Ma. Virginia V. Remo vs.
The Honorable Secretary of Foreign Affairs WHEREFORE, premises considered, the petition is DENIED, and the
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 169202               March 5, 2010
MARIA VIRGINIA V. REMO, Petitioner,  Hence, this petition.
vs.
THE HONORABLE SECRETARY OF FOREIGN
AFFAIRS, Respondent.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review 1 of the 27 May 2005 Decision 2and
2 August 2005 Resolution3 of the Court of Appeals in CA-G.R. SP No.
87710. The Court of Appeals affirmed the decision of the Office of the
President, which in turn affirmed the decision of the Secretary of Foreign
Affairs denying petitioner’s request to revert to the use of her maiden
name in her replacement passport.
The Facts
Petitioner Maria Virginia V. Remo is a married Filipino citizen whose
Philippine passport was then expiring on 27 October 2000. Petitioner
being married to Francisco R. Rallonza, the following entries appear in her
passport: "Rallonza" as her surname, "Maria Virginia" as her given name,
and "Remo" as her middle name. Prior to the expiry of the validity of her
passport, petitioner, whose marriage still subsists, applied for the renewal
of her passport with the Department of Foreign Affairs (DFA) office in
Chicago, Illinois, U.S.A., with a request to revert to her maiden name and
surname in the replacement passport.
Petitioner’s request having been denied, Atty. Manuel Joseph R. Bretana
III, representing petitioner, wrote then Secretary of Foreign Affairs
Domingo Siason expressing a similar request.
On 28 August 2000, the DFA, through Assistant Secretary Belen F. Anota,
denied the request, stating thus:
This has reference to your letter dated 17 August 2000 regarding one Ms.
Maria Virginia V. Remo who is applying for renewal of her passport using
her maiden name.
This Office is cognizant of the provision in the law that it is not obligatory
for a married woman to use her husband’s name. Use of maiden name is
allowed in passport application only if the married name has not been
used in previous application. The Implementing Rules and Regulations for
Philippine Passport Act of 1996 clearly defines the conditions when a
woman applicant may revert to her maiden name, that is, only in cases of
annulment of marriage, divorce and death of the husband. Ms. Remo’s
case does not meet any of these conditions. 4 (Emphasis supplied)
Petitioner’s motion for reconsideration of the above-letter resolution was
denied in a letter dated 13 October 2000. 5
On 15 November 2000, petitioner filed an appeal with the Office of the
President.
On 27 July 2004, the Office of the President dismissed the appeal 6 and
ruled that Section 5(d) of Republic Act No. 8239 (RA 8239) or
the Philippine Passport Act of 1996 "offers no leeway for any other
interpretation than that only in case of divorce, annulment, or declaration
[of nullity] of marriage may a married woman revert to her maiden name
for passport purposes." The Office of the President further held that in
case of conflict between a general and special law, the latter will control
the former regardless of the respective dates of passage. Since the Civil
Code is a general law, it should yield to RA 8239.
On 28 October 2004, the Office of the President denied the motion for
reconsideration.7
Petitioner filed with the Court of Appeals a petition for review under Rule
43 of the Rules of Civil Procedure.
In its Decision of 27 May 2005, the Court of Appeals denied the petition
and affirmed the ruling of the Office of the President. The dispositive
portion of the Court of Appeals’ decision reads:
resolution dated July 27, 2004, and the order dated October 28, 2004 of
the Office of the President in O.P. Case No. 001-A-9344 are hereby
AFFIRMED.
SO ORDERED.8
Petitioner moved for reconsideration which the Court of Appeals denied in
its Resolution dated 2 August 2005.
The Court of Appeals’ Ruling
The Court of Appeals found no conflict between Article 370 of the Civil
Code9 and Section 5(d) of RA 8239.10 The Court of Appeals held that for
passport application and issuance purposes, RA 8239 limits the instances
when a married woman applicant may exercise the option to revert to the
use of her maiden name such as in a case of a divorce decree, annulment
or declaration of nullity of marriage. Since there was no showing that
petitioner's marriage to Francisco Rallonza has been annulled, declared
void or a divorce decree has been granted to them, petitioner cannot
simply revert to her maiden name in the replacement passport after she
had adopted her husband’s surname in her old passport. Hence, according
to the Court of Appeals, respondent was justified in refusing the request of
petitioner to revert to her maiden name in the replacement passport.
The Issue
The sole issue in this case is whether petitioner, who originally used her
husband’s surname in her expired passport, can revert to the use of her
maiden name in the replacement passport, despite the subsistence of her
marriage.
The Ruling of the Court
The petition lacks merit.
Title XIII of the Civil Code governs the use of surnames. In the case of a
married woman, Article 370 of the Civil Code provides:
ART. 370. A married woman may use:
(1) Her maiden first name and surname and add her husband’s
surname, or
(2) Her maiden first name and her husband's surname, or
(3) Her husband’s full name, but prefixing a word indicating that
she is his wife, such as "Mrs."
We agree with petitioner that the use of the word "may" in the above
provision indicates that the use of the husband’s surname by the wife is
permissive rather than obligatory. This has been settled in the case of
Yasin v. Honorable Judge Shari’a District Court. 11
In Yasin,12 petitioner therein filed with the Shari’a District Court a
"Petition to resume the use of maiden name" in view of the dissolution of
her marriage by divorce under the Code of Muslim Personal Laws of the
Philippines, and after marriage of her former husband to another woman.
In ruling in favor of petitioner therein, the Court explained that:
When a woman marries a man, she need not apply and/or seek judicial
authority to use her husband’s name by prefixing the word "Mrs." before
her husband’s full name or by adding her husband’s surname to her
maiden first name. The law grants her such right (Art. 370, Civil Code).
Similarly, when the marriage ties or vinculum no longer exists as in the
case of death of the husband or divorce as authorized by the Muslim Code,
the widow or divorcee need not seek judicial confirmation of the change in
her civil status in order to revert to her maiden name as use of her former
husband’s is optional and not obligatory for her (Tolentino, Civil Code, p.
725, 1983 ed.; Art. 373, Civil Code). When petitioner married her husband,
she did not change her but only her civil status. Neither was she required
to secure judicial authority to use the surname of her husband after the
marriage as no law requires it. (Emphasis supplied)
Clearly, a married woman has an option, but not a duty, to use the
surname of the husband in any of the ways provided by Article 370 of the
Civil Code.13 She is therefore allowed to use not only any of the three
names provided in Article 370, but also her maiden name upon marriage.
She is not prohibited from continuously using her maiden name once she
is married because when a woman marries, she does not change her name
but only her civil status. Further, this interpretation is in consonance with
the principle that surnames indicate descent. 14
In the present case, petitioner, whose marriage is still subsisting and who
opted to use her husband’s surname in her old passport, requested to
resume her maiden name in the replacement passport arguing that no law
prohibits her from using her maiden name. Petitioner cites Yasin as the
applicable precedent. However, Yasin is not squarely in point with this
case. Unlike in Yasin, which involved a Muslim divorcee whose former
husband is already married to another woman, petitioner’s marriage
remains subsisting. Another point, Yasin did not involve a request to
resume one’s maiden name in a replacement passport, but a petition to
resume one’s maiden name in view of the dissolution of one’s marriage.
the latter will control the former without regard to the respective dates of
passage.19
Moreover, petitioner’s theory of implied repeal must fail. Well-entrenched
is the rule that an implied repeal is disfavored. T he apparently conflicting
provisions of a law or two laws should be harmonized as much as possible,
so that each shall be effective. 20 For a law to operate to repeal another law,
the two laws must actually be inconsistent. The former must be so
repugnant as to be irreconcilable with the latter act. 21 This petitioner failed
to establish.

The law governing passport issuance is RA 8239 and the applicable
provision in this case is Section 5(d), which states:
Sec. 5. Requirements for the Issuance of Passport. — No passport shall be
issued to an applicant unless the Secretary or his duly authorized
representative is satisfied that the applicant is a Filipino citizen who has
complied with the following requirements: x x x
(d) In case of a woman who is married, separated, divorced or widowed or
whose marriage has been annulled or declared by court as void, a copy of
the certificate of marriage, court decree of separation, divorce or
annulment or certificate of death of the deceased spouse duly issued and
authenticated by the Office of the Civil Registrar General: Provided, That
in case of a divorce decree, annulment or declaration of marriage as void,
the woman applicant may revert to the use of her maiden name: Provided,
further, That such divorce is recognized under existing laws of the
Philippines; x x x (Emphasis supplied)
The Office of the Solicitor General (OSG), on behalf of the Secretary of
Foreign Affairs, argues that the highlighted proviso in Section 5(d) of RA
8239 "limits the instances when a married woman may be allowed to
revert to the use of her maiden name in her passport." These instances are
death of husband, divorce decree, annulment or nullity of marriage.
Significantly, Section 1, Article 12 of the Implementing Rules and
Regulations of RA 8239 provides:
The Court notes that petitioner would not have encountered any problems
in the replacement passport had she opted to continuously and
consistently use her maiden name from the moment she was married and
from the time she first applied for a Philippine passport. However,
petitioner consciously chose to use her husband’s surname before, in her
previous passport application, and now desires to resume her maiden
name. If we allow petitioner’s present request, definitely nothing prevents
her in the future from requesting to revert to the use of her husband’s
surname. Such unjustified changes in one's name and identity in a
passport, which is considered superior to all other official
documents,22 cannot be countenanced. Otherwise, undue confusion and
inconsistency in the records of passport holders will arise. Thus, for
passport issuance purposes, a married woman, such as petitioner, whose
marriage subsists, may not change her family name at will.
The acquisition of a Philippine passport is a privilege. The law recognizes
the passport applicant’s constitutional right to travel. However, the State
is also mandated to protect and maintain the integrity and credibility of
the passport and travel documents proceeding from it 23 as a Philippine
passport remains at all times the property of the
Government. The holder is merely a possessor of the passport as long as
it is valid and the same may not be surrendered to any person or entity
other than the government or its representative. 24
As the OSG correctly pointed out:

The passport can be amended only in the following cases: [T]he issuance of passports is impressed with public interest. A passport is
an official document of identity and nationality issued to a person
a) Amendment of woman’s name due to marriage; intending to travel or sojourn in foreign countries. It is issued by the
Philippine government to its citizens requesting other governments to
allow its holder to pass safely and freely, and in case of need, to give
b) Amendment of woman’s name due to death of spouse,
him/her aid and protection. x x x
annulment of marriage or divorce initiated by a foreign spouse;
or
Viewed in the light of the foregoing, it is within respondent’s competence
to regulate any amendments intended to be made therein, including the
c) Change of surname of a child who is legitimated by virtue of a
denial of unreasonable and whimsical requests for amendments such as in
subsequent marriage of his parents.
the instant case.25
Since petitioner’s marriage to her husband subsists, placing her case
WHEREFORE, we DENY the petition. We AFFIRM the 27 May 2005
outside of the purview of Section 5(d) of RA 8239 (as to the instances
Decision and 2 August 2005 Resolution of the Court of Appeals in CA-G.R.
when a married woman may revert to the use of her maiden name), she
SP No. 87710.
may not resume her maiden name in the replacement passport. 15 This
prohibition, according to petitioner, conflicts with and, thus, operates as
an implied repeal of Article 370 of the Civil Code. SO ORDERED.

Petitioner is mistaken. The conflict between Article 370 of the Civil Code
and Section 5(d) of RA 8239 is more imagined than real. RA 8239,
including its implementing rules and regulations, does not prohibit a
married woman from using her maiden name in her passport. In fact, in
recognition of this right, the DFA allows a married woman who applies for
a passport for the first time to use her maiden name. Such an applicant is
not required to adopt her husband's surname. 16

In the case of renewal of passport, a married woman may either adopt her
husband’s surname or continuously use her maiden name. If she chooses
to adopt her husband’s surname in her new passport, the DFA additionally
requires the submission of an authenticated copy of the marriage
certificate. Otherwise, if she prefers to continue using her maiden name,
she may still do so. The DFA will not prohibit her from continuously using
her maiden name.17

However, once a married woman opted to adopt her husband’s surname in

her passport, she may not revert to the use of her maiden name, except in
the cases enumerated in Section 5(d) of RA 8239. These instances are: (1)
death of husband, (2) divorce, (3) annulment, or (4) nullity of marriage.
Since petitioner’s marriage to her husband subsists, she may not resume
her maiden name in the replacement passport. Otherwise stated, a
married woman's reversion to the use of her maiden name must be based
only on the severance of the marriage.

Even assuming RA 8239 conflicts with the Civil Code, the provisions of RA
8239 which is a special law specifically dealing with passport issuance
must prevail over the provisions of Title XIII of the Civil Code which is the
general law on the use of surnames. A basic tenet in statutory construction
is that a special law prevails over a general law, 18 thus:

[I]t is a familiar rule of statutory construction that to the extent of any

necessary repugnancy between a general and a special law or provision,

People of the Philippines vs. Joel Yatar alias Kawit
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 150224             May 19, 2004
PEOPLE OF THE PHILIPPINES, appellee,  At 9:00 that evening, SP04 Melchor Faniswa received a report that a dead
vs.
JOEL YATAR alias "KAWIT", appellant.
DECISION
PER CURIAM:
On automatic review is a Decision of the Regional Trial Court of Bulanao,
Tabuk, Kalinga, Branch 25, sentencing appellant Joel Yatar alias "Kawit"
to Death for the special complex crime of Rape with Homicide, and
ordering him to pay the heirs of the victim, Kathylyn D. Uba, civil
indemnity in the amount of P75,000.00, moral damages in the amount of
P200,000.00, exemplary damages in the amount of P50,000.00, actual
damages in the amount of P186,410.00, or total damages amounting to
P511,410.00, and costs of litigation. 1
Appellant was charged with Rape with Homicide under the following
Information:
That on or about the afternoon of June 30, 1998 at Liwan West,
Rizal, Kalinga, and within the jurisdiction of this Honorable
Court, the accused, in order to have carnal knowledge of a
certain KATHYLYN D. UBA, did then and there wilfully,
unlawfully, and feloniously, and with use of a bladed weapon
stab the latter inflicting upon her fatal injuries resulting in the
death of the victim, and on the occasion or by reason thereof,
accused, wilfully, unlawfully and feloniously, and by means of
force and violence had carnal knowledge of said Kathlyn D. Uba
against her will.
CONTRARY TO LAW.2
The facts are:
On June 30, 1998, at 8:30 a.m., Judilyn Pas-a and her first
cousin, seventeen year old Kathylyn Uba, were on the ground
floor of the house of their grandmother, Isabel Dawang, in Liwan
West, Rizal, Kalinga. They were talking about the letter sent by
their aunt, Luz Yatar, to her husband, appellant Joel Yatar,
through Kathylyn’s friend, Cecil Casingan. Kathylyn handed the
letter to appellant earlier that morning.3
At 9:00 a.m. of the same day, Judilyn and her husband, together with
Isabel Dawang, left for their farm in Nagbitayan some two kilometers
away. Before Judilyn and her husband departed, Kathylyn told Judilyn
that she intended to go to Tuguegarao, but in the event she would not be
able to leave, she would just stay home and wash her clothes or go to the
house of their aunt, Anita Wania. Kathylyn was left alone in the house. 4
Later, at 10:00 a.m., Anita Wania and fifteen year old Beverly Deneng
stopped by the house of Isabel. They saw appellant at the back of the
house. They went inside the house through the back door of the kitchen to
have a drink of water. Anita asked appellant what he was doing there, and
he replied that he was getting lumber to bring to the house of his mother. 5
At 12:30 p.m., while Judilyn was on her way home from Nagbitayan, she
saw appellant descend the ladder from the second floor of the house of
Isabel Dawang and run towards the back of the house. 6 She later noticed
appellant, who was wearing a white shirt with collar and black pants,
pacing back and forth at the back of the house. She did not find this
unusual as appellant and his wife used to live in the house of Isabel
Dawang.7
At 1:30 p.m., Judilyn again saw appellant when he called her near her
house. This time, he was wearing a black shirt without collar and blue
pants. Appellant told her that he would not be getting the lumber he had
stacked, and that Isabel could use it. She noticed that appellant’s eyes were
"reddish and sharp." Appellant asked her where her husband was as he
had something important to tell him. Judilyn’s husband then arrived and
appellant immediately left and went towards the back of the house of
Isabel.8
In the evening of the same day, Isabel Dawang arrived home and found
that the lights in her house were off. She called out for her granddaughter,
Kathylyn Uba. The door to the ground floor was open. She noticed that the
water container she asked Kathylyn to fill up earlier that day was still
empty. She went up the ladder to the second floor of the house to see if
Kathylyn was upstairs. She found that the door was tied with a rope, so she
went down to get a knife. While she groped in the dark, she felt a lifeless
body that was cold and rigid.9
Isabel moved her hand throughout the entire body. She found out that it
was the naked body of her granddaughter, Kathylyn. She called for help.
Judilyn and her husband arrived. Isabel was given a flashlight by Judilyn.
She focused the beam and saw Kathylyn sprawled on the floor naked, with
her intestines protruding out of her stomach. Meanwhile, neighbors had
arrived to offer assistance. A daughter of Isabel, Cion, called the police. 10
woman was found in Isabel Dawang’s house. Together with fellow police
officers, Faniswa went to the house and found the naked body of Kathylyn
Uba with multiple stab wounds.
The people in the vicinity informed the police officers that appellant was
seen going down the ladder of the house of Isabel Dawang at
approximately 12:30 p.m.
The police discovered the victim’s panties, brassiere, denim pants, bag and
sandals beside her naked cadaver at the scene of the crime, and they found
a dirty white shirt splattered with blood within 50 meters from the house
of Isabel.
When questioned by the police authorities, appellant denied any
knowledge of Kathylyns’s death, 11 however, he was placed under police
custody.
On July 3, 1998, appellant asked the police officers if he could relieve
himself. Police Officer Cesar Abagan accompanied him to the toilet around
seven to ten meters away from the police station. They suddenly heard
someone shout in the Ilocano dialect, "Nagtaray!" (He’s running away!).
Police Officer Orlando Manuel exited through the gate of the Police
Station and saw appellant running away. Appellant was approximately 70
meters away from the station when Police Officer Abagan recaptured
him.12 He was charged with Rape with Homicide. When he was arraigned
on July 21, 1998, appellant pleaded "not guilty."
After trial, appellant was convicted of the crime of Rape with Homicide,
defined and penalized under Article 266-A of the Revised Penal Code, as
amended by R.A. 8353, otherwise known as the Anti-Rape Law of 1997,
and was accordingly, sentenced to Death.
Hence, this automatic review pursuant to Article 47 of the Revised Penal
Code, as amended. In his Brief, appellant assigns the following errors:
I
THE TRIAL COURT GRAVELY ERRED IN GIVING MUCH
WEIGHT TO THE EVIDENCE PRESENTED BY THE
PROSECUTION NOTWITHSTANDING THEIR
DOUBTFULNESS.
II
THE TRIAL COURT SERIOUSLY ERRED IN NOT
ACQUITTING THE ACCUSED-APPELLANT OF THE SERIOUS
CRIME CHARGED DUE TO REASONABLE DOUBT.
Appellant’s contentions are unmeritorious.
The issue regarding the credibility of the prosecution witnesses should be
resolved against appellant. This Court will not interfere with the judgment
of the trial court in determining the credibility of witnesses unless there
appears in the record some fact or circumstance of weight and influence
which has been overlooked or the significance of which has been
misinterpreted.13 Well-entrenched is the rule that the findings of the trial
court on credibility of witnesses are entitled to great weight on appeal
unless cogent reasons are presented necessitating a reexamination if not
the disturbance of the same; the reason being that the former is in a better
and unique position of hearing first hand the witnesses and observing
their deportment, conduct and attitude. 14Absent any showing that the trial
judge overlooked, misunderstood, or misapplied some facts or
circumstances of weight which would affect the result of the case, the trial
judge’s assessment of credibility deserves the appellate court’s highest
respect.15 Where there is nothing to show that the witnesses for the
prosecution were actuated by improper motive, their testimonies are
entitled to full faith and credit.16
The weight of the prosecution’s evidence must be appreciated in light of
the well-settled rule which provides that an accused can be convicted even
if no eyewitness is available, as long as sufficient circumstantial evidence
is presented by the prosecution to prove beyond doubt that the accused
committed the crime.17
Reference to the records will show that a total of eleven (11) wounds, six
(6) stab and five (5) incised, were found on the victim’s abdomen and
back, causing a portion of her small intestines to spill out of her
body.18Rigor mortis of the vicitm’s body was complete when Dr. Bartolo
examined the victim at 9:00 a.m. on July 1, 1998. According to him, the
time of death may be approximated from between nine (9) to twelve (12)
hours prior to the completion of rigor mortis.19 In other words, the
estimated time of death was sometime between 9:00 a.m. to 12:00 p.m. on
June 30, 1998. This was within the timeframe within which the lone
presence of appellant lurking in the house of Isabel Dawang was testified
to by witnesses.
It should also be noted that, although the Postmortem Report by the
attending physician, Dr. Pej Evan C. Bartolo, indicates that no hymenal
lacerations, contusions or hematoma were noted on the victim, 20 Dr.
Bartolo discovered the presence of semen in the vaginal canal of the
victim. During his testimony, Dr. Bartolo stated that the introduction of
semen into the vaginal canal could only be done through sexual
intercourse with the victim. 21 In addition, it is apparent from the pictures
submitted by the prosecution that the sexual violation of the victim was
manifested by a bruise and some swelling in her right forearm indicating
resistance to the appellant’s assault on her virtue. 22
Significantly, subsequent testing showed that the Deoxyribonucleic acid
(DNA) of the sperm specimen from the vagina of the victim was identical
the semen to be that of appellant’s gene type.
DNA is a molecule that encodes the genetic information in all living
organisms.23 A person’s DNA is the same in each cell and it does not
change throughout a person’s lifetime; the DNA in a person’s blood is the
same as the DNA found in his saliva, sweat, bone, the root and shaft of
hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells. 24Most
importantly, because of polymorphisms in human genetic structure, no
two individuals have the same DNA, with the notable exception of
identical twins.25
DNA print or identification technology has been advanced as a uniquely
effective means to link a suspect to a crime, or to exonerate a wrongly
accused suspect, where biological evidence has been left. For purposes of
criminal investigation, DNA identification is a fertile source of both
inculpatory and exculpatory evidence. It can assist immensely in effecting
a more accurate account of the crime committed, efficiently facilitating the
conviction of the guilty, securing the acquittal of the innocent, and
ensuring the proper administration of justice in every case.
DNA evidence collected from a crime scene can link a suspect to a crime or
eliminate one from suspicion in the same principle as fingerprints are
used.26 Incidents involving sexual assault would leave biological evidence
such as hair, skin tissue, semen, blood, or saliva which can be left on the
victim’s body or at the crime scene. Hair and fiber from clothing, carpets,
bedding, or furniture could also be transferred to the victim’s body during
the assault.27 Forensic DNA evidence is helpful in proving that there was
physical contact between an assailant and a victim. If properly collected
from the victim, crime scene or assailant, DNA can be compared with
known samples to place the suspect at the scene of the crime. 28
The U.P. National Science Research Institute (NSRI), which conducted the
DNA tests in this case, used the Polymerase chain reaction (PCR)
amplification method by Short Tandem Repeat (STR) analysis. With PCR
testing, tiny amounts of a specific DNA sequence can be copied
exponentially within hours. Thus, getting sufficient DNA for analysis has
become much easier since it became possible to reliably amplify small
samples using the PCR method.
In assessing the probative value of DNA evidence, courts should
consider, inter alia, the following factors: how the samples were collected,
how they were handled, the possibility of contamination of the samples,
the procedure followed in analyzing the samples, whether the proper
standards and procedures were followed in conducting the tests, and the
qualification of the analyst who conducted the tests. 29
In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly
qualified by the prosecution as an expert witness on DNA print or
identification techniques.30 Based on Dr. de Ungria’s testimony, it was
determined that the gene type and DNA profile of appellant are identical
to that of the extracts subject of examination. 31 The blood sample taken
from the appellant showed that he was of the following gene types: vWA
15/19, TH01 7/8, DHFRP2 9/10 and CSF1PO 10/11, which are identical
with semen taken from the victim’s vaginal canal. 32 Verily, a DNA match
exists between the semen found in the victim and the blood sample given
by the appellant in open court during the course of the trial.
Admittedly, we are just beginning to integrate these advances in science
and technology in the Philippine criminal justice system, so we must be
cautious as we traverse these relatively uncharted waters. Fortunately, we
can benefit from the wealth of persuasive jurisprudence that has
developed in other jurisdictions. Specifically, the prevailing doctrine in the
U.S. has proven instructive.
In Daubert v. Merrell Dow,33 it was ruled that pertinent evidence based on
scientifically valid principles could be used as long as it was relevant and
reliable. Judges, under Daubert, were allowed greater discretion over
which testimony they would allow at trial, including the introduction of
new kinds of scientific techniques. DNA typing is one such novel
procedure.
Under Philippine law, evidence is relevant when it relates directly to a fact
in issue as to induce belief in its existence or non-existence. 34Applying
the Daubert test to the case at bar, the DNA evidence obtained through
PCR testing and utilizing STR analysis, and which was appreciated by the
court a quo is relevant and reliable since it is reasonably based on
scientifically valid principles of human genetics and molecular biology.
Independently of the physical evidence of appellant’s semen found in the
victim’s vaginal canal, the trial court appreciated the following
circumstantial evidence as being sufficient to sustain a conviction beyond
reasonable doubt: (1) Appellant and his wife were living in the house of
Isabel Dawang together with the victim, Kathylyn Uba; (2) In June 1998,
appellant’s wife left the house because of their frequent quarrels; (3)
Appellant received from the victim, Kathylyn Uba, a letter from his
estranged wife in the early morning on June 30, 1998; (4) Appellant was
seen by Apolonia Wania and Beverly Denneng at 1:00 p.m. of June 30,
1998 near the kitchen of the house of Isabel Dawang, acting strangely and
wearing a dirty white shirt with collar; (5) Judilyn Pas-a saw appellant
going down the ladder of the house of Isabel at 12:30 p.m., wearing a dirty
white shirt, and again at 1:30 p.m., this time wearing a black shirt; (6)
Appellant hurriedly left when the husband of Judilyn Pas-a was
approaching; (7) Salmalina Tandagan saw appellant in a dirty white shirt
coming down the ladder of the house of Isabel on the day Kathylyn Uba
was found dead; (8) The door leading to the second floor of the house of
Isabel Dawang was tied by a rope; (9) The victim, Kathylyn Uba, lay naked
in a pool of blood with her intestines protruding from her body on the
second floor of the house of Isabel Dawang, with her stained pants, bra,
underwear and shoes scattered along the periphery; (10) Laboratory
examination revealed sperm in the victim’s vagina (Exhibit "H" and "J");
(11) The stained or dirty white shirt found in the crime scene was found to
be positive with blood; (12) DNA of slide, Exhibit "J" and "H", compared
with the DNA profile of the appellant are identical; and (13) Appellant
escaped two days after he was detained but was subsequently
apprehended, such flight being indicative of guilt. 35
Circumstantial evidence, to be sufficient to warrant a conviction, must
form an unbroken chain which leads to a fair and reasonable conclusion
that the accused, to the exclusion of others, is the perpetrator of the crime.
To determine whether there is sufficient circumstantial evidence, three
requisites must concur: (1) there is more than one circumstance; (2) facts
on which the inferences are derived are proven; and (3) the combination
of all the circumstances is such as to produce a conviction beyond
reasonable doubt.36
In an attempt to exclude the DNA evidence, the appellant contends that
the blood sample taken from him as well as the DNA tests were conducted
in violation of his right to remain silent as well as his right against self-
incrimination under Secs. 12 and 17 of Art. III of the Constitution.
This contention is untenable. The kernel of the right is not against all
compulsion, but against testimonial compulsion. 37 The right against self-
incrimination is simply against the legal process of extracting from the lips
of the accused an admission of guilt. It does not apply where the evidence
sought to be excluded is not an incrimination but as part of object
evidence.
We ruled in People v. Rondero38 that although accused-appellant insisted
that hair samples were forcibly taken from him and submitted to the
National Bureau of Investigation for forensic examination, the hair
samples may be admitted in evidence against him, for what is proscribed
is the use of testimonial compulsion or any evidence communicative in
nature acquired from the accused under duress.
Hence, a person may be compelled to submit to fingerprinting,
photographing, paraffin, blood and DNA, as there is no testimonial
compulsion involved. Under People v. Gallarde,39 where immediately after
the incident, the police authorities took pictures of the accused without the
presence of counsel, we ruled that there was no violation of the right
against self-incrimination. The accused may be compelled to submit to a
physical examination to determine his involvement in an offense of which
he is accused.
It must also be noted that appellant in this case submitted himself for
blood sampling which was conducted in open court on March 30, 2000, in
the presence of counsel.
Appellant further argues that the DNA tests conducted by the prosecution
against him are unconstitutional on the ground that resort thereto is
tantamount to the application of an ex-post facto law.
This argument is specious. No ex-post facto law is involved in the case at
bar. The science of DNA typing involves the admissibility, relevance and
reliability of the evidence obtained under the Rules of Court. Whereas
an ex-post facto law refers primarily to a question of law, DNA profiling
requires a factual determination of the probative weight of the evidence
presented.
Appellant’s twin defense of denial and alibi cannot be sustained. The
forensic DNA evidence and bloodied shirt, notwithstanding the eyewitness
accounts of his presence at Isabel Dawang’s house during the time when
the crime was committed, undeniably link him to the June 30, 1998
incident. Appellant did not demonstrate with clear and convincing
evidence an impossibility to be in two places at the same time, especially
in this case where the two places are located in the same barangay. 40 He
lives within a one hundred (100) meter radius from the scene of the crime,
and requires a mere five minute walk to reach one house from the other.
This fact severely weakens his alibi.
As to the second assignment of error, appellant asserts that the court a
quo committed reversible error in convicting him of the crime charged. He
alleges that he should be acquitted on reasonable doubt.
Appellant’s assertion cannot be sustained.
Generally, courts should only consider and rely upon duly established
evidence and never on mere conjectures or suppositions. The legal
relevancy of evidence denotes "something more than a minimum of
probative value," suggesting that such evidentiary relevance must contain
a "plus value."41 This may be necessary to preclude the trial court from
being satisfied by matters of slight value, capable of being exaggerated by
prejudice and hasty conclusions. Evidence without "plus value" may be
logically relevant but not legally sufficient to convict. It is incumbent upon
the trial court to balance the probative value of such evidence against the
likely harm that would result from its admission.
the penis into the lips of the female genital organ, even without rupture or
laceration of the hymen, suffices for conviction of rape. 55 The strength and
dilatability of the hymen are invariable; it may be so elastic as to stretch
without laceration during intercourse. Absence of hymenal lacerations
does not disprove sexual abuse especially when the victim is of tender
age.56
In the case at bar, appellant is the husband of the victim’s aunt. He is
seven years older than the victim Kathylyn Uba. Before he and his wife
separated, appellant lived in the house of his mother-in-law, together with
the victim and his wife. After the separation, appellant moved to the house
of his parents, approximately one hundred (100) meters from his mother-
in-law’s house. Being a relative by affinity within the third civil degree, he
is deemed in legal contemplation to have moral ascendancy over the
victim.
Under Article 266-B of the Revised Penal Code, the penalty of death is
imposed when by reason or on the occasion of the rape, homicide is
committed. Although three (3) Justices of this Court maintain their
position that R.A. 7659 is unconstitutional insofar as it prescribes the
death penalty, they nevertheless submit to the ruling of the majority that
the law is not unconstitutional, and that the death penalty can be lawfully
imposed in the case at bar.
As to damages, civil indemnity ex delicto of P100,000.00, 57 actual
damages incurred by the family of the victim that have been proved at the
trial amounting to P93,190.00, 58 and moral damages of
P75,000.0059should be awarded in the light of prevailing law and
jurisprudence. Exemplary damages cannot be awarded as part of the civil
liability since the crime was not committed with one or more aggravating
circumstances.60

The judgment in a criminal case can be upheld only when there is relevant WHEREFORE, in view of the foregoing, the Decision of the RTC of
evidence from which the court can properly find or infer that the accused Bulanao, Tabuk, Kalinga, Branch 25 in Criminal Case No. 35-98,
is guilty beyond reasonable doubt. Proof beyond reasonable doubt sentencing appellant Joel Yatar alias "Kawit" to Death for the special
requires moral certainty of guilt in order to sustain a conviction. Moral complex crime of Rape with Homicide is AFFIRMED with
certainty is that degree of certainty that convinces and directs the the MODIFICATION that he be ORDERED to pay the family of the
understanding and satisfies the reason and judgment of those who are victim Kathylyn Uba civil indemnity ex delicto in the amount of
bound to act conscientiously upon it. It is certainty beyond reasonable P100,000.00, P93,190.00 in actual damages and P75,000.00 in moral
doubt.42 This requires that the circumstances, taken together, should be of damages. The award of exemplary damages is DELETED.
a conclusive nature and tendency; leading, on the whole, to a satisfactory
conclusion that the accused, and no one else, committed the offense Upon the finality of this Decision and in accordance with Art. 83 of the
charged.43 In view of the totality of evidence appreciated thus far, we rule Revised Penal Code, as amended by Sec. 25 of Rep. Act No. 7659, let the
that the present case passes the test of moral certainty. records of this case be forthwith forwarded to the President of the
Philippines for the possible exercise of the pardoning power.
However, as a matter of procedure, and for the purpose of meeting the
requirement of proof beyond reasonable doubt, motive is essential for Costs de oficio.
conviction when there is doubt as to the identity of the culprit. 44
SO ORDERED.
Pertinently, it must be noted that Judilyn Pas-a, first cousin of the victim,
testified that she last saw the victim alive in the morning of June 30, 1998
at the house of Isabel Dawang. 45 She witnessed the appellant running
down the stairs of Isabel’s house and proceeding to the back of the same
house.46 She also testified that a few days before the victim was raped and
killed, the latter revealed to her that "Joel Yatar attempted to rape her
after she came from the school." 47 The victim told Judilyn about the
incident or attempt of the appellant to rape her five days before her naked
and violated body was found dead in her grandmother’s house on June 25,
1998.48 In addition, Judilyn also testified that when her auntie Luz
Dawang Yatar, wife of appellant, separated from her husband, "this Joel
Yatar threatened to kill our family." 49 According to Judilyn, who was
personally present during an argument between her aunt and the
appellant, the exact words uttered by appellant to his wife in the Ilocano
dialect was, "If you leave me, I will kill all your family and your relatives x
x x."50 These statements were not contradicted by appellant.

Thus, appellant’s motive to sexually assault and kill the victim was evident
in the instant case. It is a rule in criminal law that motive, being a state of
mind, is established by the testimony of witnesses on the acts or
statements of the accused before or immediately after the commission of
the offense, deeds or words that may express it or from which his motive
or reason for committing it may be inferred. 51

Accordingly, we are convinced that the appellant is guilty beyond

reasonable doubt of the special complex crime of rape with homicide.
Appellant sexually assaulted Kathylyn Uba, and by reason or on the
occasion thereof, in order to conceal his lustful deed, permanently sealed
the victim’s lips by stabbing her repeatedly, thereby causing her untimely
demise.

The following are the elements constitutive of rape with homicide: (1) the
appellant had carnal knowledge of a woman; (2) carnal knowledge of a
woman was achieved by means of force, threat or intimidation; and (3) by
reason or on the occasion of such carnal knowledge by means of force,
threat or intimidation, appellant killed the woman. 52 However, in rape
committed by close kin, such as the victim’s father, step-father, uncle, or
the common-law spouse of her mother, it is not necessary that actual force
or intimidation be employed.53 Moral influence or ascendancy takes the
place of violence and intimidation. 54 The fact that the victim’s hymen is
intact does not negate a finding that rape was committed as mere entry by

The People of the Philippines vs. Victor Cogaed y Romana
G.R. No. 200334
THE PEOPLE OF THE PHILIPPINES, Respondent-Appellee,
- versus -
VICTOR COGAED y ROMANA, Accused-Appellant.
DECISION
LEONEN, J.:
The mantle of protection upon one's person and one's effects through
Article III, Section 2 of the Constitution is essential to allow citizens to
evolve their autonomy and, hence, to avail themselves of their right to
privacy. The alleged compromise with the battle against dangerous drugs
is more apparent than real. Often, the compromise is there because law
enforcers neglect to perform what could have been done to uphold the
Constitution as they pursue those who traffic this scourge of society.
Squarely raised in· this appeal
 is the admissibility of the evidence seized as a result of a warrantless
arrest. The police officers identified the alleged perpetrator through facts
that were not based on their personal knowledge. The information as to
the accused’s whereabouts was sent through a text message. The
accusedwho never acted suspicious was identified by a driver. The bag that
allegedly contained the contraband was required to be opened under
intimidating circumstances and without the accused having been fully
apprised of his rights. This was not a reasonable search within the
meaning of the Constitution. There was no reasonable suspicion that
would allow a legitimate "stop and frisk" action. The alleged waiver of
rights by the accused was not done intelligently, knowingly, and without
improper pressure or coercion.
The evidence, therefore, used against the accused should be excluded
consistent with Article III, Section 3 (2) of the Constitution. There being
no possible admissible evidence, the accused should be acquitted.
I  This was when SPO1 Taracatac approached them, and when SPO1
According to the prosecution, at about 6:00 a.m. of November 25, 2005,
Police Senior Inspector Sofronio Bayan (PSI Bayan) of the San Gabriel
Police Station in San Gabriel,La Union, "received a text message from an
unidentified civilian informer"
 that one Marvin Buya (also known as Marvin Bugat) "[would]be
transporting marijuana"
 from Barangay LunOy, San Gabriel, La Union to the Poblacion of San
Gabriel, La Union.
PSI Bayan organized checkpoints in order "to intercept the suspect."
PSI Bayan ordered SPO1 Jaime Taracatac, Jr. (SPO1 Taracatac), a member
of the San Gabriel Police, to set up a checkpoint in the waiting area of
passengers from San Gabriel bound for San Fernando City.
 A passenger jeepney from Barangay Lun-Oy arrived at SPO1 Taracatac’s
checkpoint.
 The jeepney driver disembarked and signalled to SPO1 Taracatac
indicating the two male passengers who were carrying marijuana.
 SPO1 Taracatac approached the two male passengers who were later
identified as Victor RomanaCogaed and Santiago Sacpa Dayao.
 Cogaed was carrying a blue bag and a sack while Dayao was holding a
yellow bag.
SPO1 Taracatac asked Cogaed and Dayao about the contents of their bags.
 Cogaed and Dayao told SPO1 Taracatac that they did not know since they
were transporting the bags as a favor for their barriomatenamed Marvin.
 After this exchange, Cogaed opened the blue bag, revealing three bricks of
what looked like marijuana.
 Cogaed then muttered, "nagloko daytoy nga Marvinen, kastoymet gayam
ti nagyanna,"which translates to "Marvin is a fool, this is what [is]
contained in the bag."
"SPO1 Taracatac arrested [Cogaed] and . . . Dayao and brought them to the
police station."
 Cogaed and Dayao "were still carrying their respective bags"
 inside the station.
While at the police station, the Chief of Police and Investigator PO3
Stanley Campit (PO3 Campit) requested Cogaed and Dayao to empty their
bags.
 Inside Cogaed’s sack was "four (4) rolled pieces of suspected marijuana
fruiting tops,"
 and inside Dayao’s yellow bag was a brick of suspected marijuana.
PO3 Campit prepared the suspected marijuana for laboratory testing.
PSI Bayan personally delivered the suspected marijuana to the PNP Crime
Laboratory.
 Forensic Chemical Officer Police Inspector Valeriano Panem Laya II
performed the tests and found that the objects obtained were indeed
marijuana.
 The marijuana collected from Cogaed’s blue bag had a total weight of
8,091.5 grams.
 The marijuana from Cogaed’s sack weighed 4,246.1 grams.
 The marijuana collected from Dayao’s bag weighed 5,092 grams.
 A total of 17,429.6 grams werecollected from Cogaed’s and Dayao’s bags.
According to Cogaed’s testimony during trial, he was at Balbalayan, La
Union, "waiting for a jeepney to take him"
 to the Poblacion of San Gabriel so he could buy pesticide.
 He boarded a jeepney and recognized Dayao, his younger brother’s friend.
 Upon arrival at the Poblacion of San Gabriel, Dayao and Cogaed alighted
from the jeepney.
 Dayao allegedly "asked for [Cogaed’s] help in carrying his things, which
included a travelling bag and a sack."
 Cogaed agreed because they were both going to the market.
Taracatac asked Cogaed what was inside the bags, Cogaed replied that he
did not know.
 SPO1 Taracatac then talked to Dayao, however, Cogaed was not privy to
their conversation.
 Thereafter, SPO1 Taracatac arrested Dayao and Cogaed and brought them
to the police station.
 These facts were corroborated by an eyewitness,Teodoro Nalpu-ot, who
was standing across the parking lot where Cogaed was apprehended.
At the police station, Cogaed said that "SPO1 Taracatac hit [him] on the
head."
 The bags were also opened, but Cogaed never knew what was inside.
It was only later when Cogaed learned that it was marijuana when he and
Dayao were charged with illegal possession of dangerous drugs under
Republic Act No. 9165.
 The information against them states:
That on or about the 25th day of November, 2005, in the Municipality of
San Gabriel, Province of La Union, and within the jurisdiction of this
Honorable Court, the above-named accused VICTOR COGAED Y
ROMANA and SANTIAGO DAYAO Y SACPA (who acted with
discernment) and JOHN DOE,conspiring, confederating and mutually
helping one another, did then there wilfully, unlawfully, feloniously and
knowingly, without being authorized by law, have in their control, custody
and possession dried marijuana, a dangerous drug, with a total weight of
seventeen thousand,four hundred twenty-nine and sixtenths (17, 429.6)
grams.
CONTRARY TO Section 11 (Possession of Dangerous Drugs), Article II, of
Republic Act No. 9165 (otherwise known as the "Comprehensive
Dangerous Drugs Act of 2002").
The case was raffled to Regional Trial Court, Branch 28 of San Fernando
City, La Union.
 Cogaed and Dayao pleaded not guilty.
 The case was dismissed against Dayao because he was only 14 years old at
that time and was exempt from criminal liability under the Juvenile
Justice and Welfare Act of 2006 or Republic Act No. 9344.
 Trial against Cogaed ensued. In a decision
 dated May 21, 2008, the Regional Trial Court found Cogaed guilty. The
dispositive portion of the decision states:
WHEREFORE, the Court finds accused Victor Cogaed y Romana GUILTY
beyond reasonable doubt for Violation of Section 11, Article II of Republic
Act No. 9165 (otherwise known as the "Comprehensive Dangerous Drugs
Act of 2002") and sentences him to suffer life imprisonment, and to pay a
fine of one million pesos (Php 1,000,000.00).
The trial court judge initiallyfound Cogaed’s arrest illegal considering that
"Cogaed at that time was not, at the moment of his arrest, committing a
crime nor was shown that hewas about to do so or that had just done so.
He just alighted from the passenger jeepney and there was no outward
indication that called for his arrest."
 Since the arrest was illegal, the warrantless search should also be
considered illegal.
However, the trial court stated that notwithstanding the illegality of the
arrest, Cogaed "waived his right to object to such irregularity"
 when "he did not protest when SPO1 Taracatac, after identifying himself,
asked him to open his bag."
Cogaed appealed
 the trial court’s decision.However, the Court of Appeals denied his appeal
and affirmed the trial court’s decision.
 The Court of Appeals found that Cogaed waived his right against
warrantless searches when "[w]ithout any prompting from SPO1
Taracatac, [he] voluntarily opened his bag."
 Hence, this appeal was filed.
The following errors were assigned by Cogaed in his appellant’s brief:
I
THE TRIAL COURT GRAVELY ERRED IN ADMITTING THE SEIZED
DANGEROUS DRUGS AS EVIDENCE AGAINST THE ACCUSED-
APPELLANT DESPITE BEING THE RESULT OF AN UNLAWFUL
WARRANTLESS SEARCH AND SEIZURE.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELLANT DESPITE THE ARRESTING OFFICER’S NON-
COMPLIANCE WITH THE REQUIREMENTS FOR THE PROPER
CUSTODY OF SEIZED DANGEROUS DRUGS UNDER REPUBLIC ACT
NO. 9165.
III
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELLANT DESPITE THE ARRESTING OFFICER’S
FAILURE TO PRESERVE THE INTEGRITY AND EVIDENTIARY VALUE
OF THE SEIZED DANGEROUS DRUGS.
For our consideration are the following issues: (1) whether there was a
valid search and seizure of marijuana as against the appellant; (2) whether
the evidence obtained through the search should be admitted; and (3)
whether there was enough evidence to sustain the conviction of the
accused.
In view of the disposition of this case, we deem that a discussion with
respect to the requirements on the chain of custody of dangerous drugs
unnecessary.
We find for the accused.
II
The right to privacy is a fundamental right enshrined by implication in our
Constitution. It has many dimensions. One of its dimensions is its
protection through the prohibition of unreasonable searches and seizures
in Article III, Section 2 of the Constitution:
The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determinedpersonally
by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
This provision requires that the court examine with care and diligence
whether searches and seizures are "reasonable." As a general rule,
searches conducted with a warrant that meets all the requirements of this
provision are reasonable. This warrant requires the existence of probable
cause that can only be determined by a judge.
 The existence of probable cause must be established by the judge after
asking searching questions and answers.
 Probable cause at this stage can only exist if there is an offense alleged to
be committed. Also, the warrant frames the searches done by the law
enforcers. There must be a particular description of the place and the
things to be searched.
However, there are instances when searches are reasonable even when
warrantless.
 In the Rules of Court, searchesincidental to lawful arrests are allowed
even without a separate warrant.
 This court has taken into account the "uniqueness of circumstances
involved including the purpose of the search or seizure, the presence or
absence of probable cause, the manner in which the search and seizure
was made, the place or thing searched, and the character of the articles
procured."
 The known jurisprudential instances of reasonable warrantless searches
and seizures are:
1. Warrantless search incidental to a lawful arrest. . . ;
2. Seizure of evidence in "plain view," . . . ;
3. Search of a moving vehicle. Highly regulated by the government, the
vehicle’s inherent mobility reduces expectation of privacy especially when
its transit in public thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant committed a criminal
activity;
4. Consentedwarrantless search;
5. Customs search;
6. Stop and frisk; and
7. Exigent and emergency circumstances.
 (Citations omitted)
III
One of these jurisprudential exceptionsto search warrants is "stop and
frisk". "Stop and frisk" searches are often confused with searches
incidental to lawful arrests under the Rules of Court.
 Searches incidental to a lawful arrest require that a crime be committed in
flagrante delicto, and the search conducted within the vicinity and
withinreach by the person arrested is done to ensure that there are no
weapons, as well as to preserve the evidence.
On the other hand, "stop and frisk"searches are conducted to prevent the
occurrence of a crime. For instance, the search in Posadas v. Court of
Appeals
 was similar "to a ‘stop and frisk’ situation whose object is either to
determine the identity of a suspicious individual or to maintain the status
quomomentarily while the police officer seeks to obtain more
information."
 This court stated that the "stop and frisk" search should be used "[w]hen
dealing with a rapidly unfolding and potentially criminal situation in the
city streets where unarguably there is no time to secure . . . a search
warrant."
The search involved in this case was initially a "stop and frisk" search, but
it did not comply with all the requirements of reasonability required by the
Constitution.
"Stop and frisk" searches (sometimes referred to as Terrysearches
) are necessary for law enforcement. That is, law enforcers should be given
the legal arsenal to prevent the commission of offenses. However, this
should be balanced with the need to protect the privacy of citizens in
accordance with Article III, Section 2 of the Constitution.
The balance lies in the concept of"suspiciousness" present in the situation
where the police officer finds himself or herself in. This may be
undoubtedly based on the experience ofthe police officer. Experienced
police officers have personal experience dealing with criminals and
criminal behavior. Hence, they should have the ability to discern — based
on facts that they themselves observe — whether an individual is acting in
a suspicious manner. Clearly, a basic criterion would be that the police
officer, with his or her personal knowledge, must observe the facts leading
to the suspicion of an illicit act.
In Manalili v. Court of Appeals,
 the police officers were initially informed about a place frequented by
people abusing drugs.
 When they arrived, one of the police officers saw a man with "reddish eyes
and [who was] walking in a swaying manner."
 The suspicion increased when the man avoided the police officers.
 These observations led the police officers to conclude that the man was
high on drugs.
 These were sufficient facts observed by the police officers "to stop[the]
petitioner [and] investigate."
In People v. Solayao,
 police officers noticed a man who appeared drunk.
 This man was also "wearing a camouflage uniform or a jungle suit."
 Upon seeing the police, the man fled.
 His flight added to the suspicion.
 After stopping him, the police officers found an unlicensed "homemade
firearm"
 in his possession.
 This court ruled that "[u]nder the circumstances, the government agents
could not possibly have procured a search warrant first."
 This was also a valid search.
In these cases, the police officers using their senses observed facts that led
to the suspicion. Seeing a man with reddish eyes and walking in a swaying
manner, based on their experience, is indicative of a person who uses
dangerous and illicit drugs. A drunk civilian in guerrilla wear is probably
hiding something as well.
The case of Cogaed was different. He was simply a passenger carrying a
bag and traveling aboarda jeepney. There was nothing suspicious,
moreover, criminal, about riding a jeepney or carrying a bag. The
assessment of suspicion was not made by the police officer but by the
jeepney driver. It was the driver who signalled to the police that Cogaed
was "suspicious."
This is supported by the testimony of SPO1 Taracatac himself:
COURT:
Q So you don’t know what was the content while it was still being carried
by him in the passenger jeep?
WITNESS:
A Not yet, Your Honor.
SPO1 Taracatac likewise stated:
COURT:
Q If the driver did not make a gesture pointing to the accused, did you
have reason to believe that the accused were carrying marijuana?
WITNESS:
A No, Your Honor.
The jeepney driver had to point toCogaed. He would not have been
identified by the police officers otherwise.
It is the police officer who should observe facts that would lead to a
reasonable degree of suspicion of a person. The police officer should not
adopt the suspicion initiated by another person. This is necessary to justify
that the person suspected be stopped and reasonably searched.
 Anything less than this would be an infringementupon one’s basic right to
security of one’s person and effects.
IV
Normally, "stop and frisk" searches do not give the law enforcer an
opportunity to confer with a judge to determine probable cause. In
Posadas v. Court of Appeals,
 one of the earliest cases adopting the "stop and frisk" doctrine in
Philippine jurisprudence, this court approximatedthe suspicious
circumstances as probable cause:
The probable causeis that when the petitioner acted suspiciously and
attempted to flee with the buri bag there was a probable cause that he was
concealing something illegal in the bag and it was the right and duty of the
police officers to inspect the same.
 (Emphasis supplied)
For warrantless searches, probable cause was defined as "a reasonable
ground of suspicionsupported by circumstances sufficiently strong in
themselves to warrant a cautious man to believe that the person accused is
guilty of the offense with which he is charged."
Malacat v. Court of Appeals
 clarifies the requirement further. It does not have to be probable
cause,but it cannot be mere suspicion.
 It has to be a "genuine reason"
 to serve the purposes of the "stop and frisk" exception:
Other notable points of Terryare that while probable cause is not required
to conduct a "stop and frisk," it nevertheless holds that mere suspicion or a
hunch will not validate a "stop and frisk." A genuine reason must exist, in
light of the police officer’s experience and surrounding conditions, to
warrant the belief that the person detained has weapons concealed about
him.
 (Emphasis supplied, footnotes omitted)
In his dissent for Esquillo v. People,
 Justice Bersamin reminds us that police officers must not rely on a single
suspicious circumstance.
There should be "presence of more than oneseemingly innocent activity,
which, taken together, warranted a reasonable inference of criminal
activity."
 The Constitution prohibits "unreasonable searches and seizures."
 Certainly, reliance on only one suspicious circumstance or none at all will
not result in a reasonable search.
There was not a single suspicious circumstance in this case, and there was
no approximation for the probable cause requirement for warrantless
arrest. The person searched was noteven the person mentioned by the
informant. The informant gave the name of Marvin Buya, and the person
searched was Victor Cogaed. Even if it was true that Cogaed responded by
saying that he was transporting the bag to Marvin Buya, this still remained
only as one circumstance. This should not have been enough reason to
search Cogaed and his belongings without a valid search warrant.
V
Police officers cannot justify unbridled searches and be shielded by this
exception, unless there is compliance with the "genuine reason"
requirement and that the search serves the purpose of protecting the
public. As stated in Malacat:
[A] "stop-and-frisk" serves a two-fold interest: (1) the general interest of
effective crime prevention and detection, which underlies the recognition
that a police officer may, under appropriate circumstances and in an
appropriate manner, approach a person for purposes of investigating
possible criminal behavior even without probable cause; and (2) the more
pressing interest of safety and self-preservationwhich permit the police
officer to take steps to assure himself that the person with whom he deals
is not armed with a deadly weapon that could unexpectedly and fatally be
used against the police officer.
(Emphasis supplied)
The "stop and frisk" searchwas originally limited to outer clothing and for
the purpose of detecting dangerous weapons.
 As in Manalili,
jurisprudence also allows "stop and frisk" for cases involving dangerous
drugs.
The circumstances of thiscase are analogous to People v. Aruta.
 In that case, an informant told the police that a certain "Aling Rosa"
would be bringing in drugs from Baguio City by bus.
 At the bus terminal, the police officers prepared themselves.
 The informant pointed at a woman crossing the street
 and identified her as "Aling Rosa."
The police apprehended "Aling Rosa," and they alleged that she allowed
them to look inside her bag.
 The bag contained marijuana leaves.
In Aruta, this court found that the search and seizure conducted was
illegal.
 There were no suspicious circumstances that preceded Aruta’s arrest and
the subsequent search and seizure.
 It was only the informant that prompted the police to apprehend her.
 The evidence obtained was not admissible because of the illegal search.
Consequently, Aruta was acquitted.
Arutais almost identical to this case, except that it was the jeepney driver,
not the police’s informant, who informed the police that Cogaed was
"suspicious."
The facts in Arutaare also similar to the facts in People v. Aminnudin.
Here, the National Bureau ofInvestigation (NBI) acted upon a tip, naming
Aminnudin as somebody possessing drugs.
 The NBI waited for the vessel to arrive and accosted Aminnudin while he
was disembarking from a boat.
 Like in the case at bar, the NBI inspected Aminnudin’s bag and found
bundles of what turnedout to be marijuana leaves.
 The court declared that the searchand seizure was illegal.
 Aminnudin was acquitted.
People v. Chua
 also presents almost the same circumstances. In this case, the police had
been receiving information that the accused was distributing drugs in
"different karaoke bars in Angeles City."
 One night, the police received information that thisdrug dealer would be
dealing drugs at the Thunder Inn Hotel so they conducted a stakeout.
A car "arrived and parked"
 at the hotel.
The informant told the police that the man parked at the hotel was dealing
drugs.
 The man alighted from his car.
 He was carrying a juice box.
 The police immediately apprehended him and discovered live
ammunition and drugs in his person and in the juice box he was holding.
Like in Aruta, this court did not find anything unusual or suspicious about
Chua’s situation when the police apprehended him and ruled that "[t]here
was no valid‘stop-and-frisk’."
VI
None of the other exceptions to warrantless searches exist to allow the
evidence to be admissible.The facts of this case do not qualify as a search
incidental to a lawful arrest.
Rule 126, Section 13 of the Rules of Court allows for searches incidental to
a lawful arrest. For there to be a lawful arrest, there should be either a
warrant of arrest or a lawful warrantless arrest as enumerated in Rule 113,
Section 5 of the Rules of Court:
Section 5. Arrest without warrant; when lawful. - A peace officer or a
private person may, withouta warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
The apprehension of Cogaed was not effected with a warrant of arrest.
None of the instances enumerated in Rule 113, Section 5 of the Rules of
Court were present whenthe arrest was made. At the time of his
apprehension, Cogaed has not committed, was not committing, or was
about to commit a crime. As in People v. Chua, for a warrantless arrest of
in flagrante delictoto be affected, "two elements must concur: (1) the
person to bearrested must execute anovert act indicating that he has just
committed, is actually committing, or is attempting to commit a crime;
and (2) such overt act is done inthe presence or within the view of the
arresting officer."
 Both elements were missing when Cogaed was arrested.
 There were no overt acts within plain view of the police officers that
suggested that Cogaed was in possession of drugs at that time.
Also, Cogaed was not an escapee prisoner that time; hence, he could not
have qualified for the last allowable warrantless arrest.
VII
There can be no valid waiver of Cogaed’s constitutional rights even if we
assume that he did not object when the police asked him to open his bags.
As this court previously stated:
Appellant’s silence should not be lightly taken as consent to such search.
The implied acquiescence to the search, if there was any, could not have
been more than mere passive conformity given under intimidating or
coercive circumstances and is thus considered no consent at all within the
purview of the constitutional guarantee.
 (Citations omitted) Cogaed’s silence or lack of aggressive objection was a
natural reaction to a coercive environment brought about by the police
officer’s excessive intrusion into his private space. The prosecution and the
police carry the burden of showing that the waiver of a constitutional right
is one which is knowing, intelligent, and free from any coercion. In all
cases, such waivers are not to be presumed.
The coercive atmosphere created by the presence of the police officer can
be discerned again from the testimony of SPO1 Taracatac during cross-
examination:
ATTY. BINWAG:
Q Now, Mr. witness, you claimed that you only asked them what are the
contents of their bags, is it not?
WITNESS:
A Yes, ma’am.
Q And then without hesitation and voluntarily they just opened their bags,
is it not?
A Yes, ma’am.
Q So that there was not any order from you for them to open the bags?
A None, ma’am.
Q Now, Mr. witness when you went near them and asked them what were
the contents ofthe bag, you have not seen any signs of hesitation or fright
from them, is it not?
A It seems they were frightened, ma’am.
Q But you actually [claimed] that there was not any hesitation from them
in opening the bags, is it not?

A Yes, ma’am but when I went near them it seems that they were
surprised.

 (Emphasis supplied)

The state of mind of Cogaed was further clarified with SPO1 Taracatac’s
responses to Judge Florendo’s questions:

COURT:

....

Q Did you have eye contact with Cogaed?

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

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

VIII
The Constitution provides:

Any evidence obtained in violation of [the right against unreasonable

searches and seizures] shall be inadmissible for any purpose in any
proceeding.

Otherwise known as the exclusionary rule or the fruit of the poisonous tree
doctrine, this constitutional provision originated from Stonehill v. Diokno.

 This rule prohibits the issuance of general warrants that encourage law
enforcers to go on fishing expeditions. Evidence obtained through
unlawful seizures should be excluded as evidence because it is "the only
practical means of enforcing the constitutional injunction against
unreasonable searches and seizures."

 It ensures that the fundamental rights to one’s person, houses, papers,
and effects are not lightly infringed upon and are upheld.

Considering that the prosecution and conviction of Cogaed were founded

on the search of his bags, a pronouncement of the illegality of that search
means that there is no evidence left to convict Cogaed.

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

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

SO ORDERED.