunctive relief. He invokes, in particular, the guaranty against unreasonable searches and
seizures of the Constitution, as well as its prohibition against deprivation of property without due
process of law. There is no controversy as to the facts. We quote:

On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the City of
Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group, Auxilliary Services Bureau,
Western Police District, INP of the Metropolitan Police Force of Manila, seized and confiscated from
dealers, distributors, newsstand owners and peddlers along Manila sidewalks, magazines, publications
and other reading materials believed to be obscene, pornographic and indecent and later burned the
seized materials in public at the University belt along C.M. Recto Avenue, Manila, in the presence of
Mayor Bagatsing and several officers and members of various student organizations.

Among the publications seized, and later burned, was "Pinoy Playboy" magazines published and co-
edited by plaintiff Leo Pita.

On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the writ of
preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as superintendent of Western
Police District of the City of Manila, seeking to enjoin and/or restrain said defendants and their agents
from confiscating plaintiffs magazines or from otherwise preventing the sale or circulation thereof
claiming that the magazine is a decent, artistic and educational magazine which is not per se obscene,
and that the publication is protected by the Constitutional guarantees of freedom of speech and of the
press.

By order dated December 8, 1 983 the Court set the hearing on the petition for preliminary injunction
on December 14,1983 and ordered the defendants to show cause not later than December 13, 1983
why the writ prayed for should not be granted.
On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary restraining order.
against indiscriminate seizure, confiscation and burning of plaintiff's "Pinoy Playboy" Magazines,
pending hearing on the petition for preliminary injunction in view of Mayor Bagatsing's pronouncement
to continue the Anti-Smut Campaign. The Court granted the temporary restraining order on December
14, 1983.

In his Answer and Opposition filed on December 27,1983 defendant Mayor Bagatsing admitted the
confiscation and burning of obscence reading materials on December 1 and 3, 1983, but claimed that
the said materials were voluntarily surrendered by the vendors to the police authorities, and that the
said confiscation and seizure was (sic) undertaken pursuant to P.D. No. 960, as amended by P.D. No.
969, which amended Article 201 of the Revised Penal Code. In opposing the plaintiffs application for a
writ of preliminary injunction, defendant pointed out that in that anti- smut campaign conducted on
December 1 and 3, 1983, the materials confiscated belonged to the magazine stand owners and
peddlers who voluntarily surrendered their reading materials, and that the plaintiffs establishment was
not raided.

The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.

On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the writ of preliminary
injunction, raising the issue as to "whether or not the defendants and/or their agents can without a
court order confiscate or seize plaintiffs magazine before any judicial finding is made on whether said
magazine is obscene or not".

The restraining order issued on December 14,1983 having lapsed on January 3,1984, the plaintiff filed an
urgent motion for issuance of another restraining order, which was opposed by defendant on the
ground that issuance of a second restraining order would violate the Resolution of the Supreme Court
dated January 11, 1983, providing for the Interim Rules Relative to the Implementation of Batas
Pambansa Blg. 129, which provides that a temporary restraining order shall be effective only for twenty
days from date of its issuance.

On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in support of his
opposition to the issuance of a writ of preliminary injunction.

On January 11, 1984, the trial court issued an Order setting the case for hearing on January 16, 1984 "for
the parties to adduce evidence on the question of whether the publication 'Pinoy Playboy Magazine
alleged (sic) seized, confiscated and/or burned by the defendants, are obscence per se or not".

On January 16, 1984, the Court issued an order granting plaintiffs motion to be given three days "to file
a reply to defendants' opposition dated January 9, 1984, serving a copy thereof to the counsel for the
defendants, who may file a rejoinder within the same period from receipt, after which the issue of
Preliminary Injunction shall be resolved".

Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed his Comment on
plaintiff s supplemental Memorandum on January 20, 1984, and plaintiff filed his "Reply-Memorandum"
to defendants' Comment on January 25, 1984.

On February 3, 1984, the trial court promulgated the Order appealed from denying the motion for a writ
of preliminary injunction, and dismissing the case for lack of merit. 2
The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:

We cannot quarrel with the basic postulate suggested by appellant that seizure of allegedly obscene
publications or materials deserves close scrutiny because of the constitutional guarantee protecting the
right to express oneself in print (Sec. 9, Art. IV), and the protection afforded by the constitution against
unreasonable searches and seizure (Sec. 3, Art.IV). It must be equally conceded, however, that freedom
of the press is not without restraint as the state has the right to protect society from pornographic
literature that is offensive to public morals, as indeed we have laws punishing the author, publishers and
sellers of obscene publications (Sec. I , Art. 201, Revised Penal Code, as amended by P.D. No. 960 and
P.D. No. 969). Also well settled is the rule that the right against unreasonable searches and seizures
recognizes certain exceptions, as when there is consent to the search or seizure, (People vs. Malesugui
63 Phil. 22) or search is an incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76
Phil. 637) or is conducted in a vehicle or movable structure (See Papa vs. Magno, 22 SCRA 857).3

The petitioner now ascribes to the respondent court the following errors:

1. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the
police officers could without any court warrant or order seize and confiscate petitioner's magazines on
the basis simply of their determination that they are obscene.

2. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the
trial court could dismiss the case on its merits without any hearing thereon when what was submitted to
it for resolution was merely the application of petitioner for the writ of preliminary injunction.4

The Court states at the outset that it is not the first time that it is being asked to pronounce what
"obscene" means or what makes for an obscene or pornographic literature. Early on, in People vs.
Kottinger,5 the Court laid down the test, in determining the existence of obscenity, as follows: "whether
the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to
such immoral influences and into whose hands a publication or other article charged as being obscene
may fall." 6 "Another test," so Kottinger further declares, "is that which shocks the ordinary and common
sense of men as an indecency. " 7 Kottinger hastened to say, however, that "[w]hether a picture is
obscene or indecent must depend upon the circumstances of the case, 8 and that ultimately, the
question is to be decided by the "judgment of the aggregate sense of the community reached by it." 9

Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing a
problem that has grown increasingly complex over the years. Precisely, the question is: When does a
publication have a corrupting tendency, or when can it be said to be offensive to human sensibilities?
And obviously, it is to beg the question to say that a piece of literature has a corrupting
influence because it is obscene, and vice-versa.

Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would leave the
final say to a hypothetical "community standard" — whatever that is — and that the question must
supposedly be judged from case to case.

About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under Article 201
of the Revised Penal Code. Go Pin, was also even hazier:
...We agree with counsel for appellant in part. If such pictures, sculptures and paintings are shown in art
exhibit and art galleries for the cause of art, to be viewed and appreciated by people interested in art,
there would be no offense committed. However, the pictures here in question were used not exactly for
art's sake but rather for commercial purposes. In other words, the supposed artistic qualities of said
pictures were being commercialized so that the cause of art was of secondary or minor importance.
Gain and profit would appear to have been the main, if not the exclusive consideration in their
exhibition; and it would not be surprising if the persons who went to see those pictures and paid
entrance fees for the privilege of doing so, were not exactly artists and persons interested in art and
who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather
people desirous of satisfying their morbid curiosity and taste, and lust, and for love for excitement,
including the youth who because of their immaturity are not in a position to resist and shield themselves
from the ill and perverting effects of these pictures.11

xxx xxx xxx

As the Court declared, the issue is a complicated one, in which the fine lines have neither been drawn
nor divided. It is easier said than done to say, indeed, that if "the pictures here in question were used
not exactly for art's sake but rather for commercial purposes," 12 the pictures are not entitled to any
constitutional protection.

It was People v. Padan y Alova ,13 however, that introduced to Philippine jurisprudence the "redeeming"
element that should accompany the work, to save it from a valid prosecution. We quote:

...We have had occasion to consider offenses like the exhibition of still or moving pictures of women in
the nude, which we have condemned for obscenity and as offensive to morals. In those cases, one might
yet claim that there was involved the element of art; that connoisseurs of the same, and painters and
sculptors might find inspiration in the showing of pictures in the nude, or the human body exhibited in
sheer nakedness, as models in tableaux vivants. But an actual exhibition of the sexual act, preceded by
acts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see
nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring
and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on
the youth of the land. ...14

Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the exhibition
was attended by "artists and persons interested in art and who generally go to art exhibitions and
galleries to satisfy and improve their artistic tastes,"15 could the same legitimately lay claim to "art"? For
another, suppose that the exhibition was so presented that "connoisseurs of [art], and painters and
sculptors might find inspiration,"16 in it, would it cease to be a case of obscenity?

Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has permitted
an ad lib of Ideas and "two-cents worths" among judges as to what is obscene and what is art.

In a much later decision, Gonzalez v. Kalaw Katigbak,17 the Court, following trends in the United States,
adopted the test: "Whether to the average person, applying contemporary standards, the dominant
theme of the material taken as a whole appeals to prurient interest."18 Kalaw-Katigbak represented a
marked departure from Kottinger in the sense that it measured obscenity in terms of the "dominant
theme" of the work, rather than isolated passages, which were central to Kottinger (although both cases
are agreed that "contemporary community standards" are the final arbiters of what is
"obscene"). Kalaw-Katigbak undertook moreover to make the determination of obscenity essentially a
judicial question and as a consequence, to temper the wide discretion Kottinger had given unto law
enforcers.

It is significant that in the United States, constitutional law on obscenity continues to journey from
development to development, which, states one authoritative commentator (with ample sarcasm), has
been as "unstable as it is unintelligible."19

Memoirs v. Massachusettes,20 a 1966 decision, which characterized obscenity as one "utterly without
any redeeming social value,"21 marked yet another development.

The latest word, however, is Miller v. California,22 which expressly abandoned Massachusettes, and
established "basic guidelines,"23 to wit: "(a) whether 'the average person, applying contemporary
standards' would find the work, taken as a whole, appeals to the prurient interest . . .; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political,
or scientific value."24

(A year later, the American Supreme Court decided Hamling v. United States 25 which repeated Miller,
and Jenkins v. Georgia, 26 yet another reiteration of Miller. Jenkins, curiously, acquitted the producers of
the motion picture, Carnal Knowledge, in the absence of "genitals" portrayed on screen, although the
film highlighted contemporary American sexuality.)

The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been attributed
to the reluctance of the courts to recognize the constitutional dimension of the problem .27 Apparently,
the courts have assumed that "obscenity" is not included in the guaranty of free speech, an assumption
that, as we averred, has allowed a climate of opinions among magistrates predicated upon arbitrary, if
vague theories of what is acceptable to society. And "[t]here is little likelihood," says Tribe, "that this
development has reached a state of rest, or that it will ever do so until the Court recognizes that
obscene speech is speech nonetheless, although it is subject — as in all speech — to regulation in the
interests of [society as a whole] — but not in the interest of a uniform vision of how human sexuality
should be regarded and portrayed."28

In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of police
power, to suppress smut provided it is smut. For obvious reasons, smut is not smut simply because one
insists it is smut. So is it equally evident that individual tastes develop, adapt to wide-ranging influences,
and keep in step with the rapid advance of civilization. What shocked our forebears, say, five decades
ago, is not necessarily repulsive to the present generation. James Joyce and D.H. Lawrence were
censored in the thirties yet their works are considered important literature today.29 Goya's La Maja
desnuda was once banned from public exhibition but now adorns the world's most prestigious
museums.

But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we said
earlier, it is the divergent perceptions of men and women that have probably compounded the problem
rather than resolved it.
What the Court is impressing, plainly and simply, is that the question is not, and has not been, an easy
one to answer, as it is far from being a settled matter. We share Tribe's disappointment over the
discouraging trend in American decisional law on obscenity as well as his pessimism on whether or not
an "acceptable" solution is in sight.

In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect"
definition of "obscenity", if that is possible, as evolving standards for proper police conduct faced with
the problem, which, after all, is the plaint specifically raised in the petition.

However, this much we have to say.

Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not its
protection. In free expression cases, this Court has consistently been on the side of the exercise of the
right, barring a "clear and present danger" that would warrant State interference and action.30 But, so
we asserted in Reyes v. Bagatsing,31"the burden to show the existence of grave and imminent danger
that would justify adverse action ... lies on the. . . authorit[ies]."32

"There must be objective and convincing, not subjective or conjectural, proof of the existence of such
clear and present danger."33 "It is essential for the validity of ... previous restraint or censorship that the
... authority does not rely solely on his own appraisal of what the public welfare, peace or safety may
require."34

"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and
present danger test."35

The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only we
may arrive at one-but rather as a serious attempt to put the question in its proper perspective, that is,
as a genuine constitutional issue.

It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due process
and illegal search and seizure.

As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the
presumption is that the speech may validly be said. The burden is on the State to demonstrate the
existence of a danger, a danger that must not only be: (1) clear but also, (2) present, to justify State
action to stop the speech. Meanwhile, the Government must allow it (the speech). It has no choice.
However, if it acts notwithstanding that (absence of evidence of a clear and present danger), it must
come to terms with, and be held accountable for, due process.

The Court is not convinced that the private respondents have shown the required proof to justify a ban
and to warrant confiscation of the literature for which mandatory injunction had been sought below.
First of all, they were not possessed of a lawful court order: (1) finding the said materials to be
pornography, and (2) authorizing them to carry out a search and seizure, by way of a search warrant.

The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the state
has the right to protect society from pornographic literature that is offensive to public morals."36 Neither
do we. But it brings us back to square one: were the "literature" so confiscated "pornographic"? That we
have laws punishing the author, publisher and sellers of obscence publications (Sec. 1, Art. 201, Revised
Penal Code, as amended by P.D. No. 960 and P.D. No. 969),"37 is also fine, but the question, again, is: Has
the petitioner been found guilty under the statute?

The fact that the former respondent Mayor's act was sanctioned by "police power" is no license to seize
property in disregard of due process. In Philippine Service Exporters, Inc. v. Drilon,38 We defined police
power as "state authority to enact legislation that may interfere with personal liberty or property in
order to promote the general welfare ."39 Presidential Decrees Nos. 960 and 969 are, arguably, police
power measures, but they are not, by themselves, authorities for high-handed acts. They do not exempt
our law enforcers, in carrying out the decree of the twin presidential issuances (Mr. Marcos'), from the
commandments of the Constitution, the right to due process of law and the right against unreasonable
searches and seizures, specifically. Significantly, the Decrees themselves lay down procedures for
implementation. We quote:

Sec. 2. Disposition of the Prohibited Articles. — The disposition of the literature, films, prints, engravings,
sculptures, paintings, or other materials involved in the violation referred to in Section 1 hereof (Art.
201), RPC as amended) shall be governed by the following rules:

(a) Upon conviction of the offender, to be forfeited in favor of the Government to be destroyed.

(b) Where the criminal case against any violator of this decree results in an acquittal, the
obscene/immoral literature, films, prints, engravings, sculptures, paintings or other materials and
articles involved in the violation referred to in Section 1 (referring to Art. 201) hereof shall nevertheless
be forfeited in favor of the government to be destroyed, after forfeiture proceedings conducted by the
Chief of Constabulary.

(c) The person aggrieved by the forfeiture action of the Chief of Constabulary may, within fifteen (15)
days after his receipt of a copy of the decision, appeal the matter to the Secretary of National Defense
for review. The decision of the Secretary of National Defense shall be final and unappealable. (Sec. 2, PD
No, 960 as amended by PD No. 969.)

Sec. 4. Additional Penalties. — Additional penalties shall be imposed as follows:

1. In case the offender is a government official or employee who allows the violations of Section I
hereof, the penalty as provided herein shall be imposed in the maximum period and, in addition, the
accessory penalties provided for in the Revised Penal Code, as amended, shall likewise be imposed .40

Under the Constitution, on the other hand:

SEC. 3. 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 not be violated, 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.

It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they
become unreasonable and subject to challenge. In Burgos v. Chief of Staff, AFP, 43 We counter-minded
the orders of the Regional Trial Court authorizing the search of the premises of We
Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a defective warrant. We have
greater reason here to reprobate the questioned raid, in the complete absence of a warrant, valid or
invalid. The fact that the instant case involves an obscenity rap makes it no different from Burgos, a
political case, because, and as we have indicated, speech is speech, whether political or "obscene".

The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules then
prevailing), provide:

SEC. 12. Search without warrant of personarrested. — 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.44

but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the
arrest must be on account of a crime committed. Here, no party has been charged, nor are such charges
being readied against any party, under Article 201, as amended, of the Revised Penal Code.

We reject outright the argument that "[t]here is no constitutional nor legal provision which would free
the accused of all criminal responsibility because there had been no warrant," 45 and that "violation of
penal law [must] be punished." 46 For starters, there is no "accused" here to speak of, who ought to be
"punished". Second, to say that the respondent Mayor could have validly ordered the raid (as a result of
an anti-smut campaign) without a lawful search warrant because, in his opinion, "violation of penal
laws" has been committed, is to make the respondent Mayor judge, jury, and executioner rolled into
one. And precisely, this is the very complaint of the petitioner.

We make this resume.

1. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an
obscenity rap is in order;

2. The authorities must convince the court that the materials sought to be seized are "obscene", and
pose a clear and present danger of an evil substantive enough to warrant State interference and action;

3. The judge must determine whether or not the same are indeed "obscene:" the question is to be
resolved on a case-to-case basis and on His Honor's sound discretion.

4. If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for;

5. The proper suit is then brought in the court under Article 201 of the Revised Penal Code;

6. Any conviction is subject to appeal. The appellate court may assess whether or not the properties
seized are indeed "obscene".

These do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies
against abuse of official power under the Civil Code" 47 or the Revised Penal code .48

WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED and SET
ASIDE. It appearing, however, that the magazines subject of the search and seizure ave been destroyed,
the Court declines to grant affirmative relief. To that extent, the case is moot and academic.

SO ORDERED.
G.R. No. L-25434 July 25, 1975

HONORABLE ARSENIO N. ROLDAN, JR., in his capacity as Acting Commissioner, Philippine Fisheries
Commission, and THE PHILIPPINE NAVY, petitioners,
vs.
HONORABLE FRANCISCO ARCA, as Presiding Judge of the Court of First Instance of Manila (Branch 1)
and MORABE, DE GUZMAN & COMPANY, respondents.

Office of the Solicitor General Arturo A. Alafriz and Solicitor Augusto M. Amores for petitioners.

J. C. Yuseco and A.R. Narvasa for private respondent.

MAKASIAR, J.:

A petition for certiorari and prohibition with preliminary injunction to restrain respondent Judge from
enforcing his order dated October 18, 1965, and the writ of preliminary mandatory injunction
thereunder issued.

On April 3, 1964, respondent company filed with the Court of First Instance of Manila a civil case
docketed as No. 56701 against petitioner Fisheries Commissioner Arsenio N. Roldan, Jr., for the recovery
of fishing vessel Tony Lex VI (one of two fishing boats in question) which had been seized and
impounded by petitioner Fisheries Commissioner through the Philippine Navy.

On April 10, 1964, respondent company prayed for a writ of preliminary mandatory injunction with
respondent court, but said prayer was, however, denied.

On April 28, 1964, the Court of First Instance of Manila set aside its order of April 10, 1964 and granted
respondent company's motion for reconsideration praying for preliminary mandatory injunction. Thus,
respondent company took Possession of the vessel Tony Lex VI from herein petitioners by virtue of the
abovesaid writ.

On December 10, 1964, the Court of First Instance of Manila dismissed Civil Case No. 56701 for failure of
therein petitioner (respondent company herein) to prosecute as well as for failure of therein defendants
(petitioners herein)to appear on the scheduled date of hearing. The vessel, Tony Lex VI or Srta. Winnie
however, remained in the possession of respondent company.

On July 20, 1965, petitioner Fisheries Commissioner requested the Philippine Navy to apprehend vessels
Tony Lex VI and Tony Lex III, also respectively called Srta. Winnie and Srta. Agnes, for alleged violations
of some provisions of the Fisheries Act and the rules and regulations promulgated thereunder.

On August 5 or 6, 1965, the two fishing boats were actually seized for illegal fishing with dynamite. Fish
caught with dynamite and sticks of dynamite were then found aboard the two vessels.

On August 18, 1965, the Fisheries Commissioner requested the Palawan Provincial Fiscal to file criminal
charges against the crew members of the fishing vessels.

On September 30, 1965, there were filed in the court of First Instance of Palawan a couple of
informations, one against the crew members of Tony Lex III, and another against the crew members of
Tony Lex VI — both for violations of Act No. 4003, as amended by Commonwealth Acts Nos. 462, 659
and 1088, i.e., for illegal fishing with the use of dynamite. On the same day, the Fiscal filed an ex
parte motion to hold the boats in custody as instruments and therefore evidence of the crime (p. 54,
rec.), and cabled the Fisheries Commissioner to detain the vessels (p. 56, rec.).

On October 2 and 4, likewise, the Court of First Instance of Palawan ordered the Philippine Navy to take
the boats in custody.

On October 2, 1965, respondent company filed a complaint with application for preliminary mandatory
injunction, docketed as Civil Case No. 62799 with the Court of First Instance of Manila against herein
petitioners. Among others, it was alleged that at the time of the seizure of the fishing boats in issue, the
same were engaged in legitimate fishing operations off the coast of Palawan; that by virtue of the offer
of compromise dated September 13, 1965 by respondent company to the Secretary of Agriculture and
Natural Resources, the numerous violations of the Fishery Laws, if any, by the crew members of the
vessels were settled.

On October 9, 1965, petitioners, represented by the Solicitor General, opposed the above-mentioned
complaint, alleging among others, that: (1) the issuance of the writ would disrupt the status quo of the
parties and would render nugatory any decision of the respondent court favorable to the defendant; (2)
that the vessels, being instruments of a crime in criminal cases Nos. 3416 and 3417 filed with the Court
of First Instance of Palawan, the release of the vessels sans the corresponding order from the above-
mentioned court would deprive the same of its authority to dispose of the vessels in the criminal cases
and the Provincial Fiscal would not be able to utilize said vessels as evidence in the prosecution of said
cases; (3) that as petitioners herein were in possession of one of the vessels in point, they cannot now
be deprived of the legal custody thereof by reason of the dismissal of Civil Case No. 56701; (4) that
petitioner Fisheries Commissioner has the power to seize and detain the vessels pursuant to Section 5 of
Republic Act No. 3215 in relation to Sections 903 and 2210 of the Revised Tariff and Customs Code; (5)
that respondents herein have not exhausted administrative remedies before coming to court; (6) that
the compromise agreement approved by the Secretary of Agriculture and Natural Resources and
indorsed to the Fisheries Commissioner is never a bar to the prosecution of the crime perpetrated by
the crew members of the vessels belonging to respondent company.

And again, on October 15, 1965, herein petitioners filed their memorandum praying for the denial of the
application for preliminary mandatory injunction. On the same day, October 15, 1965, herein petitioners
filed an urgent motion to submit additional documentary evidence.

On October 18, 1965, herein petitioners, as defendants in said Civil Case No. 62799, filed their answer to
the complaint with affirmative defenses, reiterating the grounds in their opposition to the issuance of a
writ of preliminary mandatory injunction and adding that herein private respondent admitted
committing the last violation when it offered in its letter dated September 21, 1965 to the Acting
Commissioner of Fisheries, to compromise said last violation (Exh. 12, pp. 60-61, rec.).

On said day, October 18, 1965, the respondent Judge issued the challenged order granting the issuance
of the writ of preliminary mandatory injunction and issued the preliminary writ upon the filing by private
respondent of a bond of P5,000.00 for the release of the two vessels(pp. 95-102, rec.).

On October 19, 1965, herein petitioners filed a motion for reconsideration of the order issuing the
preliminary writ on October 18, 1965 on the ground, among others, that on October 18, 1965 the
Philippine Navy received from the Palawan Court of First Instance two orders dated October 2 and 4,
1965 requiring the Philippine Navy to hold the fishing boats in custody and directing that the said vessels
should not be released until further orders from the Court, and that the bond of P5,000.00 is grossly
insufficient to cover the Government's losses in case the two vessels, which are worth P495,000.00, are
placed beyond the reach of the Government, thus frustrating their forfeiture as instruments of the crime
(pp. 103-109, rec.).1äwphï1.ñët

On November 23, 1965, respondent Judge denied the said motion for reconsideration (p. 110, rec.).

WE rule that the respondent Judge of the Manila Court of First Instance acted without jurisdiction and
with grave abuse of discretion when he issued on October 18, 1965 the order directing the issuance of a
writ of preliminary mandatory injunction and when he refused to reconsider the same.

When the respondent Judge issued the challenged order on October 18, 1965 and the writ of
preliminary mandatory injunction pursuant thereto, the fishing vessels were already under the
jurisdiction of the Court of First Instance of Palawan by virtue of its orders of October 2 and 4, 1965,
upon motion of the Provincial Fiscal (pp. 54, 55, rec.), directing the Philippine Navy to detain (pp. 108,
109, rec.) said vessels, which are subject to forfeiture as instruments of the crime, to be utilized as
evidence in Criminal Cases Nos. 3416 and 3417 for illegal fishing pending in said court (pp. 54-55, rec.).
The said vessels were seized while engaging in prohibited fishing within the territorial waters of Palawan
(pp. 45, 48,-53, rec.) and hence within the jurisdiction of the Court of First Instance of Palawan, in
obedience to the rule that "the place where a criminal offense was committed not only determines the
venue of the action but is an essential element of jurisdiction"(Lopez vs. Paras, L-25795, Oct. 29, 1966,
18 SCRA 616, 619). The jurisdiction over the vessels acquired by the Palawan Court of First Instance
cannot be interfered with by another Court of First Instance. The orders of October 2 and 4, 1965 by the
Palawan Court of First Instance expressly direct the Philippine Navy "to hold in custody" the two vessels
and that "same should not be released without prior order or authority from this Court" (pp. 108, 109,
rec.). Only the Palawan court can order the release of the two vessels. Not even the Secretary of
Agriculture and Natural Resources nor the Fisheries Commissioner can direct that the fishing boats be
turned over to private respondent without risking contempt of court.

The grave abuse of discretion committed by the respondent Judge was heightened by the fact that he
did not reconsider his order of October 18, 1965 after he was informed by petitioners in their motion for
reconsideration filed on October 19, 1965 that the Palawan Court of First Instance had already issued
the two orders dated October 2 and 4, 1965 directing the Philippine Navy to hold in custody the fishing
boats until further orders.

It is basic that one court cannot interfere with the judgments, orders or decrees of another court of
concurrent or coordinate jurisdiction having equal power to grant the relief sought by injunction;
because if coordinate courts were allowed to interfere with each other's judgments, decrees or
injunctions, the same would obviously lead to confusion and might seriously hinder the administration
of justice (Ongsinco, etc. vs. Tan, et al., 97 Phil. 330; PNB vs. Javellana, 92 Phil. 525; Montesa vs. Manila
Cordage Company, 92 Phil. 25; Hubahib vs. Insular Drug Company, 64 Phil. 119; Hacbang, et al. vs. The
Leyte Auto Bus Company, et al., G.R. No. L-17907, May 30, 1963, 8 SCRA, 103, 107-109; NPC vs. Hon.
Jesus de Vera, G.R. No. L-15763, Dec. 22, 1961, 3 SCRA, 646, 648; Cabigao vs. del Rosario, 44 Phil. 182;
Araneta & Uy vs. Commonwealth Insurance Company, 55 OG 431; Moran, Comments on the Rules of
Court, Vol. III, 1970 ed., p. 64).

As early as October 2 and 4, 1965, the two boats were already in custodia legis under the sole control of
the Palawan Court of First Instance. The Manila Court of First Instance cannot interfere with and change
that possession (Hacbang vs. Leyte Bus Co., Inc., supra; NPC vs. Hon. Jesus de Vera, supra).

It is immaterial that the vessels were then in the Philippine Navy basin in Manila; for the same in no way
impugns the jurisdiction already vested in the Palawan court, which has custody thereof through the
Philippine Navy. This is analogous to the situation in Colmenares versus Villar (L-27124, May 29, 1970,
33 SCRA 186, 188-9), wherein We ruled "where the illegal possession of firearms was committed in the
town where the Court sits, the fact that the firearms were confiscated from the accused in another town
does not affect the jurisdiction of the Court" (pp. 186, 189).

It is likewise of no moment that the herein respondents were not notified by the herein petitioners of
the seizure of the questioned vessels by the Philippine Navy, because such previous notice is not
required by law.

II

The dismissal on December 10, 1964 of the first Civil Case No. 56701 by the Court of First Instance of
Manila had the necessary effect of automatically dissolving the writ of preliminary mandatory injunction
issued therein on April 28, 1964, directing the return of fishing vessel Tony Lex VI (pp. 156-157, rec.).
Such a preliminary writ, like any other interlocutory order, cannot survive the main case of which it was
but an incident; because "an ancillary writ of preliminary injunction loses its force and effect after the
dismissal of the main petition" (National Sugar Workers' Union, etc., vs. La Carlota Sugar Central, et al.,
L-23569, May 25, 1972, 45 SCRA 104, 109; Lazaro vs. Mariano, 59 Phil. 6Z7, 631; Saavedra vs. Ibañez, 56
Phil. 33, 37; Hi Caiji vs. Phil. Sugar Estate and Development Company, 50 Phil. 592, 594).1äwphï1.ñët

Moreover, the writ of preliminary injunction issued on April 28, 1964 in Civil Case No. 56701 was
directed against the detention of the vessel Tony Lex VI for violations committed prior to August 5,
1965, and therefore cannot and does not extend to the seizure and detention of said vessel for
violations on August 5 or 6, 1965, which violations were not and could not possibly be the subject-
matter of said Civil Case No. 56701 which was filed on April 3, 1964 (p. 12, rec.).

III

Herein petitioners can validly direct and/or effect the seizure of the vessels of private respondent for
illegal fishing by the use of dynamite and without the requisite licenses.

Section 4 of Republic Act No. 3512 approved on March 20, 1963 empowers the Fisheries Commissioner
to carry out the provisions of the Fisheries Act, as amended, and all rules and regulations promulgated
thereunder, to make searches and seizures personally or through his duly authorized representatives in
accordance with the Rules of Court, of "explosives such as ... dynamites and the like ...; including fishery
products, fishing equipment, tackle and other things that are subject to seizure under existing fishery
laws"; and "to effectively implement the enforcement of existing fishery laws on illegal fishing."

Paragraph 5 of Section 4 of the same Republic Act 3512 likewise transferred to and vested in the
Philippine Fisheries Commission "all the powers, functions and duties heretofore exercised by the
Bureau of Customs, Philippine Navy and Philippine Constabulary over fishing vessels and fishery matters
..."

Section 12 of the Fisheries Act, otherwise known as Republic Act No. 4003, as amended, prohibits fishing
with dynamites or other explosives which is penalized by Section 76 thereof "by a fine of not less than
P1,500.00 nor more than P5,000.00, and by imprisonment for not less than one (1) year and six (6)
months nor more than five (5) years, aside from the confiscation and forfeiture of all explosives, boats,
tackles, apparel, furniture, and other apparatus used in fishing in violation of said Section 12 of this Act."
Section 78 of the same Fisheries Law provides that "in case of a second offense, the vessel, together
with its tackle, apparel, furniture and stores shall be forfeited to the Government."

The second paragraph of Section 12 also provides that "the possession and/or finding, of dynamite,
blasting caps and other explosives in any fishing boat shall constitute a presumption that the said
dynamite and/or blasting caps and explosives are being used for fishing purposes in violation of this
Section, and that the possession or discovery in any fishing boat or fish caught or killed by the use of
dynamite or other explosives, under expert testimony, shall constitute a presumption that the owner, if
present in the fishing boat, or the fishing crew have been fishing with dynamite or other explosives."
(Emphasis supplied).

Under Section 78 of the Fisheries Act, as amended, any person, association or corporation fishing in
deep sea fishery without the corresponding license prescribed in Sections 17 to 22 Article V of the
Fisheries Act or any other order or regulation deriving force from its provisions, "shall be punished for
each offense by a fine of not more than P5,000.00, or imprisonment, for not more than one year, or
both, in the discretion of the Court; Provided, That in case of an association or corporation, the
President or manager shall be directly responsible for the acts of his employees or laborers if it is proven
that the latter acted with his knowledge; otherwise the responsibility shall extend only as far as fine is
concerned: Provided, further, That in the absence of a known owner of the vessel, the master, patron or
person in charge of such vessel shall be responsible for any violation of this Act: and Provided, finally,
That in case of a second offense, the vessel together with its tackle, apparel, furniture and stores shall be
forfeited to the Government" (Emphasis supplied).

Under Section 13 of Executive Order No. 389 of December 23, 1950, reorganizing the Armed Forces of
the Philippines, the Philippine Navy has the function, among others, "to assist the proper governmental
agencies in the enforcement of laws and regulations pertaining to ... fishing ..." (46 OG 5905, 5911).

Section 2210 of the Tariff and Customs Code, as amended by PD No. 34 of October 27, 1972, authorized
any official or person exercising police authority under the provisions of the Code, to search and seize
any vessel or air craft as well as any trunk, package, bag or envelope on board and to search any person
on board for any breach or violation of the customs and tariff laws.

When the Philippine Navy, upon request of the Fisheries Commissioner, apprehended on August 5 or 6,
1965 the fishing boats Tony Lex III and Tony Lex VI, otherwise known respectively as Srta. Agnes and
Srta. Winnie, these vessels were found to be without the necessary license in violation of Section 903 of
the Tariff and Customs Code and therefore subject to seizure under Section 2210 of the same Code, and
illegally fishing with explosives and without fishing license required by Sections 17 and 18 of the
Fisheries Law (pp. 46-47, rec.).1äwphï1.ñët
The operation of the fishing boat Tony Lex III was suspended pursuant to the order dated January 28,
1964 issued by the Commissioner of Fisheries pending the final determination of the case against it for
illegal fishing with explosives on January 21, 1964 (p. 34, rec.) and remained suspended until its
apprehension on August 5 or 6, 1965 (p. 46, rec.).

For illegal fishing with explosives on March 23, 1963, the renewal of the fishing boat license of Tony Lex
VI was suspended for one year from the time said boat was moored at Pier 14 at North Harbor, Manila,
without prejudice to the institution of a criminal case against its owner and/or operator, pursuant to the
order dated May 19, 1964 issued by the Commissioner of Fisheries (pp. 35-36, rec.), the motion for
reconsideration of which order was denied by the Commissioner of Fisheries in an order dated August
17, 1964 (pp. 41-42, rec.).

For illegal fishing with dynamite on March 28, 1963, the operation of Tony Lex VI was suspended by the
Commissioner of Fisheries in an order dated April 1, 1963 (p. 62, rec.).

For illegal fishing again with explosives on April 25, 1963, the fishing boat Tony Lex VI together with its
tackle, apparel, furniture and all other apparatus used in fishing was ordered confiscated and forfeited
in favor of the Government and a fine in the amount of P5,000.00 was imposed on its owners-operators,
without prejudice to the filing of the necessary criminal action, pursuant to the order of June 2, 1964 of
the Commissioner of Fisheries(pp. 37-38, rec.).

Again, for comitting the same violation on June 19, 1963, a fine in the amount of P5,000.00 was imposed
on the owners-operators of fishing boat Tony Lex VI pursuant to the order of June 4, 1964 issued by the
Commissioner of Fisheries (pp. 39-40, rec.)..

It appears, therefore, that since January 28, 1964, the fishing boat Tony Lex III was suspended from
operating and was ordered moored at Pier 14, North Harbor, Manila (pp. 34, 46-47, rec.); and that the
fishing vessel Tony Lex VI was suspended for one year from May 24, 1964 and was actually ordered
forfeited to the Government pursuant to the order of June 2, 1964 for repeated violations of Section 12
of the Fisheries Act (pp. 37- 38. rec.).1äwphï1.ñët As a matter of fact, when apprehended on August 5 or
6, 1965, both vessels were found to be without any license or permit for coastwise trade or for fishing
and unlawfully fishing with explosives, for which reason their owners and crew were accordingly
indicted by the Provincial Fiscal of Palawan for illegal fishing with dynamite and without the requisite
license (pp. 48-53, rec.).

As heretofore intimated, the two fishing boats were apprehended on numerous occasions for fishing
with dynamite from March 28, 1963 to March 11, 1964, which violations private respondent, as owner-
operator, sought to compromise by offering to pay a fine of P21,000.00 for all said prior violations.

Such previous violations of Sections 12, 17 and 18 of the Fisheries Act committed by the two fishing
boats, Tony Lex III and Tony Lex VI, from March 28, 1963 until August 5 or 6, 1965, rendered the said
vessels subject to forfeiture under Sections 76 and 78 of the Fisheries Act, as amended.

Search and seizure without search warrant of vessels and air crafts for violations of the customs laws
have been the traditional exception to the constitutional requirement of a search warrant, because the
vessel can be quickly moved out of the locality or jurisdiction in which the search warrant must be
sought before such warrant could be secured; hence it is not practicable to require a search warrant
before such search or seizure can be constitutionally effected (Papa vs. Mago, L-27360, Feb. 28, 1968, 22
SCRA 857, 871-74; Magoncia vs. Palacio, 80 Phil. 770, 774; Caroll vs. U.S. 267, pp. 132, 149, 158; Justice
Fernando, The Bill of Rights, 1972 ed., p. 225; Gonzales, Philippine Constitutional Law, 1966 ed., p. 300).

The same exception should apply to seizures of fishing vessels breaching our fishery laws. They are
usually equipped with powerful motors that enable them to elude pursuing ships of the Philippine Navy
or Coast Guard.

Another exception to the constitutional requirement of a search warrant for a valid search and seizure,
is a search or seizure as an incident to a lawful arrest (Alvero vs. Dizon, 76 Phil. 637; Justice Fernando,
The Bill of Rights, 1972 ed., p. 224). Under our Rules of Court, a police officer or a private individual may,
without a warrant, arrest a person (a) who has committed, is actually committing or is about to commit
an offense in his presence; (b) who is reasonably believed to have committed an offense which has been
actually committed; or (c) who is a prisoner who has escaped from confinement while serving a final
judgment or from temporary detention during the pendency of his case or while being transferred from
one confinement to another (Sec. 6, Rule 113, Revised Rules of Court). In the case at bar, the members
of the crew of the two vessels were caught in flagrante illegally fishing with dynamite and without the
requisite license. Thus their apprehension without a warrant of arrest while committing a crime is
lawful. Consequently, the seizure of the vessel, its equipment and dynamites therein was equally valid as
an incident to a lawful arrest.

The alleged compromise approved by the Secretary of Agriculture and Natural Resources on September
13, 1965 (pp. 63-64, 158-159, rec.) cannot be invoked by the respondents because the said compromise
referred to about thirty violations of the fisheries law committed by the private respondent from March
28, 1963 to March 11, 1964. The violations by the two vessels of private respondent by reason of which
these vessels were apprehended and detained by the Philippine Navy upon request of the
Commissioner of Fisheries, were committed on August 5 or 6, 1965.

Moreover, the power to compromise would exist only before a criminal prosecution is instituted;
otherwise the Department Secretary or any of his sub-alterns can render criminal prosecutions for
violations of the fisheries law a mere mockery. It is not in the public interest nor is it good policy to
sustain the viewpoint that the Department Secretary can compromise criminal cases involving public,
not private, offenses after the indictment had been instituted in court. The fishing vessels together with
all their equipment and the dynamites found therein are not only evidence of the crime of illegal fishing
but also subject to forfeiture in favor of the Government as instruments of the crime (Art. 45, Revised
Penal Code, Sec. 78, Act No. 4003, as amended). Section 80(j) of Act No. 4003, as amended, precludes
such a compromise the moment the Fisheries Commissioner decides to prosecute the criminal action in
accordance with Sections 76 and 78 of the other penal provisions of the fisheries law. Furthermore, any
compromise shall be upon the recommendation of the Fisheries Commission (Section 80[i], Act No.
4003), which did not recommend such a compromise for the violation on August 5 or 6, 1965 of Section
12 in relation to Sections 76 and 78 of Act No. 4003, as amended. On the contrary, the Fisheries
Commissioner requested the Provincial Fiscal to institute the criminal cases (pp. 43-45, rec.) and the
Provincial Fiscal filed the corresponding informations docketed as Criminal Cases Nos. 3416 and 3417 on
September 30, 1965 against the owners and the members of the crew of the vessels (pp. 48-53, rec.).

It should be noted that in the first indorsement dated September 13, 1965 of the Secretary of
Agriculture and Natural Resources approving the compromise fine of P21,000.00 for the various
violations committed previous to August 5 or 6, 1965 (pp. 34-42, 47, 58-64, 149-155, 158-159, rec.), the
Department Secretary "believes that the offer made by the company was an implied admission of
violations of said provisions of the Fisheries Law and regulations, ..." (pp. 63, 158, rec.). The said
approval was granted after the private respondent filed a motion for reconsideration of the
indorsement dated March 5, 1965 of the Secretary of Agriculture and Natural Resources disapproving
the offer by private respondent to pay the fine by way of compromise.

There can be no dispute that the term fishing boat (employed in the second paragraph of Section 12 of
the Fisheries Act applies to the vessels Tony Lex III and Tony Lex VI. Even private respondent refers to
said fishing boats as fishing vessels "engaged in fishing operations" or "in commercial fishing" in
paragraph IV of its complaint in Civil Case No. 62799 (p. 18, rec.), as well as in its various
communications to the Fisheries Commissioner (pp. 60-61, 65, 82, rec.).1äwphï1.ñët The two fishing
vessels Tony Lex III and Tony Lex VI likewise fall under the term vessel used in Sections 17, 76 and 78, as
well as the term boats utilized in the second paragraph of Section 76 of the Fisheries Act. They can also
fall under the term fishing equipment employed in Section 4 of Republic Act No. 3512; because a fishing
equipment is never complete and cannot be effectively used in off-shore or deep-sea fishing without the
fishing boat or fishing vessel itself. And these two vessels of private respondent certainly come under
the termfishing vessels employed in paragraph 5 of Section 4 of the same Republic Act 3512 creating the
Fisheries Commission.

Hence, no useful purpose can be served in trying to distinguish between boat and vessel with reference
to Tony Lex III and Tony Lex VI. As a matter of fact, the accepted definition of vessel includes "every
description of water craft, large or small, used or capable of being used as a means of transportation on
water" (Cope versus Vallete, etc., 199 U.S. 625; U.S. vs. Holmes, 104 Fed. 884; Charles Barnes Co. vs. One
Dredge Boat, 169 Fed. 895; and Yu Con vs. Ipil, 41 Phil. 780).

The word boat in its ordinary sense, means any water craft (Monongahela River Construction, etc. vs.
Hardsaw, 77 NE 363, 365). The fishing boats Tony Lex III and Tony Lex VI are likewise vessels within the
meaning of the term vessel used in Sections 903 and 2210 of the Tariff and Customs Code.

WHEREFORE, THE PETITION IS HEREBY GRANTED AND THE ORDER OF RESPONDENT JUDGE DATED
OCTOBER 18, 1965, THE WRIT OF PRELIMINARY MANDATORY INJUNCTION ISSUED THEREUNDER AND
THE ORDER DATED NOVEMBER 23, 1965, ARE HEREBY SET ASIDE AS NULL AND VOID, WITH COSTS
AGAINST PRIVATE RESPONDENT.
G.R. No. 83988 September 29, 1989

RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S RIGHTS
(ULAP), petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT COMMAND, respondents.

Ricardo C. Valmonte for himself and his co-petitioners.

PADILLA, J.:

This is a petition for prohibition with preliminary injunction and/or temporary restraining order, seeking
the declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional and the
dismantling and banning of the same or, in the alternative, to direct the respondents to formulate
guidelines in the implementation of checkpoints, for the protection of the people.

Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of the
Integrated Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner Union
of Lawyers and Advocates for People's Rights (ULAP) sues in its capacity as an association whose
members are all members of the IBP.

The factual background of the case is as follows:

On 20 January 1987, the National Capital Region District Command (NCRDC) was activated pursuant to
Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission of conducting
security operations within its area of responsibility and peripheral areas, for the purpose of establishing
an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to
the social, economic and political development of the National Capital Region.1 As part of its duty to
maintain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela, Metro
Manila.

Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela are
worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical
disposition of the military manning the checkpoints, considering that their cars and vehicles are being
subjected to regular searches and check-ups, especially at night or at dawn, without the benefit of a
search warrant and/or court order. Their alleged fear for their safety increased when, at dawn of 9 July
1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan, was gunned down
allegedly in cold blood by the members of the NCRDC manning the checkpoint along McArthur Highway
at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the checkpoint and for
continuing to speed off inspire of warning shots fired in the air. Petitioner Valmonte also claims that, on
several occasions, he had gone thru these checkpoints where he was stopped and his car subjected to
search/check-up without a court order or search warrant.

Petitioners further contend that the said checkpoints give the respondents a blanket authority to make
searches and/or seizures without search warrant or court order in violation of the Constitution; 2 and,
instances have occurred where a citizen, while not killed, had been harassed.
Petitioners' concern for their safety and apprehension at being harassed by the military manning the
checkpoints are not sufficient grounds to declare the checkpoints as per se illegal. No proof has been
presented before the Court to show that, in the course of their routine checks, the military indeed
committed specific violations of petitioners' right against unlawful search and seizure or other rights.

In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People's Right
(ULAP) vs. Integrated National Police, 3 it was held that individual petitioners who do not allege that any
of their rights were violated are not qualified to bring the action, as real parties in interest.

The constitutional right against unreasonable searches and seizures is a personal right invocable only by
those whose rights have been infringed, 4 or threatened to be infringed. What constitutes a reasonable
or unreasonable search and seizure in any particular case is purely a judicial question, determinable
from a consideration of the circumstances involved. 5

Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without a
search warrant by the military manning the checkpoints, without more, i.e., without stating the details
of the incidents which amount to a violation of his right against unlawful search and seizure, is not
sufficient to enable the Court to determine whether there was a violation of Valmonte's right against
unlawful search and seizure. Not all searches and seizures are prohibited. Those which are reasonable
are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be
resolved according to the facts of each case. 6

Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on
the public fair grounds, 7 or simply looks into a vehicle, 8 or flashes a light therein, 9 these do not
constitute unreasonable search.

The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be
considered as a security measure to enable the NCRDC to pursue its mission of establishing effective
territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also
be regarded as measures to thwart plots to destabilize the government, in the interest of public security.
In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of
the insurgency movement, so clearly reflected in the increased killings in cities of police and military
men by NPA "sparrow units," not to mention the abundance of unlicensed firearms and the alarming
rise in lawlessness and violence in such urban centers, not all of which are reported in media, most likely
brought about by deteriorating economic conditions — which all sum up to what one can rightly
consider, at the very least, as abnormal times. Between the inherent right of the state to protect its
existence and promote public welfare and an individual's right against a warrantless search which is
however reasonably conducted, the former should prevail.

True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the
same manner that all governmental power is susceptible of abuse. But, at the cost of occasional
inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal
times, when conducted within reasonable limits, are part of the price we pay for an orderly society and a
peaceful community.
Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and a
review and refinement of the rules in the conduct of the police and military manning the checkpoints
was ordered by the National Capital Regional Command Chief and the Metropolitan Police Director. 10

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Cortes, Griño-
Aquino, Medialdea and Regalado, JJ., concur.
G.R. No. 136292 January 15, 2002

RUDY CABALLES y TAIÑO, 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 Taiño, guilty beyond reasonable doubt of the crime of theft, and the
resolution2 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 ₱1,000.00 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 ₱55,244.45, 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 ₱55, 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.1âwphi1.nêt

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?

A We were conducting patrol at the poblacion and some barangays, sir.

xxx xxx xxx

Q After conducting the patrol operation, do you remember of any unusual incident on said date and
time?

A Yes, sir.

Q What is that incident?

A While I was conducting my patrol at barangay Sampalucan, I saw Rudy Caballes driving a vehicle
and the vehicle contained aluminum wires, sir.

xxx xxx xxx

Q When you saw the accused driving the said vehicle, what did you do?

A Because I saw that the vehicle being driven by Caballes was covered by kakawati leaves, I became
suspicious since such vehicle should not be covered by those and I flagged him, sir.

Q Did the vehicle stop?

A Yes, sir, and after said vehicle stop[ped], I removed the cover of said vehicle and by so doing, I
saw the aluminum wires.

Q Before you saw the aluminum wires, did you talk to the accused?

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


Q What was the answer of Caballes?

A He did not answer and I observed him to be pale, "nagpapamutla" (sic), so I told him I will look at
the contents of his vehicle and he answered in the positive.

Q And after you saw for yourself the aluminum wires loaded on the jeep, what did you do?

A I asked him where those wires came from and he answered those came from the Cavinti area,
sir."48

This Court is not unmindful of cases upholding the validity of consented warrantless searches and
seizure. But in these cases, the police officers' request to search personnel effects was orally articulated
to the accused and in such language that left no room for doubt that the latter fully understood what
was requested. In some instance, the accused even verbally replied to the request demonstrating that
he also understood the nature and consequences of such request.49

In Asuncion vs. Court of Appeals,50 the apprehending officers sought the permission of petitioner to
search the car, to which the latter agreed. Petitioner therein himself freely gave his consent to said
search. In People vs. Lacerna,51 the appellants who were riding in a taxi were stopped by two policemen
who asked permission to search the vehicle and the appellants readily agreed. In upholding the validity
of the consented search, the Court held that appellant himself who was "urbanized in mannerism and
speech" expressly said that he was consenting to the search as he allegedly had nothing to hide and had
done nothing wrong. In People vs. Cuizon,52 the accused admitted that they signed a written permission
stating that they freely consented to the search of their luggage by the NBI agents to determine if they
were carrying shabu. In People vs. Montilla,53 it was held that the accused spontaneously performed
affirmative acts of volition by himself opening the bag without being forced or intimidated to do so,
which acts should properly be construed as a clear waiver of his right. In People vs. Omaweng,54 the
police officers asked the accused if they could see the contents of his bag to which the accused said "you
can see the contents but those are only clothings." Then the policemen asked if they could open and see
it, and accused answered "you can see it." The Court said there was a valid consented
search.1âwphi1.nêt

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.

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 o’clock dawn, in the Municipality of Tarlac, Province
of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused
conspiring, confederating and helping with one another, without being lawfully authorized, did then and
there willfully, unlawfully and feloniously make delivery/transport with intent to sell marijuana leaves
wrapped in a transparent plastic weighing approximately eight (8) kilos, which is in violation of Section
4, Article II of RA 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended.

CONTRARY TO LAW."2

During their arraignment, both entered a plea of Not Guilty. Trial on the merits ensued.

It appears from the evidence adduced by the prosecution that in August of 1996, intelligence operatives
of the Philippine National Police (PNP) stationed in Tarlac, Tarlac began conducting surveillance
operation on suspected drug dealers in the area. They learned from their asset that a certain woman
from Tajiri, Tarlac and a companion from Baguio City were transporting illegal drugs once a month in big
bulks.

On October 19, 1996, at about 10 o’clock in the evening, Chief Inspector Benjamin Arceo, Tarlac Police
Chief, held a briefing in connection with a tip which his office received that the two drug pushers, riding
in a tricycle, would be making a delivery that night. An hour later, the Police Alert Team installed a
checkpoint in Barangay Salapungan to apprehend the suspects. Witness SPO1 Marlon Gamotea, PO3
Florante Ferrer and SPO3 Roberto Aquino were assigned to man the checkpoint.

At about 1:00 o’clock in the morning of the following day, SPO1 Gamotea and PO3 Ferrer flagged down
a passing tricycle. It had two female passengers seated inside, who were later identified as the appellant
Agpanga Libnao and her co-accused Rosita Nunga.3 In front of them was a black bag. Suspicious of the
black bag and the two’s uneasy behavior when asked about its ownership and content, the officers
invited them to Kabayan Center No.2 located at the same barangay. They brought with them the black
bag.

Upon reaching the center, PO3 Ferrer fetched Barangay Captain Roy Pascual to witness the opening of
the black bag. In the meantime, the two women and the bag were turned over to the investigator on
duty, SPO3 Arthur Antonio. As soon as the barangay captain arrived, the black bag was opened in the
presence of the appellant, her co-accused and personnel of the center. Found inside it were eight bricks
of leaves sealed in plastic bags and covered with newspaper. The leaves were suspected to be
marijuana.

To determine who owns the bag and its contents, SPO3 Antonio interrogated the two. Rosita Nunga
stated that it was owned by the appellant. The latter, in turn, disputed this allegation. Thereafter, they
were made to sign a confiscation receipt without the assistance of any counsel, as they were not
informed of their right to have one. During the course of the investigation, not even close relatives of
theirs were present.

The seized articles were later brought to the PNP Crime Laboratory in San Fernando, Pampanga on
October 23, 1996. Forensic Chemist Daisy P. Babu conducted a laboratory examination on them. She
concluded that the articles were marijuana leaves weighing eight kilos.4

For their part, both accused denied the accusation against them. Rosita Nunga testified that in the
evening of October 19,1996, she went to buy medicine for her ailing child at a pharmacy near the Tarlac
Provincial Hospital. The child was suffering from diarrhea, occasioned by abdominal pain. To return to
their house, she boarded a tricycle bound for Barangay Tariji, where she resides. Along the way, the
tricycle she was riding was flagged down by a policeman at a checkpoint in Barangay Salapungan. She
was taken aback when the officer invited her to the Kabayan Center. It was there that she was
confronted with the black bag allegedly containing eight bricks of marijuana leaves. She disputed owning
the bag and knowing its contents. She also denied sitting beside the appellant in the passenger’s seat
inside the tricycle, although she admitted noticing a male passenger behind the driver.

Remarkably, appellant did not appear in court and was only represented by her lawyer. The latter
marked and submitted in evidence an affidavit executed by one Efren Gannod, a security guard of
Philippine Rabbit Bus Lines in Tarlac, Tarlac. The sworn statement declared that at about 0220H on
October 20, 1996, SPO2 Antonio arrived at their terminal and arrested a certain woman who boarded
their Bus No. 983. The incident was recorded in the company’s logbook. Gannod, however, was not
presented in court to attest that the woman referred in his affidavit was the appellant.

After trial, the court convicted appellant and her co-accused Rosita Nunga, thus:

"WHEREFORE, finding both accused guilty beyond reasonable doubt of the offense of violation of Article
II, Section 4 of RA 6425 in relation to RA 7659, they are hereby sentenced to suffer an imprisonment of
reclusion perpetua and to pay a fine of two million pesos.

SO ORDERED."5

Aggrieved by the verdict, appellant interposed the present appeal. In her brief, she assigned the
following errors:

"1. The Honorable Regional Trial Court failed to appreciate the contention of the defense that the right
of accused against illegal and unwarranted arrest and search was violated by the police officers who
arrested both accused.
2. The Honorable Court failed to appreciate the contention of the defense that the right of the accused
to custodial investigation was deliberately violated by the peace officers who apprehended and
investigated the accused.

3. The Honorable Court miserably failed to evaluate the material inconsistencies in the testimonies of
the prosecution’s witnesses which inconsistencies cast doubt and make incredible the contention and
version of the prosecution.

4. The Honorable Court gravely abused its discretion when it appreciated and considered the
documentary and object evidence of the prosecution not formally offered amounting to ignorance of
the law."6

We are not persuaded by these contentions; hence, the appeal must be dismissed.

In arguing that her arrest was unlawful, appellant capitalizes on the absence of a warrant for her arrest.
She contends that at the time she was apprehended by the police officers, she was not committing any
offense but was merely riding a tricycle. In the same manner, she impugns the search made on her
belongings as illegal as it was done without a valid warrant or under circumstances when warrantless
search is permissible. Consequently, any evidence obtained therein is inadmissible against her.

These arguments fail to impress. The general rule is that a search may be conducted by law enforcers
only on the strength of a search warrant validly issued by a judge as provided in Article III, Section 2 of
the 1987 Constitution, thus:

"The right of the people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant
and warrant of arrest shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized."7

The constitutional guarantee is not a blanket prohibition against all searches and seizures as it operates
only against "unreasonable" searches and seizures. Searches and seizures are as a rule unreasonable
unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental
protection accorded by the search and seizure clause is that between persons and police must stand the
protective authority of a magistrate clothed with power to issue or refuse to issue search warrants and
warrants of arrest.8

Be that as it may, the requirement that a judicial warrant must be obtained prior to the carrying out of a
search and seizure is not absolute. There are certain familiar exceptions to the rule, one of which relates
to search of moving vehicles.9 Warrantless search and seizure of moving vehicles are allowed in
recognition of the impracticability of securing a warrant under said circumstances as the vehicle can be
quickly moved out of the locality or jurisdiction in which the warrant may be sought.10 Peace officers in
such cases, however, are limited to routine checks where the examination of the vehicle is limited to
visual inspection.11 When a vehicle is stopped and subjected to an extensive search, such would be
constitutionally permissible only if the officers made it upon probable cause, i.e., upon a belief,
reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle
contains as item, article or object which by law is subject to seizure and destruction.12
In earlier decisions, we held that there was probable cause in the following instances: (a) where the
distinctive odor of marijuana emanated from the plastic bag carried by the accused;13 (b) where an
informer positively identified the accused who was observed to be acting suspiciously;14 (c) where the
accused who were riding a jeepney were stopped and searched by policemen who had earlier received
confidential reports that said accused would transport a quantity of marijuana;15 (d) where Narcom
agents had received information that a Caucasian coming from Sagada, Mountain Province had in his
possession prohibited drugs and when the Narcom agents confronted the accused Caucasian because of
a conspicuous bulge in his waistline, he failed to present his passport and other identification papers
when requested to do so;16 (f) where the moving vehicle was stopped and searched on the basis of
intelligence information and clandestine reports by a deep penetration agent or spy -- one who
participated in the drug smuggling activities of the syndicate to which the accused belong -- that said
accused were bringing prohibited drugs into the country;17 (g) where the arresting officers had received
a confidential information that the accused, whose identity as a drug distributor was established in a
previous test-buy operation, would be boarding MV Dona Virginia and probably carrying shabu with
him;18 (h) where police officers received an information that the accused, who was carrying a suspicious-
looking gray luggage bag, would transport marijuana in a bag to Manila;19and (i) where the appearance
of the accused and the color of the bag he was carrying fitted the description given by a civilian asset.20

The warrantless search in the case at bench is not bereft of a probable cause. The Tarlac Police
Intelligence Division had been conducting surveillance operation for three months in the area. The
surveillance yielded the information that once a month, appellant and her co-accused Rosita Nunga
transport drugs in big bulks. At 10:00 pm of October 19, 1996, the police received a tip that the two will
be transporting drugs that night riding a tricycle. Surely, the two were intercepted three hours later,
riding a tricycle and carrying a suspicious-looking black bag, which possibly contained the drugs in bulk.
When they were asked who owned it and what its content was, both became uneasy. Under these
circumstances, the warrantless search and seizure of appellant’s bag was not illegal.

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 prosecution’s 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 latter’s failure to formally offer them. Absent any
formal offer, she argues that they again must be deemed inadmissible.

The contention is untenable. Evidence not formally offered can be considered by the court as long as
they have been properly identified by testimony duly recorded and they have themselves been
incorporated in the records of the case.23 All the documentary and object evidence in this case were
properly identified, presented and marked as exhibits in court, including the bricks of marijuana.24 Even
without their formal offer, therefore, the prosecution can still establish the case because witnesses
properly identified those exhibits, and their testimonies are recorded.25Furthermore, appellant’s counsel
had cross-examined the prosecution witnesses who testified on the exhibits.26

Appellant also assails the credibility of the testimonies of the prosecution witnesses. She first cites the
inconsistency between the testimony of SPO1 Marlon Gamotea, who said that it was SPO2 Antonio who
opened the black bag containing the marijuana; and that of SPO2 Antonio, who declared that the bag
was already open when he arrived at the Kabayan Center. She then focuses on the police officers’ failure
to remember the family name of the driver of the tricycle where she allegedly rode, claiming that this is
improbable and contrary to human experience.

Again, appellant’s arguments lack merit. The alleged inconsistencies she mentions refer only to minor
details and not to material points regarding the basic elements of the crime. They are inconsequential
that they do not affect the credibility of the witnesses nor detract from the established fact that
appellant and her co-accused were transporting marijuana. Testimonies of witnesses need only
corroborate each other on important and relevant details concerning the principal occurrence.27 The
identity of the person who opened the bag is clearly immaterial to the guilt of the appellant. Besides, it
is to be expected that the testimony of witnesses regarding the same incident may be inconsistent in
some aspects because different persons may have different recollections of the same incident.28

Likewise, we find nothing improbable in the failure of the police officers to note and remember the
name of the tricycle driver for the reason that it was unnecessary for them to do so. It was not shown
that the driver was in complicity with the appellant and her co-accused in the commission of the crime.

To be sure, credence was properly accorded to the testimonies of prosecution witnesses, who are law
enforcers. When police officers have no motive to testify falsely against the accused, courts are inclined
to uphold this presumption.29 In this case, no evidence has been presented to suggest any improper
motive on the part of the police enforcers in arresting the appellant.

Against the credible positive testimonies of the prosecution witnesses, appellant’s defense of denial and
alibi cannot stand. The defense of denial and alibi has been invariably viewed by the courts with disfavor
for it can just as easily be concocted and is a common and standard defense ploy in most cases involving
violation of the Dangerous Drugs Act.30 It has to be substantiated by clear and convincing
evidence.31 The sole proof presented in the lower court by the appellant to support her claim of denial
and alibi was a sworn statement, which was not even affirmed on the witness stand by the affiant.
Hence, we reject her defense.

IN VIEW WHEREOF, the instant appeal is DENIED. The decision of the trial court finding appellant guilty
beyond reasonable doubt of the offense of violation of Article II, Section 4 of R.A. No. 6425 in relation to
R.A. No. 7659, and sentencing her to an imprisonment of reclusion perpetua and to pay a fine of two
million pesos is hereby AFFIRMED.

SO ORDERED.

Panganiban, Sandoval-Gutierrez, Corona, and Carpio Morales, JJ., concur.


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 newspaper-wrapped dried marijuana (Exh. "E") for P10.00. Sgt. Ani returned to the NARCOM
office and turned over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga inspected
the stuff turned over to him and found it to be marijuana.
The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt. Amado Ani was
assigned as the poseur buyer for which purpose he was given P20.00 (with SN GA955883) by Belarga.
The
buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali Mihasun, Chief of
Investigation Section, and for which Belarga signed a receipt (Exh. "L" & "L-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 newspaper-wrapped marijuana (bought at
the buy-bust), the one newspaper-wrapped marijuana (bought at the test-buy) and the plastic bag
containing more marijuana (which had been taken by Sgt. Lego inside the kitchen of Mari Musa) to the
PC Crime Laboratory, Zamboanga City, for laboratory examination. The turnover of the marijuana
specimen to the PC Crime Laboratory was by way of a letter-request, dated December 14, 1989 (Exh.
"B"), which was stamped "RECEIVED" by the PC Crime Laboratory (Exh. "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 newspaper-wrapped marijuana
bought at the test-buy on December 13, 1989, through her markings (Exh. "E-1"). Mrs. Anderson also
identified her Chemistry Report (Exh. "J" & sub-markings.)

T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through his initial, the words
"buy-bust" and the words "December 14, 1989, 2:45 P.M." (written on Exhs. "C" and "D"). Belarga also
identified the receipt of the P20 marked money (with SN GA955883) (Exh. "L"), dated December 14,
1989, and his signature thereon (Exh.
"L-1"). He also identified the letter-request, dated December 14, 1989, addressed to the PC Crime
Laboratory (Exh. "B") and his signature thereon (Exh. "B-2") and the stamp of the PC Crime Laboratory
marked "RECEIVED" (Exh. "B-1").4

For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa; and (2)
Ahara R. Musa, his wife. The trial court summarized the version of the defense, thus:

[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house at Suterville,
Zamboanga City. With him were his wife, Ahara Musa, known as Ara, his one-year old child, a woman
manicurist, and a male cousin named Abdul Musa. About 1:30 that afternoon, while he was being
manicured at one hand, his wife was inside the one room of their house, putting their child to sleep.
Three NARCOM agents, who introduced themselves as NARCOM agents, dressed in civilian clothes, got
inside Mari Musa's house whose door was open. The NARCOM agents did not ask permission to enter
the house but simply announced that they were NARCOM agents. The NARCOM agents searched Mari
Musa's house and Mari Musa asked them if they had a search warrant. The NARCOM agents were just
silent. The NARCOM agents found a red plastic bag whose contents, Mari Musa said, he did not know.
He also did not know if the plastic bag belonged to his brother, Faisal, who was living with him, or his
father, who was living in another house about ten arms-length away. Mari Musa, then, was handcuffed
and when Mari Musa asked why, the NARCOM agents told him for clarification.

Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at Calarian, Zamboanga
City. Inside the NARCOM Office, Mari Musa was investigated by one NARCOM agent which investigation
was reduced into writing. The writing or document was interpreted to Mari Musa in Tagalog. The
document stated that the marijuana belonged to Mari Musa and Mari Musa was asked to sign it. But
Mari Musa refused to sign because the marijuana did not belong to him. Mari Musa said he was not told
that he was entitled to the assistance of counsel, although he himself told the NARCOM agents he
wanted to be assisted by counsel.

Mari Musa said four bullets were then placed between the fingers of his right hand and his fingers were
pressed which felt very painful. The NARCOM agents boxed him and Mari Musa lost consciousness.
While Mari Musa was maltreated, he said his wife was outside the NARCOM building. The very day he
was arrested (on cross-examination Mari Musa said it was on the next day), Mari Musa was brought to
the Fiscal's Office by three NARCOM agents. The fiscal asked him if the marijuana was owned by him and
he said "not." After that single question, Mari Musa was brought to the City Jail. Mari Musa said he did
not tell the fiscal that he had been maltreated by the NARCOM agents because he was afraid he might
be maltreated in the fiscal's office.

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 crucial18 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.
Ale20 where the Court observed that from a distance of 10-15 meters, a policeman cannot distinguish
between marijuana cigarette from ordinary ones by the type of rolling done on the cigarette sticks. And
since T/Sgt. Belarga allegedly did not see the sale, the appellant contends that the uncorroborated
testimony of Sgt. Ani can not stand as basis for his conviction.

People v. Ale does not apply here because the policeman in that case testified that he and his
companion were certain that the appellant therein handed marijuana cigarettes to the poseur-buyer
based on the appearance of the cigarette sticks. The Court rejected this claim, stating that:

This Court cannot give full credit to the testimonies of the prosecution witnesses marked as they are
with contradictions and tainted with inaccuracies.

Biñan testified that they were able to tell that the four cigarettes were marijuana cigarettes because
according to him, the rolling of ordinary cigarettes are different from those of marijuana cigarettes. (tsn,
November 13, 1984, p. 10).

It is however, incredible to believe that they could discern the type of rolling done on those cigarettes
from the distance where they were observing the alleged sale of more or less 10 to 15 meters.21

In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over
marijuana to Sgt. Ani. What he said was that there was an exchange of certain articles between the two.
The relevant portion of T/Sgt. Belarga's testimony reads:22

Q Now, do you remember whether Sgt. Ani was able to reach the house of Mari Musa?

A Yes, ma'am.

Q After reaching Mari Musa, did you see what happened (sic)?

A Yes, ma'am.

Q Could you please tell us?


A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt. Biong were boarded, I saw that
Sgt. Ani proceeded to the house near the road and he was met by one person and later known as Mari
Musa who was at the time wearing short pants and later on I saw that Sgt. Ani handed something to
him, thereafter received by Mari Musa and went inside the house and came back later and handed
something to Sgt. Ani.

Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a
distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give to the
former "something."

Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received
from the appellant was marijuana because of the distance, his testimony, nevertheless, corroborated
the direct evidence, which the Court earlier ruled to be convincing, presented by Sgt. Ani on the
following material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a surveillance and test-buy
operation on the appellant at Suterville, Zamboanga City on December 13, 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 case30 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. California42 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.

Gutierrez, Jr., Bidin, Davide, Jr. and Melo, JJ., concur.


G.R. No. 99355 August 11, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
DOMINGO SALAZAR y SEROMA, alias "INGGO," MONCHITO GOTANGUGAN y
SEVILLA alias "MONCHING" and JOHN DOE, accused, DOMINGO SALAZAR y SEROMA alias "INGGO"
and MONCHITO GOTANGUGAN y SEVILLA alias "MONCHING," accused-appellants.

PANGANIBAN, J.:

Although homicide (a crime against persons) is independently a graver offense than robbery (a crime
against property), it is treated in the special complex crime of robbery with homicide as a mere incident
committed by reason or on the occasion of the robbery. Unless the prosecution convincingly proves that
the main purpose of the cluprit(s) was the asportation of personal property and that the death was
merely incidental to such asportation, there can be no conviction for this special complex crime.

Statement of the Case

This principle is stressed by the Court as it rules on this appeal from the Judgment1 dated April 1, 1991 of
the Regional Trial Court of Quezon City, Branch 1042 which, acting as a special criminal court, convicted
Appellants Domingo Salazar y Seroma alias "Inggo" and Monchito Gotangugan y Sevilla alias "Monching"
of robbery with homicide.

In an Information dated July 31, 1989, Asst. Quezon City Prosecutor Perpetuo L.B. Alonzo accused
Appellants Salazar and Gotangugan, together with one "John Doe," of robbery with homicide committed
as follows:3

That on or about the 10th day of March 1989, in Quezon City, Metro-Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring together, confederating with
and mutually helping one another, did then and there, wilfully, unlawfully and feloniously, with intent to
gain and by means of violence upon person, rob one CRISPIN GATMEN Y CEYAS of his service firearm, a
Squires Bingham Cal. 38 Revolver with Serial No. 1096012 valued at P6,000.00, Philippine Currency, to
the damage and prejudice of the said offended party thereof in the aforementioned amount; and that
by reason of or on the occasion of the said robbery, said accused with intent to kill and without any
justifiable cause, did then and there, wilfully, unlawfully ad feloniously attack, and assault the person of
said CRISPIN GATMEN Y CEYNAS, by stabbing the latter, hitting him on the different parts of his body by
the use of bladed weapon, thereby inflicting upon him serious and mortal wounds which were the direct
and immediate cause of his untimely death, to the damage and prejudice of the heirs of said victim in
such amount as may be awarded to them under the provisions of the Civil Code.

Upon arraignment, appellants pleaded not guilty. After trial proceeded in due course, the court a
quo rendered the assailed Judgment, the dispositive portion of which reads:4

WHEREFORE, judgment is hereby rendered, finding both accused, Domingo Salazar y Seroma and
Monchito Gotangugan y Sevilla, guilty of the crime of Robbery with Homicide as charged in the
information. They are both sentenced to suffer the penalty of RECLUSION PERPETUA, to pay the heirs of
the deceased damages in the amount of P30,000.00, plus the sum of P6,500.00 representing the value
of the revolver taken by both accused, plus all the accessory penalties provided for by law, without
subsidiary imprisonment in case of insolvency, and to pay the costs.

The Facts

Evidence for the Prosecution

The prosecution presented the following witnesses: Pfc. Jose Antonio of the Quezon City Police,
Eyewitnesses Vicente Miranda, Jr. and Pedro Soriano, Dr. Dario L. Gajardo of the PC/INP Crime
Laboratory and Ben Felipe Dangza, Consultant/Manager of PUMA Security Agency. The Solicitor General,
on behalf of the People, summarized the facts as viewed by the prosecution:5

On March 10, 1989, at or about 3:30 (a.m.), Vicente Miranda, Jr. and his friend Nestor Arriola were
standing in the corner of Road 1 and Visayas Avenue, Quezon City, about 12 meters from Linda's
Supermarket (TSN, October 31, 1989, pp. 3 and 21). At about the same time, Pedro Soriano, who was
himself waiting for a ride, was standing in front of the Kambinan Restaurant along Visayas Avenue and
beside Linda's Supermarket (TSN, November 6, 1989, p. 2-3). Moments later, they saw appellants
Domingo Salazar and Monchito Gotangugan together with an unidentified companion approach the
security guard of Linda's Supermarket (TSN, October 31, 1989, pp. 3-4, 27).

Salazar, Gotangugan and their companion talked to the security guard, who was later identified as
Crispin Gatmen. Thereafter, Miranda saw Salazar pull out a 9-10 inches long dagger from his pocket, and
pass the same to Gotangugan (Ibid., pp. 5, 15, 22). Armed with the dagger, Gotangugan suddenly started
stabbing Gatmen (Ibid., p. 5, 15, 16).

At that precise moment, Pedro Soriano, who was only about 10 to 15 meters from Linda's Supermarket
heard moans coming from the guardhouse in front of Linda's Supermarket. He turned his head towards
the place where the moans were coming from and saw Gatmen inside the guardhouse being repeatedly
stabbed by Gotangugan (TSN, November 6, 1989, pp. 2-6, 15-16).

Both Miranda and Soriano were able to witness and identify the malefactors because the place where
the incident happened was well-lighted (TSN, October 31, 1989, p. 22; November 6, 1989, pp. 4-5).

While Gotangugan was stabbing Gatmen, Salazar stood close to Gotangugan, while their unidentified
companion acted as a lookout (TSN, October 31, 1989, pp. 8, 15; November 6, 1989, p. 16).

Out of fear, Miranda and Arriola ran towards Tandang Sora. While running, however, they saw Salazar
and Gotangugan get the revolver of Gatmen (TSN, October 31, 1989, pp. 7-8). Soriano, on the other
hand, left slowly but saw Salazar get the gun of Gatmen (TSN, November 6, 1989, pp. 6-7).

After getting the gun, Salazar, Gotanguga, and their unidentified companion left the scene of the crime
(TSN, October 31, 1989, p. 8; November 6, 1989, p. 7).

Gatmen died as a consequence of the following stab wounds, to wit:

(1) Hacked wound, frontal extending to the right pre-auricular region, measuring 10 by 1 cm, 8 cm from
the anterior midline, fracturing the frontal bone.

(2) Stab wound, right zygomatic region, measuring 3 by 0.7 cm, 10 cm from the anterior midline,
directed posteriorwards and medialwards, fracturing the right zygomatic bone.
(3) Incised wound, chin, measuring 1.2 by 0.3 cm, 2 cm right of the anterior midline.

(4) Stab wound, neck measuring 5 by 1.2 cm, crossing the anterior midline, 4 cm to the right and 1 cm to
the posteriorwards and medialwards, lacerating the trachea, larynx and esophagus.

(5) Stab wound, right clavicular region, measuring 8 by 2 cm, 7 cm from the anterior midline, 3 cm deep,
directed posteriorwards and medialwards, fracturing the right clavicle.

(6) Stab wound, interclavicular region, measuring 3 by 0.1 cm, 6 cm from the anterior midline.

(7) Linear abrasion, left mammary region, measuring 3 by 0.1 cm, 6 cm from the anterior midline.

(8) Lacerated wound, palmar aspect of the left hand, measuring 5 by 2 cm, 3 cm lateral to its anterior
midline.

(9) Lacerated wound, palmar aspect of the right hand, measuring 4 by 2 cm, along its anterior midline.

(10) Lacerated wound, middle phalange of the left small finger, measuring 1 by 0.1 cm.

(11) Stab wound, proximal phalange of the left index finger, measuring 2.2 by 1 cm.

(12) Incised wound, middle phalange of the right middle finger, measuring 1 by 0.5 cm.

(Exhibit "E")

Evidence for the Defense

Appellants, testifying for themselves, set up the defense of alibi. The court a quo summarized their
testimonies as follows:6

DOMINGO SALAZAR, 30 years old, and residing at c/o Bureau of Animal Industry, Visayas Avenue,
Quezon City, testified that he had been in that place for ten (10) years and that during the early morning
of July 27, 1989, he was at their house sleeping, when all of a sudden he was awakened because two
persons kicked him and with guns pointed at him, he was ordered to stand up. The two persons
searched his things inside the house and asked him where he hid his gun. Then, they dragged him out of
his house. Outside the house, he was kicked, boxed and hit with the butt of the gun. There were about
five (5) people who went to his house, all armed. He denied any participation in the killing of the
deceased because according to him, he was at his house, all sleeping. He slept at 7:00 (p.m. on) March 9
and woke up at dawn, March 10. He was with his wife Juanita Salazar, and his father-in-law. They were
sleeping side by side. He did not see Vicente Miranda and Pedro Soriano before he was arrested on July
27, 1989. However, he admitted having seen Miranda and Soriano at the police headquarters at
Sikatuna, peeping at their cell. He often saw them at City Hall with policemen accompanying newly
arrested persons.

MONCHITO GOTANGUGAN, 23 years old, married, vendor, and with residence at Visayas Avenue,
Quezon City testified that he was not at the scene of the crime when the said incident took place and
that on March 10, 1989, he was at Lucena City. On July 27, 1989, he was at the house of his sister
located at Baex Compound, Visayas Avenue, Quezon City, arriving in that place during the first week of
May 1989. In the morning of July 27, 1989, policemen forcibly entered his house and dragged him
outside, ransacking his belongings and bringing him at Sikatuna Police Headquarters. He was accuse of
being a "Sparrow", hold-upper and "akyat bahay", and ordered to bring out firearms, but they did not
find anything. They mauled him at Sikatuna headquarters. While still at their house, he was kicked and
hit with the butt of the armalite. At the Sikatuna headquarters, he was never informed by the police that
he participated in the killing of the security guard in front of Linda's Supermarket in the morning. He had
never seen the witnesses presented by the prosecution, however, he saw them at the City hall together
with policemen and other detainees.

Ruling of the Trial Court

The trial court brushed aside the alibi interposed by appellants, branding it as an inherently weak
defense. It gave full credence to the accounts of the eyewitnesses for the prosecution, as no evidence
was adduced to refute them or to show why said eyewitnesses would testify falsely against appellants.
Quite the contrary, the "prosecution evidence (was) clear and convincing." The bare allegation of the
defense that they were "assets and informants" of the apprehending policemen was disbelieved. Thus, it
rendered the aforementioned six-page Judgment of conviction.

Hence, this appeal direct to this Court, the penalty being reclusion perpetua.

Assignment of Errors

In their Brief,7 appellants attack the prosecution evidence for its lack of probative value to outweigh
their alibi and to sustain their conviction. They allege that the eyewitnesses' testimonies suffer from
material inconsistencies and contradictions that cast serious doubt on their credibility. Specifically, the
following errors were imputed to the court a quo:8

The lower court erred in giving full faith and credence to the testimonies of prosecution witnesses
Vicente Miranda and Pedro Soriano since a more conscientious scrutiny of their testimonies will show
that they are highly incredible and consistently contradicting and improbable.

II

The lower court erred in convicting both the accused-appellants since the evidence presented by the
prosecution failed to prove beyond reasonable doubt the offense charged.

III

The lower court erred in refusing and failing to find that the herein accused-appellants were arrested
without warrant and therefore all evidence obtained after such illegal arrest are inadmissible.

IV

The lower court committed serious error amounting to grave abuse of discretion in finding that the
testimonies of the prosecution witnesses Vicente Miranda and Pedro Soriano were not refuted because
the defense interposed by the accused is alibi.

These alleged errors will be discussed by the Court under the general heading "Credibility of Witnesses
and Sufficiency of Evidence." In addition, the Court will tackle, motu proprio, the issue of whether
appellants may be held liable for the special complex crime of robbery with homicide, in the light of the
proven facts.
The Court's Ruling

The Court finds appellants guilty of two separate felonies; namely, homicide and theft, but not of the
special complex crime of robbery with homicide.

Credibility of Witnesses and

Sufficiency of Evidence

As in most criminal cases, appellants contend that the court a quo erred in bestowing credence on the
testimony of prosecution witnesses. Appellants assail the credibility of the eyewitnesses by pointing out
several inconsistencies in their testimonies which render them "highly improbable and consistently
impossible.

Two Different Persons Produced the


Dagger and Stabbed the Victim
per Miranda's Testimony

We disagree with appellants' contention that, during the direct examination, Prosecution Witness
Miranda wobbled particularly on who between the appellants stabbed the victim. The defense
segregated Miranda's testimony, quoting and highlighting separate portions thereof to show alleged
inconsistencies. According to the defense, Miranda was thus not credible as he was not clear as to who
between the two appellants actually pulled out the dagger and stabbed the victim. But when questioned
specifically on this point, the witness clarified the sequence of events from the act of pulling out the
dagger to the actual stabbing. Said the witness:9

Q You said one of the three men pulled out a bladed instrument. Will you tell the Honorable Court how
far were you from these three persons who were then in these conversation with the security guard?

A From the witness stand up to that corner, sir.

FISCAL BELTRAN:

About a distance of 12 meters. I am proposing that the distance pointed to by the witness is about 12
meters.

xxx xxx xxx

FISCAL BELTRAN:

Q You said that one of the three persons pulled out a bladed instrument. What did you do after pulling
out this bladed instrument?

A I saw him, sir, stab the guard.

Q The same person who pulled out this bladed instrument was the same one who stabbed the security
guard?

A No, sir. He handed the bladed instrument to the other person, sir.

xxx xxx xxx


Q Were you able to see the face of this person whom you said pulled out this bladed instrument?

A Yes, sir.

Nor are we persuaded by appellants' contention that the witness' sworn statement to the police shows
that the one who pulled out the dagger was the same person who stabbed the victim. The pertinent
portion of his statement reads: 10

06. T — Anong kinalaman mo sa pangayaring yon, kung mayroon?

S — Mangyari po, ay napadaan ho ako noon, kasama ko yong mga kaibigan ko, sa may harap ng Linda's
Grocery sa may kanto ng Road 1, at Visayas Avenue. Noong mga oras na yon (3:30AM) ay nakita ko na
yong guardya na nakabantay don sa may grocery ay parang may sinita na tatlong lalaki, tapos mamaya-
maya, yong isang lalaki ay tinapik niya sa puwit yong kasama at bigla na lamang bumunot ng dagger at
inundayan ng saksak yong guwardya, mga tatlong sunud-sunod, tapos atras ng atras naman yong
guwardya hanggang napasandal doon sa may guard house at doon siya natumba tapos hinablot niya
yong baril ng gwardya tapos nag-takbohan na sila patungo sa squatteros (sic) area sa may likoran ng
Agriculture building, yong BAEX ho.

07. T — Bale ilan ka-tao ang sumaksak sa guardia, noong makita mo?

S — Yong isa lang na maliit, na medyo kalbo, at yong isa naman medyo pa-pilay-pilay ay siya tumapik sa
kalbo na parang nag-uutos na saksakin yong guardya, yong isa naman ay doon sa may pinto ng Linda's
Grocery na tinitingnan naman niya yong kandadado (sic) ng pinto.

While there may have been some vagueness in the answer to Question "06," the clarification in the
succeeding statement, i.e., the reply to Question "07," sufficiently explains the witness' story. It must be
remembered that ex parte affidavits are generally considered incomplete and inaccurate and will not
prevail over the witness' statements on the stand. 11 That the defense labels Miranda's answers as
inconsistencies" appears to this Court to be merely a strained interpretation of the witness' testimony.

The Number of Stabs Inflicted


Is a Minor Matter

Appellants make a mountain out of Miranda's admission on cross-examination that he was not sure how
many times Gotangugan stabbed the victim vis-a-vis his earlier statement that one of appellants stabbed
the victim thrice. There is really no inconsistency here. And even if we grant that there is, the alleged
conflict pertains to an insignificant detail that is not material to the question of who killed the deceased.
The general rule is that inconsistencies and contradictions in minor and trivial matters do not impair a
witness' credibility. 12 The ambivalence of a witness on the exact number of stabs inflicted on the victim
does not detract from the obvious fact that the victim was killed by Gotangugan, as clearly and
positively testified to by Miranda. Indeed, in a startling event like a killing, it is difficult for a witness o
keep tab of the exact number of strokes the killer made. It is enough tat the witness gives a fair
estimate. The important thing is that the stabbing took place, the victim died and the witness identified
the culprit(s).

Distance Did Not Necessarily


Hinder Perception
The contention that Miranda did not really see the culprits' faces deserves scant consideration. The
distance of the witness from the stabbing incident was only 12 meters. That the crime happened before
dawn (about 3:30 a.m.) is immaterial because the place was lighted. 13 The witness' remark that he was
far from the situs of the crime merely meant that he was not near enough to hear the culprits'
whispered conversation, but he was near enough to hear the culprits' whispered conversation, but he
was near enough to see their faces and their felonious deed. 14

Appellants denigrate the witness' story that he ran closer to the locus criminis while witnessing he
stabbing. They claim that the natural tendency would be to run farther away. However, under the
circumstances, the witness did not really intend to come closer to the scene of the crime. What he did
was to go to the area of Tandang Sora where there was a public market and where, expectably, there
would be people even at such an early hour. The area towards the city hall, on the other hand, was unlit
and deserted, as the government buildings there were still closed. Besides, since the witness was on his
way to his house in Teachers' Village, he had to go to Tandang Sora, at that time, to get a ride. Hence,
the witness' reaction was not unnatural. In fact, it was most prudent under the circumstances.

No Two Versions of the Event


in Soriano's Testimony

The defense contends that the other eyewitness, Soriano, did not actually see the stabbing incident,
much less the person who stabbed the victim. Appellants claim that Soriano presented two versions of
the incident. According to one version given during direct examination, the witness allegedly stated that
the security guard was seated outside the guardhouse and that one of the accused urinated behind him.
Thereafter, the latter stabbed the victim. 15 In the other version given during cross-examination, the
victim was allegedly inside the guardhouse when one of the culprits stabbed the victim. 16

We disagree. The guardhouse was actually an outpost, 17 a structure open on all sides. The guard was
sitting under its roof and his assailants were standing outside the roof. One of them was behind him and
relieving himself. In this light, it is easy to understand the absence of discrepancy in the witness'
testimony on this point.

Appellant Gotangugan
Stabbed the Victim

Appellants claim that the witness was uncertain as to who actually stabbed the victim. While it is true
that initially he made a mistake in pinpointing the culprits in the courtroom, this was the result only of
his lack of familiarity with appellants' names. However, despite his initial confusion, his identification of
the culprit who delivered the fatal stab wound was categorical. This is clearly shown in the transcripts of
the trial: 18

Q Earlier, you pointed to two persons inside the courtroom as having participated in the stabbing of
Crispin Gatmen, the first one gave his name as Monchito Gotangugan, will you tell the Honorable Court
What was the special participation of Monchito Gotangugan in the stabbing?

A The gun was handed over to him.

COURT:

Gun?
A. Yes, Your Honor.

FISCAL BELTRAN:

Q How about the other person, this Domingo Salazar, what did he do?

A He was the one who stabbed the victim.

Q Who stabbed the victim?

A The bald one, sir.

INTERPRETER:

Witness pointing to a person by the name of Monchito Gotangugan.

ATTY. OSORIO:

Your Honor, may I reiterate the witness to speak louder.

FISCAL BELTRAN:

Q Alright. You pointed to Monchito Gotangugan as the one who stabbed Crispin Gatmen. How about the
other person you pointed to, what did he do?

A. After the bald one stabbed the victim, sir, the big one took the gun from the security guard.

Indeed, the foregoing testimony demonstrates that while the witness was confused as to the name of
the culprit, he was certain about his identity.

Eyewitnesses' Accounts Are


Consistent with Each Other

The defense claims that the testimonies of the two eyewitnesses materially contradicted each other in
two ways. First, Miranda allegedly said that the security guard was standing when he was stabbed while
Soriano stated that he was sitting down. Second, Miranda testified that one of the culprits produced the
dagger and the other stabbed the victim with it. Soriano, on the other hand, said that only one person
produced the dagger and thereafter stabbed the victim.

We have examined the Appellants' Brief and the records of this case and we have found no factual basis
for the strained inferences of the defense. From Miranda's sworn statement, the defense deduced that
the security guard was standing outside the outpost. But this deduction is not supported by said sworn
statement or by the witness' testimony in court. Miranda never said that the victim was standing up or
was outside the guardhouse when he was stabbed.

Both witnesses agreed that the person who stabbed the victim was Gotangugan. Both eyewitnesses
corroborated each other in identifying Salazar as the one who drew the dagger from his jacket and then
handed it to Gotangugan. With the dagger, Gotangugan stabbed the security guard. The insistence of
the defense on this supposed "contradiction" simply has no basis.

Time and again, this Court has ruled that the assessment of the trial court on the credibility of witnesses
and their stories is well-nigh conclusive on appeal, provided it is not tainted with arbitrariness or
oversight of some fact or circumstance of weight and influence. 19 In this case, the defense has tried but
failed to establish any material inconsistency or contradiction which would justify a departure from this
rule.

Compared with the evidence submitted by the prosecution, appellants' denial and alibi cannot possibly
be given more probative weight than the
clear and positive identification provided by no less than two credible eyewitnesses. 20

Granting arguendo that appellants were illegally arrested, such arrest did not invest these eyewitness
accounts with constitutional infirmity as "fruits of the poisonous tree." Considering that their conviction
could be secured on the strength of the testimonial evidence given in open court which are not
inadmissible in evidence, the court finds no reason to further belabor the matter.

Elements of Robo con Homicidio

In prosecuting robbery with homicide cases, the government needs to prove the following elements: (1)
the taking of personal property is committed with violence or intimidation against persons; (2) the
property taken belongs to another; (3) the taking is done with animo lucrandi: and (4) by reason of the
robbery or on the occasion thereof, homicide (used in its generic sense) is committed. 21

In this case, the prosecution has convincingly proven that (1) appellants asported a gun with violence
and intimidation against the victim; (2) the gun belonged to the deceased; and (3) the security guard
was killed. Animus lucrandi is presumed when there is proof of asportation. 22 All of these facts are
supported by the testimonies of competent eyewitnesses presented by the prosecution.

There is, however, no showing that the death of the security guard occurred merely by reason or on the
occasion of the robbery. The prosecution was silent on appellants' primary criminal intent. Did they
intend to kill the security guard in order to steal the gun? Or did they intend only to kill him, the taking
of the gun being merely an afterthought? The prosecution did not prove either of the two propositions,
and the court a quo failed to elaborate on this point. Thus, we cannot affirm appellants' conviction of
the crime charged in the Information.

In several cases, the Court has already ruled that a conviction for robbery with homicide requires
certitude that the robbery was the main purpose and objective of the criminals and that the killing was
merely incidental, resulting merely by reason or on the occasion of the robbery. 23 Article 294 of the
Revised Penal Code specifically states:

Art. 294. Robbery with violence against or intimidation of persons — Penalties. — Any person guilty of
robbery with the use of violence against or intimidation of any person shall suffer:

1. the penalty or reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of
homicide shall have been committed, . . . (Emphasis supplied)

The Spanish version of Article 294 (1) of the Revised Penal Code reads: "1.0 — Con la pena de reclusion
perpetuaa muerte, cuando con motivo o con ocasion del robo resultare homicidio." Chief Justice Ramon
C. Aquino explains that the use of the words "con motivo. . . del robo" permits of no interpretation other
than that the intent of the actor must supply the connection between the homicide and the robbery in
order to constitute the complex offense. If that intent comprehends the robbery, it is immaterial that
the homicide may in point of time immediately precede instead of follow the robbery. Where the
original design comprehends robbery, and homicide is perpetrated by reason or on the occasion of the
consummation of the former, the crime committed is the special complex offense, even if homicide
precedes the robbery by an appreciable interval of time. On the other hand, if the original criminal
design does not clearly comprehend robbery, but robbery follows the homicide as an afterthought or as
a minor incident of the homicide, the criminal acts should be viewed as constitutive of two offenses and
not of a single complex offense. Robbery with homicide arises only when there is a direct relation, an
intimate connection, between the robbery and the killing, even if the killing is prior to, concurrent with,
or subsequent to the robbery. 24

On the other hand, robbery with homicide under Article 294 of the Code is distinguished from the
complex crime punished in Article 48, which contemplates a situation where one offense is a necessary
means to commit the other or where one offense is a necessary means to commit the other or where a
single act result in two or more offenses. The homicide in Article 294(1) is not necessary for the
accomplishment of the robbery. 25 However, it could be committed to avoid future identification of the
robbers or as a consequence or incident thereof.

Robo con homicidio is an indivisible offense, a special complex crime. The penalty for robbery with
homicide is more severe because the law sees, in this crime, that men placed lucre above the value of
human life, thus, justifying the imposition of a more severe penalty than that for simple homicide or
robbery. In view of said graver penalty, jurisprudence exact a stricter requirement before convicting the
accused of this crime. Where the homicide is not conclusively shown to have been committed for the
purpose of robbing the victim, or where the robbery was not proven, there can be no conviction
for robo con homicidio. 26

In the case under consideration, appellants' primary intent remains an enigma. For this reason, we
cannot affirm appellants' conviction for robbery with homicide. The fact that appellants took the firearm
after shooting the security guard did not prove that their primary intent was to commit robbery. It
shows that they committed an unlawful taking of property, but it does not exclude the possibility that
this was merely an afterthought. Any conclusion as to their primary criminal intent based on the proven
facts is speculative and without adequate basis.

In view of the facts established and consistent with jurisprudence, the Court can convict appellants only
of the separate offenses of theft and homicide, which were both duly proven. This Court is cognizant of
the fact that the Information accused appellants of the crime of "robbery with homicide." Nonetheless,
it is axiomatic that the nature and character of the crime charged are determined not by the designation
of the specific crime but by the facts alleged in the Information. Thus, in People vs. Ponciano, 27 the
Court through Mr. Justice Hugo E. Gutierrez, Jr. held:

. . . In the case at bar, the direct relation or intimate connection between the robbery and the killing was
not established.

We therefore, follow the rule laid down in People v. Manalang [170 SCRA 149, 163, February 6,
1989], 28 to wit:

We already had several occasions to hold that if the original design was not to commit robbery but that
the idea of taking the personal property of another with intent to gain came to the mind of the offender
after the homicide only as an afterthought or as a minor incident in the homicide, the criminal acts
should be viewed as constituting two distinct offenses and not as a single complex crime; the crimes
would be either homicide or murder, as the case may be, and theft. (People v. Atanacio, et al., No. L-
11844, November 29, 1960, 110 Phil. 1032; People v. Elizaga, 86 Phil. 364 [1950]; People v. Glore, 87
Phil. 739 [1950]) (Emphasis supplied)

Thus, appellants should be held guilty of homicide under Article 249 of the Revised Penal Code and theft
under Article 309 of the same Code. We also hold that treachery aggravated the killing. The attack was
sudden and without warning, affording the security guard no chance to defend himself. 29 As it
was not alleged in the Information, it cannot be used to qualify the killing to murder. However,
treachery can still be considered as a generic aggravating circumstance. 30

While it was proven during the trial that the stolen pistol was worth P6,500.00, 31 the Information placed
the value at P6,000.00 only. However, the appellant did not object to the higher valuation and is thus
deemed to have waived his right to avail of the lower penalty under paragraph 3 of Article 309 of the
Revised Penal Code. Consequently, appellants may be penalized for theft under Article 309 (2) of the
said Code. 32

It is scarcely necessary to point out that there was conspiracy between appellants, because they clearly
acted in concert and with a unified criminal design. 33 The eyewitness accounts tell us that one of the
assailants touched the other appellant's behind to signal the start of the attack against the security
guard. Salazar then pulled out the dagger which Gotangugan used to stab the victim.

WHEREFORE, the assailed Judgment is hereby MODIFIED as follows:

(1) Appellants are hereby found GUILTY of the separate offense of homicide and SENTENCED to the
indeterminate sentence of ten years and one day of prision mayor, as minimum, to seventeen years,
four months and one day of reclusion temporal, as maximum.

(2) The indemnity ex delicto imposed by the trial court is INCREASED to fifty thousand pesos
(P50,000.00) in line with prevailing jurisprudence. 34

(3) Appellants are found also GUILTY of the separate offense of theft in accordance with Article 309 (2)
of the Revised Penal Code and SENTENCED to the indeterminate penalty of six months and one day
of prisioncorreccional, as minimum, to four years and two months and one day also
of prision correccional, as maximum.

(4) Costs against appellants.

SO ORDERED.
G.R. No. L-69401

RIZAL ALIH, NASIM ALIH, AISAN ALIH, MIJAL ALIH, OMAR ALIH, EDRIS MUKSAN, MULSIDI WARADIL,
BILLY ASMAD RAMSID ASALI, BANDING USMAN, ANGGANG HADANI, WARMIKHAN HAPA, GABRAL
JIKIRI, ALLAN TAN, MUJAHIRIN MARAJUKI, KENNEDY GONZALES, URDUJA ALIH, MERLA ALIH, and
NURAISA ALIH VDA DE FEROLINO, petitioners,
vs.
MAJOR GENERAL DELFIN C. CASTRO, IN HIS CAPACITY AS COMMANDER SOUTHCOM AND REGIONAL
UNIFIED COMMAND, REGION IX, ZAMBOANGA CITY, COLONEL ERNESTO CALUPIG, IN HIS CAPACITY AS
COMMANDING OFFICER OF THE SPECIAL FORCES GROUP (AIRBORNE) AND INTERNAL DEFENSE
COMMAND, OTHERWISE KNOWN AS IdC MAJOR ARNOLD BLANCO IN HIS CAPACITY AS
COMMANDING OFFICER OF THE PHILIPPINE MARINES AND 1ST LIEUTENANT DARWIN GUERRA IN HIS
CAPACITY AS ACTS SUPERVISOR, INTERNAL DEFENSE COMMAND, ARMED FORCES OF THE
PHILIPPINES, respondents.

CRUZ, J.:

On November 25, 1984, a contingent of more than two hundred Philippine marines and elements of the
home defense forces raided the compound occupied by the petitioners at Gov. Alvarez street,
Zamboanga City, in search of loose firearms, ammunition and other explosives. 1

The military operation was commonly known and dreaded as a "zona," which was not unlike the feared
practice of the kempeitai during the Japanese Occupation of rounding up the people in a locality,
arresting the persons fingered by a hooded informer, and executing them outright (although the last
part is not included in the modern refinement).

The initial reaction of the people inside the compound was to resist the invasion with a burst of gunfire.
No one was hurt as presumably the purpose was merely to warn the intruders and deter them from
entering. Unfortunately, as might be expected in incidents like this, the situation aggravated soon
enough. The soldiers returned fire and a bloody shoot-out ensued, resulting in a number of casualties. 2

The besieged compound surrendered the following morning, and sixteen male occupants were arrested,
later to be finger-printed, paraffin-tested and photographed over their objection. The military also
inventoried and confiscated nine M16 rifles, one M14 rifle, nine rifle grenades, and several rounds of
ammunition found in the premises. 3

On December 21, 1984, the petitioners came to this Court in a petition for prohibition
and mandamus with preliminary injunction and restraining order. Their purpose was to recover the
articles seized from them, to prevent these from being used as evidence against them, and to challenge
their finger-printing, photographing and paraffin-testing as violative of their right against self-
incrimination.4

The Court, treating the petition as an injunction suit with a prayer for the return of the articles alleged to
have been illegally seized, referred it for hearing to Judge Omar U. Amin of the regional trial court,
Zamboanga City. 5 After receiving the testimonial and documentary evidence of the parties, he
submitted the report and recommendations on which this opinion is based. 6

The petitioners demand the return of the arms and ammunition on the ground that they were taken
without a search warrant as required by the Bill of Rights. This is confirmed by the said report and in fact
admitted by the respondents, "but with avoidance. 7

Article IV, Section 3, of the 1973 Constitution, which was in force at the time of the incident in question,
provided as follows:

Sec. 3. 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 not be violated, 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.

It was also declared in Article IV, Section 4(2) that-

Sec. 4(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.

The respondents, while admitting the absence of the required such warrant, sought to justify their act
on the ground that they were acting under superior orders. 8 There was also the suggestion that the
measure was necessary because of the aggravation of the peace and order problem generated by the
assassination of Mayor Cesar Climaco. 9

Superior orders" cannot, of course, countermand the Constitution. The fact that the petitioners were
suspected of the Climaco killing did not excuse the constitutional short-cuts the respondents took. As
eloquently affirmed by the U.S. Supreme Court in Ex parte Milligan: 10

The Constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of
its protection all classes of men, at all times and under all circumstances. No doctrine, involving more
pernicious consequences, was ever invented by the wit of man than that any of its provisions can be
suspended during any of the great exigencies of government.

The precarious state of lawlessness in Zamboanga City at the time in question certainly did not excuse
the non-observance of the constitutional guaranty against unreasonable searches and seizures. There
was no state of hostilities in the area to justify, assuming it could, the repressions committed therein
against the petitioners.

It is so easy to say that the petitioners were outlaws and deserved the arbitrary treatment they received
to take them into custody; but that is a criminal argument. It is also fallacious. Its obvious flaw lies in the
conclusion that the petitioners were unquestionably guilty on the strength alone of unsubstantiated
reports that they were stockpiling weapons.

The record does not disclose that the petitioners were wanted criminals or fugitives from justice. At the
time of the "zona," they were merely suspected of the mayor's slaying and had not in fact even been
investigated for it. As mere suspects, they were presumed innocent and not guilty as summarily
pronounced by the military.

Indeed, even if were assumed for the sake of argument that they were guilty, they would not have been
any less entitled to the protection of the Constitution, which covers both the innocent and the guilty.
This is not to say, of course, that the Constitution coddles criminals. What it does simply signify is that,
lacking the shield of innocence, the guilty need the armor of the Constitution, to protect them, not from
a deserved sentence, but from arbitrary punishment. Every person is entitled to due process. It is no
exaggeration that the basest criminal, ranged against the rest of the people who would condemn him
outright, is still, under the Bill of Rights, a majority of one.

If the respondents did not actually disdain the Constitution when they made their illegal raid, they
certainly gave every appearance of doing so. This is truly regrettable for it was incumbent on them,
especially during those tense and tindery times, to encourage rather than undermine respect for the
law, which it was their duty to uphold.

In acting as they did, they also defied the precept that "civilian authority is at all times supreme over the
military" so clearly proclaimed in the 1973 Constitution. 11 In the instant case, the respondents simply
by-passed the civil courts, which had the authority to determine whether or not there was probable
cause to search the petitioner's premises. Instead, they proceeded to make the raid without a search
warrant on their own unauthorized determination of the petitioner's guilt.

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.

Conceding that the search was truly warrantless, might not the search and seizure be nonetheless
considered valid because it was incidental to a legal arrest? Surely not. If all the law enforcement
authorities have to do is force their way into any house and then pick up anything they see there on the
ground that the occupants are resisting arrest, then we might as well delete the Bill of Rights as a fussy
redundancy.

When the respondents could have easily obtained a search warrant from any of the TEN civil courts then
open and functioning in Zamboanga City, 12 they instead simply barged into the beleaguered premises
on the verbal order of their superior officers. One cannot just force his way into any man's house on the
illegal orders of a superior, however lofty his rank. Indeed, even the humblest hovel is protected from
official intrusion because of the ancient rule, revered in all free regimes, that a man's house is his castle.

It may be frail; its roof may shake; the wind may enter; the rain may enter. But the King of England may
not enter. All the forces of the Crown dare not cross the threshold of the ruined tenement. 13

If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime about
to be committed, being committed, or just committed, what was that crime? There is no allegation in
the record of such a justification. Parenthetically, it may be observed that under the Revised Rule 113,
Section 5(b), the officer making the arrest must have personal knowledge of the ground therefor as
stressed in the recent case of People v. Burgos.14

If follows that as the search of the petitioners' premises was violative of the Constitution, all the
firearms and ammunition taken from the raided compound are inadmissible in evidence in any of the
proceedings against the petitioners. These articles are "fruits of the poisonous tree. 15 As Judge Learned
Hand observed, "Only in case the prosecution which itself controls the seizing officials, knows that
it cannot profit by their wrong, will the wrong be repressed. 16 Pending determination of the legality of
such articles, however, they shall remain in custodia legis, subject to such appropriate disposition as the
corresponding courts may decide. 17

The objection to the photographing, fingerprinting and paraffin-testing of the petitioners deserves slight
comment. The prohibition against self-incrimination applies to testimonial compulsion only. As Justice
Holmes put it in Holt v. United States, 18 "The prohibition of compelling a man in a criminal court to be a
witness against himself is a prohibition of the use of physical or moral compulsion to extort
communications from him, not an exclusion of his body as evidence when it may be material."

The fearful days of hamleting salvaging, "zona" and other dreaded operations should remain in the past,
banished with the secret marshals and their covert license to kill without trial. We must be done with
lawlessness in the name of law enforcement. Those who are supposed to uphold the law must not be
the first to violate it. As Chief Justice Claudio Teehankee stressed in his concurring opinion in Lacanilao
v. De Leon, 19 "It is time that the martial law regime's legacy of the law of force be discarded and that
there be a return to the force and rule of law."

All of us must exert efforts to make our country truly free and democratic, where every individual is
entitled to the full protection of the Constitution and the Bill of Rights can stand as a stolid sentinel for
all, the innocent as well as the guilty, including the basest of criminals.

WHEREFORE, the search of the petitioners' premises on November 25, 1984, is hereby declared ILLEGAL
and all the articles seized as a result thereof are inadmissible in evidence against the petitioners in any
proceedings. However, the said articles shall remain in custodia legis pending the outcome of the
criminal cases that have been or may later be filed against the petitioners.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

**PEOPLE V. SALAZAR NEXT CASE**


G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner,


vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:

A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon
City alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office,
allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and in a manner offensive
to petitioner's dignity and personality," contrary to morals, good customs and public policy."1

In support of her claim, petitioner produced a verbatim transcript of the event and sought moral
damages, attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to
costs, interests and other reliefs awardable at the trial court's discretion. The transcript on which the
civil case was based was culled from a tape recording of the confrontation made by petitioner.2 The
transcript reads as follows:

Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon M'am.

Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka napunta
rito, porke member ka na, magsumbong ka kung ano ang gagawin ko sa 'yo.

CHUCHI — Kasi, naka duty ako noon.

ESG — Tapos iniwan no. (Sic)

CHUCHI — Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon —

ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00 p.m.,
kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sa
review mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi.

CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m.

ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. Magsumbong ka sa Union
kung gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you think that on your own
makakapasok ka kung hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita).

CHUCHI — Itutuloy ko na M'am sana ang duty ko.

ESG — Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.

ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko naman
kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa.

CHUCHI — Kumuha kami ng exam noon.

ESG — Oo, pero hindi ka papasa.


CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo

ESG — Kukunin ka kasi ako.

CHUCHI — Eh, di sana —

ESG — Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha ka dito
kung hindi ako.

CHUCHI — Mag-eexplain ako.

ESG — Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka puma-rito. "Putang-
ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga magulang ko.

ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok,
okey yan nasaloob ka umalis ka doon.

CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union.

ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako. Kung
hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.

CHUCHI — Ina-ano ko m'am na utang na loob.

ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo ako.

CHUCHI — Paano kita nilapastanganan?

ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na. Magsumbong ka.3

As a result of petitioner's recording of the event and alleging that the said act of secretly taping the
confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of
Pasay City for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and
other related violations of private communication, and other purposes." An information charging
petitioner of violation of the said Act, dated October 6, 1988 is quoted herewith:

INFORMATION

The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No. 4200,
committed as follows:

That on or about the 22nd day of February, 1988, in Pasay City Metro Manila, Philippines, and within the
jurisdiction of this honorable court, the above-named accused, Socorro D. Ramirez not being authorized
by Ester S. Garcia to record the latter's conversation with said accused, did then and there willfully,
unlawfully and feloniously, with the use of a tape recorder secretly record the said conversation and
thereafter communicate in writing the contents of the said recording to other person.

Contrary to law.

Pasay City, Metro Manila, September 16, 1988.

MARIANO M. CUNETA
Asst. City Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground
that the facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May
3, 1989, the trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts charged
do not constitute an offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a
the taping of a communication by a person other than a participant to the communication.4

From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this
Court, which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of
June 19, 1989.

On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial
court's order of May 3, 1989 null and void, and holding that:

[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus
quashing the information based on the ground that the facts alleged do not constitute an offense, the
respondent judge acted in grave abuse of discretion correctible by certiorari.5

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent
Court of Appeals denied in its Resolution6 dated June 19, 1990. Hence, the instant petition.

Petitioner vigorously argues, as her "main and principal issue"7 that the applicable provision of Republic
Act 4200 does not apply to the taping of a private conversation by one of the parties to the
conversation. She contends that the provision merely refers to the unauthorized taping of a private
conversation by a party other than those involved in the communication.8 In relation to this, petitioner
avers that the substance or content of the conversation must be alleged in the Information, otherwise
the facts charged would not constitute a violation of R.A. 4200.9 Finally, petitioner agues that R.A. 4200
penalizes the taping of a "private communication," not a "private conversation" and that consequently,
her act of secretly taping her conversation with private respondent was not illegal under the said act. 10

We disagree.

First, legislative intent is determined principally from the language of a statute. Where the language of a
statute is clear and unambiguous, the law is applied according to its express terms, and interpretation
would be resorted to only where a literal interpretation would be either impossible 11 or absurb or
would lead to an injustice. 12

Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related
Violations of Private Communication and Other Purposes," provides:

Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or arrangement,
to secretly overhear, intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or
however otherwise described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all
the parties to any private communication to secretly record such communication by means of a tape
recorder. The law makes no distinction as to whether the party sought to be penalized by the statute
ought to be a party other than or different from those involved in the private communication. The
statute's intent to penalize all persons unauthorized to make such recording is underscored by the use
of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a
(person) privy to a communication who records his private conversation with another without the
knowledge of the latter (will) qualify as a violator" 13 under this provision of R.A. 4200.

A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion
that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape
recording of private conversations or communications taken either by the parties themselves or by third
persons. Thus:

xxx xxx xxx

Senator Tañada: That qualified only "overhear".

Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to
be material. Now, suppose, Your Honor, the recording is not made by all the parties but by some parties
and involved not criminal cases that would be mentioned under section 3 but would cover, for example
civil cases or special proceedings whereby a recording is made not necessarily by all the parties but
perhaps by some in an effort to show the intent of the parties because the actuation of the parties prior,
simultaneous even subsequent to the contract or the act may be indicative of their intention. Suppose
there is such a recording, would you say, Your Honor, that the intention is to cover it within the purview
of this bill or outside?

Senator Tañada: That is covered by the purview of this bill, Your Honor.

Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to
be used in Civil Cases or special proceedings?

Senator Tañada: That is right. This is a complete ban on tape recorded conversations taken without the
authorization of all the parties.

Senator Padilla: Now, would that be reasonable, your Honor?

Senator Tañada: I believe it is reasonable because it is not sporting to record the observation of one
without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the purpose;
Your honor, is to record the intention of the parties. I believe that all the parties should know that the
observations are being recorded.

Senator Padilla: This might reduce the utility of recorders.

Senator Tañada: Well no. For example, I was to say that in meetings of the board of directors where a
tape recording is taken, there is no objection to this if all the parties know. It is but fair that the people
whose remarks and observations are being made should know that the observations are being recorded.

Senator Padilla: Now, I can understand.

Senator Tañada: That is why when we take statements of persons, we say: "Please be informed that
whatever you say here may be used against you." That is fairness and that is what we demand. Now, in
spite of that warning, he makes damaging statements against his own interest, well, he cannot complain
any more. But if you are going to take a recording of the observations and remarks of a person without
him knowing that it is being taped or recorded, without him knowing that what is being recorded may be
used against him, I think it is unfair.

xxx xxx xxx

(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a
party secretly records a public speech, he would be penalized under Section 1? Because the speech is
public, but the recording is done secretly.

Senator Tañada: Well, that particular aspect is not contemplated by the bill. It is the communication
between one person and another person — not between a speaker and a public.

xxx xxx xxx

(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)

xxx xxx xxx

The unambiguity of the express words of the provision, taken together with the above-quoted
deliberations from the Congressional Record, therefore plainly supports the view held by the
respondent court that the provision seeks to penalize even those privy to the private communications.
Where the law makes no distinctions, one does not distinguish.

Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the
same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of
secretly overhearing, intercepting or recording private communications by means of the devices
enumerated therein. The mere allegation that an individual made a secret recording of a private
communication by means of a tape recorder would suffice to constitute an offense under Section 1 of
R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere
(in the said law) is it required that before one can be regarded as a violator, the nature of the
conversation, as well as its communication to a third person should be professed." 14

Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does
not include "private conversations" narrows the ordinary meaning of the word "communication" to a
point of absurdity. The word communicate comes from the latin word communicare, meaning "to share
or to impart." In its ordinary signification, communication connotes the act of sharing or imparting
signification, communication connotes the act of sharing or imparting, as in a conversation, 15 or signifies
the "process by which meanings or thoughts are shared between individuals through a common system
of symbols (as language signs or gestures)" 16 These definitions are broad enough to include verbal or
non-verbal, written or expressive communications of "meanings or thoughts" which are likely to include
the emotionally-charged exchange, on February 22, 1988, between petitioner and private respondent,
in the privacy of the latter's office. Any doubts about the legislative body's meaning of the phrase
"private communication" are, furthermore, put to rest by the fact that the terms "conversation" and
"communication" were interchangeably used by Senator Tañada in his Explanatory Note to the bill
quoted below:
It has been said that innocent people have nothing to fear from their conversations being overheard. But
this statement ignores the usual nature of conversations as well the undeniable fact that most, if not all,
civilized people have some aspects of their lives they do not wish to expose. Free conversationsare often
characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social
desires of views not intended to be taken seriously. The right to the privacy of communication, among
others, has expressly been assured by our Constitution. Needless to state here, the framers of our
Constitution must have recognized the nature of conversations between individuals and the significance
of man's spiritual nature, of his feelings and of his intellect. They must have known that part of the
pleasures and satisfactions of life are to be found in the unaudited, and free exchange
of communication between individuals — free from every unjustifiable intrusion by whatever means.17

In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone
wiretapping, we held that the use of a telephone extension for the purpose of overhearing a private
conversation without authorization did not violate R.A. 4200 because a telephone extension devise was
neither among those "device(s) or arrangement(s)" enumerated therein, 19 following the principle that
"penal statutes must be construed strictly in favor of the accused."20 The instant case turns on a
different note, because the applicable facts and circumstances pointing to a violation of R.A. 4200 suffer
from no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of private
communications with the use of tape-recorders as among the acts punishable.

WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us
with no discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED.
Costs against petitioner.

SO ORDERED.

Padilla, Davide, Jr. and Bellosillo JJ., concur.

Hermosisima, Jr., J., is on leave.


G.R. No. L-69809 October 16, 1986

EDGARDO A. GAANAN, petitioner,


vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as
the Anti-Wiretapping Act, on the issue of whether or not an extension telephone is among the
prohibited devices in Section 1 of the Act, such that its use to overhear a private conversation would
constitute unlawful interception of communications between the two parties using a telephone line.

The facts presented by the People and narrated in the respondent court's decision are not disputed by
the petitioner.

In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel Montebon were
in the living room of complainant's residence discussing the terms for the withdrawal of the complaint
for direct assault which they filed with the Office of the City Fiscal of Cebu against Leonardo Laconico.
After they had decided on the proposed conditions, complainant made a telephone call to Laconico (tsn,
August 26, 1981, pp. 3-5).

That same morning, Laconico telephoned appellant, who is a lawyer, to come to his office and advise
him on the settlement of the direct assault case because his regular lawyer, Atty. Leon Gonzaga, went
on a business trip. According to the request, appellant went to the office of Laconico where he was
briefed about the problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).

When complainant called up, Laconico requested appellant to secretly listen to the telephone
conversation through a telephone extension so as to hear personally the proposed conditions for the
settlement. Appellant heard complainant enumerate the following conditions for withdrawal of the
complaint for direct assault.

(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to P8,000.00. A
breakdown of the P8,000.00 had been made together with other demands, to wit: (a) P5,000.00 no
longer for the teacher Manuel Montebon, but for Atty. Pintor himself in persuading his client to
withdraw the case for Direct Assault against Atty. Laconico before the Cebu City Fiscal's Office;

(b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical High School;

(c) Pl,000.00 to be given to the Don Bosco Faculty club;

(d) transfer of son of Atty. Laconico to another school or another section of Don Bosco Technical High
School;

(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against Manuel
Montebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit of desistance on the Direct
Assault Case against Atty. Laconico to be filed later;

(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;
(g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media;

(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).

Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to the conditions.
Laconico answered 'Yes'. Complainant then told Laconico to wait for instructions on where to deliver the
money. (tsn, March 10, 1983, pp. 2-12).

Complainant called up again and instructed Laconico to give the money to his wife at the office of the
then Department of Public Highways. Laconico who earlier alerted his friend Colonel Zulueta of the
Criminal Investigation Service of the Philippine Constabulary, insisted that complainant himself should
receive the money. (tsn, March 10, 1982, pp. 26-33). When he received the money at the Igloo
Restaurant, complainant was arrested by agents of the Philippine Constabulary.

Appellant executed on the following day an affidavit stating that he heard complainant demand
P8,000.00 for the withdrawal of the case for direct assault. Laconico attached the affidavit of appellant
to the complainant for robbery/extortion which he filed against complainant. Since appellant listened to
the telephone conversation without complainant's consent, complainant charged appellant and
Laconico with violation of the Anti-Wiretapping Act.

After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan
and Laconico guilty of violating Section 1 of Republic Act No. 4200. The two were each sentenced to one
(1) year imprisonment with costs. Not satisfied with the decision, the petitioner appealed to the
appellate court.

On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding
that the communication between the complainant and accused Laconico was private in nature and,
therefore, covered by Rep. Act No. 4200; that the petitioner overheard such communication without the
knowledge and consent of the complainant; and that the extension telephone which was used by the
petitioner to overhear the telephone conversation between complainant and Laconico is covered in the
term "device' as provided in Rep. Act No. 4200.

In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the
following issues; (a) whether or not the telephone conversation between the complainant and accused
Laconico was private in nature; (b) whether or not an extension telephone is covered by the term
"device or arrangement" under Rep. Act No. 4200; (c) whether or not the petitioner had authority to
listen or overhear said telephone conversation and (d) whether or not Rep. Act No. 4200 is ambiguous
and, therefore, should be construed in favor of the petitioner.

Section 1 of Rep. Act No. 4200 provides:

Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable or by using any other device or arrangement,
to secretly overhear, intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or
however otherwise described:

It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the next
preceeding sentence, to knowingly possess any tape record, wire record, disc record, or any other such
record, or copies thereof, of any communication or spoken word secured either before or after the
effective date of this Act in the manner prohibited by this law; or to replay the same for any other
person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish
transcriptions thereof, whether complete or partial, to any other person: Provided, that the use of such
record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned
in Section 3 hereof, shall not be covered by this prohibition.

We rule for the petitioner.

We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The
issue is not the admissibility of evidence secured over an extension line of a telephone by a third party.
The issue is whether or not the person called over the telephone and his lawyer listening to the
conversation on an extension line should both face prison sentences simply because the extension was
used to enable them to both listen to an alleged attempt at extortion.

There is no question that the telephone conversation between complainant Atty. Pintor and accused
Atty. Laconico was "private" in the sense that the words uttered were made between one person and
another as distinguished from words between a speaker and a public. It is also undisputed that only one
of the parties gave the petitioner the authority to listen to and overhear the caller's message with the
use of an extension telephone line. Obviously, complainant Pintor, a member of the Philippine bar,
would not have discussed the alleged demand for an P8,000.00 consideration in order to have his client
withdraw a direct assault charge against Atty. Laconico filed with the Cebu City Fiscal's Office if he knew
that another lawyer was also listening. We have to consider, however, that affirmance of the criminal
conviction would, in effect, mean that a caller by merely using a telephone line can force the listener to
secrecy no matter how obscene, criminal, or annoying the call may be. It would be the word of the caller
against the listener's.

Because of technical problems caused by the sensitive nature of electronic equipment and the extra
heavy loads which telephone cables are made to carry in certain areas, telephone users often encounter
what are called "crossed lines". An unwary citizzen who happens to pick up his telephone and who
overhears the details of a crime might hesitate to inform police authorities if he knows that he could be
accused under Rep. Act 4200 of using his own telephone to secretly overhear the private
communications of the would be criminals. Surely the law was never intended for such mischievous
results.

The main issue in the resolution of this petition, however, revolves around the meaning of the phrase
"any other device or arrangement." Is an extension of a telephone unit such a device or arrangement as
would subject the user to imprisonment ranging from six months to six years with the accessory penalty
of perpetual absolute disqualification for a public officer or deportation for an alien? Private secretaries
with extension lines to their bosses' telephones are sometimes asked to use answering or recording
devices to record business conversations between a boss and another businessman. Would transcribing
a recorded message for the use of the boss be a proscribed offense? or for that matter, would a "party
line" be a device or arrangement under the law?

The petitioner contends that telephones or extension telephones are not included in the enumeration of
"commonly known" listening or recording devices, nor do they belong to the same class of enumerated
electronic devices contemplated by law. He maintains that in 1964, when Senate Bill No. 9 (later Rep.
Act No. 4200) was being considered in the Senate, telephones and extension telephones were already
widely used instruments, probably the most popularly known communication device.

Whether or not listening over a telephone party line would be punishable was discussed on the floor of
the Senate. Yet, when the bill was finalized into a statute, no mention was made of telephones in the
enumeration of devices "commonly known as a dictaphone or dictagraph, detectaphone or walkie talkie
or tape recorder or however otherwise described." The omission was not a mere oversight. Telephone
party lines were intentionally deleted from the provisions of the Act.

The respondent People argue that an extension telephone is embraced and covered by the term
"device" within the context of the aforementioned law because it is not a part or portion of a complete
set of a telephone apparatus. It is a separate device and distinct set of a movable apparatus consisting of
a wire and a set of telephone receiver not forming part of a main telephone set which can be detached
or removed and can be transferred away from one place to another and to be plugged or attached to a
main telephone line to get the desired communication corning from the other party or end.

The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of
secretly overhearing, intercepting, or recording the communication. There must be either a physical
interruption through a wiretap or the deliberate installation of a device or arrangement in order to
overhear, intercept, or record the spoken words.

An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other
devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping"
the wire or cable of a telephone line. The telephone extension in this case was not installed for that
purpose. It just happened to be there for ordinary office use. It is a rule in statutory construction that in
order to determine the true intent of the legislature, the particular clauses and phrases of the statute
should not be taken as detached and isolated expressions, but the whole and every part thereof must be
considered in fixing the meaning of any of its parts. (see Commissioner of Customs v. Esso Estandard
Eastern, Inc., 66 SCRA 113,120).

In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:

Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a contract may be,
they shall not be understood to comprehend things that are distinct and cases that are different from
those upon which the parties intended to agree.' Similarly, Article 1374 of the same Code provides that
'the various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that
sense which may result from all of them taken jointly.

xxx xxx xxx

Consequently, the phrase 'all liabilities or obligations of the decedent' used in paragraph 5(c) and 7(d)
should be then restricted only to those listed in the Inventory and should not be construed as to
comprehend all other obligations of the decedent. The rule that 'particularization followed by a general
expression will ordinarily be restricted to the former' is based on the fact in human experience that
usually the minds of parties are addressed specially to the particularization, and that the generalities,
though broad enough to comprehend other fields if they stood alone, are used in contemplation of that
upon which the minds of the parties are centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis.
603, 607, 115 NW 383, cited in Francisco, Revised Rules of Court (Evidence), 1973 ed, pp. 180-181).
Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that
enumerated therein, should be construed to comprehend instruments of the same or similar nature,
that is, instruments the use of which would be tantamount to tapping the main line of a telephone. It
refers to instruments whose installation or presence cannot be presumed by the party or parties being
overheard because, by their very nature, they are not of common usage and their purpose is precisely
for tapping, intercepting or recording a telephone conversation.

An extension telephone is an instrument which is very common especially now when the extended unit
does not have to be connected by wire to the main telephone but can be moved from place ' to place
within a radius of a kilometer or more. A person should safely presume that the party he is calling at the
other end of the line probably has an extension telephone and he runs the risk of a third party listening
as in the case of a party line or a telephone unit which shares its line with another. As was held in the
case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138):

Common experience tells us that a call to a particular telephone number may cause the bell to ring in
more than one ordinarily used instrument. Each party to a telephone conversation takes the risk that
the other party may have an extension telephone and may allow another to overhear the conversation.
When such takes place there has been no violation of any privacy of which the parties may complain.
Consequently, one element of 605, interception, has not occurred.

In the same case, the Court further ruled that the conduct of the party would differ in no way if instead
of repeating the message he held out his hand-set so that another could hear out of it and that there is
no distinction between that sort of action and permitting an outsider to use an extension telephone for
the same purpose.

Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused.
Thus, in case of doubt as in the case at bar, on whether or not an extension telephone is included in the
phrase "device or arrangement", the penal statute must be construed as not including an extension
telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the
rule:

American jurisprudence sets down the reason for this rule to be the tenderness of the law of the rights
of individuals; the object is to establish a certain rule by conformity to which mankind would be safe,
and the discretion of the court limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609;
Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings v.
Commonwealth, 109 VA 821,63 SE 1080, all cited in 73 Am Jur 2d 452). The purpose is not to enable a
guilty person to escape punishment through a technicality but to provide a precise definition of
forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory Construction,
Rev. Ed. pp. 183-184).

In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative
measure, the primary rule is to search for and determine the intent and spirit of the law. A perusal of
the Senate Congressional Records will show that not only did our lawmakers not contemplate the
inclusion of an extension telephone as a prohibited device or arrangement" but of greater importance,
they were more concerned with penalizing the act of recording than the act of merely listening to a
telephone conversation.
xxx xxx xxx

Senator Tañada. Another possible objection to that is entrapment which is certainly objectionable. It is
made possible by special amendment which Your Honor may introduce.

Senator Diokno.Your Honor, I would feel that entrapment would be less possible with the amendment
than without it, because with the amendment the evidence of entrapment would only consist of
government testimony as against the testimony of the defendant. With this amendment, they would
have the right, and the government officials and the person in fact would have the right to tape record
their conversation.

Senator Tañada. In case of entrapment, it would be the government.

Senator Diokno. In the same way, under this provision, neither party could record and, therefore, the
court would be limited to saying: "Okay, who is more credible, the police officers or the defendant?" In
these cases, as experienced lawyers, we know that the Court go with the peace offices.

(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).

xxx xxx xxx

Senator Diokno. The point I have in mind is that under these conditions, with an agent outside listening
in, he could falsify the testimony and there is no way of checking it. But if you allow him to record or
make a recording in any form of what is happening, then the chances of falsifying the evidence is not
very much.

Senator Tañada. Your Honor, this bill is not intended to prevent the presentation of false testimony. If
we could devise a way by which we could prevent the presentation of false testimony, it would be
wonderful. But what this bill intends to prohibit is the use of tape record and other electronic devices to
intercept private conversations which later on will be used in court.

(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).

It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as
government authorities or representatives of organized groups from installing devices in order to gather
evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage over the
telephone users. Consequently, the mere act of listening, in order to be punishable must strictly be with
the use of the enumerated devices in RA No. 4200 or others of similar nature. We are of the view that
an extension telephone is not among such devices or arrangements.

WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated
August 16, 1984 is ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of
violation of Rep. Act No. 4200, otherwise known as the Anti-Wiretapping Act.

SO ORDERED.

Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.


CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and ALFREDO MARTIN, respondents.

DECISION

MENDOZA, J.:

This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional
Trial Court of Manila (Branch X) which ordered petitioner to return documents and papers taken by her
from private respondents clinic without the latters knowledge and consent.

The facts are as follows:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982,
petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a
driver and private respondents secretary, forcibly opened the drawers and cabinet in her husbands clinic
and took 157 documents consisting of private correspondence between Dr. Martin and his alleged
paramours, greetings cards, cancelled checks, diaries, Dr. Martins passport, and photographs. The
documents and papers were seized for use in evidence in a case for legal separation and for
disqualification from the practice of medicine which petitioner had filed against her husband.

Dr. Martin brought this action below for recovery of the documents and papers and for damages against
petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which, after trial,
rendered judgment for private respondent, Dr. Alfredo Martin, declaring him the capital/exclusive
owner of the properties described in paragraph 3 of plaintiffs Complaint or those further described in
the Motion to Return and Suppress and ordering Cecilia Zulueta and any person acting in her behalf to
immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominal damages;
P5,000.00, as moral damages and attorneys fees; and to pay the costs of the suit. The writ of preliminary
injunction earlier issued was made final and petitioner Cecilia Zulueta and her attorneys and
representatives were enjoined from using or submitting/admitting as evidence the documents and
papers in question. On appeal, the Court of Appeals affirmed the decision of the Regional Trial Court.
Hence this petition.

There is no question that the documents and papers in question belong to private respondent, Dr.
Alfredo Martin, and that they were taken by his wife, the herein petitioner, without his knowledge and
consent. For that reason, the trial court declared the documents and papers to be properties of private
respondent, ordered petitioner to return them to private respondent and enjoined her from using them
in evidence. In appealing from the decision of the Court of Appeals affirming the trial courts decision,
petitioners only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the documents
and papers (marked as Annexes A-i to J-7 of respondents comment in that case) were admissible in
evidence and, therefore, their use by petitioners attorney, Alfonso Felix, Jr., did not constitute
malpractice or gross misconduct. For this reason it is contended that the Court of Appeals erred in
affirming the decision of the trial court instead of dismissing private respondents complaint.

Petitioners contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other
things, private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in using the
documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct because of the
injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr., this Court took note
of the following defense of Atty. Felix, Jr. which it found to be impressed with merit:2
On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains that:

xxx xxx xxx

4. When respondent refiled Cecilias case for legal separation before the Pasig Regional Trial Court, there
was admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from using the documents
Annex A-I to J-7. On September 6, 1983, however having appealed the said order to this Court on a
petition for certiorari, this Court issued a restraining order on aforesaid date which order temporarily set
aside the order of the trial court. Hence, during the enforceability of this Courts order, respondents
request for petitioner to admit the genuineness and authenticity of the subject annexes cannot be
looked upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth and authenticity of
the questioned annexes. At that point in time, would it have been malpractice for respondent to use
petitioners admission as evidence against him in the legal separation case pending in the Regional Trial
Court of Makati? Respondent submits it is- not malpractice.

Significantly, petitioners admission was done not thru his counsel but by Dr. Martin himself under oath.
Such verified admission constitutes an affidavit, and, therefore, receivable in evidence against him.
Petitioner became bound by his admission. For Cecilia to avail herself of her husbands admission and
use the same in her action for legal separation cannot be treated as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration
that his use of the documents and papers for the purpose of securing Dr. Martins admission as to their
genuiness and authenticity did not constitute a violation of the injunctive order of the trial court. By no
means does the decision in that case establish the admissibility of the documents and papers in
question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of
preliminary injunction issued by the trial court, it was only because, at the time he used the documents
and papers, enforcement of the order of the trial court was temporarily restrained by this Court. The
TRO issued by this Court was eventually lifted as the petition for certiorari filed by petitioner against the
trial courts order was dismissed and, therefore, the prohibition against the further use of the documents
and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction
declaring the privacy of communication and correspondence [to be] inviolable3is no less applicable
simply because it is the wife (who thinks herself aggrieved by her husbands infidelity) who is the party
against whom the constitutional provision is to be enforced. The only exception to the prohibition in the
Constitution is if there is a lawful order [from a] court or when public safety or order requires otherwise,
as prescribed by law.4 Any violation of this provision renders the evidence obtained inadmissible for any
purpose in any proceeding.5

The intimacies between hu