Search Incident to lawful Arrest

[G.R. No. 250423. September 29, 2021.]

JOMER FERNANDO y QUIROS, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

"G.R. No. 250423 (Jomer Fernando y Quiros v. People of the

Philippines). — This is a Petition for Review on Certiorari 1 under Rule 45 of
the Rules of Court, assailing the Decision 2 dated July 19, 2019 and
Resolution 3 dated November 8, 2019 of the Court of Appeals (CA), which
affirmed the Decision dated August 30, 2017 of the Regional Trial
Court (RTC) pronouncing the petitioner guilty beyond reasonable doubt of two
(2) counts of illegal possession of dangerous drugs, pursuant to Section 11,
Article II of Republic Act (R.A.) No. 9165, otherwise known as
the Comprehensive Dangerous Drugs Act of 2002.
The Antecedents
On January 31, 2012, at around 3:00 p.m., a confidential informant
arrived at the Guagua Municipal Police Station and informed SPO3 Romeo
Pring (SPO3 Pring), PO1 Angelo Ramos (PO1 Ramos), and PO1 Roque
Zapanta (PO1 Zapanta) that herein petitioner, Jomer Fernando y
Quiros (Fernando), was selling marijuana in Brgy. San Pablo, Guagua,
Pampanga. 4
Based on the said information, Police Superintendent (P/Supt.) Rolly R.
Mendoza formed a team from the Municipal Drug Enforcement unit to conduct
a buy-bust operation against Fernando. The confidential informant was
designated as poseur-buyer, while SPO3 Pring, PO1 Ramos, and PO1
Zapanta were designated as backup. The buy-bust team also agreed that the
poseur-buyer would raise his right hand as the pre-arranged signal. In
preparation of the buy-bust operation, the police processed the necessary
documents that include the Coordination Form, Pre-Operation Report, and
Authority to Operate. P/Supt. Mendoza then gave SPO3 Pring a one-hundred-
peso bill to be used as buy-bust money. 5
At about 3:45 p.m. of the same date, the team proceeded to the said
barangay. Upon their arrival in the target area, the poseur-buyer alighted from
the vehicle and approached Fernando, who was then standing in front of his
house, while the rest of the team positioned themselves more or less eight (8)
to ten (10) meters away. 6
After a brief interaction between the confidential informant and
Fernando, the former handed the marked P100.00 to the latter, who, in
exchange, handed him one small plastic sachet containing marijuana with
fruiting tops. After the consummation of the sale, the confidential informant
raised his right hand which alerted the back-up members of the team to move
and cause the arrest of the petitioner. PO1 Zapanta arrested the petitioner
and informed him of his constitutional rights. SPO3 Pring searched Fernando
and recovered the following: one (1) small piece of folder paper
containing marijuana; one (1) small glass tube containing marijuana seeds;
and the marked P100.00 buy-bust money. 7
The petitioner was then brought to the police station where the
recovered items were marked, inventoried, and delivered to the PNP Regional
Crime Laboratory Office in Camp Olivas, City of San Fernando, Pampanga. 8
The items were received by Police Chief Inspector Angel Timario, the
forensic chemist, who examined the items which gave positive results to the
test for marijuana. 9
The petitioner denied the charges against him. He explained that on
January 31, 2012, at about 12:00 noon, he was with his two (2) cousins whom
he was supposed to bring to school when he was arrested by police officers
and was brought around Guagua, Pampanga to point to other drug
personalities. At about 3:00 p.m., he was taken to San Fernando, Pampanga,
where he was left at the Police Provincial Office and was being asked for Fifty
Thousand Pesos (P50,000) in exchange for his freedom. 10
The petitioner was charged with the following Information for illegal sale
and illegal possession of dangerous drugs, pursuant to Sections 5 and 11 of
Article II of R.A. No. 9165, as amended: 11
Criminal Case No. G-12-8972
That on or about 31st of January, 2012, in the municipality of
Guagua, province of Pampanga, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, not being a person
authorized to sell any dangerous drug, did then and there willfully,
unlawfully, knowingly, sell one (1) heat-sealed transparent plastic
sachet containing dried marijuana fruiting tops, weighing an amount of
ONE GRAM & SIXTY TWO THOUSAND (1.062) of a gram, a
dangerous drug.
Contrary to law. 12
Criminal Case No. G-12-8973
 That on or about 31st of January, 2012, in the municipality of
Guagua, Province of Pampanga, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused not being a person
authorized by law to possess, did then and there willfully, unlawfully,
have in his possession and under his control one (1) heat-sealed
transparent plastic sachet containing marijuana fruiting tops, weighing
an amount of ONE GRAM & FOUR HUNDRED EIGHTY TWO
THOUSAND (1.482) of a gram, a dangerous drug.
CONTRARY TO LAW. 13
On February 29, 2012, the petitioner, with the assistance of counsel,
was arraigned. He pleaded "not guilty" on both violations charged. Thereafter,
pre-trial and trial on the merits ensued. 14
The RTC pronounced Fernando guilty beyond reasonable doubt of two
(2) counts of illegal possession of dangerous drugs, pursuant to Section 11,
Article II, R.A. No. 9165, as amended. 15
With respect to the charge of illegal sale of dangerous drugs in Criminal
Case No. G-12-8972, the RTC found that the illegal sale transaction was not
sufficiently proved because of the failure of the prosecution to present the
testimony of the poseur-buyer. Nevertheless, considering that the police
operatives confirmed the handling of the marijuana from the petitioner to the
poseur-buyer, the RTC convicted the petitioner of illegal possession, pursuant
to the variance doctrine in Rule 120 of the Rules of Court, which provides:
Section 4. Judgment in case of variance between allegation and
proof. — When there is variance between the offense charged in the
complaint or information and that proved, and the offense as charged
is included in or necessarily includes the offense proved, the accused
shall be convicted of the offense proved which is included in the
offense charged, or of the offense charged which is included in the
offense proved.
While the petitioner was charged under Criminal Case No. G-12-8972
with illegal sale, the prosecution was only able to prove illegal possession.
The RTC held that illegal possession is included in the offense of illegal sale
of dangerous drugs; hence, the petitioner is convicted of the offense proved
(i.e., illegal possession) which is included in the offense charged (i.e., illegal
sale).
With respect to the charge of illegal possession of dangerous drugs in
Criminal Case No. G-12-8973, the RTC found that the valid warrantless arrest
effected upon petitioner, and the ensuing search incident to that arrest,
yielded additional marijuana in the possession of the petitioner. Thus, the
RTC found the petitioner also guilty of another count of illegal possession of
dangerous drugs.
 The decretal portion of the RTC's Decision dated August 30, 2017
reads:
WHEREFORE, this court hereby finds accused Jomer Q.
Fernando guilty beyond reasonable doubt —
(a) In Criminal Case No. G-12-8972, for illegal possession of one
(1) sachet of marijuana weighing 1.062 grams, in violation
of Section 11, Article II of R.A. No. 9165; and sentences
accused to suffer the penalty of imprisonment of twelve
(12) years and one (1) day to fourteen (14) years and a
fine of three (3) hundred thousand pesos (P300,000.00),
without subsidiary imprisonment in cases of insolvency;
and
(b) In Criminal Case No. G-12-8973, for illegal possession of one
(1) sachet of marijuana weighing 1.482 grams, in violation
of Section 11, Article II of R.A. No. 9165; and sentences
accused to suffer the penalty of imprisonment of twelve
(12) years and one (1) day to fourteen (14) years and a
fine of three (3) hundred thousand pesos (P300,000.00),
without subsidiary imprisonment in cases of insolvency.
The marijuana involved in these cases are ordered transmitted
to the PDEA thru the DDB for proper care and disposition as required
by R.A. No. 9165.
SO ORDERED. 16
The petitioner appealed the Decision of the RTC to the CA, stating that:
(i) the prosecution failed to present the poseur-buyer, which is fatal to its case;
(ii) the RTC erred in not acquitting the accused; and (iii) the prosecution failed
to establish the chain of custody and integrity of the allegedly seized drugs. 17
The CA ruled that the non-presentation of the poseur-buyer, together
with the fact that there was a significant distance between the location from
where the officers observed the transaction and the location where the
poseur-buyer and the petitioner stood during the operation, logically resulted
to the prosecution's failure to establish that the transaction was one of sale of
illegal drugs. Corollarily, it cannot be said that the petitioner was committing a
crime in the presence of the officers. However, considering that the officers
planned and organized for a buy-bust operation and during the execution of
the planned operation, they personally saw the petitioner and poseur-buyer
exchange certain items, the officers had a reasonable ground of suspicion
based on their personal knowledge of facts and circumstances that the
petitioner has committed a crime. Hence, the arrest is justified by a probable
cause to believe that the petitioner committed a crime. 18
 The chain of custody of the dangerous drugs confiscated by the
arresting officers from the petitioner was well-established with sufficient proof
that the same was never broken from the time the same were confiscated
until the same were submitted before the trial court. Hence, the integrity and
evidentiary value thereof were duly preserved. 19
Accordingly, the CA issued its Decision with the following decretal
portion:
WHEREFORE, the Decision appealed from, being in
accordance with law and the evidence is hereby AFFIRMED.
SO ORDERED. 20
Undaunted, the petitioner filed the instant petition assailing the Decision
of the CA. 21 The Office of the Solicitor-General filed their comment to the
petition. 22
Issues
I.
A. WHETHER THE WARRANTLESS ARREST OF PETITIONER IS
VALID;
B. WHETHER THE PLASTIC SACHET ALLEGEDLY
CONTAINING MARIJUANA, OBTAINED THROUGH THE
WARRANTLESS ARREST, IS ADMISSIBLE; AND,
C. WHETHER THE ADDITIONAL MARIJUANA OBTAINED FROM THE
SEARCH INCIDENT TO SUCH ARREST IS ADMISSIBLE.
II.
WHETHER THE PROSECUTION ESTABLISHED THE UNBROKEN
CHAIN OF CUSTODY AND INTEGRITY OF THE MARIJUANA,
WHICH WERE ALLEGEDLY SEIZED FROM THE PETITIONER
Our Ruling
I.A. Whether the warrantless
arrest of petitioner is valid
Generally, an arrest or seizure without a warrant issued by a competent
judicial authority is invalid. However, there are certain recognized exceptions
listed under Section 5, Rule 113 of the Rules of Court:
SEC. 5. Arrest without warrant; when lawful. — A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense;
 (b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or is temporarily confined while his
case is pending, or has escaped while being transferred
from one confinement to another.
Based on the evidentiary items presented, the prosecution had
established: (i) that the police operatives planned and executed a buy-bust
operation; (ii) that the police operatives relied on a civilian poseur-buyer to
transact with the petitioner; (iii) that the police operatives were on a car, which
was parked more or less eight (8) meters to ten (10) meters away from the
transaction, based on the testimony of SPO3 Pring; (iv) that the police
operatives saw the poseur-buyer hand the marked money to the petitioner,
and the petitioner hand one (1) plastic sachet to the poseur-buyer; (v) that the
poseur-buyer executed a hand signal, which appeared to signify the
completion of the alleged drug transaction; (vi) that acting on the hand signal,
the police operatives effected the arrest of petitioner; and (vii) upon
conducting a bodily search of the petitioner incident to the arrest, the police
operatives found in the possession of the petitioner additional marijuana. The
testimony of SPO3 Pring confirms these material facts, which we quote
below: 23
Q You went to the target area?
A Yes, madam, at Barangay San Pablo, Guagua, Pampanga.
Q And when you arrived there, what transpired, if any?
A We parked our vehicle near the place of transaction[.] Before we
parked our vehicle, our confidential informant alighted from our
vehicle, and then approached the suspect, Jomer Fernando, who
was standing in front of their residence.
Q And how far were you from the suspect or the target person?
A More or less, 12 meters, madam.
Q When the confidential informant approached the target person, what
happened, if any?
A Our confidential informant gave the marked money to the suspect,
madam, then in return the suspect handed one (1) piece small
plastic sachet containing suspected marijuana leaves with fruiting
tops, madam.
Q Did you see the actual exchange?
 A Yes, madam, [I saw] the transaction, I saw the confidential informant
hand something to the suspect, madam, and then I saw the
accused hand something to our confidential informant.
SPO3 Pring remained consistent when he later testified as follows: 24
Q: Upon parking, what did you do next?
A: Our civilian informant alighted from our vehicle and approached the
accused who was then standing in front of his residence, madam.
Q: What about you; (sic) did you also approach the accused, Jomer
Fernando y Quiros?
A: After our civilian informant gave the one (1) piece of one hundred
peso bill as marked money to the accused, in return, the accused
him a (sic) one piece of small plastic sachet containing marijuana.
After that, our civilian informant gave the pre-arranged signal by
raising his right hand and then we proceeded to the place of
transaction, madam.
Q: So, after the pre-arranged signal, you approached the accused?
A: Yes, your honor.
Q: You saw the pre-arranged signal given by the civilian informant?
A: Yes, your honor.
Q: Did you also see the exchange of marijuana given by the accused to
your civilian informant?
A: Yes, your honor.
Q: Did you also see the money given by your informant to the accused?
A: Yes, your honor.
Q: When you saw all these things happening, you were standing at a
distance of what?
A: I was more or less eight (8) to ten (10) meters from the accused, your
honor.
The prosecution failed to present the poseur-buyer allegedly because of
the latter's death. The police operatives also admitted that they did not hear
the conversation between the poseur-buyer and the petitioner. In effecting the
warrantless arrest, the police completely relied on: (i) the fact that they
personally saw the exchange of marked money and a plastic sachet from a
car parked more or less eight (8) to ten (10) meters away; (ii) the hand signal
of the poseur-buyer; and (iii) upon acting on the hand signal and approaching
the petitioner, their confirmation of the content of the plastic sachet.
This is not a case of in flagrante delicto arrest under Section 5 (a), Rule
113 of the Rules of Court, considering that the police operatives did not hear
the conversation between the poseur-buyer and petitioner, and they were at
such distance from the transaction that it was physically impossible for them
to confirm that a drug sale transaction had taken place. All they could confirm
was the exchange of marked money and an undistinguished item the nature
of which could not be identified from their location before the poseur-buyer
made the hand signal. Therefore, the alleged drug sale transaction could not
be considered to have been committed in their presence. Our ruling in Sindac
v. People 25 is instructive:
Considering that PO3 Peñamora was at a considerable distance
away from the alleged criminal transaction (five [5] to ten [10] meters),
not to mention the atomity of the object thereof (0.04 gram of white
crystalline substance contained in a plastic sachet), the Court finds it
highly doubtful that said arresting officer was able to reasonably
ascertain that any criminal activity was afoot so as to prompt him to
conduct a lawful in flagrante delicto arrest and, thereupon, a
warrantless search. These similar circumstances were availing in the
cases of Comerciante v. People and People v. Villareal where the
Court likewise invalidated the in flagrante delcito arrest and ensuing
warrantless search. In this relation, it should also be pointed out
that no criminal overt act could be properly attributed to Sindac so as
to rouse any reasonable suspicion in the mind of either PO3 Peñamora
or PO1 Asis that Sindac had just committed, was committing, or was
about to commit a crime. Sindac's actuations of talking to and later on,
receiving an unidentified object from Cañon, without more, should not
be considered as ongoing criminal activity that would render proper an
in flagrante delicto arrest under Section 5 (a), Rule 113 of the Revised
Rules of Criminal Procedure.
Neither is this a case of warrantless arrest of a prisoner who has
escaped confinement under Section 5 (c), Rule 113.
A valid warrantless arrest under Section 5 (b), Rule 113 requires that
the following must be present: (i) an offense has just been committed; and (ii)
the arresting officer has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has
committed it. 26
In this case, the only indication that the poseur-buyer has personal
knowledge of the illegal drug transaction was the hand signal. The poseur-
buyer did not take the witness stand; hence, his direct and positive testimony
establishing the illegal drug transaction is now lost to this Court.
Does the fact that the police did not hear the conversation preclude the
finding of probable cause to effect a warrantless arrest? Is the mere sight of
the exchange of marked money and a plastic sachet, coupled with the hand
signal of the poseur-buyer, sufficient to establish probable cause to effect a
warrantless arrest?
In merely sighting a plastic sachet from around eight (8) to ten (10)
meters away, it would be physically impossible for the police operatives to
confirm the content of the sachet. From this vantage point, the naked eye
would not able to ascertain the nature of the content of the sachet. Unless
they were aided with telescopic sight and other sensory aids, it is not
ordinarily within the realm of human experience to be capable of identifying
drugs contained in a plastic sachet seen from the vantage point of the police
operatives in this case. Even if one were to merely glimpse a hint of green
from their current vantage point, this would not be sufficient to conclude the
nature of the object of their sight as marijuana. One need to see it at close
contact, smell it, or touch it. This is why, in the testimony of SPO3 Pring, he
merely stated that he saw the petitioner hand "something" to the poseur-
buyer. It was indispensable for the poseur-buyer to execute the hand signal
so that the police operatives can approach the petitioner to confirm the
content of the sachet. The issue on the validity of the warrantless arrest in this
case therefore rises and falls on the significance of the poseur-buyer's hand
signal, and whether it was sufficient for the purpose of triggering the arrest.
In People v. Ramos, 27 We have ruled that failure to present the poseur-
buyer is fatal to the prosecution's case under the following circumstances:
(1) if there is no person other than the poseur-buyer who witnessed the
drug transaction;
(2) if there is no explanation for the non-appearance of the poseur-
buyer and reliable eyewitnesses who could testify in his place;
(3) if the witnesses other than the poseur-buyer did not hear the
conversation between the pusher and poseur-buyer; and
(4) if the accused vehemently denies selling any prohibited drugs
coupled with the inconsistent testimonies of the arresting officers or
coupled with the possibility that there exist reasons to believe that the
arresting officers had motives to testify falsely against the appellant.
The common circumstance in the foregoing cases is that the arresting
officers had no personal knowledge of the fact that an illegal drug transaction
transpired. Under the factual milieu of Ramos, 28 the police officers saw the
transaction between the poseur-buyer and the accused while inside a tinted
car ten (10) meters away, and that prior to the buy-bust operation, they had
already planned what was going to happen. The case states:
From inside the car, they saw their informant hand the
premarked P100.00 bill to Ramos who, in turn, gave one (1)
transparent plastic sachet suspected to contain shabu from a Vicks
Vaporub jar. When the transaction was completed, the police officers
 quickly alighted the vehicle and advanced to the place where the sale
happened. They immediately arrested the subjects and, after frisking
Ramos, they recovered the Vicks Vaporub jar which contained ten (10)
more plastic sachets of shabu.
Thus, We ruled in Ramos  29 that the police officers had personal knowledge of the illegal drug transaction and therefore, the
prosecution had proved all the elements of the illegal sale even though the poseur-buyer did not testify on how he transacted with the accused.

We must point out, however, that the more applicable precedents to the
instant case are People v. Cabrillo 30 and People v. Andaya, 31 which both
involve a situation where the police operatives who are members of the buy-
bust team did not hear the conversation between the poseur-buyer and the
accused from their distance during the transaction, and merely relied on the
pre-arranged hand signal to trigger the warrantless arrest. These cases are
instructive in appreciating the weight of the poseur-buyer's pre-arranged
signal in the event of a failure of the poseur-buyer to testify.
In Cabrillo, 32 there was a seven-meter distance between the police
operatives and the place of the happening of the alleged drug sale
transaction. The police officers were not privy to the conversation between the
poseur-buyer and accused. The poseur-buyer made a pre-arranged signal,
such that after the poseur-buyer scratched his head, the police officers rushed
to arrest the accused. We ruled in this case that the non-presentation of the
poseur-buyer was fatal to the prosecution's case. We quote:
In this case, the seven-meter distance between the police
officers waiting for the pre-arranged signal from the poseur-buyer and
the accused-appellant made it difficult for the police officers, the
supposed eyewitnesses, to see and to hear what exactly was
happening between accused-appellant and the poseur-buyer. None of
the police officers were privy to their conversation. The police officers
had no personal knowledge of what transpired between accused-
appellant and the poseur-buyer. The police officers merely made a
sweeping statement that they saw the exchange of the buy-bust
money and the seized drugs between accused-appellant and the
poseur-buyer considering that there was nothing that obstructed their
view. What was clearly agreed upon was the pre-arranged signal, such
that after the poseur-buyer scratched his head, the police officers
rushed to arrest accused-appellant. The police officers merely relied on
the pre-arranged signal to signify that the transaction was
consummated. The non-presentation of the poseur-buyer was fatal
to the prosecution's cause to prove the fact of the illegal
transaction. His testimony would have clearly established that the
illegal transaction indeed took place. More so, in this case, the poseur-
buyer was not familiar with accused-appellant, according to PO3
Lasque.
 In addition, the prosecution failed to establish how the police
officers were able to personally witness the transaction between
accused-appellant and the poseur-buyer. The police officers'
testimonies as to their position during the exchange contradict each
other, which raises doubt as to whether they personally witnessed the
illegal transaction. In his testimony, PO3 Bucao stated that he, together
with the other police officers, used a multi-cab van in going to the area
and they were inside said van while the transaction was going on
between accused-appellant and the poseur-buyer. On the other hand,
PO2 Alforque testified that PO3 Bucao accompanied the poseur-buyer
in going to the area; PO3 Bucao left the poseur-buyer and hid at the
back of the banana tree while the transaction was happening; while
PO2 Alforque and the rest of the police officers were inside the multi-
cab van. This seeming inconsistency as to the position of the police
officers at the time the exchange was taking place between accused-
appellant and the poseur-buyer taints the truthfulness of their assertion
that they personally witnessed the transaction. If PO3 Bucao had to
hide behind the banana tree, he would have, in all probability, exposed
himself from the sight of the poseur-buyer. Indeed, reasonable doubt
exists whether the police officers personally witnessed the
consummation of the illegal transaction. As this Court stated, the
police officers merely relied on the pre-arranged signal to know
that the transaction was consummated. That was the time they
rushed to arrest accused-appellant. 33
In the case of Cabrillo, 34 We reiterated the ruling in Andaya 35 that:
[I]f the arresting lawmen arrested the accused based on the pre-
arranged signal from the confidential informant who acted as the
poseur buyer, his non-presentation must be credibly explained and the
transaction established by other ways in order to satisfy the quantum
of proof beyond reasonable doubt because the arresting lawmen did
not themselves participate in the buy-bust transaction with the
accused.
This Court further observed in Andaya 36 found that the members of the
buy-bust team relied on the pre-arranged signal from the poseur-buyer. The
team arrested the accused solely on this basis, as none of the members of
the team had directly witnessed the transaction due to their distance from the
transaction. We quote: 37
Here, the confidential informant was not a police officer. He was
designated to be the poseur buyer himself. It is notable that the
members of the buy-bust team arrested Andaya on the basis of the
pre-arranged signal from the poseur buyer. The pre-arranged signal
signified to the members of the buy-bust team that the transaction had
been consummated between the poseur buyer and Andaya. However,
the State did not present the confidential informant/poseur buyer
 during the trial to describe how exactly the transaction between him
and Andaya had taken place. There would have been no issue against
that, except that none of the members of the buy-bust team had
directly witnessed the transaction, if any, between Andaya and the
poseur buyer due to their being positioned at a distance from the
poseur buyer and Andaya at the moment of the supposed transaction.
Applying the rulings in Cabrillo 38 and Andaya, 39 We find that the failure
to present the poseur-buyer is fatal to establish a valid warrantless arrest
under Section 5 (b), Rule 113. The witnesses other than the poseur-buyer did
not hear the conversation between the petitioner and poseur-buyer. The mere
testimony of the police operatives in a buy-bust operation that the poseur-
buyer made a pre-arranged signal is fatal to the prosecution's case, if the
poseur-buyer did not take the witness stand.
One might add that the pre-arranged hand signal should be interpreted
within the context of a planned and organized buy-bust operation. One could
speculate that the police operatives and the poseur-buyer had a prior
understanding as to the use of that specific hand signal as a signifier of the
consummation of an illegal drug transaction within the specific context of the
buy-bust operation. However, the meaning of the hand signal is lost to this
Court, since the poseur-buyer (who made the hand signal) did not testify and
the petitioner did not have the opportunity to cross-examine him. Some
material questions could have been asked from the poseur-buyer, such as: (i)
Why did he make the hand signal? (ii) What is the meaning of this specific
hand signal? (iii) Was there a prior understanding with the buy-bust team that
this specific hand signal signifies the consummation of an illegal drug
transaction? (iv) Did he deliberately make that hand signal to signify that he
witnessed the consummation of the transaction? And (v) was there a
consummated sale transaction between the petitioner and the poseur-buyer?
We will never know the answers, precisely because the poseur-buyer did not
testify.
The non-presentation of the poseur-buyer was also not sufficiently
explained by the respondent. The failure of the prosecution to present the
poseur-buyer was because of the latter's alleged death. However, this claim
was not substantiated and no proof of the poseur-buyer's death was
presented. 40
Hence, the prosecution failed to establish that there was a probable
cause, based on personal knowledge, to cause the warrantless arrest.
I.B. Whether the plastic
sachet allegedly containing
marijuana, which was obtained
through the warrantless arrest,
is admissible
The police operatives recovered two specimens of dangerous drugs
pursuant to the buy-bust operation: (i) the sachet
of marijuana obtained during the warrantless arrest and is allegedly the
subject of the illegal sale transaction, and (ii) the specimen
of marijuana obtained from the petitioner during the ensuing search incident to
the arrest.
We hold that both specimens are inadmissible and excluded as
evidence in this case, but for different reasons.
The first specimen of marijuana was not the product of a search. SPO3
Pring testified that when the police operatives were conducting the buy-bust
operation, he saw the petitioner hand something to the poseur-buyer. The
poseur-buyer made the hand signal and the police operatives effected the
arrest. However, at the time of the arrest, the plastic sachet was no longer in
the hand of the petitioner, but in the hand of the poseur-buyer. At that
time, no search was necessary to yield the first specimen of marijuana, since
it was already handed over to the poseur-buyer pursuant to an alleged illegal
sale transaction. The seizure of the first specimen of marijuana is therefore
not an instance of search incident to an arrest.
Nonetheless, the first specimen must be excluded in evidence because
it was recovered pursuant to an "unreasonable seizure," which in this case is
the presence of an invalid warrantless arrest. Section 2, Article III of the 1987
Constitution states:
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.
As We have ruled above, the warrantless arrest conducted upon the
petitioner is invalid for the prosecution's failure to prove the presence of
probable cause to effect the arrest. The invalid warrantless arrest, in the
context of a buy-bust operation, yielded the first specimen of marijuana as the
subject of the alleged illegal sale transaction. Thus, the first specimen was
obtained pursuant to an unreasonable seizure, and therefore should be
excluded as evidence. Section 3 (2), Article III of the 1987 Constitution
provides that "[a]ny evidence obtained in violation of this or the preceding
section [i.e., Section 2, Article III] shall be inadmissible for any purpose in any
proceeding."
Records show that from the time that the poseur-buyer made the pre-
arranged hand signal, the police operatives have commenced the arrest.
Arrest is defined under Section 1, Rule 113 of the Rules of Court as the taking
of a person into custody that he may be bound to answer for the commission
of an offense. 41 Under Section 2 of the same rule, an arrest is effected by an
actual restraint of the person to be arrested or by his voluntary submission to
the custody of the person making the arrest. 42
In this case, the hand signal was the trigger for the warrantless arrest.
At the exact point in time that the buy-bust team responded to the hand
signal, the attempt to arrest had commenced. At the time that they came into
close proximity with the petitioner, there was already an arrest. We quote the
Comment of the respondent, which shows the sequence of events:
After a brief interaction between the confidential informant and
appellant, the former handed one hundred peso bill marked money to
the latter, who in turn delivered one small plastic sachet
containing marijuana with fruiting tops. After the consummation of the
sale, the confidential informant raised his right hand which alerted the
back-up members of the team to move and cause the arrest of
appellant. PO1 Zapanta arrested appellant and informed him of his
constitutional rights. On the other hand, SPO3 Pring conducted bodily
search upon appellant and recovered from his possession were one
(1) small piece of folded paper containing marijuana, one (1) small
glass tube containing marijuana seeds and the marked 100 peso bill
buy-bust money. 43
The overt acts showing the actual restraint of the person of the
petitioner are not described in the pleadings with particularity. Nevertheless,
the sequence of events shows that immediately after the raising of the
poseur-buyer's right hand, the police operatives were alerted and "move[d]
and cause[d] the arrest of [the petitioner]." 44 This is undisputed by the
respondent. Moreover, in Homar v. People, 45 We ruled in this wise:
Neither the application of actual force, manual touching of the
body, or physical restraint, nor a formal declaration of arrest, is
required. It is enough that there be an intention on the part of one of
the parties to arrest the other, and that there be an intent on the part of
the other to submit, under the belief and impression that submission is
necessary."
This intent to arrest the petitioner is evidenced by the poseur-buyer's
hand signal, which triggered the response from the nearby police operatives.
The police operatives did not happen to be in their post by accident; they were
specifically positioned about eight (8) to ten (10) meters away from the
petitioner and the poseur-buyer for the express purpose of effecting a buy-
bust operation. The intent to arrest from the moment that the police operatives
responded to the hand signal is unmistakable. Hence, even without
description of the overt acts of physical restraint, We believe that the police
operatives immediately caused the arrest of the petitioner and found him in
possession of the marijuana as an incident to that arrest.
Having ruled that the warrantless arrest is invalid, it follows that
the marijuana contained in the plastic sachet, which was obtained through
such arrest, is inadmissible. The case of Homar v. People is instructive: 46
Since the shabu was seized during an illegal arrest, its inadmissibility
as evidence precludes conviction and justifies the acquittal of the
petitioner.
We cannot uphold the ruling of the RTC that since the poseur-buyer did
not testify on the consummation of the alleged illegal sale, the petitioner
should instead be convicted of illegal possession of dangerous drugs with
respect to the first specimen of marijuana. This is premised on the variance
doctrine in Rule 120 of the Rules of Court, which provides:
Section 4. Judgment in case of variance between allegation and
proof. — When there is variance between the offense charged in the
complaint or information and that proved, and the offense as charged
is included in or necessarily includes the offense proved, the accused
shall be convicted of the offense proved which is included in the
offense charged, or of the offense charged which is included in the
offense proved.
The RTC found that the illegal sale transaction was not sufficiently
proved because of the failure of the prosecution to present the testimony of
the poseur-buyer. Nevertheless, considering that the police operatives
confirmed the handling of the marijuana from the petitioner to the poseur-
buyer, the petitioner is convicted of the offense proved (i.e., illegal
possession) which is included in the offense charged (i.e., illegal sale).
Contrary to this ruling of the RTC, the lack of testimony from the
poseur-buyer is fatal in proving both illegal sale and illegal possession of
drugs. The testimony of the poseur-buyer is indispensable in establishing
probable cause for the warrantless arrest. Absent the poseur-buyer's
testimony, the warrantless arrest is invalid and illegal, and therefore the
seized first specimen of marijuana cannot be appreciated as a product of an
illegal sale or even as a product of an illegal possession.
We now turn to discuss the exclusion of the second specimen
of marijuana.
I.C. Whether the additional
marijuana obtained from the
search incident to such arrest is
admissible
The second specimen of marijuana was obtained from the petitioner
during the ensuing search after the police operatives in the buy-bust operation
conducted the warrantless arrest.
A search incidental to a lawful arrest requires that there must first be a
lawful arrest before a search is made. Otherwise stated, a lawful arrest must
precede the search, and the process cannot be reversed. 47
We ruled in Malacat v. Court of Appeals: 48
In a search incidental to a lawful arrest, as the precedent arrest
determines the validity of the incidental search, the legality of the arrest
is questioned in a large majority of these cases, e.g., whether an arrest
was merely used as a pretext for conducting a search. In this instance,
the law requires that there first be a lawful arrest before a search can
be made — the process cannot be reversed. At bottom, assuming a
valid arrest, the arresting officer may search the person of the arrestee
and the area within which the latter may reach for a weapon or for
evidence to destroy, and seize any money or property found which was
used in the commission of the crime, or the fruit of the crime, or that
which may be used as evidence, or which might furnish the arrestee
with the means of escaping or committing violence.
In People v. Estella, 49 We cited the rationale for the rule on search
incident to lawful arrest in Chimel v. California: 50
When an arrest is made, it is reasonable for the arresting officer
to search the person arrested in order to remove any weapons that the
latter might seek to use in order to resist arrest or effect his escape.
Otherwise, the officer's safety might well be endangered, and the
arrest itself frustrated. In addition, it is entirely reasonable for the
arresting officer to search for and seize any evidence on the arrestee's
person in order to prevent its concealment or destruction. And the area
into which an arrestee might reach in order to grab a weapon or
evidentiary items must, of course, be governed by a like rule. A gun on
a table or in a drawer in front of one who is arrested can be as
dangerous to the arresting officer as one concealed in the clothing of
the person arrested. There is ample justification, therefore, for a search
of the arrestee's person and the area 'within his immediate control' —
construing that phrase to mean the area from within which he might
gain possession of a weapon or destructible evidence.
If the arrest preceding the search is unlawful, evidence obtained
pursuant to the search is inadmissible. 51 Any evidence obtained in violation of
the right against unreasonable search shall be inadmissible for any purpose in
any proceeding. 52 Otherwise known as the exclusionary rule or the fruit of the
poisonous tree doctrine, this rule provides that evidence obtained through
unlawful search should be excluded as evidence because it is the only
practical means of enforcing the constitutional injunction against
unreasonable searches and seizures. 53 It ensures that the fundamental rights
to one's person, houses, papers, and effects are not lightly infringed upon and
are upheld. 54
In this case, after the members of the buy-bust team approached and
caused the arrest of the petitioner, SPO3 Pring conducted a bodily search
upon the petitioner and recovered from his possession one (1) small piece of
folded paper containing marijuana, one (1) small glass tube
containing marijuana seeds, and the marked P100 peso bill buy-bust
money. 55 These evidentiary items were in addition to the plastic sachet
containing the alleged marijuana given to the poseur-buyer.
We have already ruled against the validity of the warrantless arrest.
Thus, We are constrained to rule that this second specimen
of marijuana obtained from the petitioner through a search incident to the
unlawful arrest, is inadmissible.
In summary, We rule on the admissibility of the two specimens
of marijuana recovered during the buy-bust operation, as follows:
1. The first specimen of marijuana is excluded in evidence by reason of
being the product of an unreasonable seizure, specifically of an
invalid warrantless arrest. The invalidity of the warrantless arrest
is rooted in the failure of the prosecution to establish a probable
cause for the arrest, which probable cause can only be
established in this case through the testimony of the poseur-
buyer (which was lacking).
2. The second specimen of marijuana is excluded in evidence by
reason of a search incident to an unlawful arrest. Following from
the invalidity of the preceding warrantless arrest, evidence
obtained pursuant to the ensuing search is tainted with
inadmissibility, pursuant to the doctrine of the fruit of the
poisonous tree.
II. Whether the prosecution
established the unbroken chain
of custody and integrity of
the marijuana, which were
allegedly seized from the
petitioner
 Jurisprudence states that in cases involving prosecution under R.A. No.
9165, the identity of the seized drug and/or paraphernalia must be established
with moral certainty. Thus, in order to obviate any unnecessary doubts on
such identity, the prosecution has to show an unbroken chain of custody over
the same. It must be able to account for each link in the chain of custody over
the dangerous drug/paraphernalia from the moment of seizure up to its
presentation in court as evidence of the corpus delicti. 56
The chain of custody is divided into four (4) links: first, the seizure and
marking, if practicable, of the illegal drug recovered from the accused by the
apprehending officer; second, the turnover of the illegal drug seized by the
apprehending officer to the investigating officer; third, the turnover by the
investigating officer of the illegal drug to the forensic chemist for laboratory
examination; and fourth, the turnover and submission of the marked illegal
drug seized by the forensic chemist to the court. 57 Notably, R.A. No. 9165, its
implementing rules and regulations (IRR), and R.A. No. 10640 require that all
items seized from the accused, particularly, "all dangerous drugs, controlled
precursors and essential chemicals, as well as instruments/paraphernalia
and/or laboratory equipment so confiscated, seized and/or surrendered," must
undergo the proper chain of custody procedure as provided therein in order to
preserve their integrity and evidentiary value. 58
To establish the identity of the dangerous drugs with moral certainty,
the prosecution must be able to account for each link in the chain of custody
from the moment the drugs are seized up to their presentation in court as
evidence of the crime. 59 As part of the chain of custody procedure, the law
requires, inter alia, that the marking, physical inventory, and photography of
the seized items be conducted immediately after seizure and confiscation of
the same. 60
The petitioner claims that the chain of custody of the drugs was not
established beyond reasonable doubt. First, there was variance in the weight
of the allegedly seized marijuana indicated in the Confiscation Receipt and
the Chemistry Report, as follows: 61
 

  Confiscation Chemistry
Report Report

"RMP 1" 1.00 grams (sic) 1.062 grams

"RMP 2" 1.30 grams 1.482 grams

 
 Second, there is inconsistency in the description of the allegedly
seized marijuana in the Confiscation Receipt and Chemistry Report, on the
one hand, and the description of the same in the testimony of PO2 Canapi,
who was a part of the buy-bust team. The Confiscation Receipt and Chemistry
Report state: 62
 

"RMP 1" One (1) folded paper containing Dried

Marijuana leaves with fruiting tops, x
x x.

"RMP 2" One (1) piece heat-sealed plastic

sachet containing Dried Marijuana
leaves with fruiting tops, x x x.

 
PO2 Canapi testified that he received two (2) heat-sealed plastic
sachets. 63 Moreover, the Laboratory Examination Request (Exhibit "I") shows
that three (3) specimens (i.e., one (1) folded paper, one (1) sachet and one
(1) glass tube containing suspected marijuana) were submitted for
examination. 64 Essentially, the petitioner points out the inconsistency in
describing the packaging of one of the specimens of marijuana: PO2 Canapi
recalls that it was contained in a plastic sachet, while documentary evidence
show that it was contained in a folded paper.
Third, SPO3 Pring claimed that he marked the allegedly seized drugs
with his initials without specifying how and where such markings were
made. 65 The records likewise do not show how the allegedly seized drugs
were handled before their turnover to SPO3 Pring for their making from: (i) the
poseur-buyer who allegedly bought marijuana from the petitioner; and (ii) from
PO1 Zapanta who allegedly confiscated marijuana from the petitioner and to
whom the poseur-buyer turned over the allegedly bought marijuana. 66
SPO3 Pring testified that he personally submitted the specimens to the
crime laboratory. He would, however, contradict himself when he stated that it
was one SPO2 Froilan Mendonez who brought the specimens to the crime
laboratory. 67
Fourth, the testimony of the forensic chemist, Timario, pertained only to
the identification of the Chemistry Report and his conduct of the qualitative
examination. 68 His testimony did not specify how the allegedly seized drugs
were handled before, during and after the conduct of the
examination. 69 Moreover, his name appears on the stamp indicating receipt by
the crime laboratory of the Laboratory Examination Request, but the same
does not bear his signature. 70 Finally, the Chemistry Report only shows two
(2) specimens (i.e., one (1) folded paper and one (1) sachet containing
suspected marijuana) were examined despite the submission of three (3)
specimens (i.e., one (1) folded paper, one (1) sachet, and one (1) glass tube
containing suspected marijuana). 71
Fifth, while it was made to appear that the inventory of the seized items
was done in the presence of all mandatory witnesses, a perusal of the
photographs submitted would show only the DOJ representative and media
representative, and there is no photograph showing that Barangay Captain
Mario S. Mallari signed the inventory. Petitioner also claims that the DOJ
representative signed the inventory in a different place. In fact, PO2 Canapi
admitted that the picture was taken when they brought the petitioner to the
house of the DOJ representative, which indicate that the witness was made to
sign on a different occasion to feign compliance with the requirement of the
law. 72
The respondent failed to sufficiently explain these defects in the chain
of custody, as pointed out by petitioner. The respondent merely relied on the
conclusion of the CA that the chain of custody was unbroken. The respondent
propounded no additional and specific explanations with respect to (i) the
variance in the weight of the allegedly seized drugs; (ii) the inconsistent
descriptions of the seized marijuana; (iii) the handling of the drugs from the
petitioner to SPO3 Pring; (iv) the handling of the drugs by the forensic
chemist; and (v) compliance with mandatory witnesses.
The respondent was not without recourse in explaining these gaps and
defects. Under the last paragraph of Section 21 (a), Article II of the IRR of
R.A. No. 9165, 73 a saving mechanism has been provided to ensure that not
every case of non-compliance with the procedures for the preservation of the
chain of custody will irretrievably prejudice the prosecution's case against the
accused.74 To warrant the application of this saving mechanism, however, the
prosecution must recognize the lapse or lapses, and justify or explain
them. 75 Such justification or explanation would be the basis for applying the
saving mechanism. 76 In this case, the respondent did not concede such
lapses, and did not even tender any specific justification or explanation for
them. 77 The failure to justify or explain underscored the doubt and suspicion
about the integrity of the evidence of the corpus delicti. 78
ACCORDINGLY, the appeal is GRANTED. The Decision and
Resolution of the Court of Appeals dated July 19, 2019 and November 8,
2019, respectively, in CA-G.R. CR No. 40712 are SET ASIDE. The petitioner
is hereby ACQUITTED for failure of the prosecution to establish illegal
possession of drugs under R.A. No. 9165 beyond reasonable doubt.
The Director General of the Bureau of Corrections, Muntinlupa City is
ordered to: a) immediately release the petitioner from custody unless he is
 being held for some other lawful cause; and b) submit his report on the action
taken within five (5) days from notice.
Let an entry of final judgment be issued immediately.
SO ORDERED."

Generally, an arrest or seizure without a warrant issued by a competent judicial authority is

invalid. However, there are certain recognized exceptions listed under Section 5, Rule 113 of the
Rules of Court:
SEC. 5. Arrest without warrant; when lawful. — A peace officer or a private person may,
without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or is temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.

Based on the evidentiary items presented, the prosecution had established: (i) that the police
operatives planned and executed a buy-bust operation; (ii) that the police operatives relied on a
civilian poseur-buyer to transact with the petitioner; (iii) that the police operatives were on a car, which
was parked more or less eight (8) meters to ten (10) meters away from the transaction, based on the
testimony of SPO3 Pring; (iv) that the police operatives saw the poseur-buyer hand the marked
money to the petitioner, and the petitioner hand one (1) plastic sachet to the poseur-buyer; (v) that
the poseur-buyer executed a hand signal, which appeared to signify the completion of the alleged
drug transaction; (vi) that acting on the hand signal, the police operatives effected the arrest of
petitioner; and (vii) upon conducting a bodily search of the petitioner incident to the arrest, the police
operatives found in the possession of the petitioner additional marijuana.

The prosecution failed to present the poseur-buyer allegedly because of the latter's death.
The police operatives also admitted that they did not hear the conversation between the poseur-buyer
and the petitioner. In effecting the warrantless arrest, the police completely relied on: (i) the fact that
they personally saw the exchange of marked money and a plastic sachet from a car parked more or
less eight (8) to ten (10) meters away; (ii) the hand signal of the poseur-buyer; and (iii) upon acting on
the hand signal and approaching the petitioner, their confirmation of the content of the plastic sachet.

This is not a case of in flagrante delicto arrest under Section 5 (a), Rule 113 of the Rules of
Court, considering that the police operatives did not hear the conversation between the poseur-buyer
and petitioner, and they were at such distance from the transaction that it was physically impossible
for them to confirm that a drug sale transaction had taken place. All they could confirm was the
exchange of marked money and an undistinguished item the nature of which could not be identified
from their location before the poseur-buyer made the hand signal.
 A valid warrantless arrest under Section 5 (b), Rule 113 requires that the following must be
present: (i) an offense has just been committed; and (ii) the arresting officer has probable cause to
believe based on personal knowledge of facts or circumstances that the person to be arrested has
committed it. 26

In this case, the only indication that the poseur-buyer has personal knowledge of the illegal drug
transaction was the hand signal. The poseur-buyer did not take the witness stand; hence, his direct and
positive testimony establishing the illegal drug transaction is now lost to this Court.

Does the fact that the police did not hear the conversation preclude the finding of probable cause to
effect a warrantless arrest? Is the mere sight of the exchange of marked money and a plastic sachet,
coupled with the hand signal of the poseur-buyer, sufficient to establish probable cause to effect a
warrantless arrest?

In merely sighting a plastic sachet from around eight (8) to ten (10) meters away, it would be
physically impossible for the police operatives to confirm the content of the sachet. From this vantage
point, the naked eye would not able to ascertain the nature of the content of the sachet. Unless they
were aided with telescopic sight and other sensory aids, it is not ordinarily within the realm of human
experience to be capable of identifying drugs contained in a plastic sachet seen from the vantage
point of the police operatives in this case. Even if one were to merely glimpse a hint of green from
their current vantage point, this would not be sufficient to conclude the nature of the object of their
sight as marijuana. One need to see it at close contact, smell it, or touch it. This is why, in the
testimony of SPO3 Pring, he merely stated that he saw the petitioner hand "something" to the poseur-
buyer. It was indispensable for the poseur-buyer to execute the hand signal so that the police
operatives can approach the petitioner to confirm the content of the sachet. The issue on the validity
of the warrantless arrest in this case therefore rises and falls on the significance of the poseur-buyer's
hand signal, and whether it was sufficient for the purpose of triggering the arrest.

In People v. Ramos, We have ruled that failure to present the poseur-buyer is fatal to the
prosecution's case under the following circumstances:

(1) if there is no person other than the poseur-buyer who witnessed the drug transaction;
(2) if there is no explanation for the non-appearance of the poseur-buyer and reliable eyewitnesses who
could testify in his place;
(3) if the witnesses other than the poseur-buyer did not hear the conversation between the pusher and
poseur-buyer; and
(4) if the accused vehemently denies selling any prohibited drugs coupled with the inconsistent
testimonies of the arresting officers or coupled with the possibility that there exist reasons to believe
that the arresting officers had motives to testify falsely against the appellant.

The common circumstance in the foregoing cases is that the arresting officers had no personal
knowledge of the fact that an illegal drug transaction transpired. Under the factual milieu of Ramos, 28
the police officers saw the transaction between the poseur-buyer and the accused while inside a tinted
car ten (10) meters away, and that prior to the buy-bust operation, they had already planned what was
going to happen. The case states:
From inside the car, they saw their informant hand the premarked P100.00 bill to Ramos who, in turn,
gave one (1) transparent plastic sachet suspected to contain shabu from a Vicks Vaporub jar. When the
transaction was completed, the police officers quickly alighted the vehicle and advanced to the place
where the sale happened. They immediately arrested the subjects and, after frisking Ramos, they
recovered the Vicks Vaporub jar which contained ten (10) more plastic sachets of shabu.

The petitioner is hereby ACQUITTED for failure of the prosecution to establish illegal possession of
drugs under R.A. No. 9165 beyond reasonable doubt