[G.R. No. 160689 March 26, 2014
Garcia was VECO’s Vice-
RAUL H. SESBREÑO, Petitioner,
vs.
HONORABLE COURT OF APPEALS, JUAN I. COROMINA
(SUBSTITUTED BY ANITA COROMINA, ELIZABETH
COROMINA and ROSIEMARIE COROMINA), VICENTE E.
GARCIA (SUBSTITUTED BY EDGAR JOHN GARCIA), FELIPE
CONSTANTINO, RONALD ARCILLA, NORBETO ABELLANA,
DEMETRIO BALICHA, ANGELITA LHUILLIER, JOSE E.
GARCIA, AND VISA YAN ELECTRIC COMPANY
(VECO), Respondents.
DECISION
BERSAMIN, J.:
This case concerns the claim for damages of petitioner Raul H.
Sesbreño founded on abuse of rights. Sesbreño accused the
violation of contract (VOC) inspection team dispatched by the
Visayan Electric Company (VECO) to check his electric meter with
conducting an unreasonable search in his residential premises.
But the Regional Trial Court (RTC), Branch 13, in Cebu City
rendered judgment on August 19, 1994 dismissing the claim;1 and
the Court of Appeals (CA) affirmed the dismissal on March 10,
2003.2
Hence, this appeal by Sesbreño.
Antecedents
At the time material to the petition, VECO was a public utility
corporation organized and existing under the laws of the
Philippines. VECO engaged in the sale and distribution of
electricity within Metropolitan Cebu. Sesbreño was one of VECO’s
customers under the metered service contract they had entered
into on March 2, 1982.3 Respondent Vicente E. Garcia was
VECO’s President, General Manager and Chairman of its Board
of Directors. Respondent Jose E.
President, Treasurer and a Member of its Board of Directors.
Respondent Angelita Lhuillier was another Member of VECO’s
Board of Directors. Respondent Juan Coromina was VECO’s
Assistant Treasurer, while respondent Norberto Abellana was the
Head of VECO’s Billing Section whose main function was to
compute back billings of customers found to have violated their
contracts.
To ensure that its electric meters were properly functioning, and
that none of it meters had been tampered with, VECO employed
respondents Engr. Felipe Constantino and Ronald Arcilla as
violation of contract (VOC) inspectors.4 Respondent Sgt. Demetrio
Balicha, who belonged to the 341st Constabulary Company, Cebu
Metropolitan Command, Camp Sotero Cabahug, Cebu City,
accompanied and escorted the VOC inspectors during their
inspection of the households of its customers on May 11, 1989
pursuant to a mission order issued to him.5
The CA summarized the antecedent facts as follows:
x x x. Reduced to its essentials, however, the facts of this case
are actually simple enough, although the voluminous records
might indicate otherwise. It all has to do with an incident that
occurred at around 4:00 o’clock in the afternoon of May 11, 1989.
On that day, the Violation of Contracts (VOC) Team of
defendants-appellees Constantino and Arcilla and their PC escort,
Balicha, conducted a routine inspection of the houses at La
Paloma Village, Labangon, Cebu City, including that of plaintiff-
appellant Sesbreño, for illegal connections, meter tampering,
seals, conduit pipes, jumpers, wiring connections, and meter
installations. After Bebe Baledio, plaintiff-appellant Sesbreño’s
maid, unlocked the gate, they inspected the electric meter and
found that it had been turned upside down. Defendant-appellant
Arcilla took photographs of the upturned electric meter. With
Chuchie Garcia, Peter Sesbreño and one of the maids present,
they removed said meter and replaced it with a new one. At that
time, plaintiff-appellant Sesbreño was in his office and no one
called to inform him of the inspection. The VOC Team then asked
for and received Chuchie Garcia’s permission to enter the house
itself to examine the kind and number of appliances and light
fixtures in the household and determine its electrical load.
Afterwards, Chuchie Garcia signed the Inspection Division Report,
which showed the condition of the electric meter on May 11, 1989
when the VOC Team inspected it, with notice that it would be
subjected to a laboratory test. She also signed a Load Survey
Sheet that showed the electrical load of plaintiff-appellant
Sesbreño.
But according to plaintiff-appellant Sesbreño there was nothing
routine or proper at all with what the VOC Team did on May 11,
1989 in his house. Their entry to his house and the surrounding
premises was effected without his permission and over the
objections of his maids. They threatened, forced or coerced their
way into his house. They unscrewed the electric meter, turned it
upside down and took photographs thereof. They then replaced it
with a new electric meter. They searched the house and its rooms
without his permission or a search warrant. They forced a visitor
to sign two documents, making her appear to be his
representative or agent. Afterwards, he found that some of his
personal effects were missing, apparently stolen by the VOC
Team when they searched the house.6
Judgment of the RTC
On August 19, 1994, the RTC rendered judgment dismissing the
complaint.7 It did not accord credence to the testimonies of
Sesbreño’s witnesses, Bebe Baledio, his housemaid, and Roberto
Lopez, a part-time salesman, due to inconsistencies on material
points in their respective testimonies. It observed that Baledio
could not make up her mind as to whether Sesbreño’s children
were in the house when the VOC inspection team detached and
replaced the electric meter. Likewise, it considered unbelievable
that Lopez should hear the exchanges between Constantino,
Arcilla and Balicha, on one hand, and Baledio, on the other,
considering that Lopez could not even hear the conversation
between two persons six feet away from where he was seated
during the simulation done in court, the same distance he
supposedly had from the gate of Sesbreño’s house during the
incident. It pointed out that Lopez’s presence at the gate during
the incident was even contradicted by his own testimony
indicating that an elderly woman had opened the gate for the
VECO personnel, because it was Baledio, a lady in her 20s, who
had repeatedly stated on her direct and cross examinations that
she had let the VECO personnel in. It concluded that for Lopez to
do nothing at all upon seeing a person being threatened by
another in the manner he described was simply contrary to human
experience.
In contrast, the RTC believed the evidence of the respondents
showing that the VOC inspection team had found the electric
meter in Sesbreño’s residence turned upside down to prevent the
accurate registering of the electricity consumption of the
household, causing them to detach and replace the meter. It held
as unbelievable that the team forcibly entered the house through
threats and intimidation; that they themselves turned the electric
meter upside down in order to incriminate him for theft of
electricity, because the fact that the team and Sesbreño had not
known each other before then rendered it unlikely for the team to
fabricate charges against him; and that Sesbreño’s non-
presentation of Chuchie Garcia left her allegation of her being
forced to sign the two documents by the team unsubstantiated.
Decision of the CA
Sesbreño appealed, but the CA affirmed the RTC on March 10,
2003,8 holding thusly:
x x x. plaintiff-appellant Sesbreño’s account is simply too
implausible or far-fetched to be believed. For one thing, the
inspection on his household was just one of many others that the
VOC Team had conducted in that subdivision. Yet, none but
plaintiff-appellant Sesbreño complained of the alleged acts of the
VOC Team. Considering that there is no proof that they also
perpetrated the same illegal acts on other customers in the guise
of conducting a Violation of Contracts inspection, plaintiff-
appellant Sesbreño likewise failed to show why he alone was
singled out. It is also difficult to believe that the VOC Team would
be brazen enough to want to antagonize a person such as
plaintiff-appellant Sesbreño. There is no evidence that the VOC
Team harbored any evil motive or grudge against plaintiff-
appellant Sesbreño, who is a total stranger to them. Until he came
along, they did not have any prior criminal records to speak of, or
at least, no evidence thereof was presented. It is equally difficult
to believe that their superiors would authorize or condone their
alleged illegal acts. Especially so since there is no indication that
prior to the incident on May 11, 1989, there was already bad blood
or animosity between plaintiff-appellant Sesbreño and defendant
appellees to warrant such a malevolent response. In fact, since
availing of defendant-appellee VECO’s power services, the
relationship between them appears to have been uneventful.
It becomes all the more apparent that the charges stemming from
the May 11, 1989 incident were fabricated when taken together
with the lower court’s evaluation of the alleged theft of plaintiff-
appellant Sesbreño’s personal effects. It stated that on August 8,
1989, plaintiff-appellant Sesbreño wrote the barangay captain of
Punta Princesa and accused Chuchie Garcia and Victoria Villarta
alias Victoria Rocamora of theft of some of his things that earlier
he claimed had been stolen by members of the VOC Team. When
he was confronted with these facts, plaintiff-appellant Sesbreño
further claimed that the items allegedly stolen by Chuchie Garcia
were part of the loot taken by defendants-appellees Constantino
and Arcilla. Yet not once did plaintiff-appellant Sesbreño or any of
his witnesses mention that a conspiracy existed between these
people. Clearly, much like his other allegations, it is nothing more
than an afterthought by plaintiff-appellant Sesbreño.
All in all, the allegations against defendants-appellees appear to
be nothing more than a put-on to save face. For the simple truth is
that the inspection exposed plaintiff-appellant Sesbreño as a likely
cheat and thief.
xxxx
Neither is this Court swayed by the testimonies of Baledio and
Lopez. The lower court rightly described their testimonies as
1âw phi 1
fraught by discrepancies and inconsistencies on material points
and even called Lopez a perjured witness. On the other hand, it is
odd that plaintiff-appellant Sesbreño chose not to present the
witness whose testimony was very crucial. But even though
Chuchie Garcia never testified, her absence speaks volumes.
Whereas plaintiff-appellant Sesbreño claimed that the VOC Team
forced her to sign two documents that made her appear to be his
authorized agent or representative, the latter claimed otherwise
and that she also gave them permission to enter and search the
house. The person most qualified to refute the VOC Team’s claim
is Chuchie Garcia herself. It is axiomatic that he who asserts a
fact or claim must prove it. He cannot transfer that burden to the
person against whom he asserts such fact or claim. When certain
evidence is suppressed, the presumption is that it will adversely
affect the cause of the party suppressing it, should it come to light.
x x x9
Upon denial of his motion for reconsideration,10 Sesbreño
appealed.
Issue
Was Sesbreño entitled to recover damages for abuse of rights?
Ruling
The appeal has no merit.
Sesbreño’s main contention is that the inspection of his residence
by the VOC team was an unreasonable search for being carried
out without a warrant and for being allegedly done with malice or
bad faith.
Before dealing with the contention, we have to note that two
distinct portions of Sesbreño’s residence were inspected by the
VOS team – the garage where the electric meter was installed,
and the main premises where the four bedrooms, living rooms,
dining room and kitchen were located.
Anent the inspection of the garage where the meter was installed,
the respondents assert that the VOC team had the continuing
authority from Sesbreño as the consumer to enter his premises at
all reasonable hours to conduct an inspection of the meter without
being liable for trespass to dwelling. The authority emanated from
paragraph 9 of the metered service contract entered into between
VECO and each of its consumers, which provided as follows:
9. The CONSUMER agrees to allow properly authorized
employees or representatives of the COMPANY to enter his
premises at all reasonable hours without being liable to trespass
to dwelling for the purpose of inspecting, installing, reading,
removing, testing, replacing or otherwise disposing of its property,
and/or removing the COMPANY’S property in the event of the
termination of the contract for any cause.11
Sesbreño contends, however, that paragraph 9 did not give
Constantino, Arcilla and Balicha the blanket authority to enter at
will because the only property VECO owned in his premises was
the meter; hence, Constantino and Arcilla should enter only the
garage. He denies that they had the right to enter the main portion
of the house and inspect the various rooms and the appliances
therein because those were not the properties of VECO. He posits
that Balicha, who was not an employee of VECO, had no authority
whatsoever to enter his house and conduct a search. He
concludes that their search was unreasonable, and entitled him to
damages in light of their admission that they had entered and
inspected his premises without a search warrant.12
We do not accept Sesbreño’s conclusion. Paragraph 9 clothed
1avv phi1
the entire VOC team with unquestioned authority to enter the
garage to inspect the meter. The members of the team obviously
met the conditions imposed by paragraph 9 for an authorized
entry. Firstly, their entry had the objective of conducting the
routine inspection of the meter.13 Secondly, the entry and
inspection were confined to the garage where the meter was
installed.14 Thirdly, the entry was effected at around 4 o’clock p.m.,
a reasonable hour.15 And, fourthly, the persons who inspected the
meter were duly authorized for the purpose by VECO.
Although Balicha was not himself an employee of VECO,16 his
participation was to render police assistance to ensure the
personal security of Constantino and Arcilla during the inspection,
rendering him a necessary part of the team as an authorized
representative. Under the circumstances, he was authorized to
enter considering that paragraph 9 expressly extended such
authority to "properly authorized employees or representatives" of
VECO.
It is true, as Sesbreño urges, that paragraph 9 did not cover the
entry into the main premises of the residence. Did this necessarily
mean that any entry by the VOS team into the main premises
required a search warrant to be first secured?
Sesbreño insists so, citing Section 2, Article III of the 1987
Constitution, the clause guaranteeing the right of every individual
against unreasonable searches and seizures, viz:
Section 2. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to
be seized.
He states that a violation of this constitutional guaranty rendered
VECO and its VOS team liable to him for damages by virtue of
Article 32 (9) of the Civil Code, which pertinently provides:
Article 32. Any public officer or employee, or any private
individual, who directly or indirectly obstructs, defeats, violates or
in any manner impedes or impairs any of the following rights and
liberties of another person shall be liable to the latter for damages:
xxxx
(9) The right to be secured in one’s person, house, papers, and
effects against unreasonable searches and seizures;
x x x x.
Sesbreño’s insistence has no legal and factual basis.
The constitutional guaranty against unlawful searches and
seizures is intended as a restraint against the Government and its
agents tasked with law enforcement. It is to be invoked only to
ensure freedom from arbitrary and unreasonable exercise of State
power. The Court has made this clear in its pronouncements,
including that made in People v. Marti,17 viz:
If the search is made upon the request of law enforcers, a warrant
must generally be first secured if it is to pass the test of
constitutionality. However, if the search is made at the behest or
initiative of the proprietor of a private establishment for its own
and private purposes, as in the case at bar, and without the
intervention of police authorities, the right against unreasonable
search and seizure cannot be invoked for only the act of private
individual, not the law enforcers, is involved. In sum, the
protection against unreasonable searches and seizures cannot be
extended to acts committed by private individuals so as to bring it
within the ambit of alleged unlawful intrusion by the government.18
It is worth noting that the VOC inspectors decided to enter the
main premises only after finding the meter of Sesbreño turned
upside down, hanging and its disc not rotating. Their doing so
would enable them to determine the unbilled electricity consumed
by his household. The circumstances justified their decision, and
their inspection of the main premises was a continuation of the
authorized entry. There was no question then that their ability to
determine the unbilled electricity called for them to see for
themselves the usage of electricity inside. Not being agents of the
State, they did not have to first obtain a search warrant to do so.
Balicha’s presence participation in the entry did not make the
inspection a search by an agent of the State within the ambit of
the guaranty. As already mentioned, Balicha was part of the team
by virtue of his mission order authorizing him to assist and escort
the team during its routine inspection.19 Consequently, the entry
into the main premises of the house by the VOC team did not
constitute a violation of the guaranty.
Our holding could be different had Sesbreño persuasively
demonstrated the intervention of malice or bad faith on the part of
Constantino and Arcilla during their inspection of the main
premises, or any excessiveness committed by them in the course
of the inspection. But Sesbreño did not. On the other hand, the
CA correctly observed that the inspection did not zero in on
Sesbreño’s residence because the other houses within the area
were similarly subjected to the routine inspection.20 This, we think,
eliminated any notion of malice or bad faith.
Clearly, Sesbreño did not establish his claim for damages if the
respondents were not guilty of abuse of rights. To stress, the
concept of abuse of rights prescribes that a person should not use
his right unjustly or in bad faith; otherwise, he may be liable to
another who suffers injury. The rationale for the concept is to
present some basic principles to be followed for the rightful
relationship between human beings and the stability of social
order.21 Moreover, according to a commentator,22 "the exercise of
right ends when the right disappears, and it disappears when it is
abused, especially to the prejudice of others[;] [i]t cannot be said
that a person exercises a right when he unnecessarily prejudices
another." Article 19 of the Civil Code23 sets the standards to be
observed in the exercise of one’s rights and in the performance of
one’s duties, namely: (a) to act with justice; (b) to give everyone
his due; and (c) to observe honesty and good faith. The law
thereby recognizes the primordial limitation on all rights – that in
the exercise of the rights, the standards under Article 19 must be
observed.24
Although the act is not illegal, liability for damages may arise
should there be an abuse of rights, like when the act is performed
without prudence or in bad faith. In order that liability may attach
under the concept of abuse of rights, the following elements must
be present, to wit: (a) the existence of a legal right or duty, (b)
which is exercised in bad faith, and (c) for the sole intent of
prejudicing or injuring another.25 There is no hard and fast rule that
can be applied to ascertain whether or not the principle of abuse
of rights is to be invoked. The resolution of the issue depends on
the circumstances of each case.
Sesbreño asserts that he did not authorize Baledio or Chuchie
Garcia to let anyone enter his residence in his absence; and that
Baledio herself confirmed that the members of the VOC team had
intimidated her into letting them in.
The assertion of Sesbreño is improper for consideration in this
appeal. The RTC and the CA unanimously found the testimonies
1âwphi1
of Sesbreño’s witnesses implausible because of inconsistencies
on material points; and even declared that the non-presentation of
Garcia as a witness was odd if not suspect. Considering that such
findings related to the credibility of the witnesses and their
testimonies, the Court cannot review and undo them now because
it is not a trier of facts, and is not also tasked to analyze or weigh
evidence all over again.26 Verily, a review that may tend to
supplant the findings of the trial court that had the first-hand
opportunity to observe the demeanor of the witnesses themselves
should be undertaken by the Court with prudent hesitation. Only
when Sesbreño could make a clear showing of abuse in their
appreciation of the evidence and records by the trial and the
appellate courts should the Court do the unusual review of the
factual findings of the trial and appellate courts.27 Alas, that
showing was not made here.
Nor should the Court hold that Sesbreño was denied due process
by the refusal of the trial judge to inhibit from the case. Although
the trial judge had issued an order for his voluntary inhibition, he
still rendered the judgment in the end in compliance with the
instruction of the Executive Judge, whose exercise of her
administrative authority on the matter of the inhibition should be
respected.28 In this connection, we find to be apt the following
observation of the CA, to wit:
x x x. Both Judge Paredes and Judge Priscila Agana serve the
Regional Trial Court and are therefore of co-equal rank. The latter
has no authority to reverse or modify the orders of Judge
Paredes. But in ordering Judge Paredes to continue hearing the
case, Judge Agana did not violate their co-equal status or
unilaterally increased her jurisdiction. It is merely part of her
administrative responsibilities as Executive Judge of the Regional
Trial Court of Cebu City, of which Judge Paredes is also a
member.29
Lastly, the Court finds nothing wrong if the writer of the decision in
the CA refused to inhibit from participating in the resolution of the
motion for reconsideration filed by Sesbrefio. The motion for her
inhibition was grounded on suspicion of her bias and
prejudice,30 but suspicion of bias and prejudice were not enough
grounds for inhibition.31
Suffice it to say that the records are bereft of any indication that
even suggested that the Associate Justices of the CA who
participated in the promulgation of the decision were tainted with
bias against him.
WHEREFORE, the Court DENIES the pet1t1on for review on
certiorari; AFFIRMS the decision promulgated on March 10, 2003;
and DIRECTS the petitioner to pay the costs of suit.
SO ORDERED.
 Lim v. Felix
GUTIERREZ, JR., J.:
May a Judge without ascertaining the facts through
his own personal determination and relying solely on
the certification or recommendation of a prosecutor
that a probable cause exists issue a warrant of
arrest?
On March 17, 1989, at about 7:30 o'clock in the
morning, at the vicinity of the airport road of the
Masbate Domestic Airport, located at the
municipality of Masbate province of Masbate,
Congressman Moises Espinosa, Sr. and his security
escorts, namely Provincial Guards Antonio Cortes,
Gaspar Amaro, and Artemio Fuentes were attacked
and killed by a lone assassin. Dante Siblante
another security escort of Congressman Espinosa,
Sr. survived the assassination plot, although, he
himself suffered a gunshot wound.
An investigation of the incident then followed.
Thereafter, and for the purpose of preliminary
investigation, the designated investigator, Harry O.
Tantiado, TSg, of the PC Criminal Investigation
Service at Camp Bagong Ibalon, Legazpi City filed an
amended complaint with the Municipal Trial Court of
Masbate accusing, among others, Vicente Lim, Sr.,
Mayor Susana Lim of Masbate (petitioners in G.R.
Nos. 94054-57), Jolly T. Fernandez, Florencio T.
Fernandez, Jr., Nonilon A. Bagalihog, Mayor Nestor
C. Lim and Mayor Antonio Kho (petitioners in G.R.
Nos. 94266-69) of the crime of multiple murder and
frustrated murder in connection with the airport
incident. The case was docketed as Criminal Case
No. 9211.
After conducting the preliminary investigation, the
court issued an order dated July 31, 1989 stating
therein that:
"xxx after weighing the affidavits and answers given
by the witnesses for the prosecution during the
preliminary examination in searching questions and
answers, concludes that a probable cause has been
established for the issuance of a warrant of arrest of
named accused in the amended complaint, namely,
Jimmy Cabarles, Ronnie Fernandez, Nonilon
Bagalihog, Jolly Fernandez, Florencio Fernandez,
Jr., Vicente Lim, Sr., Susana Lim, Nestor Lim,
Antonio Kho, Jaime Liwanag, Zaldy Dumalag and
Rene Tualla alias Tidoy." (Rollo, p. 58, G.R. Nos.
94054-57)
xxx xxx xxx
In the same Order, the court ordered the arrest of
the petitioners and recommended the amount of
P200,000.00 as bail for the provisional liberty of
each of the accused.
Petitioners Jolly Fernandez and Nonilon Bagalihog
filed a motion for the reduction of bail which was
granted by the court and they were allowed to post
bail in the amount of P150,000.00 each. Except for
Jimmy Cabarles, all the rest of the accused posted
bail at P200,000.00 each.
On August 29, 1989, the entire records of the case
consisting of two hundred sixty one (261) pages were
transmitted to the Provincial Prosecutor of
Masbate. Respondent Acting Fiscal Antonio C.
Alfane was designated to review the case.
On September 22, 1989, Fiscal Alfane issued a
Resolution which affirmed the finding of a prima
facie case against the petitioners but differed in the
designation of the crime in that he ruled that "xxx all
of the accused should not only be charged with
Multiple Murder With Frustrated Murder" but for a
case of MURDER for each of the killing of the four
victims and a physical injuries case for inflicting
gunshot wound on the buttocks of Dante Siblante."
(Annex 'H', Comment of Fiscal Alfane, p. 186, Rollo,
G.R. Nos. 94054-57) A motion to reconsider the
Resolution filed by petitioners Vicente Lim, Sr. and
Mayor Susana Lim was denied.
On October 30, 1989, Fiscal Alfane filed with the
Regional Trial Court of Masbate, four (4) separate
informations of murder against the twelve (12)
accused with a recommendation of no bail.
On November 21,1989, petitioners Vicente Lim, Sr.
and Susana Lim filed with us a verified petition for
change of venue. (Case No. A.M. No. 89-11-1270-
MTC, formerly, G.R. Nos. 90587-90).
On December 14, 1989, we issued an en banc
Resolution authorizing the change of venue from the
Regional Trial Court of Masbate to the Regional Trial
Court of Makati to avoid a miscarriage of justice, to
wit:
"Acting on the petition for change of venue of the
trial of Criminal Cases Nos. 5811, 5812, 5813, and
5814 from the Regional Trial Court, Masbate,
Masbate to any of the Regional Trial Courts at
Quezon City or Makati, the Court Resolved to (a)
GRANT the aforesaid petition for transfer of venue in
order to avoid miscarriage of justice (Article VIII,
Section 5(4) of the Philippine Constitution); (b)
DIRECT the Clerk of Court, Regional Trial Court,
Masbate, Masbate to transmit the records of the
aforesaid cases to the Executive Judge, Regional
Trial Court, Makati, for raffling among the other
branches of the court; and (c) ORDER the Regional
Trial Court of Masbate, Masbate to desist from
further taking cognizance of the said cases until
such time that the petition is finally resolved."
The cases were raffled to Branch 56 presided by
respondent Judge Nemesio S. Felix.
Petitioners Vicente Lim, Sr. and Susana Lim filed
with the respondent court several motions and
manifestations which in substance prayed for the
following:
"1. An order be issued requiring the transmittal of
the initial records of the preliminary inquiry or
investigation conducted by the Municipal Judge
Barsaga of Masbate for the best enlightenment of
this Honorable Court in its personal determination of
the existence of a probable cause or prima facie
evidence as well as its determination of the existence
of guilt, pursuant to the mandatory mandate of the
constitution that no warrant shall issue unless the
issuing magistrate shall have himself been
personally convinced of such probable cause.
2. Movants be given ample opportunity to file their
motion for preliminary investigation as a matter of
right; and
3. In the event that this court may later be convinced
of the existence of a probable cause, to be allowed to
file a motion for reduction of bail or for admission of
bail." (p. 17, Rollo, G.R. Nos. 94054-57).
In another manifestation, the Lims reiterated that
the court conduct a hearing to determine if there
really exists a prima facie case against them in the
light of documents which are recantations of some
witnesses in the preliminary investigation. The
motions and manifestations were opposed by the
prosecution.
On July 5, 1990, the respondent court issued an
order denying for lack of merit the motions and
manifestations and issued warrants of arrest against
the accused including the petitioners herein. The
respondent Judge said:
"In the instant cases, the preliminary investigation
was conducted by the Municipal Trial Court of
Masbate, Masbate which found the existence of
probable cause that the offense of multiple murder
was committed and that all the accused are probably
guilty thereof, which was affirmed upon review by
the Provincial Prosecutor who properly filed with the
Regional Trial Court four separate informations for
murder. Considering that both the two competent
officers to whom such duty was entrusted by law
have declared the existence of probable cause, each
information is complete in form and substance, and
there is no visible defect on its face, this Court finds
it just and proper to rely on the prosecutor's
certification in each information which reads:" (pp.
19-20, Rollo, G.R. Nos. 94054-57; Emphasis
supplied)
xxx xxx xxx
The petitioners then filed these consolidated
petitions questioning the July 5, 1990 Order.
In a Resolution dated July 17, 1990 in G.R. Nos.
94054-57, we issued "xxx a TEMPORARY
RESTRAINING ORDER, effective immediately and
continuing until further orders from this Court,
ordering the respondent judge or his duly authorized
representatives or agents to CEASE and DESIST
from enforcing or implementing the warrant of arrest
without bail issued against the petitioners in his
Order dated July 5, 1990 in Criminal Cases Nos.
5811-14."
In another Resolution dated July 31, 1990 in G.R.
Nos. 94266-69, we resolved:
xxxxxxxxx Constitution which provides:

"xxxTo ISSUE writs of (1) PRELIMINARY "'x x x no search warrant or warrant of arrest shall
MANDATORY INJUNCTION, ordering and directing issue except upon probable cause to be determined
the respondent judge to recall/set aside and/or by the judge, or such other responsible officer as
annul the legal effects of the warrants of arrest may authorized by law, after examination under oath
without bail issued against and served upon herein or affirmation of the complainant and the witnesses
petitioners Jolly T. Fernandez, Florencio T. he may produce x x x."
Fernandez, Jr. and Nonilon Bagalihog and release
We ruled:
them from confinement at PC-CIS Detention Center,
Camp Crame, Quezon City; and (2) TEMPORARY
"x x x The issuance of a warrant is not a mere
RESTRAINING ORDER, effective immediately and
ministerial function; it calls for the exercise of
continuing until further orders from this Court,
judicial discretion on the part of the issuing
ordering the respondent judge or his duly authorized
magistrate. This is clear from the following
representatives or agents, to CEASE and DESIST
provisions of Section 6, Rule 112 of the Rules of
from enforcing or implementing the warrants of
Court.
arrest without bail issued against petitioners Mayors
Nestor C. Lim and Antonio T. Kho." Warrant of arrest, when issued. - If the judge be
satisfied from the preliminary examination
The primary issue in these consolidated petitions
conducted by him or by the investigating officer that
centers on whether or not a judge may issue a
the offense complained of has been committed and
warrant of arrest without bail by simply relying on
that there is reasonable ground to believe that the
the prosecution's certification and recommendation
accused has committed it, he must issue a warrant
that a probable cause exists.
or order for his arrest.
This is not a novel question. In the case of Placer v.
Under this section, the judge must satisfy himself of
Villanueva (126 SCRA 463 [1983]), we ruled that a
the existence of probable cause before issuing a
judge may rely upon the fiscal's certification of the
warrant or order of arrest. If on the face of the
existence of probable cause and, on the basis
information the judge finds no probable cause, he
thereof, issue a warrant of arrest. However, the
may disregard the fiscal's certification and require
certification does not bind the judge to come out
the submission of the affidavits of witnesses to aid
with the warrant of arrest. This decision interpreted
him in arriving at a conclusion as to the existence of
the "search and seizure" provision of the 1973
a probable cause. This has been the rule since U. S.
v. Ocampo (18 Phil. 1) and Amarga v. Abbas (98 Phil.
739). And this evidently is the reason for the
issuance by respondent of the questioned orders of
April 13, 15, 16, 19, 1982 and July 13,
1982. Without the affidavits of the prosecution
witnesses and other evidence which, as a matter of
long-standing practice had been attached to the
information filed in his sala, respondent found the
informations inadequate bases for the determination
of probable cause. For as the ensuing events would
show, after petitioners had submitted the required
affidavits, respondent wasted no time in issuing the
warrants of arrest in the case where he was satisfied
that probable cause existed."
The case of Soliven v. Makasiar (167 SCRA 393
[1988]) was decided after the effectivity of the 1987
Constitution. We stated:
"The second issue, raised by petitioner Beltran, calls
for an interpretation of the constitutional provision
on the issuance of warrants of arrest. The pertinent
provision reads:
'Art. III, Sec. 2. The right of the people to be secure
in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge after examination under oath
or affirmation of the complainant and the witnesses
he may produce, and particularly describing the
place to be searched and the persons or things to be
seized.'
The addition of the word 'personally' after the word
'determined' and the deletion of the grant of
authority by the 1973 Constitution to issue warrants
to 'other respondent officers as may be authorized by
law', has apparently convinced petitioner Beltran
that the Constitution now requires the judge to
personally examine the complainant and his
witnesses in his determination of probable cause for
the issuance of warrants of arrest. This is not an
accurate interpretation.
What the Constitution underscores is the exclusive
and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause. In
satisfying himself of the existence of probable cause
for the issuance of a warrant of arrest, the judge is
not required to personally examine the complainant
and his witnesses. Following established doctrine
and procedures, he shall: (1) personally evaluate the
report and the supporting documents submitted by
the fiscal regarding the existence of probable cause
and, on the basis thereof, issue a warrant of arrest;
or (2) if on the basis thereof he finds no probable
cause, he may disregard the fiscal's report and
require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to
the existence of probable cause.
Sound policy dictates this procedure, otherwise
judges would be unduly laden with the preliminary
examinations and investigation of criminal
complaints instead of concentrating on hearing and determines probable cause for the issuance of a
deciding cases filed before their courts." warrant of arrest from the preliminary investigation
proper which ascertains whether the offender should
The decision in People v. Honorable Enrique B.
be held for trial or released. Even if the two inquiries
Inting, et al. (G.R. No. 88919, July 25, 1990),
are conducted in the course of one and the same
reiterated the above interpretation of "personal"
proceeding, there should be no confusion about the
determination by the Judge: objectives. The determination of probable cause for
the warrant of arrest is made by the Judge. The
"We emphasize important features of the
preliminary investigation proper - whether or not
constitutional mandate that `x x x no search warrant there is reasonable ground to believe that the
or warrant of arrest shall issue except upon probable
accused is guilty of the offense charged and,
cause to be determined personally the by judge x x x'
therefore, whether or not he should be subjected to
(Article III, Section 2, Constitution).
the expense, rigors and embarrassment of trial - is
the function of the Prosecutor.
First, the determination of probable cause is a
function of the Judge. It is not for the Provincial
The Court made this clear in the case of Castillo v.
Fiscal or Prosecutor nor for the Election Supervisor
Villaluz (171 SCRA 39 [1989]):
to ascertain. Only the Judge and the Judge alone
makes this determination.
`Judges of Regional Trial Courts (formerly Courts of
First Instance) no longer have authority to' conduct
Second, the preliminary inquiry made by a
preliminary investigations, That authority, at one
Prosecutor does not bind the Judge. It merely
time reposed in them under Sections 13, 14 and 16,
assists him to make the determination of probable Rule 112 of the Rules of Court of 1964, (See Sec. 4,
cause. The Judge does not have to follow what the
Rule 108, Rules of Court of 1940; People v. Solon, 47
Prosecutor presents to him. By itself, the
Phil. 443, cited in Moran, Comments on the Rules,
Prosecutor's certification of probable cause is
1980 ed., Vol. 4, pp. 115-116) was removed from
ineffectual. It is the report, the affidavits, the
them by the 1985 Rules on Criminal Procedure,
transcripts of stenographic notes (if any), and all
effective on January 1, 1985, (Promulgated on
other supporting documents behind the Prosecutor's
November 11, 1984) which deleted all provisions
certification which are material in assisting the
granting that power to said Judges. We had
Judge to make his determination. occasion to point this out in Salta v. Court of
Appeals, 143 SCRA 228, and to stress as well certain
And third, Judges and Prosecutors alike should other basic propositions, namely: (1) that the
distinguish the preliminary inquiry which
conduct of a preliminary investigation is 'not a
judicial function x x x (but) part of the prosecution's
job, a function of the executive,' (2) that whenever
`there are enough fiscals or prosecutors to conduct
preliminary investigations, courts are counseled to
leave this job which is essentially executive to them,'
and the fact 'that a certain power is granted does not
necessary mean that it should be indiscriminately
exercised.
The 1988 Amendments to the 1985 Rules on
Criminal Procedure, declared effective on October 1,
1988, (The 1988 Amendments were published in the
issue of Bulletin Today of October 29, 1988) did not
restore that authority to Judges of Regional Trial
Courts; said amendments did not in fact deal at all
with the officers or courts having authority to
conduct preliminary investigations.
This is not to say, however, that somewhere along
the line RTC Judges also lost the power to make a
preliminary examination for the purpose of
determining whether probable cause exists to justify
the issuance of a warrant of arrest (or search
warrant). Such a power -- indeed, it is as much a
duty as it is a power -- has been and remains vested
in every judge by the provisions in the Bill of Rights
in the 1935, the 1973 and the present [1987]
Constitutions securing the people against
unreasonable searches and seizures, thereby placing
it beyond the competence of mere Court Rule or
Statute to revoke. The distinction must, therefore,
be made clear while an RTC Judge may no longer
conduct preliminary investigations to ascertain
whether there is sufficient ground for the filing of a
criminal complaint or information, he retains the
authority, when such a pleading is filed with his
court, to determine whether there is probable cause
justifying the issuance of a warrant of arrest. It
might be added that this distinction accords, rather
than conflicts, with the rationale of Salta because
both law and rule, in restricting to judges the
authority to order arrest, recognize the function to be
judicial in nature.'
We reiterate that preliminary investigation should be
distinguished as to whether it is an investigation for
the determination of a sufficient ground for the filing
of the information or it is an investigation for the
determination of a probable cause for the issuance of
warrant of arrest. The first kind of preliminary
investigation is executive in nature. It is part of the
prosecution's job. The second kind of preliminary
investigation which is more properly called
preliminary examination is judicial in nature and is
lodged with the Judge. x x x."
Finally in the recent case of People v. Delgado, et
al. (G. R. Nos. 93419-32, September 18, 1990) there
is a statement that the judge may rely on the
resolution of COMELEC to file the information by the
same token that it may rely on the certification made
by the prosecutor who conducted the preliminary
investigation in the issuance of the warrant of
arrest. We, however, also reiterated that "x x x the
court may require that the record of the preliminary
investigation be submitted to it to satisfy itself that
there is probable cause which will warrant the
issuance of a warrant of arrest." (Section 2, Article
III, Constitution). Reliance on the COMELEC
resolution or the Prosecutor's certification
presupposes that the records of either the COMELEC
or the Prosecutor have been submitted to the Judge
and he relies on the certification or resolution
because the records of the investigation sustain the
recommendation. The warrant issues not on the
strength of the certification standing alone but
because of the records which sustain it.
It is obvious from the present petition that
notwithstanding the above decisions, some Judges
are still bound by the inertia of decisions and
practice under the 1935 and 1973 Constitutions and
are sadly confused or hesitant. Prosecutors are also
interested in a clear cut ruling. We will, therefore,
restate the rule in greater detail and hopefully
clearer terms.
There is no problem with search warrants which are
relatively fewer and far between and where there is
no duplication of work between the Judge and the
Prosecutor. The problem lies with warrants of arrest
especially in metropolitan or highly urban areas. If a
judge has to personally question each complainant
and witness or go over the records of the
Prosecutor's investigation page by page and word for
word before he acts on each of a big pile of
applications for arrest warrants on his desk, he or
she may have no more time for his or her more
important judicial functions.
At the same time, the Judge cannot ignore the clear
words of the 1987 Constitution which requires "x x x
probable cause to be personally determined by the
Judge x x x", not by any other officer or person.
If a Judge relies solely on the certification of the
Prosecutor as in this case where all the records of
the investigation are in Masbate, he or she has
not personally determined probable cause. The
determination is made by the Provincial
Prosecutor. The constitutional requirement has not
been satisfied. The Judge commits a grave abuse of
discretion.
The records of the preliminary investigation
conducted by the Municipal Court of Masbate and
reviewed by the respondent Fiscal were still in
Masbate when the respondent Fiscal issued the
warrants of arrest against the petitioners. There was
no basis for the respondent Judge to make his own
personal determination regarding the existence of a
probable cause for the issuance of a warrant of
arrest as mandated by the Constitution. He could
not possibly have known what transpired in Masbate
as he had nothing but a certification. Significantly,
the respondent Judge denied the petitioners' motion
for the transmittal of the records on the ground that
the mere certification and recommendation of the
respondent Fiscal that a probable cause exists is
sufficient for him to issue a warrant of arrest.
We reiterate the ruling in Soliven v. Makasiar that
the Judge does not have to personally examine the
complainant and his witnesses. The Prosecutor can
perform the same functions as a commissioner for
the taking of the evidence. However, there should be
a report and necessary documents supporting the
Fiscal's bare certification. All of these should be
before the Judge.
The extent of the Judge's personal examination of
the report and its annexes depends on the
circumstances of each case. We cannot determine
beforehand how cursory or exhaustive the Judge's
examination should be. The Judge has to exercise
sound discretion for, after all, the personal
determination is vested in the Judge by the
Constitution. It can be as brief or as detailed as the
circumstances of each case require. To be sure, the
Judge must go beyond the Prosecutor's certification
and investigation report whenever necessary. He
should call for the complainant and witnesses
themselves to answer the court's probing questions
when circumstances of the case so require.
It is worthy to note that petitioners Vicente Lim, Sr.
and Susana Lim presented to the respondent Judge
documents of recantation of witnesses whose
testimonies were used to establish a prima facie case
against them. Although, the general rule is that
recantations are not given much weight in the
determination of a case and in the granting of a new
trial (Tan Ang Bun v. Court of Appeals, et al. G. R.
No. L-47747, February 15, 1990, People v. Lao Wan
Sing, 46 SCRA 298 [1972]) the respondent Judge
before issuing his own warrants of arrest should, at
the very least, have gone over the records of the
preliminary examination conducted earlier in the
light of the evidence now presented by the concerned
witnesses in view of the "political undertones"
prevailing in the cases. Even the Solicitor General
recognized the significance of the recantations of
some witnesses when he recommends a
reinvestigation of the cases, to wit:
"It must be pointed out, however, that among the
documents attached to this Petition are `affidavits of
recantation subsequently executed by Jimmy
Cabarles and Danilo Lozano and an affidavit
executed by one, Camilo Sanano, father of the
complainant's witnesses, Renato and Romeo
Sanano. It was precisely on the strength of these
earlier written statements of these witnesses that the
Municipal Trial Court of Masbate found the existence
of a prima facie case against petitioners and
accordingly recommended the filing of a Criminal
Information. Evidently, the same written
statements were also the very basis of the 'Fiscal's
Certification', since the attached affidavits of
recantation were not yet then available. Since the
credibility of the prosecution witnesses is now
assailed and put in issue and, since the petitioners
have not yet been arraigned, it would be to the
broader interest of justice and fair play if a
reinvestigation of this case be had to secure the
petitioners against hasty prosecution and to protect
them from an open and public accusation of crime,
from the trouble, expense and anxiety of a public
trial, and also to protect the State from useless and
expensive trials (Salonga v. Paño, G. R. No. 59524,
February 18, 1985). (Rollo of G. R. Nos. 94054-56,
pp. 200-201)
We reiterate that in making the required personal
determination, a Judge is not precluded from relying
on the evidence earlier gathered by responsible
officers. The extent of the reliance depends on the
circumstances of each case and is subject to the
Judge's sound discretion. However, the Judge
abuses that discretion when having no evidence
before him, he issues a warrant of arrest.
Indubitably, the respondent Judge committed a
grave error when he relied solely on the Prosecutor's
certification and issued the questioned Order dated
July 5, 1990 without having before him any other
basis far his personal determination of the existence
of a probable cause.
WHEREFORE, the instant petitions are hereby
GRANTED. The questioned Order of respondent
Judge Nemesio S. Felix of Branch 56, Regional Trial
Court of Makati dated July 5, 1990 is declared NULL
and VOID and SET ASIDE. The Temporary
Restraining Orders and Preliminary Mandatory
Injunction issued in the instant Petitions are made
PERMANENT.
SO ORDERED.
[G.R. No. 188133, July 07, 2014]
PEOPLE OF THE PHILIPPINES, APPELLEE, VS.
OLIVER RENATO EDAÑO Y EBDANE, APPELLANT.
BRION, J.:
We resolve in this appeal the challenge to the
October 16, 2008 decision[1] and the December 23,
2008 resolution[2] of the Court of Appeals (CA) in CA-
G.R. CR HC No. 01142. The challenged CA decision
affirmed the April 22, 2004 joint decision[3] of the
Regional Trial Court (RTC), Branch 103, Quezon
City, finding appellant Oliver Renato Edaño guilty
beyond reasonable doubt of violating Section 11,
Article II of Republic Act (R.A.) No. 9165 (the
Comprehensive Dangerous Drugs Act of 2002), and
imposing on him the penalty of life
imprisonment. The assailed resolution, on the other
hand, denied the appellant's motion for
reconsideration.
BACKGROUND FACTS
The prosecution charged the appellant and
Godofredo Siochi with violation of Section 11, Article
II of R.A. No. 9165 under two separate Informations,
docketed as Criminal Case Nos. Q-02-111200 and
Q-02-112104.
The appellant and Siochi pleaded not guilty to the
charge on arraignment. Joint trial on the merits
followed.

The prosecution presented, as its witnesses, Police
Inspector (P/Insp.) Aylin Casignia and Police Officer
(PO) 3 Elmer Corbe. The appellant, Siochi and
Ruben Forteza took the witness stand for the
defense.
The evidence for the prosecution established that on
the evening of August 6, 2002, members of the Metro
Manila Drugs Enforcement Group, composed of PO3
Corbe, PO3 Nelson Javier, PO3 Dennis Padpad, PO3
Marcelo Alcancia, Jr., together with a female
informant, went to the parking area of McDonalds,
West Avenue to conduct an entrapment operation
against a certain alias "Nato."[4]
At around 7:00 p.m., the appellant arrived on board
a space wagon driven by Siochi.[5] The informant
approached the appellant and talked to him inside
the vehicle. Afterwards, the informant waved at PO3
Corbe.[6] When PO3 Corbe was approaching the
appellant, the latter went out of the vehicle and ran
away. PO3 Corbe, PO3 Padpad and PO3 Alcancia
chased the appellant; PO3 Corbe was able to grab
the appellant, causing the latter to fall on the
ground. PO3 Corbe recovered a "knot-tied"
transparent plastic bag from the appellant's right
hand, while PO3 Alcancia seized a gun tucked in the
appellant's waist. The other members of the police
arrested Siochi. Thereafter, the police brought the
appellant, Siochi and the seized items to the police
station for investigation.[7]
P/Insp. Casignia, the Forensic Chemical Officer of
the Western Police District Crime Laboratory,
examined the seized items and found them positive
for the presence of shabu.[8]
The appellant, for his part, testified that at around
4:00 p.m. on August 6, 2002, he called Siochi on the
phone, and informed him that the motorbike starter
the latter needed was already available.[9] On the
same day, Vanessa Paduada called the appellant,
and asked for the directions to McDonalds, West
Avenue.[10] At around 6:00 p.m., Siochi and Ruben
arrived at the gate of Philam Homes on board a
space wagon. The appellant met them at the
subdivision gate, and showed the starter to
Siochi. Thereafter, Vanessa called on the appellant's
cellular phone. The appellant then boarded the
vehicle, and told Siochi that he would just talk to a
person at McDonalds.[11] When the space wagon
arrived at McDonalds, the appellant alighted from
the vehicle and proceeded towards the restaurant's
entrance. Afterwards, Vanessa called him from
inside a parked car. The appellant approached
Vanessa who, for her part, alighted from the car.
Vanessa told the appellant to get inside the car's
rear. The appellant did as instructed; Vanessa went
to the front passenger seat, beside a male
driver.[12] Immediately after, the male driver alighted
from the vehicle and entered the car's rear. The
appellant went out of the car, but the male driver
followed him and grabbed his hand. The appellant
resisted, and wrestled with the driver along West
Avenue. During this commotion, the appellant
heard a gunfire; four (4) persons approached him,
and then tied his hands with a masking tape.[13] The
police placed him on board a pick-up truck, and
then brought him to Bicutan. In Bicutan, the police
brought him to the interrogation room, where they
punched him and placed a plastic on his head.[14]
In its joint decision dated April 22, 2004, the RTC
found the appellant guilty beyond reasonable doubt
of illegal possession of shabu under Section 11,
Article II of R.A. No. 9165, and sentenced him to
suffer the penalty of life imprisonment. It also
ordered him to pay a P500,000.00 fine.
The RTC, however, acquitted Siochi on the ground of
reasonable doubt.
On appeal, the CA affirmed the RTC decision in
toto. The CA found PO3 Corbe to be a credible
witness. The CA also found the appellant's
warrantless arrest to be valid; it explained that the
appellant's act of running when PO3 Corbe was
approaching him reinforced the latter's suspicion
that "something was amiss."[15]
The CA added that strict compliance with Section
21, Article II of R.A. No. 9165 was not required as
long as the integrity of the seized item had been
ensured. It further held that the police officers were
presumed to have regularly performed their official
duties.
Finally, the CA held that the prosecution was able to
establish all the elements of illegal possession of
shabu.
The appellant moved to reconsider this decision, but
the CA denied his motion in its resolution dated
December 23, 2008.
In his brief[16] and supplemental brief,[17] the
appellant essentially alleged that PO3 Corbe's
testimony was "vague and equivocal;"[18] it lacked
details on how the appellant was lured to sell shabu
to the informant, and how the entrapment operation
had been planned. The appellant also argued that
his warrantless arrest was illegal since he was not
committing any crime when the police arrested
him. He also claimed that the police did not mark
and photograph the seized items, and that there was
a broken chain of custody over the confiscated
drugs.
The Office of the Solicitor General (OSG) counters
with the argument that the testimony of PO3 Corbe
was clear and convincing; the inconsistencies in his
court testimony pertained only to minor details. It
also claimed that the appellant's arrest was valid,
and the seized shabu was admissible in attributed to the appellant to rouse suspicion in the
evidence. Finally, the OSG maintained that there mind of PO3 Corbe that he (appellant) had just
was no break in the chain of custody over the seized committed, was actually committing, or was
plastic bag containing shabu.[19] attempting to commit a crime. In fact, PO3 Corbe
testified that the appellant and the informant
THE COURT'S RULING were just talking with each other when he
approached them. For clarity and certainty, we
After due consideration, we resolve to ACQUIT the
reproduce PO3 Corbe's court testimony dated
appellant.
February 21, 2003, thus:
Warrantless arrest invalid;
seized items inadmissible ATTY. RENATO SARMIENTO:
You and the informant were not able to
Section 5(a), Rule 113 of the Rules of Criminal
Q: approach Nato because he sense[d] that you
Procedure provides that a peace officer or a private
are (sic) a policeman?
person may, without a warrant, arrest a person
when, in his presence, the person to be arrested has PO3 CORBE:
committed, is actually committing, or is attempting
Our informant first approached Renato
to commit an offense. This is known an arrest in
A: Edano[,] and they talked but when he (sic)
flagrante delicto.[20]
called me, Renato run (sic), sir.
"For a warrantless arrest of an accused caught in You said tinawag ka[,] who was that that call
Q:
flagrante delicto to be valid, two requisites must (sic) you?
concur: (1) the person to be arrested must execute
an overt act indicating that he has just committed, is A: Team informant, sir.
actually committing, or is attempting to commit a xxxx
crime; and (2) such overt act is done in the presence
or within the view of the arresting officer."[21] Q: How did she call you?
A: She waived (sic) her had (sic), sir.
In the present case, there was no overt act indicative
of a felonious enterprise that could be properly Q: What was she doing?
A: She was talking to Alias Nato[,] sir. prohibited drug and gun inside the space wagon
when he approached it.
Q: Did you hear what they are talking? (sic)
I was still in the car[.] I was not able to hear[,] That the appellant attempted to run away when PO3
A:
sir. Corbe approached him is irrelevant and cannot by
itself be construed as adequate to charge the police
How would you know that they are talking, Mr.
Q: officer with personal knowledge that the appellant
Witness? (sic)
had just engaged in, was actually engaging in or was
A: I could see them, sir. attempting to engage in criminal activity.

Q: What did you see? As the Court explained in People v. Villareal:[23]

A: They were talking, sir.
They were not exchanging stuff and money,
Q:
Mr. witness?
A: Not yet, sir.
While talking[,] the female informant call[ed]
Q:
you, Mr. Witness?
A: Yes, sir.[22] (emphases ours)
As testified to by PO3 Corbe himself, the appellant
and the informant were just talking to each other;
there was no exchange of money and drugs when he
approached the car. Notably, while it is true that the
informant waved at PO3 Corbe, the latter admitted
that this was not the pre-arranged signal to signify
that the sale of drugs had been consummated. PO3
Corbe also admitted on cross-examination that he
had no personal knowledge on whether there was a
Furthermore, appellant's act of darting away when
PO3 de Leon approached him should not be
construed against him. Flight per se is not
synonymous with guilt and must not always be
attributed to one's consciousness of guilt. It is not a
reliable indicator of guilt without other
circumstances, for even in high crime areas there are
many innocent reasons for flight, including fear of
retribution for speaking to officers, unwillingness to
appear as witnesses, and fear of being wrongfully
apprehended as a guilty party. Thus, appellant's
attempt to run away from PO3 de Leon is susceptible
of various explanations; it could easily have meant
guilt just as it could likewise signify innocence.[24]
In other words, trying to run away when no crime
has been overtly committed, and without more,
cannot be evidence of guilt.
 drugs seized from him, instead of doing the marking
Considering that the appellant's warrantless arrest themselves. To directly quote from the records:
was unlawful, the search and seizure that resulted
from it was likewise illegal. Thus, the alleged plastic
bag containing white crystalline substances seized
ATTY. SARMIENTO:
from him is inadmissible in evidence, having come
from an invalid search and seizure. This item was not marked at the place allegedly
where you apprehended the suspect at
Q:
Corpus delicti not proved with moral certainty McDonald's, West Avenue, Quezon City, am I
correct to say that?
Even granting, for the sake of argument, that the
PO3 CORBE:
appellant's warrantless arrest was valid, the latter's
acquittal is still in order due to the prosecution's A: Yes, sir.
failure to establish the evidence of the corpus
delicti with moral certainty. You are also required not only to mark it but to
Q: put your initial to it, my question did you
We stress that "[t]he existence of dangerous drugs is place your initial in this evidence? (sic)
a condition sine qua non for conviction for the illegal A: No, sir.
sale and possession of dangerous drugs, it being the
very corpus delicti of the crimes."[25] Thus, the Q: You did not, Mr. Witness?
evidence of the corpus delicti must be established A: No, sir.
beyond reasonable doubt.
You were also required to put the date of
In the present case, the various lapses enumerated apprehension, being the arresting officer, did
Q:
and discussed below committed by the police in the you put the date in this evidence, Mr.
handling, safekeeping and custody over the seized Witness?
drug tainted the integrity and evidentiary value of A: No, sir.
the confiscated shabu.
Q: Why did you not do that, Mr. Witness?
First, we find it highly unusual and irregular that
the police officers would let the appellant mark the
 What I remembered there is an initial of the
A:
accused, sir.
Q: Who put the initial, Mr. Witness?
A: He was the one, sir.
Q: At your station?
A: Yes, sir.
Q: You did not put your initial?
A: No, sir.
Q: Why did you not put your initial?
A: I was not able to put sir.[26] (emphases ours)
Marking, as used in drug cases, means the placing
by the apprehending officer or the poseur-buyer of
his/her initials and signature on the item/s
seized. "Consistency with the "chain of custody" rule
requires that the "marking" of the seized items - to
truly ensure that they are the same items that enter
the chain and are eventually the ones offered in
evidence - should be done (1) in the presence of the
apprehended violator (2) immediately upon
confiscation."[27] The Court clarified in People v.
Resurreccion[28] that marking upon immediate
confiscation contemplates even marking at the
nearest police station or office of the apprehending
team.
Thus, while marking of the seized drugs at the police
station is permitted, the marking should be done
by the police, and not by the accused. The
appellant's participation in the marking procedure
should only be as a witness. Why the police failed to
do a basic police procedure truly baffles us.
We also point out that per the testimony of P/Insp.
Casignia, the Forensic Chemical Officer, the police
forwarded two (2) plastic bags containing white
crystalline substances to the crime laboratory for
examination one marked with the initials "OR" and
the other marked with "GS." Both plastic bags were
used as evidence against the appellant. The records,
however, did not indicate who marked the plastic
bag with "GS," who witnessed this marking, and
when this marking had been made. As with the bag
that had been marked "OR," we express doubts on
whether the plastic bag containing white crystalline
substances marked as "GS" was the same plastic
bag taken from the appellant's co-accused, Siochi.
Second, the police did not inventory or
photograph the seized drugs, whether at the place of
confiscation or at the police station. These
omissions were admitted by the prosecution during
pre-trial.[29]
The required procedure on the seizure and custody
of drugs is embodied in Section 21, paragraph 1,
Article II of R.A. No. 9165, which states:
(1) The apprehending team having initial custody
and control of the drugs shall, immediately after
seizure and confiscation, physically
inventory and photograph the same in the
presence of the accused or the person/s from whom
such items were confiscated and/or seized, or
his/her representative or counsel, a representative
from the media and the Department of Justice
(DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be
given a copy thereof[.] [emphases ours]
This is implemented by Section 21 (a), Article II of
the Implementing Rules and Regulations (IRR) of R.A.
No. 9165, which reads:
(a) The apprehending officer/team having initial
custody and control of the drugs shall, immediately
after seizure and confiscation, physically
inventory and photograph the same in the
presence of the accused or the person/s from whom
such items were confiscated and/or seized, or
his/her representative or counsel, a representative
from the media and the Department of Justice
(DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be
given a copy thereof: Provided, that the physical
inventory and photograph shall be conducted at the
place where the search warrant is served; or at the
nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable,
in case of warrantless seizures; Provided, further,
that non-compliance with these requirements under
justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall
not render void and invalid such seizures of and
custody over said items[.] [emphasis ours]
To be sure, Section 21(a), Article II of the IRR offers
some flexibility in complying with the express
requirements under paragraph 1, Section 21, Article
II of R.A. No. 9165, i.e.,"non-compliance with these
requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items
are properly preserved by the apprehending
officer/team, shall not render void and invalid such
seizures of and custody over said items[.]" This
saving clause, however, applies only where the
prosecution recognized the procedural lapses and
thereafter explained the cited justifiable grounds,
and when the prosecution established that the
integrity and evidentiary value of the evidence seized
had been preserved.[30]
These conditions were not met in the present case,
as the prosecution did not even attempt to offer any
justification for its failure to follow the prescribed
procedures in the handling and safekeeping of the
seized items. "We stress that it is the prosecution
who has the positive duty to establish that earnest
efforts were employed in contacting the
representatives enumerated under Section 21[a] of
R.A. No. 9165, or that there was a justifiable ground
for failing to do so."[31] The Court cannot simply
presume what these justifications are.
Although the Court has recognized that minor
deviations from the procedures under R.A. No. 9165
would not automatically exonerate an accused, we
have also declared that when there is gross disregard
of the procedural safeguards prescribed in the
substantive law (R.A. No. 9165), serious uncertainty
is generated about the identity of the seized items
that the prosecution presented in evidence. This
doubt cannot be remedied by simply invoking the
presumption of regularity in the performance of
official duties, for a gross, systematic, or
deliberate disregard of the procedural safeguards
effectively produces an irregularity in the
performance of official duties.[32]
In sum, we hold that the appellant's acquittal is in
order since the shabu purportedly seized from him is
inadmissible in evidence for being the proverbial
fruit of the poisonous tree. Corollarily, the
prosecution's failure to comply with Section 21,
Article II of R.A. No. 9165, and with the chain of
custody requirement of this Act, compromised the
identity of the item seized, leading to the failure to
adequately prove the corpus delicti of the crime
charged.
WHEREFORE, premises considered,
we REVERSE and SET ASIDE the October 16, 2008
decision and the December 23, 2008 resolution of
the Court of Appeals in CA-G.R. CR HC No.
01142. Appellant Oliver Renato Edaño y Ebdane is
hereby ACQUITTED for failure of the prosecution to
prove his guilt beyond reasonable doubt. He is
ordered immediately RELEASED from detention
unless he is otherwise legally confined for another
cause.
Let a copy of this Decision be sent to the Director of
the Bureau of Corrections, Muntinlupa City, for
immediate implementation. The Director of the
Bureau of Corrections is directed to report the action
he has taken to this Court within five (5) days from
receipt of this Decision.
SO ORDERED.
Manalili v. Court of Appeals
345 Phil. 632
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
decision[5] convicting appellant of illegal possession
of marijuana residue. The dispositive portion of the
decision reads:[6]
"WHEREFORE, in view of all the foregoing, this
Court finds the accused ALAIN MANALILI Y DIZON
guilty beyond reasonable doubt of violation of
Section 8, Article II, of Republic Act No. 6425, as
amended (Illegal Possession of Marijuana residue),
and hereby snetences (sic) said accused to suffer
imprisonment of SIX (6) YEARS and ONE (1) DAY;
and to pay a fine of P6,000.00; and to pay the costs.
xxxxxxxxx."
Appellant remained on provisional liberty.[7] Atty.
Benjamin Razon, counsel for the defense, filed a
Notice of Appeal[8] dated May 31, 1989. On April 19,
1993, Respondent Court[9] promulgated its assailed
Decision, denying the appeal and affirming the trial
court:[10]
"ACCORDINGLY, the decision appealed from dated
May 19, 1989 is hereby AFFIRMED in all respects.
Costs against appellant."
Respondent Court[11] denied reconsideration via its
assailed Resolution dated January 20, 1994,
disposing:
"ACCORDINGLY, accused-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').
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 signaled the latter to follow him.
The neighbor thus followed the accused to the
Kalookan City Police Headquarters. Upon arrival
thereat, the accused was asked to remove his pants
in the presence of said neighbor and another
companion. The policemen turned over the pants of
the accused over a piece of bond paper trying to look
for marijuana. However, nothing was found, except
for some dirt and dust. This prompted the
companion of the neighbor of the accused to tell the
policemen to release the accused. The accused was
led to a cell. The policemen later told the accused
that they found marijuana inside the pockets of his
pants.
At about 5:00 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 Trial and the Appellate Courts
The trial court convicted petitioner of illegal
possession of marijuana residue largely on the
strength of the arresting officers' testimony.
Patrolmen Espiritu and Lumabas were "neutral and
disinterested" witnesses, testifying only on what
transpired during the performance of their duties.
Substantially, they asserted that the appellant was
found to be in possession of a substance which was
later identified as crushed marijuana residue.
The trial court disbelieved 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 The Court of Appeals erred in upholding the
findings of fact of the trial court.
II The Court of Appeals erred in upholding the
conviction of (the) accused (and) in ruling that the
guilt of the accused had been proved (beyond)
reasonable doubt.
III The Court of Appeals erred in not ruling that the
inconsistencies in the testimonies of the prosecution
witnesses were material and substantial and not
minor.
IV The Court of Appeals erred in not appreciating the
evidence that the accused was framed for the
purpose of extorting money.
V The Court of Appeals erred in not acquitting the
accused when the evidence presented is consistent
with both innocence and guilt.
VI The Court of Appeals erred in admitting the
evidence of the prosecution which are inadmissible
in evidence."
Restated more concisely, petitioner questions (1) the
admissibility of the evidence against him, (2) the
credibility of prosecution witnesses and the rejection
by the trial and the appellate courts of the defense of
extortion, and (3) the sufficiency of the prosecution
evidence to sustain his conviction.
The 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):
"x x x (W)here a police officer observes an unusual
conduct which leads him reasonably to conclude in
light of his experience that criminal activity may be
afoot and that the persons with whom he is dealing
may be armed and presently dangerous, where in
the course of investigating this behavior he identified
himself as a policeman and makes reasonable
inquiries, and where nothing in the initial stages of
the encounter serves to dispel his reasonable fear for
his own or others' safety, he is entitled for the
protection of himself and others in the area to
conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such
a search is a reasonable search under the Fourth
Amendment, and any weapon seized may properly be
introduced in evidence against the person from
whom they were taken."[19]
In allowing such a search, the United States
Supreme Court held that the interest of effective
crime prevention and detection allows a police officer
to approach a person, in appropriate circumstances
and manner, for purposes of investigating possible
criminal behavior even though there is insufficient
probable cause to make an actual arrest. This was
the legitimate investigative function which Officer
McFadden discharged in that case, when he
approached petitioner and his companion whom he
observed to have hovered alternately about a street
corner for an extended period of time, while not
waiting for anyone; paused to stare in the same store
window roughly 24 times; and conferred with a third
person. It would have been sloppy police work for an
officer of 30 years' experience to have failed to
investigate this behavior further.
In admitting in evidence two guns seized during the
stop-and-frisk, the US Supreme Court held that
what justified the limited search was the more
immediate interest of the police officer in taking
steps to assure himself that the person with whom
he was dealing was not armed with a weapon that
could unexpectedly and fatally be used against him.
It did not, however, abandon the rule that the police preceding section shall be inadmissible for any
must, whenever practicable, obtain advance judicial purpose in any proceeding."
approval of searches and seizures through the
warrant procedure, excused only by exigent
This right, however, is not absolute.[21] The recent
circumstances.
case of People vs. Lacerna enumerated five
recognized exceptions to the rule against warrantless
In Philippine jurisprudence, the general rule is that a
search and seizure, viz.: "(1) search incidental to a
search and seizure must be validated by a previously
lawful arrest, (2) search of moving vehicles, (3)
secured judicial warrant; otherwise, such search and
seizure in plain view, (4) customs search, and (5)
seizure is unconstitutional and subject to
waiver by the accused themselves of their right
challenge.[20] Section 2, Article III of the 1987
against unreasonable search and seizure."[22] In
Constitution, gives this guarantee:
People vs. Encinada,[23] the Court further explained
that "[i]n these cases, the search and seizure may be
"SEC. 2. The right of the people to be secure in their
made only with probable cause as the essential
persons, houses, papers, and effects against
requirement. Although the term eludes exact
unreasonable searches and seizures of whatever
definition, probable cause for a search is, at best,
nature and for any purpose shall be inviolable, and
defined as a reasonable ground of suspicion,
no search warrant or warrant of arrest shall issue
supported by circumstances sufficiently strong in
except upon probable cause to be determined
themselves to warrant a cautious man in the belief
personally by the judge after examination under oath
that the person accused is guilty of the offense with
or affirmation of the complainant and the witnesses
which he is charged; or the existence of such facts
he may produce, and particularly describing the
and circumstances which could lead a reasonably
place to be searched and the persons or things to be
discreet and prudent man to believe that an offense
seized."
has been committed and that the item(s), article(s) or
object(s) sought in connection with said offense or
Any evidence obtained in violation of the mentioned
subject to seizure and destruction by law is in the
provision is legally inadmissible in evidence as a
place to be searched."
"fruit of the poisonous tree," falling under the
exclusionary rule:
Stop-and-frisk has already been adopted as another
exception to the general rule against a search
"SEC. 3. x x x
without a warrant. In Posadas vs. Court of Appeals
,[24] the Court held that there are many instances
(2) Any evidence obtained in violation of x x x the
where a search and seizure can be effected without
necessarily being preceded by an arrest, one of
which is stop-and-frisk. In said case, members of the
Integrated National Police of Davao stopped
petitioner, who was carrying a buri bag and acting
suspiciously. They found inside 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.
xxxxxxxxx
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 xx
x
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.
xxxxxxxxx
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 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 Affidavit[29] 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:
"SECTION 1. Hereafter, in imposing a prison
sentence for an offense punished by the Revised
Penal Code, or its amendments, the court shall
sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in
view of the attending circumstances, could be
properly imposed under the rules of the said Code,
and the minimum which shall be within the range of
the penalty next lower to that prescribed by the Code
for the offense; and if the offense is punished by any
other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which
shall not exceed the maximum fixed by said law and
the minimum shall not be less than the minimum
term prescribed by the same. (As amended by Act
No. 4225.)
"SEC. 2. This Act shall not apply to persons
convicted of offenses punished with death penalty or
life-imprisonment; to those convicted of treason; to
those convicted of misprision of treason, rebellion,
sedition or espionage; to those convicted of piracy; to
those who are habitual delinquents; to those who
shall have escaped from confinement or evaded
sentence; to those who having been granted
conditional pardon by the Chief Executive shall have
violated the terms thereof; to those whose maximum
term of imprisonment does not exceed one year, not
to those already sentenced by final judgment at the
time of approval of this Act, except as provided in
Section 5 hereof." (Underscoring supplied)
The Dangerous Drugs Law, R.A. 6425, as amended
by B.P. 179, imposes the following penalty for illegal
possession of marijuana:
"Sec. 8. x x x x
The penalty of imprisonment ranging from six years
and one day to twelve years and a fine ranging from
six thousand to twelve thousand pesos shall be
imposed upon any person who, unless authorized by
law, shall possess or use Indian hemp."
Prescinding from the foregoing, the Court holds that
the proper penalty is an indeterminate sentence of
imprisonment ranging from six years and one day to
twelve years.[34]

WHEREFORE, the assailed Decision and Resolution

are hereby AFFIRMED with MODIFICATION.
Petitioner is sentenced to suffer IMPRISONMENT of
SIX (6) YEARS, as minimum, to TWELVE (12)
YEARS, as maximum, and to PAY a FINE of SIX
THOUSAND PESOS. Costs against petitioner.

SO ORDERED.
 People of the Philippines v. Nazareno Villareal his motorcycle and confiscate the plastic sachet
of shabu in his possession. Thereafter, PO3 de Leon
PERLAS-BERNABE, J.: brought appellant to the 9th Avenue Police Station to
fix his handcuffs, and then they proceeded to the
This is an appeal from the May 25; 2011
SAID-SOU office where PO3 de Leon marked the
Decision[1] of the Court of Appeals (CA) in CA-G.R.
seized plastic sachet with "RZL/NV 12-25-06,"
CR No. 31320 which affirmed in toto the December
representing his and appellant's initials and the date
11, 2007 Decision[2] of the Regional Trial Court of
of the arrest.[5]
Caloocan City, Branch 123 (RTC), convicting
appellant Nazareno Villareal y Lualhati (appellant) of
Subsequently, PO3 de Leon turned over the marked
violation of Section 11, Article 11 of Republic Act No.
evidence as well as the person of appellant to the
9165[3] (RA 9165) and sentencing him to suffer the
investigator, PO2 Randulfo Hipolito (PO2 Hipolito)
penalty of imprisonment for twelve (12) years and
who, in turn, executed an acknowledgment
one (1) day to fourteen (14) years and eight (8)
receipt[6] and prepared a letter request[7] for the
months and to pay a fine of 300,000.00.
laboratory examination of the seized substance. PO2
Hipolito personally delivered the request and the
The Factual Antecedents
confiscated item to the Philippine National Police
(PNP) Crime Laboratory, which were received by
On December 25, 2006 at around 11:30 in the
Police Senior Inspector Albert Arturo (PSI Arturo),
morning, as PO3 Renato de Leon (PO3 de Leon) was
the forensic chemist.[8]
driving his motorcycle on his way home along
5th Avenue, he saw appellant from a distance of
Upon qualitative examination, the plastic sachet,
about 8 to 10 meters, holding and scrutinizing in his
which contained 0.03 gram of white crystalline
hand a plastic sachet of shabu. Thus, PO3 de Leon,
substance, tested positive for methylamphetamine
a member of the Station Anti-Illegal Drugs-Special
hydrochloride, a dangerous drug.[9]
Operation Unit (SAID-SOU) in Caloocan City,
alighted from his motorcycle and approached the
Consequently, appellant was charged with violation
appellant whom he recognized as someone he had
of Section 11, Article II of RA 9165 for illegal
previously arrested for illegal drug possession.[4]
possession of dangerous drugs in an
Information[10] which reads:
Upon seeing PO3 de Leon, appellant tried to escape
but was quickly apprehended with the help of a
That on or about the 25th day of December, 2006 in
tricycle driver. Despite appellant's attempts to resist
Caloocan City, Metro Manila and within the
arrest, PO3 de Leon was able to board appellant onto
jurisdiction of this Honorable Court, the above-
named accused, without being authorized by law,
did then and there willfully, unlawfully and
feloniously have in his possession, custody and
control, METHYLAMPHETAMINE HYDROCHLORIDE
(Shabu) weighing 0.03 gram [which,] when subjected
[to] chemistry examination gave positive result of
METHYLAMPHETAMIME HYDROCHLORIDE, a
dangerous drug.
CONTRARY TO LAW.
When arraigned, appellant, assisted by counsel de
oficio, entered a plea of not guilty to the offense
charged.[11]
In his defense, appellant denied PO3 de Leon's
allegations and instead claimed that on the date and
time of the incident, he was walking alone along
Avenida, Rizal headed towards 5th Avenue when
someone who was riding a motorcycle called him
from behind. Appellant approached the person, who
turned out to be PO3 de Leon, who then told him not
to run, frisked him, and took his wallet which
contained P1,000.00.[12]
Appellant was brought to the 9th Avenue police
station where he was detained and mauled by eight
other detainees under the orders of PO3 de Leon.
Subsequently, he was brought to the Sangandaan
Headquarters where two other police officers, whose
names he recalled were "Michelle" and "Hipolito,"
took him to the headquarters' firing range. There,
"Michelle" and "Hipolito" forced him to answer
questions about a stolen cellphone, firing a gun right
beside his ear each time he failed to answer and
eventually mauling him when he continued to deny
knowledge about the cellphone.[13] Thus, appellant
sustained head injuries for which he was brought to
the Diosdado Macapagal Hospital for proper
treatment.[14]
The following day, he underwent inquest proceedings
before one Fiscal Guiyab, who informed him that he
was being charged with resisting arrest and "Section
11."[15] The first charge was eventually dismissed.
The RTC Ruling
After trial on the merits, the RTC convicted appellant
as charged upon a finding that all the elements of
the crime of illegal possession of dangerous drugs
have been established, to wit: (1) the appellant is in
possession of an item or object which is identified to
be a prohibited drug; (2) that such possession is not
authorized by law; and (3) that the accused freely
and consciously possesses said drug. Finding no ill
motive on the part of PO3 de Leon to testify falsely
against appellant, coupled with the fact that the
former had previously arrested the latter for illegal
possession of drugs under Republic Act No.
6425[16] (RA 6425), the RTC gave full faith and credit
to PO3 de Leon's testimony. Moreover, the RTC
found the plain view doctrine to be applicable, as the
confiscated item was in plain view of PO3 de Leon at
the place and time of the arrest.
On the other hand, the RTC gave scant consideration
to the defenses of denial and frame-up proffered by
the appellant, being uncorroborated, and in the light
of the positive assertions of PO3 de Leon. It refused
to give credence to appellant's claim that PO3 de
Leon robbed him of his money, since he failed to
bring the incident to the attention of PO3 de Leon's
superiors or to institute any action against the latter.
Consequently, the RTC sentenced appellant to suffer
the penalty of imprisonment of twelve (12) years and
one (1) day to fourteen (14) years and eight (8)
months and to pay a fine of P300,000.00.
The CA Ruling
In its assailed Decision, the CA sustained appellant's
conviction, finding "a clear case of in flagrante
delicto warrantless arrest"[17] as provided under
Section 5, Rule 113 of the Revised Rules of Criminal
Procedure. The CA held that appellant "exhibited an
overt act or strange conduct that would reasonably
arouse suspicion,"[18] aggravated by the existence of
his past criminal citations and his attempt to flee
when PO3 de Leon approached him.
Citing jurisprudence, the appellate court likewise
ruled that the prosecution had adequately shown the
continuous and unbroken chain of custody of the
seized item, from the time it was confiscated from
appellant by PO3 de Leon, marked at the police
station, turned over to PO2 Hipolito and delivered to
the crime laboratory, where it was received by PSI
Arturo, the forensic chemist, up to the time it was
presented in court for proper identification.
The Issue
The sole issue advanced before the Court for
resolution is whether the CA erred in affirming in
toto the RTC's Decision convicting appellant of the
offense charged.
The Ruling of the Court
The appeal is meritorious.
Section 5, Rule 113 of the Revised Rules of Criminal
Procedure lays down the basic rules on lawful
warrantless arrests, either by a peace 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 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
 of the Revised Rules on Criminal Procedure, as
(c) When the person to be arrested is a prisoner who above-quoted.
has escaped from a penal establishment or place
where he is serving final judgment or is temporarily The Court disagrees.
confined while his case is pending, or has escaped
while being transferred from one confinement to A punctilious assessment of the factual backdrop of
another. this case shows that there could have been
no lawful warrantless arrest. A portion of PO3 de
xxx Leon's testimony on direct examination in court is
revelatory:
For the warrantless arrest under paragraph (a) of
Section 5 to operate, two elements must concur: (1)
the person to be arrested must execute an overt act
FISCAL While you were there at 5th Avenue, was
indicating that he has just committed, is actually
LARIEGO:there anything unusual that transpired?
committing, or is attempting to commit a crime; and PO3 DE
(2) such overt act is done in the presence or within Yes Ma'am.
LEON:
the view of the arresting officer.[19] On the other
Q: What was this incident?
hand, paragraph (b) of Section 5 requires for its
While I was on board my motorcycle on my
application that at the time of the arrest, an offense
A: home, I saw a man looking at the shabu in
had in fact just been committed and the arresting his hand, Ma'am.
officer had personal knowledge of facts indicating
Q: And exactly what time was this?
that the appellant had committed it.[20]
A: Around 11:30 in the morning, Ma'am.
How far were you from this person that you
In both instances, the officer's personal Q:
said was verifying something in his hand?
knowledge of the fact of the commission of an
A: Eight to ten meters, Ma'am.
offense is absolutely required. Under paragraph
Q: What exactly did you see he was verifying?
(a), the officer himself witnesses the crime while
A: The shabu that he was holding, Ma'am.
under paragraph (b), he knows for a fact that a crime
After seeing what the man was doing, what
has just been committed. Q:
did you do next?
I alighted from my motorcycle and
In sustaining appellant's conviction in this case, the A:
approached him, Ma'am.
appellate court ratiocinated that this was a clear
case of an "in flagrante delicto warrantless arrest"
under paragraphs (a) and (b) of Section 5, Rule 113
 In the first place why do you say that what
Q: he was examining and holding in his hand
was a shabu?
Because of the numerous arrests that I
A: have done, they were all shabu,
Ma'am.[21] (Underscoring supplied)
On the basis of the foregoing testimony, the Court
finds it inconceivable how PO3 de Leon, even with
his presumably perfect vision, would be able to
identify with reasonable accuracy, from a distance of
about 8 to 10 meters and while simultaneously
driving a motorcycle, a negligible and minuscule
amount of powdery substance (0.03 gram) inside the
plastic sachet allegedly held by appellant. That he
had previously effected numerous arrests, all
involving shabu, is insufficient to create a conclusion
that what he purportedly saw in appellant's hands
was indeed shabu.
Absent any other circumstance upon which to
anchor a lawful arrest, no other overt act could be
properly attributed to appellant as to rouse
suspicion in the mind of PO3 de Leon that he
(appellant) had just committed, was committing, or
was about to commit a crime, for the acts per se of
walking along the street and examining something in
one's hands cannot in any way be considered
criminal acts. In fact, even if appellant had been
exhibiting unusual or strange acts, or at the very
least appeared suspicious, the same would not have
been sufficient in order for PO3 de Leon to effect
a lawful warrantless arrest under paragraph (a) of
Section 5, Rule 113.
Neither has it been established that the rigorous
conditions set forth in paragraph (b) of Section 5,
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 appellant had committed it. The
factual circumstances of the case failed to show that
PO3 de Leon had personal knowledge that a crime
had been indisputably committed by the appellant. It
is not enough that PO3 de Leon had reasonable
ground to believe that appellant had just committed
a crime; a crime must in fact have been committed
first, which does not obtain in this case.
Without the overt act that would pin liability against
appellant, it is therefore clear that PO3 de Leon was
merely impelled to apprehend appellant on account
of the latter's previous charge[22] for the same
offense. The CA stressed this point when it said:
It is common for drugs, being illegal in nature, to be
concealed from view. PO3 Renato de Leon saw
appellant holding and scrutinizing a piece of plastic
wrapper containing a white powder[l]y substance.
PO3 Renato de Leon was quite familiar with
appellant, having arrested him twice before for the
same illegal possession of drug. It was not just a
hollow suspicion. The third time around, PO3 de
Leon had reasonably assumed that the piece of
plastic wrapper appellant was holding and
scrutinizing also contained shabu as he had
personal knowledge of facts regarding appellant's
person and past criminal record. He would have
been irresponsible to just 'wait and see' and give
appellant a chance to scamper away. For his part,
appellant being, in fact, in possession of illegal drug,
sensing trouble from an equally familiar face of
authority, ran away. Luckily, however, PO3 de Leon
caught up with him through the aid of a tricycle
driver. Appellant's act of running away, indeed,
validated PO3 de Leon's reasonable suspicion that
appellant was actually in possession of illegal drug. x
x x[23]
However, a previous arrest or existing criminal
record, even for the same offense, will not suffice to
satisfy the exacting requirements provided under
Section 5, Rule 113 in order to justify
a lawful warrantless arrest. "Personal knowledge" of
the arresting officer that a crime had in fact just been
committed is required. To interpret "personal
knowledge" as referring to a person's reputation or
past criminal citations would create a dangerous
precedent and unnecessarily stretch the authority
and power of police officers to effect warrantless
arrests based solely on knowledge of a person's
previous criminal infractions, rendering nugatory the
rigorous requisites laid out under Section 5.
It was therefore error on the part of the CA to rule on
the validity of appellant's arrest based on "personal
knowledge of facts regarding appellant's person and
past criminal record," as this is unquestionably not
what "personal knowledge" under the law
contemplates, which must be strictly construed.[24]
Furthermore, appellant's act of darting away when
PO3 de Leon approached him should not be
construed against him. Flight per se is not
synonymous with guilt and must not always be
attributed to one's consciousness of guilt.[25] It is not
a reliable indicator of guilt without other
circumstances,26 for even in high crime areas there
are many innocent reasons for flight, including fear
of retribution for speaking to officers, unwillingness
to appear as witnesses, and fear of being wrongfully
apprehended as a guilty party.[27] Thus, appellant's
attempt to run away from PO3 de Leon is susceptible
of various explanations; it could easily have meant
guilt just as it could likewise signify innocence.
In fine, appellant's acts of walking along the street
and holding something in his hands, even if they
appeared to be dubious, coupled with his previous
criminal charge for the same offense, are not by
themselves sufficient to incite suspicion of criminal
activity or to create probable cause enough to justify
a warrantless arrest under Section 5 above-quoted.
"Probable cause" has been understood to mean a
reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to
warrant a cautious man's belief that the person
accused is guilty of the offense with which he is
charged.[28] Specifically with respect to arrests, it is
such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that
an offense has been committed by the person sought
to be arrested,[29] which clearly do not obtain in
appellant's case.
Thus, while it is true that the legality of an arrest
depends upon the reasonable discretion of the officer
or functionary to whom the law at the moment
leaves the decision to characterize the nature of the
act or deed of the person for the urgent purpose of
suspending his liberty,[30] it cannot be arbitrarily or
capriciously exercised without unduly compromising
a citizen's constitutionally-guaranteed right to
liberty. As the Court succinctly explained in the case
of People v. Tudtud:[31]
The right of a person to be secure against any
unreasonable seizure of his body and any
deprivation of his liberty is a most basic and
fundamental one. The statute or rule which allows
exceptions to the requirement of warrants of arrest is
strictly construed. Any exception must clearly fall
within the situations when securing a warrant would
be absurd or is manifestly unnecessary as provided
by the Rule. We cannot liberally construe the rule on
arrests without warrant or extend its application
beyond the cases specifically provided by law. To do
so would infringe upon personal liberty and set back
a basic right so often violated and so deserving of full
protection.
Consequently, there being no lawful warrantless
arrest, the shabu purportedly seized from appellant
is rendered 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, appellant must be acquitted and
exonerated from all criminal liability.
WHEREFORE, the assailed Decision of the Court of
Appeals in CA-G.R. CR No. 31320
is REVERSED and SET ASIDE. Appellant Nazareno
Villareal y Lualhati is ACQUITTED on reasonable
doubt of the offense charged and ordered
immediately released from detention, unless his
continued confinement is warranted by some other
cause or ground.
SO ORDERED.
[GR No. 93239, Mar 18, 1991]
PEOPLE v. EDISON SUCRO
GUTIERREZ, JR., J.:
Edison Sucro was charged with and convicted of
violation of Section 4, Article II of the Dangerous
Drugs Act, under an Information which reads:
"That on or about the 21st day of March, 1989, in
the evening, in the Poblacion, Municipality of Kalibo,
Province of Aklan, Republic of the Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused, acting as a pusher or broker
in the business of selling, administering, delivery,
giving away to another and/or distributing
prohibited drugs, did then and there wilfully,
unlawfully and feloniously and without authority of
law have in his possession and control nineteen (19)
pieces of marijuana cigarette sticks and four (4) tea
bags of dried marijuana leaves which were
confiscated from him by the police authorities of
Kalibo, Aklan, shortly after having sold one tea bag
of dried marijuana leaves to a customer." (Rollo, p. 9)
Upon arraignment, the accused-appellant, assisted
by counsel, entered a plea of "not guilty" to the
offense charged. Trial ensued and a judgment of
conviction was rendered, the pertinent portion of
which reads:
"WHEREFORE, judgment is rendered finding the
accused Edison Sucro guilty of the sale of prohibited
drug under Section 4, Article II of the Dangerous
Drug Act, as amended, and sentencing him to suffer
the penalty of life imprisonment, and pay a fine of
P20,000, and costs. He shall be entitled to full credit
in the service of his sentence with the period for
which he has undergone preventive imprisonment to
the date of promulgation of this judgment. All the
items of marijuana confiscated in this case are
declared forfeited in favor of the State." (Rollo, p. 41)
From the foregoing judgment of conviction, accused-
appellant interposes this appeal, assigning, the
following as errors allegedly committed by the
court a quo, to wit:
I THE LOWER COURT ERRED IN ADMITTING AS
EVIDENCE FOR THE PROSECUTION EXHIBITS "E" -
"E-4", TEA BAGS OF ALLEGED MARIJUANA, TO BE
THE CORPUS DELICTI; FURTHERMORE, THAT THE
SAME WERE TAKEN WITHOUT THE REQUIRED
WARRANT OF SEARCH AND ARREST SINCE THE
ACCUSED WAS NOT IN THE ACT OF COMMITTING
ANY OFFENSE AT THE TIME OF HIS ARREST.
II THE LOWER COURT ERRED IN FINDING THE
ACCUSED EDISON SUCRO GUILTY OF THE SALE
OF PROHIBITED DRUGS UNDER SECTION 4,
ARTICLE III OF THE DANGEROUS DRUGS ACT AND
SENTENCING HIM TO SUFFER A PENALTY OF LIFE
IMPRISONMENT AND TO PAY A FINE OF
P20,000.00. (Appellant's Brief, p. 1)
The antecedent facts of the case as summarized by
the Solicitor General are as follows:
"On March 21, 1989, Pat. Roy Fulgencio, a member
of the INP, Kalibo, Aklan, was instructed by P/Lt.
Vicente Seraspi, Jr. (Station Commander of the INP
Kalibo, Aklan) to monitor the activities of appellant
Edison Sucro, because of information gathered by
Seraspi that Sucro was selling marijuana. (p. 6,
TSN, May 2, 1989)
As planned, at about 5:00 P.M. on said date, Pat.
Fulgencio positioned himself under the house of a
certain Arlie Regalado at C. Quimpo Street. Adjacent
to the house of Regalado, about 2 meters away, was
a chapel. Thereafter, Pat. Fulgencio saw appellant
enter the chapel, taking something which turned out
later to be marijuana from the compartment of a cart
found inside the chapel, and then return to the
street where he handed the same to a buyer, Aldie
Borromeo. After a while appellant went back to the Exhibits "E" to "E-4") were all found positive of
chapel and again came out with marijuana which he marijuana. (pp. 4-7, TSN, Sept. 4, 1989)" (Appellee's
gave to a group of persons. (pp. 6-8, 15-18, ibid) It Brief, pp. 3-6)
was at this instance that Pat. Fulgencio radioed
As can be seen from the facts, the issue hinges
P/Lt. Seraspi and reported the activity going
mainly on whether or not the arrest without warrant
on. P/Lt. Seraspi instructed Pat. Fulgencio to
of the accused is lawful and consequently, whether
continue monitoring developments. At about 6:30
or not the evidence resulting from such arrest is
P.M., Pat. Fulgencio again called up Seraspi to report
admissible.
that a third buyer later identified as Ronnie
Macabante, was transacting with appellant. (pp. 18-
We rule in the affirmative.
19, ibid)
The accused-appellant contends that his arrest was
At that point, the team of P/Lt. Seraspi proceeded to
illegal, being a violation of his rights granted under
the area and while the police officers were at the
Section 2, Article III of the 1987 Constitution. He
Youth Hostel at Maagma St., Pat. Fulgencio told
stresses that there was sufficient time for the police
P/Lt. Seraspi to intercept Macabante and
officers to apply for a search and arrest warrants
appellant. P/Lt. Seraspi and his team caught up
considering that Fulgencio informed his Station
with Macabante at the crossing of Mabini and
Commander of the activities of the accused two days
Maagma Sts. in front of the Aklan Medical
before March 21, 1989, the date of his arrest.
Center. Upon seeing the police, Macabante threw
something to the ground which turned out to be a
This contention is without merit.
tea bag of marijuana. (pp. 6-8, TSN, June 19, 1989)
When confronted, Macabante readily admitted that
Section 5, Rule 113 of the Rules on Criminal
he bought the same from appellant (Edison Sucro) in
Procedure provides for the instances where arrest
front of the chapel. (p. 6, TSN, May 24, 1989) The
without warrant is considered lawful. The rule
police team was able to overtake and arrest
states:
appellant at the corner of C. Quimpo and Veterans
Sts. The police recovered 19 sticks and 4 teabags of
"Arrest without warrant, when lawful. - A peace
marijuana from the cart inside the chapel and
officer or private person may, without warrant,
another teabag from Macabante. The teabags of
arrest a person:
marijuana were sent to the PC-INP Crime Laboratory
Service, at Camp Delgado, Iloilo City for
(a) When in his presence, the person to be arrested
analysis. The specimens (Exhibits "G" to "G-18",
has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has in fact just been committed,
and he has personal knowledge of facts indicating
that the person to be arrested has committed it;"
(Underscoring supplied)
An offense is committed in the presence or within
the view of an officer, within the meaning of the rule
authorizing an arrest without a warrant, when the
officer sees the offense, although at a distance, or
hears the disturbances created thereby and proceeds
at once to the scene thereof. (U. S. v. Fortaleza, 12
Phil. 472 [1909]; and U. S. v. Samonte, 16 Phil. 516
[1910])
The records show that Fulgencio went to Arlie
Regalado's house at C. Quimpo Street to monitor the
activities of the accused who was earlier reported to
be selling marijuana at a chapel two (2) meters away
from Regalado's house.
Fulgencio, within a distance of two meters saw Sucro
conduct his nefarious activity. He saw Sucro talk to
some persons, go inside the chapel, and return to
them and exchange some things. These, Sucro did
three times during the time that he was being
monitored. Fulgencio would then relay the on-going
transaction to P/Lt. Seraspi.
Anent the second requirement, the fact that
Macabante, when intercepted by the police, was
caught throwing the marijuana stick and when
confronted, readily admitted that he bought the
same from accused-appellant clearly indicates that
Sucro had just sold the marijuana stick to
Macabante, and therefore, had just committed an
illegal act of which the police officers had personal
knowledge, being members of the team which
monitored Sucro's nefarious activity.
The court earlier indicated in the case of People v.
Bati (G. R. No. 87429, August 27, 1990) that police
officers have personal knowledge of the actual
commission of the crime when it had earlier
conducted surveillance activities of the
accused. Thus, it stated:
"When Luciano and Caraan reached the place where
the alleged transaction would take place and while
positioned at a street corner, they saw appellant
Regalado Bati and Warner Marquez by the side of
the street about forty to fifty meters away from them
(the public officers). They saw Marquez giving
something to Bati, who, thereafter handed a
wrapped object to Marquez who then inserted the
object inside the front of his pants in front of his
abdomen while Bati, on his part, placed the thing
given to him inside his pocket (p. 2)
xxx xxx xxx
x x x Both Patrolman Luciano and Caraan actually
witnessed the same and their testimonies were based
on their actual and personal knowledge of the events
that took place leading to appellant's arrest. They
may not have been within hearing distance, specially
since conversation would expectedly be carried on in
hushed tones, but they were certainly near enough
to observe the movements of the appellant and the
buyer. Moreover, these prosecution witnesses are all
law enforcers and are, therefore, presumed to have
regularly performed their duties in the absence of
proof to the contrary (People v. Bati, supra citing
People v. Agapito, G. R. No. 73786, October 12,
1987)
The accused questions the failure of the police
officers to secure a warrant considering that
Fulgencio himself knew of Sucro's activities even
prior to the former's joining the police
force. Fulgencio reported Sucro's activities only
three days before the incident.
As the records reveal, Fulgencio and Sucro had
known each other since their childhood years and
that after Fulgencio joined the police force, he told
the accused-appellant not to sell drugs in their
locality. Hence, it is possible that because of this
friendship, Fulgencio hesitated to report his
childhood friend and merely advised him not to
engage in such activity. However, because of reliable
information given by some informants that selling
was going on everyday, he was constrained to report
the matter to the Station Commander.
On the other hand, the failure of the police officers to
secure a warrant stems from the fact that their
knowledge acquired from the surveillance was
insufficient to fulfill the requirements for the
issuance of a search warrant. What is paramount is
that probable cause existed. Thus, it has been held
in the case of People v. Lo Ho Wing, et al. (G. R. No.
88017, January 21, 1991):
"In the instant case, it was firmly established from
the factual findings of the trial court that the
authorities had reasonable ground to believe that
appellant would attempt to bring in contraband and
transport it within the country. The belief was based
on intelligence reports gathered from surveillance
activities on the suspected syndicate, of which
appellant was touted to be a member. Aside from
this, they were also certain as to the expected date
and time of arrival of the accused from China. But
such knowledge was clearly insufficient to enable
them to fulfill the requirements for the issuance of a
search warrant. Still and all, the important thing is
that there was probable cause to conduct the
warrantless search, which must still be present in
such a case."
As the Solicitor General has pointed out:
"There are several instances when a warrantless
search and seizure can be effected without
necessarily being preceded by an arrest provided the
same is effected on the basis of probable cause (e. g.
stop and search without warrant at
checkpoints). Between warrantless searches and
seizures at checkpoints and in the case at bar the
latter is more reasonable considering that unlike in
the former, it was effected on the basis of probable
cause. Under the circumstances (monitoring of
transactions) there existed probable cause for the
arresting officers, to arrest appellant who was in fact
selling marijuana and to seize the contraband."
That searches and seizures must be supported by a
valid warrant is not an absolute rule (Manipon, Jr. v.
Sandiganbayan, 143 SCRA 267 [1986]). Among the
exceptions granted by law is a search incidental to a
lawful arrest under Sec. 12, Rule 126 of the Rules on
Criminal Procedure, which provides that a person
lawfully arrested may be searched for dangerous
weapons or anything which may be used as proof of
the commission of an offense, without a search
warrant. (People v. Castiller, G. R. No. 87783,
August 6, 1990)
The accused-appellant claims that the arrest having
been done without warrant, it follows that the
evidence obtained therefrom is inadmissible.
As earlier discussed, there is nothing unlawful about
the arrest considering its compliance with the
requirements of a warrantless arrest. Ergo, the
fruits obtained from such lawful arrest are
admissible in evidence.
Edison Sucro assails the trial court's reliance on the
statement of Macabante whose reason for testifying
could be merely to escape prosecution.
We quote the trial court's finding as to the testimony
of Macabante:
"The non-filing of a complaint against him for
possession of marijuana may have been the reason
of (sic) his willingness to testify in court against the
accused. But this does not necessarily taint the
evidence that proceeds from his lips. As explained
by Lt. Seraspi, the best sources of information
against drug pushers are usually their customers,
especially if as in this case, there is no other direct
evidence of the selling except the testimony of the
buyer. We accept this observation as a realistic
appraisal of a situation in which drug users are, and
should be employed by law enforcement authorities
to bolster the drive against pushers who are the real
felons in our society. We have observed the
demeanor of the witness in court, and found him to
be straightforward, unhesitating, and spontaneous
in his declarations, so that we are satisfied as to his
intention and disposition to tell the truth" (Rollo, p.
40)
Time and again it has been held that the findings of
the trial court are entitled to great weight and should
not be disturbed on appeal unless it is shown that
the trial court had overlooked certain facts of weight
and importance, it being acknowledged that the
court below, having seen and heard the witnesses
during the trial, is in a better position to evaluate
their testimonies (People v. Umali, et al., G. R. No.
84450, February 4, 1991 citing People v. Alvarez,
163 SCRA 745 [1988]; People v. Dorado, 30 SCRA 53
[1969]; and People v. Espejo, 36 SCRA 400 [1970]).
Furthermore, the testimony of Macabante was
corroborated on material points by public officers
Fulgencio and Seraspi.
There is nothing in the record to suggest that the
police officers were compelled by any motive than to
accomplish their mission to capture a drug pusher
in the execution of the crime, the presumption being
that police officers perform their duties regularly in
the absence of any evidence to the contrary (Rule
131, Sec. 3(m), Revised Rules on Evidence; People v.
Castiller, supra citing People v. Natipravat, 145
SCRA 483 [1986]).
the seller of the prohibited substances. (People v.
Khan, 161 SCRA 406 [1988]; and People v. Paco, 170
SCRA 681 [1989])
Premises considered, this Court is convinced that
appellant Edison Sucro had indeed committed the
offense charged. The trial court's decision must be
upheld.
WHEREFORE, the decision appealed from is hereby
AFFIRMED.

The prosecution evidence was further bolstered by SO ORDERED.

the findings of the Forensic Chemist that the items
seized were all positive for marijuana.

In contrast to the evidence presented by the

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

Sucro alleges that he could not have committed the

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

It is well-settled that mere denials cannot prevail

against the positive identification of the appellant as
 People of the Philippines v. Abe Valdez
September 5, 2000
QUISUMBING, J.:
For automatic review is the decision[1] promulgated
on February 18, 1997, by the Regional Trial Court of
Bayombong, Nueva Vizcaya, Branch 27, in Criminal
Case No. 3105. It found appellant Abe Valdez y Dela
Cruz guilty beyond reasonable doubt for violating
Section 9 of the Dangerous Drugs Act of 1972 (R.A.
No. 6425), as amended by R.A. No. 7659. He was
sentenced to suffer the penalty of death by lethal
injection.
In an Information dated September 26, 1996,
appellant was charged as follows:
"That on or about September 25, 1996, at Sitio
Bulan, Barangay Sawmill, Municipality of Villaverde,
Province of Nueva Vizcaya, Philippines, and within
the jurisdiction of this Honorable Court, the above-
named accused, who was caught in flagrante
delicto and without authority of law, did then and
there wilfully (sic), unlawfully and feloniously plant,
cultivate and culture seven (7) fully grown marijuana
plants known as Indian Hemp weighing 2.194 kilos,
from which dangerous drugs maybe (sic)
manufactured or derived, to the damage and
prejudice of the government of the Republic of the
Philippines.
"That the property where the said seven (7) fully
grown marijuana plants were planted, cultivated and
cultured shall be confiscated and escheated in favor
of the government.
"CONTRARY TO LAW."[2]
On November 15, 1996, appellant was arraigned
and, with assistance of counsel, pleaded not guilty to
the charge. Trial on the merits then ensued.
The first witness for the prosecution was SPO3
Marcelo Tipay, a member of the police force of
Villaverde, Nueva Vizcaya. He testified that at
around 10:15 a.m. of September 24, 1996, he
received a tip from an unnamed informer about the
presence of a marijuana plantation, allegedly owned
by appellant at Sitio Bulan, Ibung, Villaverde, Nueva
Vizcaya.[3] The prohibited plants were allegedly
planted close to appellant's hut. Police Inspector
Alejandro R. Parungao, Chief of Police of Villaverde,
Nueva Vizcaya then formed a reaction team from his
operatives to verify the report. The team was
composed of SPO3 Marcelo M. Tipay, SPO2 Noel V.
Libunao, SPO2 Pedro S. Morales, SPO1 Romulo G.
Tobias and PO2 Alfelmer I. Balut. Inspector
Parungao gave them specific instructions to "uproot
said marijuana plants and arrest the cultivator of
same."[4]
At approximately 5:00 o'clock A.M. the following day,
said police team, accompanied by their informer, left
for the site where the marijuana plants were
allegedly being grown. After a three-hour, uphill trek
from the nearest barangay road, the police
operatives arrived at the place pinpointed by their
informant. The police found appellant alone in his
nipa hut. They, then, proceeded to look around the
area where appellant had his kaingin and saw seven
(7) five-foot high, flowering marijuana plants in two
rows, approximately 25 meters from appellant's
hut.[5] PO2 Balut asked appellant who owned the
prohibited plants and, according to Balut, the latter
admitted that they were his.[6] The police uprooted
the seven marijuana plants, which weighed 2.194
kilograms.[7] The police took photos of appellant
standing beside the cannabis plants.[8] Appellant
was then arrested. One of the plants, weighing 1.090
kilograms, was sent to the Philippine National Police
Crime Laboratory in Bayombong, Nueva Vizcaya for
analysis.[9] Inspector Prevy Fabros Luwis, the Crime
Laboratory forensic analyst, testified that upon
microscopic examination of said plant, she found
cystolitic hairs containing calcium carbonate, a
positive indication for marijuana.[10] She next
conducted a chemical examination, the results of
which confirmed her initial impressions. She found
as follows:
"SPECIMEN SUBMITTED: Exh "A" - 1.090 grams of
uprooted suspected marijuana plant placed inside a
white sack with markings.
xxx
"FINDINGS: Qualitative examination conducted on
the above stated specimen gave POSITIVE result to
the test for Marijuana, a prohibited drug."[11]
The prosecution also presented a certification from
the Department of Environment and Natural
Resources that the land cultivated by appellant, on
which the growing marijuana plants were found, was
Lot 3224 of Timberland Block B, which formed part
of the Integrated Social Forestry Area in Villaverde,
Nueva Vizcaya.[12] This lot was part of the public
domain. Appellant was acknowledged in the
certification as the occupant of the lot, but no
Certificate of Stewardship had yet been issued in his
favor.[13]
As its sole witness, the defense presented appellant.
He testified that at around 10:00 o'clock A.M.,
September 25, 1996, he was weeding his vegetable
farm in Sitio Bulan when he was called by a person
whose identity he does not know. He was asked to go
with the latter to "see something."[14] This unknown
person then brought appellant to the place where the
marijuana plants were found, approximately 100
meters away from his nipa hut.[15] Five armed
policemen were present and they made him stand in
front of the hemp plants. He was then asked if he
knew anything about the marijuana growing there.
When he denied any knowledge thereof, SPO2
Libunao poked a fist at him and told him to admit
ownership of the plants.[16] Appellant was so
nervous and afraid that he admitted owning the
marijuana.[17]
The police then took a photo of him standing in front
of one of the marijuana plants. He was then made to
uproot five of the cannabis plants, and bring them to
his hut, where another photo was taken of him
standing next to a bundle of uprooted marijuana
plants.[18] The police team then brought him to the
police station at Villaverde. On the way, a certain
Kiko Pascua, a barangay peace officer of Barangay
Sawmill, accompanied the police officers. Pascua,
who bore a grudge against him, because of his
refusal to participate in the former's illegal logging
activities, threatened him to admit owning the
marijuana, otherwise he would "be put in a bad
situation."[19] At the police headquarters, appellant
reiterated that he knew nothing about the marijuana
plants seized by the police.[20]
On cross-examination, appellant declared that there
were ten other houses around the vicinity of
his kaingin, the nearest house being 100 meters
away.[21] The latter house belonged to one Carlito
(Lito) Pascua, an uncle of the barangay peace officer
who had a grudge against him. The spot where the
marijuana plants were found was located between
his house and Carlito Pascua's.[22]
The prosecution presented SPO3 Tipay as its
rebuttal witness. His testimony was offered to rebut
appellant's claim that the marijuana plants were not
planted in the lot he was cultivating.[23] Tipay
presented a sketch he made,[24] which showed the
location of marijuana plants in relation to the old
and new nipa huts of appellant, as well as the
closest neighbor. According to Tipay, the marijuana
plot was located 40 meters away from the old hut of
Valdez and 250 meters distant from the hut of
Carlito Pascua.[25] Tipay admitted on cross-
examination that no surveyor accompanied him
when he made the measurements.[26] He further
stated that his basis for claiming that appellant was
the owner or planter of the seized plants was the
information given him by the police informer and the
proximity of appellant's hut to the location of said
plants.[27]
Finding appellant's defense insipid, the trial court
held appellant liable as charged for cultivation and
ownership of marijuana plants as follows:
"WHEREFORE, finding the accused GUILTY beyond
reasonable doubt of cultivating marijuana plants
punishable under section 9 of the Dangerous Drugs
Act of 1972, as amended, accused is hereby
sentenced to death by lethal injection. Costs against
the accused.
"SO ORDERED."[28]
Appellant assigns the following errors for our
consideration:
I. THE TRIAL COURT GRAVELY ERRED IN
ADMITTING AS EVIDENCE THE SEVEN (7)
MARIJUANA PLANTS DESPITE THEIR
INADMISSIBILITY BEING PRODUCTS OF AN
ILLEGAL SEARCH.
II. THE TRIAL COURT GRAVELY ERRED IN
CONVICTING APPELLANT OF VIOLATION OF
SECTION 9, REPUBLIC ACT NO. 6425 DESPITE THE
INADMISSIBILITY OF THE CORPUS DELICTI AND
THE FAILURE OF THE PROSECUTION TO PROVE
HIS GUILT BEYOND REASONABLE DOUBT.
III. THE TRIAL COURT GRAVELY ERRED IN
IMPOSING THE SUPREME PENALTY OF DEATH
UPON APPELLANT DESPITE FAILURE OF THE
PROSECUTION TO PROVE THAT THE LAND WHERE
THE MARIJUANA PLANTS WERE PLANTED IS A
PUBLIC LAND ON THE ASSUMPTION THAT INDEED
APPELLANT PLANTED THE SUBJECT
MARIJUANA.[29]
Simply stated, the issues are:
(1) Was the search and seizure of the marijuana
plants in the present case lawful?
(2) Were the seized plants admissible in evidence
against the accused?
(3) Has the prosecution proved appellant's guilt
beyond reasonable doubt?
(4) Is the sentence of death by lethal injection
correct?
The first and second issues will be jointly discussed
because they are interrelated.
Appellant contends that there was unlawful search.
First, the records show that the law enforcers had
more than ample time to secure a search warrant.
Second, that the marijuana plants were found in an
unfenced lot does not remove appellant from the
mantle of protection against unreasonable searches
and seizures. He relies on the ruling of the US
Supreme Court in Terry v. Ohio, 392 US 1, 20 L. Ed
2d 898, 88 S. Ct. 1868 (1968), to the effect that the
protection against unreasonable government
intrusion protects people, not places.
For the appellee, the Office of the Solicitor General
argues that the records clearly show that there was
no search made by the police team, in the first place.
The OSG points out that the marijuana plants in
question were grown in an unfenced lot and as each
grew about five (5) feet tall, they were visible from
afar, and were, in fact, immediately spotted by the
police officers when they reached the site. The seized
marijuana plants were, thus, in plain view of the
police officers. The instant case must, therefore, be
treated as a warrantless lawful search under the
"plain view" doctrine.
The court a quo upheld the validity of the search and
confiscation made by the police team on the finding
that:
"...It seems there was no need for any search
warrant. The policemen went to the plantation site
merely to make a verification. When they found the
said plants, it was too much to expect them to apply
for a search warrant. In view of the remoteness of
the plantation site (they had to walk for six hours
back and forth) and the dangers lurking in the area
if they stayed overnight, they had a valid reason to
confiscate the said plants upon discovery without
any search warrant. Moreover, the evidence shows
that the lot was not legally occupied by the accused
and there was no fence which evinced the occupant's
desire to keep trespassers out. There was, therefore,
no privacy to protect, hence, no search warrant was
required."[30]
The Constitution[31] lays down the general rule that
a search and seizure must be carried on the strength
of a judicial warrant. Otherwise, the search and
seizure is deemed "unreasonable." Evidence
procured on the occasion of an unreasonable search
and seizure is deemed tainted for being the
proverbial fruit of a poisonous tree and should be
excluded.[32] Such evidence shall be inadmissible in
evidence for any purpose in any proceeding.[33]
In the instant case, there was no search warrant
issued by a judge after personal determination of the
existence of probable cause. From the declarations of
the police officers themselves, it is clear that they
had at least one (1) day to obtain a warrant to search
appellant's farm. Their informant had revealed his
name to them. The place where the cannabis plants
were planted was pinpointed. From the information
in their possession, they could have convinced a
judge that there was probable cause to justify the
issuance of a warrant. But they did not. Instead,
they uprooted the plants and apprehended the
accused on the excuse that the trip was a good six
hours and inconvenient to them. We need not
underscore that the protection against illegal search
and seizure is constitutionally mandated and only
under specific instances are searches allowed
without warrants.[34] The mantle of protection
extended by the Bill of Rights covers both innocent
and guilty alike against any form of high-
handedness of law enforcers, regardless of the
praiseworthiness of their intentions.
We find no reason to subscribe to Solicitor General's
contention that we apply the "plain view" doctrine.
For the doctrine to apply, the following elements
must be present:
(a) a prior valid intrusion based on the valid
warrantless arrest in which the police are legally
present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the
police who have the right to be where they are; and
(c) the evidence must be immediately apparent; and
(d) plain view justified mere seizure of evidence
without further search.[35]
In the instant case, recall that PO2 Balut testified
that they first located the marijuana plants before
appellant was arrested without a warrant.[36] Hence,
there was no valid warrantless arrest which
preceded the search of appellant's premises. Note
further that the police team was dispatched to
appellant's kaingin precisely to search for and uproot
the prohibited flora. The seizure of evidence in "plain
view" applies only where the police officer
is not searching for evidence against the accused,
but inadvertently comes across an incriminating
object.[37] Clearly, their discovery of the cannabis
plants was not inadvertent. We also note the
testimony of SPO2 Tipay that upon arriving at the
area, they first had to "look around the area" before
they could spot the illegal plants.[38] Patently, the
seized marijuana plants were not "immediately
apparent" and a "further search" was needed. In
sum, the marijuana plants in question were not in
"plain view" or "open to eye and hand." The "plain
view" doctrine, thus, cannot be made to apply.
Nor can we sustain the trial court's conclusion that
just because the marijuana plants were found in an
unfenced lot, appellant could not invoke the
protection afforded by the Charter against
unreasonable searches by agents of the State. The
right against unreasonable searches and seizures is
the immunity of one's person, which includes his
residence, his papers, and other possessions.[39] The
guarantee refers to "the right of personal
security"[40] of the individual. As appellant correctly
points out, what is sought to be protected against
the State's unlawful intrusion are persons, not
places.[41] To conclude otherwise would not only
mean swimming against the stream, it would also
lead to the absurd logic that for a person to be
immune against unreasonable searches and
seizures, he must be in his home or office, within a
fenced yard or a private place. The Bill of Rights
belongs as much to the person in the street as to the
individual in the sanctuary of his bedroom.
We therefore hold, with respect to the first issue,
that the confiscated plants were evidently obtained
during an illegal search and seizure. As to the
second issue, which involves the admissibility of the
marijuana plants as evidence for the prosecution, we
find that said plants cannot, as products of an
unlawful search and seizure, be used as evidence
against appellant. They are fruits of the proverbial
poisoned tree. It was, therefore, a reversible error on
the part of the court a quo to have admitted and
relied upon the seized marijuana plants as evidence
to convict appellant.
We now proceed to the third issue, which revolves
around the sufficiency of the prosecution's evidence
to prove appellant's guilt. Having declared the seized
marijuana plants inadmissible in evidence against
appellant, we must now address the question of
whether the remaining evidence for the prosecution
suffices to convict appellant?
In convicting appellant, the trial court likewise relied
on the testimony of the police officers to the effect
that appellant admitted ownership of the marijuana
when he was asked who planted them. It made the
following observation:
"It may be true that the admission to the police by
the accused that he planted the marijuana plants
was made in the absence of any independent and
competent counsel. But the accused was not, at the
time of police verification; under custodial
investigation. His admission is, therefore, admissible
in evidence and not violative of the constitutional fiat
that admission given during custodial investigation The Constitution plainly declares that any person
is not admissible if given without any counsel."[42] under investigation for the commission of an offense
shall have the right: (1) to remain silent; (2) to have
Appellant now argues that his admission of
competent and independent counsel preferably of his
ownership of the marijuana plants in question
own choice; and (3) to be informed of such rights.
cannot be used against him for being violative of his
These rights cannot be waived except in writing and
right to counsel during the police investigation. in the presence of counsel.[43] An investigation
Hence, it was error for the trial court to have relied
begins when it is no longer a general inquiry but
upon said admission of ownership. He submits that
starts to focus on a particular person as a suspect,
the investigation conducted by the police officers was i.e., when the police investigator starts interrogating
not a general inquiry, but was meant to elicit
or exacting a confession from the suspect in
information on the ownership of the marijuana
connection with an alleged offense.[44] The moment
plants. Appellant theorizes that since the
the police try to elicit admissions or confessions or
investigation had narrowed down to him, competent
even plain information from a person suspected of
and independent counsel should have assisted him, having committed an offense, he should at that
when the police sought information from him
juncture be assisted by counsel, unless he waives
regarding the ownership of the prohibited plants.
the right in writing and in the presence of counsel.[45]
Appellant claims the presumption of regularity of
duty of officers cannot be made to apply to his
In the instant case we find that, from the start, a
purported voluntarily confession of ownership of the tipster had furnished the police appellant's name as
marijuana plants. Nor can it override his
well as the location of appellant's farm, where the
constitutional right to counsel during investigation.
marijuana plants were allegedly being grown. While
the police operation was supposedly meant to merely
The Office of the Solicitor General believes otherwise.
"verify" said information, the police chief had
The OSG avers that appellant was not yet under
likewise issued instructions to arrest appellant as a
custodial investigation when he admitted to the
suspected marijuana cultivator. Thus, at the time
police that he owned the marijuana plants. His right
the police talked to appellant in his farm, the latter
to competent and independent counsel, accordingly,
was already under investigation as a suspect. The
had not yet attached. Moreover, appellant's failure to
questioning by the police was no longer a general
impute any false motive for the police officers to
inquiry.[46]
falsely accuse him indicates that the presumption of
regularity in the performance of official duties by
Under cross-examination, PO2 Balut stated, he "did
police officers was not sufficiently rebutted. not yet admit that he is the cultivator of that
marijuana so we just asked him and I think there is
no need to inform (him of) his constitutional rights
because we are just asking him..."[47] In trying to
elicit information from appellant, the police was
already investigating appellant as a suspect. At this
point, he was already under custodial investigation
and had a right to counsel even if he had not yet
been arrested. Custodial investigation is "questioning
initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of
his freedom of action in any significant way."[48] As a
suspect, two armed policemen interrogated
appellant. Behind his inquisitors were a barangay
peace officer and three other armed
policemen.[49] All had been dispatched to arrest
him.[50] From these circumstances, we may infer
that appellant had already been deprived of his
freedom of action in a significant way, even before
the actual arrest. Note that even before he was
arrested, the police made him incriminatingly pose
for photos in front of the marijuana plants.
Moreover, we find appellant's extrajudicial
confession flawed with respect to its admissibility.
For a confession to be admissible, it must satisfy the
following requirements: (1) it must be voluntary; (2)
it must be made with the assistance of competent
and independent counsel; (3) it must be express; and
(4) it must be in writing.[51] The records show that
the admission by appellant was verbal. It was also
uncounselled. A verbal admission allegedly made by
an accused during the investigation, without the
assistance of counsel at the time of his arrest and
even before his formal investigation is not only
inadmissible for being violative of the right to
counsel during criminal investigations, it is also
hearsay.[52] Even if the confession or admission were
"gospel truth", if it was made without assistance of
counsel and without a valid waiver of such
assistance, the confession is inadmissible in
evidence, regardless of the absence of coercion or
even if it had been voluntarily given.[53]
It is fundamental in criminal prosecutions that
before an accused may be convicted of a crime, the
prosecution must establish by proof beyond
reasonable doubt that a crime was committed and
that the accused is the author thereof.[54] The
evidence arrayed against the accused, however, must
not only stand the test of reason,[55] it must likewise
be credible and competent.[56] Competent evidence is
"generally admissible" evidence.[57] Admissible
evidence, in turn, is evidence "of such a character
that the court or judge is bound to receive it, that is,
allow it to be introduced at trial."[58]
In the instant case, the trial court relied on two
pieces of probative matter to convict appellant of the
offense charged. These were the seized marijuana
plants, and appellant's purportedly voluntary
confession of ownership of said marijuana plants to
the police. Other than these proofs, there was no
other evidence presented to link appellant with the
offense charged. As earlier discussed, it was error on
the trial court's part to have admitted both of these
proofs against the accused and to have relied upon
said proofs to convict him. For said evidence is
doubly tainted.
First, as earlier pointed out, the seized marijuana
plants were obtained in violation of appellant's
constitutional rights against unreasonable searches
and seizures. The search and seizure were void ab
initio for having been conducted without the
requisite judicial warrant. The prosecution's very
own evidence clearly establishes that the police had
sufficient time to obtain a warrant. There was no
showing of such urgency or necessity for the
warrantless search or the immediate seizure of the
marijuana plants subject of this case. To reiterate,
said marijuana plants cannot be utilized to prove
appellant's guilt without running afoul of the
constitutional guarantees against illegal searches
and the inadmissibility of evidence procured
pursuant to an unlawful search and seizure.
Second, the confession of ownership of the
marijuana plants, which appellant allegedly made to
the police during investigation, is not only hearsay
but also violative of the Bill of Rights. The purported
confession was made without the assistance of
competent and independent counsel, as mandated
by the Charter. Thus, said confession cannot be
used to convict appellant without running afoul of
the Constitution's requirement that a suspect in a
criminal investigation must have the services of
competent and independent counsel during such
investigation.
In sum, both the object evidence and the testimonial
evidence as to appellant's voluntary confession of
ownership of the prohibited plants relied upon to
prove appellant's guilt failed to meet the test of
Constitutional competence.
The Constitution decrees that, "In all criminal
prosecutions, the accused shall be presumed
innocent until the contrary is proved..."[59] To justify
the conviction of the accused, the prosecution must
adduce that quantum of evidence sufficient to
overcome the constitutional presumption of
innocence. The prosecution must stand or fall on its
evidence and cannot draw strength from the
weakness of the evidence for the accused.[60] Absent
the required degree of proof of an accused's guilt, he
is entitled to an acquittal.[61] In this case, the seized
marijuana plants linking appellant to the crime
charged are miserably tainted with constitutional
infirmities, which render these inadmissible "for any
purpose in any proceeding."[62] Nor can the
confession obtained during the uncounselled
investigation be used against appellant, "it being
inadmissible in evidence against him."[63] Without
these proffered but proscribed materials, we find
that the prosecution's remaining evidence did not
even approximate the quantum of evidence
necessary to warrant appellant's conviction. Hence,
the presumption of innocence in his favor stands.
Perforce, his acquittal is in order.
In acquitting an appellant, we are not saying that he
is lily-white, or pure as driven snow. Rather, we are
declaring his innocence because the prosecution's
evidence failed to show his guilt beyond reasonable
doubt. For that is what the basic law requires.
Where the evidence is insufficient to overcome the
presumption of innocence in favor of the accused,
then his "acquittal must follow in faithful obeisance
to the fundamental law."[64]
WHEREFORE, the decision promulgated on
February 18, 1997, by the Regional Trial Court of
Bayombong, Nueva Vizcaya, Branch 27, in Criminal
Case No. 3105, finding Abe Valdez y Dela Cruz,
guilty beyond reasonable doubt of violating Section 9
of the Dangerous Drugs Act of 1972, and imposing
upon him the death penalty, is
hereby REVERSED and SET ASIDE for insufficiency
of evidence. Appellant is ACQUITTED and
ordered RELEASED immediately from confine ment
unless held for another lawful cause.
SO ORDERED.
People of the Philippines v. Chua Ho San
DAVIDE, JR., C.J.:
Chua Ho San @ Tsay Ho San (hereafter CHUA) prays
for his acquittal and the reversal of the judgment of
10 February 1997 of the Regional Trial Court (RTC)
of San Fernando, La Union, Branch 66, finding him
guilty of transporting, without appropriate legal
authority, the regulated substance
methamphetamine hydrochloride, in violation of
Section 15,[1] Article III of Republic Act No. 6425,
otherwise known as the Dangerous Drugs Act of
1972 as further amended by R.A. No. 7659,[2] and
sentencing him to "die by lethal injection." In view
thereof, the judgment was brought to this Court for
automatic review pursuant to Article 47 of the
Revised Penal Code, as amended by Section 11 of
R.A. No. 7659.
In response to reports of rampant smuggling of
firearms and other contraband, Jim Lagasca Cid
(hereafter CID), as Chief of Police of the Bacnotan
Police Station, of La Union began patrolling the
Bacnotan coastline with his officers. While
monitoring the coastal area of Barangay Bulala on
29 March 1995, he intercepted a radio call at around
12:45 p.m. from Barangay Captain Juan Almoite
(hereafter ALMOITE) of Barangay Tammocalao
requesting police assistance regarding an unfamiliar
speedboat the latter had spotted. According to
ALMOITE, the vessel looked different from the boats
ordinarily used by fisherfolk of the area and was
poised to dock at Tammocalao shores. CID and six of
his men led by his Chief Investigator, SPO1 Reynoso
Badua (hereafter BADUA), proceeded forthwith to
Tammocalao beach and there conferred with
ALMOITE. CID then observed that the speedboat
ferried a lone male passenger. As it was routine for
CID to deploy his men in strategic places when
dealing with similar situations, he ordered his men
to take up positions thirty meters from the coastline.
When the speedboat landed, the male passenger
alighted, and using both hands, carried what
appeared a multicolored strawbag. He then walked
towards the road. By this time, ALMOITE, CID and
BADUA, the latter two conspicuous in their uniform
and issued side-arms, became suspicious of the man
as he suddenly changed direction and broke into a
run upon seeing the approaching officers. BADUA,
however, prevented the man from fleeing by holding
on to his right arm. Although CID introduced
themselves as police officers, the man appeared
impassive. Speaking in English, CID then requested
the man to open his bag, but he seemed not to
understand. CID thus tried speaking Tagalog, then
Ilocano, but still to no avail. CID then resorted to
what he termed "sign language;" he motioned with
his hands for the man to open the bag. This time,
the man apparently understood and acceded to the
request. A search of the bag yielded several
transparent plastic packets containing yellowish
crystalline substances. CID then gestured to the
man to close the bag, which he did. As CID wished to
proceed to the police station, he signaled the man to
follow, but the latter did not to comprehend. Hence,
CID placed his arm around the shoulders of the man
and escorted the latter to the police headquarters.
At the police station, CID surmised, after having
observed the facial features of the man, that he was
probably Taiwanese. CID then "recited and informed
the man of his constitutional rights" to remain silent,
to have the assistance of a counsel, etc. Eliciting no
response from the man, CID ordered his men to find
a resident of the area who spoke Chinese to act as
an interpreter. In the meantime, BADUA opened the
bag and counted twenty-nine (29) plastic packets
containing yellowish crystalline substances which he
and CID suspected was shabu. The interpreter, Mr.
Go Ping Guan, finally arrived, through whom the
man was "apprised of his constitutional rights." The
police authorities were satisfied that the man and
the interpreter perfectly understood each other
despite their uncertainty as to what language was
spoken. But when the policemen asked the man
several questions, he retreated to his obstinate
reticence and merely showed his I.D. with the name
Chua Ho San printed thereon. CHUA's bag and its
contents were sent to the PNP Crime Laboratory at
Camp Diego Silang, Carlatan, San Fernando, La
Union for laboratory examination. In the meantime,
CHUA was detained at the Bacnotan Police Station.
Later that same day, Police Chief Inspector and
Forensic Chemist Theresa Ann Bugayong Cid of the
Philippine National Police, Region I, received a letter
request[3] from CID - incidentally her husband - to
conduct a laboratory examination of twenty-nine (29)
plastic packets placed inside a multicolored
strawbag. In her Chemistry Report No. D-025-
95,[4] she stated that her qualitative examination
established the contents of the plastic packets,
weighing 28.7 kilos, to be positive of
methamphetamine hydrochloride or shabu, a
regulated drug.
CHUA was initially charged with illegal possession of
methamphetamine hydrochloride before the RTC
which docketed the case as Criminal Case No. 4037.
However, pursuant to the recommendation of the
Office of the Provincial Prosecutor of San Fernando,
La Union, that the facts of the case could support an
indictment for illegal transport of a regulated drug,
the information was subsequently amended to allege
that CHUA "willfully, unlawfully and feloniously
transpor(ted) 28.7 kilos of [m]ethamphetamine
[h]ydrochloride (shabu) without the necessary permit
or authority to transport the same" in violation of
Section 15, Article III of R.A. 6425 as amended by
R.A. 7659.
At his arraignment on 31 July 1995, CHUA entered
a plea of not guilty. The RTC was satisfied that
CHUA understood the amended information read to
him in Fukien by the Fukien-speaking interpreter,
Thelma Sales Go.
Thereafter, the RTC exerted all efforts to obtain the
services of a Taiwanese Interpreter through the
auspices of the Department of Foreign Affairs.
However, it was only after directing the request to
the Taipei Economic and Cultural Office in the
Philippines that interpreters were assigned to CHUA.
Trial finally ensued. The State presented evidence
tending to establish the above narration of facts
which were culled chiefly from the testimony of CID,
its first witness, and whose testimony, in turn, was
substantially corroborated by witnesses BADUA and
ALMOITE.
Expert witness Theresa Ann Cid, confirmed the
entries of her chemistry report in that the contents
of the 29 plastic packets weighing 28.7 kilos sent to
her for chemical analysis were pure, unadulterated
methamphetamine hydrochloride or shabu. She also
explained that they were unwashed, hence they
appeared yellowish.
For the defense, CHUA testified in his own behalf
through interpreter Steven Yu. He disclosed that he
hails from Taiwan and was employed in a
shipbuilding and repairing company. On 21 March
1995, he was instructed by his employer Cho Chu
Rong (hereafter RONG) to board the latter's 35-
tonner ship which would embark for Nan Au Port,
Mainland China where they would buy fish. Upon
arrival at their destination, RONG left the ship, came
back without the fish, but with two bags, the
contents of which he never divulged to CHUA. RONG
then showed to CHUA a document purportedly
granting them authority to fish on Philippine waters.
So they sailed towards the Philippines and reached
Dagupan, Pangasinan on 29 March 1995. At around
10:30 a.m., they disembarked on a small speedboat
with the two bags RONG brought with him from
China. While sailing, RONG made several phone
calls using his mobile phone. CHUA heard RONG
asked the person on the other side of the line if he
could see the speedboat they were riding.
Apparently, the person on shore could not see them
so they cruised over the waters for about five hours
more when finally, low on fuel and telephone battery,
they decided to dock. CHUA anchored the boat while
RONG carried the bags to shore. The tasks
completed, RONG left to look for a telephone while
CHUA rested and sat one and half (1 1/2) meters
away from one bag. A child thereafter pointed out to
him that one bag was missing much to RONG's
dismay when he learned of it. When a crowd started
to mill around them, the police arrived. CHUA then
realized that RONG was nowhere to be found. The
police immediately approached CHUA, and with nary
any spoken word, only gestures and hand
movements, they escorted him to the precinct where
he was handcuffed and tied to a chair. Later, the
police, led by an officer who CHUA guessed as the
Chief of Police arrived with the motor engine of the
speedboat and a bag. They presented the bag to him,
opened it, inspected and weighed the contents, then
proclaimed them as methamphetamine
hydrochloride.
CHUA denounced the prosecution's story as a
distortion of the truth. He denied he was ever
favored with an interpreter or informed of his
"constitutional rights," particularly of his right to
counsel. Consequently, his arrest was tainted with
illegality and the methamphetamine hydrochloride
found in the bag should have been regarded
inadmissible as evidence. He also maintained that
CID never graced the occasion of his setting foot for
the first time at Tammocalao beach. BADUA
certainly never prevented him from running away, as
such thought failed to make an impression in his
mind. Most significantly, he denied ownership and
knowledge of the contents of the bag, emphasizing
that RONG alone exercised dominion over the same.
Elmer Parong, (hereafter PARONG) a Sangguniang
Bayan member, recalled that on the date in
question, he arrived at the beach with the police. He
saw CHUA standing with a bag beside him. He also
remembered hearing from the people congregating at
the beach that CHUA arrived with a companion and
a certain policeman Anneb had chased the latter's
car. He additionally claimed that when the crowd
became unruly, the police decided to bring CHUA to
police headquarters. There, the mayor took charge of
the situation -- he opened CHUA's bag with the
assistance of the police, he called for a forensic
chemist surnamed CID to take a sample of the
contents of the bag, and he ordered his officials to
find an interpreter. Throughout the proceedings,
photographers were busy taking pictures to
document the event.
Last to testify was Arsenio CRAIG, a farmer and
resident of Tammocalao who narrated that he was
standing with CHUA on the beach when two men
and a lady arrived. They were about to get a bag
situated near CHUA when they detected the arrival
of the local police. They quickly disappeared. CRAIG
then noticed ALMOITE and PARONG at the beach
but not CID.
In a decision promulgated on 10 February 1997, the
RTC found that the prosecution successfully
discharged its burden of proving that CHUA
transported 28.7 kilos of methamphetamine
hydrochloride without legal authority to do so.
Invoking People v. Tagliben[5] as authority, the RTC
characterized the search as incidental to a valid in
flagrante delicto arrest, hence it allowed the
admission of the methamphetamine hydrochloride
as corpus delicti. The RTC also noted the futility of
informing CHUA of his constitutional rights to
remain silent, and to have competent and
independent counsel preferably of his own choice,
considering the language barrier and the observation
that such irregularity was "rectified when accused
was duly arraigned and ... (afterwards) participated
in the trial of this case." The RTC then disregarded
the inconsistencies and contradictions in the
testimonies of the prosecution witnesses as these
referred to minor details which did not impair the
credibility of the witnesses or tarnish the credence
conferred on the testimonies thus delivered.
The RTC also believed that CHUA conspired not only
with his alleged employer RONG and the Captain of
the 35-tonner vessel in the illegal trade of prohibited
drugs on Philippine shores, but with several other
members of an organized syndicate bent on
perpetrating said illicit traffic. Such predilection was
plainly evident in the dispositive portion, to wit:
WHEREFORE, and in view of all the foregoing, as
proven and established by convincing and
satisfactory evidence that the accused had conspired
and acted in concert with one Cho Chu Rong, not to
mention Chen Ho Fa, the Skipper of the 35-tonner
ship they used in coming to the Country from China
and Taiwan, this Court finds the accused Chua Ho
San @ Tsay Ho San guilty beyond reasonable doubt
of the offense of Violation of Sec. 15, Art. III of R.A.
No. 6425, as amended by R.A. No. 7659 as charged
in the Information, and considering the provisions of
Sec. 20 of R.A. No. 7659 that the maximum penalty
shall be imposed if the quantity
sold/possessed/transported is `200 grams or more'
in the case of Shabu, and considering, further that
the quantity involved in this case is 28.7 kilograms
which is far beyond the weight ceiling specified in
said Act, coupled with the findings of conspiracy or
that accused is a member of an organized syndicated
crime group, this Court, having no other recourse
but to impose the maximum penalty to accused, this
Court hereby sentences the said accused Chua Ho
San @ Tsay Ho San to die by lethal injection; to pay
a fine of Ten Million Pesos (P10,000,000.00); and to
pay the costs.
The Court hereby orders Director Ricareido [sic]
Sarmiento of the Philippine National Police to
immediately form an investigating Committee to be
composed by [sic] men of unimpeachable integrity,
who will conduct an exhaustive investigation
regarding this case to determine whether there was
negligence or conspiracy in the escape of Cho Chu
Rong and the two (2) or three (3) persons who
approached the accused in the seashore of
Tammocalao, Bacnotan, La Union, and attempted to
take the remaining bag from accused, as well as the
whereabouts of the other bag; and to furnish this
Court a copy of the report/result of the said
investigation in order to show compliance herewith
sixty (60) days from receipt hereof.
The confiscated 28.7 kilograms of Methamphetamine
Hydrochloride or Shabu is ordered turned over
immediately to the Dangerous Drugs Board for
destruction in accordance with the law.
The fiberglass boat with its motor engine is hereby
ordered confiscated in favor of the government and
to be turned over to the Philippine National Police,
La Union Command, for use in their Bantay-Dagat
operations against all illegal seaborne activities.
SO ORDERED.[6]
Before this Court, CHUA posits that the RTC erred in
(1) admitting as competent evidence the 29 plastic
packets of methamphetamine hydrochloride since
they were indubitably "forbidden fruits;" (2) granting
weight and credence to the testimonies of
prosecution witnesses despite glaring inconsistencies
on material points; and in (3) appreciating
conspiracy between him and an organized syndicate
in the illicit commerce of prohibited drugs since this
was not alleged in the information.
The Solicitor General traverses CHUA's contentions
by asserting that: (1) the search was licitly
conducted despite the absence of search and seizure
warrants as circumstances immediately preceding to
and contemporaneous with the search necessitated
and validated the police action; and (2) that there
was an effective and valid waiver of CHUA's right
against unreasonable searches and seizures since he
consented to the search.
We reverse the RTC.
Enshrined in the Constitution is the inviolable right
to privacy of home and person. It explicitly ordains
that people have the right to be secure in their
persons, houses, papers and effects against
unreasonable searches and seizures of whatever
nature and for any purpose.[7] Inseparable, and not
merely corollary or incidental to said right and
equally hallowed in and by the Constitution, is the
exclusionary principle which decrees that any
evidence obtained in violation of said right is
inadmissible for any purpose in any proceeding.[8]
The Constitutional proscription against
unreasonable searches and seizures does not, of
course, forestall reasonable searches and seizure.
What constitutes a reasonable or even an
unreasonable search in any particular case is purely
a judicial question, determinable from a
consideration of the circumstances involved.[9] Verily,
the rule is, the Constitution bars State intrusions to
a person's body, personal effects or residence except
if conducted by virtue of a valid search warrant
issued in compliance with the procedure outlined in
the Constitution and reiterated in the Rules of Court;
"otherwise such search and seizure become
`unreasonable' within the meaning of the
aforementioned constitutional provision."[10] This
interdiction against warrantless searches and
seizures, however, is not absolute and such
warrantless searches and seizures have long been
deemed permissible by jurisprudence[11] in instances
of (1) search of moving vehicles, (2) seizure in plain
view, (3) customs searches, (4) waiver or consent
searches, (5) stop and frisk situations
(Terry search),[12] and (6) search incidental to a
lawful arrest. The last includes a valid warrantless
search and seizure pursuant to an equally valid
warrantless arrest, for, while as a rule, an arrest is
considered legitimate if effected with a valid warrant
of arrest, the Rules of Court recognize permissible
warrantless arrests, to wit: (1) arrests in flagrante
delicto, (2) arrests effected in hot pursuit, and (3)
arrests of escaped prisoners.[13]
This Court is therefore tasked to determine whether
the warrantless arrest, search and seizure conducted
under the facts of the case at bar constitute a valid
exemption from the warrant requirement. Expectedly
and quite understandably, the prosecution and the
defense painted extremely divergent versions of the
incident. But this Court is certain that CHUA was
arrested and his bag searched without the benefit of
a warrant.
In cases of in flagrante delicto arrests, a peace officer
or a private person may without a warrant, arrest a
person, when, in his presence, the person to be
arrested has committed, is actually committing, or is
attempting to commit an offense. The arresting
officer, therefore, must have personal knowledge of
such fact[14] or as recent case law[15] adverts to,
personal knowledge of facts or circumstances
convincingly indicative or constitutive of probable
cause. The term probable cause had been
understood to mean a reasonable ground of
suspicion supported by circumstances sufficiently
strong in themselves to warrant a cautious man's
belief that the person accused is guilty of the offense
with which he is charged.[16] Specifically with respect
to arrests, it is such facts and circumstances which
would lead a reasonably discreet and prudent man
to believe that an offense has been committed by the
person sought to be arrested.[17] In People v.
Montilla,[18] the Court acknowledged that "the
evidentiary measure for the propriety of filing
criminal charges, and correlatively, for effecting
warrantless arrest, has been reduced and
liberalized." Noting that the previous statutory and
jurisprudential evidentiary standard was "prima
facie evidence" and that it had been dubiously
equated with probable cause, the Court explained:
[F]elicitously, those problems and confusing
concepts (referring to prima facie evidence and
probable cause) were clarified and set aright, at least
on the issue under discussion, by the 1985
amendment of the Rules of Court which provides in
Rule 112 thereof that the quantum of evidence
required in preliminary investigation is such
evidence as suffices to `engender as well founded
belief' as to the fact of the commission of the crime
and the respondent's probable guilt thereof. It has
the same meaning as the related phraseology used in
other parts of the same Rule, that is, that the
investigating fiscal `finds cause to hold the
respondent for trial,' or where `a probable cause
exists.' It should, therefore, be in that sense, wherein
the right to effect a warrantless arrest should be
considered as legally authorized." (emphasis
supplied)[19]
Guided by these principles, this Court finds that
there are no facts on record reasonably suggestive or
demonstrative of CHUA's participation in an ongoing
criminal enterprise that could have spurred police
officers from conducting the obtrusive search. The
RTC never took the pains of pointing to such facts,
but predicated mainly its decision on the finding that
"accused was caught red-handed carrying the bagful
of [s]habu when apprehended." In short, there is no
probable cause. At least in People v. Tangliben, the
Court agreed with the lower court's finding that
compelling reasons (e.g., accused was acting
suspiciously, on the spot identification by an
informant that accused was transporting prohibitive
drug, and the urgency of the situation) constitutive
of probable cause impelled police officers from
effecting an in flagrante delicto arrest. In the case at
bar, the Solicitor General proposes that the following
details are suggestive of probable cause -- persistent
reports of rampant smuggling of firearm and other
contraband articles, CHUA's watercraft differing in
appearance from the usual fishing boats that
commonly cruise over the Bacnotan seas, CHUA's
illegal entry into the Philippines (he lacked the
necessary travel documents or visa), CHUA's
suspicious behavior, i.e. he attempted to flee when
he saw the police authorities, and the apparent ease
by which CHUA can return to and navigate his
speedboat with immediate dispatch towards the high
seas, beyond the reach of Philippine laws.
This Court, however, finds that these do not
constitute "probable cause." None of the telltale
clues, e.g., bag or package emanating the pungent
odor of marijuana or other prohibited
drug,[20] confidential report and/or positive
identification by informers of courier(s) of prohibited
drug and/or the time and place where they will
transport/deliver the same,[21] suspicious demeanor
or behavior[22] and suspicious bulge in the waist[23]--
accepted by this Court as sufficient to justify a
warrantless arrest exists in this case. There was no
classified information that a foreigner would
disembark at Tammocalao beach bearing prohibited
drug on the date in question. CHUA was not
identified as a drug courier by a police informer or
agent. The fact that the vessel that ferried him to
shore bore no resemblance to the fishing boats of the
area did not automatically mark him as in the
process of perpetrating an offense. And despite
claims by CID and BADUA that CHUA attempted to
flee, ALMOITE testified that the latter was merely
walking and oblivious to any attempt at conversation
when the officers approached him. This cast serious
doubt on the truthfulness of the claim, thus:
How far were you when the accused put the bag
Q
on his shoulder?
We were then very near him about three meters
A
away from the male person carrying the bag.
 To what direction was he facing when he put the
Q
bag on his shoulder?
A To the east direction.
Q In relation to you, where were you.
With the company of Sgt. Reynoso and Maj. Cid
we approached the accused and when Maj. Cid
A went near him, he spoke in Tagalog, English and
Ilocano which accused did not understand
because he did not respond.
When Maj. Cid was talking, what was the accused
Q
doing at that time?
A He was walking.
Q To what direction he was walking?
A He was walking to the east direction. (sic)
Q He was walking away from you or going near you?
He was going away from us. That is why Sgt.
A
Reynoso held the right arm of the accused.
Was Sgt. Badua able to hold the right arm of the
Q
accused?
A Yes sir and he stopped.[24]
True, CHUA entered Philippine territory without a
visa. This was not obvious to the police. But
gossamer to the officers' sense perception and view
were CHUA disembarking from a speedboat, CHUA
walking casually towards the road, and CHUA
carrying a multicolored strawbag. These acts did not
convey any impression that he illegally entered
Philippine shores. Neither were these overt
manifestations of an ongoing felonious activity nor of
CHUA's criminal behavior as clearly established in
CID's testimony, thus:
Was the accused committing a crime when you
Q
introduced yourselves:
A No, sir.
No, so there was no reason for you to approach
Q the accused because he was not doing anything
wrong?
No, sir, that is our objective, to approach the
A person and if ever or whatever assistance that we
can give we will give.[25]
The search cannot therefore be denominated as
incidental to an arrest. While a contemporaneous
search of a person arrested may be effected to deliver
dangerous weapons or proofs or implements used in
the commission of the crime and which search may
extend to the area within his immediate control
where he might gain possession of a weapon or
evidence he can destroy,[26] a valid arrest must
precede the search. The process cannot be reversed.
In a search incidental to a lawful arrest, as the
precedent arrest determines the validity of the
incidental search, the legality of the arrest is
questioned in a large majority of these cases, e.g.,
whether an arrest was merely used as a pretext for
conducting a search. In this instance, the law
requires that there be first a lawful arrest before a
search can be made - the process cannot be
reversed.[27]
To reiterate, the search was not incidental to an A We introduced ourselves as police officers, sir.
arrest. There was no warrant of arrest and the
warrantless arrest did not fall under the exemptions Okey, in the first place why did you introduce
Q
allowed by the Rules of Court[28] as already shown. yourselves?
From all indications, the search was nothing but a A That is normal practice in our part, sir.
fishing expedition. It is worth mentioning here that
after introducing themselves, the police officers ***
immediately inquired about the contents of the bag. If it is possible . Okey (sic) now, after introducing
Q
What else could have impelled the officers from yourselves what did you do?
displaying such inordinate interest in the bag but to He did not answer me and he did not utter any
A
ferret out evidence and discover if a felony had word,
indeed been committed by CHUA -- in effect to
"retroactively establish probable cause and validate When he did not utter any word. What else did he
Q
an illegal search and seizure." do?
I asked again a question that if he can open his
A
The State then attempted to persuade this Court bag sir.
that there was a consented search, a legitimate
waiver of the constitutional guarantee against And did he understand your question when you
Q
obtrusive searches. It is fundamental, however, that requested him to open his bag?
to constitute a waiver, it must first appear that the A No, sir, there is no answer.
right exists; secondly, that the person involved had
knowledge, actual or constructive, of the existence of Q No answer?
such a right; and lastly, that said person had an A Yes, sir, no answer.
actual intention to relinquish the right.[29] CHUA
never exhibited that he knew, actually or And when there was no answer what did you do
Q
constructively of his right against unreasonable next?
searches or that he intentionally conceded the same. A I used sign language sir.
This can be inferred from the manner by which the
search was performed, thus: Will you demonstrate to this Honorable Court how
Q you demonstrated that sign language of opening
Together with your Chief Investigator, what was the bag mr. (sic) witness?
Q the first thing that you did when you approached I pointed to the zipper of the bag and then made
A
him (CHUA)? an action like this sir.
***
SHERIFF:
The witness demonstrating (sic) by pointing to the
straw bag and then manifesting a sign to open the
zipper of the straw bag moving his right hand
from left to right or from the opening to the end of
the zipper.
COURT: From the start of the zipper where you open
it up to the end of the zipper.
Witness: Yes, sir, and then I made a motion like this.
(The witness repeating the motion described on
record.)
COURT: Did you open that personally?
WITNESS:
A No, your honor.
Now, mr. (sic) witness, why did you request the
Q
accused to open the bag?
Because it is our duty also to inspect his
A
belongings sir.
Why, why was it - no, I reform my question your
Q honor. Is it normal procedure for you to examine
anybody or to request anybody to open his bag?
The fact that he was a foreigner, sir, it is also our
A duty to inspect the baggage, it is our routine duty
of a police (sic), sir.
Is that the normal duty of a police officer to
Q
request a person to open his bag?
A yes, sir.
Okey, (sic) you did not ask the accused, mr. (sic)
Q
witness, to open his bag?
A No, sir.
Q But you simply requested him to open the nag?
A Yes, sir.[30]
CHUA obviously failed to understand the events that
overran and overwhelmed him. The police officers
already introduced themselves to CHUA in three
languages, but he remained completely deadpan.
The police hence concluded that CHUA failed to
comprehend the three languages. When CHUA failed
to respond again to the police's request to open the
bag, they resorted to what they called "sign
language." They claimed that CHUA finally
understood their hand motions and gestures. This
Court disagrees. If CHUA could not understand what
was orally articulated to him, how could he
understand the police's "sign language." More
importantly, it cannot logically be inferred from his
alleged cognizance of the "sign language" that he
deliberately, intelligently, and consciously waived his
right against such an intrusive search. This Court is
not unmindful of cases upholding the validity of
consented warrantless searches and seizure. But in
these cases, the police officers' request to search
personnel effects was orally articulated to the
accused and in such language that left no room for
doubt that the latter fully understood what was
requested. In some instances, the accused even
verbally replied to the request demonstrating that he
also understood the nature and consequences of
such request.[31]
It was eventually discovered that the bag contained
the regulated substance. But this is a trifling matter.
If evidence obtained during an illegal search even if
tending to confirm or actually confirming initial
information or suspicion of felonious activity is
absolutely considered inadmissible for any purpose
in any proceeding, the same being the fruit of a
poisonous tree[32] how much more of "forbidden
fruits" which did not confirm any initial suspicion of
criminal enterprise as in this case - because the
police admitted that they never harbored any initial
suspicion. Casting aside the regulated substance as
evidence, the remaining evidence on record are
insufficient, feeble and ineffectual to sustain CHUA's
conviction.
Indeed, the likelihood of CHUA having actually
transported methamphetamine hydrochloride cannot
be quickly dispelled. But the constitutional
guarantee against unreasonable searches and
seizures cannot be so carelessly disregarded as
overzealous police officers are sometimes wont to do.
Fealty to the Constitution and the rights it
guarantees should be paramount in their minds,
otherwise their good intentions will remain as such
simply because they have blundered. "There are
those who say that... 'the criminal is to go free
because the constable has blundered.'... In some
cases this will undoubtedly be the result. But...
'there is another consideration -- the imperative of
judicial integrity.'... The criminal goes free, if he
must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its
failure to observe its own laws, or worse, its
disregard of the charter of its own existence."[33]
As to the averred glaring inconsistencies in the
testimonies of the prosecution witnesses, this Court
considers them trivial as they refer to insignificant
details which will not affect the outcome of the case.
On a passing note, this Court calls the attention of
the trial court regarding its erroneous appreciation
of conspiracy. This aggravating circumstance is
without question unsupported by the records.
Conspiracy was not included in the indictment nor
raised in the pleadings or proceedings of the trial
court. It is also fundamental that conspiracy must
be proven just like any other criminal accusation,
that is, independently and beyond reasonable
doubt.[34]
WHEREFORE, for all the foregoing, the decision of
the Regional Trial Court, Branch 66, San Fernando,
La Union in Criminal Case No. 4037 is hereby
REVERSED and SET ASIDE and accused-appellant
CHUA HO SAN @ TSAY HO SAN is hereby
ACQUITTED of the crime charged, the evidence not
being sufficient to establish his guilt beyond
reasonable doubt.
Costs de oficio.
SO ORDERED.
[GR NO. 63630, Apr 06, 1990]
PEOPLE v. MEDEL TANGLIBEN Y BERNARDINO
GUTIERREZ, JR., J.:
This is an appeal from the decision of the Regional
Trial Court, Branch 41, Third Judicial Region at San
Fernando, Pampanga, Branch 41, finding appellant
Medel Tangliben y Bernardino guilty beyond
reasonable doubt of violating Section 4, Article II of
Republic Act 6425 (Dangerous Drugs Act of 1972 as
amended) and sentencing him to life imprisonment,
to pay a fine of P20,000 and to pay the costs.
The information filed against the appellant alleged:
"That on or about the 2nd day of March, 1982, in the
municipality of San Fernando, Province of
Pampanga, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused
MEDEL TANGLIBEN y BERNARDINO, knowing fully
well that Marijuana is a prohibited drug, did then
and there willfully, unlawfully and feloniously have
in his possession, control and custody one (1) bag of
dried marijuana leaves with an approximate weight
of one (1) kilo and to transport (sic) the same to
Olongapo City, without authority of law to do so." (At
p. 6, Rollo)
The prosecution's evidence upon which the finding of
guilt beyond reasonable doubt was based is narrated
by the trial court as follows:
"It appears from the evidence presented by the
prosecution that in the late evening of March 2,
1982, Patrolmen Silverio Quevedo and Romeo L.
Punzalan of the San Fernando Police Station,
together with Barangay Tanod Macario Sacdalan,
were conducting surveillance mission at the Victory
Liner Terminal compound located at Barangay San
Nicolas, San Fernando, Pampanga; that the
surveillance mission was aimed not only against
persons who may commit misdemeanors at the said
place but also on persons who may be engaging in
the traffic of dangerous drugs based on informations
supplied by informers; that it was around 9:30 in the
evening that said Patrolmen noticed a person
carrying a red traveling bag (Exhibit G) who was
acting suspiciously and they confronted him; that
the person was requested by Patrolman Quevedo
and Punzalan to open the red traveling bag but the
person refused, only to accede later on when the
patrolmen identified themselves; that found inside
the bag were marijuana leaves (Exhibit B) wrapped
in plastic wrapper and weighing one kilo, more or
less; that the person was asked of his name and the
reason why he was at the said place and he gave his
name as Medel Tangliben and explained that he was
waiting for a ride to Olongapo City to deliver the
marijuana leaves; that the accused was taken to the
police headquarters at San Fernando, Pampanga, for
further investigation; and that Pat. Silverio Quevedo
submitted to his Station Commander his
Investigator's Report (Exhibit F).
It appears also from the prosecution's evidence that
in the following morning or on March 3, 1982, Pat.
Silverio Quevedo asked his co-policeman Pat.
Roberto Quevedo, who happens to be his brother
and who has had special training on narcotics, to
conduct a field test on a little portion of the
marijuana leaves and to have the remaining portion
examined by the PCCL at Camp Olivas, San
Fernando, Pampanga; that Pat. Roberto Quevedo
conducted a field test (Exhibit H) on the marijuana
leaves and found positive result for marijuana
(Exhibit E); that the remaining bigger quantity of the
marijuana leaves were taken to the PCCL at Camp
Olivas by Pat. Roberto Quevedo that same day of
March 3, 1982 (Exhibit A and A-1) and when
examined, the same were also found to be marijuana
(Exhibit C and C-1)." (At pp. 9-10, Rollo)
Only the accused testified in his defense. His
testimony is narrated by the trial court as follows:
"The accused declared that he got married on
October 25, 1981 and his wife begot a child on June
10, 1982; that he was formerly employed in the
poultry farm of his uncle Alejandro Caluma in
Antipolo, Rizal; that he is engaged in the business of
selling poultry medicine and feeds, including chicks,
and used to conduct his business at Taytay, Rizal;
that he goes to Subic at times in connection with his
business and whenever he is in Subic, he used to
buy C-rations from one Nena Ballon and dispose the
same in Manila; that he never left his residence at
Antipolo, Rizal, on March 2, 1982; that on March 3,
1982, he went to Subic to collect a balance of
P100.00 from a customer thereat and to buy C-
rations; that he was able to meet Nena Ballon at
6:00 o'clock in the evening and he stayed in Nena's
house up to 8:00 o'clock because he had a drinking
spree with Nena's son; that he tried to catch the 8:00
o'clock trip to Manila from Olongapo City but he
failed and was able to take the bus only by 9:00
o'clock that evening; that it was a Victory Liner Bus
that he rode and because he was tipsy, he did not
notice that the bus was only bound for San
Fernando Pampanga; that upon alighting at the
Victory Liner Compound at San Fernando,
Pampanga, he crossed the street to wait for a bus
going to Manila; that while thus waiting for a bus, a
man whom he came to know later as Pat. Punzalan,
approached him and asked him if he has any
residence certificate; that when he took out his
wallet, Pat. Punzalan got wallet and took all the
money inside the wallet amounting to P545.00; that
Pat. Punzalan told him that he'll be taken to the
municipal building for verification as he may be an
NPA member; that at the municipal building, he saw
a policeman, identified by him later as Pat. Silverio
Quevedo, sleeping but was awakened when he
arrived; that Pat. Quevedo took him upstairs and
told him to take out everything from his pocket
saying that the prisoners inside the jail may get the
same from him; that inside his pocket was a fifty-
peso bill and Pat. Quevedo took the same, telling him
that it shall be returned to him but that it was never
returned to him; that he was thereafter placed under
detention and somebody told him that he is being
charged with possession of marijuana and if he
would like to be bailed out, somebody is willing to
help him; and, that when he was visited by his wife,
he told his wife that Patrolman Silverio Quevedo took
away all his money but he told his wife not to
complain anymore as it would be useless." (Rollo, pp.
10-11)
Appellant, through counsel de oficio Atty. Enrique
Chan, raised the lone assignment of error in his
appeal:
"THE COURT A-QUO ERRED IN CONVICTING THE
ACCUSED-APPELLANT AND FINDING HIM GUILTY
OF THE CRIME CHARGED ON INSUFFICIENT AND
DOUBTFUL EVIDENCE." (At p. 48, Rollo)
The Solicitor-General likewise filed his brief,
basically reiterating the lower court's findings.
However, before this Court had the chance to act on
appeal, counsel de oficio Atty. Enrique Chan
died. Thereafter, this court appointed a new
counsel de oficio, Atty. Katz Tierra, and pursuant
thereto, the Deputy Clerk of Court, in behalf of the
Clerk of Court, required the new counsel to file her
appellant's brief. The latter complied and, in her
brief, raised the following assignment of errors:
I "THE LOWER COURT ERRED IN ADMITTING AS
EVIDENCE THE PACKAGE OF MARIJUANA
ALLEGEDLY SEIZED FROM DEFENDANT-
APPELLANT AS IT WAS A PRODUCT OF AN
UNLAWFUL SEARCH WITHOUT A WARRANT.
II THE LOWER COURT ERRED IN ADMITTING AS
EVIDENCE THE ALLEGED PACKAGE OF
MARIJUANA LEAVES AS THE LEAVES
SUPPOSEDLY SEIZED FROM ACCUSED WHEN IT
WAS NEVER AUTHENTICATED.
III THE LOWER COURT ERRED IN NOT RULING
THAT THE PROSECUTION FAILED TO PROVE THE
GUILT OF DEFENDANT-APPELLANT." (At p. 92-
93, Rollo)
It is contended that the marijuana allegedly seized
from the accused was a product of an unlawful
search without a warrant and is therefore
inadmissible in evidence.
This contention is devoid of merit.
One of the exceptions to the general rule requiring a
search warrant is a search incident to a lawful
arrest. Thus, Section 12 of Rule 126 of the 1985
Rules on Criminal Procedure provides:
"Section 12. Search incident to a lawful arrest. A
person lawfully arrested may be searched for
dangerous weapons or anything which may be used
as proof of the commission of an offense, without a
search warrant."
Meanwhile, Rule 113, Sec. 5(a) provides:
"xxx 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."
Accused was caught in flagrante, since he was
carrying marijuana at the time of his arrest. This
case therefore falls squarely within the
exception. The warrantless search was incident to a
lawful arrest and is consequently valid.
In the case of People v. Claudio, 160 SCRA 646,
[1988] this Court, confronted with the same issue,
held that:
"Appellant Claudio was caught transporting
prohibited drugs. Pat. Daniel did not need a warrant
to arrest Claudio as the latter was caught
in flagrante delicto. The warrantless search being an
incident to a lawful arrest is in itself lawful. (Nolasco
v. Pano, 147 SCRA 509). Therefore, there was no
infirmity in the seizure of the 1.1 kilos of marijuana."
We are not unmindful of the decision of this Court
in People v. Aminnudin, 163 SCRA 402 [1988]. In
that case the PC officers had earlier received a tip
from an informer that accused-appellant was on
board a vessel bound for Iloilo City and was carrying
marijuana. Acting on this tip, they waited for him
one evening, approached him as he descended from
the gangplank, detained him and inspected the bag
he was carrying. Said bag contained marijuana
leaves. The Court held that the marijuana could not
be admitted in evidence since it was seized illegally.
The records show, however, that there were certain
facts, not existing in the case before us, which led
the Court to declare the seizure as invalid. As stated
therein:
"The present case presented no such urgency. From
the conflicting declarations of the PC witnesses, it is
clear that they had at least two days within which
they could have obtained a warrant of arrest and
search Aminnudin who was coming to Iloilo on the
M/V Wilcon 9. His name was known. The vehicle
was identified. The date of its arrival was
certain. And from the information they had received,
they could have persuaded a judge that there was
probable cause, indeed, to justify the issuance of a
warrant. Yet they did nothing. No effort was made
to comply with the law. The Bill of Rights was
ignored altogether because the PC lieutenant who
was the head of the arresting team, had determined
on his own authority that a 'search warrant was not
necessary'".
In contrast, the case before us presented
urgency. Although the trial court's decision did not
mention it, the transcript of stenographic notes
reveals that there was an informer who pointed to
the accused-appellant as carrying marijuana. (TSN,
pp. 52-53) Faced with such on?the-spot information,
the police officers had to act quickly. There was not
enough time to secure a search warrant. We cannot
therefore apply the ruling in Aminnudin to the case
at bar. To require search warrants during on-the-
spot apprehensions of drug pushers, illegal
possessors of firearms, jueteng collectors, smugglers
of contraband goods, robbers, etc. would make it
extremely difficult, if not impossible to contain the
crimes with which these persons are associated.
Accused-appellant likewise asserts that the package
of marijuana leaves supposedly seized from him was
never authenticated and therefore should not have
been admitted as evidence. He capitalizes on the
fact that the marijuana package brought by
Patrolman Roberto Quevedo to the PC Crime
Laboratory for examination did not contain a tag
bearing the name of the accused. We rule, however,
that since Patrolman Quevedo testified that he gave
the marijuana package together with a letter-request
for examination, and the forensic chemist Marilene
Salangad likewise testified that she received the
marijuana together with the letter-request and said
letter-request bore the name of the accused, then the
requirements of proper authentication of evidence
were sufficiently complied with. The marijuana
package examined by the forensic chemist was
satisfactorily identified as the one seized from
accused.
Even assuming arguendo that the marijuana sent to
the PC Crime Laboratory was not properly
authenticated, still, we cannot discount the separate
field test conducted by witness Roberto Quevedo
which yielded positive results for marijuana.
Lastly, the appellant claims that the evidence upon
which he was convicted was insufficient and
doubtful and that the prosecution failed to prove his
guilt.
In attacking the sufficiency of evidence, the appellant
avers that the informer should have been presented
before the lower court. We discard this argument as
a futile attempt to revive an already settled
issue. This Court has ruled in several cases that
non-presentation of the informer, where his
testimony would be merely corroborative or
cumulative, is not fatal to the prosecution's
case. (People v. Asio, G. R. No. 84960, September 1,
1989; People v. Viola, G. R. No. 64262, March 16,
1989; People v. Capulong, 160 SCRA 533
[1988]; People v. Cerelegia, 147 SCRA 538).
As to doubtfulness of evidence, well-settled is the
rule that findings of the trial court on the issue of
credibility of witnesses and their testimonies are
entitled to great respect and accorded the highest
consideration by the appellate court. Since
credibility is a matter that is peculiarly within the
province of the trial judge, who had first hand
opportunity to watch and observe the demeanor and
behavior of witnesses both for the prosecution and
the defense at the time of their testimony (People v.
Tejada, G. R. No. 81520, February 21, 1989; People
v. Turla, 167 SCRA 278), we find no reason to
disturb the following findings:
"The testimony of prosecution witnesses Patrolman
Silverio Quevedo and Romeo Punzalan are positive
and sufficiently clear to show the commission by the
accused of the offense herein charged. These
prosecution witnesses have no motive to fabricate
the facts and to foist a very serious offense against
the accused. The knowledge on what these
witnesses testified to were (sic) acquired by them in
the official performance of their duties and their (sic)
being no showing that they are prejudiced against
the accused, their testimonies deserve full credit.
The testimonies of the aforementioned patrolmen
that what they found in the possession of the
accused were marijuana leaves were corroborated by
the examination findings conducted by Pat. Roberto
Quevedo (Exhibit H) and by Forensic Chemist
Marlene Salangad of the PCCL, with station at Camp
Olivas, San Fernando, Pampanga (Exhibits C and C-
1). (Rollo, p. 11)
"Moreover, if there is truth in the testimony of the
accused to the effect that Pat. Punzalan got all the
money from his wallet when he was accosted at the
Victory Liner Terminal and was told just to keep
quiet, otherwise he will be 'salvaged', why will Pat.
Punzalan still bring the accused to the Municipal
Building for interrogation and/or
verification? Would not Pat. Punzalan be exposing
his identity to the accused? This is unnatural. And
this is also true on the testimony of the accused that
Pat. Silverio Quevedo got his fifty-peso bill and never
returned the same to him. If the two policemen
really got any money from the accused and that the
marijuana leaves do not belong to the accused, why
will the two policemen still produce in Court as
evidence that expensive-looking traveling red bag
(Exhibit G) taken from the accused and which
contained the marijuana leaves in question if the
instant case is a mere fabrication?
to flight which, as correctly observed by the lower
court, is an added circumstance tending to establish
his guilt.
We take exception, however, to the trial court's
finding that:

As already stated, all the evidence, oral and

"The dried marijuana leaves found in the possession
documentary, presented by the prosecution in this
of the accused weighs one (1) kilo, more or less. The
case were all based on personal knowledge acquired
intent to transport the same is clear from the
by the prosecution witnesses in the regular
testimony of Pat. Silverio Quevedo who declared,
performance of their official duties and there is
among other things, that when he confronted the
nothing in their testimonies to show that they are
accused that night, the latter told him that he
bias (sic) or that they have any prejudice against the
(accused) is bringing the marijuana leaves to
herein accused. Between the testimonies of these
Olongapo City. Moreover, considering the quantity
prosecution witnesses and that of the
of the marijuana leaves found in the possession of
uncorroborated and self-serving testimony of the
the accused and the place he was arrested which is
accused, the former should prevail." (Rollo p.13)
at San Fernando, Pampanga, a place where the
Likewise, the appellant chose to limit his defense to accused is not residing, it can be said that the intent
his own testimony. He could have availed himself to transport the marijuana leaves has been clearly
through compulsory court processes of several established." (Rollo, pp. 13-14)
witnesses to buttress his defense. Since not one
The alleged extrajudicial confession of the accused
other witness was presented nor was any
which, on the other hand, he categorically denied in
justification for the non-appearance given, the
court, that he is transporting the marijuana leaves to
inadequacy of his lone and uncorroborated
Olongapo City cannot be relied upon. Even
testimony remains. It cannot prevail vis-a-vis the
assuming it to be true, the extrajudicial confession
positive testimonies given by the prosecution
cannot be admitted because it does not appear in the
witnesses.
records that the accused, during custodial
investigation, was apprised of his rights to remain
Moreover, the appellant's having jumped bail is akin
silent and to counsel and to be informed of such
rights. In People v. Duero, 104 SCRA 379 [1981], marijuana leaves.
the Court pronounced that "inasmuch as the
prosecution failed to prove that before Duero made Nor can it be said that the intent to transport
his alleged oral confession he was informed of his is clearly established from the fact that the accused
rights to remain silent and to have counsel and was arrested at San Fernando, Pampanga, a place
because there is no proof that he knowingly and which is not his residence. Conviction of a crime
intelligently waived those rights, his confession is with an extremely severe penalty must be based on
inadmissible in evidence. This ruling was reiterated evidence which is clearer and more convincing than
in People v. Tolentino, 145 SCRA 597 [1986], where the inferences in this case.
the Court added that:
What was therefore proved beyond reasonable doubt
is not his intent to transport the marijuana leaves
"In effect, the Court not only abrogated the rule on
but his actual possession.
presumption of regularity of official acts relative to
admissibility of statements taken during in-custody
The offense committed by the appellant is possession
interrogation but likewise dispelled any doubt as to
of marijuana under Section 8 of Republic Act No.
the full adoption of the Miranda doctrine in this
6425 (Dangerous Drugs Act of 1972 as amended).
jurisdiction. It is now incumbent upon the
prosecution to prove during a trial that prior to
WHEREFORE, the judgment of conviction by the
questioning, the confessant was warned of his
trial court is hereby AFFIRMED but MODIFIED. The
constitutionally protected rights."
appellant is sentenced to suffer the penalty of
The trial judge likewise found the marijuana to imprisonment ranging from six (6) years and one (1)
weigh one kilo, more or less, and from this finding day to twelve (12) years and fine of Six Thousand
extracted a clear intent to transport the marijuana (P6,000.00) Pesos.
leaves. It may be pointed out, however, that
although the information stated the weight to be SO ORDERED.
approximately one kilo, the forensic chemist who
examined the marijuana leaves testified that the
marijuana weighed only 600 grams. Such amount is
not a considerable quantity as to conclusively confer
upon the accused an intent to transport the
 [GR No. 138881, Dec 18, 2000]
PEOPLE v. VS.LEILA JOHNSON Y REYES
MENDOZA, J.:
This is an appeal from the decision,[1] dated May 14,
1999, of the Regional Trial Court, Branch 110, Pasay
City, finding accused-appellant Leila Johnson y
Reyes guilty of violation of §16 of R.A. No. 6425
(Dangerous Drugs Act), as amended by R.A. No.
7659, and sentencing her to suffer the penalty
of reclusion perpetua and to pay a fine of
P500,000.00 and the costs of the suit.
The information against accused-appellant alleged:
That on June 26, 1998 inside the Ninoy Aquino
International Airport, and within the jurisdiction of
this Honorable Court, the above-named Accused did
then and there willfully, unlawfully and feloniously
possess three plastic bags of methamphetamine
hydrochloride, a regulated drug, each bag weighing:
#1 ONE HUNDRED EIGHTY SEVEN POINT FIVE
(187.5) grams;
#2 ONE HUNDRED NINETY EIGHT POINT ZERO
(198.0) grams; and
#3 ONE HUNDRED NINETY FOUR POINT SEVEN
(194.7) grams, respectively,
or a total of FIVE HUNDRED EIGHTY POINT TWO
(580.2) grams of methamphetamine
hydrochloride.
That the above-named accused does not have the
corresponding
license or prescription to possess or use said
regulated drug.
CONTRARY TO LAW.[2]
Upon being arraigned, accused-appellant pleaded
not guilty,[3] whereupon trial was held.
The prosecution presented four witnesses, namely,
NBI Forensic Chemist George de Lara, SPO4
Reynaldo Embile, duty frisker Olivia Ramirez, and
SPO1 Rizalina Bernal. The defense presented
accused-appellant who testified in her own behalf.
The facts are as follows:
Accused-appellant Leila Reyes Johnson was, at the
time of the incident, 58 years old, a widow, and a
resident of Ocean Side, California, U.S.A. She is a
former Filipino citizen who was naturalized as an
American on June 16, 1968 and had since been
working as a registered nurse, taking care of
geriatric patients and those with Alzheimer's disease,
in convalescent homes in the United States.[4]
On June 16, 1998, she arrived in the Philippines to
visit her son's family in Calamba, Laguna. She was
due to fly back to the United States on July 26. On
July 25, she checked in at the Philippine Village
Hotel to avoid the traffic on the way to the Ninoy
Aquino International Airport (NAIA) and checked out
at 5:30 p.m. the next day, June 26, 1998.[5]
At around 7:30 p.m. of that day, Olivia Ramirez was
on duty as a lady frisker at Gate 16 of the NAIA
departure area. Her duty was to frisk departing
passengers, employees, and crew and check for
weapons, bombs, prohibited drugs, contraband
goods, and explosives.[6]
When she frisked accused-appellant Leila Johnson,
a departing passenger bound for the United States
via Continental Airlines CS-912, she felt something
hard on the latter's abdominal area. Upon inquiry,
Mrs. Johnson explained she needed to wear two
panty girdles as she had just undergone an
operation as a result of an ectopic pregnancy.[7]
Not satisfied with the explanation, Ramirez reported
the matter to her superior, SPO4 Reynaldo Embile,
saying "Sir, hindi po ako naniniwalang panty lang po
iyon." ("Sir, I do not believe that it is just a panty.")
She was directed to take accused-appellant to the
nearest women's room for inspection. Ramirez took
accused-appellant to the rest room, accompanied by
SPO1 Rizalina Bernal. Embile stayed outside.[8]
Inside the women's room, accused-appellant was
asked again by Ramirez what the hard object on her
stomach was and accused-appellant gave the same
answer she had previously given. Ramirez then
asked her "to bring out the thing under her girdle."
Accused-appellant brought out three plastic packs,
which Ramirez then turned over to Embile, outside
the women's room.[9]
The confiscated packs, marked as Exhibits C-1, C-2
and C-3, contained a total of 580.2 grams of a
substance which was found by NBI Chemist George
de Lara to be methamphetamine hydrochloride or
"shabu."[10]
Embile took accused-appellant and the plastic packs
to the 1st Regional Aviation and Security Office (1st
RASO) at the arrival area of the NAIA, where
accused-appellant's passport and ticket were taken
and her luggage opened. Pictures were taken and her
personal belongings were itemized.[11]
In her defense, accused-appellant alleged that she
was standing in line at the last boarding gate when
she was approached by Embile and two female
officers. She claimed she was handcuffed and taken
to the women's room. There, she was asked to
undress and was then subjected to a body search.
She insisted that nothing was found on her person.
She was later taken to a room filled with boxes,
garbage, and a chair. Her passport and her purse
containing $850.00 and some change were taken
from her, for which no receipt was issued to her.
After two hours, she said, she was transferred to the
office of a certain Col. Castillo.[12]
After another two hours, Col. Castillo and about
eight security guards came in and threw two white
packages on the table. They told her to admit that her detention at the City Jail of Pasay City during
the packages were hers. But she denied knowledge the pendency of this case provided that she agreed in
and ownership of the packages. She was detained at writing to abide by and comply strictly with the rules
the 1st RASO office until noon of June 28, 1999 and regulations of the City Jail.
when she was taken before a fiscal for
inquest.[13] She claimed that throughout the period SO ORDERED.
of her detention, from the night of June 26 until
Accused-appellant contends that the trial court
June 28, she was never allowed to talk to counsel
convicted her: (1) "despite failure of the prosecution
nor was she allowed to call the U.S. Embassy or any
in proving the negative allegation in the information;"
of her relatives in the Philippines.[14]
(2) "despite failure of the prosecution in proving the
quantity of methamphetamine hydrochloride;" (3)
On May 14, 1999, the trial court rendered a
"despite violation of her constitutional rights;" and
decision, the dispositive portion of which reads:[15]
(4) "when guilt was not proven beyond reasonable
doubt."[16]
WHEREFORE, judgment is hereby rendered finding
the accused LEILA JOHNSON Y REYES, GUILTY
First. Accused-appellant claims that she was
beyond reasonable doubt of the offense of Violation
arrested and detained in gross violation of her
of Section 16 of Republic Act 6425 as amended and
constitutional rights. She argues that the "shabu"
hereby imposes on her the penalty of RECLUSION
confiscated from her is inadmissible against her
PERPETUA and condemns said accused to pay a fine
because she was forced to affix her signature on the
of FIVE HUNDRED THOUSAND PESOS
plastic bags while she was detained at the 1st RASO
(P500,000.00) without subsidiary imprisonment in
office, without the assistance of counsel and without
case of insolvency and to pay the costs of suit.
having been informed of her constitutional rights.
Hence, she argues, the methamphetamine
The Methamphetamine Hydrochloride (shabu) having
hydrochloride, or "shabu," should have been
a total net weight of 580.2 grams (Exhibits "G", "C-2"
excluded from the evidence.[17]
and "C-3") are hereby confiscated in favor of the
government and the Branch Clerk of Court is hereby
The contention has no merit. No statement, if any,
ordered to cause the transportation thereof to the
was taken from accused-appellant during her
Dangerous Drugs Board for disposition in
detention and used in evidence against her. There is,
accordance with law.
therefore, no basis for accused-appellant's invocation
of Art. III, §12(1) and (3). On the other hand, what is
The accused shall be credited in full for the period of
involved in this case is an arrest in flagrante
delicto pursuant to a valid search made on her
person.
The trial court held:
The constitutional right of the accused was not
violated as she was never placed under custodial
investigation but was validly arrested without
warrant pursuant to the provisions of Section 5,
Rule 113 of the 1985 Rules of Criminal Procedure
which provides:
Sec. 5. Arrest without warrant; when lawful. A peace
officer or a private person may, without a warrant,
arrest a person:
(a) when in his presence, the person to be arrested
has committed, is actually committing, or is
attempting to commit an offense;
(b) when an offense has in fact just been committed,
and he has personal knowledge of facts indicating
that the person to be arrested has committed it; and
(Underscoring supplied)
xxxx
A custodial investigation has been defined in People.
v. Ayson 175 SCRA 230 as "the questioning initiated
by law enforcement officers after a person has been
taken [in] custody or otherwise deprived of his
freedom in any significant way. This presupposes
that he is suspected of having committed an offense
and that the investigator is trying to elicit
information or [a] confession from him."
The circumstances surrounding the arrest of the
accused above falls in either paragraph (a) or (b) of
the Rule above cited, hence the allegation that she
has been subjected to custodial investigation is far
from being accurate.[18]
The methamphetamine hydrochloride seized from
her during the routine frisk at the airport was
acquired legitimately pursuant to airport security
procedures.
Persons may lose the protection of the search and
seizure clause by exposure of their persons or
property to the public in a manner reflecting a lack
of subjective expectation of privacy, which
expectation society is prepared to recognize as
reasonable.[19] Such recognition is implicit in airport
security procedures. With increased concern over
airplane hijacking and terrorism has come increased
security at the nation's airports. Passengers
attempting to board an aircraft routinely pass
through metal detectors; their carry-on baggage as
well as checked luggage are routinely subjected to x-
ray scans. Should these procedures suggest the
presence of suspicious objects, physical searches are
conducted to determine what the objects are. There
is little question that such searches are reasonable,
given their minimal intrusiveness, the gravity of the
safety interests involved, and the reduced privacy
expectations associated with airline travel.[20] Indeed,
travelers are often notified through airport public
address systems, signs, and notices in their airline
tickets that they are subject to search and, if any
prohibited materials or substances are found, such
would be subject to seizure. These announcements
place passengers on notice that ordinary
constitutional protections against warrantless
searches and seizures do not apply to routine airport
procedures.
The packs of methamphetamine hydrochloride
having thus been obtained through a valid
warrantless search, they are admissible in evidence
against the accused-appellant herein. Corollarily, her
subsequent arrest, although likewise without
warrant, was justified since it was effected upon the
discovery and recovery of "shabu" in her person in
flagrante delicto.
Anent her allegation that her signature on the said
packs (Exhibits C-1, C-2 and C-3 herein) had been
obtained while she was in the custody of the airport
authorities without the assistance of counsel, the
Solicitor General correctly points out that nowhere in
the records is it indicated that accused-appellant
was required to affix her signature to the packs. In
fact, only the signatures of Embile and Ramirez
thereon, along with their testimony to that effect,
were presented by the prosecution in proving its
case.
There is, however, no justification for the
confiscation of accused-appellant's passport, airline
ticket, luggage, and other personal effects. The
pictures taken during that time are also
inadmissible, as are the girdle taken from her, and
her signature thereon. Rule 126, §2 of the Revised
Rules of Criminal Procedure authorizes the search
and seizure only of the following:
Personal property to be seized. ¾ A search warrant
may be issued for the search and seizure of personal
property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds or fruits
of the offense; and
(c) Used or intended to be used as the means of
committing an offense.
Accordingly, the above items seized from accused-
appellant should be returned to her.
Second. Accused-appellant argues that the
prosecution failed to fully ascertain the quantity of
methamphetamine hydrochloride to justify the
imposition of the penalty of reclusion perpetua.
Section 20 of R.A. No. 6425, as amended by R.A. No.
7659, states:
Section 20 - Application Of Penalties, Confiscation
And Forfeiture Of The Proceeds or Instrument Of The
Crime - The penalties for offenses under Section 3, 4,
 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and
16 of Article III of this Act, shall be applied if the
dangerous drugs involved is in any of the following
quantities:
1. 40 grams or more of opium;
2. 40 grams or more of morphine;
3. 200 grams or more of shabu, or
methylamphetamine hydrochloride;
4. 40 grams or more of heroin;
5. 750 grams or more of indian hemp of marijuana;
6. 50 grams of marijuana resin or marijuana resin oil;
7. 40 grams or more of cocaine or cocaine
hydrochloride; or
8. In case of other dangerous drugs, the quantity of
which is far beyond therapeutic requirements as
determined and promulgated by the Dangerous
Drugs Board, after public consultation/hearings
conducted for the purpose.
Otherwise, if the quantity involved is less than the
foregoing quantities, the penalty shall range
from prision correccional to reclusion
perpetua depending upon the quantity.
Under this provision, accused-appellant therefore
stands to suffer the penalty of reclusion perpetua to
death for her possession of 580.2 grams of shabu.
Accused-appellant attempts to distinguish between a
quantitative and a qualitative examination of the
substance contained in Exhibits C-1, C-2 and C-3.
She argues that the examination conducted by the
NBI forensic chemist was a qualitative one which
merely yielded positive findings for shabu, but failed
to establish its purity; hence, its exact quantity
remains indeterminate and unproved.
This contention is likewise without merit.
The expert witness, George De Lara, stated that the
tests conducted would have indicated the presence
of impurities if there were any. He testified:
By mixing it twice, Mr. Witness, if there are
PROS.
any adulterants or impurities, it will be
VELASCO
discovered by just mixing it?
If some drugs or additives were present, it
WITNESSwill appear in a thin layer chromatographic
examination.
PROS. Did other drugs or other additives appear
VELASCOMr. Witness?
In my thin layer chromatographic plate, it
WITNESS
only appears one spot which resembles or
 the same as the Methamphetamine
Hydrochloride sample
....
So, Mr. Witness, if there are any
PROS. adulterants present in the chemicals you
VELASCOhave examined, in chemical examination,
what color it will register, if any?
In sample, it contained a potassium
aluminum sulfate, it will not react with the
WITNESSreagent, therefore it will not dissolve. In my
examination, all the specimens reacted on
the re-agents, sir.
PROS. And what is potassium aluminum sulfate
VELASCOin layman's term?
WITNESSIt is only a tawas.
....
In this particular case, did you find any
COURT aluminum sulfate or tawas in the
specimen?
WITNESSNone, your Honor.
....
ATTY. I will cite an example, supposing ten grams
AGOOT of Methamphetamine Hydrochloride is
mixed with 200 grams of tawas, you will
submit that to qualitative examination,
what will be your findings, negative or
positive, Mr. Witness?
It will give a positive result for
WITNESS
Methamphetamine Hydrochloride.
ATTY.
That is qualitative examination.
AGOOT
WITNESSAnd also positive for aluminum sulfate.[21]
A qualitative determination relates to the identity of
the material, whereas a quantitative analysis
requires the determination of the percentage
combination of the components of a mixture. Hence,
a qualitative identification of a powder may reveal
the presence of heroin and quinine, for instance,
whereas a quantitative analysis may conclude the
presence of 10 percent heroin and 90 percent
quinine.[22]
De Lara testified that he used a chromatography test
to determine the contents of Exhibits C-1, C-2 and
C-3. Chromatography is a means of separating and
tentatively identifying the components of a mixture.
It is particularly useful for analyzing the
multicomponent specimens that are frequently
received in a crime lab. For example, illicit drugs
sold on the street may be diluted with practically any
material that is at the disposal of the drug dealer to
increase the quantity of the product that is made
available to prospective customers. Hence, the task
of identifying an illicit drug preparation would be an
arduous one without the aid of chromatographic
methods to first separate the mixture into its
components.[23]
The testimony of De Lara established not only that
the tests were thorough, but also that the
scientifically correct method of obtaining an accurate
representative sample had been obtained.[24] At any
rate, as the Solicitor-General has pointed out, if
accused-appellant was not satisfied with the results,
it would have been a simple matter for her to ask for
an independent examination of the substance by
another chemist. This she did not do.
Third. Accused-appellant argues that the
prosecution failed to prove the negative allegation in
the information that she did not have a license to
possess or use methamphetamine hydrochloride or
"shabu."
Art. III of Republic Act No. 6425, as amended by
Republic Act No. 7659 provides:
SEC. 16. Possession or Use of Regulated Drugs. - The
penalty of reclusion perpetua to death and a fine
ranging from five hundred thousand pesos to ten
million pesos shall be imposed upon any person who
shall possess or use any regulated drug without the
corresponding license or prescription, subject to the
provisions of Section 20 hereof.
Accused-appellant claims that possession or use of
methamphetamine hydrochloride or "shabu,"a
regulated drug, is not unlawful unless the possessor
or user does not have the required license or
prescription. She points out that since the
prosecution failed to present any certification that
she is not authorized to possess or use regulated
drugs, it therefore falls short of the quantum of proof
needed to sustain a conviction.
The contention has no merit.
The question raised in this case is similar to that
raised in United States v. Chan Toco.[25] The accused
in that case was charged with smoking opium
without being duly registered. He demurred to the
information on the ground that it failed to allege that
the use of opium had not been prescribed as a
medicine by a duly licensed and practicing
physician.
This Court denied the motion and said:
The evident interest and purpose of the statute is to
prohibit and to penalize generally the smoking of
opium in these Islands. But the legislator desired to
withdraw from the operation of the statute a limited
class of smokers who smoked under the advice and
by prescription of a licensed and practicing
physician . . . . Hence where one is charged with a
violation of the general provisions of the Opium Law,
it is more logical as well as more practical and
convenient, if he did in fact smoke opium under the
advice of a physician, that he should set up this fact
by way of defense, than that the prosecution should
be called upon to prove that every smoker, charged
with a violation of the law, does so without such
advice or prescription. Indeed, when it is considered
that under the law any person may, in case of need
and at any time, procure the advice of a physician to
use opium or some of its derivatives, and that in the
nature of things no public record of prescriptions of
this kind is or can be required to be kept, it is
manifest that it would be wholly impracticable and
absurd to impose on the prosecution the burden of
alleging and proving the fact that one using opium
does so without the advice of a physician. To prove
beyond a reasonable doubt, in a particular case, that
one using opium does so without the advice or
prescription of a physician would be in most cases a
practical impossibility without the aid of the
defendant himself, while a defendant charged with
the illegal use of opium should find little difficulty in
establishing the fact that he used it under the advice
and on the prescription of a physician, if in fact he
did so.[26]
An accused person sometimes owes a duty to himself
if not to the State. If he does not perform that duty
he may not always expect the State to perform it for
him. If he fails to meet the obligation which he owes
to himself, when to meet it is an easy thing for him
to do, he has no one but himself to blame.
Moreover, as correctly pointed out by the Solicitor
General, there is nothing in R.A. No. 6425 or the
Dangerous Drugs Act, as amended, which requires
the prosecution to present a certification that
accused-appellant has no license or permit to
possess shabu. Mere possession of the prohibited
substance is a crime per se and the burden of proof
is upon accused-appellant to show that she has a
license or permit under the law to possess the
prohibited drug.
Fourth. Lastly, accused-appellant contends that the
evidence presented by the prosecution is not
sufficient to support a finding that she is guilty of
the crime charged.
This contention must likewise be rejected.
Credence was properly accorded to the testimonies of
the 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. In this case, no evidence has been
presented to suggest any improper motive on the
part of the police enforcers in arresting accused-
appellant. This Court accords great respect to the
findings of the trial court on the matter of credibility
of the witnesses in the absence of any palpable error
or arbitrariness in its findings.[27]
It is noteworthy that, aside from the denial of
accused-appellant, no other witness was presented
in her behalf. Her denial cannot prevail over the
positive testimonies of the prosecution
witnesses.[28] As has been held, denial as a rule is a
weak form of defense, particularly when it is not
substantiated by clear and convincing evidence. The
defense of denial or frame-up, like alibi, has been
invariably viewed by the courts with disfavor for it
can just as easily be concocted and is a common and
standard defense ploy in most prosecutions for
violation of the Dangerous Drugs Act.[29]
The Court is convinced that the requirements of the
law in order that a person may be validly charged
with and convicted of illegal possession of a
dangerous drug in violation of R.A. No. 6425, as
amended, have been complied with by the
prosecution in this case. The decision of the trial
court must accordingly be upheld.
As regards the fine imposed by the trial court, it has
been held that courts may fix any amount within the
limits established by law.[30] Considering that five
hundred eighty point two (580.2) grams of shabu
were confiscated from accused-appellant, the fine
imposed by the trial court may properly be reduced
to P50,000.00.
WHEREFORE, the decision of the Regional Trial
Court of Pasay City, Branch 110, finding accused-
appellant guilty of violation of §16 of R.A. No. 6425,
as amended, and imposing upon her the penalty
of reclusion perpetua is hereby AFFIRMED with the
MODIFICATION that the fine imposed on accused-
appellant is reduced to P50,000.00. Costs against
appellant.
The passport, airline ticket, luggage, girdle and other
personal effects not yet returned to the accused-
appellant are hereby ordered returned to her.
SO ORDERED.
Bellosillo, (Chairman), Quisumbing, Buena, and De
Leon, Jr., JJ., concur.
[GR No. 91107, Jun 19, 1991]
PEOPLE v. MIKAEL MALMSTEDT
PADILLA, J.:
In an information dated 15 June 1989, accused-
appellant Mikael Malmstedt (hereinafter referred to
as the accused) was charged before the Regional
Trial Court (RTC) of La Trinidad, Benguet, Branch
10, in Criminal Case No. 89-CR-0663, for violation of
Section 4, Art. II of Republic Act 6425, as amended,
otherwise known as the Dangerous Drugs Act of
1972, as amended. The factual background of the
case is as follows:
Accused Mikael Malmstedt, a Swedish national,
entered the Philippines for the third time in
December 1988 as a tourist. He had visited the
country sometime in 1982 and 1985.
In the evening of 7 May 1989, accused left for Baguio
City. Upon his arrival thereat in the, morning of the
following day, he took a bus to Sagada and stayed in
that place for two (2) days.
At around 7:00 o'clock in the morning of 11 May
1989, accused went to the Nangonogan bus stop
Sagada to catch the first available trip to Baguio
City. From Baguio City, accused planned to take a
late afternoon trip to Angeles City, then proceed to
Manila to catch his flight out of the country,
scheduled on 13 May 1989. From Sagada, accused
took a Skyline bus with body number 8005 and Plate
number AVC 902.[1]
At about 8:00 o'clock in the morning of
that same day (11 May 1989). Captain Alen Vasco,
the Commanding Officer of the First Regional
Command (NARCOM) stationed at Camp Dangwa,
ordered his men to set up a temporary checkpoint
at Kilometer 14, Acop, Tublay, Mountain Province,
for the purpose of checking all vehicles coming from
the Cordillera Region. The order to establish a
checkpoint in the said area was prompted by
persistent reports that vehicles coming from Sagada
were transporting marijuana and other prohibited
drugs. Moreover, information was received by the
Commanding Officer of NARCOM, that same
morning, that a Caucasian coming from Sagada had
in his possession prohibited drugs.[2]
The group composed of seven (7) NARCOM officers,
in coordination with Tublay Police Station, set up a
checkpoint at the designated area at about 10:00
o'clock in the morning and inspected all vehicles
coming from the Cordillera Region.
At about 1:30 o'clock in the afternoon, the bus where
accused was riding was stopped. Sgt. Fider
and CIC Galutan boarded the bus and announced
that they were members of the NARCOM and that
they would conduct an inspection. The two (2)
NARCOM officers started their inspection from the
front going towards the rear of the bus. Accused
who was the sole foreigner riding the bus was seated
at the rear thereof.
During the inspection, CIC Galutan noticed a bulge
on accused's waist. Suspecting the bulge on
accused's waist to be a gun, the officer asked for
accused's passport and other identification
papers. When accused failed to comply, the officer
required him to bring out whatever it was that
was bulging on his waist. The bulging object turned
out to be a pouch bag and when accused opened the
same bag, as ordered, the officer noticed four (4)
suspicious-looking objects wrapped in brown
packing tape, prompting the officer to open one of
the wrapped objects. The wrapped objects
turned out to contain hashish, a derivative of
marijuana.
Thereafter, accused was invited outside the bus for
questioning. But before he alighted from the bus,
accused stopped to get two (2) travelling bags from
the luggage carrier.
Upon stepping out of the bus, the officers got the
bags and opened them. A teddy bear was found in
each bag. Feeling the teddy bears, the officer noticed
that there were bulges inside the same which did not
feel like foam stuffing. It was only after the officers
had opened the bags that accused finally presented
his passport.
Accused was then brought to the headquarters of the
NARCOM at Camp Dangwa, La Trinidad, Benguet for
further investigation. At the investigation room, the
officers opened the teddy bears and they were found
to also contain, hashish. Representative samples
were taken from the hashish found among the
personal effects of accused and the same were
brought to the PC Crime Laboratory for chemical
analysis.
In the chemistry report, it was established that the
objects examined were hashish, a prohibited drug
which is a derivative of marijuana. Thus, an
information was filed against accused for violation of
the Dangerous Drugs Act.
During the arraignment, accused entered a plea of
"not guilty." For his defense, he raised the issue of
illegal search of his personal effects. He also claimed
that the hashish was planted by the NARCOM
officers in his pouch bag and that the two (2)
travelling bags were not owned by him, but were
merely entrusted to him by an Australian couple
whom he met in Sagada. He further claimed that
the Australian couple intended to take the same bus
with him but because there were no more seats
available in said bus, they decided to take the next
ride and asked accused to take charge of the bags,
and that they would meet each other at the Dangwa
Station.
Likewise, accused alleged that when the NARCOM
officers demanded for his passport and other
identification papers, he handed to one of the officers
his pouch bag which was hanging on his neck
containing, among others, his passport, return ticket
to Sweden and other papers. The officer in turn
handed it to his companion who brought the bag
outside the bus. When said officer came back, he
charged the accused that there was hashish in the
bag. He was told to get off the bus and his picture
was taken with the pouch bag placed around his
neck. The trial court did not give credence to
accused's defense.
The claim of the accused that the hashish was
planted by the NARCOM officers, was belied by his
failure to raise such defense at the earliest
opportunity. When accused was, investigated at the
Provincial Fiscal's Office, he did not inform the Fiscal
or his lawyer that the hashish was planted by the
NARCOM officers in his bag. It was only two (2)
months after said investigation when be told his
lawyer about said claim, denying ownership of the
two (2) travelling bags as well as having
hashish in his pouch bag.
In a decision dated 12 October 1989, the trial court
found accused guilty beyond reasonable doubt for
violation, of the Dangerous Drugs Act, specifically
Section 4. Art. II of RA 6425, as amended.[3] The
dispositive portion of the decision reads as follows:
"WHEREFORE, finding the guilt of the accused
Mikael Malmstedt established beyond reasonable
doubt, this Court finds him GUILTY of violation of
Section 4, Article II of Republic Act
6425, as amended, and hereby sentences him to
suffer the penalty of life imprisonment and to pay a
fine of Twenty Thousand Pesos (P20,000.00) with
subsidiary imprisonment in case of insolvency and
to pay the costs.
Let the hashish subject of this case be turned over to
the First Narcotics Regional Unit at Camp Bado;
Dangwa, La Trinidad, Benguet for proper disposition
under Section 20, Article IV of Republic Act 6425, as
amended.
SO ORDERED."[4]
Seeking the reversal of the decision of the trial court
finding him guilty of the crime charged, accused
argues that the search of his personal effects was
illegal because it was made without a search warrant
and, therefore, the prohibited drugs which were
discovered during the illegal search are not
admissible as evidence against him.
The Constitution guarantees the right of the people
to be secure in their persons, houses, papers and
effects against unreasonable searches and
seizures.[5] However, where the search is made
pursuant to a lawful arrest, there is no need to
obtain a search warrant. A lawful arrest without a
warrant may be made by a peace officer or a private
person under the following circumstances:[6]
"SEC. 5. Arrest without warrant; when lawful. - A
peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence the person to be arrested
has committed, is actually committing, or is
attempting to commit an offense:
(b) When an offense has in fact just been
committed, and he has personal knowledge of facts
indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or
temporarily confined while his case is pending, or
has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof,
the person arrested without a warrant shall be
forthwith delivered to the nearest police station or
jail, and he shall be proceeded against in accordance
with Rule 112, Section 7. (6a, 17a)."
Accused was searched and arrested
while transporting prohibited drugs (hashish). A
crime was actually being committed by the accused
and he was caught in flagrante delicto. Thus, the
search made upon his personal effects falls squarely
under paragraph (1) of the foregoing provisions of
law, which allow a warrantless search incident to a
lawful arrest.[7]
While it is true that the NARCOM officers were not
armed with a search warrant when the search was
made over the personal effects of accused, however,
under the circumstances of the case, there was
sufficient probable cause for said officers to believe
that accused was then and there committing a
crime.
Probable cause has been defined as such facts and
circumstances which could lead a reasonable,
discreet and prudent man to believe that an offense
has been committed, and that the objects sought in
connection with the offense are in the place sought
to be searched.[8] The required probable cause that
will justify a warrantless search and seizure is not
determined by any fixed formula but is resolved
according to the facts of each case.[9]
Warrantless search of the personal effects of an
accused has been declared by this Court as valid,
because of existence of probable cause, where the
smell of marijuana emanated from a plastic bag
owned by the accused,[10] or where the accused was
acting suspiciously,[11] and attempted to flee.[12]
Aside from the persistent reports received by the
NARCOM that vehicles coming from Sagada were
transporting marijuana and other prohibited drugs,
their Commanding Officer also received information
that a Caucasian coming from Sagada on that
particular day had prohibited drugs in his
possession. Said information was received by the
Commanding Officer of NARCOM the very same
morning that accused came down by bus from
Sagada on his way to Baguio City.
When NARCOM received the information, a few
hours before the apprehension of herein accused,
that a Caucasian travelling from Sagada to Baguio
City was carrying with him prohibited drugs, there
was no time to obtain a search warrant. In
the Tangliben case,[13] the police authorities
conducted a surveillance at the Victory Liner
Terminal located at Bgy. San Nicolas, San Fernando
Pampanga, against persons engaged in the traffic of
dangerous drugs, based on information supplied by
some informers. Accused Tangliben who was acting
suspiciously and pointed out by an informer was
apprehended and searched by the police
authorities. It was held that when faced with on-
the-spot information, the police officers had to act
quickly and there was no time to secure a search
warrant.
It must be observed that, at first, the NARCOM
officers merely conducted a routine check of the bus
(where accused was riding) and the passengers
therein, and no extensive search was initially
made. It was only when one of the officers noticed a
bulge on the waist of accused, during the course of
the inspection, that accused was required to
present his passport. The failure of accused to
present his identification papers, when ordered to do
so, only managed to arouse the suspicion of the
officer that accused was trying to hide his
identity. For is it not a regular norm for an innocent
man, who has nothing to hide from the authorities,
to readily present his identification papers when
required to do so?
The receipt of information by NARCOM that a
Caucasian coming from Sagada had prohibited
drugs in his possession, plus the suspicious failure
of the accused to produce his passport, taken
together as a whole, led the NARCOM officers to
reasonably believe that the accused was trying to
hide something illegal from the authorities. From
these circumstances arose a probable cause which
justified the warrantless search that was made on
the personal effects of the accused. In other words,
the acts of the NARCOM officers in requiring the
accused to open his pouch bag and in opening one of
the wrapped objects found inside said bag (which
was discovered to contain hashish) as well as the
two (2) travelling bags containing two (2) teddy bears
with hashish stuffed inside them were prompted by
accused's own attempt to hide his identity by
refusing to present his passport, and by the
information received by the NARCOM that a
Caucasian coming from Sagada had prohibited
drugs in his possession. To deprive the NARCOM
agents of the ability and facility to act accordingly,
including, to search even without warrant, in the
light of such circumstances, would be to sanction
impotence and ineffectiveness in law enforcement, to
the detriment of society.
WHEREFORE, premises considered, the appealed
judgment of conviction by the trial court is
hereby AFFIRMED. Costs against the accused-
appellant.
SO ORDERED.
[GR No. 83988, May 24, 1990]
RICARDO C. VALMONTE v. GEN. RENATO DE
VILLA
PADILLA, J.:
In the Court's decision dated 29 September 1989,
petitioners' petition for prohibition seeking the
declaration of the checkpoints as unconstitutional
and their dismantling and/or banning, was
dismissed.
Petitioners have filed the instant motion and supple-
mental motion for reconsideration of said
decision. Before submission of the incident for
resolution, the Solicitor General, for the
respondents, filed his comment, to which petitioners
filed a reply.
It should be stated, at the outset, that nowhere in
the questioned decision did this Court
legalize all checkpoints, i.e. at all times and
under all circumstances. What the Court declared
is, that checkpoints are not illegal per se. Thus,
under exceptional circumstances, as where the
survival of organized government is on the balance,
or where the lives and safety of the people are in
grave peril, checkpoints may be allowed and
installed by the government. Implicit in this
proposition is, that when the situation clears and
such grave perils are removed, checkpoints will have
absolutely no reason to remain.
Recent and on-going events have pointed to the
continuing validity and need for checkpoints
manned by either military or police forces. The sixth
(6th) attempted coup d'etat (stronger than all
previous ones) was staged only last 1 December
1989. Another attempt at a coup d'etat is taken
almost for granted. The NPA, through its sparrow
units, has not relented but instead accelerated its
liquidation of armed forces and police
personnel. Murders, sex crimes, hold-ups and drug
abuse have become daily occurrences. Unlicensed
firearms and ammunition have become favorite
objects of trade. Smuggling is at an all-time
high. Whether or not effective as expected,
checkpoints have been regarded by the
authorities as a security measure designed to entrap
criminals and insurgents and to constitute a dragnet
for all types of articles in illegal trade.
No one can be compelled, under our libertarian
system, to share with the present government its
ideological beliefs and practices, or commend its
political, social and economic policies or
performance. But, at least, one must concede to it
the basic right to defend itself from its enemies and,
while in power, to pursue its program of government
intended for public welfare; and in the pursuit of
those objectives, the government has the equal right,
under its police power, to select the reasonable
means and methods for best achieving them. The
checkpoint is evidently one of such means it has
selected.
Admittedly, the routine checkpoint stop does
intrude, to a certain extent, on motorist's right to
"free passage without interruption", but it cannot be
denied that, as a rule, it involves only a brief
detention of travellers during which the vehicle's
occupants are required to answer a brief question or
two.[1] For as long as the vehicle is neither searched
nor its occupants subjected to a body search, and
the inspection of the vehicle is limited to a visual
search, said routine checks cannot be
regarded as violative of an individual's right against
unreasonable search.
These routine checks, when conducted in a fixed
area, are even less intrusive. As held by the U.S.
Supreme Court:
"Routine checkpoint stops do not intrude similarly
on the motoring public. First, the potential
interference with legitimate traffic
is minimal. Motorists using these highways are not
taken by surprise as they know, or may obtain
knowledge of, the location of the
checkpoints and will not be stopped
elsewhere. Second, checkpoint operations both
appear to and actually involve less discretionary
enforcement activity. The regularized manner in
which established checkpoints are operated is visible
evidence, reassuring to law-abiding motorists, that
the stops are duly authorized and believed to serve
the public interest. The location of a fixed check-
point is not chosen by officers in the field, but by
officials responsible for making overall decisions as
to the most effective allocation of limited
enforcement resources. We may assume that such
officials will be unlikely to locate a checkpoint where
it bears arbitrarily or oppressively on motorists
as a class, and since field officers may stop only
those cars passing the checkpoint, there is less room
for abusive or harassing stops of individuals than
there was in the case of roving-patrol
stops. Moreover, a claim that a particular exercise of
discretion in locating or operating a checkpoint is
unreasonable is subject to post-stop judicial
review." [2]
The checkpoints are nonetheless attacked by
the movants as a warrantless search and seizure
and, therefore, violative of the Constitution.[3]
As already stated, vehicles are generally allowed to
pass these checkpoints after a routine inspection
and a few questions. If vehicles are stopped and
extensively searched, it is because of some probable
cause which justifies a reasonable belief of the men
at the checkpoints that either the motorist is a law-
offender or the contents of the vehicle are or have
been instruments of some offense. Again, as held by
the U.S. Supreme Court -
"Automobiles, because of their mobility, may be
searched without a warrant upon facts not justifying
a warrantless search of a residence or
office. Brinegar v. United States, 338 US 160, 93 L
Ed 1879, 69 S Ct 1302 (1949); Carroll v. United
States, 267 US 132, 69 L Ed 543, 45 S Ct 280, 39
ALR 790 (1925). The cases so holding have,
however, always insisted that the officers conducting
the search have 'reasonable or probable cause' to
believe that they will find the instrumentality of a
crime or evidence pertaining to a crime before they
begin their warrantless search. x x x."[4]
Besides these warrantless searches and seizures at
the checkpoints are quite similar to searches and
seizures accompanying warrantless arrests during
the commission of a crime, or immediately
thereafter. In People vs. Kagui Malasuqui, it was
held -
"To hold that no criminal can, in any case, be
arrested and searched for the evidence and tokens of
his crime without a warrant, would be to leave
society, to a large extent, at the mercy of the
shrewdest, the most expert, and the most depraved
of criminals, facilitating their escape in many
instances."[5]
By the same token, a warrantless search of incoming
and outgoing passengers, at the arrival and
departure areas of an international airport, is a
practice not constitutionally objectionable because it
is founded on public interest, safety, and necessity.
Lastly, the Court's decision on checkpoints does not,
in any way, validate nor condone abuses committed
by the military manning the checkpoints. The
Court's decision was concerned with power, i.e.
whether the government employing the military has
the power to install said checkpoints. Once that
power is acknowledged, the Court's inquiry
ceases. True, power implies the possibility of its
abuse. But whether there is abuse in a particular
situation is a different "ball game" to be resolved in
the constitutional arena.
The Court, like all other concerned members of the
community, has become aware of how some
checkpoints have been used as points of thievery
and extortion practiced upon innocent
civilians. Even the increased prices of foodstuffs
coming from the provinces, entering the Metro
Manila area and other urban centers, are largely
blamed on the checkpoints, because the men
manning them have reportedly become "experts" in
mulcting travelling traders. This, of course, is a
national tragedy.
But the Court could not a priori regard in its now
assailed decision that the men in uniform are rascals
or thieves. The Court had to assume that the men in
uniform live and act by the code of honor and they
are assigned to the checkpoints to protect, and not
to abuse, the citizenry.[6] The checkpoint is a military
"concoction." It behooves the military to improve the
QUALITY of their men assigned to these
checkpoints. For no system or institution will
succeed unless the men behind it are honest, noble
and dedicated.
In any situation, where abuse marks the operation
of a checkpoint, the citizen is not helpless. For the
military is not above but subject to the law. And the
courts exist to see that the law is supreme. Soldiers,
including those who man checkpoints, who abuse
their authority act beyond the scope of their
authority and are, therefore, liable criminally and
civilly for their abusive acts.[7] This tenet should be
ingrained in the soldiery in the clearest of terms by
higher military authorities.
ACCORDINGLY, the Motion
and Supplemental Motion for Reconsideration are
DENIED. This denial is FINAL.
SO ORDERED.
G. R. Nos. 102009-10 July 6, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROLANDO DE GRACIA, CHITO HENSON and JOHN DOES,
accused. ROLANDO DE GRACIA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Nicolas R. Ruiz, II for accused-appellant.
REGALADO, J.:
The incidents involved in this case took place at the height of
the coup d' etat staged in December, 1989 by ultra-rightist
elements headed by the Reform the Armed Forces Movement-
Soldiers of the Filipino People (RAM-SFP) against the
Government. At that time, various government establishments and
military camps in Metro Manila were being bombarded by the
rightist group with their "tora-tora" planes. At around midnight of
November 30, 1989, the 4th Marine Battalion of the Philippine
Marines occupied Villamor Air Base, while the Scout Rangers took
over the Headquarters of the Philippine Army, the Army
Operations Center, and Channel 4, the government television
station. Also, some elements of the Philippine Army coming from
Fort Magsaysay occupied the Greenhills Shopping Center in San
Juan, Metro Manila. 1
Accused-appellant Rolando de Gracia was charged in two
separate informations for illegal possession of ammunition and
explosives in furtherance of rebellion, and for attempted homicide,
docketed as Criminal Cases Nos. Q-90-11755 and Q-90-11756,
respectively, which were tried jointly by the Regional Trial Court of
Quezon City, Branch 103.
In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito
Henson and several John Does whose true names and identities
have not as yet been ascertained, were charged with the crime of
illegal possession of ammunition and explosives in furtherance of
rebellion, penalized under Section 1, paragraph 3, of Presidential
Decree No. 1866, allegedly committed as follows:
That on or about the 5th day of DECEMBER,
1989, in QUEZON CITY, METRO MANILA,
PHILIPPINES, and within the jurisdiction of this
Honorable Court, the above-named accused,
conspiring and confederating together and
mutually helping one another, and without
authority of law, did then and there willfully,
unlawfully, feloniously and knowingly have in their
possession, custody and control, the following to
wit:
Five (5) bundles of C-4 or
dynamites
Six (6) cartoons of M-16
ammunition at 20 each
One hundred (100) bottles of
MOLOTOV bombs
without first securing the necessary license and/or
permit to possess the same from the proper
authorities, and armed with said dynamites,
ammunition and explosives and pursuant to their
conspiracy heretofore agreed upon by them and
prompted by common designs, come to an
agreement and decision to commit the crime of
rebellion, by then and there participating therein
and publicly taking arms against the duly
constituted authorities, for the purpose of
overthrowing the Government of the Republic of
the Philippines, disrupting and jeopardizing its
activities and removing from its allegiance the
territory of the Philippines or parts thereof. 2
In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito
Henson, Lamberto Bicus, Rodolfo Tor and several John Does
were charged with attempted homicide allegedly committed on
December 1, 1989 in Quezon City upon the person of Crispin
Sagario who was shot and hit on the right thigh.
Appellant was convicted for illegal possession of firearms in
furtherance of rebellion, but was acquitted of attempted homicide.
During the arraignment, appellant pleaded not guilty to both
charges. However, he admitted that he is not authorized to
possess any firearms, ammunition and/or explosive. 3 The parties
likewise stipulated that there was a rebellion during the period
from November 30 up to December 9, 1989. 4
The records show that in the early morning of December 1, 1989,
Maj. Efren Soria of the Intelligence Division, National Capital
Region Defense Command, was on board a brown Toyota car
conducting a surveillance of the Eurocar Sales Office located at
Epifanio de los Santos Avenue in Quezon City, together with his
team composed of Sgt. Crispin Sagario, M/Sgt. Ramon Briones,
S/Sgt. Henry Aquino, one S/Sgt. Simon and a Sgt. Ramos. The
surveillance, which actually started on the night of November 30,
1989 at around 10:00 P.M., was conducted pursuant to an
intelligence report received by the division that said establishment
was being occupied by elements of the RAM-SFP as a
communication command post.
Sgt. Crispin Sagario, the driver of the car, parked the vehicle
around ten to fifteen meters away from the Eurocar building near
P. Tuazon Street, S/Sgt. Henry Aquino had earlier alighted from
the car to conduct his surveillance on foot. A crowd was then
gathered near the Eurocar office watching the on-going
bombardment near Camp Aguinaldo. After a while, a group of five
men disengaged themselves from the crowd and walked towards
the car of the surveillance team. At that moment, Maj. Soria, who
was then seated in front, saw the approaching group and
immediately ordered Sgt. Sagario to start the car and leave the
area. As they passed by the group, then only six meters away, the
latter pointed to them, drew their guns and fired at the team, which
attack resulted in the wounding of Sgt. Sagario on the right thigh.
Nobody in the surveillance team was able to retaliate because
they sought cover inside the car and they were afraid that civilians
or bystanders might be caught in the cross-fire.
As a consequence, at around 6:30 A.M. of December 5, 1989, a
searching team composed of F/Lt. Virgilio Babao as team leader,
M/Sgt. Lacdao, Sgt. Magallion, Sgt. Patricio Pacatang, and
elements of the 16th Infantry Battalion under one Col. delos
Santos raided the Eurocar Sales Office. They were able to find
and confiscate six cartons of M-16 ammunition, five bundles of C-
4 dynamites, M-shells of different calibers, and "molotov" bombs
inside one of the rooms belonging to a certain Col. Matillano
which is located at the right portion of the building. Sgt. Oscar
Obenia, the first one to enter the Eurocar building, saw appellant
De Gracia inside the office of Col. Matillano, holding a C-4 and
suspiciously peeping through a door. De Gracia was the only
person then present inside the room. A uniform with the nametag
of Col. Matillano was also found. As a result of the raid, the team
arrested appellant, as well as Soprieso Verbo and Roberto
Jimena who were janitors at the Eurocar building. They were then
made to sign an inventory, written in Tagalog, of the explosives
and ammunition confiscated by the raiding team. No search
warrant was secured by the raiding team because, according to
them, at that time there was so much disorder considering that the
nearby Camp Aguinaldo was being mopped up by the rebel forces
and there was simultaneous firing within the vicinity of the Eurocar
office, aside from the fact that the courts were consequently
closed. The group was able to confirm later that the owner of
Eurocar office is a certain Mr. Gutierrez and that appellant is
supposedly a "boy" therein.
Appellant Rolando de Gracia gave another version of the incident.
First, he claims that on November 30, 1989, he was in Antipolo to
help in the birthday party of Col. Matillano. He denies that he was
at the Eurocar Sales Office on December 1, 1989. Second, he
contends that when the raiding team arrived at the Eurocar Sales
Office on December 5, 1989, he was inside his house, a small
nipa hut which is adjacent to the building. According to him, he
was tasked to guard the office of Col. Matillano which is located at
the right side of the building. He denies, however, that he was
inside the room of Col. Matillano when the raiding team barged in
and that he had explosives in his possession. He testified that
when the military raided the office, he was ordered to get out of
his house and made to lie on the ground face down, together with
"Obet" and "Dong" who were janitors of the building. He avers that
he does not know anything about the explosives and insists that
when they were asked to stand up, the explosives were already
there.
Appellant stated that he visited Col. Matillano in 1987 at the
stockade of the Philippine Constabulary-Integrated National Police
(PC-INP), and that he knew Matillano was detained because of
the latter's involvement in the 1987 coup d' etat. In July, 1989,
appellant again went to see Matillano because he had no job. Col.
Matillano then told him that he could stay in the PC-INP stockade
and do the marketing for them. From that time until his arrest at
the Eurocar office, appellant worked for Matillano.
De Gracia believes that the prosecution witnesses were moved to
testify against him because "bata raw ako ni Col. Matillano eh
may atraso daw sa kanila si Col. Matillano kaya sabi nila ito na
lang bata niya ang ipitin natin."
On February 22, 1991, the trial court rendered
judgment 5 acquitting appellant Rolando de Gracia of attempted
homicide, but found him guilty beyond reasonable doubt of the
offense of illegal possession of firearms in furtherance of rebellion
and sentenced him to serve the penalty of reclusion perpetua.
Moreover, it made a recommendation that "(i)nasmuch as
Rolando de Gracia appears to be merely executing or obeying
orders and pursuant to the spirit contained in the 2nd paragraph of
Art. 135, R. P. C., the court recommends that Rolando de Gracia
be extended executive clemency after serving a jail term of five (5)
years of good behavior.
That judgment of conviction is now challenged before us in this
appeal.
Appellant principally contends that he cannot be held guilty of
illegal possession of firearms for the reason that he did not have
either physical or constructive possession thereof considering that
he had no intent to possess the same; he is neither the owner nor
a tenant of the building where the ammunition and explosives
were found; he was merely employed by Col. Matillano as an
errand boy; he was guarding the explosives for and in behalf of
Col. Matillano; and he did not have actual possession of the
explosives. He claims that intent to possess, which is necessary
before one can be convicted under Presidential Decree No. 1866,
was not present in the case at bar.
Presidential Decree No. 1866 provides as follows:
Sec. 1. Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Firearms or
Ammunition or Instruments Used or intended to be
Used in the Manufacture of Firearms or
Ammunition. — The penalty of reclusion
temporal in its maximum period to reclusion
perpetua shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire,
dispose, or possess any firearms, part of firearms,
ammunition or machinery, tool or instrument used
or intended to be used in the manufacture of any
firearm or ammunition.
If homicide or murder is committed with the use of
an unlicensed firearm, the penalty of death shall
be imposed.
If the violation of this Section is in furtherance of,
or incident to, or in connection with the crimes of
rebellion, insurrection or subversion, the penalty of
death shall be imposed.
Presidential Decree No. 1866 was passed because of an upsurge
of crimes vitally affecting public order and safety due to the
proliferation of illegally possessed and manufactured firearms,
ammunition and explosives, and which criminal acts have resulted
in loss of human lives, damage to property and destruction of
valuable resources of the country. The series of coup d'
etats unleashed in the country during the first few years of the
transitional government under then President Corazon P. Aquino
attest to the ever-growing importance of laws such as Presidential
Decree No. 1866 which seek to nip in the bud and preempt the
commission of any act or acts which tend to disturb public peace
and order.
I. The first issue to be resolved is whether or not intent to possess
is an essential element of the offense punishable under
Presidential Decree No. 1866 and, if so, whether appellant De
Gracia did intend to illegally possess firearms and ammunition.
The rule is that ownership is not an essential element of illegal
possession of firearms and ammunition. What the law requires is
merely possession which includes not only actual physical
possession but also constructive possession or the subjection of
the thing to one's control and management. 6 This has to be so if
the manifest intent of the law is to be effective. The same evils,
the same perils to public security, which the law penalizes exist
whether the unlicensed holder of a prohibited weapon be its
owner or a borrower. To accomplish the object of this law the
proprietary concept of the possession can have no bearing
whatsoever. 7
But is the mere fact of physical or constructive possession
sufficient to convict a person for unlawful possession of firearms
or must there be an intent to possess to constitute a violation of
the law? This query assumes significance since the offense of
illegal possession of firearms is a malum prohibitum punished by
a special law, 8 in which case good faith and absence of criminal
intent are not valid defenses. 9
When the crime is punished by a special law, as a rule, intent to
commit the crime is not necessary. It is sufficient that the offender
has the intent to perpetrate the act prohibited by the special law.
Intent to commit the crime and intent to perpetrate the act must be
distinguished. A person may not have consciously intended to
commit a crime; but he did intend to commit an act, and that act
is, by the very nature of things, the crime itself. In the first (intent
to commit the crime), there must be criminal intent; in the second
(intent to perpetrate the act) it is enough that the prohibited act is
done freely and consciously. 10
In the present case, a distinction should be made between
criminal intent and intent to possess. While mere possession,
without criminal intent, is sufficient to convict a person for illegal
possession of a firearm, it must still be shown that there
was animus possidendi or an intent to possess on the part of the
accused. 11 Such intent to possess is, however, without regard to
any other criminal or felonious intent which the accused may have
harbored in possessing the firearm. Criminal intent here refers to
the intention of the accused to commit an offense with the use of
an unlicensed firearm. This is not important in convicting a person
under Presidential Decree No. 1866. Hence, in order that one may
be found guilty of a violation of the decree, it is sufficient that the
accused had no authority or license to possess a firearm, and that
he intended to possess the same, even if such possession was
made in good faith and without criminal intent.
Concomitantly, a temporary, incidental, casual, or harmless
possession or control of a firearm cannot be considered a
violation of a statute prohibiting the possession of this kind of
weapon, 12 such as Presidential Decree No. 1866. Thus, although
there is physical or constructive possession, for as long as
the animus possidendi is absent, there is no offense committed.
Coming now to the case before us, there is no doubt in our minds
that appellant De Gracia is indeed guilty of having intentionally
possessed several firearms, explosives and ammunition without
the requisite license or authority therefor. Prosecution witness Sgt.
Oscar Abenia categorically testified that he was the first one to
enter the Eurocar Sales Office when the military operatives raided
the same, and he saw De Gracia standing in the room and holding
the several explosives marked in evidence as Exhibits D to D-
4. 13 At first, appellant denied any knowledge about the explosives.
Then, he alternatively contended that his act of guarding the
explosives for and in behalf of Col. Matillano does not constitute
illegal possession thereof because there was no intent on his part
to possess the same, since he was merely employed as an errand
boy of Col. Matillano. His pretension of impersonal or indifferent
material possession does not and cannot inspire credence.
Animus possidendi is a state of mind which may be determined on
a case to case basis, taking into consideration the prior and
coetaneous acts of the accused and the surrounding
circumstances. What exists in the realm of thought is often
disclosed in the range of action. It is not controverted that
appellant De Gracia is a former soldier, having served with the
Philippine Constabulary prior to his separation from the service for
going on absence without leave
(AWOL). 14 We do not hesitate, therefore, to believe and conclude
that he is familiar with and knowledgeable about the
dynamites, "molotov" bombs, and various kinds of ammunition
which were confiscated by the military from his possession. As a
former soldier, it would be absurd for him not to know anything
about the dangerous uses and power of these weapons. A fortiori,
he cannot feign ignorance on the import of having in his
possession such a large quantity of explosives and ammunition.
Furthermore, the place where the explosives were found is not a
military camp or office, nor one where such items can ordinarily
but lawfully be stored, as in a gun store, an arsenal or armory.
Even an ordinarily prudent man would be put on guard and be
suspicious if he finds articles of this nature in a place intended to
carry out the business of selling cars and which has nothing to do
at all, directly or indirectly, with the trade of firearms and
ammunition.
On the basis of the foregoing disquisition, it is apparent, and we
so hold, that appellant De Gracia actually intended to possess the
articles confiscated from his person.
II. The next question that may be asked is whether or not there
was a valid search and seizure in this case. While the matter has
not been squarely put in issue, we deem it our bounden duty, in
light of advertence thereto by the parties, to delve into the legality
of the warrantless search conducted by the raiding team,
considering the gravity of the offense for which herein appellant
stands to be convicted and the penalty sought to be imposed.
It is admitted that the military operatives who raided the Eurocar
Sales Office were not armed with a search warrant at that
time. 15 The raid was actually precipitated by intelligence reports
that said office was being used as headquarters by the
RAM. 16 Prior to the raid, there was a surveillance conducted on
the premises wherein the surveillance team was fired at by a
group of men coming from the Eurocar building. When the military
operatives raided the place, the occupants thereof refused to
open the door despite requests for them to do so, thereby
compelling the former to break into the office. 17 The Eurocar Sales
Office is obviously not a gun store and it is definitely not an
armory or arsenal which are the usual depositories for explosives
and ammunition. It is primarily and solely engaged in the sale of
automobiles. The presence of an unusual quantity of high-
powered firearms and explosives could not be justifiably or even
colorably explained. In addition, there was general chaos and
disorder at that time because of simultaneous and intense firing
within the vicinity of the office and in the nearby Camp Aguinaldo
which was under attack by rebel forces. 18 The courts in the
surrounding areas were obviously closed and, for that matter, the
building and houses therein were deserted.
Under the foregoing circumstances, it is our considered opinion
that the instant case falls under one of the exceptions to the
prohibition against a warrantless search. In the first place, the
military operatives, taking into account the facts obtaining in this
case, had reasonable ground to believe that a crime was being
committed. There was consequently more than sufficient probable
cause to warrant their action. Furthermore, under the situation
then prevailing, the raiding team had no opportunity to apply for
and secure a search warrant from the courts. The trial judge
himself manifested that on December 5, 1989 when the raid was
conducted, his court was closed. 19 Under such urgency and
exigency of the moment, a search warrant could lawfully be
dispensed with.
The view that we here take is in consonance with our doctrinal
ruling which was amply explained in People vs. Malmstedt 20 and
bears reiteration:
While it is true that the NARCOM officers were not
armed with a search warrant when the search was
made over the personal effects of accused,
however, under the circumstances of the case,
there was sufficient probable cause for said
officers to believe that accused was then and
there committing a crime.
Probable cause has been defined as such facts
and circumstances which would lead a
reasonable, discreet and prudent man to believe
that an offense has been committed, and that the
objects sought in connection with the offense are
in the place sought to be searched. The required
probable cause that will justify a warrantless
search and seizure is not determined by any fixed
formula but is resolved according to the facts of
each case.
Warrantless search of the personal effects of an
accused has been declared by this Court as valid,
because of existence of probable cause, where
the smell of marijuana emanated from a plastic
bag owned by the accused, or where the accused
was acting suspiciously, and attempted to flee.
Aside from the persistent reports received by the
NARCOM that vehicles coming from Sagada were
transporting marijuana and other prohibited drugs,
their Commanding Officer also received
information that a Caucasian coming from Sagada
on that particular day had prohibited drugs in his
possession. Said information was received by the
Commanding Officer of NARCOM the very same
morning that accused came down by bus from
Sagada on his way to Baguio City.
When NARCOM received the information, a few
hours before the apprehension of herein accused,
that a Caucasian travelling from Sagada to Baguio
City was carrying with him prohibited drugs, there
was no time to obtain a search warrant. In
the Tangliben case, the police authorities
conducted a surveillance at the Victory Liner
Terminal located at Bgy. San Nicolas, San
Fernando, Pampanga, against persons engaged
in the traffic of dangerous drugs, based on
information supplied by some informers.
Accused Tangliben who was acting suspiciously
and pointed out by an informer was apprehended
and searched by the police authorities. It was held
that when faced with on-the-spot information, the
police officers had to act quickly and there was no
time to secure a search warrant.
It must be observed that, at first, the NARCOM
officers merely conducted a routine check of the
bus (where accused was riding) and the
passengers therein, and no extensive search was
initially made. It was only when one of the officers
noticed a bulge on the waist of accused, during
the course of the inspection, that accused was
required to present his passport. The failure of
accused to present his identification papers, when
ordered to do so, only managed to arouse the
suspicion of the officer that accused was trying to
hide his identity. For is it not a regular norm for an
innocent man, who has nothing to hide from the
authorities, to readily present his identification
papers when required to do so?
The receipt of information by NARCOM that a
Caucasian coming from Sagada had prohibited
drugs in his possession, plus the suspicious failure
of the accused to produce his passport, taken
together as a whole, led the NARCOM officers to
reasonably believe that the accused was trying to
hide something illegal from the authorities. From
these circumstances arose a probable cause
which justified the warrantless search that was
made on the personal effects of the accused. In
other words, the acts of the NARCOM officers in
requiring the accused to open his pouch bag and
in opening one of the wrapped objects found
inside said bag (which was discovered to contain
hashish) as well as the two (2) teddy bears with
hashish stuffed inside them, were prompted by
accused's own attempt to hide his identity by
refusing to present his passport, and by the
information received by the NARCOM that a
Caucasian coming from Sagada had prohibited
drugs in his possession. To deprive the NARCOM
agents of the ability and facility to act accordingly,
including, to search even without warrant, in the
light of such circumstances, would be to sanction
impotence and ineffectiveness in law enforcement,
to the detriment of society.
In addition, we find the principle enunciated in Umil, et al., vs.
Ramos,
et al., 21 applicable, by analogy, to the present case:
The arrest of persons involved in the rebellion
whether as its fighting armed elements, or for
committing non-violent acts but in furtherance of
the rebellion, is more an act of capturing them in
the course of an armed conflict, to quell the
 rebellion, than for the purpose of immediately
prosecuting them in court for a statutory offense.
The arrest, therefore, need not follow the usual
procedure in the prosecution of offenses which
requires the determination by a judge of the
existence of probable cause before the issuance
of a judicial warrant of arrest and the granting of
bail if the offense is bailable. Obviously the
absence of a judicial warrant is no legal
impediment to arresting or capturing persons
committing overt acts of violence against
government forces, or any other milder acts but
really in pursuance of the rebellious movement.
The arrest or capture is thus impelled by the
exigencies of the situation that involves the very
survival of society and its government and duly
constituted authorities. If killing and other acts of
violence against the rebels find justification in the
exigencies of armed hostilities which (are) of the
essence of waging a rebellion or insurrection,
most assuredly so in case of invasion, merely
seizing their persons and detaining them while any
of these contingencies continues cannot be less
justified.
III. As earlier stated, it was stipulated and admitted by both parties
that from November 30, 1989 up to and until December 9, 1989,
there was a rebellion. Ergo, our next inquiry is whether or not
appellant's possession of the firearms, explosives and ammunition
seized and recovered from him was for the purpose and in
furtherance of rebellion.
The trial court found accused guilty of illegal possession of
firearms in furtherance of rebellion pursuant to paragraph 2 of
Article 135 of the Revised Penal Code which states that "any
person merely participating or executing the command of others in
a rebellion shall suffer the penalty of prision mayor in its minimum
period." The court below held that appellant De Gracia, who had
been servicing the personal needs of Col. Matillano (whose active
armed opposition against the Government, particularly at the
Camelot Hotel, was well known), is guilty of the act of guarding
the explosives and "molotov" bombs for and in behalf of the latter.
We accept this finding of the lower court.
The above provision of the law was, however, erroneously and
improperly used by the court below as a basis in determining the
degree of liability of appellant and the penalty to be imposed on
him. It must be made clear that appellant is charged with the
qualified offense of illegal possession of firearms in furtherance of
rebellion under Presidential Decree No. 1866 which, in law, is
distinct from the crime of rebellion punished under Articles 134
and 135 of the Revised Penal Code. These are two separate
statutes penalizing different offenses with discrete penalties. The
Revised Penal Code treats rebellion as a crime apart from
murder, homicide, arson, or other offenses, such as illegal
possession of firearms, that might conceivably be committed in
the course of a rebellion. Presidential Decree No. 1866 defines
and punishes, as a specific offense, the crime of illegal
possession of firearms committed in the course or as part of a
rebellion. 22
As a matter of fact, in one case involving the constitutionality of
Section 1 of Presidential Decree No. 1866, the Court has
explained that said provision of the law will not be invalidated by
the mere fact that the same act is penalized under two different
statutes with different penalties, even if considered highly
advantageous to the prosecution and onerous to the accused. 23 It
follows that, subject to the presence of the requisite elements in
each case, unlawful possession of an unlicensed firearm in
furtherance of rebellion may give rise to separate prosecutions for
a violation of Section 1 of Presidential Decree No. 1866, and also
a violation of Articles 134 and 135 of the Revised Penal Code on
rebellion. Double jeopardy in this case cannot be invoked because
the first is an offense punished by a special law while the second
is a felony punished by the Revised Penal Code, 24 with variant
elements.
It was a legal malapropism for the lower court to interject the
aforestated provision of the Revised Penal Code in this
prosecution for a crime under a special law. Consequently, there
is no basis for its recommendation for executive clemency in favor
of appellant De Gracia after he shall have served a jail term of five
years with good behavior. In any event, this is a matter within the
exclusive prerogative of the President whose decision thereon
should be insulated against any tenuous importunity.
Withal, we are duly convinced that the firearms, explosives and
ammunition confiscated from appellant De Gracia were illegally
possessed by him in furtherance of the rebellion then admittedly
existing at that time. In the words of the court a quo:
2. the nature and quantity of the items — 5
bundles of C-4 dynamites, 6 cartons of M-16
ammo and 100 bottles of molotov bombs indicate
that the reports received by the military that the
Eurocar Sales Building was being used by the
rebels was not without basis. Those items are
clearly not for one's personal defense. They are
for offensive operations. De Gracia admitted that
per instruction of Col. Matillano he went down to
Eurocar Sales Building from Antipolo to stay guard
there.
His manifestation of innocence of those items and
what he has been guarding in that office is not
credible for: (a) he was a former military
personnel; (b) at the birthday party of Col.
Matillano on November 30, 1989 many soldiers
and ex-soldiers were present which self-evidently
discloses that De Gracia, in the company of his
boss, was still very much at home and constantly
in touch with soldiers and the armed rebellion of
November 30, 1989 to December 8 or 9, 1989 was
a military coup d' etat; (c) it appears that he is the
only person tasked with caretaking (sic) there in
the Matillano office, which shows that he is a
highly trusted right-hand man of Col. Matillano;
and (d) as heretofore discussed, De Gracia was
earlier seen with some men who fired upon a car
of the AFP intelligence agents. 25
Presidential Decree No. 1866 imposes the death penalty where
the illegal possession of firearms and ammunition is committed in
furtherance of rebellion. At the time the offense charged in this
case was committed under the governance of that law, the
imposition of the death penalty was proscribed by the
Constitution. Consequently, appellant De Gracia could only be
sentenced to serve the penalty of reclusion perpetua which was
correctly meted out by the trial court, albeit with an erroneous
recommendation in connection therewith.
WHEREFORE, the impugned judgment of the trial court is hereby
AFFIRMED, but its recommendation therein for executive
clemency and the supposed basis thereof are hereby DELETED,
with costs against accused-appellant.
SO ORDERED.
[GR No. 157870, Nov 03, 2008]
SOCIAL JUSTICE SOCIETY v. DANGEROUS
DRUGS BOARD
VELASCO JR., J.:
In these kindred petitions, the constitutionality of
Section 36 of Republic Act No. (RA) 9165, otherwise
known as the Comprehensive Dangerous Drugs Act of
2002, insofar as it requires mandatory drug testing
of candidates for public office, students of secondary
and tertiary schools, officers and employees of public
and private offices, and persons charged before the
prosecutor's office with certain offenses, among other
personalities, is put in issue.
As far as pertinent, the challenged section reads as
follows:
SEC. 36. Authorized Drug Testing. Authorized drug
testing shall be done by any government forensic
laboratories or by any of the drug testing
laboratories accredited and monitored by the DOH to
safeguard the quality of the test results. x x x The
drug testing shall employ, among others, two (2)
testing methods, the screening test which will
determine the positive result as well as the type of
drug used and the confirmatory test which will
confirm a positive screening test. x x x The
following shall be subjected to undergo drug testing:
xxxx
(c) Students of secondary and tertiary schools.
Students of secondary and tertiary schools shall,
pursuant to the related rules and regulations as
contained in the school's student handbook and with
notice to the parents, undergo a random drug testing
x x x;
(d) Officers and employees of public and private
offices. Officers and employees of public and private
offices, whether domestic or overseas, shall be
subjected to undergo a random drug test as
contained in the company's work rules and
regulations, x x x for purposes of reducing the risk in
the workplace. Any officer or employee found
positive for use of dangerous drugs shall be dealt
with administratively which shall be a ground for
suspension or termination, subject to the provisions
of Article 282 of the Labor Code and pertinent
provisions of the Civil Service Law;
xxxx
(f) All persons charged before the prosecutor's office
with a criminal offense having an imposable penalty
of imprisonment of not less than six (6) years and
one (1) day shall undergo a mandatory drug test;
(g) All candidates for public office whether appointed
or elected both in the national or local government
shall undergo a mandatory drug test.
In addition to the above stated penalties in this
Section, those found to be positive for dangerous
drugs use shall be subject to the provisions of
Section 15 of this Act.
G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v.
Commission on Elections)
On December 23, 2003, the Commission on
Elections (COMELEC) issued Resolution No. 6486,
prescribing the rules and regulations on the
mandatory drug testing of candidates for public
office in connection with the May 10, 2004
synchronized national and local elections. The
pertinent portions of the said resolution read as
follows:
WHEREAS, Section 36 (g) of Republic Act No. 9165 office, both national and local, in the May 10,
provides: 2004 Synchronized National and Local
Elections shall undergo mandatory drug test in
SEC. 36. Authorized Drug Testing. x x x government forensic laboratories or any drug testing
laboratories monitored and accredited by the
xxxx Department of Health.

(g) All candidates for public office x x x both in the SEC. 3. x x x

national or local government shall undergo a
mandatory drug test. On March 25, 2004, in addition to the drug
certificates filed with their respective offices, the
WHEREAS, Section 1, Article XI of the 1987 Comelec Offices and employees concerned shall
Constitution provides that public officers and submit to the Law Department two (2) separate lists
employees must at all times be accountable to the of candidates. The first list shall consist of those
people, serve them with utmost responsibility, candidates who complied with the mandatory drug
integrity, loyalty and efficiency; test while the second list shall consist of those
candidates who failed to comply x x x.
WHEREAS, by requiring candidates to undergo
mandatory drug test, the public will know the
SEC. 4. Preparation and publication of names of
quality of candidates they are electing and they will
candidates. Before the start of the campaign period,
be assured that only those who can serve with
the [COMELEC] shall prepare two separate lists of
utmost responsibility, integrity, loyalty, and
candidates. The first list shall consist of those
efficiency would be elected x x x.
candidates who complied with the mandatory drug
test while the second list shall consist of those
NOW THEREFORE, The [COMELEC], pursuant to
candidates who failed to comply with said drug test.
the authority vested in it under the Constitution,
xxx
Batas Pambansa Blg. 881 (Omnibus Election Code),
[RA] 9165 and other election laws, RESOLVED to
SEC. 5. Effect of failure to undergo mandatory drug
promulgate, as it hereby promulgates, the following
test and file drug test certificate. No person elected to
rules and regulations on the conduct of mandatory
any public office shall enter upon the duties of his
drug testing to candidates for public office[:]
office until he has undergone mandatory drug test
and filed with the offices enumerated under Section
SECTION 1. Coverage. All candidates for public
2 hereof the drug test certificate herein
required. (Emphasis supplied.)
Petitioner Aquilino Q. Pimentel, Jr., a senator of the
Republic and a candidate for re-election in the May
10, 2004 elections,[1] filed a Petition for Certiorari
and Prohibition under Rule 65. In it, he seeks (1) to
nullify Sec. 36(g) of RA 9165 and COMELEC
Resolution No. 6486 dated December 23, 2003 for
being unconstitutional in that they impose a
qualification for candidates for senators in addition
to those already provided for in the 1987
Constitution; and (2) to enjoin the COMELEC from
implementing Resolution No. 6486.
Pimentel invokes as legal basis for his petition Sec.
3, Article VI of the Constitution, which states:
SECTION 3. No person shall be a Senator unless he
is a natural-born citizen of the Philippines, and, on
the day of the election, is at least thirty-five years of
age, able to read and write, a registered voter, and a
resident of the Philippines for not less than two
years immediately preceding the day of the election.
According to Pimentel, the Constitution only
prescribes a maximum of five (5) qualifications for
one to be a candidate for, elected to, and be a
member of the Senate. He says that both the
Congress and COMELEC, by requiring, via RA 9165
and Resolution No. 6486, a senatorial aspirant,
among other candidates, to undergo a mandatory
drug test, create an additional qualification that all
candidates for senator must first be certified as drug
free. He adds that there is no provision in the
Constitution authorizing the Congress or COMELEC
to expand the qualification requirements of
candidates for senator.
G.R. No. 157870 (Social Justice Society v. Dangerous
Drugs Board and Philippine Drug Enforcement
Agency)
In its Petition for Prohibition under Rule 65,
petitioner Social Justice Society (SJS), a registered
political party, seeks to prohibit the Dangerous
Drugs Board (DDB) and the Philippine Drug
Enforcement Agency (PDEA) from enforcing
paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165
on the ground that they are constitutionally infirm.
For one, the provisions constitute undue delegation
of legislative power when they give unbridled
discretion to schools and employers to determine the
manner of drug testing. For another, the provisions
trench in the equal protection clause inasmuch as
they can be used to harass a student or an employee
deemed undesirable. And for a third, a person's
constitutional right against unreasonable searches is
also breached by said provisions.
G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v.
Dangerous
Drugs Board and Philippine Drug Enforcement
Agency)
Petitioner Atty. Manuel J. Laserna, Jr., as citizen
and taxpayer, also seeks in his Petition for Certiorari
and Prohibition under Rule 65 that Sec. 36(c), (d), (f),
and (g) of RA 9165 be struck down as
unconstitutional for infringing on the constitutional
right to privacy, the right against unreasonable
search and seizure, and the right against self-
incrimination, and for being contrary to the due
process and equal protection guarantees.
The Issue on Locus Standi
First off, we shall address the justiciability of the
cases at bench and the matter of the standing of
petitioners SJS and Laserna to sue. As respondents
DDB and PDEA assert, SJS and Laserna failed to
allege any incident amounting to a violation of the
constitutional rights mentioned in their separate
petitions.[2]
It is basic that the power of judicial review can only
be exercised in connection with a bona
fide controversy which involves the statute sought to
be reviewed.[3] But even with the presence of an
actual case or controversy, the Court may refuse to
exercise judicial review unless the constitutional
question is brought before it by a party having the
requisite standing to challenge it.[4] To have
standing, one must establish that he or she has
suffered some actual or threatened injury as a result
of the allegedly illegal conduct of the government; the
injury is fairly traceable to the challenged action;
and the injury is likely to be redressed by a favorable
action.[5]
The rule on standing, however, is a matter of
procedure; hence, it can be relaxed for non-
traditional plaintiffs, like ordinary citizens,
taxpayers, and legislators when the public interest
so requires, such as when the matter is of
transcendental importance, of overarching
significance to society, or of paramount public
interest.[6] There is no doubt that Pimentel, as
senator of the Philippines and candidate for the May
10, 2004 elections, possesses the requisite standing
since he has substantial interests in the subject
matter of the petition, among other preliminary
considerations. Regarding SJS and Laserna, this
Court is wont to relax the rule on locus standi owing
primarily to the transcendental importance and the
paramount public interest involved in the
enforcement of Sec. 36 of RA 9165.
The Consolidated Issues
The principal issues before us are as follows:
(1) Do Sec. 36(g) of RA 9165 and COMELEC
Resolution No. 6486 impose an additional
qualification for candidates for senator? Corollarily,
can Congress enact a law prescribing qualifications
for candidates for senator in addition to those laid
down by the Constitution? and
(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA
9165 unconstitutional? Specifically, do these
paragraphs violate the right to privacy, the right
against unreasonable searches and seizure, and the
equal protection clause? Or do they constitute
undue delegation of legislative power?
Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)
In essence, Pimentel claims that Sec. 36(g) of RA
9165 and COMELEC Resolution No. 6486 illegally
impose an additional qualification on candidates for
senator. He points out that, subject to the provisions
on nuisance candidates, a candidate for senator
needs only to meet the qualifications laid down in
Sec. 3, Art. VI of the Constitution, to wit: (1)
citizenship, (2) voter registration, (3) literacy, (4) age,
and (5) residency. Beyond these stated qualification
requirements, candidates for senator need not
possess any other qualification to run for senator
and be voted upon and elected as member of the
Senate. The Congress cannot validly amend or
otherwise modify these qualification standards, as it
cannot disregard, evade, or weaken the force of a
constitutional mandate,[7] or alter or enlarge the
Constitution.
Pimentel's contention is well-taken. Accordingly,
Sec. 36(g) of RA 9165 should be, as it is hereby
declared as, unconstitutional. It is basic that if a law
or an administrative rule violates any norm of the
Constitution, that issuance is null and void and has
no effect. The Constitution is the basic law to which
all laws must conform; no act shall be valid if it
conflicts with the Constitution.[8] In the discharge of
their defined functions, the three departments of
government have no choice but to yield obedience to
the commands of the Constitution. Whatever limits
it imposes must be observed.[9]
Congress' inherent legislative powers, broad as they
may be, are subject to certain limitations. As early
as 1927, in Government v. Springer, the Court has
defined, in the abstract, the limits on legislative
power in the following wise:
Someone has said that the powers of the legislative
department of the Government, like the boundaries
of the ocean, are unlimited. In constitutional
governments, however, as well as governments
acting under delegated authority, the powers of each
of the departments x x x are limited and confined
within the four walls of the constitution or the
charter, and each department can only exercise such
powers as are necessarily implied from the given
powers. The Constitution is the shore of legislative
authority against which the waves of legislative
enactment may dash, but over which it cannot
leap.[10]
Thus, legislative power remains limited in the sense
that it is subject to substantive and constitutional
limitations which circumscribe both the exercise of
the power itself and the allowable subjects of
legislation.[11] The substantive constitutional
limitations are chiefly found in the Bill of
Rights[12] and other provisions, such as Sec. 3, Art.
VI of the Constitution prescribing the qualifications
of candidates for senators.

In the same vein, the COMELEC cannot, in the guise
of enforcing and administering election laws or
promulgating rules and regulations to implement
Sec. 36(g), validly impose qualifications on
candidates for senator in addition to what the
Constitution prescribes. If Congress cannot require a
candidate for senator to meet such additional
qualification, the COMELEC, to be sure, is also
without such power. The right of a citizen in the
democratic process of election should not be
defeated by unwarranted impositions of requirement
not otherwise specified in the Constitution.[13]
Sec. 36(g) of RA 9165, as sought to be implemented
by the assailed COMELEC resolution, effectively
enlarges the qualification requirements enumerated
in the Sec. 3, Art. VI of the Constitution. As
couched, said Sec. 36(g) unmistakably requires a
candidate for senator to be certified illegal-drug
clean, obviously as a pre-condition to the validity of
a certificate of candidacy for senator or, with like
effect, a condition sine qua non to be voted upon
and, if proper, be proclaimed as senator-elect. The
COMELEC resolution completes the chain with the
proviso that "[n]o person elected to any public office
shall enter upon the duties of his office until he has
undergone mandatory drug test." Viewed, therefore,
in its proper context, Sec. 36(g) of RA 9165 and the
implementing COMELEC Resolution add another
qualification layer to what the 1987 Constitution, at
the minimum, requires for membership in the
Senate. Whether or not the drug-free bar set up
under the challenged provision is to be hurdled
before or after election is really of no moment, as
getting elected would be of little value if one cannot
assume office for non-compliance with the drug-
testing requirement.
It may of course be argued, in defense of the validity
of Sec. 36(g) of RA 9165, that the provision does not
expressly state that non-compliance with the drug
test imposition is a disqualifying factor or would
work to nullify a certificate of candidacy. This
argument may be accorded plausibility if the drug
test requirement is optional. But the particular
section of the law, without exception, made drug-
testing on those covered mandatory, necessarily
suggesting that the obstinate ones shall have to
suffer the adverse consequences for not adhering to
the statutory command. And since the provision
deals with candidates for public office, it stands to
reason that the adverse consequence adverted to can
only refer to and revolve around the election and the
assumption of public office of the candidates. Any
other construal would reduce the mandatory nature
of Sec. 36(g) of RA 9165 into a pure jargon without
meaning and effect whatsoever.
While it is anti-climactic to state it at this juncture,
COMELEC Resolution No. 6486 is no longer
enforceable, for by its terms, it was intended to cover
only the May 10, 2004 synchronized elections and
the candidates running in that electoral event.
Nonetheless, to obviate repetition, the Court deems it
appropriate to review and rule, as it hereby rules, on
its validity as an implementing issuance.
It ought to be made abundantly clear, however, that
the unconstitutionality of Sec. 36(g) of RA 9165 is
rooted on its having infringed the constitutional
provision defining the qualification or eligibility
requirements for one aspiring to run for and serve as
senator.
SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of
RA 9165)
The drug test prescribed under Sec. 36(c), (d), and (f)
of RA 9165 for secondary and tertiary level students
and public and private employees, while mandatory,
is a random and suspicionless arrangement. The
objective is to stamp out illegal drug and safeguard
in the process "the well-being of [the] citizenry,
particularly the youth, from the harmful effects of
dangerous drugs." This statutory purpose, per the
policy-declaration portion of the law, can be achieved
via the pursuit by the state of "an intensive and
unrelenting campaign against the trafficking and use
of dangerous drugs x x x through an integrated
system of planning, implementation and
enforcement of anti-drug abuse policies, programs
and projects."[14] The primary legislative intent is not
criminal prosecution, as those found positive for
illegal drug use as a result of this random testing are
not necessarily treated as criminals. They may even
be exempt from criminal liability should the illegal
drug user consent to undergo rehabilitation. Secs.
54 and 55 of RA 9165 are clear on this point:
Sec. 54. Voluntary Submission of a Drug Dependent
to Confinement, Treatment and Rehabilitation. A drug
dependent or any person who violates Section 15 of
this Act may, by himself/herself or through his/her
parent, [close relatives] x x x apply to the Board x x x
for treatment and rehabilitation of the drug
dependency. Upon such application, the Board shall
bring forth the matter to the Court which shall order
that the applicant be examined for drug
dependency. If the examination x x x results in the
certification that the applicant is a drug dependent,
he/she shall be ordered by the Court to undergo
treatment and rehabilitation in a Center designated
by the Board x x x.
xxxx
Sec. 55. Exemption from the Criminal Liability Under
the Voluntary Submission Program. A drug dependent
under the voluntary submission program, who is
finally discharged from confinement, shall be exempt
from the criminal liability under Section 15 of this
Act subject to the following conditions:
xxxx
School children, the US Supreme Court noted, are
most vulnerable to the physical, psychological, and
addictive effects of drugs. Maturing nervous systems
of the young are more critically impaired by
intoxicants and are more inclined to drug
dependency. Their recovery is also at a depressingly
low rate.[15]
The right to privacy has been accorded recognition in
this jurisdiction as a facet of the right protected by
the guarantee against unreasonable search and
seizure[16] under Sec. 2, Art. III[17] of the
Constitution. But while the right to privacy has long
come into its own, this case appears to be the first
time that the validity of a state-decreed search or
intrusion through the medium of mandatory random
drug testing among students and employees is, in
this jurisdiction, made the focal point. Thus, the
issue tendered in these proceedings is veritably one
of first impression.
US jurisprudence is, however, a rich source of
persuasive jurisprudence. With respect to random
drug testing among school children, we turn to the
teachings of Vernonia School District 47J v.
Acton (Vernonia) and Board of Education of
Independent School District No. 92 of Pottawatomie
County, et al. v. Earls, et al. (Board of
Education),[18] both fairly pertinent US Supreme
Court-decided cases involving the constitutionality of
governmental search.
In Vernonia, school administrators in Vernonia,
Oregon wanted to address the drug menace in their
respective institutions following the discovery of
frequent drug use by school athletes. After
consultation with the parents, they required random
urinalysis drug testing for the school's
athletes. James Acton, a high school student, was
denied participation in the football program after he
refused to undertake the urinalysis drug testing.
Acton forthwith sued, claiming that the school's drug
testing policy violated, inter alia, the Fourth
Amendment[19] of the US Constitution.
The US Supreme Court, in fashioning a solution to
the issues raised in Vernonia, considered the
following: (1) schools stand in loco parentis over their
students; (2) school children, while not shedding
their constitutional rights at the school gate, have
less privacy rights; (3) athletes have less privacy
rights than non-athletes since the former observe
communal undress before and after sports events;
(4) by joining the sports activity, the athletes
voluntarily subjected themselves to a higher degree
of school supervision and regulation; (5) requiring
urine samples does not invade a student's privacy
since a student need not undress for this kind of
drug testing; and (6) there is need for the drug
testing because of the dangerous effects of illegal
drugs on the young. The US Supreme Court held
that the policy constituted reasonable search under
the Fourth[20] and 14th Amendments and declared
the random drug-testing policy constitutional.
In Board of Education, the Board of Education of a
school in Tecumseh, Oklahoma required a drug test
for high school students desiring to join extra-
curricular activities. Lindsay Earls, a member of the
show choir, marching band, and academic team
declined to undergo a drug test and averred that the
drug-testing policy made to apply to non-athletes
violated the Fourth and 14th Amendments. As Earls
argued, unlike athletes who routinely undergo
physical examinations and undress before their
peers in locker rooms, non-athletes are entitled to
more privacy.
The US Supreme Court, citing Vernonia, upheld the
constitutionality of drug testing even among non-
athletes on the basis of the school's custodial
responsibility and authority. In so ruling, said court
made no distinction between a non-athlete and an
athlete. It ratiocinated that schools and teachers act
in place of the parents with a similar interest and
duty of safeguarding the health of the students. And
in holding that the school could implement its
random drug-testing policy, the Court hinted that
such a test was a kind of search in which even a
reasonable parent might need to engage.
In sum, what can reasonably be deduced from the
above two cases and applied to this jurisdiction are:
(1) schools and their administrators stand in loco
parentis with respect to their students; (2) minor
students have contextually fewer rights than an
adult, and are subject to the custody and
supervision of their parents, guardians, and schools;
(3) schools, acting in loco parentis, have a duty to
safeguard the health and well-being of their students
and may adopt such measures as may reasonably be
necessary to discharge such duty; and (4) schools
have the right to impose conditions on applicants for
admission that are fair, just, and non-
discriminatory.
Guided by Vernonia and Board of Education, the
Court is of the view and so holds that the provisions
of RA 9165 requiring mandatory, random, and
suspicionless drug testing of students are
constitutional. Indeed, it is within the prerogative of
educational institutions to require, as a condition for
admission, compliance with reasonable school rules
and regulations and policies. To be sure, the right to
enroll is not absolute; it is subject to fair,
reasonable, and equitable requirements.
The Court can take judicial notice of the proliferation
of prohibited drugs in the country that threatens the
well-being of the people,[21] particularly the youth
and school children who usually end up as victims.
Accordingly, and until a more effective method is
conceptualized and put in motion, a random drug
testing of students in secondary and tertiary schools
is not only acceptable but may even be necessary if
the safety and interest of the student population,
doubtless a legitimate concern of the
government, are to be promoted and protected. To
borrow from Vernonia, "[d]eterring drug use by our
Nation's schoolchildren is as important as enhancing
efficient enforcement of the Nation's laws against the
importation of drugs"; the necessity for the State to
act is magnified by the fact that the effects of a drug-
infested school are visited not just upon the users,
but upon the entire student body and
faculty.[22] Needless to stress, the random testing
scheme provided under the law argues against the
idea that the testing aims to incriminate
unsuspecting individual students.
Just as in the case of secondary and tertiary level
students, the mandatory but random drug test
prescribed by Sec. 36 of RA 9165 for officers and
employees of public and private offices is justifiable,
albeit not exactly for the same reason. The Court
notes in this regard that petitioner SJS, other than
saying that "subjecting almost everybody to drug
testing, without probable cause, is unreasonable, an
unwarranted intrusion of the individual right to
privacy,"[23] has failed to show how the mandatory,
random, and suspicionless drug testing under Sec.
36(c) and (d) of RA 9165 violates the right to privacy
and constitutes unlawful and/or unconsented
search under Art. III, Secs. 1 and 2 of the
Constitution.[24] Petitioner Laserna's lament is just
as simplistic, sweeping, and gratuitous and does not
merit serious consideration. Consider what he wrote
without elaboration:
The US Supreme Court and US Circuit Courts of
Appeals have made various rulings on the
constitutionality of mandatory drug tests in the
school and the workplaces. The US courts have been
consistent in their rulings that the mandatory drug
tests violate a citizen's constitutional right to privacy
and right against unreasonable search and seizure.
They are quoted extensively hereinbelow.[25]
The essence of privacy is the right to be left
alone.[26] In context, the right to privacy means the
right to be free from unwarranted exploitation of
one's person or from intrusion into one's private
activities in such a way as to cause humiliation to a
person's ordinary sensibilities.[27] And while there
has been general agreement as to the basic function
of the guarantee against unwarranted search,
"translation of the abstract prohibition against
`unreasonable searches and seizures' into workable
broad guidelines for the decision of particular cases
is a difficult task," to borrow from C. Camara v.
Municipal Court.[28] Authorities are agreed though
that the right to privacy yields to certain
paramount rights of the public and defers to the
state's exercise of police power.[29]
As the warrantless clause of Sec. 2, Art III of the
Constitution is couched and as has been held,
"reasonableness" is the touchstone of the validity of
a government search or intrusion.[30] And whether a
search at issue hews to the reasonableness standard
is judged by the balancing of the government-
mandated intrusion on the individual's privacy
interest against the promotion of some compelling
state interest.[31] In the criminal context,
reasonableness requires showing of probable cause
to be personally determined by a judge. Given that
the drug-testing policy for employees and students
for that matter under RA 9165 is in the nature of
administrative search needing what was referred to
in Vernonia as "swift and informal disciplinary
procedures," the probable-cause standard is not
required or even practicable. Be that as it may, the
review should focus on the reasonableness of the
challenged administrative search in question.
The first factor to consider in the matter of
reasonableness is the nature of the privacy interest
upon which the drug testing, which effects a search
within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or
workplace serves as the backdrop for the analysis of
the privacy expectation of the employees and the
reasonableness of drug testing requirement. The
employees' privacy interest in an office is to a large
extent circumscribed by the company's work
policies, the collective bargaining agreement, if any,
entered into by management and the bargaining
unit, and the inherent right of the employer to
maintain discipline and efficiency in the workplace.
Their privacy expectation in a regulated office
environment is, in fine, reduced; and a degree of
impingement upon such privacy has been upheld.
Just as defining as the first factor is the character of
the intrusion authorized by the challenged law.
Reduced to a question form, is the scope of the
search or intrusion clearly set forth, or, as
formulated in Ople v. Torres, is the enabling law
authorizing a search "narrowly drawn" or "narrowly
focused"?[32]
The poser should be answered in the affirmative. For
one, Sec. 36 of RA 9165 and its implementing rules
and regulations (IRR), as couched, contain
provisions specifically directed towards preventing a
situation that would unduly embarrass the
employees or place them under a humiliating
experience. While every officer and employee in a
private establishment is under the law deemed
forewarned that he or she may be a possible subject
of a drug test, nobody is really singled out in
advance for drug testing. The goal is to discourage
drug use by not telling in advance anyone when and
who is to be tested. And as may be observed, Sec.
36(d) of RA 9165 itself prescribes what, in Ople, is a
narrowing ingredient by providing that the
employees concerned shall be subjected to "random
drug test as contained in the company's work rules
and regulations x x x for purposes of reducing the
risk in the work place."
For another, the random drug testing shall be
undertaken under conditions calculated to protect as
much as possible the employee's privacy and dignity.
As to the mechanics of the test, the law specifies that
the procedure shall employ two testing methods, i.e.,
the screening test and the confirmatory test,
doubtless to ensure as much as possible the
trustworthiness of the results. But the more
important consideration lies in the fact that the test
shall be conducted by trained professionals in
access-controlled laboratories monitored by the
Department of Health (DOH) to safeguard against
results tampering and to ensure an accurate chain
of custody.[33] In addition, the IRR issued by the
DOH provides that access to the drug results shall
be on the "need to know" basis;[34] that the "drug test
result and the records shall be [kept] confidential
subject to the usual accepted practices to protect the
confidentiality of the test results."[35] Notably, RA
9165 does not oblige the employer concerned to
report to the prosecuting agencies any information
or evidence relating to the violation of
the Comprehensive Dangerous Drugs Act received as
a result of the operation of the drug testing. All told,
therefore, the intrusion into the employees' privacy,
under RA 9165, is accompanied by proper
safeguards, particularly against embarrassing
leakages of test results, and is relatively minimal.
To reiterate, RA 9165 was enacted as a measure to
stamp out illegal drug in the country and thus
protect the well-being of the citizens, especially the
youth, from the deleterious effects of dangerous
drugs. The law intends to achieve this through the
medium, among others, of promoting and resolutely
pursuing a national drug abuse policy in the
workplace via a mandatory random drug test.[36] To
the Court, the need for drug testing to at least
minimize illegal drug use is substantial enough to
override the individual's privacy interest under the
premises. The Court can consider that the illegal
drug menace cuts across gender, age group, and
social- economic lines. And it may not be amiss to
state that the sale, manufacture, or trafficking of
illegal drugs, with their ready market, would be an
investor's dream were it not for the illegal and
immoral components of any of such activities. The
drug problem has hardly abated since the martial
law public execution of a notorious drug trafficker.
The state can no longer assume a laid back stance
with respect to this modern-day scourge. Drug
enforcement agencies perceive a mandatory random
drug test to be an effective way of preventing and
deterring drug use among employees in private
offices, the threat of detection by random testing
being higher than other modes. The Court holds that
the chosen method is a reasonable and enough
means to lick the problem.
Taking into account the foregoing factors, i.e., the
reduced expectation of privacy on the part of the
employees, the compelling state concern likely to be
met by the search, and the well-defined limits set
forth in the law to properly guide authorities in the
conduct of the random testing, we hold that the
challenged drug test requirement is, under the
limited context of the case, reasonable and, ergo,
constitutional.
Like their counterparts in the private sector,
government officials and employees also labor under
reasonable supervision and restrictions imposed by
the Civil Service law and other laws on public
officers, all enacted to promote a high standard of
ethics in the public service.[37] And if RA 9165
passes the norm of reasonableness for private
employees, the more reason that it should pass the
test for civil servants, who, by constitutional
command, are required to be accountable at all
times to the people and to serve them with utmost
responsibility and efficiency.[38]
Petitioner SJS' next posture that Sec. 36 of RA 9165
is objectionable on the ground of undue delegation of
power hardly commends itself for
concurrence. Contrary to its position, the provision
in question is not so extensively drawn as to give
unbridled options to schools and employers to
determine the manner of drug testing. Sec. 36
expressly provides how drug testing for students of
secondary and tertiary schools and
officers/employees of public/private offices should
be conducted. It enumerates the persons who shall
undergo drug testing. In the case of students, the
testing shall be in accordance with the school rules
as contained in the student handbook and with
notice to parents. On the part of officers/employees,
the testing shall take into account the company's
work rules. In either case, the random procedure
shall be observed, meaning that the persons to be
subjected to drug test shall be picked by chance or
in an unplanned way. And in all cases, safeguards
against misusing and compromising the
confidentiality of the test results are established.
Lest it be overlooked, Sec. 94 of RA 9165 charges the
DDB to issue, in consultation with the DOH,
Department of the Interior and Local Government,
Department of Education, and Department of Labor
and Employment, among other agencies, the IRR
necessary to enforce the law. In net effect then, the
participation of schools and offices in the drug
testing scheme shall always be subject to the IRR of
RA 9165. It is, therefore, incorrect to say that
schools and employers have unchecked discretion to
determine how often, under what conditions, and
where the drug tests shall be conducted.
The validity of delegating legislative power is now a
quiet area in the constitutional landscape.[39] In the
face of the increasing complexity of the task of the
government and the increasing inability of the
legislature to cope directly with the many problems
demanding its attention, resort to delegation of
power, or entrusting to administrative agencies the
power of subordinate legislation, has become
imperative, as here.
Laserna Petition (Constitutionality of Sec. 36[c],
[d], [f], and [g] of RA 9165)
Unlike the situation covered by Sec. 36(c) and (d) of
RA 9165, the Court finds no valid justification for
mandatory drug testing for persons accused of
crimes. In the case of students, the constitutional
viability of the mandatory, random, and
suspicionless drug testing for students emanates
primarily from the waiver by the students of their
right to privacy when they seek entry to the school,
and from their voluntarily submitting their persons
to the parental authority of school authorities. In the
case of private and public employees, the
constitutional soundness of the mandatory, random,
and suspicionless drug testing proceeds from the
reasonableness of the drug test policy and
requirement.
We find the situation entirely different in the case of
persons charged before the public prosecutor's office
with criminal offenses punishable with six (6) years
and one (1) day imprisonment. The operative
concepts in the mandatory drug testing are
"randomness" and "suspicionless." In the case of
persons charged with a crime before the prosecutor's costs.
office, a mandatory drug testing can never be
random or suspicionless. The ideas of randomness SO ORDERED.
and being suspicionless are antithetical to their
being made defendants in a criminal
complaint. They are not randomly picked; neither [GR No. 181881, Oct 18, 2011]
are they beyond suspicion. When persons suspected BRICCIO 'RICKY' A. POLLO v. CHAIRPERSON
of committing a crime are charged, they are singled KARINA CONSTANTINO-DAVID
out and are impleaded against their will. The
persons thus charged, by the bare fact of being haled VILLARAMA, JR., J.:
before the prosecutor's office and peaceably
This case involves a search of office computer
submitting themselves to drug testing, if that be the
assigned to a government employee who was charged
case, do not necessarily consent to the procedure, let
administratively and eventually dismissed from the
alone waive their right to privacy.[40] To impose
service. The employee's personal files stored in the
mandatory drug testing on the accused is a blatant
computer were used by the government employer as
attempt to harness a medical test as a tool for
evidence of misconduct.
criminal prosecution, contrary to the stated
objectives of RA 9165. Drug testing in this case
Before us is a petition for review on certiorari
would violate a persons' right to privacy guaranteed
under Rule 45 which seeks to reverse and set aside
under Sec. 2, Art. III of the Constitution. Worse still,
the Decision[1] dated October 11, 2007 and
the accused persons are veritably forced to
Resolution[2] dated February 29, 2008 of the Court of
incriminate themselves.
Appeals (CA). The CA dismissed the petition for
certiorari (CA-G.R. SP No. 98224) filed by petitioner
WHEREFORE, the Court resolves to GRANT the
Briccio "Ricky" A. Pollo to nullify the proceedings
petition in G.R. No. 161658 and declares Sec.
conducted by the Civil Service Commission (CSC)
36(g) of RA 9165 and COMELEC Resolution No.
which found him guilty of dishonesty, grave
6486 as UNCONSTITUTIONAL; and to PARTIALLY
misconduct, conduct prejudicial to the best interest
GRANT the petition in G.R. Nos. 157870 and
of the service, and violation of Republic Act (R.A.) No.
158633 by declaring Sec. 36(c) and (d) of RA
6713 and penalized him with dismissal.
9165 CONSTITUTIONAL, but declaring its Sec.
36(f) UNCONSTITUTIONAL. All concerned agencies
The factual antecedents:
are, accordingly, permanently enjoined from
implementing Sec. 36(f) and (g) of RA 9165. No
Petitioner is a former Supervising Personnel
Specialist of the CSC Regional Office No. IV and also
the Officer-in-Charge of the Public Assistance and
Liaison Division (PALD) under the "Mamamayan
Muna Hindi Mamaya Na" program of the CSC.
On January 3, 2007 at around 2:30 p.m., an
unsigned letter-complaint addressed to respondent
CSC Chairperson Karina Constantino-David which
was marked "Confidential" and sent through a
courier service (LBC) from a certain "Alan San
Pascual" of Bagong Silang, Caloocan City, was
received by the Integrated Records Management
Office (IRMO) at the CSC Central Office. Following
office practice in which documents marked
"Confidential" are left unopened and instead sent to
the addressee, the aforesaid letter was given directly
to Chairperson David.
The letter-complaint reads:
The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City
Dear Madam Chairwoman,
Belated Merry Christmas and Advance Happy New
Year!
As a concerned citizen of my beloved country, I
would like to ask from you personally if it is just
alright for an employee of your agency to be a lawyer
of an accused gov't employee having a pending case
in the csc. I honestly think this is a violation of law
and unfair to others and your office.
I have known that a person have been lawyered by
one of your attorny in the region 4 office. He is the
chief of the Mamamayan muna hindi mamaya na
division. He have been helping many who have
pending cases in the Csc. The justice in our govt
system will not be served if this will continue. Please
investigate this anomaly because our perception of
your clean and good office is being tainted.
Concerned Govt employee[3]
Chairperson David immediately formed a team of
four personnel with background in information
technology (IT), and issued a memo directing them to
conduct an investigation and specifically "to back up
all the files in the computers found in the
Mamamayan Muna (PALD) and Legal
divisions."[4] After some briefing, the team proceeded
at once to the CSC-ROIV office at Panay Avenue,
Quezon City. Upon their arrival thereat around 5:30
p.m., the team informed the officials of the CSC-
ROIV, respondents Director IV Lydia Castillo
(Director Castillo) and Director III Engelbert Unite
(Director Unite) of Chairperson David's directive.
The backing-up of all files in the hard disk of
computers at the PALD and Legal Services Division
(LSD) was witnessed by several employees, together
with Directors Castillo and Unite who closely
monitored said activity. At around 6:00 p.m.,
Director Unite sent text messages to petitioner and
the head of LSD, who were both out of the office at
the time, informing them of the ongoing copying of
computer files in their divisions upon orders of the
CSC Chair. The text messages received by petitioner
read:
"Gud p.m. This is Atty. Unite FYI: Co people are going
over the PCs of PALD and LSD per instruction of the
Chairman. If you can make it here now it would be
better."
"All PCs Of PALD and LSD are being backed up per
memo of the chair."
"CO IT people arrived just now for this purpose. We
were not also informed about this.
"We can't do anything about ... it ... it's a directive
from chair."
"Memo of the chair was referring to an anonymous
complaint"; "ill send a copy of the memo via mms"[5]
Petitioner replied also thru text message that he was
leaving the matter to Director Unite and that he will
just get a lawyer. Another text message received by
petitioner from PALD staff also reported the presence
of the team from CSC main office: "Sir may mga taga
C.O. daw sa kuarto natin."[6] At around 10:00 p.m. of
the same day, the investigating team finished their
task. The next day, all the computers in the PALD
were sealed and secured for the purpose of
preserving all the files stored therein. Several
diskettes containing the back-up files sourced from
the hard disk of PALD and LSD computers were
turned over to Chairperson David. The contents of
the diskettes were examined by the CSC's Office for
Legal Affairs (OLA). It was found that most of the
files in the 17 diskettes containing files copied from
the computer assigned to and being used by the
petitioner, numbering about 40 to 42 documents,
were draft pleadings or letters[7] in connection with
administrative cases in the CSC and other tribunals.
On the basis of this finding, Chairperson David
issued the Show-Cause Order[8] dated January 11,
2007, requiring the petitioner, who had gone on
extended leave, to submit his explanation or
counter-affidavit within five days from notice.
Evaluating the subject documents obtained from
petitioner's personal files, Chairperson David made
the following observations:
Most of the foregoing files are drafts of legal
pleadings or documents that are related to or
connected with administrative cases that may
broadly be lumped as pending either in the CSCRO
No. IV, the CSC-NCR, the CSC-Central Office or
other tribunals. It is also of note that most of these
draft pleadings are for and on behalves of parties,
who are facing charges as respondents in
administrative cases. This gives rise to the inference
that the one who prepared them was knowingly,
deliberately and willfully aiding and advancing
interests adverse and inimical to the interest of the
CSC as the central personnel agency of the
government tasked to discipline misfeasance and
malfeasance in the government service. The number
of pleadings so prepared further demonstrates that
such person is not merely engaged in an isolated
practice but pursues it with seeming regularity. It
would also be the height of naivete or credulity, and
certainly against common human experience, to
believe that the person concerned had engaged in
this customary practice without any consideration,
and in fact, one of the retrieved files (item 13 above)
appears to insinuate the collection of fees. That
these draft pleadings were obtained from the
computer assigned to Pollo invariably raises the
presumption that he was the one responsible or had
a hand in their drafting or preparation since the
computer of origin was within his direct control and
disposition.[9]
Petitioner filed his Comment, denying that he is the
person referred to in the anonymous letter-complaint
which had no attachments to it, because he is not a
lawyer and neither is he "lawyering" for people with
cases in the CSC. He accused CSC officials of
conducting a "fishing expedition" when they
unlawfully copied and printed personal files in his
computer, and subsequently asking him to submit
his comment which violated his right against self-
incrimination. He asserted that he had protested the
unlawful taking of his computer done while he was
on leave, citing the letter dated January 8, 2007 in
which he informed Director Castillo that the files in
his computer were his personal files and those of his
sister, relatives, friends and some associates and
that he is not authorizing their sealing, copying,
duplicating and printing as these would violate his
constitutional right to privacy and protection against
self-incrimination and warrantless search and
seizure. He pointed out that though government
property, the temporary use and ownership of the
computer issued under a Memorandum of Receipt
(MR) is ceded to the employee who may exercise all
attributes of ownership, including its use for
personal purposes. As to the anonymous letter,
petitioner argued that it is not actionable as it failed
to comply with the requirements of a formal
complaint under the Uniform Rules on
Administrative Cases in the Civil Service (URACC). In
view of the illegal search, the files/documents copied
from his computer without his consent is thus
inadmissible as evidence, being "fruits of a
poisonous tree."[10]
On February 26, 2007, the CSC issued Resolution
No. 070382[11] finding prima facie case against the
petitioner and charging him with Dishonesty, Grave
Misconduct, Conduct Prejudicial to the Best Interest
of the Service and Violation of R.A. No. 6713 (Code of
Conduct and Ethical Standards for Public Officials
and Employees). Petitioner was directed to submit
his answer under oath within five days from notice
and indicate whether he elects a formal
investigation. Since the charges fall under Section 19
of the URACC, petitioner was likewise placed under
90 days preventive suspension effective immediately
upon receipt of the resolution. Petitioner received a
copy of Resolution No. 070382 on March 1, 2007.

Petitioner filed an Omnibus Motion (For
Reconsideration, to Dismiss and/or to Defer)
assailing the formal charge as without basis having
proceeded from an illegal search which is beyond the
authority of the CSC Chairman, such power
pertaining solely to the court. Petitioner reiterated
that he never aided any people with pending cases at
the CSC and alleged that those files found in his
computer were prepared not by him but by certain
persons whom he permitted, at one time or another,
to make use of his computer out of close association
or friendship. Attached to the motion were the
affidavit of Atty. Ponciano R. Solosa who entrusted
his own files to be kept at petitioner's CPU and Atty.
Eric N. Estrellado, the latter being Atty. Solosa's
client who attested that petitioner had nothing to do
with the pleadings or bill for legal fees because in
truth he owed legal fees to Atty. Solosa and not to
petitioner. Petitioner contended that the case should
be deferred in view of the prejudicial question raised
in the criminal complaint he filed before the
Ombudsman against Director Buensalida, whom
petitioner believes had instigated this administrative
case. He also prayed for the lifting of the preventive
suspension imposed on him. In its Resolution No.
070519[12] dated March 19, 2007, the CSC denied
the omnibus motion. The CSC resolved to treat the
said motion as petitioner's answer.
On March 14, 2007, petitioner filed an Urgent
Petition[13] under Rule 65 of the Rules of Court,
docketed as CA-G.R. SP No. 98224, assailing both
the January 11, 2007 Show-Cause Order and
Resolution No. 070382 dated February 26, 2007 as
having been issued with grave abuse of discretion
amounting to excess or total absence of jurisdiction.
Prior to this, however, petitioner lodged an
administrative/criminal complaint against
respondents Directors Racquel D.G. Buensalida
(Chief of Staff, Office of the CSC Chairman) and
Lydia A. Castillo (CSC-RO IV) before the Office of the
Ombudsman, and a separate complaint for
disbarment against Director Buensalida.[14]
On April 17, 2007, petitioner received a notice of
hearing from the CSC setting the formal
investigation of the case on April 30, 2007. On April
25, 2007, he filed in the CA an Urgent Motion for the
issuance of TRO and preliminary injunction.[15] Since
he failed to attend the pre-hearing conference
scheduled on April 30, 2007, the CSC reset the same
to May 17, 2007 with warning that the failure of
petitioner and/or his counsel to appear in the said
pre-hearing conference shall entitle the prosecution
to proceed with the formal investigation ex-
parte.[16] Petitioner moved to defer or to reset the pre-
hearing conference, claiming that the investigation
proceedings should be held in abeyance pending the
resolution of his petition by the CA. The CSC denied
his request and again scheduled the pre-hearing
conference on May 18, 2007 with similar warning on
the consequences of petitioner and/or his counsel's
non-appearance.[17] This prompted petitioner to file
another motion in the CA, to cite the respondents,
including the hearing officer, in indirect contempt.[18]

On June 12, 2007, the CSC issued Resolution No.
071134[19] denying petitioner's motion to set aside
the denial of his motion to defer the proceedings and
to inhibit the designated hearing officer, Atty.
Bernard G. Jimenez. The hearing officer was directed
to proceed with the investigation proper with
dispatch.
In view of the absence of petitioner and his counsel,
and upon the motion of the prosecution, petitioner
was deemed to have waived his right to the formal
investigation which then proceeded ex parte.
On July 24, 2007, the CSC issued Resolution No.
071420,[20] the dispositive part of which reads:
WHEREFORE, foregoing premises considered, the
Commission hereby finds Briccio A. Pollo, a.k.a.
Ricky A. Pollo GUILTY of Dishonesty, Grave
Misconduct, Conduct Prejudicial to the Best Interest
of the Service and Violation of Republic Act 6713. He
is meted the penalty of DISMISSAL FROM THE
SERVICE with all its accessory penalties, namely,
disqualification to hold public office, forfeiture of
retirement benefits, cancellation of civil service
eligibilities and bar from taking future civil service
examinations.[21]
On the paramount issue of the legality of the search
conducted on petitioner's computer, the CSC noted
the dearth of jurisprudence relevant to the factual
milieu of this case where the government as
employer invades the private files of an employee
stored in the computer assigned to him for his
official use, in the course of initial investigation of
possible misconduct committed by said employee
and without the latter's consent or participation. The
CSC thus turned to relevant rulings of the United
States Supreme Court, and cited the leading case
of O'Connor v. Ortega[22] as authority for the view that
government agencies, in their capacity as employers,
rather than law enforcers, could validly conduct
search and seizure in the governmental workplace
without meeting the "probable cause" or warrant
requirement for search and seizure. Another ruling
cited by the CSC is the more recent case of United
States v. Mark L. Simons[23] which declared that the
federal agency's computer use policy foreclosed any
inference of reasonable expectation of privacy on the
part of its employees. Though the Court therein
recognized that such policy did not, at the same
time, erode the respondent's legitimate expectation
of privacy in the office in which the computer was
installed, still, the warrantless search of the
employee's office was upheld as valid because a
government employer is entitled to conduct a
warrantless search pursuant to an investigation of
work-related misconduct provided the search is
reasonable in its inception and scope.
With the foregoing American jurisprudence as
benchmark, the CSC held that petitioner has no
reasonable expectation of privacy with regard to the
computer he was using in the regional office in view
of the CSC computer use policy which unequivocally
declared that a CSC employee cannot assert any
privacy right to a computer assigned to him. Even
assuming that there was no such administrative
policy, the CSC was of the view that the search of
petitioner's computer successfully passed the test of
reasonableness for warrantless searches in the
workplace as enunciated in the aforecited
authorities. The CSC stressed that it pursued the
search in its capacity as government employer and
that it was undertaken in connection with an
investigation involving work-related misconduct,
which exempts it from the warrant requirement
under the Constitution. With the matter of
admissibility of the evidence having been resolved,
the CSC then ruled that the totality of evidence
adequately supports the charges of grave
misconduct, dishonesty, conduct prejudicial to the
best interest of the service and violation of R.A. No.
6713 against the petitioner. These grave infractions
justified petitioner's dismissal from the service with
all its accessory penalties.
In his Memorandum[24] filed in the CA, petitioner
moved to incorporate the above resolution
dismissing him from the service in his main petition,
in lieu of the filing of an appeal via a Rule 43
petition. In a subsequent motion, he likewise prayed
for the inclusion of Resolution No. 071800[25] which
denied his motion for reconsideration.
By Decision dated October 11, 2007, the CA
dismissed the petition for certiorari after finding no
grave abuse of discretion committed by respondents
CSC officials. The CA held that: (1) petitioner was
not charged on the basis of the anonymous letter but
from the initiative of the CSC after a fact-finding
investigation was conducted and the results thereof
yielded a prima facie case against him; (2) it could
not be said that in ordering the back-up of files in
petitioner's computer and later confiscating the
same, Chairperson David had encroached on the
authority of a judge in view of the CSC computer
policy declaring the computers as government
property and that employee-users thereof have no
reasonable expectation of privacy in anything they
create, store, send, or receive on the computer
system; and (3) there is nothing contemptuous in
CSC's act of proceeding with the formal investigation
as there was no restraining order or injunction
issued by the CA.
His motion for reconsideration having been denied
by the CA, petitioner brought this appeal arguing
that –
I. THE HONORABLE COURT OF APPEALS
GRIEVOUSLY ERRED AND COMMITTED SERIOUS
IRREGULARITY AND BLATANT ERRORS IN LAW
AMOUNTING TO GRAVE ABUSE OF DISCRETION
WHEN IT RULED THAT ANONYMOUS COMPLAINT
IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH
AND IN FACT THE CONTRARY IS EXPLICITLY
PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8
OF CSC RESOLUTION NO. 99-1936, WHICH IS AN
[AMENDMENT] TO THE ORIGINAL RULES PER CSC
RESOLUTION NO. 94-0521;
II. THE HONORABLE COURT GRIEVOUSLY ERRED
AND COMMITTED PALPABLE ERRORS IN LAW
AMOUNTING TO GRAVE ABUSE OF DISCRETION
WHEN IT RULED THAT PETITIONER CANNOT
INVOKE HIS RIGHT TO PRIVACY, TO
UNREASONABLE SEARCH AND SEIZURE, AGAINST
SELF-INCRIMINATION, BY VIRTUE OF OFFICE
MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL
MEMORANDUM SIGNED SOLELY AND
EXCLUSIVELY BY RESPONDENT DAVID AND NOT
BY THE COLLEGIAL COMMISSION CONSIDERING
THAT POLICY MATTERS INVOLVING
SUB[S]TANTIAL RIGHTS CANNOT BE COVERED BY
AN OFFICE MEMORANDUM WHICH IS LIMITED TO
PROCEDURAL AND ROUTINARY INSTRUCTION;
III. THE HONORABLE COURT GRAVELY ERRED
AND COMMITTED GRAVE ABUSE OF DISCRETION
WHEN IT RULED THAT MEMO SEARCH DATED
JANUARY 3, 2007 AND THE TAKING OF
DOCUMENTS IN THE EVENING THEREOF FROM
7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF
DISCRETION LIMITING THE DEFINITION [OF]
GRAVE ABUSE OF DISCRETION TO ONE
INVOLVING AND TAINTED WITH PERSONAL
HOSTILITY. IT LIKEWISE ERRED IN HOLDING
THAT DATA STORED IN THE GOVERNMENT
COMPUTERS ARE GOVERNMENT PROPERTIES
INCLUDING THE PERSONAL FILES WHEN THE
CONTRARY IS PROVIDED UNDER SECTION 14 OF
OM. 10 s. 2002. AND GRIEVOUSLY ERRED STILL
WHEN IT RULED THAT RESPONDENT DAVID BY
VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE
DUTIES AND FUNCTIONS OF A JUDGE PURSUANT
TO ARTICLE III, SECTION 2 OF THE 1987
PHILIPPINE CONSTITUTION;
IV. THE HONORABLE COURT ERRED WHEN IT
FAILED TO CONSIDER ALL OTHER NEW
ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO
SUBMITTED AS WELL AS ITS FAILURE TO
EVALUATE AND TAKE ACTION ON THE 2 MOTIONS
TO ADMIT AND INCORPORATE CSC RESOLUTION
NOS. 07-1420 DATED JULY 24, 2007 AND CSC
RESOLUTION 07-1800 DATED SEPTEMBER 10,
2007. IT DID NOT RULE LIKEWISE ON THE FOUR
URGENT MOTION TO RESOLVE ANCILLARY
PRAYER FOR TRO.[26]
Squarely raised by the petitioner is the legality of the
search conducted on his office computer and the
copying of his personal files without his knowledge
and consent, alleged as a transgression on his
constitutional right to privacy.
The right to privacy has been accorded recognition in
this jurisdiction as a facet of the right protected by
the guarantee against unreasonable search and
seizure under Section 2, Article III of the 1987
Constitution,[27] which provides:
Sec. 2. The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge after examination under oath
or affirmation of the complainant and the witnesses
he may produce, and particularly describing the
place to be searched and the persons or things to be
seized.
The constitutional guarantee is not a prohibition of
all searches and seizures but only of "unreasonable"
searches and seizures.[28] But to fully understand
this concept and application for the purpose of
resolving the issue at hand, it is essential that we
examine the doctrine in the light of pronouncements
in another jurisdiction. As the Court declared
in People v. Marti[29]:
Our present constitutional provision on the
guarantee against unreasonable search and seizure
had its origin in the 1935 Charter which, worded as
follows:
"The right of the people to be secure in their persons,
houses, papers and effects against unreasonable
searches and seizures shall not be violated, and no
warrants shall issue but upon probable cause, to be
determined by the judge after examination under
oath or affirmation of the complainant and the
witnesses he may produce, and particularly
describing the place to be searched, and the persons
or things to be seized." (Sec. 1[3], Article III) was in
turn derived almost verbatim from the Fourth
Amendment to the United States Constitution. As
such, the Court may turn to the pronouncements of
the United States Federal Supreme Court and State
Appellate Courts which are considered doctrinal in
this jurisdiction.[30]
In the 1967 case of Katz v. United States,[31] the US
Supreme Court held that the act of FBI agents in
electronically recording a conversation made by
petitioner in an enclosed public telephone booth
violated his right to privacy and constituted a
"search and seizure". Because the petitioner had a
reasonable expectation of privacy in using the
enclosed booth to make a personal telephone call,
the protection of the Fourth Amendment extends to
such area. In the concurring opinion of Mr. Justice
Harlan, it was further noted that the existence of
privacy right under prior decisions involved a two-
fold requirement: first, that a person has exhibited
an actual (subjective) expectation of privacy; and
second, that the expectation be one that society is
prepared to recognize as reasonable (objective).[32]
In Mancusi v. DeForte[33] which addressed the
reasonable expectations of private employees in the
workplace, the US Supreme Court held that a union
employee had Fourth Amendment rights with regard
to an office at union headquarters that he shared
with other union officials, even as the latter or their
guests could enter the office. The Court thus
"recognized that employees may have a reasonable
expectation of privacy against intrusions by police."

That the Fourth Amendment equally applies to a
government workplace was addressed in the 1987
case of O'Connor v. Ortega[34] where a physician, Dr.
Magno Ortega, who was employed by a state
hospital, claimed a violation of his Fourth
Amendment rights when hospital officials
investigating charges of mismanagement of the
psychiatric residency program, sexual harassment of
female hospital employees and other irregularities
involving his private patients under the state medical
aid program, searched his office and seized personal
items from his desk and filing cabinets. In that case,
the Court categorically declared that "[i]ndividuals do
not lose Fourth Amendment rights merely because
they work for the government instead of a private
employer."[35] A plurality of four Justices concurred
that the correct analysis has two steps: first,
because "some government offices may be so open to
fellow employees or the public that no expectation of
privacy is reasonable", a court must consider "[t]he
operational realities of the workplace" in order to
determine whether an employee's Fourth
Amendment rights are implicated; and next, where
an employee has a legitimate privacy expectation, an
employer's intrusion on that expectation "for
noninvestigatory, work-related purposes, as well as
for investigations of work-related misconduct, should
be judged by the standard of reasonableness under
all the circumstances."[36]
On the matter of government employees' reasonable
expectations of privacy in their
workplace, O'Connor teaches:
x x x Public employees' expectations of privacy in
their offices, desks, and file cabinets, like similar
expectations of employees in the private sector, may
be reduced by virtue of actual office practices and
procedures, or by legitimate regulation. x x x The
employee's expectation of privacy must be assessed
in the context of the employment relation. An office
is seldom a private enclave free from entry by
supervisors, other employees, and business and
personal invitees. Instead, in many cases offices are
continually entered by fellow employees and other
visitors during the workday for conferences,
consultations, and other work-related visits. Simply
put, it is the nature of government offices that others
- such as fellow employees, supervisors, consensual
visitors, and the general public - may have frequent
access to an individual's office. We agree with
JUSTICE SCALIA that "[c]onstitutional protection
against unreasonable searches by the government
does not disappear merely because the government
has the right to make reasonable intrusions in its
capacity as employer," x x x but some government
offices may be so open to fellow employees or the
public that no expectation of privacy is
reasonable. x x x Given the great variety of work
environments in the public sector, the question
of whether an employee has a reasonable
expectation of privacy must be addressed on a
case-by-case basis.[37] (Citations omitted; emphasis
supplied.)
On the basis of the established rule in previous
cases, the US Supreme Court declared that Dr.
Ortega's Fourth Amendment rights are implicated
only if the conduct of the hospital officials infringed
"an expectation of privacy that society is prepared to
consider as reasonable." Given the undisputed
evidence that respondent Dr. Ortega did not share
his desk or file cabinets with any other employees,
kept personal correspondence and other private
items in his own office while those work-related files
(on physicians in residency training) were stored
outside his office, and there being no evidence that
the hospital had established any reasonable
regulation or policy discouraging employees from
storing personal papers and effects in their desks or
file cabinets (although the absence of such a policy
does not create any expectation of privacy where it
would not otherwise exist), the Court concluded that
Dr. Ortega has a reasonable expectation of privacy at
least in his desk and file cabinets.[38]
Proceeding to the next inquiry as to whether the
search conducted by hospital officials was
reasonable, the O'Connor plurality decision
discussed the following principles:
Having determined that Dr. Ortega had a reasonable
expectation of privacy in his office, the Court of
Appeals simply concluded without discussion that
the "search...was not a reasonable search under the
fourth amendment." x x x "[t]o hold that the Fourth
Amendment applies to searches conducted by
[public employers] is only to begin the inquiry into
the standards governing such searches...[W]hat is
reasonable depends on the context within which a
search takes place. x x x Thus, we must determine
the appropriate standard of reasonableness
applicable to the search. A determination of the
standard of reasonableness applicable to a particular
class of searches requires "balanc[ing] the nature
and quality of the intrusion on the individual's
Fourth Amendment interests against the importance
of the governmental interests alleged to justify the
intrusion." x x x In the case of searches conducted
by a public employer, we must balance the
invasion of the employees' legitimate
expectations of privacy against the government's
need for supervision, control, and the efficient
operation of the workplace.
xxxx
In our view, requiring an employer to obtain a
warrant whenever the employer wished to enter an
employee's office, desk, or file cabinets for a work-
related purpose would seriously disrupt the routine
conduct of business and would be unduly
burdensome. Imposing unwieldy warrant procedures
in such cases upon supervisors, who would
otherwise have no reason to be familiar with such
procedures, is simply unreasonable. In contrast to
other circumstances in which we have required
warrants, supervisors in offices such as at the
Hospital are hardly in the business of investigating
the violation of criminal laws. Rather, work-related
searches are merely incident to the primary business
of the agency. Under these circumstances, the
imposition of a warrant requirement would conflict
with the "common-sense realization that government
offices could not function if every employment
decision became a constitutional matter." x x x
xxxx
The governmental interest justifying work-related
intrusions by public employers is the efficient and
proper operation of the workplace. Government
agencies provide myriad services to the public, and
the work of these agencies would suffer if employers
were required to have probable cause before they
entered an employee's desk for the purpose of
finding a file or piece of office correspondence.
Indeed, it is difficult to give the concept of probable
cause, rooted as it is in the criminal investigatory
context, much meaning when the purpose of a
search is to retrieve a file for work-related reasons.
Similarly, the concept of probable cause has little
meaning for a routine inventory conducted by public
employers for the purpose of securing state property.
x x x To ensure the efficient and proper operation of
the agency, therefore, public employers must be
given wide latitude to enter employee offices for
work-related, noninvestigatory reasons.
We come to a similar conclusion for searches
conducted pursuant to an investigation of work-
related employee misconduct. Even when employers
conduct an investigation, they have an interest
substantially different from "the normal need for law
enforcement." x x x Public employers have an
interest in ensuring that their agencies operate in an
effective and efficient manner, and the work of these
agencies inevitably suffers from the inefficiency,
incompetence, mismanagement, or other work-
related misfeasance of its employees. Indeed, in
many cases, public employees are entrusted with
tremendous responsibility, and the consequences of
their misconduct or incompetence to both the agency
and the public interest can be severe. In contrast to
law enforcement officials, therefore, public employers
are not enforcers of the criminal law; instead, public
employers have a direct and overriding interest in
ensuring that the work of the agency is conducted in
a proper and efficient manner. In our view,
therefore, a probable cause requirement for
searches of the type at issue here would impose
intolerable burdens on public employers. The
delay in correcting the employee misconduct
caused by the need for probable cause rather
than reasonable suspicion will be translated into
tangible and often irreparable damage to the
agency's work, and ultimately to the public
interest. x x x
xxxx
In sum, we conclude that the "special needs,
beyond the normal need for law enforcement
make the...probable-cause requirement
impracticable," x x x for legitimate, work-related
noninvestigatory intrusions as well as
investigations of work-related misconduct. A
standard of reasonableness will neither unduly
burden the efforts of government employers to
ensure the efficient and proper operation of the
workplace, nor authorize arbitrary intrusions upon
the privacy of public employees. We hold, therefore,
that public employer intrusions on the
constitutionally protected privacy interests of
government employees for noninvestigatory,
work-related purposes, as well as
for investigations of work-related
misconduct, should be judged by the standard of
reasonableness under all the circumstances.
Under this reasonableness standard, both the
inception and the scope of the intrusion must be
reasonable:
"Determining the reasonableness of any search
involves a twofold inquiry: first, one must consider
`whether the...action was justified at its inception,' x
x x ; second, one must determine whether the search
as actually conducted `was reasonably related in
scope to the circumstances which justified the
interference in the first place,'" x x x
Ordinarily, a search of an employee's office by a
supervisor will be "justified at its inception" when
there are reasonable grounds for suspecting that
the search will turn up evidence that the
employee is guilty of work-related misconduct, or
that the search is necessary for a
noninvestigatory work-related purpose such as to
retrieve a needed file. x x x The search will be
permissible in its scope when "the measures
adopted are reasonably related to the objectives
of the search and not excessively intrusive in
light of ...the nature of the [misconduct]." x x
x[39] (Citations omitted; emphasis supplied.)
Since the District Court granted summary judgment
without a hearing on the factual dispute as to the
character of the search and neither was there any
finding made as to the scope of the search that was
undertaken, the case was remanded to said court for
the determination of the justification for the search
and seizure, and evaluation of the reasonableness of
both the inception of the search and its scope.
In O'Connor the Court recognized that "special
needs" authorize warrantless searches involving
public employees for work-related reasons. The
Court thus laid down a balancing test under which
government interests are weighed against the
employee's reasonable expectation of privacy. This
reasonableness test implicates neither probable
cause nor the warrant requirement, which are
related to law enforcement.[40]
O'Connor was applied in subsequent cases raising
issues on employees' privacy rights in the
workplace. One of these cases involved a
government employer's search of an office
computer, United States v. Mark L. Simons[41] where
the defendant Simons, an employee of a division of
the Central Intelligence Agency (CIA), was convicted
of receiving and possessing materials containing
child pornography. Simons was provided with an
office which he did not share with anyone, and a
computer with Internet access. The agency had
instituted a policy on computer use stating that
employees were to use the Internet for official
government business only and that accessing
unlawful material was specifically prohibited. The
policy also stated that users shall understand that
the agency will periodically audit, inspect, and/or
monitor the user's Internet access as deemed
appropriate. CIA agents instructed its contractor for
the management of the agency's computer network,
upon initial discovery of prohibited internet activity
originating from Simons' computer, to conduct a
remote monitoring and examination of Simons'
computer. After confirming that Simons had indeed
downloaded pictures that were pornographic in
nature, all the files on the hard drive of Simon's
computer were copied from a remote work station.
Days later, the contractor's representative finally
entered Simon's office, removed the original hard
drive on Simon's computer, replaced it with a copy,
and gave the original to the agency security officer.
Thereafter, the agency secured warrants and
searched Simons' office in the evening when Simons
was not around. The search team copied the
contents of Simons' computer; computer diskettes
found in Simons' desk drawer; computer files stored
on the zip drive or on zip drive diskettes; videotapes;
and various documents, including personal
correspondence. At his trial, Simons moved to
suppress these evidence, arguing that the searches
of his office and computer violated his Fourth
Amendment rights. After a hearing, the district court
denied the motion and Simons was found guilty as
charged.
Simons appealed his convictions. The US Supreme
Court ruled that the searches of Simons' computer
and office did not violate his Fourth Amendment
rights and the first search warrant was valid. It held
that the search remains valid under
the O'Connor exception to the warrant requirement
because evidence of the crime was discovered in the
course of an otherwise proper administrative
inspection. Simons' violation of the agency's Internet
policy happened also to be a violation of criminal
law; this does not mean that said employer lost the
capacity and interests of an employer. The
warrantless entry into Simons' office was reasonable
under the Fourth Amendment standard announced
in O'Connor because at the inception of the search,
the employer had "reasonable grounds for
suspecting" that the hard drive would yield evidence
of misconduct, as the employer was already aware
that Simons had misused his Internet access to
download over a thousand pornographic images. The
retrieval of the hard drive was reasonably related to
the objective of the search, and the search was not
excessively intrusive. Thus, while Simons had a
reasonable expectation of privacy in his office, he did
not have such legitimate expectation of privacy with
regard to the files in his computer.
x x x To establish a violation of his rights under the
Fourth Amendment, Simons must first prove that he
had a legitimate expectation of privacy in the place
searched or the item seized. x x x And, in order to
prove a legitimate expectation of privacy, Simons
must show that his subjective expectation of privacy
is one that society is prepared to accept as
objectively reasonable. x x x
xxxx
x x x We conclude that the remote searches of
Simons' computer did not violate his Fourth
Amendment rights because, in light of the Internet
policy, Simons lacked a legitimate expectation of
privacy in the files downloaded from the Internet.
Additionally, we conclude that Simons' Fourth
Amendment rights were not violated by FBIS'
retrieval of Simons' hard drive from his office.
Simons did not have a legitimate expectation of
privacy with regard to the record or fruits of his
Internet use in light of the FBIS Internet policy.
The policy clearly stated that FBIS would "audit,
inspect, and/or monitor" employees' use of the
Internet, including all file transfers, all websites
visited, and all e-mail messages, "as deemed
appropriate." x x x This policy placed employees on
notice that they could not reasonably expect that
their Internet activity would be private. Therefore,
regardless of whether Simons subjectively believed
that the files he transferred from the Internet were
private, such a belief was not objectively reasonable
after FBIS notified him that it would be overseeing
his Internet use. x x x Accordingly, FBIS' actions in
remotely searching and seizing the computer files
Simons downloaded from the Internet did not violate
the Fourth Amendment.
xxxx
The burden is on Simons to prove that he had a
legitimate expectation of privacy in his office. x x
x Here, Simons has shown that he had an office that
he did not share. As noted above, the operational
realities of Simons' workplace may have diminished
his legitimate privacy expectations. However, there is
no evidence in the record of any workplace practices,
procedures, or regulations that had such an effect.
We therefore conclude that, on this record, Simons
possessed a legitimate expectation of privacy in
his office.
xxxx
In the final analysis, this case involves an employee's
supervisor entering the employee's government office
and retrieving a piece of government equipment in
which the employee had absolutely no expectation of
privacy - equipment that the employer knew
contained evidence of crimes committed by the
employee in the employee's office. This situation may
be contrasted with one in which the criminal acts of
a government employee were unrelated to his
employment. Here, there was a conjunction of the
conduct that violated the employer's policy and the
conduct that violated the criminal law. We consider
that FBIS' intrusion into Simons' office to retrieve
the hard drive is one in which a reasonable employer
might engage. x x x[42] (Citations omitted; emphasis
supplied.)

This Court, in Social Justice Society (SJS) v.
Dangerous Drugs Board[43] which involved the
constitutionality of a provision in R.A. No. 9165
requiring mandatory drug testing of candidates for
public office, students of secondary and tertiary
schools, officers and employees of public and private
offices, and persons charged before the prosecutor's
office with certain offenses, have also recognized the
fact that there may be such legitimate intrusion of
privacy in the workplace.
The first factor to consider in the matter of
reasonableness is the nature of the privacy interest
upon which the drug testing, which effects a search
within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or
workplace serves as the backdrop for the analysis of
the privacy expectation of the employees and the
reasonableness of drug testing requirement. The
employees' privacy interest in an office is to a
large extent circumscribed by the company's
work policies, the collective bargaining
agreement, if any, entered into by management
and the bargaining unit, and the inherent right of
the employer to maintain discipline and
efficiency in the workplace. Their privacy
expectation in a regulated office environment is, in
fine, reduced; and a degree of impingement upon
such privacy has been upheld. (Emphasis supplied.)
Applying the analysis and principles announced
in O'Connor and Simons to the case at bar, we now
address the following questions: (1) Did petitioner
have a reasonable expectation of privacy in his office
and computer files?; and (2) Was the search
authorized by the CSC Chair, the copying of the
contents of the hard drive on petitioner's computer
reasonable in its inception and scope?
In this inquiry, the relevant surrounding
circumstances to consider include "(1) the
employee's relationship to the item seized; (2)
whether the item was in the immediate control of the
employee when it was seized; and (3) whether the
employee took actions to maintain his privacy in the
item." These factors are relevant to both the
subjective and objective prongs of the
reasonableness inquiry, and we consider the two
questions together.[44] Thus, where the employee
used a password on his computer, did not share his
office with co-workers and kept the same locked, he
had a legitimate expectation of privacy and any
search of that space and items located therein must
comply with the Fourth Amendment.[45]
We answer the first in the negative. Petitioner failed
to prove that he had an actual (subjective)
expectation of privacy either in his office or
government-issued computer which contained his
personal files. Petitioner did not allege that he had a
separate enclosed office which he did not share with
anyone, or that his office was always locked and not
open to other employees or visitors. Neither did he
allege that he used passwords or adopted any means
to prevent other employees from accessing his
computer files. On the contrary, he submits that
 being in the public assistance office of the CSC-
ROIV, he normally would have visitors in his office
like friends, associates and even unknown people,
whom he even allowed to use his computer which to
him seemed a trivial request. He described his office
as "full of people, his friends, unknown people" and
that in the past 22 years he had been discharging
his functions at the PALD, he is "personally assisting
incoming clients, receiving documents, drafting
cases on appeals, in charge of accomplishment
report, Mamamayan Muna Program, Public Sector
Unionism, Correction of name, accreditation of
service, and hardly had anytime for himself alone,
that in fact he stays in the office as a paying
customer."[46] Under this scenario, it can hardly be
deduced that petitioner had such expectation of
privacy that society would recognize as reasonable.
Moreover, even assuming arguendo, in the absence
of allegation or proof of the aforementioned factual
circumstances, that petitioner had at least a
subjective expectation of privacy in his computer as
he claims, such is negated by the presence of policy
regulating the use of office computers, as in Simons.
Office Memorandum No. 10, S. 2002 "Computer Use
Policy (CUP)" explicitly provides:
POLICY
1. The Computer Resources are the property of the Civil
Service Commission and may be used only for
legitimate business purposes.
2. Users shall be permitted access to Computer
Resources to assist them in the performance of their
respective jobs.
3. Use of the Computer Resources is a privilege that
may be revoked at any given time.
xxxx
No Expectation of Privacy:
4. No expectation of privacy. Users except the Members
of the Commission shall not have an expectation of
privacy in anything they create, store, send, or
receive on the computer system.
The Head of the Office for Recruitment, Examination
and Placement shall select and assign Users to
handle the confidential examination data and
processes.
5. Waiver of privacy rights. Users expressly waive any
right to privacy in anything they create, store, send,
or receive on the computer through the Internet or
any other computer network. Users understand that
the CSC may use human or automated means to
monitor the use of its Computer Resources.
6. Non-exclusivity of Computer Resources. A computer
resource is not a personal property or for the
exclusive use of a User to whom a memorandum of
receipt (MR) has been issued. It can be shared or
 operated by other users. However, he is accountable
therefor and must insure its care and maintenance.
xxxx
Passwords
12. Responsibility for passwords. Users shall be
responsible for safeguarding their passwords for
access to the computer system. Individual
passwords shall not be printed, stored online, or
given to others. Users shall be responsible for all
transactions made using their passwords. No User
may access the computer system with another User's
password or account.
13. Passwords do not imply privacy. Use of
passwords to gain access to the computer system or
to encode particular files or messages does not imply
that Users have an expectation of privacy in the
material they create or receive on the computer
system. The Civil Service Commission has global
passwords that permit access to all materials stored
on its networked computer system regardless of
whether those materials have been encoded with a
particular User's password. Only members of the
Commission shall authorize the application of the
said global passwords.
x x x x[47] (Emphasis supplied.)
The CSC in this case had implemented a policy that
put its employees on notice that they have no
expectation of privacy in anything they create, store,
send or receive on the office computers, and that the
CSC may monitor the use of the computer resources
using both automated or human means. This implies
that on-the-spot inspections may be done to ensure
that the computer resources were used only for such
legitimate business purposes.
One of the factors stated in O'Connor which are
relevant in determining whether an employee's
expectation of privacy in the workplace is reasonable
is the existence of a workplace privacy policy.[48] In
one case, the US Court of Appeals Eighth Circuit
held that a state university employee has not shown
that he had a reasonable expectation of privacy in
his computer files where the university's computer
policy, the computer user is informed not to expect
privacy if the university has a legitimate reason to
conduct a search. The user is specifically told that
computer files, including e-mail, can be searched
when the university is responding to a discovery
request in the course of litigation. Petitioner
employee thus cannot claim a violation of Fourth
Amendment rights when university officials
conducted a warrantless search of his computer for
work-related materials.[49]
As to the second point of inquiry on the
reasonableness of the search conducted on
petitioner's computer, we answer in the affirmative.
The search of petitioner's computer files was
conducted in connection with investigation of work-
 related misconduct prompted by an anonymous
letter-complaint addressed to Chairperson David
regarding anomalies in the CSC-ROIV where the
head of the Mamamayan Muna Hindi Mamaya
Na division is supposedly "lawyering" for individuals
with pending cases in the CSC. Chairperson David
stated in her sworn affidavit:
8. That prior to this, as early as 2006, the undersigned
has received several text messages from unknown
sources adverting to certain anomalies in Civil
Service Commission Regional Office IV (CSCRO IV)
such as, staff working in another government
agency, "selling" cases and aiding parties with
pending cases, all done during office hours and
involved the use of government properties;
9. That said text messages were not investigated for
lack of any verifiable leads and details sufficient to
warrant an investigation;
10. That the anonymous letter provided the lead
and details as it pinpointed the persons and
divisions involved in the alleged irregularities
happening in CSCRO IV;
11. That in view of the seriousness of the
allegations of irregularities happening in CSCRO IV
and its effect on the integrity of the Commission, I
decided to form a team of Central Office staff to back
up the files in the computers of the Public
Assistance and Liaison Division (PALD) and Legal
Division;
x x x x[50]
A search by a government employer of an employee's
office is justified at inception when there are
reasonable grounds for suspecting that it will turn
up evidence that the employee is guilty of work-
related misconduct.[51] Thus, in the 2004 case
decided by the US Court of Appeals Eighth Circuit, it
was held that where a government agency's
computer use policy prohibited electronic messages
with pornographic content and in addition expressly
provided that employees do not have any personal
privacy rights regarding their use of the agency
information systems and technology, the government
employee had no legitimate expectation of privacy as
to the use and contents of his office computer, and
therefore evidence found during warrantless search
of the computer was admissible in prosecution for
child pornography. In that case, the defendant
employee's computer hard drive was first remotely
examined by a computer information technician after
his supervisor received complaints that he was
inaccessible and had copied and distributed non-
work-related e-mail messages throughout the office.
When the supervisor confirmed that defendant had
used his computer to access the prohibited websites,
in contravention of the express policy of the agency,
his computer tower and floppy disks were taken and
examined. A formal administrative investigation
ensued and later search warrants were secured by
the police department. The initial remote search of
the hard drive of petitioner's computer, as well as
the subsequent warrantless searches was held as
valid under the O'Connor ruling that a public
employer can investigate work-related misconduct so
long as any search is justified at inception and is
reasonably related in scope to the circumstances
that justified it in the first place.[52]
Under the facts obtaining, the search conducted on
petitioner's computer was justified at its inception
and scope. We quote with approval the CSC's
discussion on the reasonableness of its actions,
consistent as it were with the guidelines established
by O'Connor:
Even conceding for a moment that there is no such
administrative policy, there is no doubt in the mind
of the Commission that the search of Pollo's
computer has successfully passed the test of
reasonableness for warrantless searches in the
workplace as enunciated in the above-discussed
American authorities. It bears emphasis that the
Commission pursued the search in its capacity as
a government employer and that it was
undertaken in connection with an investigation
involving a work-related misconduct, one of the
circumstances exempted from the warrant
requirement. At the inception of the search, a
complaint was received recounting that a certain
division chief in the CSCRO No. IV was "lawyering"
for parties having pending cases with the said
regional office or in the Commission. The nature of
the imputation was serious, as it was grievously
disturbing. If, indeed, a CSC employee was found to
be furtively engaged in the practice of "lawyering" for
parties with pending cases before the Commission
would be a highly repugnant scenario, then such a
case would have shattering repercussions. It would
undeniably cast clouds of doubt upon the
institutional integrity of the Commission as a quasi-
judicial agency, and in the process, render it less
effective in fulfilling its mandate as an impartial and
objective dispenser of administrative justice. It is
settled that a court or an administrative tribunal
must not only be actually impartial but must be
seen to be so, otherwise the general public would not
have any trust and confidence in it.
Considering the damaging nature of the
accusation, the Commission had to act fast, if
only to arrest or limit any possible adverse
consequence or fall-out. Thus, on the same date that
the complaint was received, a search was forthwith
conducted involving the computer resources in the
concerned regional office. That it was the
computers that were subjected to the search was
justified since these furnished the easiest means
for an employee to encode and store documents.
Indeed, the computers would be a likely starting
point in ferreting out incriminating evidence.
Concomitantly, the ephemeral nature of
computer files, that is, they could easily be
destroyed at a click of a button, necessitated
drastic and immediate action. Pointedly, to impose
the need to comply with the probable cause
requirement would invariably defeat the purpose of
the wok-related investigation.
Worthy to mention, too, is the fact that the
Commission effected the warrantless search in an
open and transparent manner. Officials and some
employees of the regional office, who happened to be
in the vicinity, were on hand to observe the process
until its completion. In addition, the respondent
himself was duly notified, through text messaging, of
the search and the concomitant retrieval of files from
his computer.
All in all, the Commission is convinced that the
warrantless search done on computer assigned to
Pollo was not, in any way, vitiated with
unconstitutionality. It was a reasonable exercise of
the managerial prerogative of the Commission as an
employer aimed at ensuring its operational
effectiveness and efficiency by going after the work-
related misfeasance of its employees. Consequently,
the evidence derived from the questioned search are
deemed admissible.[53]
Petitioner's claim of violation of his constitutional
right to privacy must necessarily fail. His other
argument invoking the privacy of communication
and correspondence under Section 3(1), Article III of
the 1987 Constitution is also untenable considering
the recognition accorded to certain legitimate
intrusions into the privacy of employees in the
government workplace under the aforecited
authorities. We likewise find no merit in his
contention that O'Connor and Simons are not
relevant because the present case does not involve a
criminal offense like child pornography. As already
mentioned, the search of petitioner's computer was
justified there being reasonable ground for
suspecting that the files stored therein would yield
incriminating evidence relevant to the investigation
being conducted by CSC as government employer of
such misconduct subject of the anonymous
complaint. This situation clearly falls under the
exception to the warrantless requirement in
administrative searches defined in O'Connor.
The Court is not unaware of our decision
in Anonymous Letter-Complaint against Atty. Miguel
Morales, Clerk of Court, Metropolitan Trial Court of
Manila[54] involving a branch clerk (Atty. Morales)
who was investigated on the basis of an anonymous
letter alleging that he was consuming his working
hours filing and attending to personal cases, using
office supplies, equipment and utilities. The OCA
conducted a spot investigation aided by NBI agents.
The team was able to access Atty. Morales' personal
computer and print two documents stored in its
hard drive, which turned out to be two pleadings,
one filed in the CA and another in the RTC of Manila,
both in the name of another lawyer. Atty. Morales'
computer was seized and taken in custody of the
OCA but was later ordered released on his motion,
but with order to the MISO to first retrieve the files
stored therein. The OCA disagreed with the report of
the Investigating Judge that there was no evidence to
support the charge against Atty. Morales as no one
from the OCC personnel who were interviewed would
give a categorical and positive statement affirming
the charges against Atty. Morales, along with other
court personnel also charged in the same case. The
OCA recommended that Atty. Morales should be
found guilty of gross misconduct. The Court En
Banc held that while Atty. Morales may have fallen
short of the exacting standards required of every
court employee, the Court cannot use the evidence
obtained from his personal computer against him for
it violated his constitutional right against
unreasonable searches and seizures. The Court
found no evidence to support the claim of OCA that
they were able to obtain the subject pleadings with
the consent of Atty. Morales, as in fact the latter
immediately filed an administrative case against the
persons who conducted the spot investigation,
questioning the validity of the investigation and
specifically invoking his constitutional right against
unreasonable search and seizure. And as there is no
other evidence, apart from the pleadings, retrieved
from the unduly confiscated personal computer of
Atty. Morales, to hold him administratively liable, the
Court had no choice but to dismiss the charges
against him for insufficiency of evidence.
The above case is to be distinguished from the case
at bar because, unlike the former which involved
a personal computer of a court employee, the
computer from which the personal files of herein
petitioner were retrieved is a government-issued
computer, hence government property the use of
which the CSC has absolute right to regulate and
monitor. Such relationship of the petitioner with the
item seized (office computer) and other relevant
factors and circumstances under American Fourth
Amendment jurisprudence, notably the existence of
CSC MO 10, S. 2007 on Computer Use Policy, failed
to establish that petitioner had a reasonable
expectation of privacy in the office computer
assigned to him.
Having determined that the personal files copied
from the office computer of petitioner are admissible
in the administrative case against him, we now
proceed to the issue of whether the CSC was correct
in finding the petitioner guilty of the charges and
dismissing him from the service.
Well-settled is the rule that the findings of fact of
quasi-judicial agencies, like the CSC, are accorded
not only respect but even finality if such findings are
supported by substantial evidence. Substantial
evidence is such amount of relevant evidence which
a reasonable mind might accept as adequate to
support a conclusion, even if other equally
reasonable minds might conceivably opine
otherwise.[55]
The CSC based its findings on evidence consisting of
a substantial number of drafts of legal pleadings and
documents stored in his office computer, as well as
the sworn affidavits and testimonies of the witnesses
it presented during the formal investigation.
According to the CSC, these documents were
confirmed to be similar or exactly the same content-
wise with those on the case records of some cases
pending either with CSCRO No. IV, CSC-NCR or the
Commission Proper. There were also substantially
similar copies of those pleadings filed with the CA
and duly furnished the Commission. Further, the
CSC found the explanation given by petitioner, to the
effect that those files retrieved from his computer
hard drive actually belonged to his lawyer friends
Estrellado and Solosa whom he allowed the use of
his computer for drafting their pleadings in the cases
they handle, as implausible and doubtful under the
circumstances. We hold that the CSC's factual
finding regarding the authorship of the subject
pleadings and misuse of the office computer is well-
supported by the evidence on record, thus:
It is also striking to note that some of these
documents were in the nature of pleadings
responding to the orders, decisions or resolutions of
these offices or directly in opposition to them such
as a petition for certiorari or a m otion for
reconsideration of CSC Resolution. This indicates
that the author thereof knowingly and willingly
participated in the promotion or advancement of the
interests of parties contrary or antagonistic to the
Commission. Worse, the appearance in one of the
retrieved documents the phrase, "Eric N. Estr[e]llado,
Epal kulang ang bayad mo," lends plausibility to an
inference that the preparation or drafting of the legal
pleadings was pursued with less than a laudable
motivation. Whoever was responsible for these
documents was simply doing the same for the money
- a "legal mercenary" selling or purveying his
expertise to the highest bidder, so to speak.
Inevitably, the fact that these documents were
retrieved from the computer of Pollo raises the
presumption that he was the author thereof. This
is because he had a control of the said computer.
More significantly, one of the witnesses, Margarita
Reyes, categorically testified seeing a written copy of
one of the pleadings found in the case records lying
on the table of the respondent. This was the Petition
for Review in the case of Estrellado addressed to the
Court of Appeals. The said circumstances
indubitably demonstrate that Pollo was secretly
undermining the interest of the Commission, his
very own employer.
To deflect any culpability, Pollo would, however,
want the Commission to believe that the documents
were the personal files of some of his friends,
including one Attorney Ponciano Solosa, who
incidentally served as his counsel of record during
the formal investigation of this case. In fact, Atty.
Solosa himself executed a sworn affidavit to this
effect. Unfortunately, this contention of the
respondent was directly rebutted by the prosecution
witness, Reyes, who testified that during her entire
stay in the PALD, she never saw Atty. Solosa using
the computer assigned to the respondent. Reyes
more particularly stated that she worked in close
proximity with Pollo and would have known if Atty.
Solosa, whom she personally knows, was using the
computer in question. Further, Atty. Solosa himself
was never presented during the formal investigation
to confirm his sworn statement such that the same
constitutes self-serving evidence unworthy of weight complaint since Section 8 of CSC Resolution No. 99-
and credence. The same is true with the other 1936 (URACC) requires a verified complaint:
supporting affidavits, which Pollo submitted.
Rule II - Disciplinary Cases
At any rate, even admitting for a moment the said
SEC. 8. Complaint. - A complaint against a civil
contention of the respondent, it evinces the fact that
service official or employee shall not be given due
he was unlawfully authorizing private persons to use
course unless it is in writing and subscribed and
the computer assigned to him for official purpose,
sworn to by the complainant. However, in cases
not only once but several times gauging by the
initiated by the proper disciplining authority, the
number of pleadings, for ends not in conformity with
complaint need not be under oath.
the interests of the Commission. He was, in effect,
acting as a principal by indispensable
No anonymous complaint shall be entertained
cooperation...Or at the very least, he should be
unless there is obvious truth or merit to the
responsible for serious misconduct for repeatedly
allegation therein or supported by documentary or
allowing CSC resources, that is, the computer and
direct evidence, in which case the person complained
the electricity, to be utilized for purposes other than
of may be required to comment.
what they were officially intended.
xxxx
Further, the Commission cannot lend credence to
the posturing of the appellant that the line appearing
in one of the documents, "Eric N. Estrellado, Epal We need not belabor this point raised by petitioner.
kulang ang bayad mo," was a private joke between The administrative complaint is deemed to have been
the person alluded to therein, Eric N. Estrellado, and initiated by the CSC itself when Chairperson David,
his counsel, Atty. Solosa, and not indicative of after a spot inspection and search of the files stored
anything more sinister. The same is too preposterous in the hard drive of computers in the two divisions
to be believed. Why would such a statement appear adverted to in the anonymous letter -- as part of the
in a legal pleading stored in the computer assigned disciplining authority's own fact-finding investigation
to the respondent, unless he had something to do and information-gathering -- found a prima
with it?[56] facie case against the petitioner who was then
directed to file his comment. As this Court held
in Civil Service Commission v. Court of Appeals[57] --
Petitioner assails the CA in not ruling that the CSC
should not have entertained an anonymous
Under Sections 46 and 48 (1), Chapter 6, Subtitle A,
Book V of E.O. No. 292 and Section 8, Rule II of
Uniform Rules on Administrative Cases in the Civil
Service, a complaint may be initiated against a
civil service officer or employee by the
appropriate disciplining authority, even without
being subscribed and sworn to. Considering that
the CSC, as the disciplining authority for Dumlao,
filed the complaint, jurisdiction over Dumlao was
validly acquired. (Emphasis supplied.)
As to petitioner's challenge on the validity of CSC
OM 10, S. 2002 (CUP), the same deserves scant
consideration. The alleged infirmity due to the said
memorandum order having been issued solely by the
CSC Chair and not the Commission as a collegial
body, upon which the dissent of Commissioner
Buenaflor is partly anchored, was already explained
by Chairperson David in her Reply to the Addendum
to Commissioner Buenaflor's previous memo
expressing his dissent to the actions and disposition
of the Commission in this case. According to
Chairperson David, said memorandum order was in
fact exhaustively discussed, provision by provision in
the January 23, 2002 Commission Meeting,
attended by her and former Commissioners Erestain,
Jr. and Valmores. Hence, the Commission En
Banc at the time saw no need to issue a Resolution
for the purpose and further because the CUP being
for internal use of the Commission, the practice had
been to issue a memorandum order.[58] Moreover,
being an administrative rule that is merely internal
in nature, or which regulates only the personnel of
the CSC and not the public, the CUP need not be
published prior to its effectivity.[59]
In fine, no error or grave abuse of discretion was
committed by the CA in affirming the CSC's ruling
that petitioner is guilty of grave misconduct,
dishonesty, conduct prejudicial to the best interest
of the service, and violation of R.A. No. 6713. The
gravity of these offenses justified the imposition on
petitioner of the ultimate penalty of dismissal with
all its accessory penalties, pursuant to existing rules
and regulations.
WHEREFORE, the petition for review on certiorari
is DENIED. The Decision dated October 11, 2007
and Resolution dated February 29, 2008 of the
Court of Appeals in CA-G.R. SP No. 98224
are AFFIRMED.
With costs against the petitioner.
SO ORDERED.
Corona, C.J., Brion, Peralta, Perez, Mendoza,
Reyes, and Perlas-Bernabe, JJ., concur.
Carpio, J., see separate opinion.
Velasco, Jr., J., joins opinion of J. Bersamin.
Leonardo-De Castro and Abad, JJ., joins the
concurring and dissenting opinion of J. Bersamin.
Bersamin, J., please see concurring opinion and
dissenting opinion.
Del Castillo, J., No part.
Sereno, J., concur but share J. Carpio's concerns.