WARRANTLESS SEARCH AND SEIZURE: Incidental to a lawful arrest When the rest of the team approached Guerrero and
errero and Separate informations for violation of Sec. 4, Art. II, of R.A. 6425,
PEOPLE OF THE PHILIPPINES VS. ROLANDO LUA Y NERI
[ G.R. Nos. 114224-25, April 26, 1996 ]
BELLOSILLO, J.:
This is an appeal from the decision[1] of the Regional Trial Court
of Caloocan City finding accused-appellant Rolando Lua y Neri
guilty of violating Sec. 4, Art. II, of R.A. No. 6425[2] as amended,
and of P.D. No. 1866.[3]
Pursuant to OPLAN SATURN, a program addressing the growing
drug problem in Bagong Silang, Caloocan City, a buy-bust
operation was conducted by police operatives for the
entrapment of Rolando Lua.
At 12 o'clock noon of 30 March 1991, Lt. Norberto Surara,
Commander of Bagong Silang Police Sub-station, Caloocan
City, and his men discussed plans to serve a search warrant on
alleged drug pusher Hilario Talavera and to conduct a buy-bust
operation against accused-appellant Rolando Lua alias
"Chekwa." To verify the report on the illegal drug activities of
appellant, Ulysses Orlino, a police informer, was dispatched to
the vicinó of Lua. A few moments later, Orlino returned
confirming the report on appellant's illegal operations near his
residence at Bo. Sto. Niño, Tala, Caloocan City. Two teams were
formed, one to conduct the buy-bust operation, and the other,
to serve the search warrant on Hilario Talavera. Police Officers
Constantino Guerrero, Marino Puno, Jose Marte and Alfredo
Antonio formed the buy-bust team. Guerrero was designated
as poseur-buyer. Before leaving the station Guerrero, in the
presence of SPO3 Perfecto Sobejana and other police officers,
marked with "X" and his initials "C.G." 3 P10-bills to be used in the
entrapment of appellant.
Guerrero and his buy-bust team arrived at Bo. Sto. Niño at 4
o'clock in the afternoon together with their informant Ulyssess
Orlino. Orlino pointed to Guerrero the appellant who was then
outside the door of his house. The team strategically positioned
themselves near a neighboring house while Guerrero
approached accused-appellant Lua and said, "Chekwa, pa
score nga," and simultaneously handed him the 3 marked P1O-
bills. Appellant took the money and went inside his house.
Shortly after, he returned with 3 small tea bags of marijuana
which he gave to Police Officer Guerrero. At this juncture,
Guerrero signaled to his companions to close in. He then
grabbed appellant by the hand after introducing himself as a
police officer and arrested him. Guerrero recovered the
marked money from the other hand of appellant.
appellant Lua, PO Marino Puno noticed something bulging from
the waistline of appellant so he immediately frisked him. Puno
lifted Lua's shirt and found a .38 cal. paltik in the latter's
possession. Guerrero who was standing beside the accused
grabbed the handgun which had two (2) live bullets and an
empty shell in the cylinder. When Lua was asked where he kept
the rest of the marijuana he unhesitatingly replied that they
were inside his house. Accompanied by the police operatives,
appellant went inside his house and in the presence of his wife
pointed to the police officers a soapbox containing a brick of
dried marijuana. Puno showed the marijuana brick to those
around him including appellant's household.
After the operation, appellant together with the pieces of
evidence against him, namely, 3 marked P10-bills with serial
numbers RB886096, PF245345, QF260152; 3 tea bags of
marijuana (5.3934 grams); marijuana brick inside a soapbox
(209.00 grams); and, a .38 cal. paltik with two (2) live bullets and
an empty shell, were surrendered to the team leader, SPO3
Perfecto Sobejana, and Lt. Surara who were both waiting at the
barangay hall. SPO3 Sobejana and Patrolmen Guerrero, Puno,
Antonio and Marte jointly executed a sworn statement on their
operation.
At six o'clock in the evening appellant Rolando Lua as well as
the pieces of evidence found in his possession were referred to
PO3 Gilbert Dioso for investigation.
On 1 April 1991 PO3 Dioso prepared a referral letter to the
National Bureau of Investigation for laboratory examination and
chemical analysis of the 3 tea bags and the brick of marijuana
wrapped in a newsprint and placed inside a plastic bag. The
following day, 2 April 1991, Dioso also prepared a referral letter
to the Inquest Fiscal of Caloocan City for proper evaluation and
disposition of the cases against appellant.
On the same day the National Bureau of Investigation Forensic
Chemist Alicia Liberato submitted her Reports Nos. DDM-91-249
and DDM-91-250 finding the specimens positive for marijuana.
Parenthetically, on 6 July 1992, PNP Senior Superintendent
Antonio T. Sierra, Chief of the Firearms and Explosive Office,
issued a certification that accused-appellant Rolando Lua was
not a licensed nor a registered firearm holder of any kind and
caliber after verifying the computerized master list of all
licensed firearm holders.
as amended, and for violation of P.D. 1866 were filed against
Rolando Lua.
The appellant has a different account of the events. He says
that at around 4 o'clock in the afternoon of 30 March 1991
while sleeping in his house with his 3-year old daughter he was
awakened from his sleep when a certain Resty, a security guard
of the Tala Leprosarium, handcuffed him. He asked Resty why,
but he received no answer. According to appellant Resty was
with three (3) other companions - Rodel Ginco who was also a
security guard at the Tala Leprosarium, Boy Mano who was a
civilian, and Police Officer Guerrero. Then he was boarded in
an owner-type jeep and brought to the other barangay in front
of Hilario Talavera' s house. He also claims he was transferred to
a parked mobile car where he saw Edgardo Calanday inside
the car also handcuffed. From where he was sitting he could
see the police operatives walking to and fro inside Talavera's
house. Then they were brought to the administration site outside
the Tala Leprosarium where they stayed for an hour, after which
they were brought to the Bagong Silang Detachment where
they were detained for three (3) days.
Appellant's neighbor, Catalino Hidacan, corroborated the
testimony of appellant. Hidacan testified that after the arrest
the persons who nabbed the appellant returned and entered
1
the latter's house. However, when they went out, they were
already carrying with them something wrapped in a newspaper
while one of them was holding a gun.
Appellant assigns the following errors to the trial court: (a) in
sustaining the prosecution and disregarding completely the
testimony of defense witness Catalino Hidacan; (b) in
according probative weight to the testimonies of the police
officers on the disputable presumption that they regularly
performed their duties thus disregarding the right of the
accused to be presumed innocent until proven guilty beyond
reasonable doubt; and, (c) in not taking judicial notice of his
physical condition when his hands were closed and clinched
because of Hansen's disease or leprosy so that it is highly
improbable to possess a firearm and violate P.D. 1866.
The thrust of this appeal is laid on the credibility of the witnesses.
Time and again this court has ruled that the findings of the lower
court respecting the credibility of witnesses are accorded great
weight and respect since it had the opportunity to observe the
demeanor of the witnesses as they testified before the court.
Unless substantial facts and circumstances have been
overlooked or misunderstood by the latter which if considered
would materially affect the result of the case, this court will
undauntedly sustain the findings of the lower court.
We find no compelling reason to overturn the decision of the
lower court. The appellant asseverates that the police arrested
him at all cost to save face and to project that OPLAN
SATURN was successfully carried out. Such allegation is a mere
conjecture bereft of factual basis. In drug related cases, the
accused would most often raise the defense of being framed
up. However, for that defense to prosper, the evidence
adduced must be clear and convincing. Like alibi, it is a weak
defense that is easy to concoct but difficult to prove. In the
absence of proof, the presumption is that the police officers
regularly performed their official duties. Moreover, the appellant
failed to convincingly show any ill motive on the part of
prosecution witnesses to testify falsely and to impute to him
such grave offenses. It is settled that where there is no evidence
to indicate that a principal prosecution witness was actuated
by improper motive, the presumption is that he was not so
actuated. He would not prevaricate and cause damnation to
one who brought him no harm or injury.[4]
Appellant would persuade us that the police narration of facts
could not be freed from material inconsistencies, thus the
disputable presumption that the police officers acted regularly
in pursuance of their official duties must be rendered
subordinate to the constitutional right of the accused to be
presumed innocent until proved guilty beyond reasonable
doubt.
We are not convinced. The imputed inconsistencies regarding
the time when the arresting officers arrived at the appellant's
residence and the date when the markings on the recovered
gun were placed do not affect the credibility of the
prosecution witnesses. This court finds the same too minor to
matter, the same having been satisfactorily explained by the
prosecution witnesses. Thus, in People v. Gonzales[5] we held
that testimonial discrepancies could be caused by the natural
fickleness of memory which tend to strengthen rather than
weaken credibility as they erase any suspicion of rehearsed
testimony. Contrary to appellant's claim, the guilt of the
accused has been established beyond reasonable doubt. The
testimony of PO Guerrero was sufficient to show that indeed
appellant committed the offenses with which he was charged.
It was established that appellant sold and delivered prohibited
drug to PO Guerrero who acted as poseur-buyer knowing fully
well that what he sold and delivered was a prohibited drug.
As regards the third assigned error, we do not find the same
compelling enough to exculpate the appellant. Leprosy or
Hansen's disease is a chronic granulomatous infection of
humans which attacks superficial tissues, especially the skin and
peripheral nerves.[6] The infection normally results in the loss of
touch but the patient does not really lose his motor functions.
Only in severe cases do trauma and secondary chronic
infections lead to loss of digits or distal extremities. [7] In the case
at bar, the appellant failed to show that he can no longer
make use of his hands, thus rendering him incapable of
committing the offenses with which he is being charged. The
disease does not deter him from possessing nor of using a
firearm in violation of P.D. No. 1866.
Having settled the issues raised by appellant, the equally
important matter as regards admissibility of the evidence should
likewise be passed upon. The buy-bust operation conducted by
the police operatives is a form of entrapment allowed by law.
The arrest of the appellant was lawful having been caught
in flagrante delicto. Consequently, there is no need for a
warrant for the seizure of the 3 tea bags of marijuana (5.3934
grams) the same being the fruit of the crime. With respect to the
body search made by Puno, the same was valid being
incidental to a lawful arrest. Therefore, the .38 cal. paltik and
the two (2) live bullets and the empty shell found in the cylinder
are admissible in evidence.
As regards the brick of marijuana found inside the appellant's
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 appellant's
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.
In sum, this court finds accused-appellant Rolando Lua guilty
beyond reasonable doubt of violating Sec. 4, Art. II, of R.A.
6425, as amended, under which the penalty of life
imprisonment to death and a fine ranging from twenty
thousand to thirty thousand pesos shall be imposed. However,
with the passage of R.A. 7659, which took effect on 31
December 1993, amending certain sections of The Dangerous
Drugs Act, the imposable penalty for the sale or delivery of
prohibited drug is prision correccional to reclusion temporal[8] if
the quantity involved is less than 750 grams of marijuana. Taking
into account that appellant is not shown to be a habitual
delinquent and the said amendatory provision being favorable
to him, the quantity of marijuana involved being only 5.3934
grams or less than 750 grams, the aforestated penalty imposed
under R.A. 7659 should be applied. There being no mitigating
nor aggravating circumstances, and following People v.
Simon,[9] 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.
On the charge of illegal possession of firearms, we sustain the
finding and conclusion of the trial court. The prosecution has
indubitably established the existence of the .38 cal. paltik and
the two (2) live bullets, and the fact that appellant did not have
the necessary license or permit to possess the same.
Accordingly, under Sec. 1 of P.D. No. 1866, the penalty
of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed, the range of which is seventeen
(17) years, four (4) months and one (1) day to reclusion
perpetua. Considering the pertinent provisions of the
Indeterminate Sentence Law, the maximum of the penalty to
be imposed shall not exceed the maximum fixed by law, while
2
the minimum shall not be lower than the minimum likewise fixed
by law.
WHEREFORE, the decision of the court a quo is MODIFIED. For
violating P.D. 1866, accused-appellant ROLANDO LUA y NERI is
sentenced to suffer the indeterminate penalty of seventeen
(17) years, four (4) months and one (1) day of reclusion
temporal maximum as minimum, to eighteen (18) years, eight
(8) months and 20 days likewise of reclusion temporal maximum
as maximum; and, for violating Sec. 4, Art. II, of R.A. 6425, as
amended, the indeterminate penalty of six (6) months and
twenty (20) days of prision correccional minimum as minimum,
to two (2) years, six (6) months and ten (10) days of prision
correccional medium as maximum, to be served successively in
accordance with Art. 70 of the Revised Penal Code.
Appellant should be credited with the full time of his preventive
imprisonment upon a showing that he agreed to abide by the
same disciplinary rules imposed upon convicted prisoners,
otherwise, he shall be credited with four-fifths (4/5) of the time
of such preventive imprisonment. Costs against accused-
appellant.
SO ORDERED.
Stop and Frisk Search: Terry Doctrine passengers who were later identified as Victor RomanaCogaed
and Santiago Sacpa Dayao.9 Cogaed was carrying a blue bag
THE PEOPLE OF THE PHILIPPINES vs. VICTOR COGAED y ROMANA and a sack while Dayao was holding a yellow bag.10
G.R. No. 200334 July 30, 2014 SPO1 Taracatac asked Cogaed and Dayao about the contents
LEONEN, J.: of their bags.11 Cogaed and Dayao told SPO1 Taracatac that
The mantle of protection upon one's person and one's effects they did not know since they were transporting the bags as a
through Article III, Section 2 of the Constitution is essential to favor for their barriomatenamed Marvin.12 After this exchange,
allow citizens to evolve their autonomy and, hence, to avail Cogaed opened the blue bag, revealing three bricks of what
themselves of their right to privacy. The alleged compromise looked like marijuana.13 Cogaed then muttered, "nagloko
with the battle against dangerous drugs is more apparent than daytoy nga Marvinen, kastoy met gayam ti nagyanna,"which
real. Often, the compromise is there because law enforcers translates to "Marvin is a fool, this is what [is] contained in the
neglect to perform what could have been done to uphold the bag."14 "SPO1 Taracatac arrested [Cogaed] and . . . Dayao and
Constitution as they pursue those who traffic this scourge of brought them to the police station."15 Cogaed and Dayao
society. "were still carrying their respective bags"16 inside the station.17
Squarely raised in· this appeal1 is the admissibility of the While at the police station, the Chief of Police and Investigator
evidence seized as a result of a warrantless arrest. The police PO3 Stanley Campit (PO3 Campit) requested Cogaed and
officers identified the alleged perpetrator through facts that Dayao to empty their bags.18 Inside Cogaed’s sack was "four (4)
were not based on their personal knowledge. The information rolled pieces of suspected marijuana fruiting tops,"19 and inside
as to the accused’s whereabouts was sent through a text Dayao’s yellow bag was a brick of suspected marijuana.20
message. The accused who never acted suspicious was PO3 Campit prepared the suspected marijuana for laboratory
identified by a driver. The bag that allegedly contained the testing.21 PSI Bayan personally delivered the suspected
contraband was required to be opened under intimidating marijuana to the PNP Crime Laboratory.22 Forensic Chemical
circumstances and without the accused having been fully Officer Police Inspector Valeriano Panem Laya II performed the
apprised of his rights. This was not a reasonable search within tests and found that the objects obtained were indeed
the meaning of the Constitution. There was no reasonable marijuana.23 The marijuana collected from Cogaed’s blue bag
suspicion that would allow a legitimate "stop and frisk" action. had a total weight of 8,091.5 grams.24 The marijuana from
The alleged waiver of rights by the accused was not done Cogaed’s sack weighed 4,246.1 grams.25 The marijuana
intelligently, knowingly, and without improper pressure or collected from Dayao’s bag weighed 5,092 grams.26 A total of
coercion. 17,429.6 grams were collected from Cogaed’s and Dayao’s
The evidence, therefore, used against the accused should be bags.27
excluded consistent with Article III, Section 3 (2) of the According to Cogaed’s testimony during trial, he was at
Constitution. There being no possible admissible evidence, the Balbalayan, La Union, "waiting for a jeepney to take him"28 to
accused should be acquitted. the Poblacion of San Gabriel so he could buy pesticide.29 He
I boarded a jeepney and recognized Dayao, his younger
According to the prosecution, at about 6:00 a.m. of November brother’s friend.30 Upon arrival at the Poblacion of San Gabriel,
25, 2005, Police Senior Inspector Sofronio Bayan (PSI Bayan) of Dayao and Cogaed alighted from the jeepney.31 Dayao
the San Gabriel Police Station in San Gabriel,La Union, "received allegedly "asked for [Cogaed’s] help in carrying his things,
a text message from an unidentified civilian informer"2 that one which included a travelling bag and a sack."32 Cogaed agreed
Marvin Buya (also known as Marvin Bugat) "[would]be because they were both going to the market.33 This was when
transporting marijuana"3 from Barangay LunOy, San Gabriel, La SPO1 Taracatac approached them, and when SPO1 Taracatac
Union to the Poblacion of San Gabriel, La Union.4 asked Cogaed what was inside the bags, Cogaed replied that
PSI Bayan organized checkpoints in order "to intercept the he did not know.34 SPO1 Taracatac then talked to Dayao,
suspect."5 PSI Bayan ordered SPO1 Jaime Taracatac, Jr. (SPO1 however, Cogaed was not privy to their
Taracatac), a member of the San Gabriel Police, to set up a conversation.35 Thereafter, SPO1 Taracatac arrested Dayao and
checkpoint in the waiting area of passengers from San Gabriel Cogaed and brought them to the police station.36 These facts
bound for San Fernando City.6 A passenger jeepney from were corroborated by an eyewitness, Teodoro Nalpu-ot, who
Barangay Lun-Oy arrived at SPO1 Taracatac’s checkpoint.7 The was standing across the parking lot where Cogaed was
jeepney driver disembarked and signalled to SPO1 Taracatac apprehended.37
indicating the two male passengers who were carrying
marijuana.8 SPO1 Taracatac approached the two male
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
3
Republic Act No. 9344.44 Trial against Cogaed ensued. In a
decision45 dated May 21, 2008, the Regional Trial Court found
Cogaed guilty. The dispositive portion of the decision states:
WHEREFORE, the Court finds accused Victor Cogaed y Romana
GUILTY beyond reasonable doubt for Violation of Section 11,
Article II of Republic Act No. 9165 (otherwise known as the
"Comprehensive Dangerous Drugs Act of 2002") and sentences
him to suffer life imprisonment, and to pay a fine of one million
pesos (Php 1,000,000.00).46
The trial court judge initially found 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 he was
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 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 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.56 The existence of probable cause must
be established by the judge after asking searching questions
and answers.57 Probable 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, searches
incidental to lawful arrests are allowed even without a separate
warrant.60 This court has taken into account the "uniqueness of
circumstances involved including the purpose of the search or
seizure, the presence or absence of probable cause, the
manner in which the search and seizure was made, the place
or thing searched, and the character of the articles
procured."61 The known jurisprudential instances of reasonable
warrantless searches and seizures are:
1. Warrantless search incidental to a lawful arrest. . . ;
2. Seizure of evidence in "plain view," . . . ;
3. Search of a moving vehicle. Highly regulated by the
government, the vehicle’s inherent mobility reduces
expectation of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant committed a
criminal activity;
4. Consented warrantless search;
5. Customs search;
6. Stop and frisk; and
7. Exigent and emergency circumstances.62 (Citations omitted)
III
One of these jurisprudential exceptions to 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 within reach 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 quo momentarily
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.
"Stop and frisk" searches (sometimes referred to as
Terrysearches68) are necessary for law enforcement. That is, law
enforcers should be given the legal arsenal to prevent the
commission of offenses. However, this should be balanced with
the need to protect the privacy of citizens in accordance with
Article III, Section 2 of the Constitution.
The balance lies in the concept of "suspiciousness" present in
the situation where the police officer finds himself or herself in.
This may be undoubtedly based on the experience of the
police officer. Experienced police officers have personal
experience dealing with criminals and criminal behavior.
Hence, they should have the ability to discern — based on facts
that they themselves observe — whether an individual is acting
in a suspicious manner. Clearly, a basic criterion would be that
the police officer, with his or her personal knowledge, must
observe the facts leading to the suspicion of an illicit act.
In Manalili v. Court of Appeals,69 the police officers were initially
informed about a place frequented by people abusing
drugs.70 When they arrived, one of the police officers saw a
man with "reddish eyes and [who was] walking in a swaying
manner."71 The suspicion increased when the man avoided the
police officers.72 These observations led the police officers to
conclude that the man was high on drugs.73 These were
sufficient facts observed by the police officers "to stop[the]
petitioner [and] investigate."74
In People v. Solayao,75 police officers noticed a man who
appeared drunk.76 This man was also "wearing a camouflage
uniform or a jungle suit."77 Upon seeing the police, the man
fled.78 His flight added to the suspicion.79 After stopping him, the
4
police officers found an unlicensed "homemade firearm"80 in his
possession.81 This court ruled that "[u]nder the circumstances,
the government agents could not possibly have procured a
search warrant first."82 This was also a valid search.
In these cases, the police officers using their senses observed
facts that led to the suspicion. Seeing a man with reddish eyes
and walking in a swaying manner, based on their experience, is
indicative of a person who uses dangerous and illicit drugs. A
drunk civilian in guerrilla wear is probably hiding something as
well.
The case of Cogaed was different. He was simply a passenger
carrying a bag and traveling aboarda jeepney. There was
nothing suspicious, moreover, criminal, about riding a jeepney
or carrying a bag. The assessment of suspicion was not made
by the police officer but by the jeepney driver. It was the driver
who signalled to the police that Cogaed was "suspicious."
This is supported by the testimony of SPO1 Taracatac himself:
COURT:
Q So you don’t know what was the content while it was still being carried by
him in the passenger jeep?
WITNESS:
A Not yet, Your Honor.83
SPO1 Taracatac likewise stated:
COURT:
Q If the driver did not make a gesture pointing to the accused, did you have
reason to believe that the accused were carrying marijuana?
WITNESS:
A No, Your Honor.84
The jeepney driver had to point to Cogaed. He would not have
been identified by the police officers otherwise.
It is the police officer who should observe facts that would lead
to a reasonable degree of suspicion of a person. The police
officer should not adopt the suspicion initiated by another
person. This is necessary to justify that the person suspected be
stopped and reasonably searched.85 Anything less than this
would be an infringement upon one’s basic right to security of
one’s person and effects.
IV
Normally, "stop and frisk" searches do not give the law enforcer
an opportunity to confer with a judge to determine probable
cause. In Posadas v. Court of Appeals,86 one of the earliest
cases adopting the "stop and frisk" doctrine in Philippine
jurisprudence, this court approximated the suspicious
circumstances as probable cause:
The probable cause is that when the petitioner acted
suspiciously and attempted to flee with the buri bag there was
a probable cause that he was concealing something illegal in
the bag and it was the right and duty of the police officers to
inspect the same.87 (Emphasis supplied)
For warrantless searches, probable cause was defined as "a
reasonable ground of 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."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 Terry are that while probable cause is
not required to conduct a "stop and frisk," it nevertheless holds
that mere suspicion or a hunch will not validate a "stop and
frisk." A genuine reason must exist, in light of the police 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 one
seemingly 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 not
even 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 accused was distributing drugs in "different karaoke bars in
Police officers cannot justify unbridled searches and be
shielded by this exception, unless there is compliance with the
"genuine reason" requirement and that the search serves the
purpose of protecting the public. As stated in Malacat:
[A] "stop-and-frisk" serves a two-fold interest: (1) the general
interest of effective crime prevention and detection, which
underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner,
approach a person for purposes of investigating possible
criminal behavior even without probable cause; and (2) the
more pressing interest of safety and self-preservation which
permit the police officer to take steps to assure himself that the
person with whom he deals is not armed with a deadly weapon
that could unexpectedly and fatally be used against the police
officer.99 (Emphasis supplied)
The "stop and frisk" search was 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 this case 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.107 The 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.112 Consequently, 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 of Investigation (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 search and 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
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
5
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 when the 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 delicto to
be affected, "two elements must concur: (1) the person to be
arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a
crime; and (2) such overt act is done in the presence or within
the view of the arresting officer."130 Both elements were missing
when Cogaed was arrested.131 There were no overt acts within
plain view of the police officers that suggested that Cogaed
was in possession of drugs at that time.
Also, Cogaed was not an escapee prisoner that time; hence,
he could not have qualified for the last allowable warrantless
arrest.
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?
A None, ma’am.
Q Now, Mr. witness when you went near them and asked them what were
the contents ofthe bag, you have not seen any signs of hesitation or fright
from them, is it not?
A It seems they were frightened, ma’am.
Q But you actually [claimed] that there was not any hesitation from them in
opening the bags, is it not?
A Yes, ma’am but when I went near them it seems that they were
surprised.133 (Emphasis supplied)
The state of mind of Cogaed was further clarified with SPO1 Taracatac’s
responses to Judge Florendo’s questions:
COURT:
....
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
For a valid waiver by the accused of his or her constitutional
right, it is not sufficient that the police officer introduce himself
or herself, or be known as a police officer.1âwphi1 The police
officer must also inform the person to be searched that any
inaction on his or her part will amount to a waiver of any of his
or her objections that the circumstances do not amount to a
reasonable search. The police officer must communicate this
clearly and in a language known to the person who is about to
waive his or her constitutional rights. There must be anassurance
given to the police officer that the accused fully understands his
or her rights. The fundamental nature of a person’s
constitutional right to privacy requires no less.
VIII
The Constitution provides:
Any evidence obtained in violation of [the right against
unreasonable searches and seizures] shall be inadmissible for
any purpose in any proceeding.135
Otherwise known as the exclusionary rule or the fruit of the
poisonous tree doctrine, this constitutional provision originated
from Stonehill v. Diokno.136 This rule prohibits the issuance of
general warrants that encourage law enforcers to go on fishing
6
expeditions. Evidence obtained through unlawful seizures
should be excluded as evidence because it is "the only
practical means of enforcing the constitutional injunction
against unreasonable searches and seizures."137 It ensures that
the fundamental rights to one’s person, houses, papers, and
effects are not lightly infringed upon and are upheld.
Considering that the prosecution and conviction of Cogaed
were founded on the search of his bags, a pronouncement of
the illegality of that search means that there is no evidence left
to convict Cogaed.
Drugs and its illegal traffic are a scourge to our society. In the
fight to eradicate this menace, law enforcers should be
equipped with the resources to be able to perform their duties
better. However, we cannot, in any way, compromise our
society’s fundamental values enshrined in our Constitution.
Otherwise, we will be seen as slowly dismantling the very
foundations of the society that we seek to protect.
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 REVERSED and 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 held for some other legal grounds. No costs.
SO ORDERED.
RIZALDY SANCHEZ y CAJILI vs. PEOPLE OF THE PHILIPPINES
G.R. No. 204589 November 19, 2014
MENDOZA, J.:
This is a petition for certiorari under Rule 65 seeking to reverse
and set aside the July 25, 2012 Decision1 and the November 20,
2012 Resolution2 of the Court of Appeals (CA), in CA-G.R. CR
No. 31742 filed by petitioner Rizaldy Sanchez y Cajili (Sanchez),
affirming the April 21, 2005 Decision3 of the Regional Trial Court
of Imus, Cavite, Branch 20 (RTC), which convicted him for
Violation of Section 11, Article l l of Republic Act (R.A.) No. 9165.
The dispositive portion of the RTC decision reads:
WHEREFORE, premises considered, judgment is rendered
convicting accused Rizaldy Sanchez y Cajili of Violation of
Section 11, Article II of Republic Act No. 9165 and hereby
sentences him to suffer imprisonment from twelve (12) to fifteen
(15) years and to pay a fine of Php300,000.00. SO ORDERED.4
Sanchez was charged with violation of Section 11, Article II of
R.A. No. 9165, otherwise known as the Comprehensive
Dangerous Drugs Act of 2002, in the Information,5 dated March
20, 2003, filed before the RTC and docketed as Criminal Case
No. 10745-03. The accusatory portion of the Information
indicting Sanchez reads:
That on or about the 19th day of March 2003, in the Municipality
of Imus, Province of Cavite, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
not being authorized by law, did then and there willfully,
unlawfully and feloniously have in his possession, control and
custody, 0.1017 gram of Methamphetamine Hydrochloride,
commonly known as "shabu," a dangerous drug, in violation of
the provisions of Republic Act No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002.
When arraigned, Sanchez pleaded not guilty to the offense
charged. During the pre-trial, the prosecution and the defense
stipulated on the existence and due execution of the following
pieces of evidence: 1] the request for laboratory examination;
2]certification issued by the National Bureau of Investigation
(NBI);3] Dangerous Drugs Report; and 4] transparent plastic
sachet containing small transparent plastic sachet of white
crystalline substance.6 Thereafter, trial on the merits ensued.
Version of the Prosecution
The prosecution’s version of the events as summarized by the
Office of the Solicitor General (OSG)in its Comment7 on the
petition is as follows:
Around 2:50 pm of March 19, 2003, acting on the information
that Jacinta Marciano, aka "Intang," was selling drugs to tricycle
drivers, SPO1 Elmer Amposta, together with CSU Edmundo
Hernandez, CSU Jose Tagle, Jr., and CSU Samuel Monzon, was
dispatched to Barangay Alapan 1-B, Imus, Cavite to conduct
an operation.
While at the place, the group waited for a tricycle going to,
and coming from, the house of Jacinta. After a few minutes,
they spotted a tricycle carrying Rizaldy Sanchez coming out of
the house. The group chased the tricycle. After catching up
with it, they requested Rizaldy to alight. It was then that they
noticed Rizaldy holding a match box.
SPO1 Amposta asked Rizaldy if he could see the contents of the
match box. Rizaldy agreed. While examining it, SPO1 Amposta
found a small transparent plastic sachet which contained a
white crystalline substance. Suspecting that the substance was
a regulated drug, the group accosted Rizaldy and the tricycle
driver. The group brought the two to the police station.
On March 20, 2003, Salud M. Rosales, a forensic chemist from
the NBI, submitted a Certification which reads:
This certifies that on the above date at 9:25 a.m. one PO1
Edgardo Nario of Imus, Mun. PS, PNP, Imus, Cavite submitted to
this office for laboratory examinations the following specimen/s
to wit:
White crystalline substance contained in a small plastic sachet,
marked "RSC," placed in a plastic pack, marked "Mar. 19, 2003."
(net wt. = 0.1017 gm)…
Examinations conducted on the above-mentioned specimen/s
gave POSITIVE RESULTS for METHAMPHETAMINE
HYDROCHLORIDE.
Said specimen/s were allegedly confiscated from RIZALDY
SANCHEZ y CAJILI and DARWIN REYES y VILLARENTE.
Official report follows:
This certification was issued upon request for purpose of filing
the case.8
Version of the Defense
In the present petition,9 Sanchez denied the accusation against
him and presented a different version of the events that
transpired in the afternoon of March 19, 2003, to substantiate his
claim of innocence:
On 24 February 2005, the accused Rizaldy Sanchez took the
witness stand. He testified that on the date and time in question,
he, together with a certain Darwin Reyes, were on their way
home from Brgy. Alapan, Imus, Cavite, where they transported
a passenger, when their way was blocked by four (4) armed
men riding an owner-type jeepney. Without a word, the four
men frisked him and Darwin. He protested and asked what
offense did they commit. The arresting officers told him that
they had just bought drugs from Alapan. He reasoned out that
he merely transported a passenger there but the policemen still
accosted him and he was brought to the Imus Police Station
where he was further investigated. The police officer, however,
let DarwinReyes go. On cross-examination, the accused
admitted that it was the first time that he saw the police officers
at the time he was arrested. He also disclosed that he was
previously charged with the same offense before Branch 90 of
this court which was already dismissed, and that the police
officers who testified in the said case are not the same as those
involved in this case.10
The Ruling of the RTC
On April 21, 2005, the RTC rendered its decision11 finding that
Sanchez was caught in flagrante delicto, in actual possession of
shabu. It stated that the police operatives had reasonable
ground to believe that Sanchez was in possession of the said
dangerous drug and such suspicion was confirmed when the
match box Sanchez was carrying was found to contain shabu.
The RTC lent credence to the testimony of prosecution witness,
SPO1 Elmer Amposta (SPO1 Amposta) because there was no
showing that he had been impelled by any ill motive to falsely
testify against Sanchez. The dispositive portion of which reads:
WHEREFORE, premises considered, judgment is rendered
convicting accused Rizaldy Sanchez y Cajili of Violation of
Section 11, Article II of Republic Act No. 9165 and hereby
sentences him to suffer imprisonment from twelve (12) to fifteen
(15) years and to pay a fine of Php300,000.00. SO ORDERED. 12
Unfazed, Sanchez appealed the RTC judgment of conviction
before the CA. He faulted the RTC for giving undue weight on
the testimony of SPO1 Amposta anchored merely on the
presumption of regularity in the performance of duty of the said
arresting officer. He insisted that the prosecution evidence was
7
insufficient to establish his guilt.
The Ruling of the CA
The CA found no cogent reason to reverse or modify the
findings of facts and conclusions reached by the RTC and, thus,
upheld the conviction of the accused for violation of Section
11, Article II of R.A. No. 9165. According to the CA, there was
probable cause for the police officers to believe that Sanchez
was then and there committing a crime considering that he
was seen leaving the residence of a notorious drug dealer
where, according to a tip they received, illegal drug activities
were being perpetrated. It concluded that the confiscation by
the police operative of the subject narcotic from Sanchez was
pursuant to a valid search. The CA then went on to write that
non-compliance by the police officers on the requirements of
Section 21, paragraph 1, Article II of R.A. No. 9165, particularly
on the conduct of inventory and photograph of the seized
drug, was not fatal to the prosecution’s cause since its integrity
and evidentiary value had been duly preserved. The fallo of the
decision reads:
WHEREFORE, the Decision of the Regional Trial Court, Branch 20,
Imus, Cavite dated April 21, 2005 and Order dated October 1,
2007 in Criminal Case No. 10745-03 finding accused appellant
Rizaldy C. Sanchez guilty beyond reasonable doubt of violation
of Section 11, Article II of Republic Act No. 9165, is AFFIRMED.
SO ORDERED.13
Sanchez filed a motion for reconsideration of the July 25, 2012
Decision, but it was denied by the CA in its November 20, 2012
Resolution.
Hence, this petition.
Bewailing his conviction, Sanchez filed the present petition for
"certiorari" under Rule 65 of the Rules of Court and anchored on
the following GROUNDS:
1. THE HONORABLE COURT OF APPEALS, WITH ALL DUE RESPECT,
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK AND/OR EXCESS OF JURISDICTION WHEN IT HELD THAT
ACCUSED WAS CAUGHT IN FLAGRANTE DELICTO, HENCE,A
SEARCH WARRANT WAS NO LONGER NECESSARY; AND
2. THE HONORABLE COURT OFAPPEALS, WITH DUE RESPECT,
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK AND/OR EXCESS OF JURISDICTION WHEN IT HELD THAT
NON-COMPLIANCE WITH SECTION 21, PARAGRAPH 1, ARTICLE II
OF REPUBLIC ACT NO. 9165 DOES NOT AUTOMATICALLY RENDER
THE SEIZED ITEMS INADMISSIBLE IN EVIDENCE.14
Sanchez insists on his acquittal. He argues that the warrantless
arrest and search on him were invalid due to the absence of
probable cause on the part of the police officers to effect an in
flagrante delicto arrest under Section 15, Rule 113 of the Rules
of Court. He also contends that the failure of the police
operatives to comply with Section 21, paragraph 1, Article II of
R.A. No. 9165 renders the seized item inadmissible in evidence
and creates reasonable doubt on his guilt. By way of
Comment15 to the petition, the OSG prays for the affirmance of
the challenged July 25, 2012 decision of the CA. The OSG
submits that the warrantless search and seizure of the subject
narcotic were justified under the plain view doctrine where a
police officer is not searching for evidence against the
accused, but nonetheless inadvertently comes across an
incriminating object.
The Court’s Ruling
Preliminarily, the Court notes that this petition suffers from
procedural infirmity. Under Section 1, Rule 45 of the Rules of
Court, the proper remedy to question the CA judgment,final
order or resolution, as in the present case, is a petition for review
on certiorari, which would be but a continuation of the
appellate process over the original case.16 By filing a special
civil action for certiorari under Rule 65, Sanchez therefore
clearly availed himself of the wrong remedy.
Be that as it may, the Court, in several cases before, had
treated a petition for certiorari as a petition for review under
Rule 45, in accordance with the liberal spirit and in the interest
of substantial justice, particularly (1) if the petition was filed
within the reglementary period for filing a petition for review; (2)
errors of judgment are averred; and (3) there is sufficient reason
to justify the relaxation of the rules.17 The case at bench satisfies
all the above requisites and, hence, there is ample justification
to treat this petition for certiorari as a petition for review.
Besides, it is axiomatic that the nature of an action is
determined by the allegations of the complaint or petition and
the character of the relief sought.18 Here, stripped of allegations
of "grave abuse of discretion," the petition actually avers errors
of judgment rather than of jurisdiction, which are the
appropriate subjects of a petition for review on certiorari.
Going now into the substance of the petition, the Court finds the
same to be impressed with merit.
Although it is true that the trial court’s evaluation of the
credibility of witnesses and their testimonies is entitled to great
respect and not to be disturbed on appeal, this rule, however, is
not a hard and fast one. It is a time-honored rule that the
assessment of the trial court with regard to the credibility of
witnesses deserves the utmost respect, if not finality, for the
reason that the trial judge has the prerogative, denied to
appellate judges, of observing the demeanor of the declarants
in the course of their testimonies. But an exception exists if there
is a showing that the trial judge overlooked, misunderstood, or
misapplied some facts or circumstances of weight and
substance that would have affected the case.19 After going
over the records of the case at bench, the Court finds some
facts of weight and substance that have been overlooked,
misapprehended, or misapplied by the trial court which cast
doubt on the guilt of Sanchez.
In sustaining the conviction of Sanchez, the CA ratiocinated
that this was a clear case of an in flagrante delicto arrest under
paragraph (a) Section 5, Rule 113 of the Rules on Criminal
Procedure. In this regard, the CA wrote:
In the case at Bar, the acquisition of the regulated drug by the
police officers qualifies as a valid search following a lawful
operation by the police officers. The law enforcers acted on the
directive of their superior based on an information that the
owner of the residence where Sanchez came from was a
notorious drug dealer. As Sanchez was seen leaving the said
residence, the law enforcers had probable cause to stop
Sanchez on the road since there was already a tip that illegal
drug-related activities were perpetrated in the place where he
came from and seeing a match box held on one hand, the
police officers’ action were justified to inspect the same. The
search therefore, is a sound basis for the lawful seizure of the
confiscated drug, arrest and conviction of Sanchez.
The case of People vs. Valdez (G.R. No. 127801, March 3, 1999)
is instructive. In that case, the police officers, by virtue of an
information that a person having been previously described by
the informant, accosted Valdez and upon inspection of the
bag he was carrying, the police officers found the information
given to them to be true as it yielded marijuana leaves hidden
in the water jug and lunch box inside Valdez’s bag. The
Supreme Court in affirming the trial court’s ruling convicting
Valdez declared that:
In this case, appellant was caught in flagrante since he was
carrying marijuana at the time of his arrest.1âwphi1 A crime was
actually being committed by the appellant, thus, the search
made upon his personal effects falls squarely under paragraph
(a) of the foregoing provisions of law, which allow a warrantless
search incident to lawful arrest. While it is true that SPO1
Mariano was not armed with a search warrant when the search
was conducted over the personal effects of appellant,
nevertheless, under the circumstances of the case, there was
sufficient probable cause for said police officer to believe that
appellant was then and there committing a crime. The cited
case is akin to the circumstances in the instant appeal as in this
case, Sanchez, coming from the house of the identified drug
dealer, previously tipped by a concerned citizen, walked to a
parked tricycle and sped towards the direction of Kawit,
Cavite. The search that gave way to the seizure of the match
box containing shabu was a reasonable course of event that
8
led to the valid warrantless arrest since there was sufficient
probable cause for chasing the tricycle he was in.
(Underscoring supplied)
A judicious examination of the evidence on record belies the
findings and conclusions of the RTC and the CA.
At the outset, it is observed that the CA confused the search
incidental to a lawful arrest withthe stop-and-frisk principle, a
wellrecognized exception to the warrant requirement. Albeit it
did not expressly state so, the CA labored under the confused
view that one and the other were indistinct and identical. That
confused view guided the CA to wrongly affirm the petitioner's
conviction. The Court must clear this confusion and correct the
error.
It is necessary to remind the RTC and the CA that the
Terry20 stop- and-frisk search is entirely different from and should
not be confused with the search incidental to a lawful arrest
envisioned under Section 13, Rule 126 of the Rules on Criminal
Procedure. The distinctions have been made clear in Malacat
v. Court of Appeals21:
In a search incidental to a lawful arrest, as the precedent arrest
determines the validity of the incidental search, the legality of
the arrest is questioned in a large majority of these cases, e.g.,
whether an arrest was merely used as a pretext for conducting
a search. In this instance, the law requires that there first be a
lawful arrest before a search can be made -- the process
cannot be reversed. At bottom, assuming a valid arrest, the
arresting officer may search the person of the arrestee and the
area within which the latter may reach for a weapon or for
evidence to destroy, and seize any money or property found
which was used in the commission of the crime, or the fruit of
the crime, or that which may be used as evidence, or which
might furnish the arrestee with the means of escaping or
committing violence.
xxxx
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 x x x x.
Other notable points of Terry are that while probable cause is
not required to conduct a "stop-and-frisk," it nevertheless holds
that mere suspicion or a hunch will not validate a "stop-and-
frisk." A genuine reason must exist, in light of the police officer's
experience and surrounding conditions, to warrant the belief
that the person detained has weapons concealed about him.
Finally, a "stop-and-frisk" serves a two-fold interest: (1) the
general interest of effective crime prevention and detection,
which underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner,
approach a person for purposes of investigating possible
criminal behavior even without probable cause; and (2) the
more pressing interest of safety and self-preservation which
permit the police officer to take steps to assure himself that the
person with whom he deals is not armed with a deadly weapon
that could unexpectedly and fatally be used against the police
officer.22
In the case at bench, neither the in flagrante delictoarrest nor
the stop- and-frisk principle was applicableto justify the
warrantless search and seizure made by the police operatives
on Sanchez. An assiduous scrutiny of the factual backdrop of
this case shows that the search and seizure on Sanchez was
unlawful. A portion of SPO1 Amposta’s testimony on direct
examination is revelatory, viz:
Pros. Villarin:
Q: On March 19, 2003 at around 2:50 p.m., can you recall
where were you?
A: Yes, Mam.
Q: Where were you? A: We were in Brgy. Alapan 1-B, Imus,
Cavite.
Q: What were you doing at Alapan 1-B, Imus, Cavite? A: We
were conducting an operation against illegal drugs.
Q: Who were with you? A: CSU Edmundo Hernandez, CSU Jose
Tagle, Jr. and CSU Samuel
Monzon.
Q: Was the operation upon the instruction of your Superior?
A: Our superior gave us the information that there were tricycle
drivers buying drugs from "Intang" or Jacinta Marciano.
Q: What did you do after that?
A: We waited for a tricycle who will go to the house of Jacinta
Marciano.
Q: After that what did you do?
A: A tricycle with a passenger went to the house of "Intang" and
when the passenger boarded the tricycle, we chase[d] them.
Q: After that, what happened next?
A: When we were able to catch the tricycle, the tricycle driver
and the passenger alighted from the tricycle.
Q: What did you do after they alighted from the tricycle?
A: I saw the passenger holding a match box.
Q: What did you do after you saw the passenger holding a
match box?
A: I asked him if I can see the contents of the match box.
Q: Did he allow you?
A: Yes, mam. He handed to me voluntarily the match box.
Court:
Q: Who, the driver or the passenger?
A: The passenger, sir.
Pros. Villarin:
Q: After that what did you find out?
A: I opened the match box and I found out that it contained a
small transparent plastic sachet containing white crystalline
substance.23
A search as an incident to a lawful arrest is sanctioned by the
Rules of Court.24 It bears emphasis that the law requires that the
search be incidental to a lawful arrest. Therefore it is beyond
cavil that a lawful arrest must precede the search of a person
and his belongings; the process cannot be reversed.25
Here, the search preceded the arrest of Sanchez. There was no
arrest prior to the conduct of the search. Arrest is defined under
Section 1, Rule 113 of the Rules of Court as the taking of a
person into custody that he may be bound to answer for the
commission of an offense. Under Section 2, of the same rule, an
arrest is effected by an actual restraint of the person to be
arrested or by his voluntary submission to the custody of the
person making the arrest.26 Even casting aside the petitioner’s
version and basing the resolution of this case on the general
thrust of the prosecution evidence, no arrest was effected by
the police operatives upon the person of Sanchez before
conducting the search on him. It appears from the above
quoted testimony of SPO1 Amposta that after they caught up
with the tricycle, its driver and the passenger, Sanchez, alighted
from it; that he noticed Sanchez holding a match box; and that
he requested Sanchez if he could see the contents of the
match box, to which the petitioner acceded and handed it
over to him. The arrest of Sanchez was made only after the
discovery by SPO1 Amposta of the shabu inside the match box.
Evidently, what happened in this case was that a search was
first undertaken and then later an arrest was effected based on
the evidence produced by the search.
Even granting arguendo that Sanchez was arrested before the
search, still the warrantless search and seizure must be struck
down as illegal because the warrantless arrest was unlawful.
Section 5, Rule 113 of the Rules of Criminal Procedure lays down
the basic rules on lawful warrantless arrests, either by a peace
9
officer or a private person, as follows:
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 actuallly 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.
xxx
For warrantless arrest under paragraph (a) of Section 5 (in
flagrante delicto arrest) to operate, two elements must concur:
(1) the person to be arrested must execute an overt act
indicating that he has just committed, is actually committing, or
is attempting to commit a crime; and (2) such overt act is done
in the presence or within the view of the arresting officer.27 On
the other hand, paragraph (b) of Section 5 (arrest effected in
hot pursuit) requires for its application that at the time of the
arrest, an offense has in fact just been committed and the
arresting officer has personal knowledge of facts indicating that
the person to be apprehended has committed it. These
elements would be lacking in the case at bench.
The evidence on record reveals that no overt physical act
could be properly attributed to Sanchez as to rouse suspicion in
the minds of the police operatives that he had just committed,
was committing, or was about to commit a crime. Sanchez was
merely seen by the police operatives leaving the residence of a
known drug peddler, and boarding a tricycle that proceeded
towards the direction of Kawit, Cavite. Such acts cannot in any
way be considered criminal acts. In fact, even if Sanchez had
exhibited unusual or strange acts, or at the veryleast appeared
suspicious, the same would not have been considered overt
acts in order for the police officers to effect a lawful warrantless
arrest under paragraph (a) of Section 5, Rule 113.
It has not been established either that the rigorous conditions
set forth in paragraph (b) of Section 5 have been complied with
in this warrantless arrest. When the police officers chased the
tricycle, they had no personal knowledge to believe that
Sanchez bought shabu from the notorious drug dealer and
actually possessed the illegal drug when he boarded the
tricycle. Probable cause has been held to signify a reasonable
ground of suspicion supported by circumstances sufficiently
strong in themselves to warrant a cautious man's belief that the
person accused is guilty of the offense with which he is
charged.28 The police officers in this case had no inkling
whatsoever as to what Sanchez did inside the house of the
known drug dealer. Besides, nowhere in the prosecution
evidence does it show that the drug dealer was conducting her
nefarious drug activities inside her house so as to warrant the
police officers to draw a reasonable suspicion that Sanchez
must have gotten shabu from her and possessed the illegal
drug when he came out of the house. In other words, there was
no overt manifestation on the part of Sanchez that he had just
engaged in, was actually engaging in or was attempting to
engage in the criminal activity of illegal possession of shabu.
Verily, probable cause in thiscase was more imagined than real.
In the same vein, there could be no valid "stop-and-frisk" search
in the case at bench. Elucidating on what constitutes "stop-and-
frisk" operation and how it is to be carried out, the Court in
People v. Chua29 wrote:
A stop and frisk was defined as the act of a police officer to
stop a citizen on the street, interrogate him, and pat him for
weapon(s) or contraband. The police officer should properly
introduce himself and make initial inquiries, approach and
restrain a person who manifests unusual and suspicious
conduct, in order to check the latter’s outer clothing for possibly
concealed weapons. The apprehending police officer must
have a genuine reason, in accordance with the police officer’s
experience and the surrounding conditions, to warrant the
belief that the person to be held has weapons (or contraband)
concealed about him. It should therefore be emphasized that a
search and seizure should precede the arrest for this principle to
apply.30
In this jurisdiction, what may be regarded as a genuine reason
or a reasonable suspicion justifying a Terry stop-and-frisk search
had been sufficiently illustrated in two cases. In Manalili v. Court
of Appeals and People,31 a policeman chanced upon Manalili
in front of the cemetery who appeared to be "high" on drugs as
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 and 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
policeman had sufficient reason to accost Manalili to
determine if he was actually "high" on drugs due to his
suspicious actuations, coupled with the fact that the area was
a haven for drug addicts.
In People v. Solayao,32 the Court also found justifiable reason for
the police to stop and frisk the accused after considering the
following circumstances: the drunken actuations of the
accused and his companions; the fact that his companions fled
whenthey saw the policemen; and the fact that the peace
officers were precisely on an intelligence mission to verify
reports that armed persons where roaming the vicinity.
Seemingly, the common thread of these examples isthe
presence of more than one seemingly innocent activity, which,
taken together, warranted a reasonable inference of criminal
activity. It was not so in the case at bench.
The Court does not find the totality of the circumstances
described by SPO1 Amposta as sufficient to incite a reasonable
suspicion that would justify a stop-and-frisk search on Sanchez.
Coming out from the house of a drug pusher and boarding a
tricycle, without more, were innocuous movements, and by
themselves alone could not give rise in the mind of an
experienced and prudent police officer of any belief that
hehad shabu in his possession, or that he was probably
committing a crime in the presence of the officer. There was
even no allegation that Sanchez left the house of the drug
dealer in haste or that he acted in any other suspicious manner.
There was no showing either that he tried toevade or
outmaneuver his pursuers or that he attempted to flee when
the police officers approached him. Truly, his acts and the
surrounding circumstances could not have engendered any
reasonable suspicion on the part of the police officers that a
criminal activity had taken place or was afoot.
In the recent case of People v. Cogaed,33 where not a single
suspicious circumstance preceded the search on the accused,
the Court ruled that the questioned act of the police officer did
not constitute a valid stop-and-frisk operation. Cogaed was a
mere passenger carrying a blue bag and a sack and travelling
aboard a jeepney. He did not exhibit any unusual or suspicious
behavior sufficient to justify the law enforcer in believing that he
was engaged in a criminal activity. Worse, the assessment of
suspicion was made not by the police officer but by the
jeepney driver, who signaled to the police officer that Cogaed
was "suspicious." In view of the illegality of the search and
seizure, the 12,337.6 grams of marijuana confiscated from the
accused was held as inadmissible.
The OSG characterizes the seizure of the subject shabu from
Sanchez as seizure of evidence in plain view. The Court
disagrees.
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.34 The
plain view doctrine applies when the following requisites
concur: (1) the law enforcement officer in search of the
evidence has a prior justification for an intrusion or is in a
10
position from which he can view a particular area; (2) the
discovery of the evidence in plain view is inadvertent; and (3) it
is immediately apparent to the officer that the item he observes
may be evidence of a crime, contraband or otherwise subject
to seizure.35
Measured against the foregoing standards, it is readily apparent
that the seizure of the subject shabu does notfall within the plain
view exception. First, there was no valid intrusion. As already
discussed, Sanchez was illegally arrested. Second, subject
shabu was not inadvertently discovered, and third, it was not
plainly exposed to sight. Here, the subject shabu was allegedly
inside a match box being thenheld by Sanchez and was not
readily apparent or transparent to the police officers. In fact,
SPO1 Amposta had to demand from Sanchez the possession of
the match box in order for him to open it and examine its
content. The shabu was not in plain view and its seizure without
the requisite search warrant is in violation of the law and the
Constitution. In the light of the foregoing, there being no lawful
warrantless arrest and warrantless search and seizure, the shabu
purportedly seized from Sanchez is inadmissible in evidence for
being the proverbial fruit of the poisonous tree. As the
confiscated shabu is the very corpus delicti of the crime
charged, the accused must be acquitted and exonerated from
the criminal charge of violation of Section 11, Article II of R.A. the seizure and confiscation of the shabu open to doubt and
No. 9165. suspicion. Hence, the incriminatory evidence cannot pass
judicial scrutiny.
Furthermore, the Court entertains doubts whether the shabu
allegedly seized from Sanchez was the very same item WHEREFORE, the petition is GRANTED. The assailed July 25, 2012
presented during the trial of this case. The Court notes that Decision and the November 20, 2012 Resolution of the Court of
there wereseveral lapses in the law enforcers’ handling of the Appeals in CA-G.R. CR No. 31742 are REVERSED and SET ASIDE.
seized item which, when taken collectively, render the Petitioner Rizaldy Sanchez y Cajili is ACQUITTED on reasonable
standards of chain of custody seriously breached. doubt. Accordingly, the Court orders the immediate release of
the petitioner, unless the latter is being lawfully held for another
Chain of custody means the duly recorded authorized cause; and to inform the Court of the date of his release, or
movements and custody of seized drugs or controlled reason for his continued confinement, within ten (10) days from
chemicals from the time of seizure/confiscation to receipt in the receipt of notice.
forensic laboratory to safekeeping to presentation in court for
destruction.36 The function of the chain of custody requirement SO ORDERED.
is to ensure that the integrity and evidentiary value of the seized
items are preserved, so much so that unnecessary doubts as to
the identity of the evidence are removed.37 Thus, the chain of
custody requirement has a two-fold purpose: (1) the
preservation of the integrity and evidentiary value of the seized
items, and (2) the removal of unnecessary doubts as to the
identity of the evidence.38

In this case, the prosecution failed to account for each and

every link in the chain of custody of the shabu, from the
moment it was allegedly confiscated up to the time it was
11
presented before the court as proof of the corpus delicti. The
testimony of SPO 1 Amposta was limited to the fact that he
placed the marking "RSC" on the seized drug; and that he and
the three other police officers brought Sanchez and the subject
shabu to their station and turned them over to their investigator.
The prosecution evidence did not disclose where the marking
of the confiscated shabu took place and who witnessed it. The
evidence does not show who was in possession of the seized
shabu from the crime scene to the police station. A reading of
the Certification, dated March 20, 2003, issued by Forensic
Chemist Salud Rosales shows that a certain PO I Edgardo Nario
submitted the specimen to the NBI for laboratory examination,
but this piece of evidence does not establish the identity of the
police investigator to whom SPO 1 Amposta and his group
turned over the seized shabu. The identities of the person who
received the specimen at the NBI laboratory and the person
who had the custody and safekeeping of the seized marijuana
after it was chemically analyzed pending its presentation in
court were also not disclosed.

Given the procedural lapses pointed out above, a serious

uncertainty hangs over the identity of the seized shabu that the
prosecution introduced in evidence. The prosecution failed to
establish an unbroken chain of custody, resulting in rendering
ALAIN MANALILI y DIZON vs. COURT OF APPEALS and PEOPLE OF
THE PHILIPPINES
G.R. No. 113447 October 9, 1997
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 citizen's constitutional rights
against unreasonable arrest, search and seizure.
The Case
This rule is reiterated as we resolve this petition for review
on certiorari under Rule 45 of the Rules of Court, seeking the
reversal of the Decision of the Court of Appeals dated April 19,
1993 and its Resolution dated January 20, 1994 in CA G.R. CR
No. 07266, entitled "People of the Philippines vs. Alain Manalili y
Dizon."
In an Information dated April 11, 1988,1 Petitioner Alain Manalili y
Dizon was charged by Assistant Caloocan City Fiscal E. Juan R.
Bautista with violation of Section 8, Article II of Republic Act No.
6425, allegedly committed as follows:2
That on or about the 11th day of April 1988 in Caloocan City,
MM, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused without any authority of law,
did then and there wilfully, unlawfully and feloniously have in his
custody, possession and control crushed marijuana residue,
which is a prohibited drug and knowing the same to be such.
Contrary to Law.
Upon his arraignment on April 21, 1988, appellant pleaded "not
guilty" to the charge.3 With the agreement of the public
prosecutor, appellant was released after filing a P10,000.00 bail
bond.4 After trial in due course, the Regional Trial Court of
Caloocan City, Branch 124, acting as a Special Criminal Court,
rendered on May 19, 1989 a decision5 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 sentences (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
Court9 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 Court11 denied reconsideration via its assailed
Resolution dated January 20, 1994, disposing:
ACCORDINGLY, accused-appellant's 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 o'clock 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
o'clock in the evening of April 11, 1988 as shown on the
stamped portion of Exhibit "D".
It was NBI Aida Pascual who conducted the microscopic and
chemical examinations of the specimen which she identified.
(Exhibit
"E")13 Mrs. Pascual referred to the subject specimen as "crushed
marijuana leaves" in her Certification dated April 11, 1988
(Exhibit "F").14 These crushed marijuana leaves gave positive
results for marijuana, according to the Certificate.
Mrs. Pascual also conducted a chromatographic examination
of the specimen. In this examination, she also found that the
"crushed marijuana leaves" gave positive results for marijuana.
She then prepared a Final Report of her examinations (Exhibit
"G").
After conducting the examinations, Ms. Pascual placed the
specimen in a white letter-envelope and sealed it. (Exhibit "E").
She then wrote identification notes on this letter-envelope.
(Exhibit "E-1").
12
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 o'clock 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 signalled 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 o'clock 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 o'clock 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 Trail and the Appellate Courts
The trial court convicted petitioner of illegal possession of
marijuana residue largely on the strength of the arresting
officers' testimony. Patrolmen Espiritu and Lumabas were
"neutral and disinterested" witnesses, testifying only on what
transpired during the performance of their duties. Substantially
they asserted that the appellant was found to be in possession
of a substance which was later identified as crushed marijuana
residue.
The trial court disbelieved appellant's 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 petitioner's
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 criminal activity may be afoot and that the persons with whom
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 allows a police officer to approach a person, in appropriate
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 Court's 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):
. . . (W)here a police officer observes an unusual conduct which
leads him reasonably to conclude in light of his experience that
he is dealing may be armed and presently dangerous, where in
the course of investigating this behavior he identified himself as
a policeman and makes reasonable inquiries, and where
nothing in the initial stages of the encounter serves to dispel his
reasonable fear for his own or others' safety, he is entitled for the
13
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
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. . . .
(2) Any evidence obtained in violation of . . . 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
were many instances where a search and seizure could be
effected without necessarily being preceded by an arrest, one
of which was 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 petitioner's 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 petitioner's
possession:25
FISCAL RALAR:
Q And why were you conducting surveillance in front of the
Caloocan Cemetery, Sangandaan, Caloocan City?
A Because there were some informations that some drug
dependents were roaming around at A. Mabini Street in front of
the Caloocan Cemetery, Caloocan City.
xxx xxx xxx
Q While you were conducting your surveillance, together with
Pat. Angel Lumabas and one Arnold Enriquez, what happened,
if any?
A We chanced upon one male person there in front of the
Caloocan Cemetery then when we called his attention, he
tried to avoid us, then prompting us to approach him and
introduce ourselves as police officers in a polite manner.
xxx xxx xxx
Q Could you describe to us the appearance of that person
when you chanced upon him?
A That person seems like he is high on drug.
Q How were you able to say Mr. Witness that that person that
you chanced upon was high on drug?
A Because his eyes were red and he was walking on a swaying
manner.
Q What was he doing in particular when you chanced upon
him?
A He was roaming around, sir.
Q You said that he avoided you, what did you do when he
avoided you?
A We approached him and introduced ourselves as police
officers in a polite manner, sir.
Q How did you introduce yourselves?
A In a polite manner, sir.
Q What did you say when you introduced yourselves?
A We asked him what he was holding in his hands, sir.
Q And what was the reaction of the person when you asked
him what he was holding in his hands?
A He tried to resist, sir.
Q When he tried to resist, what did you do?
A I requested him if I can see what was he was (sic) holding in
his hands.
Q What was the answer of the person upon your request?
A He allowed me to examine that something in his hands, sir.
xxx xxx xxx
Q What was he holding?
A He was holding his wallet and when we opened it, there was
a marijuana (sic) crushed residue.
Furthermore, we concur with the Solicitor General's 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
14
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 petitioner's conviction.
We disagree. Time and again, this Court has ruled that the trial
court's assessment of the credibility of witnesses, particularly
when affirmed by the Court of Appeals as in this case, is
accorded great weight and respect, since it had the
opportunity to observe their demeanor and deportment as they
testified before it. Unless substantial facts and circumstances
have been overlooked or misappreciated by the trial court
which, if considered, would materially affect the result of the
case, we will not countenance a departure from this rule.28
We concur with Respondent Court's 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. Espiritu's testimony is justified by tangible evidence on
record. Despite Pat. Lumabas' contradictory testimony, that of
Espiritu is supported by the Joint Affidavit29 signed by both
arresting policemen. The question of whether the marijuana was
found inside petitioner's 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 petitioner's possession.
This shows that such contradiction is minor and does not destroy
Espiritu's 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 petitioner's possession was identified by
NBI Forensic Chemist Aida Pascual to be crushed marijuana
leaves. Petitioner's lack of authority to possess these leaves was
established. His awareness thereof was undeniable, considering
that petitioner was high on drugs when stopped by the
policemen and that he resisted when asked to show and
identify the thing he was holding. Such behavior clearly shows
that petitioner knew that he was holding marijuana and that it
was prohibited by law.
Furthermore, like the trial and the appellate courts, we have not
been given sufficient grounds to believe the extortion angle in
this case. Petitioner did not file any administrative or criminal
case against the arresting officers or present any evidence
other than his bare claim. His argument that he feared for his life
was lame and unbelievable, considering that he was released
on bail and continued to be on bail as early as April 26,
1988.32 Since then, he could have made the charge in relative
safety, as he was no longer in the custody of the police. His
defense of frame-up, like alibi, is viewed by this Court with
disfavor, because it is easy to concoct and fabricate.33
The Proper Penalty
The trial and the appellate courts overlooked the Indeterminate
Sentence Law (Act No. 4103, as amended) by sentencing
petitioner to a straight penalty of six years and one day of
imprisonment, aside from the imposed fine of six thousand
pesos. This Act requires the imposition of an indeterminate
penalty:
Sec. 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
15
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. (Emphasis 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. . . . .
The penalty of imprisonment ranging from six years and one day
to twelve years and a fine ranging from six thousand to twelve
thousand pesos shall be imposed upon any person who, unless
authorized by law, shall possess or use Indian hemp.
Prescinding from the foregoing, the Court holds that the proper
penalty is an indeterminate sentence of imprisonment ranging
from six years and one day to twelve years.34
WHEREFORE, the assailed Decision and Resolution are hereby
AFFIRMED with MODIFICATION. Petitioner is sentenced to suffer
IMPRISONMENT of SIX (6) YEARS, as minimum, to TWELVE (12)
YEARS, as maximum, and to PAY a FINE of SIX THOUSAND PESOS.
Costs against petitioner.
SO ORDERED.
ALVIN COMERCIANTE y GONZALES vs. PEOPLE OF THE PHILIPPINES
G.R. No. 205926 July 22, 2015
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the
Decision 2 dated October 20, 2011 and the Resolution 3dated
February 19, 2013 of the Court of Appeals (CA) in CA-G.R. CR
No. 32813, which affirmed in toto the Judgment 4 dated July 28,
2009 of the Regional Trial Court of Mandaluyong City, Branch
213 (RTC) in Crim. Case No. MC-03-7242-D convicting petitioner
Alvin Comerciante y Gonzales (Comerciante) of the crime of
illegal Possession of Dangerous Drugs defined and penalized
under Section 11, Article II of Republic Act No. (RA)
9165, 5 otherwise known as the Comprehensive Dangerous
Drugs Act of 2002.
The Facts
On July 31, 2003, an Information was filed before the RTC
charging Comerciante of violation of Section 11, Article II of RA
9165, to wit:
That on or about the 30th day of July 2003, in the City of
Mandaluyong, Philippines, a place within the jurisdiction of this
Honorable Court, the above-named accused, not having been
lawfully authorized to possess any dangerous drugs, did then
and there willfully, unlawfully and feloniously and knowingly
have in his possession, custody and control Two (2) heat-sealed
transparent plastic sachet (sic) each containing 0.15 gram (sic)
and 0.28 gram (sic) of white crystalline substance with a total of
0.43 grams which was found positive to the test for
Methamphetamine Hydrochloride commonly known as "shabu",
a dangerous drug.
CONTRARY TO LA W. 6
According to the prosecution, at around 10 o'clock in the
evening of July 30, 2003, Agent Eduardo Radan (Agent Radan)
of the NARCOTICS group and P03 Bienvy Calag II (P03 Calag)
were aboard a motorcycle, patrolling the area while on their
way to visit a friend at Private Road, Barangay Hulo,
Mandaluyong City. Cruising at a speed of 30 kilometers per hour
along Private Road, they spotted, at a distance of about 10
meters, two (2) men - later identified as Comerciante and a
certain Erick Dasilla 7 (Dasilla) - standing and showing "improper
and unpleasant movements," with one of them handing plastic
sachets to the other. Thinking that the sachets may contain
shabu, they immediately stopped and approached
Comerciante and Dasilla At a distance of around five (5)
meters, P03 Calag introduced himself as a police officer,
arrested Comerciante and Dasilla, and confiscated two (2)
plastic sachets containing white crystalline substance from
them. A laboratory examination later confirmed that said
sachets contained methamphetamine hydrochloride or
shabu. 8
After the prosecution rested its case, Dasilla filed a demurrer to
evidence, which was granted by the RTC, thus his acquittal.
However, due to Comerciante's failure to file his own demurrer
to evidence, the RTC considered his right to do so waived and
ordered him to present his evidence.9
In his defense, Comerciante averred that P03 Calag was
looking for a certain "Barok", who was a notorious drug pusher in
the area, when suddenly, he and Dasilla, who were just
standing in front of a jeepney along Private Road, were
arrested and taken to a police station. There, the police officers
claimed to have confiscated illegal drugs from them and were
asked money in exchange for their release. When they failed to
accede to the demand, they were brought to another police
station to undergo inquest proceedings, and thereafter, were
charged with illegal possession of dangerous drugs. 10
The RTC Ruling
In. a Judgment 11 dated July 28, 2009, the RTC found
Comerciante guilty beyond reasonable doubt of violation of
Section 11, Article II of RA 9165, and accordingly, sentenced
him to suffer the penalty of imprisonment for twelve (12) years
and one (1) day to twenty (20) years, and ordered him to pay a
fine in the amount of ₱300,000.00.12
The R TC found that P03 Calag conducted a valid warrantless
arrest on Comerciante, which yielded two (2) plastic sachets
containing shabu. In this relation, the R TC opined that there
was probable cause to justify the warrantless arrest, considering
that P03 Calag saw, in plain view, that Comerciante was
carrying the said sachets when he decided to approach and
apprehend the latter. Further, the RTC found that absent any
proof of intent that P03 Calag was impelled by any malicious
motive, he must be presumed to have properly performed his
duty when he arrested Comerciante.13
Aggrieved, Comerciante appealed to the CA.
The CA Ruling
In a Decision 14 dated October 20, 2011 the CA affirmed
Comerciante's conviction. It held that P03 Calag had probable
cause to effect the warrantless arrest of Comerciante, given
that the latter was committing a crime in flagrante delicto; and
that he personally saw the latter exchanging plastic sachets
with Dasilla. According to the CA, this was enough to draw a
reasonable suspicion that those sachets might be shabu, and
thus, P03 Calag had every reason to inquire on the matter right
then and there.15
Dissatisfied, Comerciante moved for reconsideration 16 which
was, however, denied in a Resolution 17 dated February 19,
2013. Hence, this petition. 18
The Issue before the Court
The core issue for the Court's resolution is whether or not the CA
correctly affirmed Comerciante's conviction for violation of
Section 11, Article II of RA 9165.
In his petition, Comerciante essentially contends that P03 Carag
did not effect a valid warrantless arrest on him. Consequently,
the evidence gathered as a result of such illegal warrantless
arrest, i.e., the plastic sachets containing shabu should be
rendered inadmissible, necessarily resulting in his acquittal. 19
On the other hand, the Office of the Solicitor General, on behalf
of respondent People of the Philippines, maintains that
Comerciante's warrantless arrest was validly made pursuant to
the "stop and frisk" rule, especially considering that he was
caught in flagrante delicto in possession of illegal drugs. 20
The Court's Ruling
The petition is meritorious.
Section 2, Article III 21 of the Constitution mandates that a
search and seizure must be carried out through or on the
strength of a judicial warrant predicated upon the existence of
probable cause; in the absence of such warrant, such search
and seizure becomes, as a general rule, "unreasonable" within
the meaning of said constitutional provision. To protect people
from unreasonable searches and seizures, Section 3 (2), Article
III 22 of the Constitution provides an exclusionary rule which
instructs that evidence obtained and confiscated on the
occasion of such unreasonable searches and seizures are
deemed tainted and should be excluded for being the
proverbial fruit of a poisonous tree. In other words, evidence
obtained from unreasonable searches and seizures shall be
16
inadmissible in evidence for any purpose in any proceeding. 23
The exclusionary rule is not, however, an absolute and rigid
proscription. One of the recognized exceptions established by
jurisprudence is a search incident to a lawful arrest. 24 In this
instance, the law requires that there first be a lawful arrest
before a search can be made - the process cannot be
reversed. 25 Section 5, Rule 113 of the Revised Rules on Criminal
Procedure lays down the rules on lawful warrantless arrests, as
follows:
SEC.5. Arrest without warrant; when lawful. - A peace officer or
a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or is temporarily confined while his case is
pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) above, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail and shall be proceeded against in
accordance with Section 7 of Rule 112.
The aforementioned provision provides three (3) instances when
a warrantless arrest may be lawfully effected: (a) arrest of a
suspect in flagrante delicto; (b) arrest of a suspect where,
based on personal knowledge of the arresting officer, there is
probable cause that said suspect was the perpetrator of a
crime which had just been committed; ( c) arrest of a prisoner
who has escaped from custody serving final judgment or
temporarily confined during the pendency of his case or has
escaped while being transferred from one confinement to
another. 26
For a warrantless arrest under Section 5 (a) to operate, two (2)
elements must concur, namely: (a) the person to be arrested
must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a
crime; and ( b) such overt act is done in the presence or within
the view of the arresting officer. 27 On the other hand, Section 5
(b) requires for its application that at the time of the arrest, an
offense had in fact just been committed and the arresting
officer had personal knowledge of facts indicating that the
accused had committed it.28
In both instances, the officer's personal knowledge of the fact
of the commission of an offense is absolutely required. Under
Section 5 (a), the officer himself witnesses the crime; while in
Section (b), he knows for a fact that a crime has just been
committed. 29
A judicious review of the factual milieu of the instant case
reveals that there could have been no lawful warrantless arrest
made on Comerciante. P03 Calag himself admitted that he
was aboard a motorcycle cruising at a speed of around 30
kilometers per hour when he saw Comerciante and Dasilla
standing around and showing "improper and unpleasant
movements," with one of them handing plastic sachets to the
other. On the basis of the foregoing, he decided to effect an
arrest. P03 Calag's testimony on direct examination is revelatory:
Pros. Silao:
Q: Now on July 30, 2003 around 10:00 o'clock in the evening,
kindly tell the court where were you?
A: We were then conducting our patrol on a motorbike ma' am.
xxxx
Q: And who were with you while you were patrolling?
A: Eduardo Radan, Ma' am.
Q: And who is this Eduardo Radan?
A: He is an agent of the Narcotics Group, ma'am.
Q: While you were along Private Road, Hulo, Mandaluyong City,
what unusual incident that happened if any?
A: We spotted somebody who was then as if handing a plastic
sachet to someone.
xxxx
Q: Now how far were you when you saw this incident from these
two male persons you already identified?
A: About ten (10) meters away ma'am.
Q: What were their positions in relation to you when you saw
them in that particular act?
A: They were quite facing me then.
0: What was the speed of your motorcycle when you were
traversing this Private Road, Hulo, Mandaluyong City?
A: About thirty (30) kilometers per hour, ma'am.
Q: And who was driving the motorcycle?
A: Eduardo Radan, ma'am.
Q: When you spotted them as if handing something to each
other, what did you do?
A: We stopped ma'am.
Q: And how far were you from them when you stopped, more
or less?
A: We passed by them for a short distance before we stopped
ma'am.
Q: And after you passed by them and you said you stopped,
what was the reaction of these two male persons?
A: They were surprised, ma'am.
xxxx
Q: And what was their reaction when you said you introduced
yourself as police officer?
A: They were surprised.
Q: When you say "nabigla" what was their reaction that made
you say that they were surprised?
A: They were stunned.
Q: After they were stunned, what did you do next, police
officer?
A: I arrested them, ma' am. I invited them.
Q: What did you say to them? How did you invite them? In
short, napakasimple Lang ng tanong ko sa yo eh. Did you say
anything?
Court:
Mr. Witness, stop making unnecessary movements, just listens.
Pros. Silao: Are you fit to testify? May sakit ka ba o wala?
Witness: Wala po.
Pros. Silao: Eh, bakit di ka makapagsalita?
Court: You keep touching your eyes. Just relax. Answer the
question, ano sinabi mo sa kanila?
Pros. Silao: Are you fit to testify? Wala ka bang sakit?
Witness: Wala po.
xxxx
Q: From what portion of his body, I am referring to Alvin
Comerciante did you recover the plastic sachet?
A: From his hand ma'am.
Q: Left or right hand?
Pros. Silao: You cannot recall? Hindi mo matandaan. Sabihin
mo Kung Hindi mo matandaan, no problem. Kaliwa, kanan or
you cannot recall? 30
(Emphases and underscoring supplied)
On the basis of such testimony, the Court finds it highly
implausible that P03 Calag, even assuming that he has perfect
vision, would be able to identify with reasonable accuracy -
especially from a distance of around 10 meters, and while
aboard a motorcycle cruising at a speed of 30 kilometers per
hour - miniscule amounts of white crystalline substance inside
two (2) very small plastic sachets held by Comerciante. The
Court also notes that no other overt act could be properly
attributed to Comerciante as to rouse suspicion in the mind of
P03 Calag that the former had just committed, was committing,
or was about to commit a crime. Verily, the acts of standing
around with a companion and handing over something to the
latter cannot in any way be considered criminal acts. In fact,
even if Comerciante and his companion were showing
"improper and unpleasant movements" as put by P03 Calag,
the same would not have been sufficient in order to effect a
lawful warrantless arrest under Section 5 (a), Rule 113 of the
17
Revised Rules on Criminal Procedure. 31 That his reasonable
suspicion bolstered by (a) the fact that he had seen his fellow
officers arrest persons in possession of shabu; and (b) his
trainings and seminars on illegal drugs when he was still
assigned in the province are insufficient to create a conclusion
that what he purportedly saw in Comerciante was indeed
shabu. 32
Neither has the prosecution established that the rigorous
conditions set forth in Section 5 (b), Rule 113, have been
complied with, i.e., that an offense had in fact just been
committed and the arresting officer had personal knowledge of
facts indicating that the accused had committed it. As already
discussed, the factual backdrop of the instant case failed to
show that P03 Calag had personal knowledge that a crime had
been indisputably committed by Comerciante. Verily, it is not
enough that the arresting officer had reasonable ground to
believe that the accused had just committed a crime; a crime
must, in fact, have been committed first, which does not obtain
in this case. 33
In this relation, the Court finds respondent's assertion that there
was a valid "stop and frisk" search made on Comerciante
untenable. In People v. Cogaed, 34 the Court had an
opportunity to exhaustively explain "stop and frisk" searches:
"Stop and frisk" searches (sometimes referred to as Terry
searches) are necessary for law enforcement.1a\^/phi1 That is,
law enforcers should be given the legal arsenal to prevent the
commission of offenses. However, this should be balanced with
the need to protect the privacy of citizens in accordance with
Article III, Section 2 of the Constitution.
The balance lies in the concept of "suspiciousness" present
where the police officer finds himself or herself in. This may be
undoubtedly based on the experience of the police officer.
Experienced police officers have personal experience dealing
with criminals and criminal behavior. Hence, they should have
the ability to discern - based on facts that they themselves
observe - whether an individual is acting in a suspicious manner.
Clearly, a basic criterion would be that the police officer, with
his or her personal knowledge, must observe the facts leading
to the suspicion of an illicit act.
xxxx
Normally, "stop and frisk" searches do not give the law enforcer
an opportunity to confer with a judge to determine probable
cause. In Posadas v. Court of Appeals, one of the earliest cases
adopting the "stop and frisk" doctrine in Philippine jurisprudence,
this court approximated the suspicious circumstances as
probable cause:
The probable cause is that when the petitioner acted
suspiciously and attempted to flee with the buri bag there was
a probable cause that he was concealing something illegal in
the bag and it was the right and duty of the police officers to
inspect the same.
For warrantless searches, probable cause was defined as "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.
Malacat v. Court of Appeals clarifies the requirement further. It
does not have to be probable cause, but it cannot be mere
suspicion. It has to be a genuine reason to serve the purposes of
the "stop and frisk" exception:
Other notable points of Terry are that while probable cause is
not required to conduct a "stop and frisk," it nevertheless holds
that mere suspicion or a hunch will not validate a "stop and
frisk." A genuine reason must exist, in light of the police officer's
experience and surrounding conditions, to warrant the belief
that the person detained has weapons concealed about him.
In his dissent for Esquillo v. People, Justice Bersamin reminds us
that police officers must not rely on a single suspicious
circumstance. There should be "presence of more than one
seemingly innocent activity, which, taken together, warranted
a reasonable inference of criminal activity." The Constitution
prohibits "unreasonable searches and seizures." Certainly,
reliance on only one suspicious circumstance or none at all will
not result in a reasonable search. [35]] (Emphases and
underscoring supplied)
In this case, the Court reiterates that Comerciante' s acts of
standing around with a companion and handing over
something to the latter do not constitute criminal acts. These
circumstances are not enough to create a reasonable
inference of criminal activity which would constitute a "genuine
reason" for P03 Calag to conduct a "stop and frisk" search on
the former. In this light, the "stop and frisk" search made on
Comerciante should be deemed unlawful.
In sum, there was neither a valid warrantless arrest nor a valid
"stop and frisk" search made on Comerciante. As such, the
shabu purportedly seized from him is rendered inadmissible in
evidence for being the proverbial fruit of the poisonous tree.
Since the confiscated shabu is the very corpus delicti of the
crime charged, Comerciante must necessarily be acquitted
and exonerated from all criminal liability.
WHEREFORE, the petition is GRANTED. Accordingly, 'the Decision
18
dated October 20, 2011 and the Resolution dated February 19,
2013 of the Court of Appeals in CA-G.R. CR No. 32813 are
hereby REVERSED and SET ASIDE. Accordingly, petitioner Alvin
Comerciante y Gonzales is hereby ACQUITTED of the crime of
violating Section 11, Article II of Republic Act No. 9165. The
Director of the Bureau of Corrections is ordered to cause his
immediate release, unless he is being lawfully held for any other
reason.
SO ORDERED.
Search of a moving vehicle
PEOPLE OF THE PHILIPPINES vs. AGPANGA LIBNAO y KITTEN and
ROSITA NUNGA y VALENCIA
G.R. No. 136860 January 20, 2003
PUNO, J.:
Before us is an appeal from the Decision dated November 19,
1998 of the Regional Trial Court, Branch 65, Tarlac City, finding
appellant Agpanga Libnao and her co-accused Rosita Nunga
guilty of violating Article II, Section 4 of R.A. No. 6425, otherwise
known as the Dangerous Drugs Act of 1972.1 For their
conviction, each was sentenced to suffer an imprisonment
of reclusion perpetua and to pay a fine of two million pesos.
Appellant and her co-accused were charged under the
following Information:
"That on or about October 20, 1996 at around 1:00 o’clock
dawn, in the Municipality of Tarlac, Province of Tarlac,
Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused conspiring, confederating and
helping with one another, without being lawfully authorized, did
then and there willfully, unlawfully and feloniously make
delivery/transport with intent to sell marijuana leaves wrapped
in a transparent plastic weighing approximately eight (8) kilos,
which is in violation of Section 4, Article II of RA 6425, otherwise
known as the Dangerous Drugs Act of 1972, as amended.
CONTRARY TO LAW."2
During their arraignment, both entered a plea of Not Guilty. Trial
on the merits ensued.
It appears from the evidence adduced by the prosecution that
in August of 1996, intelligence operatives of the Philippine
National Police (PNP) stationed in Tarlac, Tarlac began
conducting surveillance operation on suspected drug dealers in
the area. They learned from their asset that a certain woman
from Tajiri, Tarlac and a companion from Baguio City were
transporting illegal drugs once a month in big bulks.
On October 19, 1996, at about 10 o’clock in the evening, Chief
Inspector Benjamin Arceo, Tarlac Police Chief, held a briefing in
connection with a tip which his office received that the two
drug pushers, riding in a tricycle, would be making a delivery
that night. An hour later, the Police Alert Team installed a
checkpoint in Barangay Salapungan to apprehend the
suspects. Witness SPO1 Marlon Gamotea, PO3 Florante Ferrer
and SPO3 Roberto Aquino were assigned to man the
checkpoint.
At about 1:00 o’clock in the morning of the following day, SPO1
Gamotea and PO3 Ferrer flagged down a passing tricycle. It
had two female passengers seated inside, who were later
identified as the appellant Agpanga Libnao and her co-
accused Rosita Nunga.3 In front of them was a black bag.
Suspicious of the black bag and the two’s uneasy behavior
when asked about its ownership and content, the officers
invited them to Kabayan Center No.2 located at the same
barangay. They brought with them the black bag.
Upon reaching the center, PO3 Ferrer fetched Barangay
Captain Roy Pascual to witness the opening of the black bag.
In the meantime, the two women and the bag were turned
over to the investigator on duty, SPO3 Arthur Antonio. As soon
as the barangay captain arrived, the black bag was opened in
the presence of the appellant, her co-accused and personnel
of the center. Found inside it were eight bricks of leaves sealed
in plastic bags and covered with newspaper. The leaves were
suspected to be marijuana.
To determine who owns the bag and its contents, SPO3 Antonio
interrogated the two. Rosita Nunga stated that it was owned by
the appellant. The latter, in turn, disputed this allegation.
Thereafter, they were made to sign a confiscation receipt
without the assistance of any counsel, as they were not
informed of their right to have one. During the course of the
investigation, not even close relatives of theirs were present.
The seized articles were later brought to the PNP Crime
Laboratory in San Fernando, Pampanga on October 23, 1996.
Forensic Chemist Daisy P. Babu conducted a laboratory
examination on them. She concluded that the articles were
marijuana leaves weighing eight kilos.4
For their part, both accused denied the accusation against
them. Rosita Nunga testified that in the evening of October
19,1996, she went to buy medicine for her ailing child at a
pharmacy near the Tarlac Provincial Hospital. The child was
suffering from diarrhea, occasioned by abdominal pain. To
return to their house, she boarded a tricycle bound for
Barangay Tariji, where she resides. Along the way, the tricycle
she was riding was flagged down by a policeman at a
checkpoint in Barangay Salapungan. She was taken aback
when the officer invited her to the Kabayan Center. It was there
that she was confronted with the black bag allegedly
containing eight bricks of marijuana leaves. She disputed
owning the bag and knowing its contents. She also denied
sitting beside the appellant in the passenger’s seat inside the
tricycle, although she admitted noticing a male passenger
behind the driver.
Remarkably, appellant did not appear in court and was only
represented by her lawyer. The latter marked and submitted in
evidence an affidavit executed by one Efren Gannod, a
security guard of Philippine Rabbit Bus Lines in Tarlac, Tarlac. The
sworn statement declared that at about 0220H on October 20,
1996, SPO2 Antonio arrived at their terminal and arrested a
certain woman who boarded their Bus No. 983. The incident
was recorded in the company’s logbook. Gannod, however,
was not presented in court to attest that the woman referred in
his affidavit was the appellant.
After trial, the court convicted appellant and her co-accused
Rosita Nunga, thus:
"WHEREFORE, finding both accused guilty beyond reasonable
doubt of the offense of violation of Article II, Section 4 of RA
6425 in relation to RA 7659, they are hereby sentenced to suffer
an imprisonment of reclusion perpetua and to pay a fine of two
million pesos.
SO ORDERED."5
Aggrieved by the verdict, appellant interposed the present
appeal. In her brief, she assigned the following errors:
"1. The Honorable Regional Trial Court failed to appreciate the
contention of the defense that the right of accused against
illegal and unwarranted arrest and search was violated by the
police officers who arrested both accused.
2. The Honorable Court failed to appreciate the contention of
the defense that the right of the accused to custodial
19
investigation was deliberately violated by the peace officers
who apprehended and investigated the accused.
3. The Honorable Court miserably failed to evaluate the
material inconsistencies in the testimonies of the prosecution’s
witnesses which inconsistencies cast doubt and make
incredible the contention and version of the prosecution.
4. The Honorable Court gravely abused its discretion when it
appreciated and considered the documentary and object
evidence of the prosecution not formally offered amounting to
ignorance of the law."6
We are not persuaded by these contentions; hence, the appeal
must be dismissed.
In arguing that her arrest was unlawful, appellant capitalizes on
the absence of a warrant for her arrest. She contends that at
the time she was apprehended by the police officers, she was
not committing any offense but was merely riding a tricycle. In
the same manner, she impugns the search made on her
belongings as illegal as it was done without a valid warrant or
under circumstances when warrantless search is permissible.
Consequently, any evidence obtained therein is inadmissible
against her.
These arguments fail to impress. The general rule is that a search
may be conducted by law enforcers only on the strength of a
search warrant validly issued by a judge as provided in Article
III, Section 2 of the 1987 Constitution, thus:
"The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be inviolable, and
no search warrant and warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized."7
The constitutional guarantee is not a blanket prohibition against
all searches and seizures as it operates only against
"unreasonable" searches and seizures. Searches and seizures
are as a rule unreasonable unless authorized by a validly issued
search warrant or warrant of arrest. Thus, the fundamental
protection accorded by the search and seizure clause is that
between persons and police must stand the protective
authority of a magistrate clothed with power to issue or refuse
to issue search warrants and warrants of arrest.8
Be that as it may, the requirement that a judicial warrant must
be obtained prior to the carrying out of a search and seizure is
not absolute. There are certain familiar exceptions to the rule,
one of which relates to search of moving vehicles.9 Warrantless
search and seizure of moving vehicles are allowed in
recognition of the impracticability of securing a warrant under
said circumstances as the vehicle can be quickly moved out of
the locality or jurisdiction in which the warrant may be
sought.10 Peace officers in such cases, however, are limited to
routine checks where the examination of the vehicle is limited
to visual inspection.11 When a vehicle is stopped and subjected
to an extensive search, such would be constitutionally
permissible only if the officers made it upon probable cause,
i.e., upon a belief, reasonably arising out of circumstances
known to the seizing officer, that an automobile or other vehicle
contains as item, article or object which by law is subject to
seizure and destruction.12
In earlier decisions, we held that there was probable cause in
the following instances: (a) where the distinctive odor of
marijuana emanated from the plastic bag carried by the
accused;13 (b) where an informer positively identified the
accused who was observed to be acting suspiciously;14 (c)
where the accused who were riding a jeepney were stopped
and searched by policemen who had earlier received
confidential reports that said accused would transport a
quantity of marijuana;15 (d) where Narcom agents had
received information that a Caucasian coming from Sagada,
Mountain Province had in his possession prohibited drugs and
when the Narcom agents confronted the accused Caucasian
because of a conspicuous bulge in his waistline, he failed to
present his passport and other identification papers when
requested to do so;16 (f) where the moving vehicle was stopped
and searched on the basis of intelligence information and
clandestine reports by a deep penetration agent or spy -- one
who participated in the drug smuggling activities of the
syndicate to which the accused belong -- that said accused
were bringing prohibited drugs into the country;17 (g) where the
arresting officers had received a confidential information that
the accused, whose identity as a drug distributor was
established in a previous test-buy operation, would be boarding
MV Dona Virginia and probably carrying shabu with him;18 (h)
where police officers received an information that the accused,
who was carrying a suspicious-looking gray luggage bag,
would transport marijuana in a bag to Manila;19 and (i) where
the appearance of the accused and the color of the bag he
was carrying fitted the description given by a civilian asset.20
The warrantless search in the case at bench is not bereft of a
probable cause. The Tarlac Police Intelligence Division had
been conducting surveillance operation for three months in the
area. The surveillance yielded the information that once a
month, appellant and her co-accused Rosita Nunga transport
drugs in big bulks. At 10:00 pm of October 19, 1996, the police
received a tip that the two will be transporting drugs that night
riding a tricycle. Surely, the two were intercepted three hours
later, riding a tricycle and carrying a suspicious-looking black
bag, which possibly contained the drugs in bulk. When they
were asked who owned it and what its content was, both
became uneasy. Under these circumstances, the warrantless
search and seizure of appellant’s bag was not illegal.
It is also clear that at the time she was apprehended, she was
committing a criminal offense. She was making a delivery or
transporting prohibited drugs in violation of Article II, Section 4 of
R.A. No. 6425. Under the Rules of Court, one of the instances a
police officer is permitted to carry out a warrantless arrest is
when the person to be arrested is caught committing a crime in
flagrante delicto, thus:
"Section 5. Arrest without Warrant; when lawful. - A peace
officer or a private person may, without warrant, arrest a
person:
(a) When in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense;
(b) When an offense has in fact just been committed, and he
has probable cause to believe based on personal knowledge
of facts or circumstances that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case is
pending, or has escaped while being transferred from one
confinement to another.
x x x."21 (emphasis supplied)
Appellant also takes issue of the fact that she was not assisted
by a lawyer when police officers interrogated her. She claimed
that she was not duly informed of her right to remain silent and
to have competent counsel of her choice. Hence, she argues
that the confession or admission obtained therein should be
considered inadmissible in evidence against her.
These contentions deserve scant attention. Appellant did not
make any confession during her custodial investigation. In
determining the guilt of the appellant and her co-accused, the
trial court based its decision on the testimonies of prosecution
witnesses and on the existence of the confiscated marijuana.
We quote the relevant portion of its decision:
"Earlier in the course of the proceedings, the court then
presided by Judge Angel Parazo, granted bail to accused
Agpanga Libnao, ruling that the confiscation receipt signed by
both accused (Exhibit "C") is inadmissible because they were
20
not assisted by a counsel. Confronted with this same issue, this
court finds the postulate to rest on good authority and will
therefore reiterate its inadmissibility.
Since the prosecution had not presented any extrajudicial
confession extracted from both accused as evidence of their
guilt, the court finds it needless to discuss any answer given by
both accused as a result of the police interrogation while in
their custody. By force of necessity, therefore, the only issue to
be resolved by the court is whether or not, based on the
prosecution’s evidence, both accused can be
convicted."22 (emphasis supplied)
Appellant then faults the trial court for appreciating and taking
into account the object and documentary evidence of the
prosecution despite the latter’s failure to formally offer them.
Absent any formal offer, she argues that they again must be
deemed inadmissible.
The contention is untenable. Evidence not formally offered can
be considered by the court as long as they have been properly
identified by testimony duly recorded and they have
themselves been incorporated in the records of the case.23 All
the documentary and object evidence in this case were
properly identified, presented and marked as exhibits in court,
including the bricks of marijuana.24 Even without their formal
offer, therefore, the prosecution can still establish the case
because witnesses properly identified those exhibits, and their
testimonies are recorded.25 Furthermore, appellant’s counsel
had cross-examined the prosecution witnesses who testified on
the exhibits.26
Appellant also assails the credibility of the testimonies of the
prosecution witnesses. She first cites the inconsistency between
the testimony of SPO1 Marlon Gamotea, who said that it was
SPO2 Antonio who opened the black bag containing the
marijuana; and that of SPO2 Antonio, who declared that the
bag was already open when he arrived at the Kabayan
Center. She then focuses on the police officers’ failure to
remember the family name of the driver of the tricycle where
she allegedly rode, claiming that this is improbable and
contrary to human experience.
the courts with disfavor for it can just as easily be concocted
and is a common and standard defense ploy in most cases
involving violation of the Dangerous Drugs Act.30 It has to be
substantiated by clear and convincing evidence.31 The sole
proof presented in the lower court by the appellant to support
her claim of denial and alibi was a sworn statement, which was
not even affirmed on the witness stand by the affiant. Hence,
we reject her defense.
IN VIEW WHEREOF, the instant appeal is DENIED. The decision of
the trial court finding appellant guilty beyond reasonable doubt
of the offense of violation of Article II, Section 4 of R.A. No. 6425
in relation to R.A. No. 7659, and sentencing her to an
imprisonment of reclusion perpetua and to pay a fine of two
million pesos is hereby AFFIRMED.
SO ORDERED.

Again, appellant’s arguments lack merit. The alleged

inconsistencies she mentions refer only to minor details and not
to material points regarding the basic elements of the crime.
They are inconsequential that they do not affect the credibility
of the witnesses nor detract from the established fact that
appellant and her co-accused were transporting marijuana.
Testimonies of witnesses need only corroborate each other on
21
important and relevant details concerning the principal
occurrence.27 The identity of the person who opened the bag is
clearly immaterial to the guilt of the appellant. Besides, it is to
be expected that the testimony of witnesses regarding the
same incident may be inconsistent in some aspects because
different persons may have different recollections of the same
incident.28

Likewise, we find nothing improbable in the failure of the police

officers to note and remember the name of the tricycle driver
for the reason that it was unnecessary for them to do so. It was
not shown that the driver was in complicity with the appellant
and her co-accused in the commission of the crime.

To be sure, credence was properly accorded to the testimonies

of prosecution witnesses, who are law enforcers. When police
officers have no motive to testify falsely against the accused,
courts are inclined to uphold this presumption.29 In this case, no
evidence has been presented to suggest any improper motive
on the part of the police enforcers in arresting the appellant.

Against the credible positive testimonies of the prosecution

witnesses, appellant’s defense of denial and alibi cannot stand.
The defense of denial and alibi has been invariably viewed by