Constitutional Law II Session 2 Page |1
RULE 112 deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its
Preliminary Investigation
Section 1. Preliminary investigation defined; when required. — Preliminary
investigation is an inquiry or proceeding to determine whether there is sufficient
ground to engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial.
Except as provided in section 7 of this Rule, a preliminary investigation is required to
be conducted before the filing of a complaint or information for an offense where the
penalty prescribed by law is at least four (4) years, two (2) months and one (1) day
without regard to the fine. (1a)
Section 2. Officers authorized to conduct preliminary investigations. —
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include all crimes
cognizable by the proper court in their respective territorial jurisdictions. (2a)
Section 4. Resolution of investigating prosecutor and its review. — If the
investigating prosecutor finds cause to hold the respondent for trial, he shall prepare
the resolution and information. He shall certify under oath in the information that he,
or as shown by the record, an authorized officer, has personally examined the
complainant and his witnesses; that there is reasonable ground to believe that a
crime has been committed and that the accused is probably guilty thereof; that the
accused was informed of the complaint and of the evidence submitted against him;
and that he was given an opportunity to submit controverting evidence. Otherwise,
he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to the
provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his
original jurisdiction. They shall act on the resolution within ten (10) days from their
receipt thereof and shall immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an investigating prosecutor
without the prior written authority or approval of the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but
his recommendation is disapproved by the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy on the ground that a probable cause
exists, the latter may, by himself, file the information against the respondent, or
direct any other assistant prosecutor or state prosecutor to do so without conducting
another preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice may
prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution
of the provincial or city prosecutor or chief state prosecutor, he shall direct the
prosecutor concerned either to file the corresponding information without conducting
another preliminary investigation, or to dismiss or move for dismissal of the complaint
or information with notice to the parties. The same rule shall apply in preliminary
investigations conducted by the officers of the Office of the Ombudsman. (4a)
Section 5. Resolution of investigating judge and its review. — Within ten (10) days
after the preliminary investigation, the investigating judge shall transmit the
resolution of the case to the provincial or city prosecutor, or to the Ombudsman or
his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its
original jurisdiction, for appropriate action. The resolution shall state the findings of
facts and the law supporting his action, together with the record of the case which
shall include: (a) the warrant, if the arrest is by virtue of a warrant; (b) the affidavits,
counter-affidavits and other supporting evidence of the parties; (c) the undertaking
or bail of the accused and the order for his release; (d) the transcripts of the
proceedings during the preliminary investigation; and (e) the order of cancellation of
his bail bond, if the resolution is for the dismissal of the complaint.
Within thirty (30) days from receipt of the records, the provincial or city prosecutor,
or the Ombudsman or his deputy, as the case may be, shall review the resolution of
the investigating judge on the existence of probable cause. Their ruling shall
expressly and clearly state the facts and the law on which it is based and the parties
shall be furnished with copies thereof. They shall order the release of an accused who
is detained if no probable cause is found against him. (5a)
 Constitutional Law II Session 2 Page |2

Section 7. When accused lawfully arrested without warrant. — When a person is
lawfully arrested without a warrant involving an offense which requires a preliminary
investigation, the complaint or information may be filed by a prosecutor without need
of such investigation provided an inquest has been conducted in accordance with
existing rules. In the absence or unavailability of an inquest prosecutor, the complaint
may be filed by the offended party or a peace office directly with the proper court on
the basis of the affidavit of the offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested may ask for a
preliminary investigation in accordance with this Rule, but he must sign a waiver of
the provisions of Article 125 of the Revised Penal Code, as amended, in the presence
of his counsel. Notwithstanding the waiver, he may apply for bail and the
investigation must be terminated within fifteen (15) days from its inception.
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
In cases falling under paragraph (a) and (b) above, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with section 7 of Rule 112. (5a)
RULE 126
Search and Seizure

Section 1. Search warrant defined. — A search warrant is an order in writing issued

After the filing of the complaint or information in court without a preliminary
in the name of the People of the Philippines, signed by a judge and directed to a
investigation, the accused may, within five (5) days from the time he learns of its
peace officer, commanding him to search for personal property described therein and
filing, ask for a preliminary investigation with the same right to adduce evidence in
bring it before the court. (1)
his defense as provided in this Rule. (7a; sec. 2, R.A. No. 7438)

Section 2. Court where application for search warrant shall be filed. — An

RULE 113
application for search warrant shall be filed with the following:

Arrest
a) Any court within whose territorial jurisdiction a crime was committed.

Section 4. Execution of warrant. — The head of the office to whom the warrant of
b) For compelling reasons stated in the application, any court within the
arrest was delivered for execution shall cause the warrant to be executed within ten
judicial region where the crime was committed if the place of the
(10) days from its receipt. Within ten (10) days after the expiration of the period, the
commission of the crime is known, or any court within the judicial region
officer to whom it was assigned for execution shall make a report to the judge who
where the warrant shall be enforced.
issued the warrant. In case of his failure to execute the warrant, he shall state the
reasons therefor. (4a)
However, if the criminal action has already been filed, the application shall only be
made in the court where the criminal action is pending. (n)
Section 5. Arrest without warrant; when lawful. — A peace officer or a private
person may, without a warrant, arrest a person:
Section 3. Personal property to be seized. — A search warrant may be issued for the
search and seizure of personal property:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(a) Subject of the 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 (b) Stolen or embezzled and other proceeds, or fruits of the offense; or
person to be arrested has committed it; and
(c) Used or intended to be used as the means of committing an offense.
(2a)
 Constitutional Law II Session 2 Page |3

Section 4. Requisites for issuing search warrant. — A search warrant shall not issue
except upon probable cause in connection with one specific offense to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place
to be searched and the things to be seized which may be anywhere in the Philippines.
(3a)

Section 5. Examination of complainant; record. — The judge must, before issuing

the warrant, personally examine in the form of searching questions and answers, in
writing and under oath, the complainant and the witnesses he may produce on facts
personally known to them and attach to the record their sworn statements, together
with the affidavits submitted. (4a)

Section 6. Issuance and form of search warrant. — If the judge is satisfied of the
existence of facts upon which the application is based or that there is probable cause
to believe that they exist, he shall issue the warrant, which must be substantially in
the form prescribed by these Rules. (5a)

Section 7. Right to break door or window to effect search. — The officer, if refused
admittance to the place of directed search after giving notice of his purpose and
authority, may break open any outer or inner door or window of a house or any part
of a house or anything therein to execute the warrant or liberate himself or any
person lawfully aiding him when unlawfully detained therein. (6)

Section 8. Search of house, room, or premise to be made in presence of two

witnesses. — No search of a house, room, or any other premise shall be made except
in the presence of the lawful occupant thereof or any member of his family or in the
absence of the latter, two witnesses of sufficient age and discretion residing in the
same locality. (7a)

Section 9. Time of making search. — The warrant must direct that it be served in
the day time, unless the affidavit asserts that the property is on the person or in the
place ordered to be searched, in which case a direction may be inserted that it be
served at any time of the day or night. (8)

Section 10. Validity of search warrant. — A search warrant shall be valid for ten (10)
days from its date. Thereafter it shall be void. (9a)

SUPREME COURT
Manila
EN BANC
G.R. No. 82585 November 14, 1988
MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and
GODOFREDO L. MANZANAS, petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial
Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of
the Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA
and PRESIDENT CORAZON C. AQUINO, respondents.
G.R. No. 82827 November 14, 1988
LUIS D. BELTRAN, petitioner,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the
Regional Trial Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF
MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE
WESTERN POLICE DISTRICT, and THE MEMBERS OF THE PROCESS
SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents.
G.R. No. 83979 November 14, 1988.
LUIS D. BELTRAN, petitioner,
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE
SEDFREY ORDOÑEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III,
THE CITY FISCAL OF MANILA JESUS F. GUERRERO, and JUDGE RAMON P.
MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at
Manila, respondents.
Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.
Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in
G.R. Nos. 82827 and 83979.
RESOLUTION
Constitutional Law II Session 2 Page |4
PER CURIAM:
In these consolidated cases, three principal issues were raised: (1) whether or not
petitioners were denied due process when informations for libel were filed against
them although the finding of the existence of a prima faciecase was still under review
by the Secretary of Justice and, subsequently, by the President; (2) whether or not
the constitutional rights of Beltran were violated when respondent RTC judge issued a
warrant for his arrest without personally examining the complainant and the
witnesses, if any, to determine probable cause; and (3) whether or not the President
of the Philippines, under the Constitution, may initiate criminal proceedings against
the petitioners through the filing of a complaint-affidavit.
Subsequent events have rendered the first issue moot and academic. On March 30,
1988, the Secretary of Justice denied petitioners' motion for reconsideration and
upheld the resolution of the Undersecretary of Justice sustaining the City Fiscal's
finding of a prima facie case against petitioners. A second motion for reconsideration
filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On
appeal, the President, through the Executive Secretary, affirmed the resolution of the
Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by
the Executive Secretary on May 16, 1988. With these developments, petitioners'
contention that they have been denied the administrative remedies available under
the law has lost factual support.
It may also be added that with respect to petitioner Beltran, the allegation of denial
of due process of law in the preliminary investigation is negated by the fact that
instead of submitting his counter- affidavits, he filed a "Motion to Declare Proceedings
Closed," in effect waiving his right to refute the complaint by filing counter-affidavits.
Due process of law does not require that the respondent in a criminal case actually
file his counter-affidavits before the preliminary investigation is deemed completed.
All that is required is that the respondent be given the opportunity to submit counter-
affidavits if he is so minded.
The second issue, raised by petitioner Beltran, calls for an interpretation of the
constitutional provision on the issuance of warrants of arrest. The pertinent provision
reads:
Art. III, Sec. 2. The right of the people to be secure in their
persons, houses, papers and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue

except upon probable cause to be determined personally by the
judge after examination nder oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the deletion of
the grant of authority by the 1973 Constitution to issue warrants to "other responsible
officers as may be authorized by law," has apparently convinced petitioner Beltran
that the Constitution now requires the judge to personally examine the complainant
and his witnesses in his determination of probable cause for the issuance of warrants
of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause. In satisfying
himself of the existence of probable cause for the issuance of a warrant of arrest, the
judge is not required to personally examine the complainant and his witnesses.
Following established doctrine and procedure, he shall: (1) personally evaluate the
report and the supporting documents submitted by the fiscal regarding the existence
of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the
basis thereof he finds no probable cause, he may disregard the fiscal's report and
require the submission of supporting affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with
the preliminary examination and investigation of criminal complaints instead of
concentrating on hearing and deciding cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting
down guidelines for the issuance of warrants of arrest. The procedure therein
provided is reiterated and clarified in this resolution.
It has not been shown that respondent judge has deviated from the prescribed
procedure. Thus, with regard to the issuance of the warrants of arrest, a finding of
grave abuse of discretion amounting to lack or excess of jurisdiction cannot be
sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which necessitate
presidential immunity from suit impose a correlative disability to file suit." He
contends that if criminal proceedings ensue by virtue of the President's filing of her
complaint-affidavit, she may subsequently have to be a witness for the prosecution,
bringing her under the trial court's jurisdiction. This, continues Beltran, would in an
indirect way defeat her privilege of immunity from suit, as by testifying on the
Constitutional Law II Session 2 Page |5
witness stand, she would be exposing herself to possible contempt of court or
perjury.
The rationale for the grant to the President of the privilege of immunity from suit is to
assure the exercise of Presidential duties and functions free from any hindrance or
distraction, considering that being the Chief Executive of the Government is a job
that, aside from requiring all of the office holder's time, also demands undivided
attention.
But this privilege of immunity from suit, pertains to the President by virtue of the
office and may be invoked only by the holder of the office; not by any other person in
the President's behalf. Thus, an accused in a criminal case in which the President is
complainant cannot raise the presidential privilege as a defense to prevent the case
from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President from waiving
the privilege. Thus, if so minded the President may shed the protection afforded by
the privilege and submit to the court's jurisdiction. The choice of whether to exercise
the privilege or to waive it is solely the President's prerogative. It is a decision that
cannot be assumed and imposed by any other person.
As regards the contention of petitioner Beltran that he could not be held liable for
libel because of the privileged character or the publication, the Court reiterates that it
is not a trier of facts and that such a defense is best left to the trial court to
appreciate after receiving the evidence of the parties.
As to petitioner Beltran's claim that to allow the libel case to proceed would produce a
"chilling effect" on press freedom, the Court finds no basis at this stage to rule on the
point.
The petitions fail to establish that public respondents, through their separate acts,
gravely abused their discretion as to amount to lack of jurisdiction. Hence, the writs
of certiorari and prohibition prayed for cannot issue.
WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of
jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the
petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain the status
quo contained in the Resolution of the Court en banc dated April 7, 1988 and
reiterated in the Resolution dated April 26, 1988 is LIFTED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin, Sarmiento, Cortes, Griño-Aquino Medialdea and Regalado, JJ., concur.
 Constitutional Law II Session 2 Page |6

Republic of the Philippines the Office of the Ombudsman and docketed as OMB-0-91-0986. . .
SUPREME COURT .
Manila
2. A preliminary investigation was conducted by the PCGG where
SECOND DIVISION petitioner duly submitted his counter-affidavit. As a consequence’ of
said investigation, an Information was filed with the first Division of
the Sandiganbayan, docketed as Criminal Case No. 14134, charging
petitioner with violation of Section 3(e) of Republic Act No. 3019. . .
.
G.R. No. 110436 June 27, 1994

3. During the proceedings before the OSP, petitioner moved to

ROMAN A. CRUZ, JR., petitioner,
dismiss the complaint. The OSP, however, denied the motion and
vs.
filed with the Third Division of the Sandiganbayan an Information
PEOPLE OF THE PHILIPPINES, THE SANDIGANBAYAN (First Division), and
charging petitioner with Estafa through Falsification of Public
OFFICE OF THE OMBUDSMAN, respondents.
Documents (Articles 171 and 315 of the Revised Penal Code),
docketed as Criminal Case No. 14252. Petitioner was deemed by
Siguion Reyna, Montecillo & Ongsianlo for petitioner. the OSP to have waived his right to submit a counter-affidavit and
supporting evidence. . . .
The Solicitor Generalfor the People of the Philippines.
4. As a result of the filing of two informations with respondent
Sandiganbayan involving the same accused (herein petitioner) and
the same set of facts, Criminal Case No. 14252 was consolidated
with Criminal Case No. 14134 which was pending before the First
REGALADO, J.:
Division of respondent Sandiganbayan. . . .

The present original action for certiorari, prohibition and mandamus seeks the
5. Respondent Sandiganbayan, however, remanded the
reversal of the Orders issued by respondent Sandiganbayan in Criminal Case No.
consolidated cases against petitioner to the Office of the
14252, dated February 17, 1993 1 and May 12, 1993, 2 denying petitioner’s Omnibus
Ombudsman for reinvestigation inasmuch as:
Motion and Motion for Reconsideration, respectively.

a) the Information in Criminal Case No. 14134 was ordered

The facts are summarized in the Memorandum of public respondents as follows:
dismissed in compliance with the ruling of the Supreme Court
in Cojuangco, Jr. vs. PCGG, et al., G.R. Nos. 92319-20, October 2,
1. The Government Service Insurance System (the GSIS, for short) 1990, which declared null and void the preliminary investigations
filed two separate criminal complaints against petitioner Roman A. conducted by the PCGG in all criminal cases involving matters
Cruz, Jr., a former public official who used to be the President and which were the subject matter of civil cases earlier filed; and
General Manager of the GSIS and, also, the President of the Manila
Hotel, for violation of Section 3(e) of Republic Act No. 3019, as
b) the Information in Criminal Case No. 14252 was correctly
amended. The first complaint against petitioner was filed with the
assailed by petitioner as having been filed without the proper
Office of the Special Prosecutor (the OSP, for short) and docketed
preliminary investigation. . . .
as OSP-88-02028 while the second, which involved the same set of
facts, was filed with the Presidential Commission on Good
Government (the PCGG, for short) but which was later endorsed to 6. During the preliminary investigation conducted anew by the
Office of the Ombudsman, petitioner submitted his counter-affidavit
 Constitutional Law II Session 2 Page |7

and supporting documents. After the completion of said 11. On May 12, 1993, respondent Sandiganbayan promulgated a
investigation, Prosecutor Leonardo P. Tamayo of the Office of the Resolution, the dispositive portion of which reads:
Ombudsman prepared a Resolution dated February 11, 1992, which
recommended the withdrawal of the Information in Criminal Case WHEREFORE, the Motion for Reconsideration of accused Roman A.
No. 14252. . . . Cruz, Jr. of this Court’s Resolution dated February 17, 1993 is
DENIED for lack of merit. . . .
7. Respondent Ombudsman, however, despite the above
recommendation of the investigating prosecutor ordered the 12. Hence, petitioner filed the instant petition. 3
prosecution to proceed under the existing Information in Criminal
Case No. 14252 on his observation, viz:
Petitioner contends that respondent Sandiganbayan committed a grave abuse of
discretion:
Let us not do the defending for the accused. The
explanations offered are too strained to be
1. In not dismissing the information considering that the
believed. At best they are matters of defense for
Ombudsman’s approval of the order dismissing the complaint did
the accused to prove at the trial.
not state the factual or legal basis therefor;

The alleged character of the funds involved being

2. In not requiring the production of the record of the preliminary
confidential and requires no auditing is totally
investigation in wanton disregard of petitioner’s right to due
immaterial. It could even explain why this
process;
anomaly was committed. . . .

3. In not dismissing the information considering that, as found by

8. Petitioner thus filed with respondent Sandiganbayan (First
the investigating prosecutor, the money received by petitioner was
Division) an Omnibus Motion to Quash the Information, dated
a cash advance; and
September 17, 1992, wherein he prayed ". . . for the production of
(the) record of the preliminary investigation), and that the
information be quashed outright or the disapproval of the 4. In not requiring the Office of the Ombudsman to conduct further
Ombudsman set aside, or in the alternative, that the Office of the proceedings.
Ombudsman be ordered to conduct further proceedings,
particularly the handwriting analysis prayed for by the petitioner We do not find the instant petition to be impressed with merit as to warrant the
which would establish who committed the alleged falsification. . . . extraordinary writs prayed for.

On February 17, 1993, respondent Sandiganbayan promulgated a The information filed against herein petitioner charging him with estafa through
Resolution dated February 15, 1993, the dispositive portion of falsification of public documents and for which he stands to be tried before
which reads: respondent court alleges:

WHEREFORE, the Omnibus Motion of accused That on or about or during the period from March 26, 1984 to May
Roman A. Cruz, Jr. is DENIED for lack of merit. . . 11, 1984, or sometime prior or subsequent thereto, at the City of
. Manila, Philippines, and within the jurisdiction of this Honorable
Court, Roman Cruz, Jr., then President and General Manager of the
10. A Motion for Reconsideration, dated April 12, 1993, of the Government Service Insurance System (GSIS) and likewise
aforequoted Resolution was filed by petitioner . . . . President of the Manila Hotel, hence a public official having been
duly appointed/elected and qualified as such, taking advantage of
 Constitutional Law II Session 2 Page |8

his position, by means of deceit, committing an offense in relation and should be held for trial," 7 is, like court proceedings, subject to the requirements
to his office, did then and there wilfully, unlawfully and feloniously of both substantive and procedural due process. This is because, a preliminary
falsify Manila Hotel Invoices, Transportation, Charge, Cash, Budget investigation is considered as a judicial proceeding wherein the prosecutor or
for Food and Drinks vouchers in the aggregate amount of investigating officer, by the nature of his functions, acts as a quasi-judicial officer. As
P350,000.00 and then make it appear that the GSIS management we held in Cojuangco, Jr. vs. PCGG, et al.: 8
and staff had a five-day coordination meeting at the Manila Hotel
from March 23 to 30, 1984 at the cost of P350,000.00, for which . . . It must be undertaken in accordance with the procedure
reason the GSIS paid/issued its check with No. 039511 dated May provided in Section 3, Rule 112 of the 1985 Rules of Criminal
11, 1984 in the amount of P350,000.00 which check was deposited Procedure. This procedure is to be observed in order to assure that
to the account of the Manila Hotel, and thereafter cause the Manila a person undergoing such preliminary investigation will be afforded
Hotel to issue its check with No. 007272 dated May 11, 1984 in the due process.
amount of P350,000.00 payable to Roman Cruz, Jr. or himself,
when in truth and in fact, as the accused well knew that there was
As correctly pointed out by petitioner, an indispensable requisite of
no such five-day GSIS management and staff coordination meeting
due process is that the person who presides and decides over a
conducted/held at the Manila Hotel; and further thereafter convert
proceeding, including a preliminary investigation, must possess the
and appropriate to his own personal use and benefit/deposit the
cold neutrality of an impartial judge.
said check to his own personal account with the Far East Bank and
Trust Co. the said check/amount of P350,000.00 to the damage
and prejudice of the GSIS and/or Manila Hotel and/or the Although such a preliminary investigation is not a trial and is not
government in the said amount of P350,000.00. 4 intended to usurp the function of the trial court, it is not a casual
affair. The officer conducting the same investigates or inquires into
the facts concerning the commission of the crime with the end in
I. Petitioner initially submits that respondent Sandiganbayan acted with grave abuse
view of determining whether or not an information may be
of discretion in not dismissing the information considering that the Ombudsman’s
prepared against the accused. Indeed, a preliminary investigation is
disapproval of the order dismissing the complaint did not state the factual or legal
in effect a realistic judicial appraisal of the merits of the case.
basis therefor, in violation of the cardinal rules set forth in Ang Tibay, et al. vs. CIR,
Sufficient proof of the guilt of the accused must be adduced so that
et al. 5 The submission is premised on the theory that said rules apply to a
when the case is tried, the trial court may not be bound as a matter
preliminary investigation which is to be considered quasi-judicial in nature. Petitioner
of law to order an acquittal. A preliminary investigation has then
avers that it is the duty of the Ombudsman to assess the evidence and defenses of
been called a judicial inquiry. It is a judicial proceeding. An act
the respondent in deciding a case, a failure wherein constitutes a violation of one’s
becomes judicial when there is opportunity to be heard and for the
right to due process of law. He further claims that "while the duty to deliberate does
production and weighing of evidence, and a decision is rendered
not impose the obligation to decide right, it does imply a necessity which cannot be
thereon.
disregarded, namely, that of having something to support the decision. The
Ombudsman in this case not only failed to decide right but has nothing at all to
support his decision." 6 The authority of a prosecutor or investigating officer duly
empowered to preside or to conduct a preliminary investigation is
no less than that of a municipal judge or even a regional trial court
Respondents, on the other hand, aver that the Office of the Ombudsman is not
judge. While the investigating officer, strictly speaking is not a
exercising quasi-judicial or quasi-legislative powers because "it does not act as a
"judge," by the nature of his functions he is and must be
court" when it conducts preliminary investigation of cases falling under its jurisdiction.
considered to be a quasi-judicial officer.

It is settled that the conduct of a preliminary investigation, which is defined as "an

In the present case, petitioner asserts that his right to due process was violated in
inquiry or proceeding for the purpose of determining whether there is sufficient
that respondent Ombudsman failed to assess and consider the evidence presented by
ground to engender a well-founded belief that a crime cognizable by the Regional
petitioner in disapproving the recommendation for dismissal of the case by the
Trial Court has been committed and that the respondent is probably guilty thereof,

investigating prosecutor, and his ruling is not supported by the evidence on record.
The argument is specious.
His submission that he was deprived of his right to due process hinges on the
erroneous assumption that the order of the Ombudsman for the filing of the
necessary information is lacking in any factual or legal basis. Such a conclusion,
however, stems from the fact that said order did not entail a discussion of the
rationale for the Ombudsman’s action.
It may seem that the ratio decidendi for the Ombudsman’s order may be wanting but
this is not a case of a total absence of factual and legal bases nor a failure to
appreciate the evidence presented. What is actually involved here is merely a review
of the conclusion arrived at by the investigating prosecutor as a result of his study
and analysis of the complaint, counter-affidavits, and the evidence submitted by the
parties during the preliminary investigation. The Ombudsman here is not conducting
anew another investigation but is merely determining the propriety and correctness of
the recommendation given by the investigating prosecutor, that is, whether probable
cause actually exists or not, on the basis of the findings of fact of the latter. Verily, it
is discretionary upon the Ombudsman if he will rely mainly on the findings of fact of
the investigating prosecutor in making a review of the latter’s report and
recommendation, as the Ombudsman can very well make his own findings of fact.
There is nothing to prevent him from acting one way or the other. As a matter of
fact, Section 4, Rule 112 of the Rules of Court provides that "where the investigating
assistant fiscal recommends the dismissal of the case but his findings are reversed by
the provincial or city fiscal or the chief state prosecutor on the ground that a probable
cause exists, the latter may, by himself, file the corresponding information against the
respondent or direct any other assistant fiscal or state prosecutor to do so, without
conducting another preliminary investigation. 9
With more reason may the Ombudsman not be faulted in arriving at a conclusion
different from that of the investigating prosecutor on the basis of the same set of
facts. It cannot be said that the Ombudsman committed a grave abuse of discretion
simply because he opines contrarily to the prosecutor that, under the facts obtaining
in the case, there is probable cause to believe that herein petitioner is guilty of the
offense charged.
As aptly pointed out by respondent court in its resolution denying petitioner’s motion
for reconsideration, "to the Ombudsman, the narration of facts by Prosecutor
Tamayo, . . . demonstrated adequate cause to prosecute the accused
Cruz." 10 Furthermore, public respondents, in their Memorandum, correctly observed
that "(f)rom the tenor of respondent Ombudsman’s statement, it is clear that
he agreed with the findings of facts of the investigating prosecutor but disagreed with
the latter’s conclusion on the import and significance of said findings. On the basis of
Constitutional Law II Session 2 Page |9
the findings of facts of the investigating prosecutor, which were not disputed by
petitioner, respondent Ombudsman believed that there was sufficient ground to
engender a well-founded belief that a crime had been committed and that petitioner
is probably guilty thereof." 11
Petitioner argues that the indication of disapproval by the Ombudsman which consists
merely of two paragraphs fails to point out the issues and relevant facts and is
consequently whimsical, capricious and arbitrary. Such proposition is fallacious. The
mere fact that the order to file an information against petitioner consists only of two
paragraphs is not sufficient to impute arbitariness or caprice on the part of the
Ombudsman, absent a clear showing that he gravely abused his discretion in
disapproving the recommendation of the investigating prosecutor. Neither is it tainted
with vindictiveness or oppression. He disapproved the recommendation of the special
prosecutor because he sincerely believed that there is sufficient evidence to indict the
accused. This is an exercise of the Ombudsman’s power based upon constitutional
mandate, and the courts should not interfere in such exercise.
The rule is based not only upon the investigatory and prosecutory powers granted by
the Constitution to the Office of the Ombudsman but upon practicality as well.
Otherwise, the functions of the courts will be grievously hampered by innumerable
petitions assailing the dismissal of investigatory proceedings conducted by the Office
of the Ombudsman with regard to complaints filed before it, in much the same way
that the courts would be extremely swamped if they could be compelled to review the
exercise of discretion on the part of the prosecuting attorneys each time they decide
to file an information in court or dismiss a complaint by a private complaint. 12
II. Petitioner next avers that the error of respondent court in not requiring the
production of the record of the preliminary investigation is two-fold. First, it was in
violation of the constitutional right against arbitrary arrests because probable cause
was not "personally determined by the judge," considering that the records of the
preliminary investigation were not elevated to the judge for examination. Second, it
was in violation of petitioner’s right to due process of law since he was deprived of
the opportunity to examine the evidence against him and prepare his defense.
On the first issue, petitioner relies on the ruling in Lim, Sr., et al. vs. Felix, et
al. 13 which held that —
If a judge relies entirely on the certification of the prosecutor as in
this case where all the records of the investigation are in Masbate,
he or she has not personally determined probable cause. The
determination is made by the Provincial Prosecutor. The
constitutional requirement has not been satisfied. The judge
commits a grave abuse of discretion.

The conduct of a preliminary investigation should be distinguished as to whether it is
an investigation for the determination of a sufficient ground for the filing of the
information or one for the determination of a probable cause for the issuance of a
warrant of arrest. The first aspect of preliminary investigation is executive in nature.
It is part of the prosecution’s job. The second kind of preliminary investigation, which
is more properly called preliminary examination, is judicial in nature and is lodged
with the judge.14
For the latter, in the exercise of the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause for the issuance of
a warrant of arrest, the judge is not required to personally examine the complainant
and his witnesses. Following established doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof, issue a warrant
of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard
the fiscal’s report and require the submission of supporting affidavits of witnesses to
aid him in arriving at a conclusion as to the existence of probable cause. 15
Coming now to the case at bar, contrary to petitioner’s thesis, respondent court, in its
resolution promulgated on February 17, 1993 denying petitioner’s motion to quash
the information, found the existence of probable cause after making a deliberate and
exhaustive review of the facts obtaining in the case. Thus:
All of the above logical process, which is supported both by the
finding of fact in the Resolution and by admissions in the Motion of
the accused, lead to the conclusion that probable cause exists
against accused Roman Cruz, Jr., for acts described in the
Information in the instant case.
The narration of facts culled from the record (as affirmed by both
parties) support the narration of facts in the Information. The
superficial analysis of the admissions made above indicate that the
elements of Article 315 of the Revised Penal Code as well as of
Articles 171 and 172 thereof may probably be established.
It is true that the Manila Hotel eventually treated the P350,000.00
as a "cash advance" to him. Accused Cruz, however, does not claim
that there were cash advances made by him as a consequence of
which he received this sum. Nor has accused Roman Cruz said that
he had obtained a loan or cash advance from the Manila Hotel for a
particular purpose for which he was expected to subsequently
render an accounting. All that Manila Hotel’s subsequent description
of this amount as a "cash advance," in fact, says is that when it
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turned out that P350,000.00 could not be properly accounted for, it
had to be treated as an amount which accused Cruz had to pay
back; thus, accountingwise, a cash advance.
For accused to have received such a large amount from a company
of which he was the President required him to sign a receipt which
would specify clearly what he was receiving it for. If he received
the sum as a cash advance for some future expense, the Manila
Hotel documents would clearly so demonstrate. If he received it as
a cash advance (against his salaries or other benefits), it would
appear as a loan in Manila Hotel’s books. Accused Cruz, however,
has said no such thing in any of his pleadings nor apparently has
he so stated during the preliminary investigation.
In other words, accused Cruz as President of the Manila Hotel —
and, therefore, in a position of great fiduciary nature — received
P350,000.00 in 1984 either for a non-existent reason or for a false
reason.
He may have an explanation. As of this time, however, if the
evidence on record is actually presented at trial, enough evidence
would exist to put accused Roman A. Cruz, Jr. at peril of his liberty
and would require him to explain his side of the matter.
A case has, therefore, been demonstrated in the record and in the
averment of accused Cruz himself that the crime charged has
probably been committed and that the accused is probably guilty
thereof.(Emphasis supplied.) 16
Petitioner would have respondent court order the production of the records of the
preliminary investigation in its determination of the existence of probable cause for
the issuance of the warrant of arrest. First and foremost, as hereinabove stated, in a
preliminary examination for the issuance of a warrant of arrest, the court is not
tasked to review in detail the evidence submitted during the preliminary investigation.
It is sufficient that the judge personally evaluates the report and supporting
documents submitted by the prosecution in determining probable cause. 17 This is
precisely what respondent court did. In resolving the issue of probable cause,
respondent court made an in-depth analysis of the findings of fact of Prosecutor
Tamayo, as well as the Omnibus Motion submitted by petitioner. The correctness of
these facts was not even questioned by herein petitioner but, on the contrary was
expressly affirmed in the latter’s Omnibus Motion dated September 17, 1992 wherein
it was stated that "(t)he Order issued by the investigating prosecutor . . . contains a
lucid narration of the relevant facts."

The case of Lim cited by petitioner is not applicable to the present case because, in
the former, a warrant of arrest was issued by the respondent judge therein without
conducting his own personal evaluation of the case even if only on the basis of the
report submitted by the fiscal. Instead, the respondent therein simply declared:
"Considering that both the two competent officers to whom such duty was entrusted
by law have declared the existence of probable cause, each information is complete
in form and substance, and there is no visible defect on its face, this Court finds it
just and proper to rely on the prosecutor’s certification in each information . . . . This
is far from what actually transpired before the Sandiganbayan as reflected by the
records in this case. Hence, the ruling in Lim cannot be properly invoked.
As to the second issue, petitioner relies on the provisions of Section 8, Rule 112 of
the 1985 Rules on Criminal Procedure, to wit:
Sec. 8. Record of preliminary investigation. — The record of the
preliminary investigation whether conducted by a judge or a fiscal,
shall not form part of the record of the case in the Regional Trial
Court. However, the said court, on its own initiative or that of any
party, may order the production of the record or any part thereof
whenever the same shall be necessary in the resolution of the case
or any incident therein, or shall be introduced as evidence by the
party requesting for its production.
Petitioner’s prayer for the production of the record is intended not only for proper
observance of the constitutional requirement that probable cause be determined
personally by the judge, but also to enable him to examine the evidence and prepare
his defenses and for trial.
Public respondents contend that the production of the record of the preliminary
examination is not necessary since petitioner can always resort to any of the modes
of discovery available to an accused under the Rules of Court, specifically citing
Section 11 of Rule 116, which provides:
Sec. 11. Production or inspection of material evidence in possession
of prosecution. — On motion of the accused showing good cause
and with notice to all parties, the court, in order to prevent
surprise, suppression, or alteration, may order the prosecution to
produce and permit the inspection and copying or photographing,
of any written statements given by the complainant and other
witnesses in any investigation of the offense conducted by the
prosecution or any other investigating officers, as well as of any
designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, not otherwise privileged,
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 11
which constitute or contain evidence material to any matter
involved in the case, and which are in the possession or under the
control of the prosecution, the police, or any other law investigating
agencies.
This rule refers to the right of the accused to move for production or inspection of
material evidence in the possession of the prosecution. It authorizes the defense to
inspect, copy or photograph any evidence of the prosecution in its possession after
obtaining the permission of the court. A motion showing good reasons for the
granting of the permission must be filed by the defense for this purpose, with notice
to all parties. 18
It will be noted at the outset that precisely, as suggested by public respondents,
herein petitioner, in asking for the production of the records of the preliminary
investigation in order to enable him to prepare for his defense and for trial, is actually
trying to avail of this mode of discovery. There was good cause shown for the motion
to produce the records, that is, so that they may be introduced as evidence by the
party requesting for their production, which is one of the grounds provided for under
Section 8, Rule 112 of the Rules of Court.
It is true that the granting of permission lies within the discretion of the court.
However, respondent court in this case has failed to sufficiently justify its refusal to
have the records of the preliminary investigation produced before it so that petitioner
may use them for his defense, either in its resolutions denying petitioner’s Omnibus
Motion and Motion for Reconsideration, or in the pleadings and Memorandum filed by
herein respondents before this Court. Consequently, we find no reason to deny
petitioner the right to avail of such mode of discovery. If only for the reason that
petitioner should be given the opportunity to inspect the evidence presented during
the preliminary investigation solely for the purpose of enabling him to prepare for his
defense and for trial, this questioned resolution of respondent Sandiganbayan should
be modified.
III. It is likewise contended that respondent court abused its discretion in not
dismissing the information considering that, as found by the investigating prosecutor,
the money received by petitioner was a cash advance for which he can only be held
civilly liable, but which civil liability has already been extinguished. Citing the case
of Yong Chan Kim vs. People, et al., 19 which held that a cash advance is in the form
of a loan and, therefore, there can be no estafa committed, petitioner argues that he
only incurred civil liability for the cash advance he obtained from the Manila Hotel.
However, he contends that such liability had allegedly been extinguished when his
leave credits and other benefits were withheld, the total of which was more than
sufficient to liquidate the advance made.
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 12

Also, it is argued that petitioner was denied due process when respondent court
failed to remand the case to the Ombudsman for further proceedings for the purpose
of determining the persons who actually forged the questioned documents by
conducting a handwriting analysis. This would have secured him from hasty and
malicious prosecution, and would even have led to the discovery of the true culprit, if
indeed documents had been fabricated.
It must here be stressed that a preliminary investigation is merely inquisitorial, and it
is often the only means of discovering the persons who may be reasonably charged
with a crime, to enable the prosecutor to prepare his complaint or information. It is
not a trial of the case on the merits and has no purpose except that of determining
whether a crime has been committed and whether there is probable cause to believe
that the accused is guilty thereof, and it does not place the persons against whom it
is taken in jeopardy. 20
The established rule is that a preliminary investigation is not the occasion for the full
and exhaustive display of the parties’ evidence; it is for the presentation of such
evidence only as may engender a well-grounded belief that an offense has been
committed and that the accused is probably guilty thereof. 21
Conformably therewith, the arguments raised by herein petitioner that the cash
advance is actually in the form of a loan and therefore no criminal liability attaches,
and that respondent court should have remanded the case for further investigation to
determine the true identity of the forgers, are all matters of defense which are best
presented during the trial before respondent court for its consideration.
Furthermore, the Ombudsman’s findings are essentially factual in nature. Accordingly,
in assailing said findings on the contention that the Ombudsman committed a grave
abuse of discretion in holding that petitioner is liable for estafa through falsification of
public documents, petitioner is clearly raising questions of fact here. 24 His arguments
are anchored on the propriety of or error in the Ombudsman’s appreciation of facts.
Petitioner cannot be unaware that the Supreme Court is not a trier of facts, more so
in the consideration of the extraordinary writ of certiorariwhere neither questions of
fact nor even of law are entertained, but only questions of lack or excess of
jurisdiction or grave abuse of discretion. 25 Insofar as this third issue is concerned,
therefore, we find that no grave abuse of discretion has been committed by
respondents which would warrant the granting of the writ of certiorari.
WHEREFORE, the resolutions appealed from are hereby AFFIRMED, with the
modification that respondent Ombudsman is DIRECTED to produce the pertinent
records of the preliminary investigation before the Sandiganbayan at the proper
juncture of the proceedings therein and on sufficient justification therefor.
SO ORDERED.
Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur.

The main function of the government prosecutor during the preliminary investigation
is merely to determine the existence of probable cause, and to file the corresponding
information if he finds it to be so. And, probable cause has been defined as the
existence of such facts and circumstances as would excite the belief, in a reasonable
mind, acting on the facts within the knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was prosecuted. 22

In the case at bar, the Ombudsman found that there was sufficient ground to believe
that petitioner is guilty of the crime charged on the basis of the factual findings of
Prosecutor Tamayo in the latter’s Order dated February 11, 1992 which were arrived
at after taking into consideration the evidence presented by the parties. A cursory
perusal of the records of this case will show that the findings of fact by the Office of
the Ombudsman are supported by substantial evidence, hence the same should be
considered conclusive. 23

Republic of the Philippines
SUPREME COURT
Baguio City
THIRD DIVISION
G.R. No. 197293 April 21, 2014
ALFREDO C. MENDOZA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES AND JUNO CARS, INC., Respondents.
DECISION
LEONEN, J.:
While the determination of probable cause to charge a person of a crime is the sole
function of the. prosecutor, the trial court may, in the protection of one's fundamental
right to liberty, dismiss the case if, upon a personal assessment of the evidence, it
finds that the evidence does not establish probable cause.
This is a petition for review on certiorari1 assailing the Court of Appeals'
decision2 dated January 14, 2011, which reversed the Regional Trial Court's dismissal
of the complaint against petitioner Alfredo C. Mendoza for qualified theft and estafa.
This case stems from a complaint-affidavit filed by Juno Cars, Inc. through its
representative, Raul C. Evangelista, on January 8, 2008 for qualified theft and estafa
against Alfredo.3
In the complaint-affidavit, Juno Cars alleged that on June 2, 2007, it hired Alfredo as
Trade-In/Used Car Supervisor. On November 19, 2007, its Dealer/Operator, Rolando
Garcia, conducted a partial audit of the used cars and discovered that five (5) cars
had been sold and released by Alfredo without Rolando’s or the finance manager’s
permission.4
The partial audit showed that the buyers of the five cars made payments, but Alfredo
failed to remit the payments totalling ₱886,000.00. It was further alleged that while
there were 20 cars under Alfredo’s custody, only 18 were accounted for. Further
investigation revealed that Alfredo failed to turn over the files of a 2001 Hyundai
Starex and a Honda City 1.5 LXI. Juno Cars alleged that taking into account the
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 13
unremitted amounts and the acquisition cost of the Honda City, Alfredo pilfered a
total amount of ₱1,046,000.00 to its prejudice and damage.5
In his counter-affidavit, Alfredo raised, among others, Juno Cars’ supposed failure to
prove ownership over the five (5) cars or its right to possess them with the purported
unremitted payments. Hence, it could not have suffered damage.6
On March 4, 2008, Provincial Prosecutor Rey F. Delgado issued a Resolution7 finding
probable cause and recommending the filing of an information against Alfredo for
qualified theft and estafa.
Alfredo moved for reconsideration, but the motion was denied.8 He then filed a
petition for review with the Department of Justice on May 16, 2008.9
While Alfredo’s motion for reconsideration was still pending before the Office of the
City Prosecutor of Mandaluyong, two informations for qualified theft10 and
estafa11 were filed before the Regional Trial Court, Branch 212, Mandaluyong City. On
March 31, 2008, Alfredo filed a motion for determination of probable cause12 before
the trial court. On April 28, 2008, he also filed a motion to defer arraignment.
Several clarificatory hearings were scheduled but were not conducted.13 On February
4, 2009, the parties agreed to submit all pending incidents, including the clarificatory
hearing, for resolution.14
On March 3, 2009, the trial court, through Presiding Judge Rizalina Capco-Umali,
issued an order15 dismissing the complaint, stating that:
After conducting an independent assessment of the evidence on record which
includes the assailed Resolution dated 04 March 2008, the court holds that the
evidence adduced does not support a finding of probable cause for the offenses of
qualified theft and estafa. x x x.16
Juno Cars filed a motion for reconsideration, which the trial court denied on July 3,
2009.17
Juno Cars then filed a petition for certiorari with the Court of Appeals, arguing that
the trial court acted without or in excess of its jurisdiction and with grave abuse of
discretion when it dismissed the complaint. It argued that "the determination of
probable cause and the decision whether or not to file a criminal case in court,
rightfully belongs to the public prosecutor."18

On January 14, 2011, the Court of Appeals rendered a decision,19 reversed the trial
court, and reinstated the case. In its decision, the appellate court ruled that the trial
court acted without or in excess of its jurisdiction "in supplanting the public
prosecutor’s findings of probable cause with her own findings of insufficiency of
evidence and lack of probable cause."20
Aggrieved, Alfredo filed a petition for review under Rule 45 before this court. In
essence, he argued that the trial court was correct in finding that there was no
probable cause as shown by the evidence on record. He argued that "judicial
determination of probable cause is broader than [the] executive determination of
probable cause"21 and that "[i]t is not correct to say that the determination of
probable cause is exclusively vested on the prosecutor x x x."22
In its comment,23 Juno Cars argued that Alfredo presented questions, issues, and
arguments that were a mere rehash of those already considered and passed upon by
the appellate court.
The Office of the Solicitor General, arguing for public respondent, stated in its
comment24 that the appellate court correctly sustained the public prosecutor in his
findings of probable cause against Alfredo. Since there was no showing of grave
abuse of discretion on the part of Prosecutor Rey F. Delgado, the trial court should
respect his determination of probable cause.
In his reply,25 Alfredo reiterated that "judicial determination of probable cause[,]
while not a superior faculty[,] covers a broader encompassing perspective in the
disposition of the issue on the existence of probable cause."26 He argued that the
findings of the trial court should be accorded greater weight than the appellate
court’s. It merely reviewed the findings of the trial court.
The primordial issue is whether the trial court may dismiss an information filed by the
prosecutor on the basis of its own independent finding of lack of probable cause.
Time and again, this court has been confronted with the issue of the difference
between the determination of probable cause by the prosecutor on one hand and the
determination of probable cause by the judge on the other. We examine these two
concepts again.
Juno Cars filed a complaint against Alfredo for qualified theft 27 and estafa under
Article 315, fourth paragraph, no. 3(c)28 of the Revised Penal Code. Since qualified
theft is punishable by reclusion perpetua, a preliminary investigation must first be
conducted "to determine whether there is sufficient ground to engender a well-
founded belief that a crime has been committed and the respondent is probably guilty
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 14
thereof, and should be held for trial," in accordance with Rule 112, Section 1 of the
Rules on Criminal Procedure.
At this stage, the conduct of the preliminary investigation and the subsequent
determination of the existence of probable cause lie solely within the discretion of the
public prosecutor.29 If upon evaluation of the evidence, the prosecutor finds sufficient
basis to find probable cause, he or she shall then cause the filing of the information
with the court.
Once the information has been filed, the judge shall then "personally evaluate the
resolution of the prosecutor and its supporting evidence"30 to determine whether
there is probable cause to issue a warrant of arrest. At this stage, a judicial
determination of probable cause exists.
In People v. Castillo and Mejia,31 this court has stated:
There are two kinds of determination of probable cause: executive and judicial. The
executive determination of probable cause is one made during preliminary
investigation. It is a function that properly pertains to the public prosecutor who is
given a broad discretion to determine whether probable cause exists and to charge
those whom he believes to have committed the crime as defined by law and thus
should be held for trial. Otherwise stated, such official has the quasi-judicial authority
to determine whether or not a criminal case must be filed in court. Whether or not
that function has been correctly discharged by the public prosecutor, i.e., whether or
not he has made a correct ascertainment of the existence of probable cause in a
case, is a matter that the trial court itself does not and may not be compelled to pass
upon.
The judicial determination of probable cause, on the other hand, is one made by the
judge to ascertain whether a warrant of arrest should be issued against the accused.
The judge must satisfy himself that based on the evidence submitted, there is
necessity for placing the accused under custody in order not to frustrate the ends of
justice. If the judge finds no probable cause, the judge cannot be forced to issue the
arrest warrant.32
The difference is clear: The executive determination of probable cause concerns itself
with whether there is enough evidence to support an Information being filed. The
judicial determination of probable cause, on the other hand, determines whether a
warrant of arrest should be issued. In People v. Inting:33
x x x Judges and Prosecutors alike should distinguish the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest from the

preliminary investigation proper which ascertains whether the offender should be held
for trial or released. Even if the two inquiries are conducted in the course of one and
the same proceeding, there should be no confusion about the objectives. The
determination of probable cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper—whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged and, therefore, whether or
not he should be subjected to the expense, rigors and embarrassment of trial—is the
function of the Prosecutor.34 (Emphasis supplied)
While it is within the trial court’s discretion to make an independent assessment of
the evidence on hand, it is only for the purpose of determining whether a warrant of
arrest should be issued. The judge does not act as an appellate court of the
prosecutor and has no capacity to review the prosecutor’s determination of probable
cause; rather, the judge makes a determination of probable cause independent of the
prosecutor’s finding.
People v. Court of Appeals and Jonathan Cerbo35 discussed the rationale. In that
case, Jonathan Cerbo allegedly shot Rosalinda Dy in the presence of his father, Billy
Cerbo. An information for murder was filed against Jonathan Cerbo. The daughter of
Rosalinda Dy, as private complainant, executed a complaint-affidavit charging Billy
Cerbo with conspiracy. The prosecutor then filed a motion to amend the information,
which was granted by the court. The information was then amended to include Billy
Cerbo as one of the accused, and a warrant of arrest was issued against him.
Billy Cerbo filed a motion to quash the warrant arguing that it was issued without
probable cause. The trial court granted this motion, recalled the warrant, and
dismissed the case against him. The Court of Appeals affirmed this dismissal. This
court, however, reversed the Court of Appeals and ordered the reinstatement of the
amended information against Billy Cerbo, stating that:
In granting this petition, we are not prejudging the criminal case or the guilt or
innocence of Private Respondent Billy Cerbo. We are simply saying that, as a general
rule, if the information is valid on its face and there is no showing of manifest error,
grave abuse of discretion or prejudice on the part of the public prosecutor, courts
should not dismiss it for ‘want of evidence,’ because evidentiary matters should be
presented and heard during the trial. The functions and duties of both the trial court
and the public prosecutor in "the proper scheme of things" in our criminal justice
system should be clearly understood.
The rights of the people from what could sometimes be an "oppressive" exercise of
government prosecutorial powers do need to be protected when circumstances so
require. But just as we recognize this need, we also acknowledge that the State must
likewise be accorded due process. Thus, when there is no showing of nefarious
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 15
irregularity or manifest error in the performance of a public prosecutor’s duties,
courts ought to refrain from interfering with such lawfully and judicially mandated
duties.
In any case, if there was palpable error or grave abuse of discretion in the public
prosecutor’s finding of probable cause, the accused can appeal such finding to the
justice secretary and move for the deferment or suspension of the proceedings until
such appeal is resolved.36 (Emphasis supplied)
In this case, the resolution dated March 4, 2008 of Prosecutor Rey F. Delgado found
that the facts and evidence were "sufficient to warrant the indictment of [petitioner] x
x x."37 There was nothing in his resolution which showed that he issued it beyond the
discretion granted to him by law and jurisprudence.
While the information filed by Prosecutor Delgado was valid, Judge Capco-Umali still
had the discretion to make her own finding of whether probable cause existed to
order the arrest of the accused and proceed with trial.
Jurisdiction over an accused is acquired when the warrant of arrest is served. Absent
this, the court cannot hold the accused for arraignment and trial.
Article III, Section 2 of the Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be
seized.
The Constitution prohibits the issuance of search warrants or warrants of arrest
where the judge has not personally determined the existence of probable cause. The
phrase "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" allows a determination of probable cause by the judge ex parte.
For this reason, Section 6, paragraph (a) of Rule 112 of the Rules on Criminal
Procedure mandates the judge to "immediately dismiss the case if the evidence on
record fails to establish probable cause." Section 6, paragraph (a) of Rule 112 reads:
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 16

Section 6. When warrant of arrest may issue. — (a) By the Regional Trial Court. —
Within ten (10) days from the filing of the complaint or information, the judge shall
personally evaluate the resolution of the prosecutor and its supporting evidence. He
may immediately dismiss the case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to a warrant
issued by the judge who conducted the preliminary investigation or when the
complaint or information was filed pursuant to section 7 of this Rule. In case of doubt
on the existence of probable cause, the judge may order the prosecutor to present
additional evidence within five (5) days from notice and the issue must be resolved
by the court within thirty (30) days from the filing of the complaint of information.
In People v. Hon. Yadao:38
Section 6, Rule 112 of the Rules of Court gives the trial court three options upon the
filing of the criminal information: (1) dismiss the case if the evidence on record
clearly failed to establish probable cause; (2) issue a warrant of arrest if it finds
probable cause; and (3) order the prosecutor to present additional evidence within
five days from notice in case of doubt as to the existence of probable cause.
But the option to order the prosecutor to present additional evidence is not
mandatory.1âwphi1 The court’s first option under the above is for it to "immediately
dismiss the case if the evidence on record clearly fails to establish probable cause."
That is the situation here: the evidence on record clearly fails to establish probable
cause against the respondents.39 (Emphasis supplied)
It is also settled that "once a complaint or information is filed in court, any disposition
of the case, whether as to its dismissal or the conviction or the acquittal of the
accused, rests in the sound discretion of the court."40
x x x As a matter of fact, this court had even ordered that this case be set for
clarificatory hearing to clear out essential matters pertinent to the offense charged
and even directed the private complainant to bring documents relative to the
same/payment as well as affidavit of witnesses/buyers with the end view of satisfying
itself that indeed probable cause exists to commit the present case which private
complainant failed to do.44
Accordingly, with the present laws and jurisprudence on the matter, Judge Capco-
Umali correctly dismissed the case against Alfredo.
Although jurisprudence and procedural rules allow it, a judge must always proceed
with caution in dismissing cases due to lack of probable cause, considering the
preliminary nature of the evidence before it. It is only when he or she finds that the
evidence on hand absolutely fails to support a finding of probable cause that he or
she can dismiss the case. On the other hand, if a judge finds probable cause, he or
she must not hesitate to proceed with arraignment and trial in order that justice may
be served.
WHEREFORE, the petition is GRANTED. The decision dated January 14, 2011 of the
Court of Appeals in CA-G.R. SP. No. 110774 is REVERSED and SET ASIDE. Criminal
Case Nos. MC08-11604-05 against Alfredo C. Mendoza are DISMISSED.
SO ORDERED.
MARVIC MARIO VICTOR F. LEONEN
Associate Justice

In this case, Judge Capco-Umali made an independent assessment of the evidence on

record and concluded that "the evidence adduced does not support a finding of
probable cause for the offenses of qualified theft and estafa."41Specifically, she found
that Juno Cars "failed to prove by competent evidence"42 that the vehicles alleged to
have been pilfered by Alfredo were lawfully possessed or owned by them, or that
these vehicles were received by Alfredo, to be able to substantiate the charge of
qualified theft. She also found that the complaint "[did] not state with particularity
the exact value of the alleged office files or their valuation purportedly have been
removed, concealed or destroyed by the accused,"43 which she found crucial to the
prosecution of the crime of estafa under Article 315, fourth paragraph, no. 3(c) of the
Revised Penal Code. She also noted that:

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 94054-57 February 19, 1991
VICENTE LIM, SR. and MAYOR SUSANA LIM, petitioners,
vs.
HON. NEMESIO S. FELIX and HON. ANTONIO ALFANE, respondents.
G.R. Nos. 94266-69 February 19, 1991
JOLLY T. FERNANDEZ, FLORENCIO T. FERNANDEZ, JR., NONILON A.
BAGALIHOG, MAYOR NESTOR C. LIM and MAYOR ANTONIO
KHO, petitioners,
vs.
HON. NEMESIO S. FELIX and PROSECUTOR ANTONIO C.
ALFANE, respondents.
Francisco R. Llamas for petitioners in G.R. Nos. 94054-57.
Jolly T. Fernandez, Elenito Bagalihog, Orlando M. Danao and Hechanova, Ballicid &
Associates for petitioners in G.R. Nos. 94266-69.
GUTIERREZ, JR., J.:
May a Judge without ascertaining the facts through his own personal determination
and relying solely on the certification or recommendation of a prosecutor that a
probable cause exists issue a warrant of arrest?
On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport
road of the Masbate Domestic Airport, located at the municipality of Masbate province
of Masbate, Congressman Moises Espinosa, Sr. and his security escorts, namely
Provincial Guards Antonio Cortes, Gaspar Amaro, and Artemio Fuentes were attacked
and killed by a lone assassin. Dante Siblante another security escort of Congressman
Espinosa, Sr. survived the assassination plot, although, he himself suffered a gunshot
wound.
An investigation of the incident then followed.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 17
Thereafter, and for the purpose of preliminary investigation, the designated
investigator, Harry O. Tantiado, TSg, of the PC Criminal Investigation Service at Camp
Bagong Ibalon Legazpi City filed an amended complaint with the Municipal Trial Court
of Masbate accusing, among others, Vicente Lim, Sr., Mayor Susana Lim of Masbate
(petitioners in G.R. Nos. 9405457), Jolly T. Fernandez, Florencio T. Fernandez, Jr.,
Nonilon A. Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho (petitioners in G.R.
Nos. 94266-69) of the crime of multiple murder and frustrated murder in connection
with the airport incident. The case was docketed as Criminal Case No. 9211.
After conducting the preliminary investigation, the court issued an order dated July
31, 1989 stating therein that:
. . . after weighing the affidavits and answers given by the witnesses for the
prosecution during the preliminary examination in searching questions and
answers, concludes that a probable cause has been established for the
issuance of a warrant of arrest of named accused in the amended complaint,
namely, Jimmy Cabarles, Ronnie Fernandez, Nonilon Bagalihog, Jolly
Fernandez, Florencio Fernandez, Jr., Vicente Lim, Sr., Susana Lim, Nestor
Lim, Antonio Kho, Jaime Liwanag, Zaldy Dumalag and Rene
Tualla alias Tidoy. (Rollo, p. 58, G.R. Nos. 94054-57)
xxx xxx xxx
In the same Order, the court ordered the arrest of the petitioners and recommended
the amount of P200,000.00 as bail for the provisional liberty of each of the accused.
Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of
bail which was granted by the court and they were allowed to post bail in the amount
of P150,000.00 each. Except for Jimmy Cabarles, all the rest of the accused posted
bail at P200,000.00 each.
On August 29, 1989, the entire records of the case consisting of two hundred sixty
one (261) pages were transmitted to the Provincial Prosecutor of Masbate.
Respondent Acting Fiscal Antonio C. Alfane was designated to review the case.
On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding
of a prima facie case against the petitioners but differed in the designation of the
crime in that the ruled that ". . . all of the accused should not only be charged with
Multiple Murder With Frustrated Murder" but for a case of MURDER for each of the
killing of the four victims and a physical injuries case for inflicting gunshot wound on
the buttocks of Dante Siblante." (Annex "H", Comment of Fiscal Alfane, p. 186, Rollo,

G.R. Nos. 94054-57) A motion to reconsider the Resolution filed by petitioners
Vicente Lim, Sr. and Mayor Susana Lim was denied.
On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate,
four (4) separate informations of murder against the twelve (12) accused with a
recommendation of no bail.
On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a
verified petition for change of venue. (Case No. A.M. No. 89-11-1270-MTC, formerly,
G.R. Nos. 90587-90)
On December 14, 1989, we issued an en banc Resolution authorizing the change of
venue from the Regional Trial Court of Masbate to the Regional Trial Court of Makati
to avoid a miscarriage of justice, to wit:
Acting on the petition for change of venue of the trial of Criminal Cases Nos.
5811, 5812, 5813, and 5814 from the Regional Trial Court, Masbate,
Masbate to any of the Regional Trial Courts at Quezon City or Makati, the
Court Resolved to (a) GRANT the aforesaid petition for transfer of venue in
order to avoid miscarriage of justice (Article VIII, Section 5(4) of the
Philippine Constitution); (b) DIRECT the Clerk of Court, Regional Trial Court,
Masbate, Masbate to transmit the records of the aforesaid cases to the
Executive Judge, Regional Trial Court, Makati, for raffling among the other
branches of the court; and (c) ORDER the Regional Trial Court of Masbate,
Masbate to desist from further taking cognizance of the said cases until such
time that the petition is finally resolved.
The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix.
Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several
motions and manifestations which in substance prayed for the following:
1. An order be issued requiring the transmittal of the initial records of the
preliminary inquiry or investigation conducted by the Municipal Judge
Barsaga of Masbate for the best enlightenment of this Honorable Court in its
personal determination of the existence of a probable cause or prima
facie evidence as well as its determination of the existence of guilt, pursuant
to the mandatory mandate of the constitution that no warrant shall issue
unless the issuing magistrate shall have himself been personally convinced
of such probable cause.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 18
2. Movants be given ample opportunity to file their motion for preliminary
investigation as a matter of right; and
3. In the event that this court may later be convinced of the existence of a
probable cause, to be allowed to file a motion for reduction of bail or for
admission of bail. (p. 17, Rollo, G.R. Nos. 94054-57)
In another manifestation, the Lims reiterated that the court conduct a hearing to
determine if there really exists aprima facie case against them in the light of
documents which are recantations of some witnesses in the preliminary investigation.
The motions and manifestations were opposed by the prosecution.
On July 5, 1990, the respondent court issued an order denying for lack of merit the
motions and manifestations and issued warrants of arrest against the accused
including the petitioners herein. The respondent Judge said:
In the instant cases, the preliminary investigation was conducted by the
Municipal Trial Court of Masbate, Masbate which found the existence of
probable cause that the offense of multiple murder was committed and that
all the accused are probably guilty thereof, which was affirmed upon review
by the Provincial Prosecutor who properly filed with the Regional Trial Court
four separate informations for murder. Considering that both the two
competent officers to whom such duty was entrusted by law have declared
the existence of probable cause, each information is complete in form and
substance, and there is no visible defect on its face, this Court finds it just
and proper to rely on the prosecutor's certification in each information which
reads: (pp. 19-20, Rollo, G.R Nos. 94054-57; Emphasis supplied)
xxx xxx xxx
The petitioners then filed these consolidated petitions questioning the July 5, 1990
Order.
In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued ". . . a
TEMPORARY RESTRAINING ORDER, effective immediately and continuing until
further orders from this Court, ordering the respondent judge or his duly authorized
representatives or agents to CEASE and DESIST from enforcing or implementing the
warrant of arrest without bail issued against the petitioners in his Order dated July 5,
1990 in Criminal Cases Nos. 5811-14.
In another Resolution dated July 31, 1990 in G.R. Nos. 94266-69, we resolved:

xxx xxx xxx
. . . To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION,
ordering and directing the respondent judge to recall/set aside and/or annul
the legal effects of the warrants of arrest without bail issued against and
served upon herein petitioners Jolly T. Fernandez, Florencio T. Fernandez,
Jr. and Nonilon Bagalihog and release them from confinement at PC-CIS
Detention Center, Camp Crame, Quezon City; and (2) TEMPORARY
RESTRAINING ORDER, effective immediately and continuing until further
orders from this Court, ordering the respondent judge or his duly authorized
representatives or agents, to CEASE AND DESIST from enforcing or
implementing the warrants of arrest without bail issued against petitioners
Mayors Nestor C. Lim and Antonio T. Kho.
The primary issue in these consolidated petitions centers on whether or not a judge
may issue a warrant of arrest without bail by simply relying on the prosecution's
certification and recommendation that a probable cause exists.
This is not a novel question. In the case of Placer v. Villanueva (126 SCRA 463
[1983]), we ruled that a judge may rely upon the fiscal's certification of the existence
of probable cause and, on the basis thereof, issue a warrant of arrest. However, the
certification does not bind the judge to come out with the warrant of arrest. This
decision interpreted the "search and seizure" provision of the 1973 Constitution which
provides:
. . . no search warrant or warrant of arrest shall issue except upon probable
cause to be determined by the judge, or such other responsible officer as
may be authorized by law, after examination under oath or affirmation of
the complainant and the witnesses he may produce . . .
We ruled:
. . . The issuance of a warrant is not a mere ministerial function; it calls for
the exercise of judicial discretion on the part of the issuing magistrate. This
is clear from the following provisions of Section 6, Rule 112 of the Rules of
Court.
Warrant of arrest, when issued. — If the judge be satisfied from the
preliminary examination 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.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 19
Under this section, the judge must satisfy himself of the existence of
probable cause before issuing a warrant or order of arrest. If on the face of
the information the judge finds no probable cause, he may disregard the
fiscal's certification and require the submission of the affidavits of witnesses
to aid him in arriving at a conclusion as to the existence of a probable cause.
This has been the rule since U.S. v. Ocampo (18 Phil. 1) and Amarga v.
Abbas (98 Phil. 739). And this evidently is the reason for the issuance by
respondent of the questioned orders of April 13, 15, 16, 19, 1982 and July
13, 1982. Without the affidavits of the prosecution witnesses and other
evidence which, as a matter of long-standing practice had been attached to
the information filed in his sala, respondent found the informations
inadequate bases for the determination of probable cause. For as the
ensuing events would show, after petitioners had submitted the required
affidavits, respondent wasted no time in issuing the warrants of arrest in the
case where he was satisfied that probable cause existed.
The case of Soliven v. Makasiar (167 SCRA 393 [19881) was decided after the
effectivity of the 1987 Constitution. We stated:
The second issue, raised by petitioner Beltran, calls for an interpretation of
the constitutional provision on the issuance of warrants of arrest. The
pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to
be seized.
The addition of the word "personally" after the word "determined" and the
deletion of the grant of authority by the 1973 Constitution to issue warrants
to "other respondent officers as may be authorized by law", has apparently
convinced petitioner Beltran that the Constitution now requires the judge to
personally examine the complainant and his witnesses in his determination
of probable cause for the issuance of arrest. This is not an accurate
interpretation.
What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence of
probable cause. In satisfying himself of the existence of probable cause for

the issuance of a warrant of arrest, the judge is not required to personally
examine the complainant and his witnesses. Following established doctrine
and procedures, he shall: (1) personally evaluate the report and the
supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if
on the basis thereof he finds no probable cause, he may disregard the
fiscal's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of
probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly
laden with the preliminary examinations and investigation of criminal
complaints instead of concentrating on hearing and deciding cases filed
before their courts.
The decision in People v. Honorable Enrique B. Inting, et al. (G.R. No. 88919, July 25,
1990), reiterated the above interpretation of "personal" determination by the Judge:
We emphasize important features of the constitutional mandate that ". . . no
search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge . . ." (Article III, Section 2,
Constitution)
First, the determination of probable cause is a function of the Judge. It is
not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to
ascertain. Only the Judge and the Judge alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the
Judge. It merely assists him to make the determination of probable cause.
The Judge does not have to follow what the Prosecutor presents to him. By
itself, the Prosecutor's certification of probable cause is ineffectual. It is the
report, the affidavits, the transcripts of stenographic notes (if any), and all
other supporting documents behind the Prosecutor's certification which are
material in assisting the Judge to make his determination.
And third, Judges and Prosecutors alike should distinguish the preliminary
inquiry which determines probable cause for the issuance of a warrant of
arrest from the preliminary investigation proper which ascertains whether
the offender should be held for trial or released. Even if the two inquiries are
conducted in the course of one and the same proceeding, there should be
no confusion about the objectives. The determination of probable cause for
the warrant of arrest is made by the Judge. The preliminary investigation
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 20
proper –– whether or not there is reasonable ground to believe that the
accused is guilty of the offense charged and, therefore, whether or not he
should be subjected to the expense, rigors and embarrassment of trial –– is
the function of the Prosecutor.
The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39
[19891):
Judges of Regional Trial Courts (formerly Courts of First Instance)
no longer have authority to conduct preliminary investigations. That
authority, at one time reposed in them under Sections 13, 14 and
16, Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108,
Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in
Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was
removed from them by the 1985 Rules on Criminal Procedure,
effective on January 1, 1985, (Promulgated on November 11, 1984)
which deleted all provisions granting that power to said Judges. We
had occasion to point tills out in Salta v. Court of Appeals, 143
SCRA 228, and to stress as well certain other basic propositions,
namely: (1) that the conduct of a preliminary investigation is "not a
judicial function . . . (but) part of the prosecution's job, a function
of the executive," (2) that whenever "there are enough his or
prosecutors to conduct preliminary investigations, courts are
counseled to leave this job which is essentially executive to them,"
and the fact "that a certain power is granted does not necessary
mean that it should be indiscriminately exercised.
The 1988 Amendments to the 1985 Rules on Criminal Procedure,
declared effective on October 1, 1988, (The 1988 Amendments
were published in the issue of Bulletin Today of October 29, 1988)
did not restore that authority to Judges of Regional Trial Courts;
said amendments did not in fact deal at all with the officers or
courts having authority to conduct preliminary investigations.
This is not to say, however, that somewhere along the line RTC
Judges also lost the power to make a preliminary examination for
the purpose of determining whether probable cause exists to justify
the issuance of a warrant of arrest (or search warrant). Such a
power –– indeed, it is as much a duty as it is a power –– has been
and remains vested in every judge by the provisions in the Bill of
Rights in the 1935, the 1973 and the present [1987] Constitutions
securing the people against unreasonable searches and seizures,
thereby placing it beyond the competence of mere Court Rule or

Statute to revoke. The distinction must, therefore, be made clear
while an RTC Judge may no longer conduct preliminary
investigations to ascertain whether there is sufficient ground for the
filing of a criminal complaint or information, he retains the
authority, when such a pleading is filed with his court, to determine
whether there is probable cause justifying the issuance of a warrant
of arrest. It might be added that this distinction accords, rather
than conflicts, with the rationale of Salta because both law and
rule, in restricting to judges the authority to order arrest, recognize
the function to be judicial in nature.
We reiterate that preliminary investigation should be distinguished as to
whether it is an investigation for the determination of a sufficient ground for
the filing of the information or it is an investigation for the determination of
a probable cause for the issuance of a warrant of arrest. The first kind of
preliminary investigation is executive in nature. It is part of the prosecution's
job. The second kind of preliminary investigation which is more properly
called preliminary examination is judicial in nature and is lodged with the
Judge. . . .
Finally in the recent case of People v. Delgado, et al. (G.R. Nos. 93419-32, September
18, 1990) there is a statement that the judge may rely on the resolution of COMELEC
to file the information by the same token that it may rely on the certification made by
the prosecutor who conducted the preliminary investigation in the issuance of the
warrant of arrest. We, however, also reiterated that ". . . the court may require that
the record of the preliminary investigation be submitted to it to satisfy itself that
there is probable cause which will warrant the issuance of a warrant of arrest."
(Section 2, Article III, Constitution). Reliance on the COMELEC resolution or the
Prosecutor's certification presupposes that the records of either the COMELEC or the
Prosecutor have been submitted to the Judge and he relies on the certification or
resolution because the records of the investigation sustain the recommendation. The
warrant issues not on the strength of the certification standing alone but because of
the records which sustain it.
It is obvious from the present petition that notwithstanding the above decisions,
some Judges are still bound by the inertia of decisions and practice under the 1935
and 1973 Constitutions and are sadly confused or hesitant. Prosecutors are also
interested in a clear cut ruling. We will, therefore, restate the rule in greater detail
and hopefully clearer terms.
There is no problem with search warrants which are relatively fewer and far between
and where there is no duplication of work between the Judge and the Prosecutor.
The problem lies with warrants of arrest especially in metropolitan or highly urban
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 21
areas. If a Judge has to personally question each complainant and witness or go over
the records of the Prosecutor's investigation page by page and word for word before
he acts on each of a big pile of applications for arrest warrants on his desk, he or she
may have no more time for his or her more important judicial functions.
At the same time, the Judge cannot ignore the clear words of the 1987 Constitution
which requires ". . . probable cause to be personally determined by the judge . . .",
not by any other officer or person.
If a Judge relies solely on the certification of the Prosecutor as in this case where all
the records of the investigation are in Masbate, he or she has
not personally determined probable cause. The determination is made by the
Provincial Prosecutor. The constitutional requirement has not been satisfied. The
Judge commits a grave abuse of discretion.
The records of the preliminary investigation conducted by the Municipal Court of
Masbate and reviewed by the respondent Fiscal were still in Masbate when the
respondent Fiscal issued the warrants of arrest against the petitioners. There was no
basis for the respondent Judge to make his own personal determination regarding the
existence of a probable cause for the issuance of a warrant of arrest as mandated by
the Constitution. He could not possibly have known what transpired in Masbate as he
had nothing but a certification. Significantly, the respondent Judge denied the
petitioners' motion for the transmittal of the records on the ground that the mere
certification and recommendation of the respondent Fiscal that a probable cause
exists is sufficient for him to issue a warrant of arrest.
We reiterate the ruling in Soliven v. Makasiar that the Judge does not have to
personally examine the complainant and his witnesses. The Prosecutor can perform
the same functions as a commissioner for the taking of the evidence. However, there
should be a report and necessary documents supporting the Fiscal's bare certification.
All of these should be before the Judge.
The extent of the Judge's personal examination of the report and its annexes
depends on the circumstances of each case.1âwphi1 We cannot determine
beforehand how cursory or exhaustive the Judge's examination should be. The Judge
has to exercise sound discretion for, after all, the personal determination is vested in
the Judge by the Constitution. It can be as brief or as detailed as the circumstances
of each case require. To be sure, the Judge must go beyond the Prosecutor's
certification and investigation report whenever necessary. He should call for the
complainant and witnesses themselves to answer the court's probing questions when
the circumstances of the case so require.
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 22

It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the
respondent Judge documents of recantation of witnesses whose testimonies were
used to establish a prima facie case against them. Although, the general rule is that
recantations are not given much weight in the determination of a case and in the
granting of a new trial (Tan Ang Bun v. Court of Appeals, et al. G.R. No. L-47747,
February 15, 1990, People v. Lao Wan Sing, 46 SCRA 298 [1972]) the respondent
Judge before issuing his own warrants of arrest should, at the very least, have gone
over the records of the preliminary examination conducted earlier in the light of the
evidence now presented by the concerned witnesses in view of the "political
undertones" prevailing in the cases. Even the Solicitor General recognized the
significance of the recantations of some witnesses when he recommends a
reinvestigation of the cases, to wit:
WHEREFORE, the instant petitions are hereby GRANTED. The questioned Order of
respondent Judge Nemesio S. Felix of Branch 56, Regional Trial Court of Makati dated
July 5, 1990 is declared NULL and VOID and SET ASIDE. The Temporary Restraining
Orders and Preliminary Mandatory Injunction issued in the instant Petitions are made
PERMANENT.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin, Griño-Aquino, Medialdea and Regalado, JJ., concur.
Sarmiento, J., took no part.

It must be pointed out, however, that among the documents attached to

this Petition are affidavits of recantation subsequently executed by Jimmy
Cabarles and Danilo Lozano and an affidavit executed by one, Camilo
Sanano, father of the complainant's witnesses, Renato and Romeo Sanano.
It was precisely on the strength of these earlier written statements of these
witnesses that the Municipal Trial Court of Masbate found the existence of
a prima facie case against petitioners and accordingly recommended the
filing of a Criminal Information. Evidently, the same written statements were
also the very basis of the "Fiscal's Certification", since the attached affidavits
of recantation were not yet then available. Since the credibility of the
prosecution witnesses is now assailed and put in issue and, since the
petitioners have not yet been arraigned, it would be to the broader interest
of justice and fair play if a reinvestigation of this case be had to secure the
petitioners against hasty prosecution and to protect them from an open and
public accusation of crime, from the trouble, expense and anxiety of a public
trial, and also to protect the State from useless and expensive trials (Salonga
v. Paño G.R. No. 59524, February 18,1985). (Rollo of G.R. Nos. 94054-56,
pp. 200-201)

We reiterate that in making the required personal determination, a Judge is not

precluded from relying on the evidence earlier gathered by responsible officers. The
extent of the reliance depends on the circumstances of each case and is subject to
the Judge's sound discretion. However, the Judge abuses that discretion when having
no evidence before him, he issues a warrant of arrest.

Indubitably, the respondent Judge committed a grave error when he relied solely on
the Prosecutor's certification and issued the questioned Order dated July 5, 1990
without having before him any other basis for his personal determination of the
existence of a probable cause.

EN BANC
[G.R. No. L-32409. February 27, 1971.]
BACHE & CO. (PHIL.), INC. and FREDERICK E. SEGGERMAN, Petitioners, v.
HON. JUDGE VIVENCIO M. RUIZ, MISAEL P. VERA, in his capacity as
Commissioner of Internal Revenue, ARTURO LOGRONIO, RODOLFO DE
LEON, GAVINO VELASQUEZ, MIMIR DELLOSA, NICANOR ALCORDO, JOHN
DOE, JOHN DOE, JOHN DOE, and JOHN DOE, Respondents.
San Juan, Africa, Gonzales & San Agustin, for Petitioners.
Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V .
Bautista, Solicitor Pedro A. Ramirez and Special Attorney Jaime M. Maza
for Respondents.
DECISION
VILLAMOR, J.:
This is an original action of certiorari, prohibition and mandamus, with prayer for a
writ of preliminary mandatory and prohibitory injunction. In their petition Bache & Co.
(Phil.), Inc., a corporation duly organized and existing under the laws of the
Philippines, and its President, Frederick E. Seggerman, pray this Court to declare null
and void Search Warrant No. 2-M-70 issued by respondent Judge on February 25,
1970; to order respondents to desist from enforcing the same and/or keeping the
documents, papers and effects seized by virtue thereof, as well as from enforcing the
tax assessments on petitioner corporation alleged by petitioners to have been made
on the basis of the said documents, papers and effects, and to order the return of the
latter to petitioners. We gave due course to the petition but did not issue the writ of
preliminary injunction prayed for therein.
The pertinent facts of this case, as gathered from record, are as follows:chanrob1es
virtual 1aw library
On February 24, 1970, respondent Misael P. Vera, Commissioner of Internal Revenue,
wrote a letter addressed to respondent Judge Vivencio M. Ruiz requesting the
issuance of a search warrant against petitioners for violation of Section 46(a) of the
National Internal Revenue Code, in relation to all other pertinent provisions thereof,
particularly Sections 53, 72, 73, 208 and 209, and authorizing Revenue Examiner
Rodolfo de Leon, one of herein respondents, to make and file the application for
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 23
search warrant which was attached to the letter.
In the afternoon of the following day, February 25, 1970, respondent De Leon and his
witness, respondent Arturo Logronio, went to the Court of First Instance of Rizal.
They brought with them the following papers: respondent Vera’s aforesaid letter-
request; an application for search warrant already filled up but still unsigned by
respondent De Leon; an affidavit of respondent Logronio subscribed before
respondent De Leon; a deposition in printed form of respondent Logronio already
accomplished and signed by him but not yet subscribed; and a search warrant
already accomplished but still unsigned by respondent Judge.
At that time respondent Judge was hearing a certain case; so, by means of a note, he
instructed his Deputy Clerk of Court to take the depositions of respondents De Leon
and Logronio. After the session had adjourned, respondent Judge was informed that
the depositions had already been taken. The stenographer, upon request of
respondent Judge, read to him her stenographic notes; and thereafter, respondent
Judge asked respondent Logronio to take the oath and warned him that if his
deposition was found to be false and without legal basis, he could be charged for
perjury. Respondent Judge signed respondent de Leon’s application for search
warrant and respondent Logronio’s deposition, Search Warrant No. 2-M-70 was then
sign by respondent Judge and accordingly issued.
Three days later, or on February 28, 1970, which was a Saturday, the BIR agents
served the search warrant petitioners at the offices of petitioner corporation on Ayala
Avenue, Makati, Rizal. Petitioners’ lawyers protested the search on the ground that no
formal complaint or transcript of testimony was attached to the warrant. The agents
nevertheless proceeded with their search which yielded six boxes of documents.
On March 3, 1970, petitioners filed a petition with the Court of First Instance of Rizal
praying that the search warrant be quashed, dissolved or recalled, that preliminary
prohibitory and mandatory writs of injunction be issued, that the search warrant be
declared null and void, and that the respondents be ordered to pay petitioners, jointly
and severally, damages and attorney’s fees. On March 18, 1970, the respondents,
thru the Solicitor General, filed an answer to the petition. After hearing, the court,
presided over by respondent Judge, issued on July 29, 1970, an order dismissing the
petition for dissolution of the search warrant. In the meantime, or on April 16, 1970,
the Bureau of Internal Revenue made tax assessments on petitioner corporation in
the total sum of P2,594,729.97, partly, if not entirely, based on the documents thus
seized. Petitioners came to this Court.
The petition should be granted for the following reasons:chanrob1es virtual 1aw
library
1. Respondent Judge failed to personally examine the complainant and his witness.

The pertinent provisions of the Constitution of the Philippines and of the Revised
Rules of Court are:jgc:chanrobles.com.ph
"(3) The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated, and no warrants
shall issue but upon probable cause, to be determined by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be
seized." (Art. III, Sec. 1, Constitution.)
"SEC. 3. Requisites for issuing search warrant. — A search warrant shall not issue but
upon probable cause in connection with one specific offense to be determined by the
judge or justice of the peace after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized.
"No search warrant shall issue for more than one specific offense.
"SEC. 4. Examination of the applicant. — The judge or justice of the peace must,
before issuing the warrant, personally examine on oath or affirmation the
complainant and any witnesses he may produce and take their depositions in writing,
and attach them to the record, in addition to any affidavits presented to him." (Rule
126, Revised Rules of Court.)
The examination of the complainant and the witnesses he may produce, required by
Art. III, Sec. 1, par. 3, of the Constitution, and by Secs. 3 and 4, Rule 126 of the
Revised Rules of Court, should be conducted by the judge himself and not by others.
The phrase "which shall be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce," appearing in the
said constitutional provision, was introduced by Delegate Francisco as an amendment
to the draft submitted by the Sub-Committee of Seven. The following discussion in
the Constitutional Convention (Laurel, Proceedings of the Philippine Constitutional
Convention, Vol. III, pp. 755-757) is enlightening:jgc:chanrobles.com.ph
"SR. ORENSE. Vamos a dejar compañero los piropos y vamos al grano.
En los casos de una necesidad de actuar inmediatamente para que no se frusten los
fines de la justicia mediante el registro inmediato y la incautacion del cuerpo del
delito, no cree Su Señoria que causaria cierta demora el procedimiento apuntado en
su enmienda en tal forma que podria frustrar los fines de la justicia o si Su Señoria
encuentra un remedio para esto casos con el fin de compaginar los fines de la justicia
con los derechos del individuo en su persona, bienes etcetera, etcetera.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 24
"SR. FRANCISCO. No puedo ver en la practica el caso hipottico que Su Señoria
pregunta por la siguiente razon: el que solicita un mandamiento de registro tiene que
hacerlo por escrito y ese escrito no aparecer en la Mesa del Juez sin que alguien vaya
el juez a presentar ese escrito o peticion de sucuestro. Esa persona que presenta el
registro puede ser el mismo denunciante o alguna persona que solicita dicho
mandamiento de registro. Ahora toda la enmienda en esos casos consiste en que
haya peticion de registro y el juez no se atendra solamente a sea peticion sino que el
juez examiner a ese denunciante y si tiene testigos tambin examiner a los testigos.
"SR. ORENSE. No cree Su Señoria que el tomar le declaracion de ese denunciante por
escrito siempre requeriria algun tiempo?.
"SR. FRANCISCO. Seria cuestio de un par de horas, pero por otro lado minimizamos
en todo lo posible las vejaciones injustas con la expedicion arbitraria de los
mandamientos de registro. Creo que entre dos males debemos escoger. el menor.
x x x
"MR. LAUREL. . . . The reason why we are in favor of this amendment is because we
are incorporating in our constitution something of a fundamental character. Now,
before a judge could issue a search warrant, he must be under the obligation to
examine personally under oath the complainant and if he has any witness, the
witnesses that he may produce . . ."cralaw virtua1aw library
The implementing rule in the Revised Rules of Court, Sec. 4, Rule 126, is more
emphatic and candid, for it requires the judge, before issuing a search warrant, to
"personally examine on oath or affirmation the complainant and any witnesses he
may produce . . ."cralaw virtua1aw library
Personal examination by the judge of the complainant and his witnesses is necessary
to enable him to determine the existence or non-existence of a probable cause,
pursuant to Art. III, Sec. 1, par. 3, of the Constitution, and Sec. 3, Rule 126 of the
Revised Rules of Court, both of which prohibit the issuance of warrants except "upon
probable cause." The determination of whether or not a probable cause exists calls
for the exercise of judgment after a judicial appraisal of facts and should not be
allowed to be delegated in the absence of any rule to the contrary.
In the case at bar, no personal examination at all was conducted by respondent
Judge of the complainant (respondent De Leon) and his witness (respondent
Logronio). While it is true that the complainant’s application for search warrant and
the witness’ printed-form deposition were subscribed and sworn to before respondent
Judge, the latter did not ask either of the two any question the answer to which could
possibly be the basis for determining whether or not there was probable cause

against herein petitioners. Indeed, the participants seem to have attached so little
significance to the matter that notes of the proceedings before respondent Judge
were not even taken. At this juncture it may be well to recall the salient facts. The
transcript of stenographic notes (pp. 61-76, April 1, 1970, Annex J-2 of the Petition)
taken at the hearing of this case in the court below shows that per instruction of
respondent Judge, Mr. Eleodoro V. Gonzales, Special Deputy Clerk of Court, took the
depositions of the complainant and his witness, and that stenographic notes thereof
were taken by Mrs. Gaspar. At that time respondent Judge was at the sala hearing a
case. After respondent Judge was through with the hearing, Deputy Clerk Gonzales,
stenographer Gaspar, complainant De Leon and witness Logronio went to respondent
Judge’s chamber and informed the Judge that they had finished the depositions.
Respondent Judge then requested the stenographer to read to him her stenographic
notes. Special Deputy Clerk Gonzales testified as follows:jgc:chanrobles.com.ph
"A And after finishing reading the stenographic notes, the Honorable Judge requested
or instructed them, requested Mr. Logronio to raise his hand and warned him if his
deposition will be found to be false and without legal basis, he can be charged
criminally for perjury. The Honorable Court told Mr. Logronio whether he affirms the
facts contained in his deposition and the affidavit executed before Mr. Rodolfo de
Leon.
"Q And thereafter?
"A And thereafter, he signed the deposition of Mr. Logronio.
"Q Who is this he?
"A The Honorable Judge.
"Q The deposition or the affidavit?
"A The affidavit, Your Honor."cralaw virtua1aw library
Thereafter, respondent Judge signed the search warrant.
The participation of respondent Judge in the proceedings which led to the issuance of
Search Warrant No. 2-M-70 was thus limited to listening to the stenographer’s
readings of her notes, to a few words of warning against the commission of perjury,
and to administering the oath to the complainant and his witness. This cannot be
consider a personal examination. If there was an examination at all of the
complainant and his witness, it was the one conducted by the Deputy Clerk of Court.
But, as stated, the Constitution and the rules require a personal examination by the
judge. It was precisely on account of the intention of the delegates to the
Constitutional Convention to make it a duty of the issuing judge to personally
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 25
examine the complainant and his witnesses that the question of how much time
would be consumed by the judge in examining them came up before the Convention,
as can be seen from the record of the proceedings quoted above. The reading of the
stenographic notes to respondent Judge did not constitute sufficient compliance with
the constitutional mandate and the rule; for by that manner respondent Judge did not
have the opportunity to observe the demeanor of the complainant and his witness,
and to propound initial and follow-up questions which the judicial mind, on account of
its training, was in the best position to conceive. These were important in arriving at
a sound inference on the all-important question of whether or not there was probable
cause.
2. The search warrant was issued for more than one specific offense.
Search Warrant No. 2-M-70 was issued for" [v]iolation of Sec. 46(a) of the National
Internal Revenue Code in relation to all other pertinent provisions thereof particularly
Secs. 53, 72, 73, 208 and 209." The question is: Was the said search warrant issued
"in connection with one specific offense," as required by Sec. 3, Rule 126?
To arrive at the correct answer it is essential to examine closely the provisions of the
Tax Code referred to above. Thus we find the following:chanrob1es virtual 1aw
library
Sec. 46(a) requires the filing of income tax returns by corporations.
Sec. 53 requires the withholding of income taxes at source.
Sec. 72 imposes surcharges for failure to render income tax returns and for rendering
false and fraudulent returns.
Sec. 73 provides the penalty for failure to pay the income tax, to make a return or to
supply the information required under the Tax Code.
Sec. 208 penalizes" [a]ny person who distills, rectifies, repacks, compounds, or
manufactures any article subject to a specific tax, without having paid the privilege
tax therefore, or who aids or abets in the conduct of illicit distilling, rectifying,
compounding, or illicit manufacture of any article subject to specific tax . . .," and
provides that in the case of a corporation, partnership, or association, the official
and/or employee who caused the violation shall be responsible.
Sec. 209 penalizes the failure to make a return of receipts, sales, business, or gross
value of output removed, or to pay the tax due thereon.
The search warrant in question was issued for at least four distinct offenses under
the Tax Code. The first is the violation of Sec. 46(a), Sec. 72 and Sec. 73 (the filing of

income tax returns), which are interrelated. The second is the violation of Sec. 53
(withholding of income taxes at source). The third is the violation of Sec. 208
(unlawful pursuit of business or occupation); and the fourth is the violation of Sec.
209 (failure to make a return of receipts, sales, business or gross value of output
actually removed or to pay the tax due thereon). Even in their classification the six
above-mentioned provisions are embraced in two different titles: Secs. 46(a), 53, 72
and 73 are under Title II (Income Tax); while Secs. 208 and 209 are under Title V
(Privilege Tax on Business and Occupation).
Respondents argue that Stonehill, Et. Al. v. Diokno, Et Al., L-19550, June 19, 1967
(20 SCRA 383), is not applicable, because there the search warrants were issued for
"violation of Central Bank Laws, Internal Revenue (Code) and Revised Penal Code;"
whereas, here Search Warrant No 2-M-70 was issued for violation of only one code,
i.e., the National Internal Revenue Code. The distinction more apparent than real,
because it was precisely on account of the Stonehill incident, which occurred
sometime before the present Rules of Court took effect on January 1, 1964, that this
Court amended the former rule by inserting therein the phrase "in connection with
one specific offense," and adding the sentence "No search warrant shall issue for
more than one specific offense," in what is now Sec. 3, Rule 126. Thus we said in
Stonehill:jgc:chanrobles.com.ph
"Such is the seriousness of the irregularities committed in connection with the
disputed search warrants, that this Court deemed it fit to amend Section 3 of Rule
122 of the former Rules of Court that ‘a search warrant shall not issue but upon
probable cause in connection with one specific offense.’ Not satisfied with this
qualification, the Court added thereto a paragraph, directing that ‘no search warrant
shall issue for more than one specific offense.’"
3. The search warrant does not particularly describe the things to be seized.
The documents, papers and effects sought to be seized are described in Search
Warrant No. 2-M-70 in this manner:jgc:chanrobles.com.ph
"Unregistered and private books of accounts (ledgers, journals, columnars, receipts
and disbursements books, customers ledgers); receipts for payments received;
certificates of stocks and securities; contracts, promissory notes and deeds of sale;
telex and coded messages; business communications, accounting and business
records; checks and check stubs; records of bank deposits and withdrawals; and
records of foreign remittances, covering the years 1966 to 1970."cralaw virtua1aw
library
The description does not meet the requirement in Art III, Sec. 1, of the Constitution,
and of Sec. 3, Rule 126 of the Revised Rules of Court, that the warrant should
particularly describe the things to be seized.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 26
In Stonehill, this Court, speaking thru Mr. Chief Justice Roberto Concepcion,
said:jgc:chanrobles.com.ph
"The grave violation of the Constitution made in the application for the contested
search warrants was compounded by the description therein made of the effects to
be searched for and seized, to wit:chanrob1es virtual 1aw library
‘Books of accounts, financial records, vouchers, journals, correspondence, receipts,
ledgers, portfolios, credit journals, typewriters, and other documents and/or paper
showing all business transactions including disbursement receipts, balance sheets and
related profit and loss statements.’
"Thus, the warrants authorized the search for and seizure of records pertaining to all
business transactions of petitioners herein, regardless of whether the transactions
were legal or illegal. The warrants sanctioned the seizure of all records of the
petitioners and the aforementioned corporations, whatever their nature, thus openly
contravening the explicit command of our Bill of Rights — that the things to be seized
be particularly described — as well as tending to defeat its major objective: the
elimination of general warrants."cralaw virtua1aw library
While the term "all business transactions" does not appear in Search Warrant No. 2-
M-70, the said warrant nevertheless tends to defeat the major objective of the Bill of
Rights, i.e., the elimination of general warrants, for the language used therein is so
all-embracing as to include all conceivable records of petitioner corporation, which, if
seized, could possibly render its business inoperative.
In Uy Kheytin, Et. Al. v. Villareal, etc., Et Al., 42 Phil. 886, 896, this Court had
occasion to explain the purpose of the requirement that the warrant should
particularly describe the place to be searched and the things to be seized, to
wit:jgc:chanrobles.com.ph
". . . Both the Jones Law (sec. 3) and General Orders No. 58 (sec. 97) specifically
require that a search warrant should particularly describe the place to be searched
and the things to be seized. The evident purpose and intent of this requirement is to
limit the things to be seized to those, and only those, particularly described in the
search warrant — to leave the officers of the law with no discretion regarding what
articles they shall seize, to the end that ‘unreasonable searches and seizures’ may not
be made, — that abuses may not be committed. That this is the correct interpretation
of this constitutional provision is borne out by American authorities."cralaw virtua1aw
library
The purpose as thus explained could, surely and effectively, be defeated under the
search warrant issued in this case.

A search warrant may be said to particularly describe the things to be seized when
the description therein is as specific as the circumstances will ordinarily allow (People
v. Rubio; 57 Phil. 384); or when the description expresses a conclusion of fact — not
of law — by which the warrant officer may be guided in making the search and
seizure (idem., dissent of Abad Santos, J.,); or when the things described are limited
to those which bear direct relation to the offense for which the warrant is being
issued (Sec. 2, Rule 126, Revised Rules of Court). The herein search warrant does not
conform to any of the foregoing tests. If the articles desired to be seized have any
direct relation to an offense committed, the applicant must necessarily have some
evidence, other than those articles, to prove the said offense; and the articles subject
of search and seizure should come in handy merely to strengthen such evidence. In
this event, the description contained in the herein disputed warrant should have
mentioned, at least, the dates, amounts, persons, and other pertinent data regarding
the receipts of payments, certificates of stocks and securities, contracts, promissory
notes, deeds of sale, messages and communications, checks, bank deposits and
withdrawals, records of foreign remittances, among others, enumerated in the
warrant.
Respondents contend that certiorari does not lie because petitioners failed to file a
motion for reconsideration of respondent Judge’s order of July 29, 1970. The
contention is without merit. In the first place, when the questions raised before this
Court are the same as those which were squarely raised in and passed upon by the
court below, the filing of a motion for reconsideration in said court
before certiorari can be instituted in this Court is no longer a prerequisite. (Pajo, etc.,
Et. Al. v. Ago, Et Al., 108 Phil., 905). In the second place, the rule requiring the filing
of a motion for reconsideration before an application for a writ of certiorari can be
entertained was never intended to be applied without considering the circumstances.
(Matutina v. Buslon, Et Al., 109 Phil., 140.) In the case at bar time is of the essence
in view of the tax assessments sought to be enforced by respondent officers of the
Bureau of Internal Revenue against petitioner corporation, On account of which
immediate and more direct action becomes necessary. (Matute v. Court of Appeals,
Et Al., 26 SCRA 768.) Lastly, the rule does not apply where, as in this case, the
deprivation of petitioners’ fundamental right to due process taints the proceeding
against them in the court below not only with irregularity but also with nullity.
(Matute v. Court of Appeals, Et Al., supra.)
It is next contended by respondents that a corporation is not entitled to protection
against unreasonable search and seizures. Again, we find no merit in the contention.
"Although, for the reasons above stated, we are of the opinion that an officer of a
corporation which is charged with a violation of a statute of the state of its creation,
or of an act of Congress passed in the exercise of its constitutional powers, cannot
refuse to produce the books and papers of such corporation, we do not wish to be
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 27
understood as holding that a corporation is not entitled to immunity, under the 4th
Amendment, against unreasonable searches and seizures. A corporation is, after all,
but an association of individuals under an assumed name and with a distinct legal
entity. In organizing itself as a collective body it waives no constitutional immunities
appropriate to such body. Its property cannot be taken without compensation. It can
only be proceeded against by due process of law, and is protected, under the 14th
Amendment, against unlawful discrimination . . ." (Hale v. Henkel, 201 U.S. 43, 50 L.
ed. 652.)
"In Linn v. United States, 163 C.C.A. 470, 251 Fed. 476, 480, it was thought that a
different rule applied to a corporation, the ground that it was not privileged from
producing its books and papers. But the rights of a corporation against unlawful
search and seizure are to be protected even if the same result might have been
achieved in a lawful way." (Silverthorne Lumber Company, Et. Al. v. United States of
America, 251 U.S. 385, 64 L. ed. 319.)
In Stonehill, Et. Al. v. Diokno, Et Al., supra, this Court impliedly recognized the right
of a corporation to object against unreasonable searches and seizures,
thus:jgc:chanrobles.com.ph
"As regards the first group, we hold that petitioners herein have no cause of action to
assail the legality of the contested warrants and of the seizures made in pursuance
thereof, for the simple reason that said corporations have their respective
personalities, separate and distinct from the personality of herein petitioners,
regardless of the amount of shares of stock or the interest of each of them in said
corporations, whatever, the offices they hold therein may be. Indeed, it is well settled
that the legality of a seizure can be contested only by the party whose rights have
been impaired thereby, and that the objection to an unlawful search and seizure is
purely personal and cannot be availed of by third parties. Consequently, petitioners
herein may not validly object to the use in evidence against them of the documents,
papers and things seized from the offices and premises of the corporations adverted
to above, since the right to object to the admission of said papers in evidence
belongs exclusively to the corporations, to whom the seized effects belong, and may
not be invoked by the corporate officers in proceedings against them in their
individual capacity . . ."cralaw virtua1aw library
In the Stonehill case only the officers of the various corporations in whose offices
documents, papers and effects were searched and seized were the petitioners. In the
case at bar, the corporation to whom the seized documents belong, and whose rights
have thereby been impaired, is itself a petitioner. On that score, petitioner
corporation here stands on a different footing from the corporations in Stonehill.
The tax assessments referred to earlier in this opinion were, if not entirely — as
claimed by petitioners — at least partly — as in effect admitted by respondents —
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 28

based on the documents seized by virtue of Search Warrant No. 2-M-70.

Furthermore, the fact that the assessments were made some one and one-half
months after the search and seizure on February 25, 1970, is a strong indication that
the documents thus seized served as basis for the assessments. Those assessments
should therefore not be enforced.

PREMISES CONSIDERED, the petition is granted. Accordingly, Search Warrant No. 2-

M-70 issued by respondent Judge is declared null and void; respondents are
permanently enjoined from enforcing the said search warrant; the documents, papers
and effects seized thereunder are ordered to be returned to petitioners; and
respondent officials the Bureau of Internal Revenue and their representatives are
permanently enjoined from enforcing the assessments mentioned in Annex "G" of the
present petition, as well as other assessments based on the documents, papers and
effects seized under the search warrant herein nullified, and from using the same
against petitioners in any criminal or other proceeding. No pronouncement as to
costs.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Fernando, Teehankee and Makasiar, JJ.,
concur.

Reyes, J.B.L., J., concurs with Mr. Justice Barredo.

Castro, J., concurs in the result.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 71410 November 25, 1986
JOSEFINO S. ROAN, petitioner,
vs.
THE HONORABLE ROMULO T. GONZALES, PRESIDING JUDGE, REGIONAL
TRIAL COURT OF MARINDUQUE, BRANCH XXXVIII; THE PROVINCIAL
FISCAL OF MARINDUQUE; THE PROVINCIAL COMMANDER, PC-INP
MARINDUQUE, respondents.
CRUZ, J:
Once again we are asked to annul a search warrant on the ground that it violates the
Constitution. As we can do no less if we are to be true to the mandate of the
fundamental law, we do annul.
One of the most precious rights of the citizen in a free society is the right to be left
alone in the privacy of his own house. That right has ancient roots, dating back
through the mists of history to the mighty English kings in their fortresses of power.
Even then, the lowly subject had his own castle where he was monarch of all he
surveyed. This was his humble cottage from which he could bar his sovereign lord
and all the forces of the Crown.
That right has endured through the ages albeit only in a few libertarian regimes.
Their number, regrettably, continues to dwindle against the onslaughts of
authoritarianism. We are among the fortunate few, able again to enjoy this right after
the ordeal of the past despotism. We must cherish and protect it all the more now
because it is like a prodigal son returning.
That right is guaranteed in the following provisions of Article IV of the 1973
Constitution:
SEC. 3. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 29
seizures of whatever nature and for any purpose shall not be
violated, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined by the judge, or
such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched, and the persons or things to be seized.
SEC. 4. (1) The privacy of communication and cor- respondence
shag be inviolable except upon lawful order of the court, or when
public safety and order require otherwise.
(2) Any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any proceeding.
Invoking these provisions, the petitioner claims he was the victim of an illegal search
and seizure conducted by the military authorities. The articles seized from him are
sought to be used as evidence in his prosecution for illegal possession of firearms. He
asks that their admission be temporarily restrained (which we have) 1 and thereafter
permanently enjoined.
The challenged search warrant was issued by the respondent judge on May 10,
1984.2 The petitioner's house was searched two days later but none of the articles
listed in the warrant was discovered. 3 However, the officers conducting the search
found in the premises one Colt Magnum revolver and eighteen live bullets which they
confiscated. They are now the bases of the charge against the petitioner. 4
To be valid, a search warrant must be supported by probable cause to be determined
by the judge or some other authorized officer after examining the complainant and
the witnesses he may produce. No less important, there must be a specific
description of the place to be searched and the things to be seized, to prevent
arbitrary and indiscriminate use of the warrant.5
Probable cause was described by Justice Escolin in Burgos v. Chief of Staff 6 as
referring to "such facts and circumstances which would lead a reasonably discreet
and prudent man to believe that an offense has been committed and that the objects
sought in connection with the offense are in the place sought to be searched." As
held in a long line of decisions, the probable cause must refer to only one specific
offense.7
The inclusion of the requirement for the "examination under oath or affirmation of
the complainant and the witnesses he may produce" was a refinement proposed by

Delegate Vicente J. Francisco in the1934 Constitutional Convention. His purpose was
the strengthening of the guaranty against unreasonable searches and seizures.
Although the condition did not appear in the corresponding provision of the federa
Constitution of the United States which served as our model it was then already
embodied in the Code of Criminal Procedure. Nevertheless, Delegate Jose P. Laurel,
Chairman of the Committee on the Bill of Rights of that body, readily accepted the
proposal and it was thereafter, following a brief debate, approved by the
Convention.8
Implementing this requirement, the Rules of Court provided in what was then Rule
126:
SEC. 4. Examination of the applicant. — The municipal or city judge
must, before issuing the warrant, personally examine on oath or
affirmation the complainant and any witnesses he may produce and
take their depositions in writing, and attach them to the record, in
addition to any affidavits presented to him.
The petitioner claims that no depositions were taken by the respondent judge in
accordance with the above rule, but this is not entirely true. As a matter of fact,
depositions were taken of the complainant's two witnesses in addition to the affidavit
executed by them. 9 It is correct to say, however, that the complainant himself was
not subjected to a similar interrogation.
Commenting on this matter, the respondent judge declared:
The truth is that when PC Capt. Mauro P. Quinosa personally filed
his application for a search warrant on May 10, 1984, he appeared
before me in the company of his two (2) witnesses, Esmael Morada
and Jesus Tohilida, both of whom likewise presented to me their
respective affidavits taken by Pat. Josue V. Lining, a police
investigator assigned to the PC-INP command at Camp Col. Maximo
Abad. As the application was not yet subscribed and sworn to, I
proceeded to examine Captain Quillosa on the contents thereof to
ascertain, among others, if he knew and understood the same.
Afterwards, he subscribed and swore to the same before me. 10
By his own account, an he did was question Captain Quillosa on the contents of his
affidavit only "to ascertain, among others, if he knew and understood the same," and
only because "the application was not yet subscribed and swom to." The suggestion
is that he would not have asked any questions at all if the affidavit had already been
completed when it was submitted to him. In any case, he did not ask his own
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 30
searching questions. He limited himself to the contents of the affidavit. He did not
take the applicant's deposition in writing and attach them to the record, together with
the affidavit presented to him.
As this Court held in Mata v. Bayona: 11
Mere affidavits of the complainant and his witnesses are thus not
sufficient. The examining Judge has to take depositions in writing
of the complainant and the witnesses he niay produce and attach
them to the record. Such written deposition is necessary in order
that the Judge may be able to properly determine the existence or
non-existence of the probable cause, to hold liable for perjury the
person giving it if it wifl be found later that his declarations are
false.
We, therefore, hold that the search warrant is tainted with illegality
by the failure of the Judge to conform with the essential requisites
of taking the depositions in writing and attaching them to the
record, rendering the search warrant invalid.
The respondent judge also declared that he "saw no need to have applicant Quillosa's
deposition taken considering that he was applying for a search warrant on the basis
of the information provided by the aforenamed witnesses whose depositions as
aforementioned had already been taken by the undersigned." 12
In other words, the applicant was asking for the issuance of the search warrant on
the basis of mere hearsay and not of information personally known to him, as
required by settled jurisprudence." 13 The rationale of the requirement, of course, is
to provide a ground for a prosecution for perjury in case the applicant's declarations
are found to be false. His application, standing alone, was insufficient to justify the
issuance of the warrant sought. It was therefore necessary for the witnesses
themselves, by their own personal information, to establish the apphcant's claims. 14
Even assuming then that it would have sufficed to take the depositions only of the
witnesses and not of the applicant himself, there is still the question of the sufficiency
of their depositions.
It is axiomatic that the examination must be probing and exhaustive, not merely
routinary or pro-forma, if the claimed probable cause is to be established. The
examining magistrate must not simply rehash the contents of the affidavit but must
make his own inquiry on the intent and justification of the application. 15

A study of the depositions taken from witnesses Esmael Morada and Jesus Tohilida,
who both claimed to be "intelligence informers," shows that they were in the main a
mere restatement of their allegations in their affidavits, except that they were made
in the form of answers to the questions put to them by the respondent judge.
Significantly, the meaningful remark made by Tohilida that they were suspicious of
the petitioner because he was a follower of the opposition candidate in the
forthcoming election (a "Lecarista") 16 did not excite the respondent judge's own
suspicions. This should have put him on guard as to the motivations of the witnesses
and alerted him to possible misrepresentations from them.
The respondent judge almost unquestioningly received the witnesses' statement that
they saw eight men deliver arms to the petitioner in his house on May 2,
1984. 17 This was supposedly done overtly, and Tohilida said he saw everything
through an open window of the house while he was near the gate. 18 He could even
positively say that six of the weapons were.45 caliber pistols and two were.38 caliber
revolvers. 19
One may well wonder why it did not occur to the respondent judge to ask how the
witness could be so certain even as to the caliber of the guns, or how far he was
from the window, or whether it was on the first floor or a second floor, or why his
presence was not noticed at all, or if the acts related were really done openly, in the
full view of the witnesses, considering that these acts were against the law. These
would have been judicious questions but they were injudiciously omitted. Instead, the
declarations of the witnesses were readily accepted and the search warrant sought
was issued forthwith.
The above-discussed defects have rendered the search warrant invalid. Nonetheless,
the Solicitor General argues that whatever defect there was, was waived when the
petitioner voluntarily submitted to the search and manifested his conformity in
writing. 20
We do not agree. What we see here is pressure exerted by the military authorities,
who practically coerced the petitioner to sign the supposed waiver as a guaranty
against a possible challenge later to the validity of the search they were conducting.
Confronted with the armed presence of the military and the presumptive authority of
a judicial writ, the petitioner had no choice but to submit. This was not, as we held in
a previous case,21 the manifestation merely of our traditional Filipino hospitality and
respect for authority. Given the repressive atmosphere of the Marcos regime, there
was here, as we see it, an intimidation that the petitioner could not resist.
The respondents also argue that the Colt Magnum pistol and the eighteen have
bullets seized from the petitioner were illegal per se and therefore could have been
taken by the military authorities even without a warrant. Possession of the said
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 31
articles, it is urged, was violative of P.D. 1866 and considered malum
prohibitum. Hence, the Wegal articles could be taken even without a warrant.
Prohibited articles may be seized but only as long as the search is valid. In this case,
it was not because: 1) there was no valid search warrant; and 2) absent such a
warrant, the right thereto was not validly waived by the petitioner. In short, the
military officers who entered the petitioner's premises had no right to be there and
therefore had no right either to seize the pistol and bullets.
It does not follow that because an offense is malum prohibitum, the subject thereof is
necessarily illegal per se. Motive is immaterial in mala prohibita, but the subjects of
this kind of offense may not be summarily seized simply because they are prohibited.
A search warrant is still necessary. If the rule were otherwise, then the military
authorities could have just entered the premises and looked for the guns reportedly
kept by the petitioner without bothering to first secure a search warrant. The fact
that they did bother to do so indicates that they themselves recognized the necessity
of such a warrant for the seizure of the weapons the petitioner was suspected of
possessing.
It is true that there are certain instances when a search may be validly made without
warrant and articles may be taken validly as a result of that search. For example, a
warrantless search may be made incidental to a lawful arrest,22 as when the person
being arrested is frished for weapons he may otherwise be able to use against the
arresting officer. Motor cars may be inspected at borders to prevent smuggling of
aliens and contraband 23 and even in the interior upon a showing of probable
cause. 24 Vessels and aircraft are also traditionally removed from the operation of the
rule because of their mobility and their relative ease in fleeing the state's
jurisdiction. 25 The individual may knowingly agree to be searched or waive objections
to an illegal search. 26 And it has also been held that prohibited articles may be taken
without warrant if they are open to eye and hand and the peace officer comes upon
them inadvertently. 27
Clearly, though, the instant case does not come under any of the accepted
exceptions. The respondents cannot even claim that they stumbled upon the pistol
and bullets for the fact is that these things were deliberately sought and were not in
plain view when they were taken. Hence, the rule having been violated and no
exception being applicable, the conclusion is that the petitioner's pistol and bullets
were confiscated illegally and therefore are protected by the exclusionary principle.
Stonehill v. Diokno established this rule which was later expressly affirmed in the
1973 Constitution. While conceding that there may be occasions when the criminal
might be allowed to go free because "the constable has blundered," Chief Justice
Concepcion observed that the exclusionary rule was nonetheless "the only practical
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 32

means of enforcing the constitutional injunction" against abuse. The decision cited
Judge Learned Hand's justification that "only in case the prosecution which itself
controls the seizing officials, know that it cannot profit by their wrong, will the wrong
be repressed. "

The pistol and bullets cannot, of course, be used as evidence against the petitioner in
the criminal action against him for illegal possession of firearms. Pending resolution of
that case, however, the said articles must remain in custodia legis.

Finally, it is true that the petitioner should have, before coming to this Court, filed a
motion for the quashal of the search warrant by the respondent judge in accordance
with the normal procedure. But as we said and did in Burgos, "this procedural flaw
notwithstanding, we take cognizance of this petition in view of the seriousness and
urgency of the constitutional issues raised. 28

WHEREFORE, Search Warrant No. 1-84 issued by the respondent judge on May 10,
1984, is hereby declared null and void and accordingly set aside. Our restraining
order of August 6,1985, is made permanent. No costs.

SO ORDERED.

Teehankee, C.J., Feria, Yap, Fernan, Melencio-Herrera, Alampay, Gutierrez, Jr and

Paras, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-45358 January 29, 1937
NARCISO ALVAREZ, petitioner,
vs.
THE COURT OF FIRST INSTANCE OF TAYABAS and THE ANTI-USURY
BOARD, respondents.
Godofredo Reyes for petitioner.
Adolfo N. Feliciano for respondents Anti-Usury Board.
No appearance for other respondent.
IMPERIAL, J.:
The petitioner asks that the warrant of June 3, 1936, issued by the Court of First
Instance of Tayabas, ordering the search of his house and the seizure, at any time of
the day or night, of certain accounting books, documents and papers belonging to
him in his residence situated in Infanta, Province of Tayabas, as well as the order of a
later date, authorizing the agents of the Anti-Usury Board to retain the articles seized,
be declared illegal and set aside, and prays that all the articles in question be
returned to him.
On the date above-mentioned, the chief of the secret service of the Anti-Usury Board,
of the Department of Justice, presented to Judge Eduardo Gutierrez David then
presiding over the Court of First Instance of Tayabas, an affidavit alleging that
according to reliable information, the petitioner kept in his house in Infanta, Tayabas,
books, documents, receipts, lists, chits and other papers used by him in connection
with his activities as a money-lender charging usurious rates of interest in violation of
the law. In his oath at the and of the affidavit, the chief of the secret service stated
that his answers to the questions were correct to the best of his knowledge and
belief. He did not swear to the truth of his statements upon his own knowledge of the
facts but upon the information received by him from a reliable person. Upon the
affidavit in question the Judge, on said date, issued the warrant which is the subject
matter of the petition, ordering the search of the petitioner's house at nay time of the
day or night, the seizure of the books and documents above-mentioned and the
immediate delivery thereof to him to be disposed of in accordance with the law. With
said warrant, several agents of the Anti-Usury Board entered the petitioner's store
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 33
and residence at seven o'clock on the night of June 4, 1936, and seized and took
possession of the following articles: internal revenue licenses for the years 1933 to
1936, one ledger, two journals, two cashbooks, nine order books, four notebooks,
four checks stubs, two memorandums, three bankbooks, two contracts, four stubs,
forty-eight stubs of purchases of copra, two inventories, two bundles of bills of
lading, one bundle of credit receipts, one bundle of stubs of purchases of copra, two
packages of correspondence, one receipt book belonging to Luis Fernandez, fourteen
bundles of invoices and other papers many documents and loan contracts with
security and promissory notes, 504 chits, promissory notes and stubs of used checks
of the Hongkong & Shanghai Banking Corporation. The search for and a seizure of
said articles were made with the opposition of the petitioner who stated his protest
below the inventories on the ground that the agents seized even the originals of the
documents. As the articles had not been brought immediately to the judge who
issued the search warrant, the petitioner, through his attorney, filed a motion on June
8, 1936, praying that the agent Emilio L. Siongco, or any other agent, be ordered
immediately to deposit all the seized articles in the office of the clerk of court and
that said agent be declared guilty of contempt for having disobeyed the order of the
court. On said date the court issued an order directing Emilio L. Siongco to deposit all
the articles seized within twenty-four hours from the receipt of notice thereof and
giving him a period of five (5) days within which to show cause why he should not be
punished for contempt of court. On June 10th, Attorney Arsenio Rodriguez,
representing the Anti-Usury Board, filed a motion praying that the order of the 8th of
said month be set aside and that the Anti-Usury Board be authorized to retain the
articles seized for a period of thirty (30) days for the necessary investigation. The
attorney for the petitioner, on June 20th, filed another motion alleging that,
notwithstanding the order of the 8th of said month, the officials of the Anti-Usury
Board had failed to deposit the articles seized by them and praying that a search
warrant be issued, that the sheriff be ordered to take all the articles into his custody
and deposit of the Anti-Usury Board be punished for contempt of court. Said attorney,
on June 24th, filed an ex parte petition alleging that while agent Emilio L. Siongco
had deposited some documents and papers in the office of the clerk of court, he had
so far failed to file an inventory duly verified by oath of all the documents seized by
him, to return the search warrant together with the affidavit it presented in support
thereof, or to present the report of the proceedings taken by him; and prayed that
said agent be directed to filed the documents in question immediately. On the 25th of
said month the court issued an order requiring agent Emilio L. Siongco forthwith to
file the search warrant and the affidavit in the court, together with the proceedings
taken by him, and to present an inventory duly verified by oath of all the articles
seized. On July 2d of said year, the attorney for the petitioner filed another petition
alleging that the search warrant issue was illegal and that it had nit yet been returned
to date together with the proceedings taken in connection therewith, and praying that
said warrant be cancelled, that an order be issued directing the return of all the
articles seized to the petitioner, that the agent who seized them be declared guilty of
contempt of court, and that charges be filed against him for abuse of authority. On

September 10, 1936, the court issued an order holding: that the search warrant was
obtained and issued in accordance with the law, that it had been duly complied with
and, consequently, should not be cancelled, and that agent Emilio L. Siongco did not
commit any contempt of court and must, therefore, be exonerated, and ordering the
chief of the Anti-Usury Board in Manila to show case, if any, within the unextendible
period of two (2) days from the date of notice of said order, why all the articles
seized appearing in the inventory, Exhibit 1, should not be returned to the petitioner.
The assistant chief of the Anti-Usury Board of the Department of Justice filed a
motion praying, for the reasons stated therein, that the articles seized be ordered
retained for the purpose of conducting an investigation of the violation of the Anti-
Usury Law committed by the petitioner. In view of the opposition of the attorney for
the petitioner, the court, on September 25th, issued an order requiring the Anti-Usury
Board to specify the time needed by it to examine the documents and papers seized
and which of them should be retained, granting it a period of five (5) days for said
purpose. On the 30th of said month the assistant chief of the Anti-Usury Board filed a
motion praying that he be granted ten (10) days to comply with the order of
September 25th and that the clerk of court be ordered to return to him all the
documents and papers together with the inventory thereof. The court, in an order of
October 2d of said year, granted him the additional period of ten(10) days and
ordered the clerk of court to send him a copy of the inventory. On October 10th, said
official again filed another motion alleging that he needed sixty (60) days to examine
the documents and papers seized, which are designated on pages 1 to 4 of the
inventory by Nos. 5, 1016, 23, 25, 26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43
and 45, and praying that he be granted said period of sixty (60) days. In an order of
October 16th, the court granted him the period of sixty (60) days to investigate said
nineteen (19) documents. The petitioner alleges, and it is not denied by the
respondents, that these nineteen (19)documents continue in the possession of the
court, the rest having been returned to said petitioner.
I. A search warrant is an order in writing, issued in the name of the People
of the Philippine Islands, signed by a judge or a justice of the peace, and
directed to a peace officer, commanding him to search for personal property
and bring it before the court (section 95, General Orders. No. 58, as
amended by section 6 of Act No. 2886). Of all the rights of a citizen, few are
of greater importance or more essential to his peace and happiness than the
right of personal security, and that involves the exemption of his private
affairs, books, and papers from the inspection and scrutiny of others (In
re Pacific Railways Commission, 32 Fed., 241; Interstate Commerce
Commission vs Brimson, 38 Law. ed., 1047; Broyd vs. U. S., 29 Law. ed.,
746; Caroll vs. U. S., 69 Law. ed., 543, 549). While the power to search and
seize is necessary to the public welfare, still it must be exercised and the law
enforced without transgressing the constitutional rights or citizen, for the
enforcement of no statue is of sufficient importance to justify indifference to
the basis principles of government (People vs.Elias, 147 N. E., 472).
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 34
II. As the protection of the citizen and the maintenance of his constitutional
right is one of the highest duties and privileges of the court, these
constitutional guaranties should be given a liberal construction or a strict
construction in favor of the individual, to prevent stealthy encroachment
upon, or gradual depreciation on, the rights secured by
them(State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac.,
965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general
rule that statutes authorizing searches and seizure or search warrants must
be strictly construed (Rose vs. St. Clair, 28 Fed., [2d], 189; Leonard vs. U.
S., 6 Fed. [2d], 353; Perry vs. U. S. 14 Fed. [2d],88; Cofer vs. State, 118
So., 613).
III. The petitioner claims that the search warrant issued by the court is
illegal because it has been based upon the affidavit of agent Mariano G.
Almeda in whose oath he declared that he had no personal knowledge of the
facts which were to serve as a basis for the issuance of the warrant but that
he had knowledge thereof through mere information secured from a person
whom he considered reliable. To the question "What are your reason for
applying for this search warrant", appearing in the affidavit, the agent
answered: "It has been reported to me by a person whom I consider to be
reliable that there are being kept in said premises, books, documents,
receipts, lists, chits, and other papers used by him in connection with his
activities as a money-lender, charging a usurious rate of interest, in violation
of the law" and in attesting the truth of his statements contained in the
affidavit, the said agent states that he found them to be correct and true to
the best of his knowledge and belief.
Section 1, paragraph 3, of Article III of the Constitution, relative to the bill of
rights, provides that "The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures
shall not be violated, and no warrants shall issue but upon probable cause,
to be determined by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly
describing the place top be searched, and the persons or things to be
seized." Section 97 of General Orders, No. 58 provides that "A search
warrant shall not issue except for probable cause and upon application
supported by oath particularly describing the place to be searched and the
person or thing to be seized." It will be noted that both provisions require
that there be not only probable cause before the issuance of a search
warrant but that the search warrant must be based upon an application
supported by oath of the applicant ands the witnesses he may produce. In
its broadest sense, an oath includes any form of attestation by which a party
signifies that he is bound in conscience to perform an act faithfully and

truthfully; and it is sometimes defined asan outward pledge given by the
person taking it that his attestation or promise is made under an immediate
sense of his responsibility to God (Bouvier's Law Dictionary;
State vs. Jackson, 137 N. W., 1034; In re Sage, 24 Oh. Cir. Ct. [N. S.], 7;
Pumphery vs. State, 122 N. W., 19; Priest vs. State, 6 N. W., 468;
State vs. Jones, 154 Pac., 378; Atwood vs. State, 111 So., 865). The oath
required must refer to the truth of the facts within the personal knowledge
of the petitioner or his witnesses, because the purpose thereof is to convince
the committing magistrate, not the individual making the affidavit and
seeking the issuance of the warrant, of the existence of probable cause (U.
S. vs. Tureaud, 20 Fed., 621; U. S. vs. Michalski, 265 Fed., 8349; U.
S. vs. Pitotto, 267 Fed., 603; U. S. vs. Lai Chew, 298 Fed., 652). The true
test of sufficiency of an affidavit to warrant issuance of a search warrant is
whether it has been drawn in such a manner that perjury could be charged
thereon and affiant be held liable for damages caused (State vs. Roosevelt
Country 20th Jud. Dis. Ct., 244 Pac., 280; State vs. Quartier, 236 Pac., 746).
It will likewise be noted that section 1, paragraph 3, of Article III of the
Constitution prohibits unreasonable searches and seizure. Unreasonable
searches and seizures are a menace against which the constitutional
guarantee afford full protection. The term "unreasonable search and seizure"
is not defined in the Constitution or in General Orders No. 58, and it is said
to have no fixed, absolute or unchangeable meaning, although the term has
been defined in general language. All illegal searches and seizure are
unreasonable while lawful ones are reasonable. What constitutes a
reasonable or unreasonable search or seizure in any particular case is purely
a judicial question, determinable from a consideration of the circumstances
involved, including the purpose of the search, the presence or absence or
probable cause, the manner in which the search and seizure was made, the
place or thing searched, and the character of the articles procured (Go-Bart
Importing Co. vs. U. S. 75 Law. ed., 374; Peru vs. U. S., 4 Fed., [2d], 881;U.
S. vs. Vatune, 292 Fed., 497; Angelo vs. U. S. 70 Law, ed., 145;
Lambert vs. U. S. 282 Fed., 413; U. S. vs. Bateman, 278 Fed., 231;
Mason vs. Rollins, 16 Fed. Cas. [No. 9252], 2 Biss., 99).
In view of the foregoing and under the above-cited authorities, it appears
that the affidavit, which served as the exclusive basis of the search warrant,
is insufficient and fatally defective by reason of the manner in which the
oath was made, and therefore, it is hereby held that the search warrant in
question and the subsequent seizure of the books, documents and other
papers are illegal and do not in any way warrant the deprivation to which
the petitioner was subjected.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 35
IV. Another ground alleged by the petitioner in asking that the search
warrant be declared illegal and cancelled is that it was not supported by
other affidavits aside from that made by the applicant. In other words, it is
contended that the search warrant cannot be issued unless it be supported
by affidavits made by the applicant and the witnesses to be presented
necessity by him. Section 1, paragraph 3, of Article III of the Constitution
provides that no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce. Section 98 of General
Orders, No. 58 provides that the judge or justice must, before issuing the
warrant, examine under oath the complainant and any witnesses he may
produce and take their depositions in writing. It is the practice in this
jurisdiction to attach the affidavit of at least the applicant or complainant to
the application. It is admitted that the judge who issued the search warrant
in this case, relied exclusively upon the affidavit made by agent Mariano G.
Almeda and that he did not require nor take the deposition of any other
witness. Neither the Constitution nor General Orders. No. 58 provides that it
is of imperative necessity to take the deposition of the witnesses to be
presented by the applicant or complainant in addition to the affidavit of the
latter. The purpose of both in requiring the presentation of depositions is
nothing more than to satisfy the committing magistrate of the existence of
probable cause. Therefore, if the affidavit of the applicant or complainant is
sufficient, the judge may dispense with that of other witnesses. Inasmuch as
the affidavit of the agent in this case was insufficient because his knowledge
of the facts was not personal but merely hearsay, it is the duty of the judge
to require the affidavit of one or more witnesses for the purpose of
determining the existence of probable cause to warrant the issuance of the
search warrant. When the affidavit of the applicant of the complaint contains
sufficient facts within his personal and direct knowledge, it is sufficient if the
judge is satisfied that there exist probable cause; when the applicant's
knowledge of the facts is mere hearsay, the affidavit of one or more
witnesses having a personal knowledge of the fact is necessary. We
conclude, therefore, that the warrant issued is likewise illegal because it was
based only on the affidavit of the agent who had no personal knowledge of
the facts.
V. The petitioner alleged as another ground for the declaration of the
illegality of the search warrant and the cancellation thereof, the fact that it
authorized its execution at night. Section 101 of General Orders, No. 58
authorizes that the search be made at night when it is positively asserted in
the affidavits that the property is on the person or in the place ordered to be
searched. As we have declared the affidavits insufficient and the warrant
issued exclusively upon it illegal, our conclusion is that the contention is
equally well founded and that the search could not legally be made at night.

VI. One of the grounds alleged by the petitioner in support of his contention
that the warrant was issued illegally is the lack of an adequate description of
the books and documents to be seized. Section 1, paragraphs 3, of Article
III of the Constitution, and section 97 of General Orders, No. 58 provide that
the affidavit to be presented, which shall serve as the basis for determining
whether probable cause exist and whether the warrant should be issued,
must contain a particular description of the place to be searched and the
person or thing to be seized. These provisions are mandatory and must be
strictly complied with (Munch vs. U. S., 24 Fed. [2d], 518; U. S. vs. Boyd, 1
Fed. [2d], 1019; U. S. vs. Carlson, 292 Fed., 463; U. S. vs.Borkowski, 268
Fed., 408; In re Tri-State Coal & Coke Co., 253 Fed., 605; People vs. Mayen,
188 Cal., 237; People vs. Kahn, 256 Ill. App., 4125); but where, by the
nature of the goods to be seized, their description must be rather generally,
it is not required that a technical description be given, as this would mean
that no warrant could issue (People vs. Rubio, 57 Phil., 284;
People vs. Kahn, supra). The only description of the articles given in the
affidavit presented to the judge was as follows: "that there are being kept in
said premises books, documents, receipts, lists, chits and other papers used
by him in connection with his activities as money-lender, charging a usurious
rate of interest, in violation of the law." Taking into consideration the nature
of the article so described, it is clear that no other more adequate and
detailed description could have been given, particularly because it is difficult
to give a particular description of the contents thereof. The description so
made substantially complies with the legal provisions because the officer of
the law who executed the warrant was thereby placed in a position enabling
him to identify the articles, which he did.
VII. The last ground alleged by the petitioner, in support of his claim that
the search warrant was obtained illegally, is that the articles were seized in
order that the Anti-Usury Board might provide itself with evidence to be
used by it in the criminal case or cases which might be filed against him for
violation of the Anti-usury Law. At the hearing of the incidents of the case
raised before the court it clearly appeared that the books and documents
had really been seized to enable the Anti-Usury Board to conduct an
investigation and later use all or some of the articles in question as evidence
against the petitioner in the criminal cases that may be filed against him.
The seizure of books and documents by means of a search warrant, for the
purpose of using them as evidence in a criminal case against the person in
whose possession they were found, is unconstitutional because it makes the
warrant unreasonable, and it is equivalent to a violation of the constitutional
provision prohibiting the compulsion of an accused to testify against himself
(Uy Kheytin vs.Villareal, 42 Phil,, 886; Brady vs. U. S., 266 U. S., 620;
Temperani vs. U. S., 299 Fed., 365; U. S. vs. Madden, 297 Fed., 679;
Boyd vs. U. S.,116 U. S., 116; Caroll vs. U. S., 267 U. S., 132). Therefore, it
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 36
appearing that at least nineteen of the documents in question were seized
for the purpose of using them as evidence against the petitioner in the
criminal proceeding or proceedings for violation against him, we hold that
the search warrant issued is illegal and that the documents should be
returned to him.
The Anti-Usury Board insinuates in its answer that the petitioner cannot now question
the validity of the search warrant or the proceedings had subsequent to the issuance
thereof, because he has waived his constitutional rights in proposing a compromise
whereby he agreed to pay a fine of P200 for the purpose of evading the criminal
proceeding or proceedings. We are of the opinion that there was no such waiver,
first, because the petitioner has emphatically denied the offer of compromise and,
second, because if there was a compromise it reffered but to the institution of
criminal proceedings fro violation of the Anti-Usury Law. The waiver would have been
a good defense for the respondents had the petitioner voluntarily consented to the
search and seizure of the articles in question, but such was not the case because the
petitioner protested from the beginning and stated his protest in writing in the
insufficient inventory furnished him by the agents.
Said board alleges as another defense that the remedy sought by the petitioner does
not lie because he can appeal from the orders which prejudiced him and are the
subject matter of his petition. Section 222 of the Code of Civil Procedure in fact
provides that mandamus will not issue when there is another plain, speedy and
adequate remedy in the ordinary course of law. We are of the opinion, however, that
an appeal from said orders would have to lapse before he recovers possession of the
documents and before the rights, of which he has been unlawfully deprived, are
restored to him (Fajardo vs. Llorente, 6 Phil., 426; Manotoc vs. McMicking and
Trinidad, 10 Phil., 119; Cruz Herrera de Lukban vs. McMicking, 14 Phil., 641;
Lamb vs. Phipps, 22 Phil., 456).
Summarizing the foregoing conclusions, we hold:
1. That the provisions of the Constitution and General Orders, No. 58,
relative to search and seizure, should be given a liberal construction in favor
of the individual in order to maintain the constitutional guaranties whole and
in their full force;
2. That since the provisions in question are drastic in their form and
fundamentally restrict the enjoyment of the ownership, possession and use
of the personal property of the individual, they should be strictly construed;
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 37

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

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

5. That although it is not mandatory to present affidavits of witnesses to

corroborate the applicant or a complainant in cases where the latter has
personal knowledge of the facts, when the applicant's or complainant's
knowledge of the facts is merely hearsay, it is the duty of the judge to
require affidavits of other witnesses so that he may determine whether
probable cause exists;

6. That a detailed description of the person and place to be searched and

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

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

8. That an appeal from the orders questioned by the petitioner, if taken by

him, would not be an effective, speedy or adequate remedy in the ordinary
course of law, and, consequently, the petition for mandamus filed by him,
lies.

For the foregoing considerations, the search warrant and the seizure of June 3, 1936,
and the orders of the respondent court authorizing the relation of the books and
documents, are declared illegal and are set aside, and it is ordered that the judge
presiding over the Court of First Instance of Tayabas direct the immediate return to
the petitioner of the nineteen (19) documents designated on pages 1 to 4 of the
inventory by Nos. 5, 10, 16, 23, 25,26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43
and 45, without special pronouncement as to costs. So ordered.
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 38

FIRST DIVISION The RTC found probable cause to issue the search warrants after examining NBI
Agent Samiano, John Benedict Sacriz (Sacriz), and computer technician Felixberto
[G.R. No. 140946. September 13, 2004] Pante (Pante). The three testified on what they discovered during their respective visits
MICROSOFT CORPORATION and LOTUS DEVELOPMENT to Maxicorp. NBI Agent Samiano also presented certifications from petitioners that they
CORPORATION, petitioners, vs. MAXICORP, INC., respondent. have not authorized Maxicorp to perform the witnessed activities using petitioners
products.
DECISION On 24 July 1997, Maxicorp filed a petition for certiorari with the Court of Appeals
seeking to set aside the RTCs order. On 23 December 1998, the Court of Appeals
CARPIO, J.: reversed the RTCs order denying Maxicorps motion to quash the search warrants.
Petitioners moved for reconsideration. The Court of Appeals denied petitioners motion
on 29 November 1999.
The Case The Court of Appeals held that NBI Agent Samiano failed to present during the
preliminary examination conclusive evidence that Maxicorp produced or sold the
counterfeit products. The Court of Appeals pointed out that the sales receipt NBI Agent
This petition for review on certiorari[1] seeks to reverse the Court of Appeals Samiano presented as evidence that he bought the products from Maxicorp was in the
Decision[2] dated 23 December 1998 and its Resolution dated 29 November 1999 in name of a certain Joel Diaz.
CA-G.R. SP No. 44777. The Court of Appeals reversed the Order[3] of the Regional Trial
Court, Branch 23, Manila (RTC), denying respondent Maxicorp, Inc.s (Maxicorp) motion Hence, this petition.
to quash the search warrant that the RTC issued against Maxicorp. Petitioners are the
private complainants against Maxicorp for copyright infringement under Section 29 of
Presidential Decree No. 49 (Section 29 of PD 49)[4] and for unfair competition under
Article 189 of the Revised Penal Code (RPC).[5] The Issues

Petitioners seek a reversal and raise the following issues for resolution:
Antecedent Facts
1. WHETHER THE PETITION RAISES QUESTIONS OF LAW;

On 25 July 1996, National Bureau of Investigation (NBI) Agent Dominador

Samiano, Jr. (NBI Agent Samiano) filed several applications for search warrants in the 2. WHETHER PETITIONERS HAVE LEGAL PERSONALITY TO FILE THE
RTC against Maxicorp for alleged violation of Section 29 of PD 49 and Article 189 of the PETITION;
RPC. After conducting a preliminary examination of the applicant and his witnesses,
Judge William M. Bayhon issued Search Warrants Nos. 96-451, 96-452, 96-453 and 96- 3. WHETHER THERE WAS PROBABLE CAUSE TO ISSUE THE SEARCH
454, all dated 25 July 1996, against Maxicorp. WARRANTS;

Armed with the search warrants, NBI agents conducted on 25 July 1996 a search
4. WHETHER THE SEARCH WARRANTS ARE GENERAL WARRANTS.
of Maxicorps premises and seized property fitting the description stated in the search
warrants.
On 2 September 1996, Maxicorp filed a motion to quash the search warrants
The Ruling of the Court
alleging that there was no probable cause for their issuance and that the warrants are
in the form of general warrants. The RTC denied Maxicorps motion on 22 January 1997.
The RTC also denied Maxicorps motion for reconsideration.
The petition has merit.

On Whether the Petition Raises Questions of Law
Maxicorp assails this petition as defective since it failed to raise questions of law.
Maxicorp insists that the arguments petitioners presented are questions of fact, which
this Court should not consider in a Rule 45 petition for review. Petitioners counter that
all the issues they presented in this petition involve questions of law. Petitioners point
out that the facts are not in dispute.
A petition for review under Rule 45 of the Rules of Court should cover questions
of law.[6] Questions of fact are not reviewable. As a rule, the findings of fact of the
Court of Appeals are final and conclusive and this Court will not review them on
appeal,[7] subject to exceptions as when the findings of the appellate court conflict with
the findings of the trial court.[8]
The distinction between questions of law and questions of fact is settled. A
question of law exists when the doubt or difference centers on what the law is on a
certain state of facts. A question of fact exists if the doubt centers on the truth or falsity
of the alleged facts. Though this delineation seems simple, determining the true nature
and extent of the distinction is sometimes problematic. For example, it is incorrect to
presume that all cases where the facts are not in dispute automatically involve purely
questions of law.
There is a question of law if the issue raised is capable of being resolved without
need of reviewing the probative value of the evidence. [9] The resolution of the issue
must rest solely on what the law provides on the given set of circumstances. Once it is
clear that the issue invites a review of the evidence presented, the question posed is
one of fact.[10] If the query requires a re-evaluation of the credibility of witnesses, or
the existence or relevance of surrounding circumstances and their relation to each
other, the issue in that query is factual.[11] Our ruling in Paterno v. Paterno[12] is
illustrative on this point:
Such questions as whether certain items of evidence should be accorded probative
value or weight, or rejected as feeble or spurious, or whether or not the proofs on
one side or the other are clear and convincing and adequate to establish a
proposition in issue, are without doubt questions of fact. Whether or not the body of
proofs presented by a party, weighed and analyzed in relation to contrary evidence
submitted by adverse party, may be said to be strong, clear and convincing; whether
or not certain documents presented by one side should be accorded full faith and
credit in the face of protests as to their spurious character by the other side; whether
or not inconsistencies in the body of proofs of a party are of such gravity as to justify
refusing to give said proofs weight all these are issues of fact.
It is true that Maxicorp did not contest the facts alleged by petitioners. But this
situation does not automatically transform all issues raised in the petition into
questions of law. The issues must meet the tests outlined in Paterno.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 39
Of the three main issues raised in this petition the legal personality of the
petitioners, the nature of the warrants issued and the presence of probable cause only
the first two qualify as questions of law. The pivotal issue of whether there was
probable cause to issue the search warrants is a question of fact. At first glance, this
issue appears to involve a question of law since it does not concern itself with the truth
or falsity of certain facts. Still, the resolution of this issue would require this Court to
inquire into the probative value of the evidence presented before the RTC. For a
question to be one of law, it must not involve an examination of the probative value of
the evidence presented by the litigants or any of them.[13]
Yet, this is precisely what the petitioners ask us to do by raising arguments
requiring an examination of the TSNs and the documentary evidence presented during
the search warrant proceedings. In short, petitioners would have us substitute our own
judgment to that of the RTC and the Court of Appeals by conducting our own evaluation
of the evidence. This is exactly the situation which Section 1, Rule 45 of the Rules of
Court prohibits by requiring the petition to raise only questions of law. This Court is not
a trier of facts. It is not the function of this court to analyze or weigh evidence.[14] When
we give due course to such situations, it is solely by way of exception. Such exceptions
apply only in the presence of extremely meritorious circumstances.[15]
Indeed, this case falls under one of the exceptions because the findings of the
Court of Appeals conflict with the findings of the RTC. [16] Since petitioners properly
raised the conflicting findings of the lower courts, it is proper for this Court to resolve
such contradiction.
On Whether Petitioners have the Legal Personality to File this Petition
Maxicorp argues that petitioners have no legal personality to file this petition since
the proper party to do so in a criminal case is the Office of the Solicitor General as
representative of the People of the Philippines. Maxicorp states the general rule but the
exception governs this case.[17] We ruled in Columbia Pictures Entertainment, Inc.
v. Court of Appeals[18] that the petitioner-complainant in a petition for review under
Rule 45 could argue its case before this Court in lieu of the Solicitor General if there is
grave error committed by the lower court or lack of due process. This avoids a situation
where a complainant who actively participated in the prosecution of a case would
suddenly find itself powerless to pursue a remedy due to circumstances beyond its
control. The circumstances in Columbia Pictures Entertainment are sufficiently
similar to the present case to warrant the application of this doctrine.
On Whether there was Probable Cause to Issue the Search Warrants
Petitioners argue that the Court of Appeals erred in reversing the RTC based on
the fact that the sales receipt was not in the name of NBI Agent Samiano. Petitioners
point out that the Court of Appeals disregarded the overwhelming evidence that the
RTC considered in determining the existence of probable cause. Maxicorp counters that

the Court of Appeals did not err in reversing the RTC. Maxicorp maintains that the
entire preliminary examination that the RTC conducted was defective.
The Court of Appeals based its reversal on two factual findings of the RTC. First,
the fact that the sales receipt presented by NBI Agent Samiano as proof that he bought
counterfeit goods from Maxicorp was in the name of a certain Joel Diaz. Second, the
fact that petitioners other witness, John Benedict Sacriz, admitted that he did not buy
counterfeit goods from Maxicorp.
We rule that the Court of Appeals erred in reversing the RTCs findings.
Probable cause means such reasons, supported by facts and circumstances as will
warrant a cautious man in the belief that his action and the means taken in prosecuting
it are legally just and proper.[19] Thus, probable cause for a search warrant requires
such facts and circumstances that would lead a reasonably prudent man to believe that
an offense has been committed and the objects sought in connection with that offense
are in the place to be searched.[20]
The judge determining probable cause must do so only after personally examining
under oath the complainant and his witnesses. The oath required must refer to the
truth of the facts within the personal knowledge of the petitioner or his witnesses,
because the purpose thereof is to convince the committing magistrate, not the
individual making the affidavit and seeking the issuance of the warrant, of the existence
of probable cause.[21] The applicant must have personal knowledge of the
circumstances. Reliable information is insufficient.[22] Mere affidavits are not enough,
and the judge must depose in writing the complainant and his witnesses.[23]
The Court of Appeals reversal of the findings of the RTC centers on the fact that
the two witnesses for petitioners during the preliminary examination failed to prove
conclusively that they bought counterfeit software from Maxicorp. The Court of Appeals
ruled that this amounted to a failure to prove the existence of a connection between
the offense charged and the place searched.
The offense charged against Maxicorp is copyright infringement under Section 29
of PD 49 and unfair competition under Article 189 of the RPC. To support these charges,
petitioners presented the testimonies of NBI Agent Samiano, computer technician
Pante, and Sacriz, a civilian. The offenses that petitioners charged Maxicorp
contemplate several overt acts. The sale of counterfeit products is but one of these
acts. Both NBI Agent Samiano and Sacriz related to the RTC how they personally saw
Maxicorp commit acts of infringement and unfair competition.
During the preliminary examination, the RTC subjected the testimonies of the
witnesses to the requisite examination. NBI Agent Samiano testified that he saw
Maxicorp display and offer for sale counterfeit software in its premises. He also saw
how the counterfeit software were produced and packaged within Maxicorps premises.
NBI Agent Samiano categorically stated that he was certain the products were
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 40
counterfeit because Maxicorp sold them to its customers without giving the
accompanying ownership manuals, license agreements and certificates of authenticity.
Sacriz testified that during his visits to Maxicorp, he witnessed several instances
when Maxicorp installed petitioners software into computers it had assembled. Sacriz
also testified that he saw the sale of petitioners software within Maxicorps premises.
Petitioners never authorized Maxicorp to install or sell their software.
The testimonies of these two witnesses, coupled with the object and documentary
evidence they presented, are sufficient to establish the existence of probable cause.
From what they have witnessed, there is reason to believe that Maxicorp engaged in
copyright infringement and unfair competition to the prejudice of petitioners. Both NBI
Agent Samiano and Sacriz were clear and insistent that the counterfeit software were
not only displayed and sold within Maxicorps premises, they were also produced,
packaged and in some cases, installed there.
The determination of probable cause does not call for the application of rules and
standards of proof that a judgment of conviction requires after trial on the merits. As
implied by the words themselves, probable cause is concerned with probability, not
absolute or even moral certainty. The prosecution need not present at this stage proof
beyond reasonable doubt. The standards of judgment are those of a reasonably
prudent man,[24] not the exacting calibrations of a judge after a full-blown trial.
No law or rule states that probable cause requires a specific kind of evidence. No
formula or fixed rule for its determination exists.[25] Probable cause is determined in
the light of conditions obtaining in a given situation.[26] Thus, it was improper for the
Court of Appeals to reverse the RTCs findings simply because the sales receipt
evidencing NBI Agent Samianos purchase of counterfeit goods is not in his name.
For purposes of determining probable cause, the sales receipt is not the only proof
that the sale of petitioners software occurred. During the search warrant application
proceedings, NBI Agent Samiano presented to the judge the computer unit that he
purchased from Maxicorp, in which computer unit Maxicorp had pre-installed petitioners
software.[27] Sacriz, who was present when NBI Agent Samiano purchased the
computer unit, affirmed that NBI Agent Samiano purchased the computer
unit.[28] Pante, the computer technician, demonstrated to the judge the presence of
petitioners software on the same computer unit.[29] There was a comparison between
petitioners genuine software and Maxicorps software pre-installed in the computer unit
that NBI Agent Sambiano purchased.[30] Even if we disregard the sales receipt issued
in the name of Joel Diaz, which petitioners explained was the alias NBI Agent Samiano
used in the operation, there still remains more than sufficient evidence to establish
probable cause for the issuance of the search warrants.
This also applies to the Court of Appeals ruling on Sacrizs testimony. The fact that
Sacriz did not actually purchase counterfeit software from Maxicorp does not eliminate
the existence of probable cause. Copyright infringement and unfair competition are not

limited to the act of selling counterfeit goods. They cover a whole range of acts, from
copying, assembling, packaging to marketing, including the mere offering for sale of
the counterfeit goods. The clear and firm testimonies of petitioners witnesses on such
other acts stand untarnished. The Constitution and the Rules of Court only require that
the judge examine personally and thoroughly the applicant for the warrant and his
witnesses to determine probable cause. The RTC complied adequately with the
requirement of the Constitution and the Rules of Court.
Probable cause is dependent largely on the opinion and findings of the judge who
conducted the examination and who had the opportunity to question the applicant and
his witnesses.[31] For this reason, the findings of the judge deserve great weight. The
reviewing court should overturn such findings only upon proof that the judge
disregarded the facts before him or ignored the clear dictates of reason.[32] Nothing in
the records of the preliminary examination proceedings reveal any impropriety on the
part of the judge in this case. As one can readily see, here the judge examined
thoroughly the applicant and his witnesses. To demand a higher degree of proof is
unnecessary and untimely. The prosecution would be placed in a compromising
situation if it were required to present all its evidence at such preliminary stage. Proof
beyond reasonable doubt is best left for trial.
On Whether the Search Warrants are in the Nature of General Warrants
A search warrant must state particularly the place to be searched and the objects
to be seized. The evident purpose for this requirement is to limit the articles to be
seized only to those particularly described in the search warrant. This is a protection
against potential abuse. It is necessary to leave the officers of the law with no discretion
regarding what articles they shall seize, to the end that no unreasonable searches and
seizures be committed.[33]
In addition, under Section 4, Rule 126 of the Rules of Criminal Procedure, a search
warrant shall issue in connection with one specific offense. The articles described must
bear a direct relation to the offense for which the warrant is issued. [34] Thus, this rule
requires that the warrant must state that the articles subject of the search and seizure
are used or intended for use in the commission of a specific offense.
Maxicorp argues that the warrants issued against it are too broad in scope and
lack the specificity required with respect to the objects to be seized. After examining
the wording of the warrants issued, the Court of Appeals ruled in favor of Maxicorp and
reversed the RTCs Order thus:
Under the foregoing language, almost any item in the petitioners store can be seized
on the ground that it is used or intended to be used in the illegal or unauthorized
copying or reproduction of the private respondents software and their manuals.[35]
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 41
The Court of Appeals based its reversal on its perceived infirmity of paragraph (e) of
the search warrants the RTC issued. The appellate court found that similarly worded
warrants, all of which noticeably employ the phrase used or intended to be used, were
previously held void by this Court.[36] The disputed text of the search warrants in this
case states:
a) Complete or partially complete reproductions or copies of Microsoft software
bearing the Microsoft copyrights and/or trademarks owned by
MICROSOFT CORPORATION contained in CD-ROMs, diskettes and hard
disks;
b) Complete or partially complete reproductions or copies of Microsoft
instruction manuals and/or literature bearing the Microsoft copyrights
and/or trademarks owned by MICROSOFT CORPORATION;
c) Sundry items such as labels, boxes, prints, packages, wrappers, receptacles,
advertisements and other paraphernalia bearing the copyrights and/or
trademarks owned by MICROSOFT CORPORATION;
d) Sales invoices, delivery receipts, official receipts, ledgers, journals, purchase
orders and all other books of accounts and documents used in the
recording of the reproduction and/or assembly, distribution and sales,
and other transactions in connection with fake or counterfeit products
bearing the Microsoft copyrights and/or trademarks owned by
MICROSOFT CORPORATION;
e) Computer hardware, including central processing units including
hard disks, CD-ROM drives, keyboards, monitor screens and
diskettes, photocopying machines and other equipment or
paraphernalia used or intended to be used in the illegal and
unauthorized copying or reproduction of Microsoft software and
their manuals, or which contain, display or otherwise exhibit,
without the authority of MICROSOFT CORPORATION, any and all
Microsoft trademarks and copyrights; and
f) Documents relating to any passwords or protocols in order to access all
computer hard drives, data bases and other information storage devices
containing unauthorized Microsoft software.[37] (Emphasis supplied)
It is only required that a search warrant be specific as far as the circumstances
will ordinarily allow.[38] The description of the property to be seized need not be
technically accurate or precise. The nature of the description should vary according to
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 42

whether the identity of the property or its character is a matter of concern.[39] Measured searches and seizure. Thus, all items seized under paragraph (c) of the search
against this standard we find that paragraph (e) is not a general warrant. The articles warrants, not falling under paragraphs a, b, d, e or f, should be returned to Maxicorp.
to be seized were not only sufficiently identified physically, they were also specifically
identified by stating their relation to the offense charged. Paragraph (e) specifically WHEREFORE, we PARTIALLY GRANT the instant petition. The Decision of the
refers to those articles used or intended for use in the illegal and unauthorized copying Court of Appeals dated 23 December 1998 and its Resolution dated 29 November 1999
of petitioners software. This language meets the test of specificity.[40] in CA-G.R. SP No. 44777 are REVERSED and SET ASIDE except with respect to articles
seized under paragraph (c) of Search Warrants Nos. 96-451, 96-452, 96-453 and 96-
The cases cited by the Court of Appeals are inapplicable. In those cases, the Court 454. All articles seized under paragraph (c) of the search warrants, not falling under
found the warrants too broad because of particular circumstances, not because of the paragraphs a, b, d, e or f, are ordered returned to Maxicorp, Inc. immediately.
mere use of the phrase used or intended to be used. In Columbia Pictures, Inc. v.
Flores, the warrants ordering the seizure of television sets, video cassette recorders, SO ORDERED.
rewinders and tape cleaners x x x were found too broad since the defendant there was Davide, Jr., C.J., (Chairman), Ynares-Santiago, and Azcuna, JJ., concur.
a licensed distributor of video tapes.[41] The mere presence of counterfeit video tapes Quisumbing, J., no part, close relation to counsel.
in the defendants store does not mean that the machines were used to produce the
counterfeit tapes. The situation in this case is different. Maxicorp is not a licensed
distributor of petitioners. In Bache & Co. (Phil.), Inc., et al. v. Judge Ruiz, et al.,
the Court voided the warrants because they authorized the seizure of records pertaining
to all business transactions of the defendant.[42] And in 20th Century Fox Film Corp.
v. Court of Appeals, the Court quashed the warrant because it merely gave a list of
articles to be seized, aggravated by the fact that such appliances are generally
connected with the legitimate business of renting out betamax tapes.[43]

However, we find paragraph (c) of the search warrants lacking in particularity.

Paragraph (c) states:

c) Sundry items such as labels, boxes, prints, packages, wrappers, receptacles,

advertisements and other paraphernalia bearing the copyrights and/or
trademarks owned by MICROSOFT CORPORATION;

The scope of this description is all-embracing since it covers property used for personal
or other purposes not related to copyright infringement or unfair competition.
Moreover, the description covers property that Maxicorp may have bought legitimately
from Microsoft or its licensed distributors. Paragraph (c) simply calls for the seizure of
all items bearing the Microsoft logo, whether legitimately possessed or not. Neither
does it limit the seizure to products used in copyright infringement or unfair
competition.

Still, no provision of law exists which requires that a warrant, partially defective
in specifying some items sought to be seized yet particular with respect to the other
items, should be nullified as a whole. A partially defective warrant remains valid as to
the items specifically described in the warrant.[44] A search warrant is severable, the
items not sufficiently described may be cut off without destroying the whole
warrant.[45] The exclusionary rule found in Section 3(2) of Article III of the Constitution
renders inadmissible in any proceeding all evidence obtained through unreasonable

EN BANC
[G.R. Nos. 140546-47. January 20, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MODESTO TEE a.k.a.
ESTOY TEE, accused-appellant.
DECISION
QUISUMBING, J.:
For automatic review is the consolidated judgment[1] of the Regional Trial Court
(RTC) of Baguio City, Branch 6, dated September 17, 1999, in Criminal Cases Nos.
15800-R and 15822-R, involving violations of Section 8, Article II, of the Dangerous
Drugs Law.[2] Since appellant was acquitted in the second case, we focus on the first
case, where appellant has been found guilty and sentenced to death and fined one
million pesos.
The decretal portion of the trial courts decision reads:
WHEREFORE, judgment is hereby rendered, as follows:
1. In Crim. Case No. 15800-R, the Court finds the accused Modesto Tee guilty beyond
reasonable doubt of the offense of illegal possession of marijuana of about 591.81
kilos in violation of Section 8, Article II of RA 6425 as amended by Section 13 of RA
7659 as charged in the Information, seized by virtue of a search warrant and
sentences him to the supreme penalty of death and to pay a fine of 1 million pesos
without subsidiary imprisonment in case of insolvency.
The 591.81 kilos of marijuana contained in 26 boxes and one yellow sack (Exhibits U-
1 to U-27) are ordered forfeited in favor of the State to be destroyed immediately in
accordance with law.
2. In Crim. Case No. 15822-R, the Court finds that the prosecution failed to prove the
guilt of accused Modesto Tee beyond reasonable doubt and hereby acquits him of the
charge of illegal possession of marijuana in violation of Section 8, Art. 2 of RA 6425
as amended by Section 13 of RA 7659 as charged in the Information since the
marijuana confiscated have to be excluded in evidence as a product of unreasonable
search and seizure.
The 336.93 kilos of marijuana contained in 13 sacks and four boxes (Exh. B to S and
their component parts) although excluded in evidence as the product(s) of
unreasonable search and seizure, are nevertheless ordered forfeited in favor of the
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 43
State to be destroyed immediately in accordance with law considering that they are
prohibited articles.
The City Jail Warden is, therefore, directed to release the accused Modesto Tee in
connection with Crim. Case No. 15822-R unless held on other charges.
COST(S) DE OFFICIO.
SO ORDERED.[3]
Appellant is a Chinese national in his forties, a businessman, and a resident of
Baguio City. A raid conducted by operatives of the National Bureau of Investigation
(NBI) and Philippine National Police Narcotics Command (PNP NARCOM) at premises
allegedly leased by appellant and at his residence yielded huge quantities of marijuana.
On July 20, 1998, appellant moved to quash the search warrant on the ground
that it was too general and that the NBI had not complied with the requirements for
the issuance of a valid search warrant. The pendency of said motion, however, did not
stop the filing of the appropriate charges against appellant. In an information dated
July 24, 1998, docketed as Criminal Case No. 15800-R, the City Prosecutor of Baguio
City charged Modesto Tee, alias Estoy Tee, with illegal possession of marijuana,
allegedly committed as follows:
That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully, feloniously and knowingly have in his possession the
following, to wit:
1. Ninety-two (92) bricks of dried flowering tops separately contained in four (4)
boxes; and
2. One hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-three
(23) bags of dried flowering tops separately contained in thirteen (13) sacks, with a
total weight of 336.93 kilograms; and
3 Six hundred two (602) bricks of dried flowering tops separately contained in
twenty-six (boxes) and a yellow sack, weighing 591.81 kilograms,
all having a grand total weight of 928.74 kilograms, a prohibited drug, without the
authority of law to possess, in violation of the above-cited provision of law.

CONTRARY TO LAW.[4]
On August 7, 1998, the prosecution moved to amend the foregoing charge sheet
considering that subject marijuana were seized in two (2) different places.[5]
As a result, the information in Criminal Case No. 15800-R was amended to read
as follows:
That on or about the 1st day of July, 1998, in the City of Baguio, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully, feloniously and knowingly have in his possession the
following, to wit:
- Six hundred two (602) bricks of dried flowering tops separately contained in twenty-
six (26) boxes and a yellow sack, weighing 591.81 kilograms
a prohibited drug, without the authority of law to possess, in violation of the above-
cited provision of law.
CONTRARY TO LAW.[6]
A separate amended information docketed as Criminal Case No. 15822-R was
likewise filed, the accusatory portion of which reads:
That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully, feloniously and knowingly have in his possession the
following, to wit:
1. Ninety-two (92) bricks of dried flowering tops separately contained in four
(4) boxes; and
2. hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-
three (23) bags of dried flowering tops separately contained in thirteen
(13) sacks, with a total weight of 336.93 kilograms;
a prohibited drug, without the authority of law to possess, in violation of the above-
cited provision of law.
CONTRARY TO LAW.[7]
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 44
On September 4, 1998, the trial court denied the motion to quash the search
warrant and ordered appellants arraignment.
When arraigned in Criminal Cases Nos. 15800-R and 15822-R, appellant refused
to enter a plea. The trial court entered a plea of not guilty for him.[8] Trial on the merits
then ensued.
The facts of this case, as gleaned from the records, are as follows:
Prosecution witness Danilo Abratique, a Baguio-based taxi driver, and the
appellant Modesto Tee are well acquainted with each other, since Abratiques wife is
the sister of Tees sister-in-law.[9]
Sometime in late June 1998, appellant asked Abratique to find him a place for the
storage of smuggled cigarettes.[10] Abratique brought appellant to his friend, Albert
Ballesteros, who had a house for rent in Bakakeng, Baguio City. After negotiating the
terms and conditions, Ballesteros agreed to rent out his place to appellant. Appellant
then brought several boxes of purported blue seal cigarettes to the leased premises.
Shortly thereafter, however, Ballesteros learned that the boxes stored in his place
were not blue seal cigarettes but marijuana. Fearful of being involved, Ballesteros
informed Abratique. Both later prevailed upon appellant to remove them from the
premises.[11]
Appellant then hired Abratiques taxi and transported the boxes of cannabis from
the Ballesteros place to appellants residence at Km. 6, Dontogan, Green Valley, Sto.
Tomas, Baguio City.[12]
On June 30, 1998, appellant hired Abratique to drive him to La Trinidad, Benguet
on the pretext of buying and transporting strawberries. Upon reaching La Trinidad,
however, appellant directed Abratique to proceed to Sablan, Benguet, where appellant
proceeded to load several sacks of marijuana in Abratiques taxi. He then asked
Abratique to find him a place where he could store the contraband.[13]
Abratique brought appellant to his grandmothers house at No. 27 Dr. Cario St.,
QM Subdivision, Baguio City, which was being managed by Abratiques aunt, Nazarea
Abreau. Nazarea agreed to rent a room to appellant. Abratique and appellant unloaded
and stored there the sacks of marijuana brought from Sablan.[14] Abratique was aware
that they were transporting marijuana as some of the articles in the sacks became
exposed in the process of loading.[15]
Eventually, Abratique and Nazarea were bothered by the nature of the goods
stored in the rented room. She confided to her daughter, Alice Abreau Fianza, about
their predicament. As Alice Fianzas brother-in-law, Edwin Fianza, was an NBI agent,
Alice and Abratique phoned him and disclosed what had transpired.[16]

On the morning of July 1, 1998, alerted by information that appellant would
retrieve the sacks of prohibited drugs that day, Edwin Fianza and other NBI operatives
conducted a stake out at No. 27, Dr. Cario St. While the NBI agents were conducting
their surveillance, they noticed that several PNP NARCOM personnel were also watching
the place.[17] The NBI then learned that the PNP NARCOM had received a tip from one
of their informers regarding the presence of a huge amount of drugs in that place. The
NBI and PNP NARCOM agreed to have a joint operation.
As the day wore on and appellant did not show up, the NBI agents became
apprehensive that the whole operation could be jeopardized. They sought the
permission of Nazarea Abreau to enter the room rented by appellant. She acceded and
allowed them entry. The NBI team then searched the rented premises and found four
(4) boxes and thirteen (13) sacks of marijuana, totaling 336.93 kilograms.[18]
Later that evening, NBI Special Agent Darwin Lising, with Abratique as his witness,
applied for a search warrant from RTC Judge Antonio Reyes at his residence. [19] Judge
Reyes ordered the NBI agents to fetch the Branch Clerk of Court, Atty. Delilah Muoz,
so the proceedings could be properly recorded. After Atty. Muoz arrived, Judge Reyes
questioned Lising and Abratique. Thereafter, the judge issued a warrant directing the
NBI to search appellants residence at Km. 6, Dontogan, Green Valley, Baguio City for
marijuana.[20]
The NBI operatives, with some PNP NARCOM personnel in tow, proceeded to
appellants residence where they served the warrant upon appellant himself. [21] The
search was witnessed by appellant, members of his family, barangay officials, and
members of the media.[22] Photographs were taken during the actual search.[23] The
law enforcers found 26 boxes and a sack of dried marijuana[24] in the water tank,
garage, and storeroom of appellants residence.[25] The total weight of the haul was
591.81 kilograms.[26]Appellant was arrested for illegal possession of marijuana.
The seized items were then submitted to the NBI laboratory for testing. NBI
Forensic Chemist Maria Carina Madrigal conducted the tests. Detailed microscopic and
chromatographic examinations of the items taken from appellants rented room at No.
27, Dr. Cario St., as well as those from his residence at Green Valley, showed these to
be marijuana.[27]
In his defense, appellant contended that the physical evidence of the prosecution
was illegally obtained, being the products of an unlawful search, hence inadmissible.
Appellant insisted that the search warrant was too general and the process by which
said warrant was acquired did not satisfy the constitutional requirements for the
issuance of a valid search warrant. Moreover, Abratiques testimony, which was heavily
relied upon by the judge who issued the warrant, was hearsay.
In Criminal Case No. 15822-R, the trial court agreed with appellant that the taking
of the 336.93 kilograms of marijuana was the result of an illegal search and hence,
inadmissible in evidence against appellant. Appellant was accordingly acquitted of the
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 45
charge. However, the trial court found that the prosecutions evidence was more than
ample to prove appellants guilt in Criminal Case No. 15800-R and as earlier stated, duly
convicted him of illegal possession of marijuana and sentenced him to death.
Hence, this automatic review.
Before us, appellant submits that the trial court erred in:
1UPHOLDING THE LEGALITY OF THE SEARCH WARRANT DESPITE LACK OF
COMPLIANCE OF (sic) SEVERAL REQUIREMENTS BEFORE IT SHOULD
HAVE BEEN ISSUED AND IT BEING A GENERAL WARRANT;
2.GRAVELY ABUSED ITS DISCRETION IN REOPENING THE CASE AND
ALLOWING ABRITIQUE TO TESTIFY AGAINST APPELLANT;
3GIVING CREDENCE TO THE TESTIMONY OF ABRITIQUE;
4. NOT ACQUITTING THE ACCUSED IN BOTH CASES AND SENTENCING HIM
TO DEATH DESPITE THE ILLEGALLY OBTAINED EVIDENCE AS FOUND
IN THE FIRST CASE.[28]
We find that the pertinent issues for resolution concern the following: (1) the
validity of the search conducted at the appellants residence; (2) the alleged prejudice
caused by the reopening of the case and absences of the prosecution witness, on
appellants right to speedy trial; (3) the sufficiency of the prosecutions evidence to
sustain a finding of guilt with moral certainty; and (4) the propriety of the penalty
imposed.
1. On the Validity of the Search Warrant; Its Obtention and Execution
Appellant initially contends that the warrant, which directed the peace officers to
search for and seize an undetermined amount of marijuana, was too general and
hence, void for vagueness. He insists that Abratique could already estimate the amount
of marijuana supposed to be found at appellants residence since Abratique helped to
transport the same.
For the appellee, the Office of the Solicitor General (OSG) counters that a search
warrant is issued if a judge finds probable cause that the place to be searched contains
prohibited drugs, and not that he believes the place contains a specific amount of it.
The OSG points out that, as the trial court observed, it is impossible beforehand to
determine the exact amount of prohibited drugs that a person has on himself.
Appellant avers that the phrase an undetermined amount of marijuana as used in
the search warrant fails to satisfy the requirement of Article III, Section 2 [29] of the

Constitution that the things to be seized must be particularly described. Appellants
contention, in our view, has no leg to stand on. The constitutional requirement of
reasonable particularity of description of the things to be seized is primarily meant to
enable the law enforcers serving the warrant to: (1) readily identify the properties to
be seized and thus prevent them from seizing the wrong items; [30] and (2) leave said
peace officers with no discretion regarding the articles to be seized and thus prevent
unreasonable searches and seizures.[31] What the Constitution seeks to avoid are
search warrants of broad or general characterization or sweeping descriptions, which
will authorize police officers to undertake a fishing expedition to seize and confiscate
any and all kinds of evidence or articles relating to an offense. [32] However, it is not
required that technical precision of description be required, [33] particularly, where by
the nature of the goods to be seized, their description must be rather general, since
the requirement of a technical description would mean that no warrant could issue.[34]
Thus, it has been held that term narcotics paraphernalia is not so wanting in
particularity as to create a general warrant.[35] Nor is the description any and all
narcotics and all implements, paraphernalia, articles, papers and records pertaining to
the use, possession, or sale of narcotics or dangerous drugs so broad as to be
unconstitutional.[36] A search warrant commanding peace officers to seize a quantity of
loose heroin has been held sufficiently particular.[37]
Tested against the foregoing precedents, the description an undetermined
amount of marijuana must be held to satisfy the requirement for particularity in a
search warrant. Noteworthy, what is to be seized in the instant case is property of a
specified character, i.e., marijuana, an illicit drug. By reason of its character and the
circumstances under which it would be found, said article is illegal. A further description
would be unnecessary and ordinarily impossible, except as to such character, the place,
and the circumstances.[38] Thus, this Court has held that the description illegally in
possession of undetermined quantity/amount of dried marijuana leaves and
Methamphetamine Hydrochloride (Shabu) and sets of paraphernalia particularizes the
things to be seized.[39]
The search warrant in the present case, given its nearly similar wording,
undetermined amount of marijuana or Indian hemp, in our view, has satisfied the
Constitutions requirements on particularity of description. The description therein is:
(1) as specific as the circumstances will ordinarily allow; (2) expresses a conclusion of
fact not of law by which the peace officers may be guided in making the search and
seizure; and (3) limits the things to be seized to those which bear direct relation to the
offense for which the warrant is being issued.[40] Said warrant imposes a meaningful
restriction upon the objects to be seized by the officers serving the warrant. Thus, it
prevents exploratory searches, which might be violative of the Bill of Rights.
Appellant next assails the warrant for merely stating that he should be searched,
as he could be guilty of violation of Republic Act No. 6425. Appellant claims that this is
a sweeping statement as said statute lists a number of offenses with respect to illegal
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 46
drugs. Hence, he contends, said warrant is a general warrant and is thus
unconstitutional.
For the appellee, the OSG points out that the warrant clearly states that appellant
has in his possession and control marijuana or Indian hemp, in violation of Section 8
of Republic Act No. 6425.
We have carefully scrutinized Search Warrant No. 415 (7-98),[41] and we find that
it is captioned For Violation of R.A. 6425, as amended.[42] It is clearly stated in the body
of the warrant that there is probable cause to believe that a case for violation of R.A.
6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as further
amended by R.A. 7659 has been and is being committed by one MODESTO TEE a.k.a.
ESTOY TEE of Km. 6, Dontogan Bgy., Green Valley, Sto. Tomas, Baguio City by having
in his possession and control an UNDETERMINED AMOUNT OF MARIJUANA or INDIAN
HEMP in violation of the aforementioned law.[43] In an earlier case, we held that though
the specific section of the Dangerous Drugs Law is not pinpointed, there is no question
at all of the specific offense alleged to have been committed as a basis for the finding
of probable cause.[44] Appellants averment is, therefore, baseless. Search Warrant No.
415 (7-98) appears clearly issued for one offense, namely, illegal possession of
marijuana.
Appellant next faults the Judge who issued Search Warrant No. 415 (7-98) for his
failure to exhaustively examine the applicant and his witness. Appellant points out that
said magistrate should not have swallowed all of Abratiques statements hook, line, and
sinker. He points out that since Abratique consented to assist in the transport of the
marijuana, the examining judge should have elicited from Abratique his participation in
the crime and his motive for squealing on appellant. Appellant further points out that
the evidence of the NBI operative who applied for the warrant is merely hearsay and
should not have been given credit at all by Judge Reyes.
Again, the lack of factual basis for appellants contention is apparent. The OSG
points out that Abratique personally assisted appellant in loading and transporting the
marijuana to the latters house and to appellants rented room at No. 27 Dr. Cario St.,
Baguio City. Definitely, this indicates personal knowledge on Abratiques part. Law
enforcers cannot themselves be eyewitnesses to every crime; they are allowed to
present witnesses before an examining judge. In this case, witness Abratique
personally saw and handled the marijuana. Hence, the NBI did not rely on hearsay
information in applying for a search warrant but on personal knowledge of the witness,
Abratique.
Before a valid search warrant is issued, both the Constitution[45] and the 2000
Revised Rules of Criminal Procedure[46] require that the judge must personally examine
the complainant and his witnesses under oath or affirmation. The personal examination
must not be merely routinary or pro forma, but must be probing and exhaustive.[47] In
the instant case, it is not disputed that Judge Antonio Reyes personally examined NBI
Special Investigator III Darwin A. Lising, the applicant for the search warrant as well

as his witness, Danilo G. Abratique. Notes of the proceedings were taken by Atty.
Delilah Muoz, Clerk of Court, RTC of Baguio City, Branch 61, whom Judge Reyes had
ordered to be summoned. In the letter of transmittal of the Clerk of Court of the RTC
of Baguio City, Branch 61 to Branch 6 of said court, mention is made of notes at pages
7-11.[48] We have thoroughly perused the records of Search Warrant No. 415 (7-98)
and nowhere find said notes. The depositions of Lising and Abratique were not attached
to Search Warrant No. 415 (7-98) as required by the Rules of Court. We must stress,
however, that the purpose of the Rules in requiring depositions to be taken is to satisfy
the examining magistrate as to the existence of probable cause. [49] The Bill of Rights
does not make it an imperative necessity that depositions be attached to the records
of an application for a search warrant. Hence, said omission is not necessarily fatal, for
as long as there is evidence on the record showing what testimony was presented.[50] In
the testimony of witness Abratique, Judge Reyes required Abratique to confirm the
contents of his affidavit;[51] there were instances when Judge Reyes questioned him
extensively.[52] It is presumed that a judicial function has been regularly
performed,[53] absent a showing to the contrary. A magistrates determination of
probable cause for the issuance of a search warrant is paid great deference by a
reviewing court,[54] as long as there was substantial basis for that
determination.[55] Substantial basis means that the questions of the examining judge
brought out such facts and circumstances as would lead a reasonably discreet and
prudent man to believe that an offense has been committed, and the objects in
connection with the offense sought to be seized are in the place sought to be searched.
On record, appellant never raised the want of adequate depositions to support
Warrant No. 415 (7-98) in his motion to quash before the trial court. Instead, his motion
contained vague generalities that Judge Reyes failed to ask searching questions of the
applicant and his witness. Belatedly, however, he now claims that Judge Reyes
perfunctorily examined said witness.[56] But it is settled that when a motion to quash a
warrant is filed, all grounds and objections then available, existent or known, should
be raised in the original or subsequent proceedings for the quashal of the warrant,
otherwise they are deemed waived.[57]
In this case, NBI Special Investigator Lisings knowledge of the illicit drugs stored
in appellants house was indeed hearsay. But he had a witness, Danilo Abratique, who
had personal knowledge about said drugs and their particular location. Abratiques
statements to the NBI and to Judge Reyes contained credible and reliable details. As
the NBIs witness, Abratique was a person on whose statements Judge Reyes could
rely. His detailed description of appellants activities with respect to the seized drugs
was substantial.In relying on witness Abratique, Judge Reyes was not depending on
casual rumor circulating in the underworld, but on personal knowledge Abratique
possessed.
In Alvarez vs. Court of First Instance of Tayabas, 64 Phil. 33, 44 (1937), we held
that:
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 47
The true test of sufficiency of a deposition or affidavit to warrant issuance of a search
warrant is whether it has been drawn in such a manner that perjury could be charged
thereon and affiant be held liable for damages caused.[58]
Appellant argues that the address indicated in the search warrant did not clearly
indicate the place to be searched. The OSG points out that the address stated in the
warrant is as specific as can be. The NBI even submitted a detailed sketch of the
premises prepared by Abratique, thus ensuring that there would be no mistake.
A description of the place to be searched is sufficient if the officer serving the
warrant can, with reasonable effort, ascertain and identify the place intended[59] and
distinguish it from other places in the community.[60] A designation or description that
points out the place to be searched to the exclusion of all others, and on inquiry
unerringly leads the peace officers to it, satisfies the constitutional requirement of
definiteness.
Appellant finally harps on the use of unnecessary force during the execution of
the search warrant. Appellant fails, however, to point to any evidentiary matter in the
record to support his contention. Defense witness Cipriana Tee, appellants mother,
testified on the search conducted but she said nothing that indicated the use of force
on the part of the NBI operatives who conducted the search and seizure. [61] What the
record discloses is that the warrant was served on appellant,[62] who was given time to
read it,[63] and the search was witnessed by the barangay officials, police operatives,
members of the media, and appellants kith and kin.[64] No breakage or other damage
to the place searched is shown. No injuries sustained by appellant, or any witness,
appears on record. The execution of the warrant, in our view, has been orderly and
peaceably performed.
2. On The Alleged Violation of Appellants Substantive Rights
Appellant insists that the prosecutions unjustified and willful delay in presenting
witness Abratique unduly delayed the resolution of his case. He points out that a total
of eight (8) scheduled hearings had to be reset due to the failure or willful refusal of
Abratique to testify against him. Appellant insists that said lapse on the prosecutions
part violated Supreme Court Circular No. 38-98.[65] Appellant now alleges that the
prosecution deliberately resorted to delaying the case to cause him untold miseries.
For the appellee, the OSG points out that the two-month delay in the trial is not
such a great length of time as to amount to a violation of appellants right to a speedy
trial. A trial is always subject to reasonable delays or postponements, but absent any
showing that these delays are capricious and oppressive, the State should not be
deprived of a reasonable opportunity to prosecute the criminal action.

On record, the trial court found that prosecution witness Danilo G. Abratique failed
to appear in no less than eighteen (18) hearings, namely those set for February 1, 2,
3, 4, 8, 9, 10, and 24; March 9, 15, 22, and 23; April 6, 7, 8, 16, and 19, all in
1999.[66] No less than four (4) warrants of arrest were issued against him to compel
him to testify.[67] The NBI agent who supposedly had him in custody was found guilty
of contempt of court for failing to produce Abratique at said hearings and
sanctioned.[68] The prosecution had to write the NBI Regional Director in Baguio City
and NBI Director in Manila regarding the failure of the Bureaus agents to bring
Abratique to court.[69] Nothing on record discloses the reason for Abratiques aforecited
absences. On the scheduled hearing of June 7, 1999, he was again absent thus causing
the trial court to again order his arrest for the fifthtime.[70] He also failed to show up at
the hearing of June 8, 1999.[71]
Appellant now stresses that the failure of Abratique to appear and testify on
twenty (20) hearing dates violated appellants constitutional[72] and statutory right to a
speedy trial.
A speedy trial means a trial conducted according to the law of criminal procedure
and the rules and regulations, free from vexatious, capricious, and oppressive
delays.[73] In Conde v. Rivera and Unson, 45 Phil. 650, 652 (1924), the Court held that
where a prosecuting officer, without good cause, secures postponements of the trial of
a defendant against his protest beyond a reasonable period of time, as in this instance,
for more than a year, the accused is entitled to relief by a proceeding in mandamus to
compel a dismissal of the information, or if he be restrained of his liberty,
by habeas corpus to obtain his freedom.
The concept of speedy trial is necessarily relative. A determination as to whether
the right has been violated involves the weighing of several factors such as the length
of the delay, the reason for the delay, the conduct of the prosecution and the accused,
and the efforts exerted by the defendant to assert his right, as well as the prejudice
and damage caused to the accused.[74]
The Speedy Trial Act of 1998, provides that the trial period for criminal cases in
general shall be one hundred eighty (180) days.[75] However, in determining the right
of an accused to speedy trial, courts should do more than a mathematical computation
of the number of postponements of the scheduled hearings of the case.[76] The right
to a speedy trial is deemed violated only when: (1) the proceedings are attended by
vexatious, capricious, and oppressive delays;[77] or (2) when unjustified postponements
are asked for and secured;[78] or (3) when without cause or justifiable motive a long
period of time is allowed to elapse without the party having his case tried.[79]
In the present case, although the absences of prosecution witness Abratique
totaled twenty (20) hearing days, there is no showing whatsoever that prosecution
capriciously caused Abratiques absences so as to vex or oppress appellant and deny
him his rights. On record, after Abratique repeatedly failed to show up for the taking
of his testimony, the prosecution went to the extent of praying that the trial court order
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 48
the arrest of Abratique to compel his attendance at trial. The prosecution likewise tried
to get the NBI to produce Abratique as the latter was in the Bureaus custody, but to
no avail. Eventually, the trial court ordered the prosecution to waive its right to present
Abratique and rest its case on the evidence already offered.[80]
Nor do we find a delay of twenty (20) hearing days to be an unreasonable length
of time. Delay of less than two months has been found, in fact, to be not an
unreasonably lengthy period of time.[81]
Moreover, nothing on record shows that appellant Modesto Tee objected to the
inability of the prosecution to produce its witness. Under the Rules, appellant could
have moved the trial court to require that witness Abratique post bail to ensure that
the latter would testify when required.[82] Appellant could have moved to have
Abratique found in contempt and duly sanctioned. Appellant did neither. It is a bit too
late in the day for appellant to invoke now his right to speedy trial.
No persuasive reason supports appellants claim that his constitutional right to
speedy trial was violated. One must take into account that a trial is always subject to
postponements and other causes of delay. But in the absence of a showing that delays
were unreasonable and capricious, the State should not be deprived of a reasonable
opportunity of prosecuting an accused.[83]
Appellant next contends that the trial court gravely abused its discretion, and
exhibited partiality, when it allowed the reopening of the case after the prosecution
had failed to present Abratique on several occasions and had been directed to rest its
case. Appellant stresses that the lower courts order to reopen the case to receive
Abratiques further testimony is an indication that the trial court favored the prosecution
and unduly prejudiced appellant.
On appellees behalf, the Solicitor General points out that the trial courts order
was in the interest of substantial justice and hence, cannot be termed as an abuse of
discretion. The OSG points out that the prosecution had not formally rested its case
and had yet to present its formal offer of evidence, hence, the submission of additional
testimony by the same witness cannot be prejudicial to the accused, it being but the
mere continuation of an uncompleted testimony. Furthermore, appellant did not
properly oppose the prosecutions motion to reopen the case.
At the time Criminal Cases Nos. 15800-R and 15822-R were being tried, the 1985
Rules of Criminal Procedure were in effect. There was no specific provision at that time
governing motions to reopen.[84] Nonetheless, long and established usage has led to
the recognition and acceptance of a motion to reopen. In view of the absence of a
specific procedural rule, the only controlling guideline governing a motion to reopen
was the paramount interests of justice. As a rule, the matter of reopening of a case for
reception of further evidence after either prosecution or defense has rested its case is
within the discretion of the trial court.[85] However, a concession to a reopening must

not prejudice the accused or deny him the opportunity to introduce counter
evidence.[86]
Strictly speaking, however, there was no reopening of the cases in the
proceedings below. A motion to reopen may properly be presented only after either or
both parties have formally offered and closed their evidence, but before
judgment.[87] In the instant case, the records show that on April 19, 1999, the
prosecution was directed to close its evidence and given 15 days to make its formal
offer of evidence.[88] This order apparently arose from the manifestation of the
prosecution on April 16, 1999 that should they fail to produce witness Abratique on the
next scheduled hearing the prosecution would rest its case.[89] On April 19, 1999, which
was the next scheduled hearing after April 16, 1999, Abratique was absent
notwithstanding notices, orders, and warrants of arrest. However, on April 27, 1999,
or before the prosecution had formally offered its evidence, Abratique was brought to
the trial court by the NBI. In its order of said date, the trial court pointed out that the
prosecution could move to reopen the case for the taking of Abratiques
testimony.[90] On May 7, 1999, the prosecution so moved, stressing that it had not yet
formally offered its evidence and that the substantial rights of the accused would not
be prejudiced inasmuch as the latter had yet to present his evidence. Appellant filed
no opposition to the motion. The trial court granted the motion six days later. Plainly,
there was nothing to reopen, as the prosecution had not formally rested its
case. Moreover, the taking of Abratiques testimony was not for the purpose
of presenting additional evidence, but more properly for the completion of his
unfinished testimony. In U.S. vs. Base,[91] we held that a trial court is not in error, if it
opts to reopen the proceedings of a case, even after both sides had rested and the
case submitted for decision, by the calling of additional witnesses or recalling of
witnesses so as to satisfy the judges mind with reference to particular facts involved in
the case. A judge cannot be faulted should he require a material witness to complete
his testimony, which is what happened in this case. It is but proper that the judges
mind be satisfied on any and all questions presented during the trial, in order to serve
the cause of justice.
Appellants claim that the trial courts concession to reopen the case unduly
prejudiced him is not well taken. We note that appellant had every opportunity to
present his evidence to support his case or to refute the prosecutions evidence point-
by-point, after the prosecution had rested its case. In short, appellant was never
deprived of his day in court. A day in court is the touchstone of the right to due process
in criminal justice.[92] Thus, we are unable to hold that a grave abuse of discretion was
committed by the trial court when it ordered the so-called reopening in order to
complete the testimony of a prosecution witness.
3. On the Sufficiency of the Prosecutions Evidence
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 49
In bidding for acquittal, appellant assails the credibility of Abratique as a
witness. Appellant insists that Abratiques testimony is profuse with lies, contrary to
human nature, hence incredible. According to appellant, Abratique was evasive from
the outset with respect to certain questions of the trial court. He adds that it appeared
the court entertained in particular the suspicion that witness Abratique had conspired
with appellant in committing the crime charged. Appellant questions Abratiques motive
in informing the NBI about his activities related to the marijuana taking, transfer, and
warehousing.
The OSG contends that Abratiques testimony, taken as a whole, is credible. It
points out that Abratique testified in a straightforward manner as to his knowledge of
the huge cache of prohibited drugs stashed by appellant in two different places. His
testimony, said the OSG, when fused with the physical evidence consisting of 591.81
kilograms of marijuana found by law enforcers at appellants residence, inexorably leads
to the inculpation of appellant.
It is the bounden duty of the courts to test the prosecution evidence rigorously,
so that no innocent person is made to suffer the unusually severe penalties meted out
for drug offenses.[93] Though we scrutinized minutely the testimony of Abratique, we
find no cogent reason to disbelieve him. From his account, Abratique might appear
aware treading the thin line between innocence and feeling guilty, with certain portions
of his story tending to be self-exculpatory. However, his whole testimony could not be
discredited. The established rule is that testimony of a witness may be believed in part
and disbelieved in other parts, depending on the corroborative evidence and the
probabilities and improbabilities of the case. But it is accepted, as a matter of common
sense, that if certain parts of a witness testimony are found true, his testimony cannot
be disregarded entirely.[94]
Abratique testified in open court that appellant rented the taxicab he was driving,
and he helped appellant transport huge amounts of marijuana to appellants rented
room at No. 27 Dr. Cario St., Baguio City and to appellants residence at Km. 6,
Dontogan, Green Valley, Sto. Tomas, Baguio City. He also declared on the witness
stand that out of fear of being involved, he decided to divulge his knowledge of
appellants possession of large caches of marijuana to the NBI. When the places referred
to by Abratique were searched by the authorities, marijuana in staggering quantities
was found and seized by the law enforcers. Stated plainly, the physical evidence in this
case corroborated Abratiques testimony on material points.
Appellant imputes questionable motives to Abratique in an effort to discredit him.
He demands that Abratique should likewise be prosecuted. However, by no means is
the possible guilt of Abratique a tenable defense for appellant. Nor would Abratiques
prosecution mean appellants absolution.
In a prosecution for illegal possession of dangerous drugs, the following facts
must be proven with moral certainty: (1) that the accused is in possession of the object

identified as prohibited or regulated drug; (2) that such possession is not authorized
by law; and (3) that the accused freely and consciously possessed the said drug.[95]
We find the foregoing elements proven in Criminal Case No. 15800-R beyond
reasonable doubt.
In said case, the testimony of Abratique and the recovery of 591.81 kilograms of
marijuana from appellants residence served to prove appellants possession of a
prohibited drug. Tests conducted by the NBI forensic chemist proved the seized articles
to be marijuana. These articles were seized pursuant to a valid search warrant and
hence, fully admissible in evidence.
In People v. de los Reyes, 239 SCRA 439 (1994), we held that the Dangerous
Drugs Act applies generally to all persons and proscribes the sale of dangerous drugs
by any person, and no person is authorized to sell such drugs. Said doctrine is equally
applicable with respect to possession of prohibited drugs. Republic Act No. 6425, which
penalizes the possession of prohibited drugs, applies equally to all persons in this
jurisdiction and no person is authorized to possess said articles, without authority of
law.
Anent the third element, we have held that to warrant conviction, possession of
illegal drugs must be with knowledge of the accused or that animus possidendi existed
together with the possession or control of said articles. [96] Nonetheless, this dictum
must be read in consonance with our ruling that possession of a prohibited drug per
se constitutes prima facie evidence of knowledge or animus possidendi sufficient to
convict an accused absent a satisfactory explanation of such possession. [97] In effect,
the onus probandi is shifted to accused to explain the absence of knowledge or animus
possidendi[98] in this situation.
Appellant Modesto Tee opted not to testify in his defense. Instead, he presented
his mother as his lone witness, who testified on matters totally irrelevant to his
case. We can only conclude that, failing to discharge the burden of the evidence on the
possession of prohibited drug, appellants guilt in Criminal Case No. 15800-R was
established beyond reasonable doubt.
3. On The Proper Penalty
Under Republic Act No. 6425 as amended by Republic Act No. 7659, the penalty
of reclusion perpetua to death and a fine ranging from five hundred thousand pesos
(P500,000.00) to ten million pesos (P10,000,000.00)[99] shall be imposed if the quantity
of marijuana involved in a conviction for possession of marijuana or Indian hemp shall
be 750 grams or more.[100]
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 50
In the present case, the quantity of marijuana involved has been shown by the
prosecution to be far in excess of 750 grams, as stressed by the trial court:
The volume is rather staggering. It is almost one whole house or one whole room. In
fact, when they were first brought to the court, it took hours to load them on the
truck and hours also to unload them prompting the court to direct that the boxes and
sack of marijuana be instead kept at the NBI office in Baguio. And the identification
of said marijuana during the trial was made in the NBI premises itself by the
witnesses since it was physically cumbersome and inconvenient to keep bringing
them to the court during every trial.[101]
In sentencing appellant to death, the trial court noted not only the huge quantity
of marijuana bales involved, but also the acts of accused of hiding them in different
placesand transferring them from place to place and making them appear as boxes of
cigarettes to avoid and evade apprehension and detection. They showed his being a
big supplier, said the trial court, [whose] criminal perversity and craft that deserve the
supreme penalty of death.[102]
We are unable to agree, however, with the penalty imposed by the trial court.
The legislature never intended that where the quantity involved exceeds those stated
in Section 20 of Republic Act No. 6425 the maximum penalty of death shall
automatically be imposed.[103] The statute prescribes two indivisible
penalties: reclusion perpetua and death. Hence, the penalty to be imposed must
conform with Article 63[104] of the Revised Penal Code. As already held, the death
penalty law, Republic Act No. 7659 did not amend Article 63 of the Revised Penal
Code.[105] The rules in Article 63 apply although the prohibited drugs involved are in
excess of the quantities provided for in Section 20 of Republic Act No. 6425.[106] Thus,
finding neither mitigating nor aggravating circumstances in the present case, appellants
possession of 591.81 kilograms of marijuana in Criminal Case No. 15800-R, does not
merit capital punishment but only the lesser penalty of reclusion perpetua.
The trial court imposed a fine on appellant in the sum of One Million Pesos
(P1,000,000.00), without subsidiary imprisonment in case of insolvency. The imposition
of a fine is mandatory in cases of conviction of possession of illegal drugs. This being
within the limits allowed by the law, the amount of the fine must be sustained. All these
sanctions might not remedy all the havoc wrought by prohibited drugs on the moral
fiber of our society, especially the youth.[107] But these penalties should warn peddlers
of prohibited drugs that they cannot ply their trade in our streets with impunity.
WHEREFORE, the decision of the Regional Trial Court of Baguio City, Branch 6,
in Criminal Case No. 15800-R, convicting appellant MODESTO TEE alias ESTOY TEE of
violation of Section 8 of Republic Act No. 6425, as amended, is AFFIRMED with the
MODIFICATION that appellant is hereby sentenced to suffer the penalty of reclusion
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 51

perpetua. The fine of ONE MILLION (P1,000,000.00) PESOS imposed on him is

sustained. Appellant is likewise directed to pay the costs of suit.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Ynares-Santiago,

Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo,
Sr., and Azcuna, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 89103 July 14, 1995
LEON TAMBASEN, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, 2ND ASSISTANT PROVINCIAL PROSECUTOR
GLORIA LASTIMOSA MARCOS and HON. CICERO U. QUERUBIN in his
capacity as Presiding Judge of the Regional Trial Court of Negros
Occidental, Branch 44, Bacolod City, respondents.
QUIASON, J.:
This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of
Court to set aside the Order dated July 20, 1989 of the Regional Trial Court (RTC),
Branch 44, Bacolod City in Civil Case No. 5331, which nullified the order earlier issued
by the Municipal Trial Circuit Court (MTCC) of the City of Bacolod. The MTCC Order
directed the return to petitioner of the amount of P14,000.00 which had been seized
by the police.
I payment of the allowance of the Armed City Partisan (ACP) and other "known NPA
On August 31, 1988, P/Sgt. Flumar Natuel applied for the issuance of a search
warrant from the MTCC, alleging that he received information that petitioner had in
his possession at his house at the North Capitol Road, Bacolod City, "M-16 Armalite
Rifles (Mags & Ammos), Hand Grenades, .45 Cal. Pistols (Mags & Ammos), Dynamite
Sticks and Subversive Documents," which articles were "used or intended to be used"
for illegal purposes (Rollo, p. 14). On the same day, the application was granted by
the MTCC with the issuance of Search Warrant No. 365, which allowed the seizure of
the items specified in the application (Rollo, p. 15).
At around 6:30 P.M. of September 9, 1988, a police team searched the house of
petitioner and seized the following articles:
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 52
(1) Two (2) envelopes containing cash in the total amount of
P14,000.00 (one envelope P10,000.00 and another P4,000.00);
(2) one (1) AR 280 handset w/antenae (sic) SN-00485;
(3) one (1) YAESU FM Transceiver FT 23R w/Antenae (sic);
(4) one (1) ALINCO ELH 230D Base;
(5) one (1) DC Regulator Supply 150 V. 13.8 V 12 AMP — 128 VAC;
(6) one (1) brown Academy Notebook & Assorted papers; and
(7) Four (4) handsets battery pack (Rollo, p. 16).
On September 19, 1988, the MTCC, acting on petitioner's urgent motion for the
return of the seized articles, issued an order directing Sgt. Natuel to make a return of
the search warrant. The following day, Sgt. Natuel submitted a report to the court.
Not considering the report as a "return in contemplation of law," petitioner filed
another motion praying that Sgt. Natuel be required to submit a complete and
verified inventory of the seized articles. Thereafter, Sgt. Natuel manifested that
although he was the applicant for the issuance of the search warrant, he was not
present when it was served.
On October 7, 1988, petitioner filed before the MTCC a motion praying that the
search and seizure be declared illegal and that the seized articles be returned to him.
In his answer to the motion, Lt. Col. Nicolas Torres, the station commander of the
Bacolod City Police, said that the amount of P14,000.00 had been earmarked for the
personalities" operating in the City of Bacolod.
On December 23, 1988, the MTCC issued an order directing Lt. Col. Torres to return
the money seized to petitioner. The court opined that in the implementation of the
search warrant, any seizure should be limited to the specific items covered thereby. It
said that the money could not be considered as "subversive documents"; it was
neither stolen nor the effects of gambling.
Three months later, the Solicitor General filed before the RTC, Branch 44, Bacolod
City a petition for certiorariseeking the annulment of the order of the MTCC (Civil
Case No. 5331). The petition alleged that assuming that the seizure of the money had
been invalid, petitioner was not entitled to its return citing the rulings in Alih v.

Castro, 151 SCRA 279 (1987) and Roan v. Gonzales, 145 SCRA 687 (1986). In those
cases, the Court held that pending the determination of the legality of the seizure of
the articles, they should remain in custodia legis. The petition also averred that a
criminal complaint for "any of the crimes against public order as provided under
Chapter I, Title III of the Revised Penal Code" had been filed with the City Fiscal (BC
I.S. No. 88-1239) and therefore, should the money be found as having been
earmarked for subversive activities, it should be confiscated pursuant to Article 45 of
the Revised Penal Code.
On July 20, 1989, RTC, Branch 44 issued an order granting the petition
for certiorari and directing the clerk of court to return to the MTCC the money
pending the resolution of the preliminary investigation being conducted by the city
prosecutor on the criminal complaint. In said order, the RTC held:
The Court observed that private respondent Leon Tambasen never
questioned the validity of the search warrant issued by respondent
Judge Demosthenes L. Magallanes. A perusal of private
respondent's "Motion to Declare Search and Seizure Illegal and to
Return Seized Properties" dated October 7, 1988 shows that
respondent Tambasen questions not the validity of the search
warrant issued by respondent Judge Demosthenes Magallanes, but
rather, the execution or implementation of the said warrant
principally on the ground that the articles seized are not allegedly
mentioned in the search warrant. However, the question thus
raised involves matters determinative of the admissibility in
evidence and the legality of the articles seized. These matters, it is
submitted, go beyond the immediate and limited jurisdiction of the
respondent Judge to inquire into the validity of the search warrant
he issued. These issues which relate exclusively or principally with
the intrinsic and substantive merits of the case or cases which are
being prepared against respondent Tambasen, and insofar as
Tambasen is concerned involve matters of defense which should be
properly raised at the criminal action or actions that may be filed
against respondent Leon Tambasen (see DOH v. Sy Chi Siong Co.,
Inc. et. al., G.R. No. 85289, Feb. 20, 1989). They cannot be
addressed to the respondent Judge because the respondent Judge
has no jurisdiction over the said issue. It is clear therefore that
respondent Judge has transcended the boundaries of his limited
jurisdiction and had in effect encroached upon the jurisdiction of
the appropriate trial court or courts that will try the criminal case or
cases against respondent Leon Tambasen, in issuing the assailed
order dated December 23, 1988. Ostensibly, the assailed order, if
not corrected, will unduly deprive the prosecution of its right to
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 53
present the evidence in question and, consequently, will improperly
oust the trial court, which will try the criminal case or cases against
private respondent Leon Tambasen of its original and exclusive
jurisdiction to rule on the admissibility and legality of the said
evidence. This order of respondent court is tantamount to a denial
of due process. It may be considered as a grave abuse of discretion
reviewable by certiorari (Esparagoza v. Tan, 94 Phil. 749) (Rollo,
pp.
47-48).
Consequently, petitioner filed the instant petition for certiorari and prohibition praying
for the issuance of a temporary restraining order commanding the city prosecutor to
cease and desist from continuing with the preliminary investigation in BC I.S. No. 88-
1239 and the RTC from taking any step with respect to Civil Case No. 5331. He also
prayed that Search Warrant No. 365 and the seizure of his personal effects be
declared illegal and that the Order of July 20, 1989 be reversed and annulled.
Petitioner contended that the search warrant covered three offenses: "(1) illegal
possession of armalite rifle and .45 cal. pistol; (2) illegal possession of hand grenade
and dynamite sticks; and (3) illegal possession of subversive documents" (Rollo, pp.
3-4) in violation of Section 3 of Rule 126 of the Revised Rules of Court. He assailed
the legality of the seizure of the articles which were not mentioned in the search
warrant. Moreover, since a complaint against him was filed only after his house had
been searched, petitioner claimed that the police were "on a fishing expedition."
During the pendency of the instant petition, a series of events related to the
questioned search and seizure transpired. At around 10:30 P.M. of March 1, 1990,
petitioner, who was then on board a passenger vehicle, was arrested by intelligence
operatives in Barangay Mandalagan, Bacolod City and forthwith detained. On the
strength of sworn statements of two rebel returnees, the police filed a complaint for
subversion against petitioner with the Office of the City Prosecutor. The following
day, the City Prosecutor filed an information for violation of the Anti-Subversion Law
against petitioner with RTC, Branch 42, Bacolod City (Criminal Case No. 8517). An
order for the arrest of petitioner was issued on March 2, 1990.
On March 6, 1990, petitioner filed a motion to quash the information in Criminal Case
No. 8517.
On March 15, 1990, RTC, Branch 42 granted petitioner's motion to quash and recalled
the warrant of arrest. The court also directed the City Prosecutor to resolve BC-I.S.
Case No. 88-1239.
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 54

On March 20, 1990, Assistant Provincial Prosecutor Gloria Lastimosa Marcos
manifested before RTC, Branch 42 that petitioner had been "dropped" from BC-I.S.
No. 88-1239. However, the City Prosecutor had, by then, filed a motion for the
reconsideration of said Resolution of March 15, 1990. The motion was denied.
Under this factual matrix, this Court is confronted with the question of whether RTC,
Branch 44 gravely abused its discretion in directing that the money seized from
petitioner's house, specifically the amount of P14,000.00, be retained and kept
in custodia legis.
On its face, the search warrant violates Section 3, Rule 126 of the Revised Rules of
Court, which prohibits the issuance of a search warrant for more than one specific
offense. The caption of Search Warrant No. 365 reflects the violation of two special
laws: P.D. No. 1866 for illegal possession of firearms, ammunition and explosives;
and R.A. No. 1700, the Anti-Subversion Law. Search Warrant No. 365 was therefore a
"scatter-shot warrant" and totally null and void (People v. Court of Appeals, 216 SCRA
101 [1992]).
Moreover, by their seizure of articles not described in the search warrant, the police
acted beyond the parameters of their authority under the search warrant. Section 2,
Article III of the 1987 Constitution requires that a search warrant should particularly
describe the things to be seized. "The evident purpose and intent of the requirement
is to limit the things to be seized to those, and only those, particularly described in
the search warrant — to leave the officers of the law with no discretion regarding
what articles they should seize, to the end that unreasonable searches and seizures
may not be made and that abuses may not be committed" (Corro v. Lising, 137 SCRA
541, 547 [1985]); Bache & Co. [Phil.] Inc. v. Ruiz, 37 SCRA 823 [1971]; Uy Kheytin v.
Villareal, 42 Phil. 886 [1920]). The same constitutional provision is also aimed at
preventing violations of security in person and property and unlawful invasions of the
sanctity of the home, and giving remedy against such usurpations when attempted
(People v. Damaso, 212 SCRA 547 [1992] citing Alvero v. Dizon, 76 Phil. 637, 646
[1946]).
(1991), "[z]eal in the pursuit of criminals cannot ennoble the use of arbitrary methods
that the Constitution itself abhors."
For the retention of the money seized by the police officers, approval of the court
which issued the search warrant is necessary (People v. Gesmundo, 219 SCRA 743
[1993]). In like manner, only the court which issued the search warrant may order
their release (Temple v. Dela Cruz, 60 SCRA 295 [1974]; Pagkalinawan v. Gomez, 21
SCRA 1275 [1967]).
Section 3(2) of Article III of the 1987 Constitution provides that evidence obtained in
violation of the right against unreasonable searches and seizures shall be inadmissible
for any purpose in any proceeding.
The information in Criminal Case No. 8517, with petitioner as the sole accused, was
ordered quashed by the trial court and the prosecution's motion for the
reconsideration of the quashal order had been denied. Even in BC I.S. Case No. 88-
1239, which was being investigated by Assistant Provincial Prosecutor Marcos,
petitioner was dropped as a respondent. Hence, there appears to be no criminal
prosecution which can justify the retention of the seized articles in custodia legis.
A subsequent legal development added another reason for the return to him of all the
seized articles: R.A. No. 1700, the Anti-Subversion Law, was repealed by R.A. No.
7636 and, therefore, the crimes defined in the repealed law no longer exist.
WHEREFORE, the petition is GRANTED and the People of the Philippines is ORDERED
to RETURN the money seized to petitioner.
SO ORDERED.
Padilla, Davide, Jr., Bellosillo, and Kapunan, JJ., concur.

Clearly then, the money which was not indicated in the search warrant, had been
illegally seized from petitioner. The fact that the members of the police team were
doing their task of pursuing subversives is not a valid excuse for the illegal seizure.
The presumption juris tantum of regularity in the performance of official duty cannot
by itself prevail against the constitutionally protected rights of an individual (People v.
Cruz, 231 SCRA 759 [1994]; People v. Veloso, 48 Phil. 169, 176 [1925]). Although
public welfare is the foundation of the power to search and seize, such power must
be exercised and the law enforced without transgressing the constitutional rights of
the citizens (People v. Damaso, supra, citing Rodriguez v. Evangelista, 65 Phil. 230,
235 [1937]). As the Court aptly puts it in Bagalihog v. Fernandez, 198 SCRA 614

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23051 October 20, 1925
THE PEOPLE OF THE PHILIPPINES ISLANDS, plaintiff-appellant,
vs.
JOSE MA. VELOSO, defendant-appellant.
Claro M. Recto for appellant.
Attorney-General Villa-Real for appellee.
MALCOLM, J.:
This is an appeal from a judgment of the Court of First Instance of Manila finding the
accused, Jose Ma. Veloso, guilty of the crime of resistance of the agents of the
authority, in violation of article 252 of the Penal Code, and sentencing him to four
months and one day imprisonment, arresto mayor, with the accessory penalties, to
pay a fine of P200, with the corresponding subsidiary imprisonment in case of
insolvency, and to pay the costs. The errors assigned by counsel for the accused as
appellant, go to the proposition that the resistance of the police was justifiable on
account of the illegality of the John Doe search warrant.
In May, 1923, the building located at No. 124 Calle Arzobispo, City of Manila, was
used by an organization known as the Parliamentary Club. Jose Ma. Veloso was at
that time a member of the House of Representative of the Philippine Legislature. He
was also the manager of the club.
The police of Manila had reliable information that the so-called Parliamentary Club
was nothing more than a gambling house. Indeed, on May 19, 1923, J. F. Townsend,
the chief of the gambling squad, had been to the club and verified this fact. As a
result, on May 25, 1923, Detective Andres Geronimo of the secret service of the City
of Manila, applied for, and obtained a search warrant from Judge Garduño of the
municipal court. Thus provided, the police attempted to raid the Parliamentary Club a
little after three in the afternoon of the date above- mentioned. They found the doors
to the premises closed and barred. Accordingly, one band of police including
policeman Rosacker, ascended a telephone pole, so as to enter a window of the
house. Other policemen, headed by Townsend, broke in the outer door.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 55
Once inside the Parliamentary Club, nearly fifty persons were apprehended by the
police. One of them was the defendant Veloso. Veloso asked Townsend what he
wanted, and the latter showed him the search warrant. Veloso read it and told
Townsend that he was Representative Veloso and not John Doe, and that the police
had no right to search the house. Townsend answered that Veloso was considered as
John Doe. As Veloso's pocket was bulging, as if it contained gambling utensils,
Townsend required Veloso to show him the evidence of the game. About five minutes
was consumed in conversation between the policemen and the accused the
policemen insisting on searching Veloso, and Veloso insisting in his refusal to submit
to the search.
At last the patience of the officers was exhausted. So policeman Rosacker took hold
of Veloso only to meet with his resistance. Veloso bit Rosacker in the right forearm,
and gave him a blow in another part of the body, which injured the policeman quite
severely. Through the combined efforts of Townsend and Rosacker, Veloso was
finally laid down on the floor, and long sheets of paper, of reglas de monte, cards,
cardboards, and chips were taken from his pockets.
All of the persons arrested were searched and then conducted to the patrol wagons.
Veloso again refused to obey and shouted offensive epithets against the police
department. It was necessary for the policemen to conduct him downstairs. At the
door, Veloso resisted so tenaciously that three policemen were needed to place him
in the patrol wagon. 1awph!l.net
In the municipal court of the City of Manila, the persons arrest in the raid were
accused of gambling. All of them were eventually acquitted in the Court of First
Instance for lack of proof, with the sole exception of Veloso, who was found guilty of
maintaining a gambling house. This case reached the appellate court where the
accused was finally sentenced to pay a fine of P500. (No. 22163. 1 )
The foregoing are the principal facts taken mainly from the findings of the trial judge,
the Honorable Vicente Nepomuceno. Counsel for the appellant makes no effort to
impugn these findings, except that he stresses certain points as more favorable to the
case of his client. The defense, as previously indicated, is planted squarely on the
contention that since the name of Veloso did not appear in the search warrant, but
instead the pseudonym John Doe was used, Veloso had a legal right to resist the
police by force. The nature of this defense makes it advisable to set forth further
facts, relating particularly to the search warrant, before passing to the law.
There are found in the record the application for search warrant, the affidavit for
search warrant, and the search warrant. The application reads:

UNITED STATES OF AMERICA
PHILIPPINE ISLANDS
IN THE MUNICIPAL COURT OF THE CITY OF MANILA
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff, vs. JOHN DOE,
Defendant.
APPLICATION FOR (G)
SEARCH WARRANT
Testimony taken before Hon. L. Garduño, Judge, Municipal Court, Manila.
Andres Geronimo, being duly sworn, testifies as follows:
Q. What is your name, residence and occupation? — A. Andres
Geronimo, No. 47 Revellin, detective.
Q. Are you the applicant of this search warrant? — A. Yes, sir.
Q. Do you know the premises situated at No. 124 Calle Arzobispo,
District of W. C., City of Manila? — A. Yes. sir.
Q. Do you know who occupies said premises? — A. I do not know.
According to the best of my information the house is occupied by
John Doe.
Q . What are your reasons for applying for this search warrant? —
A. It has been reported to me by a person whom I consider to be
reliable that in said premises there are instruments and devices
used in gambling games, such as cards, dice, chips, lottery tickets,
lists of drawing and lists used in prohibited games kept. It has been
reported to me by a person whom I consider to be reliable that
there are or there will be gambling conducted in said premises. The
aforesaid premises are known as gambling house. I have watched
the foregoing premises and believed it to be a gambling house and
a place where instruments and devices used in gambling games,
such as cards, dice, chips, lottery tickets, lists of drawing and lists
used in prohibited games are kept.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 56
I, Andres Geronimo, being duly sworn, depose and say that I have read the
foregoing questions and answers and that I find the same to correct and
true to the best of my knowledge and belief.
(Sgd.) ANDRES GERONIMO
Subscribed and sworn to before me this 25th day of May, 1923.
(Sgd.) L. GARDUÑO Judge, Municipal Court
The affidavit and the search warrant are so nearly alike that it will suffice to copy the
search warrant alone. This document reads:
UNITED STATES OF AMERICA
PHILIPPINE ISLANDS
IN THE MUNICIPAL COURT OF THE CITY OF MANILA
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff,
vs.
JOHN DOE, Defendant.
SEARCH WARRANT (G)
The People of the Philippine Islands, to any member of the
Police Force of the City of Manila.
GREETING:
Proof by affidavit having this day been made before me by Andres Geronimo
that he has good reason to believe and does believe that John Doe has
illegally in his possession in the building occupied by him and which is under
his control, namely in the building numbered 124 Calle Arzobispo, City of
Manila, Philippines Islands, certain devices and effects used in violation of
the Gambling Law, to wit: money, cards, chips, reglas, pintas, tables and
chairs and other utensils used in connection with the game commonly
known as monte and that the said John Doe keeps and conceals said

devices and effects with the illegal and criminal intention of using them in
violation of the Gambling Law.
Now therefore, you are hereby commanded that at any time in the day or
night within ten (10) days on or after this date to make a search on the
person of said John Doe and in the house situated at No. 124 Calle
Arzobispo, City of Manila, Philippine Islands, in quest of the above described
devices and effects and if you find the same or any part thereof, you are
commanded to bring it forthwith before me as provided for by law.
Given under my hand, this 25th day of May, 1923.
(Sgd.) L. GARDUÑO
Judge, Municipal Court
Coming now to the legal aspects of the case it is first worthy of mention that by
reason of the Fourth Amendment to the United States Constitution and the eleventh
and eighteenth paragraphs of the Philippine Bill of Rights, as found in the present
Organic Act, the security of the dwelling and the person is guaranteed. The organic
act provides "that the right to be secured against unreasonable searches and seizures
shall not be violated." It further provides "that no warrant shall issue but upon
probable cause, supported by oath or affirmation and particularly describing the place
to be searched and the person or things to be seized."
In the Philippine Code of Criminal Procedure are found provisions of the same import
although naturally entering more into detail. It is therein provided, among other
things, that "a search warrant shall not issue except for probable cause and upon
application supported by oath particularly describing the place to be searched and the
person of thing to be seized." (Section 97.) After the judge or justice shall have
examined on oath the complainant and any witnesses he may produce, and shall
have taken their depositions in writing (section 98), and after the judge or justice is
satisfied of the existence of facts upon which the application is based, or that there is
probable cause to believe that they exist, he must issue the warrant which must be
substantially in the following form:
. . . You are, therefore, commanded, . . . to make immediate search on the
person of ............................, or in the house situated
...................................... (describing it or any other place to be searched
with reasonable particularity, as the case may be) for the following property:
. . . ." (Section 99.) It is finally provided that "a person charged with a crime
may be searched for dangerous weapons or anything which may be used as
proof of the commission of the crime. (Section 105).
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 57
A search warrant must conform strictly to the requirements of the constitutional and
statutory provisions under which it is issued. Otherwise it has rightly been held, must
be absolutely legal, "for there is not a description of process known to the law, the
execution of which is more distressing to the citizen. Perhaps there is none which
excites such intense feeling in consequence of its humiliating and degrading effect."
The warrant will always be construed strictly without, however, going the full length
of requiring technical accuracy. No presumptions of regularity are to be invoked in aid
of the process when an officer undertakes to justify under it. (24 R. C. L., pp. 711, et
seq.; Reed vs. Rice [1829], 2 J. J. Marshall [Ky.] 44; 19 Am. Dec., 122; Smith vs.
McDuffee [1914], 72 Ore., 276; Ann. Cas. 1916 D, 947.)
The search warrant has been likened to a warrant of arrest. Although apprehending
that there are material differences between the two, in view of the paucity of
authority pertaining to John Doe search warrants we propose to take into
consideration the authorities relied upon by the appellant, thus following the
precedent of Uy Kheytin vs. Villareal ([1920], 42 Phil., 886), where the regularity of
the issuance of the search warrant was also questioned.
In the lower court, and again in this court, the attorneys for the defense quoted from
Wharton's Criminal Procedure. In that text at pages 51, 52, 54, 55, and 56 of volume
1 of the Tenth Edition, is found the following:
Form and Sufficiency of Warrant. Technical accuracy is not required. . . .
xxx xxx xxx
Name and description of the accused should be inserted in the body of the
warrant and where the name is unknown there must be such a description
of the person accused as will enable the officer to identify him when found.
xxx xxx xxx
Warrant for apprehension of unnamed party, or containing a wrong name
for the party to be apprehended is void, except in those cases where it
contains a descriptio personae such as will enable the officer to identify the
accused.
xxx xxx xxx
John Doe' Warrants. It follows, on principle, from what has already been
said regarding the essential requirements of warrants for the apprehension

of persons accused, and about blank warrants, that a warrant for the
apprehension of a person whose true name is unknown, by the name of
"John Doe" or "Richard Roe," "whose other or true name in unknown," is
void, without other and further descriptions of the person to be
apprehended, and such warrant will not justify the officer in acting under it.
Such a warrant must, in addition, contain the best descriptio
personae possible to be obtained of the person or persons to be
apprehended, and this description must be sufficient to indicate clearly the
proper person or persons upon whom the warrant is to be served; and
should state his personal appearance and peculiarities, give his occupation
and place of residence, and any other circumstances by means of which he
can be identified.
Person apprehended in act of committing a crime, under a "John Doe"
warrant, on the other hand, the apprehension will not be illegal, or the
officer liable, because under such circumstances it is not necessary that a
warrant should have been issued.
The authority most often cited to sustain the text, and quoted with approval by the
United States Supreme Court, is the case of Commonwealth vs. Crotty ([1865], 10
Allen [Mass.], 403). It there appeared that one Peaslee had made a complaint to the
police court Lee, charging that "John Doe or Richard Roe, whose other or true name
is to your complainant unknown," had committed an assault and battery upon him;
upon which complaint a warrant was issued against "John Doe or Richard Roe, whose
other or true name is to your complainant unknown, named in the foregoing
complaint." Neither the complaint nor the warrant contained any further description
or means of identification of the person to be arrested. Crotty resisted the arrest
upon the ground that the warrant was invalid. Mr. Chief Justice Bigelow, as the organ
of the Supreme Court of Massachusetts, said:
We cannot entertain a doubt that the warrant on which the officer
attempted to arrest one of the defendant at the time of the alleged riot was
insufficient, illegal and void. It did not contain the name of the defendant,
nor any description or designation by which he could be known and
identified as the person against whom it was issued. It was in effect a
general warrant, upon which any other individual might as well have been
arrested, as being included in the description, as the defendant himself.
Such a warrant was contrary to elementary principles, and in direct violation
of the constitutional right of the citizen, as set forth in the Declaration of
Rights, article 14, which declares that every subject has a right to be secure
from all unreasonable searches and seizures of his person, and that all
warrants, therefore, are contrary to this right, if the order in the warrant to
a civil officer to arrest one or more suspected persons or to seize their
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 58
property be not accompanied with a special designation of the persons or
objects of search, arrest or seizure. This is in fact only a declaration of an
ancient common law right. It was always necessary to express the name or
give some description of a party to be arrested on a warrant; and if one was
granted with the name in blank, and without other designation of the person
to be arrested, it was void. (1 Hale P. C. 577. 2 Ib. 119. Foster, 312. 7 Dane
Ab. 248. 1 Chit. Crim. Law, 39. Mead vs. Haws, 7 Cow., 332, and cases
cited.)
This rule or principle does not prevent the issue and service of a warrant
against a party whose name is unknown. In such case the best description
possible of the person to be arrested is to be given in the warrant; but it
must be sufficient to indicate clearly on whom it is to be served, by stating
his occupation, his personal appearance and peculiarities, the place of his
residence, or other circumstances by which he can be identified. (1 Chit.
Crim. Law, 39, 40.)
The warrant being defective and void on its face, the officer had no right to
arrest the person on whom he attempted to serve it. He acted without
warrant and was a trespasser. The defendant whom he sought to arrest had
a right to resist by force, using no more than was necessary to resist the
unlawful acts of the officer . . .
The defendants, therefore, in resisting the officer in making an arrest under
the warrant in question, if they were guilty of no improper or excessive force
or violence, did not do an unlawful act by lawful means, or a lawful act by
unlawful means, and so could not be convicted of the misdemeanor of a riot,
with which they are charged in the indictment.
Appellant's argument, as based on these authorities, runs something like this. The
law, constitutional and statutory, requires that the search warrant shall not issue
unless the application "particularly" describe the person to be seized. A failure thus to
name the person is fatal to the validity of the search warrant. To justify search and
arrest, the process must be legal. Illegal official action may be forcibly resisted.
For the prosecution, however, as the arguments are advanced by the Attorney-
General, and as the law was summarized by the trial judge, there is much to be said.
Careful and logical reflection brings forth certain points of paramount force and
exercising a decisive influence. We will now make mention of them by correlating the
facts and the law.

In the first place, the affidavit for the search warrant and the search warrant itself
described the building to be searched as "the building No. 124 Calle Arzobispo, City of
Manila, Philippine Islands." This, without doubt, was a sufficient designation of the
premises to be searched. It is the prevailing rule that a description of a place to be
searched is sufficient if the officer with the warrant can, with reasonable effort,
ascertain and identify the place intended. (Steele vs. U. S. [1925], U. S. Supreme
Court Advance Opinions 1924-1925; 69 Law. ed., 757). The police officers were
accordingly authorized to break down the door and enter the premises of the building
occupied by the so-called Parliamentary Club. When inside, they then had the right to
arrest the persons presumably engaged in a prohibited game, and to confiscate the
evidence of the commission of the crime. It has been held that an officer making an
arrest may take from the person arrested any money or property found upon his
person, which was used in the commission of the crime or was the fruit of the crime,
or which may furnish the person arrested with the means of committing violence or
of escaping, or which may be used as evidence on the trial of the cause, but not
otherwise. (Moreno vs. Ago Chi [1909], 12 Phil., 439.)
Proceeding along a different line of approach, it is undeniable that the application for
the search warrant, the affidavit, and the search warrant failed to name Jose Ma.
Veloso as the person to be seized. But the affidavit and the search warrant did state
that "John Doe has illegally in his possession in the building occupied by him, and
which is under his control, namely, in the building numbered 124 Calle Arzobispo, City
of Manila, Philippine Islands, certain devices and effects used in violation of the
Gambling Law." Now, in this connection, it must not be forgotten that the Organic Act
requires a particular description of the place to be searched, and the person or things
to be seized, and that the warrant in this case sufficiently described the place and the
gambling apparatus, and, in addition, contained a description of the person to be
seized. Under the authorities cited by the appellant, it is invariably recognized that
the warrant for the apprehension of an unnamed party is void, "except in those cases
where it contains a description personae such as will enable the officer to identify the
accused." The description must be sufficient to indicate clearly the proper person
upon whom the warrant is to be served. As the search warrant stated that John Doe
had gambling apparatus in his possession in the building occupied by him at No. 124
Calle Arzobispo, City of Manila, and as this John Doe was Jose Ma. Veloso, the
manager of the club, the police could identify John Doe as Jose Ma. Veloso without
difficulty.
Again, it must be remembered that No. 124 Calle Arzobispo was supposed to be used
for club purposes. It was not the home of Veloso; not the place of abode of the
family, which the law carefully protects in all of its sanctity. It was a club partially
public in nature. It was, moreover, a camouflaged club with a high sounding name
calculated to mislead the police, but intended for nefarious practices. In a club of
such a character, unlike in the home, there would commonly be varying occupancy, a
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 59
number of John Does and Richard Roes whose names would be unknown to the
police.
It is also borne out by the authorities that, in defense of himself, any member of his
family or his dwelling, a man has a right to employ all necessary violence. But even in
the home, and much less so in a club or public place, the person sought to be
arrested or to be searched should use no more force than is necessary to repel the
unlawful act of the officers. To authorize resistance to the agents of the authority, the
illegality of the invasion must be clearly manifest. Here, there was possibly a proper
case for protest. There was no case for excessive violence to enforce the defendant's
idea of a debatable legal question. (Commonwealth vs. Crotty, supra; People vs.
Chan Fook [1921], 42 Phil., 230; 3 Groizard, Codigo Penal, pp. 456, 457.)
The trial judge deduced from the searched warrant that the accused Veloso was
sufficiently identified therein. Mention was made by his Honor of the code provision
relating to a complaint or information, permitting a fictitious name to be inserted in
the complaint or information, in lieu of the true name. The Attorney-General adds to
this the argument that the police were authorized to arrest without a warrant since a
crime was being committed. We find it unnecessary to comment on this contention.
John Doe search warrants should be the exception and not the rule. The police
should particularly describe the place to be searched and the person or things to be
seized, wherever and whenever it is feasible. The police should not be hindered in the
performance of their duties, which are difficult enough of performance under the best
of conditions, by superficial adherence to technicality or far fetched judicial
interference.
We agree with the trial judge and with the Attorney-General in their conclusions to
the effect that the search warrant was valid, and that the defendant has been proved
guilty beyond a reasonable doubt, of the crime of resistance of the agents of the
authority.
The information alleges that at the time of the commission of the crime, the accused
was a member of the House of Representatives. The trial court was led to consider
this allegation in relation with the facts as an aggravating circumstance, and to
sentence the accused accordingly. We doubt, however, that advantage was taken by
the offender of his public position when he resisted the officers of the law. The
offender did not necessarily make use of the prestige of his office as a means to
commit a crime. Undoubtedly, Jose Ma. Veloso, as Juan de la Cruz, would have
resisted the police just as stoutly, as the Honorable Jose Ma. Veloso did. The penalty,
accordingly, falls within the medium of that provided by the Penal Code.
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 60

Finding present no reversible error, agreeing in all respects with the findings of facts
as made by the trial judge, and concurring with the trial judge in his legal conclusion,
with one exception, it results that the judgment appealed from must be, as it is
hereby, affirmed, with the sole modification that the defendant and appellant shall be
sentenced to two months and one day imprisonment, arresto mayor, with the costs of
this instance against him. Let the corresponding order to carry this judgment into
effect issue.

Avanceña, C.J., Street, Villamor, Ostrand, Johns, and Romualdez, JJ., concur.
Villa-Real, JJ., took no part.

SECOND DIVISION
[G.R. No. 126859. September 4, 2001]
YOUSEF AL-GHOUL, ISAM MOHAMMAD ABDULHADI, WAIL RASHID AL-
KHATIB, NABEEL NASSER AL-RIYAMI, ASHRAF HASSAM AL-YAZORI,
AND MOHAMMAD ABUSHENDI, petitioners, vs. COURT OF APPEALS
AND THE PEOPLE OF THE PHILIPPINES, respondents.
DECISION
QUISUMBING, J.:
Petitioners assail the decision[1] dated September 30, 1996, of the Court of
Appeals, which affirmed the orders of the Regional Trial Court of Kalookan City, Branch
123, thereby dismissing petitioners special civil action for certiorari.[2]
The facts leading to the present petition under Rule 65 are as follows:
On March 31, 1995, Judge Geronimo S. Mangay, presiding judge of the Regional
Trial Court, National Capital Judicial Region, Branch 125, Kalookan City, issued search
warrants 54-95[3]and 55-95[4] for the search and seizure of certain items in Apartment
No. 2 at 154 Obiniana Compound, Deparo Road, Kalookan City.
On April 1, 1995, the police searched Apartment No. 8, in the same compound
and found one (1) .45 caliber pistol. Found in Apartment No. 2 were:
2 M-16 rifles with 2 magazines and 20 live M-16 ammunitions
1 Bar of demolition charge
1 Caliber Pistol with no. 634 and other nos. were placed with magazine of Caliber .45
and 3 live 45 ammunitions
1 22 Caliber handgun with 5 live ammunitions in its cylinder
1 Box containing 40 pieces of .25 caliber ammunitions
2 pieces of fragmentation grenade
1 roll of detonating cord color yellow
2 big bags of ammonium nitrate suspected to be explosives substance
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 61
22 detonating cords with blasting caps
and pound of high explosives TNT
1 timer alarm clock
2 bags of suspected gun powder
2 small plastic bag of suspected explosive substance
1 small box of plastic bag of suspected dynamites
One weighing scale
Two (2) batteries 9 volts with blasting caps and detonating cord.[5]
The firearms, ammunitions, explosives and other incendiary devices seized at the
apartments were acknowledged in the receipt signed by SPO2 Melanio de la Cruz.
Petitioners were charged before the Regional Trial Court of Kalookan City, Branch
123, in informations docketed as Criminal Cases Nos. C-48666-67, accusing them with
illegal possession of firearms, ammunitions and explosives, pursuant to Presidential
Decree No. 1866.[6] Thereafter, petitioners were arrested and detained.
Petitioners filed a motion for bail on May 24, 1995, the resolution of which was
held in abeyance by the RTC pending the presentation of evidence from the prosecution
to determine whether or not the evidence presented is strong.[7]
On February 7, 1996, at the hearing for bail, the RTC admitted all exhibits being
offered for whatever purpose that they maybe worth after the prosecution had finished
adducing its evidence despite the objection by the petitioners on the admissibility of
said evidence.
On February 19, 1996, the RTC denied petitioners motion for bail earlier filed,
giving as reasons the following:
To begin with, the accused are being charged of two criminal offenses and both
offenses under Presidential Decree 1866, Sections 1 and 3 thereof prescribe the
penalty of Reclusion Temporal in its maximum period to Reclusion Perpetua. Under
Rule 114 of the Rules on Criminal Procedure as amended by Supreme Court
Administrative Circular No. 12-94, particularly Section 7 thereof, no person charged
with a capital offense or an offense punishable by reclusion perpetua or life

imprisonment, when evidence of guilt is strong shall be admitted to bail regardless of
the stage of the criminal prosecution.[8]
As petitioners action before respondent appellate court also proved futile,
petitioners filed the instant petition on the ground that it had acted with grave abuse
of discretion tantamount to lack or in excess of jurisdiction. They present for our
consideration the following issues:
I. WHETHER OR NOT THE EVIDENCE OFFERED BY THE PROSECUTION ARE
ADMISSIBLE;
II. WHETHER OR NOT ACCUSED HAVE THE RIGHT TO BAIL.[9]
The issue on bail has been resolved in our resolution dated November 24, 1998,
where this Court ruled:
Consequent to the enactment of RA 8294, the penalty prescribed in Section 1 and 3
of P.D. 1866 for illegal possession of firearms, ammunitions and explosives under
which petitioners were charged, has now been reduced to prision mayor in its
minimum period and prision mayor in its maximum period to reclusion temporal,
respectively. Evidently, petitioners are now entitled to bail as a matter of right prior to
their conviction by the trial court pursuant to Section 4 of SC Administrative Circular
No. 12-94 [10]
xxx
WHEREFORE, the petitioners motion is hereby GRANTED. The Temporary
Restraining Order issued by this Court in the Resolution of November 20, 1996 is
hereby PARTIALLY LIFTEDin so far as petitioners pending motion for bail before
the RTC of Kalookan City, Branch 123 is concerned. The trial court is hereby ordered
to proceed with the hearing of the motion for bail and resolve the same with
dispatch.[11]
The issue that remains is whether the respondent court erred and gravely abused
its discretion when it ruled that the search and seizure orders in question are valid and
the objects seized admissible in evidence.
Petitioners contend that the search and seizure orders violated Sections 2 and 3
of the Bill of Rights[12] as well as Section 3 of Rule 126 of the Rules of Court on Criminal
Procedure[13]because the place searched and articles seized were not described with
particularity. They argue that the two-witness requirement under Section 10 of Rule
126[14] was ignored when only one witness signed the receipt for the properties seized
during the search, and said witness was not presented at the trial. Petitioners also aver
that the presumption of regularity of the implementation of the search warrant was
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 62
rebutted by the defense during cross-examination of prosecution witnesses. According
to petitioners, respondent court failed to appreciate the fact that the items seized were
not turned over to the police evidence custodian as required under Section 18 of the
Department of Justice Circular No. 61 dated September 21, 1993. Finally, they fault the
lower courts finding that petitioners were in possession of the items allegedly
confiscated from them.[15]
For the State, the Office of the Solicitor General avers that the search of
Apartment 2 was legal, and the items seized therein are admissible in
evidence. However, the OSG agrees with petitioners that the search warrants issued
by the RTC, Branch 125, Kalookan City on March 31, 1995, namely search warrant 54-
95[16] and search warrant 55-95,[17] specified the place to be searched, namely
Apartment No. 2, 154 Obiniana Compound, Deparo Road, Kalookan City. There was no
mention of Apartment No. 8. Thus, we find that the search conducted at Apartment
No. 8 clearly violated Sections 2 and 3 (2) of the Bill of Rights, in relation to Section 3
of Rule 126 of the Rules of Court.
As held in PICOP v. Asuncion,[18] the place to be searched cannot be changed,
enlarged nor amplified by the police. Policemen may not be restrained from pursuing
their task with vigor, but in doing so, care must be taken that constitutional and legal
safeguards are not disregarded. Exclusion of unlawfully seized evidence is the only
practical means of enforcing the constitutional injunction against unreasonable
searches and seizures. Hence, we are constrained to declare that the search made at
Apartment No. 8 is illegal and the .45 caliber pistol taken thereat is inadmissible in
evidence against petitioners.
Now, in contrast, the search conducted at Apartment No. 2 could not be similarly
faulted. The search warrants in question specifically mentioned Apartment No. 2. The
search was done in the presence of its occupants, herein petitioners,[19] in accordance
with Section 7 of Rule 126, Revised Rules of Court.[20]
Petitioners allege lack of particularity in the description of objects to be seized
pursuant to the warrants. Hence, they also question the seizure of the following articles
from Apartment No. 2, namely:
One M16 rifles, Colt AR-15 with 2 magazines and 20 rds ammo live
One (1) bar demolition charge
One (1) .45 caliber pistol numbers were defaced with magazine and with three (3)
live .45 cal ammos
One (1) .22 caliber handgun with live ammos in its cylinder

One (1) box containing (40) forty pieces of .22 cal. live ammos (magnum)
Two (2) pieces fragmentation grenade
Two (2) magazines of M16 rifles with live ammos.[21]
To appreciate them fully, we quote the search warrants in question:
Search Warrant 54-95
It appearing to the satisfaction of the undersigned, after examining under oath
P/Sr Insp Joel D. Pagdilao, Chief, DPIU, OADDI NPDC, Applicant and his witness
SPO1 Cesar R. Rivera of District Police Intelligence Unit, Northern Police District
Command with postal address c/o NPIU, NPDC, PNP, Langaray St., Kaunlaran
Village, Kalookan City that a.k.a. AL, a.k.a. GHUL a.k.a. NADI, a.k.a. NABIL and
several John Does of Apartment Nr. 2, Nr. 154 Obiniana Compound, Deparo
Road, Kalookan City have in their possession and control the following:
1. One (1) 45 Caliber Pistol
You are hereby commanded to make an immediate search anytime of the DAY and
NIGHT of the premises above-mentioned and forthwith, seize and take possession of
the foregoing property, to wit:
1. One (1) .45 Caliber Pistol
and bring to this Court to be dealt with as the law may direct.[22]
Search Warrant 55-95
It appearing to the satisfaction of the undersigned after examining under oath
P/Sr. Insp. Joel D. Pagdilao, Chief, DPIU, OADDI NPDC, Applicant and his
witness SPO1 Cesar R. Rivera of District Police Intelligence Unit, Northern Police
District Command with postal address c/o NPIU, NPDC, PNP, Langaray St.,
Kaunlaran Village, Kalookan City that a.k.a. AL, a.k.a. GHUL a.k.a. NADI, a.k.a.
NABIL and several John Does of Apartment Nr. 2, Nr. 154 Obiniana Compound,
Deparo Road, Kalookan City have in their possession and control the following:
1. One (1) 5.56 M16 Rifle with corresponding ammunitions
2. One (1) 9MM Pistol with corresponding ammunitions
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 63
3. Three (3) boxes of explosives
4. More or less ten (10) sticks of dymanites (sic)
5. More or less thirty (30) pieces of blasting caps pieces of detonating cords
You are hereby commanded to make an immediate search anytime of the DAY
or NIGHT of the premises above-mentioned and forthwith seize and take
possession of the foregoing properties, to wit:
1. One (1) 5.56 M16 Rifle with corresponding ammunitions
2. One (1) 9MM Pistol with corresponding ammunitions
3. Three (3) boxes of explosives
4. More or less ten (10) sticks of dymanites (sic)
5. More or less thirty (30) pieces of blasting caps pieces of detonating cords
and bring to this Court to be dealt with as the law may direct.[23]
That the articles seized during the search of Apartment No. 2 are of the same
kind and nature as those items enumerated in the search warrant above-quoted
appears to us beyond cavil. The items seized from Apartment No. 2 were described
with specificity in the warrants in question. The nature of the items ordered to be seized
did not require, in our view, a technical description.Moreover, the law does not require
that the things to be seized must be described in precise and minute details as to leave
no room for doubt on the part of the searching authorities, otherwise, it would be
virtually impossible for the applicants to obtain a search warrant as they would not
know exactly what kind of things they are looking for.[24] Once described, however, the
articles subject of the search and seizure need not be so invariant as to require absolute
concordance, in our view, between those seized and those described in the
warrant. Substantial similarity of those articles described as a class or species would
suffice.
In People v. Rubio, 57 Phil. 384, 389 (1932), this Court said, While it is true that
the property to be seized under a warrant must be particularly described therein and
no other property can be taken thereunder, yet the description is required to be specific
only in so far as the circumstances will ordinarily allow. Where by the nature of the
goods to be seized, their description must be rather general, it is not required that a
technical description be given, as this would mean that no warrant could issue. As a
corollary, however, we could not logically conclude that where the description of those
goods to be seized have been expressed technically, all others of a similar nature but
not bearing the exact technical descriptions could not be lawfully subject to
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 64

seizure.Otherwise, the reasonable purpose of the warrant issued would be defeated by
mere technicalities.
The case of Bache and Co. (Phil.), Inc. v. Ruiz, 37 SCRA 823, 835 (1971), pointed
out that one of the tests to determine the particularity in the description of objects to
be seized under a search warrant is when the things described are limited to those
which bear direct relation to the offense for which the warrant is being issued. A careful
examination of Search Warrant Nos. 54-95[25] and 55-95[26] shows that they were
worded in such a manner that the enumerated items to be seized could bear a direct
relation to the offense of violation of Section 1[27] and 3[28] of Presidential Decree No.
1866, as amended, penalizing illegal possession of firearms, ammunitions and
explosives. What the warrants authorized was the seizure of articles proscribed by that
decree, and no other.
Lastly, on this score, we note that the Court of Appeals ruled that petitioners
waived their right to raise any attack on the validity of the search warrants at issue by
their failure to file a motion to quash.[29] But, in conducting the search at Apartment
No. 8, not just Apartment No. 2 as ordered specifically in the search warrants, the
police committed a gross violation we cannot condone. Thus, we conclude that the gun
seized in Apartment No. 8 cannot be used in evidence, but those articles including guns,
ammunitions, and explosives seized in Apartment No. 2 are admissible in evidence.
prosecution under P.D. No. 1866. In People v. Dela Rosa, 284 SCRA 158, 168-169
(1998), we clarified that the kind of possession punishable under P.D. 1866 is one
where the accused possessed a firearm either physically or constructively with animus
possidendior intent to possess said firearm. Whether or not the evidence would show
all the elements of P.D. 1866 in this case is a different matter altogether. We shall not
preempt issues properly still within the cognizance of courts below.
Likewise, whether or not the articles seized were planted by the police, as claimed
by the petitioners, is a matter that must be brought before the trial court. In the same
vein, petitioners claim that the properties seized were not turned over to the proper
police custodian is a question of fact best ventilated during trial.
WHEREFORE, the petition is PARTIALLY GRANTED. The search conducted at
Apartment No. 8 is hereby declared illegal and the item (.45 caliber pistol) seized
therein inadmissible in evidence. However, the search at Apartment No. 2 pursuant to
Search Warrant 55-95 is hereby declared valid and legal, and the articles seized from
Apartment No. 2 are found admissible in evidence. Let this case be remanded to the
Regional Trial Court of Kalookan City, Branch 123, for trial on the merits of Criminal
Cases Nos. C-48666-67 with dispatch.
No pronouncement as to costs.

Coming now to the two-witness requirement under Section 10, Rule 126 of the SO ORDERED.
Revised Rules of Court, petitioners claim the rule was violated because only one witness Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.
signed the receipt for the properties seized. For clarity, let us reproduce the pertinent
section:

SEC. 10. Receipt for the property seized.The officer seizing property under the
warrant must give a detailed receipt for the same to the lawful occupant of the
premises in whose presence the search and seizure were made, or in the absence of
such occupant, must, in the presence of at least two witnesses of sufficient age and
discretion residing in the same locality, leave a receipt in the place in which he found
the seized property.

Clearly, the two-witness rule applies only in the absence of the lawful occupants
of the premises searched. In the case at bar, petitioners were present when the search
and seizure operation was conducted by the police at Apartment No. 2. More
importantly, petitioner Nabeel Al-Riyami y Nasser admitted being an actual
occupant/resident of Apartment No. 2.[30] Hence, we find here no violation of Section
10, Rule 126 of the Revised Rules of Court.

Petitioners contend that they could not be charged with violation of P.D. 1866
because the seized items were not taken actually from their possession. This
contention, however, cannot prosper in the light of the settled rule that actual
possession of firearms and ammunitions is not an indispensable element for

FIRST DIVISION
[G.R. No. 129651. October 20, 2000]
FRANK UY and UNIFISH PACKING CORPORATION, petitioners, vs. BUREAU
OF INTERNAL REVENUE and HON. MERCEDES GOZO-
DADOLE, respondents.
DECISION
KAPUNAN, J.:
Petitioners assail the validity of the warrants issued for the search of the premises
of the Unifish Packing Corporation, and pray for the return of the items seized by virtue
thereof.
On 30 September 1993, a certain Rodrigo Abos reported to the Bureau of Internal
Revenue (BIR) that petitioners Unifish Packing Corporation and Uy Chin Ho alias Frank
Uy were engaged in activities constituting violations of the National Internal Revenue
Code. Abos, who claimed to be a former employee of Unifish, executed an
Affidavit[1]stating:
1. He has personal knowledge that UNIFISH PACKING CORPORATION (hereinafter
referred to as UNIFISH), a canning factory located at Hernan Cortes Street, under the
active management of UY CHIN HO alias Frank Uy [,] is selling by the thousands of
[sic] cartons of canned sardines without issuing receipt. This is in violation of Sections
253 and 263 of the Internal Revenue Code.
2. This grand scale tax fraud is perpetrated through the following scheme:
(1) Uy Chin Ho a director of UNIFISH buys in bulk from the
company;
(2) Being a director, Uy Chin Ho has a lot of clout in the
distribution of the canned sardines processed by UNIFISH;
(3) Uy Chin Ho dictates the value of canned sardines that he
orders and buys from UNIFISH without any receipt of his
purchases;
(4) The moment he has the quantity he wants, UNIFISH
through Uy Chin Ho delivers to the different supermarkets
such as White Gold, Gaisano, etc.;
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 65
(5) Payments made by these tax evading establishments are
made by checks drawn payable to cash and delivered to Uy
Chin Ho; These payments are also not receipted (sic);
(6) Uy Chin Ho will then pay UNIFISH for the quantity of
sardines he had withdrawn from the corporation;
3. Another fraudulent practice perpetrated by UNIFISH through Uy Chin Hos direction
is the sale of imported oil locally to different customers. This is a case of smuggling in
the sense that UNIFISH, being an export company registered with the Board of
Investments, is enjoying certain exemptions in their importation of oil as one of the
raw materials in its processing of canned tuna for export. These tax exemptions are
granted by the government on the condition that the oil is to be used only in the
processing of tuna for export and that it is not to be sold unprocessed as is to local
customers.
4. Another fraudulent practice involves the sales of unused cans; UNIFISH also enjoys
tax exemptions in its purchases of tin cans subject to the condition that these are to
be used as containers for its processed tuna for export. These cans are never
intended to be sold locally to other food processing companies.
5. Prior to 1990, that is from 1980 to 1990, the factory of the UNIFISH PACKING
CORPORATION was then run by the PREMIER INDUSTRIAL & DEVELOPMENT
CORPORATION (hereinafter referred to as PREMIER) [,] which corporation was being
controlled by the same majority stockholders as those now running and controlling
UNIFISH; [a]t that time, PREMIER was also committing the same fraudulent acts as
what is being perpetrated by UNIFISH at present.
6. The records containing entries of actual volume of production and sales, of both
UNIFISH AND PREMIER, are found in the office of the corporation at its factory site at
H. Cortes Street, Mandaue City. The particular place or spot where these records
[official receipts, sales invoices, delivery receipts, sales records or sales books, stock
cards, accounting records (such as ledgers, journals, cash receipts books, and check
disbursements books)] are kept and may be found is best described in the herein
attached sketch of the arrangement of the offices furniture and fixture of the
corporation which is made an integral part hereof and marked as Annex A,
7. He is executing this affidavit to attest under oath the veracity of the foregoing
allegations and he is reserving his right to claim for reward under the provisions of
Republic Act No. 2338.
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 66

On 1 October 1993, Nestor N. Labaria, Assistant Chief of the Special Investigation 1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar
Branch of the BIR, applied for search warrants from Branch 28 of the Regional Trial Books, Cash Register Books, Sales Books or Records;
Court of Cebu. The application sought permission to search the premises of Unifish. Provisional & Official Receipts;

After hearing the depositions of Labaria and Abos, Judge Mercedes Gozo-Dadole 2. Production Record Books/Inventory Lists [,] Stock Cards;
issued the disputed search warrants. The first[2] is docketed as SEARCH WARRANT NO.
93-10-79 FOR: VIOLATION OF SECTION 253 ("Search Warrant A-1"), and consists of 3. Unregistered Delivery Receipts;
two pages. A verbatim reproduction of Search Warrant A-1 appears below: 4. Unregistered Purchase & Sales Invoices;
REPUBLIC OF THE PHILIPPINES 5. Sales Records, Job Order;
REGIONAL TRIAL COURT OF CEBU
7th Judicial Region 6. Corporate Financial Records; and
Branch 28
Mandaue City 7. Bank Statements/Cancelled Checks

THE PEOPLE OF THE PHILIPPINES, You are hereby commanded to make an immediate search at any time of day or night
of said premises and its immediate vicinity and to forthwith seize and take possession
of the articles above-mentioned and other properties relative to such violation and
Plaintiff, bring said properties to the undersigned to be dealt with as the law directs.

- versus - SEARCH WARRANT NO. 93-10-79 WITNESS MY HAND this 1st day of October, 1993.
FOR: VIOLATION OF SEC. 253

(sgd.)
UY CHIN HO alias FRANK UY, MERCEDES GOZO-DADOLE
Unifish Packing Corporation Judge
Hernan Cortes St., Cebu City
x-------------------------/ The second warrant[3]is similarly docketed as SEARCH WARRANT 93-10-79
(with sketch) FOR: VIOLATION OF SEC. 253 ("Search Warrant A-2"). Search Warrant A-2,
reproduced below, is almost identical in content to Search Warrant A-1, save for the
SEARCH WARRANT portions indicated in bold print. It consisted of only one page.

REPUBLIC OF THE PHILIPPINES

TO ANY PEACE OFFICER: REGIONAL TRIAL COURT OF CEBU
7th Judicial Region
G R E E T I N G S: Branch 28
Mandaue City
It appearing to the satisfaction of the undersigned, after examination underoath (sic), THE PEOPLE OF THE PHILIPPINES,
Nestor N. Labaria, Asst. Chief, Special Investigation Branch, BIR and witness Rodrigo Plaintiff,
Abos that there is a (sic) probable cause to believe that the crime of violation of
Section 253 - attempt to evade or defeat the tax has been committed and there is - versus - SEARCH WARRANT NO. 93-10-79
good and sufficient reason to believe that Uy Chin Ho c/o Unifish Packing FOR: VIOLATION OF SEC. 253
Corporation, Hernan Cortes St., Mandaue City has in his possession, care and control,
the following: UY CHIN HO alias FRANK UY, and
Unifish Packing Corporation
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 67

Hernan Cortes St., Mandaue City Judge Gozo-Dadole issued a third warrant,[4] which was docketed as SEARCH
x-------------------------/ WARRANT 93-10-80 FOR: VIOLATION OF SEC. 238 in relation to SEC. 263 (hereinafter,
(with sketch) "Search Warrant B"). Except for the docket number and the designation of the crime
in the body of the warrant (Section 238 in relation to Sec. 263 - non-issuance of sales
SEARCH WARRANT invoice and use and possession of unregistered delivery receipts and/or sales invoices),
Search Warrant B is a verbatim reproduction of Search Warrant A-2.
TO ANY PEACE OFFICER: On the strength of these warrants, agents of the BIR, accompanied by members
of the Philippine National Police, on 2 October 1993, searched the premises of the
G R E E T I N G S: Unifish Packing Corporation. They seized, among other things, the records and
documents of petitioner corporation. A return of said search was duly made by Nestor
Labaria with the RTC of Cebu , Branch 28.
It appearing to the satisfaction of the undersigned, after examination underoath [sic],
Nestor N. Labaria, Asst. Chief, Special Investigation Branch, BIR and witness Rodrigo On 8 February 1995, the BIR filed against petitioners a case before the
Abos that there is a [sic] probable cause to believe that the crime of violation of Department of Justice. The records, however, do not reveal the nature of this case.
Section 253 - attempt to evade or defeat the tax has been committed and there is
good and sufficient reason to believe that Uy Chin Ho alias Frank Uy and Unifish On 31 March 1995, petitioners filed motions to quash the subject search warrants
Packing Corporation, Hernan Cortes St., Mandaue City has in his possession, care and with Branch 28 of the Cebu RTC.
control, the following:
The RTC, however, denied petitioners' motions to quash as well as their
subsequent motion for reconsideration, prompting petitioners to file a petition
1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar for certiorari with the Court of Appeals (CA). The CA dismissed their petition, holding
Books, Cash Register Books, Sales Books or Records; that petitioners failed to comply with Section 2(a), Rule 6 of the Revised Internal Rules
Provisional & Official Receipts; of the Court of Appeals (RIRCA), which states:
2. Production Record Books/Inventory Lists [,] Stock Cards;
a. What Should be Filed. - The petition shall be filed in seven (7) legible copies and a
3. Unregistered Delivery Receipts; copy thereof shall be served on each of the respondents, and must be accompanied
by a certified true copy of the decision or order complained of and true copies of the
4. Unregistered Purchase & Sales Invoices;
pleadings and other pertinent documents and papers. (As amended by S.Ct. Res.,
5. Sales Records, Job Order; dated November 24, 1992).

6. Corporate Financial Records; and

The CA found that petitioners did not submit certified true copies of (1) the Motions to
7. Bank Statements/Cancelled Checks Quash, (2) the Motion for Reconsideration, and (3) the Affidavit of Rodrigo Abos.

You are hereby commanded to make an immediate search at any time of day or night
of said premises and its immediate vicinity and to forthwith seize and take possession
of the articles above-mentioned and other properties relative to such violation and
bring said properties to the undersigned to be dealt with as the law directs.
WITNESS MY HAND this 1st day of October, 1993.
(sgd.)
MERCEDES GOZO-DADOLE
Judge
The CA also held that certiorari was not the proper remedy to question the
resolution denying the motion to quash.
In this case now before us, the available remedies to the petitioners, assuming that
the Department of Justice will eventually file the case, are: a petition for
reinvestigation; the right to post bail; a Motion to Quash the Information; and in case
of denial, an appeal, after judgment on the merits, or after the case shall have been
tried. This brings us to the case of Lai vs. Intermediate 220SCRA 149 and the
pronouncement, thus:

Criminal Procedure: Certiorari: Certiorari should not be allowed where petitioner has
other remedies available. -- Anent the remedy resorted to by petitioners (referring to
the petition for certiorari) from the Regional Trial Court of Negros Oriental presided
by Judge Diez, the same should not have been granted. Petitioners were not without
plain, speedy and adequate remedies in the ordinary course of law against Judge
Lomeda's order for their arrest. These remedies are as enumerated by respondent
appellate court in its decision: "1. they can post bail for their provisional release; 2.
They can ask the Provincial Fiscal for a reinvestigation of the charge against them. If
unsatisfied with the fiscal's resolution they can ask for a review by the Minister of
Justice; (Sec. 1(), RA 5180 as amended by P.D.
911); 3. if their petition for review does not prosper, they can file a motion to quash t
he information in the trial court. (Rule 117, Rules of
Court). 4. If themotion is denied, they can appeal the judgment of the court after the
case shall have been tried on the merits.
x x x Where motion to quash is denied, remedy is not certiorari, but to go to trial.-
- Moreover, in the case of Acharon vs. Purisima, this Court held
that when a motion to quash a criminal case isdenied, the remedy is not certiorari but
to go to trial without prejudice to reiterating the special defenses involved in said Mo
tion. In the event that an adverse decision is rendered after trial on the
merits, an appeal therefrom should be the next legal step.
xxx
In this case now before Us, there is no pretention [sic] that the Court issued the
Search Warrants without jurisdiction. On the contrary, it had jurisdiction. The
argument therefore that the Court committed an error in not describing the persons
or things to be searched; that the Search Warrants did not describe with particularity
the things to be seized/taken; the absence of probable cause; and for having
allegedly condoned the discriminating manner in which the properties were taken, to
us, are merely errors in the Court's finding, certainly not correctible by certiorari, but
instead thru an appeal.[5]
In any event, the CA ruled, no grave abuse of discretion amounting to lack of
jurisdiction was committed by the RTC in the issuance of the warrants.
As petitioners' motion for reconsideration proved futile, petitioners filed the
instant petition for review.
Petitioners claim that they did submit to the CA certified true copies of the
pleadings and documents listed above along with their Petition, as well as in their
Motion for Reconsideration. An examination of the CA Rollo, however, reveals that
petitioners first submitted the same in their Reply, after respondents, in their Comment,
pointed out petitioners failure to attach them to the Petition.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 68
Nevertheless, the CA should not have dismissed the petition on this ground
although, to its credit, it did touch upon the merits of the case. First, it appears that
the case could have been decided without these pleadings and documents. Second,
even if the CA deemed them essential to the resolution of the case, it could have asked
for the records from the RTC. Third, in a similar case,[6] we held that the submission of
a document together with the motion for reconsideration constitutes substantial
compliance with Section 3, Rule 46 of the Rules of Court, requiring the submission of
a certified true copy of material portions of the record as are referred to [in the
petition], and other documents relevant or pertinent thereto along with the petition. So
should it be in this case, especially considering that it involves an alleged violation of a
constitutionally guaranteed right. The rules of procedure are not to be applied in a very
rigid, technical sense; rules of procedure are used only to help secure substantial
justice. If a technical and rigid enforcement of the rules is made, their aim could be
defeated.[7]
The CA likewise erred in holding that petitioners cannot avail of certiorari to
question the resolution denying their motions to quash the subject search warrants. We
note that the case of Lai vs. Intermediate, cited by the appellate court as authority for
its ruling does not appear in 220 SCRA 149. The excerpt of the syllabus quoted by the
court, as observed by petitioners,[8] appears to have been taken from the case of Yap
vs. Intermediate Appellate Court, 220 SCRA 245 (1993). Yap, however, is inapplicable
since that case involved a motion to quash a complaint for qualified theft, not a
motion to quash a search warrant.
The applicable case is Marcelo vs. De Guzman,[9] where we held that the issuing
judges disregard of the requirements for the issuance of a search warrant constitutes
grave abuse of discretion, which may be remedied by certiorari:
Expressly announced in Section 1, Rule 65 of the Rules of Court is the general rule
that certiorari is available where a tribunal or officer exercising judicial functions has
acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary
course of law.
In the light of the findings of the lower court, herein above quoted, it is indisputable
that Judge de Guzman gravely abused his discretion in issuing the said search
warrant. Indeed, he acted whimsically and capriciously when he ignored the explicit
mandate of Section 3, Rule 126 of the Rules of Court that a search warrant shall not
issue but upon probable cause in connection with one specific offense to be
determined by the municipal or city 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; and that no search
warrant shall issue for more than one specific offense.

The utter disregard by Judge de Guzman of the requirements laid down by the said
rule renders the warrant in question absolutely null and void. It has been held that
where the order complained of is a patent nullity, a petition for certiorari and
mandamus may properly be entertained despite the existence of the remedy of
appeal.
Moreover, an appeal from the order of Judge de Guzman would neither be an
adequate nor speedy remedy to relieve appellee of the injurious effects of the
warrant. The seizure of her personal property had resulted in the total paralization of
the articles and documents which had been improperly seized. Where the remedy of
appeal cannot afford an adequate and expeditious relief, certiorari can be allowed as
a mode of redress to prevent irreparable damage and injury to a party.
This Court had occasion to reiterate the above pronouncement in Silva vs.
Presiding Judge, RTC of Negros Oriental, Br. XXXIII,[10] which also involved a special
civil action for certiorari:[11]
Thus, in issuing a search warrant, the judge must strictly comply with the
constitutional requirement that he must determine the existence of probable cause by
examining the applicant and his witnesses in the form of searching questions and
answers. His failure to comply with this requirement constitutes grave abuse of
discretion. As declared in Marcelo vs. De Guzman, G.R. No. L-29077, June 29, 1982,
114 SCRA 657, the capricious disregard by the judge in not complying with the
requirements before issuance of search warrants constitutes grave abuse of
discretion.
In this case, petitioners alleged in their petition before the CA that the issuing
judge violated the pertinent provisions of the Constitution and the Rules of Court in
issuing the disputed search warrants, which, if true, would have constituted grave
abuse of discretion. Petitioners also alleged that the enforcers of the warrants seized
almost all the records and documents of the corporation thus resulting in the paralysis
of its business. Appeal, therefore, would not be an adequate remedy that would afford
petitioners expeditious relief.
We now proceed to the merits of the case.
Section 2, Article III of the Constitution guarantees the right of the people against
unreasonable searches and seizures:
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
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 69
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 relation to the above provision, Rule 126 of the Rules of Court provides:
SEC. 3. Requisite for issuing search warrant. - A search warrant shall not issue but
upon probable cause in connection with one specific offense to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place
to be searched and the things to be seized.
SEC. 4. Examination of complainant; record. - The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in
writing and under oath the complainant and any witnesses he may produce on facts
personally known to them and attach to the record their sworn statements together
with any affidavits submitted.
A search warrant must conform strictly to the requirements of the foregoing
constitutional and statutory provisions. These requirements, in outline form, are:
(1) the warrant must be issued upon probable cause;
(2) the probable cause must be determined by the judge himself and not by
the applicant or any other person;
(3) in the determination of probable cause, the judge must examine, under
oath or affirmation, the complainant and such witnesses as the latter
may produce; and
(4) the warrant issued must particularly describe the place to be searched
and persons or things to be seized.[12]
The absence of any of these requisites will cause the downright nullification of
the search warrants.[13] The proceedings upon search warrants must be absolutely
legal, for there is not a description of process known to the law, the execution of which
is more distressing to the citizen. Perhaps there is none which excites such intense
feeling in consequence of its humiliating and degrading effect. The warrants will always
be construed strictly without, however, going the full length of requiring technical
accuracy. No presumptions of regularity are to be invoked in aid of the process when
an officer undertakes to justify under it.[14]
Petitioners contend that there are several defects in the subject warrants that
command their nullification. They point out inconsistencies in the description of the
place to be searched in Search Warrant A-1, as well as inconsistencies in the names of

the persons against whom Search Warrants A-1 and A-2 were issued. That two search
warrants (Search Warrants A-1 and A-2) were issued for the same crime, for the same
place, at a single occasion is cited as another irregularity. Petitioners also dispute the
existence of probable cause that would justify the issuance of the warrants. Finally,
they claim that the things to be seized were not described with particularity. These
defects, according to petitioners, render the objects seized inadmissible in evidence.[15]
Inconsistencies in the description of the place to be searched
Petitioners observe that the caption of Search Warrant A-1 indicates the address
of Uy Chin Ho alias Frank Uy as Hernan Cortes St., Cebu City while the body of the
same warrant states the address as Hernan Cortes St., Mandaue City. Parenthetically,
Search Warrants A-2 and B consistently state the address of petitioner as Hernan Cortes
St., Mandaue City.
The Constitution requires, for the validity of a search warrant, that there be a
particular description of the place to be searched and the persons of things to be
seized.[16]The rule is that a description of a place to be searched is sufficient if the
officer with the warrant can, with reasonable effort, ascertain and identify the place
intended[17]and distinguish it from other places in the community.[18] Any designation
or description known to the locality that points out the place to the exclusion of all
others, and on inquiry leads the officers unerringly to it, satisfies the constitutional
requirement.[19] Thus, in Castro vs. Pabalan,[20] where the search warrant mistakenly
identified the residence of the petitioners therein as Barrio Padasil instead of the
adjoining Barrio Maria Cristina, this Court "admitted that the deficiency in the writ is
not of sufficient gravity to call for its invalidation."
In this case, it was not shown that a street similarly named Hernan Cortes could
be found in Cebu City. Nor was it established that the enforcing officers had any
difficulty in locating the premises of petitioner corporation. That Search Warrant A-1,
therefore, inconsistently identified the city where the premises to be searched is not a
defect that would spell the warrants invalidation in this case.
Inconsistencies in the description of the persons named in the two
warrants
Petitioners also find fault in the description of the names of the persons in Search
Warrants A-1 and A-2. Search Warrant A-1 was issued solely against Uy Chin Ho alias
Frank Uy. Search Warrant A-2, on the other hand, was directed against UY CHIN HO
alias FRANK UY, and Unifish Packing Corporation.
These discrepancies are hardly relevant.
In Miller v. Sigler,[21] it was held that the Fourth Amendment of the United States
Constitution, from which Section 2, Article III of our own Constitution is historically
derived, does not require the warrant to name the person who occupies the described
premises. Where the search warrant is issued for the search of specifically described
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 70
premises only and not for the search of a person, the failure to name the owner or
occupant of such property in the affidavit and search warrant does not invalidate the
warrant; and where the name of the owner of the premises sought to be searched is
incorrectly inserted in the search warrant, it is not a fatal defect if the legal description
of the premises to be searched is otherwise correct so that no discretion is left to the
officer making the search as to the place to be searched.[22]
Since, in the case at bar, the warrant was issued not for search of the persons
owning or occupying the premises, but only a search of the premises occupied by them,
the search could not be declared unlawful or in violation of the constitutional rights of
the owner or occupants of the premises, because of inconsistencies in stating their
names.[23]
Two warrants issued at one time for one crime and one place
In any event, Search Warrant A-1 should be deemed superseded by Search
Warrant A-2.
Two warrants, Search Warrants A-1 and A-2, were actually issued by the trial
court for the same crime (violation of SEC. 253 of the National Internal Revenue
Code). It appears, however, that Search Warrant A-2 was issued merely to correct the
inconsistencies in the address in Search Warrant A-1, as well as to include Unifish
Packing Corporation as a party against whom the warrant was issued. Search Warrant
A-2 was evidently an attempt by the issuing judge to be more precise in the names of
the persons against whom the warrant was issued and in the description of the place
to be searched. Indeed, it would be absurd for the judge to issue on a single occasion
two warrants authorizing the search of a single place for a single offense. Inasmuch as
the apparent intent in issuing Search Warrant A-2 was to supersede Search Warrant A-
1, the latter should be deemed revoked by the former.
The alleged absence of probable cause
Petitioners claim there was no probable cause for Judge Gozo-Dadole to issue the
subject search warrants.
Probable cause is defined as such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been committed
and that the objects sought in connection with the offense are in the place sought to
be searched.[24]
In the determination of probable cause, the Constitution and the Rules of Court
require an examination of the witnesses under oath. The examination must be probing
and exhaustive, not merely routine or pro forma. The examining magistrate must not
simply rehash the contents of the affidavit but must make his own inquiry on the intent
and justification of the application.[25] Asking of leading questions to the deponent in
an application for search warrant, and conducting of examination in a general manner,
would not satisfy the requirements for issuance of a valid search warrant.[26]

The witnesses, in turn, must testify under oath to facts of their own personal
knowledge. The oath required must refer to the truth of the facts within the personal
knowledge of the petitioner or his witnesses, because the purpose thereof is to
convince the committing magistrate, not the individual making the affidavit and seeking
the issuance of the warrant, of the existence of probable cause.[27] Search warrants are
not issued on loose, vague or doubtful basis of fact, nor on mere suspicion or belief.[28]
It may be recalled that before issuing the warrants, the judge deposed two
witnesses, namely, Nestor Labaria of the BIR, and Rodrigo Abos, who claimed to be an
old employee of Unifish. Petitioners claim that the testimonies of Labaria and Abos are
hearsay. We agree with this contention, but only as to the testimony of Labaria, who
stated during the examination:
Q. Do you know of a certain Uy Chin Ho alias Frank Uy?
A. No.
Q. Do you know his establishment known as Unifish Packing Corporation?
A. I have only heard of that thru the affidavit of our informer, Mr. Abos.
Q. Why are you applying for search warrant in the premises of Unifish Packing
Corporation?
A. Because of that information we received that they are using only delivery receipts
instead of the legal sales invoices. It is highly indicative of fraud.
Q. From where did you get that information?
A. From our informer, the former employee of that establishment.[29]
The above portion of the transcript shows that Labarias knowledge of the alleged
illegal activities of petitioners was acquired not through his own perception but was
merely supplied by Abos. Therefore, the deposition of Labaria, which is based on
hearsay, standing alone, cannot justify the issuance of the search warrants.[30]
The application for the warrants, however, is not based solely on Labarias
deposition but is supported by that of Abos, whose knowledge of petitioners alleged
illegal practices was apparently obtained during his employment with Unifish. In his
deposition, Abos detailed the schemes employed by Frank Uy and Unifish to evade the
payment of taxes, and described the place where the documents supposedly evidencing
these schemes were located:
Q Do you know Frank Uy?
A Yes.
Q Why do you know him?
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 71
A Because I were (sic) an employee of his from 1980 until August of 1993.
Q Where is this Unifish Packing Corporation located?
A Hernan Cortes St.
Q What is it being engaged of?
A It is engaged in canning of fish.
Q You have executed an affidavit here to the effect that it seems that in his business
dealings that he is actually doing something that perpetrated tax evasion. Is
that correct?
A Yes.
Q How is it done?
A As an officer, he is an active member of the corporation who is at the same time
making his authority as appointing himself as the distributor of the company's
products. He sells these products thru supermarkets in Visayas and Mindanao,
in fact, the whole Philippines. He makes it appear that it is the company which
is selling when actually it is him selling the goods and he does not issue any
invoices.
Q Since he does not issue any invoices, how is it done?
A Thru delivery receipts.
Q Is the delivery receipt official?
A No. It is unregistered.
Q For how long has this been going on?
A As far as I know, it is still in 1986 since we started producing the sardines.
Q When was the last time that you observed that that is what he is doing?
A August, 1993, last month.
Q How did you happen to know about this last month?
A Because he delivered to certain supermarkets and the payments of that
supermarket did not go directly to the company. It went to him and he is the
one who paid the company for the goods that he sold.
Q Can you tell this Court the name of that certain supermarkets?
A White Gold and Gaisano.

Q How did you know this fact?
A As a manager of the company I have access to all the records of that company
for the last three years. I was the Operating Chief.
Q Until now?
A No. I was separated already.
Q When?
A August, 1993.
Q How does he do this manipulation?
A He sells the goods to the supermarkets afterwhich the company, Unifish will
deliver to his customers, then his customers will pay directly to him and in
turn, he pays to the company.
Q And these transactions, were they reflected in their books of account or ledger
or whatever?
A It is written but it is supposed to be a secret transaction. It is not for the public,
not for the BIR but it is only for the purpose of keeping the transactions
between the company and him. It is not made to be shown to the BIR.
Q In that books of account, is it reflected that they have made some deliveries to
certain supermarkets?
A Yes.
Q For the consumption of the BIR what are the papers that they show?
A It is the private accounting firm that prepares everything.
Q Based on what?
A Based on some fictitious records just as they wish to declare.
Q In your affidavit you stated that there are sales invoices, official receipts, delivery
receipts, sales records, etc. These documents are records that you have
stated, in your affidavit, which are only for the consumption of the company?
A Yes, not for the BIR.
Q Where are they kept now?
A They are kept on the table which I have drawn in the sketch. This is the bird's
eyeview (sic) of the whole office. When you enter thru the door this Gina Tan
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 72
is the one recording all the confidential transactions of the company. In this
table you can find all the ledgers and notebooks.
Q This sketch is a blow-up of this portion, Exh. "A"?
A Yes. Exh. "B" is the blow-up of Exh. "A" inside the office.
In this blow-up there are four personnel plus one new personnel. Gina Tan collects
all the records from this girl and this girl makes the statements. This first girl
delivers the receipts. The second girl prepares the bill of lading. The third girl
keeps the inventory of all the stocks.
This sketch here is the bodega where the records are kept. The records from these
people are stored in this place which is marked as "C".
Q So what you want to impress on that now is that only current records are kept
by Gina because according to you the whole records are already placed in the
bodega?
A Yes.
Q But how can you enter the bodega?
A Here, from the main entrance there is a door which will lead to this part here. If
you go straight there is a bodega there and there is also a guard from this
exit right after opening the door.
Q The problem is that, when actually in August have you seen the current records
kept by Gina?
A I cannot exactly recall but I have the xerox copies of the records.
Q Where are they now?
A They are in my possession (witness handling [sic] to the Court a bunch of
records).
Q The transactions that are reflected in these xerox copies that you have given me,
especially this one which seems to be pages of a ledger, they show that these
are for the months of January, February, March, April and May. Are these
transactions reflected in these xerox copies which appear in the ledger being
shown to the BIR?
A As far as I know, it did not appear.
Q What about this one which says Columnar Book Cash Receipt for the month of
January, what does it show?

A It shows that Frank Uy is the one purchasing from the company and these are
his customers.
Q Do these entries appear in the columnar books which are the basis for the report
to the BIR?
A As far as I know, it does not reflect.
Q What are these xerox copies of checks?
A I think we cannot trace it up. These ones are the memos received by Unifish for
payment of sardines. This is the statement of the company given to Uy Chin
Ho for collection.
Q It is also stated in your affidavit that the company imported soya oil. How is it
done?
A The company imports soya oil to be used as a component in the processing of
canned tuna for export. The company enjoys certain BOI privilege and so it is
tax free. As far as I know, they profit more to dispose the product
locally. Whatever excess of this soya oil are sold to another company.
Q Is that fact reflected in the xerox copies?
A No. I have the actual delivery receipt.
Q In other words, the company imports soya oil supposedly to be used as a raw
material but instead they are selling it locally?
A Yes. ([W]itness showing DR No. 3053 dated November 13, 1991.) This delivery
receipt was the delivery receipt to Celebes Canning Corp. of the 90 grams
soya oil.
Q In other words, this soya oil should have to be used by Unifish but instead they
are seeling (sic) it?
A Yes, at a profit.
Q You also said that there is tax evasion in the selling of cans. What do you mean
by this?
A There is another privileged [sic] by the BOI for a special price given to packaging
materials. When you export the product there is a 50% price difference. Now,
taking that advantage of that exemption, they sold it to certain company here,
again to Virginia Farms.
Q Do you have proof to that effect?
A No, but we can get it there.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 73
Q Will that fact be shown in any listed articles in the application for search warrant
since according to you, you have seen this manipulation reflected on the books
of account kept by Gina?Are you sure that these documents are still there?
A Yes. I have received information.
COURT: Alright.[31]
Abos stated that, as former Operating Chief of Unifish, he had access to the
company records, and even showed the issuing judge photocopies thereof. Thus, we
reject the contention that this witness did not have personal knowledge of the facts to
which he testified. The contents of the deposition clearly demonstrate otherwise.
The deposition also shows that, contrary to petitioners submission, the inquiries
made by the judge were far from leading or being a rehash of the witness affidavit. We
find such inquiries to be sufficiently probing.
Alleged lack of particularity in the description of the things seized
Petitioners note the similarities in the description of the things to be seized in the
subject warrants and those in Stonehill vs. Diokno,[32] Bache & Co. (Phil.), Inc. vs.
Ruiz,[33]and Asian Surety & Insurance Co., Inc. vs. Herrera.[34]
In Stonehill, the effects to be searched and seized were described as:
Books of accounts, financial records, vouchers, journals correspondence, receipts,
ledgers, portfolios, credit journals, typewriters, and other documents and/or papers
showing all business transactions including disbursement receipts, balance sheets and
related profit and loss statements.
This Court found that the foregoing description failed to conform to the
requirements set forth by the Constitution since:
x x x the warrants authorized the search for and seizure of records pertaining to all
business transactions of petitioners herein, regardless of whether the transactions
were legal or illegal. The warrants sanctioned the seizure of all records of the
petitioners and the aforementioned corporations, whatever their nature, thus openly
contravening the explicit command of our Bill of Rights - that the things to be seized
be particularly described - as well as tending to defeat its major object: the
elimination of general warrants.
In Bache & Co., this Court struck down a warrant containing a similar description
as those in Stonehill:

The documents, papers, and effects sought to be seized are described in Search
Warrant No. 2-M-70 in this manner:
Unregistered and private books of accounts (ledgers, journals, columnars, receipts
and disbursements books, customers' ledgers); receipts for payments received;
certificates of stocks and securities; contracts, promissory notes and deeds of sale;
telex and coded messages; business communications; accounting and business
records; checks and check stubs; records of bank deposits and withdrawals; and
records of foreign remittances, covering the years 1966 to 1970.
The description does not meet the requirement in Art. III, Sec. 1, of the Constitution,
and of Sec. 3, Rule 126 of the Revised Rules of Court, that the warrant should
particularly describe the things to be seized.
xxx
In Uy Kheytin, et al. vs. Villareal, etc., et al., 42 Phil. 886, 896, this Court had
occasion to explain the purpose of the requirement that the warrant should
particularly describe the place to be searched and the things to be seized, to wit:
x x x Both the Jones Law (sec. 3) and General Orders No. 68 (sec. 97) specifically
require that a search warrant should particularly describe the place to be searched
and the things to be seized.The evident purpose and intent of this requirement is to
limit the things to be seized to those, and only those, particularly described in the
search warrant - to leave the officers of the law with no discretion regarding what
articles they shall seize, to the end that unreasonable searches and seizures may not
be made, - that abuses may not be committed. That is the correct interpretation of
this constitutional provision borne out by the American authorities.
The purpose as thus explained could, surely and effectively, be defeated under the
search warrant issued in this case.
A search warrant may be said to particularly describe the things to be seized when
the description therein is as specific as the circumstances will ordinarily allow (People
vs. Rubio, 57 Phil, 384); or when the description expresses a conclusion of fact - not
of law - by which the warrant officer may be guided in making the search and seizure
(idem., dissent of Abad Santos, J.,); or when the things described are limited to those
which bear direct relation to the offense for which the warrant is being issued (Sec. 2,
Rule 126, Revised Rules of Court). The herein search warrant does not conform to
any of the foregoing tests. If the articles desired to be seized have any direct relation
to an offense committed, the applicant must necessarily have some evidence, other
than those articles, to prove the said offense; and the articles subject of search and
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 74
seizure should come in handy merely to strengthen such evidence. In this event, the
description contained in the herein disputed warrant should have mentioned, at least,
the dates, amounts, persons, and other pertinent data regarding the receipts of
payments, certificates of stocks and securities, contracts, promissory notes, deeds of
sale, messages and communications, checks, bank deposits and withdrawals, records
of foreign remittances, among others, enumerated in the warrant.
In Asian Surety & Insurance Co., Inc. vs. Herrera, the description of the things to
be seized, i.e., Fire Registers, Loss, Bordereau, Adjusters' Report, including subrogation
receipts and proof of loss, Loss Registers, Book of Accounts including cash receipts and
disbursements and general ledger, etc. was held to be an omnibus description and,
therefore, invalid:
x x x Because of this all embracing description which includes all conceivable records
of petitioner corporation, which if seized x x x, could paralyze its business, petitioner
in several motions filed for early resolution of this case, manifested that the seizure of
TWO carloads of their papers has paralyzed their business to the grave prejudice of
not only the company, its workers, agents, employees but also of its numerous
insured and beneficiaries of bonds issued by it, including the government itself, and
of the general public. And correlating the same to the charges for which the warrant
was issued, We have before Us the infamous general warrants of old.
In the case at bar, the things to be seized were described in the following manner:
1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar Books,
Cash Register Books, Sales Books or Records; Provisional & Official
Receipts;
2. Production Record Books/Inventory Lists [,] Stock Cards;
3. Unregistered Delivery Receipts;
4. Unregistered Purchase & Sales Invoices;
5. Sales Records, Job Order;
6. Corporate Financial Records; and
7. Bank Statements/Cancelled Checks
We agree that most of the items listed in the warrants fail to meet the test of
particularity, especially since witness Abos had furnished the judge photocopies of the
documents sought to be seized. The issuing judge could have formed a more specific
description of these documents from said photocopies instead of merely employing a
generic description thereof. The use of a generic term or a general description in a
warrant is acceptable only when a more specific description of the things to be seized

is unavailable. The failure to employ the specificity available will invalidate a general
description in a warrant.[35] The use by the issuing judge of the terms multiple sets of
books of accounts, ledgers, journals, columnar books, cash register books, sales books
or records, provisional & official receipts, production record books/inventory lists, stock
cards, sales records, job order, corporate financial records, and bank
statements/cancelled checks is therefore unacceptable considering the circumstances
of this case.
As regards the terms unregistered delivery receipts and unregistered purchase &
sales invoices, however, we hold otherwise. The Solicitor General correctly argues that
the serial markings of these documents need not be specified as it is not possible to do
so precisely because they are unregistered.[36] Where, by the nature of the goods to
be seized, their description must be rather general, it is not required that a technical
description be given, as this would mean that no warrant could issue. Taking into
consideration the nature of the articles so described, it is clear that no other more
adequate and detailed description could have been given, particularly because it is
difficult to give a particular description of the contents thereof.[37] Although it appears
that photocopies of these unregistered documents were among those handed by Abos
to the issuing judge, it would be impractical to require the latter to specify each and
every receipt and invoice, and the contents thereof, to the minutest detail.
The general description of most of the documents listed in the warrants does not
render the entire warrant void. Insofar as the warrants authorize the search and seizure
of unregistered delivery receipts and unregistered purchase and sales invoices, the
warrants remain valid. The search warrant is severable, and those items not particularly
described may be cut off without destroying the whole warrant. In United States v.
Cook,[38] the United States Court of Appeals (Fifth Circuit) made the following
pronouncement:
x x x. The leading decision is Aday v. Superior Court, 53 Cal.2d 789, 362 P.2d 47, 13
Cal.Rptr. 415 (1961). In Aday, a warrant was issued authorizing the seizure of two
particularly described books and myriad other generally described items. On appeal,
the California Supreme Court held that only the books were particularly described in
the warrant and lawfully seized. The court acknowledged that the warrant was
flawed, but rather than suppress everything seized, the court chose to sever the
defective portions of the warrant and suppress only those items that were not
particularly described.
Although the warrant was defective x x x it does not follow that it was invalid as a
whole. Such a conclusion would mean that the seizure of certain articles, even though
proper if viewed separately, must be condemned merely because the warrant was
defective with respect to other articles. The invalid portions of the warrant are
severable from the authorization relating to the named books x x x. The search for
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 75
and seizure of these books, if otherwise valid, were not rendered illegal by the
defects concerning other articles.
xxx
x x x We agree with the reasoning of the Supreme Court of California and the
majority of state courts that have considered this question and hold that in the usual
case the district judge should sever the infirm portion of the search warrant as passes
constitutional muster. See United States v. Giresi, 488 F.Supp. 445, 459-60
(D.N.J.1980). Items that were not described with the requisite particularity in the
warrant should be suppressed, but suppression of all of the fruits of the search is
hardly consistent with the purposes underlying exclusion. Suppression of only the
items improperly described prohibits the Government from profiting from its own
wrong and removes the court from considering illegally obtained evidence. Moreover,
suppression of only those items that were not particularly described serves as an
effective deterrent to those in the Government who would be tempted to secure a
warrant without the necessary description. As the leading commentator has observed,
it would be harsh medicine indeed if a warrant which was issued on probable cause
and which did particularly describe certain items were to be invalidated in toto merely
because the affiant and the magistrate erred in seeking and permitting a search for
other items as well. 2 W. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment 4.6(f) (1978).
Accordingly, the items not particularly described in the warrants ought to be returned
to petitioners.
Petitioners allege that the following articles, though not listed in the warrants,
were also taken by the enforcing officers:
1. One (1) composition notebook containing Chinese characters,
2. Two (2) pages writing with Chinese characters,
3. Two (2) pages Chinese character writing,
4. Two (2) packs of chemicals,
5. One (1) bound gate pass,
6. Surety Agreement.[39]
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 76

In addition, the searching party also seized items belonging to the Premier Industrial whose rights have been impaired thereby, and the objection to an unlawful search and
and Development Corporation (PIDC), which shares an office with petitioner Unifish. seizure is purely personal and cannot be availed of by third parties.[42]

The things belonging to petitioner not specifically mentioned in the warrants, like WHEREFORE, the Resolutions of respondent Court of Appeals dated 27 June
those not particularly described, must be ordered returned to petitioners. In order to 1996 and 14 May 1987, affirming the Order of the Regional Trial Court dated 17 July
comply with the constitutional provisions regulating the issuance of search warrants, 1995, are hereby AFFIRMED insofar as said Resolutions upheld the validity of the
the property to be seized under a warrant must be particularly described therein and subject Search Warrants authorizing the seizure of the unregistered delivery receipts
no other property can be taken thereunder.[40] In Tambasen vs. People,[41] it was held: and unregistered purchase and sales invoices, but REVERSED with respect to the rest
of the articles subject of said warrants. The respondent Bureau of Internal Revenue is
Moreover, by their seizure of articles not described in the search warrant, the police hereby ordered to return to petitioners all items seized from the subject premises and
acted beyond the parameters of their authority under the search warrant. Section 2, belonging to petitioners, except the unregistered delivery receipts and unregistered
Article III of the 1987 Constitution requires that a search warrant should particularly purchase and sales invoices.
describe the things to be seized. The evident purpose and intent of the requirement SO ORDERED.
is to limit the things to be seized to those, and only those, particularly described in
the search warrant, to leave the officers of the law with no discretion regarding what Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur.
articles they should seize, to the end that unreasonable searches and seizures may
not be made and that abuses may not be committed (Corro v. Lising, 137 SCRA 541,
547 [1985]); Bache & Co. [Phil.], Inc. v. Ruiz, 37 SCRA 823 [1971]; Uy Kheytin v.
Villareal, 42 Phil. 886 [1920]). The same constitutional provision is also aimed at
preventing violations of security in person and property and unlawful invasions of the
sanctity of the home, and giving remedy against such usurpations when attempted
(People v. Damaso, 212 SCRA 547 [1992] citing Alvero v. Dizon, 76 Phil. 637, 646
[1946]).

Clearly then, the money which was not indicated in the search warrant, had been
illegally seized from petitioner. The fact that the members of the police team were
doing their task of pursuing subversives is not a valid excuse for the illegal
seizure. The presumption juris tantum of regularity in the performance of official duty
cannot by itself prevail against the constitutionally protected right of an individual
(People v. Cruz, 231 SCRA 759 [1994]; People v. Veloso, 48 Phil. 169, 176
[1925]). Although public welfare is the foundation of the power to search and seize,
such power must be exercised and the law enforced without transgressing the
constitutional rights of the citizens (People v. Damaso, supra, citing Rodriguez v.
Evangelista, 65 Phil. 230, 235 [1937]). As the Court aptly puts it in Bagahilog v.
Fernandez, 198 SCRA 614 (1991), [z]eal in the pursuit of criminals cannot ennoble
the use of arbitrary methods that the Constitution itself abhors.

The seizure of the items not specified in the warrants cannot be justified by the
directive in the penultimate paragraph thereof to "seize and take possession of other
properties relative to such violation," which in no way can be characterized as a
particular description of the things to be seized.

As regards the articles supposedly belonging to PIDC, we cannot order their return
in the present proceedings. The legality of a seizure can be contested only by the party

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 101837 February 11, 1992
ROLITO GO y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge,
Branch 168, Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE
PHILIPPINES, respondents.
FELICIANO, J.:
According to the findings of the San Juan Police in their Investigation Report, 1 on 2
July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro
Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is a
one-way street and started travelling in the opposite or "wrong" direction. At the
corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly
bumped each other. Petitioner alighted from his car, walked over and shot Maguan
inside his car. Petitioner then boarded his car and left the scene. A security guard at a
nearby restaurant was able to take down petitioner's car plate number. The police
arrived shortly thereafter at the scene of the shooting and there retrieved an empty
shell and one round of live ammunition for a 9 mm caliber pistol. Verification at the
Land Transportation Office showed that the car was registered to one Elsa Ang Go.
The following day, the police returned to the scene of the shooting to find out where
the suspect had come from; they were informed that petitioner had dined at Cravings
Bake Shop shortly before the shooting. The police obtained a facsimile or impression
of the credit card used by petitioner from the cashier of the bake shop. The security
guard of the bake shop was shown a picture of petitioner and he positively identified
him as the same person who had shot Maguan. Having established that the assailant
was probably the petitioner, the police launched a manhunt for petitioner.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 77
On 8 July 1991, petitioner presented himself before the San Juan Police Station to
verify news reports that he was being hunted by the police; he was accompanied by
two (2) lawyers. The police forthwith detained him. An eyewitness to the shooting,
who was at the police station at that time, positively identified petitioner as the
gunman. That same day, the police promptly filed a complaint for frustrated
homicide 2 against petitioner with the Office of the Provincial Prosecutor of Rizal. First
Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner,
in the presence of his lawyers, that he could avail himself of his right to preliminary
investigation but that he must first sign a waiver of the provisions of Article 125 of
the Revised Penal Code. Petitioner refused to execute any such waiver.
On 9 July 1991, while the complaint was still with the Prosecutor, and before an
information could be filed in court, the victim, Eldon Maguan, died of his gunshot
wound(s).
Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for
frustrated homicide, filed an information for murder 3 before the Regional Trial Court.
No bail was recommended. At the bottom of the information, the Prosecutor certified
that no preliminary investigation had been conducted because the accused did not
execute and sign a waiver of the provisions of Article 125 of the Revised Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the
Prosecutor an omnibus motion for immediate release and proper preliminary
investigation,4 alleging that the warrantless arrest of petitioner was unlawful and that
no preliminary investigation had been conducted before the information was filed.
Petitioner also prayed that he be released on recognizance or on bail. Provincial
Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last page of
the motion itself that he interposed no objection to petitioner being granted
provisional liberty on a cash bond of P100,000.00.
On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order
to expedite action on the Prosecutor's bail recommendation. The case was raffled to
the sala of respondent Judge, who, on the same date, approved the cash
bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact released
that same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave
to conduct preliminary investigation8 and prayed that in the meantime all proceedings
in the court be suspended. He stated that petitioner had filed before the Office of the
Provincial Prosecutor of Rizal an omnibus motion for immediate release and
preliminary investigation, which motion had been granted by Provincial Prosecutor
Mauro Castro, who also agreed to recommend cash bail of P100,000.00. The

Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of
11 July 1991.
Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct
preliminary investigation and cancelling the arraignment set for 15 August 1991 until
after the prosecution shall have concluded its preliminary investigation.
On 17 July 1991, however, respondent Judge motu proprio issued an
Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail was
recalled; petitioner was given 48 hours from receipt of the Order to surrender
himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to conduct
preliminary investigation was recalled and cancelled; (3) petitioner's omnibus motion
for immediate release and preliminary investigation dated 11 July 1991 was treated
as a petition for bail and set for hearing on 23 July 1991.
On 19 July 1991, petitioner filed a petition for certiorari, prohibition
and mandamus before the Supreme Court assailing the 17 July 1991 Order,
contending that the information was null and void because no preliminary
investigation had been previously conducted, in violation of his right to due process.
Petitioner also moved for suspension of all proceedings in the case pending resolution
by the Supreme Court of his petition; this motion was, however, denied by
respondent Judge.
On 23 July 1991, petitioner surrendered to the police.
By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari,
prohibition and mandamus to the Court of Appeals.
On 16 August 1991, respondent Judge issued an order in open court setting the
arraignment of petitioner on 23 August 1991.
On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his
arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the
Provincial Warden of Rizal to admit petitioner into his custody at the Rizal Provincial
Jail. On the same date, petitioner was arraigned. In view, however, of his refusal to
enter a plea, the trial court entered for him a plea of not guilty. The Trial court then
set the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3,
11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 78
On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of
Appeals. He alleged that in view of public respondent's failure to join issues in the
petition for certiorari earlier filed by him, after the lapse of more than a month, thus
prolonging his detention, he was entitled to be released on habeas corpus.
On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The
petition for certiorari, prohibition and mandamus, on the one hand, and the petition
for habeas corpus, upon the other, were subsequently consolidated in the Court of
Appeals.
The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's
motion to restrain his arraignment on the ground that that motion had become moot
and academic.
On 19 September 1991, trial of the criminal case commenced and the prosecution
presented its first witness.
On 23 September 1991, the Court of Appeals rendered a consolidated
decision 14 dismissing the two (2) petitions, on the following grounds:
a. Petitioner's warrantless arrest was valid because the offense for
which he was arrested and charged had been "freshly committed."
His identity had been established through investigation. At the time
he showed up at the police station, there had been an existing
manhunt for him. During the confrontation at the San Juan Police
Station, one witness positively identified petitioner as the culprit.
b. Petitioner's act of posting bail constituted waiver of any
irregularity attending his arrest. He waived his right to preliminary
investigation by not invoking it properly and seasonably under the
Rules.
c. The trial court did not abuse its discretion when it issued the 17
July 1991 Order because the trial court had the inherent power to
amend and control its processes so as to make them conformable
to law and justice.
d. Since there was a valid information for murder against petitioner
and a valid commitment order (issued by the trial judge after
petitioner surrendered to the authorities whereby petitioner was
given to the custody of the Provincial Warden), the petition
for habeas corpus could not be granted.

On 3 October 1991, the prosecution presented three (3) more witnesses at the trial.
Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the trial court,
with petitioner's conformity.
On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14
October 1991, the Court issued a Resolution directing respondent Judge to hold in
abeyance the hearing of the criminal case below until further orders from this Court.
In this Petition for Review, two (2) principal issues need to be addressed: first,
whether or not a lawful warrantless arrest had been effected by the San Juan Police
in respect of petitioner Go; and second, whether petitioner had effectively waived his
right to preliminary investigation. We consider these issues seriatim.
In respect of the first issue, the Solicitor General argues that under the facts of the
case, petitioner had been validly arrested without warrant. Since petitioner's identity
as the gunman who had shot Eldon Maguan on 2 July 1991 had been sufficiently
established by police work, petitioner was validly arrested six (6) days later at the San
Juan Police Station. The Solicitor General invokes Nazareno v. Station Commander,
etc., et al., 16 one of the seven (7) cases consolidated with In the Matter of the
Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17 where a majority
of the Court upheld a warrantees arrest as valid although effected fourteen (14) days
after the killing in connection with which Nazareno had been arrested. Accordingly, in
the view of the Solicitor General, the provisions of Section 7, Rule 112 of the Rules of
Court were applicable and because petitioner had declined to waive the provisions of
Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the
information for murder even without preliminary investigation.
On the other hand, petitioner argues that he was not lawfully arrested without
warrant because he went to the police station six (6) days after the shooting which
he had allegedly perpetrated. Thus, petitioner argues, the crime had not been "just
committed" at the time that he was arrested. Moreover, none of the police officers
who arrested him had been an eyewitness to the shooting of Maguan and accordingly
none had the "personal knowledge" required for the lawfulness of a warrantees
arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the
Rules of Court which establishes the only exception to the right to preliminary
investigation, could not apply in respect of petitioner.
The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the
circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the
Court sustained the legality of the warrantless arrests of petitioners made from one
(1) to fourteen days after the actual commission of the offenses, upon the ground
that such offenses constituted "continuing crimes." Those offenses were subversion,
membership in an outlawed organization like the New People's Army, etc. In the
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 79
instant case, the offense for which petitioner was arrested was murder, an offense
which was obviously commenced and completed at one definite location in time and
space. No one had pretended that the fatal shooting of Maguan was a "continuing
crime."
Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in
the instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on
Criminal Procedure which provides as follows:
Sec. 5 Arrest without warrant; when lawful. — A peace officer or a
private person may, without warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be
arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceed against in
accordance with Rule 112, Section 7.
Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The
"arresting" officers obviously were not present, within the meaning of Section 5(a), at
the time petitioner had allegedly shot Maguan. Neither could the "arrest" effected six
(6) days after the shooting be reasonably regarded as effected "when [the shooting
had] in fact just been committed" within the meaning of Section 5(b). Moreover,
none of the "arresting" officers had any "personal knowledge" of facts indicating that
petitioner was the gunman who had shot Maguan. The information upon which the
police acted had been derived from statements made by alleged eyewitnesses to the
shooting — one stated that petitioner was the gunman; another was able to take
down the alleged gunman's car's plate number which turned out to be registered in
petitioner's wife's name. That information did not, however, constitute "personal
knowledge." 18

It is thus clear to the Court that there was no lawful warrantless arrest of petitioner
within the meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112,
which provides:
Sec. 7 When accused lawfully arrested without warrant. — When a
person is lawfully arrested without a warrant for an offense
cognizable by the Regional Trial Court the complaint or information
may be filed by the offended party, peace officer or fiscal without a
preliminary investigation having been first conducted, on the basis
of the affidavit of the offended party or arresting office or person
However, before the filing of such complaint or information, the
person arrested may ask for a preliminary investigation by a proper
officer in accordance with this Rule, but he must sign a waiver of
the provisions of Article 125 of the Revised Penal Code, as
amended, with the assistance of a lawyer and in case of non-
availability of a lawyer, a responsible person of his
choice. Notwithstanding such waiver, he may apply for bail as
provided in the corresponding rule and the investigation must be
terminated within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary
investigation having been first conducted, the accused may within
five (5) days from the time he learns of the filing of the
information, ask for a preliminary investigation with the same right
to adduce evidence in his favor in the manner prescribed in this
Rule. (Emphasis supplied)
is also not applicable. Indeed, petitioner was not arrested at all. When he walked into
San Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself at
the disposal of the police authorities. He did not state that he was "surrendering"
himself, in all probability to avoid the implication he was admitting that he had slain
Eldon Maguan or that he was otherwise guilty of a crime. When the police filed a
complaint for frustrated homicide with the Prosecutor, the latter should have
immediately scheduled a preliminary investigation to determine whether there was
probable cause for charging petitioner in court for the killing of Eldon Maguan.
Instead, as noted earlier, the Prosecutor proceed under the erroneous supposition
that Section 7 of Rule 112 was applicable and required petitioner to waive the
provisions of Article 125 of the Revised Penal Code as a condition for carrying out a
preliminary investigation. This was substantive error, for petitioner was entitled to a
preliminary investigation and that right should have been accorded him without any
conditions. Moreover, since petitioner had not been arrested, with or without a
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 80
warrant, he was also entitled to be released forthwith subject only to his appearing at
the preliminary investigation.
Turning to the second issue of whether or not petitioner had waived his right to
preliminary investigation, we note that petitioner had from the very beginning
demanded that a preliminary investigation be conducted. As earlier pointed out, on
the same day that the information for murder was filed with the Regional Trial Court,
petitioner filed with the Prosecutor an omnibus motion for immediate release and
preliminary investigation. The Solicitor General contends that that omnibus motion
should have been filed with the trial court and not with the Prosecutor, and that the
petitioner should accordingly be held to have waived his right to preliminary
investigation. We do not believe that waiver of petitioner's statutory right to
preliminary investigation may be predicated on such a slim basis. The preliminary
investigation was to be conducted by the Prosecutor, not by the Regional Trial Court.
It is true that at the time of filing of petitioner's omnibus motion, the information for
murder had already been filed with the Regional Trial Court: it is not clear from the
record whether petitioner was aware of this fact at the time his omnibus motion was
actually filed with the Prosecutor. In Crespo v. Mogul, 19 this Court held:
The preliminary investigation conducted by the fiscal for the
purpose of determining whether a prima facie case exists to
warranting the prosecution of the accused is terminated upon the
filing of the information in the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal
action against the accused in Court. Should the fiscal find it proper
to conduct a reinvestigation of the case, at such stage, the
permission of the Court must be secured. After such reinvestigation
the finding and recommendations of the fiscal should be submitted
to the Court for appropriate action.While it is true that the fiscal
has the quasi-judicial discretion to determine whether or not a
criminal case should be filed in court or not, once the case had
already been brought to Court whatever disposition the fiscal may
feel should be proper in the case thereafter should be addressed
for the consideration of the Court. The only qualification is that the
action of the Court must not impair the substantial rights of the
accused., or the right of the People to due process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case [such] as its
dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the

direction and control of the prosecution of criminal cases even
while the case is already in Court he cannot impose his opinion on
the trial court. The Court is the best and sole judge on what to do
with the case before it. . . . 20 (Citations omitted; emphasis
supplied)
Nonetheless, since petitioner in his omnibus motion was asking for
preliminary investigation and not for a re-investigation (Crespo v. Mogul
involved a re-investigation), and since the Prosecutor himself did file with
the trial court, on the 5th day after filing the information for murder, a
motion for leave to conduct preliminary investigation (attaching to his
motion a copy of petitioner's omnibus motion), we conclude that petitioner's
omnibus motion was in effect filed with the trial court. What was crystal
clear was that petitioner did ask for a preliminary investigation on the very
day that the information was filed without such preliminary investigation,
and that the trial court was five (5) days later apprised of the desire of the
petitioner for such preliminary investigation. Finally, the trial court did in
fact grant the Prosecutor's prayer for leave to conduct preliminary
investigation. Thus, even on the (mistaken) supposition apparently made by
the Prosecutor that Section 7 of Rule 112 of the Revised Court was
applicable, the 5-day reglementary period in Section 7, Rule 112 must be
held to have been substantially complied with.
We believe and so hold that petitioner did not waive his right to a preliminary
investigation. While that right is statutory rather than constitutional in its fundament,
since it has in fact been established by statute, it is a component part of due process
in criminal justice. 21 The right to have a preliminary investigation conducted before
being bound over to trial for a criminal offense and hence formally at risk of
incarceration or some other penalty, is not a mere formal or technical right; it is
a substantive right. The accused in a criminal trial is inevitably exposed to prolonged
anxiety, aggravation, humiliation, not to speak of expense; the right to an
opportunity to avoid a process painful to any one save, perhaps, to hardened
criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation
would be to deprive him the full measure of his right to due process.
The question may be raised whether petitioner still retains his right to a preliminary
investigation in the instant case considering that he was already arraigned on 23
August 1991. The rule is that the right to preliminary investigation is waived when the
accused fails to invoke it before or at the time of entering a plea at arraignment. 22 In
the instant case, petitioner Go had vigorously insisted on his right to preliminary
investigation before his arraignment. At the time of his arraignment, petitioner was
already before the Court of Appeals on certiorari, prohibition and mandamusprecisely
asking for a preliminary investigation before being forced to stand trial.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 81
Again, in the circumstances of this case, we do not believe that by posting bail
petitioner had waived his right to preliminary investigation. In People
v. Selfaison, 23 we did hold that appellants there had waived their right to preliminary
investigation because immediately after their arrest, they filed bail and proceeded to
trial "without previously claiming that they did not have the benefit of a preliminary
investigation." 24 In the instant case, petitioner Go asked for release on recognizance
or on bail and for preliminary investigation in one omnibus motion. He had thus
claimed his right to preliminary investigation before respondent Judge approved the
cash bond posted by petitioner and ordered his release on 12 July 1991. Accordingly,
we cannot reasonably imply waiver of preliminary investigation on the part of
petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to
conduct preliminary investigation, he clearly if impliedly recognized that petitioner's
claim to preliminary investigation was a legitimate one.
We would clarify, however, that contrary to petitioner's contention the failure to
accord preliminary investigation, while constituting a denial of the appropriate and full
measure of the statutory process of criminal justice, did not impair the validity of the
information for murder nor affect the jurisdiction of the trial court. 25
It must also be recalled that the Prosecutor had actually agreed that petitioner was
entitled to bail. This was equivalent to an acknowledgment on the part of the
Prosecutor that the evidence of guilt then in his hands was not strong. Accordingly,
we consider that the 17 July 1991 order of respondent Judge recalling his own order
granting bail and requiring petitioner to surrender himself within forty-eight (48)
hours from notice, was plainly arbitrary considering that no evidence at all — and
certainly no new or additional evidence — had been submitted to respondent Judge
that could have justified the recall of his order issued just five (5) days before. It
follows that petitioner was entitled to be released on bail as a matter of right.
The final question which the Court must face is this: how does the fact that, in the
instant case, trial on the merits has already commenced, the Prosecutor having
already presented four (4) witnesses, impact upon, firstly, petitioner's right to a
preliminary investigation and, secondly, petitioner's right to be released on bail? Does
he continue to be entitled to have a preliminary investigation conducted in respect of
the charge against him? Does petitioner remain entitled to be released on bail?
Turning first to the matter of preliminary investigation, we consider that petitioner
remains entitled to a preliminary investigation although trial on the merits has already
began. Trial on the merits should be suspended or held in abeyance and a
preliminary investigation forthwith accorded to petitioner. 26 It is true that the
Prosecutor might, in view of the evidence that he may at this time have on hand,
conclude that probable cause exists; upon the other hand, the Prosecutor conceivably
could reach the conclusion that the evidence on hand does not warrant a finding of
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 82

probable cause. In any event, the constitutional point is that petitioner ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari.
was not accorded what he was entitled to by way of procedural due The Order of the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED,
process. 27 Petitioner was forced to undergo arraignment and literally pushed to trial and the Decision of the Court of Appeals dated 23 September 1991 hereby
without preliminary investigation, with extraordinary haste, to the applause from the REVERSED.
audience that filled the courtroom. If he submitted to arraignment at trial, petitioner
did so "kicking and screaming," in a manner of speaking . During the proceedings The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a
held before the trial court on 23 August 1991, the date set for arraignment of preliminary investigation of the charge of murder against petitioner Go, and to
petitioner, and just before arraignment, counsel made very clear petitioner's vigorous complete such preliminary investigation within a period of fifteen (15) days from
protest and objection to the arraignment precisely because of the denial of commencement thereof. The trial on the merits of the criminal case in the Regional
preliminary investigation. 28 So energetic and determined were petitioner's counsel's Trial Court shall be SUSPENDED to await the conclusion of the preliminary
protests and objections that an obviously angered court and prosecutor dared him to investigation.
withdraw or walkout, promising to replace him with counsel de oficio. During the trial,
before the prosecution called its first witness, petitioner through counsel once again
Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash
reiterated his objection to going to trial without preliminary investigation: petitioner's
bail bond of One Hundred Thousand Pesos (P100,000.00). This release shall be
counsel made of record his "continuing objection." 29 Petitioner had promptly gone to
without prejudice to any lawful order that the trial court may issue, should the Office
the appellate court on certiorari and prohibition to challenge the lawfulness of the
of the Provincial Prosecutor move for cancellation of bail at the conclusion of the
procedure he was being forced to undergo and the lawfulness of his detention.30 If he
preliminary investigation.
did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it
was because he was extremely loath to be represented by counsel de oficio selected
by the trial judge, and to run the risk of being held to have waived also his right to No pronouncement as to costs. This Decision is immediately executory.
use what is frequently the only test of truth in the judicial process.
SO ORDERED.
In respect of the matter of bail, we similarly believe and so hold that petitioner
remains entitled to be released on bail as a matter of right. Should the evidence Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur.
already of record concerning petitioner's guilt be, in the reasonable belief of the
Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of
petitioner's bail. It would then be up to the trial court, after a careful and objective
assessment of the evidence on record, to grant or deny the motion for cancellation of
bail.

To reach any other conclusions here, that is, to hold that petitioner's rights to a
preliminary investigation and to bail were effectively obliterated by evidence
subsequently admitted into the record would be to legitimize the deprivation of due
process and to permit the Government to benefit from its own wrong or culpable
omission and effectively to dilute important rights of accused persons well-nigh to the
vanishing point. It may be that to require the State to accord petitioner his rights to a
preliminary investigation and to bail at this point, could turn out ultimately to be
largely a ceremonial exercise. But the Court is not compelled to speculate. And, in
any case, it would not be idleceremony; rather, it would be a celebration by the State
of the rights and liberties of its own people and a re-affirmation of its obligation and
determination to respect those rights and liberties.

THIRD DIVISION
[G.R. No. 121917. March 12, 1997]
ROBIN CARIO PADILLA @ ROBINHOOD PADILLA, petitioner, vs. COURT OF
APPEALS and PEOPLE of the PHILIPPINES, respondents.
DECISION
FRANCISCO, J.:
On October 26, 1992, high-powered firearms with live ammunitions were found
in the possession of petitioner Robin Padilla @ Robinhood Padilla, i.e.:
"(1) One .357 Caliber revolver, Smith and Wesson, SN-32919 with six (6)
live ammunitions;
"(2) One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long
and one (1) short magazine with ammunitions;
"(3) One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8)
ammunitions; and
"(4) Six additional live double action ammunitions of .38 caliber
revolver."[1]
Petitioner was correspondingly charged on December 3, 1992, before the
Regional Trial Court (RTC) of Angeles City with illegal possession of firearms and
ammunitions under P.D. 1866[2] thru the following Information:[3]
"That on or about the 26th day of October, 1992, in the City of Angeles,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, did then and there willfully, unlawfully and feloniously
have in his possession and under his custody and control one (1) M-16
Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short
magazines with ammunitions, one (1) .357 caliber revolver Smith and
Wesson, SN-32919 with six (6) live ammunitions and one (1) .380 Pietro
Beretta, SN-A35723Y with clip and eight (8) ammunitions, without having
the necessary authority and permit to carry and possess the same.
ALL CONTRARY TO LAW."[4]
The lower court then ordered the arrest of petitioner,[5] but granted his application for
bail.[6] During the arraignment on January 20, 1993, a plea of not guilty was entered
for petitioner after he refused,[7] upon advice of counsel,[8] to make any
plea.[9] Petitioner waived in writing his right to be present in any and all stages of the
case.[10]
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 83
After trial, Angeles City RTC Judge David Rosete rendered judgment dated April
25, 1994 convicting petitioner of the crime charged and sentenced him to an
"indeterminate penalty from 17 years, 4 months and 1 day of reclusion temporal as
minimum, to 21 years of reclusion perpetua, as maximum".[11] Petitioner filed his notice
of appeal on April 28, 1994.[12] Pending the appeal in the respondent Court of
Appeals,[13] the Solicitor-General, convinced that the conviction shows strong evidence
of guilt, filed on December 2, 1994 a motion to cancel petitioner's bail bond. The
resolution of this motion was incorporated in the now assailed respondent court's
decision sustaining petitioner's conviction,[14] the dispositive portion of which reads:
"WHEREFORE, the foregoing circumstances considered, the appealed
decision is hereby AFFIRMED, and furthermore, the P200,000.00 bailbond
posted by accused-appellant for his provisional liberty, FGU Insurance
Corporation Bond No. JCR (2) 6523, is hereby cancelled. The Regional Trial
Court, Branch 61, Angeles City, is directed to issue the Order of Arrest of
accused-appellant and thereafter his transmittal to the National Bureau of
Prisons thru the Philippine National Police where the said accused-
appellant shall remain under confinement pending resolution of his appeal,
should he appeal to the Supreme Court. This shall be immediately
executory. The Regional Trial Court is further directed to submit a report of
compliance herewith.
SO ORDERED."[15]
Petitioner received a copy of this decision on July 26, 1995. [16] On August 9, 1995 he
filed a "motion for reconsideration (and to recall the warrant of arrest)"[17] but the same
was denied by respondent court in its September 20, 1995 Resolution,[18] copy of which
was received by petitioner on September 27, 1995. The next day, September 28,
petitioner filed the instant petition for review on certiorari with application for
bail[19] followed by two "supplemental petitions" filed by different counsels,[20] a
"second supplemental petition"[21] and an urgent motion for the separate resolution of
his application for bail. Again, the Solicitor-General[22] sought the denial of the
application for bail, to which the Court agreed in a Resolution promulgated on July 31,
1996.[23] The Court also granted the Solicitor-General's motion to file a consolidated
comment on the petitions and thereafter required the petitioner to file his
reply.[24] However, after his vigorous resistance and success on the intramural of bail
(both in the respondent court and this Court) and thorough exposition of petitioner's
guilt in his 55-page Brief in the respondent court, the Solicitor-General now makes a
complete turnabout by filing a "Manifestation In Lieu Of Comment" praying for
petitioner's acquittal.[25]
The People's detailed narration of facts, well-supported by evidence on record
and given credence by respondent court, is as follows:[26]

"At about 8:00 o'clock in the evening of October 26, 1992, Enrique
Manarang and his compadre Danny Perez were inside the Manukan sa
Highway Restaurant in Sto. Kristo, Angeles City where they took shelter
from the heavy downpour (pp. 5-6, TSN, February 15, 1993) that had
interrupted their ride on motorcycles (pp. 5-6, ibid.) along McArthur
Highway (ibid). While inside the restaurant, Manarang noticed a vehicle, a
Mitsubishi Pajero, running fast down the highway prompting him to remark
that the vehicle might get into an accident considering the inclement
weather. (p. 7, Ibid) In the local vernacular, he said thus: 'Ka bilis na,
mumuran pa naman pota makaaksidente ya.' (p. 7, ibid). True enough,
immediately after the vehicle had passed the restaurant, Manarang and
Perez heard a screeching sound produced by the sudden and hard braking
of a vehicle running very fast (pp. 7-8, ibid) followed by a sickening sound
of the vehicle hitting something (p. 8, ibid). Danny Cruz, quite sure of what
had happened, remarked 'oy ta na' signifying that Manarang had been
right in his observation (pp. 8-9, ibid).
"Manarang and Cruz went out to investigate and immediately saw the
vehicle occupying the edge or shoulder of the highway giving it a slight tilt
to its side (pp. 9-10, ibid). Manarang, being a member of both the
Spectrum, a civic group and the Barangay Disaster Coordinating Council,
decided to report the incident to the Philippine National Police of Angeles
City (p. 10, ibid). He took out his radio and called the Viper, the radio
controller of the Philippine National Police of Angeles City (p. 10, ibid). By
the time Manarang completed the call, the vehicle had started to leave the
place of the accident taking the general direction to the north (p. 11, ibid).
"Manarang went to the location of the accident and found out that the
vehicle had hit somebody (p. 11, ibid).
"He asked Cruz to look after the victim while he went back to the
restaurant, rode on his motorcycle and chased the vehicle (p.
11 ibid). During the chase he was able to make out the plate number of
the vehicle as PMA 777 (p. 33, TSN, February 15, 1993). He called
the Viper through the radio once again (p. 34, ibid) reporting that a vehicle
heading north with plate number PMA 777 was involved in a hit and run
accident (p. 20, TSN, June 8, 1993). The Viper, in the person of SPO2
Ruby Buan, upon receipt of the second radio call flashed the message to
all units of PNP Angeles City with the order to apprehend the vehicle (p.
20, ibid). One of the units of the PNP Angeles City reached by the alarm
was its Patrol Division at Jake Gonzales Street near the Traffic Division (pp.
5-7, TSN, February 23, 1993). SPO2 Juan C. Borja III and SPO2 Emerlito
Miranda immediately borded a mobile patrol vehicle (Mobile No. 3) and
positioned themselves near the south approach of Abacan bridge since it
was the only passable way going to the north (pp. 8-9, ibid). It took them
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 84
about ten (10) seconds to cover the distance between their office and the
Abacan bridge (p. 9, ibid).
"Another PNP mobile patrol vehicle that responded to the flash message
from SPO2 Buan was Mobile No. 7 of the Pulongmaragal Detachment
which was then conducting patrol along Don Juico Avenue (pp. 8-9, TSN,
March 8, 1993). On board were SPO Ruben Mercado and SPO3 Tan and
SPO2 Odejar (p. 8, ibid). SPO Ruben Mercado immediately told SPO3 Tan
to proceed to the MacArthur Highway to intercept the vehicle with plate
number PMA 777 (p. 10, ibid).
"In the meantime, Manarang continued to chase the vehicle which figured
in the hit and run incident, even passing through a flooded portion of the
MacArthur Highway two (2) feet deep in front of the Iglesia ni Kristo
church but he could not catch up with the same vehicle (pp. 11-12,
February 15, 1993). When he saw that the car he was chasing went
towards Magalang, he proceeded to Abacan bridge because he knew
Pulongmaragal was not passable (pp. 12-14, ibid). When he reached the
Abacan bridge, he found Mobile No. 3 and SPO2 Borja and SPO2 Miranda
watching all vehicles coming their way (p. 10, TSN, February 23, 1993). He
approached them and informed them that there was a hit and run incident
(p. 10,ibid). Upon learning that the two police officers already knew about
the incident, Manarang went back to where he came from (pp. 10-
11; ibid). When Manarang was in front of Tina's Restaurant, he saw the
vehicle that had figured in the hit and run incident emerging from the
corner adjoining Tina's Restaurant (p. 15, TSN, February 15, 1993). He
saw that the license plate hanging in front of the vehicle bore the
identifying number PMA 777 and he followed it (p. 15, ibid) towards the
Abacan bridge.
"Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda of
Mobile No. 3 (p. 10, TSN, February 23, 1993). When the vehicle was about
twelve (12) meters away from their position, the two police officers
boarded their Mobile car, switched on the engine, operated the siren and
strobe light and drove out to intercept the vehicle (p. 11, ibid). They cut
into the path of the vehicle forcing it to stop (p. 11, ibid).
"SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (P. 12, TSN,
February 23, 1993). SPO2 Miranda went to the vehicle with plate number
PMA 777 and instructed its driver to alight (p. 12, ibid). The driver rolled
down the window and put his head out while raising both his hands. They
recognized the driver as Robin C. Padilla, appellant in this case (p.
13, ibid). There was no one else with him inside the vehicle (p. 24). At that
moment, Borja noticed that Manarang arrived and stopped his motorcycle
behind the vehicle of appellant (p. 14, ibid). SPO2 Miranda told appellant

to alight to which appellant complied. Appellant was wearing a short
leather jacket (p. 16, TSN, March 8, 1993) such that when he alighted with
both his hands raised, a gun (Exhibit 'C') tucked on the left side of his
waist was revealed (p. 15, TSN, February 23, 1993), its butt protruding (p.
15, ibid). SPO2 Borja made the move to confiscate the gun but appellant
held the former's hand alleging that the gun was covered by legal papers
(p. 16, ibid). SPO2 Borja, however, insisted that if the gun really was
covered by legal papers, it would have to be shown in the office (p.
16, ibid). After disarming appellant, SPO2 Borja told him about the hit and
run incident which was angrily denied by appellant (p. 17, ibid). By that
time, a crowd had formed at the place (p. 19, ibid). SPO2 Borja checked
the cylinder of the gun and find six (6) live bullets inside (p. 20, ibid).
"While SPO2 Borja and appellant were arguing, Mobile No. 7 with SPO
Ruben Mercado, SPO3 Tan and SPO2 Odejar on board arrived (pp. 11-12,
TSN, March 8, 1993). As the most senior police officer in the group, SPO
Mercado took over the matter and informed appellant that he was being
arrested for the hit and run incident (p. 13, ibid). He pointed out to
appellant the fact that the plate number of his vehicle was dangling and
the railing and the hood were dented (p. 12, ibid). Appellant,
however, arrogantly denied his misdeed and, instead, played with the
crowd by holding their hands with one hand and pointing to SPO3 Borja
with his right hand saying 'iyan, kinuha ang baril ko' (pp. 13-
15, ibid). Because appellant's jacket was short, his gesture exposed a long
magazine of an armalite rifle tucked in appellant's back right pocket (p.
16, ibid). SPO Mercado saw this and so when appellant turned around as
he was talking and proceeding to his vehicle, Mercado confiscated the
magazine from appellant (pp. 16-17, ibid). Suspecting that appellant could
also be carrying a rifle inside the vehicle since he had a magazine, SPO2
Mercado prevented appellant from going back to his vehicle by opening
himself the door of appellant's vehicle (16-17, ibid). He saw a baby
armalite rifle (Exhibit D) lying horizontally at the front by the driver's
seat. It had a long magazine filled with live bullets in a semi-automatic
mode (pp. 17-21, ibid). He asked appellant for the papers covering the
rifle and appellant answered angrily that they were at his home (pp. 26-
27, ibid). SPO Mercado modified the arrest of appellant by including as its
ground illegal possession of firearms (p. 28, ibid). SPO Mercado then read
to appellant his constitutional rights (pp. 28-29, ibid).
"The police officers brought appellant to the Traffic Division at Jake
Gonzales Boulevard (pp. 31-32, ibid) where appellant voluntarily
surrendered a third firearm, a pietro berreta pistol(Exhibit 'L') with a single
round in its chamber and a magazine (pp. 33-35, ibid) loaded with seven
(7) other live bullets. Appellant also voluntarily surrendered a black bag
containing two additional long magazines and one short magazine (Exhibits
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 85
M, N, and O, pp. 36-37, ibid). After appellant had been interrogated by the
Chief of the Traffic Division, he was transferred to the Police Investigation
Division at Sto. Rosario Street beside the City Hall Building where he and
the firearms and ammunitions were turned over to SPO2 Rene Jesus
Gregorio (pp. 5-10, TSN, July 13, 1993). During the investigation,
appellant admitted possession of the firearms stating that he used them
for shooting (p. 14, ibid). He was not able to produce any permit to carry
or memorandum receipt to cover the three firearms (pp. 16-18, TSN,
January 25, 1994).
"On November 28, 1992, a certification (Exhibit 'F') was issued by Captain,
Senior Inspector Mario Espino, PNP, Chief, Record Branch of the Firearms
and Explosives Office (pp. 7-8, TSN, March 4, 1993). The Certification
stated that the three firearms confiscated from appellant, an M-16 Baby
armalite rifle SN-RP 131280, a .357 caliber revolver Smith and Wesson SN
32919 and a .380 Pietro Beretta SN-A35720, were not registered in the
name of Robin C. Padilla (p. 6, ibid). A second Certification dated
December 11, 1992 issued by Captain Espino stated that the three
firearms were not also registered in the name of Robinhood C. Padilla (p.
10, ibid)."
Petitioner's defenses are as follows: (1) that his arrest was illegal and
consequently, the firearms and ammunitions taken in the course thereof are
inadmissible in evidence under the exclusionary rule; (2) that he is a confidential agent
authorized, under a Mission Order and Memorandum Receipt, to carry the subject
firearms; and (3) that the penalty for simple illegal possession constitutes excessive
and cruel punishment proscribed by the 1987 Constitution.
After a careful review of the records[27]of this case, the Court is convinced that
petitioner's guilt of the crime charged stands on terra firma, notwithstanding the
Solicitor-General's change of heart.
Anent the first defense, petitioner questions the legality of his arrest. There is
no dispute that no warrant was issued for the arrest of petitioner, but that per se did
not make his apprehension at the Abacan bridge illegal.
Warrantless arrests are sanctioned in the following instances:[28]
"Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;

(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be
arrested has committed it.
(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.
Paragraph (a) requires that the person be arrested (i) after he has committed or while
he is actually committing or is at least attempting to commit an offense, (ii) in the
presence of the arresting officer or private person. [29] Both elements concurred here,
as it has been established that petitioner's vehicle figured in a hit and run - an offense
committed in the "presence" of Manarang, a private person, who then sought to arrest
petitioner. It must be stressed at this point that "presence" does not only require that
the arresting person sees the offense, but also when he "hears the disturbance created
thereby AND proceeds at once to the scene."[30] As testified to by Manarang, he heard
the screeching of tires followed by a thud, saw the sideswiped victim ( balut vendor),
reported the incident to the police and thereafter gave chase to the erring Pajero
vehicle using his motorcycle in order to apprehend its driver. After having sent a radio
report to the PNP for assistance, Manarang proceeded to the Abacan bridge where he
found responding policemen SPO2 Borja and SPO2 Miranda already positioned near the
bridge who effected the actual arrest of petitioner.[31]
Petitioner would nonetheless insist on the illegality of his arrest by arguing that
the policemen who actually arrested him were not at the scene of the hit and
run.[32] We beg to disagree. That Manarang decided to seek the aid of the policemen
(who admittedly were nowhere in the vicinity of the hit and run) in effecting petitioner's
arrest, did not in any way affect the propriety of the apprehension. It was in fact the
most prudent action Manarang could have taken rather than collaring petitioner by
himself, inasmuch as policemen are unquestionably better trained and well-equipped
in effecting an arrest of a suspect (like herein petitioner) who , in all probability, could
have put up a degree of resistance which an untrained civilian may not be able to
contain without endangering his own life. Moreover, it is a reality that curbing
lawlessness gains more success when law enforcers function in collaboration with
private citizens. It is precisely through this cooperation, that the offense herein involved
fortunately did not become an additional entry to the long list of unreported and
unsolved crimes.
It is appropriate to state at this juncture that a suspect, like petitioner herein,
cannot defeat the arrest which has been set in motion in a public place for want of a
warrant as the police was confronted by an urgent need to render aid or take
action.[33] The exigent circumstances of - hot pursuit,[34] a fleeing suspect, a moving
vehicle, the public place and the raining nighttime - all created a situation in which
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 86
speed is essential and delay improvident.[35] The Court acknowledges police authority
to make the forcible stop since they had more than mere "reasonable and
articulable" suspicion that the occupant of the vehicle has been engaged in criminal
activity.[36] Moreover, when caught in flagrante delicto with possession of an
unlicensed firearm (Smith & Wesson) and ammunition (M-16 magazine), petitioner's
warrantless arrest was proper as he was again actually committing another offense
(illegal possession of firearm and ammunitions) and this time in the presence of a peace
officer.[37]
Besides, the policemen's warrantless arrest of petitioner could likewise be justified
under paragraph (b) as he had in fact just committed an offense. There was no
supervening event or a considerable lapse of time between the hit and run and the
actual apprehension. Moreover, after having stationed themselves at the Abacan bridge
in response to Manarang's report, the policemen saw for themselves the fast
approaching Pajero of petitioner,[38] its dangling plate number (PMA 777 as reported
by Manarang), and the dented hood and railings thereof.[39] These formed part of the
arresting police officer's personal knowledge of the facts indicating that petitioner's
Pajero was indeed the vehicle involved in the hit and run incident. Verily then, the
arresting police officers acted upon verified personal knowledge and not on unreliable
hearsay information.[40]
Furthermore, in accordance with settled jurisprudence, any objection, defect or
irregularity attending an arrest must be made before the accused enters his
plea.[41]Petitioner's belated challenge thereto aside from his failure to quash the
information, his participation in the trial and by presenting his evidence, placed him
in estoppel to assail the legality of his arrest.[42] Likewise, by applying for bail, petitioner
patently waived such irregularities and defects.[43]
We now go to the firearms and ammunitions seized from petitioner without a
search warrant, the admissibility in evidence of which, we uphold.
The five (5) well-settled instances when a warrantless search and seizure of
property is valid,[44] are as follows:
1. warrantless search incidental to a lawful arrest recognized under
Section 12, Rule 126 of the Rules of Court[45] and by prevailing
jurisprudence[46],
2. Seizure of evidence in "plain view", the elements of which are:[47]
(a). a prior valid intrusion based on the valid warrantless
arrest in which the police are legally present in the pursuit
of their official duties;
(b). the evidence was inadvertently discovered by the
police who had the right to be where they are;

(c). the evidence must be immediately apparent, and
(d). "plain view" justified mere seizure of evidence without
further search.[48]
3. search of a moving vehicle.[49] 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.[50]
4. consented warrantless search, and
5. customs search.
In conformity with respondent court's observation, it indeed appears that the
authorities stumbled upon petitioner's firearms and ammunitions without even
undertaking any active search which, as it is commonly understood, is a prying into
hidden places for that which is concealed.[51] The seizure of the Smith & Wesson
revolver and an M-16 rifle magazine was justified for they came within "plain view" of
the policemen who inadvertently discovered the revolver and magazine tucked in
petitioner's waist and back pocket respectively, when he raised his hands after alighting
from his Pajero. The same justification applies to the confiscation of the M-16 armalite
rifle which was immediately apparent to the policemen as they took a casual glance at
the Pajero and saw said rifle lying horizontally near the driver's seat. [52] Thus it has
been held that:
"(W)hen in pursuing an illegal action or in the commission of a criminal
offense, the . . . police officers should happen to discover a criminal
offense being committed by any person, they are not precluded from
performing their duties as police officers for the apprehension of the guilty
person and the taking of the corpus delicti."[53]
"Objects whose possession are prohibited by law inadvertently found in
plain view are subject to seizure even without a warrant."[54]
With respect to the Berreta pistol and a black bag containing assorted magazines,
petitioner voluntarily surrendered them to the police.[55] This latter gesture of petitioner
indicated a waiver of his right against the alleged search and seizure[56], and that his
failure to quash the information estopped him from assailing any purported defect.[57]
Even assuming that the firearms and ammunitions were products of an active
search done by the authorities on the person and vehicle of petitioner, their seizure
without a search warrant nonetheless can still be justified under a search incidental to
a lawful arrest (first instance). Once the lawful arrest was effected, the police may
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 87
undertake a protective search[58] of the passenger compartment and containers in the
vehicle[59] which are within petitioner's grabbing distance regardless of the nature of
the offense.[60]This satisfied the two-tiered test of an incidental search: (i) the item to
be searched (vehicle) was within the arrestee's custody or area of immediate
control[61] and (ii) the search was contemporaneous with the arrest.[62] The products
of that search are admissible evidence not excluded by the exclusionary rule. Another
justification is a search of a moving vehicle (third instance). In connection therewith, a
warrantless search is constitutionally permissible when, as in this case, the officers
conducting the search have reasonable or probable cause to believe, before the search,
that either the motorist is a law-offender (like herein petitioner with respect to the hit
and run) or the contents or cargo of the vehicle are or have been instruments or the
subject matter or the proceeds of some criminal offense.[63]
Anent his second defense, petitioner contends that he could not be convicted
of violating P.D. 1866 because he is an appointed civilian agent authorized to possess
and carry the subject firearms and ammunition as evidenced by a Mission Order[64] and
Memorandum Receipt duly issued by PNP Supt. Rodialo Gumtang, the deputy
commander of Task Force Aguila, Lianga, Surigao del Sur. The contention lacks merit.
In crimes involving illegal possession of firearm, two requisites must be
established, viz.: (1) the existence of the subject firearm and, (2) the fact that the
accused who owned or possessed the firearm does not have the corresponding license
or permit to possess.[65] The first element is beyond dispute as the subject firearms
and ammunitions[66] were seized from petitioner's possession via a valid warrantless
search, identified and offered in evidence during trial. As to the second element, the
same was convincingly proven by the prosecution. Indeed, petitioner's purported
Mission Order and Memorandum Receipt are inferior in the face of the more formidable
evidence for the prosecution as our meticulous review of the records reveals that the
Mission Order and Memorandum Receipt were mere afterthoughts contrived and issued
under suspicious circumstances. On this score, we lift from respondent court's incisive
observation. Thus:
"Appellant's contention is predicated on the assumption that the
Memorandum Receipts and Mission Order were issued before the subject
firearms were seized and confiscated from him by the police officers in
Angeles City. That is not so. The evidence adduced indicate that the
Memorandum Receipts and Mission Order were prepared and executed
long after appellant had been apprehended on October 26, 1992.
"Appellant, when apprehended, could not show any document as proof of
his authority to possess and carry the subject firearms. During the
preliminary investigation of the charge against him for illegal possession of
firearms and ammunitions he could not, despite the ample time given him,
present any proper document showing his authority. If he had, in actuality,
the Memorandum Receipts and Missions Order, he could have produced

those documents easily, if not at the time of apprehension, at least during
the preliminary investigation. But neither appellant nor his counsel inform
the prosecutor that appellant is authorized to possess and carry the
subject firearms under Memorandum Receipt and Mission Order. At the
initial presentation of his evidence in court, appellant could have produced
these documents to belie the charged against him. Appellant did not. He
did not even take the witness stand to explain his possession of the
subject firearms.
"Even in appellant's Demurrer to Evidence filed after the prosecution
rested contain no allegation of a Memorandum Receipts and Mission Order
authorizing appellant to possess and carry the subject firearms.
"At the initial presentation of appellant's evidence, the witness cited was
one James Neneng to whom a subpoena was issued. Superintendent
Gumtang was not even mentioned. James Neneng appeared in court but
was not presented by the defense. Subsequent hearings were reset until
the defense found Superintendent Gumtang who appeared in court
without subpoena on January 13, 1994."[67]
The Court is baffled why petitioner failed to produce and present the Mission
Order and Memorandum Receipt if they were really issued and existing before his
apprehension. Petitioner's alternative excuses that the subject firearms were intended
for theatrical purposes, or that they were owned by the Presidential Security Group, or
that his Mission Order and Memorandum Receipt were left at home, further compound
their irregularity. As to be reasonably expected, an accused claiming innocence, like
herein petitioner, would grab the earliest opportunity to present the Mission Order and
Memorandum Receipt in question and save himself from the long and agonizing public
trial and spare him from proffering inconsistent excuses. In fact, the Mission Order
itself, as well as the Letter-Directive of the AFP Chief of Staff, is explicit in providing
that:
"VIII. c. When a Mission Order is requested for verification by
enforcement units/personnels such as PNP, Military Brigade and
other Military Police Units of AFP, the Mission Order should be shown
without resentment to avoid embarrassment and/or misunderstanding.
"IX. d. Implicit to this Mission Order is the injunction that the
confidential instruction will be carried out through all legal means
and do not cover an actuation in violation of laws. In the latter
event, this Mission Order is rendered inoperative in respect to
such violation."[68]
which directive petitioner failed to heed without cogent explanation.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 88
The authenticity and validity of the Mission Order and Memorandum Receipt,
moreover, were ably controverted. Witness for the prosecution Police Supt. Durendes
denied under oath his signature on the dorsal side of the Mission Order and declared
further that he did not authorize anyone to sign in his behalf.[69] His surname thereon,
we note, was glaringly misspelled as "Durembes."[70] In addition, only Unit
Commanders and Chief of Offices have the authority to issue Mission Orders and
Memorandum Receipts under the Guidelines on the Issuance of MOs, MRs, &
PCFORs.[71] PNP Supt. Rodialo Gumtang who issued petitioner's Mission Order and
Memorandum Receipt is neither a Unit Commander nor the Chief of Office, but a mere
deputy commander. Having emanated from an unauthorized source, petitioner's
Mission Order and Memorandum Receipt are infirm and lacking in force and
effect. Besides, the Mission Order covers "Recom 1-12-Baguio City,"[72] areas outside
Supt. Gumtang's area of responsibility thereby needing prior approval "by next higher
Headquarters"[73] which is absent in this case. The Memorandum Receipt is also
unsupported by a certification as required by the March 5, 1988 Memorandum of the
Secretary of Defense which pertinently provides that:
"No memorandum receipt shall be issued for a CCS firearms without
corresponding certification from the corresponding Responsible
Supply Officer of the appropriate AFP unit that such firearm has been
officially taken up in that units property book, and that report of such
action has been reported to higher AFP authority."
Had petitioner's Memorandum Receipt been authentic, we see no reason why he cannot
present the corresponding certification as well.
What is even more peculiar is that petitioner's name, as certified to by the Director
for Personnel of the PNP, does not even appear in the Plantilla of Non-Uniform
Personnel or in the list of Civilian Agents or Employees of the PNP which could justify
the issuance of a Mission Order, a fact admitted by petitioner's counsel.[74] The
implementing rules of P.D. 1866 issued by the then PC-INP Chief and Director-General
Lt. Gen. Fidel V. Ramos are clear and unambiguous, thus:
"No Mission Order shall be issued to any civilian agent authorizing
the same to carry firearms outside residence unless he/she is
included in the regular plantilla of the government
agency involved in law enforcement and is receiving regular
compensation for the services he/she is rendering in the
agency. Further, the civilian agent must be included in a specific law
enforcement/police/intelligence project proposal or special project which
specifically required the use of firearms(s) to insure its accomplishment
and that the project is duly approved at the PC Regional Command level or
its equivalent level in other major services of the AFP, INP and NBI, or at
higher levels of command."[75]
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 89

Circular No. 1, dated January 6, 1986, of the then Ministry of Justice likewise provides "C E R T I F I C A T I O N
as follows:

"If mission orders are issued to civilians (not members of the uniformed "TO WHOM IT MAY CONCERN:
service), they must be civilian agents included in the regular plantilla of the
government agency involved in law enforcement and are receiving regular "THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon City is a
compensation for the service they are rendering." licensed/registered holder of Pistol Smith and Wesson Cal 9mm with serial number
TCT8214 covered by License No. RL M76C4476687.
That petitioner's Mission Order and Memorandum Receipt were fabricated pieces of
evidence is accentuated all the more by the testimony and certification of the Chief of
"Further certify that the following firearms are not registered with this
the Records Branch of the firearms and Explosives Office of the PNP declaring that
Office per verification from available records on file this Office as of this
petitioner's confiscated firearms are not licensed or registered in the name of the
date:
petitioner.[76]Thus:

"Q. In all these files that you have just mentioned Mr. Witness, what did you M16 Baby Armalite SN-RP131120
find, if any? Revolver Cal 357 SN-3219
Pistol Cal 380 Pietro Beretta SN-35723
"A. I found that a certain Robin C. Padilla is a licensed registered owner of
one 9 mm pistol, Smith and Wesson with Serial No. TCT 8214 and the
following firearms being asked whether it is registered or not, "However, we have on file one Pistol Cal 380, Beretta with serial number 35723Y,
I did not find any records, the M-16 and the caliber .357 and licensed/registered to one Albert Villanueva Fallorina of 29 San Juan St., Capitol
the caliber .380 but there is a firearm with the same serial Pasig, MM under Re-Registered License.
number which is the same as that licensed and/or registered
in the name of one Albert Villanueva Fallorina. "This certification is issued pursuant to Subpoena from City of Angeles.
"Q. So in short, the only licensed firearms in the name of accused
Robin C. Padilla is a pistol, Smith and Wesson, caliber 9 mm "FOR THE CHIEF, FEO:
with Serial No. TCT 8214?
(Sgd.)
"A. Yes, sir.

"Q. And the firearms that were the subject of this case are not JOSE
listed in the names of the accused in this case? MARIO M. ESPINO
Sr.
"A. Yes, sir.[77] Inspector, PNP
xxx xxx xxx Chief, Records
Branch" [78]

And the certification which provides as follows:

In several occasions, the Court has ruled that either the testimony of a
Republic of the Philippines representative of, or a certification from, the PNP Firearms and Explosives Office (FEO)
Department of the Interior and Local Government attesting that a person is not a licensee of any firearm would suffice to prove beyond
GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE reasonable doubt the second element of illegal possession of firearm. [79] In People vs.
FIREARMS AND EXPLOSIVES OFFICE Tobias,[80] we reiterated that such certification is sufficient to show that a person has
Camp Crame, Quezon City in fact no license. From the foregoing discussion, the fact that petitioner does not have
the license or permit to possess was overwhelmingly proven by the prosecution. The
"PNPFEO5 28 November 1992 certification may even be dispensed with in the light of the evidence[81] that an M-16

rifle and any short firearm higher than a .38 caliber pistol, akin to the confiscated
firearms, cannot be licensed to a civilian,[82] as in the case of petitioner. The Court,
therefore, entertains no doubt in affirming petitioner's conviction especially as we find
no plausible reason, and none was presented, to depart from the factual findings of
both the trial court and respondent court which, as a rule, are accorded by the Court
with respect and finality.[83]
Anent his third defense, petitioner faults respondent court "in applying P.D.
1866 in a democratic ambience (sic) and a non-subversive context" and adds that
respondent court should have applied instead the previous laws on illegal possession
of firearms since the reason for the penalty imposed under P.D. 1866 no longer
exists.[84] He stresses that the penalty of 17 years and 4 months to 21 years for simple
illegal possession of firearm is cruel and excessive in contravention of the
Constitution.[85]
The contentions do not merit serious consideration. The trial court and the
respondent court are bound to apply the governing law at the time of appellant's
commission of the offense for it is a rule that laws are repealed only by subsequent
ones.[86] Indeed, it is the duty of judicial officers to respect and apply the law as it
stands.[87] And until its repeal, respondent court can not be faulted for applying P.D.
1866 which abrogated the previous statutes adverted to by petitioner.
Equally lacking in merit is appellant's allegation that the penalty for simple illegal
possession is unconstitutional. The penalty for simple possession of firearm, it should
be stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary
to appellant's erroneous averment. The severity of a penalty does not ipso facto make
the same cruel and excessive.
"It takes more than merely being harsh, excessive, out of proportion, or severe for a
penalty to be obnoxious to the Constitution. 'The fact that the punishment authorized
by the statute is severe does not make it cruel and unusual.' (24 C.J.S., 1187-
1188). Expressed in other terms, it has been held that to come under the ban, the
punishment must be 'flagrantly and plainly oppressive','wholly disproportionate to the
nature of the offense as to shock the moral sense of the community' "[88]
It is well-settled that as far as the constitutional prohibition goes, it is not so much the
extent as the nature of the punishment that determines whether it is, or is not, cruel
and unusual and that sentences of imprisonment, though perceived to be harsh, are
not cruel or unusual if within statutory limits.[89]
Moreover, every law has in its favor the presumption of constitutionality. The
burden of proving the invalidity of the statute in question lies with the appellant which
burden, we note, was not convincingly discharged. To justify nullification of the law,
there must be a clear and unequivocal breach of the Constitution, not a doubtful and
argumentative implication,[90] as in this case. In fact, the constitutionality of P.D. 1866
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 90
has been upheld twice by this Court.[91] Just recently, the Court declared that "the
pertinent laws on illegalpossession of firearms [are not] contrary to any provision of
the Constitution. . ."[92] Appellant's grievance on the wisdom of the prescribed penalty
should not be addressed to us. Courts are not concerned with the wisdom, efficacy or
morality of laws. That question falls exclusively within the province of Congress which
enacts them and the Chief Executive who approves or vetoes them. The only function
of the courts, we reiterate, is to interpret and apply the laws.
With respect to the penalty imposed by the trial court as affirmed by respondent
court (17 years 4 months and 1 day of reclusion temporal, as minimum, to 21 years
of reclusion perpetua, as maximum), we reduce the same in line with the fairly recent
case of People v. Lian[93] where the Court en banc provided that the indeterminate
penalty imposable for simple illegal possession of firearm, without any mitigating or
aggravating circumstance, should be within the range of ten (10) years and one (1)
day to twelve years (12) of prision mayor, as minimum, to eighteen (18) years, eight
(8) months and one (1) day to twenty (20) of reclusion temporal, as maximum. This is
discernible from the following explanation by the Court:
"In the case at bar, no mitigating or aggravating circumstances have been alleged or
proved, In accordance with the doctrine regarding special laws explained in People v.
Simon,[94] although Presidential Decree No. 1866 is a special law, the penalties
therein were taken from the Revised Penal Code, hence the rules in said Code for
graduating by degrees or determining the proper period should be applied.
Consequently, the penalty for the offense of simple illegal possession of firearm is the
medium period of the complex penalty in said Section 1, that is, 18 years, 8 months
and 1 day to 20 years.
"This penalty, being that which is to be actually imposed in accordance with the rules
therefor and not merely imposable as a general prescription under the law, shall be
the maximum of the range of the indeterminate sentence. The minimum thereof shall
be taken, as aforesaid, from any period of the penalty next lower in degree, which
is, prision mayor in its maximum period to reclusion temporal in its medium period.[95]
WHEREFORE, premises considered, the decision of the Court of Appeals
sustaining petitioner's conviction by the lower court of the crime of simple illegal
possession of firearms and ammunitions is AFFIRMED EXCEPT that petitioner's
indeterminate penalty is MODIFIED to ten (10) years and one (1) day, as minimum, to
eighteen (18) years, eight (8) months and one (1) day, as maximum.
SO ORDERED
Narvasa, C.J. (Chairman), Davide, Jr., Melo, and Panganiban, concur

THIRD DIVISION
[G.R. No. 120431. April 1, 1998]
RODOLFO ESPANO, accused-petitioner, vs. COURT OF APPEALS and PEOPLE
OF THE PHILIPPINES, respondents.
DECISION
ROMERO, J.:
This is a petition for review of the decision of the Court of Appeals in CA-G.R. CR
No. 13976 dated January 16, 1995,[1] which affirmed in toto the judgment of the
Regional Trial Court of Manila, Branch 1, convicting petitioner Rodolfo Espano for
violation of Article II, Section 8 of Republic Act No. 6425, as amended, otherwise known
as the Dangerous Drugs Act.
Petitioner was charged under the following information:
That on or about July 14, 1991, in the City of Manila, Philippines, the said accused,
not being authorized by law to possess or use any prohibited drug, did then and there
wilfully, unlawfully and knowingly have in his possession and under his custody and
control twelve (12) plastic cellophane (bags) containing crushed flowering tops,
marijuana weighing 5.5 grams which is a prohibited drug.
Contrary to law.[2]
The evidence for the prosecution, based on the testimony of Pat. Romeo
Pagilagan, shows that on July 14, 1991, at about 12:30 a.m., he and other police
officers, namely, Pat. Wilfredo Aquino, Simplicio Rivera, and Erlindo Lumboy of the
Western Police District (WPD), Narcotics Division went to Zamora and Pandacan
Streets, Manila to confirm reports of drug pushing in the area. They saw petitioner
selling something to another person. After the alleged buyer left, they approached
petitioner, identified themselves as policemen, and frisked him. The search yielded two
plastic cellophane tea bags of marijuana. When asked if he had more marijuana, he
replied that there was more in his house. The policemen went to his residence where
they found ten more cellophane tea bags of marijuana. Petitioner was brought to the
police headquarters where he was charged with possession of prohibited drugs. On
July 24, 1991, petitioner posted bail[3] and the trial court issued his order of release on
July 29, 1991.[4]
Annabelle Alip, forensic chemist of the WPD Criminal Investigation Laboratory
Section, testified that the articles sent to her by Pat. Wilfredo Aquino regarding the
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 91
apprehension of a certain Rodolfo Espano for examination tested positive for marijuana,
with a total weight of 5.5 grams.
By way of defense, petitioner testified that on said evening, he was sleeping in
his house and was awakened only when the policemen handcuffed him. He alleged
that the policemen were looking for his brother-in-law Lauro, and when they could not
find the latter, he was instead brought to the police station for investigation and later
indicted for possession of prohibited drugs. His wife Myrna corroborated his story.
The trial court rejected petitioners defense as a mere afterthought and found the
version of the prosecution more credible and trustworthy.
Thus, on August 14, 1992, the trial court rendered a decision, convicting petitioner
of the crime charged, the dispositive portion of which reads:
WHEREFORE there being proof beyond reasonable doubt, the court finds the accused
Rodolfo Espano y Valeria guilty of the crime of violation of Section 8, Article II, in
relation to Section 2 (e-L) (I) of Republic Act No. 6425 as amended by Batas
Pambansa Blg. 179, and pursuant to law hereby sentences him to suffer
imprisonment of six (6) years and one (1) day to twelve (12) years and to pay a fine
of P6,000.00 with subsidiary imprisonment in case of default plus costs.
The marijuana is declared forfeited in favor of government and shall be turned over
to the Dangerous Drugs Board without delay.
SO ORDERED.[5]
Petitioner appealed the decision to the Court of Appeals. The appellate court,
however, affirmed the decision of the trial court in toto.
Hence, this petition.
Petitioner contends that the trial and appellate courts erred in convicting him on
the basis of the following: (a) the pieces of evidence seized were inadmissible; (b) the
superiority of his constitutional right to be presumed innocent over the doctrine of
presumption of regularity; (c) he was denied the constitutional right of confrontation
and to compulsory process; and (d) his conviction was based on evidence which was
irrelevant and not properly identified.
After a careful examination of the records of the case, this Court finds no
compelling reason sufficient to reverse the decisions of the trial and appellate courts.
First, it is a well settled doctrine that findings of trial courts on the credibility of
witnesses deserve a high degree of respect. Having observed the deportment of
witnesses during the trial, the trial judge is in a better position to determine the issue

of credibility and, thus, his findings will not be disturbed during appeal in the absence
of any clear showing that he had overlooked, misunderstood or misapplied some facts
or circumstances of weight and substance which could have altered the conviction of
the appellants.[6]
In this case, the findings of the trial court that the prosecution witnesses were
more credible than those of the defense must stand. Petitioner failed to show that Pat.
Pagilagan, in testifying against him, was motivated by reasons other than his duty to
curb drug abuse and had any intent to falsely impute to him such a serious crime as
possession of prohibited drugs. In the absence of such ill motive, the presumption of
regularity in the performance of his official duty must prevail.
In People v. Velasco,[7]
this Court reiterated the doctrine of presumption of
regularity in the performance of official duty which provides:
x x x. Appellant failed to establish that Pat. Godoy and the other members of the buy-
bust team are policemen engaged in mulcting or other unscrupulous activities who
were motivated either by the desire to extort money or exact personal vengeance, or
by sheer whim and caprice, when they entrapped her. And in the absence of proof of
any intent on the part of the police authorities to falsely impute such a serious crime
against appellant, as in this case, the presumption of regularity in the performance of
official duty, . . ., must prevail over the self-serving and uncorroborated claim of
appellant that she had been framed.[8]
Furthermore, the defense set up by petitioner does not deserve any consideration.
He simply contended that he was in his house sleeping at the time of the incident. This
Court has consistently held that alibi is the weakest of all defenses; and for it to prosper,
the accused has the burden of proving that he was not at the scene of the crime at the
time of its commission and that it was physically impossible for him to be
there. Moreover, the claim of a frame-up, like alibi, is a defense that has been invariably
viewed by the Court with disfavor for it can just as easily be concocted but difficult to
prove, and is a common and standard line of defense in most prosecutions arising from
violations of the Dangerous Drugs Act.[9] No clear and convincing evidence was
presented by petitioner to prove his defense of alibi.
Second, petitioner contends that the prosecutions failure to present the alleged
informant in court cast a reasonable doubt which warrants his acquittal. This is again
without merit, since failure of the prosecution to produce the informant in court is of
no moment especially when he is not even the best witness to establish the fact that a
buy-bust operation had indeed been conducted. In this case, Pat. Pagilagan, one of the
policemen who apprehended petitioner, testified on the actual incident of July 14, 1991,
and identified him as the one they caught in possession of prohibited drugs. Thus,
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 92
We find that the prosecution had satisfactorily proved its case against appellants.
There is no compelling reason for us to overturn the finding of the trial court that the
testimony of Sgt. Gamboa, the lone witness for the prosecution, was straightforward,
spontaneous and convincing. The testimony of a sole witness, if credible and positive
and satisfies the court beyond reasonable doubt, is sufficient to convict.[10]
Thus on the basis of Pat. Pagilagans testimony, the prosecution was able to prove
that petitioner indeed committed the crime charged; consequently, the finding of
conviction was proper.
Lastly, the issue on the admissibility of the marijuana seized should likewise be
ruled upon. Rule 113 Section 5(a) of the Rules of Court provides:
A peace officer or a private person may, without a warrant, arrest a person:
a. when, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
x x x x x x x x x.
Petitioners arrest falls squarely under the aforecited rule. He was caught in
flagranti as a result of a buy-bust operation conducted by police officers on the basis
of information received regarding the illegal trade of drugs within the area of Zamora
and Pandacan Streets, Manila. The police officer saw petitioner handing over something
to an alleged buyer. After the buyer left, they searched him and discovered two
cellophanes of marijuana. His arrest was, therefore, lawful and the two cellophane bags
of marijuana seized were admissible in evidence, being the fruits of the crime.
As for the ten cellophane bags of marijuana found at petitioners residence,
however, the same are inadmissible in evidence.
The 1987 Constitution guarantees freedom against unreasonable searches and
seizures under Article III, Section 2 which provides:
The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be
seized.
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 93

An exception to the said rule is a warrantless search incidental to a lawful arrest WHEREFORE, the instant petition is hereby DENIED. The decision of the Court
for dangerous weapons or anything which may be used as proof of the commission of of Appeals in C.A.-G.R. CR No. 13976 dated January 16, 1995 is AFFIRMED with the
an offense.[11] It may extend beyond the person of the one arrested to include the MODIFICATION that petitioner Rodolfo Espano is sentenced to suffer an indeterminate
premises or surroundings under his immediate control. In this case, the ten cellophane penalty of TWO (2) months and ONE (1) day of arresto mayor, as minimum to TWO
bags of marijuana seized at petitioners house after his arrest at Pandacan and Zamora (2) years, FOUR (4) months and ONE (1) day of prision correccional, as maximum.
Streets do not fall under the said exceptions.
SO ORDERED.
In the case of People v. Lua,[12] this Court held:
Narvasa, C.J., (Chairman), Kapunan, and Purisima, JJ., concur.
As regards the brick of marijuana found inside the appellants house, the trial court
correctly ignored it apparently in view of its inadmissibility. While initially the arrest as
well as the body search was lawful, the warrantless search made inside the
appellants house became unlawful since the police operatives were not armed with a
search warrant. Such search cannot fall under search made incidental to a lawful
arrest, the same being limited to body search and to that point within reach or
control of the person arrested, or that which may furnish him with the means of
committing violence or of escaping. In the case at bar, appellant was admittedly
outside his house when he was arrested. Hence, it can hardly be said that the inner
portion of his house was within his reach or control.

The articles seized from petitioner during his arrest were valid under the doctrine
of search made incidental to a lawful arrest. The warrantless search made in his house,
however, which yielded ten cellophane bags of marijuana became unlawful since the
police officers were not armed with a search warrant at the time. Moreover, it was
beyond the reach and control of petitioner.

In sum, this Court finds petitioner Rodolfo Espano guilty beyond reasonable doubt
of violating Article II, Section 8, in relation to Section 2 (e-L) (I) of Republic Act No.
6425, as amended. Under the said provision, the penalty imposed is six years and one
day to twelve years and a fine ranging from six thousand to twelve thousand pesos.
With the passage of Republic Act No. 7659, which took effect on December 31, 1993,
the imposable penalty shall now depend on the quantity of drugs recovered. Under the
provisions of Republic Act No. 7629, Section 20, and as interpreted in People v.
Simon[13] and People v. Lara,[14] if the quantity of marijuana involved is less than 750
grams, the imposable penalty ranges from prision correccional to reclusion
temporal. Taking into consideration that petitioner is not a habitual delinquent, the
amendatory provision is favorable to him and the quantity of marijuana involved is less
than 750 grams, the penalty imposed under Republic Act No. 7659 should be applied.
There being no mitigating nor aggravating circumstances, the imposable penalty shall
be prision correccional in its medium period. Applying the Indeterminate Sentence Law,
the maximum penalty shall be taken from the medium period of prision
correccional, which is two (2) years, four (4) months and one (1) day to four (4) years
and two (2) months, while the minimum shall be taken from the penalty next lower in
degree, which is one (1) month and one (1) day to six (6) months of arresto mayor.

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 87059 June 22, 1992
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROGELIO MENGOTE y TEJAS, accused-appellant.
CRUZ, J.:
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.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 94
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 authorities.
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.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 95
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 prosecution.
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 presence.
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
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 96
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
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 97

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 costs.

SO ORDERED.

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


FIRST DIVISION
[G.R. No. 136292. January 15, 2002]
RUDY CABALLES y TAIO, petitioner, vs. COURT OF APPEALS and PEOPLE OF
THE PHILIPPINES, respondents.
DECISION
PUNO, J.:
This is an appeal by certiorari from the decision[1] of respondent Court of Appeals
dated September 15, 1998 which affirmed the judgment rendered by the Regional Trial
Court of Santa Cruz, Laguna, finding herein petitioner, Rudy Caballes y Taio, guilty
beyond reasonable doubt of the crime of theft, and the resolution[2] dated November
9, 1998 which denied petitioner's motion for reconsideration.
In an Information[3] dated October 16, 1989, petitioner was charged with the
crime of theft committed as follows:
"That on or about the 28th day of June, 1989, in the Municipality of Pagsanjan,
and/or elsewhere in the Province of Laguna, and within the jurisdiction of this
Honorable Court, the above-named accused, with intent of gain, and without the
knowledge and consent of the owner thereof, the NATIONAL POWER CORPORATION,
did then and there wilfully, unlawfully and feloniously take, steal and carry away
about 630-kg of Aluminum Cable Conductors, valued at P27, 450.00, belonging to
and to the damage and prejudice of said owner National Power Corp., in the
aforesaid amount.
CONTRARY TO LAW."
During the arraignment, petitioner pleaded not guilty and hence, trial on the
merits ensued.
The facts are summarized by the appellate court as follows:
"[At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino Noceja and Pat. Alex de
Castro, while on a routine patrol in Barangay Sampalucan, Pagsanjan, Laguna,
spotted a passenger jeep unusually covered with "kakawati" leaves.
Suspecting that the jeep was loaded with smuggled goods, the two police officers
flagged down the vehicle. The jeep was driven by appellant. When asked what was
loaded on the jeep, he did not answer; he appeared pale and nervous.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 98
With appellant's consent, the police officers checked the cargo and they discovered
bundles of 3.08 mm aluminum/galvanized conductor wires exclusively owned by
National Power Corporation (NPC). The conductor wires weighed 700 kilos and valued
at P55, 244.45. Noceja asked appellant where the wires came from and appellant
answered that they came from Cavinti, a town approximately 8 kilometers away
from Sampalucan. Thereafter, appellant and the vehicle with the high-voltage wires
were brought to the Pagsanjan Police Station. Danilo Cabale took pictures of the
appellant and the jeep loaded with the wires which were turned over to the Police
Station Commander of Pagsanjan, Laguna. Appellant was incarcerated for 7 days in
the Municipal jail.
In defense, appellant interposed denial and alibi. He testified that he is a driver and
resident of Pagsanjan, Laguna; a NARCOM civilian agent since January, 1988
although his identification card (ID) has already expired. In the afternoon of June 28,
1989, while he was driving a passenger jeepney, he was stopped by
one Resty Fernandez who requested him to transport in his jeepneyconductor wires
which were in Cavinti, Laguna. He told Resty to wait until he had finished his last trip
for the day from Santa Cruz, Laguna. On his way to Santa Cruz, Laguna, he dropped
by the NARCOM headquarters and informed his superior, Sgt. Callos, that something
unlawful was going to happen. Sgt. Callos advised him to proceed with the loading of
the wires and that the former would act as back-up and intercept the vehicle at
the Sambat Patrol Base in Pagsanjan.
After receiving those instructions, he went back to see Resty. Although Resty had his
own vehicle, its tires were old so the cable wires were loaded in appellant's jeep and
covered with kakawatileaves. The loading was done by about five (5) masked
men. He was promised P1,000.00 for the job. Upon crossing a bridge, the two
vehicles separated but in his case, he was intercepted by Sgt. Noceja and Pat. De
Castro. When they discovered the cables, he told the police officers that the cables
were loaded in his jeep by the owner, Resty Fernandez. But despite his explanation,
he was ordered to proceed to police headquarters where he was interrogated. The
police officers did not believe him and instead locked him up in jail for a week."[4]
On April 27, 1993, the court a quo rendered judgment[5] the dispositive portion of
which reads:
"WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of
Theft of property worth P55,244.45, the Court hereby sentences him to suffer
imprisonment from TWO (2) [YEARS], FOUR (4) MONTHS, and ONE (1) DAY
of Prision Correccional, as minimum, to TEN (10) YEARS of Prision Mayor, as
maximum, to indemnify the complainant National Power Corporation in the amount
of P55, 244.45, and to pay the costs."

On appeal, the Court of Appeals affirmed the judgment of conviction but deleted
the award for damages on the ground that the stolen materials were recovered and
modified the penalty imposed, to wit:
"WHEREFORE, the appealed decision is hereby AFFIRMED with the modification that
appellant RUDY CABALLES is found guilty beyond reasonable doubt as principal in
theft, defined and penalized under Articles 308 and 309, par. 1, Revised Penal Code,
and there being no modifying circumstances, he is hereby meted an indeterminate
penalty of Four (4) years, Nine (9) months and Eleven (11) days
of prision correccional, as minimum term, to Eight (8) years, Eight (8) months and
one (1) day of prision mayor, as maximum term. No civil indemnity and no costs."[6]
Petitioner comes before us and raises the following issues:
"(a) Whether or not the constitutional right of petitioner was violated when the police
officers searched his vehicle and seized the wires found therein without a search
warrant and when samples of the wires and references to them were admitted in
evidence as basis for his conviction;
(b) Whether or not respondent Court erred in rejecting petitioner's defense that he
was engaged in an entrapment operation and in indulging in speculation and
conjecture in rejecting said defense;and
(c) Whether or not the evidence of the prosecution failed to establish the guilt of
petitioner beyond reasonable doubt and thus failed to overcome the constitutional
right of petitioner to presumption of innocence."
The conviction or acquittal of petitioner hinges primarily on the validity of
the warrantless search and seizure made by the police officers, and the admissibility of
the evidence obtained by virtue thereof.
In holding that the warrantless search and seizure is valid, the trial court ruled
that:
"As his last straw of argument, the accused questions the constitutionality of the
search and validity of his arrest on the ground that no warrant was issued to that
effect. The Court cannot again sustain such view. In the case of People v. Lo Ho
[Wing], G.R. No. 88017, January 21, 1991, it has been held that considering that
before a warrant can be obtained, the place, things and persons to be searched must
be described to the satisfaction of the issuing judge - a requirement which borders on
the impossible in the case of smuggling effected by the use of a moving vehicle that
can transport contraband from one place to another with impunity,
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 99
a warrantless search of a moving vehicle is justified on grounds of practicability. The
doctrine is not of recent vintage. In the case of Valmonte vs. de Villa, G.R. No.
83988, May 24, 1990 (Resolution on Motion for Reconsideration, September 29,
1989), it was ruled that automobiles because of their mobility may be searched
without a warrant upon facts not justifying warrantless search of a resident or
office. x x x To hold that no criminal can, in any case, be arrested and searched for
the evidence and tokens of his crime without a warrant, would be to leave society, to
a large extent, at the mercy of the shrewdest, the most expert, and the most
depraved of criminals, facilitating their escape in many instances (Ibid.). In Umil v.
Ramos, 187 SCRA 311, and People vs. Ortiz, 191 SCRA 836, the Supreme Court held
that a search may be made even without a warrant where the accused is caught
in flagrante. Under the circumstances, the police officers are not only authorized but
are also under obligation to arrest the accused even without a warrant."[7]
Petitioner contends that the flagging down of his vehicle by police officers who
were on routine patrol, merely on "suspicion" that "it might contain smuggled goods,"
does not constitute probable cause that will justify a warrantless search and seizure. He
insists that, contrary to the findings of the trial court as adopted by the appellate court,
he did not give any consent, express or implied, to the search of the vehicle. Perforce,
any evidence obtained in violation of his right against unreasonable search and seizure
shall be deemed inadmissible.
Enshrined in our Constitution is the inviolable right of the people to be secure in
their persons and properties against unreasonable searches and seizures, as defined
under Section 2, Article III thereof, which reads:
"Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized."
The exclusionary rule under Section 3(2), Article III of the Constitution bars the
admission of evidence obtained in violation of such right.
The constitutional proscription against warrantless searches and seizures is not
absolute but admits of certain exceptions, namely: (1) warrantless search incidental to
a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by
prevailing jurisprudence;[8] (2) seizure of evidence in plain view;[9] (3) search of moving
vehicles;[10] (4) consented warrantless search;[11] (5) customs search; (6) stop and
frisk situations (Terry search);[12] and (7) exigent and emergency circumstances.[13]

In cases where warrant is necessary, the steps prescribed by the Constitution and
reiterated in the Rules of Court must be complied with. In the exceptional events where
warrant is not necessary to effect a valid search or seizure, or when the latter cannot
be performed except without a warrant, what constitutes a reasonable or unreasonable
search or seizure is purely a judicial question, determinable from the uniqueness of the
circumstances involved, including the purpose of the search or seizure, the presence
or absence of probable cause, the manner in which the search and seizure was made,
the place or thing searched and the character of the articles procured.[14]
It is not controverted that the search and seizure conducted by the police officers
in the case at bar was not authorized by a search warrant. The main issue is whether
the evidence taken from the warrantless search is admissible against the
appellant. Without said evidence, the prosecution cannot prove the guilt of the
appellant beyond reasonable doubt.
I. Search of moving vehicle
Highly regulated by the government, the vehicle's inherent mobility
reduces expectation of privacy especially when its transit in public thoroughfares
furnishes a highly reasonable suspicion amounting to probable cause that the occupant
committed a criminal activity.[15] Thus, the rules governing search and seizure have
over the years been steadily liberalized whenever a moving vehicle is the object of the
search on the basis of practicality. This is so considering that before a warrant could
be obtained, the place, things and persons to be searched must be described to the
satisfaction of the issuing judge a requirement which borders on the impossible in the
case of smuggling effected by the use of a moving vehicle that can transport
contraband from one place to another with impunity. We might add that
a warrantless search of a moving vehicle is justified on the ground that it is not
practicable to secure a warrant because the vehicle can be quickly moved out of the
locality or jurisdiction in which the warrant must be sought.[16]Searches without warrant
of automobiles is also allowed for the purpose of preventing violations of smuggling or
immigration laws, provided such searches are made at borders or 'constructive borders'
like checkpoints near the boundary lines of the State.[17]
The mere mobility of these vehicles, however, does not give the police officers
unlimited discretion to conduct indiscriminate searches without warrants if made within
the interior of the territory and in the absence of probable cause.[18] Still and all, the
important thing is that there was probable cause to conduct the warrantless search,
which must still be present in such a case.
Although the term eludes exact definition, probable cause signifies a reasonable
ground of suspicion supported by circumstances sufficiently strong in themselves to
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 100
warrant a cautious man's belief that the person accused is guilty of the offense with
which he is charged; or the existence of such facts and circumstances which could lead
a reasonably discreet and prudent man to believe that an offense has been committed
and that the items, articles or objects sought in connection with said offense or subject
to seizure and destruction by law is in the place to be searched. [19] The required
probable cause that will justify a warrantless search and seizure is not determined by
a fixed formula but is resolved according to the facts of each case.[20]
One such form of search of moving vehicles is the "stop-and-search" without
warrant at military or police checkpoints which has been declared to be not illegal per
se,[21] for as long as it is warranted by the exigencies of public order[22] and conducted
in a way least intrusive to motorists.[23] A checkpoint may either be a mere routine
inspection or it may involve an extensive search.
Routine inspections are not regarded as violative of an individual's right against
unreasonable search. The search which is normally permissible in this instance is
limited to the following instances: (1) where the officer merely draws aside the curtain
of a vacant vehicle which is parked on the public fair grounds;[24] (2) simply looks into
a vehicle;[25](3) flashes a light therein without opening the car's doors;[26] (4) where
the occupants are not subjected to a physical or body search; [27] (5) where the
inspection of the vehicles is limited to a visual search or visual inspection;[28] and (6)
where the routine check is conducted in a fixed area.[29]
None of the foregoing circumstances is obtaining in the case at bar. The police
officers did not merely conduct a visual search or visual inspection of herein petitioner's
vehicle. They had to reach inside the vehicle, lift the kakawati leaves and look inside
the sacks before they were able to see the cable wires. It cannot be considered a simple
routine check.
In the case of United States vs. Pierre,[30] the Court held that the physical
intrusion of a part of the body of an agent into the vehicle goes beyond the area
protected by the Fourth Amendment, to wit:
"The Agent . . . stuck his head through the driver's side window. The agent thus
effected a physical intrusion into the vehicle. . . [W]e are aware of no case holding
that an officer did not conduct a search when he physically intruded part of his body
into a space in which the suspect had a reasonable expectation of privacy. [The]
Agent['s] . . . physical intrusion allowed him to see and to smell things he could not
see or smell from outside the vehicle. . . In doing so, his inspection went beyond that
portion of the vehicle which may be viewed from outside the vehicle by either
inquisitive passersby or diligent police officers, and into the area protected by the
Fourth amendment, just as much as if he had stuck his head inside the open window
of a home."

On the other hand, when a vehicle is stopped and subjected to an extensive
search, such a warrantless search would be constitutionally permissible only if the
officers conducting the search have reasonable or probable cause to believe, before
the search, that either the motorist is a law-offender or they will find the instrumentality
or evidence pertaining to a crime in the vehicle to be searched.[31]
This Court has in the past found probable cause to conduct without a judicial
warrant an extensive search of moving vehicles in situations where (1) there had
emanated from a package the distinctive smell of marijuana; (2) agents of the Narcotics
Command ("Narcom") of the Philippine National Police ("PNP") had received a
confidential report from informers that a sizeable volume of marijuana would be
transported along the route where the search was conducted; (3) Narcom agents had
received information that a Caucasian coming from Sagada, Mountain Province, had in
his possession prohibited drugs and when the Narcom agents confronted the accused
Caucasian, because of a conspicuous bulge in his waistline, he failed to present his
passport and other identification papers when requested to do so; (4) Narcom agents
had received confidential information that a woman having the same physical
appearance as that of the accused would be transporting marijuana; [32] (5) the accused
who were riding a jeepney were stopped and searched by policemen who had earlier
received confidential reports that said accused would transport a large quantity of
marijuana; and (6) where the moving vehicle was stopped and searched on the basis
of intelligence information and clandestine reports by a deep penetration agent or spy
- one who participated in the drug smuggling activities of the syndicate to which the
accused belonged - that said accused were bringing prohibited drugs into the
country.[33]
In the case at bar, the vehicle of the petitioner was flagged down because the
police officers who were on routine patrol became suspicious when they saw that the
back of the vehicle was covered with kakawati leaves which, according to them, was
unusual and uncommon.
Pat. Alex de Castro recounted the incident as follows:
"ATTY. SANTOS
Q Now on said date and time do you remember of any unusual incident
while you were performing your duty?
A Yes, sir, at that time and date myself and Police Sgt. Noceja were
conducting patrol in the said place when we spotted a
suspicious jeepney so we stopped the jeepney and searched the load
of the jeepney and we found out (sic) these conductor wires.
Q You mentioned about the fact that when you saw the jeepney you
became suspicious, why did you become suspicious?
A Because the cargo was covered with leaves and branches, sir.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 101
Q When you became suspicious upon seeing those leaves on top of the
load what did you do next, if any?
A We stopped the jeepney and searched the contents thereof, sir."[34]
The testimony of Victorino Noceja did not fare any better:
"ATTY SANTOS
Q When you saw the accused driving the said vehicle, what did you do?
A Because I saw that the vehicle being drawn by Caballes was
covered by kakawati leaves, I became suspicious since such
vehicle should not be covered by those and I flagged him,
sir."[35]
We hold that the fact that the vehicle looked suspicious simply because it is not
common for such to be covered with kakawati leaves does not constitute "probable
cause" as would justify the conduct of a search without a warrant.
In People vs. Chua Ho San,[36] we held that the fact that the watercraft used
by the accused was different in appearance from the usual fishing boats that commonly
cruise over the Bacnotan seas coupled with the suspicious behavior of the accused
when he attempted to flee from the police authorities do not sufficiently establish
probable cause.Thus:
"In the case at bar, the Solicitor General proposes that the following details are
suggestive of probable cause - persistent reports of rampant smuggling of firearm
and other contraband articles, CHUA's watercraft differing in appearance from the
usual fishing boats that commonly cruise over the Bacnotan seas, CHUA's illegal entry
into the Philippines x x x, CHUA's suspicious behavior, i.e., he attempted to flee when
he saw the police authorities, and the apparent ease by which CHUA can return to
and navigate his speedboat with immediate dispatch towards the high seas, beyond
the reach of Philippine laws.
This Court, however, finds that these do not constitute "probable cause." None of the
telltale clues, e.g., bag or package emanating the pungent odor of marijuana or other
prohibited drug, confidential report and/or positive identification by informers of
courier of prohibited drug and/or the time and place where they will transport/deliver
the same, suspicious demeanor or behavior, and suspicious bulge in the waist -
accepted by this Court as sufficient to justify a warrantless arrest exists in this
case. There was no classified information that a foreigner would disembark
at Tammocalao beach bearing prohibited drug on the date in question. CHUA was not
identified as a drug courier by a police informer or agent. The fact that the vessel
that ferried him to shore bore no resemblance to the fishing boats of the

area did not automatically mark him as in the process of perpetrating an
offense. x x x." (emphasis supplied)
In addition, the police authorities do not claim to have received any confidential
report or tipped information that petitioner was carrying stolen cable wires in his vehicle
which could otherwise have sustained their suspicion. Our jurisprudence is replete with
cases where tipped information has become a sufficient probable cause to effect
a warrantless search and seizure.[37] Unfortunately, none exists in this case.
II. Plain view doctrine
It cannot likewise be said that the cable wires found in petitioner's vehicle were
in plain view, making its warrantless seizure valid.
Jurisprudence is to the effect that an object is in plain view if the object itself is
plainly exposed to sight. Where the object seized was inside a closed package, the
object itself is not in plain view and therefore cannot be seized without a
warrant. However, if the package proclaims its contents, whether by its distinctive
configuration, its transparency, or if its contents are obvious to an observer, then the
contents are in plain view and may be seized. In other words, if the package is such
that an experienced observer could infer from its appearance that it contains the
prohibited article, then the article is deemed in plain view. It must be immediately
apparent to the police that the items that they observe may be evidence of a crime,
contraband or otherwise subject to seizure.[38]
It is clear from the records of this case that the cable wires were not exposed to
sight because they were placed in sacks[39] and covered with leaves. The articles were
neither transparent nor immediately apparent to the police authorities. They had no
clue as to what was hidden underneath the leaves and branches. As a matter of fact,
they had to ask petitioner what was loaded in his vehicle. In such a case, it has been
held that the object is not in plain view which could have justified mere seizure of the
articles without further search.[40]
III. Consented search
Petitioner contends that the statement of Sgt. Victorino Noceja that he checked
the vehicle "with the consent of the accused" is too vague to prove that petitioner
consented to the search. He claims that there is no specific statement as to how the
consent was asked and how it was given, nor the specific words spoken by petitioner
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 102
indicating his alleged "consent." At most, there was only an implied acquiescence, a
mere passive conformity, which is no "consent" at all within the purview of the
constitutional guarantee.
Doubtless, the constitutional immunity against unreasonable searches and
seizures is a personal right which may be waived. The consent must be voluntary in
order to validate an otherwise illegal detention and search, i.e., the consent is
unequivocal, specific, and intelligently given, uncontaminated by any duress or
coercion.[41] Hence, consent to a search is not to be lightly inferred, but must be shown
by clear and convincing evidence.[42] The question whether a consent to a search was
in fact voluntary is a question of fact to be determined from the totality of all the
circumstances.[43] Relevant to this determination are the following characteristics of the
person giving consent and the environment in which consent is given: (1) the age of
the defendant; (2) whether he was in a public or secluded location; (3) whether he
objected to the search or passively looked on; [44] (4) the education and intelligence of
the defendant; (5) the presence of coercive police procedures; (6) the defendant's
belief that no incriminating evidence will be found;[45] (7) the nature of the police
questioning; (8) the environment in which the questioning took place; and (9) the
possibly vulnerable subjective state of the person consenting.[46] It is the State which
has the burden of proving, by clear and positive testimony, that the necessary consent
was obtained and that it was freely and voluntarily given.[47]
In the case at bar, Sgt. Victorino Noceja testified on the manner in which the
search was conducted in this wise:
"WITNESS
Q On June 28, 1989, where were you?
A We were conducting patrol at the poblacion and some barangays, sir.
xxxxxxxxx
Q After conducting the patrol operation, do you remember of any unusual
incident on said date and time?
A Yes, sir.
Q What is that incident?
A While I was conducting my patrol at barangay Sampalucan, I saw
Rudy Caballes driving a vehicle and the vehicle contained aluminum
wires, sir.
xxxxxxxxx
Q When you saw the accused driving the said vehicle, what did you do?

A Because I saw that the vehicle being driven by Caballes was covered
by kakawati leaves, I became suspicious since such vehicle should
not be covered by those and I flagged him, sir.
Q Did the vehicle stop?
A Yes, sir, and after said vehicle stop[ped], I removed the cover of
said vehicle and by so doing, I saw the aluminum wires.
Q Before you saw the aluminum wires, did you talk to the accused?
A Yes, sir, I asked him what his load was.
Q What was the answer of Caballes?
A He did not answer and I observed him to be pale,
"nagpapamutla" (sic), so I told him I will look at the
contents of his vehicle and he answered in the positive.
Q And after you saw for yourself the aluminum wires loaded on the jeep,
what did you do?
A I asked him where those wires came from and he answered those came
from the Cavinti area, sir."[48]
This Court is not unmindful of cases upholding the validity of
consented warrantless searches and seizure. But in these cases, the police officers'
request to search personnel effects was orally articulated to the accused and in such
language that left no room for doubt that the latter fully understood what was
requested. In some instance, the accused even verbally replied to the request
demonstrating that he also understood the nature and consequences of such
request.[49]
In Asuncion vs. Court of Appeals,[50] the apprehending officers sought the
permission of petitioner to search the car, to which the latter agreed. Petitioner therein
himself freely gave his consent to said search. In People vs. Lacerna,[51] the
appellants who were riding in a taxi were stopped by two policemen who asked
permission to search the vehicle and the appellants readily agreed. In upholding the
validity of the consented search, the Court held that appellant himself who was
"urbanized in mannerism and speech" expressly said that he was consenting to the
search as he allegedly had nothing to hide and had done nothing wrong. In People
vs. Cuizon,[52] the accused admitted that they signed a written permission stating that
they freely consented to the search of their luggage by the NBI agents to determine if
they were carrying shabu. In People vs. Montilla,[53] it was held that the accused
spontaneously performed affirmative acts of volition by himself opening the bag without
being forced or intimidated to do so, which acts should properly be construed as a clear
waiver of his right. In People vs. Omaweng,[54] the police officers asked the accused
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 103
if they could see the contents of his bag to which the accused said "you can see the
contents but those are only clothings." Then the policemen asked if they could open
and see it, and accused answered "you can see it." The Court said there was a valid
consented search.
In case of consented searches or waiver of the constitutional guarantee against
obtrusive searches, it is fundamental that to constitute a waiver, it must first appear
that (1) the right exists; (2) that the person involved had knowledge, either actual or
constructive, of the existence of such right; and (3) the said person had an actual
intention to relinquish the right.[55]
In the case at bar, the evidence is lacking that the petitioner intentionally
surrendered his right against unreasonable searches. The manner by which the two
police officers allegedly obtained the consent of petitioner for them to conduct the
search leaves much to be desired. When petitioner's vehicle was flagged down,
Sgt. Noceja approached petitioner and "told him I will look at the contents of his
vehicle and he answered in the positive." We are hard put to believe that by
uttering those words, the police officers were asking or requesting for permission that
they be allowed to search the vehicle of petitioner. For all intents and purposes, they
were informing, nay, imposing upon herein petitioner that they will search his
vehicle. The "consent" given under intimidating or coercive circumstances is no consent
within the purview of the constitutional guaranty. In addition, in cases where this Court
upheld the validity of consented search, it will be noted that the police authorities
expressly asked, in no uncertain terms, for the consent of the accused to be
searched. And the consent of the accused was established by clear and positive
proof. In the case of herein petitioner, the statements of the police officers were not
asking for his consent; they were declaring to him that they will look inside his
vehicle. Besides, it is doubtful whether permission was actually requested and granted
because when Sgt. Noceja was asked during his direct examination what he did when
the vehicle of petitioner stopped, he answered that he removed the cover of the vehicle
and saw the aluminum wires. It was only after he was asked a clarificatory question
that he added that he told petitioner he will inspect the vehicle. To our mind, this was
more of an afterthought. Likewise, when Pat. de Castro was asked twice in his direct
examination what they did when they stopped the jeepney, his consistent answer was
that they searched the vehicle. He never testified that he asked petitioner for
permission to conduct the search.[56]
Neither can petitioner's passive submission be construed as an implied
acquiescence to the warrantless search. In People vs. Barros,[57] appellant Barros,
who was carrying a carton box, boarded a bus where two policemen were riding. The
policemen inspected the carton and found marijuana inside. When asked who owned
the box, appellant denied ownership of the box and failed to object to the search. The
Court there struck down the warrantless search as illegal and held that the accused is
not to be presumed to have waived the unlawful search conducted simply because he
failed to object, citing the ruling in the case of People vs. Burgos,[58] to wit:
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 104

"As the constitutional guaranty is not dependent upon any affirmative act of the
citizen, the courts do not place the citizens in the position of either contesting an
officer's authority by force, or waiving his constitutional rights; but instead they hold
that a peaceful submission to a search or seizure is not a consent or an invitation
thereto, but is merely a demonstration of regard for the supremacy of the law."

Casting aside the cable wires as evidence, the remaining evidence on record are
insufficient to sustain petitioners conviction. His guilt can only be established without
violating the constitutional right of the accused against unreasonable search and
seizure.

WHEREFORE, the impugned decision is REVERSED and SET ASIDE, and accused
Rudy Caballes is hereby ACQUITTED of the crime charged. Cost de oficio.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, Pardo and Ynares-Santiago, JJ., concur.

THIRD DIVISION
[G.R. No. 113447. October 9, 1997]
ALAIN MANALILI y DIZON, petitioner, vs. COURT OF APPEALS and PEOPLE
OF THE PHILIPPINES, respondents.
DECISION
PANGANIBAN, J.:
When dealing with a rapidly unfolding and potentially criminal situation in the city
streets where unarguably there is no time to secure an arrest or a search warrant,
policemen should employ limited, flexible responses -- like stop-and-frisk -- which are
graduated in relation to the amount of information they possess, the lawmen being
ever vigilant to respect and not to violate or to treat cavalierly the citizens constitutional
rights against unreasonable arrest, search and seizure.
The Case
This rule is reiterated as we resolve this petition for review on certiorari under
Rule 45 of the Rules of Court, seeking the reversal of the Decision of the Court of
Appeals dated April 19, 1993 and its Resolution dated January 20, 1994 in CA G.R. CR
No. 07266, entitled People of the Philippines vs. Alain Manalili y Dizon.
In an Information dated April 11, 1988,[1] Petitioner Alain Manalili y Dizon was
charged by Assistant Caloocan City Fiscal E. Juan R. Bautista with violation of Section
8, Article II of Republic Act No. 6425, allegedly committed as follows:[2]
That on or about the 11th day of April 1988 in Caloocan City, MM, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused without any
authority of law, did then and there wilfully, unlawfully and feloniously have in his
custody, possession and control crushed marijuana residue, which is a prohibited
drug and knowing the same to be such.
Contrary to Law.
Upon his arraignment on April 21, 1988, appellant pleaded not guilty to the
charge.[3] With the agreement of the public prosecutor, appellant was released after
filing a P10,000.00 bail bond.[4] After trial in due course, the Regional Trial Court of
Caloocan City, Branch 124, acting as a Special Criminal Court, rendered on May 19,
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 105
1989 a decision[5] convicting appellant of illegal possession of marijuana residue. The
dispositive portion of the decision reads:[6]
WHEREFORE, in view of all the foregoing, this Court finds the accused ALAIN
MANALILI Y DIZON guilty beyond reasonable doubt of violation of Section 8, Article
II, of Republic Act No. 6425, as amended (Illegal Possession of Marijuana residue),
and hereby snetences (sic) said accused to suffer imprisonment of SIX (6) YEARS and
ONE (1) DAY; and to pay a fine of P6,000.00; and to pay the costs.
xxx xxx xxx.
Appellant remained on provisional liberty.[7] Atty. Benjamin Razon, counsel for the
defense, filed a Notice of Appeal[8] dated May 31, 1989. On April 19, 1993, Respondent
Court[9] promulgated its assailed Decision, denying the appeal and affirming the trial
court:[10]
ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby AFFIRMED
in all respects. Costs against appellant.
Respondent Court[11] denied reconsideration via its assailed Resolution dated
January 20, 1994, disposing:
ACCORDINGLY, accused-appellants motion for reconsideration is, as is hereby
DENIED.
The Facts
Version of the Prosecution
The facts, as found by the trial court, are as follows:[12]
At about 2:10 oclock in the afternoon of April 11, 1988, policemen from the Anti-
Narcotics Unit of the Kalookan City Police Station were conducting a surveillance
along A. Mabini street, Kalookan City, in front of the Kalookan City Cemetery. The
policemen were Pat. Romeo Espiritu and Pat. Anger Lumabas and a driver named
Arnold Enriquez was driving a Tamaraw vehicle which was the official car of the
Police Station of Kalookan City. The surveillance was being made because of
information that drug addicts were roaming the area in front of the Kalookan City
Cemetery.

Upon reaching the Kalookan City Cemetery, the policemen alighted from their
vehicle. They then chanced upon a male person in front of the cemetery who
appeared high on drugs. The male person was observed to have reddish eyes and to
be walking in a swaying manner. When this male person tried to avoid the policemen,
the latter approached him and introduced themselves as police officers. The
policemen then asked the male person what he was holding in his hands. The male
person tried to resist. Pat. Romeo Espiritu asked the male person if he could see what
said male person had in his hands. The latter showed the wallet and allowed Pat.
Romeo Espiritu to examine the same. Pat. Espiritu took the wallet and examined
it. He found suspected crushed marijuana residue inside. He kept the wallet and its
marijuana contents.
The male person was then brought to the Anti-Narcotics Unit of the Kalookan City
Police Headquarters and was turned over to Cpl. Wilfredo Tamondong for
investigation. Pat. Espiritu also turned over to Cpl. Tamondong the confiscated wallet
and its suspected marijuana contents. The man turned out to be the accused ALAIN
MANALILI y DIZON.
Upon receipt of the confiscated suspected marijuana residue from Pat. Espiritu, Cpl.
Tamondong wrapped the same with a white sheet of paper on which he wrote
Evidence A 4/11/88 Alain Manalili. The white sheet of paper was marked as Exhibit E-
3. The residue was originally wrapped in a smaller sheet of folded paper. (Exhibit E-
4).
Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic
Chemistry Section requesting a chemical analysis of the subject marijuana residue
(Exhibit D). Cpl. Tamondong thereafter prepared a Joint Affidavit of the apprehending
policemen (Exhibit A). Pat. Angel Lumabas handcarried the referral slip (Exhibit D) to
the National Bureau of Investigation (NBI), including the subject marijuana residue
for chemical analysis. The signature of Pat. Lumabas appears on the left bottom
corner of Exhibit D.
The Forensic Chemistry Section of the NBI received the aforesaid referral slip and the
subject marijuana residue at 7:40 oclock in the evening of April 11, 1988 as shown on
the stamped portion of Exhibit D.
It was NBI Aida Pascual who conducted the microscopic and chemical
examinations of the specimen which she identified. (Exhibit E)[13] Mrs. Pascual referred
to the subject specimen as crushed marijuana leaves in her Certification dated April 11,
1988 (Exhibit F).[14] These crushed marijuana leaves gave positive results for
marijuana, according to the Certificate.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 106
Mrs. Pascual also conducted a chromatographic examination of the specimen. In this
examination, she also found that the crushed marijuana leaves gave positive results
for marijuana. She then prepared a Final Report of her examinations (Exhibit G).
After conducting the examinations, Ms. Pascual placed the specimen in a white letter-
envelope and sealed it. (Exhibit E). She then wrote identification notes on this letter-
envelope. (Exhibit E-1).
Pat. Lumabas carried the Certification marked as Exhibit F from the NBI Forensic
Chemistry Section to Cpl. Tamondong. Upon receipt thereof, Cpl. Tamondong
prepared a referral slip addressed to the City Fiscal of Kalookan City. (Exhibit C)
On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was
walking in front of the cemetery when he was apprehended.[15]
Version of the Defense
The trial court summarized the testimonies of the defense witnesses as follows:[16]
At about 2:00 oclock in the afternoon of April 11, 1988, the accused ALAIN MANALILI
was aboard a tricycle at A. Mabini street near the Kalookan City Cemetery on the way
to his boarding house. Three policemen ordered the driver of the tricycle to stop
because the tricycle driver and his lone passenger were under the influence of
marijuana. The policemen brought the accused and the tricycle driver inside the Ford
Fiera which the policemen were riding in. The policemen then bodily searched the
accused and the tricycle driver. At this point, the accused asked the policemen why
he was being searched and the policemen replied that he (accused) was carrying
marijuana. However, nothing was found on the persons of the accused and the
driver. The policemen allowed the tricycle driver to go while they brought the accused
to the police headquarters at Kalookan City where they said they would again search
the accused.
On the way to the police headquarters, the accused saw a neighbor and signaled the
latter to follow him. The neighbor thus followed the accused to the Kalookan City
Police Headquarters. Upon arrival thereat, the accused was asked to remove his
pants in the presence of said neighbor and another companion. The policemen turned
over the pants of the accused over a piece of bond paper trying to look for
marijuana. However, nothing was found, except for some dirt and dust. This
prompted the companion of the neighbor of the accused to tell the policemen to

release the accused.The accused was led to a cell. The policemen later told the
accused that they found marijuana inside the pockets of his pants.
At about 5:00 oclock in the afternoon on the same day, the accused was brought
outside the cell and was led to the Ford Fiera. The accused was told by the policemen
to call his parents in order to settle the case. The policemen who led the accused to
the Ford Fiera were Pat. Lumabas, Pat. Espiritu and Cpl. Tamondong. Pat. Lumabas
was the policeman who told the accused to call his parents. The accused did not call
his parents and he told the policemen that his parents did not have any telephone.
At about 5:30 oclock in the afternoon of the same day, the accused was brought in
the office of an inquest Fiscal. There, the accused told the Fiscal that no marijuana
was found on his person but the Fiscal told the accused not to say anything. The
accused was then brought back to the Kalookan City Jail.
Loreto Medenilla, the tricycle driver who was allegedly with the accused when he and
the accused were stopped by policemen and then bodily searched on April 11, 1988,
testified. He said that the policemen found nothing either on his person or on the
person of the accused when both were searched on April 11, 1988.
Roberto Abes, a neighbor of the accused, testified that he followed the accused at
the Kalookan City Police Headquarters on April 11, 1988. He said that the police
searched the accused who was made to take off his pants at the police headquarters
but no marijuana was found on the body of the accused.
Appellant, who was recalled to the stand as sur-rebuttal witness, presented
several pictures showing that tricycles were allowed to ply in front of the Caloocan
Cemetery.[17]
The Rulings of the Trial and the Appellate Courts
The trial court convicted petitioner of illegal possession of marijuana residue
largely on the strength of the arresting officers testimony. Patrolmen Espiritu and
Lumabas were neutral and disinterested witnesses, testifying only on what transpired
during the performance of their duties. Substantially, they asserted that the appellant
was found to be in possession of a substance which was later identified as crushed
marijuana residue.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 107
The trial court disbelieved appellants defense that this charge was merely
trumped up, because the appellant neither took any legal action against the allegedly
erring policemen nor moved for a reinvestigation before the city fiscal of Kalookan City.
On appeal, Respondent Court found no proof that the decision of the trial court
was based on speculations, surmises or conjectures. On the alleged serious
discrepancies in the testimonies of the arresting officers, the appellate court ruled that
the said inconsistencies were insubstantial to impair the essential veracity of the
narration. It further found petitioners contention -- that he could not be convicted of
illegal possession of marijuana residue -- to be without merit, because the forensic
chemist reported that what she examined were marijuana leaves.
Issues
Petitioner assigns the following errors on the part of Respondent Court:
I
The Court of Appeals erred in upholding the findings of fact of the trial court.
II
The Court of Appeals erred in upholding the conviction of (the) accused (and) in
ruling that the guilt of the accused had been proved (beyond) reasonable
doubt.
III
The Court of Appeals erred in not ruling that the inconsistencies in the
testimonies of the prosecution witnesses were material and substantial and not
minor.
IV
The Court of Appeals erred in not appreciating the evidence that the accused
was framed for the purpose of extorting money.
V

The Court of Appeals erred in not acquitting the accused when the evidence
presented is consistent with both innocence and guilt.
VI
The Court of Appeals erred in admitting the evidence of the prosecution which
are inadmissible in evidence.
Restated more concisely, petitioner questions (1) the admissibility of the evidence
against him, (2) the credibility of prosecution witnesses and the rejection by the trial
and the appellate courts of the defense of extortion, and (3) the sufficiency of the
prosecution evidence to sustain his conviction.
The Courts Ruling
The petition has no merit.
First Issue: Admissibility of the Evidence Seized During a Stop-and-Frisk
Petitioner protests the admission of the marijuana leaves found in his possession,
contending that they were products of an illegal search. The Solicitor General, in his
Comment, dated July 5, 1994, which was adopted as memorandum for respondent,
counters that the inadmissibility of the marijuana leaves was waived because petitioner
never raised this issue in the proceedings below nor did he object to their admissibility
in evidence. He adds that, even assuming arguendo that there was no waiver, the
search was legal because it was incidental to a warrantless arrest under Section 5 (a),
Rule 113 of the Rules of Court.
We disagree with petitioner and hold that the search was valid, being akin to a
stop-and-frisk. In the landmark case of Terry vs. Ohio,[18] a stop-and-frisk was defined
as the vernacular designation of the right of a police officer to stop a citizen on the
street, interrogate him, and pat him for weapon(s):
x x x (W)here a police officer observes an unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot
and that the persons with whom he is dealing may be armed and presently
dangerous, where in the course of investigating this behavior he identified himself as
a policeman and makes reasonable inquiries, and where nothing in the initial stages
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 108
of the encounter serves to dispel his reasonable fear for his own or others safety, he
is entitled for the protection of himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a search is a reasonable search
under the Fourth Amendment, and any weapon seized may properly be introduced in
evidence against the person from whom they were taken.[19]
In allowing such a search, the United States Supreme Court held that the interest
of effective crime prevention and detection allows a police officer to approach a person,
in appropriate circumstances and manner, for purposes of investigating possible
criminal behavior even though there is insufficient probable cause to make an actual
arrest. This was the legitimate investigative function which Officer McFadden
discharged in that case, when he approached petitioner and his companion whom he
observed to have hovered alternately about a street corner for an extended period of
time, while not waiting for anyone; paused to stare in the same store window roughly
24 times; and conferred with a third person. It would have been sloppy police work for
an officer of 30 years experience to have failed to investigate this behavior further.
In admitting in evidence two guns seized during the stop-and-frisk, the US
Supreme Court held that what justified the limited search was the more immediate
interest of the police officer in taking steps to assure himself that the person with whom
he was dealing was not armed with a weapon that could unexpectedly and fatally be
used against him.
It did not, however, abandon the rule that the police must, whenever practicable,
obtain advance judicial approval of searches and seizures through the warrant
procedure, excused only by exigent circumstances.
In Philippine jurisprudence, the general rule is that a search and seizure must be
validated by a previously secured judicial warrant; otherwise, such search and seizure
is unconstitutional and subject to challenge.[20] Section 2, Article III of the 1987
Constitution, gives this guarantee:
SEC. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.
Any evidence obtained in violation of the mentioned provision is legally
inadmissible in evidence as a fruit of the poisonous tree, falling under the exclusionary
rule:

SEC. 3. x x x
(2) Any evidence obtained in violation of x x x the preceding section shall be
inadmissible for any purpose in any proceeding.
This right, however, is not absolute.[21] The recent case of People vs.
Lacerna enumerated five recognized exceptions to the rule against warrantless search
and seizure, viz.: (1) search incidental to a lawful arrest, (2) search of moving vehicles,
(3) seizure in plain view, (4) customs search, and (5) waiver by the accused themselves
of their right against unreasonable search and seizure.[22] In People vs.
Encinada,[23] the Court further explained that [i]n these cases, the search and seizure
may be made only with probable cause as the essential requirement. Although the term
eludes exact definition, probable cause for a search is, at best, defined as a reasonable
ground of suspicion, supported by circumstances sufficiently strong in themselves to
warrant a cautious man in the belief that the person accused is guilty of the offense
with which he is charged; or the existence of such facts and circumstances which could
lead a reasonably discreet and prudent man to believe that an offense has been
committed and that the item(s), article(s) or object(s) sought in connection with said
offense or subject to seizure and destruction by law is in the place to be searched.
Stop-and-frisk has already been adopted as another exception to the general rule
against a search without a warrant. In Posadas vs. Court of Appeals ,[24] the Court held
that there are many instances where a search and seizure can be effected without
necessarily being preceded by an arrest, one of which is stop-and-frisk. In said case,
members of the Integrated National Police of Davao stopped petitioner, who was
carrying a buri bag and acting suspiciously. They found inside petitioners bag one .38-
cal. revolver with two rounds of live ammunition, two live ammunitions for a .22-cal.
gun and a tear gas grenade. In upholding the legality of the search, the Court said that
to require the police officers to search the bag only after they had obtained a search
warrant might prove to be useless, futile and much too late under the circumstances. In
such a situation, it was reasonable for a police officer to stop a suspicious individual
briefly in order to determine his identity or to maintain the status quo while obtaining
more information, rather than to simply shrug his shoulders and allow a crime to occur.
In the case at hand, Patrolman Espiritu and his companions observed during their
surveillance that appellant had red eyes and was wobbling like a drunk along the
Caloocan City Cemetery, which according to police information was a popular hangout
of drug addicts. From his experience as a member of the Anti-Narcotics Unit of the
Caloocan City Police, such suspicious behavior was characteristic of drug addicts who
were high. The policemen therefore had sufficient reason to stop petitioner to
investigate if he was actually high on drugs. During such investigation, they found
marijuana in petitioners possession:[25]
FISCAL RALAR:
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 109
Q And why were you conducting surveillance in front of the Caloocan
Cemetery, Sangandaan, Caloocan City?
A Because there were some informations that some drug dependents were
roaming around at A. Mabini Street in front of the Caloocan Cemetery,
Caloocan City.
xxx xxx xxx
Q While you were conducting your surveillance, together with Pat. Angel
Lumabas and one Arnold Enriquez, what happened, if any?
A We chanced upon one male person there in front of the Caloocan
Cemetery then when we called his attention, he tried to avoid us, then
prompting us to approach him and introduce ourselves as police
officers in a polite manner.
xxx xxx xxx
Q Could you describe to us the appearance of that person when you chanced
upon him?
A That person seems like he is high on drug.
Q How were you able to say Mr. Witness that that person that you chanced
upon was high on drug?
A Because his eyes were red and he was walking on a swaying manner.
Q What was he doing in particular when you chanced upon him?
A He was roaming around, sir.
Q You said that he avoided you, what did you do when he avoided you?
A We approached him and introduced ourselves as police officers in a polite
manner, sir.
Q How did you introduce yourselves?
A In a polite manner, sir.
Q What did you say when you introduced yourselves?
A We asked him what he was holding in his hands, sir.
Q And what was the reaction of the person when you asked him what he
was holding in his hands?
A He tried to resist, sir.

Q When he tried to resist, what did you do?
A I requested him if I can see what was he was(sic) holding in his hands.
Q What was the answer of the person upon your request?
A He allowed me to examine that something in his hands, sir.
xxx xxx xxx
Q What was he holding?
A He was holding his wallet and when we opened it, there was a marijuana
(sic) crushed residue.
Furthermore, we concur with the Solicitor Generals contention that petitioner
effectively waived the inadmissibility of any evidence illegally obtained when he failed
to raise this issue or to object thereto during the trial. A valid waiver of a right, more
particularly of the constitutional right against unreasonable search, requires the
concurrence of the following requirements: (1) the right to be waived existed; (2) the
person waiving it had knowledge, actual or constructive, thereof; and (3) he or she had
an actual intention to relinquish the right.[26] Otherwise, the Courts will indulge every
reasonable presumption against waiver of fundamental safeguards and will not deduce
acquiescence from the failure to exercise this elementary right. In the present case,
however, petitioner is deemed to have waived such right for his failure to raise its
violation before the trial court. In petitions under Rule 45, as distinguished from an
ordinary appeal of criminal cases where the whole case is opened for review, the appeal
is generally limited to the errors assigned by petitioner. Issues not raised below cannot
be pleaded for the first time on appeal.[27]
Second Issue: Assessment of Evidence
Petitioner also contends that the two arresting officers testimony contained
polluted, irreconcilable and unexplained contradictions which did not support
petitioners conviction.
We disagree. Time and again, this Court has ruled that the trial courts assessment
of the credibility of witnesses, particularly when affirmed by the Court of Appeals as in
this case, is accorded great weight and respect, since it had the opportunity to observe
their demeanor and deportment as they testified before it. Unless substantial facts and
circumstances have been overlooked or misappreciated by the trial court which, if
considered, would materially affect the result of the case, we will not countenance a
departure from this rule.[28]
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 110
We concur with Respondent Courts ruling:
(e)ven assuming as contended by appellant that there had been some inconsistencies
in the prosecution witnesses testimonies, We do not find them substantial enough to
impair the essential veracity of their narration. In People vs. Avila, it was held that As
long as the witnesses concur on the material points, slight differences in their
remembrance of the details, do not reflect on the essential veracity of their
statements.
However, we find that, aside from the presumption of regularity in the
performance of duty, the bestowal of full credence on Pat. Espiritus testimony is
justified by tangible evidence on record. Despite Pat. Lumabas contradictory testimony,
that of Espiritu is supported by the Joint Affidavit[29] signed by both arresting
policemen. The question of whether the marijuana was found inside petitioners wallet
or inside a plastic bag is immaterial, considering that petitioner did not deny possession
of said substance. Failure to present the wallet in evidence did not negate that
marijuana was found in petitioners possession. This shows that such contradiction is
minor, and does not destroy Espiritus credibility.[30]
Third Issue: Sufficiency of Evidence
The elements of illegal possession of marijuana are: (a) the accused is in
possession of an item or object which is identified to be a prohibited drug; (b) such
possession is not authorized by law; and (c) the accused freely and consciously
possessed the said drug.[31]
The substance found in petitioners possession was identified by NBI Forensic
Chemist Aida Pascual to be crushed marijuana leaves. Petitioners lack of authority to
possess these leaves was established. His awareness thereof was undeniable,
considering that petitioner was high on drugs when stopped by the policemen and that
he resisted when asked to show and identify the thing he was holding. Such behavior
clearly shows that petitioner knew that he was holding marijuana and that it was
prohibited by law.
Furthermore, like the trial and the appellate courts, we have not been given
sufficient grounds to believe the extortion angle in this case. Petitioner did not file any
administrative or criminal case against the arresting officers or present any evidence,
other than his bare claim. His argument that he feared for his life was lame and
unbelievable, considering that he was released on bail and continued to be on bail as
early as April 26, 1988.[32] Since then, he could have made the charge in relative safety,
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 111

as he was no longer in the custody of the police. His defense of frame-up, like alibi, is Prescinding from the foregoing, the Court holds that the proper penalty is an
viewed by this Court with disfavor, because it is easy to concoct and fabricate.[33] indeterminate sentence of imprisonment ranging from six years and one day to twelve
years.[34]

WHEREFORE, the assailed Decision and Resolution are

The Proper Penalty hereby AFFIRMED with MODIFICATION. Petitioner is sentenced to
suffer IMPRISONMENT of SIX (6) YEARS, as minimum, to TWELVE (12) YEARS, as
maximum, and to PAY a FINE of SIX THOUSAND PESOS. Costs against petitioner.
The trial and the appellate courts overlooked the Indeterminate Sentence Law
(Act No. 4103, as amended) by sentencing petitioner to a straight penalty of six years SO ORDERED.
and one day of imprisonment, aside from the imposed fine of six thousand pesos. This Narvasa, C.J., (Chairman), Romero, Melo, and Francisco, JJ., concur.
Act requires the imposition of an indeterminate penalty:

SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the

Revised Penal Code, or its amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be that which, in view of
the attending circumstances, could be properly imposed under the rules of the said
Code, and the minimum which shall be within the range of the penalty next lower to
that prescribed by the Code for the offense; and if the offense is punished by any
other law, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term prescribed by the same. (As
amended by Act No. 4225.)

SEC. 2. This Act shall not apply to persons convicted of offenses punished with death
penalty or life-imprisonment; to those convicted of treason; to those convicted of
misprision of treason, rebellion, sedition or espionage; to those convicted of piracy; to
those who are habitual delinquents; to those who shall have escaped from
confinement or evaded sentence; to those who having been granted conditional
pardon by the Chief Executive shall have violated the terms thereof; to those whose
maximum term of imprisonment does not exceed one year, not to those already
sentenced by final judgment at the time of approval of this Act, except as provided in
Section 5 hereof. (Underscoring supplied)

The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the
following penalty for illegal possession of marijuana:

Sec. 8. x x x x

The penalty of imprisonment ranging from six years and one day to twelve years and
a fine ranging from six thousand to twelve thousand pesos shall be imposed upon
any person who, unless authorized by law, shall possess or use Indian hemp.

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 200334 July 30, 2014
THE PEOPLE OF THE PHILIPPINES, Respondent-Appellee,
vs.
VICTOR COGAED y ROMANA, Accused-Appellant.
DECISION
LEONEN, J.:
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
society.
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.
I
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 112
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 marijuana.20
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 states:
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
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 113
(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:
I
THE TRIAL COURT GRAVELY ERRED IN ADMITTING THE SEIZED DANGEROUS
DRUGS AS EVIDENCE AGAINST THE ACCUSED-APPELLANT DESPITE BEING THE
RESULT OF AN UNLAWFUL WARRANTLESS SEARCH AND SEIZURE.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT
DESPITE THE ARRESTING OFFICER’S NON-COMPLIANCE WITH THE REQUIREMENTS
FOR THE PROPER CUSTODY OF SEIZED DANGEROUS DRUGS UNDER REPUBLIC ACT
NO. 9165.
III
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT
DESPITE THE ARRESTING OFFICER’S FAILURE TO PRESERVE THE INTEGRITY AND
EVIDENTIARY VALUE OF THE SEIZED DANGEROUS DRUGS.54

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.
II
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
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 114
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)
III
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
warrant."67
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.
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 115

"Stop and frisk" searches (sometimes referred to as Terrysearches68) are necessary COURT:
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 Q So you don’t know what was the content while it was still being carried by him in
to protect the privacy of citizens in accordance with Article III, Section 2 of the the passenger jeep?
Constitution.
WITNESS:
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
A Not yet, Your Honor.83
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 SPO1 Taracatac likewise stated:
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 COURT:
suspicion of an illicit act.
Q If the driver did not make a gesture pointing to the accused, did you have reason
In Manalili v. Court of Appeals,69 the police officers were initially informed about a to believe that the accused were carrying marijuana?
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
WITNESS:
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 A No, Your Honor.84
stop[the] petitioner [and] investigate."74
The jeepney driver had to point toCogaed. He would not have been identified by the
In People v. Solayao,75 police officers noticed a man who appeared drunk.76This man police officers otherwise.
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 It is the police officer who should observe facts that would lead to a reasonable
officers found an unlicensed "homemade firearm"80 in his possession.81 This court degree of suspicion of a person. The police officer should not adopt the suspicion
ruled that "[u]nder the circumstances, the government agents could not possibly initiated by another person. This is necessary to justify that the person suspected be
have procured a search warrant first."82 This was also a valid search. 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.
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 IV
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. 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
The case of Cogaed was different. He was simply a passenger carrying a bag and Appeals,86 one of the earliest cases adopting the "stop and frisk" doctrine in Philippine
traveling aboarda jeepney. There was nothing suspicious, moreover, criminal, about jurisprudence, this court approximatedthe suspicious circumstances as probable
riding a jeepney or carrying a bag. The assessment of suspicion was not made by the cause:
police officer but by the jeepney driver. It was the driver who signalled to the police
that Cogaed was "suspicious." 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
This is supported by the testimony of SPO1 Taracatac himself:

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.
V
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
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 116
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
VI
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
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 117
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.
VII
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:
ATTY. BINWAG:
Q Now, Mr. witness, you claimed that you only asked them what are the contents of
their bags, is it not?
WITNESS:
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?
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 118

A None, ma’am. Any evidence obtained in violation of [the right against unreasonable searches and
seizures] shall be inadmissible for any purpose in any proceeding.135
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 Otherwise known as the exclusionary rule or the fruit of the poisonous tree doctrine,
it not? 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
A It seems they were frightened, ma’am. 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
Q But you actually [claimed] that there was not any hesitation from them in opening
fundamental rights to one’s person, houses, papers, and effects are not lightly
the bags, is it not?
infringed upon and are upheld.

A Yes, ma’am but when I went near them it seems that they were
Considering that the prosecution and conviction of Cogaed were founded on the
surprised.133 (Emphasis supplied)
search of his bags, a pronouncement of the illegality of that search means that there
is no evidence left to convict Cogaed.
The state of mind of Cogaed was further clarified with SPO1 Taracatac’s responses to
Judge Florendo’s questions:
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
COURT: 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 protect.

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.1âwphi1 He was a little apprehensive and when he was already
stepping down and he put down the bag I asked him, "what’s that," and he
answered, "I don’t know because Marvin only asked me to carry."134
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.

SO ORDERED.
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.1âwphi1 The police officer must also inform the person to be searched that MARVIC MARIO VICTOR F. LEONEN
any inaction on his orher part will amount to a waiver of any of his or her objections Associate Justice
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.

VIII
The Constitution provides:
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 119

Republic of the Philippines

Supreme Court
Petitioner, Elenita Fajardo, and one Zaldy Valerio (Valerio) were charged with violation
Manila
of P.D. No. 1866, as amended, before the RTC, Branch 5, Kalibo, Aklan, committed as
SECOND DIVISION
follows:
ELENITA C. FAJARDO, G.R. No. 190889
Petitioner, That on or about the 28th day of August, 2002, in the morning, in Barangay
Present: Andagao, Municipality of Kalibo, Province of Aklan, Republic
of the Philippines, and within the jurisdiction of this
CARPIO, J., Honorable Court, the above-named accused, conspiring,
Chairperson, confederating and mutually helping one another, without
- versus - NACHURA, authority of law, permit or license, did then and there,
PERALTA, knowingly, willfully, unlawfully and feloniously have in their
ABAD, and possession, custody and control two (2) receivers of
MENDOZA, JJ. caliber .45 pistol, [M]odel [No.] M1911A1 US with
SN 763025 and Model [No.] M1911A1 US with
Promulgated: defaced serial number, two (2) pieces short
PEOPLE OF THE PHILIPPINES, magazine of M16 Armalite rifle, thirty-five (35)
Respondent. January 10, 2011 pieces live M16 ammunition 5.56 caliber and
fourteen (14) pieces live caliber .45
x------------------------------------------------------------------------------------x ammunition, which items were confiscated and recovered
from their possession during a search conducted by
members of the Provincial Intelligence Special Operation
DECISION Group, Aklan Police Provincial Office, Kalibo, Aklan, by
virtue of Search Warrant No. 01 (9) 03 issued by OIC
NACHURA, J.: Executive Judge Dean Telan of the Regional Trial Court of
Aklan.[3]

At bar is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, seeking the reversal of the February 10, 2009 Decision[1] of the Court of Appeals
(CA), which affirmed with modification the August 29, 2006 decision[2] of the Regional
Trial Court (RTC), Branch 5, Kalibo, Aklan, finding petitioner guilty of violating
Presidential Decree (P.D.) No. 1866, as amended.
When arraigned on March 25, 2004, both pleaded not guilty to the offense
charged.[4] During pre-trial, they agreed to the following stipulation of facts:
1. The search warrant subject of this case exists;
2. Accused Elenita Fajardo is the same person subject of the
search warrant in this case who is a resident of Sampaguita
Road, Park Homes, Andagao, Kalibo, Aklan;

3. Accused Zaldy Valerio was in the house of Elenita Fajardo in

the evening of August 27, 2002 but does not live therein;
The facts:

4. Both accused were not duly licensed firearm holders;
5. The search warrant was served in the house of accused Elenita
Fajardo in the morning of August 28, 2002; and
6. The accused Elenita Fajardo and Valerio were not arrested
immediately upon the arrival of the military personnel despite
the fact that the latter allegedly saw them in possession of a
firearm in the evening of August 27, 2002.[5]
As culled from the similar factual findings of the RTC and the CA,[6] these are
the chain of events that led to the filing of the information:
In the evening of August 27, 2002, members of the Provincial Intelligence
Special Operations Group (PISOG) were instructed by Provincial Director Police
Superintendent Edgardo Mendoza (P/Supt. Mendoza) to respond to the complaint of
concerned citizens residing on Ilang-Ilang and Sampaguita Roads, Park Homes III
Subdivision, Barangay Andagao, Kalibo, Aklan, that armed men drinking liquor at the
residence of petitioner were indiscriminately firing guns.
Along with the members of the Aklan Police Provincial Office, the elements of
the PISOG proceeded to the area. Upon arrival thereat, they noticed that several
persons scampered and ran in different directions. The responding team saw Valerio
holding two .45 caliber pistols. He fired shots at the policemen before entering the
house of petitioner.
Petitioner was seen tucking a .45 caliber handgun between her waist and the
waistband of her shorts, after which, she entered the house and locked the main door.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 120
To prevent any violent commotion, the policemen desisted from entering petitioners
house but, in order to deter Valerio from evading apprehension, they cordoned the
perimeter of the house as they waited for further instructions from P/Supt. Mendoza.
A few minutes later, petitioner went out of the house and negotiated for the pull-out
of the police troops. No agreement materialized.
At around 2:00 a.m. and 4:00 a.m. of August 28, 2002, Senior Police Officer
2 Clemencio Nava (SPO2 Nava), who was posted at the back portion of the house, saw
Valerio emerge twice on top of the house and throw something. The discarded objects
landed near the wall of petitioners house and inside the compound of a neighboring
residence. SPO2 Nava, together with SPO1 Teodoro Neron and Jerome T. Vega (Vega),
radio announcer/reporter of RMN DYKR, as witness, recovered the discarded objects,
which turned out to be two (2) receivers of .45 caliber pistol, model no. M1911A1 US,
with serial number (SN) 763025, and model no. M1911A1 US, with a defaced serial
number. The recovered items were then surrendered to SPO1 Nathaniel A. Tan (SPO1
Tan), Group Investigator, who utilized them in applying for and obtaining a search
warrant.
The warrant was served on petitioner at 9:30 a.m. Together with
a barangay captain, barangay kagawad, and members of the media, as witnesses, the
police team proceeded to search petitioners house. The team found and was able to
confiscate the following:
1. Two (2) pieces of Short Magazine of M16 Armalite Rifle;
2. Thirty five (35) pieces of live M16 ammos 5.56 Caliber; and
3. Fourteen (14) pieces of live ammos of Caliber 45 pistol.

Since petitioner and Valerio failed to present any documents showing their
authority to possess the confiscated firearms and the two recovered receivers, a
criminal information for violation of P.D. No. 1866, as amended by Republic Act (R.A.)
No. 8294, was filed against them.
For their exoneration, petitioner and Valerio argued that the issuance of the
search warrant was defective because the allegation contained in the application filed
and signed by SPO1 Tan was not based on his personal knowledge. They quoted this
pertinent portion of the application:
That this application was founded on confidential
information received by the Provincial Director, Police Supt. Edgardo
Mendoza.[7]
They further asserted that the execution of the search warrant was infirm
since petitioner, who was inside the house at the time of the search, was not asked to
accompany the policemen as they explored the place, but was instead ordered to
remain in the living room (sala).
Petitioner disowned the confiscated items. She refused to sign the
inventory/receipt prepared by the raiding team, because the items allegedly belonged
to her brother, Benito Fajardo, a staff sergeant of the Philippine Army.
Petitioner denied that she had a .45 caliber pistol tucked in her waistband
when the raiding team arrived. She averred that such situation was implausible because
she was wearing garterized shorts and a spaghetti-strapped hanging blouse.[8]
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 121
Ruling of the RTC
The RTC rejected the defenses advanced by accused, holding that the same
were already denied in the Orders dated December 31, 2002 and April 20, 2005,
respectively denying the Motion to Quash Search Warrant and Demurrer to
Evidence. The said Orders were not appealed and have thus attained finality. The RTC
also ruled that petitioner and Valerio were estopped from assailing the legality of their
arrest since they participated in the trial by presenting evidence for their defense.
Likewise, by applying for bail, they have effectively waived such irregularities and
defects.
In finding the accused liable for illegal possession of firearms, the RTC
explained:
Zaldy Valerio, the bodyguard of Elenita Fajardo, is a former
soldier, having served with the Philippine Army prior to his separation
from his service for going on absence without leave (AWOL). With
his military background, it is safe to conclude that Zaldy Valerio is
familiar with and knowledgeable about different types of firearms
and ammunitions. As a former soldier, undoubtedly, he can assemble
and disassemble firearms.
It must not be de-emphasize[d] that the residence of
Elenita Fajardo is definitely not an armory or arsenal which are the
usual depositories for firearms, explosives and ammunition. Granting
arguendo that those firearms and ammunition were left behind by
Benito Fajardo, a member of the Philippine army, the fact remains
that it is a government property. If it is so, the residence of Elenita
Fajardo is not the proper place to store those items. The logical
explanation is that those items are stolen property.
xxxx
The rule is that ownership is not an essential element of
illegal possession of firearms and ammunition. What the law requires

is merely possession which includes not only actual physical
possession but also constructive possession or the subjection of the
thing to ones control and management. This has to be so if the
manifest intent of the law is to be effective. The same evils, the same
perils to public security, which the law penalizes exist whether the
unlicensed holder of a prohibited weapon be its owner or a borrower.
To accomplish the object of this law[,] the proprietary concept of the
possession can have no bearing whatsoever.
xxxx
x x x. [I]n order that one may be found guilty of a violation
of the decree, it is sufficient that the accused had no authority or
license to possess a firearm, and that he intended to possess the
same, even if such possession was made in good faith and without
criminal intent.
xxxx
To convict an accused for illegal possession of firearms and
explosive under P.D. 1866, as amended, two (2) essential elements
must be indubitably established, viz.: (a) the existence of the subject
firearm ammunition or explosive which may be proved by the
presentation of the subject firearm or explosive or by the testimony
of witnesses who saw accused in possession of the same, and (b)
the negative fact that the accused has no license or permit to own
or possess the firearm, ammunition or explosive which fact may be
established by the testimony or certification of a representative of
the PNP Firearms and Explosives Unit that the accused has no license
or permit to possess the subject firearm or explosive (Exhibit G).
The judicial admission of the accused that they do not have
permit or license on the two (2) receivers of caliber .45 pistol, model
M1911A1 US with SN 763025 and model M1911A1 of M16 Armalite
rifle, thirty-five (35) pieces live M16 ammunition, 5.56 caliber and
fourteen (14) pieces live caliber .45 ammunition confiscated and
recovered from their possession during the search conducted by
members of the PISOG, Aklan Police Provincial Office by virtue of
Search Warrant No. 01 (9) 03 fall under Section 4 of Rule 129 of the
Revised Rules of Court.[9]
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 122
Consequently, petitioner and Valerio were convicted of illegal possession of
firearms and explosives, punishable under paragraph 2, Section 1 of P.D. No. 1866, as
amended by R.A. No. 8294, which provides:
The penalty of prision mayor in its minimum period and a
fine of Thirty thousand pesos (P30,000.00) shall be imposed if the
firearm is classified as high powered firearm which includes those
with bores bigger in diameter than .38 caliber and 9 millimeter such
as caliber .40, .41, .44, .45 and also lesser calibered firearms but
considered powerful such as caliber .357 and caliber .22 center-fire
magnum and other firearms with firing capability of full automatic
and by burst of two or three: Provided, however, That no other crime
was committed by the person arrested.
Both were sentenced to suffer the penalty of imprisonment of six (6) years
and one (1) day to twelve (12) years of prision mayor, and to pay a fine of P30,000.00.
On September 1, 2006, only petitioner filed a Motion for Reconsideration,
which was denied in an Order dated October 25, 2006. Petitioner then filed a Notice of
Appeal with the CA.
Ruling of the CA
The CA concurred with the factual findings of the RTC, but disagreed with its
conclusions of law, and held that the search warrant was void based on the following
observations:
[A]t the time of applying for a search warrant, SPO1 Nathaniel A.
Tan did not have personal knowledge of the fact that appellants had
no license to possess firearms as required by law. For one, he failed
to make a categorical statement on that point during the application.
Also, he failed to attach to the application a certification to that effect
from the Firearms and Explosives Office of the Philippine National
Police. x x x, this certification is the best evidence obtainable to prove

that appellant indeed has no license or permit to possess a firearm.
There was also no explanation given why said certification was not
presented, or even deemed no longer necessary, during the
application for the warrant. Such vital evidence was simply
ignored.[10]
Resultantly, all firearms and explosives seized inside petitioners residence
were declared inadmissible in evidence. However, the 2 receivers recovered by the
policemen outside the house of petitioner before the warrant was served were admitted
as evidence, pursuant to the plain view doctrine.
Accordingly, petitioner and Valerio were convicted of illegal possession of a
part of a firearm, punishable under paragraph 1, Section 1 of P.D. No. 1866, as
amended. They were sentenced to an indeterminate penalty of three (3) years, six (6)
months, and twenty-one (21) days to five (5) years, four (4) months, and twenty (20)
days of prision correccional, and ordered to pay a P20,000.00 fine.
Petitioner moved for reconsideration,[11] but the motion was denied in the CA
Resolution dated December 3, 2009.[12] Hence, the present recourse.
At the onset, it must be emphasized that the information filed against
petitioner and Valerio charged duplicitous offenses contrary to Section 13 of Rule 110
of the Rules of Criminal Procedure, viz.:
Sec. 13. Duplicity of offense. A complaint or information
must charge but one offense, except only in those cases in which
existing laws prescribe a single punishment for various offenses.
A reading of the information clearly shows that possession of the enumerated articles
confiscated from Valerio and petitioner are punishable under separate provisions of
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 123
Section 1, P.D. No. 1866, as amended by R.A. No. 8294. [13] Illegal possession of two
(2) pieces of short magazine of M16 Armalite rifle, thirty-five (35) pieces of live M16
ammunition 5.56 caliber, and fourteen (14) pieces of live caliber .45 ammunition is
punishable under paragraph 2 of the said section, viz.:
The penalty of prision mayor in its minimum period and a
fine of Thirty thousand pesos (P30,000.00) shall be imposed if the
firearm is classified as high powered firearm which includes
those with bores bigger in diameter than .38 caliber and 9
millimeter such as caliber .40, 41, .44, .45 and also lesser
calibered firearms but considered powerful such as caliber .357 and
caliber .22 center-fire magnum and other firearms with firing
capability of full automatic and by burst of two or three: Provided,
however, That no other crime was committed by the person
arrested.[14]
On the other hand, illegal possession of the two (2) receivers of a .45 caliber
pistol, model no. M1911A1 US, with SN 763025, and Model M1911A1 US, with a defaced
serial number, is penalized under paragraph 1, which states:
Sec. 1. Unlawful manufacture, sale, acquisition, disposition
or possession of firearms or ammunition or instruments used or
intended to be used in the manufacture of firearms or ammunition.
The penalty of prision correccional in its maximum period and a fine
of not less than Fifteen thousand pesos (P15,000.00) shall be
imposed upon any person who shall unlawfully manufacture, deal in,
acquire, dispose, or possess any low powered firearm, such as rimfire
handgun, .380 or .32 and other firearm of similar firepower, part of
firearm, ammunition, or machinery, tool or instrument used or
intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.[15]
This is the necessary consequence of the amendment introduced by R.A. No.
8294, which categorized the kinds of firearms proscribed from being possessed without
a license, according to their firing power and caliber. R.A. No. 8294 likewise mandated
different penalties for illegal possession of firearm according to the above classification,
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 124

unlike in the old P.D. No. 1866 which set a standard penalty for the illegal possession review since, by virtue of the CAs Decision, petitioner and Valerio have been effectively

of any kind of firearm. Section 1 of the old law reads: acquitted from the said charges. The present review is consequently only with regard

to the conviction for illegal possession of a part of a firearm.

Section 1. Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Firearms or Ammunition or Instruments
Used or Intended to be Used in the Manufacture of Firearms of The Issues
Ammunition. The penalty of reclusion temporal in its maximum
period to reclusion perpetua shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire dispose, or
possess any firearms, part of firearm, ammunition, or machinery, Petitioner insists on an acquittal and avers that the discovery of the two (2)
tool or instrument used or intended to be used in the manufacture receivers does not come within the purview of the plain view doctrine. She argues that
of any firearm or ammunition. (Emphasis ours.)
no valid intrusion was attendant and that no evidence was adduced to prove that she

was with Valerio when he threw the receivers. Likewise absent is a positive showing
By virtue of such changes, an information for illegal possession of firearm
that any of the two receivers recovered by the policemen matched the .45 caliber pistol
should now particularly refer to the paragraph of Section 1 under which the seized
allegedly seen tucked in the waistband of her shorts when the police elements arrived.
firearm is classified, and should there be numerous guns confiscated, each must be
Neither is there any proof that petitioner had knowledge of or consented to the alleged
sorted and then grouped according to the categories stated in Section 1 of R.A. No.
throwing of the receivers.
8294, amending P.D. No. 1866. It will no longer suffice to lump all of the seized firearms

in one information, and state Section 1, P.D. No. 1866 as the violated provision, as in
Our Ruling
the instant case,[16] because different penalties are imposed by the law, depending on

the caliber of the weapon. To do so would result in duplicitous charges.

We find merit in the petition.

Ordinarily, an information that charges multiple offenses merits a quashal, but

First, we rule on the admissibility of the receivers. We hold that the receivers were
petitioner and Valerio failed to raise this issue during arraignment. Their failure
seized in plain view, hence, admissible.
constitutes a waiver, and they could be convicted of as many offenses as there were

charged in the information.[17] This accords propriety to the diverse convictions handed
No less than our Constitution recognizes the right of the people to be secure in their
down by the courts a quo.
persons, houses, papers, and effects against unreasonable searches and seizures. This
Further, the charge of illegal possession of firearms and ammunition under paragraph
right is encapsulated in Article III, Section 2, of the Constitution, which states:
2, Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, including the validity of

the search warrant that led to their confiscation, is now beyond the province of our

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.
Complementing this provision is the exclusionary rule embodied in Section
3(2) of the same article
(2) Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding.
There are, however, several well-recognized exceptions to the foregoing rule. Thus,
evidence obtained through a warrantless search and seizure may be admissible under
any of the following circumstances: (1) search incident to a lawful arrest; (2) search of
a moving motor vehicle; (3) search in violation of custom laws; (4) seizure of evidence
in plain view; and (5) when the accused himself waives his right against unreasonable
searches and seizures.[18]
Under the plain view doctrine, objects falling in the plain view of an officer,
who has a right to be in the position to have that view, are subject to seizure and may
be presented as evidence.[19] It applies when the following requisites concur: (a) the
law enforcement officer in search of the evidence has a prior justification for an
intrusion or is in a position from which he can view a particular area; (b) the discovery
of the evidence in plain view is inadvertent; and (c) it is immediately apparent to the
officer that the item he observes may be evidence of a crime, contraband, or otherwise
subject to seizure. The law enforcement officer must lawfully make an initial intrusion
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 125
or properly be in a position from which he can particularly view the area. In the course
of such lawful intrusion, he came inadvertently across a piece of evidence incriminating
the accused. The object must be open to eye and hand, and its discovery
inadvertent.[20]
Tested against these standards, we find that the seizure of the two receivers of the .45
caliber pistol outside petitioners house falls within the purview of the plain view
doctrine.
First, the presence of SPO2 Nava at the back of the house and of the other
law enforcers around the premises was justified by the fact that petitioner and Valerio
were earlier seen respectively holding .45 caliber pistols before they ran inside the
structure and sought refuge. The attendant circumstances and the evasive actions of
petitioner and Valerio when the law enforcers arrived engendered a reasonable ground
for the latter to believe that a crime was being committed. There was thus sufficient
probable cause for the policemen to cordon off the house as they waited for daybreak
to apply for a search warrant.
Secondly, from where he was situated, SPO2 Nava clearly saw, on two different
instances, Valerio emerge on top of the subject dwelling and throw suspicious objects.
Lastly, considering the earlier sighting of Valerio holding a pistol, SPO2 Nava had
reasonable ground to believe that the things thrown might be contraband items, or
evidence of the offense they were then suspected of committing. Indeed, when
subsequently recovered, they turned out to be two (2) receivers of .45 caliber pistol.
The pertinent portions of SPO2 Navas testimony are elucidating:
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 126

Q Before the incident, you know this person Zaldy Valerio?

A Yes, sir.
Q When you arrived in that place, you saw policemen?
A Yes, sir. Q Why do you know him?
A Because we were formerly members of the Armed Forces of the Philippines.
Q What were they doing?
A They were cordoning the house. xxxx

Q You said that you asked your assistant team leader Deluso about that PROS. PERALTA:
incident. What did he tell you? Q When you saw something thrown out at the top of the house, did you do
A Deluso told me that a person ran inside the house carrying with him a gun. something if any?
A I shouted to seek cover.
Q And this house you are referring to is the house which you mentioned is the
police officers were surrounding? xxxx
A Yes, sir.

Q Now, how long did you stay in that place, Mr. Witness?
A I stayed there when I arrived at past 10:00 oclock up to 12:00 oclock the Q So, what else did you do if any after you shouted, take cover?
following day. A I took hold of a flashlight after five minutes and focused the beam of the
flashlight on the place where something was thrown.
Q At about 2:00 oclock in the early morning of August 28, 2002, can you recall
where were you? Q What did you see if any?
A Yes, sir. A I saw there the lower [part] of the receiver of cal. 45.

Q Where were you? xxxx

A I was at the back of the house that is being cordoned by the police.
Q Mr. Witness, at around 4:00 oclock that early morning of August 28, 2002,
Q While you were at the back of this house, do you recall any unusual do you recall another unusual incident?
incident? A Yes, sir.
A Yes, sir.
Q And can you tell us what was that incident?
Q Can you tell the Honorable Court what was that incident? A I saw a person throwing something there and the one that was thrown fell
A Yes, sir. A person went out at the top of the house and threw something. on top of the roof of another house.

Q And did you see the person who threw something out of this house? Q And you saw that person who again threw something from the rooftop of
A Yes, sir. the house?
A Yes, sir.
xxxx
Q Did you recognize him?
Q Can you tell the Honorable Court who was that person who threw that A Yes, sir.
something outside the house?
A It was Zaldy Valerio. Q Who was that person?
A Zaldy Valerio again.
COURT: (to witness)
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 127

xxxx
the law enforcer observes that the seized item may be evidence of a crime, contraband,
Q Where were you when you saw this Zaldy Valerio thr[o]w something out of or otherwise subject to seizure.
the house?
A I was on the road in front of the house.

Q Where was Zaldy Valerio when you saw him thr[o]w something out of the Hence, as correctly declared by the CA, the two receivers were admissible as evidence.
house? The liability for their possession, however, should fall only on Valerio and not on
A He was on top of the house.
petitioner.
xxxx

Q Later on, were you able to know what was that something thrown out? The foregoing disquisition notwithstanding, we find that petitioner is not liable for illegal
A Yes, sir.
possession of part of a firearm.
Q What was that?
In dissecting how and when liability for illegal possession of firearms attaches,
A Another lower receiver of a cal. 45.
the following disquisitions in People v. De Gracia[22] are instructive:
xxxx
Q And what did he tell you?
A It [was] on the wall of another house and it [could] be seen right away. The rule is that ownership is not an essential element of illegal possession of
firearms and ammunition. What the law requires is merely
xxxx possession which includes not only actual physical possession but
also constructive possession or the subjection of the thing to one's
control and management. This has to be so if the manifest intent of
Q What did you do if any? the law is to be effective. The same evils, the same perils to public
A We waited for the owner of the house to wake up. security, which the law penalizes exist whether the unlicensed holder
of a prohibited weapon be its owner or a borrower. To accomplish
xxxx the object of this law the proprietary concept of the possession can
have no bearing whatsoever.
Q Who opened the fence for you? But is the mere fact of physical or constructive possession sufficient
A It was a lady who is the owner of the house. to convict a person for unlawful possession of firearms or must there
be an intent to possess to constitute a violation of the law? This
Q When you entered the premises of the house of the lady, what did you find? query assumes significance since the offense of illegal possession of
A We saw the lower receiver of this .45 cal. (sic)[21] firearms is a malum prohibitum punished by a special law, in which
case good faith and absence of criminal intent are not valid defenses.
When the crime is punished by a special law, as a rule,
The ensuing recovery of the receivers may have been deliberate; nonetheless,
intent to commit the crime is not necessary. It is sufficient that the
their initial discovery was indubitably inadvertent. It is not crucial that at initial sighting offender has the intent to perpetrate the act prohibited by the special
law. Intent to commit the crime and intent to perpetrate the act must
the seized contraband be identified and known to be so. The law merely requires that be distinguished. A person may not have consciously intended to
commit a crime; but he did intend to commit an act, and that act is,
by the very nature of things, the crime itself. In the first (intent to
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 128

commit the crime), there must be criminal intent; in the second

(intent to perpetrate the act) it is enough that the prohibited act is Valerio on top of the house when the receivers were thrown. None of the witnesses
done freely and consciously. saw petitioner holding the receivers, before or during their disposal.
In the present case, a distinction should be made between criminal
intent and intent to possess. While mere possession, without criminal
intent, is sufficient to convict a person for illegal possession of a At the very least, petitioners possession of the receivers was merely incidental because
firearm, it must still be shown that there was animus possidendi or
an intent to possess on the part of the accused. Such intent to Valerio, the one in actual physical possession, was seen at the rooftop of petitioners
possess is, however, without regard to any other criminal or felonious
house. Absent any evidence pointing to petitioners participation, knowledge or consent
intent which the accused may have harbored in possessing the
firearm. Criminal intent here refers to the intention of the accused to in Valerios actions, she cannot be held liable for illegal possession of the receivers.
commit an offense with the use of an unlicensed firearm. This is not
important in convicting a person under Presidential Decree No. 1866.
Hence, in order that one may be found guilty of a violation of the Petitioners apparent liability for illegal possession of part of a firearm can only proceed
decree, it is sufficient that the accused had no authority or license to
possess a firearm, and that he intended to possess the same, even from the assumption that one of the thrown receivers matches the gun seen tucked in
if such possession was made in good faith and without criminal
intent. the waistband of her shorts earlier that night. Unfortunately, the prosecution failed to

Concomitantly, a temporary, incidental, casual, or harmless convert such assumption into concrete evidence.
possession or control of a firearm cannot be considered a violation
of a statute prohibiting the possession of this kind of weapon, such
as Presidential Decree No. 1866. Thus, although there is physical or Mere speculations and probabilities cannot substitute for proof required to
constructive possession, for as long as the animus possidendi is
absent, there is no offense committed.[23] establish the guilt of an accused beyond reasonable doubt. The rule is the same

whether the offenses are punishable under the Revised Penal Code, which are mala in

Certainly, illegal possession of firearms, or, in this case, part of a firearm, is committed se, or in crimes, which are malum prohibitum by virtue of special law.[25] The quantum
when the holder thereof: of proof required by law was not adequately met in this case in so far as petitioner is

concerned.

The gun allegedly seen tucked in petitioners waistband was not identified with
(1) possesses a firearm or a part thereof
sufficient particularity; as such, it is impossible to match the same with any of the
(2) lacks the authority or license to possess the firearm.[24]
seized receivers. Moreover, SPO1 Tan categorically stated that he saw Valerio holding
two guns when he and the rest of the PISOG arrived in petitioners house. It is not
We find that petitioner was neither in physical nor constructive possession of
unlikely then that the receivers later on discarded were components of the two (2)
the subject receivers. The testimony of SPO2 Nava clearly bared that he only saw
pistols seen with Valerio.
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 129

as Exhibits E and E-1, respectively. They were also identified by SPO2 Nava as the

These findings also debunk the allegation in the information that petitioner firearm parts he retrieved af ter Valerio discarded them.[27] His testimony was

conspired with Valerio in committing illegal possession of part of a firearm. There is no corroborated by DYKR radio announcer Vega, who witnessed the recovery of the

evidence indubitably proving that petitioner participated in the decision to commit the receivers.[28]

criminal act committed by Valerio.

Anent the lack of authority, SPO1 Tan testified that, upon verification, it was

Hence, this Court is constrained to acquit petitioner on the ground of ascertained that Valerio is not a duly licensed/registered firearm holder of any type,

reasonable doubt. The constitutional presumption of innocence in her favor was not kind, or caliber of firearms.[29] To substantiate his statement, he submitted a

adequately overcome by the evidence adduced by the prosecution. certification[30] to that effect and identified the same in court.[31] The testimony of SPO1

Tan, or the certification, would suffice to prove beyond reasonable doubt the second

The CA correctly convicted Valerio with illegal possession of part of a firearm. element.[32]

In illegal possession of a firearm, two (2) things must be shown to exist: (a) the WHEREFORE, premises considered, the February 10, 2009 Decision of the Court of

existence of the subject firearm; and (b) the fact that the accused who possessed the Appeals is hereby REVERSED with respect to petitioner Elenita Fajardo yCastro, who

same does not have the corresponding license for it.[26] is hereby ACQUITTED on the ground that her guilt was not proved beyond reasonable

doubt.

By analogy then, a successful conviction for illegal possession of part of a SO ORDERED.

firearm must yield these requisites:

ANTONIO EDUARDO B. NACHURA

(a) the existence of the part of the firearm; and Associate Justice
(b) the accused who possessed the same does not have the license for

the firearm to which the seized part/component corresponds.

In the instant case, the prosecution proved beyond reasonable doubt the

elements of the crime. The subject receivers - one with the markings United States

Property and the other bearing Serial No. 763025 - were duly presented to the court

EN BANC
[G.R. No. 123595. December 12, 1997]
SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF APPEALS, and
PEOPLE OF THE PHILIPPINES, respondents.
DECISION
DAVIDE, JR., J.:
In an Information[1] filed on 30 August 1990, in Criminal Case No. 90-86748
before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y
Mandar was charged with violating Section 3 of Presidential Decree No. 1866, [2] as
follows:
That on or about August 27, 1990, in the City of Manila, Philippines, the said accused
did then and there willfully, unlawfully and knowingly keep, possess and/or acquire a
hand grenade, without first securing the necessary license and/or permit therefor
from the proper authorities.
At arraignment[3] on 9 October 1990, petitioner, assisted by counsel de oficio,
entered a plea of not guilty.
At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits A, A-
1, and A-2,[4] while the prosecution admitted that the police authorities were not armed
with a search warrant nor warrant of arrest at the time they arrested petitioner.[5]
At trial on the merits, the prosecution presented the following police officers as
its witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the investigating
officer; and Orlando Ramilo, who examined the grenade.
Rodolfo Yu of the Western Police District, Metropolitan Police Force of the
Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that on 27
August 1990, at about 6:30 p.m., in response to bomb threats reported seven days
earlier, he was on foot patrol with three other police officers (all of them in uniform)
along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza
Miranda. They chanced upon two groups of Muslim-looking men, with each group,
comprised of three to four men, posted at opposite sides of the corner of Quezon
Boulevard near the Mercury Drug Store. These men were acting suspiciously with
[t]heir eyes moving very fast.[6]
Yu and his companions positioned themselves at strategic points and observed
both groups for about thirty minutes. The police officers then approached one group
of men, who then fled in different directions. As the policemen gave chase, Yu caught
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 130
up with and apprehended petitioner. Upon searching petitioner, Yu found a
fragmentation grenade tucked inside petitioners front waist line.[7] Yus companion,
police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber
revolver was recovered.Petitioner and Casan were then brought to Police Station No. 3
where Yu placed an X mark at the bottom of the grenade and thereafter gave it to his
commander.[8]
On cross-examination, Yu declared that they conducted the foot patrol due to a
report that a group of Muslims was going to explode a grenade somewhere in the
vicinity of Plaza Miranda. Yu recognized petitioner as the previous Saturday, 25 August
1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to detonate a
grenade.The attempt was aborted when Yu and other policemen chased petitioner and
his companions; however, the former were unable to catch any of the latter. Yu further
admitted that petitioner and Casan were merely standing on the corner of Quezon
Boulevard when Yu saw them on 27 August 1990. Although they were not creating a
commotion, since they were supposedly acting suspiciously, Yu and his companions
approached them. Yu did not issue any receipt for the grenade he allegedly recovered
from petitioner.[9]
Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner
and a certain Abdul Casan were brought in by Sgt. Saquilla[10] for
investigation. Forthwith, Serapio conducted the inquest of the two suspects, informing
them of their rights to remain silent and to be assisted by competent and independent
counsel. Despite Serapios advice, petitioner and Casan manifested their willingness to
answer questions even without the assistance of a lawyer. Serapio then took petitioners
uncounselled confession (Exh. E), there being no PAO lawyer available, wherein
petitioner admitted possession of the grenade. Thereafter, Serapio prepared the
affidavit of arrest and booking sheet of petitioner and Casan. Later, Serapio turned over
the grenade to the Intelligence and Special Action Division (ISAD) of the Explosive
Ordnance Disposal Unit for examination.[11]
On cross-examination, Serapio admitted that he took petitioners confession
knowing it was inadmissible in evidence.[12]
Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties
included, among other things, the examination of explosive devices, testified that on
22 March 1991, he received a request dated 19 March 1991 from Lt. Eduardo Cabrera
and PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed an orange
tag on the subject grenade detailing his name, the date and time he received the
specimen. During the preliminary examination of the grenade, he [f]ound that [the]
major components consisting of [a] high filler and fuse assembly [were] all present,
and concluded that the grenade was [l]ive and capable of exploding. On even date, he
issued a certification stating his findings, a copy of which he forwarded to Diotoy on 11
August 1991.[13]

Petitioner was the lone defense witness. He declared that he arrived in Manila on
22 July 1990 and resided at the Muslim Center in Quiapo, Manila. At around 6:30 in the
evening of 27 August 1990, he went to Plaza Miranda to catch a breath of fresh
air. Shortly after, several policemen arrived and ordered all males to stand aside. The
policemen searched petitioner and two other men, but found nothing in their
possession. However, he was arrested with two others, brought to and detained at
Precinct No. 3, where he was accused of having shot a police officer. The officer
showed the gunshot wounds he allegedly sustained and shouted at petitioner [i]to ang
tama mo sa akin. This officer then inserted the muzzle of his gun into petitioners mouth
and said, [y]ou are the one who shot me. Petitioner denied the charges and explained
that he only recently arrived in Manila. However, several other police officers mauled
him, hitting him with benches and guns. Petitioner was once again searched, but
nothing was found on him. He saw the grenade only in court when it was presented.[14]
The trial court ruled that the warrantless search and seizure of petitioner was akin
to a stop and frisk, where a warrant and seizure can be effected without necessarily
being preceded by an arrest and whose object is either to maintain the status
quo momentarily while the police officer seeks to obtain more information.[15] Probable
cause was not required as it was not certain that a crime had been committed, however,
the situation called for an investigation, hence to require probable cause would have
been premature.[16] The RTC emphasized that Yu and his companions were
[c]onfronted with an emergency, in which the delay necessary to obtain a warrant,
threatens the destruction of evidence[17] and the officers [h]ad to act in haste, as
petitioner and his companions were acting suspiciously, considering the time, place and
reported cases of bombing. Further, petitioners group suddenly ran away in different
directions as they saw the arresting officers approach, thus [i]t is reasonable for an
officer to conduct a limited search, the purpose of which is not necessarily to discover
evidence of a crime, but to allow the officer to pursue his investigation without fear of
violence.[18]
The trial court then ruled that the seizure of the grenade from petitioner was
incidental to a lawful arrest, and since petitioner [l]ater voluntarily admitted such fact
to the police investigator for the purpose of bombing the Mercury Drug Store,
concluded that sufficient evidence existed to establish petitioners guilt beyond
reasonable doubt.
In its decision[19] dated 10 February 1994 but promulgated on 15 February 1994,
the trial court thus found petitioner guilty of the crime of illegal possession of explosives
under Section 3 of P.D. No. 1866, and sentenced him to suffer:
[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE
(1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30)
YEARS OF RECLUSION PERPETUA, as maximum.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 131
On 18 February 1994, petitioner filed a notice of appeal[20] indicating that he was
appealing to this Court. However, the record of the case was forwarded to the Court
of Appeals which docketed it as CA-G.R. CR No. 15988 and issued a notice to file
briefs.[21]
In his Appellants Brief [22] filed with the Court of Appeals, petitioner asserted that:
1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE
PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED
HANDGRENADE FROM HIM WAS AN APPROPRIATE INCIDENT TO HIS
ARREST.
2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST
ACCUSED-APPELLANT THE HANDGRENADE ALLEGEDLY SEIZED FROM
HIM AS IT WAS A PRODUCT OF AN UNREASONABLE AND ILLEGAL
SEARCH.
In sum, petitioner argued that the warrantless arrest was invalid due to absence
of any of the conditions provided for in Section 5 of Rule 113 of the Rules of Court,
citing People vs. Mengote.[23] As such, the search was illegal, and the hand grenade
seized, inadmissible in evidence.
In its Brief for the Appellee, the Office of the Solicitor General agreed with the
trial court and prayed that its decision be affirmed in toto.[24]
In its decision of 24 January 1996,[25] the Court of Appeals affirmed the trial court,
noting, first, that petitioner abandoned his original theory before the court a quo that
the grenade was planted by the police officers; and second, the factual finding of the
trial court that the grenade was seized from petitioners possession was not raised as
an issue.Further, respondent court focused on the admissibility in evidence of Exhibit
D, the hand grenade seized from petitioner. Meeting the issue squarely, the Court of
Appeals ruled that the arrest was lawful on the ground that there was probable cause
for the arrest as petitioner was attempting to commit an offense, thus:
We are at a loss to understand how a man, who was in possession of a live grenade
and in the company of other suspicious character[s] with unlicensed firearm[s]
lurking in Plaza Miranda at a time when political tension ha[d] been enkindling a
series of terroristic activities, [can] claim that he was not attempting to commit an
offense. We need not mention that Plaza Miranda is historically notorious for being a
favorite bomb site especially during times of political upheaval. As the mere
possession of an unlicensed grenade is by itself an offense, Malacats posture is simply
too preposterous to inspire belief.
In so doing, the Court of Appeals took into account petitioners failure to rebut the
testimony of the prosecution witnesses that they received intelligence reports of a

bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner two days prior to
the latters arrest, or on 27 August 1990; and that petitioner and his companions acted
suspiciously, the accumulation of which was more than sufficient to convince a
reasonable man that an offense was about to be committed. Moreover, the Court of
Appeals observed:
The police officers in such a volatile situation would be guilty of gross negligence and
dereliction of duty, not to mention of gross incompetence, if they [would] first wait
for Malacat to hurl the grenade, and kill several innocent persons while maiming
numerous others, before arriving at what would then be an assured but moot
conclusion that there was indeed probable cause for an arrest. We are in agreement
with the lower court in saying that the probable cause in such a situation should not
be the kind of proof necessary to convict, but rather the practical considerations of
everyday life on which a reasonable and prudent mind, and not legal technicians, will
ordinarily act.
Finally, the Court of Appeals held that the rule laid down in People v.
Mengote,[26] which petitioner relied upon, was inapplicable in light of [c]rucial
differences, to wit:
[In Mengote] the police officers never received any intelligence report that someone
[at] the corner of a busy street [would] be in possession of a prohibited article. Here
the police officers were responding to a [sic] public clamor to put a check on the
series of terroristic bombings in the Metropolis, and, after receiving intelligence
reports about a bomb threat aimed at the vicinity of the historically notorious Plaza
Miranda, they conducted foot patrols for about seven days to observe suspicious
movements in the area. Furthermore, in Mengote, the police officers [had] no
personal knowledge that the person arrested has committed, is actually committing,
or is attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of the
fact that he chased Malacat in Plaza Miranda two days before he finally succeeded in
apprehending him.
Unable to accept his conviction, petitioner forthwith filed the instant petition and
assigns the following errors:
1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE
TRIAL COURT THAT THE WARRANTLESS ARREST OF PETITIONER WAS
VALID AND LEGAL.
2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING
IN PEOPLE VS. MENGOTE DOES NOT FIND APPLICATION IN THE
INSTANT CASE.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 132
In support thereof, petitioner merely restates his arguments below regarding the
validity of the warrantless arrest and search, then disagrees with the finding of the
Court of Appeals that he was attempting to commit a crime, as the evidence for the
prosecution merely disclosed that he was standing at the corner of Plaza Miranda and
Quezon Boulevard with his eyes moving very fast and looking at every person that
come (sic) nearer (sic) to them. Finally, petitioner points out the factual similarities
between his case and that of People v. Mengote to demonstrate that the Court of
Appeals miscomprehended the latter.
In its Comment, the Office of the Solicitor General prays that we affirm the
challenged decision.
For being impressed with merit, we resolved to give due course to the petition.
The challenged decision must immediately fall on jurisdictional grounds. To
repeat, the penalty imposed by the trial court was:
[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY
OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30)
YEARS OF RECLUSION PERPETUA, as maximum.
The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall
unlawfully possess grenades is reclusion temporal in its maximum period to reclusion
perpetua.
For purposes of determining appellate jurisdiction in criminal cases, the maximum
of the penalty, and not the minimum, is taken into account. Since the maximum of the
penalty is reclusion perpetua, the appeal therefrom should have been to us, and not
the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of
1980 (B.P. Blg. 129),[27] in relation to Section 17 of the Judiciary Act of 1948,[28] Section
5(2) of Article VIII of the Constitution[29] and Section 3(c) of Rule 122 of the Rules of
Court.[30]The term life imprisonment as used in Section 9 of B.P. Blg. 129, the Judiciary
Act of 1948, and Section 3 of Rule 122 must be deemed to include reclusion perpetua in
view of Section 5(2) of Article VIII of the Constitution.
Petitioners Notice of Appeal indicated that he was appealing from the trial courts
decision to this Court, yet the trial court transmitted the record to the Court of Appeals
and the latter proceeded to resolve the appeal.
We then set aside the decision of the Court of Appeals for having been rendered
without jurisdiction, and consider the appeal as having been directly brought to us,
with the petition for review as petitioners Brief for the Appellant, the comment thereon
by the Office of the Solicitor General as the Brief for the Appellee and the memoranda
of the parties as their Supplemental Briefs.

Deliberating on the foregoing pleadings, we find ourselves convinced that the
prosecution failed to establish petitioners guilt with moral certainty.
First, serious doubt surrounds the story of police officer Yu that a grenade was
found in and seized from petitioners possession. Notably, Yu did not identify, in court,
the grenade he allegedly seized. According to him, he turned it over to his commander
after putting an X mark at its bottom; however, the commander was not presented to
corroborate this claim. On the other hand, the grenade presented in court and identified
by police officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera
and police officer Diotoy not immediately after petitioners arrest, but nearly seven (7)
months later, or on 19 March 1991; further, there was no evidence whatsoever that
what Ramilo received was the very same grenade seized from petitioner. In his
testimony, Yu never declared that the grenade passed on to Ramilo was the grenade
the former confiscated from petitioner. Yu did not, and was not made to, identify the
grenade examined by Ramilo, and the latter did not claim that the grenade he examined
was that seized from petitioner. Plainly, the law enforcement authorities failed to
safeguard and preserve the chain of evidence so crucial in cases such as these.
Second, if indeed petitioner had a grenade with him, and that two days earlier he
was with a group about to detonate an explosive at Plaza Miranda, and Yu and his
fellow officers chased, but failed to arrest them, then considering that Yu and his three
fellow officers were in uniform and therefore easily cognizable as police officers, it was
then unnatural and against common experience that petitioner simply stood there in
proximity to the police officers. Note that Yu observed petitioner for thirty minutes and
must have been close enough to petitioner in order to discern petitioners eyes moving
very fast.
Finally, even assuming that petitioner admitted possession of the grenade during
his custodial investigation by police officer Serapio, such admission was inadmissible in
evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of
the Constitution, which provide as follows:
SEC. 12 (1). Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
xxx
(3) Any confession or admission obtained in violation of this or Section 17
hereof shall be inadmissible in evidence against him.
Serapio conducted the custodial investigation on petitioner the day following his arrest.
No lawyer was present and Serapio could not have requested a lawyer to assist
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 133
petitioner as no PAO lawyer was then available. Thus, even if petitioner consented to
the investigation and waived his rights to remain silent and to counsel, the waiver was
invalid as it was not in writing, neither was it executed in the presence of counsel.
Even granting ex gratia that petitioner was in possession of a grenade, the arrest
and search of petitioner were invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a warrant is
needed in order to validly effect the same.[31] The Constitutional prohibition against
unreasonable arrests, searches and seizures refers to those effected without a validly
issued warrant,[32] subject to certain exceptions. As regards valid warrantless arrests,
these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part:
Sec. 5. -- Arrest, without warrant; when lawful -- A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped ***
A warrantless arrest under the circumstances contemplated under Section 5(a) has
been denominated as one "in flagrante delicto," while that under Section 5(b) has been
described as a "hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the following: (1)
customs searches; (2) search of moving vehicles; (3) seizure of evidence in plain
view; (4) consent searches;[33] (5) a search incidental to a lawful arrest;[34] and (6) a
"stop and frisk."[35]
In the instant petition, the trial court validated the warrantless search as a stop
and frisk with the seizure of the grenade from the accused [as] an appropriate incident
to his arrest, hence necessitating a brief discussion on the nature of these exceptions
to the warrant requirement.
At the outset, we note that the trial court confused the concepts of a "stop-and-
frisk" and of a search incidental to a lawful arrest. These two types of warrantless
searches differ in terms of the requisite quantum of proof before they may be validly
effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the
validity of the incidental search, the legality of the arrest is questioned in a large

majority of these cases, e.g., whether an arrest was merely used as a pretext for
conducting a search.[36] In this instance, the law requires that there first be a lawful
arrest before a search can be made -- the process cannot be reversed.[37] At bottom,
assuming a valid arrest, the arresting officer may search the person of the arrestee and
the area within which the latter may reach for a weapon or for evidence to destroy,
and seize any money or property found which was used in the commission of the crime,
or the fruit of the crime, or that which may be used as evidence, or which might furnish
the arrestee with the means of escaping or committing violence.[38]
Here, there could have been no valid in flagrante delicto or hot pursuit arrest
preceding the search in light of the lack of personal knowledge on the part of Yu, the
arresting officer, or an overt physical act, on the part of petitioner, indicating that a
crime had just been committed, was being committed or was going to be committed.
Having thus shown the invalidity of the warrantless arrest in this case, plainly, the
search conducted on petitioner could not have been one incidental to a lawful arrest.
We now proceed to the justification for and allowable scope of a "stop-and-frisk"
as a "limited protective search of outer clothing for weapons," as laid down in Terry,
thus:
We merely hold today that where a police officer observes unusual conduct
which leads him reasonably to conclude in light of his experience that criminal
activity may be afoot and that the persons with whom he is dealing may be
armed and presently dangerous, where in the course of investigating this
behavior he identifies himself as a policeman and makes reasonable inquiries,
and where nothing in the initial stages of the encounter serves to dispel his
reasonable fear for his own or others' safety, he is entitled for the protection of
himself and others in the area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons which might be
used to assault him. Such a search is a reasonable search under the Fourth
Amendment ***[39]
Other notable points of Terry are that while probable cause is not required to conduct
a "stop and frisk,"[40] 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.[41] Finally, a "stop-and-frisk" serves a two-fold
interest: (1) the general interest of effective crime prevention and detection, which
underlies the recognition that a police officer may, under appropriate circumstances
and in an appropriate manner, approach a person for purposes of investigating possible
criminal behavior even without probable cause; and (2) the more pressing interest of
safety and self-preservation which permit the police officer to take steps to assure
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 134
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.
Here, here are at least three (3) reasons why the stop-and-frisk was invalid:
First, we harbor grave doubts as to Yus claim that petitioner was a member of
the group which attempted to bomb Plaza Miranda two days earlier. This claim is
neither supported by any police report or record nor corroborated by any other police
officer who allegedly chased that group. Aside from impairing Yu's credibility as a
witness, this likewise diminishes the probability that a genuine reason existed so as to
arrest and search petitioner. If only to further tarnish the credibility of Yu's testimony,
contrary to his claim that petitioner and his companions had to be chased before being
apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon
arrival of five (5) other police officers, petitioner and his companions were "immediately
collared."
Second, there was nothing in petitioners behavior or conduct which could have
reasonably elicited even mere suspicion other than that his eyes were moving very fast
an observation which leaves us incredulous since Yu and his teammates were nowhere
near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his
companions were merely standing at the corner and were not creating any commotion
or trouble, as Yu explicitly declared on cross-examination:
Q And what were they doing?
A They were merely standing.
Q You are sure of that?
A Yes, sir.
Q And when you saw them standing, there were nothing or they did not
create any commotion?
A None, sir.
Q Neither did you see them create commotion?
A None, sir.[42]
Third, there was at all no ground, probable or otherwise, to believe that petitioner
was armed with a deadly weapon. None was visible to Yu, for as he admitted, the
alleged grenade was discovered inside the front waistline of petitioner, and from all
indications as to the distance between Yu and petitioner, any telltale bulge, assuming
that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact,
as noted by the trial court:
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 135

When the policemen approached the accused and his companions, they were not yet
aware that a handgrenade was tucked inside his waistline. They did not see any
bulging object in [sic] his person.[43]

What is unequivocal then in this case are blatant violations of petitioners rights
solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution.

WHEREFORE, the challenged decision of the Seventeenth Division of the Court

of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of
said Court and, on ground of reasonable doubt, the decision of 10 February 1994 of
Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner SAMMY
MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released from
detention, unless his further detention is justified for any other lawful cause.

Costs de oficio.

SO ORDERED.

Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,

Mendoza, Francisco, and Martinez, JJ., concur.
Panganiban, J., please see separate opinion.
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 136

Republic of the Philippines At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado
SUPREME COURT Ani, Jr. of the 9th Narcotics Command (NARCOM) of Zamboanga City, who acted as
Manila poseur-buyer in the buy-bust operation made against the appellant; (2) T/Sgt. Jesus
Belarga, also of the 9th Narcotics Command of Zamboanga City, who was the
THIRD DIVISION NARCOM team leader of the buy-bust operation; and (3) Athena Elisa P. Anderson,
the Document Examiner and Forensic Chemist of PC-INP Crime Laboratory of
Regional Command (RECOM) 9. The evidence of the prosecution was summarized by
the trial court as follows:

G.R. No. 96177 January 27, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARI MUSA y HANTATALU, accused-appellant.
The Solicitor General for plaintiff-appellee.
Pablo L. Murillo for accused-appellant.
ROMERO, J.:
The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated
August 31, 1990,1 of the Regional Trial Court (RTC) of Zamboanga City, Branch XII,
finding him guilty of selling marijuana in violation of Article II, Section 4 of Republic
Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972.
The information filed on December 15, 1989 against the appellant reads:
That on or about December 14, 1989, in the City of Zamboanga,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, not being authorized by law, did then and
there, wilfully, unlawfully and feloniously sell to one SGT. AMADO
ANI, two (2) wrappers containing dried marijuana leaves, knowing
the same to be a prohibited drug.
CONTRARY TO LAW.2
Upon his arraignment on January 11, 1990, the appellant pleaded not guilty.3
Prosecution evidence shows that in the morning of December 13,
1989, T/Sgt. Jesus Belarga, leader of a NARCOTICS COMMAND
(NARCOM) team based at Calarian, Zamboanga City, instructed Sgt.
Amado Ani to conduct surveillance and test buy on a certain Mari
Musa of Suterville, Zamboanga City. Information received from
civilian informer was that this Mari Musa was engaged in selling
marijuana in said place. So Sgt. Amado Ani, another NARCOM
agent, proceeded to Suterville, in company with a NARCOM civilian
informer, to the house of Mari Musa to which house the civilian
informer had guided him. The same civilian informer had also
described to him the appearance of Mari Musa. Amado Ani was able
to buy one newspaper-wrapped dried marijuana (Exh. "E") for
P10.00. Sgt. Ani returned to the NARCOM office and turned over
the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt.
Belarga inspected the stuff turned over to him and found it to be
marijuana.
The next day, December 14, 1989, about 1:30 P.M., a buy-bust
was planned. Sgt. Amado Ani was assigned as the poseur buyer for
which purpose he was given P20.00 (with SN GA955883) by
Belarga. The
buy-bust money had been taken by T/Sgt. Jesus Belarga from
M/Sgt. Noh Sali Mihasun, Chief of Investigation Section, and for
which Belarga signed a receipt (Exh. "L" & "L-l" ) The team under
Sgt. Foncargas was assigned as back-up security. A pre-arranged
signal was arranged consisting of Sgt. Ani's raising his right hand,
after he had succeeded to buy the marijuana. The two NARCOM
teams proceeded to the target site in two civilian vehicles. Belarga's
team was composed of Sgt. Belarga, team leader, Sgt. Amado Ani,
poseur buyer, Sgt. Lego and Sgt. Biong.
Arriving at the target site, Sgt. Ani proceeded to the house of Mari
Musa, while the rest of the NARCOM group positioned themselves
at strategic places about 90 to 100 meters from Mari Musa's house.

T/Sgt. Belarga could see what went on between Ani and suspect
Mari Musa from where he was. Ani approached Mari Musa, who
came out of his house, and asked Ani what he wanted. Ani said he
wanted some more stuff. Ani gave Mari Musa the P20.00 marked
money. After receiving the money, Mari Musa went back to his
house and came back and gave Amado Ani two newspaper
wrappers containing dried marijuana. Ani opened the two wrappers
and inspected the contents. Convinced that the contents were
marijuana, Ani walked back towards his companions and raised his
right hand. The two NARCOM teams, riding the two civilian
vehicles, sped towards Sgt. Ani. Ani joined Belarga's team and
returned to the house.
At the time Sgt. Ani first approached Mari Musa, there were four
persons inside his house: Mari Musa, another boy, and two women,
one of whom Ani and Belarga later came to know to be Mari Musa's
wife. The second time, Ani with the NARCOM team returned to Mari
Musa's house, the woman, who was later known as Mari Musa's
wife, slipped away from the house. Sgt. Belarga frisked Mari Musa
but could not find the P20.00 marked money with him. Mari Musa
was then asked where the P20.00 was and he told the NARCOM
team he has given the money to his wife (who had slipped away).
Sgt. Belarga also found a plastic bag containing dried marijuana
inside it somewhere in the kitchen. Mari Musa was then placed
under arrest and brought to the NARCOM office. At Suterville, Sgt.
Ani turned over to Sgt. Belarga the two newspaper-wrapped
marijuana he had earlier bought from Mari Musa (Exhs. "C" & "D").
In the NARCOM office, Mari Musa first gave his name as Hussin
Musa. Later on, Mari Musa gave his true name — Mari Musa. T/Sgt.
Jesus Belarga turned over the two newspaper-wrapped marijuana
(bought at the buy-bust), the one newspaper-wrapped marijuana
(bought at the test-buy) and the plastic bag containing more
marijuana (which had been taken by Sgt. Lego inside the kitchen of
Mari Musa) to the PC Crime Laboratory, Zamboanga City, for
laboratory examination. The turnover of the marijuana specimen to
the PC Crime Laboratory was by way of a letter-request, dated
December 14, 1989 (Exh. "B"), which was stamped "RECEIVED" by
the PC Crime Laboratory (Exh. "B-1") on the same day.
Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC
Crime Laboratory, examined the marijuana specimens subjecting
the same to her three tests. All submitted specimens she examined
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 137
gave positive results for the presence of marijuana. Mrs. Anderson
reported the results of her examination in her Chemistry Report D-
100-89, dated December 14, 1989, (Exh. "J", "J-1", "J-2", "J-3", "J-
4" and "J-5"). Mrs. Anderson identified in court the two newspaper
wrapped marijuana bought at the
buy-bust on December 14, 1989, through her initial and the weight
of each specimen written with red ink on each wrapper (Exhs. "C-1"
and "D-1"). She also identified the one newspaper-wrapped
marijuana bought at the test-buy on December 13, 1989, through
her markings (Exh. "E-1"). Mrs. Anderson also identified her
Chemistry Report (Exh. "J" & sub-markings.)
T. Sgt. Belarga identified the two buy-bust newspaper wrapped
marijuana through his initial, the words "buy-bust" and the words
"December 14, 1989, 2:45 P.M." (written on Exhs. "C" and "D").
Belarga also identified the receipt of the P20 marked money (with
SN GA955883) (Exh. "L"), dated December 14, 1989, and his
signature thereon (Exh.
"L-1"). He also identified the letter-request, dated December 14,
1989, addressed to the PC Crime Laboratory (Exh. "B") and his
signature thereon (Exh. "B-2") and the stamp of the PC Crime
Laboratory marked "RECEIVED" (Exh. "B-1").4
For the defense, the following testified as witnesses: (1) the accused-appellant Mari
H. Musa; and (2) Ahara R. Musa, his wife. The trial court summarized the version of
the defense, thus:
[O]n December 14, 1989, at about 1:30 in the afternoon, Mari
Musa was in his house at Suterville, Zamboanga City. With him
were his wife, Ahara Musa, known as Ara, his one-year old child, a
woman manicurist, and a male cousin named Abdul Musa. About
1:30 that afternoon, while he was being manicured at one hand,
his wife was inside the one room of their house, putting their child
to sleep. Three NARCOM agents, who introduced themselves as
NARCOM agents, dressed in civilian clothes, got inside Mari Musa's
house whose door was open. The NARCOM agents did not ask
permission to enter the house but simply announced that they were
NARCOM agents. The NARCOM agents searched Mari Musa's house
and Mari Musa asked them if they had a search warrant. The
NARCOM agents were just silent. The NARCOM agents found a red
plastic bag whose contents, Mari Musa said, he did not know. He
also did not know if the plastic bag belonged to his brother, Faisal,
who was living with him, or his father, who was living in another

house about ten arms-length away. Mari Musa, then, was
handcuffed and when Mari Musa asked why, the NARCOM agents
told him for clarification.
Mari Musa was brought in a pick-up, his wife joining him to the
NARCOM Office at Calarian, Zamboanga City. Inside the NARCOM
Office, Mari Musa was investigated by one NARCOM agent which
investigation was reduced into writing. The writing or document
was interpreted to Mari Musa in Tagalog. The document stated that
the marijuana belonged to Mari Musa and Mari Musa was asked to
sign it. But Mari Musa refused to sign because the marijuana did
not belong to him. Mari Musa said he was not told that he was
entitled to the assistance of counsel, although he himself told the
NARCOM agents he wanted to be assisted by counsel.
Mari Musa said four bullets were then placed between the fingers
of his right hand and his fingers were pressed which felt very
painful. The NARCOM agents boxed him and Mari Musa lost
consciousness. While Mari Musa was maltreated, he said his wife
was outside the NARCOM building. The very day he was arrested
(on cross-examination Mari Musa said it was on the next day), Mari
Musa was brought to the Fiscal's Office by three NARCOM agents.
The fiscal asked him if the marijuana was owned by him and he
said "not." After that single question, Mari Musa was brought to the
City Jail. Mari Musa said he did not tell the fiscal that he had been
maltreated by the NARCOM agents because he was afraid he might
be maltreated in the fiscal's office.
Mari Musa denied the NARCOM agents' charge that he had sold two
wrappers of marijuana to them; that he had received from them a
P20.00 bill which he had given to his wife. He did not sell marijuana
because he was afraid that was against the law and that the person
selling marijuana was caught by the authorities; and he had a wife
and a very small child to support. Mari Musa said he had not been
arrested for selling marijuana before.5
After trial, the trial court rendered the assailed decision with the following disposition:
WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond
reasonable doubt of selling marijuana and pursuant to Sec. 4, Art II
of Rep. Act No. 6425, he is sentenced to life imprisonment and to
pay the fine of P20,000.00, the latter imposed without subsidiary
imprisonment.6
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 138
In this appeal, the appellant contends that his guilt was not proved beyond
reasonable doubt and impugns the credibility of the prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible
because: (1) prior to the buy-bust operation, neither Sgt. Ani nor the other NARCOM
agents were personally known by the appellant or vice-versa; and (2) there was no
witness to the alleged giving of the two wrappers of marijuana by the appellant to
Sgt. Ani.
Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus
Belarga, he conducted a test-buy operation on the appellant whereby he bought one
wrapper of marijuana for P15.00 from the latter.7 He reported the successful
operation to T/Sgt. Belarga on the same day.8 Whereupon, T/Sgt. Belarga conducted
a conference to organize a buy-bust operation for the following day.9
On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles
headed by T/Sgt. Belarga and a certain Sgt. Foncardas went to the place of
operation, which was the appellant's house located in Laquian Compound, Suterville,
Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga, whose other members
were Sgts. Lego and Biong. 10 Sgt. Ani was given a marked P20.00 bill by T/Sgt.
Belarga, which was to be used in the operation.
Upon reaching the place, the NARCOM agents positioned themselves at strategic
places.11 Sgt. Ani approached the house. Outside the house, the appellant asked Sgt.
Ani what he wanted. Sgt. Ani asked him for some more marijuana.12 Sgt. Ani gave
him the marked P20.00 bill and the appellant went inside the house and brought back
two paper wrappers containing marijuana which he handed to Sgt. Ani.13 From his
position, Sgt. Ani could see that there were other people in the house.14
After the exchange, Sgt. Ani approached the other NARCOM agents and made the
pre-arranged signal of raising his right hand.15 The NARCOM agents, accompanied by
Sgt. Ani, went inside the house and made the arrest. The agents searched the
appellant and unable to find the marked money, they asked him where it was. The
appellant said that he gave it to his wife.16
The Court, after a careful reading of the record, finds the testimony of Sgt. Ani
regarding the buy-bust operation, which resulted in the apprehension, prosecution
and subsequent conviction of the appellant, to be direct, lucid and forthright. Being
totally untainted by contradictions in any of the material points, it deserves credence.
The contention that the appellant could not have transacted with Sgt. Ani because
they do not know each other is without merit. The day before the

buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a
wrapper of marijuana from the appellant. Through this previous transaction, Sgt. Ani
was able to gain the appellant's confidence for the latter to sell more marijuana to
Sgt. Ani the following day, during the buy-bust operation. Moreover, the Court has
held that what matters is not an existing familiarity between the buyer and the seller,
for quite often, the parties to the transaction may be strangers, but their agreement
and the acts constituting the sale and delivery of the marijuana.17
The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was
impossible for the appellant to sell marijuana while his wife, cousin and manicurist
were present. But the place of the commission of the crime of selling prohibited drugs
has been held to be not crucial18 and the presence of other people apart from the
buyer and seller will not necessarily prevent the consummation of the illegal sale. As
the Court observed in People v. Paco,19 these factors may sometimes camouflage the
commission of the crime. In the instant case, the fact that the other people inside the
appellant's house are known to the appellant may have given him some assurance
that these people will not report him to the authorities.
The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of
T/Sgt. Belarga. The appellant submits that since T/Sgt. Belarga admitted that he was
about 90 meters away from Sgt. Ani and the appellant, he could not have possibly
witnessed the sale. The appellant invokes People v.
Ale20 where the Court observed that from a distance of 10-15 meters, a policeman
cannot distinguish between marijuana cigarette from ordinary ones by the type of
rolling done on the cigarette sticks. And since T/Sgt. Belarga allegedly did not see the
sale, the appellant contends that the uncorroborated testimony of Sgt. Ani can not
stand as basis for his conviction.
People v. Ale does not apply here because the policeman in that case testified that he
and his companion were certain that the appellant therein handed marijuana
cigarettes to the poseur-buyer based on the appearance of the cigarette sticks. The
Court rejected this claim, stating that:
This Court cannot give full credit to the testimonies of the
prosecution witnesses marked as they are with contradictions and
tainted with inaccuracies.
Biñan testified that they were able to tell that the four cigarettes
were marijuana cigarettes because according to him, the rolling of
ordinary cigarettes are different from those of marijuana cigarettes.
(tsn, November 13, 1984, p. 10).
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 139
It is however, incredible to believe that they could discern the type
of rolling done on those cigarettes from the distance where they
were observing the alleged sale of more or less 10 to 15 meters.21
In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the
appellant hand over marijuana to Sgt. Ani. What he said was that there was an
exchange of certain articles between the two. The relevant portion of T/Sgt. Belarga's
testimony reads:22
Q Now, do you remember whether Sgt. Ani was
able to reach the house of Mari Musa?
A Yes, ma'am.
Q After reaching Mari Musa, did you see what
happened (sic)?
A Yes, ma'am.
Q Could you please tell us?
A From our vehicle the stainless owner type jeep
where Sgt. Lego, Sgt. Biong were boarded, I saw
that Sgt. Ani proceeded to the house near the
road and he was met by one person and later
known as Mari Musa who was at the time
wearing short pants and later on I saw that Sgt.
Ani handed something to him, thereafter received
by Mari Musa and went inside the house and
came back later and handed something to Sgt.
Ani.
Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga
to have seen, from a distance of 90-100 meters, Sgt. Ani hand to the appellant
"something" and for the latter to give to the former "something."
Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what
Sgt. Ani received from the appellant was marijuana because of the distance, his
testimony, nevertheless, corroborated the direct evidence, which the Court earlier
ruled to be convincing, presented by Sgt. Ani on the following material points: (1)
T/Sgt. Belarga instructed Sgt. Ani to conduct a surveillance and test-buy operation on

the appellant at Suterville, Zamboanga City on December 13, 1989; 23 (2) later that
same day, Sgt. Ani went back to their office and reported a successful operation and
turned over to T/Sgt. Belarga one wrapper of marijuana; 24 (3) T/Sgt. Belarga then
organized a team to conduct a buy-bust operation the following day; 25 (4) on
December 14, 1989, T/Sgt. Belarga led a team of NARCOM agents who went to
Suterville, Zamboanga City;26 (5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani
which was to be used in the buy-bust operation; 27 (6) upon the arrival of the
NARCOM agents in Suterville, Zamboanga City, Sgt. Ani proceeded to the house of
the appellant while some agents stayed in the vehicles and others positioned
themselves in strategic places;28 the appellant met Sgt. Ani and an exchange of
articles took place.29
The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given
by Sgt. Ani. Additionally, the Court has ruled that the fact that the police officers who
accompanied the poseur-buyer were unable to see exactly what the appellant gave
the poseur-buyer because of their distance or position will not be fatal to the
prosecution's case30 provided there exists other evidence, direct or circumstantial,
e.g., the testimony of the poseur-buyer, which is sufficient to prove the
consummation of the sale of the prohibited drug
The appellant next assails the seizure and admission as evidence of a plastic bag
containing marijuana which the NARCOM agents found in the appellant's kitchen. It
appears that after Sgt. Ani gave the pre-arranged signal to the other NARCOM
agents, the latter moved in and arrested the appellant inside the house. They
searched him to retrieve the marked money but didn't find it. Upon being questioned,
the appellant said that he gave the marked money to his wife.31 Thereafter, T/Sgt.
Belarga and Sgt. Lego went to the kitchen and noticed what T/Sgt. Belarga described
as a "cellophane colored white and stripe hanging at the corner of the
kitchen."32 They asked the appellant about its contents but failing to get a response,
they opened it and found dried marijuana leaves. At the trial, the appellant
questioned the admissibility of the plastic bag and the marijuana it contains but the
trial court issued an Order ruling that these are admissible in evidence.33
Built into the Constitution are guarantees on the freedom of every individual against
unreasonable searches and seizures by providing in Article III, Section 2, the
following:
The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 140
witness he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill
v. Diokno, 34 declares inadmissible, any evidence obtained in violation of the freedom
from unreasonable searches and seizures.35
While a valid search warrant is generally necessary before a search and seizure may
be effected, exceptions to this rule are recognized. Thus, in Alvero v. Dizon,36 the
Court stated that. "[t]he most important exception to the necessity for a search
warrant is the right of search and seizure as an incident to a lawful arrest."37
Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search
and seizure incident to a lawful arrest, thus:
Sec. 12. Search incident to lawful arrest. — A person lawfully
arrested may be searched for dangerous weapons or anything
which may be used as proof of the commission of an offense,
without a search warrant.
There is no doubt that the warrantless search incidental to a lawful arrest authorizes
the arresting officer to make a search upon the person of the person arrested. As
early as 1909, the Court has ruled that "[a]n officer making an arrest may take from
the person arrested any money or property found upon his person which was used in
the commission of the crime or was the fruit of the crime or which might furnish the
prisoner with the means of committing
violence or of escaping, or which may be used as evidence in the trial of the cause . .
. "38 Hence, in a buy-bust operation conducted to entrap a drug-pusher, the law
enforcement agents may seize the marked money found on the person
of the pusher immediately after the arrest even without arrest and search warrants.39
In the case at bar, the NARCOM agents searched the person of the appellant after
arresting him in his house but found nothing. They then searched the entire house
and, in the kitchen, found and seized a plastic bag hanging in a corner.
The warrantless search and seizure, as an incident to a suspect's lawful arrest, may
extend beyond the person of the one arrested to include the premises or
surroundings under his immediate control.40 Objects in the "plain view" of an officer
who has the right to be in the position to have that view are subject to seizure and
may be presented as evidence.41

In Ker v. California42 police officers, without securing a search warrant but having
information that the defendant husband was selling marijuana from his apartment,
obtained from the building manager a passkey to defendants' apartment, and entered
it. There they found the defendant husband in the living room. The defendant wife
emerged from the kitchen, and one of the officers, after identifying himself, observed
through the open doorway of the kitchen, a small scale atop the kitchen sink, upon
which lay a brick-shaped package containing green leafy substance which he
recognized as marijuana. The package of marijuana was used as evidence in
prosecuting defendants for violation of the Narcotic Law. The admissibility of the
package was challenged before the U.S. Supreme Court, which held, after observing
that it was not unreasonable for the officer to walk to the doorway of the adjacent
kitchen on seeing the defendant wife emerge therefrom, that "the discovery of the
brick of marijuana did not constitute a search, since the officer merely saw what was
placed before him in full view.43 The U.S. Supreme Court ruled that the warrantless
seizure of the marijuana was legal on the basis of the "plain view" doctrine and
upheld the admissibility of the seized drugs as part of the prosecution's evidence. 44
The "plain view" doctrine may not, however, be used to launch unbridled searches
and indiscriminate seizures nor to extend a general exploratory search made solely to
find evidence of defendant's guilt. The "plain view" doctrine is usually applied where a
police officer is not searching for evidence against the accused, but nonetheless
inadvertently comes across an incriminating object.45 Furthermore, the U.S. Supreme
Court stated the following limitations on the application of the doctrine:
What the "plain view" cases have in common is that the police officer in each of them
had a prior justification for an intrusion in the course of which he came inadvertently
across a piece of evidence incriminating the accused. The doctrine serves to
supplement the prior justification — whether it be a warrant for another object, hot
pursuit, search incident to lawful arrest, or some other legitimate reason for being
present unconnected with a search directed against the accused — and permits the
warrantless seizure. Of course, the extension of the original justification is legitimate
only where it is immediately apparent to the police that they have evidence before
them; the "plain view" doctrine may not be used to extend a general exploratory
search from one object to another until something incriminating at last emerges.46
It has also been suggested that even if an object is observed in "plain view," the
"plain view" doctrine will not justify the seizure of the object where the incriminating
nature of the object is not apparent from the "plain view" of the object.47 Stated
differently, it must be immediately apparent to the police that the items that they
observe may be evidence of a crime, contraband, or otherwise subject to seizure.
In the instant case, the appellant was arrested and his person searched in the living
room. Failing to retrieve the marked money which they hoped to find, the NARCOM
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 141
agents searched the whole house and found the plastic bag in the kitchen. The plastic
bag was, therefore, not within their "plain view" when they arrested the appellant as
to justify its seizure. The NARCOM agents had to move from one portion of the house
to another before they sighted the plastic bag. Unlike Ker vs. California, where the
police officer had reason to walk to the doorway of the adjacent kitchen and from
which position he saw the marijuana, the NARCOM agents in this case went from
room to room with the obvious intention of fishing for more evidence.
Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of
the kitchen, they had no clue as to its contents. They had to ask the appellant what
the bag contained. When the appellant refused to respond, they opened it and found
the marijuana. Unlike Ker v. California, where the marijuana was visible to the police
officer's eyes, the NARCOM agents in this case could not have discovered the
inculpatory nature of the contents of the bag had they not forcibly opened it. Even
assuming then, that the NARCOM agents inadvertently came across the plastic bag
because it was within their "plain view," what may be said to be the object in their
"plain view" was just the plastic bag and not the marijuana. The incriminating nature
of the contents of the plastic bag was not immediately apparent from the "plain view"
of said object. It cannot be claimed that the plastic bag clearly betrayed its contents,
whether by its distinctive configuration, its transprarency, or otherwise, that its
contents are obvious to an observer.48
We, therefore, hold that under the circumstances of the case, the "plain view"
doctrine does not apply and the marijuana contained in the plastic bag was seized
illegally and cannot be presented in evidence pursuant to Article III, Section 3(2) of
the Constitution.
The exclusion of this particular evidence does not, however, diminish, in any way, the
damaging effect of the other pieces of evidence presented by the prosecution to
prove that the appellant sold marijuana, in violation of Article II, Section 4 of the
Dangerous Drugs Act of 1972. We hold that by virtue of the testimonies of Sgt. Ani
and T/Sgt. Belarga and the two wrappings of marijuana sold by the appellant to Sgt.
Ani, among other pieces of evidence, the guilt of the appellant of the crime charged
has been proved beyond reasonable doubt.
WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court
AFFIRMED.
SO ORDERED.
Gutierrez, Jr., Bidin, Davide, Jr. and Melo, JJ., concur.

SECOND DIVISION
[G.R. Nos. 133254-55. April 19, 2001]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO
SALANGUIT y KO, accused-appellant.
DECISION
MENDOZA, J.:
This is an appeal from the decision,[1] dated January 27, 1998, of the Regional
Trial Court, Branch 96, Quezon City, finding accused-appellant Roberto Salanguit y Ko
guilty of violation of 16 of Republic Act No. 6425, as amended, and sentencing him
accordingly to suffer imprisonment ranging from six (6) months of arresto mayor, as
minimum, to four (4) years and two (2) months of prision correccional, as
maximum, and of 8 of the same law and sentencing him for such violation to suffer the
penalty of reclusion perpetua and to pay a fine of P700,000.00.
Charges against accused-appellant for violations of R.A. No. 6425 were filed on
December 28, 1995. In Criminal Case No. Q-95-64357, the information alleged:
That on or about the 26th day of December 1995, in Quezon City, Philippines, the
said accused, did then and there willfully, unlawfully and knowingly possess and/or
use 11.14 grams of Methamphetamine Hydrochloride (Shabu) a regulated drug,
without the necessary license and/or prescription therefor, in violation of said law.
CONTRARY TO LAW.[2]
In Criminal Case No. Q-95-64358, the information charged:
That on or about the 26th day of December 1995, in Quezon City, Philippines, the
said accused not being authorized by law to possess or use any prohibited drug, did,
then and there willfully, unlawfully and knowingly have in his possession and under
his custody and control 1,254 grams of Marijuana, a prohibited drug.
CONTRARY TO LAW.[3]
When arraigned on May 21, 1996, accused-appellant pleaded not
guilty,[4] whereupon he was tried.
Three witnesses were presented by the prosecution: P/Insp. Sonia S. Ludovico,
forensic chemist and chief of the Physical Science Branch of the Philippine National
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 142
Police Crime Laboratory, Senior Inspector Rodolfo Aguilar of the Narcotics Command,
Camp Crame, Quezon City, and PO3 Rolando Duazo of Station 10, Kamuning, Quezon
City, a field operative. The prosecution evidence established the following:
On December 26, 1995, Sr. Insp. Aguilar applied for a warrant[5] in the Regional
Trial Court, Branch 90, Dasmarias, Cavite, to search the residence of accused-appellant
Robert Salanguit y Ko on Binhagan St., Novaliches, Quezon City. He presented as his
witness SPO1 Edmund Badua, who testified that as a poseur-buyer, he was able to
purchase 2.12 grams of shabu from accused-appellant. The sale took place in accused-
appellants room, and Badua saw that the shabu was taken by accused-appellant from
a cabinet inside his room. The application was granted, and a search warrant was later
issued by Presiding Judge Dolores L. Espaol.
At about 10:30 p.m. of December 26, 1995, a group of about 10 policemen, along
with one civilian informer, went to the residence of accused-appellant to serve the
warrant.[6]
The police operatives knocked on accused-appellants door, but nobody opened
it. They heard people inside the house, apparently panicking. The police operatives
then forced the door open and entered the house.[7]
After showing the search warrant to the occupants of the house, Lt. Cortes and
his group started searching the house.[8] They found 12 small heat-sealed transparent
plastic bags containing a white crystalline substance, a paper clip box also containing
a white crystalline substance, and two bricks of dried leaves which appeared to be
marijuana wrapped in newsprint[9] having a total weight of approximately 1,255
grams.[10] A receipt of the items seized was prepared, but the accused-appellant
refused to sign it.[11]
After the search, the police operatives took accused-appellant with them to
Station 10, EDSA, Kamuning, Quezon City, along with the items they had seized.[12]
PO3 Duazo requested a laboratory examination of the confiscated
evidence.[13] The white crystalline substance with a total weight of 2.77 grams and
those contained in a small box with a total weight of 8.37 grams were found to be
positive for methamphetamine hydrochloride. On the other hand, the two bricks of
dried leaves, one weighing 425 grams and the other 850 grams, were found to be
marijuana.[14]
For the defense, accused-appellant testified in his own behalf. His testimony was
corroborated by his mother-in-law, Soledad Arcano.
Accused-appellant testified that on the night of December 26, 1995, as they were
about to leave their house, they heard a commotion at the gate and on the roof of their
house. Suddenly, about 20 men in civilian attire, brandishing long firearms, climbed
over the gate and descended through an opening in the roof.[15]

When accused-appellant demanded to be shown a search warrant, a piece of
paper inside a folder was waved in front of him. As accused-appellant fumbled for his
glasses, however, the paper was withdrawn and he had no chance to read it.[16]
Accused-appellant claimed that he was ordered to stay in one place of the house
while the policemen conducted a search, forcibly opening cabinets and taking his bag
containing money, a licensed .45 caliber firearm, jewelry, and canned goods.[17]
The policemen left at around 12:30 a.m. of December 27, 1995, and, after putting
handcuffs on accused-appellant, took him with them to the NARCOM on EDSA, Quezon
City, where accused-appellant was detained.[18]
Accused-appellants mother-in law, Soledad Arcano, corroborated his
testimony. Arcano testified that the policemen ransacked their house, ate their food,
and took away canned goods and other valuables.[19]
After hearing, the trial court rendered its decision, the dispositive portion of which
reads:
WHEREFORE, judgment is hereby rendered:
1. In Criminal Case No. Q-95-64357, for violation of Sec. 16, Republic Act No. 6425,
as amended, finding the accused ROBERTO SALANGUIT y KO guilty beyond
reasonable doubt of the crime charged and he is hereby accordingly sentenced to
suffer an indeterminate sentence with a minimum of six (6) months of arresto
mayor and a maximum of four (4) years and two (2) months of prision correccional;
and,
2. In Criminal Case No. Q-95-64358, for violation of Sec. 8, Republic Act No. 6425, as
amended, finding the accused ROBERTO SALANGUIT y KO guilty beyond reasonable
doubt of the crime charged and he is hereby accordingly sentenced to suffer reclusion
perpetua and to pay a fine of P700,000.00.
The accused shall further pay the costs of suit.
The 11.14 grams of methamphetamine hydrochloride and the 1,254 grams of
marijuana bricks are hereby confiscated and condemned for disposition according to
law. The evidence custodian of this Court is hereby directed to turn such substances
over to the National Bureau of Investigation pursuant to law.
SO ORDERED.[20]
Hence this appeal. Accused-appellant contends that -
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 143
THE COURT A QUO GRAVELY ERRED IN DECLARING THE SEARCH WARRANT
VALID
THE COURT A QUO ERRED IN CONVICTING ACCUSED-APPELLANT FOR
ILLEGAL POSSESSION OF METHAMPHETAMINE HYDRO-CHLORIDE (SHABU)
THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT
FOR VIOLATION 8, R.A. NO. 6425
THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE TWO (2) BRICKS
OF MARIJUANA
THE COURT A QUO ERRED IN NOT FINDING THAT THE POLICEMEN USED
EXCESSIVE FORCE IN ENFORCING THE SEARCH WARRANT.
Accused-appellant is contesting his conviction on three grounds. First, the
admissibility of the shabu allegedly recovered from his residence as evidence against
him on the ground that the warrant used in obtaining it was invalid. Second, the
admissibility in evidence of the marijuana allegedly seized from accused-appellant
pursuant to the plain view doctrine. Third, the employment of unnecessary force by
the police in the execution of the warrant.
First. Rule 126, 4 of the Revised Rules on Criminal Procedure[21] provides that a
search warrant shall not issue except upon probable cause in connection with one
specific offense to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the things to be seized which may be anywhere
in the Philippines.
In issuing a search warrant, judges must comply strictly with the requirements of
the Constitution and the Rules of Criminal Procedure. No presumption of regularity can
be invoked in aid of the process when an officer undertakes to justify its
issuance.[22] Nothing can justify the issuance of the search warrant unless all the legal
requisites are fulfilled.
In this case, the search warrant issued against accused-appellant reads:
SEARCH WARRANT NO. 160
For: Violation of RA 6425
SEARCH WARRANT

TO ANY PEACE OFFICER:
GREETINGS:
It appearing to the satisfaction of the undersigned after examining under oath SR.
INSP. RODOLFO V. AGUILAR, PNP and his witness SPO1 EDMUND M. BADUA, PNP
that there is probable cause to believe that ROBERT SALANGUIT has in his
possession and control in his premises Binhagan St., San Jose, Quezon City as shown
in Annex A, the properties to wit:
UNDETERMINED QUANTITY OF SHABU AND DRUG PARAPHERNALIA
which should be seized and brought to the undersigned.
You are hereby commanded to make an immediate search anytime of the day/night
of the premises above-described and forthwith seize and take possession of the
above-stated properties and bring said properties to the undersigned to be dealt with
as the law directs.
GIVEN UNDER MY HAND this 26th day of December 1995 at Imus, Cavite,
Philippines.
(SGD.) DOLORES L. ESPAOL
Judge
Accused-appellant assails the validity of the warrant on three grounds: (1) that
there was no probable cause to search for drug paraphernalia; (2) that the search
warrant was issued for more than one specific offense; and (3) that the place to be
searched was not described with sufficient particularity.
Existence of Probable Cause
The warrant authorized the seizure of undetermined quantity of shabu and drug
paraphernalia. Evidence was presented showing probable cause of the existence of
methamphetamine hydrochloride or shabu. Accused-appellant contends, however, that
the search warrant issued is void because no evidence was presented showing the
existence of drug paraphernalia and the same should not have been ordered to be
seized by the trial court.[23]
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 144
The contention has no merit. To be sure, SPO1 Edmund Badua, the intelligence
officer who acted as a poseur-buyer, did not testify in the proceedings for the issuance
of a search warrant on anything about drug paraphernalia. He stated:
Q - Being a member of the Intelligence and Operation Section, NMDU, NARCOM,
do you remember if you were assigned into a monitoring or surveillance
work?
A - Yes, sir.
Q - Of what particular assignment or area were you assigned for monitoring or
surveillance?
A - Its within the Quezon City area particularly a house without a number located
at Binhagan St., San Jose, Quezon City, sir.
Q - Do you know the person who occupies the specific place?
A - Yes, sir, he is ROBERT SALANGUIT @ Robert.
Q - Are you familiar with that place?
A - Yes, sir, as part of my surveillance, I was able to penetrate inside the area and
established contract with ROBERT SALANGUIT alias Robert through my
friend who introduced me to the former.
Q - In what particular occasion did you meet ROBERT SALANGUIT alias Robert?
A - When I was introduced by my friend as a good buyer and drug pusher of
shabu, sir.
Q - Were you able to buy at that time?
A - Yes, sir.
Q - How much if you can still remember the amount involved?
A - I was able to buy two point twelve (2.12) grams of shabu in the amount of
Two Thousand Seven Hundred Fifty (P2,750.00) pesos, sir.
Q - Having established contact with ROBERT SALANGUIT @ Robert, do you know
where the stuff (shabu) were being kept?
A - Yes, sir, inside a cabinet inside his room.
Q - How were you able to know the place where he kept the stuff?
A - When I first bought the 2.12 grams of shabu from him, it was done inside his
room and I saw that the shabu was taken by him inside his cabinet.

Q - Do you know who is in control of the premises?
A - Yes, sir, it was ROBERT SALANGUIT @ Robert.
Q - How sure are you, that the shabu that you bought from ROBERT SALANGUIT
@ Robert is genuine shabu?
A - After I left the house of ROBERT SALANGUIT @ Robert, I proceeded back to
our office and reported the progress of my mission to our Chief and
presented to him the 2.12 grams of shabu I bought from the subject. Then
afterwards, our Chief formally requested the Chief PNP Central Crime
Laboratory Services, NPDC, for Technical Analysis which yielded positive
result for shabu, a regulated drug as shown in the attached certification of
PNP CLS result No. D-414-95 dated 19 Dec. 95.
Q - Do you have anything more to add or retract from your statement?
A - Yes, sir, I was offered by him (ROBERT SALANGUIT @ Robert) that anything I
wish to buy bigger quantity of shabu, he is willing to transact to me on cash
basis at his price of One Thousand Seven Hundred Fifty (P1,750.00) pesos
per gram.
Q - Are you willing to sign your statement freely and voluntarily?
A - Yes, sir.[24]
However, the fact that there was no probable cause to support the application for
the seizure of drug paraphernalia does not warrant the conclusion that the search
warrant is void. This fact would be material only if drug paraphernalia was in fact seized
by the police. The fact is that none was taken by virtue of the search warrant issued. If
at all, therefore, the search warrant is void only insofar as it authorized the seizure of
drug paraphernalia, but it is valid as to the seizure of methamphetamine hydrochloride
as to which evidence was presented showing probable cause as to its existence. Thus,
in Aday v. Superior Court,[25] the warrant properly described two obscene books but
improperly described other articles. It was held:
Although the warrant was defective in the respects noted, it does not follow that
it was invalid as a whole. Such a conclusion would mean that the seizure of certain
articles, even though proper if viewed separately, must be condemned merely because
the warrant was defective with respect to other articles. The invalid portions of the
warrant are severable from the authorization relating to the named books, which
formed the principal basis of the charge of obscenity. The search for and seizure of
these books, if otherwise valid, were not rendered illegal by the defects concerning
other articles. . . . In so holding we do not mean to suggest that invalid portions of a
warrant will be treated as severable under all circumstances. We recognize the danger
that warrants might be obtained which are essentially general in character but as to
minor items meet the requirement of particularity, and that wholesale seizures might
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 145
be made under them, in the expectation that the seizure would in any event be upheld
as to the property specified. Such an abuse of the warrant procedure, of course, could
not be tolerated.
It would be a drastic remedy indeed if a warrant, which was issued on probable
cause and particularly describing the items to be seized on the basis thereof, is to be
invalidated in toto because the judge erred in authorizing a search for other items not
supported by the evidence.[26] Accordingly, we hold that the first part of the search
warrant, authorizing the search of accused-appellants house for an undetermined
quantity of shabu, is valid, even though the second part, with respect to the search for
drug paraphernalia, is not.
Specificity of the Offense Charged
Accused-appellant contends that the warrant was issued for more than one
specific offense because possession or use of methamphetamine hydrochloride and
possession of drug paraphernalia are punished under two different provisions of R.A.
No. 6425.[27] It will suffice to quote what this Court said in a similar case to dispose of
this contention:
While it is true that the caption of the search warrant states that it is in connection
with Violation of R.A. 6425, otherwise known as the Dangerous Drugs Act of 1972, it
is clearly recited in the text thereof that There is probable cause to believe that
Adolfo Olaes alias Debie and alias Baby of No. 628 Comia St., Filtration, Sta. Rita,
Olongapo City, has in their session and control and custody of marijuana dried
stalks/leaves/seeds/cigarettes and other regulated/prohibited and exempt narcotics
preparations which is the subject of the offense stated above. Although the specific
section of the Dangerous Drugs Act is not pinpointed, there is no question at all of
the specific offense alleged to have been committed as a basis for the finding of
probable cause. The search warrant also satisfies the requirement in the Bill of Rights
of the particularity of the description to be made of the place to be searched and the
persons or things to be seized. [28]
Indeed, in People v. Dichoso[29] the search warrant was also for Violation of R.A.
6425, without specifying what provisions of the law were violated, and it authorized
the search and seizure of dried marijuana leaves and methamphetamine hydrochloride
(shabu) and sets of paraphernalias (sic). This Court, however, upheld the validity of
the warrant:
Appellants contention that the search warrant in question was issued for more than
(1) offense, hence, in violation of Section 3, Rule 126 of the Rules of Court, is

unpersuasive. He engages in semantic juggling by suggesting that since illegal
possession of shabu, illegal possession of marijuana and illegal possession of
paraphernalia are covered by different articles and sections of the Dangerous Drugs
Act of 1972, the search warrant is clearly for more than one (1) specific offense. In
short, following this theory, there should have been three (3) separate search
warrants, one for illegal possession of shabu, the second for illegal possession of
marijuana and the third for illegal possession of paraphernalia. This argument is
pedantic. The Dangerous Drugs Act of 1972 is a special law that deals specifically
with dangerous drugs which are subsumed into prohibited and regulated drugs and
defines and penalizes categories of offenses which are closely related or which belong
to the same class or species. Accordingly, one (1) search warrant may thus be validly
issued for the said violations of the Dangerous Drugs Act.[30]
Similarly, in another case,[31] the search warrant was captioned: For Violation of
P.D. No. 1866 (Illegal Possession of Firearms, etc.). The validity of the warrant was
questioned on the ground that it was issued without reference to any particular
provision in P.D. No. 1866, which punished several offenses. We held, however, that
while illegal possession of firearms is penalized under 1 of P.D. No. 1866 and illegal
possession of explosives is penalized under 3 thereof, the decree is a codification of
the various laws on illegal possession of firearms, ammunitions, and explosives which
offenses are so related as to be subsumed within the category of illegal possession of
firearms, etc. under P.D. No. 1866. Thus, only one warrant was necessary to cover the
violations under the various provisions of the said law.
Particularity of the Place
Accused-appellant contends that the search warrant failed to indicate the place
to be searched with sufficient particularity.
This contention is without merit. As the Solicitor General states:
. . . While the address stated in the warrant is merely Binhagan St., San Jose, Quezon
City, the trial court took note of the fact that the records of Search Warrant Case No.
160 contained several documents which identified the premises to be searched, to
wit: 1) the application for search warrant which stated that the premises to be
searched was located in between No. 7 and 11 at Binhagan Street, San Jose, Quezon
City; 2) the deposition of witness which described the premises as a house without a
number located at Binhagan St., San Jose, Quezon City; and 3) the pencil sketch of
the location of the premises to be searched. In fact, the police officers who raided
appellants house under the leadership of Police Senior Inspector Rodolfo Aguilar
could not have been mistaken as Inspector Aguilar resides in the same neighborhood
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 146
in Binhagan where appellant lives and in fact Aguilars place is at the end of appellants
place in Binhagan. Moreover, the house raided by Aguilars team is undeniably
appellants house and it was really appellant who was the target. The raiding team
even first ascertained through their informant that appellant was inside his residence
before they actually started their operation.[32]
The rule is that a description of the place to be searched is sufficient if the officer
with the warrant can, with reasonable effort, ascertain and identify the place intended
to be searched.[33] For example, a search warrant authorized a search of Apartment
Number 3 of a building at 83 Pleasant Street, Malborough, Massachusetts. As it turned
out, there were five apartments in the basement and six apartments on both the ground
and top floors and that there was an Apartment Number 3 on each floor. However, the
description was made determinate by a reference to the affidavit supporting the
warrant that the apartment was occupied by the accused Morris Ferrante of 83 Pleasant
Street, Malboro Mass.[34] In this case, the location of accused-appellants house being
indicated by the evidence on record, there can be no doubt that the warrant described
the place to be searched with sufficient particularity.
In sum, we hold that with respect to the seizure of shabu from accused-appellants
residence, Search Warrant No. 160 was properly issued, such warrant being founded
on probable cause personally determined by the judge under oath or affirmation of the
deposing witness and particularly describing the place to be searched and the things
to be seized.
Second. The search warrant authorized the seizure of methamphetamine
hydrochloride or shabu but not marijuana. However, seizure of the latter drug is being
justified on the ground that the drug was seized within the plain view of the searching
party. This is contested by accused-appellant.
Under the plain view doctrine, unlawful objects within the plain view of an officer
who has the right to be in the position to have that view are subject to seizure and
may be presented in evidence.[35] For this doctrine to apply, there must be: (a) prior
justification; (b) inadvertent discovery of the evidence; and (c) immediate apparent
illegality of the evidence before the police.[36]The question is whether these requisites
were complied with by the authorities in seizing the marijuana in this case.
Prior Justification and Discovery by Inadvertence
Because the location of the shabu was indicated in the warrant and thus known
to the police operatives, it is reasonable to assume that the police found the packets
of the shabu first. Once the valid portion of the search warrant has been executed, the

plain view doctrine can no longer provide any basis for admitting the other items
subsequently found. As has been explained:
What the plain view cases have in common is that the police officer in each of them
had a prior justification for an intrusion in the course of which he came inadvertently
across a piece of evidence incriminating the accused. The doctrine serves to
supplement the prior justification whether it be a warrant for another object, hot
pursuit, search incident to lawful arrest, or some other legitimate reason for being
present unconnected with a search directed against the accused and permits the
warrantless seizure. Of course, the extension of the original justification is legitimate
only where it is immediately apparent to the police that they have evidence before
them; the plain view doctrine may not be used to extend a general exploratory search
from one object to another until something incriminating at last emerges.[37]
The only other possible justification for an intrusion by the police is the conduct
of a search pursuant to accused-appellants lawful arrest for possession
of shabu. However, a search incident to a lawful arrest is limited to the person of the
one arrested and the premises within his immediate control. [38] The rationale for
permitting such a search is to prevent the person arrested from obtaining a weapon to
commit violence, or to reach for incriminatory evidence and destroy it.
The police failed to allege in this case the time when the marijuana was
found, i.e., whether prior to, or contemporaneous with, the shabu subject of the
warrant, or whether it was recovered on accused-appellants person or in an area within
his immediate control. Its recovery, therefore, presumably during the search conducted
after the shabu had been recovered from the cabinet, as attested to by SPO1 Badua in
his depostion, was invalid.
Apparent Illegality of the Evidence
The marijuana bricks were wrapped in newsprint. There was no apparent illegality
to justify their seizure. This case is similar to People. v. Musa[39] in which we declared
inadmissible the marijuana recovered by NARCOM agents because the said drugs were
contained in a plastic bag which gave no indication of its contents. We explained:
Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of
the kitchen, they had no clue as to its contents. They had to ask the appellant what
the bag contained. When the appellant refused to respond, they opened it and found
the marijuana. Unlike Ker v. California, where the marijuana was visible to the police
officers eyes, the NARCOM agents in this case could not have discovered the
inculpatory nature of the contents of the bag had they not forcibly opened it. Even
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 147
assuming then, that the NARCOM agents inadvertently came across the plastic bag
because it was within their plain view, what may be said to be the object in their
plain view was just the plastic bag and not the marijuana. The incriminating nature of
the contents of the plastic bag was not immediately apparent from the plain view of
said object. It cannot be claimed that the plastic bag clearly betrayed its contents,
whether by its distinctive configuration, is transparency, or otherwise, that its
contents are obvious to an observer.[40]
No presumption of regularity may be invoked by an officer in aid of the process
when he undertakes to justify an encroachment of rights secured by the
Constitution.[41] In this case, the marijuana allegedly found in the possession of
accused-appellant was in the form of two bricks wrapped in newsprint. Not being in a
transparent container, the contents wrapped in newsprint could not have been readily
discernible as marijuana. Nor was there mention of the time or manner these items
were discovered. Accordingly, for failure of the prosecution to prove that the seizure of
the marijuana without a warrant was conducted in accordance with the plain view
doctrine, we hold that the marijuana is inadmissible in evidence against accused-
appellant. However, the confiscation of the drug must be upheld.
Third. Accused-appellant claims that undue and unnecessary force was employed
by the searching party in effecting the raid.
Rule 126, 7 of the Revised Rules on Criminal Procedure[42] provides:
Right to break door or window to effect search. The officer, if refused admittance to
the place of directed search after giving notice of his purpose and authority, may
break open any outer or inner door or window of a house or any part of a house or
anything therein to execute the warrant or liberate himself or any person lawfully
aiding him when unlawfully detained therein.
Accused-appellants claim that the policemen had clambered up the roof of his
house to gain entry and had broken doors and windows in the process is unsupported
by reliable and competent proof. No affidavit or sworn statement of disinterested
persons, like the barangay officials or neighbors, has been presented by accused-
appellant to attest to the truth of his claim.
In contrast, Aguilar and Duanos claim that they had to use some force in order to
gain entry cannot be doubted. The occupants of the house, especially accused-
appellant, refused to open the door despite the fact that the searching party knocked
on the door several times. Furthermore, the agents saw the suspicious movements of
the people inside the house. These circumstances justified the searching partys forcible
entry into the house, founded as it is on the apprehension that the execution of their
mission would be frustrated unless they do so.
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 148

WHEREFORE, in Criminal Case No. Q-95-64357, the decision of the Regional

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

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

SO ORDERED.

Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 149

Republic of the Philippines descended from the gangplank after the informer had pointed to him. 9 They
SUPREME COURT detained him and inspected the bag he was carrying. It was found to contain three
Manila kilos of what were later analyzed as marijuana leaves by an NBI forensic
examiner, 10who testified that she conducted microscopic, chemical and
FIRST DIVISION chromatographic tests on them. On the basis of this finding, the corresponding
charge was then filed against Aminnudin.
G.R.No. 74869 July 6, 1988
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
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
alleged that he was arbitrarily arrested and immediately handcuffed. His bag was
vs.
confiscated without a search warrant. At the PC headquarters, he was manhandled to
IDEL AMINNUDIN y AHNI, defendant-appellant.
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
The Solicitor General for plaintiff-appellee. 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
Herminio T. Llariza counsel de-officio for defendant-appellant 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
CRUZ, J.:

The trial court was unconvinced, noting from its own examination of the accused that
The accused-appellant claimed his business was selling watches but he was
he claimed to have come to Iloilo City to sell watches but carried only two watches at
nonetheless arrested, tried and found guilty of illegally transporting marijuana. The
the time, traveling from Jolo for that purpose and spending P107.00 for fare, not to
trial court, disbelieving him, held it was high time to put him away and sentenced him
mention his other expenses. 15 Aminnudin testified that he kept the two watches in a
to life imprisonment plus a fine of P20,000.00. 1
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
Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the manhandling. 16 He also said he sold one of the watches for P400.00 and gave away
M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who were in the other, although the watches belonged not to him but to his cousin, 17 to a friend
fact waiting for him simply accosted him, inspected his bag and finding what looked whose full name he said did not even know. 18 The trial court also rejected his
liked marijuana leaves took him to their headquarters for investigation. The two allegations of maltreatment, observing that he had not sufficiently proved the injuries
bundles of suspect articles were confiscated from him and later taken to the NBI sustained by him. 19
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,
There is no justification to reverse these factual findings, considering that it was the
the information was amended to include Farida Ali y Hassen, who had also been
trial judge who had immediate access to the testimony of the witnesses and had the
arrested with him that same evening and likewise investigated. 3 Both were arraigned
opportunity to weigh their credibility on the stand. Nuances of tone or voice,
and pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge
meaningful pauses and hesitation, flush of face and dart of eyes, which may reveal
against Ali on the basis of a sworn statement of the arresting officers absolving her
the truth or expose the lie, are not described in the impersonal record. But the trial
after a 'thorough investigation." 5 The motion was granted, and trial proceeded only
judge sees all of this, discovering for himself the truant fact amidst the falsities.
against the accused-appellant, who was eventually convicted .6

The only exception we may make in this case is the trial court's conclusion that the
According to the prosecution, the PC officers had earlier received a tip from one of
accused-appellant was not really beaten up because he did not complain about it
their informers that the accused-appellant was on board a vessel bound for Iloilo City
later nor did he submit to a medical examination. That is hardly fair or realistic. It is
and was carrying marijuana. 7 He was Identified by name. 8Acting on this tip, they
possible Aminnudin never had that opportunity as he was at that time under
waited for him in the evening of June 25, 1984, and approached him as he
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 150

detention by the PC authorities and in fact has never been set free since he was Q You said you received an intelligence report
arrested in 1984 and up to the present. No bail has been allowed for his release. two days before June 25, 1984 with respect to
the coming of Wilcon 9?
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 A Yes, sir.
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 Q Did you receive any other report aside from
General dismissed this after an all-too-short argument that the arrest of Aminnudin this intelligence report?
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.
A Well, I have received also other reports but not
pertaining to the coming of Wilcon 9. For
It is not disputed, and in fact it is admitted by the PC officers who testified for the instance, report of illegal gambling operation.
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
COURT:
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 Q Previous to that particular information which
weeks 21 and a third "weeks before June 25." 22 On this matter, we may prefer the you said two days before June 25, 1984, did you
declaration of the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as also receive daily report regarding the activities
follows: of Idel Aminnudin

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 sources.
Q Were you informed of the coming of the Wilcon
9 and the possible trafficking of marijuana leaves
on that date?
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 person.
Q But you received it from your regular informer?

A Yes, sir, two days before June 25, 1984 when A Yes, sir.
we received this information from that particular
informer, prior to June 25, 1984 we have already
ATTY. LLARIZA:
reports of the particular operation which was
being participated by Idel Aminnudin.
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 151

Q Previous to June 25, 1984, you were more or Q Are you sure of that?
less sure that Idel Aminnudin is coming with
drugs? A On the 23rd he will be coming with the woman.

A Marijuana, sir. Q So that even before you received the official

report on June 23, 1984, you had already
Q And this information respecting Idel gathered information to the effect that Idel
Aminnudin's coming to Iloilo with marijuana was Aminnudin was coming to Iloilo on June 25,
received by you many days before you received 1984?
the intelligence report in writing?
A Only on the 23rd of June.
A Not a report of the particular coming of
Aminnudin but his activities. Q You did not try to secure a search warrant for
the seizure or search of the subject mentioned in
Q You only knew that he was coming on June your intelligence report?
25,1984 two days before?
A No, more.
A Yes, sir.
Q Why not?
Q You mean that before June 23, 1984 you did
not know that minnudin was coming? A Because we were very very sure that our
operation will yield positive result.
A Before June 23,1984, I, in my capacity, did not
know that he was coming but on June 23, 1984 Q Is that your procedure that whenever it will
that was the time when I received the yield positive result you do not need a search
information that he was coming. Regarding the warrant anymore?
reports on his activities, we have reports that he
was already consummated the act of selling and
A Search warrant is not necessary. 23
shipping marijuana stuff.

That last answer is a cavalier pronouncement, especially as it comes from a mere

COURT:
lieutenant of the PC. The Supreme Court cannot countenance such a statement. This
is still a government of laws and not of men.
Q And as a result of that report, you put him
under surveillance?
The mandate of the Bill of Rights is clear:

A Yes, sir.
Sec. 2. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and
Q In the intelligence report, only the name of seizures of whatever nature and for any purpose shall be inviolable,
Idel Aminnudin was mentioned? and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
A Yes, sir. 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 drug.
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.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 152
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 guarantees.
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.
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 153

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.


Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 188611 June 16, 2010
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
BELEN MARIACOS, Appellant.
DECISION
NACHURA, J.:
Before this Court is an appeal from the Decision1 of the Court of Appeals (CA) in CA-
G.R. CR-HC No. 02718, which affirmed the decision2 of the Regional Trial Court
(RTC), Branch 29, San Fernando City, La Union, in Criminal Case No. 7144, finding
appellant Belen Mariacos guilty of violating Article II, Section 5 of Republic Act (R.A.)
No. 9165, or the Comprehensive Dangerous Drugs Act of 2002.
The facts of the case, as summarized by the CA, are as follows:
Accused-appellant Belen Mariacos was charged in an Information, dated November 7,
2005 of violating Section 5, Article II of Republic Act [No.] 9165, allegedly committed
as follows:
"That on or about the 27th day of October, 2005, in the Municipality of San Gabriel,
Province of La Union, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, did then and there willfully, unlawfully and feloniously
transport, deliver 7,030.3, (sic) grams of dried marijuana fruiting tops without the
necessary permit or authority from the proper government agency or office.
CONTRARY TO LAW."
When arraigned on December 13, 2005, accused-appellant pleaded not guilty. During
the pre-trial, the following were stipulated upon:
"1. Accused admits that she is the same person identified in the information
as Belen Mariacos;
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 154
2. That accused is a resident of Brgy. Lunoy, San Gabriel, La Union;
3. That at the time of the arrest of the accused, accused had just alighted
from a passenger jeepney;
4. That the marijuana allegedly taken from the possession of the accused
contained in two (2) bags were submitted for examination to the Crime Lab;
5. That per Chemistry Report No. D-109-2005, the alleged drug submitted
for examination gave positive result for the presence of marijuana;
6. That the drugs allegedly obtained from the accused contained (sic) and
submitted for examination weighed 7,030.3 grams;
7. The Prosecutor admits the existence of a counter-affidavit executed by
the accused; and
8. The existence of the affidavits executed by the witnesses of the accused
family (sic): Lyn Punasen, Mercedes Tila and Magdalena Carino."
During the trial, the prosecution established the following evidence:
On October 26, 2005, in the evening, the San Gabriel Police Station of San Gabriel, La
Union, conducted a checkpoint near the police station at the poblacion to intercept a
suspected transportation of marijuana from Barangay Balbalayang, San Gabriel, La
Union. The group at the checkpoint was composed of PO2 Lunes B. Pallayoc ("PO2
Pallayoc"), the Chief of Police, and other policemen. When the checkpoint did not
yield any suspect or marijuana, the Chief of Police instructed PO2 Pallayoc to proceed
to Barangay Balbalayang to conduct surveillance operation (sic).
At dawn on October 27, 2005, in Barangay Balbalayang, PO2 Pallayoc met with a
secret agent of the Barangay Intelligence Network who informed him that a baggage
of marijuana had been loaded on a passenger jeepney that was about to leave for
the poblacion. The agent mentioned three (3) bags and one (1) blue plastic bag.
Further, the agent described a backpack bag with an "O.K." marking. PO2 Pallayoc
then boarded the said jeepney and positioned himself on top thereof. While the
vehicle was in motion, he found the black backpack with an "O.K." marking and
peeked inside its contents. PO2 Pallayoc found bricks of marijuana wrapped in
newspapers. He then asked the other passengers on top of the jeepney about the
owner of the bag, but no one knew.

When the jeepney reached the poblacion, PO2 Pallayoc alighted together with the
other passengers. Unfortunately, he did not notice who took the black backpack from
atop the jeepney. He only realized a few moments later that the said bag and three
(3) other bags, including a blue plastic bag, were already being carried away by two
(2) women. He caught up with the women and introduced himself as a policeman. He
told them that they were under arrest, but one of the women got away.
PO2 Pallayoc brought the woman, who was later identified as herein accused-
appellant Belen Mariacos, and the bags to the police station. At the police station, the
investigators contacted the Mayor of San Gabriel to witness the opening of the bags.
When the Mayor arrived about fifteen (15) minutes later, the bags were opened and
three (3) bricks of marijuana wrapped in newspaper, two (2) round bundles of
marijuana, and two (2) bricks of marijuana fruiting tops, all wrapped in a newspaper,
were recovered.
Thereafter, the investigators marked, inventoried and forwarded the confiscated
marijuana to the crime laboratory for examination. The laboratory examination
showed that the stuff found in the bags all tested positive for marijuana, a dangerous
drug.
When it was accused-appellant’s turn to present evidence, she testified that:
On October 27, 2005, at around 7:00 in the morning, accused-appellant, together
with Lani Herbacio, was inside a passenger jeepney bound for the poblacion. While
the jeepney was still at the terminal waiting for passengers, one Bennie Lao-ang
("Lao-ang"), her neighbor, requested her to carry a few bags which had been loaded
on top of the jeepney. At first, accused-appellant refused, but she was persuaded
later when she was told that she would only be carrying the bags. When they
reached the poblacion, Lao-ang handed accused-appellant and her companion, Lani
Herbacio, the bags, and then Lao-ang suddenly ran away. A few moments later, PO2
Pallayoc was upon them, arresting them. Without explanation, they were brought to
the police station. When they were at the police station, Lani Herbacio disappeared.
It was also at the police station that accused-appellant discovered the true contents
of the bags which she was asked to carry. She maintained that she was not the
owner of the bags and that she did not know what were contained in the bags. At the
police station (sic) she executed a Counter-Affidavit.3
On January 31, 2007, the RTC promulgated a decision, the dispositive portion of
which states:
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 155
WHEREFORE, the Court finds the accused Belen Mariacos GUILTY as charged and
sentences here (sic) to suffer the penalty of life imprisonment and to pay a fine of
₱500,000.00.
The 7,030.3 grams of marijuana are ordered confiscated and turned over to the
Philippine Drug Enforcement Agency for destruction in the presence of the Court
personnel and media.
SO ORDERED.4
Appellant appealed her conviction to the CA. She argued that the trial court erred in
considering the evidence of the prosecution despite its inadmissibility.5 She claimed
that her right against an unreasonable search was flagrantly violated by Police Officer
(PO)2 Pallayoc when the latter searched the bag, assuming it was hers, without a
search warrant and with no permission from her. She averred that PO2 Pallayoc’s
purpose for apprehending her was to verify if the bag she was carrying was the same
one he had illegally searched earlier. Moreover, appellant contended that there was
no probable cause for her arrest.6
Further, appellant claimed that the prosecution failed to prove the corpus delicti of
the crime.7 She alleged that the apprehending police officers violated Dangerous
Drugs Board Regulation No. 3, Series of 1979, as amended by Board Regulation No.
2, Series of 1990, which prescribes the procedure in the custody of seized prohibited
and regulated drugs, instruments, apparatuses, and articles. The said regulation
directs the apprehending team having initial custody and control of the drugs and/or
paraphernalia, immediately after seizure or confiscation, to have the same physically
inventoried and photographed in the presence of appellant or her representative, who
shall be required to sign copies of the inventory. The failure to comply with this
directive, appellant claimed, casts a serious doubt on the identity of the items
allegedly confiscated from her. She, likewise, averred that the prosecution failed to
prove that the items allegedly confiscated were indeed prohibited drugs, and to
establish the chain of custody over the same.
On the other hand, the People, through the Office of the Solicitor General (OSG),
argued that the warrantless arrest of appellant and the warrantless seizure of
marijuana were valid and legal,8 justified as a search of a moving vehicle. It averred
that PO2 Pallayoc had reasonable ground to believe that appellant had committed the
crime of delivering dangerous drugs based on reliable information from their agent,
which was confirmed when he peeked into the bags and smelled the distinctive odor
of marijuana.9 The OSG also argued that appellant was now estopped from
questioning the illegality of her arrest since she voluntarily entered a plea of "not
guilty" upon arraignment and participated in the trial and presented her
evidence.10 The OSG brushed aside appellant’s argument that the bricks of marijuana

were not photographed and inventoried in her presence or that of her counsel
immediately after confiscation, positing that physical inventory may be done at the
nearest police station or at the nearest office of the apprehending team, whichever
was practicable.11
In a Decision dated January 19, 2009, the CA dismissed appellant’s appeal and
affirmed the RTC decision in toto.12It held that the prosecution had successfully
proven that appellant carried away from the jeepney a number of bags which, when
inspected by the police, contained dangerous drugs. The CA ruled that appellant was
caught in flagrante delicto of "carrying and conveying" the bag that contained the
illegal drugs, and thus held that appellant’s warrantless arrest was valid. The
appellate court ratiocinated:
It must be stressed that PO2 Pallayoc had earlier ascertained the contents of the
bags when he was aboard the jeep. He saw the bricks of marijuana wrapped in
newspaper. That said marijuana was on board the jeepney to be delivered to a
specified destination was already unlawful. PO2 Pallayoc needed only to see for
himself to whom those bags belonged. So, when he saw accused-appellant carrying
the bags, PO2 Pallayoc was within his lawful duty to make a warrantless arrest of
accused-appellant.
xxxx
Firstly, this Court opines that the invocation of Section 2, Article III of the
Constitution is misplaced. At the time, when PO2 Pallayoc looked into the contents of
the suspicious bags, there was no identified owner. He asked the other passengers
atop the jeepney but no one knew who owned the bags. Thus, there could be no
violation of the right when no one was entitled thereto at that time.
Secondly, the facts of the case show the urgency of the situation. The local police has
been trying to intercept the transport of the illegal drugs for more than a day, to no
avail. Thus, when PO2 Pallayoc was tipped by the secret agent of the Barangay
Intelligence Network, PO2 Pallayoc had no other recourse than to verify as promptly
as possible the tip and check the contents of the bags.
Thirdly, x x x the search was conducted in a moving vehicle. Time and again, a
search of a moving vehicle has been justified on the ground that the mobility of
motor vehicles makes it possible for the vehicle to move out of the locality or
jurisdiction in which the warrant must be sought. Thus, under the facts, PO2 Pallayoc
could not be expected to secure a search warrant in order to check the contents of
the bags which were loaded on top of the moving jeepney. Otherwise, a search
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 156
warrant would have been of no use because the motor vehicle had already left the
locality.13
Appellant is now before this Court, appealing her conviction.
Once again, we are asked to determine the limits of the powers of the State’s agents
to conduct searches and seizures. Over the years, this Court had laid down the rules
on searches and seizures, providing, more or less, clear parameters in determining
which are proper and which are not.1avvphi1
Appellant’s main argument before the CA centered on the inadmissibility of the
evidence used against her. She claims that her constitutional right against
unreasonable searches was flagrantly violated by the apprehending officer.
Thus, we must determine if the search was lawful. If it was, then there would have
been probable cause for the warrantless arrest of appellant.
Article III, Section 2 of the Philippine Constitution provides:
Section 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.
Law and jurisprudence have laid down the instances when a warrantless search is
valid. These are:
1. Warrantless search incidental to a lawful arrest recognized under Section
12 [now Section 13], Rule 126 of the Rules of Court and by prevailing
jurisprudence;
2. Seizure of evidence in "plain view," the elements of which are:
(a) a prior valid intrusion based on the valid warrantless arrest in
which the police are legally present in the pursuit of their official
duties;

(b) the evidence was inadvertently discovered by the police who
had the right to be where they are;
(c) the evidence must be immediately apparent[;] and;
(d) "plain view" justified mere seizure of evidence without further
search.
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. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and Emergency Circumstances.14
Both the trial court and the CA anchored their respective decisions on the fact that
the search was conducted on a moving vehicle to justify the validity of the search.
Indeed, the search of a moving vehicle is one of the doctrinally accepted exceptions
to the Constitutional mandate that no search or seizure shall be made except by
virtue of a warrant issued by a judge after personally determining the existence of
probable cause.15
In People v. Bagista,16 the Court said:
The constitutional proscription against warrantless searches and seizures admits of
certain exceptions. Aside from a search incident to a lawful arrest, a warrantless
search had been upheld in cases of a moving vehicle, and the seizure of evidence in
plain view.
With regard to the search of moving vehicles, this had been justified on the ground
that the mobility of motor vehicles makes it possible for the vehicle to be searched to
move out of the locality or jurisdiction in which the warrant must be sought.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 157
This in no way, however, gives the police officers unlimited discretion to conduct
warrantless searches of automobiles in the absence of probable cause. When a
vehicle is stopped and subjected to an extensive search, such a warrantless search
has been held to be valid only as long as the officers conducting the search have
reasonable or probable cause to believe before the search that they will find the
instrumentality or evidence pertaining to a crime, in the vehicle to be searched.
It is well to remember that in the instances we have recognized as exceptions to the
requirement of a judicial warrant, it is necessary that the officer effecting the arrest
or seizure must have been impelled to do so because of probable cause. The
essential requisite of probable cause must be satisfied before a warrantless search
and seizure can be lawfully conducted.17 Without probable cause, the articles seized
cannot be admitted in evidence against the person arrested.18
Probable cause is defined as a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to induce a cautious man to believe
that the person accused is guilty of the offense charged. It refers to the existence of
such facts and circumstances that can lead a reasonably discreet and prudent man to
believe that an offense has been committed, and that the items, articles or objects
sought in connection with said offense or subject to seizure and destruction by law
are in the place to be searched.19
The grounds of suspicion are reasonable when, in the absence of actual belief of the
arresting officers, the suspicion that the person to be arrested is probably guilty of
committing the offense is based on actual facts, i.e., supported by circumstances
sufficiently strong in themselves to create the probable cause of guilt of the person to
be arrested. A reasonable suspicion therefore must be founded on probable cause,
coupled with good faith on the part of the peace officers making the arrest.20
Over the years, the rules governing search and seizure have been steadily liberalized
whenever a moving vehicle is the object of the search on the basis of practicality.
This is so considering that before a warrant could be obtained, the place, things and
persons to be searched must be described to the satisfaction of the issuing judge – a
requirement which borders on the impossible in instances where moving vehicle is
used to transport contraband from one place to another with impunity.21
This exception is easy to understand. A search warrant may readily be obtained when
the search is made in a store, dwelling house or other immobile structure. But it is
impracticable to obtain a warrant when the search is conducted on a mobile ship, on
an aircraft, or in other motor vehicles since they can quickly be moved out of the
locality or jurisdiction where the warrant must be sought.22

Given the discussion above, it is readily apparent that the search in this case is valid.
The vehicle that carried the contraband or prohibited drugs was about to leave. PO2
Pallayoc had to make a quick decision and act fast. It would be unreasonable to
require him to procure a warrant before conducting the search under the
circumstances. Time was of the essence in this case. The searching officer had no
time to obtain a warrant. Indeed, he only had enough time to board the vehicle
before the same left for its destination.
It is well to remember that on October 26, 2005, the night before appellant’s arrest,
the police received information that marijuana was to be transported from Barangay
Balbalayang, and had set up a checkpoint around the area to intercept the suspects.
At dawn of October 27, 2005, PO2 Pallayoc met the secret agent from the Barangay
Intelligence Network, who informed him that a baggage of marijuana was loaded on
a passenger jeepney about to leave for the poblacion. Thus, PO2 Pallayoc had
probable cause to search the packages allegedly containing illegal drugs.
This Court has also, time and again, upheld as valid a warrantless search incident to a
lawful arrest. Thus, Section 13, Rule 126 of the Rules of Court provides:
SEC. 13. Search incident to lawful arrest.—A person lawfully arrested may be
searched for dangerous weapons or anything which may have been used or
constitute proof in the commission of an offense without a search warrant.23
For this rule to apply, it is imperative that there be a prior valid arrest. Although,
generally, a warrant is necessary for a valid arrest, the Rules of Court provides the
exceptions therefor, to wit:
SEC. 5. Arrest without warrant; when lawful.—A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 158
In cases falling under paragraphs (a) and (b) above, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with section 7 of Rule 112.24
Be that as it may, we have held that a search substantially contemporaneous with an
arrest can precede the arrest if the police has probable cause to make the arrest at
the outset of the search.25
Given that the search was valid, appellant’s arrest based on that search is also valid.
Article II, Section 5 of the Comprehensive Dangerous Drugs Act of 2002 states:
SEC. 5 Sale, Trading, Administration, Dispensation, Delivery, Distribution and
Transportation of Dangerous Drugs and/or Controlled Precursors and Essential
Chemicals. – The penalty of life imprisonment to death and a fine ranging from Five
hundred thousand pesos (₱500,000.00) to Ten million pesos (₱10,000,000.00) shall
be imposed upon any person, who, unless authorized by law, shall sell, trade,
administer, dispense, deliver, give away to another, distribute, dispatch in transit or
transport any dangerous drug, including any and all species of opium poppy
regardless of the quantity and purity involved, or shall act as a broker in any of such
transactions.
The penalty of imprisonment ranging from twelve (12) years and one (1) day to
twenty (20) years and a fine ranging from One hundred thousand pesos
(₱100,000.00) to Five hundred thousand pesos (₱500,000.00) shall be imposed upon
any person who, unless authorized by law, shall sell, trade, administer, dispense,
deliver, give away to another, distribute, dispatch in transit or transport any
controlled precursor and essential chemical, or shall act as a broker in such
transactions.
In her defense, appellant averred that the packages she was carrying did not belong
to her but to a neighbor who had asked her to carry the same for him. This
contention, however, is of no consequence.
When an accused is charged with illegal possession or transportation of prohibited
drugs, the ownership thereof is immaterial. Consequently, proof of ownership of the
confiscated marijuana is not necessary.26
Appellant’s alleged lack of knowledge does not constitute a valid defense. Lack of
criminal intent and good faith are not exempting circumstances where the crime
charged is malum prohibitum, as in this case.27 Mere possession and/or delivery of a

prohibited drug, without legal authority, is punishable under the Dangerous Drugs
Act.28
Anti-narcotics laws, like anti-gambling laws, are regulatory statutes. They are rules of
convenience designed to secure a more orderly regulation of the affairs of society,
and their violation gives rise to crimes mala prohibita. Laws defining crimes mala
prohibita condemn behavior directed not against particular individuals, but against
public order.29
Jurisprudence defines "transport" as "to carry or convey from one place to
another."30 There is no definitive moment when an accused "transports" a prohibited
drug. When the circumstances establish the purpose of an accused to transport and
the fact of transportation itself, there should be no question as to the perpetration of
the criminal act.31The fact that there is actual conveyance suffices to support a
finding that the act of transporting was committed and it is immaterial whether or not
the place of destination is reached.32
Moreover, appellant’s possession of the packages containing illegal drugs gave rise to
the disputable presumption33that she is the owner of the packages and their
contents.34 Appellant failed to rebut this presumption. Her uncorroborated claim of
lack of knowledge that she had prohibited drug in her possession is insufficient.
Appellant’s narration of facts deserves little credence. If it is true that Bennie Lao-ang
merely asked her and her companion to carry some baggages, it is but logical to first
ask what the packages contained and where these would be taken. Likewise, if, as
appellant said, Lao-ang ran away after they disembarked from the jeepney, appellant
and her companion should have ran after him to give him the bags he had left with
them, and not to continue on their journey without knowing where they were taking
the bags.
Next, appellant argues that the prosecution failed to prove the corpus delicti of the
crime. In particular, she alleged that the apprehending police officers failed to follow
the procedure in the custody of seized prohibited and regulated drugs, instruments,
apparatuses, and articles.
In all prosecutions for violation of the Dangerous Drugs Act, the existence of all
dangerous drugs is a sine qua non for conviction. The dangerous drug is the very
corpus delicti of that crime.35
Thus, Section 21 of R.A. No. 9165 prescribes the procedure for custody and
disposition of seized dangerous drugs, to wit:
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 159
Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered
Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and
Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The
PDEA shall take charge and have custody of all dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or
surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a copy thereof.
The Implementing Rules and Regulations (IRR) of R.A. No. 9165 further provides:
SECTION 21. Custody and Disposition of Confiscated, Seized and/or
Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment. – The PDEA shall take charge and have custody of
all dangerous drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper disposition in the
following manner:
(a) The apprehending officer/team having initial custody and control of the drugs
shall, immediately after seizure and confiscation, physically inventory and photograph
the same in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a copy thereof:
Provided, that the physical inventory and photograph shall be conducted at the place
where the search warrant is served; or at the nearest police station or at the nearest
office of the apprehending officer/team, whichever is practicable, in case of
warrantless seizures; Provided, further, that non-compliance with these requirements
under justifiable grounds, as long as the integrity and the evidentiary value of the
seized items are properly preserved by the apprehending officer/team, shall not
render void and invalid such seizures of and custody over said items.
PO2 Pallayoc testified that after apprehending appellant, he immediately brought her
to the police station. At the station, the police requested the Mayor to witness the
opening of the bags seized from appellant. When the Mayor arrived, he opened the
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 160

bag in front of appellant and the other police officers. The black bag yielded three SO ORDERED.
bricks of marijuana wrapped in newspaper, while the plastic bag yielded two bundles
of marijuana and two bricks of marijuana fruiting tops.36 PO2 Pallayoc identified the ANTONIO EDUARDO B. NACHURA
bricks. He and PO3 Stanley Campit then marked the same. Then the seized items Associate Justice
were brought to the PNP Crime Laboratory for examination.

It is admitted that there were no photographs taken of the drugs seized, that
appellant was not accompanied by counsel, and that no representative from the
media and the DOJ were present. However, this Court has already previously held
that non-compliance with Section 21 is not fatal and will not render an accused’s
arrest illegal, or make the items seized inadmissible. What is of utmost importance is
the preservation of the integrity and evidentiary value of the seized items.37

Based on the testimony of PO2 Pallayoc, after appellant’s arrest, she was immediately
brought to the police station where she stayed while waiting for the Mayor. It was the
Mayor who opened the packages, revealing the illegal drugs, which were thereafter
marked and sent to the police crime laboratory the following day. Contrary to
appellant’s claim, the prosecution’s evidence establishes the chain of custody from
the time of appellant’s arrest until the prohibited drugs were tested at the police
crime laboratory.

While it is true that the arresting officer failed to state explicitly the justifiable ground
for non-compliance with Section 21, this does not necessarily mean that appellant’s
arrest was illegal or that the items seized are inadmissible. The justifiable ground will
remain unknown because appellant did not question the custody and disposition of
the items taken from her during the trial.38 Even assuming that the police officers
failed to abide by Section 21, appellant should have raised this issue before the trial
court. She could have moved for the quashal of the information at the first instance.
But she did not. Hence, she is deemed to have waived any objection on the matter.

Further, the actions of the police officers, in relation to the procedural rules on the
chain of custody, enjoyed the presumption of regularity in the performance of official
functions. Courts accord credence and full faith to the testimonies of police
authorities, as they are presumed to be performing their duties regularly, absent any
convincing proof to the contrary.39

In sum, the prosecution successfully established appellant’s guilt. Thus, her conviction
must be affirmed.

WHEREFORE, the foregoing premises considered, the appeal is DISMISSED. The

Decision of the Court of Appeals in CA-G.R. CR-HC No. 02718 is AFFIRMED.

THIRD DIVISION
[G.R. No. 120915. April 3, 1998]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROSA ARUTA y
MENGUIN, accused-appellant.
DECISION
ROMERO, J.:
With the pervasive proliferation of illegal drugs and its pernicious effects on our
society, our law enforcers tend at times to overreach themselves in apprehending drug
offenders to the extent of failing to observe well-entrenched constitutional guarantees
against illegal searches and arrests. Consequently, drug offenders manage to evade
the clutches of the law on mere technicalities.
Accused-appellant Rosa Aruta y Menguin was arrested and charged with violating
Section 4, Article II of Republic Act No. 6425 or the Dangerous Drugs Act. The
information reads:
That on or about the fourteenth (14th) day of December, 1988, in the City of
Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, without being lawfully authorized, did then and there wilfully,
unlawfully and knowingly engage in transporting approximately eight (8) kilos and
five hundred (500) grams of dried marijuana packed in plastic bag marked Cash
Katutak placed in a travelling bag, which are prohibited drugs.
Upon arraignment, she pleaded not guilty. After trial on the merits, the Regional
Trial Court of Olongapo City convicted and sentenced her to suffer the penalty of life
imprisonment and to pay a fine of twenty thousand (P20,000.00) pesos.[1]
The prosecution substantially relied on the testimonies of P/Lt. Ernesto Abello,
Officer-in-Charge of the Narcotics Command (NARCOM) of Olongapo City and P/Lt.
Jose Domingo. Based on their testimonies, the court a quo found the following:
On December 13, 1988, P/Lt. Abello was tipped off by his informant, known only as
Benjie, that a certain Aling Rosa would be arriving from Baguio City the following day,
December 14, 1988, with a large volume of marijuana. Acting on said tip, P/Lt. Abello
assembled a team composed of P/Lt. Jose Domingo, Sgt. Angel Sudiacal, Sgt. Oscar
Imperial, Sgt. Danilo Santiago and Sgt. Efren Quirubin.
Said team proceeded to West Bajac-Bajac, Olongapo City at around 4:00 in the
afternoon of December 14, 1988 and deployed themselves near the Philippine
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 161
National Bank (PNB) building along Rizal Avenue and the Caltex gasoline
station. Dividing themselves into two groups, one group, made up of P/Lt. Abello,
P/Lt. Domingo and the informant posted themselves near the PNB building while the
other group waited near the Caltex gasoline station.
While thus positioned, a Victory Liner Bus with body number 474 and the letters BGO
printed on its front and back bumpers stopped in front of the PNB building at around
6:30 in the evening of the same day from where two females and a male got off. It
was at this stage that the informant pointed out to the team Aling Rosa who was
then carrying a travelling bag.
Having ascertained that accused-appellant was Aling Rosa, the team approached her
and introduced themselves as NARCOM agents. When P/Lt. Abello asked Aling Rosa
about the contents of her bag, the latter handed it to the former.
Upon inspection, the bag was found to contain dried marijuana leaves packed in a
plastic bag marked Cash Katutak. The team confiscated the bag together with the
Victory Liner bus ticket to which Lt. Domingo affixed his signature. Accused-appellant
was then brought to the NARCOM office for investigation where a Receipt of Property
Seized was prepared for the confiscated marijuana leaves.
Upon examination of the seized marijuana specimen at the PC/INP Crime Laboratory,
Camp Olivas, Pampanga, P/Maj. Marlene Salangad, a Forensic Chemist, prepared a
Technical Report stating that said specimen yielded positive results for marijuana, a
prohibited drug.
After the presentation of the testimonies of the arresting officers and of the above
technical report, the prosecution rested its case.
Instead of presenting its evidence, the defense filed a Demurrer to Evidence alleging
the illegality of the search and seizure of the items thereby violating accused-
appellants constitutional right against unreasonable search and seizure as well as
their inadmissibility in evidence.
The said Demurrer to Evidence was, however, denied without the trial court ruling
on the alleged illegality of the search and seizure and the inadmissibility in evidence of
the items seized to avoid pre-judgment. Instead, the trial court continued to hear the
case.
In view of said denial, accused-appellant testified on her behalf. As expected, her
version of the incident differed from that of the prosecution. She claimed that
immediately prior to her arrest, she had just come from Choice Theater where she

watched the movie Balweg. While about to cross the road, an old woman asked her
help in carrying a shoulder bag. In the middle of the road, Lt. Abello and Lt. Domingo
arrested her and asked her to go with them to the NARCOM Office.
During investigation at said office, she disclaimed any knowledge as to the identity
of the woman and averred that the old woman was nowhere to be found after she was
arrested. Moreover, she added that no search warrant was shown to her by the
arresting officers.
After the prosecution made a formal offer of evidence, the defense filed a
Comment and/or Objection to Prosecutions Formal Offer of Evidence contesting the
admissibility of the items seized as they were allegedly a product of an unreasonable
search and seizure.
Not convinced with her version of the incident, the Regional Trial Court of
Olongapo City convicted accused-appellant of transporting eight (8) kilos and five
hundred (500) grams of marijuana from Baguio City to Olongapo City in violation of
Section 4, Article 11 of R.A. No. 6425, as amended, otherwise known as the Dangerous
Drugs Act of 1972 and sentenced her to life imprisonment and to pay a fine of twenty
thousand (P20,000.00) pesos without subsidiary imprisonment in case of insolvency.[2]
In this appeal, accused-appellant submits the following:
1. The trial court erred in holding that the NARCOM agents could not apply for a
warrant for the search of a bus or a passenger who boarded a bus because one of
the requirements for applying a search warrant is that the place to be searched must
be specifically designated and described.
2. The trial court erred in holding or assuming that if a search warrant was applied
for by the NARCOM agents, still no court would issue a search warrant for the reason
that the same would be considered a general search warrant which may be quashed.
3. The trial court erred in not finding that the warrantless search resulting to the
arrest of accused-appellant violated the latters constitutional rights.
4. The trial court erred in not holding that although the defense of denial is weak yet
the evidence of the prosecution is even weaker.
These submissions are impressed with merit.
In People v. Ramos,[3] this Court held that a search may be conducted by law
enforcers only on the strength of a search warrant validly issued by a judge as provided
in Article III, Section 2 of the Constitution which provides:
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 162
Section 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.
This constitutional guarantee is not a blanket prohibition against all searches and
seizures as it operates only against unreasonable searches and seizures. The plain
import of the language of the Constitution, which in one sentence prohibits
unreasonable searches and seizures and at the same time prescribes the requisites for
a valid warrant, is that searches and seizures are normally unreasonable unless
authorized by a validly issued search warrant or warrant of arrest. Thus, the
fundamental protection accorded by the search and seizure clause is that between
person and police must stand the protective authority of a magistrate clothed with
power to issue or refuse to issue search warrants or warrants of arrest.[4]
Further, articles which are the product of unreasonable searches and seizures are
inadmissible as evidence pursuant to the doctrine pronounced in Stonehill v.
Diokno.[5]This exclusionary rule was later enshrined in Article III, Section 3(2) of the
Constitution, thus:
Section 3(2). Any evidence obtained in violation of this or the preceding section shall
be inadmissible in evidence for any purpose in any proceeding.
From the foregoing, it can be said that the State cannot simply intrude
indiscriminately into the houses, papers, effects, and most importantly, on the person
of an individual.The constitutional provision guaranteed an impenetrable shield against
unreasonable searches and seizures. As such, it protects the privacy and sanctity of the
person himself against unlawful arrests and other forms of restraint.[6]
Therewithal, the right of a person to be secured against any unreasonable seizure
of his body and any deprivation of his liberty is a most basic and fundamental one. A
statute, rule or situation which allows exceptions to the requirement of a warrant of
arrest or search warrant must perforce be strictly construed and their application limited
only to cases specifically provided or allowed by law. To do otherwise is an infringement
upon personal liberty and would set back a right so basic and deserving of full
protection and vindication yet often violated.[7]
The following cases are specifically provided or allowed by law:
1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule
126 of the Rules of Court[8] and by prevailing jurisprudence;

2. Seizure of evidence in plain view, the elements of which are:
(a) a prior valid intrusion based on the valid warrantless arrest in which the police are
legally present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who had the right to be
where they are;
(c) the evidence must be immediately apparent, and
(d) plain view justified mere seizure of evidence without further search;
3. Search of a moving vehicle. Highly regulated by the government, the vehicles
inherent mobility reduces expectation of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion amounting to probable cause
that the occupant committed a criminal activity;
4. Consented warrantless search;
5. Customs search;[9]
6. Stop and Frisk;[10] and
7. Exigent and Emergency Circumstances.[11]
The above exceptions, however, should not become unbridled licenses for law
enforcement officers to trample upon the constitutionally guaranteed and more
fundamental right of persons against unreasonable search and seizures. The essential
requisite of probable cause must still be satisfied before a warrantless search and
seizure can be lawfully conducted.
Although probable cause eludes exact and concrete definition, it generally
signifies a reasonable ground of suspicion supported 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. It likewise refers to the existence of
such facts and circumstances which could lead a reasonably discreet and prudent man
to believe that an offense has been committed and that the item(s), article(s) or
object(s) sought in connection with said offense or subject to seizure and destruction
by law is in the place to be searched.[12]
It ought to be emphasized that in determining probable cause, the average man
weighs facts and circumstances without resorting to the calibrations of our rules of
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 163
evidence of which his knowledge is technically nil. Rather, he relies on the calculus of
common sense which all reasonable men have in abundance. The same quantum of
evidence is required in determining probable cause relative to search. Before a search
warrant can be issued, it must be shown by substantial evidence that the items sought
are in fact seizable by virtue of being connected with criminal activity, and that the
items will be found in the place to be searched.[13]
In searches and seizures effected without a warrant, it is necessary for probable
cause to be present. Absent any probable cause, the article(s) seized could not be
admitted and used as evidence against the person arrested. Probable cause, in these
cases, must only be based on reasonable ground of suspicion or belief that a crime has
been committed or is about to be committed.
In our jurisprudence, there are instances where information has become a
sufficient probable cause to effect a warrantless search and seizure.
In People v. Tangliben,[14] acting on information supplied by informers, police
officers conducted a surveillance at the Victory Liner Terminal compound in San
Fernando, Pampanga against persons who may commit misdemeanors and also on
those who may be engaging in the traffic of dangerous drugs. At 9:30 in the evening,
the policemen noticed a person carrying a red travelling bag who
was acting suspiciously. They confronted him and requested him to open his bag but
he refused. He acceded later on when the policemen identified themselves. Inside the
bag were marijuana leaves wrapped in a plastic wrapper. The police officers only knew
of the activities of Tangliben on the night of his arrest.
In instant case, the apprehending officers already had prior knowledge from their
informant regarding Arutas alleged activities. In Tangliben policemen were confronted
with an on-the-spot tip. Moreover, the policemen knew that the Victory Liner compound
is being used by drug traffickers as their business address. More significantly, Tangliben
was acting suspiciously. His actuations and surrounding circumstances led the
policemen to reasonably suspect that Tangliben is committing a crime. In instant case,
there is no single indication that Aruta was acting suspiciously.
In People v. Malmstedt,[15] the Narcom agents received reports
that vehicles coming from Sagada were transporting marijuana. They likewise received
information that a Caucasian coming from Sagada had prohibited drugs on his
person. There was no reasonable time to obtain a search warrant, especially since the
identity of the suspect could not be readily ascertained. His actuations also aroused the
suspicion of the officers conducting the operation. The Court held that in light of such
circumstances, to deprive the agents of the ability and facility to act promptly, including
a search without a warrant, would be to sanction impotence and ineffectiveness in law
enforcement, to the detriment of society.
Note, however, the glaring differences of Malmstedt to the instant case. In
present case, the police officers had reasonable time within which to secure a search

warrant.Second, Arutas identity was priorly ascertained. Third, Aruta was not acting
suspiciously. Fourth, Malmstedt was searched aboard a moving vehicle, a legally
accepted exception to the warrant requirement. Aruta, on the other hand, was
searched while about to cross a street.
In People v. Bagista,[16] the NARCOM officers had probable cause to stop and
search all vehicles coming from the north to Acop, Tublay, Benguet in view of the
confidential information they received from their regular informant that a woman
having the same appearance as that of accused-appellant would be bringing marijuana
from up north. They likewise had probable cause to search accused-appellants
belongings since she fitted the description given by the NARCOM informant. Since there
was a valid warrantless search by the NARCOM agents, any evidence obtained in the
course of said search is admissible against accused-appellant. Again, this case differs
from Aruta as this involves a search of a moving vehicle plus the fact that the police
officers erected a checkpoint. Both are exceptions to the requirements of a search
warrant.
In Manalili v. Court of Appeals and People,[17] the policemen conducted
a surveillance in an area of the Kalookan Cemetery based on information that drug
addicts were roaming therein. Upon reaching the place, they chanced upon a man in
front of the cemetery who appeared to be high on drugs. He was observed to have
reddish eyes and to be walking in a swaying manner. Moreover, he appeared to be
trying to avoid the policemen. When approached and asked what he was holding in his
hands, he tried to resist.When he showed his wallet, it contained marijuana. The Court
held that the policemen had sufficient reason to accost accused-appellant to determine
if he was actually high on drugs due to his suspicious actuations, coupled with the fact
that based on information, this area was a haven for drug addicts.
In all the abovecited cases, there was information received which became the
bases for conducting the warrantless search. Furthermore, additional factors and
circumstances were present which, when taken together with the information,
constituted probable causes which justified the warrantless searches and seizures in
each of the cases.
In the instant case, the determination of the absence or existence of probable
cause necessitates a reexamination of the facts. The following have been
established: (1) In the morning of December 13, 1988, the law enforcement officers
received information from an informant named Benjie that a certain Aling Rosa would
be leaving for Baguio City on December 14, 1988 and would be back in the afternoon
of the same day carrying with her a large volume of marijuana; (2) At 6:30 in the
evening of December 14, 1988, accused-appellant alighted from a Victory Liner Bus
carrying a travelling bag even as the informant pointed her out to the law enforcement
officers; (3) The law enforcement officers approached her and introduced themselves
as NARCOM agents; (4) When asked by Lt. Abello about the contents of her travelling
bag, she gave the same to him; (5)When they opened the same, they found dried
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 164
marijuana leaves; (6) Accused-appellant was then brought to the NARCOM office for
investigation.
This case is similar to People v. Aminnudin where the police received information
two days before the arrival of Aminnudin that the latter would be arriving from Iloilo
on board the M/V Wilcon 9. His name was known, the vehicle was identified and the
date of arrival was certain. From the information they had received, the police could
have persuaded a judge that there was probable cause, indeed, to justify the issuance
of a warrant. Instead of securing a warrant first, they proceeded to apprehend
Aminnudin.When the case was brought before this Court, the arrest was held to be
illegal; hence any item seized from Aminnudin could not be used against him.
Another recent case is People v. Encinada where the police likewise received
confidential information the day before at 4:00 in the afternoon from their informant
that Encinada would be bringing in marijuana from Cebu City on board M/V Sweet Pearl
at 7:00 in the morning of the following day. This intelligence information regarding the
culprits identity, the particular crime he allegedly committed and his exact whereabouts
could have been a basis of probable cause for the lawmen to secure a warrant. This
Court held that in accordance with Administrative Circular No. 13 and Circular No. 19,
series of 1987, the lawmen could have applied for a warrant even after court hours. The
failure or neglect to secure one cannot serve as an excuse for violating Encinadas
constitutional right.
In the instant case, the NARCOM agents were admittedly not armed with a
warrant of arrest. To legitimize the warrantless search and seizure of accused-
appellants bag, accused-appellant must have been validly arrested under Section 5 of
Rule 113 which provides inter alia:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person
may, without a warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
xxx xxx xxx.
Accused-appellant Aruta cannot be said to be committing a crime. Neither was
she about to commit one nor had she just committed a crime. Accused-appellant was
merely crossing the street and was not acting in any manner that would engender a
reasonable ground for the NARCOM agents to suspect and conclude that she was
committing a crime. It was only when the informant pointed to accused-appellant and
identified her to the agents as the carrier of the marijuana that she was singled out as
the suspect. The NARCOM agents would not have apprehended accused-appellant were
it not for the furtive finger of the informant because, as clearly illustrated by the

evidence on record,there was no reason whatsoever for them to suspect that accused-
appellant was committing a crime, except for the pointing finger of the informant. This
the Court could neither sanction nor tolerate as it is a clear violation of the constitutional
guarantee against unreasonable search and seizure. Neither was there any semblance
of any compliance with the rigid requirements of probable cause and warrantless
arrests.
Consequently, there was no legal basis for the NARCOM agents to effect a
warrantless search of accused-appellants bag, there being no probable cause and the
accused-appellant not having been lawfully arrested. Stated otherwise, the arrest being
incipiently illegal, it logically follows that the subsequent search was similarly illegal, it
being not incidental to a lawful arrest. The constitutional guarantee against
unreasonable search and seizure must perforce operate in favor of accused-
appellant. As such, the articles seized could not be used as evidence against accused-
appellant for these are fruits of a poisoned tree and, therefore, must be rejected,
pursuant to Article III, Sec. 3(2) of the Constitution.
Emphasis is to be laid on the fact that the law requires that the search be
incidental to a lawful arrest, in order that the search itself may likewise be considered
legal.Therefore, it is beyond cavil that a lawful arrest must precede the search of a
person and his belongings. Where a search is first undertaken, and an arrest effected
based on evidence produced by the search, both such search and arrest would be
unlawful, for being contrary to law.[18]
As previously discussed, the case in point is People v. Aminnudin[19] where, this
Court observed that:
x x x 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.
In the absence of probable cause to effect a valid and legal warrantless arrest,
the search and seizure of accused-appellants bag would also not be justified as seizure
of evidence in plain view under the second exception. The marijuana was obviously
not immediately apparent as shown by the fact that the NARCOM agents still had to
request accused-appellant to open the bag to ascertain its contents.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 165
Neither would the search and seizure of accused-appellants bag be justified as
a search of a moving vehicle. There was no moving vehicle to speak of in the instant
case as accused-appellant was apprehended several minutes after alighting from the
Victory Liner bus. In fact, she was accosted in the middle of the street and not while
inside the vehicle.
People v. Solayao,[20] applied the stop and frisk principle which has been
adopted in Posadas v. Court of Appeals.[21] In said case, Solayao attempted to flee
when he and his companions were accosted by government agents. In the instant case,
there was no observable manifestation that could have aroused the suspicion of the
NARCOM agents as to cause them to stop and frisk accused-appellant. To reiterate,
accused-appellant was merely crossing the street when apprehended. Unlike in the
abovementioned cases, accused-appellant never attempted to flee from the NARCOM
agents when the latter identified themselves as such. Clearly, this is another indication
of the paucity of probable cause that would sufficiently provoke a suspicion that
accused-appellant was committing a crime.
The warrantless search and seizure could not likewise be categorized
under exigent and emergency circumstances, as applied in People v. De
Gracia.[22] In said case, there were intelligence reports that the building was being used
as headquarters by the RAM during a coup detat. A surveillance team was fired at by
a group of armed men coming out of the building and the occupants of said building
refused to open the door despite repeated requests. There were large quantities of
explosives and ammunitions inside the building. Nearby courts were closed and general
chaos and disorder prevailed. The existing circumstances sufficiently showed that a
crime was being committed. In short, there was probable cause to effect a warrantless
search of the building. The same could not be said in the instant case.
The only other exception that could possibly legitimize the warrantless search and
seizure would be consent given by the accused-appellant to the warrantless search as
to amount to a waiver of her constitutional right. The Solicitor General argues that
accused-appellant voluntarily submitted herself to search and inspection citing People
v. Malasugui[23] where this Court ruled:
When one voluntarily submits to a search or consents to have it made on his person
or premises, he is precluded from complaining later thereof. (Cooley, Constitutional
Limitations, 8th ed., [V]ol. I, p. 631.) The right to be secure from unreasonable
search may, like every right, be waived and such waiver may be made either
expressly or impliedly.
In support of said argument, the Solicitor General cited the testimony of Lt. Abello,
thus:
Q When this informant by the name of alias Benjie pointed to Aling Rosa,
what happened after that?

A We followed her and introduced ourselves as NARCOM agents and
confronted her with our informant and asked her what she was
carrying and if we can see the bag she was carrying.
Q What was her reaction?
A She gave her bag to me.
Q So what happened after she gave the bag to you?
A I opened it and found out plastic bags of marijuana inside. [24]
This Court cannot agree with the Solicitor Generals contention for the Malasugui
case is inapplicable to the instant case. In said case, there was probable cause for the
warrantless arrest thereby making the warrantless search effected immediately
thereafter equally lawful.[25] On the contrary, the most essential element of probable
cause, as expounded above in detail, is wanting in the instant case making the
warrantless arrest unjustified and illegal. Accordingly, the search which accompanied
the warrantless arrest was likewise unjustified and illegal. Thus, all the articles seized
from the accused-appellant could not be used as evidence against her.
Aside from the inapplicability of the abovecited case, the act of herein accused-
appellant in handing over her bag to the NARCOM agents could not be construed as
voluntary submission or an implied acquiescence to the unreasonable search. The
instant case is similar to People v. Encinada,[26] where this Court held:
[T]he Republics counsel avers that appellant voluntarily handed the chairs containing
the package of marijuana to the arresting officer and thus effectively waived his right
against the warrantless search. This he gleaned from Bolonias testimony.
Q: After Roel Encinada alighted from the motor tricycle, what happened
next?
A: I requested to him to see his chairs that he carried.
Q: Are you referring to the two plastic chairs?
A: Yes, sir.
Q: By the way, when Roel Encinada agreed to allow you to examine the
two chairs that he carried, what did you do next?
A: I examined the chairs and I noticed that something inside in between
the two chairs.
We are not convinced. While in principle we agree that consent will
validate an otherwise illegal search, we believe that appellant -- based on
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 166
the transcript quoted above -- did not voluntarily consent to Bolonias search
of his belongings. Appellants silence should not be lightly taken as consent
to such search. The implied acquiscence 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. Furthermore,
considering that the search was conducted irregularly, i.e., without a warrant, we
cannot appreciate consent based merely on the presumption of regularity of the
performance of duty.(Emphasis supplied)
Thus, accused-appellants lack of objection to the search is not tantamount to a
waiver of her constitutional rights or a voluntary submission to the warrantless
search. As this Court held in People v. Barros:[27]
x x x [T]he accused is not to be presumed to have waived the unlawful search
conducted on the occasion of his warrantless arrest simply because he failed to
object-
x x x. To constitute a waiver, it must appear first that the right exists; secondly, that
the person involved had knowledge, actual or constructive, of the existence of such
right; and lastly, that said person had an actual intention to relinquish the right
(Pasion Vda. de Garcia v. Locsin, 65 Phil. 698). The fact that the accused failed to
object to the entry into his house does not amount to a permission to make a search
therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the
case of Pasion Vda. de Garcia v. Locsin (supra):
xxx xxx xxx
x x x As the constitutional guaranty is not dependent upon any affirmative act of the
citizen, the courts do not place the citizen in the position of either contesting an
officers authority by force, or waiving his constitutional rights; but instead they hold
that a peaceful submission to a search or seizure is not a consent or an invitation
thereto, but is merely a demonstration of regard for the supremacy of the law.
(Citation omitted).
We apply the rule that: courts indulge every reasonable presumption against
waiver of fundamental constitutional rights and that we do not presume acquiescence
in the loss of fundamental rights.[28] (Emphasis supplied)
To repeat, to constitute a waiver, there should be an actual intention to relinquish
the right. As clearly illustrated in People v. Omaweng,[29] where prosecution witness
Joseph Layong testified thus:

PROSECUTOR AYOCHOK:
Q - When you and David Fomocod saw the travelling bag, what did you
do?
A - When we saw that travelling bag, we asked the driver if we
could see the contents.
Q - And what did or what was the reply of the driver, if there was any?
A - He said you can see the contents but those are only
clothings (sic).
Q - When he said that, what did you do?
A - We asked him if we could open and see it.
Q - When you said that, what did he tell you?
A - He said you can see it.
Q - And when he said you can see and open it, what did you do?
A - When I went inside and opened the bag, I saw that it was not
clothings (sic) that was contained in the bag.
Q - And when you saw that it was not clothings (sic), what did you do?
A - When I saw that the contents were not clothes, I took some of the
contents and showed it to my companion Fomocod and when
Fomocod smelled it, he said it was marijuana.(Emphasis supplied)
In the above-mentioned case, accused was not subjected to any search which
may be stigmatized as a violation of his Constitutional right against unreasonable
searches and seizures. If one had been made, this Court would be the first to condemn
it as the protection of the citizen and the maintenance of his constitutional rights is one
of the highest duties and privileges of the Court. He willingly gave prior consent to the
search and voluntarily agreed to have it conducted on his vehicle and traveling bag,
which is not the case with Aruta.
In an attempt to further justify the warrantless search, the Solicitor General next
argues that the police officers would have encountered difficulty in securing a search
warrant as it could be secured only if accused-appellants name was known, the
vehicle identified and the date of its arrival certain, as in the Aminnudin case where the
arresting officers had forty-eight hours within which to act.
This argument is untenable.
Article IV, Section 3 of the Constitution provides:
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 167
x x x [N]o search warrant or warrant of arrest shall issue except upon probable cause
to be determined by the judge, or such other responsible officer as may be
authorized by law, after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized. (Italics supplied)
Search warrants to be valid must particularly describe the place to be searched
and the persons or things to be seized. The purpose of this rule is to limit the things to
be seized to those and only those, particularly described in the warrant so as to leave
the officers of the law with no discretion regarding what articles they shall seize to the
end that unreasonable searches and seizures may not be made.[30]
Had the NARCOM agents only applied for a search warrant, they could have
secured one without too much difficulty, contrary to the assertions of the Solicitor
General. The person intended to be searched has been particularized and the thing to
be seized specified. The time was also sufficiently ascertained to be in the afternoon of
December 14, 1988. Aling Rosa turned out to be accused-appellant and the thing to be
seized was marijuana. The vehicle was identified to be a Victory Liner bus. In fact, the
NARCOM agents purposely positioned themselves near the spot where Victory Liner
buses normally unload their passengers. Assuming that the NARCOM agents failed to
particularize the vehicle, this would not in any way hinder them from securing a search
warrant. The above particulars would have already sufficed. In any case, this Court has
held that the police should particularly describe the place to be searched and the person
or things to be seized, wherever and whenever it is feasible.[31] (Emphasis
supplied)
While it may be argued that by entering a plea during arraignment and by actively
participating in the trial, accused-appellant may be deemed to have waived objections
to the illegality of the warrantless search and to the inadmissibility of the evidence
obtained thereby, the same may not apply in the instant case for the following reasons:
1. The waiver would only apply to objections pertaining to the illegality of the
arrest as her plea of not guilty and participation in the trial are indications of her
voluntary submission to the courtsjurisdiction.[32] The plea and active participation in
the trial would not cure the illegality of the search and transform the inadmissible
evidence into objects of proof. The waiver simply does not extend this far.
2. Granting that evidence obtained through a warrantless search becomes admissible
upon failure to object thereto during the trial of the case, records show that accused-
appellant filed a Demurrer to Evidence and objected and opposed the prosecutions
Formal Offer of Evidence.
It is apropos to quote the case of People v. Barros,[33] which stated:
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 168

It might be supposed that the non-admissibility of evidence secured through an
invalid warrantless arrest or a warrantless search and seizure may be waived by an
accused person. The a prioriargument is that the invalidity of an unjustified
warrantless arrest, or an arrest effected with a defective warrant of arrest may be
waived by applying for and posting of bail for provisional liberty, so as to estop an
accused from questioning the legality or constitutionality of his detention or the
failure to accord him a preliminary investigation. We do not believe, however, that
waiver of the latter necessarily constitutes, or carries with it, waiver of the former--an
argument that the Solicitor General appears to be making impliedly. Waiver of the
non-admissibility of the fruits of an invalid warrantless arrest and of a
warrantless search and seizure is not casually to be presumed, if the
constitutional right against unlawful searches and seizures is to retain its
vitality for the protection of our people. In the case at bar, defense counsel had
expressly objected on constitutional grounds to the admission of the carton box and
the four (4) kilos of marijuana when these were formally offered in evidence by the
prosecution. We consider that appellants objection to the admission of such
evidence was made clearly and seasonably and that, under the
circumstances, no intent to waive his rights under the premises can be
reasonably inferred from his conduct before or during the trial.(Emphasis
supplied)
Those who are supposed to enforce the law are not justified in disregarding the
rights of the individual in the name of order. Order is too high a price to pay for the
loss of liberty. As Justice Holmes declared: I think it is less evil that some criminals
escape than that the government should play an ignoble part. It is simply not allowed
in free society to violate a law to enforce another, especially if the law violated is the
Constitution itself.[37]
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court,
Branch 73, Olongapo City, is hereby REVERSED and SET ASIDE. For lack of evidence
to establish her guilt beyond reasonable doubt, accused-appellant ROSA ARUTA Y
MENGUIN is hereby ACQUITTED and ordered RELEASED from confinement unless she
is being held for some other legal grounds. No costs.
SO ORDERED.
Narvasa, C.J., (Chairman), Kapunan, and Purisima, JJ., concur.

In fine, there was really no excuse for the NARCOM agents not to procure a search
warrant considering that they had more than twenty-four hours to do so. Obviously,
this is again an instance of seizure of the fruit of the poisonous tree, hence illegal and
inadmissible subsequently in evidence.

The exclusion of such evidence is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizure. The non-
exclusionary rule is contrary to the letter and spirit of the prohibition against
unreasonable searches and seizures.[34]

While conceding that the officer making the unlawful search and seizure may be
held criminally and civilly liable, the Stonehill case observed that most jurisdictions have
realized that the exclusionary rule is the only practical means of enforcing the
constitutional injunction against abuse. This approach is based on the justification
made 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.[35]
Unreasonable searches and seizures are the menace against which the
constitutional guarantees afford full protection. While the power to search and seize
may at times be necessary to the public welfare, still it may be exercised and the law
enforced without transgressing the constitutional rights of the citizens, for the
enforcement of no statute is of sufficient importance to justify indifference to the basic
principles of government.[36]

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 91107 June 19, 1991
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MIKAEL MALMSTEDT, *defendant-appellant.
The Solicitor General for plaintiff-appellee.
Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendant-appellant.
PADILLA, J.:
In an information dated 15 June 1989, accused-appellant Mikael Malmstedt
(hereinafter referred to as the accused) was charged before the Regional Trial Court
(RTC) of La Trinidad, Benguet, Branch 10, in Criminal Case No. 89-CR-0663, for
violation of Section 4, Art. II of Republic Act 6425, as amended, otherwise known as
the Dangerous Drugs Act of 1972, as amended. The factual background of the case is
as follows:
Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third
time in December 1988 as a tourist. He had visited the country sometime in 1982 and
1985.
In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in
the morning of the following day, he took a bus to Sagada and stayed in that place
for two (2) days.
At around 7:00 o'clock in the morning of 11 May 1989, accused went to the
Nangonogan bus stop in Sagada to catch the first available trip to Baguio City. From
Baguio City, accused planned to take a late afternoon trip to Angeles City, then
proceed to Manila to catch his flight out of the country, scheduled on 13 May 1989.
From Sagada, accused took a Skyline bus with body number 8005 and Plate number
AVC 902.1
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 169
At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen
Vasco, the Commanding Officer of the First Regional Command (NARCOM) stationed
at Camp Dangwa, ordered his men to set up a temporary checkpoint at Kilometer 14,
Acop, Tublay, Mountain Province, for the purpose of checking all vehicles coming
from the Cordillera Region. The order to establish a checkpoint in the said area was
prompted by persistent reports that vehicles coming from Sagada were transporting
marijuana and other prohibited drugs. Moreover, information was received by the
Commanding Officer of NARCOM, that same morning, that a Caucasian coming from
Sagada had in his possession prohibited drugs.2
The group composed of seven (7) NARCOM officers, in coordination with Tublay
Police Station, set up a checkpoint at the designated area at about 10:00 o'clock in
the morning and inspected all vehicles coming from the Cordillera Region.
At about 1:30 o'clock in the afternoon, the bus where accused was riding was
stopped. Sgt. Fider and CIC Galutan boarded the bus and announced that they were
members of the NARCOM and that they would conduct an inspection. The two (2)
NARCOM officers started their inspection from the front going towards the rear of the
bus. Accused who was the sole foreigner riding the bus was seated at the rear
thereof.
During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the
bulge on accused's waist to be a gun, the officer asked for accused's passport and
other identification papers. When accused failed to comply, the officer required him
to bring out whatever it was that was bulging on his waist. The bulging object turned
out to be a pouch bag and when accused opened the same bag, as ordered, the
officer noticed four (4) suspicious-looking objects wrapped in brown packing tape,
prompting the officer to open one of the wrapped objects. The wrapped objects
turned out to contain hashish, a derivative of marijuana.
Thereafter, accused was invited outside the bus for questioning. But before he
alighted from the bus, accused stopped to get two (2) travelling bags from the
luggage carrier.
Upon stepping out of the bus, the officers got the bags and opened them. A teddy
bear was found in each bag. Feeling the teddy bears, the officer noticed that there
were bulges inside the same which did not feel like foam stuffing. It was only after
the officers had opened the bags that accused finally presented his passport.
Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La
Trinidad, Benguet for further investigation. At the investigation room, the officers
opened the teddy bears and they were found to also contain hashish. Representative

samples were taken from the hashish found among the personal effects of accused
and the same were brought to the PC Crime Laboratory for chemical analysis.
In the chemistry report, it was established that the objects examined were hashish. a
prohibited drug which is a derivative of marijuana. Thus, an information was filed
against accused for violation of the Dangerous Drugs Act.
During the arraignment, accused entered a plea of "not guilty." For his defense, he
raised the issue of illegal search of his personal effects. He also claimed that the
hashish was planted by the NARCOM officers in his pouch bag and that the two (2)
travelling bags were not owned by him, but were merely entrusted to him by an
Australian couple whom he met in Sagada. He further claimed that the Australian
couple intended to take the same bus with him but because there were no more
seats available in said bus, they decided to take the next ride and asked accused to
take charge of the bags, and that they would meet each other at the Dangwa Station.
Likewise, accused alleged that when the NARCOM officers demanded for his passport
and other Identification papers, he handed to one of the officers his pouch bag which
was hanging on his neck containing, among others, his passport, return ticket to
Sweden and other papers. The officer in turn handed it to his companion who
brought the bag outside the bus. When said officer came back, he charged the
accused that there was hashish in the bag. He was told to get off the bus and his
picture was taken with the pouch bag placed around his neck. The trial court did not
give credence to accused's defense.
The claim of the accused that the hashish was planted by the NARCOM officers, was
belied by his failure to raise such defense at the earliest opportunity. When accused
was investigated at the Provincial Fiscal's Office, he did not inform the Fiscal or his
lawyer that the hashish was planted by the NARCOM officers in his bag. It was only
two (2) months after said investigation when he told his lawyer about said claim,
denying ownership of the two (2) travelling bags as well as having hashish in his
pouch bag.
In a decision dated 12 October 1989, the trial court found accused guilty beyond
reasonable doubt for violation of the Dangerous Drugs Act, specifically Section 4, Art.
II of RA 6425, as amended.3 The dispositive portion of the decision reads as follows:
WHEREFORE, finding the guilt of the accused Mikael Malmstedt established
beyond reasonable doubt, this Court finds him GUILTY of violation of Section
4, Article 11 of Republic Act 6425, as amended, and hereby sentences him
to suffer the penalty of life imprisonment and to pay a fine of Twenty
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 170
Thousand Pesos (P20,000.00), with subsidiary imprisonment in case of
insolvency and to pay the costs.
Let the hashish subject of this case be turned over to the First Narcotics
Regional Unit at Camp Bado; Dangwa, La Trinidad Benguet for proper
disposition under Section 20, Article IV of Republic Act 6425, as amended.
SO ORDERED.4
Seeking the reversal of the decision of the trial court finding him guilty of the crime
charged, accused argues that the search of his personal effects was illegal because it
was made without a search warrant and, therefore, the prohibited drugs which were
discovered during the illegal search are not admissible as evidence against him.
The Constitution guarantees the right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures.5 However,
where the search is made pursuant to a lawful arrest, there is no need to obtain a
search warrant. A lawful arrest without a warrant may be made by a peace officer or
a private person under the following circumstances.6
Sec. 5 Arrest without warrant; when lawful. –– A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed
it; and
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station or
jail, and he shall be proceeded against in accordance with Rule 112, Section
7. (6a 17a).

Accused was searched and arrested while transporting prohibited drugs (hashish). A
crime was actually being committed by the accused and he was caught in flagrante
delicto. Thus, the search made upon his personal effects falls squarely under
paragraph (1) of the foregoing provisions of law, which allow a warrantless search
incident to a lawful arrest.7
While it is true that the NARCOM officers were not armed with a search warrant when
the search was made over the personal effects of accused, however, under the
circumstances of the case, there was sufficient probable cause for said officers to
believe that accused was then and there committing a crime.
Probable cause has been defined as such facts and circumstances which could lead a
reasonable, discreet and prudent man to believe that an offense has been committed,
and that the objects sought in connection with the offense are in the place sought to
be searched.8 The required probable cause that will justify a warrantless search and
seizure is not determined by any fixed formula but is resolved according to the facts
of each case.9
Warrantless search of the personal effects of an accused has been declared by this
Court as valid, because of existence of probable cause, where the smell of marijuana
emanated from a plastic bag owned by the accused,10 or where the accused was
acting suspiciously,11 and attempted to flee.12
Aside from the persistent reports received by the NARCOM that vehicles coming from
Sagada were transporting marijuana and other prohibited drugs, their Commanding
Officer also received information that a Caucasian coming from Sagada on that
particular day had prohibited drugs in his possession. Said information was received
by the Commanding Officer of NARCOM the very same morning that accused came
down by bus from Sagada on his way to Baguio City.
When NARCOM received the information, a few hours before the apprehension of
herein accused, that a Caucasian travelling from Sagada to Baguio City was carrying
with him prohibited drugs, there was no time to obtain a search warrant. In
the Tangliben case,13 the police authorities conducted a surveillance at the Victory
Liner Terminal located at Bgy. San Nicolas, San Fernando Pampanga, against persons
engaged in the traffic of dangerous drugs, based on information supplied by some
informers. Accused Tangliben who was acting suspiciously and pointed out by an
informer was apprehended and searched by the police authorities. It was held that
when faced with on-the-spot information, the police officers had to act quickly and
there was no time to secure a search warrant.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 171
It must be observed that, at first, the NARCOM officers merely conducted a routine
check of the bus (where accused was riding) and the passengers therein, and no
extensive search was initially made. It was only when one of the officers noticed a
bulge on the waist of accused, during the course of the inspection, that accused was
required to present his passport. The failure of accused to present his identification
papers, when ordered to do so, only managed to arouse the suspicion of the officer
that accused was trying to hide his identity. For is it not a regular norm for an
innocent man, who has nothing to hide from the authorities, to readily present his
identification papers when required to do so?
The receipt of information by NARCOM that a Caucasian coming from Sagada had
prohibited drugs in his possession, plus the suspicious failure of the accused to
produce his passport, taken together as a whole, led the NARCOM officers to
reasonably believe that the accused was trying to hide something illegal from the
authorities. From these circumstances arose a probable cause which justified the
warrantless search that was made on the personal effects of the accused. In other
words, the acts of the NARCOM officers in requiring the accused to open his pouch
bag and in opening one of the wrapped objects found inside said bag (which was
discovered to contain hashish) as well as the two (2) travelling bags containing two
(2) teddy bears with hashish stuffed inside them, were prompted by accused's own
attempt to hide his identity by refusing to present his passport, and by the
information received by the NARCOM that a Caucasian coming from Sagada had
prohibited drugs in his possession. To deprive the NARCOM agents of the ability and
facility to act accordingly, including, to search even without warrant, in the light of
such circumstances, would be to sanction impotence and ineffectiveness in law
enforcement, to the detriment of society.
WHEREFORE, premises considered, the appealed judgment of conviction by the trial
court is hereby AFFIRMED. Costs against the accused-appellant.
SO ORDERED.
Melencio-Herrera, Paras, Feliciano, Bidin, Griño-Aquino, Medialdea, Regalado and
Davide, Jr., JJ., concur.
Sarmiento, J., is on leave.
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 172

Republic of the Philippines of Police of Manila and a duly deputized agent of the Bureau of Customs, conducted
SUPREME COURT surveillance at gate No. 1 of the customs zone. When the trucks left gate No. 1 at
Manila about 4:30 in the afternoon of November 4, 1966, elements of the counter-
intelligence unit went after the trucks and intercepted them at the Agrifina Circle,
EN BANC Ermita, Manila. The load of the two trucks consisting of nine bales of goods, and the
two trucks, were seized on instructions of the Chief of Police. Upon investigation, a
person claimed ownership of the goods and showed to the policemen a "Statement
G.R. No. L-27360 February 28, 1968
and Receipts of Duties Collected in Informal Entry No. 147-5501", issued by the
Bureau of Customs in the name of a certain Bienvenido Naguit.
HON. RICARDO G. PAPA, as Chief of Police of Manila; HON. JUAN PONCE
ENRILE, as Commissioner of Customs; PEDRO PACIS, as Collector of
Claiming to have been prejudiced by the seizure and detention of the two
Customs of the Port of Manila; and MARTIN ALAGAO, as Patrolman of the
trucks and their cargo, Remedios Mago and Valentin B. Lanopa filed with the Court of
Manila Police Department, petitioners,
First Instance of Manila a petition "for mandamus with restraining order or
vs.
preliminary injunction, docketed as Civil Case No. 67496, alleging, among others, that
REMEDIOS MAGO and HILARION U. JARENCIO, as Presiding Judge of
Remedios Mago was the owner of the goods seized, having purchased them from the
Branch 23, Court of First Instance of Manila, respondents.
Sta. Monica Grocery in San Fernando, Pampanga; that she hired the trucks owned by
Valentin Lanopa to transport, the goods from said place to her residence at 1657
Office of the Solicitor General for petitioners. Laon Laan St., Sampaloc, Manila; that the goods were seized by members of the
Juan T. David for respondents. Manila Police Department without search warrant issued by a competent court; that
anila Chief of Police Ricardo Papa denied the request of counsel for Remedios Mago
ZALDIVAR, J.: that the bales be not opened and the goods contained therein be not examined; that
then Customs Commissioner Jacinto Gavino had illegally assigned appraisers to
examine the goods because the goods were no longer under the control and
This is an original action for prohibition and certiorari, with preliminary
supervision of the Commissioner of Customs; that the goods, even assuming them to
injunction filed by Ricardo Papa, Chief of Police of Manila; Juan once Enrile,
have been misdeclared and, undervalued, were not subject to seizure under Section
Commissioner of Customs; Pedro Pacis, Collector of Customs of the Port of Manila;
2531 of the Tariff and Customs Code because Remedios Mago had bought them from
and Martin Alagao, a patrolman of the Manila Police Department, against Remedios
another person without knowledge that they were imported illegally; that the bales
Mago and Hon. Hilarion Jarencio, Presiding Judge of Branch 23 of the Court of First
had not yet been opened, although Chief of Police Papa had arranged with the
Instance of Manila, praying for the annulment of the order issued by respondent
Commissioner of Customs regarding the disposition of the goods, and that unless
Judge in Civil Case No. 67496 of the Court of First Instance of Manila under date of
restrained their constitutional rights would be violated and they would truly suffer
March 7, 1967, which authorized the release under bond of certain goods which were
irreparable injury. Hence, Remedios Mago and Valentin Lanopa prayed for the
seized and held by petitioners in connection with the enforcement of the Tariff and
issuance of a restraining order, ex parte, enjoining the above-named police and
Customs Code, but which were claimed by respondent Remedios Mago, and to
customs authorities, or their agents, from opening the bales and examining the
prohibit respondent Judge from further proceeding in any manner whatsoever in said
goods, and a writ of mandamus for the return of the goods and the trucks, as well as
Civil Case No. 67496. Pending the determination of this case this Court issued a writ
a judgment for actual, moral and exemplary damages in their favor.
of preliminary injunction restraining the respondent Judge from executing, enforcing
and/or implementing the questioned order in Civil Case No. 67496 and from
proceeding with said case. On November 10, 1966, respondent Judge Hilarion Jarencio issued an order ex
parte restraining the respondents in Civil Case No. 67496 — now petitioners in the
instant case before this Court — from opening the nine bales in question, and at the
Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila
same time set the hearing of the petition for preliminary injunction on November 16,
Police Department, acting upon a reliable information received on November 3, 1966
1966. However, when the restraining order was received by herein petitioners, some
to the effect that a certain shipment of personal effects, allegedly misdeclared and
bales had already been opened by the examiners of the Bureau of Customs in the
undervalued, would be released the following day from the customs zone of the port
of Manila and loaded on two trucks, and upon orders of petitioner Ricardo Papa, Chief

presence of officials of the Manila Police Department, an assistant city fiscal and a
representative of herein respondent Remedios Mago.
Under date of November 15, 1966, Remedios Mago filed an amended petition
in Civil Case No. 67496, including as party defendants Collector of Customs Pedro
Pacis of the Port of Manila and Lt. Martin Alagao of the Manila Police Department.
Herein petitioners (defendants below) filed, on November 24, 1966, their "Answer
with Opposition to the Issuance of a Writ of Preliminary Injunction", denying the
alleged illegality of the seizure and detention of the goods and the trucks and of their
other actuations, and alleging special and affirmative defenses, to wit: that the Court
of First Instance of Manila had no jurisdiction to try the case; that the case fell within
the exclusive jurisdiction of the Court of Tax Appeals; that, assuming that the court
had jurisdiction over the case, the petition stated no cause of action in view of the
failure of Remedios Mago to exhaust the administrative remedies provided for in the
Tariff and Customs Code; that the Bureau of Customs had not lost jurisdiction over
the goods because the full duties and charges thereon had not been paid; that the
members of the Manila Police Department had the power to make the seizure; that
the seizure was not unreasonable; and the persons deputized under Section 2203 (c)
of the Tariff and Customs Code could effect search, seizures and arrests in inland
places in connection with the enforcement of the said Code. In opposing the issuance
of the writ of preliminary injunction, herein petitioners averred in the court below that
the writ could not be granted for the reason that Remedios Mago was not entitled to
the main reliefs she prayed for; that the release of the goods, which were subject to
seizure proceedings under the Tariff and Customs Code, would deprive the Bureau of
Customs of the authority to forfeit them; and that Remedios Mago and Valentin
Lanopa would not suffer irreparable injury. Herein petitioners prayed the court below
for the lifting of the restraining order, for the denial of the issuance of the writ of
preliminary injunction, and for the dismissal of the case.
At the hearing on December 9, 1966, the lower Court, with the conformity of
the parties, ordered that an inventory of the goods be made by its clerk of court in
the presence of the representatives of the claimant of the goods, the Bureau of
Customs, and the Anti-Smuggling Center of the Manila Police Department. On
December 13, 1966, the above-named persons filed a "Compliance" itemizing the
contents of the nine bales.
Herein respondent Remedios Mago, on December 23, 1966, filed an ex
parte motion to release the goods, alleging that since the inventory of the goods
seized did not show any article of prohibited importation, the same should be
released as per agreement of the patties upon her posting of the appropriate bond
that may be determined by the court. Herein petitioners filed their opposition to the
motion, alleging that the court had no jurisdiction to order the release of the goods in
view of the fact that the court had no jurisdiction over the case, and that most of the
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 173
goods, as shown in the inventory, were not declared and were, therefore, subject to
forfeiture. A supplemental opposition was filed by herein petitioners on January 19,
1967, alleging that on January 12, 1967 seizure proceedings against the goods had
been instituted by the Collector of Customs of the Port of Manila, and the
determination of all questions affecting the disposal of property proceeded against in
seizure and forfeiture proceedings should thereby be left to the Collector of Customs.
On January 30, 1967, herein petitioners filed a manifestation that the estimated
duties, taxes and other charges due on the goods amounted to P95,772.00. On
February 2, 1967, herein respondent Remedios Mago filed an urgent manifestation
and reiteration of the motion for the release under bond of the goods.
On March 7, 1967, the respondent Judge issued an order releasing the goods
to herein respondent Remedios Mago upon her filing of a bond in the amount of
P40,000.00, and on March 13, 1967, said respondent filed the corresponding bond.
On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed a
motion for reconsideration of the order of the court releasing the goods under bond,
upon the ground that the Manila Police Department had been directed by the
Collector of Customs of the Port of Manila to hold the goods pending termination of
the seizure proceedings.
Without waiting for the court's action on the motion for reconsideration, and
alleging that they had no plain, speedy and adequate remedy in the ordinary course
of law, herein petitioners filed the present action for prohibition and certiorari with
preliminary injunction before this Court. In their petition petitioners alleged, among
others, that the respondent Judge acted without jurisdiction in ordering the release to
respondent Remedios Mago of the disputed goods, for the following reasons: (1) the
Court of First Instance of Manila, presided by respondent Judge, had no jurisdiction
over the case; (2) respondent Remedios Mago had no cause of action in Civil Case
No. 67496 of the Court of First Instance of Manila due to her failure to exhaust all
administrative remedies before invoking judicial intervention; (3) the Government was
not estopped by the negligent and/or illegal acts of its agent in not collecting the
correct taxes; and (4) the bond fixed by respondent Judge for the release of the
goods was grossly insufficient.
In due time, the respondents filed their answer to the petition for prohibition
and certiorari in this case. In their answer, respondents alleged, among others: (1)
that it was within the jurisdiction of the lower court presided by respondent Judge to
hear and decide Civil Case No. 67496 and to issue the questioned order of March 7,
1967, because said Civil Case No. 67496 was instituted long before seizure, and
identification proceedings against the nine bales of goods in question were instituted
by the Collector of Customs; (2) that petitioners could no longer go after the goods in
question after the corresponding duties and taxes had been paid and said goods had

left the customs premises and were no longer within the control of the Bureau of
Customs; (3) that respondent Remedios Mago was purchaser in good faith of the
goods in question so that those goods can not be the subject of seizure and forfeiture
proceedings; (4) that the seizure of the goods was affected by members of the
Manila Police Department at a place outside control of jurisdiction of the Bureau of
Customs and affected without any search warrant or a warrant of seizure and
detention; (5) that the warrant of seizure and detention subsequently issued by the
Collector of Customs is illegal and unconstitutional, it not being issued by a judge; (6)
that the seizing officers have no authority to seize the goods in question because they
are not articles of prohibited importation; (7) that petitioners are estopped to institute
the present action because they had agreed before the respondent Judge that they
would not interpose any objection to the release of the goods under bond to answer
for whatever duties and taxes the said goods may still be liable; and (8) that the
bond for the release of the goods was sufficient.
The principal issue in the instant case is whether or not, the respondent Judge
had acted with jurisdiction in issuing the order of March 7, 1967 releasing the goods
in question.
The Bureau of Customs has the duties, powers and jurisdiction, among others,
(1) to assess and collect all lawful revenues from imported articles, and all other
dues, fees, charges, fines and penalties, accruing under the tariff and customs laws;
(2) to prevent and suppress smuggling and other frauds upon the customs; and (3)
to enforce tariff and customs laws. 1 The goods in question were imported from
Hongkong, as shown in the "Statement and Receipts of Duties Collected on Informal
Entry". 2 As long as the importation has not been terminated the imported goods
remain under the jurisdiction of the Bureau of customs. Importation is deemed
terminated only upon the payment of the duties, taxes and other charges upon the
articles, or secured to be paid, at the port of entry and the legal permit for
withdrawal shall have been granted. 3 The payment of the duties, taxes, fees and
other charges must be in full. 4
The record shows, by comparing the articles and duties stated in the aforesaid
"Statement and Receipts of Duties Collected on Informal Entry" with the
manifestation of the Office of the Solicitor General 5 wherein it is stated that the
estimated duties, taxes and other charges on the goods subject of this case
amounted to P95,772.00 as evidenced by the report of the appraiser of the Bureau of
Customs, that the duties, taxes and other charges had not been paid in full.
Furthermore, a comparison of the goods on which duties had been assessed, as
shown in the "Statement and Receipts of Duties Collected on Informal Entry" and the
"compliance" itemizing the articles found in the bales upon examination and
inventory, 6 shows that the quantity of the goods was underdeclared, presumably to
avoid the payment of duties thereon. For example, Annex B (the statement and
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 174
receipts of duties collected) states that there were 40 pieces of ladies' sweaters,
whereas Annex H (the inventory contained in the "compliance") states that in bale
No. 1 alone there were 42 dozens and 1 piece of ladies' sweaters of assorted colors;
in Annex B, only 100 pieces of watch bands were assessed, but in Annex H, there
were in bale No. 2, 209 dozens and 5 pieces of men's metal watch bands (white) and
120 dozens of men's metal watch band (gold color), and in bale No. 7, 320 dozens of
men's metal watch bands (gold color); in Annex B, 20 dozens only of men's
handkerchief were declared, but in Annex H it appears that there were 224 dozens of
said goods in bale No. 2, 120 dozens in bale No. 6, 380 dozens in bale No. 7, 220
dozens in bale No. 8, and another 200 dozens in bale No. 9. The articles contained in
the nine bales in question, were, therefore, subject to forfeiture under Section 2530,
pars. e and m, (1), (3), (4), and (5) of the Tariff and Customs Code. And this Court
has held that merchandise, the importation of which is effected contrary to law, is
subject to forfeiture, 7 and that goods released contrary to law are subject to seizure
and forfeiture. 8
Even if it be granted, arguendo, that after the goods in question had been
brought out of the customs area the Bureau of Customs had lost jurisdiction over the
same, nevertheless, when said goods were intercepted at the Agrifina Circle on
November 4, 1966 by members of the Manila Police Department, acting under
directions and orders of their Chief, Ricardo C. Papa, who had been formally
deputized by the Commissioner of Customs, 9 the Bureau of Customs had regained
jurisdiction and custody of the goods. Section 1206 of the Tariff and Customs Code
imposes upon the Collector of Customs the duty to hold possession of all imported
articles upon which duties, taxes, and other charges have not been paid or secured to
be paid, and to dispose of the same according to law. The goods in question,
therefore, were under the custody and at the disposal of the Bureau of Customs at
the time the petition for mandamus, docketed as Civil Case No. 67496, was filed in
the Court of First Instance of Manila on November 9, 1966. The Court of First
Instance of Manila, therefore, could not exercise jurisdiction over said goods even if
the warrant of seizure and detention of the goods for the purposes of the seizure and
forfeiture proceedings had not yet been issued by the Collector of Customs.
The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et
al.," G.R. No. L-24037, decided by this Court on April 27, 1967, is squarely applicable
to the instant case. In the De Joya case, it appears that Francindy Commercial of
Manila bought from Ernerose Commercial of Cebu City 90 bales of assorted textiles
and rags, valued at P117,731.00, which had been imported and entered thru the port
of Cebu. Ernerose Commercial shipped the goods to Manila on board an inter-island
vessel. When the goods where about to leave the customs premises in Manila, on
October 6, 1964, the customs authorities held them for further verification, and upon
examination the goods were found to be different from the declaration in the cargo
manifest of the carrying vessel. Francindy Commercial subsequently demanded from

the customs authorities the release of the goods, asserting that it is a purchaser in
good faith of those goods; that a local purchaser was involved so the Bureau of
Customs had no right to examine the goods; and that the goods came from a
coastwise port. On October 26, 1964, Francindy Commercial filed in the Court of First
Instance of Manila a petition for mandamus against the Commissioner of Customs
and the Collector of Customs of the port of Manila to compel said customs authorities
to release the goods.
Francindy Commercial alleged in its petition for mandamus that the Bureau of
Customs had no jurisdiction over the goods because the same were not imported to
the port of Manila; that it was not liable for duties and taxes because the transaction
was not an original importation; that the goods were not in the hands of the importer
nor subject to importer's control, nor were the goods imported contrary to law with
its (Francindy Commercial's) knowledge; and that the importation had been
terminated. On November 12, 1964, the Collector of Customs of Manila issued a
warrant of seizure and identification against the goods. On December 3, 1964, the
Commissioner of Customs and the Collector of Customs, as respondents in
the mandamus case, filed a motion to dismiss the petition on the grounds of lack of
jurisdiction, lack of cause of action, and in view of the pending seizure and forfeiture
proceedings. The Court of First Instance held resolution on the motion to dismiss in
abeyance pending decision on the merits. On December 14, 1964, the Court of First
Instance of Manila issued a preventive and mandatory injunction, on prayer by
Francindy Commercial, upon a bond of P20,000.00. The Commissioner of Customs
and the Collector of Customs sought the lifting of the preliminary and mandatory
injunction, and the resolution of their motion to dismiss. The Court of First Instance
of Manila, however, on January 12, 1965, ordered them to comply with the
preliminary and mandatory injunction, upon the filing by Francindy Commercial of an
additional bond of P50,000.00. Said customs authorities thereupon filed with this
Court, on January 14, 1965, a petition for certiorari and prohibition with preliminary
injunction. In resolving the question raised in that case, this Court held:
This petition raises two related issues: first, has the Customs bureau
jurisdiction to seize the goods and institute forfeiture proceedings against
them? and (2) has the Court of First Instance jurisdiction to entertain the
petition for mandamus to compel the Customs authorities to release the
goods?
Francindy Commercial contends that since the petition in the Court of
first Instance was filed (on October 26, 1964) ahead of the issuance of the
Customs warrant of seizure and forfeiture (on November 12, 1964),the
Customs bureau should yield the jurisdiction of the said court.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 175
The record shows, however, that the goods in question were actually
seized on October 6, 1964, i.e., before Francindy Commercial sued in court.
The purpose of the seizure by the Customs bureau was to verify whether or
not Custom duties and taxes were paid for their importation. Hence, on
December 23, 1964, Customs released 22 bales thereof, for the same were
found to have been released regularly from the Cebu Port (Petition Annex
"L"). As to goods imported illegally or released irregularly from Customs
custody, these are subject to seizure under Section 2530 m. of the Tariff and
Customs Code (RA 1957).
The Bureau of Customs has jurisdiction and power, among others to
collect revenues from imported articles, fines and penalties and suppress
smuggling and other frauds on customs; and to enforce tariff and customs
laws (Sec. 602, Republic Act 1957).
The goods in question are imported articles entered at the Port of
Cebu. Should they be found to have been released irregularly from Customs
custody in Cebu City, they are subject to seizure and forfeiture, the
proceedings for which comes within the jurisdiction of the Bureau of
Customs pursuant to Republic Act 1937.
Said proceeding should be followed; the owner of the goods may set
up defenses therein (Pacis v. Averia, L-22526, Nov. 20, 1966.) From the
decision of the Commissioner of Customs appeal lies to the Court of Tax
Appeals, as provided in Sec. 2402 of Republic Act 1937 and Sec. 11 of
Republic Act, 1125. To permit recourse to the Court of First Instance in
cases of seizure of imported goods would in effect render ineffective the
power of the Customs authorities under the Tariff and Customs Code and
deprive the Court of Tax Appeals of one of its exclusive appellate
jurisdictions. As this Court has ruled in Pacis v. Averia, supra, Republic Acts
1937 and 1125 vest jurisdiction over seizure and forfeiture proceedings
exclusively upon the Bureau of Customs and the Court of Tax Appeals. Such
law being special in nature, while the Judiciary Act defining the jurisdiction
of Courts of First Instance is a general legislation, not to mention that the
former are later enactments, the Court of First Instance should yield to the
jurisdiction of the Customs authorities.
It is the settled rule, therefore, that the Bureau of Customs acquires exclusive
jurisdiction over imported goods, for the purposes of enforcement of the customs
laws, from the moment the goods are actually in its possession or control, even if no
warrant of seizure or detention had previously been issued by the Collector of
Customs in connection with seizure and forfeiture proceedings. In the present case,
the Bureau of Customs actually seized the goods in question on November 4, 1966,

and so from that date the Bureau of Customs acquired jurisdiction over the goods for
the purposes of the enforcement of the tariff and customs laws, to the exclusion of
the regular courts. Much less then would the Court of First Instance of Manila have
jurisdiction over the goods in question after the Collector of Customs had issued the
warrant of seizure and detention on January 12, 1967. 10And so, it cannot be said, as
respondents contend, that the issuance of said warrant was only an attempt to divest
the respondent Judge of jurisdiction over the subject matter of the case. The court
presided by respondent Judge did not acquire jurisdiction over the goods in question
when the petition for mandamus was filed before it, and so there was no need of
divesting it of jurisdiction. Not having acquired jurisdiction over the goods, it follows
that the Court of First Instance of Manila had no jurisdiction to issue the questioned
order of March 7, 1967 releasing said goods.
Respondents also aver that petitioner Martin Alagao, an officer of the Manila
Police Department, could not seize the goods in question without a search warrant.
This contention cannot be sustained. The Chief of the Manila Police Department,
Ricardo G. Papa, having been deputized in writing by the Commissioner of Customs,
could, for the purposes of the enforcement of the customs and tariff laws, effect
searches, seizures, and arrests, 11 and it was his duty to make seizure, among others,
of any cargo, articles or other movable property when the same may be subject to
forfeiture or liable for any fine imposed under customs and tariff laws. 12 He could
lawfully open and examine any box, trunk, envelope or other container wherever
found when he had reasonable cause to suspect the presence therein of dutiable
articles introduced into the Philippines contrary to law; and likewise to stop, search
and examine any vehicle, beast or person reasonably suspected of holding or
conveying such article as aforesaid. 13 It cannot be doubted, therefore, that petitioner
Ricardo G. Papa, Chief of Police of Manila, could lawfully effect the search and seizure
of the goods in question. The Tariff and Customs Code authorizes him to demand
assistance of any police officer to effect said search and seizure, and the latter has
the legal duty to render said assistance. 14This was what happened precisely in the
case of Lt. Martin Alagao who, with his unit, made the search and seizure of the two
trucks loaded with the nine bales of goods in question at the Agrifina Circle. He was
given authority by the Chief of Police to make the interception of the cargo. 15
Petitioner Martin Alagao and his companion policemen had authority to effect
the seizure without any search warrant issued by a competent court. The Tariff and
Customs Code does not require said warrant in the instant case. The Code authorizes
persons having police authority under Section 2203 of the Tariff and Customs Code to
enter, pass through or search any land, inclosure, warehouse, store or building, not
being a dwelling house; and also to inspect, search and examine any vessel or
aircraft and any trunk, package, or envelope or any person on board, or to stop and
search and examine any vehicle, beast or person suspected of holding or conveying
any dutiable or prohibited article introduced into the Philippines contrary to law,
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 176
without mentioning the need of a search warrant in said cases. 16 But in the search of
a dwelling house, the Code provides that said "dwelling house may be entered and
searched only upon warrant issued by a judge or justice of the peace. . . ." 17 It is our
considered view, therefor, that except in the case of the search of a dwelling house,
persons exercising police authority under the customs law may effect search and
seizure without a search warrant in the enforcement of customs laws.
Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R.,
790, 799, wherein the court, considering a legal provision similar to Section 2211 of
the Philippine Tariff and Customs Code, said as follows:
Thus contemporaneously with the adoption of the 4th Amendment,
we find in the first Congress, and in the following second and fourth
Congresses, a difference made as to the necessity for a search warrant
between goods subject to forfeiture, when concealed in a dwelling house of
similar place, and like goods in course of transportation and concealed in a
movable vessel, where readily they could be put out of reach of a search
warrant. . . .
Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at
L.231, 232, chap. 94), it was made lawful for customs officers not only to
board and search vessels within their own and adjoining districts, but also to
stop, search and examine any vehicle, beast or person on which or whom
they should suspect there was merchandise which was subject to duty, or
had been introduced into the United States in any manner contrary to law,
whether by the person in charge of the vehicle or beast or otherwise, and if
they should find any goods, wares, or merchandise thereon, which they had
probably cause to believe had been so unlawfully brought into the country,
to seize and secure the same, and the vehicle or beast as well, for trial and
forfeiture. This Act was renewed April 27, 1816 (3 Sta. at L. 315, chap. 100),
for a year and expired. The Act of February 28, 1865, revived § 2 of the Act
of 1815, above described, chap. 67, 13 Stat. at L. 441. The substance of this
section was re-enacted in the 3d section of the Act of July 18, 1866, chap.
201, 14 Stat. at L. 178, and was thereafter embodied in the Revised Statutes
as § 3061, Comp. Stat. § 5763, 2 Fed. Stat. Anno. 2d ed. p. 1161. Neither §
3061 nor any of its earlier counterparts has ever been attacked as
unconstitutional. Indeed, that section was referred to and treated as
operative by this court in Von Cotzhausen v. Nazro, 107 U.S. 215, 219, 27 L.
ed. 540, 541, 2 Sup. Ct. Rep. 503. . . .
In the instant case, we note that petitioner Martin Alagao and his companion
policemen did not have to make any search before they seized the two trucks and
their cargo. In their original petition, and amended petition, in the court below

Remedios Mago and Valentin Lanopa did not even allege that there was a
search. 18 All that they complained of was,
That while the trucks were on their way, they
were intercepted without any search warrant near the Agrifina Circle and
taken to the Manila Police Department, where they were detained.
But even if there was a search, there is still authority to the effect that no
search warrant would be needed under the circumstances obtaining in the instant
case. Thus, it has been held that:
The guaranty of freedom from unreasonable searches and seizures is
construed as recognizing a necessary difference between a search of a
dwelling house or other structure in respect of which a search warrant may
readily be obtained and a search of a ship, motorboat, wagon, or automobile
for contraband goods, where it is not practicable to secure a warrant
because the vehicle can be quickly moved out of the locality or jurisdiction in
which the warrant must be sought. (47 Am. Jur., pp. 513-514, citing Carroll
v. United States, 267 U.S. 132, 69 L. ed., 543, 45 S. Ct., 280, 39 A.L.R.,
790; People v. Case, 320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686.)
In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686),
the question raised by defendant's counsel was whether an automobile truck or an
automobile could be searched without search warrant or other process and the goods
therein seized used afterwards as evidence in a trial for violation of the prohibition
laws of the State. Same counsel contended the negative, urging the constitutional
provision forbidding unreasonable searches and seizures. The Court said:
. . . Neither our state nor the Federal Constitution directly prohibits
search and seizure without a warrant, as is sometimes asserted. Only
"unreasonable" search and seizure is forbidden. . . .
. . . The question whether a seizure or a search is unreasonable in
the language of the Constitution is a judicial and not a legislative question;
but in determining whether a seizure is or is not unreasonable, all of the
circumstances under which it is made must be looked to.
The automobile is a swift and powerful vehicle of recent
development, which has multiplied by quantity production and taken
possession of our highways in battalions until the slower, animal-drawn
vehicles, with their easily noted individuality, are rare. Constructed as
covered vehicles to standard form in immense quantities, and with a
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 177
capacity for speed rivaling express trains, they furnish for successful
commission of crime a disguising means of silent approach and swift escape
unknown in the history of the world before their advent. The question of
their police control and reasonable search on highways or other public
places is a serious question far deeper and broader than their use in so-
called "bootleging" or "rum running," which is itself is no small matter. While
a possession in the sense of private ownership, they are but a vehicle
constructed for travel and transportation on highways. Their active use is
not in homes or on private premises, the privacy of which the law especially
guards from search and seizure without process. The baffling extent to
which they are successfully utilized to facilitate commission of crime of all
degrees, from those against morality, chastity, and decency, to robbery,
rape, burglary, and murder, is a matter of common knowledge. Upon that
problem a condition, and not a theory, confronts proper administration of
our criminal laws. Whether search of and seizure from an automobile upon a
highway or other public place without a search warrant is unreasonable is in
its final analysis to be determined as a judicial question in view of all the
circumstances under which it is made.
Having declared that the seizure by the members of the Manila Police
Department of the goods in question was in accordance with law and by that seizure
the Bureau of Customs had acquired jurisdiction over the goods for the purpose of
the enforcement of the customs and tariff laws, to the exclusion of the Court of First
Instance of Manila, We have thus resolved the principal and decisive issue in the
present case. We do not consider it necessary, for the purposes of this decision, to
discuss the incidental issues raised by the parties in their pleadings.
WHEREFORE, judgment is hereby rendered, as follows:
(a) Granting the writ of certiorari and prohibition prayed for by petitioners;
(b) Declaring null and void, for having been issued without jurisdiction, the
order of respondent Judge Hilarion U. Jarencio, dated March 7, 1967, in Civil Code
No. 67496 of the Court of First Instance of Manila;
(c) Declaring permanent the preliminary injunction issued by this Court on
March 31, 1967 restraining respondent Judge from executing, enforcing and/or
implementing his order of March 7, 1967 in Civil Case No. 67496 of the Court of First
Instance of Manila, and from proceeding in any manner in said case;
(d) Ordering the dismissal of Civil Case No. 67496 of the Court of First
Instance of Manila; and1äwphï1.ñët
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 178

(e) Ordering the private respondent, Remedios Mago, to pay the costs.

It is so ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Sanchez, Castro,
Angeles and Fernando, JJ., concur.1äwphï1.ñët

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88017 January 21, 1991
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LO HO WING alias PETER LO, LIM CHENG HUAT alias ANTONIO LIM and
REYNALDO TIA y SANTIAGO, defendants. LO HO WING alias PETER
LO, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Segundo M. Gloria, Jr. for defendant-appellant.
GANCAYCO, J.:
This case involves the unlawful transport of metamphetamine, a regulated drug under
Republic Act No. 6425, as amended. One of its derivatives is metamphetamine
hydrochloride, notoriously known in street parlance as "shabu" or "poor man's
cocaine."
Appellant Peter Lo, together with co-accused Lim Cheng Huat alias Antonio Lim and
Reynaldo Tia, were charged with a violation of Section 15, Article III of the
aforementioned statute otherwise known as the Dangerous Drugs Act of 1972, before
Branch 114 of the Regional Trial Court of Pasay City. Only appellant and co-accused
Lim Cheng Huat were convicted. They were sentenced to suffer life imprisonment, to
pay a fine of P25,000.00 each, and to pay the costs. Their co-accused Reynaldo Tia
was discharged as a state witness. The pertinent portion of the information reads as
follows:
That on or about the 6th day of October, 1987, in Pasay City, Metro Manila,
and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually helping one
another, without authority of law, did then and there willfully, unlawfully and
feloniously deliver, dispatch or transport 56 teabags of Metamphetamine, a
regulated drug.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 179
Contrary to law.1
The antecedent facts of the case as found by the trial court are as follows:
In July 1987, the Special Operations Group, a unit of the Criminal Investigation
Service (CIS) of the Philippine Constabulary (PC), received a tip from one of its
informers about an organized group engaged in the importation of illegal drugs,
smuggling of contraband goods, and gunrunning. After an evaluation of the
information thus received, a project codenamed "OPLAN SHARON 887" was created
in order to bust the suspected syndicate.
As part of the operations, the recruitment of confidential men and "deep penetration
agents' was carried out to infiltrate the crime syndicate. One of those recruited was
the discharged accused, Reynaldo Tia (hereinafter referred to as Tia).
Tia was introduced to his co-accused Lim Cheng Huat (hereinafter referred to as Lim)
by another confidential agent named George on August 3, 1987. Lim expressed a
desire to hire a male travelling companion for his business nips abroad. Tia offered
his services and was hired.
Lim and Tia met anew on several occasions to make arrangements for a trip to China.
In the course of those meetings, Tia was introduced to Peter Lo (hereinafter referred
to as appellant), whom Tia found out to be the person he was to accompany to China
in lieu of Lim.
As a "deep penetration agent," Tia regularly submitted reports of his undercover
activities on the suspected criminal syndicate. Meanwhile, the officer-in-charge of
OPLAN SHARON 887, Captain Luisito Palmera, filed with his superiors the reports
submitted to him, and officially informed the Dangerous Drugs Board of Tia's
activities.
On October 4, 1987, appellant and Tia left for Hongkong on board a Philippine
Airlines flight. Before they departed, Tia was able to telephone Captain Palmera to
inform him of their expected date of return to the Philippines as declared in his
round-trip plane ticket-October 6, 1987 at two o'clock in the afternoon.
The day after they arrived in Hongkong, Tia and appellant boarded a train bound for
Guangzhou, in the People's Republic of China. Upon arriving there, they checked in at
a hotel, and rested for a few hours. The pair thereafter went to a local store where
appellant purchased six (6) tin cans of tea. Tia saw the paper tea bags when the cans
were opened for examination during the purchase. Afterwards, they returned to the
hotel. Appellant kept the cans of tea in his hotel room. That evening, Tia went to

appellant's room to talk to him. Upon entering, he saw two other men with appellant.
One was fixing the tea bags, while the other was burning substance on a piece of
aluminum foil using a cigarette lighter. Appellant joined the second man and sniffed
the smoke emitted by the burning substance. Tia asked the latter what they would be
bringing back to the Philippines. He was informed that their cargo consisted of
Chinese drugs. Tia stayed in the room for about twenty minutes before going back to
his room to sleep.
The next day, October 6,1987, the two returned to Manila via a China Airlines flight.
Appellant had with him his red traveling bag with wheels. Before departing from
Guangzhou however, customs examiners inspected their luggage. The tin cans of tea
were brought out from the traveling bag of appellant. The contents of the cans were
not closely examined, and appellant was cleared along with Tia.
The plane landed at the Ninoy Aquino International Airport (NAIA), then named
Manila International Airport, on schedule. Lim met the newly-arrived pair at the
arrival area. Lim talked to appellant, while Tia, upon being instructed, looked after
their luggage. After Lim and appellant finished their conversation, the latter hailed a
taxicab. Appellant and Tia boarded the taxicab after putting their luggage inside the
back compartment of the vehicle. Lim followed in another taxi cab.
Meanwhile, a team composed of six operatives headed by Captain Palmera was
formed to act on the tip given by Tia. On the expected date of arrival, the team
proceeded to the NAIA. Captain Palmera notified the Narcotics Command (NARCOM)
Detachment at the airport for coordination. After a briefing, the operatives were
ordered to take strategic positions around the arrival area. Two operatives stationed
just outside the arrival area were the first ones to spot the suspects emerging
therefrom. Word was passed on to the other members of the team that the suspects
were in sight. Appellant was pulling along his red traveling bag while Tia was carrying
a shoulder bag. The operatives also spotted Lim meeting their quarry.
Upon seeing appellant and Tia leave the airport, the operatives who first spotted
them followed them. Along Imelda Avenue, the car of the operatives overtook the
taxicab ridden by appellant and Tia and cut into its path forcing the taxi driver to stop
his vehicle. Meanwhile, the other taxicab carrying Lim sped away in an attempt to
escape. The operatives disembarked from their car, approached the taxicab, and
asked the driver to open the baggage compartment. Three pieces of luggage were
retrieved from the back compartment of the vehicle. The operatives requested from
the suspects permission to search their luggage. A tin can of tea was taken out of the
red traveling bag owned by appellant. Sgt. Roberto Cayabyab, one of the operatives,
pried the lid open, pulled out a paper tea bag from the can and pressed it in the
middle to feel its contents. Some crystalline white powder resembling crushed alum
came out of the bag. The sergeant then opened the tea bag and examined its
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 180
contents more closely. Suspecting the crystalline powder to be a dangerous drug, he
had the three traveling bags opened for inspection. From the red traveling bag, a
total of six (6) tin cans were found, including the one previously opened. Nothing else
of consequence was recovered from the other bags. Tia and appellant were taken to
the CIS Headquarters in Quezon City for questioning.
Meanwhile, the second taxicab was eventually overtaken by two other operatives on
Retiro Street, Quezon City. Lim was likewise apprehended and brought to the CIS
Headquarters for interrogation.
During the investigation of the case, the six tin cans recovered from the traveling bag
of appellant were opened and examined. They contained a total of fifty-six (56) paper
tea bags with white crystalline powder inside instead of tea leaves.
The tea bag opened by Sgt. Cayabyab during the search and seizure was sent to the
PC-INP Crime Laboratory for preliminary examination. Tests conducted on a sample
of the crystalline powder inside the tea bag yielded a positive result that the
specimen submitted was metamphetamine. Samples from each of the fifty-six (56)
tea bags were similarly tested. The tests were also positive for metamphetamine.
Hence, the three suspects were indicted.
In rendering a judgment of conviction, the trial court gave full credence to the
testimonies of the government anti-narcotics operatives, to whom the said court
applied the well-settled presumption of regularity in the performance of official duties.
Appellant now assigns three errors alleged to have been committed by the trial court,
namely:
I.
THE TRIAL COURT ERRED IN NOT DECLARING THE SEARCH AND SEIZURE
ON THE ACCUSED AS ILLEGAL.
II.
THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY OF
DELIVERING, DISPATCHING OR TRANSPORTING METAMPHETAMINE, A
REGULATED DRUG.
III.

THE TRIAL COURT ERRED IN DISCHARGING REYNALDO TIA TO TESTIFY
FOR THE PROSECUTION.2
We affirm.
Anent the first assignment of error, appellant contends that the warrantless search
and seizure made against the accused is illegal for being violative of Section 2, Article
III of the Constitution. He reasons that the PC-CIS officers concerned could very well
have procured a search warrant since they had been informed of the date and time of
a arrival of the accused at the NAIA well ahead of time, specifically two (2) days in
advance. The fact that the search and seizure in question were made on a moving
vehicle, appellant argues, does not automatically make the warrantless search herein
fall within the coverage of the well-known exception to the rule of the necessity of a
valid warrant to effect a search because, as aforementioned, the anti-narcotics
agents had both time and opportunity to secure a search warrant.
The contentions are without merit. As correctly averred by appellee, that search and
seizure must be supported by a valid warrant is not an absolute rule. There are at
least three (3) well-recognized exceptions thereto. As set forth in the case
of Manipon, Jr. vs. Sandiganbayan,3 these are: [1] a search incidental to an arrest,
[2] a search of a moving vehicle, and [3] seizure of evidence in plain view (emphasis
supplied). The circumstances of the case clearly show that the search in question was
made as regards a moving vehicle. Therefore, a valid warrant was not necessary to
effect the search on appellant and his co-accused.
In this connection, We cite with approval the averment of the Solicitor General, as
contained in the appellee's brief, that the rules governing search and seizure have
over the years been steadily liberalized whenever a moving vehicle is the object of
the search on the basis of practicality. This is so considering that before a warrant
could be obtained, the place, things and persons to be searched must be described to
the satisfaction of the issuing judge—a requirement which borders on the impossible
in the case of smuggling effected by the use of a moving vehicle that can transport
contraband from one place to another with impunity.4
We might add that a warrantless search of a moving vehicle is justified on the ground
that "it is not practicable to secure a warrant because the vehicle can be quickly
moved out of the locality or jurisdiction in which the warrant must be sought."5
In the instant case, it was firmly established from the factual findings of the trial
court that the authorities had reasonable ground to believe that appellant would
attempt to bring in contraband and transport it within the country. The belief was
based on intelligence reports gathered from surveillance activities on the suspected
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 181
syndicate, of which appellant was touted to be a member. Aside from this, they were
also certain as to the expected date and time of arrival of the accused from China.
But such knowledge was clearly insufficient to enable them to fulfill the requirements
for the issuance of a search warrant. Still and all, the important thing is that there
was probable cause to conduct the warrantless search, which must still be present in
such a case.
The second assignment of error is likewise lacking in merit. Appellant was charged
and convicted under Section 15, Article III of Republic Act No. 6425, as amended,
which reads:
The penalty of life imprisonment to death and a fine ranging from twenty
thousand to thirty thousand pesos shall be imposed upon any person who,
unless authorized by law, shall sell, dispose, deliver, transport or
distribute any regulated drug (emphasis supplied).
The information charged the accused of delivering, transporting or dispatching fifty-
six (56) tea bags containing metamphetamine, a regulated drug. The conjunction "or'
was used, thereby implying that the accused were being charged of the three
specified acts in the alternative. Appellant argues that he cannot be convicted of
"delivery" because the term connotes a source and a recipient, the latter being
absent under the facts of the case. It is also argued that "dispatching' cannot apply
either since appellant never sent off or disposed of drugs. As for "transporting,"
appellant contends that he cannot also be held liable therefor because the act of
transporting necessarily requires a point of destination, which again is non- existent
under the given facts.
The contentions are futile attempts to strain the meaning of the operative acts of
which appellant and his co-accused were charged in relation to the facts of the case.
There is no doubt that law enforcers caught appellant and his co-accused in flagrante
delicto of transporting a prohibited drug. The term "transport" is defined as "to carry
or convey from one place to another."6 The operative words in the definition are "to
carry or convey." The fact that there is actual conveyance suffices to support a
finding that the act of transporting was committed. It is immaterial whether or not
the place of destination is reached. Furthermore, the argument of appellant gives rise
to the illogical conclusion that he and his co- accused did not intend to bring the
metamphetamine anywhere, i.e. they had no place of destination.
The situation in the instant case is one where the transport of a prohibited drug was
interrupted by the search and arrest of the accused. Interruption necessarily infers
that an act had already been commenced. Otherwise, there would be nothing to
interrupt.
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 182

Therefore, considering the foregoing, since the information included the acts of WHEREFORE, the decision appealed from is hereby AFFIRMED in toto and the appeal
delivery, dispatch or transport, proof beyond reasonable doubt of the commission is thereby DISMISSED. No costs.
of any of the acts so included is sufficient for conviction under Section 15, Article III
of Republic Act No. 6425, as amended. SO ORDERED.

Moreover, the act of transporting a prohibited drug is a malum prohibitum because it Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.
is punished as an offense under a special law. It is a wrong because it is prohibited
by law. Without the law punishing the act, it cannot be considered a wrong. As such,
the mere commission of said act is what constitutes the offense punished and suffices
to validly charge and convict an individual caught committing the act so punished,
regardless of criminal intent.7

As to the third assigned error, appellant contests the discharge of accused Reynaldo
Tia to testify for the prosecution on the ground that there was no necessity for the
same. Appellant argues that deep penetration agents such as Tia "have to take risks
and accept the consequences of their actions."8 The argument is devoid of merit. The
discharge of accused Tia was based on Section 9, Rule 119 of the Rules of Court,
which reads in part:

Sec. 9. Discharge of the accused to be state witness. — When two or more

persons are jointly charged with the commission of any offense, upon
motion of the prosecution before resting its case, the court may directone or
more of the accused to be discharged with their consent so that they may
be witnesses for the state . . . (emphasis supplied).

As correctly pointed out by the Solicitor General, the discharge of an accused is left to
the sound discretion of the lower court.1âwphi1 The trial court has the exclusive
responsibility to see that the conditions prescribed by the rule exist.9 In the instant
case, appellant does not allege that any of the conditions for the discharge had not
been met by the prosecution. Therefore, the discharge, as ordered by the trial court,
stands.

Finally, appellant alleges that the testimony of Sgt. Roberto Cayabyab regarding the
facts surrounding the commission of the offense proves that the discharge of accused
Tia is unnecessary. The allegation is baseless. Appellant himself admits that the
sergeant's testimony corroborates the testimony of the discharged accused. The fact
of corroboration of the testimonies bolsters the validity of the questioned discharge
precisely because paragraph (a) of the aforequoted rule on discharge requires that
the testimony be substantially corroborated in its material points. The corroborative
testimony of the PC-CIS operative does not debunk the claim of the prosecution that
there is absolute necessity for the testimony of accused Tia.

THIRD DIVISION
[G.R. No. 143944. July 11, 2002]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BASHER
BONGCARAWAN y MACARAMBON, accused-appellant.
DECISION
PUNO, J.:
This is an appeal from the Decision[1] dated December 27, 1999 of the Regional
Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, finding accused
Basher Bongcarawan y Macarambon guilty beyond reasonable doubt of violation of
Section 16, Article III of Republic Act No. 6425[2] as amended, and sentencing him to
suffer the penalty of reclusion perpetua, and to pay a fine of Five Hundred Thousand
Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency.
Accused Basher Bongcarawan y Macarambon was charged in an Information
which reads, thus:
That on or about March 13, 1999, in the City of Iligan, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, without authority of law, did
then and there wilfully, unlawfully and feloniously have in his possession, custody and
control eight (8) packs of Methamphetamine Hydrochloride, a regulated drug
commonly known as Shabu, weighing approximately 400 grams, without the
corresponding license or prescription.
Contrary to and in violation of Section 16, Article III of RA 6425, otherwise known as
the Dangerous Drugs Act of 1972, as amended by RA 7659.[3]
During the arraignment, the accused pleaded not guilty. Trial ensued.
Evidence for the prosecution shows that on March 11, 1999, an interisland
passenger ship, M/V Super Ferry 5, sailed from Manila to Iligan City. At about 3:00 a.m.
on March 13, 1999, the vessel was about to dock at the port of Iligan City when its
security officer, Mark Diesmo, received a complaint from passenger Lorena Canoy
about her missing jewelry. Canoy suspected one of her co-passengers at cabin no. 106
as the culprit. Diesmo and four (4) other members of the vessel security force
accompanied Canoy to search for the suspect whom they later found at the economy
section.[4] The suspect was identified as the accused, Basher Bongcarawan. The
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 183
accused was informed of the complaint and was invited to go back to cabin no.
106. With his consent, he was bodily searched, but no jewelry was found. He was then
escorted by two (2) security agents back to the economy section to get his
baggage. The accused took a Samsonite suitcase and brought this back to the
cabin. When requested by the security, the accused opened the suitcase, revealing a
brown bag and small plastic packs containing white crystalline substance. Suspecting
the substance to be shabu, the security personnel immediately reported the matter to
the ship captain and took pictures of the accused beside the suitcase and its
contents. They also called the Philippine Coast Guard for assistance. [5] At about 6:00
a.m., Lt. Robert Patrimonio, YN Aurelio Estoque, CD2 Phoudinie Lantao and RM3
Merchardo De Guzman of the Philippine Coast Guard arrived and took custody of the
accused and the seized items--the Samsonite suitcase, a brown bag[6] and eight (8)
small plastic packs of white crystalline substance.[7] When asked about the contraband
articles, the accused explained that he was just requested by a certain Alican Alex
Macapudi to bring the suitcase to the latters brother in Iligan City. [8] The accused and
the seized items were later turned over by the coast guard to the Presidential Anti-
Organized Crime Task Force (PAOCTF). Chief Inspector Graciano Mijares and his men
brought the accused to the PAOCTF Headquarters,[9] while the packs of white
crystalline substance were sent to the NBI Regional Office in Cagayan de Oro City for
laboratory examination. NBI Forensic Chemist Nicanor Cruz later confirmed the
substance to be methamphetamine hydrochloride, commonly known as shabu,
weighing 399.3266 grams.[10]
The accused testified and proffered his own version. On March 11, 1999, at about
10:00 p.m., he was in Quiapo, Manila where he met Alican Alex Macapudi, a neighbor
who has a store in Marawi City. He was requested by Macapudi to bring a Samsonite
suitcase containing sunglasses and watches to Iligan City, and to give it to Macapudis
brother at the Iligan port. He boarded the M/V Super Ferry 5 on the same night,
carrying a big luggage full of clothes, a small luggage or maleta containing the
sunglasses and brushes he bought from Manila, and the Samsonite suitcase of
Macapudi.[11] He stayed at cabin no. 106. At about 4:00 a.m of March 13, 1999, as the
vessel was about to dock at the Iligan port, he took his baggage and positioned himself
at the economy section to be able to disembark ahead of the other passengers. There,
he met a friend, Ansari Ambor. While they were conversing, five (5) members of the
vessel security force and a woman whom he recognized as his co-passenger at cabin
no. 106 came and told him that he was suspected of stealing jewelry. He voluntarily
went with the group back to cabin no. 106 where he was frisked. Subsequently, he was
asked to get his baggage, so he went back to the economy section and took the big
luggage and Macapudis Samsonite suitcase. He left the small maleta containing
sunglasses and brushes for fear that they would be confiscated by the security
personnel. When requested, he voluntarily opened the big luggage, but refused to do
the same to the Samsonite suitcase which he claimed was not his and had a secret
combination lock. The security personnel forcibly opened the suitcase and found packs
of white crystalline substance inside which they suspected to be shabu. They took

pictures of him with the merchandise, and asked him to sign a turn over receipt which
was later given to the Philippine Coast Guard, then to the PAOCTF.[12]
On December 27, 1999, the trial court rendered judgment, the dispositive portion
of which reads:
WHEREFORE, the court finds the accused Basher Bongcarawan y Macarambon
GUILTY beyond reasonable doubt as principal of the offense of violation of Section
16, Art. III, R.A. No. 6425 as amended by R.A. No. 7659 and hereby imposes upon
him the penalty of RECLUSION PERPETUA and a fine of FIVE HUNDRED THOUSAND
(P500,000.00) PESOS, without subsidiary imprisonment in case of insolvency.
Having been under preventive imprisonment since March 13, 1999 until the present,
the period of such preventive detention shall be credited in full in favor of the
accused in the service of his sentence.
The 399.3266 grams of methamphetamine hydrochloride or shabu is hereby ordered
delivered to the National Bureau of Investigation for proper disposition.
SO ORDERED.[13]
Hence, this appeal where the accused raises the following assignment of errors:
I.
THE COURT A QUO ERRED IN SO HOLDING THAT THE DRUG CONFISCATED IS
ADMISSIBLE IN EVIDENCE AGAINST THE ACCUSED/APPELLANT.
II.
THE COURT A QUO ERRED IN SO HOLDING THAT THE APPELLANT OWNED THE
CONFISCATED EVIDENCE AND THEREFORE ADMISSIBLE IN EVIDENCE AGAINST
HIM.[14]
On the first assignment of error, the accused-appellant contends that the
Samsonite suitcase containing the methamphetamine hydrochloride or shabu was
forcibly opened and searched without his consent, and hence, in violation of his
constitutional right against unreasonable search and seizure. Any evidence acquired
pursuant to such unlawful search and seizure, he claims, is inadmissible in evidence
against him. He also contends that People v. Marti[15] is not applicable in this case
because a vessel security personnel is deemed to perform the duties of a policeman.
C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 184
The contentions are devoid of merit.
The right against unreasonable search and seizure is a fundamental right
protected by the Constitution.[16] Evidence acquired in violation of this right shall be
inadmissible for any purpose in any proceeding.[17] Whenever this right is challenged,
an individual may choose between invoking the constitutional protection or waiving his
right by giving consent to the search and seizure. It should be stressed, however, that
protection is against transgression committed by the government or its agent. As held
by this Court in the case of People v. Marti,[18] [i]n the absence of governmental
interference, liberties guaranteed by the Constitution cannot be invoked against the
State.[19] The constitutional proscription against unlawful searches and seizures applies
as a restraint directed only against the government and its agencies tasked with the
enforcement of the law. Thus, it could only be invoked against the State to whom the
restraint against arbitrary and unreasonable exercise of power is imposed.[20]
In the case before us, the baggage of the accused-appellant was searched by the
vessel security personnel. It was only after they found shabu inside the suitcase that
they called the Philippine Coast Guard for assistance. The search and seizure of the
suitcase and the contraband items was therefore carried out without government
intervention, and hence, the constitutional protection against unreasonable search and
seizure does not apply.
There is no merit in the contention of the accused-appellant that the search and
seizure performed by the vessel security personnel should be considered as one
conducted by the police authorities for like the latter, the former are armed and tasked
to maintain peace and order. The vessel security officer in the case at bar is a private
employee and does not discharge any governmental function. In contrast, police
officers are agents of the state tasked with the sovereign function of enforcement of
the law. Historically and until now, it is against them and other agents of the state that
the protection against unreasonable searches and seizures may be invoked.
On the second assignment of error, the accused-appellant contends that he is not
the owner of the Samsonite suitcase and he had no knowledge that the same contained
shabu. He submits that without knowledge or intent to possess the dangerous drug,
he cannot be convicted of the crime charged.[21]
We are not persuaded.
In a prosecution for illegal possession of dangerous drugs, the following facts
must be proven beyond reasonable doubt, viz: (1) that the accused is in possession of
the object identified as a prohibited or a regulated drug; (2) that such possession is
not authorized by law; and (3) that the accused freely and consciously possessed the
said drug.[22] The first two elements were sufficiently proven in this case, and were in
fact undisputed. We are left with the third.
 C o n s t i t u t i o n a l L a w I I S e s s i o n 2 P a g e | 185

As early as 1910 in the case of United States v. Tan Misa,[23] this Court has violation of Section 16, Article III of Republic Act No. 6425, as amended, and sentencing
ruled that to warrant conviction, the possession of dangerous drugs must be with him to suffer the penalty of Reclusion Perpetua and to pay a fine of Five Hundred
knowledge of the accused, or that animus possidendi existed together with the Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency,
possession or control of such articles.[24] It has been ruled, however, that possession is AFFIRMED.
of dangerous drugs constitutes prima facie evidence of knowledge or animus
possidendi sufficient to convict an accused in the absence of a satisfactory explanation Costs against the accused-appellant.
of such possession.[25] Hence, the burden of evidence is shifted to the accused to SO ORDERED.
explain the absence of knowledge or animus possidendi.[26]
Panganiban, Sandoval-Gutierrez, and Carpio, JJ., concur.
In this respect, the accused-appellant has utterly failed. His testimony,
uncorroborated, self-serving and incredulous, was not given credence by the trial
court. We find no reason to disagree. Well-settled is the rule that in the absence of
palpable error or grave abuse of discretion on the part of the trial judge, the trial courts
evaluation of the credibility of witnesses will not be disturbed on appeal. [27] Moreover,
evidence must be credible in itself to deserve credence and weight in law. In this case,
the accused-appellant admits that when he was asked to get his baggage, he knew it
would be inspected.[28] Why he got the Samsonite suitcase allegedly not owned by him
and which had a combination lock known only to the owner remains unclear. He also
claims that he did not present his small maleta for inspection for fear that its contents
consisting of expensive sunglasses and brushes would be confiscated, [29] but he
brought the Samsonite suitcase which is not his and also contained expensive
sunglasses, and even watches.[30]

The things in possession of a person are presumed by law to be owned by

him.[31] To overcome this presumption, it is necessary to present clear and convincing
evidence to the contrary. In this case, the accused points to a certain Alican Alex
Macapudi as the owner of the contraband, but presented no evidence to support his
claim. As aptly observed by the trial judge:

First, who is Alex Macap[u]di aka Ali[c]an Macap[u]di? Does he really exist or simply
a figment of the imagination? He says that Alex Macap[u]di is a friend and a fellow
businessman who has a stall selling sunglasses in Marawi City. But no witnesses were
presented to prove that there is such a living, breathing, flesh and blood person
named Alex Macap[u]di who entrusted the Samsonite to the accused. Surely, if he
does exist, he has friends, fellow businessmen and acquaintances who could testify
and support the claim of the accused.[32]

Mere denial of ownership will not suffice especially if, as in the case at bar, it is the
keystone of the defense of the accused-appellant. Stories can easily be fabricated. It
will take more than bare-bone allegations to convince this Court that a courier of
dangerous drugs is not its owner and has no knowledge or intent to possess the same.

WHEREFORE, the decision of the Regional Trial Court of Iligan City, Branch 06,
in Criminal Case No. 06-7542, convicting accused-appellant Basher Bongcarawan of