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G.R. No.


MARIO FL. CRESPO, petitioner,

CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR


The issue raised in this ease is whether the trial court acting on a motion to dismiss a criminal case
filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was
elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the

On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed
an information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City which
was docketed as Criminal Case No. CCCIX-52 (Quezon) '77.1 When the case was set for arraigment
the accused filed a motion to defer arraignment on the ground that there was a pending petition for
review filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the
filing of the information. In an order of August 1, 1977, the presiding judge, His Honor, Leodegario L.
Mogul, denied the motion. 2 A motion for reconsideration of the order was denied in the order of
August 5, 1977 but the arraignment was deferred to August 18, 1977 to afford time for petitioner to
elevate the matter to the appellate court. 3

A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the
accused in the Court of Appeals that was docketed as CA-G.R. SP No. 06978. 4 In an order of
August 17, 1977 the Court of Appeals restrained Judge Mogul from proceeding with the arraignment
of the accused until further orders of the Court. 5 In a comment that was filed by the Solicitor General
he recommended that the petition be given due course. 6 On May 15, 1978 a decision was rendered
by the Court of Appeals granting the writ and perpetually restraining the judge from enforcing his
threat to compel the arraignment of the accused in the case until the Department of Justice shall
have finally resolved the petition for review. 7

On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr., resolving the petition
for review reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to
move for immediate dismissal of the information filed against the accused. 8 A motion to dismiss for
insufficiency of evidence was filed by the Provincial Fiscal dated April 10, 1978 with the trial
court, 9 attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2,
1978 the private prosecutor was given time to file an opposition thereto.10 On November 24, 1978 the
Judge denied the motion and set the arraigniment stating:


For resolution is a motion to dismiss this rase filed by the procuting fiscal premised on
insufficiency of evidence, as suggested by the Undersecretary of Justice, evident from Annex
"A" of the motion wherein, among other things, the Fiscal is urged to move for dismissal for
the reason that the check involved having been issued for the payment of a pre-existing
obligation the Hability of the drawer can only be civil and not criminal.

The motion's thrust being to induce this Court to resolve the innocence of the accused on
evidence not before it but on that adduced before the Undersecretary of Justice, a matter
that not only disregards the requirements of due process but also erodes the Court's
independence and integrity, the motion is considered as without merit and therefore hereby

WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at 9:00
o'clock in the moming.


The accused then filed a petition for certiorari, prohibition and mandamus with petition for the
issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals
that was docketed as CA-G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was issued
by the Court of Appeals against the threatened act of arraignment of the accused until further orders
from the Court. 13 In a decision of October 25, 1979 the Court of Appeals dismissed the petition and
lifted the restraining order of January 23, 1979. 14 A motion for reconsideration of said decision filed
by the accused was denied in a resolution of February 19, 1980. 15

Hence this petition for review of said decision was filed by accused whereby petitioner prays that
said decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing
his threat to proceed with the arraignment and trial of petitioner in said criminal case, declaring the
information filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the
said case, and declaring the obligation of petitioner as purely civil. 16

In a resolution of May 19, 1980, the Second Division of this Court without giving due course to the
petition required the respondents to comment to the petition, not to file a motiod to dismiss, within
ten (10) days from notice. In the comment filed by the Solicitor General he recommends that the
petition be given due course, it being meritorious. Private respondent through counsel filed his reply
to the comment and a separate conunent to the petition asking that the petition be dismissed. In the
resolution of February 5, 1981, the Second Division of this Court resolved to transfer this case to the
Court En Banc. In the resolution of February 26, 1981, the Court En Banc resolved to give due
course to the petition.

Petitioner and private respondent filed their respective briefs while the Solicitor General filed a
Manifestation in lieu of brief reiterating that the decision of the respondent Court of Appeals be
reversed and that respondent Judge be ordered to dismiss the information.

It is a cardinal principle that an criminal actions either commenced by complaint or by information

shall be prosecuted under the direction and control of the fiscal. 17 The institution of a criminal action
depends upon the sound discretion of the fiscal. He may or may not file the complaint or information,
follow or not fonow that presented by the offended party, according to whether the evidence in his
opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. 18 The
reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent
malicious or unfounded prosecution by private persons. 19 It cannot be controlled by the
complainant. 20 Prosecuting officers under the power vested in them by law, not only have the
authority but also the duty of prosecuting persons who, according to the evidence received from the
complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. 21 They
have equally the legal duty not to prosecute when after an investigation they become convinced that
the evidence adduced is not sufficient to establish a prima faciecase. 22

It is through the conduct of a preliminary investigation 23 that the fiscal determines the existence of a
puma facie case that would warrant the prosecution of a case. The Courts cannot interfere with the
fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a
Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if
he finds that the evidence relied upon by him is insufficient for conviction. 24 Neither has the Court
any power to order the fiscal to prosecute or file an information within a certain period of time, since
this would interfere with the fiscal's discretion and control of criminal prosecutions. 25 Thus, a fiscal
who asks for the dismissal of the case for insufficiency of evidence has authority to do so, and
Courts that grant the same commit no error. 26 The fiscal may re-investigate a case and subsequently
move for the dismissal should the re-investigation show either that the defendant is innocent or that
his guilt may not be established beyond reasonable doubt. 27 In a clash of views between the judge
who did not investigate and the fiscal who did, or between the fiscal and the offended party or the
defendant, those of the Fiscal's should normally prevail. 28 On the other hand, neither an injunction,
preliminary or final nor a writ of prohibition may be issued by the courts to restrain a criminal
prosecution 29 except in the extreme case where it is necessary for the Courts to do so for the orderly
administration of justice or to prevent the use of the strong arm of the law in an op pressive and
vindictive manner. 30

However, the action of the fiscal or prosecutor is not without any limitation or control. The same is
subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe
and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or
reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a
motion to dismiss the rase be filed in Court or otherwise, that an information be filed in Court. 31

The filing of a complaint or information in Court initiates a criminal action. The Court thereby
acquires jurisdiction over the case, which is the authority to hear and determine the case. 32 When
after the filing of the complaint or information a warrant for the arrest of the accused is issued by the
trial court and the accused either voluntarily submited himself to the Court or was duly arrested, the
Court thereby acquired jurisdiction over the person of the accused. 33

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima
facie case exists 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. 34 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 rase thereafter
should be addressed for the consideration of the Court, 35 The only qualification is that the action of
the Court must not impair the substantial rights of the accused. 36 or the right of the People to due
process of law. 36a

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the
fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the
Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the
trial on the merits proceed for the proper determination of the case.
However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon
the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state
prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does
not believe that there is a basis for prosecution nor can the fiscal be expected to handle the
prosecution of the case thereby defying the superior order of the Secretary of Justice.

The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is

done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in
spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of
evidence of the prosecution to the Court to enable the Court to arrive at its own independent
judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk
from the responsibility of appearing for the People of the Philippines even under such circumstances
much less should he abandon the prosecution of the case leaving it to the hands of a private
prosecutor for then the entire proceedings will be null and void. 37 The least that the fiscal should do
is to continue to appear for the prosecution although he may turn over the presentation of the
evidence to the private prosecutor but still under his direction and control. 38

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case 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. The determination
of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by
the fiscal should be addressed to the Court who has the option to grant or deny the same. It does
not matter if this is done before or after the arraignment of the accused or that the motion was filed
after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of
the investigation.

In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who
reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice
should, as far as practicable, refrain from entertaining a petition for review or appeal from the action
of the fiscal, when the complaint or information has already been filed in Court. The matter should be
left entirely for the determination of the Court.

WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as to costs.


Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin,
Sarmiento and Cortes, JJ., concur.
Teehankee C.J., took no part.


Copy of information, Annex A to Annex E; pp. 54-55, Rollo

Annex C to Annex E; pp. 70-71, Rollo.
Annex D to Annex E; p. 72, supra.

Annex E to Annex E; pp. 73-108, supra.

Annex F to Annex C; p. 109, supra.

Annex G to Annex E; pp. 110-118, Rollo.

Annex H to Annex E; pp. 119-129, supra.

Annex I to Annex E; pp. 130-132, supra.

Annex J to Annex E; pp. 133-139, supra.

Annex K to Annex E; p. 140, supra.

Annex L to Annex E; pp. 141-142, supra.

Annex E; pp. 42-53, supra.

P. 145, supra.

Annex A to petition; pp. 23-26, supra.

Annex D, pp. 40-41, supra.

Pp. 5-21, supra

Section 4, Rule 110 of the Rules of Court, now Section 5, Rule 110 of 1985 Rules on

Criminal Procedure, People v. Valdemoro, 102 SCRA 170.

Gonzales vs. Court of First Instance, 63 Phil. 846,

U.S. vs. Narvas, 14 Phil. 410.

People vs. Sope, 75 Phil. 810; People vs. Liggayu, 97; PhiL 865; Zulueta vs. Nicolas, 102

Phil. 944; People vs. Natoza, G.R. L-8917, Dec. 14, 1956.

Bagatua vs. Revilla, G.R. L-12247, August 26, 1958.

Zulueta vs. Nicolas, supra.

Sections 1 and 2 of Rule 112 of the Rules of Court; Presidential Decree 911; Sections 1-4,

Rule 112 of the 1985 Rules on Criminal Procedure.

People vs. De Moll, 68 Phil. 626.

Asst. Provincial Fiscal of Bataan vs. Dollete, 103 Phil. 914; People vs. Pineda, G.R. No. L-

26222, July 21, 1967, 20 SCRA 748.

People vs. Natoza, supra; Pangan vs. Pasicolan, G.R. L-12517, May 19, 1958.

People vs. Jamisola, No. L-27332, Nov. 28, 1969; People vs. Agasang, 66 Phil.182.

People vs. Pineda, supra.

Kwong Sing vs.City of Manila, 41 Phil. 103,112.

Dimayuga vs. Fernandez, 43 Phil. 384, 307; University of the Philippines vs. City Fiscal of

Quezon City, G.R. No. L-18562, July 31, 1961.

PD 911, now Section 4, Rule 112 of the 1985 Rules on Criminal Procedure; Estrella vs.

Orendain, Jr., 37 SCRA 650-652, 654-655; Gonzales vs. Serrano, L-25791. Sept. 23, 1968,
25 SCRA 64; Caeg vs. Abad Santos, N-40044, March 10, 1975, 63 SCRA 96; Oliveros vs.
Villaluz, L-33362, July 30, 1971, 40 SCRA 327; Noblejas vs. Salas, L-31788 and 31792,
Sept. 15, 1975, 67 SCRA 47; Vda. de Jacob vs. Puno, 131 SCRA 144; Circular No. 13, April
19, 1976 of the Secretary of Justice.

Herrera vs. Barreto, 25 Phils. 245; U.S. vs. Limsiongco, 41 Phils. 94; De la Cruz vs. Mujer,

36 Phis. 213; Section 1 Rule 110, Rules of Court, now Section 1 also Rule 110, 1985 Rules
on Criminal Procedure.

21 C.J.S. 123; Carrington.

U.S. vs. Barreto, 32 Phils. 444.

Asst. Provincial Fiscal of Bataan vs. Dollete, Supra.

People vs. Zabala, 58 O. G. 5028.

Galman vs. Sandiganbayan, 144 SCRA 43, 101.

People vs. Beriales, 70 SCRA 361 (1976).

U.S. vs. Despabiladeras, 32 Phils. 442; U.S. vs. Gallego, 37 Phils. 289; People vs.
Hernandez, 69 Phils. 672; U.S. vs. Labil 27 Phils. 82; U.S. vs. Fernandez, Phils. 539; People
vs. Velez, 77, Phils. 1026.
G.R. No. 71782 April 14, 1988


OPAO petitioners,
PHILIPPINES, respondents.


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

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

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

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

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.


Teehankee, C.J., Cruz, Gancayco and Griño-Aquino, JJ., concur.


1 Rollo, pp. 2, 16.

2 Rollo, pp. 7-15.

3 Id., pp. 93-95,117.

4 Petition; Rollo, p. 4.

5 Annexes C-1, C-2 C-3, Petition; Rollo, pp. 22-24.

6 Rollo, pp. 4, 19.

7 Rollo, p. 20.

8 Id., p. 21.

9 Id., p. 21 (overleaf).

10 Id., pp. 25, 28.

11 Id., pp. 26-27.

12 Id., p. 28.

13 The new rules on criminal procedure which became effective on January 1, 1985.

14 Rollo, pp. 8-10, 89-91.

15 Id., p. 94. 16 Id., p. 14.

17 Rollo, pp. 6, 11-12.

18 Sec. 3, Art. IV; Rollo, pp. 6, 12-13.

19 Mariñas vs. Siochi, 104 SCRA 423; Tabil vs. Ong, 91 SCRA 451; Banzon vs.
Cabato, etc., 64 SCRA 419; People vs. Paras, 56 SCRA 248; People vs. Abejuela
and Endan, 38 SCRA 324; People vs. Oandasan, 25 SCRA 277; Luna vs. Plaza, 26
SCRA 311; San Diego vs. Hernandez, 24 SCRA 110; People vs. Monton, 23 SCRA

20 Section 3, first paragraph. of Rule 112, Rules of Court, which excepts cases
where a lawful arrest without warrant has been made (Sec. 7 of the same Rule).

21 Sec. 6, and Sec. 9(b) Rule 112, Rules of Court, effective January 1, 1985; Sec.
37, B.P. 129; Sec. 3, Art. IV, Constitution.

22 18 SCRA 1115.

23 Supra; citing Rule 108, Secs. 1, 6 and 11, of the old Rules of Court (now Secs. 1,
5 and 12 of Rule 112, with modifications) Lozada vs. Hernandez, 92 Phil. 1051; Biron
vs. Cea, 78 Phil. 673; Rodriguez vs. Arellano, 96 Phil. 954; U.S. vs. Ocampo, 18 Phil.
1; People vs. Moreno, 77 Phil. 648; Hashim vs. Boncan, 71 Phil. 216.
24 Annex "C', Petition; Rollo, p. 21 (overleaf); the certification written thereon reads:
"A PRELIMINARY EXAMINATION has been conducted in this case, having
examined personally all witnesses under oath thru my closed and direct supervision."

25 Annex "F", Petition; Rollo, p. 28.

26 Sec. 5(m), Rule 131, Rules of Court.

27 Rollo, pp. 9-10.

28 Annexes C-1, C-2 C-3, Petition.

29 26 SCRA 310.

30 Bouvier's Law Dictionary, 3rd Rev., Vol. 1, p. 1349 citing May, Const. Hist. of

31 Art. IV, Sec. 3, Constitution.

G.R. No. 87059 June 22, 1992

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

ROGELIO MENGOTE y TEJAS, accused-appellant.


Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on the strength
mainly of the stolen pistol found on his person at the moment of his warrantless arrest. In this
appeal, he pleads that the weapon was not admissible as evidence against him because it had been
illegally seized and was therefore the fruit of the poisonous tree. The Government disagrees. It
insists that the revolver was validly received in evidence by the trial judge because its seizure was
incidental to an arrest that was doubtless lawful even if admittedly without warrant.

The incident occurred shortly before noon of August 8, 1987, after the Western Police District
received a telephone call from an informer that there were three suspicious-looking persons at the
corner of Juan Luna and North Bay Boulevard in Tondo, Manila. A surveillance team of
plainclothesmen was forthwith dispatched to the place. As later narrated at the trial by Patrolmen
Rolando Mercado and Alberto Juan, 1 they there saw two men "looking from side to side," one of
whom was holding his abdomen. They approached these persons and identified themselves as
policemen, whereupon the two tried to run away but were unable to escape because the other
lawmen had surrounded them. The suspects were then searched. One of them, who turned out to be
the accused-appellant, was found with a .38 caliber Smith and Wesson revolver with six live bullets
in the chamber. His companion, later identified as Nicanor Morellos, had a fan knife secreted in his
front right pants pocket. The weapons were taken from them. Mengote and Morellos were then
turned over to police headquarters for investigation by the Intelligence Division.

On August 11, 1987, the following information was filed against the accused-appellant before the
Regional Trial Court of Manila:

The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of

Presidential Decree No. 1866, committed as follows:

That on or about August 8, 1987, in the City of Manila, Philippines, the said accused
did then and there wilfully, unlawfully and knowingly have in his possession and
under his custody and control a firearm, to wit:
one (1) cal. 38 "S & W" bearing
Serial No. 8720-T

without first having secured the necessary license or permit therefor from the proper

Besides the police officers, one other witness presented by the prosecution was Rigoberto
Danganan, who identified the subject weapon as among the articles stolen from him during the
robbery in his house in Malabon on June 13, 1987. He pointed to Mengote as one of the robbers. He
had duly reported the robbery to the police, indicating the articles stolen from him, including the
revolver. 2 For his part, Mengote made no effort to prove that he owned the firearm or that he was
licensed to possess it and claimed instead that the weapon had been "Planted" on him at the time of
his arrest. 3

The gun, together with the live bullets and its holster, were offered as Exhibits A, B, and C and
admitted over the objection of the defense. As previously stated, the weapon was the principal
evidence that led to Mengote's conviction for violation of P.D. 1866. He was sentenced to reclusion
perpetua. 4

It is submitted in the Appellant's Brief that the revolver should not have been admitted in evidence
because of its illegal seizure. no warrant therefor having been previously obtained. Neither could it
have been seized as an incident of a lawful arrest because the arrest of Mengote was itself unlawful,
having been also effected without a warrant. The defense also contends that the testimony regarding
the alleged robbery in Danganan's house was irrelevant and should also have been disregarded by
the trial court.

The following are the pertinent provision of the Bill of Rights:

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

Sec. 3 (1). The privacy of communication and correspondence shall be inviolable

except upon lawful order of the court, or when public safety or order requires
otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.

There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible
in any proceeding for any purpose. That is the absolute prohibition of Article III, Section 3(2), of the
Constitution. This is the celebrated exclusionary rule based on the justification given by Judge
Learned Hand that "only in case the prosecution, which itself controls the seizing officials, knows that
it cannot profit by their wrong will the wrong be repressed." The Solicitor General, while conceding
the rule, maintains that it is not applicable in the case at bar. His reason is that the arrest and search
of Mengote and the seizure of the revolver from him were lawful under Rule 113, Section 5, of the
Rules of Court reading as follows:
Sec. 5. Arrest without warrant when lawful. — A peace officer or 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 failing 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.

We have carefully examined the wording of this Rule and cannot see how we can agree with the

Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a penal
institution when he was arrested. We therefore confine ourselves to determining the lawfulness of
his arrest under either Par. (a) or Par. (b) of this section.

Par. (a) requires that the person be arrested (1) after he has committed or while he is actually
committing or is at least attempting to commit an offense, (2) in the presence of the arresting officer.

These requirements have not been established in the case at bar. At the time of the arrest in
question, the accused-appellant was merely "looking from side to side" and "holding his abdomen,"
according to the arresting officers themselves. There was apparently no offense that had just been
committed or was being actually committed or at least being attempted by Mengote in their

The Solicitor General submits that the actual existence of an offense was not necessary as long as
Mengote's acts "created a reasonable suspicion on the part of the arresting officers and induced in
them the belief that an offense had been committed and that the accused-appellant had committed
it." The question is, What offense? What offense could possibly have been suggested by a person
"looking from side to side" and "holding his abdomen" and in a place not exactly forsaken?

These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might
have been different if Mengote bad been apprehended at an ungodly hour and in a place where he
had no reason to be, like a darkened alley at 3 o'clock in the morning. But he was arrested at 11:30
in the morning and in a crowded street shortly after alighting from a passenger jeep with I his
companion. He was not skulking in the shadows but walking in the clear light of day. There was
nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun.

On the other hand, there could have been a number of reasons, all of them innocent, why his eyes
were darting from side to side and be was holding his abdomen. If they excited suspicion in the
minds of the arresting officers, as the prosecution suggests, it has nevertheless not been shown
what their suspicion was all about. In fact, the policemen themselves testified that they were
dispatched to that place only because of the telephone call from the informer that there were
"suspicious-looking" persons in that vicinity who were about to commit a robbery at North Bay
Boulevard. The caller did not explain why he thought the men looked suspicious nor did he elaborate
on the impending crime.

In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless arrest of the
accused because there was a bulge in his waist that excited the suspicion of the arresting officer
and, upon inspection, turned out to be a pouch containing hashish. In People v. Claudio, 6 the
accused boarded a bus and placed the buri bag she was carrying behind the seat of the arresting
officer while she herself sat in the seat before him. His suspicion aroused, be surreptitiously
examined the bag, which he found to contain marijuana. He then and there made the warrantless
arrest and seizure that we subsequently upheld on the ground that probable cause had been
sufficiently established.

The case before us is different because there was nothing to support the arresting officers' suspicion
other than Mengote's darting eyes and his hand on his abdomen. By no stretch of the imagination
could it have been inferred from these acts that an offense had just been committed, or was actually
being committed, or was at least being attempted in their presence.

This case is similar to People v. Aminnudin, 7 where the Court held that the warrantless arrest of the
accused was unconstitutional. This was effected while be was coming down a vessel, to all
appearances no less innocent than the other disembarking passengers. He had not committed nor
was be actually committing or attempting to commit an offense in the presence of the arresting
officers. He was not even acting suspiciously. In short, there was no probable cause that, as the
prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant.

Par. (b) is no less applicable because its no less stringent requirements have also not been satisfied.
The prosecution has not shown that at the time of Mengote's arrest an offense had in fact just been
committed and that the arresting officers had personal knowledge of facts indicating that Mengote
had committed it. All they had was hearsay information from the telephone caller, and about a crime
that had yet to be committed.

The truth is that they did not know then what offense, if at all, had been committed and neither were
they aware of the participation therein of the accused-appellant. It was only later, after Danganan
had appeared at the Police headquarters, that they learned of the robbery in his house and of
Mengote's supposed involvement therein. 8 As for the illegal possession of the firearm found on Mengote's person, the
policemen discovered this only after he had been searched and the investigation conducted later revealed that he was not its owners nor
was he licensed to possess it.

Before these events, the Peace officers had no knowledge even of Mengote' identity, let alone the
fact (or suspicion) that he was unlawfully carrying a firearm or that he was involved in the robbery of
Danganan's house.

In the landmark case of People v. Burgos, 9 this Court declared:

Under Section 6(a) of Rule 113, the officer arresting a person who has just
committed, is committing, or is about to commit an offense must have personal
knowledge of the fact. The offense must also be committed in his presence or within
his view. (Sayo v. Chief of Police, 80 Phil. 859). (Emphasis supplied)

xxx xxx xxx

In arrests without a warrant under Section 6(b), however, it is not enough that there
is reasonable ground to believe that the person to be arrested has committed a
crime. A crime must in fact or actually have been committed first. That a crime has
actually been committed is an essential precondition. It is not enough to suspect that
a crime may have been committed. The fact of the commission of the offense must
be undisputed. The test of reasonable ground applies only to the identity of the
perpetrator. (Emphasis supplied)

This doctrine was affirmed in Alih v. Castro, 10 thus:

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 falsification. 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. (Emphasis supplied)

It would be a sad day, indeed, if any person could be summarily arrested and searched just because
he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer
could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a
criminal act or is actually committing or attempting it. This simply cannot be done in a free society.
This is not a police state where order is exalted over liberty or, worse, personal malice on the part of
the arresting officer may be justified in the name of security.

There is no need to discuss the other issues raised by the accused-appellant as the ruling we here
make is sufficient to sustain his exoneration. Without the evidence of the firearm taken from him at
the time of his illegal arrest, the prosecution has lost its most important exhibit and must therefore
fail. The testimonial evidence against Mengote (which is based on the said firearm) is not sufficient
to prove his guilt beyond reasonable doubt of the crime imputed to him.

We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the accused-appellant
not only in the brief but also in the reply brief, which she did not have to file but did so just the same
to stress the constitutional rights of her client. The fact that she was acting only as a counsel de
oficio with no expectation of material reward makes her representation even more commendable.

The Court feels that if the peace officers had been more mindful of the provisions of the Bill of
Rights, the prosecution of the accused-appellant might have succeeded. As it happened, they
allowed their over-zealousness to get the better of them, resulting in their disregard of the
requirements of a valid search and seizure that rendered inadmissible the vital evidence they had
invalidly seized.

This should be a lesson to other peace officers. Their impulsiveness may be the very cause of the
acquittal of persons who deserve to be convicted, escaping the clutches of the law because,
ironically enough, it has not been observed by those who are supposed to enforce it.

WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is
ACQUITTED and ordered released immediately unless he is validly detained for other offenses. No


Griño-Aquino, Medialdea and Bellosillo, JJ., concur.


1 TSN, September 21, 1987, October 21, 1987.

2 Records, p. 54.

3 TSN, October 26, 1987. p. 11.

4 Through Judge Romeo J. Callejo.

5 198 SCRA 401.

6 160 SCRA 646.

7 163 SCRA 402.

8 TSN, September 23, 1987, p. 10.

9 144 SCRA 1.

10 151 SCRA 279.

G.R.No. 74869 July 6, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

IDEL AMINNUDIN y AHNI, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Herminio T. Llariza counsel de-officio for defendant-appellant.


The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found guilty of illegally
transporting marijuana. The trial court, disbelieving him, held it was high time to put him away and sentenced him to life imprisonment plus a
fine of P20,000.00. 1

Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at
about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him simply
accosted him, inspected his bag and finding what looked liked marijuana leaves took him to their
headquarters for investigation. The two bundles of suspect articles were confiscated from him and
later taken to the NBI laboratory for examination. When they were verified as marijuana leaves, an
information for violation of the Dangerous Drugs Act was filed against him. 2 Later, the information
was amended to include Farida Ali y Hassen, who had also been arrested with him that same
evening and likewise investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the
fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn statement of the
arresting officers absolving her after a 'thorough investigation." 5 The motion was granted, and trial
proceeded only against the accused-appellant, who was eventually convicted .6

According to the prosecution, the PC officers had earlier received a tip from one of their informers
that the accused-appellant was on board a vessel bound for Iloilo City and was carrying
marijuana. 7 He was Identified by name. 8Acting on this tip, they waited for him in the evening of June
25, 1984, and approached him as he descended from the gangplank after the informer had pointed
to him. 9 They detained him and inspected the bag he was carrying. It was found to contain three
kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, 10who testified
that she conducted microscopic, chemical and chromatographic tests on them. On the basis of this
finding, the corresponding charge was then filed against Aminnudin.

In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his
clothing consisting of a jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily
arrested and immediately handcuffed. His bag was confiscated without a search warrant. At the PC
headquarters, he was manhandled to force him to admit he was carrying the marijuana, the
investigator hitting him with a piece of wood in the chest and arms even as he parried the blows
while he was still handcuffed. 12 He insisted he did not even know what marijuana looked like and
that his business was selling watches and sometimes cigarettes. 13 He also argued that the
marijuana he was alleged to have been carrying was not properly Identified and could have been
any of several bundles kept in the stock room of the PC headquarters. 14

The trial court was unconvinced, noting from its own examination of the accused that he claimed to
have come to Iloilo City to sell watches but carried only two watches at the time, traveling from Jolo
for that purpose and spending P107.00 for fare, not to mention his other expenses. 15 Aminnudin
testified that he kept the two watches in a secret pocket below his belt but, strangely, they were not
discovered when he was bodily searched by the arresting officers nor were they damaged as a
result of his manhandling. 16 He also said he sold one of the watches for P400.00 and gave away the
other, although the watches belonged not to him but to his cousin, 17 to a friend whose full name he
said did not even know. 18 The trial court also rejected his allegations of maltreatment, observing that
he had not sufficiently proved the injuries sustained by him. 19

There is no justification to reverse these factual findings, considering that it was the trial judge who
had immediate access to the testimony of the witnesses and had the opportunity to weigh their
credibility on the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush of face
and dart of eyes, which may reveal the truth or expose the lie, are not described in the impersonal
record. But the trial judge sees all of this, discovering for himself the truant fact amidst the falsities.

The only exception we may make in this case is the trial court's conclusion that the accused-
appellant was not really beaten up because he did not complain about it later nor did he submit to a
medical examination. That is hardly fair or realistic. It is possible Aminnudin never had that
opportunity as he was at that time under detention by the PC authorities and in fact has never been
set free since he was arrested in 1984 and up to the present. No bail has been allowed for his

There is one point that deserves closer examination, however, and it is Aminnudin's claim that he
was arrested and searched without warrant, making the marijuana allegedly found in his possession
inadmissible in evidence against him under the Bill of Rights. The decision did not even discuss this
point. For his part, the Solicitor General dismissed this after an all-too-short argument that the arrest
of Aminnudin was valid because it came under Rule 113, Section 6(b) of the Rules of Court on
warrantless arrests. This made the search also valid as incidental to a lawful arrest.

It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that
they had no warrant when they arrested Aminnudin and seized the bag he was carrying. Their only
justification was the tip they had earlier received from a reliable and regular informer who reported to
them that Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as to the
time they received the tip, one saying it was two days before the arrest, 20 another two weeks 21 and a
third "weeks before June 25." 22 On this matter, we may prefer the declaration of the chief of the
arresting team, Lt. Cipriano Querol, Jr., who testified as follows:

Q You mentioned an intelligence report, you mean with respect to the

coming of Idel Aminnudin on June 25, 1984?

A Yes, sir.

Q When did you receive this intelligence report?

A Two days before June 25, 1984 and it was supported by reliable
Q Were you informed of the coming of the Wilcon 9 and the possible
trafficking of marijuana leaves on that date?

A Yes, sir, two days before June 25, 1984 when we received this
information from that particular informer, prior to June 25, 1984 we
have already reports of the particular operation which was being
participated by Idel Aminnudin.

Q You said you received an intelligence report two days before June
25, 1984 with respect to the coming of Wilcon 9?

A Yes, sir.

Q Did you receive any other report aside from this intelligence report?

A Well, I have received also other reports but not pertaining to the
coming of Wilcon 9. For instance, report of illegal gambling operation.


Q Previous to that particular information which you said two days

before June 25, 1984, did you also receive daily report regarding the
activities of Idel Aminnudin

A Previous to June 25, 1984 we received reports on the activities of

Idel Aminnudin.

Q What were those activities?

A Purely marijuana trafficking.

Q From whom did you get that information?

A It came to my hand which was written in a required sheet of

information, maybe for security reason and we cannot Identify the

Q But you received it from your regular informer?

A Yes, sir.


Q Previous to June 25, 1984, you were more or less sure that Idel
Aminnudin is coming with drugs?

A Marijuana, sir.
Q And this information respecting Idel Aminnudin's coming to Iloilo
with marijuana was received by you many days before you received
the intelligence report in writing?

A Not a report of the particular coming of Aminnudin but his activities.

Q You only knew that he was coming on June 25,1984 two days

A Yes, sir.

Q You mean that before June 23, 1984 you did not know that
minnudin was coming?

A Before June 23,1984, I, in my capacity, did not know that he was

coming but on June 23, 1984 that was the time when I received the
information that he was coming. Regarding the reports on his
activities, we have reports that he was already consummated the act
of selling and shipping marijuana stuff.


Q And as a result of that report, you put him under surveillance?

A Yes, sir.

Q In the intelligence report, only the name of Idel Aminnudin was


A Yes, sir.

Q Are you sure of that?

A On the 23rd he will be coming with the woman.

Q So that even before you received the official report on June 23,
1984, you had already gathered information to the effect that Idel
Aminnudin was coming to Iloilo on June 25, 1984?

A Only on the 23rd of June.

Q You did not try to secure a search warrant for the seizure or search
of the subject mentioned in your intelligence report?

A No, more.

Q Why not?

A Because we were very very sure that our operation will yield
positive result.
Q Is that your procedure that whenever it will yield positive result you
do not need a search warrant anymore?

A Search warrant is not necessary. 23

That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the
PC. The Supreme Court cannot countenance such a statement. This is still a government of laws
and not of men.

The mandate of the Bill of Rights is clear:

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.

In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal
determination by him of the existence of probable cause. Contrary to the averments of the
government, the accused-appellant was not caught in flagrante nor was a crime about to be
committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of the
Rules of Court. Even expediency could not be invoked to dispense with the obtention of the warrant
as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are subject
to warrantless searches and seizures for violation of the customs law because these vehicles may
be quickly moved out of the locality or jurisdiction before the warrant can be secured.

The present case presented no such urgency. From the conflicting declarations of the PC witnesses,
it is clear that they had at least two days within which they could have obtained a warrant to arrest
and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The
vehicle was Identified. The date of its arrival was certain. And from the information they had
received, they could have persuaded a judge that there was probable cause, indeed, to justify the
issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of
Rights was ignored altogether because the PC lieutenant who was the head of the arresting team,
had determined on his own authority that a "search warrant was not necessary."

In the many cases where this Court has sustained the warrantless arrest of violators of the
Dangerous Drugs Act, it has always been shown that they were caught red-handed, as a result of
what are popularly called "buy-bust" operations of the narcotics agents. 25 Rule 113 was clearly
applicable because at the precise time of arrest the accused was in the act of selling the prohibited

In the case at bar, 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. It was the furtive finger that triggered his
arrest. The Identification by the informer was the probable cause as determined by the officers (and
not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him.
Now that we have succeeded in restoring democracy in our country after fourteen years of the
despised dictatorship, when any one could be picked up at will, detained without charges and
punished without trial, we will have only ourselves to blame if that kind of arbitrariness is allowed to
return, to once more flaunt its disdain of the Constitution and the individual liberties its Bill of Rights

While this is not to say that the accused-appellant is innocent, for indeed his very own words
suggest that he is lying, that fact alone does not justify a finding that he is guilty. The constitutional
presumption is that he is innocent, and he will be so declared even if his defense is weak as long as
the prosecution is not strong enough to convict him.

Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution
must fall. That evidence cannot be admitted, and should never have been considered by the trial
court for the simple fact is that the marijuana was seized illegally. It is the fruit of the poisonous tree,
to use Justice Holmes' felicitous phrase. The search was not an incident of a lawful arrest because
there was no warrant of arrest and the warrantless arrest did not come under the exceptions allowed
by the Rules of Court. Hence, the warrantless search was also illegal and the evidence obtained
thereby was inadmissible.

The Court strongly supports the campaign of the government against drug addiction and commends
the efforts of our law-enforcement officers against those who would inflict this malediction upon our
people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be
more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual
in the realm, including the basest of criminals. The Constitution covers with the mantle of its
protection the innocent and the guilty alike against any manner of high- handedness from the
authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the rights of the
individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes,
again, said, "I think it a less evil that some criminals should escape than that the government should
play an ignoble part." It is simply not allowed in the free society to violate a law to enforce another,
especially if the law violated is the Constitution itself.

We find that with the exclusion of the illegally seized marijuana as evidence against the accused-
appellant, his guilt has not been proved beyond reasonable doubt and he must therefore be
discharged on the presumption that he is innocent.

ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is
ACQUITTED. It is so ordered.

Narvasa, Gancayco and Medialdea, JJ., concur.

Separate Opinions

AQUINO, J., dissenting:

I respectfully dissent. I hold that the accused was caught in flagrante, for he was carrying marijuana
leaves in his bag at the moment of his arrest. He was not "innocently disembarking from the vessel."
The unauthorized transportation of marijuana (Indian hemp), which is a prohibited drug, is a crime.
(Sec. 4, Rep. Act No. 6425). Since he was committing a crime, his arrest could be lawfully effected
without a warrant (Sec. 6a, Rule 113, Rules of Court), and the search of his bag (which yielded the
marijuana leaves) without a search warrant was also lawful (Sec. 12, Rule 126, Rules of Court). I
vote to affirm the judgment of the trial court finding him guilty of illegally transporting marijuana.

Separate Opinions

AQUINO, J., dissenting:

I respectfully dissent. I hold that the accused was caught in flagrante, for he was carrying marijuana
leaves in his bag at the moment of his arrest. He was not "innocently disembarking from the vessel."
The unauthorized transportation of marijuana (Indian hemp), which is a prohibited drug, is a crime.
(Sec. 4, Rep. Act No. 6425). Since he was committing a crime, his arrest could be lawfully effected
without a warrant (Sec. 6a, Rule 113, Rules of Court), and the search of his bag (which yielded the
marijuana leaves) without a search warrant was also lawful (Sec. 12, Rule 126, Rules of Court). I
vote to affirm the judgment of the trial court finding him guilty of illegally transporting marijuana.


1 Rollo, p. 29.

2 Ibid., p. 2.

3 Original Records, p. 6.

4 Ibid., p. 20.

5 "Exh. 1," Original Records, p. 204.

6 Original Records, p. 26.

7 TSN, Sept. 19, 1984, p. 5; Oct. 25, 1984, p. 31.

8 TSN, Oct. 25, 1984, p. 29.

9 TSN, Sept. 19, 1984, pp. 6-7.

10 TSN, Sept. 5, 1984, pp. 8-10.

11 TSN, Aug. 15, 1985, p. 3.

12 Ibid., pp. 8-9; 19-20.

13 Id., pp. 10 & 13.

14 Brief for the Appellant, p. 22.

15 Rollo, p. 28.

16 TSN, Aug. 15, 1985, pp. 17-18; 22-24.

17 Ibid., p. 29.

18 Id., p. 4.

19 Rollo, p. 28.

20 TSN, Oct. 25, 1984, p. 31.

21 TSN, Sept. 19, 1984, p. 19.

22 TSN, Oct. 25, 1984, p. 12.

23 TSN, Oct. 25, 1984, pp. 31-33.

24 65 SCRA 336.

25 People v. Rubio, 142 SCRA 329; People v. Madarang, 147 SCRA 123; People v.
Sarmiento, 147 SCRA 252; People v. Cerelegia; 147 SCRA 538; People v.
Fernando, G.R. No. L-68409, December 1, 1987.
G.R. No. 200334 July 30, 2014


VICTOR COGAED y ROMANA, Accused-Appellant.



The mantle of protection upon one's person and one's effects through Article III, Section 2 of the
Constitution is essential to allow citizens to evolve their autonomy and, hence, to avail themselves of
their right to privacy. The alleged compromise with the battle against dangerous drugs is more
apparent than real. Often, the compromise is there because law enforcers neglect to perform what
could have been done to uphold the Constitution as they pursue those who traffic this scourge of

Squarely raised in· this appeal1 is the admissibility of the evidence seized as a result of a warrantless
arrest. The police officers identified the alleged perpetrator through facts that were not based on
their personal knowledge. The information as to the accused’s whereabouts was sent through a text
message. The accusedwho never acted suspicious was identified by a driver. The bag that allegedly
contained the contraband was required to be opened under intimidating circumstances and without
the accused having been fully apprised of his rights. This was not a reasonable search within the
meaning of the Constitution. There was no reasonable suspicion that would allow a legitimate "stop
and frisk" action. The alleged waiver of rights by the accused was not done intelligently, knowingly,
and without improper pressure or coercion.

The evidence, therefore, used against the accused should be excluded consistent with Article III,
Section 3 (2) of the Constitution. There being no possible admissible evidence, the accused should
be acquitted.

According to the prosecution, at about 6:00 a.m. of November 25, 2005, Police Senior Inspector
Sofronio Bayan (PSI Bayan) of the San Gabriel Police Station in San Gabriel,La Union, "received a
text message from an unidentified civilian informer"2 that one Marvin Buya (also known as Marvin
Bugat) "[would]be transporting marijuana"3 from Barangay LunOy, San Gabriel, La Union to the
Poblacion of San Gabriel, La Union.4

PSI Bayan organized checkpoints in order "to intercept the suspect."5 PSI Bayan ordered SPO1
Jaime Taracatac, Jr. (SPO1 Taracatac), a member of the San Gabriel Police, to set up a checkpoint
in the waiting area of passengers from San Gabriel bound for San Fernando City.6 A passenger
jeepney from Barangay Lun-Oy arrived at SPO1 Taracatac’s checkpoint.7 The jeepney driver
disembarked and signalled to SPO1 Taracatac indicating the two male passengers who were
carrying marijuana.8 SPO1 Taracatac approached the two male passengers who were later identified
as Victor RomanaCogaed and Santiago Sacpa Dayao.9 Cogaed was carrying a blue bag and a sack
while Dayao was holding a yellow bag.10

SPO1 Taracatac asked Cogaed and Dayao about the contents of their bags.11 Cogaed and Dayao
told SPO1 Taracatac that they did not know since they were transporting the bags as a favor for their
barriomatenamed Marvin.12 After this exchange, Cogaed opened the blue bag, revealing three bricks
of what looked like marijuana.13Cogaed then muttered, "nagloko daytoy nga Marvinen, kastoymet
gayam ti nagyanna,"which translates to "Marvin is a fool, this is what [is] contained in the
bag."14 "SPO1 Taracatac arrested [Cogaed] and . . . Dayao and brought them to the police
station."15 Cogaed and Dayao "were still carrying their respective bags"16 inside the station.17

While at the police station, the Chief of Police and Investigator PO3 Stanley Campit (PO3 Campit)
requested Cogaed and Dayao to empty their bags.18 Inside Cogaed’s sack was "four (4) rolled pieces
of suspected marijuana fruiting tops,"19 and inside Dayao’s yellow bag was a brick of suspected

PO3 Campit prepared the suspected marijuana for laboratory testing.21 PSI Bayan personally
delivered the suspected marijuana to the PNP Crime Laboratory.22 Forensic Chemical Officer Police
Inspector Valeriano Panem Laya II performed the tests and found that the objects obtained were
indeed marijuana.23 The marijuana collected from Cogaed’s blue bag had a total weight of 8,091.5
grams.24 The marijuana from Cogaed’s sack weighed 4,246.1 grams.25 The marijuana collected from
Dayao’s bag weighed 5,092 grams.26 A total of 17,429.6 grams werecollected from Cogaed’s and
Dayao’s bags.27

According to Cogaed’s testimony during trial, he was at Balbalayan, La Union, "waiting for a jeepney
to take him"28to the Poblacion of San Gabriel so he could buy pesticide.29 He boarded a jeepney and
recognized Dayao, his younger brother’s friend.30 Upon arrival at the Poblacion of San Gabriel,
Dayao and Cogaed alighted from the jeepney.31 Dayao allegedly "asked for [Cogaed’s] help in
carrying his things, which included a travelling bag and a sack."32 Cogaed agreed because they were
both going to the market.33 This was when SPO1 Taracatac approached them, and when SPO1
Taracatac asked Cogaed what was inside the bags, Cogaed replied that he did not know.34SPO1
Taracatac then talked to Dayao, however, Cogaed was not privy to their conversation.35 Thereafter,
SPO1 Taracatac arrested Dayao and Cogaed and brought them to the police station.36 These facts
were corroborated by an eyewitness,Teodoro Nalpu-ot, who was standing across the parking lot
where Cogaed was apprehended.37

At the police station, Cogaed said that "SPO1 Taracatac hit [him] on the head."38 The bags were also
opened, but Cogaed never knew what was inside.39

It was only later when Cogaed learned that it was marijuana when he and Dayao were charged with
illegal possession of dangerous drugs under Republic Act No. 9165.40 The information against them

That on or about the 25th day of November, 2005, in the Municipality of San Gabriel, Province of La
Union, and within the jurisdiction of this Honorable Court, the above-named accused VICTOR
COGAED Y ROMANA and SANTIAGO DAYAO Y SACPA (who acted with discernment) and JOHN
DOE,conspiring, confederating and mutually helping one another, did then there wilfully, unlawfully,
feloniously and knowingly, without being authorized by law, have in their control, custody and
possession dried marijuana, a dangerous drug, with a total weight of seventeen thousand,four
hundred twenty-nine and sixtenths (17, 429.6) grams.

CONTRARY TO Section 11 (Possession of Dangerous Drugs), Article II, of Republic Act No. 9165
(otherwise known as the "Comprehensive Dangerous Drugs Act of 2002").41

The case was raffled to Regional Trial Court, Branch 28 of San Fernando City, La Union.42 Cogaed
and Dayao pleaded not guilty.43 The case was dismissed against Dayao because he was only 14
years old at that time and was exempt from criminal liability under the Juvenile Justice and Welfare
Act of 2006 or Republic Act No. 9344.44 Trial against Cogaed ensued. In a decision45 dated May 21,
2008, the Regional Trial Court found Cogaed guilty. The dispositive portion of the decision states:

WHEREFORE, the Court finds accused Victor Cogaed y Romana GUILTY beyond reasonable doubt
for Violation of Section 11, Article II of Republic Act No. 9165 (otherwise known as the
"Comprehensive Dangerous Drugs Act of 2002") and sentences him to suffer life imprisonment, and
to pay a fine of one million pesos (Php 1,000,000.00).46

The trial court judge initiallyfound Cogaed’s arrest illegal considering that "Cogaed at that time was
not, at the moment of his arrest, committing a crime nor was shown that hewas about to do so or
that had just done so. He just alighted from the passenger jeepney and there was no outward
indication that called for his arrest."47 Since the arrest was illegal, the warrantless search should also
be considered illegal.48 However, the trial court stated that notwithstanding the illegality of the arrest,
Cogaed "waived his right to object to such irregularity"49 when "he did not protest when SPO1
Taracatac, after identifying himself, asked him to open his bag."50

Cogaed appealed51 the trial court’s decision.However, the Court of Appeals denied his appeal and
affirmed the trial court’s decision.52 The Court of Appeals found that Cogaed waived his right against
warrantless searches when "[w]ithout any prompting from SPO1 Taracatac, [he] voluntarily opened
his bag."53 Hence, this appeal was filed.

The following errors were assigned by Cogaed in his appellant’s brief:







For our consideration are the following issues: (1) whether there was a valid search and seizure of
marijuana as against the appellant; (2) whether the evidence obtained through the search should be
admitted; and (3) whether there was enough evidence to sustain the conviction of the accused.

In view of the disposition of this case, we deem that a discussion with respect to the requirements on
the chain of custody of dangerous drugs unnecessary.55

We find for the accused.


The right to privacy is a fundamental right enshrined by implication in our Constitution. It has many
dimensions. One of its dimensions is its protection through the prohibition of unreasonable searches
and seizures in Article III, Section 2 of the Constitution:

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
determinedpersonally 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.

This provision requires that the court examine with care and diligence whether searches and
seizures are "reasonable." As a general rule, searches conducted with a warrant that meets all the
requirements of this provision are reasonable. This warrant requires the existence of probable cause
that can only be determined by a judge.56The existence of probable cause must be established by
the judge after asking searching questions and answers.57Probable cause at this stage can only exist
if there is an offense alleged to be committed. Also, the warrant frames the searches done by the
law enforcers. There must be a particular description of the place and the things to be searched.58

However, there are instances when searches are reasonable even when warrantless.59 In the Rules
of Court, searchesincidental to lawful arrests are allowed even without a separate warrant.60 This
court has taken into account the "uniqueness of 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."61 The
known jurisprudential instances of reasonable warrantless searches and seizures are:

1. Warrantless search incidental to a lawful arrest. . . ;

2. Seizure of evidence in "plain view," . . . ;

3. Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent
mobility reduces expectation of privacy especially when its transit in public thoroughfares
furnishes a highly reasonable suspicion amounting to probable cause that the occupant
committed a criminal activity;

4. Consentedwarrantless search;

5. Customs search;

6. Stop and frisk; and

7. Exigent and emergency circumstances.62 (Citations omitted)


One of these jurisprudential exceptionsto search warrants is "stop and frisk". "Stop and frisk"
searches are often confused with searches incidental to lawful arrests under the Rules of
Court.63 Searches incidental to a lawful arrest require that a crime be committed in flagrante delicto,
and the search conducted within the vicinity and withinreach by the person arrested is done to
ensure that there are no weapons, as well as to preserve the evidence.64

On the other hand, "stop and frisk"searches are conducted to prevent the occurrence of a crime. For
instance, the search in Posadas v. Court of Appeals65 was similar "to a ‘stop and frisk’ situation
whose object is either to determine the identity of a suspicious individual or to maintain the status
quomomentarily while the police officer seeks to obtain more information."66 This court stated that the
"stop and frisk" search should be used "[w]hen dealing with a rapidly unfolding and potentially
criminal situation in the city streets where unarguably there is no time to secure . . . a search

The search involved in this case was initially a "stop and frisk" search, but it did not comply with all
the requirements of reasonability required by the Constitution.

"Stop and frisk" searches (sometimes referred to as Terrysearches68) are necessary for law
enforcement. That is, law enforcers should be given the legal arsenal to prevent the commission of
offenses. However, this should be balanced with the need to protect the privacy of citizens in
accordance with Article III, Section 2 of the Constitution.

The balance lies in the concept of"suspiciousness" present in the situation where the police officer
finds himself or herself in. This may be undoubtedly based on the experience ofthe police officer.
Experienced police officers have personal experience dealing with criminals and criminal behavior.
Hence, they should have the ability to discern — based on facts that they themselves observe —
whether an individual is acting in a suspicious manner. Clearly, a basic criterion would be that the
police officer, with his or her personal knowledge, must observe the facts leading to the suspicion of
an illicit act.

In Manalili v. Court of Appeals,69 the police officers were initially informed about a place frequented
by people abusing drugs.70 When they arrived, one of the police officers saw a man with "reddish
eyes and [who was] walking in a swaying manner."71 The suspicion increased when the man avoided
the police officers.72 These observations led the police officers to conclude that the man was high on
drugs.73 These were sufficient facts observed by the police officers "to stop[the] petitioner [and]

In People v. Solayao,75 police officers noticed a man who appeared drunk.76 This man was also
"wearing a camouflage uniform or a jungle suit."77 Upon seeing the police, the man fled.78 His flight
added to the suspicion.79After stopping him, the police officers found an unlicensed "homemade
firearm"80 in his possession.81 This court ruled that "[u]nder the circumstances, the government
agents could not possibly have procured a search warrant first."82 This was also a valid search.

In these cases, the police officers using their senses observed facts that led to the suspicion. Seeing
a man with reddish eyes and walking in a swaying manner, based on their experience, is indicative
of a person who uses dangerous and illicit drugs. A drunk civilian in guerrilla wear is probably hiding
something as well.
The case of Cogaed was different. He was simply a passenger carrying a bag and traveling aboarda
jeepney. There was nothing suspicious, moreover, criminal, about riding a jeepney or carrying a bag.
The assessment of suspicion was not made by the police officer but by the jeepney driver. It was the
driver who signalled to the police that Cogaed was "suspicious."

This is supported by the testimony of SPO1 Taracatac himself:


Q So you don’t know what was the content while it was still being carried by him in the passenger


A Not yet, Your Honor.83

SPO1 Taracatac likewise stated:


Q If the driver did not make a gesture pointing to the accused, did you have reason to believe that
the accused were carrying marijuana?


A No, Your Honor.84

The jeepney driver had to point toCogaed. He would not have been identified by the police officers

It is the police officer who should observe facts that would lead to a reasonable degree of suspicion
of a person. The police officer should not adopt the suspicion initiated by another person. This is
necessary to justify that the person suspected be stopped and reasonably searched.85 Anything less
than this would be an infringementupon one’s basic right to security of one’s person and effects.


Normally, "stop and frisk" searches do not give the law enforcer an opportunity to confer with a judge
to determine probable cause. In Posadas v. Court of Appeals,86 one of the earliest cases adopting
the "stop and frisk" doctrine in Philippine jurisprudence, this court approximatedthe suspicious
circumstances as probable cause:

The probable causeis that when the petitioner acted suspiciously and attempted to flee with the buri
bag there was a probable cause that he was concealing something illegal in the bag and it was the
right and duty of the police officers to inspect the same.87 (Emphasis supplied)

For warrantless searches, probable cause was defined as "a reasonable ground of
suspicionsupported by circumstances sufficiently strong in themselves to warrant a cautious man to
believe that the person accused is guilty of the offense with which he is charged."88
Malacat v. Court of Appeals89 clarifies the requirement further. It does not have to be probable
cause,but it cannot be mere suspicion.90 It has to be a "genuine reason"91 to serve the purposes of
the "stop and frisk" exception:92

Other notable points of Terryare 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 officer’s experience and surrounding conditions, to
warrant the belief that the person detained has weapons concealed about him.93 (Emphasis supplied,
footnotes omitted)

In his dissent for Esquillo v. People,94 Justice Bersamin reminds us that police officers must not rely
on a single suspicious circumstance.95 There should be "presence of more than oneseemingly
innocent activity, which, taken together, warranted a reasonable inference of criminal activity."96 The
Constitution prohibits "unreasonable searches and seizures."97 Certainly, reliance on only one
suspicious circumstance or none at all will not result in a reasonable search.98

There was not a single suspicious circumstance in this case, and there was no approximation for the
probable cause requirement for warrantless arrest. The person searched was noteven the person
mentioned by the informant. The informant gave the name of Marvin Buya, and the person searched
was Victor Cogaed. Even if it was true that Cogaed responded by saying that he was transporting
the bag to Marvin Buya, this still remained only as one circumstance. This should not have been
enough reason to search Cogaed and his belongings without a valid search warrant.

Police officers cannot justify unbridled searches and be shielded by this exception, unless there is
compliance with the "genuine reason" requirement and that the search serves the purpose of
protecting the public. As stated in Malacat:

[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-preservationwhich 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.99 (Emphasis supplied)

The "stop and frisk" searchwas originally limited to outer clothing and for the purpose of detecting
dangerous weapons.100 As in Manalili,101 jurisprudence also allows "stop and frisk" for cases involving
dangerous drugs.

The circumstances of thiscase are analogous to People v. Aruta.102 In that case, an informant told the
police that a certain "Aling Rosa" would be bringing in drugs from Baguio City by bus.103 At the bus
terminal, the police officers prepared themselves.104 The informant pointed at a woman crossing the
street105 and identified her as "Aling Rosa."106 The police apprehended "Aling Rosa," and they alleged
that she allowed them to look inside her bag.107The bag contained marijuana leaves.108

In Aruta, this court found that the search and seizure conducted was illegal.109 There were no
suspicious circumstances that preceded Aruta’s arrest and the subsequent search and seizure.110 It
was only the informant that prompted the police to apprehend her.111 The evidence obtained was not
admissible because of the illegal search.112Consequently, Aruta was acquitted.113
Arutais almost identical to this case, except that it was the jeepney driver, not the police’s informant,
who informed the police that Cogaed was "suspicious."

The facts in Arutaare also similar to the facts in People v. Aminnudin.114 Here, the National Bureau
ofInvestigation (NBI) acted upon a tip, naming Aminnudin as somebody possessing drugs.115 The NBI
waited for the vessel to arrive and accosted Aminnudin while he was disembarking from a
boat.116 Like in the case at bar, the NBI inspected Aminnudin’s bag and found bundles of what
turnedout to be marijuana leaves.117 The court declared that the searchand seizure was
illegal.118 Aminnudin was acquitted.119

People v. Chua120 also presents almost the same circumstances. In this case, the police had been
receiving information that the accused was distributing drugs in "different karaoke bars in Angeles
City."121 One night, the police received information that thisdrug dealer would be dealing drugs at the
Thunder Inn Hotel so they conducted a stakeout.122 A car "arrived and parked"123 at the hotel.124The
informant told the police that the man parked at the hotel was dealing drugs.125 The man alighted
from his car.126 He was carrying a juice box.127 The police immediately apprehended him and
discovered live ammunition and drugs in his person and in the juice box he was holding.128

Like in Aruta, this court did not find anything unusual or suspicious about Chua’s situation when the
police apprehended him and ruled that "[t]here was no valid‘stop-and-frisk’."129


None of the other exceptions to warrantless searches exist to allow the evidence to be
admissible.The facts of this case do not qualify as a search incidental to a lawful arrest.

Rule 126, Section 13 of the Rules of Court allows for searches incidental to a lawful arrest. For there
to be a lawful arrest, there should be either a warrant of arrest or a lawful warrantless arrest as
enumerated in Rule 113, Section 5 of the Rules of Court:

Section 5. Arrest without warrant; when lawful. – A peace officer or a private person may, withouta
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 temporarily confined while his
case is pending, or has escaped while being transferred from one confinement to another.

The apprehension of Cogaed was not effected with a warrant of arrest. None of the instances
enumerated in Rule 113, Section 5 of the Rules of Court were present whenthe arrest was made. At
the time of his apprehension, Cogaed has not committed, was not committing, or was about to
commit a crime. As in People v. Chua, for a warrantless arrest of in flagrante delictoto be affected,
"two elements must concur: (1) the person to bearrested must execute anovert act indicating that he
has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act
is done inthe presence or within the view of the arresting officer."130 Both elements were missing
when Cogaed was arrested.131 There were no overt acts within plain view of the police officers that
suggested that Cogaed was in possession of drugs at that time.

Also, Cogaed was not an escapee prisoner that time; hence, he could not have qualified for the last
allowable warrantless arrest.


There can be no valid waiver of Cogaed’s constitutional rights even if we assume that he did not
object when the police asked him to open his bags. As this court previously stated:

Appellant’s silence should not be lightly taken as consent to such search. The implied acquiescence
to the search, if there was any, could not have been more than mere passive conformity given under
intimidating or coercive circumstances and is thus considered no consent at all within the purview of
the constitutional guarantee.132(Citations omitted) Cogaed’s silence or lack of aggressive objection
was a natural reaction to a coercive environment brought about by the police officer’s excessive
intrusion into his private space. The prosecution and the police carry the burden of showing that the
waiver of a constitutional right is one which is knowing, intelligent, and free from any coercion. In all
cases, such waivers are not to be presumed.

The coercive atmosphere created by the presence of the police officer can be discerned again from
the testimony of SPO1 Taracatac during cross-examination:


Q Now, Mr. witness, you claimed that you only asked them what are the contents of their bags, is it


A Yes, ma’am.

Q And then without hesitation and voluntarily they just opened their bags, is it not?

A Yes, ma’am.

Q So that there was not any order from you for them to open the bags?

A None, ma’am.

Q Now, Mr. witness when you went near them and asked them what were the contents ofthe bag,
you have not seen any signs of hesitation or fright from them, is it not?

A It seems they were frightened, ma’am.

Q But you actually [claimed] that there was not any hesitation from them in opening the bags, is it

A Yes, ma’am but when I went near them it seems that they were surprised.133 (Emphasis supplied)
The state of mind of Cogaed was further clarified with SPO1 Taracatac’s responses to Judge
Florendo’s questions:



Q Did you have eye contact with Cogaed?

A When I [sic] was alighting from the jeepney, Your Honor I observed that he was somewhat
frightened. He was a little apprehensive and when he was already stepping down and he put down
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the bag I asked him, "what’s that," and he answered, "I don’t know because Marvin only asked me to

For a valid waiver by the accused of his or her constitutional right, it is not sufficient that the police
officerintroduce himself or herself, or be known as a police officer. The police officer must also
1âw phi 1

inform the person to be searched that any inaction on his orher part will amount to a waiver of any of
his or her objections that the circumstances do not amount to a reasonable search. The police officer
must communicate this clearly and in a language known to the person who is about to waive his or
her constitutional rights. There must be anassurance given to the police officer that the accused fully
understands his or her rights. The fundamental nature of a person’s constitutional right to privacy
requires no less.

The Constitution provides:

Any evidence obtained in violation of [the right against unreasonable searches and seizures] shall be
inadmissible for any purpose in any proceeding.135

Otherwise known as the exclusionary rule or the fruit of the poisonous tree doctrine, this
constitutional provision originated from Stonehill v. Diokno.136 This rule prohibits the issuance of
general warrants that encourage law enforcers to go on fishing expeditions. Evidence obtained
through unlawful seizures should be excluded as evidence because it is "the only practical means of
enforcing the constitutional injunction against unreasonable searches and seizures."137 It ensures that
the fundamental rights to one’s person, houses, papers, and effects are not lightly infringed upon
and are upheld.

Considering that the prosecution and conviction of Cogaed were founded on the search of his bags,
a pronouncement of the illegality of that search means that there is no evidence left to convict

Drugs and its illegal traffic are a scourgeto our society. In the fight to eradicate this menace, law
enforcers should be equipped with the resources to be able to perform their duties better. However,
we cannot, in any way, compromise our society’s fundamental values enshrined in our Constitution.
Otherwise, we will be seen as slowlydismantling the very foundations of the society that we seek to

WHEREFORE, the decisions of the Regional Trial Court, Branch 28, San Fernando City, La Union
and of the Court of Appeals in CA-G.R. CR-HC No. 03394 are hereby REVERSEDand SET ASIDE.
For lack of evidence to establish his guilt beyond reasonable doubt, accused-appellant VICTOR
COGAED Y ROMANA is hereby ACQUITTED and ordered RELEASED from confinement unless he
is being heldfor some other legal grounds. No costs.



Associate Justice



Associate Justice


Associate Justice Associate Justice


Associate Justice


I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the oofnion of the Court's Division.


Associate Justice
Chairperson, Third Division


Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.


Chief Justice