Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 171465              June 8, 2007

AAA *, petitioner,
vs.
HON. ANTONIO A. CARBONELL, in his capacity as Presiding Judge, Branch 27, Regional Trial Court,
San Fernando City, La Union and ENGR. JAIME O. ARZADON, respondents.

DECISION

YNARES-SANTIAGO, J.:

This petition for certiorari1 assails the December 16, 20052 Order of the Regional Trial Court, Branch 27,
San Fernando, La Union in Criminal Case No. 6983, dismissing the rape case filed against private
respondent Jaime O. Arzadon for lack of probable cause; and its February 3, 2006 3 Order denying
petitioner’s motion for reconsideration.

Petitioner worked as a secretary at the Arzadon Automotive and Car Service Center from February 28,
2001 to August 16, 2001. On May 27, 2001 at about 6:30 p.m., Arzadon asked her to deliver a book to
an office located at another building but when she returned to their office, the lights had been turned
off and the gate was closed. Nevertheless, she went inside to get her handbag.

On her way out, she saw Arzadon standing beside a parked van holding a pipe. He told her to go near
him and upon reaching his side, he threatened her with the pipe and forced her to lie on the
pavement. He removed her pants and underwear, and inserted his penis into her vagina. She wept and
cried out for help but to no avail because there was nobody else in the premises.

Petitioner did not report the incident because Arzadon threatened to kill her and her family. But when
she discovered that she was pregnant as a consequence of the rape, she narrated the incident to her
parents. On July 24, 2002, petitioner filed a complaint for rape against Arzadon.

On September 16, 2002, Assistant City Prosecutor Imelda Cosalan issued a Resolution 4 finding probable
cause and recommending the filing of an information for rape. Arzadon moved for reconsideration and
during the clarificatory hearing held on October 11, 2002, petitioner testified before the investigating
prosecutor. However, she failed to attend the next hearing hence, the case was provisionally
dismissed.

On March 5, 2003, petitioner filed another Affidavit-Complaint 5 with a comprehensive account of the
alleged rape incident. The case was assigned to 2nd Assistant Provincial Prosecutor Georgina Hidalgo.
During the preliminary investigation, petitioner appeared for clarificatory questioning. On June 11,
2003, the investigating prosecutor issued a Resolution6 finding that a prima facie case of rape exists
and recommending the filing of the information.
Arzadon moved for reconsideration and requested that a panel of prosecutors be constituted to review
the case. Thus, a panel of prosecutors was created and after the clarificatory questioning, the panel
issued on October 13, 2003 a Resolution7 finding probable cause and denying Arzadon’s motion for
reconsideration.

An Information8 for rape was filed before the Regional Trial Court, Branch 27, San Fernando, La Union
on February 6, 2004, docketed as Criminal Case No. 6415. Thereafter, Arzadon filed a "Motion to Hold
in Abeyance All Court Proceedings Including the Issuance of a Warrant of Arrest and to Determine
Probable Cause for the Purpose of Issuing a Warrant of Arrest." 9 On March 18, 2004, respondent Judge
Antonio A. Carbonell granted the motion and directed petitioner and her witnesses to take the witness
stand for determination of probable cause.

Arzadon also appealed the Resolution of the panel of prosecutors finding probable cause before the
Department of Justice. On July 9, 2004, then Acting Secretary of Justice Merceditas Gutierrez found no
probable cause and directed the withdrawal of the Information in Criminal Case No. 6415. 10

Upon motion for reconsideration by petitioner, however, Secretary of Justice Raul Gonzales reversed
the July 9, 2004 Resolution and issued another Resolution 11 finding that probable cause exists. Thus, a
new Information12 for rape was filed against Arzadon docketed as Criminal Case No. 6983.

Consequently, Arzadon filed an "Urgent Motion for Judicial Determination of Probable Cause for the
Purpose of Issuing a Warrant of Arrest."13 In an Order dated August 11, 2005, respondent Judge
Carbonell granted the motion and directed petitioner and her witnesses to take the witness stand.

Instead of taking the witness stand, petitioner filed a motion for reconsideration claiming that the
documentary evidence sufficiently established the existence of probable cause. Pending resolution
thereof, she likewise filed a petition14 with this Court for the transfer of venue of Criminal Case No.
6983. The case was docketed as Administrative Matter No. 05-12-756-RTC and entitled Re: Transfer of
Venue of Criminal Case No. 6983, formerly Criminal Case No. 6415, from the Regional Trial Court,
Branch 27, San Fernando City, La Union, to any Court in Metro Manila.

In a Resolution15 dated January 18, 2006, the Court granted petitioner’s request for transfer of venue.
The case was raffled to the Regional Trial Court of Manila, Branch 25, and docketed as Criminal Case
No. 06-242289. However, the proceedings have been suspended pending the resolution of this
petition.

Meanwhile, on December 16, 2005, respondent Judge Carbonell issued the assailed Order dismissing
Criminal Case No. 6983 for lack of probable cause. Petitioner’s motion for reconsideration was denied
hence, this petition.
Petitioner raises the following issues:16
I
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN
EXCESS OF JURISDICTION WHEN IT GRANTED THE MOTION FOR DETERMINATION OF PROBABLE CAUSE
FILED BY THE PRIVATE RESPONDENT AND THE SUBSEQUENT DENIAL OF THE MOTION FOR
RECONSIDERATION
II
RESPONDENT JUDGE COMMITTED FURTHER ACTS CONSTITUTING GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION WHEN IT ORDERED THE COMPLAINANT AND
WITNESSES TO TAKE THE STAND FOR THE PURPOSE OF DETERMINING PROBABLE CAUSE
 III
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION WHEN HE REFUSED TO INHIBIT FROM
FURTHER HANDLING THE CASE DESPITE WHISPERS OF DOUBT ON HIS BIAS AND PARTIALITY
IV
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION WHEN IT ISSUED THE ORDER OF
FEBRUARY 3, 2006, DENYING THE MOTION FOR RECONSIDERATION, DESPITE THE SUPREME COURT
RESOLUTION OF JANUARY 18, 2006, GRANTING THE TRANSFER OF VENUE

Petitioner contends that the judge is not required to personally examine the complainant and her
witnesses in satisfying himself of the existence of probable cause for the issuance of a warrant of
arrest. She argues that respondent Judge Carbonell should have taken into consideration the
documentary evidence as well as the transcript of stenographic notes which sufficiently established the
existence of probable cause.

Arzadon claims that the petition should be dismissed outright for being the wrong mode of appeal, it
appearing that the issues raised by petitioner properly fall under an action for certiorari under Rule 65,
and not Rule 45, of the Rules of Court.

Respondent Judge Carbonell argues in his Comment17 that the finding of probable cause by the
investigating prosecutor is not binding or obligatory, and that he was justified in requiring petitioner
and her witnesses to take the witness stand in order to determine probable cause.

The issues for resolution are 1) whether the petition should be dismissed for being the wrong mode of
appeal; and 2) whether respondent Judge Carbonell acted with grave abuse of discretion in dismissing
Criminal Case No. 6983 for lack of probable cause.

The petition has merit.

A petition for review on certiorari under Rule 45 is distinct from a petition for certiorari under Rule 65
in that the former brings up for review errors of judgment while the latter concerns errors of
jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of
discretion is not an allowable ground under Rule 45. However, a petition for review on certiorari under
Rule 45 may be considered a petition for certiorari under Rule 65 where it is alleged that the
respondents abused their discretion in their questioned actions, as in the instant case. 18 While
petitioner claims to have brought the instant action under Rule 45, the grounds raised herein involve
an alleged grave abuse of discretion on the part of respondent Judge Carbonell. Accordingly, the Court
shall treat the same as a petition for certiorari under Rule 65.

However, we must point out the procedural error committed by petitioner in directly filing the instant
petition before this Court instead of the Court of Appeals, thereby violating the principle of judicial
hierarchy of courts. It is well-settled that although the Supreme Court, Court of Appeals and the
Regional Trial Courts have concurrent jurisdiction to issue writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give the
petitioner unrestricted freedom of choice of court forum.19 In this case, however, the gravity of the
offense charged and the length of time that has passed since the filing of the complaint for rape,
compel us to resolve the present controversy in order to avoid further delay. 20

We thus proceed to the issue of whether respondent Judge Carbonell acted with grave abuse of
discretion in dismissing Criminal Case No. 6983 for lack of probable cause.
We rule in the affirmative.

Respondent Judge Carbonell dismissed Criminal Case No. 6983 for lack of probable cause on the
ground that petitioner and her witnesses failed to comply with his orders to take the witness stand.
Thus –

In RESUME therefore, as indubitably borne out by the case record and considering that the Private
Prosecutor, despite several admonitions contumaciously nay contemptuously refused to comply/obey
this Court’s Orders of March 18, 2004, August 11, 2005 and eight (8) other similar Orders issued in
open Court that directed the complainant/witnesses to take the witness stand to be asked
probing/clarificatory questions consonant with cited jurisprudential rulings of the Supreme Court, this
Court in the exercise of its discretion and sound judgment finds and so holds that NO probable cause
was established to warrant the issuance of an arrest order and the further prosecution of the instant
case.

Record also shows in no unclear terms that in all the scheduled hearings of the case, the accused had
always been present. A contrario, the private complainant failed to appear during the last four (4)
consecutive settings despite due notice without giving any explanation, which to the mind of the Court
may indicate an apparent lack of interest in the further prosecution of this case. That failure may even
be construed as a confirmation of the Defense’s contention reflected in the case record, that the only
party interested in this case is the Private prosecutor, prodded by the accused’s alleged hostile siblings
to continue with the case.

WHEREFORE, premises considered, for utter lack of probable cause, the instant case is hereby ordered
DISMISSED.21

He claims that under Section 2, Article III of the 1987 Constitution, no 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."

However, in the leading case of Soliven v. Makasiar,22 the Court explained that this constitutional
provision does not mandatorily require the judge to personally examine the complainant and her
witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted
by the prosecutor or he may disregard the prosecutor’s report and require the submission of
supporting affidavits of witnesses. Thus:

The addition of the word "personally" after the word "determined" and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to "other responsible officers as may be
authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the
judge to personally examine the complainant and his witnesses in his determination of probable cause
for the issuance of warrants of arrest. This is not an accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally
evaluate the report and the supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he
finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would by unduly laden with the preliminary
examination and investigation of criminal complaints instead of concentrating on hearing and deciding
cases filed before their courts.23

We reiterated the above ruling in the case of Webb v. De Leon,24 where we held that before issuing
warrants of arrest, judges merely determine the probability, not the certainty, of guilt of an accused. In
doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They
just personally review the initial determination of the prosecutor finding a probable cause to see if it is
supported by substantial evidence.25

It is well to remember that there is a distinction between the preliminary inquiry which determines
probable cause for the issuance of a warrant of arrest and the preliminary investigation proper which
ascertains whether the offender should be held for trial or be released. The determination of probable
cause for purposes of issuing the warrant of arrest is made by the judge. The preliminary investigation
proper – whether or not there is reasonable ground to believe that the accused is guilty of the offense
charged – is the function of the investigating prosecutor.26

True, there are cases where the circumstances may call for the judge’s personal examination of the
complainant and his witnesses. But it must be emphasized that such personal examination is not
mandatory and indispensable in the determination of probable cause for the issuance of a warrant of
arrest. The necessity arises only when there is an utter failure of the evidence to show the existence of
probable cause.27 Otherwise, the judge may rely on the report of the investigating prosecutor, provided
that he likewise evaluates the documentary evidence in support thereof.

Indeed, what the law requires as personal determination on the part of the judge is that he should not
rely solely on the report of the investigating prosecutor. In Okabe v. Gutierrez,28 we stressed that the
judge should consider not only the report of the investigating prosecutor but also the affidavit and the
documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as
the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the
court by the investigating prosecutor upon the filing of the Information. 29 If the report, taken together
with the supporting evidence, is sufficient to sustain a finding of probable cause, it is not compulsory
that a personal examination of the complainant and his witnesses be conducted.

In this case, respondent Judge Carbonell dismissed Criminal Case No. 6983 without taking into
consideration the June 11, 2003 Resolution of 2nd Assistant Provincial Prosecutor Georgina Hidalgo,
the October 13, 2003 Resolution of the panel of prosecutors, and the July 1, 2005 Resolution of the
Department of Justice, all of which sustain a finding of probable cause against Arzadon. Moreover, he
failed to evaluate the evidence in support thereof. Respondent judge’s finding of lack of probable
cause was premised only on the complainant’s and her witnesses’ absence during the hearing
scheduled by the respondent judge for the judicial determination of probable cause.

Petitioner narrated in detail the alleged rape incident both in her Sinumpaang Salaysay30 dated July 24,
2002 and Complaint-Affidavit31 dated March 5, 2003. She attended several clarificatory hearings that
were conducted in the instant case. The transcript of stenographic notes 32 of the hearing held on
October 11, 2002 shows that she positively identified Arzadon as her assailant, and the specific time
and place of the incident. She also claimed that she bore a child as a result of the rape and, in support
of her contentions, presented the child and her birth certificate as evidence. In contrast, Arzadon
merely relied on the defense of alibi which is the weakest of all defenses.

After a careful examination of the records, we find that there is sufficient evidence to establish
probable cause. The gravamen of rape is the carnal knowledge by the accused of the private
complainant under any of the circumstances provided in Article 335 of the Revised Penal Code, as
amended.33 Petitioner has categorically stated that Arzadon raped her, recounting her ordeal in detail
during the preliminary investigations. Taken with the other evidence presented before the
investigating prosecutors, such is sufficient for purposes of establishing probable cause. It is well-
settled that a finding of probable cause need not be based on clear and convincing evidence beyond
reasonable doubt. Probable cause is that which engenders a well-founded belief that a crime has been
committed and that the respondent is probably guilty thereof and should be held for trial. It does not
require that the evidence would justify conviction. 34

It is clear therefore that respondent Judge Carbonell gravely abused his discretion in dismissing
Criminal Case No. 6983 for lack of probable cause on the ground that petitioner and her witnesses
failed to take the witness stand. Considering there is ample evidence and sufficient basis on record to
support a finding of probable cause, it was unnecessary for him to take the further step of examining
the petitioner and her witnesses. Moreover, he erred in holding that petitioner’s absences in the
scheduled hearings were indicative of a lack of interest in prosecuting the case. In fact, the records
show that she has relentlessly pursued the same.

Needless to say, a full-blown trial is to be preferred to ferret out the truth. 35 As it were, the incidents of
this case have been pending for almost five years without having even passed the preliminary
investigation stage. Suffice to say that the credibility of petitioner may be tested during the trial where
the respective allegations and defenses of the complainant and the accused are properly ventilated. It
is only then that the truth as to Arzadon’s innocence or guilt can be determined.

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court, Branch 27, San
Fernando, La Union dated December 16, 2005, and February 3, 2006 dismissing Criminal Case No. 6983
for lack of probable cause are REVERSED and SET ASIDE, and the Information in the said case is
hereby REINSTATED. The Regional Trial Court, Branch 25, Manila is DIRECTED to take cognizance of the
case and let the records thereof be REMANDED to the said court for further proceedings.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 199032               November 19, 2014

RETIRED SP04 BIENVENIDO LAUD, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PER CURIAM:

Assailed in this petition for review on certiorari 1 are the Decision2 dated April 25, 2011 and the
Resolution3 dated October 17, 2011 of the Court of Appeals (CA) in CA-G.R. SP. No. 113017 upholding
the validity of Search Warrant No. 09-14407.4

The Facts

On July 10, 2009, the Philippine National Police (PNP), through Police Senior Superintendent Roberto B.
Fajardo, applied with the Regional Trial Court (RTC) of Manila, Branch50 (Manila-RTC) for a warrant to
search three (3) caves located inside the Laud Compound in Purok 3, Barangay Ma-a, Davao City,
where the alleged remains of the victims summarily executed by the so-called "Davao Death Squad"
may be found.5 In support of the application, a certain Ernesto Avasola (Avasola) was presented to the
RTC and there testified that he personally witnessed the killing of six (6) persons in December 2005,
and was, in fact, part of the group that buried the victims.6

Judge William Simon P. Peralta (Judge Peralta), acting as Vice Executive Judge of the Manila-RTC, found
probable cause for the issuance of a search warrant, and thus, issued Search Warrant No. 09-
144077 which was later enforced by the elements ofthe PNP-Criminal Investigation and Detection
Group, in coordination withthe members of the Scene of the Crime Operatives on July 15, 2009.The
search of the Laud Compound caves yielded positive results for the presence of human remains. 8

On July 20, 2009, herein petitioner, retired SPO4 Bienvenido Laud (Laud), filed an Urgent Motion to
Quash and to Suppress Illegally Seized Evidence9 premised on the following grounds: (a) Judge Peralta
had no authority to act on the application for a search warrant since he had been automatically
divested of his position asVice Executive Judge when several administrative penalties were imposed
against him by the Court;10 (b) the Manila-RTC had no jurisdiction to issue Search Warrant No. 09-
14407 which was to be enforced in Davao City;11 (c) the human remains sought to be seized are not a
proper subject of a search warrant;12 (d) the police officers are mandated to follow the prescribed
procedure for exhumation of human remains;13 (e) the search warrant was issued despite lack of
probable cause;14 (f) the rule against forum shopping was violated;15 and (g) there was a violation of the
rule requiring one specific offense and the proper specification of the place to be searched and the
articles to be seized.16
 The Manila-RTC Ruling

In an Order17 dated July 23, 2009, the Manila-RTC granted the motion of Laud "after a careful
consideration [of] the grounds alleged [therein]." Aside from this general statement, the said Order
contained no discussion on the particular reasons from which the Manila-RTC derived its conclusion.

Respondent, the People of the Philippines (the People), filed a Motion for Reconsideration 18 which was,
however, denied in an Order19 dated December 8, 2009, wherein the Manila-RTC, this time, articulated
its reasons for the warrant’s quashal, namely: (a) the People failed to show any compelling reason to
justify the issuanceof a search warrant by the Manila RTC which was to be implemented in Davao City
where the offense was allegedly committed, in violation of Section 2, Rule 126 of the Rules of
Court;20 (b) the fact that the alleged offense happened almost four (4) years before the search warrant
application was filed rendered doubtful the existence of probable cause;21 and (c) the applicant, i.e.,
the PNP, violated the rule against forum shopping as the subject matter of the present search warrant
application is exactly the sameas the one contained in a previous application 22 before the RTC of Davao
City, Branch 15 (Davao-RTC) which had been denied.23

Unconvinced, the People filed a petition for certioraribefore the CA, docketed as CA-G.R. SP. No.
113017.

The CA Ruling

In a Decision24 dated April 25, 2011, the CA granted the People’s petition and thereby annulled and set
aside the Orders of the Manila-RTC for having been tainted with grave abuse of discretion.

It held that the requirements for the issuance of a search warrant were satisfied, pointing out that an
application therefor involving a heinous crime, such as Murder, is an exception to the compelling
reasons requirement under Section 2, Rule 126 of the Rules of Court as explicitly recognized in A.M.
No. 99-20-09-SC25 and reiterated in A.M. No. 03-8-02-SC,26 provided that the application is filed by the
PNP, the National Bureau of Investigation (NBI), the Presidential Anti-Organized Crime Task Force
(PAOC-TF) or the Reaction Against Crime Task Force (REACT-TF), 27 with the endorsement of its head,
before the RTC of Manila or Quezon City, and the warrant be consequently issued by the Executive
Judge or Vice-Executive Judge of either of the said courts, as in this case.28

Also, the CA found that probable cause was established since, among others, witness Avasola deposed
and testified that he personally witnessed the murder of six (6) persons in December 2005 and was
actually part of the group that buried the victims – two bodies in each of the three (3) caves. 29 Further,
it observed that the Manila-RTC failed to consider the fear of reprisal and natural reluctance of a
witness to get involved in a criminal case, stating that these are sufficient reasons to justify the delay
attending the application of a search warrant.30 Accordingly, it deemed that the physical evidence of a
protruding human bone in plain view in one of the caves, and Avasola’s first-hand eye witness account
both concur and point to the only reasonable conclusion that the crime ofMurder had been committed
and that the human remains of the victims were located in the Laud Compound. 31

Finally, the CA debunked the claim of forum shopping, finding that the prior application for a search
warrant filed before the Davao-RTC was based on facts and circumstances different from those in the
application filed before the Manila-RTC.32

Dissatisfied, Laud moved for reconsideration which was, however, denied in a Resolution 33 dated
October 17, 2011,hence, this petition.

The Issues Before the Court

The issues for the Court’s resolution are as follows: (a) whether the administrative penalties imposed
on Judge Peralta invalidated Search Warrant No. 09-14407; (b) whether the Manila-RTC had
jurisdiction to issue the said warrant despite non-compliance with the compelling reasons requirement
under Section 2, Rule126 of the Rules of Court; (c) whether the requirements of probable cause and
particular description were complied with and the one-specific-offense rule under Section 4, Rule 126
of the Rules of Court was violated; and (d) whether the applicant for the search warrant,i.e., the PNP,
violated the rule against forum shopping.1âwphi1

The Court's Ruling

The petition has no merit.

A. Effect of Judge Peralta’s Administrative Penalties.

Citing Section 5, Chapter III of A.M. No. 03-8-02-SC which provides that "[t]he imposition upon an
Executive Judge or Vice-Executive Judge of an administrative penalty of at least a reprimand shall
automatically operate to divest him of his position as such,"Laud claims that Judge Peralta had no
authority to act as Vice-Executive Judge and accordingly issue Search Warrant No. 09-14407 in view of
the Court’s Resolution in Dee C. Chuan & Sons, Inc. v. Judge Peralta 34 wherein he was administratively
penalized with fines of ₱15,000.00 and ₱5,000.00. 35

While the Court does agree that the imposition of said administrative penalties did operate to divest
Judge Peralta’s authority to act as ViceExecutive Judge, it must be qualified that the abstraction of such
authority would not, by and of itself, result in the invalidity of Search Warrant No. 09-14407
considering that Judge Peralta may be considered to have made the issuance as a de facto officer
whose acts would, nonetheless, remain valid.

Funa v. Agra36 defines who a de factoofficer is and explains that his acts are just as valid for all purposes
as those of a de jureofficer, in so far as the public or third persons who are interested therein are
concerned, viz.:

A de facto officer is one who derives his appointment from one having colorable authority to appoint, if
the office is an appointive office, and whose appointment is valid on its face. He may also be one who is
in possession of an office, and is discharging [his] duties under color of authority, by which is meant
authority derived from an appointment, however irregular or informal, so that the incumbent is not a
mere volunteer. Consequently, the acts of the de factoofficer are just as valid for all purposes as those
of a de jure officer, in so far as the public or third persons who are interested therein are concerned. 37

The treatment of a de factoofficer’s acts is premised on the reality that third persons cannot always
investigate the right of one assuming to hold an important office and, as such, have a right to assume
that officials apparently qualified and in office are legally such.38 Public interest demands that acts of
persons holding, under color of title, an office created by a valid statute be, likewise, deemed valid
insofar as the public – as distinguished from the officer in question – is concerned. 39 Indeed, it is far
more cogently acknowledged that the de factodoctrine has been formulated, not for the protection of
the de facto officer principally, but rather for the protection of the public and individuals who get
involved in the official acts of persons discharging the duties of an office without being lawful officers. 40

In order for the de facto doctrine to apply, all of the following elements must concur: (a) there must be
a de jureoffice; (b) there must be color of right or general acquiescence by the public; and (c) there
must be actual physical possession of the office in good faith. 41

The existence of the foregoing elements is rather clear in this case. Undoubtedly, there is a de
jureoffice of a 2nd Vice-Executive Judge. Judge Peralta also had a colorable right to the said office as he
was duly appointed to such position and was only divested of the same by virtue of a supervening legal
technicality – that is, the operation of Section 5, Chapter III of A.M. No. 03-8-02-SC as above-explained;
also, it may be said that there was general acquiescence by the public since the search warrant
application was regularly endorsed to the sala of Judge Peralta by the Office of the Clerk of Court of the
Manila-RTC under his apparent authority as 2nd Vice Executive Judge. 42 Finally, Judge Peralta’s actual
physical possession of the said office is presumed to bein good faith, as the contrary was not
established.43 Accordingly, Judge Peralta can be considered to have acted as a de factoofficer when he
issued Search Warrant No. 09-14407, hence, treated as valid as if it was issued by a de jureofficer
suffering no administrative impediment.

B. Jurisdiction of the Manila-RTC to Issue Search Warrant No. 09- 14407; Exception to the Compelling
Reasons Requirement Under Section 2, Rule 126 of the Rules of Court.

Section 12, Chapter V of A.M.No. 03-8-02-SC states the requirements for the issuance of search
warrants in special criminal cases by the RTCs of Manilaand Quezon City. These special criminal cases
pertain to those "involving heinous crimes, illegal gambling, illegal possession of firearms and
ammunitions, as well as violations of the Comprehensive Dangerous Drugs Act of 2002, the Intellectual
Property Code, the Anti-Money Laundering Act of 2001, the Tariff and Customs Code, as amended, and
other relevant laws that may hereafter be enacted by Congress, and included herein by the Supreme
Court." Search warrant applications for such cases may befiled by "the National Bureau of Investigation
(NBI), the Philippine National Police(PNP) and the AntiCrime Task Force (ACTAF)," and "personally
endorsed by the heads of such agencies." As in ordinary search warrant applications, they "shall
particularly describe therein the places to be searched and/or the property or things to be seized as
prescribed in the Rules of Court." "The Executive Judges [of these RTCs] and,whenever they are on
official leave of absence or are not physically present in the station, the Vice-Executive Judges" are
authorized to act on such applications and "shall issue the warrants, if justified, which may be served in
places outside the territorial jurisdiction of the said courts."

The Court observes that all the above-stated requirements were complied with in this case.

As the records would show, the search warrant application was filed before the Manila-RTC by the PNP
and was endorsed by its head, PNP Chief Jesus Ame Versosa, 44 particularly describing the place to be
searched and the things to be seized (as will be elaborated later on) in connection with the heinous
crime of Murder.45 Finding probable cause therefor, Judge Peralta, in his capacity as 2nd Vice-Executive
Judge, issued Search Warrant No. 09-14407 which, as the rules state, may be served in places outside
the territorial jurisdiction of the said RTC.
Notably, the fact that a search warrant application involves a "special criminal case" excludes it from
the compelling reason requirement under Section 2, Rule 126 of the Rules of Court which provides:

SEC. 2. Court where application for search warrant shall be filed. — An application for search warrant
shall be filed with the following:

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

b) For compelling reasons stated in the application, any court within the judicial region where
the crime was committed if the place of the commission of the crime isknown, or any court
within the judicial region where the warrant shall be enforced.

However, if the criminal action has already been filed, the application shall only be made in the court
where the criminal action is pending. (Emphasis supplied)

As explicitly mentioned in Section 12, Chapter V of A.M. No. 03-8- 02-SC, the rule on search warrant
applications before the Manila and Quezon City RTCs for the above-mentioned special criminal cases
"shall be an exception to Section 2 of Rule 126 of the Rules of Court." Perceptibly, the fact that a search
warrant is being applied for in connection with a special criminal case as above-classified already
presumes the existence of a compelling reason; hence, any statement to this effect would be super
fluous and therefore should be dispensed with. By all indications, Section 12, Chapter V of A.M. No. 03-
8-02-SC allows the Manila and Quezon City RTCs to issue warrants to be servedin places outside their
territorial jurisdiction for as long as the parameters under the said section have been complied with, as
in this case. Thus, on these grounds, the Court finds nothing defective in the preliminary issuance of
Search Warrant No. 09-14407. Perforce, the RTC-Manila should not have overturned it.

C. Compliance with the Constitutional Requirements for the Issuance of Search Warrant No. 09-14407
and the One-SpecificOffense Rule Under Section 4, Rule 126 of the Rules of Court.

In order to protect the people’s right against unreasonable searches and seizures, Section 2, Article III
of the 1987 Philippine Constitution (Constitution) provides that no search warrant shall issue except
upon probable causeto be determined personally by the judgeafter examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized:

SEC. 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 besearched and the persons or
things to be seized.

Complementarily, Section 4, Rule 126 of the Rules of Court states that a search warrant shall not be
issued except upon probable cause in connection with one specific offense:

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

In this case, the existence of probable cause for the issuance of Search Warrant No. 09-14407 is
evident from the first-hand account of Avasola who, in his deposition, stated that he personally
witnessed the commission of the afore-stated crime and was, in fact, part of the group that buried the
victims:

Q9-Who are these six (6) male victims who were killed and buried in the caves in December 2005 at
around 9:00 p.m.?

A9-I heard Tatay Laud calling the names of the two victims when they were still alive as Pedro and
Mario. I don’t know the names of the other four victims.

Q10-What happened after Pedro, Mario and the other four victims were killed?

A10-Tatay Laud ordered me and the six (6) killers to bring and bury equally the bodies inthe three
caves. We buried Pedro and Mario altogether in the first cave, located more or less 13 meters from the
makeshift house of Tatay Laud, the other two victims in the second cave and the remaining two in the
third cave.

Q11-How did you get there at Laud Compound in the evening of December 2005?

A11-I was ordered by Tatay Laud to go [to] the place. I ran errands [for] him. 46

Avasola’s statements in his deposition were confirmed during the hearing on July 10, 2009, where
Judge Peralta conducted the following examination:

Court: x x x Anong panandaan mo? Nandoon ka ba noong naghukay, nakatago o kasama ka?

Mr. Avasola: Kasama po ako sa pagbuhat ng mga tao, sir.

Court: Mga ilang katao?

Mr. Avasola: Anim (6) po.

Court: May mass grave ba na nahukay?

Mr. Avasola: May tatlong kweba po na maliliit yung isa malaki. x x x. 47

Verily, the facts and circumstancesestablished from the testimony of Avasola, who was personally
examined by Judge Peralta, sufficiently show that more likely than not the crime of Murder of six (6)
persons had been perpetrated and that the human remains in connection with the same are in the
place sought to be searched. In Santos v. Pryce Gases, Inc.,48 the Court explained the quantum of
evidence necessary to establish probable cause for a search warrant, as follows:

Probable cause for a search warrant is defined as such facts and circumstances which would lead a
reasonably discrete and prudent man to believe that an offense has been committed and that the
objects sought in connection with the offense are in the place sought to be searched. A finding of
probable cause needs only torest on evidence showing that, more likely than not, a crime has been
committed and that it was committed by the accused. Probable cause demands more than bare
suspicion; it requires less than evidence which would justify conviction. The existence depends to a
large degree upon the finding or opinion of the judge conducting the examination. However, the
findings of the judge should not disregard the facts before him nor run counter to the clear dictates of
reason.49

In light of the foregoing, the Court finds that the quantum of proof to establish the existence of
probable cause had been met. That a "considerable length of time" attended the search warrant’s
application from the crime’s commission does not, by and of itself, negate the veracity of the
applicant’s claims or the testimony of the witness presented. As the CA correctly observed, the delay
may be accounted for by a witness’s fear of reprisal and natural reluctance to get involved in a criminal
case.50 Ultimately, in determining the existence of probable cause, the facts and circumstances must be
personally examined by the judge in their totality, together with a judicious recognition of the variable
complications and sensibilities attending a criminal case. To the Court’s mind, the supposed delay in
the search warrant’s application does not dilute the probable cause finding made herein. In fine, the
probable cause requirement has been sufficiently met.

The Court similarly concludes that there was compliance with the constitutional requirement that
there be a particular description of "the place to be searched and the persons or things to be seized."

"[A] description of a place to be searched is sufficient if the officer with the warrant can, with
reasonable effort, ascertain and identify the place intended and distinguish it from other places in the
community. Any designation or description known to the locality that points out the place to the
exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies the constitutional
requirement."51

Search Warrant No. 09-14407 evidently complies with the foregoing standard since it particularly
describes the place to be searched, namely, the three (3) caves located inside the Laud Compound in
Purok 3, Barangay Maa, Davao City:

You are hereby commanded to makean immediate search at any time [of] the day of the premises
above describe[d] particularly the three (3) caves (as sketched) inside the said Laud Compound, Purok
3, Brgy. Ma-a, Davao Cityand forthwith seize and take possession of the remains of six (6) victims who
were killed and buried in the just said premises.

x x x x52 (Emphases supplied)

For further guidance in its enforcement, the search warrant even made explicit reference to the
sketch53 contained in the application. These, in the Court’s view, are sufficient enough for the officers
to, with reasonable effort, ascertain and identify the place to be searched, which they in fact did.

The things to be seized were also particularly described, namely, the remains of six (6) victims who
were killed and buried in the aforesaid premises. Laud’s posturing that human remains are not
"personal property" and, hence, could not be the subject of a search warrant deserves scant
consideration. Section 3, Rule 126 of the Rules of Court states:
SEC. 3.Personal property to be seized. – A search warrant may be issued for the search and seizure of
personal property:

(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds, or fruits of the offense; or

(c) Used or intended to be used as the means of committing an offense. (Emphases supplied)
"Personal property" in the foregoing context actually refers to the thing’s mobility, and not to
its capacity to be owned or alienated by a particular person. Article416 of the Civil
Code,54 which Laud himself cites,55 states that in general, all things which can be transported
from place to place are deemed to be personal property. Considering that human remains can
generally be transported from place toplace, and considering further that they qualify under
the phrase "subject of the offense" given that they prove the crime’s corpus delicti, 56 it follows
that they may be valid subjects of a search warrant under the above-cited criminal procedure
provision. Neither does the Court agree with Laud’s contention that the term "human remains"
is too all-embracing so as to subvert the particular description requirement. Asthe Court sees it,
the description points to no other than the things that bear a direct relation to the offense
committed, i.e., of Murder. It is also perceived that the description is already specific as the
circumstances would ordinarily allow given that the buried bodies would have naturally
decomposed over time. These observations on the description’s sufficient particularity square
with the Court’s pronouncement in Bache and Co., (Phil.), Inc. v. Judge Ruiz,57 wherein it was
held:

A search warrant may be said to particularly describe the things to be seized when the description
therein is as specific as the circumstances will ordinarily allow(People v. Rubio, 57 Phil. 384 [1932]); or
when the description expresses a conclusion of fact — not of law — by which the warrant officer may
be guided in making the search and seizure (idem., dissent of Abad Santos, J.); or when the things
described are limited to those which bear direct relation to the offense for which the warrant is being
issued(Sec. 2, Rule 126, Revised Rules of Court) x x x If the articles desired to be seized have any direct
relation to an offense committed, the applicant must necessarily have some evidence, other than those
articles, to prove the said offense; and the articles subject of search and seizure should come in handy
merely to strengthen such evidence. (Emphases supplied)58

Consequently, the Court finds that the particular description requirement – both as to the place to be
searched and the things to be seized – had been complied with.

Finally, the Court finds no violation of the one-specific-offense rule under Section 4, Rule 126 of the
Rules of Court as above-cited which, to note, was intended to prevent the issuance of scattershot
warrants, or those which are issued for more than one specific offense. The defective nature of scatter-
shot warrants was discussed in the case of People v. CA59 as follows: There is no question that the
search warrant did not relate to a specific offense, in violation of the doctrine announced in Stonehill v.
Diokno and of Section 3 [now, Section 4] of Rule 126 providing as follows:

SEC. 3. Requisites for issuing search warrant.— A search warrant shall not issue but upon probable
cause in connection with one specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the things to be seized. Significantly, the petitioner
has not denied this defect in the search warrant and has merely said that there was probable cause,
omitting to continue that it was in connection withone specific offense. He could not, of course, for the
warrant was a scatter-shot warrant that could refer, in Judge Dayrit’s own words, "to robbery, theft,
qualified theft or estafa." On this score alone, the search warrantwas totally null and void and was
correctly declared to be so by the very judge who had issued it.60

In Columbia Pictures, Inc. v. CA,61 the Court, however, settled that a search warrant that covers several
counts of a certain specific offense does not violate the one-specific-offense rule, viz.:

That there were several counts of the offenseof copyright infringement and the search warrant
uncovered several contraband items in the form of pirated video tapes is not to be confused with the
number of offenses charged. The search warrant herein issued does not violate the one-specific-
offense rule. (Emphasis supplied)62

Hence, given that Search Warrant No. 09-14407 was issued only for one specific offense – that is, of
Murder, albeit for six (6) counts – it cannot be said that Section 4, Rule 126 of the Rules of Court had
been violated.

That being said, the Court now resolves the last issue on forum shopping.

D. Forum Shopping.

There is forum shopping when a litigant repetitively avails of several judicial remedies in different
courts, simultaneously or successively, all substantially founded on the same transactions and the same
essential facts and circumstances, and all raising substantially the same issues either pending in or
already resolved adversely by some other court to increase his chances of obtaining a favorable
decision if not in one court, then in another.63

Forum shopping cannot be said to have been committed in this case considering the various points of
divergence attending the search warrant application before the Manila-RTC and that before the Davao-
RTC. For one, the witnesses presented in each application were different. Likewise, the application filed
in Manila was in connection with Murder, while the one in Davao did not specify any crime. Finally, and
more importantly, the places to be searched were different – that inManila sought the search of the
Laud Compound caves, while that in Davao was for a particular area in the Laud Gold Cup Firing Range.
There being no identity of facts and circumstances between the two applications, the ruleagainst
forum shopping was therefore not violated.

Thus, for all the above-discussed reasons, the Court affirms the CA Ruling which upheld the validity of
Search Warrant No. 09-14407.

WHEREFORE, the petition is DENIED. The Decision dated April 25, 2011 and the Resolution dated
October 17, 2011 of the Court of Appeals in CA-G.R. SP. No. 113017 are hereby AFFIRMED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC
G.R. No. 157870             November 3, 2008

SOCIAL JUSTICE SOCIETY (SJS), petitioner

vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), respondents.
x-----------------------------------------------x
G.R. No. 158633             November 3, 2008
ATTY. MANUEL J. LASERNA, JR., petitioner
vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, respondents.
x-----------------------------------------------x
G.R. No. 161658             November 3, 2008
AQUILINO Q. PIMENTEL, JR., petitioner
vs.
COMMISSION ON ELECTIONS, respondents.

DECISION

VELASCO, JR., J.:

In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise
known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug
testing of candidates for public office, students of secondary and tertiary schools, officers and
employees of public and private offices, and persons charged before the prosecutor's office with
certain offenses, among other personalities, is put in issue.

As far as pertinent, the challenged section reads as follows:

SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any government
forensic laboratories or by any of the drug testing laboratories accredited and monitored by the
DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among
others, two (2) testing methods, the screening test which will determine the positive result as
well as the type of drug used and the confirmatory test which will confirm a positive screening
test. x x x The following shall be subjected to undergo drug testing:

xxxx

(c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools
shall, pursuant to the related rules and regulations as contained in the school's student
handbook and with notice to the parents, undergo a random drug testing x x x;

(d) Officers and employees of public and private offices. - Officers and employees of public and
private offices, whether domestic or overseas, shall be subjected to undergo a random drug
test as contained in the company's work rules and regulations, x x x for purposes of reducing
 the risk in the workplace. Any officer or employee found positive for use of dangerous drugs
shall be dealt with administratively which shall be a ground for suspension or termination,
subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil
Service Law;

xxxx

(f) All persons charged before the prosecutor's office with a criminal offense having an
imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a
mandatory drug test;

(g) All candidates for public office whether appointed or elected both in the national or local
government shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs
use shall be subject to the provisions of Section 15 of this Act.

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486,
prescribing the rules and regulations on the mandatory drug testing of candidates for public office in
connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of
the said resolution read as follows:

WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

SEC. 36. Authorized Drug Testing. - x x x

xxxx

(g) All candidates for public office x x x both in the national or local government shall undergo a
mandatory drug test.

WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and
employees must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the
quality of candidates they are electing and they will be assured that only those who can serve
with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x.

NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the
Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election
laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on
the conduct of mandatory drug testing to candidates for public office[:]

SECTION 1. Coverage. - All candidates for public office, both national and local, in the May 10,
2004 Synchronized National and Local Elections shall undergo mandatory drug test in
 government forensic laboratories or any drug testing laboratories monitored and accredited by
the Department of Health.

SEC. 3. x x x

On March 25, 2004, in addition to the drug certificates filed with their respective offices, the
Comelec Offices and employees concerned shall submit to the Law Department two (2)
separate lists of candidates. The first list shall consist of those candidates who complied with
the mandatory drug test while the second list shall consist of those candidates who failed to
comply x x x.

SEC. 4. Preparation and publication of names of candidates. - Before the start of the campaign
period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist
of those candidates who complied with the mandatory drug test while the second list shall
consist of those candidates who failed to comply with said drug test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate. - No
person elected to any public office shall enter upon the duties of his office until he has
undergone mandatory drug test and filed with the offices enumerated under Section 2 hereof
the drug test certificate herein required. (Emphasis supplied.)

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re - election in the
May 10, 2004 elections,1 filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1)
to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being
unconstitutional in that they impose a qualification for candidates for senators in addition to those
already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing
Resolution No. 6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states:

SECTION 3. No person shall be a Senator unless he is a natural - born citizen of the Philippines,
and, on the day of the election, is at least thirty - five years of age, able to read and write, a
registered voter, and a resident of the Philippines for not less than two years immediately
preceding the day of the election.

According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to
be a candidate for, elected to, and be a member of the Senate. He says that both the Congress and
COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other
candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for
senator must first be certified as drug free. He adds that there is no provision in the Constitution
authorizing the Congress or COMELEC to expand the qualification requirements of candidates for
senator.

G.R. No. 157870 (Social Justice Society v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political
party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency
(PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are
constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when
they give unbridled discretion to schools and employers to determine the manner of drug testing. For
another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a
student or an employee deemed undesirable. And for a third, a person's constitutional right against
unreasonable searches is also breached by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari
and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as
unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable
search and seizure, and the right against self - incrimination, and for being contrary to the due process
and equal protection guarantees.

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the matter of the standing of
petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to
allege any incident amounting to a violation of the constitutional rights mentioned in their separate
petitions.2

It is basic that the power of judicial review can only be exercised in connection with a bona
fide controversy which involves the statute sought to be reviewed.3 But even with the presence of an
actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional
question is brought before it by a party having the requisite standing to challenge it. 4 To have standing,
one must establish that he or she has suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and
the injury is likely to be redressed by a favorable action. 5

The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non - traditional
plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as
when the matter is of transcendental importance, of overarching significance to society, or of
paramount public interest.6 There is no doubt that Pimentel, as senator of the Philippines and
candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial
interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS
and Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental
importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165.

The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification
for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for
candidates for senator in addition to those laid down by the Constitution? An
(2) (2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do
these paragraphs violate the right to privacy, the right against unreasonable searches and
 seizure, and the equal protection clause? Or do they constitute undue delegation of legislative
power?

Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)

In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally
impose an additional qualification on candidates for senator. He points out that, subject to the
provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid
down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4)
age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need
not possess any other qualification to run for senator and be voted upon and elected as member of the
Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it
cannot disregard, evade, or weaken the force of a constitutional mandate, 7 or alter or enlarge the
Constitution.

Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby
declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the
Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which
all laws must conform; no act shall be valid if it conflicts with the Constitution. 8 In the discharge of their
defined functions, the three departments of government have no choice but to yield obedience to the
commands of the Constitution. Whatever limits it imposes must be observed. 9

Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early
as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative
power in the following wise:

Someone has said that the powers of the legislative department of the Government, like the
boundaries of the ocean, are unlimited. In constitutional governments, however, as well as
governments acting under delegated authority, the powers of each of the departments x x x are
limited and confined within the four walls of the constitution or the charter, and each
department can only exercise such powers as are necessarily implied from the given powers.
The Constitution is the shore of legislative authority against which the waves of legislative
enactment may dash, but over which it cannot leap.10

Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional
limitations which circumscribe both the exercise of the power itself and the allowable subjects of
legislation.11 The substantive constitutional limitations are chiefly found in the Bill of Rights 12 and other
provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for
senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or
promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates
for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for
senator to meet such additional qualification, the COMELEC, to be sure, is also without such power.
The right of a citizen in the democratic process of election should not be defeated by unwarranted
impositions of requirement not otherwise specified in the Constitution. 13
Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively
enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As
couched, said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal - drug
clean, obviously as a pre - condition to the validity of a certificate of candidacy for senator or, with like
effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator - elect. The
COMELEC resolution completes the chain with the proviso that "[n]o person elected to any public
office shall enter upon the duties of his office until he has undergone mandatory drug test." Viewed,
therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add
another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in
the Senate. Whether or not the drug - free bar set up under the challenged provision is to be hurdled
before or after election is really of no moment, as getting elected would be of little value if one cannot
assume office for non - compliance with the drug - testing requirement.

It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does
not expressly state that non - compliance with the drug test imposition is a disqualifying factor or
would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug
test requirement is optional. But the particular section of the law, without exception, made drug -
testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer
the adverse consequences for not adhering to the statutory command. And since the provision deals
with candidates for public office, it stands to reason that the adverse consequence adverted to can
only refer to and revolve around the election and the assumption of public office of the candidates.
Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon
without meaning and effect whatsoever.

While it is anti - climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer
enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections
and the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems
it appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is
rooted on its having infringed the constitutional provision defining the qualification or eligibility
requirements for one aspiring to run for and serve as senator.

SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level
students and public and private employees, while mandatory, is a random and suspicionless
arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of
[the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory
purpose, per the policy - declaration portion of the law, can be achieved via the pursuit by the state of
"an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x
through an integrated system of planning, implementation and enforcement of anti - drug abuse
policies, programs and projects."14 The primary legislative intent is not criminal prosecution, as those
found positive for illegal drug use as a result of this random testing are not necessarily treated as
criminals. They may even be exempt from criminal liability should the illegal drug user consent to
undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point:
 Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and
Rehabilitation. - A drug dependent or any person who violates Section 15 of this Act may, by
himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for
treatment and rehabilitation of the drug dependency. Upon such application, the Board shall
bring forth the matter to the Court which shall order that the applicant be examined for drug
dependency. If the examination x x x results in the certification that the applicant is a drug
dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a
Center designated by the Board x x x.

xxxx

Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. - A drug
dependent under the voluntary submission program, who is finally discharged from
confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to
the following conditions:

xxxx

School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and
addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by
intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low
rate.15

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected
by the guarantee against unreasonable search and seizure16 under Sec. 2, Art. III17 of the Constitution.
But while the right to privacy has long come into its own, this case appears to be the first time that the
validity of a state - decreed search or intrusion through the medium of mandatory random drug testing
among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in
these proceedings is veritably one of first impression.

US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug
testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton
(Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al.
v. Earls, et al. (Board of Education),18 both fairly pertinent US Supreme Court - decided cases involving
the constitutionality of governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their
respective institutions following the discovery of frequent drug use by school athletes. After
consultation with the parents, they required random urinalysis drug testing for the school's athletes.
James Acton, a high school student, was denied participation in the football program after he refused
to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing
policy violated, inter alia, the Fourth Amendment19 of the US Constitution.

The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the
following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding
their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy
rights than non - athletes since the former observe communal undress before and after sports events;
(4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of
school supervision and regulation; (5) requiring urine samples does not invade a student's privacy since
a student need not undress for this kind of drug testing; and (6) there is need for the drug testing
because of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the
policy constituted reasonable search under the Fourth 20 and 14th Amendments and declared the
random drug - testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test
for high school students desiring to join extra - curricular activities. Lindsay Earls, a member of the
show choir, marching band, and academic team declined to undergo a drug test and averred that the
drug - testing policy made to apply to non - athletes violated the Fourth and 14th Amendments. As
Earls argued, unlike athletes who routinely undergo physical examinations and undress before their
peers in locker rooms, non - athletes are entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non -
athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made
no distinction between a non - athlete and an athlete. It ratiocinated that schools and teachers act in
place of the parents with a similar interest and duty of safeguarding the health of the students. And in
holding that the school could implement its random drug - testing policy, the Court hinted that such a
test was a kind of search in which even a reasonable parent might need to engage.

In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are:
(1) schools and their administrators stand in loco parentis with respect to their students; (2) minor
students have contextually fewer rights than an adult, and are subject to the custody and supervision
of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard
the health and well - being of their students and may adopt such measures as may reasonably be
necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for
admission that are fair, just, and non-discriminatory.

Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of
RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional.
Indeed, it is within the prerogative of educational institutions to require, as a condition for admission,
compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is
not absolute; it is subject to fair, reasonable, and equitable requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens
the well - being of the people,21 particularly the youth and school children who usually end up as
victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random
drug testing of students in secondary and tertiary schools is not only acceptable but may even be
necessary if the safety and interest of the student population, doubtless a legitimate concern of the
government, are to be promoted and protected. To borrow from Vernonia, "[d]eterring drug use by
our Nation's schoolchildren is as important as enhancing efficient enforcement of the Nation's laws
against the importation of drugs"; the necessity for the State to act is magnified by the fact that the
effects of a drug - infested school are visited not just upon the users, but upon the entire student body
and faculty.22 Needless to stress, the random testing scheme provided under the law argues against the
idea that the testing aims to incriminate unsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory but random drug test
prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable,
albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than
saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an
unwarranted intrusion of the individual right to privacy," 23 has failed to show how the mandatory,
random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy
and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the
Constitution.24 Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not
merit serious consideration. Consider what he wrote without elaboration:

The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the
constitutionality of mandatory drug tests in the school and the workplaces. The US courts have
been consistent in their rulings that the mandatory drug tests violate a citizen's constitutional
right to privacy and right against unreasonable search and seizure. They are quoted extensively
hereinbelow.25

The essence of privacy is the right to be left alone.26 In context, the right to privacy means the right to
be free from unwarranted exploitation of one's person or from intrusion into one's private activities in
such a way as to cause humiliation to a person's ordinary sensibilities. 27 And while there has been
general agreement as to the basic function of the guarantee against unwarranted search, "translation
of the abstract prohibition against ‘unreasonable searches and seizures' into workable broad guidelines
for the decision of particular cases is a difficult task," to borrow from C. Camara v. Municipal
Court.28 Authorities are agreed though that the right to privacy yields to certain paramount rights of
the public and defers to the state's exercise of police power.29

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held,
"reasonableness" is the touchstone of the validity of a government search or intrusion. 30 And whether
a search at issue hews to the reasonableness standard is judged by the balancing of the government -
mandated intrusion on the individual's privacy interest against the promotion of some compelling state
interest.31 In the criminal context, reasonableness requires showing of probable cause to be personally
determined by a judge. Given that the drug - testing policy for employees--and students for that
matter--under RA 9165 is in the nature of administrative search needing what was referred to
in Vernonia as "swift and informal disciplinary procedures," the probable - cause standard is not
required or even practicable. Be that as it may, the review should focus on the reasonableness of the
challenged administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon
which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution,
intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy
expectation of the employees and the reasonableness of drug testing requirement. The employees'
privacy interest in an office is to a large extent circumscribed by the company's work policies, the
collective bargaining agreement, if any, entered into by management and the bargaining unit, and the
inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy
expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon
such privacy has been upheld.

Just as defining as the first factor is the character of the intrusion authorized by the challenged law.
Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated
in Ople v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"? 32

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing
rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a
situation that would unduly embarrass the employees or place them under a humiliating experience.
While every officer and employee in a private establishment is under the law deemed forewarned that
he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug
testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be
tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing
ingredient by providing that the employees concerned shall be subjected to "random drug test as
contained in the company's work rules and regulations x x x for purposes of reducing the risk in the
work place."

For another, the random drug testing shall be undertaken under conditions calculated to protect as
much as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies
that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory
test, doubtless to ensure as much as possible the trustworthiness of the results. But the more
important consideration lies in the fact that the test shall be conducted by trained professionals in
access - controlled laboratories monitored by the Department of Health (DOH) to safeguard against
results tampering and to ensure an accurate chain of custody. 33 In addition, the IRR issued by the DOH
provides that access to the drug results shall be on the "need to know" basis; 34 that the "drug test
result and the records shall be [kept] confidential subject to the usual accepted practices to protect the
confidentiality of the test results."35 Notably, RA 9165 does not oblige the employer concerned to
report to the prosecuting agencies any information or evidence relating to the violation of
the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All
told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper
safeguards, particularly against embarrassing leakages of test results, and is relatively minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus
protect the well - being of the citizens, especially the youth, from the deleterious effects of dangerous
drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely
pursuing a national drug abuse policy in the workplace via a mandatory random drug test. 36 To the
Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override
the individual's privacy interest under the premises. The Court can consider that the illegal drug
menace cuts across gender, age group, and social - economic lines. And it may not be amiss to state
that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an
investor's dream were it not for the illegal and immoral components of any of such activities. The drug
problem has hardly abated since the martial law public execution of a notorious drug trafficker. The
state can no longer assume a laid back stance with respect to this modern - day scourge. Drug
enforcement agencies perceive a mandatory random drug test to be an effective way of preventing
and deterring drug use among employees in private offices, the threat of detection by random testing
being higher than other modes. The Court holds that the chosen method is a reasonable and enough
means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the
employees, the compelling state concern likely to be met by the search, and the well - defined limits
set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the
challenged drug test requirement is, under the limited context of the case, reasonable and, ergo,
constitutional.

Like their counterparts in the private sector, government officials and employees also labor under
reasonable supervision and restrictions imposed by the Civil Service law and other laws on public
officers, all enacted to promote a high standard of ethics in the public service. 37 And if RA 9165 passes
the norm of reasonableness for private employees, the more reason that it should pass the test for civil
servants, who, by constitutional command, are required to be accountable at all times to the people
and to serve them with utmost responsibility and efficiency. 38

Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation
of power hardly commends itself for concurrence. Contrary to its position, the provision in question is
not so extensively drawn as to give unbridled options to schools and employers to determine the
manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and
tertiary schools and officers/employees of public/private offices should be conducted. It enumerates
the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance
with the school rules as contained in the student handbook and with notice to parents. On the part of
officers/employees, the testing shall take into account the company's work rules. In either case, the
random procedure shall be observed, meaning that the persons to be subjected to drug test shall be
picked by chance or in an unplanned way. And in all cases, safeguards against misusing and
compromising the confidentiality of the test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH,
Department of the Interior and Local Government, Department of Education, and Department of Labor
and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the
participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA
9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to
determine how often, under what conditions, and where the drug tests shall be conducted.

The validity of delegating legislative power is now a quiet area in the constitutional landscape. 39 In the
face of the increasing complexity of the task of the government and the increasing inability of the
legislature to cope directly with the many problems demanding its attention, resort to delegation of
power, or entrusting to administrative agencies the power of subordinate legislation, has become
imperative, as here.

Laserna Petition (Constitutionality of Sec. 36[c], [d],

[f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for
mandatory drug testing for persons accused of crimes. In the case of students, the constitutional
viability of the mandatory, random, and suspicionless drug testing for students emanates primarily
from the waiver by the students of their right to privacy when they seek entry to the school, and from
their voluntarily submitting their persons to the parental authority of school authorities. In the case of
private and public employees, the constitutional soundness of the mandatory, random, and
suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutor's
office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative
concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons
charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or
suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made
defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion.
When persons suspected of committing a crime are charged, they are singled out and are impleaded
against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's
office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily
consent to the procedure, let alone waive their right to privacy. 40 To impose mandatory drug testing on
the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary
to the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy
guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably
forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec.
36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY
GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165
CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are,
accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 200748               July 23, 2014

JAIME D. DELA CRUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

SERENO, CJ:

This is a Petition for Review on Certiorari, filed by petitioner Jaime D. dela Cruz, from the
Decision1 dated 22 June 2011 issued by the Twentieth Division of the Court of Appeals (CA) and
Resolution2 dated 2 February 2012 issued by the Former Twentieth Division of the CA in CA-G.R. C.R.
No. 00670.

THE ANTECEDENT FACTS

Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II of Republic Act No.
(R.A.) 9165, or The Comprehensive Dangerous Drugs Act of 2002, by the Graft Investigation and
Prosecution Officer of the Office of the Ombudsman - Visayas, in an Information 3 dated 14 February
2006, which reads:

That on or about the 31st day of January 2006, at Cebu City, Philippines, and within the jurisdiction of
this Honorable Court, the abovenamed accused, JAIME D. DE LA CRUZ, a public officer, having been
duly appointed and qualified to such public position as Police Officer 2 of the Philippine National Police
(PNP) assigned in the Security Service Group of the Cebu City Police Office, after having beenarrested
by agents of the National Bureau of Investigation (NBI) in an entrapment operation, was found positive
for use of METHAMPHETAMINE HYDROCHLORIDEcommonly known as "Shabu", the dangerous drug
after a confirmatory test conducted on said accused.
CONTRARY TO LAW.

When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the charge. The records
do not reveal whether De la Cruz was likewise charged for extortion.

VERSION OF THE PROSECUTION

The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the agents and special
investigators of the National Bureau of Investigation, Central Visayas Regional Office (NBI-CEVRO) or
simply NBI, received a Complaint from Corazon Absin (Corazon) and Charito Escobido (Charito). The
complainants claimed that at 1:00 a.m. of that same day, Ariel Escobido (Ariel), the live-in partner of
Corazon and son of Charito, was picked up by several unknown male persons believed to be police
officers for allegedly selling drugs. An errand boy gave a number to the complainants, and when the
latter gave the number a ring, they were instructed to proceed to the Gorordo Police Office located
along Gorordo Avenue, Cebu City. In the said police office, they met "James" who demanded from
them ₱100,000, later lowered to ₱40,000, in exchange for the release of Ariel. After the meeting, the
complainants proceeded to the NBI-CEVRO to file a complaint and narrate the circumstances of the
meeting to the authorities. While at the NBI-CEVRO, Charitoeven received calls supposedly from
"James" instructing her to bring the money as soon as possible.

The special investigators at the NBI-CEVRO verified the text messages received by the
complainants.1âwphi1 A team was immediately formed to implement an entrapment operation, which
took place inside a Jollibee branch at the corner of Gen. Maxilom and Gorordo Avenues, Cebu City. The
officers were able to nab Jaime dela Cruz by using a pre-marked 500 bill dusted with fluorescent
powder, which was made part of the amount demanded by "James" and handed by Corazon. Petitioner
was later brought to the forensic laboratory of the NBI-CEVRO where forensic examination was done
by forensic chemist Rommel Paglinawan. Petitioner was required to submit his urine for drug testing. It
later yielded a positive result for presence of dangerous drugs as indicated in the confirmatory test
result labeled as Toxicology (DangerousDrugs) Report No. 2006-TDD-2402 dated 16 February 2006.

VERSION OF THE DEFENSE

The defense presented petitioner as the lone witness. He denied the charges and testified that while
eating at the said Jollibee branch, he was arrested allegedly for extortion by NBI agents. When he was
at the NBI Office, he was required to extract urine for drug examination, but he refused saying he
wanted it to be done by the Philippine National Police (PNP) Crime Laboratory and not by the NBI. His
request was, however, denied. He also requested to be allowed to call his lawyer prior to the taking of
his urine sample, to no avail.

THE RULING OF THE RTC

The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision 4 dated 6 June 2007, found the
accused guilty beyond reasonable doubt of violating Section 15, Article II of R.A. 9165 and sentenced
him to suffer the penalty of compulsory rehabilitation for a period of not less than six (6) months at the
Cebu Center for the Ultimate Rehabilitation of Drug Dependents located at Salinas, Lahug, Cebu City. 5

Petitioner filed an appeal assigning as error the RTC’s validation of the result of the urine test despite
its dubiousness having been admitted in spite of the lack of legal basis for itsadmission. First, he alleges
that the forensic laboratory examination was conducted despite the fact that he was not assisted by
counsel, in clear violation of his constitutional right. Secondly, he was allegedly held guilty beyond
reasonable doubt notwithstanding the lack of sufficient basis to convict him.

THE RULING OF THE CA

The CA found the appeal devoid of merit and affirmed the ruling of the RTC.

Petitioner filed a timely Motion for Reconsideration. He argued that the CA overlooked prevailing
jurisprudence, which states that drug testing conducted under circumstancessimilar to his would
violate a person’s right to privacy. The appellate court nevertheless denied the motion.

Petitioner thus filed the present Petition for Review on certiorari. He assigns as errors the use of
hearsay evidence as basis for his conviction and the questionable circumstances surrounding his arrest
and drug test.

Respondent, through the Office of the Solicitor General, filed its Comment, 6 saying that "petitioner’s
arguments cannot be the subject of a petition for review on certiorariunder Rule 45, as they involve
questions of facts which may not be the subject thereof; after his arraignment, he can no longer
contest the validity of his arrest, less so at this stage of the proceedings; his guilt has been adequately
established by direct evidence; and the manner in which the laboratory examination was conducted
was grounded on a valid and existing law.

THE ISSUE

We deem it proper to give due course to this Petition by confronting head-on the issue of whether or
not the drug test conducted upon the petitioner is legal.

OUR RULING

We declare that the drug testconducted upon petitioner is not grounded upon any existing law or
jurisprudence.

We gloss over petitioner’s non-compliance with the Resolution7 ordering him to submit clearly legible
duplicate originals or certified true copies of the assailed Decision and Resolution. Petitioner was
charged with use of dangerous drugs in violation of the law, the pertinent provision of which reads:

Section 15. Use of Dangerous Drugs. – A person apprehended or arrested, who is found to be positive
for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of
six (6) months rehabilitation in a government center for the first offense, subject to the provisions of
Article VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall
suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a
fine ranging from Fifty thousand pesos (₱50,000.00) to Two hundred thousand pesos (₱200,000.00):
Provided,That this Section shall not be applicable where the person tested is also found to have in
his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in
which case the provisions stated therein shall apply.8

The RTC subsequently convicted petitioner, ruling that the following elements of Section 15 were
established: (1) the accused was arrested; (2) the accused was subjected to drug test; and (3) the
confirmatory test shows that he used a dangerous drug.
Disregarding petitioner’s objection regarding the admissibility of the evidence, the lower court also
reasoned that "a suspect cannot invoke his right to counsel when he is required to extract urine
because, while he is already in custody, he is not compelled to make a statement or testimony against
himself. Extracting urine from one’s body is merely a mechanical act, hence, falling outside the concept
of a custodial investigation."

We find the ruling and reasoning of the trial court, as well as the subsequent affirmation by the CA,
erroneous on three counts.

The drug test in Section 15 does not cover persons apprehended or arrested for any unlawful act, but
only for unlawful acts listed under Article II of R.A. 9165.

First, "[a] person apprehended orarrested" cannot literally mean any person apprehended or arrested
for any crime.The phrase must be read in context and understood in consonance with R.A. 9165.
Section 15 comprehends persons arrested or apprehended for unlawful acts listed under Article II of
the law.

Hence, a drug test can be made upon persons who are apprehended or arrested for, among others, the
"importation,"9 "sale, trading, administration, dispensation, delivery, distribution and
transportation",10 "manufacture"11 and "possession"12 of dangerous drugs and/or controlled precursors
and essential chemicals; possession thereof "during parties, social gatherings or meetings" 13 ; being
"employees and visitors of a den, dive or resort";14 "maintenance of a den, dive or resort";15 "illegal
chemical diversion of controlled precursors and essential chemicals" 16 ; "manufacture or delivery"17 or
"possession"18 of equipment, instrument, apparatus, and other paraphernalia for dangerous drugs
and/or controlled precursors and essential chemicals; possession of dangerous drugs "during parties,
social gatherings or meetings"19 ; "unnecessary"20 or "unlawful"21 prescription thereof; "cultivation or
culture of plantsclassified as dangerous drugs or are sources thereof"; 22 and "maintenance and keeping
of original records of transactions on dangerous drugs and/orcontrolled precursors and essential
chemicals."23 To make the provision applicable to all persons arrested or apprehended for any crime
not listed under Article II is tantamount to unduly expanding its meaning. Note thataccused appellant
here was arrested in the alleged act of extortion.

A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of the law to
rehabilitate persons apprehended or arrested for the unlawful acts enumerated above instead of
charging and convicting them of other crimes with heavier penalties. The essence of the provision is
more clearly illustrated in People v. Martinez24 as follows:

On a final note, this Court takes the opportunity to be instructive on Sec. 11 (Possession of Dangerous
Drugs) and Sec. 15 (Use of Dangerous Drugs) of R.A. No. 9165, withregard to the charges that are filed
by law enforcers. This Court notes the practice of law enforcers of filing charges under Sec. 11 in cases
where the presence of dangerous drugs as basis for possession is only and solely in the form of residue,
being subsumed under the last paragraph of Sec. 11. Although not incorrect, it would be more in
keeping withthe intent of the law to file charges under Sec. 15 instead in order to rehabilitate first time
offenders of drug use, provided thatthere is a positive confirmatory test result as required under Sec.
15.The minimum penalty under the last paragraph of Sec. 11 for the possession of residue
isimprisonment of twelve years and one day, while the penalty under Sec. 15 for first time offenders of
drug use is a minimum of six months rehabilitation in a government center. To file charges under Sec.
11 on the basis of residue alone would frustrate the objective of the law to rehabilitate drug users and
provide them with an opportunity to recover for a second chance at life.
In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug
paraphernalia, and the accused were found positive for use of dangerous drugs. Granting that the
arrest was legal, the evidence obtained admissible, and the chain of custody intact, the law enforcers
should have filed charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there was
no residue at all, they should have been charged under Sec. 14 (Possession of Equipment, Instrument,
Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or
Meetings). Sec. 14 provides that the maximum penalty under Sec. 12(Possession of Equipment,
Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) shall be imposed on any person
who shall possess any equipment, instrument, apparatus and other paraphernalia for dangerous drugs.
Under Sec. 12, the maximum penalty is imprisonment of four years and a fine of ₱50,000.00. In fact,
under the same section, the possession of such equipment, apparatus or other paraphernalia is prima
facieevidence that the possessor has used a dangerous drug and shall be presumed to have violated
Sec. 15.

In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law
enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when
the presence of dangerous drugs isonly and solely in the form of residue and the confirmatory test
required under Sec. 15 is positive for use of dangerous drugs.In such cases, to afford the accused a
chance to be rehabilitated, the filing of charges for or involving possession of dangerous drugs should
only be done when another separate quantity of dangerous drugs, other than mere residue, is found in
the possession of the accused as provided for in Sec. 15. (Emphasis supplied)

Furthermore, making the phrase "a person apprehended or arrested" in Section 15 applicable to all
persons arrested or apprehended for unlawful acts, not only under R.A. 9165 but for all other crimes, is
tantamount to a mandatory drug testing of all persons apprehended or arrested for any crime. To
overextend the application of thisprovision would run counter to our pronouncement in Social Justice
Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency, 25 to wit:

x x x [M]andatory drug testing can never be random and suspicionless. The ideas of randomness and
being suspicionless are antithetical to their being made defendants in a criminal complaint. They are
not randomly picked; neither are they beyond suspicion. When persons suspected of committing a
crime are charged, they are singled out and are impleaded against their will. The persons thus charged,
by the bare fact of being haled before the prosecutor’s office and peaceably submitting themselves to
drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right
to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical
test as a tool for criminal prosecution, contrary to the stated objectives of RA 6195. Drug testing in this
case would violate a person’s right to privacy guaranteed under Sec. 2, Art. III of the Constitution.
Worse still, the accused persons are veritably forced to incriminate themselves. (Emphasis supplied)

The drug test is not covered by allowable non-testimonial compulsion.

We find that petitioner never raisedthe alleged irregularity of his arrest before his arraignment and
raises the issue only now before this tribunal; hence, he is deemed to have waived his right to question
the validity of his arrest curing whatever defect may have attended his arrest. 26 However, "a waiver of
an illegal warrantless arrest does not mean a waiver of the inadmissibility of evidence seized during an
illegal warrantless arrest."27
We are aware of the prohibition against testimonial compulsion and the allowable exceptions to such
proscription. Cases where non-testimonial compulsion has been allowed reveal, however, that the
pieces of evidence obtained were all material to the principal cause of the arrest.

The constitutional right of an accused against self-incrimination proscribes the use of physical or moral
compulsion to extort communications from the accused and not the inclusion of his body in evidence
when it may be material. Purely mechanical acts are not included in the prohibition as the accused
does not thereby speak his guilt, hence the assistance and guiding hand ofcounsel is not required.
(People vs. Olvis, 238 Phil. 513 [1987]) The essence of the right against selfincrimination is testimonial
compulsion, that is, the giving of evidence against himself through a testimonial act. (People vs.
Casinillo, 213 SCRA 777 [1992]; People vs. Tranca, 235 SCRA 455 [1994]; People vs. Rondero, 378 Phil.
123 [1999]) Hence,it has been held that a woman charged with adultery may be compelled to submit
to physical examination to determine her pregnancy; (Villaflor vs. Summers, 41 Phil. 62 [1920]) and an
accused may be compelled to submit to physical examination and to have a substance taken from his
body for medical determination as to whether he was suffering from gonorrhea which was contracted
by his victim;(U.S. vs. Tan Teng, 23 Phil. 145 [1912]) to expel morphine from his mouth; (U.S. vs. Ong
Siu Hong, 36 Phil. 735 [1917]) to have the outline of his foot traced todetermine its identity with
bloody footprints; (U.S. vs. Salas, 25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to be
photographed or measured, or his garments or shoes removed or replaced, or to move his body to
enable the foregoing things to be done.(People vs. Otadora, 86 Phil. 244 [1950]) 28 (Emphasis supplied)

In the instant case, we fail to see howa urine sample could be material to the charge of
extortion.1âwphi1 The RTC and the CA, therefore, both erred when they held that the extraction of
petitioner’s urine for purposes of drug testing was "merely a mechanical act, hence, falling outside the
concept of a custodial investigation."

We note a case where a urine sample was considered as admissible. In Gutang v. People, 29 the
petitioner therein and his companions were arrested in connection with the enforcement of a search
warrant in his residence. A PNP-NARCOM team found and confiscated shabu materials and
paraphernalias. The petitioner and his companions in that case were also asked to give urine samples,
which yielded positive results. Later, the petitioner therein was found guilty of the crime of illegal
possession and use of prohibited drugs. Gutang claimed that the latter’s urine sample was inadmissible
in evidence, since it was derived in effect from an uncounselled extrajudicial confession.

In the Gutang et al.case, the Court clarified that "what the Constitution prohibits is the use of physical
or moral compulsion to extort communication from the accused, but not an inclusion of his body in
evidence, when it may be material." The situation in Gutangwas categorized as falling among the
exemptions under the freedom from testimonial compulsion since what was sought tobe examined
came from the body of the accused. The Court said:

This was a mechanical act the accused was made to undergo which was not meant to unearth
undisclosedfacts but to ascertain physical attributes determinable by simple observation. In fact, the
record shows that petitioner and his co-accused were not compelled to give samples of their urine but
they in fact voluntarily gave the same when they were requested to undergo a drug test.

Assuming arguendothat the urine samples taken from the petitioner are inadmissible in evidence, we
agree with the trial court that the record is replete with other pieces of credible evidence including the
testimonial evidence of the prosecution which point to the culpability of the petitioner for the crimes
charged.
We emphasize that the circumstances in Gutangare clearly different from the circumstances of
petitioner in the instant case.1awp++i1 First, Gutang was arrested in relation to a drug case. Second, he
volunteered to give his urine. Third, there were other pieces of evidence that point to his culpability for
the crimes charged. In the present case, though, petitioner was arrested for extortion; he resisted
having his urine sample taken; and finally, his urine sample was the only available evidencethat was
used as basis for his conviction for the use of illegal drugs.

The drug test was a violation of petitioner’s right to privacy and right against self-incrimination.

It is incontrovertible that petitioner refused to have his urine extracted and tested for drugs. He also
asked for a lawyer prior to his urine test. He was adamant in exercising his rights, but all of his efforts
proved futile, because he was still compelled to submit his urine for drug testing under those
circumstances.

The pertinent provisions in Article III of the Constitution are clear:

Section 2. The right of the people to be securein 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.

Section 17. No person shall be compelled to be a witness against himself.

In the face of these constitutional guarantees, we cannot condone drug testing of all arrested persons
regardless of the crime or offense for which the arrest is being made.

While we express our commendation of law enforcement agents as they vigorously track down
offenders intheir laudable effort to curb the pervasive and deleterious effects of dangerous drugs on
our society, they must, however, be constantly mindful of the reasonable limits of their authority,
because it is not unlikely that in their clear intent to purge society of its lawless elements, they may be
knowingly or unknowingly transgressing the protected rights of its citizens including even members of
its own police force.

WHEREFORE, premises considered, the assailed Decision dated 22 June 2011 issued by the Twentieth
Division, and the Resolution dated 2 February 2012 issued by the former Twentieth Division of the
Court of Appeals, in CA-G.R. C.R. No. 00670 are SET ASIDE. Petitioner is hereby ACQUITTED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 181881               October 18, 2011

BRICCIO "Ricky" A. POLLO, Petitioner,

vs.
CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA,
DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY D. UNITE AND THE CIVIL
SERVICE COMMISSION, Respondents.

DECISION

VILLARAMA, JR., J.:

This case involves a search of office computer assigned to a government employee who was charged
administratively and eventually dismissed from the service. The employee’s personal files stored in the
computer were used by the government employer as evidence of misconduct.

Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the
Decision1 dated October 11, 2007 and Resolution2 dated February 29, 2008 of the Court of Appeals
(CA). The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio
"Ricky" A. Pollo to nullify the proceedings conducted by the Civil Service Commission (CSC) which found
him guilty of dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and
violation of Republic Act (R.A.) No. 6713 and penalized him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the
Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the "Mamamayan Muna
Hindi Mamaya Na" program of the CSC.

On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC
Chairperson Karina Constantino-David which was marked "Confidential" and sent through a courier
service (LBC) from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was received by the
Integrated Records Management Office (IRMO) at the CSC Central Office. Following office practice in
which documents marked "Confidential" are left unopened and instead sent to the addressee, the
aforesaid letter was given directly to Chairperson David.

The letter-complaint reads:

The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright
for an employee of your agency to be a lawyer of an accused gov’t employee having a pending case in
the csc. I honestly think this is a violation of law and unfair to others and your office.

I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the
chief of the Mamamayan muna hindi mamaya na division. He have been helping many who have
pending cases in the Csc. The justice in our govt system will not be served if this will continue. Please
investigate this anomaly because our perception of your clean and good office is being tainted.

Concerned Govt employee3

Chairperson David immediately formed a team of four personnel with background in information
technology (IT), and issued a memo directing them to conduct an investigation and specifically "to back
up all the files in the computers found in the Mamamayan Muna (PALD) and Legal divisions." 4 After
some briefing, the team proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon
their arrival thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV, respondents
Director IV Lydia Castillo (Director Castillo) and Director III Engelbert Unite (Director Unite) of
Chairperson David’s directive.

The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD)
was witnessed by several employees, together with Directors Castillo and Unite who closely monitored
said activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD,
who were both out of the office at the time, informing them of the ongoing copying of computer files
in their divisions upon orders of the CSC Chair. The text messages received by petitioner read:

"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per
instruction of the Chairman. If you can make it here now it would be better."

"All PCs Of PALD and LSD are being backed up per memo of the chair."

"CO IT people arrived just now for this purpose. We were not also informed about this.

"We can’t do anything about … it … it’s a directive from chair."

"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the memo
via mms"5

Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he
will just get a lawyer. Another text message received by petitioner from PALD staff also reported the
presence of the team from CSC main office: "Sir may mga taga C.O. daw sa kuarto natin." 6 At around
10:00 p.m. of the same day, the investigating team finished their task. The next day, all the computers
in the PALD were sealed and secured for the purpose of preserving all the files stored therein. Several
diskettes containing the back-up files sourced from the hard disk of PALD and LSD computers were
turned over to Chairperson David. The contents of the diskettes were examined by the CSC’s Office for
Legal Affairs (OLA). It was found that most of the files in the 17 diskettes containing files copied from
the computer assigned to and being used by the petitioner, numbering about 40 to 42 documents,
were draft pleadings or letters7 in connection with administrative cases in the CSC and other tribunals.
On the basis of this finding, Chairperson David issued the Show-Cause Order 8 dated January 11, 2007,
requiring the petitioner, who had gone on extended leave, to submit his explanation or counter-
affidavit within five days from notice.

Evaluating the subject documents obtained from petitioner’s personal files, Chairperson David made
the following observations:

Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected
with administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the CSC-
NCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft pleadings are
for and on behalves of parties, who are facing charges as respondents in administrative cases. This
gives rise to the inference that the one who prepared them was knowingly, deliberately and willfully
aiding and advancing interests adverse and inimical to the interest of the CSC as the central personnel
agency of the government tasked to discipline misfeasance and malfeasance in the government
service. The number of pleadings so prepared further demonstrates that such person is not merely
engaged in an isolated practice but pursues it with seeming regularity. It would also be the height of
naivete or credulity, and certainly against common human experience, to believe that the person
concerned had engaged in this customary practice without any consideration, and in fact, one of the
retrieved files (item 13 above) appears to insinuate the collection of fees. That these draft pleadings
were obtained from the computer assigned to Pollo invariably raises the presumption that he was the
one responsible or had a hand in their drafting or preparation since the computer of origin was within
his direct control and disposition.9

Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-
complaint which had no attachments to it, because he is not a lawyer and neither is he "lawyering" for
people with cases in the CSC. He accused CSC officials of conducting a "fishing expedition" when they
unlawfully copied and printed personal files in his computer, and subsequently asking him to submit
his comment which violated his right against self-incrimination. He asserted that he had protested the
unlawful taking of his computer done while he was on leave, citing the letter dated January 8, 2007 in
which he informed Director Castillo that the files in his computer were his personal files and those of
his sister, relatives, friends and some associates and that he is not authorizing their sealing, copying,
duplicating and printing as these would violate his constitutional right to privacy and protection against
self-incrimination and warrantless search and seizure. He pointed out that though government
property, the temporary use and ownership of the computer issued under a Memorandum of Receipt
(MR) is ceded to the employee who may exercise all attributes of ownership, including its use for
personal purposes. As to the anonymous letter, petitioner argued that it is not actionable as it failed to
comply with the requirements of a formal complaint under the Uniform Rules on Administrative Cases
in the Civil Service (URACC). In view of the illegal search, the files/documents copied from his computer
without his consent is thus inadmissible as evidence, being "fruits of a poisonous tree." 10

On February 26, 2007, the CSC issued Resolution No. 070382 11 finding prima facie case against the
petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best
Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public
Officials and Employees). Petitioner was directed to submit his answer under oath within five days
from notice and indicate whether he elects a formal investigation. Since the charges fall under Section
19 of the URACC, petitioner was likewise placed under 90 days preventive suspension effective
immediately upon receipt of the resolution. Petitioner received a copy of Resolution No. 070382 on
March 1, 2007.
Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the
formal charge as without basis having proceeded from an illegal search which is beyond the authority
of the CSC Chairman, such power pertaining solely to the court. Petitioner reiterated that he never
aided any people with pending cases at the CSC and alleged that those files found in his computer were
prepared not by him but by certain persons whom he permitted, at one time or another, to make use
of his computer out of close association or friendship. Attached to the motion were the affidavit of
Atty. Ponciano R. Solosa who entrusted his own files to be kept at petitioner’s CPU and Atty. Eric N.
Estrellado, the latter being Atty. Solosa’s client who attested that petitioner had nothing to do with the
pleadings or bill for legal fees because in truth he owed legal fees to Atty. Solosa and not to petitioner.
Petitioner contended that the case should be deferred in view of the prejudicial question raised in the
criminal complaint he filed before the Ombudsman against Director Buensalida, whom petitioner
believes had instigated this administrative case. He also prayed for the lifting of the preventive
suspension imposed on him. In its Resolution No. 07051912 dated March 19, 2007, the CSC denied the
omnibus motion. The CSC resolved to treat the said motion as petitioner’s answer.

On March 14, 2007, petitioner filed an Urgent Petition13 under Rule 65 of the Rules of Court, docketed
as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No.
070382 dated February 26, 2007 as having been issued with grave abuse of discretion amounting to
excess or total absence of jurisdiction. Prior to this, however, petitioner lodged an
administrative/criminal complaint against respondents Directors Racquel D.G. Buensalida (Chief of
Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the
Ombudsman, and a separate complaint for disbarment against Director Buensalida. 14

On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation
of the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of
TRO and preliminary injunction.15 Since he failed to attend the pre-hearing conference scheduled on
April 30, 2007, the CSC reset the same to May 17, 2007 with warning that the failure of petitioner
and/or his counsel to appear in the said pre-hearing conference shall entitle the prosecution to
proceed with the formal investigation ex-parte.16 Petitioner moved to defer or to reset the pre-hearing
conference, claiming that the investigation proceedings should be held in abeyance pending the
resolution of his petition by the CA. The CSC denied his request and again scheduled the pre-hearing
conference on May 18, 2007 with similar warning on the consequences of petitioner and/or his
counsel’s non-appearance.17 This prompted petitioner to file another motion in the CA, to cite the
respondents, including the hearing officer, in indirect contempt.18

On June 12, 2007, the CSC issued Resolution No. 07113419 denying petitioner’s motion to set aside the
denial of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty.
Bernard G. Jimenez. The hearing officer was directed to proceed with the investigation proper with
dispatch.

In view of the absence of petitioner and his counsel, and upon the motion of the prosecution,
petitioner was deemed to have waived his right to the formal investigation which then proceeded ex
parte.

On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of which reads:

WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a. Ricky
A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the
Service and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE
with all its accessory penalties, namely, disqualification to hold public office, forfeiture of retirement
benefits, cancellation of civil service eligibilities and bar from taking future civil service examinations. 21

On the paramount issue of the legality of the search conducted on petitioner’s computer, the CSC
noted the dearth of jurisprudence relevant to the factual milieu of this case where the government as
employer invades the private files of an employee stored in the computer assigned to him for his
official use, in the course of initial investigation of possible misconduct committed by said employee
and without the latter’s consent or participation. The CSC thus turned to relevant rulings of the United
States Supreme Court, and cited the leading case of O’Connor v. Ortega 22 as authority for the view that
government agencies, in their capacity as employers, rather than law enforcers, could validly conduct
search and seizure in the governmental workplace without meeting the "probable cause" or warrant
requirement for search and seizure. Another ruling cited by the CSC is the more recent case of United
States v. Mark L. Simons23 which declared that the federal agency’s computer use policy foreclosed any
inference of reasonable expectation of privacy on the part of its employees. Though the Court therein
recognized that such policy did not, at the same time, erode the respondent’s legitimate expectation of
privacy in the office in which the computer was installed, still, the warrantless search of the employee’s
office was upheld as valid because a government employer is entitled to conduct a warrantless search
pursuant to an investigation of work-related misconduct provided the search is reasonable in its
inception and scope.

With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no
reasonable expectation of privacy with regard to the computer he was using in the regional office in
view of the CSC computer use policy which unequivocally declared that a CSC employee cannot assert
any privacy right to a computer assigned to him. Even assuming that there was no such administrative
policy, the CSC was of the view that the search of petitioner’s computer successfully passed the test of
reasonableness for warrantless searches in the workplace as enunciated in the aforecited authorities.
The CSC stressed that it pursued the search in its capacity as government employer and that it was
undertaken in connection with an investigation involving work-related misconduct, which exempts it
from the warrant requirement under the Constitution. With the matter of admissibility of the evidence
having been resolved, the CSC then ruled that the totality of evidence adequately supports the charges
of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service and violation of
R.A. No. 6713 against the petitioner. These grave infractions justified petitioner’s dismissal from the
service with all its accessory penalties.

In his Memorandum24 filed in the CA, petitioner moved to incorporate the above resolution dismissing
him from the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a
subsequent motion, he likewise prayed for the inclusion of Resolution No. 071800 25 which denied his
motion for reconsideration.

By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave
abuse of discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not
charged on the basis of the anonymous letter but from the initiative of the CSC after a fact-finding
investigation was conducted and the results thereof yielded a prima facie case against him; (2) it could
not be said that in ordering the back-up of files in petitioner’s computer and later confiscating the
same, Chairperson David had encroached on the authority of a judge in view of the CSC computer
policy declaring the computers as government property and that employee-users thereof have no
reasonable expectation of privacy in anything they create, store, send, or receive on the computer
system; and (3) there is nothing contemptuous in CSC’s act of proceeding with the formal investigation
as there was no restraining order or injunction issued by the CA.
His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing
that –
I
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS
IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION
WHEN IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN
TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF
SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL
RULES PER CSC RESOLUTION NO. 94-0521;
II
THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW
AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT
INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-
INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL
MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE
COLLEGIAL COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL
RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO
PROCEDURAL AND ROUTINARY INSTRUCTION;
III
THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION
WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF
DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF
DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE INVOLVING
AND TAINTED WITH PERSONAL HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED
IN THE GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL
FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND
GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10
DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III,
SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION;
IV
THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENTS,
ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND
TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-
1420 DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID
NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR
TRO.26

Squarely raised by the petitioner is the legality of the search conducted on his office computer and the
copying of his personal files without his knowledge and consent, alleged as a transgression on his
constitutional right to privacy.

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected
by the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987
Constitution,27 which provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

The constitutional guarantee is not a prohibition of all searches and seizures but only of
"unreasonable" searches and seizures.28 But to fully understand this concept and application for the
purpose of resolving the issue at hand, it is essential that we examine the doctrine in the light of
pronouncements in another jurisdiction. As the Court declared in People v. Marti 29 :

Our present constitutional provision on the guarantee against unreasonable search and seizure had its
origin in the 1935 Charter which, worded as follows:

"The right of the people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched, and the persons or
things to be seized." (Sec. 1[3], Article III)

was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As
such, the Court may turn to the pronouncements of the United States Federal Supreme Court and
State Appellate Courts which are considered doctrinal in this jurisdiction. 30

In the 1967 case of Katz v. United States,31 the US Supreme Court held that the act of FBI agents in
electronically recording a conversation made by petitioner in an enclosed public telephone booth
violated his right to privacy and constituted a "search and seizure". Because the petitioner had a
reasonable expectation of privacy in using the enclosed booth to make a personal telephone call, the
protection of the Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice
Harlan, it was further noted that the existence of privacy right under prior decisions involved a two-
fold requirement: first, that a person has exhibited an actual (subjective) expectation of privacy; and
second, that the expectation be one that society is prepared to recognize as reasonable (objective). 32

In Mancusi v. DeForte33 which addressed the reasonable expectations of private employees in the

workplace, the US Supreme Court held that a union employee had Fourth Amendment rights with
regard to an office at union headquarters that he shared with other union officials, even as the latter or
their guests could enter the office. The Court thus "recognized that employees may have a reasonable
expectation of privacy against intrusions by police."

That the Fourth Amendment equally applies to a government workplace was addressed in the 1987
case of O’Connor v. Ortega34 where a physician, Dr. Magno Ortega, who was employed by a state
hospital, claimed a violation of his Fourth Amendment rights when hospital officials investigating
charges of mismanagement of the psychiatric residency program, sexual harassment of female hospital
employees and other irregularities involving his private patients under the state medical aid program,
searched his office and seized personal items from his desk and filing cabinets. In that case, the Court
categorically declared that "[i]ndividuals do not lose Fourth Amendment rights merely because they
work for the government instead of a private employer." 35 A plurality of four Justices concurred that
the correct analysis has two steps: first, because "some government offices may be so open to fellow
employees or the public that no expectation of privacy is reasonable", a court must consider "[t]he
operational realities of the workplace" in order to determine whether an employee’s Fourth
Amendment rights are implicated; and next, where an employee has a legitimate privacy expectation,
an employer’s intrusion on that expectation "for noninvestigatory, work-related purposes, as well as
for investigations of work-related misconduct, should be judged by the standard of reasonableness
under all the circumstances."36

On the matter of government employees’ reasonable expectations of privacy in their workplace,

O’Connor teaches:

x x x Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar
expectations of employees in the private sector, may be reduced by virtue of actual office practices and
procedures, or by legitimate regulation. x x x The employee’s expectation of privacy must be assessed
in the context of the employment relation. An office is seldom a private enclave free from entry by
supervisors, other employees, and business and personal invitees. Instead, in many cases offices are
continually entered by fellow employees and other visitors during the workday for conferences,
consultations, and other work-related visits. Simply put, it is the nature of government offices that
others – such as fellow employees, supervisors, consensual visitors, and the general public – may have
frequent access to an individual’s office. We agree with JUSTICE SCALIA that "[c]onstitutional
protection against unreasonable searches by the government does not disappear merely because the
government has the right to make reasonable intrusions in its capacity as employer," x x x but some
government offices may be so open to fellow employees or the public that no expectation of privacy
is reasonable. x x x Given the great variety of work environments in the public sector, the question of
whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case
basis.37 (Citations omitted; emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortega’s
Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed "an
expectation of privacy that society is prepared to consider as reasonable." Given the undisputed
evidence that respondent Dr. Ortega did not share his desk or file cabinets with any other employees,
kept personal correspondence and other private items in his own office while those work-related files
(on physicians in residency training) were stored outside his office, and there being no evidence that
the hospital had established any reasonable regulation or policy discouraging employees from storing
personal papers and effects in their desks or file cabinets (although the absence of such a policy does
not create any expectation of privacy where it would not otherwise exist), the Court concluded that Dr.
Ortega has a reasonable expectation of privacy at least in his desk and file cabinets. 38

Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable,
the O’Connor plurality decision discussed the following principles:

Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of
Appeals simply concluded without discussion that the "search…was not a reasonable search under the
fourth amendment." x x x "[t]o hold that the Fourth Amendment applies to searches conducted by
[public employers] is only to begin the inquiry into the standards governing such searches…[W]hat is
reasonable depends on the context within which a search takes place. x x x Thus, we must determine
the appropriate standard of reasonableness applicable to the search. A determination of the standard
of reasonableness applicable to a particular class of searches requires "balanc[ing] the nature and
quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion." x x x In the case of searches conducted by a
public employer, we must balance the invasion of the employees’ legitimate expectations of privacy
against the government’s need for supervision, control, and the efficient operation of the workplace.

xxxx
In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an
employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine
conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such
cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is
simply unreasonable. In contrast to other circumstances in which we have required warrants,
supervisors in offices such as at the Hospital are hardly in the business of investigating the violation of
criminal laws. Rather, work-related searches are merely incident to the primary business of the agency.
Under these circumstances, the imposition of a warrant requirement would conflict with the
"common-sense realization that government offices could not function if every employment decision
became a constitutional matter." x x x

xxxx

The governmental interest justifying work-related intrusions by public employers is the efficient and
proper operation of the workplace. Government agencies provide myriad services to the public, and
the work of these agencies would suffer if employers were required to have probable cause before
they entered an employee’s desk for the purpose of finding a file or piece of office correspondence.
Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory
context, much meaning when the purpose of a search is to retrieve a file for work-related reasons.
Similarly, the concept of probable cause has little meaning for a routine inventory conducted by public
employers for the purpose of securing state property. x x x To ensure the efficient and proper
operation of the agency, therefore, public employers must be given wide latitude to enter employee
offices for work-related, noninvestigatory reasons.

We come to a similar conclusion for searches conducted pursuant to an investigation of work-related

employee misconduct. Even when employers conduct an investigation, they have an interest
substantially different from "the normal need for law enforcement." x x x Public employers have an
interest in ensuring that their agencies operate in an effective and efficient manner, and the work of
these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other work-
related misfeasance of its employees. Indeed, in many cases, public employees are entrusted with
tremendous responsibility, and the consequences of their misconduct or incompetence to both the
agency and the public interest can be severe. In contrast to law enforcement officials, therefore, public
employers are not enforcers of the criminal law; instead, public employers have a direct and overriding
interest in ensuring that the work of the agency is conducted in a proper and efficient manner. In our
view, therefore, a probable cause requirement for searches of the type at issue here would impose
intolerable burdens on public employers. The delay in correcting the employee misconduct caused
by the need for probable cause rather than reasonable suspicion will be translated into tangible and
often irreparable damage to the agency’s work, and ultimately to the public interest. x x x

xxxx

In sum, we conclude that the "special needs, beyond the normal need for law enforcement make
the…probable-cause requirement impracticable," x x x for legitimate, work-related noninvestigatory
intrusions as well as investigations of work-related misconduct. A standard of reasonableness will
neither unduly burden the efforts of government employers to ensure the efficient and proper
operation of the workplace, nor authorize arbitrary intrusions upon the privacy of public employees.
We hold, therefore, that public employer intrusions on the constitutionally protected privacy
interests of government employees for noninvestigatory, work-related purposes, as well as
for investigations of work-related misconduct, should be judged by the standard of reasonableness
under all the circumstances. Under this reasonableness standard, both the inception and the scope of
the intrusion must be reasonable:

"Determining the reasonableness of any search involves a twofold inquiry: first, one must consider
‘whether the…action was justified at its inception,’ x x x ; second, one must determine whether the
search as actually conducted ‘was reasonably related in scope to the circumstances which justified the
interference in the first place,’" x x x

Ordinarily, a search of an employee’s office by a supervisor will be "justified at its inception" when
there are reasonable grounds for suspecting that the search will turn up evidence that the employee
is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-
related purpose such as to retrieve a needed file. x x x The search will be permissible in its scope
when "the measures adopted are reasonably related to the objectives of the search and not
excessively intrusive in light of …the nature of the [misconduct]." x x x39 (Citations omitted; emphasis
supplied.)

Since the District Court granted summary judgment without a hearing on the factual dispute as to the
character of the search and neither was there any finding made as to the scope of the search that was
undertaken, the case was remanded to said court for the determination of the justification for the
search and seizure, and evaluation of the reasonableness of both the inception of the search and its
scope.

In O’Connor the Court recognized that "special needs" authorize warrantless searches involving public
employees for work-related reasons. The Court thus laid down a balancing test under which
government interests are weighed against the employee’s reasonable expectation of privacy. This
reasonableness test implicates neither probable cause nor the warrant requirement, which are related
to law enforcement.40

O’Connor was applied in subsequent cases raising issues on employees’ privacy rights in the workplace.
One of these cases involved a government employer’s search of an office computer, United States v.
Mark L. Simons41 where the defendant Simons, an employee of a division of the Central Intelligence
Agency (CIA), was convicted of receiving and possessing materials containing child pornography.
Simons was provided with an office which he did not share with anyone, and a computer with Internet
access. The agency had instituted a policy on computer use stating that employees were to use the
Internet for official government business only and that accessing unlawful material was specifically
prohibited. The policy also stated that users shall understand that the agency will periodically audit,
inspect, and/or monitor the user’s Internet access as deemed appropriate. CIA agents instructed its
contractor for the management of the agency’s computer network, upon initial discovery of prohibited
internet activity originating from Simons’ computer, to conduct a remote monitoring and examination
of Simons’ computer. After confirming that Simons had indeed downloaded pictures that were
pornographic in nature, all the files on the hard drive of Simon’s computer were copied from a remote
work station. Days later, the contractor’s representative finally entered Simon’s office, removed the
original hard drive on Simon’s computer, replaced it with a copy, and gave the original to the agency
security officer. Thereafter, the agency secured warrants and searched Simons’ office in the evening
when Simons was not around. The search team copied the contents of Simons’ computer; computer
diskettes found in Simons’ desk drawer; computer files stored on the zip drive or on zip drive diskettes;
videotapes; and various documents, including personal correspondence. At his trial, Simons moved to
suppress these evidence, arguing that the searches of his office and computer violated his Fourth
Amendment rights. After a hearing, the district court denied the motion and Simons was found guilty
as charged.

Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons’ computer
and office did not violate his Fourth Amendment rights and the first search warrant was valid. It held
that the search remains valid under the O’Connor exception to the warrant requirement because
evidence of the crime was discovered in the course of an otherwise proper administrative inspection.
Simons’ violation of the agency’s Internet policy happened also to be a violation of criminal law; this
does not mean that said employer lost the capacity and interests of an employer. The warrantless
entry into Simons’ office was reasonable under the Fourth Amendment standard announced in
O’Connor because at the inception of the search, the employer had "reasonable grounds for
suspecting" that the hard drive would yield evidence of misconduct, as the employer was already
aware that Simons had misused his Internet access to download over a thousand pornographic images.
The retrieval of the hard drive was reasonably related to the objective of the search, and the search
was not excessively intrusive. Thus, while Simons had a reasonable expectation of privacy in his office,
he did not have such legitimate expectation of privacy with regard to the files in his computer.

x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that he
had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in order to
prove a legitimate expectation of privacy, Simons must show that his subjective expectation of privacy
is one that society is prepared to accept as objectively reasonable. x x x

xxxx

x x x We conclude that the remote searches of Simons’ computer did not violate his Fourth
Amendment rights because, in light of the Internet policy, Simons lacked a legitimate expectation of
privacy in the files downloaded from the Internet. Additionally, we conclude that Simons’ Fourth
Amendment rights were not violated by FBIS’ retrieval of Simons’ hard drive from his office.

Simons did not have a legitimate expectation of privacy with regard to the record or fruits of his
Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would "audit,
inspect, and/or monitor" employees’ use of the Internet, including all file transfers, all websites
visited, and all e-mail messages, "as deemed appropriate." x x x This policy placed employees on
notice that they could not reasonably expect that their Internet activity would be private. Therefore,
regardless of whether Simons subjectively believed that the files he transferred from the Internet were
private, such a belief was not objectively reasonable after FBIS notified him that it would be overseeing
his Internet use. x x x Accordingly, FBIS’ actions in remotely searching and seizing the computer files
Simons downloaded from the Internet did not violate the Fourth Amendment.

xxxx

The burden is on Simons to prove that he had a legitimate expectation of privacy in his office. x x x
Here, Simons has shown that he had an office that he did not share. As noted above, the operational
realities of Simons’ workplace may have diminished his legitimate privacy expectations. However,
there is no evidence in the record of any workplace practices, procedures, or regulations that had such
an effect. We therefore conclude that, on this record, Simons possessed a legitimate expectation of
privacy in his office.

xxxx
In the final analysis, this case involves an employee’s supervisor entering the employee’s government
office and retrieving a piece of government equipment in which the employee had absolutely no
expectation of privacy – equipment that the employer knew contained evidence of crimes committed
by the employee in the employee’s office. This situation may be contrasted with one in which the
criminal acts of a government employee were unrelated to his employment. Here, there was a
conjunction of the conduct that violated the employer’s policy and the conduct that violated the
criminal law. We consider that FBIS’ intrusion into Simons’ office to retrieve the hard drive is one in
which a reasonable employer might engage. x x x42 (Citations omitted; emphasis supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43 which involved the
constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for
public office, students of secondary and tertiary schools, officers and employees of public and private
offices, and persons charged before the prosecutor’s office with certain offenses, have also recognized
the fact that there may be such legitimate intrusion of privacy in the workplace.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon
which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution,
intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy
expectation of the employees and the reasonableness of drug testing requirement. The employees’
privacy interest in an office is to a large extent circumscribed by the company’s work policies, the
collective bargaining agreement, if any, entered into by management and the bargaining unit, and the
inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy
expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon
such privacy has been upheld. (Emphasis supplied.)

Applying the analysis and principles announced in O’Connor and Simons to the case at bar, we now
address the following questions: (1) Did petitioner have a reasonable expectation of privacy in his
office and computer files?; and (2) Was the search authorized by the CSC Chair, the copying of the
contents of the hard drive on petitioner’s computer reasonable in its inception and scope?

In this inquiry, the relevant surrounding circumstances to consider include "(1) the employee’s
relationship to the item seized; (2) whether the item was in the immediate control of the employee
when it was seized; and (3) whether the employee took actions to maintain his privacy in the item."
These factors are relevant to both the subjective and objective prongs of the reasonableness inquiry,
and we consider the two questions together.44 Thus, where the employee used a password on his
computer, did not share his office with co-workers and kept the same locked, he had a legitimate
expectation of privacy and any search of that space and items located therein must comply with the
Fourth Amendment.45

We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective)
expectation of privacy either in his office or government-issued computer which contained his personal
files. Petitioner did not allege that he had a separate enclosed office which he did not share with
anyone, or that his office was always locked and not open to other employees or visitors. Neither did
he allege that he used passwords or adopted any means to prevent other employees from accessing
his computer files. On the contrary, he submits that being in the public assistance office of the CSC-
ROIV, he normally would have visitors in his office like friends, associates and even unknown people,
whom he even allowed to use his computer which to him seemed a trivial request. He described his
office as "full of people, his friends, unknown people" and that in the past 22 years he had been
discharging his functions at the PALD, he is "personally assisting incoming clients, receiving documents,
drafting cases on appeals, in charge of accomplishment report, Mamamayan Muna Program, Public
Sector Unionism, Correction of name, accreditation of service, and hardly had anytime for himself
alone, that in fact he stays in the office as a paying customer."46 Under this scenario, it can hardly be
deduced that petitioner had such expectation of privacy that society would recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned
factual circumstances, that petitioner had at least a subjective expectation of privacy in his computer
as he claims, such is negated by the presence of policy regulating the use of office computers, as in
Simons.

Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides:

POLICY

1. The Computer Resources are the property of the Civil Service Commission and may be used
only for legitimate business purposes.

2. Users shall be permitted access to Computer Resources to assist them in the performance of
their respective jobs.

3. Use of the Computer Resources is a privilege that may be revoked at any given time.

xxxx

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission shall not have an
expectation of privacy in anything they create, store, send, or receive on the computer system.

The Head of the Office for Recruitment, Examination and Placement shall select and assign
Users to handle the confidential examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they create,
store, send, or receive on the computer through the Internet or any other computer
network. Users understand that the CSC may use human or automated means to monitor the
use of its Computer Resources.

6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or

for the exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can
be shared or operated by other users. However, he is accountable therefor and must insure its
care and maintenance.

xxxx

Passwords

12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for
access to the computer system. Individual passwords shall not be printed, stored online, or
 given to others. Users shall be responsible for all transactions made using their passwords. No
User may access the computer system with another User’s password or account.

13. Passwords do not imply privacy. Use of passwords to gain access to the computer system or
to encode particular files or messages does not imply that Users have an expectation of privacy
in the material they create or receive on the computer system. The Civil Service Commission
has global passwords that permit access to all materials stored on its networked computer
system regardless of whether those materials have been encoded with a particular User’s
password. Only members of the Commission shall authorize the application of the said global
passwords.

x x x x47 (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that they have no
expectation of privacy in anything they create, store, send or receive on the office computers, and that
the CSC may monitor the use of the computer resources using both automated or human means. This
implies that on-the-spot inspections may be done to ensure that the computer resources were used
only for such legitimate business purposes.

One of the factors stated in O’Connor which are relevant in determining whether an employee’s
expectation of privacy in the workplace is reasonable is the existence of a workplace privacy policy. 48 In
one case, the US Court of Appeals Eighth Circuit held that a state university employee has not shown
that he had a reasonable expectation of privacy in his computer files where the university’s computer
policy, the computer user is informed not to expect privacy if the university has a legitimate reason to
conduct a search. The user is specifically told that computer files, including e-mail, can be searched
when the university is responding to a discovery request in the course of litigation. Petitioner
employee thus cannot claim a violation of Fourth Amendment rights when university officials
conducted a warrantless search of his computer for work-related materials. 49

As to the second point of inquiry on the reasonableness of the search conducted on petitioner’s
computer, we answer in the affirmative.

The search of petitioner’s computer files was conducted in connection with investigation of work-
related misconduct prompted by an anonymous letter-complaint addressed to Chairperson David
regarding anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na
division is supposedly "lawyering" for individuals with pending cases in the CSC. Chairperson David
stated in her sworn affidavit:

8. That prior to this, as early as 2006, the undersigned has received several text messages from
unknown sources adverting to certain anomalies in Civil Service Commission Regional Office IV (CSCRO
IV) such as, staff working in another government agency, "selling" cases and aiding parties with
pending cases, all done during office hours and involved the use of government properties;

9. That said text messages were not investigated for lack of any verifiable leads and details sufficient to
warrant an investigation;

10. That the anonymous letter provided the lead and details as it pinpointed the persons and divisions
involved in the alleged irregularities happening in CSCRO IV;
11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its
effect on the integrity of the Commission, I decided to form a team of Central Office staff to back up
the files in the computers of the Public Assistance and Liaison Division (PALD) and Legal Division;

x x x x50

A search by a government employer of an employee’s office is justified at inception when there are
reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-
related misconduct.51 Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was
held that where a government agency’s computer use policy prohibited electronic messages with
pornographic content and in addition expressly provided that employees do not have any personal
privacy rights regarding their use of the agency information systems and technology, the government
employee had no legitimate expectation of privacy as to the use and contents of his office computer,
and therefore evidence found during warrantless search of the computer was admissible in
prosecution for child pornography. In that case, the defendant employee’s computer hard drive was
first remotely examined by a computer information technician after his supervisor received complaints
that he was inaccessible and had copied and distributed non-work-related e-mail messages throughout
the office. When the supervisor confirmed that defendant had used his computer to access the
prohibited websites, in contravention of the express policy of the agency, his computer tower and
floppy disks were taken and examined. A formal administrative investigation ensued and later search
warrants were secured by the police department. The initial remote search of the hard drive of
petitioner’s computer, as well as the subsequent warrantless searches was held as valid under the
O’Connor ruling that a public employer can investigate work-related misconduct so long as any search
is justified at inception and is reasonably related in scope to the circumstances that justified it in the
first place.52

Under the facts obtaining, the search conducted on petitioner’s computer was justified at its inception
and scope. We quote with approval the CSC’s discussion on the reasonableness of its actions,
consistent as it were with the guidelines established by O’Connor:

Even conceding for a moment that there is no such administrative policy, there is no doubt in the mind
of the Commission that the search of Pollo’s computer has successfully passed the test of
reasonableness for warrantless searches in the workplace as enunciated in the above-discussed
American authorities. It bears emphasis that the Commission pursued the search in its capacity as a
government employer and that it was undertaken in connection with an investigation involving a
work-related misconduct, one of the circumstances exempted from the warrant requirement. At the
inception of the search, a complaint was received recounting that a certain division chief in the CSCRO
No. IV was "lawyering" for parties having pending cases with the said regional office or in the
Commission. The nature of the imputation was serious, as it was grievously disturbing. If, indeed, a
CSC employee was found to be furtively engaged in the practice of "lawyering" for parties with pending
cases before the Commission would be a highly repugnant scenario, then such a case would have
shattering repercussions. It would undeniably cast clouds of doubt upon the institutional integrity of
the Commission as a quasi-judicial agency, and in the process, render it less effective in fulfilling its
mandate as an impartial and objective dispenser of administrative justice. It is settled that a court or an
administrative tribunal must not only be actually impartial but must be seen to be so, otherwise the
general public would not have any trust and confidence in it.

Considering the damaging nature of the accusation, the Commission had to act fast, if only to arrest
or limit any possible adverse consequence or fall-out. Thus, on the same date that the complaint was
received, a search was forthwith conducted involving the computer resources in the concerned
regional office. That it was the computers that were subjected to the search was justified since these
furnished the easiest means for an employee to encode and store documents. Indeed, the computers
would be a likely starting point in ferreting out incriminating evidence. Concomitantly, the
ephemeral nature of computer files, that is, they could easily be destroyed at a click of a button,
necessitated drastic and immediate action. Pointedly, to impose the need to comply with the
probable cause requirement would invariably defeat the purpose of the wok-related investigation.

Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open
and transparent manner. Officials and some employees of the regional office, who happened to be in
the vicinity, were on hand to observe the process until its completion. In addition, the respondent
himself was duly notified, through text messaging, of the search and the concomitant retrieval of files
from his computer.

All in all, the Commission is convinced that the warrantless search done on computer assigned to Pollo
was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial
prerogative of the Commission as an employer aimed at ensuring its operational effectiveness and
efficiency by going after the work-related misfeasance of its employees. Consequently, the evidence
derived from the questioned search are deemed admissible.53

Petitioner’s claim of violation of his constitutional right to privacy must necessarily fail. His other
argument invoking the privacy of communication and correspondence under Section 3(1), Article III of
the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate
intrusions into the privacy of employees in the government workplace under the aforecited authorities.
We likewise find no merit in his contention that O’Connor and Simons are not relevant because the
present case does not involve a criminal offense like child pornography. As already mentioned, the
search of petitioner’s computer was justified there being reasonable ground for suspecting that the
files stored therein would yield incriminating evidence relevant to the investigation being conducted by
CSC as government employer of such misconduct subject of the anonymous complaint. This situation
clearly falls under the exception to the warrantless requirement in administrative searches defined in
O’Connor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales,
Clerk of Court, Metropolitan Trial Court of Manila54 involving a branch clerk (Atty. Morales) who was
investigated on the basis of an anonymous letter alleging that he was consuming his working hours
filing and attending to personal cases, using office supplies, equipment and utilities. The OCA
conducted a spot investigation aided by NBI agents. The team was able to access Atty. Morales’
personal computer and print two documents stored in its hard drive, which turned out to be two
pleadings, one filed in the CA and another in the RTC of Manila, both in the name of another lawyer.
Atty. Morales’ computer was seized and taken in custody of the OCA but was later ordered released on
his motion, but with order to the MISO to first retrieve the files stored therein. The OCA disagreed with
the report of the Investigating Judge that there was no evidence to support the charge against Atty.
Morales as no one from the OCC personnel who were interviewed would give a categorical and
positive statement affirming the charges against Atty. Morales, along with other court personnel also
charged in the same case. The OCA recommended that Atty. Morales should be found guilty of gross
misconduct. The Court En Banc held that while Atty. Morales may have fallen short of the exacting
standards required of every court employee, the Court cannot use the evidence obtained from his
personal computer against him for it violated his constitutional right against unreasonable searches
and seizures. The Court found no evidence to support the claim of OCA that they were able to obtain
the subject pleadings with the consent of Atty. Morales, as in fact the latter immediately filed an
administrative case against the persons who conducted the spot investigation, questioning the validity
of the investigation and specifically invoking his constitutional right against unreasonable search and
seizure. And as there is no other evidence, apart from the pleadings, retrieved from the unduly
confiscated personal computer of Atty. Morales, to hold him administratively liable, the Court had no
choice but to dismiss the charges against him for insufficiency of evidence.

The above case is to be distinguished from the case at bar because, unlike the former which involved a
personal computer of a court employee, the computer from which the personal files of herein
petitioner were retrieved is a government-issued computer, hence government property the use of
which the CSC has absolute right to regulate and monitor. Such relationship of the petitioner with the
item seized (office computer) and other relevant factors and circumstances under American Fourth
Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use Policy,
failed to establish that petitioner had a reasonable expectation of privacy in the office computer
assigned to him.

Having determined that the personal files copied from the office computer of petitioner are admissible
in the administrative case against him, we now proceed to the issue of whether the CSC was correct in
finding the petitioner guilty of the charges and dismissing him from the service.

Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not
only respect but even finality if such findings are supported by substantial evidence. Substantial
evidence is such amount of relevant evidence which a reasonable mind might accept as adequate to
support a conclusion, even if other equally reasonable minds might conceivably opine otherwise. 55

The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings
and documents stored in his office computer, as well as the sworn affidavits and testimonies of the
witnesses it presented during the formal investigation. According to the CSC, these documents were
confirmed to be similar or exactly the same content-wise with those on the case records of some cases
pending either with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also substantially
similar copies of those pleadings filed with the CA and duly furnished the Commission. Further, the CSC
found the explanation given by petitioner, to the effect that those files retrieved from his computer
hard drive actually belonged to his lawyer friends Estrellado and Solosa whom he allowed the use of his
computer for drafting their pleadings in the cases they handle, as implausible and doubtful under the
circumstances. We hold that the CSC’s factual finding regarding the authorship of the subject pleadings
and misuse of the office computer is well-supported by the evidence on record, thus:

It is also striking to note that some of these documents were in the nature of pleadings responding to
the orders, decisions or resolutions of these offices or directly in opposition to them such as a petition
for certiorari or a motion for reconsideration of CSC Resolution. This indicates that the author thereof
knowingly and willingly participated in the promotion or advancement of the interests of parties
contrary or antagonistic to the Commission. Worse, the appearance in one of the retrieved documents
the phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad mo," lends plausibility to an inference that the
preparation or drafting of the legal pleadings was pursued with less than a laudable motivation.
Whoever was responsible for these documents was simply doing the same for the money – a "legal
mercenary" selling or purveying his expertise to the highest bidder, so to speak.

Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the
presumption that he was the author thereof. This is because he had a control of the said computer.
More significantly, one of the witnesses, Margarita Reyes, categorically testified seeing a written copy
of one of the pleadings found in the case records lying on the table of the respondent. This was the
Petition for Review in the case of Estrellado addressed to the Court of Appeals. The said circumstances
indubitably demonstrate that Pollo was secretly undermining the interest of the Commission, his very
own employer.

To deflect any culpability, Pollo would, however, want the Commission to believe that the documents
were the personal files of some of his friends, including one Attorney Ponciano Solosa, who incidentally
served as his counsel of record during the formal investigation of this case. In fact, Atty. Solosa himself
executed a sworn affidavit to this effect. Unfortunately, this contention of the respondent was directly
rebutted by the prosecution witness, Reyes, who testified that during her entire stay in the PALD, she
never saw Atty. Solosa using the computer assigned to the respondent. Reyes more particularly stated
that she worked in close proximity with Pollo and would have known if Atty. Solosa, whom she
personally knows, was using the computer in question. Further, Atty. Solosa himself was never
presented during the formal investigation to confirm his sworn statement such that the same
constitutes self-serving evidence unworthy of weight and credence. The same is true with the other
supporting affidavits, which Pollo submitted.

At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact
that he was unlawfully authorizing private persons to use the computer assigned to him for official
purpose, not only once but several times gauging by the number of pleadings, for ends not in
conformity with the interests of the Commission. He was, in effect, acting as a principal by
indispensable cooperation…Or at the very least, he should be responsible for serious misconduct for
repeatedly allowing CSC resources, that is, the computer and the electricity, to be utilized for purposes
other than what they were officially intended.

Further, the Commission cannot lend credence to the posturing of the appellant that the line
appearing in one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private joke
between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not
indicative of anything more sinister. The same is too preposterous to be believed. Why would such a
statement appear in a legal pleading stored in the computer assigned to the respondent, unless he had
something to do with it?56

Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous
complaint since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:

Rule II – Disciplinary Cases

SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due
course unless it is in writing and subscribed and sworn to by the complainant. However, in cases
initiated by the proper disciplining authority, the complaint need not be under oath.

No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegation
therein or supported by documentary or direct evidence, in which case the person complained of may
be required to comment.

xxxx
We need not belabor this point raised by petitioner. The administrative complaint is deemed to have
been initiated by the CSC itself when Chairperson David, after a spot inspection and search of the files
stored in the hard drive of computers in the two divisions adverted to in the anonymous letter -- as
part of the disciplining authority’s own fact-finding investigation and information-gathering -- found a
prima facie case against the petitioner who was then directed to file his comment. As this Court held in
Civil Service Commission v. Court of Appeals 57 --

Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II of
Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a civil
service officer or employee by the appropriate disciplining authority, even without being subscribed
and sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the complaint,
jurisdiction over Dumlao was validly acquired. (Emphasis supplied.)

As to petitioner’s challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant
consideration. The alleged infirmity due to the said memorandum order having been issued solely by
the CSC Chair and not the Commission as a collegial body, upon which the dissent of Commissioner
Buenaflor is partly anchored, was already explained by Chairperson David in her Reply to the
Addendum to Commissioner Buenaflor’s previous memo expressing his dissent to the actions and
disposition of the Commission in this case. According to Chairperson David, said memorandum order
was in fact exhaustively discussed, provision by provision in the January 23, 2002 Commission Meeting,
attended by her and former Commissioners Erestain, Jr. and Valmores. Hence, the Commission En
Banc at the time saw no need to issue a Resolution for the purpose and further because the CUP being
for internal use of the Commission, the practice had been to issue a memorandum order. 58 Moreover,
being an administrative rule that is merely internal in nature, or which regulates only the personnel of
the CSC and not the public, the CUP need not be published prior to its effectivity.59

In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSC’s ruling that
petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the
service, and violation of R.A. No. 6713. The gravity of these offenses justified the imposition on
petitioner of the ultimate penalty of dismissal with all its accessory penalties, pursuant to existing rules
and regulations.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007 and
Resolution dated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED.

With costs against the petitioner.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 190710               June 6, 2011

JESSE U. LUCAS, Petitioner,
vs.
JESUS S. LUCAS, Respondent.

DECISION

NACHURA, J.:

Is a prima facie showing necessary before a court can issue a DNA testing order? In this petition for
review on certiorari, we address this question to guide the Bench and the Bar in dealing with a
relatively new evidentiary tool. Assailed in this petition are the Court of Appeals (CA) Decision 1 dated
September 25, 2009 and Resolution dated December 17, 2009.

The antecedents of the case are, as follows:

On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to Establish Illegitimate Filiation (with
Motion for the Submission of Parties to DNA Testing)2 before the Regional Trial Court (RTC), Branch 72,
Valenzuela City. Petitioner narrated that, sometime in 1967, his mother, Elsie Uy (Elsie), migrated to
Manila from Davao and stayed with a certain "Ate Belen (Belen)" who worked in a prominent nightspot
in Manila. Elsie would oftentimes accompany Belen to work. On one occasion, Elsie got acquainted
with respondent, Jesus S. Lucas, at Belen’s workplace, and an intimate relationship developed between
the two. Elsie eventually got pregnant and, on March 11, 1969, she gave birth to petitioner, Jesse U.
Lucas. The name of petitioner’s father was not stated in petitioner’s certificate of live birth. However,
Elsie later on told petitioner that his father is respondent. On August 1, 1969, petitioner was baptized
at San Isidro Parish, Taft Avenue, Pasay City. Respondent allegedly extended financial support to Elsie
and petitioner for a period of about two years. When the relationship of Elsie and respondent ended,
Elsie refused to accept respondent’s offer of support and decided to raise petitioner on her own. While
petitioner was growing up, Elsie made several attempts to introduce petitioner to respondent, but all
attempts were in vain.

Attached to the petition were the following: (a) petitioner’s certificate of live birth; (b) petitioner’s
baptismal certificate; (c) petitioner’s college diploma, showing that he graduated from Saint Louis
University in Baguio City with a degree in Psychology; (d) his Certificate of Graduation from the same
school; (e) Certificate of Recognition from the University of the Philippines, College of Music; and (f)
clippings of several articles from different newspapers about petitioner, as a musical prodigy.

Respondent was not served with a copy of the petition. Nonetheless, respondent learned of the
petition to establish filiation. His counsel therefore went to the trial court on August 29, 2007 and
obtained a copy of the petition.
Petitioner filed with the RTC a Very Urgent Motion to Try and Hear the Case. Hence, on September 3,
2007, the RTC, finding the petition to be sufficient in form and substance, issued the Order 3 setting the
case for hearing and urging anyone who has any objection to the petition to file his opposition. The
court also directed that the Order be published once a week for three consecutive weeks in any
newspaper of general circulation in the Philippines, and that the Solicitor General be furnished with
copies of the Order and the petition in order that he may appear and represent the State in the case.

On September 4, 2007, unaware of the issuance of the September 3, 2007 Order, respondent filed a
Special Appearance and Comment. He manifested inter alia that: (1) he did not receive the summons
and a copy of the petition; (2) the petition was adversarial in nature and therefore summons should be
served on him as respondent; (3) should the court agree that summons was required, he was waiving
service of summons and making a voluntary appearance; and (4) notice by publication of the petition
and the hearing was improper because of the confidentiality of the subject matter. 4

On September 14, 2007, respondent also filed a Manifestation and Comment on Petitioner’s Very
Urgent Motion to Try and Hear the Case. Respondent reiterated that the petition for recognition is
adversarial in nature; hence, he should be served with summons.

After learning of the September 3, 2007 Order, respondent filed a motion for
reconsideration.5 Respondent averred that the petition was not in due form and substance because
petitioner could not have personally known the matters that were alleged therein. He argued that DNA
testing cannot be had on the basis of a mere allegation pointing to respondent as petitioner’s father.
Moreover, jurisprudence is still unsettled on the acceptability of DNA evidence.

On July 30, 2008, the RTC, acting on respondent’s motion for reconsideration, issued an
Order6 dismissing the case. The court remarked that, based on the case of Herrera v. Alba, 7 there are
four significant procedural aspects of a traditional paternity action which the parties have to face: a
prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between
the putative father and the child. The court opined that petitioner must first establish these four
procedural aspects before he can present evidence of paternity and filiation, which may include
incriminating acts or scientific evidence like blood group test and DNA test results. The court observed
that the petition did not show that these procedural aspects were present. Petitioner failed to
establish a prima facie case considering that (a) his mother did not personally declare that she had
sexual relations with respondent, and petitioner’s statement as to what his mother told him about his
father was clearly hearsay; (b) the certificate of live birth was not signed by respondent; and (c)
although petitioner used the surname of respondent, there was no allegation that he was treated as
the child of respondent by the latter or his family. The court opined that, having failed to establish a
prima facie case, respondent had no obligation to present any affirmative defenses. The dispositive
portion of the said Order therefore reads:

WHEREFORE, for failure of the petitioner to establish compliance with the four procedural aspects of a
traditional paternity action in his petition, his motion for the submission of parties to DNA testing to
establish paternity and filiation is hereby denied. This case is DISMISSED without prejudice.

SO ORDERED.8

Petitioner seasonably filed a motion for reconsideration to the Order dated July 30, 2008, which the
RTC resolved in his favor. Thus, on October 20, 2008, it issued the Order 9 setting aside the court’s
previous order, thus:
WHEREFORE, in view of the foregoing, the Order dated July 30, 2008 is hereby reconsidered and set
aside.

Let the Petition (with Motion for the Submission of Parties to DNA Testing) be set for hearing
on January 22, 2009 at 8:30 in the morning.

xxxx

SO ORDERED.10

This time, the RTC held that the ruling on the grounds relied upon by petitioner for filing the petition is
premature considering that a full-blown trial has not yet taken place. The court stressed that the
petition was sufficient in form and substance. It was verified, it included a certification against forum
shopping, and it contained a plain, concise, and direct statement of the ultimate facts on which
petitioner relies on for his claim, in accordance with Section 1, Rule 8 of the Rules of Court. The court
remarked that the allegation that the statements in the petition were not of petitioner’s personal
knowledge is a matter of evidence. The court also dismissed respondent’s arguments that there is no
basis for the taking of DNA test, and that jurisprudence is still unsettled on the acceptability of DNA
evidence. It noted that the new Rule on DNA Evidence11 allows the conduct of DNA testing, whether at
the court’s instance or upon application of any person who has legal interest in the matter in litigation.

Respondent filed a Motion for Reconsideration of Order dated October 20, 2008 and for Dismissal of
Petition,12 reiterating that (a) the petition was not in due form and substance as no defendant was
named in the title, and all the basic allegations were hearsay; and (b) there was no prima facie case,
which made the petition susceptible to dismissal.

The RTC denied the motion in the Order dated January 19, 2009, and rescheduled the hearing. 13

Aggrieved, respondent filed a petition for certiorari with the CA, questioning the Orders dated October
20, 2008 and January 19, 2009.

On September 25, 2009, the CA decided the petition for certiorari in favor of respondent, thus:

WHEREFORE, the instant petition for certiorari is hereby GRANTED for being meritorious. The assailed
Orders dated October 20, 2008 and January 19, 2009 both issued by the Regional Trial Court, Branch
172 of Valenzuela City in SP. Proceeding Case No. 30-V-07 are REVERSED and SET ASIDE. Accordingly,
the case docketed as SP. Proceeding Case No. 30-V-07 is DISMISSED. 14

The CA held that the RTC did not acquire jurisdiction over the person of respondent, as no summons
had been served on him. Respondent’s special appearance could not be considered as voluntary
appearance because it was filed only for the purpose of questioning the jurisdiction of the court over
respondent. Although respondent likewise questioned the court’s jurisdiction over the subject matter
of the petition, the same is not equivalent to a waiver of his right to object to the jurisdiction of the
court over his person.

The CA remarked that petitioner filed the petition to establish illegitimate filiation, specifically seeking
a DNA testing order to abbreviate the proceedings. It noted that petitioner failed to show that the four
significant procedural aspects of a traditional paternity action had been met. The CA further held that a
DNA testing should not be allowed when the petitioner has failed to establish a prima facie case, thus:
While the tenor [of Section 4, Rule on DNA Evidence] appears to be absolute, the rule could not really
have been intended to trample on the substantive rights of the parties. It could have not meant to be
an instrument to promote disorder, harassment, or extortion. It could have not been intended to
legalize unwarranted expedition to fish for evidence. Such will be the situation in this particular case if
a court may at any time order the taking of a DNA test. If the DNA test in compulsory recognition cases
is immediately available to the petitioner/complainant without requiring first the presentation of
corroborative proof, then a dire and absurd rule would result. Such will encourage and promote
harassment and extortion.

xxxx

At the risk of being repetitious, the Court would like to stress that it sees the danger of allowing an
absolute DNA testing to a compulsory recognition test even if the plaintiff/petitioner failed to establish
prima facie proof. x x x If at anytime, motu proprio and without pre-conditions, the court can indeed
order the taking of DNA test in compulsory recognition cases, then the prominent and well-to-do
members of our society will be easy prey for opportunists and extortionists. For no cause at all, or even
for [sic] casual sexual indiscretions in their younger years could be used as a means to harass them.
Unscrupulous women, unsure of the paternity of their children may just be taking the chances-just in
case-by pointing to a sexual partner in a long past one-time encounter. Indeed an absolute and
unconditional taking of DNA test for compulsory recognition case opens wide the opportunities for
extortionist to prey on victims who have no stomach for scandal. 15

Petitioner moved for reconsideration. On December 17, 2009, the CA denied the motion for lack of
merit.16

In this petition for review on certiorari, petitioner raises the following issues:

I.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RESOLVED THE ISSUE OF LACK OF
JURISDICTION OVER THE PERSON OF HEREIN RESPONDENT ALBEIT THE SAME WAS NEVER
RAISED IN THE PETITION FOR CERTIORARI.
I.A
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT JURISDICTION
WAS NOT ACQUIRED OVER THE PERSON OF THE RESPONDENT.
I.B
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT FAILED TO REALIZE THAT
THE RESPONDENT HAD ALREADY SUBMITTED VOLUNTARILY TO THE JURISDICTION OF
THE COURT A QUO.
I.C
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT
THE TITLE OF A PLEADING, RATHER THAN ITS BODY, IS CONTROLLING.
II.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ORDERED THE DISMISSAL OF THE
PETITION BY REASON OF THE MOTION (FILED BY THE PETITIONER BEFORE THE COURT A QUO)
FOR THE CONDUCT OF DNA TESTING.
II.A
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT DNA
TESTING CAN ONLY BE ORDERED AFTER THE PETITIONER ESTABLISHES PRIMA FACIE PROOF OF
FILIATION.
 III.
WHETHER OR NOT THE COURT OF APPEALS ERRED WITH ITS MISPLACED RELIANCE ON THE
CASE OF HERRERA VS. ALBA,

ESPECIALLY AS REGARDS THE ‘FOUR SIGNIFICANT PROCEDURAL ASPECTS OF A TRADITIONAL

PATERNITY ACTION.’17

Petitioner contends that respondent never raised as issue in his petition for certiorari the court’s lack
of jurisdiction over his person. Hence, the CA had no legal basis to discuss the same, because issues not
raised are deemed waived or abandoned. At any rate, respondent had already voluntarily submitted to
the jurisdiction of the trial court by his filing of several motions asking for affirmative relief, such as the
(a) Motion for Reconsideration of the Order dated September 3, 2007; (b) Ex Parte Motion to Resolve
Motion for Reconsideration of the Order dated November 6, 2007; and (c) Motion for Reconsideration
of the Order dated October 20, 2008 and for Dismissal of Petition. Petitioner points out that
respondent even expressly admitted that he has waived his right to summons in his Manifestation and
Comment on Petitioner’s Very Urgent Motion to Try and Hear the Case. Hence, the issue is already
moot and academic.

Petitioner argues that the case was adversarial in nature. Although the caption of the petition does not
state respondent’s name, the body of the petition clearly indicates his name and his known address. He
maintains that the body of the petition is controlling and not the caption.

Finally, petitioner asserts that the motion for DNA testing should not be a reason for the dismissal of
the petition since it is not a legal ground for the dismissal of cases. If the CA entertained any doubt as
to the propriety of DNA testing, it should have simply denied the motion. 18 Petitioner points out that
Section 4 of the Rule on DNA Evidence does not require that there must be a prior proof of filiation
before DNA testing can be ordered. He adds that the CA erroneously relied on the four significant
procedural aspects of a paternity case, as enunciated in Herrera v. Alba. 19 Petitioner avers that these
procedural aspects are not applicable at this point of the proceedings because they are matters of
evidence that should be taken up during the trial.20

In his Comment, respondent supports the CA’s ruling on most issues raised in the petition for certiorari
and merely reiterates his previous arguments. However, on the issue of lack of jurisdiction, respondent
counters that, contrary to petitioner’s assertion, he raised the issue before the CA in relation to his
claim that the petition was not in due form and substance. Respondent denies that he waived his right
to the service of summons. He insists that the alleged waiver and voluntary appearance was
conditional upon a finding by the court that summons is indeed required. He avers that the assertion of
affirmative defenses, aside from lack of jurisdiction over the person of the defendant, cannot be
considered as waiver of the defense of lack of jurisdiction over such person.

The petition is meritorious.

Primarily, we emphasize that the assailed Orders of the trial court were orders denying respondent’s
motion to dismiss the petition for illegitimate filiation. An order denying a motion to dismiss is an
interlocutory order which neither terminates nor finally disposes of a case, as it leaves something to be
done by the court before the case is finally decided on the merits. As such, the general rule is that the
denial of a motion to dismiss cannot be questioned in a special civil action for certiorari, which is a
remedy designed to correct errors of jurisdiction and not errors of judgment. Neither can a denial of a
motion to dismiss be the subject of an appeal unless and until a final judgment or order is rendered. In
a number of cases, the court has granted the extraordinary remedy of certiorari on the denial of the
motion to dismiss but only when it has been tainted with grave abuse of discretion amounting to lack
or excess of jurisdiction.21 In the present case, we discern no grave abuse of discretion on the part of
the trial court in denying the motion to dismiss.

The grounds for dismissal relied upon by respondent were (a) the court’s lack of jurisdiction over his
person due to the absence of summons, and (b) defect in the form and substance of the petition to
establish illegitimate filiation, which is equivalent to failure to state a cause of action.

We need not belabor the issues on whether lack of jurisdiction was raised before the CA, whether the
court acquired jurisdiction over the person of respondent, or whether respondent waived his right to
the service of summons. We find that the primordial issue here is actually whether it was necessary, in
the first place, to serve summons on respondent for the court to acquire jurisdiction over the case. In
other words, was the service of summons jurisdictional? The answer to this question depends on the
nature of petitioner’s action, that is, whether it is an action in personam, in rem, or quasi in rem.

An action in personam is lodged against a person based on personal liability; an action in rem is
directed against the thing itself instead of the person; while an action quasi in rem names a person as
defendant, but its object is to subject that person's interest in a property to a corresponding lien or
obligation. A petition directed against the "thing" itself or the res, which concerns the status of a
person, like a petition for adoption, annulment of marriage, or correction of entries in the birth
certificate, is an action in rem.22

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to
validly try and decide the case. In a proceeding in rem or quasi in rem, jurisdiction over the person of
the defendant is not a prerequisite to confer jurisdiction on the court, provided that the latter has
jurisdiction over the res. Jurisdiction over the res is acquired either (a) by the seizure of the property
under legal process, whereby it is brought into actual custody of the law, or (b) as a result of the
institution of legal proceedings, in which the power of the court is recognized and made effective. 23

The herein petition to establish illegitimate filiation is an action in rem. By the simple filing of the
petition to establish illegitimate filiation before the RTC, which undoubtedly had jurisdiction over the
subject matter of the petition, the latter thereby acquired jurisdiction over the case. An in
rem proceeding is validated essentially through publication. Publication is notice to the whole world
that the proceeding has for its object to bar indefinitely all who might be minded to make an objection
of any sort to the right sought to be established.24 Through publication, all interested parties are
deemed notified of the petition.

If at all, service of summons or notice is made to the defendant, it is not for the purpose of vesting the
court with jurisdiction, but merely for satisfying the due process requirements. 25 This is but proper in
order to afford the person concerned the opportunity to protect his interest if he so chooses. 26 Hence,
failure to serve summons will not deprive the court of its jurisdiction to try and decide the case. In such
a case, the lack of summons may be excused where it is determined that the adverse party had, in fact,
the opportunity to file his opposition, as in this case. We find that the due process requirement with
respect to respondent has been satisfied, considering that he has participated in the proceedings in
this case and he has the opportunity to file his opposition to the petition to establish filiation.

To address respondent’s contention that the petition should have been adversarial in form, we further
hold that the herein petition to establish filiation was sufficient in form. It was indeed adversarial in
nature despite its caption which lacked the name of a defendant, the failure to implead respondent as
defendant, and the non-service of summons upon respondent. A proceeding is adversarial where the
party seeking relief has given legal warning to the other party and afforded the latter an opportunity to
contest it.27 In this petition—classified as an action in rem—the notice requirement for an adversarial
proceeding was likewise satisfied by the publication of the petition and the giving of notice to the
Solicitor General, as directed by the trial court.

The petition to establish filiation is sufficient in substance. It satisfies Section 1, Rule 8 of the Rules of
Court, which requires the complaint to contain a plain, concise, and direct statement of the ultimate
facts upon which the plaintiff bases his claim. A fact is essential if it cannot be stricken out without
leaving the statement of the cause of action inadequate.28 A complaint states a cause of action when it
contains the following elements: (1) the legal right of plaintiff, (2) the correlative obligation of the
defendant, and (3) the act or omission of the defendant in violation of said legal right. 29

The petition sufficiently states the ultimate facts relied upon by petitioner to establish his filiation to
respondent. Respondent, however, contends that the allegations in the petition were hearsay as they
were not of petitioner’s personal knowledge. Such matter is clearly a matter of evidence that cannot be
determined at this point but only during the trial when petitioner presents his evidence.

In a motion to dismiss a complaint based on lack of cause of action, the question submitted to the
court for determination is the sufficiency of the allegations made in the complaint to constitute a cause
of action and not whether those allegations of fact are true, for said motion must hypothetically admit
the truth of the facts alleged in the complaint.30

The inquiry is confined to the four corners of the complaint, and no other. 31 The test of the sufficiency
of the facts alleged in the complaint is whether or not, admitting the facts alleged, the court could
render a valid judgment upon the same in accordance with the prayer of the complaint. 32

If the allegations of the complaint are sufficient in form and substance but their veracity and
correctness are assailed, it is incumbent upon the court to deny the motion to dismiss and require the
defendant to answer and go to trial to prove his defense. The veracity of the assertions of the parties
can be ascertained at the trial of the case on the merits.33

The statement in Herrera v. Alba34 that there are four significant procedural aspects in a traditional
paternity case which parties have to face has been widely misunderstood and misapplied in this case. A
party is confronted by these so-called procedural aspects during trial, when the parties have presented
their respective evidence. They are matters of evidence that cannot be determined at this initial stage
of the proceedings, when only the petition to establish filiation has been filed. The CA’s observation
that petitioner failed to establish a prima facie case—the first procedural aspect in a paternity case—is
therefore misplaced. A prima facie case is built by a party’s evidence and not by mere allegations in the
initiatory pleading.

Clearly then, it was also not the opportune time to discuss the lack of a prima facie case vis-à-vis the
motion for DNA testing since no evidence has, as yet, been presented by petitioner. More essentially, it
is premature to discuss whether, under the circumstances, a DNA testing order is warranted
considering that no such order has yet been issued by the trial court. In fact, the latter has just set the
said case for hearing.
At any rate, the CA’s view that it would be dangerous to allow a DNA testing without corroborative
proof is well taken and deserves the Court’s attention. In light of this observation, we find that there is
a need to supplement the Rule on DNA Evidence to aid the courts in resolving motions for DNA testing
order, particularly in paternity and other filiation cases. We, thus, address the question of whether a
prima facie showing is necessary before a court can issue a DNA testing order.

The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the introduction and use of
DNA evidence in the judicial system. It provides the "prescribed parameters on the requisite elements
for reliability and validity (i.e., the proper procedures, protocols, necessary laboratory reports, etc.),
the possible sources of error, the available objections to the admission of DNA test results as evidence
as well as the probative value of DNA evidence." It seeks "to ensure that the evidence gathered, using
various methods of DNA analysis, is utilized effectively and properly, [and] shall not be misused and/or
abused and, more importantly, shall continue to ensure that DNA analysis serves justice and protects,
rather than prejudice the public."35

Not surprisingly, Section 4 of the Rule on DNA Evidence merely provides for conditions that are aimed
to safeguard the accuracy and integrity of the DNA testing. Section 4 states:

SEC. 4. Application for DNA Testing Order. – The appropriate court may, at any time, either motu
proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA
testing. Such order shall issue after due hearing and notice to the parties upon a showing of the
following:

(a) A biological sample exists that is relevant to the case;

(b) The biological sample: (i) was not previously subjected to the type of DNA testing now
requested; or (ii) was previously subjected to DNA testing, but the results may require
confirmation for good reasons;

(c) The DNA testing uses a scientifically valid technique;

(d) The DNA testing has the scientific potential to produce new information that is relevant to
the proper resolution of the case; and

(e) The existence of other factors, if any, which the court may consider as potentially affecting
the accuracy or integrity of the DNA testing.

This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any
party, including law enforcement agencies, before a suit or proceeding is commenced.

This does not mean, however, that a DNA testing order will be issued as a matter of right if, during the
hearing, the said conditions are established.

In some states, to warrant the issuance of the DNA testing order, there must be a show cause hearing
wherein the applicant must first present sufficient evidence to establish a prima facie case or a
reasonable possibility of paternity or "good cause" for the holding of the test. 36 In these states, a court
order for blood testing is considered a "search," which, under their Constitutions (as in ours), must be
preceded by a finding of probable cause in order to be valid. Hence, the requirement of a prima facie
case, or reasonable possibility, was imposed in civil actions as a counterpart of a finding of probable
cause. The Supreme Court of Louisiana eloquently explained —

Although a paternity action is civil, not criminal, the constitutional prohibition against unreasonable
searches and seizures is still applicable, and a proper showing of sufficient justification under the
particular factual circumstances of the case must be made before a court may order a compulsory
blood test. Courts in various jurisdictions have differed regarding the kind of procedures which are
required, but those jurisdictions have almost universally found that a preliminary showing must be
made before a court can constitutionally order compulsory blood testing in paternity cases. We agree,
and find that, as a preliminary matter, before the court may issue an order for compulsory blood
testing, the moving party must show that there is a reasonable possibility of paternity. As explained
hereafter, in cases in which paternity is contested and a party to the action refuses to voluntarily
undergo a blood test, a show cause hearing must be held in which the court can determine whether
there is sufficient evidence to establish a prima facie case which warrants issuance of a court order for
blood testing.371avvphi1

The same condition precedent should be applied in our jurisdiction to protect the putative father from
mere harassment suits. Thus, during the hearing on the motion for DNA testing, the petitioner must
present prima facie evidence or establish a reasonable possibility of paternity.

Notwithstanding these, it should be stressed that the issuance of a DNA testing order remains
discretionary upon the court. The court may, for example, consider whether there is absolute necessity
for the DNA testing. If there is already preponderance of evidence to establish paternity and the DNA
test result would only be corroborative, the court may, in its discretion, disallow a DNA testing.

WHEREFORE, premises considered, the petition is GRANTED. The Court of Appeals Decision dated
September 25, 2009 and Resolution dated December 17, 2009 are REVERSED and SET ASIDE. The
Orders dated October 20, 2008 and January 19, 2009 of the Regional Trial Court of Valenzuela City are
AFFIRMED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 170217

HPS SOFTWARE AND COMMUNICATION CORPORATION and HYMAN YAP, Petitioners,

vs.
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY (PLDT), JOSE JORGE E. CORPUZ, in his capacity as
the Chief of the PNP-Special Task Force Group-Visayas, PHILIP YAP, FATIMA CIMAFRANCA, and
EASTERN TELECOMMUNICATIONS PHILIPPINES, INC., Respondents.
X----------------X
G.R. No. 170694               December 10, 2012
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, Petitioner,
vs.
HPS SOFTWARE AND COMMUNICATION CORPORATION, including its Incorporators, Directors,
Officers: PHILIP YAP, STANLEY T. YAP, ELAINE JOY T. YAP, JULIE Y. SY, HYMAN A. YAP and OTHER
PERSONS UNDER THEIR EMPLOY, JOHN DOE AND JANE DOE, IN THE PREMISES LOCATED AT HPS
BUILDING, PLARIDEL ST., BRGY. ALANG-ALANG, MANDAUE CITY, CEBU, Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

Before the Court are two consolidated petitions for review on certiorari under Rule 45 of the Rules of
Court each seeking to annul and set aside a ruling of the Court of Appeals concerning the May 23, 2001
Joint Order1 issued by the Regional Trial Court of Mandaue City, Branch 55. In G.R. No. 170217,
petitioners HPS Software and Communication Corporation and Hyman Yap (HPS Corporation, et al.)
seek to nullify the March 26, 2004 Decision2 as well as the September 27, 2005 Resolution3 of the
former Fourth (4th) Division of the Court of Appeals in CA-G.R. SP No. 65682, entitled "Philippine Long
Distance Telephone Company v. Hon. Judge Ulric Cañete, in his capacity as the Presiding Judge of the
Regional Trial Court, Branch 55, Mandaue City, HPS Software and Communications Corporation; its
Officers and/or Directors: Philip Yap, Hyman Yap, Fatima Cimafranca; Eastern Telecommunications
Phils., Inc., and Jose Jorge E. Corpuz, in his capacity as the Chief of the PNP - Special Task Force Group-
Visayas." The March 26, 2004 Decision modified the May 23, 2001 Joint Order of the trial court by
setting aside the portion directing the immediate return of the seized items to HPS Corporation and, as
a consequence, directing the Philippine National Police (PNP) - Special Task Force Group –Visayas to
retrieve possession and take custody of all the seized items pending the final disposition of the appeal
filed by Philippine Long Distance Telephone Company (PLDT) on the said May 23, 2001 Joint Order. The
September 27, 2005 Resolution denied for lack of merit HPS Corporation, et al.’s subsequent Motion
for Reconsideration. On the other hand, in G.R. No. 170694, petitioner PLDT seeks to set aside the April
8, 2005 Decision4 as well as the December 7, 2005 Resolution5 of the former Eighteenth Division of the
Court of Appeals in CA-G.R. CV No. 75838, entitled "People of the Philippines, Philippine Long Distance
Telephone Company v. HPS Software and Communication Corporation, its Incorporators, Directors,
Officers: Philip Yap, Stanley T. Yap, Elaine Joy T. Yap, Julie Y. Sy, Hyman A. Yap and Other Persons Under
Their Employ, John Doe and Jane Doe, in the premises located at HPS Building, Plaridel St., Brgy. Alang-
Alang, Mandaue City, Cebu." The April 8, 2005 Decision affirmed the May 23, 2001 Joint Order of the
trial court while the December 7, 2005 Resolution denied for lack of merit PLDT’s subsequent Motion
for Reconsideration.

The undisputed thread of facts binding these consolidated cases, as summarized in the assailed May
23, 2001 Joint Order, follows:

[O]n October 20, 2000, the complainant PAOCTF filed with this Honorable Court two applications for
the issuance of search warrant for Violation of Article 308 of the Revised Penal Code for Theft of
Telephone Services and for Violation of P.D. 401 for unauthorized installation of telephone
communication equipments following the complaint of the Philippine Long Distance Telephone
Company or PLDT that they were able to monitor the use of the respondents in their premises of
Mabuhay card and equipments capable of receiving and transmitting calls from the USA to the
Philippines without these calls passing through the facilities of PLDT.

Complainant’s witnesses Richard Dira and Reuben Hinagdanan testified under oath that Respondents
are engaged in the business of International [S]imple Resale or unauthorized sale of international long
distance calls. They explained that International Simple Resale (ISR) is an alternative call pattern
employed by communication provider outside of the country. This is a method of routing and
completing international long distance call using pre-paid card which respondents are selling in the
States. These calls are made through access number and by passes the PLDT International Gate Way
Facilities and by passes the monitoring system, thus making the international long distance calls appear
as local calls, to the damage and prejudice of PLDT which is deprived of revenues as a result thereof.

Complainant’s witnesses Richard Dira and Reuben Hinagdanan testified that they found out that
respondents are engaged in the business of International Simple Resale on September 13, 2000 when
they conducted a test call using Mabuhay Card. They followed the dialing instructions found at the
back of the card and dialed "00" and the access code number 18008595845 of the said Mabuhay Card.
They were then prompted by a voice to enter the PIN code to validate and after entering the PIN code
number 332 1479224, they were again prompted to dial the country code of the Philippines 011-6332
and then dialed telephone number 2563066. Although the test calls were incoming international calls
from the United States, they discovered in the course of their test calls that PLDT telephone
lines/numbers were identified as the calling party, specifically 032-3449294 and 032-3449280. They
testified that the test calls passing through the Mabuhay Card were being reflected as local calls only
and not overseas calls. Upon verification, they discovered that the lines were subscribed by Philip Yap
whose address is HPS Software Communication Corporation at Plaridel St., Alang-alang, Mandaue City.
They also testified that the lines subscribed by Philip Yap were transferred to HPS Software and
Communications Corporation of the same address. They further testified that the respondents
committed these crimes by installing telecommunication equipments like multiplexers, lines, cables,
computers and other switching equipments in the HPS Building and connected these equipments with
PLDT telephone lines which coursed the calls through international privatized lines where the call is
unmonitored and coursed through the switch equipments in Cebu particularly in Philip Yap’s line and
distributed to the subscribers in Cebu.

Satisfied with the affidavits and sworn testimony of the complainant’s witnesses that they were able to
trace the long distance calls that they made on September 13, 2000 from the record of these calls in
the PLDT telephone numbers 032 3449280 and 032 3449294 of Philip Yap and/or later on transferred
to HPS Software and Communication Corporation using the said Mabuhay Card in conducting said test
calls, and that they saw the telephone equipments like lines, cables, antennas, computers, modems,
multiplexers and other switching equipments, Cisco 2600/3600, Nokia BB256K (with Bayantel marking)
inside the compound of the respondents being used for this purpose, this court issued the questioned
search warrants to seize the instruments of the crime.6

On October 20, 2000, the trial court issued two search warrants denominated as S.W. No. 2000-10-
4677 for Violation of Article 308 of the Revised Penal Code (Theft of Telephone Services) and S.W. No.
2000-10-4688 for violation of Presidential Decree No. 401 (Unauthorized Installation of Telephone
Connections) which both contained identical orders directing that several items are to be seized from
the premises of HPS Corporation and from the persons of Hyman Yap, et al.

The search warrants were immediately implemented on the same day by a PAOCTF-Visayas team led
by Police Inspector (P/Insp.) Danilo Villanueva. The police team searched the premises of HPS
Corporation located at HPS Building, Plaridel St., Brgy. Alang-Alang, Mandaue City, Cebu and seized the
articles specified in the search warrants.9

Subsequently, a preliminary investigation was conducted by Assistant City Prosecutor Yope M.

Cotecson (Pros. Cotecson) of the Office of the City Prosecutor of Mandaue City who thereafter issued a
Resolution dated April 2, 200110 which found probable cause that all the crimes charged were
committed and that Philip Yap, Hyman Yap, Stanley Yap, Elaine Joy Yap, Julie Y. Sy, as well as Gene
Frederick Boniel, Michael Vincent Pozon, John Doe and Jane Doe were probably guilty thereof. The
dispositive portion of the said April 2, 2001 Resolution reads as follows:

Wherefore, all the foregoing considered, the undersigned finds the existence of probable cause for the
crimes of Theft and Violation of PD 401 against all the respondents herein, excluding Fatima
Cimafranca, hence, filing in court of corresponding Informations is hereby duly recommended. 11

On November 23, 2000, Philip Yap and Hyman Yap filed a Motion to Quash and/or Suppress Illegally
Seized Evidence.12 Then on December 11, 2000, HPS Corporation filed a Motion to Quash Search
Warrant and Return of the Things Seized.13 Both pleadings sought to quash the search warrants at issue
on the grounds that the same did not refer to a specific offense; that there was no probable cause; and
that the search warrants were general warrants and were wrongly implemented. In response, PLDT
formally opposed the aforementioned pleadings through the filing of a Consolidated Opposition. 14

The trial court then conducted hearings on whether or not to quash the subject search warrants and, in
the course thereof, the parties produced their respective evidence. HPS Corporation, et al. presented,
as testimonial evidence, the testimonies of Mr. Jesus M. Laureano, the Chief Enforcement and
Operation Officer of the National Telecommunications Commission (NTC)-Region VII and Ms. Marie
Audrey Balbuena Aller, HPS Corporation’s administrative officer, while PLDT presented Engr. Policarpio
Tolentino, who held the position of Engineer II, Common Carrier Authorization Division of the NTC. 15

In the course of Engr. Tolentino’s testimony, he identified certain pieces of evidence which PLDT
caused to be marked as its own exhibits but was objected to by HPS Corporation, et al. on the grounds
of immateriality. The trial court sustained the objection and accordingly disallowed the production of
said exhibits. Thus, PLDT filed a Manifestation with Tender of Excluded Evidence 16 on April 18, 2001
which tendered the excluded evidence of (a) Mabuhay card with Personal Identification Number (PIN)
code number 349 4374802 (Exhibit "E"), and (b) Investigation Report dated October 2, 2000 prepared
by Engr. Tolentino in connection with the validation he made on the complaints of PLDT against ISR
activities in Cebu City and Davao City (Exhibit "G").

Subsequently, on April 19, 2001, PLDT formally offered in evidence, as part of Engr. Tolentino’s
testimony and in support of PLDT’s opposition to HPS Corporation, et al.’s motion to quash, the
following: (a) Subpoena Duces Tecum and Ad Testificandum issued by the trial court to Engr. Tolentino,
commanding him to appear and testify before it on March 26, 27 and 28, 2001 (Exhibit "A"); (b)
Identification Card No. 180 of Engr. Tolentino (Exhibit "B"); (c) PLDT’s letter dated September 22, 2000,
addressed to then NTC Commissioner Joseph A. Santiago (Exhibit "C"); (d) Travel Order No. 52-9-2000
issued to Engr. Tolentino and signed by then NTC Commissioner Joseph Santiago (Exhibit "D"); and (e)
Travel Order No. 07 03-2001 dated March 23, 2001 issued to Engr. Tolentino by then NTC
Commissioner Eliseo M. Rio, Jr., authorizing Engr. Tolentino to appear and testify before the trial court
(Exhibit "F").17

PLDT then filed a Motion for Time to File Memorandum 18 asking the trial court that it be allowed to
submit a Memorandum in support of its opposition to the motion to quash search warrants filed by
HPS Corporation, et al. within a period of twenty (20) days from receipt of the trial court’s ruling.
Consequently, in an Order19 dated May 3, 2001, the trial court admitted Exhibits "A," "B," "C," "D," and
"F" as part of the testimony of Engr. Tolentino. The trial court also directed PLDT to file its
Memorandum within twenty (20) days from receipt of said Order. As PLDT’s counsel received said
Order on May 16, 2001, it reckoned that it had until June 5, 2001 to file the aforementioned
Memorandum.

However, the trial court issued the assailed Joint Order on May 23, 2001, before the period for the
filing of PLDT’s Memorandum had lapsed. The dispositive portion of said Order states:

WHEREFORE, premises considered, the motion to quash the search warrants and return the things
seized is hereby granted. Search Warrant Nos. 2000-10-467 and 2000-10-468 are ordered quashed.
The things seized under the said search warrants are hereby ordered to be immediately returned to
respondent HPS Software and Communication Corporation.20

When PLDT discovered this development, it filed a Notice of Appeal 21 on June 7, 2001 which the trial
court gave due course via an Order22 dated June 13, 2001. This case would be later docketed as CA-G.R.
CV No. 75838.

PLDT likewise asserted that, without its knowledge, the trial court caused the release to HPS
Corporation, et al. of all the seized items that were in custody and possession of the PNP Task Force
Group-Visayas. According to PLDT, it would not have been able to learn about the precipitate discharge
of said items were it not for a Memorandum23 dated June 13, 2001 issued by Police Superintendent
Jose Jorge E. Corpuz which PLDT claimed to have received only on June 27, 2001. Said document
indicated that the items seized under the search warrants at issue were released from the custody of
the police and returned to HPS Corporation, et al. through its counsel, Atty. Roque Paloma, Jr.

Thus, on July 18, 2001, PLDT filed a Petition for Certiorari under Rule 6524 with the Court of Appeals
assailing the trial court’s release of the seized equipment despite the fact that the Joint Order dated
May 23, 2001 had not yet attained finality. This petition became the subject matter of CA-G.R. SP No.
65682.

The former Fourth Division of the Court of Appeals issued a Decision dated March 26, 2004 in CA-G.R.
SP No. 65682 which granted PLDT’s petition for certiorari and set aside the trial court’s May 23, 2001
Joint Order insofar as it released the seized equipment at issue. The dispositive portion of the March
26, 2004 Decision reads:

WHEREFORE, premises considered, the instant petition is hereby GRANTED. Accordingly, the

respondent judge’s May 23, 2001 Joint Order is MODIFIED by SETTING ASIDE that portion directing the
immediate return of the seized items to respondent HPS. Consequently, the respondent PNP Special
Task Force is directed to retrieve possession and take custody of all the seized items, as enumerated in
the inventory a quo, pending the final disposition of the appeal filed by the petitioner on respondent
judge’s May 23, 2001 Joint Order.25

HPS Corporation, et al. moved for reconsideration of said Court of Appeals ruling but this motion was
denied for lack of merit via a Resolution dated September 27, 2005. Subsequently, HPS Corporation, et
al. filed a Petition for Review on Certiorari under Rule 4526 with this Court on November 16, 2005. The
petition was docketed as G.R. No. 170217.

On the other hand, PLDT’s appeal docketed as CA-G.R. CV No. 75838 was resolved by the former
Eighteenth Division of the Court of Appeals in a Decision dated April 8, 2005. The dispositive portion of
the April 8, 2005 Decision states:
WHEREFORE, the Joint Order of the Regional Trial Court, Branch 55, Mandaue City, dated May 23,
2001, is hereby AFFIRMED.27

PLDT moved for reconsideration but this was rebuffed by the Court of Appeals through a Resolution
dated December 7, 2005. Unperturbed, PLDT filed a Petition for Review on Certiorari under Rule
4528 with this Court on January 26, 2006. The petition was, in turn, docketed as G.R. No. 170694.

In a Resolution29 dated August 28, 2006, the Court resolved to consolidate G.R. No. 170217 and G.R.
No. 170694 in the interest of speedy and orderly administration of justice.

HPS Corporation, et al.’s Joint Memorandum (for respondents HPS Software and Communication
Corporation, Hyman Yap, Stanley Yap, Elaine Joy Yap and Julie Sy) 30 dated June 23, 2008 to the
consolidated cases of G.R. No. 170217 and G.R. No. 170694 raised the following issues for
consideration:

IV.1. Whether or not the above-entitled two (2) petitions are already moot and academic
with this Honorable Supreme Court’s promulgation of the doctrinal decision for the case
of Luis Marcos P. Laurel vs. Hon. Zeus C. Abrogar, People of the Philippines and Philippine
Long Distance Telephone Company, G.R. No. 155076, February 27, 2006, declaring that: "x x x
the telecommunication services provided by PLDT and its business of providing said services
are not personal properties under Article 308 of the Revised Penal Code.

x x x In the Philippines, Congress has not amended the Revised Penal Code to include theft of
services or theft of business as felonies. Instead, it approved a law, Republic Act No. 8484,
otherwise known as the Access Devices Regulation Act of 1998, on February 11, 1998. x x x."?

In the most unlikely event that the above-entitled two (2) petitions have not yet been rendered
moot by the doctrinal decision in the said Laurel case, HPS respectfully submit that the
following are the other issues:

IV.2. Whether or not the Court of Appeals committed grave abuse of discretion when it
declared that the subject warrants are general warrants?

IV.3. Whether or not the factual findings of the trial court in its May 23, 2001 Order that there
was no probable cause in issuing the subject warrants is already conclusive, when the said
factual findings are duly supported with evidence; were confirmed by the Court of Appeals;
and, PLDT did not refute the damning evidence against it when it still had all the opportunity
to do so?

IV.4. Whether or not the trial court committed grave abuse of discretion amounting to lack or
in excess of jurisdiction when it stated in its May 23, 2001 Joint Order that:

"WHEREFORE, premises considered, the motion to quash the search warrants and return the
things seized is hereby granted. Search Warrant Nos. 2000-10-467 and 2000-10-468 are
ordered quashed. The things seized under the said search warrants are hereby ordered to be
immediately returned to respondent HPS Software and Communications Corporation."

IV.5. Whether or not PLDT’s memorandum was necessary before a decision can be rendered
by the trial court?
 IV.6. Whether or not there was a need for PLDT to first file a Motion for Reconsideration
before filing its petition for certiorari in the subject case?

IV.7. Whether or not a Petition for Certiorari was the appropriate remedy for PLDT when it
had recourse to other plain remedy other than the Petition for Certiorari?

IV.8. Whether or not PLDT has the legal interest and personality to file the present petition
when the complainant PAOCTF has already voluntarily complied with or satisfied the Joint
Order.

IV.9. Whether or not the Court of Appeals can, in a petition for certiorari, nullify a litigant’s or
the Search Warrants Applicant’s exercise of its prerogative of accepting and complying with
the said May 23, 2001 Joint Order of the trial court?

IV.10. Whether or not there was forum shopping when PLDT filed an appeal and a petition for
certiorari on the same May 23, 2001 Joint Order issued by the trial court?

IV.11. Whether or not the Court of Appeals gravely abused its discretion when it upheld the
trial court’s decision to disallow the testimony of Engr. Policarpio Tolentino during the
hearings of the motion to quash the subject search warrants when the said Engr. Tolentino
was not even presented as witness during the hearing for the application of the subject
search warrants; and, as the Court of Appeals had declared: ". . . We cannot but entertain
serious doubts as to the regularity of the performance of his official function"?

IV.12. Whether or not PLDT’s counsel can sue its own client, the applicant of the subject
search warrant?31

On the other hand, PLDT raised the following arguments in its Memorandum 32 dated June 16, 2008 to
the consolidated cases of G.R. No. 170217 and G.R. No. 170694:
I
THE COURT OF APPEALS GRAVELY MISAPPREHENDED THE FACTS WHEN IT SUSTAINED THE
QUASHAL OF THE SEARCH WARRANTS DESPITE THE CLEAR AND SUFFICIENT EVIDENCE ON
RECORD ESTABLISHING PROBABLE CAUSE FOR THE ISSUANCE THEREOF.
II
THE COURT OF APPEALS GRAVELY ERRED IN INDISCRIMINATELY RELYING UPON RULINGS OF
THIS HONORABLE COURT THAT ARE NOT APPLICABLE TO THIS CASE.

A. THE RULING IN LAGON V. HOOVEN COMALCO INDUSTRIES, INC. THAT LITIGATIONS

SHOULD NOT BE RESOLVED ON THE BASIS OF SUPPOSITIONS, DEDUCTIONS IS NOT
PROPER IN THIS CASE CONSIDERING THAT:

1. The Search Warrant Case is merely a step preparatory to the filing of criminal
cases against the Respondents. Thus, the applicant needed only to establish
probable cause for the issuance of the search warrants and not proof beyond
reasonable doubt.

2. Even assuming arguendo that there is some controversy as to the value

remaining in the Mabuhay card, the totality of evidence submitted during the
 applications for the Search Warrant is more than sufficient to establish probable
cause.

B. THE RULING IN DAYONOT V. NATIONAL LABOR RELATIONS COMMISSION THAT AN

ADVERSE INFERENCE ARISES FROM A PARTY’S FAILURE TO REBUT AN ASSERTION THAT
WOULD HAVE NATURALLY INVITED AN IMMEDIATE AND PERVASIVE OPPOSITION IS
INAPPLICABLE IN THIS CASE CONSIDERING THAT:

1. PLDT sufficiently rebutted Respondents’ claim that PLDT has no cause to

complain because of its prior knowledge of HPS’s internet services.

2. Assuming arguendo that PLDT had knowledge of HPS’s internet services, such

fact is immaterial in the determination of the propriety of the Search Warrants
issued in this case. The Search Warrants were issued because the evidence
presented by PAOCTF overwhelmingly established the existence of probable
cause that Respondents were probably committing a crime and the objects used
for the crime are in the premises to be searched.

III

THE COURT OF APPEALS GRAVELY ERRED IN SUSTAINING THE DISALLOWANCE OF A PORTION

OF ENGR. TOLENTINO’S TESTIMONY AND OF THE INTRODUCTION OF THE MABUHAY CARD AND
HIS INVESTIGATION REPORT IN VIOLATION OF THE PRESUMPTION THAT OFFICIAL DUTY HAS
BEEN REGULARLY PERFORMED.
IV
THE COURT OF APPEALS GRAVELY ERRED IN SUSTAINING THE TRIAL COURT’S JOINT ORDER
WHICH WAS ISSUED WITH UNDUE HASTE. THE COURT OF APPEALS OVERLOOKED FACTS WHICH
CLEARLY DEMONSTRATED THE TRIAL COURT’S PREJUDGMENT OF THE CASE IN FAVOR OF
RESPONDENTS, IN VIOLATION OF PLDT’S RIGHT TO DUE PROCESS.
V
THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT THE CONTESTED SEARCH
WARRANTS ARE IN THE NATURE OF GENERAL WARRANTS CONSIDERING THAT:

A. THE ISSUE OF WHETHER THE SEARCH WARRANTS ARE GENERAL WARRANTS WAS
NEVER RAISED IN THE APPEAL BEFORE IT.

B. IN ANY CASE, THE SEARCH WARRANTS STATED WITH SUFFICIENT PARTICULARITY THE
PLACE TO BE SEARCHED AND THE OBJECTS TO BE SEIZED, IN CONFORMITY WITH THE
CONSTITUTIONAL AND JURISPRUDENTIAL REQUIREMENTS IN THE ISSUANCE OF SEARCH
WARRANTS.

VI

RESPONDENTS’ ALLEGATION THAT PLDT FAILED TO COMPLY WITH THE REQUIREMENTS OF

SECTION 3, RULE 45 AND SECTION 4, RULE 7 OF THE RULES OF COURT IS COMPLETELY BASELESS
CONSIDERING THAT:

A. PLDT COMPLIED WITH THE RULES ON PROOF OF SERVICE.

 B. THE PETITION WAS PROPERLY VERIFIED. ASSUMING ARGUENDO THAT THE ORIGINAL
VERIFICATION SUBMITTED WAS DEFICIENT, THE SAME WAS PROMPTLY CORRECTED BY
PLDT, IN FULL COMPLIANCE WITH THE DIRECTIVE OF THIS HONORABLE COURT.

C. PLDT DID NOT ENGAGE IN FORUM-SHOPPING.

1. The issues, subject matter and reliefs prayed for in the Appeal Case and
the Certiorari Case are distinct and separate from one another.

2. Assuming arguendo that the Appeal Case involves the same parties, subject

matter and reliefs in the Certiorari Case, then Respondents are equally guilty of
forum-shopping when they elevated the Decision of the Court of Appeals in
the Certiorari Case to this Honorable Court.
VII
RESPONDENTS’ RELIANCE ON THE CASE OF LAUREL V. ABROGAR IS ERRONEOUS AND
MISLEADING. LAUREL V. ABROGAR IS NOT YET FINAL AND EXECUTORY, HENCE, CANNOT BIND
EVEN THE PARTIES THERETO, MUCH LESS RESPONDENTS HEREIN.33 (Citations omitted.)

A year later, on June 1, 2009, PLDT submitted a Supplemental Memorandum 34 to its June 16, 2008
Memorandum. In the said pleading, PLDT pointed out the reversal by the Supreme Court En Banc of
the February 27, 2006 Decision in Laurel v. Abrogar35 and raised it as a crucial issue in the present
consolidated case:

IN A RESOLUTION DATED 13 JANUARY 2009, THIS HONORABLE COURT EN BANC SET ASIDE THE 27
FEBRUARY 2006 DECISION IN LAUREL V. ABROGAR. THEREFORE, THE PREVAILING DOCTRINE WITH
RESPECT TO THE ACT OF CONDUCTING ISR OPERATIONS IS THAT IT IS AN ACT OF SUBTRACTION
COVERED BY THE PROVISIONS ON THEFT, AND THAT THE BUSINESS OF PROVIDING
TELECOMMUNICATION OR TELEPHONE SERVICE IS CONSIDERED PERSONAL PROPERTY WHICH CAN BE
THE OBJECT OF THEFT UNDER ARTICLE 308 OF THE REVISED PENAL CODE. THUS, RESPONDENTS CAN
NO LONGER RELY ON THE 27 FEBRUARY 2006 DECISION OF THIS HONORABLE COURT IN LAUREL V.
ABROGAR.36

After evaluating the aforementioned submissions, the Court has identified the following questions as
the only relevant issues that need to be resolved in this consolidated case:

I
WHETHER OR NOT PLDT HAS LEGAL PERSONALITY TO FILE THE PETITION FOR SPECIAL CIVIL
ACTION OF CERTIORARI IN CA-G.R. SP No. 65682 AND, SUBSEQUENTLY, THE PETITION FOR
REVIEW IN G.R. NO. 170694 WITHOUT THE CONSENT OR APPROVAL OF THE SOLICITOR
GENERAL.
II
WHETHER OR NOT PLDT’S PETITION FOR CERTIORARI SHOULD HAVE BEEN DISMISSED
OUTRIGHT BY THE COURT OF APPEALS SINCE NO MOTION FOR RECONSIDERATION WAS FILED
BY PLDT FROM THE ASSAILED MAY 23, 2001 JOINT ORDER OF THE TRIAL COURT.
III
WHETHER OR NOT PLDT COMMITTED FORUM-SHOPPING.
IV
WHETHER OR NOT THE TWO (2) SEARCH WARRANTS WERE IMPROPERLY QUASHED.
 V
WHETHER OR NOT THE SUBJECT SEARCH WARRANTS ARE IN THE NATURE OF GENERAL
WARRANTS.
VI
WHETHER OR NOT THE RELEASE OF THE ITEMS SEIZED BY VIRTUE OF THE SUBJECT SEARCH
WARRANTS WAS PROPER.

Before resolving the aforementioned issues, we will first discuss the state of jurisprudence on the issue
of whether or not the activity referred to as "international simple resale" (ISR) is considered a criminal
act of Theft in this jurisdiction.

To recall, HPS Corporation, et al. contends that PLDT’s petition in G.R. No. 170694 has already become
moot and academic because the alleged criminal activity which PLDT asserts as having been committed
by HPS Corporation, et al. has been declared by this Court as not constituting the crime of Theft or any
other crime for that matter. HPS Corporation, et al. draws support for their claim from the February 27,
2006 Decision of this Court in Laurel v. Abrogar.37

In that case, PLDT sued Baynet Co., Ltd. (Baynet) and its corporate officers for the crime of Theft
through stealing the international long distance calls belonging to PLDT by conducting ISR which is a
method of routing and completing international long distance calls using lines, cables, antennae,
and/or air wave frequency which connect directly to the local or domestic exchange facilities of the
country where the call is destined. One of those impleaded in the Amended Information, Luis Marcos
P. Laurel (Laurel), moved for the quashal of the Amended Information arguing that an ISR activity does
not constitute the felony of Theft under Article 308 of the Revised Penal Code (RPC). Both the trial
court and the Court of Appeals did not find merit in his motion. However, this Court speaking through
its First Division upheld Laurel’s contention by ruling that the Amended Information does not contain
material allegations charging petitioner with theft of personal property since international long
distance calls and the business of providing telecommunication or telephone services are not personal
properties under Article 308 of the Revised Penal Code. The Court then explained the basis for this
previous ruling in this wise:

In defining theft, under Article 308 of the Revised Penal Code, as the taking of personal property
without the consent of the owner thereof, the Philippine Legislature could not have contemplated the
human voice which is converted into electronic impulses or electrical current which are transmitted to
the party called through the PSTN of respondent PLDT and the ISR of Baynet Card Ltd. within its
coverage. When the Revised Penal Code was approved, on December 8, 1930, international telephone
calls and the transmission and routing of electronic voice signals or impulses emanating from said calls,
through the PSTN, IPL and ISR, were still nonexistent. Case law is that, where a legislative history fails
to evidence congressional awareness of the scope of the statute claimed by the respondents, a narrow
interpretation of the law is more consistent with the usual approach to the construction of the statute.
Penal responsibility cannot be extended beyond the fair scope of the statutory mandate. 38

Undaunted, PLDT filed a Motion for Reconsideration with Motion to Refer the Case to the Supreme
Court En Banc. This motion was acted upon favorably by the Court En Banc in a Resolution39 dated
January 13, 2009 thereby reconsidering and setting aside the February 27, 2006 Decision. In resolving
PLDT’s motion, the Court En Banc held that:

The acts of "subtraction" include: (a) tampering with any wire, meter, or other apparatus installed or
used for generating, containing, conducting, or measuring electricity, telegraph or telephone service;
(b) tapping or otherwise wrongfully deflecting or taking any electric current from such wire, meter, or
other apparatus; and (c) using or enjoying the benefits of any device by means of which one may
fraudulently obtain any current of electricity or any telegraph or telephone service.

In the instant case, the act of conducting ISR operations by illegally connecting various equipment or
apparatus to private respondent PLDT’s telephone system, through which petitioner is able to resell or
reroute international long distance calls using respondent PLDT’s facilities constitutes all three acts of
subtraction mentioned above.

The business of providing telecommunication or telephone service is likewise personal property which
can be the object of theft under Article 308 of the Revised Penal Code. Business may be appropriated
under Section 2 of Act No. 3952 (Bulk Sales Law), hence, could be the object of theft:

"Section 2. Any sale, transfer, mortgage, or assignment of a stock of goods, wares, merchandise,
provisions, or materials otherwise than in the ordinary course of trade and the regular prosecution of
the business of the vendor, mortgagor, transferor, or assignor, or any sale, transfer, mortgage, or
assignment of all, or substantially all, of the business or trade theretofore conducted by the vendor,
mortgagor, transferor or assignor, or all, or substantially all, of the fixtures and equipment used in and
about the business of the vendor, mortgagor, transferor, or assignor, shall be deemed to be a sale and
transfer in bulk, in contemplation of the Act. x x x."

In Strocheker v. Ramirez, this Court stated:

"With regard to the nature of the property thus mortgaged, which is one-half interest in the business
above described, such interest is a personal property capable of appropriation and not included in the
enumeration of real properties in Article 335 of the Civil Code, and may be the subject of mortgage."

Interest in business was not specifically enumerated as personal property in the Civil Code in force at
the time the above decision was rendered. Yet, interest in business was declared to be personal
property since it is capable of appropriation and not included in the enumeration of real properties.
Article 414 of the Civil Code provides that all things which are or may be the object of appropriation are
considered either real property or personal property. Business is likewise not enumerated as personal
property under the Civil Code. Just like interest in business, however, it may be appropriated. Following
the ruling in Strochecker v. Ramirez, business should also be classified as personal property. Since it is
not included in the exclusive enumeration of real properties under Article 415, it is therefore personal
property.

As can be clearly gleaned from the above disquisitions, petitioner’s acts constitute theft of respondent
PLDT’s business and service, committed by means of the unlawful use of the latter’s facilities. x x
x.40 (Citations omitted.)

Plainly, from the aforementioned doctrinal pronouncement, this Court had categorically stated and still
maintains that an ISR activity is an act of subtraction covered by the provisions on Theft, and that the
business of providing telecommunication or telephone service is personal property, which can be the
object of Theft under Article 308 of the Revised Penal Code.

Having established that an ISR activity is considered as Theft according to the prevailing jurisprudence
on the matter, this Court will now proceed to discuss the central issues involved in this consolidated
case.
Anent the first issue of whether PLDT possesses the legal personality to file the petition in G.R. No.
170694 in light of respondents’ claim that, in criminal appeals, it is the Solicitor General which has the
exclusive and sole power to file such appeals in behalf of the People of the Philippines, this Court rules
in the affirmative.

The petition filed by PLDT before this Court does not involve an ordinary criminal action which requires
the participation and conformity of the City Prosecutor or the Solicitor General when raised before
appellate courts.

On the contrary, what is involved here is a search warrant proceeding which is not a criminal action,
much less a civil action, but a special criminal process. In the seminal case of Malaloan v. Court of
Appeals,41 we expounded on this doctrine in this wise:

The basic flaw in this reasoning is in erroneously equating the application for and the obtention of a
search warrant with the institution and prosecution of a criminal action in a trial court. It would thus
categorize what is only a special criminal process, the power to issue which is inherent in all courts, as
equivalent to a criminal action, jurisdiction over which is reposed in specific courts of indicated
competence. It ignores the fact that the requisites, procedure and purpose for the issuance of a search
warrant are completely different from those for the institution of a criminal action.

For, indeed, a warrant, such as a warrant of arrest or a search warrant, merely constitutes process. A
search warrant is defined in our jurisdiction as an order in writing issued in the name of the People of
the Philippines signed by a judge and directed to a peace officer, commanding him to search for
personal property and bring it before the court. A search warrant is in the nature of a criminal process
akin to a writ of discovery. It is a special and peculiar remedy, drastic in its nature, and made necessary
because of a public necessity.

In American jurisdictions, from which we have taken our jural concept and provisions on search
warrants, such warrant is definitively considered merely as a process, generally issued by a court in the
exercise of its ancillary jurisdiction, and not a criminal action to be entertained by a court pursuant to
its original jurisdiction. We emphasize this fact for purposes of both issues as formulated in this
opinion, with the catalogue of authorities herein

Invariably, a judicial process is defined as a writ, warrant, subpoena, or other formal writing issued by
authority of law; also the means of accomplishing an end, including judicial proceedings, or all
writs, warrants, summonses, and orders of courts of justice or judicial officers. It is likewise held to
include a writ, summons, or order issued in a judicial proceeding to acquire jurisdiction of a person or
his property, to expedite the cause or enforce the judgment, or a writ, warrant, mandate, or other
process issuing from a court of justice.42 (Citations omitted.)

Since a search warrant proceeding is not a criminal action, it necessarily follows that the requirement
set forth in Section 5, Rule 110 of the Rules on Criminal Procedure which states that "all criminal
actions either commenced by complaint or by information shall be prosecuted under the direction and
control of a public prosecutor" does not apply.

In Columbia Pictures Entertainment, Inc. v. Court of Appeals,43 we sustained the legal personality of a
private complainant to file an action or an appeal without the imprimatur of government prosecutors
on the basis of the foregoing ratiocination:
The threshold issue that must first be determined is whether or not petitioners have the legal
personality and standing to file the appeal.

Private respondent asserts that the proceedings for the issuance and/or quashal of a search warrant
are criminal in nature. Thus, the parties in such a case are the "People" as offended party and the
accused. A private complainant is relegated to the role of a witness who does not have the right to
appeal except where the civil aspect is deemed instituted with the criminal case.

Petitioners, on the other hand, argue that as the offended parties in the criminal case, they have the
right to institute an appeal from the questioned order.

From the records it is clear that, as complainants, petitioners were involved in the proceedings which
led to the issuance of Search Warrant No. 23. In People v. Nano, the Court declared that while the
general rule is that it is only the Solicitor General who is authorized to bring or defend actions on
behalf of the People or the Republic of the Philippines once the case is brought before this Court or the
Court of Appeals, if there appears to be grave error committed by the judge or a lack of due process,
the petition will be deemed filed by the private complainants therein as if it were filed by the Solicitor
General. In line with this ruling, the Court gives this petition due course and will allow petitioners to
argue their case against the questioned order in lieu of the Solicitor General. (Citation omitted.)

Similarly, in the subsequent case of Sony Computer Entertainment, Inc. v. Bright Future Technologies,
Inc.,44 we upheld the right of a private complainant, at whose initiative a search warrant was issued, to
participate in any incident arising from or in connection with search warrant proceedings
independently from the State. We quote the relevant discussion in that case here:

The issue of whether a private complainant, like SCEI, has the right to participate in search warrant
proceedings was addressed in the affirmative in United Laboratories, Inc. v. Isip:

. . . [A] private individual or a private corporation complaining to the NBI or to a government agency
charged with the enforcement of special penal laws, such as the BFAD, may appear, participate and file
pleadings in the search warrant proceedings to maintain, inter alia, the validity of the search
warrant issued by the court and the admissibility of the properties seized in anticipation of a criminal
case to be filed; such private party may do so in collaboration with the NBI or such government agency.
The party may file an opposition to a motion to quash the search warrant issued by the court, or a
motion for the reconsideration of the court order granting such motion to quash.45

With regard to the second issue of whether or not PLDT’s petition for certiorari under Rule 65 of the
1997 Rules of Civil Procedure should have been dismissed outright by the Court of Appeals since no
motion for reconsideration was filed by PLDT from the assailed May 23, 2001 Joint Order of the trial
court, this Court declares that, due to the peculiar circumstances obtaining in this case, the petition
for certiorari was properly given due course by the Court of Appeals despite the non-fulfillment of the
requirement of the filing of a motion for reconsideration.

The general rule is that a motion for reconsideration is a condition sine qua non before a petition
for certiorari may lie, its purpose being to grant an opportunity for the court a quo to correct any error
attributed to it by a re-examination of the legal and factual circumstances of the case. 46
However, the rule is not absolute and jurisprudence has laid down the following exceptions when the
filing of a petition for certiorari is proper notwithstanding the failure to file a motion for
reconsideration:

(a) where the order is a patent nullity, as where the court a quo has no jurisdiction;
(b) where the questions raised in the certiorari proceedings have been duly raised and passed
upon by the lower court, or are the same as those raised and passed upon in the lower court;
(c) where there is an urgent necessity for the resolution of the question and any further delay
would prejudice the interests of the Government or of the petitioner or the subject matter of
the petition is perishable;
(d) where, under the circumstances, a motion for reconsideration would be useless;
(e) where petitioner was deprived of due process and there is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such
relief by the trial court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of due process;
(h) where the proceeding was ex parte or in which the petitioner had no opportunity to object;
and,
(i) where the issue raised is one purely of law or public interest is involved. 47

In the case at bar, it is apparent that PLDT was deprived of due process when the trial court
expeditiously released the items seized by virtue of the subject search warrants without waiting for
PLDT to file its memorandum and despite the fact that no motion for execution was filed by
respondents which is required in this case because, as stated in the assailed March 26, 2004 Decision
of the Court of Appeals in CA-G.R. SP No. 65682, the May 23, 2001 Joint Order of the trial court is a
final order which disposes of the action or proceeding and which may be the subject of an appeal.
Thus, it is not immediately executory. Moreover, the items seized by virtue of the subject search
warrants had already been released by the trial court to the custody of respondents thereby creating a
situation wherein a motion for reconsideration would be useless. For these foregoing reasons, the
relaxation of the settled rule by the former Fourth Division of the Court of Appeals is justified.

Moving on to the third issue of whether PLDT was engaged in forum shopping when it filed a petition
for certiorari under Rule 65 with the Court of Appeals despite the fact that it had previously filed an
appeal from the assailed May 23, 2001 Joint Order, this Court rules in the negative.

In Metropolitan Bank and Trust Company v. International Exchange Bank,48 we reiterated the
jurisprudential definition of forum shopping in this wise:

Forum shopping has been defined as an act of a party, against whom an adverse judgment has been
rendered in one forum, of seeking and possibly getting a favorable opinion in another forum, other
than by appeal or a special civil action for certiorari, or the institution of two or more actions or
proceedings grounded on the same cause on the supposition that one or the other court would make a
favorable disposition. (Citation omitted.)

Thus, there is forum shopping when, between an action pending before this Court and another one,
there exist: (1) identity of parties, or at least such parties as represent the same interests in both
actions; (2) identity of rights asserted and relief prayed for, the relief being founded on the same facts;
and (3) the identity of the two preceding particulars is such that any judgment rendered in the other
action will, regardless of which party is successful, amount to res judicata in the action under
consideration; said requisites also constitutive of the requisites for auter action pendant or lis
pendens.49

In the case at bar, forum shopping cannot be considered to be present because the appeal that PLDT
elevated to the Court of Appeals is an examination of the validity of the trial court’s action of quashing
the search warrants that it initially issued while, on the other hand, the petition for certiorari is an
inquiry on whether or not the trial court judge committed grave abuse of discretion when he ordered
the release of the seized items subject of the search warrants despite the fact that its May 23, 2001
Joint Order had not yet become final and executory, nor had any motion for execution pending appeal
been filed by the HPS Corporation, et al. Therefore, it is readily apparent that both cases posed
different causes of action.

As to the fourth issue of whether or not the two search warrants at issue were improperly quashed,
PLDT argues that the Court of Appeals erroneously appreciated the facts of the case and the
significance of the evidence on record when it sustained the quashal of the subject search warrants by
the trial court mainly on the basis of test calls using a Mabuhay card with PIN code number 332
147922450 which was the same Mabuhay card that was presented by PLDT to support its application for
a search warrant against HPS Corporation, et al. These test calls were conducted in NTC-Region VII
Office on November 3, 2000 and in open court on January 10, 2001. PLDT insists that these test calls,
which were made after the issuance of the subject search warrants, are immaterial to the issue of
whether or not HPS Corporation, et al. were engaged in ISR activities using the equipment seized at the
time the subject search warrants were issued and implemented. PLDT further argues that a search
warrant is merely a preparatory step to the filing of a criminal case; thus, an applicant needs only to
establish probable cause for the issuance of a search warrant and not proof beyond reasonable doubt.
In this case, PLDT believes that it had established probable cause that is sufficient enough to defeat the
motion to quash filed by HPS Corporation, et al.

We find that the contention is impressed with merit.

This Court has consistently held that the validity of the issuance of a search warrant rests upon the
following factors: (1) it must be issued upon probable cause; (2) the probable cause must be
determined by the judge himself and not by the applicant or any other person; (3) in the determination
of probable cause, the judge must examine, under oath or affirmation, the complainant and such
witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to
be searched and persons and things to be seized.51

Probable cause, as a condition for the issuance of a search warrant, is such reasons supported by facts
and circumstances as will warrant a cautious man to believe that his action and the means taken in
prosecuting it are legally just and proper. It requires facts and circumstances that would lead a
reasonably prudent man to believe that an offense has been committed and that the objects sought in
connection with that offense are in the place to be searched. 52

In Microsoft Corporation v. Maxicorp, Inc.,[53] this Court held that the quantum of evidence required
to prove probable cause is not the same quantum of evidence needed to establish proof beyond
reasonable doubt which is required in a criminal case that may be subsequently filed. We ruled in this
case that:

The determination of probable cause does not call for the application of rules and standards of proof
that a judgment of conviction requires after trial on the merits. As implied by the words themselves,
"probable cause" is concerned with probability, not absolute or even moral certainty. The prosecution
need not present at this stage proof beyond reasonable doubt. The standards of judgment are those of
a reasonably prudent man, not the exacting calibrations of a judge after a full-blown trial. 54 (Citation
omitted.)

In the case at bar, both the trial court and the former Eighteenth Division of the Court of Appeals agree
that no probable cause existed to justify the issuance of the subject search warrants. In sustaining the
findings of the trial court, the Court of Appeals in its assailed Decision dated April 8, 2005 in CA-G.R. CV
No. 75838 ratiocinated in this manner:

As a giant in the telecommunications industry, PLDT’s declaration in page 21 of its appellant’s brief that
it would "take sometime, or after a certain number of minutes is consumed, before the true value of
the card is correspondingly reflected", by way of further explaining the nature of the subject Mabuhay
Card as not being a "smart" card, is conceded with much alacrity.

We are not, however, prepared to subscribe to the theory that the twenty (20) minutes deducted from
the balance of the subject Mabuhay Card after a couple of test calls were completed in open court on
January 10, 2001 already included the time earlier consumed by the PLDT personnel in conducting their
test calls prior to the application for the questioned warrants but belatedly deducted only during the
test calls conducted by the court a quo. It is beyond cavil that litigations cannot be properly resolved by
suppositions, deductions, or even presumptions, with no basis in evidence, for the truth must have to
be determined by the hard rules of admissibility and proof. This Court cannot quite fathom why PLDT,
with all the resources available to it, failed to substantiate this particular supposition before the court a
quo, when it could have helped their case immensely. We note that at the hearing held on January 10,
2001, the trial judge allowed the conduct of test calls in open court in order to determine if the subject
Mabuhay Card had in fact been used, as alleged by PLDT. However, it was proven that the Card
retained its original value of $10 despite several test calls already conducted in the past using the
same. PLDT should have refuted this damning evidence while it still had all the opportunity to do so,
but it did not.

Moreover, if we go by the gauge set by PLDT itself that it would take a certain number of minutes
before the true value of the card is reflected accordingly, then we fail to see how the test calls
conducted by its personnel on September 13, 2000 could only be deducted on January 10, 2001, after
almost four (4) months.

PLDT cannot likewise capitalize on the fact that, despite the series of test calls made by Engr. Jesus
Laureno at the NTC, Region VII office on November 3, 2000, the subject Mabuhay Card still had $10
worth of calls. Had PLDT closely examined the testimony of Engr. Laureno in open court, it would have
realized that not one of said calls ever got connected to a destination number. Thus:

"Q You said that after you heard that female voice which says that you still have ten (10) dollars and
you entered your call at the country of destination, you did not proceed that call. Will you please tell
the Court of the six test calls that were conducted, how many calls were up to that particular portion?

A Five (5).

Q Will you please tell the Court who… since that were five (5) test calls, how many calls did you
personally make up to that particular portion?
A Only one (1).

Q In whose presence?

A In the presence of Director Butaslac, Engr. Miguel, Engr. Yeban, Engr. Hinaut and three (3) PNP
personnel, Atty. Muntuerto and Atty. Paloma.

Q What about the other four (4)? You mentioned of five (5) test calls and you made only one, who did
the other four (4) test calls which give the said results?

A The third call was done by Engr. Yeban using the same procedure and then followed by the PNP
personnel. Actually, the first one who dial or demonstrate is Atty. Muntuerto, me is the second; third is
Engr. Yeban; the fourth is the PNP personnel and also the fifth; and the sixth test calls was Engr. Yeban
and with that call, we already proceeded to the dialing the destination number which we call one of
the numbers of our office.

Q What number of the office was called following the instruction that you have ten (10) dollars and
that you enter your destination number now?

A 346-06-87.

Q What happened? You said that, that was done on the sixth test calls, what happened after that
destination number was entered?

A The call is not completed and the female voice said to retry again." (TSN, January 10, 2001, pp. 45-48)

In fine, PLDT cannot argue that the court a quo should not have relied heavily upon the result of the
test calls made by the NTC- Regional Office as well as those done in open court on January 10, 2001, as
there are other convincing evidence such as the testimonies of its personnel showing that, in fact, test
calls and ocular inspections had been conducted yielding positive results. Precisely, the trial court
anchored its determination of probable cause for the issuance of the questioned warrants on the
sworn statements of the PLDT personnel that test calls had been made using the subject Mabuhay
Card. However, said statements were later proven to be wanting in factual basis. 55

Essentially, the reasoning of the Court of Appeals relies solely on the fact that the Mabuhay card with
PIN code number 332 1479224 with a card value of $10.00 did not lose any of its $10.00 value before it
was used in the test calls conducted at the NTC-Region VII office and in open court. Thus, the Court of
Appeals concluded that, contrary to PLDT’s claims, no test calls using the same Mabuhay card were
actually made by PLDT’s witnesses when it applied for a search warrant against HPS Corporation, et al.;
otherwise, the Mabuhay card should have had less than $10.00 value left in it.

This Court cannot subscribe to such a hasty conclusion because the determination of whether or not
test calls were indeed made by PLDT on Mabuhay card with PIN code number 332 1479224 cannot be
ascertained solely by checking the value reflected on the aforementioned Mabuhay card. In fact,
reliance on this method of verification is fraught with questions that strike deep into the capability of
the said Mabuhay card to automatically and accurately reflect the fact that it had indeed been used by
PLDT’s witnesses to make test calls.
We find that indeed PLDT never represented that the Mabuhay card had an accurate recording system
that would automatically deduct the value of a call from the value of the card at the time the call was
made. Certainly, PLDT was not in a position to make such an assertion as it did not have a hand in the
production and programming of said Mabuhay card.

Furthermore, several plausible reasons could be entertained for the non-deduction of the value of
the Mabuhay card other than the trial court’s assertion that the said phone card could not have been
utilized in test calls made by PLDT’s witnesses.

One explanation that PLDT offered is that the said Mabuhay card might not be a "smart" card which, in
telecommunications industry parlance, is a card that automatically debits the value of a call as it is
made as opposed to a non-"smart" card which takes a considerable amount of time before the true
value of the card is correspondingly reflected in the balance.

Another explanation that PLDT suggests is that the test calls that were conducted in NTC-Region VII on
November 3, 2000 and in open court on January 10, 2001 were made long after the subject search
warrants were issued which was on October 20, 2000. During the time in between said events, the
identity of the Mabuhay card was already a matter of judicial record and, thus, easily ascertainable by
any interested party. PLDT asserts this circumstance could have provided HPS Corporation, et al. the
opportunity to examine the prosecution’s evidence, identify the specific Mabuhay card that PLDT’s
witnesses used and manipulate the remaining value reflected on the said phone card. This idea is not
farfetched considering that if HPS Corporation, et al. did indeed engage in illegal ISR activities
using Mabuhay cards then it would not be impossible for HPS Corporation, et al. to possess the
technical knowledge to reconfigure the Mabuhay card that was used in evidence by PLDT. In support of
this tampering theory, PLDT points to HPS Corporation, et al.’s vehement opposition to the
introduction of a different Mabuhay card during the testimony of Engr. Tolentino, which PLDT
attributes to HPS Corporation, et al.’s lack of opportunity to identify and manipulate this particular
phone card.

Since the value of the subject Mabuhay card may be susceptible to tampering, it would have been
more prudent for the trial court and the Court of Appeals to weigh the other evidence on record. As
summarized in its memorandum, PLDT submitted the following to the trial court, during the application
for the subject search warrants and during the hearing on HPS Corporation, et al.’s motion to suppress
the evidence:

a. The affidavit56 and testimony57 of PLDT employee Engr. Reuben C. Hinagdanan (Engr.

Hinagdanan) which was given during the application for the issuance of the subject search
warrants. In his affidavit and testimony, Engr. Hinagdanan averred that PLDT conducted
surveillance on the ISR activities of HPS Corporation, et al. and that the said surveillance
operation yielded positive results that PLDT telephone lines subscribed by Philip Yap and/or
HPS Corporation were being utilized for illegal ISR operations.

b. The call detail records58 which are attached as Annex "C" to Engr. Hinagdanan’s affidavit
which indicated that test calls were made by Engr. Hinagdanan using the Mabuhay card with
PIN code number 332 1479224. The said document also indicated that even if the calls
originated from the United States of America, the calling party reflected therein are local
numbers of telephone lines which PLDT had verified as the same as those subscribed by Philip
Yap and/or HPS Corporation.
 c. The affidavit59 and testimony60 of PLDT employee Engr. Richard L. Dira (Engr. Dira) which was
given during the application for the issuance of the subject search warrants. In his affidavit and
testimony, Engr. Dira averred that he personally conducted an ocular inspection in the premises
of HPS Corporation and that the said inspection revealed that all PLDT lines subscribed by Philip
Yap and/or HPS Corporation were illegally connected to various telecommunications and
switching equipment which were used in illegal ISR activities conducted by HPS Corporation, et
al.

d. The testimony61 and investigation report62 of Engr. Tolentino which details the test calls he
made using Mabuhay card with PIN code number 349 4374802. This is a
different Mabuhay card than what was used by PLDT in its application for the subject search
warrants. According to his investigation report, the telephone lines subscribed by Philip Yap
and/or HPS Corporation were indeed utilized for illegal ISR operations.

e. The testimony63 of Police Officer Narciso Ouano, Jr. (Officer Ouano) of the Legal and
Investigation Division of the PAOCTF given during the hearing on the application for the
issuance of the subject search warrants wherein Officer Ouano averred that, upon complaint of
PLDT, the PAOCTF conducted surveillance operations which yielded positive results that HPS
Corporation, et al. were engaged in illegal ISR activities.

f. The results of a traffic study64 conducted by PLDT on the twenty (20) direct telephone lines
subscribed by Philip Yap and/or HPS Corporation which detailed the extent of the losses
suffered by PLDT as a result of the illegal ISR activities conducted by HPS Corporation, et al.

Taken together, the aforementioned pieces of evidence are more than sufficient to support a finding
that test calls were indeed made by PLDT’s witnesses using Mabuhay card with PIN code number 332
1479224 and, more importantly, that probable cause necessary to engender a belief that HPS
Corporation, et al. had probably committed the crime of Theft through illegal ISR activities exists. To
reiterate, evidence to show probable cause to issue a search warrant must be distinguished from proof
beyond reasonable doubt which, at this juncture of the criminal case, is not required.

With regard to the issue of whether or not the subject search warrants are in the nature of general
warrants, PLDT argues that, contrary to the ruling of the former Eighteenth Division of the Court of
Appeals in its assailed Decision dated April 8, 2005 in CA-G.R. CV No. 75838, the subject search
warrants cannot be considered as such because the contents of both stated, with sufficient
particularity, the place to be searched and the objects to be seized, in conformity with the
constitutional and jurisprudential requirements in the issuance of search warrants. On the other hand,
HPS Corporation, et al. echoes the declaration of the Court of Appeals that the language used in the
subject search warrants are so all-embracing as to include all conceivable records and equipment of
HPS Corporation regardless of whether they are legal or illegal.

We rule that PLDT’s argument on this point is well taken.

A search warrant issued must particularly describe the place to be searched and persons or things to
be seized in order for it to be valid,65 otherwise, it is considered as a general warrant which is
proscribed by both jurisprudence and the 1987 Constitution.

In Uy Kheytin v. Villareal,66 we explained the purpose of the aforementioned requirement for a valid
search warrant, to wit:
[A] search warrant should particularly describe the place to be searched and the things to be seized.
The evident purpose and intent of this requirement is to limit the things to be seized to those, and only
those, particularly described in the search warrant – x x x what articles they shall seize, to the end that
"unreasonable searches and seizures" may not be made, - that abuses may not be committed. x x x

In Bache & Co. (Phil.), Inc. v. Ruiz,67 we held that, among other things, it is only required that a search
warrant be specific as far as the circumstances will ordinarily allow, such that:

A search warrant may be said to particularly describe the things to be seized when the description
therein is as specific as the circumstances will ordinarily allow; or when the description expresses a
conclusion of fact – not of law - by which the warrant officer may be guided in making the search and
seizure; or when the things described are limited to those which bear direct relation to the offense for
which the warrant is being issued. x x x. (Citations omitted.)

The disputed text of the subject search warrants reads as follows:

a. LINES, CABLES AND ANTENNAS or equipment or device capable of transmitting air waves or
frequency, such as an IPL and telephone lines and equipment;

b. COMPUTERS or any equipment or device capable of accepting information applying the

described process of the information and supplying the result of this processes;

c. MODEMS or any equipment or device that enables data terminal equipment such as
computers to communicate with each other data-terminal equipment via a telephone line;

d. MULTIPLEXERS or any equipment or device that enables two or more signals from different
sources to pass through a common cable or transmission line;

e. SWITCHING EQUIPMENT or equipment or device capable of connecting telephone lines;

f. SOFTWARE, DISKETTES, TAPES, OR EQUIPMENT, or device used for recording and storing
information; and

g. Manuals, phone cards, access codes, billing statements, receipts, contracts, checks, orders,
communications, and documents, lease and/or subscription agreements or contracts,
communications and documents pertaining to securing and using telephone lines and or
equipment in relation to Mr. Yap/HPS’ ISR Operations.

Utilizing the benchmark that was previously discussed, this Court finds that the subject search warrants
are not general warrants because the items to be seized were sufficiently identified physically and
were also specifically identified by stating their relation to the offenses charged which are Theft and
Violation of Presidential Decree No. 401 through the conduct of illegal ISR activities.

Lastly, on the issue of whether or not the release of the items seized by virtue of the subject search
warrants was proper, this Court rules in the negative.

We quote with approval the disquisition of the Court of Appeals on this particular issue in its assailed
Decision dated March 26, 2004 in CA-G.R. SP No. 65682, to wit:
Although there was no separate order from the respondent judge directing the immediate release of
the seized items, such directive was already contained in the Joint Order dated May 23, 2001. The
dispositive portion of the assailed Joint Order reads:

"WHEREFORE, premises considered, the motion to quash the search warrants and return the things
seized is hereby granted. Search Warrant Nos. 2000-10-467 and 2000-10-468 are ordered quashed.
The things seized under the said search warrants are hereby ordered to be immediately returned to
the respondent HPS Software and Communication Corporation.

SO ORDERED."

As properly pointed out by the petitioner PLDT, the May 23, 2001 Joint Order of the respondent judge
is not "immediately executory". It is a final order which disposes of the action or proceeding and which
may be the subject of an appeal. Section 1, Rule 39 of the 1997 Rules of Civil Procedure provides:

"Section 1. Execution upon judgments or final orders – Execution shall issue as a matter of right, on
motion, upon judgment or order that disposes of the action or proceeding upon the expiration of the
period to appeal therefrom, if no appeal has been duly perfected.

xxxx

From the foregoing, it is clear that execution may issue only upon motion by a party and only upon the
expiration of the period to appeal, if no appeal has been perfected. Otherwise, if an appeal has been
duly perfected, the parties would have to wait for the final resolution of the appeal before it may
execute the judgment or final order – except for instances where an execution pending appeal is
granted by the proper court of law.

It would appear that despite the absence of any motion for execution, the respondent judge enforced
his Joint Order by directing the release of the seized items from the physical custody of the PNP Special
Task Force on June 5, 2001 – less than the fifteen-day prescribed period within which an aggrieved
party may file an appeal or for such Joint Order to become final and executory in the absence of an
appeal. Clearly the release of the seized items was enforced prematurely and without any previous
motion for execution on record.

We cannot give weight to the argument that the seized items were voluntarily released by the PNP
Special Task Force, and thus, with such voluntary implementation of the May 23, 2001 Joint Order, the
latter is already final and executed.

We take note that the PNP Special Task Force only retained physical custody of the seized
items.1âwphi1 However, it was clearly the respondent judge who ordered and released said seized
items with his directive in the May 23, 2001 Joint Order. The PNP Special Task Force could not release
the said items without the directive and authority of the court a quo. Hence, such compliance cannot
be deemed voluntary at all.

From the foregoing discussion, it is apparent that the respondent judge’s directive in the May 23, 2001
Joint Order for the immediate return of the seized items to the respondent HPS was enforced
prematurely and in grave abuse of discretion. Clearly, the Joint Order dated May 23, 2001 was not yet
final and executory when it was implemented on June 5, 2001. Moreover, a motion for execution filed
by the interested party is obviously lacking. Thus, this Court concludes that there is no legal basis for
the implementation of the May 23, 2001 Joint Order when the seized items were released on June 5,
2001.68

In all, we agree with the former Fourth Division of the Court of Appeals that there was indeed grave
abuse of discretion on the part of the trial court in the premature haste attending the release of the
items seized.

WHEREFORE, premtses considered, the petition of HPS Corporation, et al. in G.R. No. 170217
is DENIED for lack of merit. The petition ofPLDT in G.R. No. 170694 is GRANTED. The assailed Decision
dated April 8, 2005 as well as the Resolution dated December 7, 2005 of the Court of Appeals in CA-
G.R. CV No. 75838 are hereby REVERSED and SET ASIDE. No costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-19550             June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners,

vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his capacity as
Acting Director, National Bureau of Investigation; SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN
I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES; JUDGE AMADO ROAN,
Municipal Court of Manila; JUDGE ROMAN CANSINO, Municipal Court of Manila; JUDGE
HERMOGENES CALUAG, Court of First Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN
JIMENEZ, Municipal Court of Quezon City, respondents.

Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro,
Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua for
respondents.

CONCEPCION, C.J.:

Upon application of the officers of the government named on the margin1 — hereinafter referred to as
Respondents-Prosecutors — several judges2 — hereinafter referred to as Respondents-Judges —
issued, on different dates,3 a total of 42 search warrants against petitioners herein4 and/or the
corporations of which they were officers,5 directed to the any peace officer, to search the persons
above-named and/or the premises of their offices, warehouses and/or residences, and to seize and
take possession of the following personal property to wit:

Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals,

portfolios, credit journals, typewriters, and other documents and/or papers showing all
business transactions including disbursements receipts, balance sheets and profit and loss
statements and Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or
intended to be used as the means of committing the offense," which is described in the applications
adverted to above as "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue
(Code) and the Revised Penal Code."

Alleging that the aforementioned search warrants are null and void, as contravening the Constitution
and the Rules of Court — because, inter alia: (1) they do not describe with particularity the documents,
books and things to be seized; (2) cash money, not mentioned in the warrants, were actually seized; (3)
the warrants were issued to fish evidence against the aforementioned petitioners in deportation cases
filed against them; (4) the searches and seizures were made in an illegal manner; and (5) the
documents, papers and cash money seized were not delivered to the courts that issued the warrants,
to be disposed of in accordance with law — on March 20, 1962, said petitioners filed with the Supreme
Court this original action for certiorari, prohibition, mandamus and injunction, and prayed that,
pending final disposition of the present case, a writ of preliminary injunction be issued restraining
Respondents-Prosecutors, their agents and /or representatives from using the effects seized as
aforementioned or any copies thereof, in the deportation cases already adverted to, and that, in due
course, thereafter, decision be rendered quashing the contested search warrants and declaring the
same null and void, and commanding the respondents, their agents or representatives to return to
petitioners herein, in accordance with Section 3, Rule 67, of the Rules of Court, the documents, papers,
things and cash moneys seized or confiscated under the search warrants in question.

In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are valid
and have been issued in accordance with law; (2) that the defects of said warrants, if any, were cured
by petitioners' consent; and (3) that, in any event, the effects seized are admissible in evidence against
herein petitioners, regardless of the alleged illegality of the aforementioned searches and seizures.

On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition.
However, by resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as the
papers, documents and things seized from the offices of the corporations above mentioned are
concerned; but, the injunction was maintained as regards the papers, documents and things found and
seized in the residences of petitioners herein.7

Thus, the documents, papers, and things seized under the alleged authority of the warrants in question
may be split into two (2) major groups, namely: (a) those found and seized in the offices of the
aforementioned corporations, and (b) those found and seized in the residences of petitioners herein.

As regards the first group, we hold that petitioners herein have no cause of action to assail the legality
of the contested warrants and of the seizures made in pursuance thereof, for the simple reason that
said corporations have their respective personalities, separate and distinct from the personality of
herein petitioners, regardless of the amount of shares of stock or of the interest of each of them in said
corporations, and whatever the offices they hold therein may be.8 Indeed, it is well settled that the
legality of a seizure can be contested only by the party whose rights have been impaired thereby, 9 and
that the objection to an unlawful search and seizure is purely personal and cannot be availed of by
third parties. 10 Consequently, petitioners herein may not validly object to the use in evidence against
them of the documents, papers and things seized from the offices and premises of the corporations
adverted to above, since the right to object to the admission of said papers in evidence
belongs exclusively to the corporations, to whom the seized effects belong, and may not be invoked by
the corporate officers in proceedings against them in their individual capacity. 11 Indeed, it has been
held:
 . . . that the Government's action in gaining possession of papers belonging to
the corporation did not relate to nor did it affect the personal defendants. If these papers were
unlawfully seized and thereby the constitutional rights of or any one were invaded, they were
the rights of the corporation and not the rights of the other defendants. Next, it is clear that a
question of the lawfulness of a seizure can be raised only by one whose rights have been
invaded. Certainly, such a seizure, if unlawful, could not affect the constitutional rights of
defendants whose property had not been seized or the privacy of whose homes had not been
disturbed; nor could they claim for themselves the benefits of the Fourth Amendment, when its
violation, if any, was with reference to the rights of another. Remus vs. United
States (C.C.A.)291 F. 501, 511. It follows, therefore, that the question of the admissibility of the
evidence based on an alleged unlawful search and seizure does not extend to the personal
defendants but embraces only the corporation whose property was taken. . . . (A Guckenheimer
& Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.)

With respect to the documents, papers and things seized in the residences of petitioners herein, the
aforementioned resolution of June 29, 1962, lifted the writ of preliminary injunction previously issued
by this Court, 12 thereby, in effect, restraining herein Respondents-Prosecutors from using them in
evidence against petitioners herein.

In connection with said documents, papers and things, two (2) important questions need be settled,
namely: (1) whether the search warrants in question, and the searches and seizures made under the
authority thereof, are valid or not, and (2) if the answer to the preceding question is in the negative,
whether said documents, papers and things may be used in evidence against petitioners
herein.1äwphï1.ñët

Petitioners maintain that the aforementioned search warrants are in the nature of general warrants
and that accordingly, the seizures effected upon the authority there of are null and void. In this
connection, the Constitution 13 provides:

The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized.

Two points must be stressed in connection with this constitutional mandate, namely: (1) that no
warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in
said provision; and (2) that the warrant shall particularly describe the things to be seized.

None of these requirements has been complied with in the contested warrants. Indeed, the same were
issued upon applications stating that the natural and juridical person therein named had committed a
"violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal
Code." In other words, no specific offense had been alleged in said applications. The averments thereof
with respect to the offense committed were abstract. As a consequence, it was impossible for the
judges who issued the warrants to have found the existence of probable cause, for the same
presupposes the introduction of competent proof that the party against whom it is sought has
performed particular acts, or committed specific omissions, violating a given provision of our criminal
laws. As a matter of fact, the applications involved in this case do not allege any specific acts performed
by herein petitioners. It would be the legal heresy, of the highest order, to convict anybody of a
"violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal
Code," — as alleged in the aforementioned applications — without reference to any determinate
provision of said laws or

To uphold the validity of the warrants in question would be to wipe out completely one of the most
fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and
the privacy of communication and correspondence at the mercy of the whims caprice or passion of
peace officers. This is precisely the evil sought to be remedied by the constitutional provision above
quoted — to outlaw the so-called general warrants. It is not difficult to imagine what would happen, in
times of keen political strife, when the party in power feels that the minority is likely to wrest it, even
though by legal means.

Such is the seriousness of the irregularities committed in connection with the disputed search
warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court 14 by
providing in its counterpart, under the Revised Rules of Court 15 that "a search warrant shall not issue
but upon probable cause in connection with one specific offense." Not satisfied with this qualification,
the Court added thereto a paragraph, directing that "no search warrant shall issue for more than one
specific offense."

The grave violation of the Constitution made in the application for the contested search warrants was
compounded by the description therein made of the effects to be searched for and seized, to wit:

Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers,

portfolios, credit journals, typewriters, and other documents and/or papers showing all
business transactions including disbursement receipts, balance sheets and related profit and
loss statements.

Thus, the warrants authorized the search for and seizure of records pertaining to all business
transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The
warrants sanctioned the seizure of all records of the petitioners and the aforementioned corporations,
whatever their nature, thus openly contravening the explicit command of our Bill of Rights — that the
things to be seized be particularly described — as well as tending to defeat its major objective: the
elimination of general warrants.

Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that, even if
the searches and seizures under consideration were unconstitutional, the documents, papers and
things thus seized are admissible in evidence against petitioners herein. Upon mature deliberation,
however, we are unanimously of the opinion that the position taken in the Moncado case must be
abandoned. Said position was in line with the American common law rule, that the criminal should not
be allowed to go free merely "because the constable has blundered," 16 upon the theory that the
constitutional prohibition against unreasonable searches and seizures is protected by means other
than the exclusion of evidence unlawfully obtained, 17 such as the common-law action for damages
against the searching officer, against the party who procured the issuance of the search warrant and
against those assisting in the execution of an illegal search, their criminal punishment, resistance,
without liability to an unlawful seizure, and such other legal remedies as may be provided by other
laws.
However, most common law jurisdictions have already given up this approach and eventually adopted
the exclusionary rule, realizing that this is the only practical means of enforcing the constitutional
injunction against unreasonable searches and seizures. In the language of Judge Learned Hand:

As we understand it, the reason for the exclusion of evidence competent as such, which has
been unlawfully acquired, is that exclusion is the only practical way of enforcing the
constitutional privilege. In earlier times the action of trespass against the offending official may
have been protection enough; but that is true no longer. Only in case the prosecution which
itself controls the seizing officials, knows that it cannot profit by their wrong will that wrong be
repressed.18

In fact, over thirty (30) years before, the Federal Supreme Court had already declared:

If letters and private documents can thus be seized and held and used in evidence against a
citizen accused of an offense, the protection of the 4th Amendment, declaring his rights to be
secure against such searches and seizures, is of no value, and, so far as those thus placed are
concerned, might as well be stricken from the Constitution. The efforts of the courts and their
officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the
sacrifice of those great principles established by years of endeavor and suffering which have
resulted in their embodiment in the fundamental law of the land.19

This view was, not only reiterated, but, also, broadened in subsequent decisions on the same Federal
Court. 20 After reviewing previous decisions thereon, said Court held, in Mapp vs. Ohio (supra.):

. . . Today we once again examine the Wolf's constitutional documentation of the right of
privacy free from unreasonable state intrusion, and after its dozen years on our books, are led
by it to close the only courtroom door remaining open to evidence secured by official
lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee
against that very same unlawful conduct. We hold that all evidence obtained by searches and
seizures in violation of the Constitution is, by that same authority, inadmissible in a State.

Since the Fourth Amendment's right of privacy has been declared enforceable against the
States through the Due Process Clause of the Fourteenth, it is enforceable against them by the
same sanction of exclusion as it used against the Federal Government. Were it otherwise, then
just as without the Weeks rule the assurance against unreasonable federal searches and
seizures would be "a form of words," valueless and underserving of mention in a perpetual
charter of inestimable human liberties, so too, without that rule the freedom from state
invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus
with the freedom from all brutish means of coercing evidence as not to permit this Court's high
regard as a freedom "implicit in the concept of ordered liberty." At the time that the Court held
in Wolf that the amendment was applicable to the States through the Due Process Clause, the
cases of this Court as we have seen, had steadfastly held that as to federal officers the Fourth
Amendment included the exclusion of the evidence seized in violation of its provisions. Even
Wolf "stoutly adhered" to that proposition. The right to when conceded operatively
enforceable against the States, was not susceptible of destruction by avulsion of the sanction
upon which its protection and enjoyment had always been deemed dependent under the Boyd,
Weeks and Silverthorne Cases. Therefore, in extending the substantive protections of due
process to all constitutionally unreasonable searches — state or federal — it was logically and
constitutionally necessarily that the exclusion doctrine — an essential part of the right to
 privacy — be also insisted upon as an essential ingredient of the right newly recognized by the
Wolf Case. In short, the admission of the new constitutional Right by Wolf could not tolerate
denial of its most important constitutional privilege, namely, the exclusion of the evidence which
an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to
grant the right but in reality to withhold its privilege and enjoyment. Only last year the Court
itself recognized that the purpose of the exclusionary rule to "is to deter — to compel respect for
the constitutional guaranty in the only effectively available way — by removing the incentive to
disregard it" . . . .

The ignoble shortcut to conviction left open to the State tends to destroy the entire system of
constitutional restraints on which the liberties of the people rest. Having once recognized that
the right to privacy embodied in the Fourth Amendment is enforceable against the States, and
that the right to be secure against rude invasions of privacy by state officers is, therefore
constitutional in origin, we can no longer permit that right to remain an empty promise.
Because it is enforceable in the same manner and to like effect as other basic rights secured by
its Due Process Clause, we can no longer permit it to be revocable at the whim of any police
officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our
decision, founded on reason and truth, gives to the individual no more than that which the
Constitution guarantees him to the police officer no less than that to which honest law
enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true
administration of justice. (emphasis ours.)

Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the
constitutional injunction against unreasonable searches and seizures. To be sure, if the applicant for a
search warrant has competent evidence to establish probable cause of the commission of a given
crime by the party against whom the warrant is intended, then there is no reason why the applicant
should not comply with the requirements of the fundamental law. Upon the other hand, if he has no
such competent evidence, then it is not possible for the Judge to find that there is probable cause, and,
hence, no justification for the issuance of the warrant. The only possible explanation (not justification)
for its issuance is the necessity of fishing evidence of the commission of a crime. But, then, this fishing
expedition is indicative of the absence of evidence to establish a probable cause.

Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant
and/or make unreasonable searches or seizures would suffice to protect the constitutional guarantee
under consideration, overlooks the fact that violations thereof are, in general, committed By agents of
the party in power, for, certainly, those belonging to the minority could not possibly abuse a power
they do not have. Regardless of the handicap under which the minority usually — but, understandably
— finds itself in prosecuting agents of the majority, one must not lose sight of the fact that the
psychological and moral effect of the possibility 21 of securing their conviction, is watered down by the
pardoning power of the party for whose benefit the illegality had been committed.

In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29,
1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey
Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-Navy Club, should be
included among the premises considered in said Resolution as residences of herein petitioners, Harry S.
Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that, furthermore, the
records, papers and other effects seized in the offices of the corporations above referred to include
personal belongings of said petitioners and other effects under their exclusive possession and control,
for the exclusion of which they have a standing under the latest rulings of the federal courts of federal
courts of the United States. 22

We note, however, that petitioners' theory, regarding their alleged possession of and control over the
aforementioned records, papers and effects, and the alleged "personal" nature thereof, has Been
Advanced, not in their petition or amended petition herein, but in the Motion for Reconsideration and
Amendment of the Resolution of June 29, 1962. In other words, said theory would appear to be
readjustment of that followed in said petitions, to suit the approach intimated in the Resolution sought
to be reconsidered and amended. Then, too, some of the affidavits or copies of alleged affidavits
attached to said motion for reconsideration, or submitted in support thereof, contain either
inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners
herein.

Upon the other hand, we are not satisfied that the allegations of said petitions said motion for
reconsideration, and the contents of the aforementioned affidavits and other papers submitted in
support of said motion, have sufficiently established the facts or conditions contemplated in the cases
relied upon by the petitioners; to warrant application of the views therein expressed, should we agree
thereto. At any rate, we do not deem it necessary to express our opinion thereon, it being best to leave
the matter open for determination in appropriate cases in the future.

We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby,
abandoned; that the warrants for the search of three (3) residences of herein petitioners, as specified
in the Resolution of June 29, 1962, are null and void; that the searches and seizures therein made are
illegal; that the writ of preliminary injunction heretofore issued, in connection with the documents,
papers and other effects thus seized in said residences of herein petitioners is hereby made
permanent; that the writs prayed for are granted, insofar as the documents, papers and other effects
so seized in the aforementioned residences are concerned; that the aforementioned motion for
Reconsideration and Amendment should be, as it is hereby, denied; and that the petition herein is
dismissed and the writs prayed for denied, as regards the documents, papers and other effects seized
in the twenty-nine (29) places, offices and other premises enumerated in the same Resolution, without
special pronouncement as to costs.

It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.

CASTRO, J., concurring and dissenting:

From my analysis of the opinion written by Chief Justice Roberto Concepcion and from the import of
the deliberations of the Court on this case, I gather the following distinct conclusions:

1. All the search warrants served by the National Bureau of Investigation in this case are general
warrants and are therefore proscribed by, and in violation of, paragraph 3 of section 1 of Article
III (Bill of Rights) of the Constitution;

2. All the searches and seizures conducted under the authority of the said search warrants were
consequently illegal;
 3. The non-exclusionary rule enunciated in Moncado vs. People, 80 Phil. 1, should be, and is
declared, abandoned;

4. The search warrants served at the three residences of the petitioners are expressly declared
null and void the searches and seizures therein made are expressly declared illegal; and the writ
of preliminary injunction heretofore issued against the use of the documents, papers and effect
seized in the said residences is made permanent; and

5. Reasoning that the petitioners have not in their pleadings satisfactorily demonstrated that
they have legal standing to move for the suppression of the documents, papers and effects
seized in the places other than the three residences adverted to above, the opinion written by
the Chief Justice refrains from expressly declaring as null and void the such warrants served at
such other places and as illegal the searches and seizures made therein, and leaves "the matter
open for determination in appropriate cases in the future."

It is precisely the position taken by the Chief Justice summarized in the immediately preceding
paragraph (numbered 5) with which I am not in accord.

I do not share his reluctance or unwillingness to expressly declare, at this time, the nullity of the search
warrants served at places other than the three residences, and the illegibility of the searches and
seizures conducted under the authority thereof. In my view even the exacerbating passions and
prejudices inordinately generated by the environmental political and moral developments of this case
should not deter this Court from forthrightly laying down the law not only for this case but as well for
future cases and future generations. All the search warrants, without exception, in this case are
admittedly general, blanket and roving warrants and are therefore admittedly and indisputably
outlawed by the Constitution; and the searches and seizures made were therefore unlawful. That the
petitioners, let us assume in gratia argumente, have no legal standing to ask for the suppression of the
papers, things and effects seized from places other than their residences, to my mind, cannot in any
manner affect, alter or otherwise modify the intrinsic nullity of the search warrants and the intrinsic
illegality of the searches and seizures made thereunder. Whether or not the petitioners possess legal
standing the said warrants are void and remain void, and the searches and seizures were illegal and
remain illegal. No inference can be drawn from the words of the Constitution that "legal standing" or
the lack of it is a determinant of the nullity or validity of a search warrant or of the lawfulness or
illegality of a search or seizure.

On the question of legal standing, I am of the conviction that, upon the pleadings submitted to this
Court the petitioners have the requisite legal standing to move for the suppression and return of the
documents, papers and effects that were seized from places other than their family residences.

Our constitutional provision on searches and seizures was derived almost verbatim from the Fourth
Amendment to the United States Constitution. In the many years of judicial construction and
interpretation of the said constitutional provision, our courts have invariably regarded as doctrinal the
pronouncement made on the Fourth Amendment by federal courts, especially the Federal Supreme
Court and the Federal Circuit Courts of Appeals.

The U.S. doctrines and pertinent cases on standing to move for the suppression or return of
documents, papers and effects which are the fruits of an unlawful search and seizure, may be
summarized as follows; (a) ownership of documents, papers and effects gives "standing;" (b)
ownership and/or control or possession — actual or constructive — of premises searched gives
"standing"; and (c) the "aggrieved person" doctrine where the search warrant and the sworn
application for search warrant are "primarily" directed solely and exclusively against the "aggrieved
person," gives "standing."

An examination of the search warrants in this case will readily show that, excepting three, all were
directed against the petitioners personally. In some of them, the petitioners were named personally,
followed by the designation, "the President and/or General Manager" of the particular corporation.
The three warrants excepted named three corporate defendants. But the
"office/house/warehouse/premises" mentioned in the said three warrants were also the same
"office/house/warehouse/premises" declared to be owned by or under the control of the petitioners in
all the other search warrants directed against the petitioners and/or "the President and/or General
Manager" of the particular corporation. (see pages 5-24 of Petitioners' Reply of April 2, 1962). The
searches and seizures were to be made, and were actually made, in the
"office/house/warehouse/premises" owned by or under the control of the petitioners.

Ownership of matters seized gives "standing."

Ownership of the properties seized alone entitles the petitioners to bring a motion to return and
suppress, and gives them standing as persons aggrieved by an unlawful search and seizure regardless
of their location at the time of seizure. Jones vs. United States, 362 U.S. 257, 261 (1960) (narcotics
stored in the apartment of a friend of the defendant); Henzel vs. United States, 296 F. 2d. 650, 652-53
(5th Cir. 1961), (personal and corporate papers of corporation of which the defendant was
president), United States vs. Jeffers, 342 U.S. 48 (1951) (narcotics seized in an apartment not belonging
to the defendant); Pielow vs. United States, 8 F. 2d 492, 493 (9th Cir. 1925) (books seized from the
defendant's sister but belonging to the defendant); Cf. Villano vs. United States, 310 F. 2d 680, 683
(10th Cir. 1962) (papers seized in desk neither owned by nor in exclusive possession of the defendant).

In a very recent case (decided by the U.S. Supreme Court on December 12, 1966), it was held that
under the constitutional provision against unlawful searches and seizures, a person places himself or
his property within a constitutionally protected area, be it his home or his office, his hotel room or his
automobile:

Where the argument falls is in its misapprehension of the fundamental nature and scope of
Fourth Amendment protection. What the Fourth Amendment protects is the security a man
relies upon when he places himself or his property within a constitutionally protected area, be it
his home or his office, his hotel room or his automobile. There he is protected from
unwarranted governmental intrusion. And when he puts some thing in his filing cabinet, in his
desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable
search or an unreasonable seizure. So it was that the Fourth Amendment could not tolerate the
warrantless search of the hotel room in Jeffers, the purloining of the petitioner's private papers
in Gouled, or the surreptitious electronic surveilance in Silverman. Countless other cases which
have come to this Court over the years have involved a myriad of differing factual contexts in
which the protections of the Fourth Amendment have been appropriately invoked. No doubt,
the future will bring countless others. By nothing we say here do we either foresee or foreclose
factual situations to which the Fourth Amendment may be applicable. (Hoffa vs. U.S., 87 S. Ct.
408 (December 12, 1966). See also U.S. vs. Jeffers, 342 U.S. 48, 72 S. Ct. 93 (November 13,
1951). (Emphasis supplied).
Control of premises searched gives "standing."

Independent of ownership or other personal interest in the records and documents seized, the
petitioners have standing to move for return and suppression by virtue of their proprietary or
leasehold interest in many of the premises searched. These proprietary and leasehold interests have
been sufficiently set forth in their motion for reconsideration and need not be recounted here, except
to emphasize that the petitioners paid rent, directly or indirectly, for practically all the premises
searched (Room 91, 84 Carmen Apts; Room 304, Army & Navy Club; Premises 2008, Dewey Boulevard;
1436 Colorado Street); maintained personal offices within the corporate offices (IBMC, USTC); had
made improvements or furnished such offices; or had paid for the filing cabinets in which the papers
were stored (Room 204, Army & Navy Club); and individually, or through their respective spouses,
owned the controlling stock of the corporations involved. The petitioners' proprietary interest in most,
if not all, of the premises searched therefore independently gives them standing to move for the return
and suppression of the books, papers and affects seized therefrom.

In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature and extent of the
interest in the searched premises necessary to maintain a motion to suppress. After reviewing what it
considered to be the unduly technical standard of the then prevailing circuit court decisions, the
Supreme Court said (362 U.S. 266):

We do not lightly depart from this course of decisions by the lower courts. We are persuaded,
however, that it is unnecessarily and ill-advised to import into the law surrounding the
constitutional right to be free from unreasonable searches and seizures subtle distinctions,
developed and refined by the common law in evolving the body of private property law which,
more than almost any other branch of law, has been shaped by distinctions whose validity is
largely historical. Even in the area from which they derive, due consideration has led to the
discarding of those distinctions in the homeland of the common law. See Occupiers' Liability
Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out Law Reform Committee, Third Report, Cmd. 9305.
Distinctions such as those between "lessee", "licensee," "invitee," "guest," often only of
gossamer strength, ought not be determinative in fashioning procedures ultimately referable to
constitutional safeguards. See also Chapman vs. United States, 354 U.S. 610, 616-17 (1961).

It has never been held that a person with requisite interest in the premises searched must own the
property seized in order to have standing in a motion to return and suppress. In Alioto vs. United
States, 216 F. Supp. 48 (1963), a Bookkeeper for several corporations from whose apartment the
corporate records were seized successfully moved for their return. In United States vs. Antonelli,
Fireworks Co., 53 F. Supp. 870, 873 (W D. N. Y. 1943), the corporation's president successfully moved
for the return and suppression is to him of both personal and corporate documents seized from his
home during the course of an illegal search:

The lawful possession by Antonelli of documents and property, "either his own or the
corporation's was entitled to protection against unreasonable search and seizure. Under the
circumstances in the case at bar, the search and seizure were unreasonable and unlawful. The
motion for the return of seized article and the suppression of the evidence so obtained should
be granted. (Emphasis supplied).

Time was when only a person who had property in interest in either the place searched or the articles
seize had the necessary standing to invoke the protection of the exclusionary rule. But in MacDonald
vs. Unite States, 335 U.S. 461 (1948), Justice Robert Jackson joined by Justice Felix Frankfurter,
advanced the view that "even a guest may expect the shelter of the rooftree he is under against
criminal intrusion." This view finally became the official view of the U.S. Supreme Court and was
articulated in United States vs. Jeffers, 432 U.S 48 (1951). Nine years later, in 1960, in Jones vs. Unite
States, 362 U.S. 257, 267, the U.S. Supreme Court went a step further. Jones was a mere guest in the
apartment unlawfully searched but the Court nonetheless declared that the exclusionary rule
protected him as well. The concept of "person aggrieved by an unlawful search and seizure" was
enlarged to include "anyone legitimately on premise where the search occurs."

Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals for the Fifth Circuit held
that the defendant organizer, sole stockholder and president of a corporation had standing in a mail
fraud prosecution against him to demand the return and suppression of corporate property. Henzel vs.
United States, 296 F 2d 650, 652 (5th Cir. 1961), supra. The court conclude that the defendant had
standing on two independent grounds: First — he had a sufficient interest in the property seized,
and second — he had an adequate interest in the premises searched (just like in the case at bar). A
postal inspector had unlawfully searched the corporation' premises and had seized most of the
corporation's book and records. Looking to Jones, the court observed:

Jones clearly tells us, therefore, what is not required qualify one as a "person aggrieved by an
unlawful search and seizure." It tells us that appellant should not have been precluded from
objecting to the Postal Inspector's search and seizure of the corporation's books and records
merely because the appellant did not show ownership or possession of the books and records
or a substantial possessory interest in the invade premises . . . (Henzel vs. United States, 296 F.
2d at 651). .

Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th Cir. 1962). In Villano,
police officers seized two notebooks from a desk in the defendant's place of employment; the
defendant did not claim ownership of either; he asserted that several employees (including himself)
used the notebooks. The Court held that the employee had a protected interest and that there also
was an invasion of privacy. Both Henzel and Villano considered also the fact that the search and seizure
were "directed at" the moving defendant. Henzel vs. United States, 296 F. 2d at 682; Villano vs. United
States, 310 F. 2d at 683.

In a case in which an attorney closed his law office, placed his files in storage and went to Puerto Rico,
the Court of Appeals for the Eighth Circuit recognized his standing to move to quash as unreasonable
search and seizure under the Fourth Amendment of the U.S. Constitution a grand jury subpoena duces
tecum directed to the custodian of his files. The Government contended that the petitioner had no
standing because the books and papers were physically in the possession of the custodian, and
because the subpoena was directed against the custodian. The court rejected the contention, holding
that

Schwimmer legally had such possession, control and unrelinquished personal rights in the
books and papers as not to enable the question of unreasonable search and seizure to be
escaped through the mere procedural device of compelling a third-party naked possessor to
produce and deliver them. Schwimmer vs. United States, 232 F. 2d 855, 861 (8th Cir. 1956).

Aggrieved person doctrine where the search warrant s primarily directed against said person
gives "standing."
The latest United States decision squarely in point is United States vs. Birrell, 242 F. Supp. 191 (1965,
U.S.D.C. S.D.N.Y.). The defendant had stored with an attorney certain files and papers, which attorney,
by the name of Dunn, was not, at the time of the seizing of the records, Birrell's attorney. * Dunn, in
turn, had stored most of the records at his home in the country and on a farm which, according to
Dunn's affidavit, was under his (Dunn's) "control and management." The papers turned out to be
private, personal and business papers together with corporate books and records of certain unnamed
corporations in which Birrell did not even claim ownership. (All of these type records were seized in the
case at bar). Nevertheless, the search in Birrell was held invalid by the court which held that even
though Birrell did not own the premises where the records were stored, he had "standing" to move for
the return of all the papers and properties seized. The court, relying on Jones vs. U.S., supra; U.S. vs.
Antonelli Fireworks Co., 53 F. Supp. 870, Aff'd 155 F. 2d 631: Henzel vs. U.S., supra; and Schwimmer vs.
U.S., supra, pointed out that

It is overwhelmingly established that the searches here in question were directed solely and
exclusively against Birrell. The only person suggested in the papers as having violated the law
was Birrell. The first search warrant described the records as having been used "in committing a
violation of Title 18, United States Code, Section 1341, by the use of the mails by one Lowell M.
Birrell, . . ." The second search warrant was captioned: "United States of America vs. Lowell M.
Birrell. (p. 198)

Possession (actual or constructive), no less than ownership, gives standing to move to suppress.
Such was the rule even before Jones. (p. 199)

If, as thus indicated Birrell had at least constructive possession of the records stored with Dunn,
it matters not whether he had any interest in the premises searched. See also Jeffers v. United
States, 88 U.S. Appl. D.C. 58, 187 F. 2d 498 (1950), affirmed 432 U.S. 48, 72 S. Ct. 93, 96 L. Ed.
459 (1951).

The ruling in the Birrell case was reaffirmed on motion for reargument; the United States did not
appeal from this decision. The factual situation in Birrell is strikingly similar to the case of the present
petitioners; as in Birrell, many personal and corporate papers were seized from premises not
petitioners' family residences; as in Birrell, the searches were "PRIMARILY DIRECTED SOLETY AND
EXCLUSIVELY" against the petitioners. Still both types of documents were suppressed in Birrell because
of the illegal search. In the case at bar, the petitioners connection with the premises raided is much
closer than in Birrell.

Thus, the petitioners have full standing to move for the quashing of all the warrants regardless
whether these were directed against residences in the narrow sense of the word, as long as the
documents were personal papers of the petitioners or (to the extent that they were corporate papers)
were held by them in a personal capacity or under their personal control.

Prescinding a from the foregoing, this Court, at all events, should order the return to the petitioners
all personal and private papers and effects seized, no matter where these were seized, whether from
their residences or corporate offices or any other place or places. The uncontradicted sworn
statements of the petitioners in their, various pleadings submitted to this Court indisputably show that
amongst the things seized from the corporate offices and other places
were personal and private papers and effects belonging to the petitioners.
If there should be any categorization of the documents, papers and things which where the objects of
the unlawful searches and seizures, I submit that the grouping should be: (a) personal or private papers
of the petitioners were they were unlawfully seized, be it their family residences offices, warehouses
and/or premises owned and/or possessed (actually or constructively) by them as shown in all the
search and in the sworn applications filed in securing the void search warrants and (b)
purely corporate papers belonging to corporations. Under such categorization or grouping, the
determination of which unlawfully seized papers, documents and things are personal/private of the
petitioners or purely corporate papers will have to be left to the lower courts which issued the void
search warrants in ultimately effecting the suppression and/or return of the said documents.

And as unequivocally indicated by the authorities above cited, the petitioners likewise have clear legal
standing to move for the suppression of purely corporate papers as "President and/or General
Manager" of the corporations involved as specifically mentioned in the void search warrants.

Finally, I must articulate my persuasion that although the cases cited in my disquisition were criminal
prosecutions, the great clauses of the constitutional proscription on illegal searches and seizures do not
withhold the mantle of their protection from cases not criminal in origin or nature.

EN BANC

[G.R. No. L-32409. February 27, 1971.]

BACHE & CO. (PHIL.), INC. and FREDERICK E. SEGGERMAN, Petitioners, v. HON. JUDGE VIVENCIO M.
RUIZ, MISAEL P. VERA, in his capacity as Commissioner of Internal Revenue, ARTURO LOGRONIO,
RODOLFO DE LEON, GAVINO VELASQUEZ, MIMIR DELLOSA, NICANOR ALCORDO, JOHN DOE, JOHN
DOE, JOHN DOE, and JOHN DOE, Respondents.

San Juan, Africa, Gonzales & San Agustin, for Petitioners.

Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V . Bautista, Solicitor Pedro A.
Ramirez and Special Attorney Jaime M. Maza for Respondents.

DECISION
VILLAMOR, J.:

This is an original action of certiorari, prohibition and mandamus, with prayer for a writ of preliminary
mandatory and prohibitory injunction. In their petition Bache & Co. (Phil.), Inc., a corporation duly
organized and existing under the laws of the Philippines, and its President, Frederick E. Seggerman,
pray this Court to declare null and void Search Warrant No. 2-M-70 issued by respondent Judge on
February 25, 1970; to order respondents to desist from enforcing the same and/or keeping the
documents, papers and effects seized by virtue thereof, as well as from enforcing the tax assessments
on petitioner corporation alleged by petitioners to have been made on the basis of the said
documents, papers and effects, and to order the return of the latter to petitioners. We gave due course
to the petition but did not issue the writ of preliminary injunction prayed for therein.
The pertinent facts of this case, as gathered from record, are as follows:chanrob1es virtual 1aw library

On February 24, 1970, respondent Misael P. Vera, Commissioner of Internal Revenue, wrote a letter
addressed to respondent Judge Vivencio M. Ruiz requesting the issuance of a search warrant against
petitioners for violation of Section 46(a) of the National Internal Revenue Code, in relation to all other
pertinent provisions thereof, particularly Sections 53, 72, 73, 208 and 209, and authorizing Revenue
Examiner Rodolfo de Leon, one of herein respondents, to make and file the application for search
warrant which was attached to the letter.

In the afternoon of the following day, February 25, 1970, respondent De Leon and his witness,
respondent Arturo Logronio, went to the Court of First Instance of Rizal. They brought with them the
following papers: respondent Vera’s aforesaid letter-request; an application for search warrant already
filled up but still unsigned by respondent De Leon; an affidavit of respondent Logronio subscribed
before respondent De Leon; a deposition in printed form of respondent Logronio already accomplished
and signed by him but not yet subscribed; and a search warrant already accomplished but still unsigned
by respondent Judge.

At that time respondent Judge was hearing a certain case; so, by means of a note, he instructed his
Deputy Clerk of Court to take the depositions of respondents De Leon and Logronio. After the session
had adjourned, respondent Judge was informed that the depositions had already been taken. The
stenographer, upon request of respondent Judge, read to him her stenographic notes; and thereafter,
respondent Judge asked respondent Logronio to take the oath and warned him that if his deposition
was found to be false and without legal basis, he could be charged for perjury. Respondent Judge
signed respondent de Leon’s application for search warrant and respondent Logronio’s deposition,
Search Warrant No. 2-M-70 was then sign by respondent Judge and accordingly issued.

Three days later, or on February 28, 1970, which was a Saturday, the BIR agents served the search
warrant petitioners at the offices of petitioner corporation on Ayala Avenue, Makati, Rizal. Petitioners’
lawyers protested the search on the ground that no formal complaint or transcript of testimony was
attached to the warrant. The agents nevertheless proceeded with their search which yielded six boxes
of documents.

On March 3, 1970, petitioners filed a petition with the Court of First Instance of Rizal praying that the
search warrant be quashed, dissolved or recalled, that preliminary prohibitory and mandatory writs of
injunction be issued, that the search warrant be declared null and void, and that the respondents be
ordered to pay petitioners, jointly and severally, damages and attorney’s fees. On March 18, 1970, the
respondents, thru the Solicitor General, filed an answer to the petition. After hearing, the court,
presided over by respondent Judge, issued on July 29, 1970, an order dismissing the petition for
dissolution of the search warrant. In the meantime, or on April 16, 1970, the Bureau of Internal
Revenue made tax assessments on petitioner corporation in the total sum of P2,594,729.97, partly, if
not entirely, based on the documents thus seized. Petitioners came to this Court.

The petition should be granted for the following reasons:chanrob1es virtual 1aw library

1. Respondent Judge failed to personally examine the complainant and his witness.

The pertinent provisions of the Constitution of the Philippines and of the Revised Rules of Court
are:jgc:chanrobles.com.ph
"(3) The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be searched,
and the persons or things to be seized." (Art. III, Sec. 1, Constitution.)

"SEC. 3. Requisites for issuing search warrant. — A search warrant shall not issue but upon probable
cause in connection with one specific offense to be determined by the judge or justice of the peace
after examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things to be seized.

"No search warrant shall issue for more than one specific offense.

"SEC. 4. Examination of the applicant. — The judge or justice of the peace must, before issuing the
warrant, personally examine on oath or affirmation the complainant and any witnesses he may
produce and take their depositions in writing, and attach them to the record, in addition to any
affidavits presented to him." (Rule 126, Revised Rules of Court.)

The examination of the complainant and the witnesses he may produce, required by Art. III, Sec. 1, par.
3, of the Constitution, and by Secs. 3 and 4, Rule 126 of the Revised Rules of Court, should be
conducted by the judge himself and not by others. The phrase "which shall be determined by the judge
after examination under oath or affirmation of the complainant and the witnesses he may produce,"
appearing in the said constitutional provision, was introduced by Delegate Francisco as an amendment
to the draft submitted by the Sub-Committee of Seven. The following discussion in the Constitutional
Convention (Laurel, Proceedings of the Philippine Constitutional Convention, Vol. III, pp. 755-757) is
enlightening:jgc:chanrobles.com.ph

"SR. ORENSE. Vamos a dejar compañero los piropos y vamos al grano.

En los casos de una necesidad de actuar inmediatamente para que no se frusten los fines de la justicia
mediante el registro inmediato y la incautacion del cuerpo del delito, no cree Su Señoria que causaria
cierta demora el procedimiento apuntado en su enmienda en tal forma que podria frustrar los fines de
la justicia o si Su Señoria encuentra un remedio para esto casos con el fin de compaginar los fines de la
justicia con los derechos del individuo en su persona, bienes etcetera, etcetera.

"SR. FRANCISCO. No puedo ver en la practica el caso hipottico que Su Señoria pregunta por la siguiente
razon: el que solicita un mandamiento de registro tiene que hacerlo por escrito y ese escrito no
aparecer en la Mesa del Juez sin que alguien vaya el juez a presentar ese escrito o peticion de
sucuestro. Esa persona que presenta el registro puede ser el mismo denunciante o alguna persona que
solicita dicho mandamiento de registro. Ahora toda la enmienda en esos casos consiste en que haya
peticion de registro y el juez no se atendra solamente a sea peticion sino que el juez examiner a ese
denunciante y si tiene testigos tambin examiner a los testigos.

"SR. ORENSE. No cree Su Señoria que el tomar le declaracion de ese denunciante por escrito siempre
requeriria algun tiempo?.

"SR. FRANCISCO. Seria cuestio de un par de horas, pero por otro lado minimizamos en todo lo posible
las vejaciones injustas con la expedicion arbitraria de los mandamientos de registro. Creo que entre
dos males debemos escoger. el menor.
x       x       x

"MR. LAUREL. . . . The reason why we are in favor of this amendment is because we are incorporating
in our constitution something of a fundamental character. Now, before a judge could issue a search
warrant, he must be under the obligation to examine personally under oath the complainant and if he
has any witness, the witnesses that he may produce . . ."cralaw virtua1aw library

The implementing rule in the Revised Rules of Court, Sec. 4, Rule 126, is more emphatic and candid, for
it requires the judge, before issuing a search warrant, to "personally examine on oath or affirmation
the complainant and any witnesses he may produce . . ."cralaw virtua1aw library

Personal examination by the judge of the complainant and his witnesses is necessary to enable him to
determine the existence or non-existence of a probable cause, pursuant to Art. III, Sec. 1, par. 3, of the
Constitution, and Sec. 3, Rule 126 of the Revised Rules of Court, both of which prohibit the issuance of
warrants except "upon probable cause." The determination of whether or not a probable cause exists
calls for the exercise of judgment after a judicial appraisal of facts and should not be allowed to be
delegated in the absence of any rule to the contrary.

In the case at bar, no personal examination at all was conducted by respondent Judge of the
complainant (respondent De Leon) and his witness (respondent Logronio). While it is true that the
complainant’s application for search warrant and the witness’ printed-form deposition were
subscribed and sworn to before respondent Judge, the latter did not ask either of the two any question
the answer to which could possibly be the basis for determining whether or not there was probable
cause against herein petitioners. Indeed, the participants seem to have attached so little significance to
the matter that notes of the proceedings before respondent Judge were not even taken. At this
juncture it may be well to recall the salient facts. The transcript of stenographic notes (pp. 61-76, April
1, 1970, Annex J-2 of the Petition) taken at the hearing of this case in the court below shows that per
instruction of respondent Judge, Mr. Eleodoro V. Gonzales, Special Deputy Clerk of Court, took the
depositions of the complainant and his witness, and that stenographic notes thereof were taken by
Mrs. Gaspar. At that time respondent Judge was at the sala hearing a case. After respondent Judge was
through with the hearing, Deputy Clerk Gonzales, stenographer Gaspar, complainant De Leon and
witness Logronio went to respondent Judge’s chamber and informed the Judge that they had finished
the depositions. Respondent Judge then requested the stenographer to read to him her stenographic
notes. Special Deputy Clerk Gonzales testified as follows:jgc:chanrobles.com.ph

"A And after finishing reading the stenographic notes, the Honorable Judge requested or instructed
them, requested Mr. Logronio to raise his hand and warned him if his deposition will be found to be
false and without legal basis, he can be charged criminally for perjury. The Honorable Court told Mr.
Logronio whether he affirms the facts contained in his deposition and the affidavit executed before Mr.
Rodolfo de Leon.

"Q And thereafter?

"A And thereafter, he signed the deposition of Mr. Logronio.

"Q Who is this he?

"A The Honorable Judge.

"Q The deposition or the affidavit?

"A The affidavit, Your Honor."cralaw virtua1aw library

Thereafter, respondent Judge signed the search warrant.

The participation of respondent Judge in the proceedings which led to the issuance of Search Warrant
No. 2-M-70 was thus limited to listening to the stenographer’s readings of her notes, to a few words of
warning against the commission of perjury, and to administering the oath to the complainant and his
witness. This cannot be consider a personal examination. If there was an examination at all of the
complainant and his witness, it was the one conducted by the Deputy Clerk of Court. But, as stated, the
Constitution and the rules require a personal examination by the judge. It was precisely on account of
the intention of the delegates to the Constitutional Convention to make it a duty of the issuing judge to
personally examine the complainant and his witnesses that the question of how much time would be
consumed by the judge in examining them came up before the Convention, as can be seen from the
record of the proceedings quoted above. The reading of the stenographic notes to respondent Judge
did not constitute sufficient compliance with the constitutional mandate and the rule; for by that
manner respondent Judge did not have the opportunity to observe the demeanor of the complainant
and his witness, and to propound initial and follow-up questions which the judicial mind, on account of
its training, was in the best position to conceive. These were important in arriving at a sound inference
on the all-important question of whether or not there was probable cause.

2. The search warrant was issued for more than one specific offense.

Search Warrant No. 2-M-70 was issued for" [v]iolation of Sec. 46(a) of the National Internal Revenue
Code in relation to all other pertinent provisions thereof particularly Secs. 53, 72, 73, 208 and 209."
The question is: Was the said search warrant issued "in connection with one specific offense," as
required by Sec. 3, Rule 126?
To arrive at the correct answer it is essential to examine closely the provisions of the Tax Code referred
to above. Thus we find the following:chanrob1es virtual 1aw library

Sec. 46(a) requires the filing of income tax returns by corporations.

Sec. 53 requires the withholding of income taxes at source.

Sec. 72 imposes surcharges for failure to render income tax returns and for rendering false and
fraudulent returns.

Sec. 73 provides the penalty for failure to pay the income tax, to make a return or to supply the
information required under the Tax Code.

Sec. 208 penalizes" [a]ny person who distills, rectifies, repacks, compounds, or manufactures any
article subject to a specific tax, without having paid the privilege tax therefore, or who aids or abets in
the conduct of illicit distilling, rectifying, compounding, or illicit manufacture of any article subject to
specific tax . . .," and provides that in the case of a corporation, partnership, or association, the official
and/or employee who caused the violation shall be responsible.
Sec. 209 penalizes the failure to make a return of receipts, sales, business, or gross value of output
removed, or to pay the tax due thereon.

The search warrant in question was issued for at least four distinct offenses under the Tax Code. The
first is the violation of Sec. 46(a), Sec. 72 and Sec. 73 (the filing of income tax returns), which are
interrelated. The second is the violation of Sec. 53 (withholding of income taxes at source). The third is
the violation of Sec. 208 (unlawful pursuit of business or occupation); and the fourth is the violation of
Sec. 209 (failure to make a return of receipts, sales, business or gross value of output actually removed
or to pay the tax due thereon). Even in their classification the six above-mentioned provisions are
embraced in two different titles: Secs. 46(a), 53, 72 and 73 are under Title II (Income Tax); while Secs.
208 and 209 are under Title V (Privilege Tax on Business and Occupation).

Respondents argue that Stonehill, Et. Al. v. Diokno, Et Al., L-19550, June 19, 1967 (20 SCRA 383), is not
applicable, because there the search warrants were issued for "violation of Central Bank Laws, Internal
Revenue (Code) and Revised Penal Code;" whereas, here Search Warrant No 2-M-70 was issued for
violation of only one code, i.e., the National Internal Revenue Code. The distinction more apparent
than real, because it was precisely on account of the Stonehill incident, which occurred sometime
before the present Rules of Court took effect on January 1, 1964, that this Court amended the former
rule by inserting therein the phrase "in connection with one specific offense," and adding the sentence
"No search warrant shall issue for more than one specific offense," in what is now Sec. 3, Rule 126.
Thus we said in Stonehill:jgc:chanrobles.com.ph

"Such is the seriousness of the irregularities committed in connection with the disputed search
warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court that
‘a search warrant shall not issue but upon probable cause in connection with one specific offense.’ Not
satisfied with this qualification, the Court added thereto a paragraph, directing that ‘no search warrant
shall issue for more than one specific offense.’"

3. The search warrant does not particularly describe the things to be seized.

The documents, papers and effects sought to be seized are described in Search Warrant No. 2-M-70 in
this manner:jgc:chanrobles.com.ph

"Unregistered and private books of accounts (ledgers, journals, columnars, receipts and disbursements
books, customers ledgers); receipts for payments received; certificates of stocks and securities;
contracts, promissory notes and deeds of sale; telex and coded messages; business communications,
accounting and business records; checks and check stubs; records of bank deposits and withdrawals;
and records of foreign remittances, covering the years 1966 to 1970."cralaw virtua1aw library

The description does not meet the requirement in Art III, Sec. 1, of the Constitution, and of Sec. 3, Rule
126 of the Revised Rules of Court, that the warrant should particularly describe the things to be seized.

In Stonehill, this Court, speaking thru Mr. Chief Justice Roberto Concepcion, said:jgc:chanrobles.com.ph

"The grave violation of the Constitution made in the application for the contested search warrants was
compounded by the description therein made of the effects to be searched for and seized, to
wit:chanrob1es virtual 1aw library

‘Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios,
credit journals, typewriters, and other documents and/or paper showing all business transactions
including disbursement receipts, balance sheets and related profit and loss statements.’

"Thus, the warrants authorized the search for and seizure of records pertaining to all business
transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The
warrants sanctioned the seizure of all records of the petitioners and the aforementioned corporations,
whatever their nature, thus openly contravening the explicit command of our Bill of Rights — that the
things to be seized be particularly described — as well as tending to defeat its major objective: the
elimination of general warrants."cralaw virtua1aw library

While the term "all business transactions" does not appear in Search Warrant No. 2-M-70, the said
warrant nevertheless tends to defeat the major objective of the Bill of Rights, i.e., the elimination of
general warrants, for the language used therein is so all-embracing as to include all conceivable records
of petitioner corporation, which, if seized, could possibly render its business inoperative.

In Uy Kheytin, Et. Al. v. Villareal, etc., Et Al., 42 Phil. 886, 896, this Court had occasion to explain the
purpose of the requirement that the warrant should particularly describe the place to be searched and
the things to be seized, to wit:jgc:chanrobles.com.ph

". . . Both the Jones Law (sec. 3) and General Orders No. 58 (sec. 97) specifically require that a search
warrant should particularly describe the place to be searched and the things to be seized. The evident
purpose and intent of this requirement is to limit the things to be seized to those, and only those,
particularly described in the search warrant — to leave the officers of the law with no discretion
regarding what articles they shall seize, to the end that ‘unreasonable searches and seizures’ may not
be made, — that abuses may not be committed. That this is the correct interpretation of this
constitutional provision is borne out by American authorities."cralaw virtua1aw library

The purpose as thus explained could, surely and effectively, be defeated under the search warrant
issued in this case.

A search warrant may be said to particularly describe the things to be seized when the description
therein is as specific as the circumstances will ordinarily allow (People v. Rubio; 57 Phil. 384); or when
the description expresses a conclusion of fact — not of law — by which the warrant officer may be
guided in making the search and seizure (idem., dissent of Abad Santos, J.,); or when the things
described are limited to those which bear direct relation to the offense for which the warrant is being
issued (Sec. 2, Rule 126, Revised Rules of Court). The herein search warrant does not conform to any of
the foregoing tests. If the articles desired to be seized have any direct relation to an offense
committed, the applicant must necessarily have some evidence, other than those articles, to prove the
said offense; and the articles subject of search and seizure should come in handy merely to strengthen
such evidence. In this event, the description contained in the herein disputed warrant should have
mentioned, at least, the dates, amounts, persons, and other pertinent data regarding the receipts of
payments, certificates of stocks and securities, contracts, promissory notes, deeds of sale, messages
and communications, checks, bank deposits and withdrawals, records of foreign remittances, among
others, enumerated in the warrant.

Respondents contend that certiorari does not lie because petitioners failed to file a motion for
reconsideration of respondent Judge’s order of July 29, 1970. The contention is without merit. In the
first place, when the questions raised before this Court are the same as those which were squarely
raised in and passed upon by the court below, the filing of a motion for reconsideration in said court
before certiorari can be instituted in this Court is no longer a prerequisite. (Pajo, etc., Et. Al. v. Ago, Et
Al., 108 Phil., 905). In the second place, the rule requiring the filing of a motion for reconsideration
before an application for a writ of certiorari can be entertained was never intended to be applied
without considering the circumstances. (Matutina v. Buslon, Et Al., 109 Phil., 140.) In the case at bar
time is of the essence in view of the tax assessments sought to be enforced by respondent officers of
the Bureau of Internal Revenue against petitioner corporation, On account of which immediate and
more direct action becomes necessary. (Matute v. Court of Appeals, Et Al., 26 SCRA 768.) Lastly, the
rule does not apply where, as in this case, the deprivation of petitioners’ fundamental right to due
process taints the proceeding against them in the court below not only with irregularity but also with
nullity. (Matute v. Court of Appeals, Et Al., supra.)

It is next contended by respondents that a corporation is not entitled to protection against

unreasonable search and seizures. Again, we find no merit in the contention.

"Although, for the reasons above stated, we are of the opinion that an officer of a corporation which is
charged with a violation of a statute of the state of its creation, or of an act of Congress passed in the
exercise of its constitutional powers, cannot refuse to produce the books and papers of such
corporation, we do not wish to be understood as holding that a corporation is not entitled to
immunity, under the 4th Amendment, against unreasonable searches and seizures. A corporation is,
after all, but an association of individuals under an assumed name and with a distinct legal entity. In
organizing itself as a collective body it waives no constitutional immunities appropriate to such body.
Its property cannot be taken without compensation. It can only be proceeded against by due process
of law, and is protected, under the 14th Amendment, against unlawful discrimination . . ." (Hale v.
Henkel, 201 U.S. 43, 50 L. ed. 652.)

"In Linn v. United States, 163 C.C.A. 470, 251 Fed. 476, 480, it was thought that a different rule applied
to a corporation, the ground that it was not privileged from producing its books and papers. But the
rights of a corporation against unlawful search and seizure are to be protected even if the same result
might have been achieved in a lawful way." (Silverthorne Lumber Company, Et. Al. v. United States of
America, 251 U.S. 385, 64 L. ed. 319.)

In Stonehill, Et. Al. v. Diokno, Et Al., supra, this Court impliedly recognized the right of a corporation to
object against unreasonable searches and seizures, thus:jgc:chanrobles.com.ph

"As regards the first group, we hold that petitioners herein have no cause of action to assail the legality
of the contested warrants and of the seizures made in pursuance thereof, for the simple reason that
said corporations have their respective personalities, separate and distinct from the personality of
herein petitioners, regardless of the amount of shares of stock or the interest of each of them in said
corporations, whatever, the offices they hold therein may be. Indeed, it is well settled that the legality
of a seizure can be contested only by the party whose rights have been impaired thereby, and that the
objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties.
Consequently, petitioners herein may not validly object to the use in evidence against them of the
documents, papers and things seized from the offices and premises of the corporations adverted to
above, since the right to object to the admission of said papers in evidence belongs exclusively to the
corporations, to whom the seized effects belong, and may not be invoked by the corporate officers in
proceedings against them in their individual capacity . . ."cralaw virtua1aw library
In the Stonehill case only the officers of the various corporations in whose offices documents, papers
and effects were searched and seized were the petitioners. In the case at bar, the corporation to whom
the seized documents belong, and whose rights have thereby been impaired, is itself a petitioner. On
that score, petitioner corporation here stands on a different footing from the corporations in Stonehill.

The tax assessments referred to earlier in this opinion were, if not entirely — as claimed by petitioners
— at least partly — as in effect admitted by respondents — based on the documents seized by virtue of
Search Warrant No. 2-M-70. Furthermore, the fact that the assessments were made some one and
one-half months after the search and seizure on February 25, 1970, is a strong indication that the
documents thus seized served as basis for the assessments. Those assessments should therefore not
be enforced.

PREMISES CONSIDERED, the petition is granted. Accordingly, Search Warrant No. 2-M-70 issued by
respondent Judge is declared null and void; respondents are permanently enjoined from enforcing the
said search warrant; the documents, papers and effects seized thereunder are ordered to be returned
to petitioners; and respondent officials the Bureau of Internal Revenue and their representatives are
permanently enjoined from enforcing the assessments mentioned in Annex "G" of the present petition,
as well as other assessments based on the documents, papers and effects seized under the search
warrant herein nullified, and from using the same against petitioners in any criminal or other
proceeding. No pronouncement as to costs.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 191080               November 21, 2011

FREDRIK FELIX P. NOGALES, GIANCARLO P. NOGALES, ROGELIO P. NOGALES, MELINDA P. NOGALES,

PRISCILA B. CABRERA, Phil-Pacific Outsourcing Services CorpORATION and 3 x 8 Internet, represented
by its proprietor Michael Christopher A. Nogales, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES and Presiding Judge TITA BUGHAO ALISUAG, Branch 1, Regional Trial
Court, Manila, Respondents.

DECISION

MENDOZA, J.:

At bench is a petition for certiorari under Rule 65 of the Rules of Court filed by petitioners Fredrik Felix
P. Nogales, Giancarlo P. Nogales, Rogelio P. Nogales, Melinda P. Nogales, Priscila B. Cabrera, Phil-Pacific
Outsourcing Services Corp. and 3 x 8 Internet, represented by its proprietor Michael Christopher A.
Nogales (petitioners) against respondents People of the Philippines and Presiding Judge Tita Bughao
Alisuag (Judge Alisuag) of Branch 1, Regional Trial Court, Manila (RTC).

The petition challenges the August 19, 2009 Decision1 of the Court of Appeals (CA), in CA-G.R. SP No.
105968, which affirmed with modification the August 6, 2008 Order 2 of Judge Alisuag of the RTC; and
its January 25, 2010 Resolution,3 which denied petitioners’ motion for reconsideration.
THE FACTS:
On July 30, 2007, Special Investigator Garry Meñez (SI Meñez) of the National Bureau of
Investigation (NBI) applied for a search warrant before the RTC to authorize him and his fellow
NBI agents or any peace officer to search the premises of petitioner Phil-Pacific Outsourcing Services
Corporation (Phil-Pacific) and to seize/confiscate and take into custody the items/articles/objects
enumerated in his application. The sworn application, docketed as Search Warrant Proceedings No. 07-
11685,4 partially reads:

SWORN APPLICATION FOR A SEARCH WARRANT

x x x           x x x          x x x

x x x           x x x          x x x

That he has been informed, verily believes and personally verified that JUN NICOLAS, LOREN NUESTRA,
FREDRICK FELIX P. NOGALES, MELINDA P. NOGALES, PRISCILA B. CABRERA and/or occupants PHIL-
PACIFIC OUTSOURCING SERVICES CORP. located at Mezzanine Flr., Glorietta De Manila Building, 776
San Sebastian St., University Belt, Manila have in their possession/control and are concealed in the
above-mentioned premises various material[s] used in the creation and selling of pornographic
internet website, to wit:

1. Computer Sets
2. Television Sets
3. Internet Servers
4. Fax Machines
5. Pornographic Films and other Pornographic Materials
6. Web Cameras
7. Telephone Sets
8. Photocopying Machines
9. List of clients and
10. Other tools and materials used or intended to be used in the commission of the crime.

The application for Search Warrant No. 07-11685 of SI Meñez was acted upon by Judge Alisuag. On
August 3, 2007, a hearing was conducted wherein Judge Alisuag personally examined SI Meñez and
two other witnesses in the form of searching questions and their answers thereto were duly recorded
by the court. The witnesses’ affidavits were also submitted and marked as supporting evidence to the
application for the issuance of a search warrant. On the same date of the hearing, the application was
granted and the corresponding Search Warrant,5 issued. The said search warrant is quoted as follows:

SEARCH WARRANT

TO: ANY PEACE OFFICER

It appearing to the satisfaction of the undersigned, after examining under oath applicant SI III GARY I.
MEÑEZ of the Special Task Force Division, National Bureau of Investigation, and his witnesses, ISABEL
CORTEZ y ANDRADE of 167 5th Avenue, Caloocan City and MARK ANTHONY C. SEBASTIAN of No. 32
Arlegui Street, San Miguel Quiapo, Manila that there are good reasons to believe that VIOLATION OF
ARTICLE 201 OF THE REVISED PENAL CODE, AS AMENDED IN RELATION TO R.A. 8792 (ELECTRONIC
COMMERCE ACT) has been committed and that JUN NICOLAS, LOREN NUESTRA, FREDERICK (sic) FELIX
P. NOGALES, GIAN CARLO P. NOGALES, ROGELIO P. NOGALES, MELINDA P. NOGALES, PRISCILA B.
CABRERA and/or OCCUPANTS OF PHIL. PACIFIC OUTSOURCING SERVICES CORPORATION located at
Mezzanine Floor, Glorietta De Manila Building, 776 San Sebastian St., University Belt, Manila, have in
their possession and control of the following:

1. Computer Sets
2. Television Sets
3. Internet Servers
4. Fax Machines
5. Pornographic Films and other Pornographic Materials
6. Web Cameras
7. Telephone Sets
8. Photocopying Machines
9. List of clients and
10. Other tools and materials used or intended to be used in the commission of the crime.

You are hereby commanded to make an immediate search any time of the DAY of the premises
mentioned above which is Mezzanine Floor, Glorietta De Manila Building, 776 San Sebastian St.,
University Belt, Manila and take possession of the following:

1. Computer Sets
2. Television Sets
3. Internet Servers
4. Fax Machines
5. Pornographic Films and other Pornographic Materials
6. Web Cameras
7. Telephone Sets
8. Photocopying Machines
9. List of clients and
10. Other tools and materials used or intended to be used in the commission of the crime.

and bring to this Court the said properties and persons to be dealt with as the law may direct. You are
further directed to submit a return within ten (10) days from today.

On August 8, 2007, SI Meñez submitted a Return of Search Warrant 6 to the RTC manifesting that in the
morning of August 7, 2007, the operatives of the Special Task Force of the NBI implemented the said
search warrant in an orderly and peaceful manner in the presence of the occupants of the described
premises and that the seized items were properly inventoried in the Receipt/Inventory of Property
Seized. The items seized were the following:

1. Ten (10) units of Central Processing Units (CPUs);

2. Ten (10) units of monitors;
3. Ten (10) units of keyboard;
4. Ten (10) units of mouse; and
5. Ten (10) units of AVRs.

The RTC then issued an order granting the prayer of SI Meñez to keep the seized items in the NBI
evidence room and under his custody with the undertaking to make said confiscated items available
whenever the court would require them.
Aggrieved by the issuance of the said order, the named persons in the search warrant filed a Motion to
Quash Search Warrant and Return Seized Properties.7 In the said motion, petitioners cited the
following grounds:

A. Respondents do not have programmers making, designing, maintaining, editing, storing,

circulating, distributing, or selling said websites or the contents thereof;

B. Respondents do not have any website servers;

C. Respondents do not own the websites imputed to them, which are actually located outside
the Philippines, in foreign countries, and are owned by foreign companies in those countries;

D. The testimony of the witnesses presented by the NBI are contradicted by the facts of the
case as established by documentary evidence;

E. The NBI withheld verifiable information from the Honorable Court and took advantage of the
limited knowledge of courts in general in order to obtain the search warrant for their personal
intentions;

F. The NBI raided the wrong establishment; and

G. The element of publicity is absent.

On December 26, 2007, the RTC denied the motion8 stating, among others, that:

1.) It cannot be said that publicity is not present. The Phil-Pacific Outsourcing Services Corp., is
actually persuading its clients, thru its agents (call center agents), to log-on to the pornographic
sites listed in its web page. In that manner, Phil-Pacific Outsourcing Services Corporation is
advertising these pornographic web sites, and such advertisement is a form of publicity.

2.) Even if some of the listed items intended to be seized were not recovered from the place
where the search was made, it does not mean that there was no really crime being committed.
As in fact, pornographic materials were found in some of the computers which were seized.

3.) In the same way that the names listed in the Search Warrant were not arrested or not in the
premises subject of the search, it does not mean that there are no such persons existing nor
there is no crime being committed.

4.) As a rule, Search Warrant may be issued upon existence of probable cause. "Probable cause
for a search is defined as such fact and circumstances which would lead a reasonable discreet
and prudent man to believe that an offense has been committed and that the objects sought in
connection with the offense are in the place sought to be reached." Hence, in implementing a
Search Warrant, what matters most is the presence of the items ought to be seized in the place
to be searched, even in the absence of the authors of the crime committed.

5.) The Search Warrant was issued in accordance with Secs. 3 to 6, Rule 126 of the Revised
Rules of Court. Search Warrant may be quashed or invalidated if there is an impropriety in its
issuance or irregularity in its enforcement. Absent such impropriety or irregularity, quashal is
not warranted.
Undaunted, petitioners moved for the reconsideration of the said order on the following grounds: (a)
the trial court erred in holding that there was no impropriety or irregularity in the issuance of the
search warrant; (b) the trial court erred in holding that there was no irregularity in its enforcement;
and (c) the trial court erred in holding that publicity was present.

On February 19, 2008, petitioners requested the RTC to issue a subpoena duces tecum ad
testificandum to SI Meñez and the witnesses Isabel Cortez and Mark Anthony Sebastian directing them
to appear, bring the records evidencing publicity of pornographic materials and testify in the hearing
set on March 7, 2008.

Meanwhile, in a resolution dated February 21, 2008,9 the 3rd Assistant City Prosecutor recommended
that the complaint for violation of Article 20110 of the Revised Penal Code (RPC) against petitioners be
dismissed due to insufficiency of evidence and the same was approved by the City Prosecutor. Hence,
on May 6, 2008, petitioners filed a Supplemental Motion to Release Seized Properties 11 manifesting
that the complaint against them was dismissed, and that, for said reason, the State had no more use of
the seized properties.

On August 6, 2008, the RTC issued the assailed second order, 12 which denied the motion for
reconsideration filed by petitioners. The RTC, however, partially granted the prayer of petitioners.
Judge Alisuag wrote:

Be it noted that the proceedings held by this Court when it heard the Application for Search Warrant
by NBI Special Investigator Meñez is very much different [from] the case resolved by the Office of the
City Prosecutor. The case before the Office of the City Prosecutor, while the same [was] dismissed
cannot be the ground to release the seized properties subject of the Search Warrant issued by the
Court. When the Court issued the Search Warrant, indeed, it found probable cause in the issuance of
the same, which is the only reason wherein Search Warrant may be issued.

On the case heard by the Office of the City Prosecutor, the Resolution has its own ground and reason
to dismiss it.

x x x           x x x          x x x

That the subject of the Search Warrant which is now under the custody of the NBI [was] made subject
of the case and as well as the witnesses for that case which was resolved by the Office of the City
Prosecutor is of no moment.

WHEREFORE, the Motion for Reconsideration is Denied.

The Motion to Release Seized Properties is partially granted.

Accordingly therefore, let the computer sets be hereby returned to the respondents. The CPU and all
the rest of the softwares containing obscene materials which were seized during the implementation
of the valid Search Warrant are hereby retained in the possession of the National Bureau of
Investigation thru applicant Special Investigator Garry J. Meñez.

SO ORDERED.13
Not in conformity, petitioners sought relief with the CA via a special civil action for certiorari alleging
that Judge Alisuag committed grave abuse of discretion amounting to lack or excess of jurisdiction
when she partially granted the motion of petitioners for the release of the seized properties such that
only the monitor sets were released but the CPUs and the softwares were retained under the custody
of the NBI.

The CA affirmed with modification the assailed August 6, 2008 Order of the RTC. Thus:

WHEREFORE, in view of all the foregoing premises, the assailed order issued by the respondent Judge
on August 6, 2008 is AFFIRMED with the MODIFICATION that the CPUs and softwares which were
ordered to be retained by the NBI through SI Meñez shall be released in favor of the petitioners
herein with the condition that the hard disk be removed from the CPUs and be destroyed. If the
softwares are determined to be unlicensed or pirated copies, they shall be destroyed in the manner
allowed by law.

SO ORDERED.14 [Underscoring supplied]

The CA explained:

1.) It is undisputed that the seized computer units contained obscene materials or pornographic files.
The hard disk technically contains them but these files are susceptible to modification or limitation of
status; thus, they can be erased or permanently deleted from the storage disk. In this peculiar case, the
obscene materials or pornographic files are stored in such a way that they can be erased or deleted by
formatting the hard disk without the necessity of destroying or burning the disk that contains them. By
structure, the hard drive contains the hard disk and the hard drive can be found in the CPU. These
obscene materials or pornographic files are only stored files of the CPU and do not permanently form
part of the CPU which would call for the destruction or much less retention of the same.

2.) Notwithstanding, with the advancement of technology, there are means developed to retrieve files
from a formatted hard disk, thus, the removal of the hard disk from the CPU is the reliable manner to
permanently remove the obscene or pornographic files. With regard to the softwares confiscated and
also ordered to be retained by the NBI, nothing in the evidence presented by the respondents shows
that these softwares are pornographic tools or program customized just for creating obscene
materials. There are softwares which may be used for licit activities like photograph enhancing or video
editing and there are thousands of softwares that have legitimate uses. It would be different if the
confiscated softwares are pirated softwares contained in compact discs or the pre-installed softwares
have no license or not registered; then, the NBI may retain them. In the particular circumstances of this
case, the return of the CPUs and softwares would better serve the purposes of justice and expediency.

3.) The responsibilities of the magistrate do not end with the granting of the warrant but extend to the
custody of the articles seized. In exercising custody over these articles, the property rights of the owner
should be balanced with the social need to preserve evidence which will be used in the prosecution of
a case. In the instant case, the complaint had been dismissed by the prosecutor for insufficiency of
evidence. Thus, the court had been left with the custody of highly depreciable merchandise. More
importantly, these highly depreciable articles would have been superfluous to be retained for the
following reasons: (1) it was found by the prosecutor that there was no sufficient evidence to prove
that the petitioners violated Article 201 of the Revised Penal Code in relation to R.A. 8792 (Electronic
Commerce Act); (2) the obscene materials or pornographic files can be deleted by formatting or
removing the hard disk from the CPUs without destroying the entire CPU; and (3) the petitioners did
not dispute that the files found in the seized items were obscene or pornographic but the said devices
are not obscene or illegal per se. Hence, where the purpose of presenting as evidence the articles
seized is no longer served, there is no justification for severely curtailing the rights of a person to his
property.

Petitioners filed a motion for reconsideration but it was denied in a resolution dated January 25,
2010.15

Undeterred, petitioners filed a petition for certiorari16 with this Court anchored on the following:

GROUNDS:

6.1. The decision by the Court of Appeals affirming the decision of the respondent trial judge
constitutes grave abuse of discretion amounting to lack or excess of jurisdiction, as it violates the
constitutional proscription against confiscation of property without due process of law, and there is
no appeal nor any plain, speedy or adequate remedy in the ordinary course of law.

6.2. Since the case involves pornography accessible in the internet, this is a case of first impression
and current importance.17 [Emphases ours]

ISSUE

Whether or not there was grave abuse of discretion on the part of the CA in ordering the removal and
destruction of the hard disks containing the pornographic and obscene materials.

THE COURT’S RULING

Petitioners argue that there is no evidence showing that they were the source of pornographic
printouts presented by the NBI to the RTC or to the City Prosecutor of Manila in I.S. No. 07H-13530.
Since the hard disks in their computers are not illegal per se unlike shabu, opium, counterfeit money,
or pornographic magazines, said merchandise are lawful as they are being used in the ordinary course
of business, the destruction of which would violate not only procedural, but substantive due process. 18

The argument of petitioners is totally misplaced considering the undisputed fact that the seized
computer units contained obscene materials or pornographic files. Had it been otherwise, then,
petitioners’ argument would have been meritorious as there could be no basis for destroying the hard
disks of petitioners’ computer units.

While it may be true that the criminal case for violation of Article 201 of the Revised Penal Code was
dismissed as there was no concrete and strong evidence pointing to them as the direct source of the
subject pornographic materials, it cannot be used as basis to recover the confiscated hard disks. At the
risk of being repetitious, it appears undisputed that the seized computer units belonging to them
contained obscene materials or pornographic files. Clearly, petitioners had no legitimate expectation of
protection of their supposed property rights.

The CA is correct in stating that the removal of the hard disk from the CPU is a reliable way of
permanently removing the obscene or pornographic files.1âwphi1 Significantly, Presidential Decree
(PD) No. 969 is explicit. Thus:
Sec. 2. Disposition of the Prohibited Articles. The disposition of the literature, films, prints, engravings,
sculptures, paintings, or other materials involved in the violation referred to in Section 1 hereof shall
be governed by the following rules:

a. Upon conviction of the offender, to be forfeited in favor of the government to be destroyed.

b. Where the criminal case against any violator of this decree results in an acquittal, the
obscene/immoral literature, films, prints, engravings, sculpture, paintings or other materials
and other articles involved in the violation referred to in Section 1 hereof shall nevertheless
be forfeited in favor of the government to be destroyed, after forfeiture proceedings
conducted by the Chief of Constabulary. [Emphasis and underscoring supplied]

Clearly, the provision directs the forfeiture of all materials involved in violation of the subject law. The
CA was lenient with petitioners in modifying the ruling of the RTC in that the CPUs and softwares,
which were initially ordered to be retained by the NBI, should be released in their favor with only the
hard disk removed from the CPUs and destroyed. If the softwares are determined to be violative of
Article 201 of the RPC, unlicensed or pirated, they should also be forfeited and destroyed in the
manner allowed by law. The law is clear. Only licensed softwares that can be used for legitimate
purposes should be returned to petitioners.

To stress, P.D. No. 969 mandates the forfeiture and destruction of pornographic materials involved in
the violation of Article 201 of the Revised Penal Code, even if the accused was acquitted.1awp++i1

Taking into account all the circumstances of this case, the Court holds that the destruction of the hard
disks and the softwares used in any way in the violation of the subject law addresses the purpose of
minimizing if not totally eradicating pornography. This will serve as a lesson for those engaged in any
way in the proliferation of pornography or obscenity in this country. The Court is not unmindful of the
concerns of petitioners but their supposed property rights must be balanced with the welfare of the
public in general.

WHEREFORE, the petition is DENIED. The August 19, 2009 Court of Appeals Decision is AFFIRMED WITH
MODIFICATION in that only the CPUs and those softwares determined to be licensed and used for
legitimate purposes shall be returned in favor of the petitioners. The hard disk drives containing the
pornographic materials and the softwares used in any way in violation of Article 201 of the Revised
Penal Code, unlicensed or pirated shall be forfeited in favor of the Government and destroyed.

SO ORDERED.
 SECOND DIVISION

[G.R. NO. 163858 : June 28, 2005]

UNITED LABORATORIES, INC., Petitioner, v. ERNESTO ISIP and/or SHALIMAR PHILIPPINES and/or

OCCUPANTS, Shalimar Building, No. 1571, Aragon Street, Sta. Cruz, Manila, Respondents.

DECISION

CALLEJO, SR., J.:

Rolando H. Besarra, Special Investigator III of the National Bureau of Investigation (NBI), filed an
application, in the Regional Trial Court (RTC) of Manila, for the issuance of a search warrant concerning
the first and second floors of the Shalimar Building, located at No. 1571, Aragon Street (formerly No.
1524, Lacson Avenue, Sta. Cruz, Manila) occupied and/or used by Shalimar Philippines,
owned/operated by Ernesto Isip; and for the seizure of the following for violation of Section 4(a), in
relation to Section 8, of Republic Act (R.A.) No. 8203:

A. Finished or unfinished products of UNITED LABORATORIES (UNILAB), particularly REVICON

multivitamins;

b. Sundry items such as tags, labels, boxes, packages, wrappers, receptacles, advertisements and other
paraphernalia used in the offering for sale, sale and/or distribution of counterfeit REVICON
multivitamins;

c. Sales invoices, delivery receipts, official receipts, ledgers, journals, purchase orders and all other
books of accounts and documents used in recording the manufacture and/or importation, distribution
and/or sales of counterfeit REVICON multivitamins.1

The application was docketed as People v. Ernesto Isip, et al., Respondents, Search Warrant Case No.
04-4916 and raffled to Branch 24 of the court. Appended thereto were the following:

(1) a sketch2 showing the location of the building to be searched; (2) the affidavit 3 of Charlie Rabe of
the Armadillo Protection and Security Agency hired by United Laboratories, Inc. (UNILAB), who
allegedly saw the manufacture, production and/or distribution of fake drug products such as Revicon
by Shalimar Philippines; (3) the letter-request of UNILAB, the duly licensed and exclusive manufacturer
and/or distributor of Revicon and Disudrin, for the monitoring of the unauthorized
production/manufacture of the said drugs and, if warranted, for their seizure; (4) the letter-
complaint4 of UNILAB issued through its Director of the Security and Safety Group; and (5) the joint
affidavit5 of NBI Agents Roberto Divinagracia and Rolando Besarra containing the following allegations:

2. When learned that an Asset was already placed by ARMADILLO PROTECTIVE AND SECURITY AGENCY
named CHARLIE RABE, who was renting a room since November 2003, at the said premises located at
No. 1571 Aragon St., Sta. Cruz, Manila. MR. RABE averred that the owner of the premises is a certain
MR. ERNESTO ISIP and that the said premises which is known as SHALIMAR PHILIPPINES, Shalimar
Building, are being used to manufacture counterfeit UNILAB products, particularly REVICON
multivitamins, which was already patented by UNILAB since 1985;

3. Upon verification of the report, we found out that the said premises is a six-story structure, with an
additional floor as a penthouse, and colored red-brown. It has a tight security arrangement wherein
non-residents are not allowed to enter or reconnoiter in the premises;

4. We also learned that its old address is No. 1524 Lacson Avenue, Sta. Cruz, Manila, and has a new
address as 1571 Aragon St., Sta. Cruz, Manila; and that the area of counterfeiting operations are the
first and second floors of Shalimar Building;

5. Since we cannot enter the premises, we instructed the Asset to take pictures of the area especially
the places wherein the clandestine manufacturing operations were being held. At a peril to his well-
being and security, the Asset was able to take photographs herein incorporated into this Search
Warrant Application.6

A representative from UNILAB, Michael Tome, testified during the hearing on the application for the
search warrant. After conducting the requisite searching questions, the court granted the application
and issued Search Warrant No. 04-4916 dated January 27, 2004, directing any police officer of the law
to conduct a search of the first and second floors of the Shalimar Building located at No. 1571, Aragon
Street, Sta. Cruz, Manila. The court also directed the police to seize the following items:

A. Finished or unfinished products of UNITED LABORATORIES (UNILAB), particularly REVICON

multivitamins;

b. Sundry items such as tags, labels, boxes, packages, wrappers, receptacles, advertisements and other
paraphernalia used in the offering for sale, sale and/or distribution of counterfeit REVICON
multivitamins;

c. Sales invoices, delivery receipts, official receipts, ledgers, journals, purchase orders and all other
books of accounts and documents used in recording the manufacture and/or importation, distribution
and/or sales of counterfeit REVICON multivitamins.7

The court also ordered the delivery of the seized items before it, together with a true inventory thereof
executed under oath.

The search warrant was implemented at 4:30 p.m. on January 27, 2004 by NBI agents Besarra and
Divinagracia, in coordination with UNILAB employees. No fake Revicon multivitamins were found;
instead, there were sealed boxes at the first and second floors of the Shalimar Building which, when
opened by the NBI agents in the presence of respondent Isip, contained the following:

QUANTITY/UNIT DESCRIPTION
792 Bottles Disudrin 60 ml.
30 Boxes (100 pieces each) Inoflox 200 mg.8

NBI Special Investigator Divinagracia submitted an inventory of the things seized in which he declared
that the search of the first and second floors of the Shalimar Building at No. 1571, Aragon Street, Sta.
Cruz, Manila, the premises described in the warrant, was done in an orderly and peaceful manner. He
also filed a Return of Search Warrant,9 alleging that no other articles/items other than those
mentioned in the warrant and inventory sheet were seized. The agent prayed that of the items seized,
ten boxes of Disudrin 60 ml., and at least one box of Inoflox be turned over to the custody of the
Bureau of Food and Drugs (BFAD) for examination.10 The court issued an order granting the motion, on
the condition that the turn over be made before the court, in the presence of a representative from
the respondents and the court.11

The respondents filed an "Urgent Motion to Quash the Search Warrant or to Suppress
Evidence."12 They contended that the implementing officers of the NBI conducted their search at the
first, second, third and fourth floors of the building at No. 1524-A, Lacson Avenue, Sta. Cruz, Manila,
where items in "open display" were allegedly found. They pointed out, however, that such premises
was different from the address described in the search warrant, the first and second floors of the
Shalimar Building located at No. 1571, Aragon Street, Sta. Cruz, Manila. The respondents, likewise,
asserted that the NBI officers seized Disudrin and Inoflox products which were not included in the list
of properties to be seized in the search warrant.

UNILAB, in collaboration with the NBI, opposed the motion, insisting that the search was limited to the
first and second floors of the Shalimar building located at the corner of Aragon Street and Lacson
Avenue, Sta. Cruz, Manila. They averred that, based on the sketch appended to the search warrant
application, Rabe's affidavit, as well as the joint affidavit of Besarra and Divinagracia, the building
where the search was conducted was located at No. 1571, Aragon Street corner Lacson Avenue, Sta.
Cruz, Manila. They pointed out that No. 1524 Lacson Avenue, Sta. Cruz, Manila was the old address,
and the new address was No. 1571, Aragon Street, Sta. Cruz, Manila. They maintained that the warrant
was not implemented in any other place.13

In reply, the respondents insisted that the items seized were different from those listed in the search
warrant. They also claimed that the seizure took place in the building located at No. 1524-A which was
not depicted in the sketch of the premises which the applicant submitted to the trial court. 14 In
accordance with the ruling of this Court in People v. Court of Appeals,15 the respondents served a copy
of their pleading on UNILAB.16

On March 11, 2004, the trial court issued an Order 17 granting the motion of the respondents, on the
ground that the things seized, namely, Disudrin and Inoflox, were not those described in the search
warrant. On March 16, 2004, the trial court issued an advisory 18 that the seized articles could no longer
be admitted in evidence against the respondents in any proceedings, as the search warrant had already
been quashed.

UNILAB, through the Ureta Law Office, filed a motion, in collaboration with the NBI agents, for the
reconsideration of the order, contending that the ground used by the court in quashing the warrant
was not that invoked by the respondents, and that the seizure of the items was justified by the plain
view doctrine. The respondents objected to the appearance of the counsel of UNILAB, contending that
the latter could not appear for the People of the Philippines. The respondents moved that the motion
for reconsideration of UNILAB be stricken off the record. Disputing the claims of UNILAB, they insisted
that the items seized were contained in boxes at the time of the seizure at No. 1524-A, Lacson Avenue
corner Aragon Street, Sta. Cruz, Manila, and were not apparently incriminating on plain view.
Moreover, the seized items were not those described and itemized in the search warrant application,
as well as the warrant issued by the court itself. The respondents emphasized that the Shalimar
Laboratories is authorized to manufacture galenical preparations of the following products:
Products:

- Povidone Iodine

- Chamomile Oil

- Salicylic Acid 10 g.

- Hydrogen Peroxide 3% Topical Solution

- Aceite de Alcamforado

- Aceite de Manzanilla19

In a manifestation and opposition, the respondents assailed the appearance of the counsel of UNILAB,
and insisted that it was not authorized to appear before the court under the Rules of Court, and to file
pleadings. They averred that the BFAD was the authorized government agency to file an application for
a search warrant.

In its counter-manifestation, UNILAB averred that it had the personality to file the motion for
reconsideration because it was the one which sought the filing of the application for a search warrant;
besides, it was not proscribed by Rule 126 of the Revised Rules of Criminal Procedure from
participating in the proceedings and filing pleadings. The only parties to the case were the NBI and
UNILAB and not the State or public prosecutor. UNILAB also argued that the offended party, or the
holder of a license to operate, may intervene through counsel under Section 16 of Rule 110, in relation
to Section 7(e), of the Rules of Criminal Procedure.

UNILAB prayed that an ocular inspection be conducted of the place searched by the NBI officers. 20 In
their rejoinder, the respondents manifested that an ocular inspection was the option to look forward
to.21 However, no such ocular inspection of the said premises was conducted.

In the meantime, the BFAD submitted to the court the result of its examination of the Disudrin and
Inoflox samples which the NBI officers seized from the Shalimar Building. On its examination of the
actual component of Inoflox, the BFAD declared that the substance failed the test. 22 The BFAD,
likewise, declared that the examined Disudrin syrup failed the test. 23 The BFAD had earlier issued the
following report:

PRODUCT NAME Manufacturer L.N. E.D. FINDINGS

1.Phenylpropanolamine Unilab 21021552 3-06 -Registered, however,
(Disudrin) label/physical
12.5 mg./5mL Syrup appearance does not
conform with the BFAD
approved label/
registered specifications.
2.Ofloxacin (Inoflox) Unilab 99017407 3-05 -Registered, however,
200 mg. tablet. label/physical
appearance does not
conform with the BFAD
 approved label/
registered
specifications.24

On May 28, 2004, the trial court issued an Order25 denying the motion for reconsideration filed by
UNILAB. The court declared that:

The Search Warrant is crystal clear: The seizing officers were only authorized to take possession of
"finished or unfinished products of United Laboratories (UNILAB), particularly REVICON Multivitamins,
and documents evidencing the counterfeit nature of said products. The Receipt/Inventory of Property
Seized pursuant to the warrant does not, however, include REVICON but other products. And whether
or not these seized products are imitations of UNILAB items is beside the point. No evidence was
shown nor any was given during the proceedings on the application for search warrant relative to the
seized products.

On this score alone, the search suffered from a fatal infirmity and, hence, cannot be sustained. 26

UNILAB, thus, filed the present Petition for Review on Certiorari under Rule 45 of the Rules of Court,
where the following issues are raised:

Whether or not the seized 792 bottles of Disudrin 60 ml. and 30 boxes of Inoflox 200 mg. are
INADMISSIBLE as evidence against the respondents because they constitute the "fruit of the poisonous
tree" or, CONVERSELY, whether or not the seizure of the same counterfeit drugs is justified and lawful
under the "plain view" doctrine and, hence, the same are legally admissible as evidence against the
respondents in any and all actions?27

The petitioner avers that it was deprived of its right to a day in court when the trial court quashed the
search warrant for a ground which was not raised by the respondents herein in their motion to quash
the warrant. As such, it argues that the trial court ignored the issue raised by the respondents. The
petitioner insists that by so doing, the RTC deprived it of its right to due process. The petitioner asserts
that the description in the search warrant of the products to be seized - "finished or unfinished
products of UNILAB" - is sufficient to include counterfeit drugs within the premises of the respondents
not covered by any license to operate from the BFAD, and/or not authorized or licensed to
manufacture, or repackage drugs produced or manufactured by UNILAB. Citing the ruling of this Court
in Padilla v. Court of Appeals,28 the petitioner asserts that the products seized were in plain view of the
officers; hence, may be seized by them. The petitioner posits that the respondents themselves
admitted that the seized articles were in open display; hence, the said articles were in plain view of the
implementing officers.

In their comment on the petition, the respondents aver that the petition should have been filed before
the Court of Appeals (CA) because factual questions are raised. They also assert that the petitioner has
no locus standi to file the petition involving the validity and the implementation of the search warrant.
They argue that the petitioner merely assisted the NBI, the BFAD and the Department of Justice; hence,
it should have impleaded the said government agencies as parties-petitioners. The petition should have
been filed by the Office of the Solicitor General (OSG) in behalf of the NBI and/or the BFAD, because
under the 1987 Revised Administrative Code, the OSG is mandated to represent the government and
its officers charged in their official capacity in cases before the Supreme Court. The respondents further
assert that the trial court may consider issues not raised by the parties if such consideration would aid
the court in the just determination of the case.
The respondents, likewise, maintain that the raiding team slashed the sealed boxes so fast even before
respondent Isip could object. They argue that the seizure took place at No. 1524-A, Lacson Avenue, Sta.
Cruz, Manila covered by Transfer Certificate of Title (TCT) No. 220778, and not at No. 1571, Aragon
Street, Sta. Cruz, Manila covered by TCT No. 174412 as stated in the search warrant. They assert that
the ruling of the Court in People v. Court of Appeals29 is applicable in this case. They conclude that the
petitioner failed to prove the factual basis for the application of the plain view doctrine. 30

In reply, the petitioner asserts that it has standing and is, in fact, the real party-in-interest to defend
the validity of the search warrant issued by the RTC; after all, it was upon its instance that the
application for a search warrant was filed by the NBI, which the RTC granted. It asserts that it is not
proscribed under R.A. No. 8203 from filing a criminal complaint against the respondents and requesting
the NBI to file an application for a search warrant. The petitioner points out that the Rules of Criminal
Procedure does not specifically prohibit a private complainant from defending the validity of a search
warrant. Neither is the participation of a state prosecutor provided in Rule 126 of the said Rules. After
all, the petitioner insists, the proceedings for the application and issuance of a search warrant is not a
criminal action. The petitioner asserts that the place sought to be searched was sufficiently described
in the warrant for, after all, there is only one building on the two parcels of land described in two titles
where Shalimar Philippines is located, the place searched by the NBI officers. 31 It also asserts that the
building is located at the corner of Aragon Street and Lacson Avenue, Sta. Cruz, Manila. 32

The petitioner avers that the plain view doctrine is applicable in this case because the boxes were
found outside the door of the respondents' laboratory on the garage floor. The boxes aroused the
suspicion of the members of the raiding team - precisely because these were marked with the
distinctive UNILAB logos. The boxes in which the items were contained were themselves so designated
to replicate true and original UNILAB boxes for the same medicine. Thus, on the left hand corner of one
side of some of the boxes33 the letters "ABR" under the words "60 ml," appeared to describe the
condition/quality of the bottles inside (as it is with genuine UNILAB box of the true medicine of the
same brand). The petitioner pointed out that "ABR" is the acronym for "amber bottle round" describing
the bottles in which the true and original Disudrin (for children) is contained.

The petitioner points out that the same boxes also had their own "license plates" which were instituted
as among its internal control/countermeasures. The license plates indicate that the items within are,
supposedly, "Disudrin." The NBI officers had reasonable ground to believe that all the boxes have one
and the same data appearing on their supposedly distinctive license plates. The petitioner insists that
although some of the boxes marked with the distinctive UNILAB logo were, indeed, sealed, the tape or
seal was also a copy of the original because these, too, were marked with the distinctive UNILAB logo.
The petitioner appended to its pleading pictures of the Shalimar building and the rooms searched
showing respondent Isip;34 the boxes seized by the police officers containing Disudrin syrup;35 and the
boxes containing Inoflox and its contents.36

The issues for resolution are the following: (1) whether the petitioner is the proper party to file the
petition at bench; (2) whether it was proper for the petitioner to file the present petition in this Court
under Rule 45 of the Rules of Court; and (3) whether the search conducted by the NBI officers of the
first and second floors of the Shalimar building and the seizure of the sealed boxes which, when
opened, contained Disudrin syrup and Inoflox, were valid.

On the first issue, we agree with the petitioner's contention that a search warrant proceeding is, in no
sense, a criminal action37 or the commencement of a prosecution.38 The proceeding is not one against
any person, but is solely for the discovery and to get possession of personal property. It is a special and
peculiar remedy, drastic in nature, and made necessary because of public necessity. It resembles in
some respect with what is commonly known as John Doe proceedings. 39 While an application for a
search warrant is entitled like a criminal action, it does not make it such an action.

A search warrant is a legal process which has been likened to a writ of discovery employed by the State
to procure relevant evidence of crime.40 It is in the nature of a criminal process, restricted to cases of
public prosecutions.41 A search warrant is a police weapon, issued under the police power. A search
warrant must issue in the name of the State, namely, the People of the Philippines. 42

A search warrant has no relation to a civil process. It is not a process for adjudicating civil rights or
maintaining mere private rights.43 It concerns the public at large as distinguished from the ordinary civil
action involving the rights of private persons.44 It may only be applied for in the furtherance of public
prosecution.45

However, a private individual or a private corporation complaining to the NBI or to a government

agency charged with the enforcement of special penal laws, such as the BFAD, may appear, participate
and file pleadings in the search warrant proceedings to maintain, inter alia, the validity of the search
warrant issued by the court and the admissibility of the properties seized in anticipation of a criminal
case to be filed; such private party may do so in collaboration with the NBI or such government agency.
The party may file an opposition to a motion to quash the search warrant issued by the court, or a
motion for the reconsideration of the court order granting such motion to quash. 46

In this case, UNILAB, in collaboration with the NBI, opposed the respondents' motion to quash the
search warrant. The respondents served copies of their reply and opposition/comment to UNILAB,
through Modesto Alejandro, Jr.47 The court a quo allowed the appearance of UNILAB and accepted the
pleadings filed by it and its counsel.

The general rule is that the proper party to file a petition in the CA or Supreme Court to assail any
adverse order of the RTC in the search warrant proceedings is the People of the Philippines, through
the OSG. However, in Columbia Pictures Entertainment, Inc. v. Court of Appeals,48 the Court allowed a
private corporation (the complainant in the RTC) to file a Petition for Certiorari, and considered the
petition as one filed by the OSG. The Court in the said case even held that the petitioners therein could
argue its case in lieu of the OSG:

From the records, it is clear that, as complainants, petitioners were involved in the proceedings which
led to the issuance of Search Warrant No. 23. In People v. Nano, the Court declared that while the
general rule is that it is only the Solicitor General who is authorized to bring or defend actions on
behalf of the People or the Republic of the Philippines once the case is brought before this Court or the
Court of Appeals, if there appears to be grave error committed by the judge or a lack of due process,
the petition will be deemed filed by the private complainants therein as if it were filed by the Solicitor
General. In line with this ruling, the Court gives this petition due course and will allow petitioners to
argue their case against the questioned order in lieu of the Solicitor General. 49

The general rule is that a party is mandated to follow the hierarchy of courts. However, in exceptional
cases, the Court, for compelling reasons or if warranted by the nature of the issues raised, may take
cognizance of petitions filed directly before it.50 In this case, the Court has opted to take cognizance of
the petition, considering the nature of the issues raised by the parties.
The Court does not agree with the petitioner's contention that the issue of whether the Disudrin and
Inoflox products were lawfully seized was never raised in the pleadings of the respondents in the
court a quo. Truly, the respondents failed to raise the issue in their motion to quash the search
warrant; in their reply, however, they averred that the seized items were not included in the subject
warrant and, therefore, were not lawfully seized by the raiding team. They also averred that the said
articles were not illegal per se, like explosives and shabu, as to justify their seizure in the course of
unlawful search.51 In their Opposition/Comment filed on March 15, 2004, the respondents even alleged
the following:

The jurisdiction of this Honorable Court is limited to the determination of whether there is a legal basis
to quash the search warrant and/or to suppress the seized articles in evidence. Since the articles
allegedly seized during the implementation of the search warrant - Disudrin and Inoflux products -
were not included in the search warrant, they were, therefore, not lawfully seized by the raiding team;
they are not illegal per se, as it were, like an arms cache, subversive materials or shabu as to justify
their seizure in the course of a lawful search, or being in plain view or some such. No need whatever
for some public assay.

The NBI manifestation is a glaring admission that it cannot tell without proper examination or assay
that the Disudrin and Inoflox samples allegedly seized from respondent's place were counterfeit. All
the relevant presumptions are in favor of legality.52

The Court, therefore, finds no factual basis for the contention of the petitioner that the respondents
never raised in the court a quo the issue of whether the seizure of the Disudrin and Inoflox products
was valid.

In any event, the petitioner filed a motion for the reconsideration of the March 11, 2004 Order of the
court a quo on the following claims:

2.01 The Honorable Court ERRED in ruling on a non-issue or the issue as to the alleged failure to
particularly describe in the search warrant the items to be seized but upon which NO challenge was
then existing and/or NO controversy is raised;

2.02 The Honorable Court ERRED in its ruling that "finished or unfinished products of UNILAB" cannot
stand the test of a particular description for which it then reasons that the search is, supposedly
unreasonable; and,

2.03 The Honorable Court ERRED in finding that the evidence seized is lawfully inadmissible against
respondents.53

The court a quo considered the motion of the petitioner and the issue raised by it before finally
resolving to deny the same. It cannot thus be gainsaid that the petitioner was denied its right to due
process.

On the validity of the seizure of the sealed boxes and its contents of Disudrin and Inoflox, the Court,
likewise, rejects the contention of the petitioner.
A search warrant, to be valid, must particularly describe the place to be searched and the things to be
seized. The officers of the law are to seize only those things particularly described in the search
warrant. A search warrant is not a sweeping authority empowering a raiding party to undertake a
fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to a crime.
The search is limited in scope so as not to be general or explanatory. Nothing is left to the discretion of
the officer executing the warrant.54

Objects, articles or papers not described in the warrant but on plain view of the executing officer may
be seized by him. However, the seizure by the officer of objects/articles/papers not described in the
warrant cannot be presumed as plain view. The State must adduce evidence, testimonial or
documentary, to prove the confluence of the essential requirements for the doctrine to apply, namely:
(a) the executing law enforcement officer has a prior justification for an initial intrusion or otherwise
properly in a position from which he can view a particular order; (b) the officer must discover
incriminating evidence inadvertently; and (c) it must be immediately apparent to the police that the
items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. 55

The doctrine is not an exception to the warrant. It merely serves to supplement the prior justification -
whether it be a warrant for another object, hot pursuit, search as an incident to a lawful arrest or some
other legitimate reason for being present, unconnected with a search directed against the accused. The
doctrine may not be used to extend a general exploratory search from one object to another until
something incriminating at last emerges. It is a recognition of the fact that when executing police
officers comes across immediately incriminating evidence not covered by the warrant, they should not
be required to close their eyes to it, regardless of whether it is evidence of the crime they are
investigating or evidence of some other crime. It would be needless to require the police to obtain
another warrant.56 Under the doctrine, there is no invasion of a legitimate expectation of privacy and
there is no search within the meaning of the Constitution.

The immediate requirement means that the executing officer can, at the time of discovery of the
object or the facts therein available to him, determine probable cause of the object's incriminating
evidence.57 In other words, to be immediate, probable cause must be the direct result of the officer's
instantaneous sensory perception of the object.58 The object is apparent if the executing officer had
probable cause to connect the object to criminal activity. The incriminating nature of the evidence
becomes apparent in the course of the search, without the benefit of any unlawful search or seizure. It
must be apparent at the moment of seizure.59

The requirement of inadvertence, on the other hand, means that the officer must not have known in
advance of the location of the evidence and intend to seize it.60 Discovery is not anticipated.61

The immediately apparent test does not require an unduly high degree of certainty as to the
incriminating character of evidence. It requires merely that the seizure be presumptively reasonable
assuming that there is probable cause to associate the property with criminal activity; that a nexus
exists between a viewed object and criminal activity.62

Incriminating means the furnishing of evidence as proof of circumstances tending to prove the guilt of
a person.63

Indeed, probable cause is a flexible, common sense standard. It merely requires that the facts available
to the officer would warrant a man of reasonable caution and belief that certain items may be
contrabanded or stolen property or useful as evidence of a crime. It does not require proof that such
belief be correct or more likely than true. A practical, non-traditional probability that incriminating
evidence is involved is all that is required. The evidence thus collected must be seen and verified as
understood by those experienced in the field of law enforcement.64

In this case, Disudrin and/or Inoflox were not listed in the search warrant issued by the court a quo as
among the properties to be seized by the NBI agents. The warrant specifically authorized the officers
only to seize "counterfeit Revicon multivitamins, finished or unfinished, and the documents used in
recording, manufacture and/or importation, distribution and/or sale, or the offering for sale, sale
and/or distribution of the said vitamins." The implementing officers failed to find any counterfeit
Revicon multivitamins, and instead seized sealed boxes which, when opened at the place where they
were found, turned out to contain Inoflox and Disudrin.

It was thus incumbent on the NBI agents and the petitioner to prove their claim that the items were
seized based on the plain view doctrine. It is not enough to prove that the sealed boxes were in the
plain view of the NBI agents; evidence should have been adduced to prove the existence of all the
essential requirements for the application of the doctrine during the hearing of the respondents'
motion to quash, or at the very least, during the hearing of the NBI and the petitioner's motion for
reconsideration on April 16, 2004. The immediately apparent aspect, after all, is central to the plain
view exception relied upon by the petitioner and the NBI. There is no showing that the NBI and the
petitioner even attempted to adduce such evidence. In fact, the petitioner and the NBI failed to
present any of the NBI agents who executed the warrant, or any of the petitioner's representative who
was present at the time of the enforcement of the warrant to prove that the enforcing officers
discovered the sealed boxes inadvertently, and that such boxes and their contents were incriminating
and immediately apparent. It must be stressed that only the NBI agent/agents who enforced the
warrant had personal knowledge whether the sealed boxes and their contents thereof were
incriminating and that they were immediately apparent.65 There is even no showing that the NBI agents
knew the contents of the sealed boxes before they were opened.

In sum then, the Court finds and so hold that the petitioner and the NBI failed to prove the essential
requirements for the application of the plain view doctrine.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The assailed orders of the
Regional Trial Court are AFFIRMED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. Nos. 212140-41               January 21, 2015

SENATOR JINGGOY EJERCITO ESTRADA, Petitioner,

vs.
OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, Office of the Ombudsman, NATIONAL
BUREAU OF INVESTIGATION and ATTY. LEVITO D. BALIGOD, Respondents.
DECISION
CARPIO, J.:

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-
examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court
expressly provides that the respondent shall only have the right to submit a counter-affidavit, to
examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to
propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be
present but without the right to examine or crossexamine.

- Paderanga v. Drilon1

This case is a Petition for Certiorari2 with prayer for (1) the issuance of a temporary restraining order
and/or Writ of Preliminary Injunction enjoining respondents Office of the Ombudsman (Ombudsman),
Field Investigation Office (FIO) of the Ombudsman, National Bureau of Investigation (NBI), and Atty.
Levito D. Baligod (Atty. Baligod) (collectively, respondents), from conducting further proceedings in
OMB-CC-13-03013 and OMB-C-C-13-0397 until the present Petition has been resolved with finality;
and (2) this Court’s declaration that petitioner Senator Jinggoy Ejercito Estrada (Sen. Estrada)was
denied due process of law, and that the Order of the Ombudsman dated 27 March 2014 and the
proceedings in OMB-C-C-13-03013 and OMB-C-C-13-0397 subsequent to and affected by the issuance
of the challenged 27 March 2014 Order are void.

OMB-C-C-13-0313,3 entitled National Bureau of Investigation and Atty. Levito D. Baligod v. Jose

"Jinggoy" P. Ejercito Estrada, et al.,refers to the complaint for Plunder as defined under Republic Act
(RA) No. 7080, while OMB-C-C-13-0397,4 entitled Field Investigation Office, Office of the Ombudsman v.
Jose "Jinggoy" P. Ejercito-Estrada, et al., refers to the complaint for Plunder as defined underRA No.
7080 and for violation of Section 3(e) of RA No. 3019 (Anti-Graft and Corrupt Practices Act).

The Facts

On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-C-
C-13-0313, filed by the NBI and Atty. Baligod, which prayed, among others, that criminal proceedings
for Plunder as defined in RA No. 7080 be conducted against Sen. Estrada. Sen. Estrada filed his counter-
affidavit inOMB-C-C-13-0313 on 9 January 2014.

On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-C-C-
13-0397, filed by the FIO of the Ombudsman, which prayed, among others, that criminal proceedings
for Plunder, as defined in RA No. 7080, and for violation of Section 3(e) of RA No. 3019, be conducted
against Sen. Estrada. Sen. Estrada filed his counter affidavit in OMB-C-C-13-0397 on 16 January 2014.

Eighteen of Sen. Estrada’s co-respondents in the two complaints filed their counter-affidavits between
9 December 2013 and 14 March 2014.5
On 20 March 2014, Sen. Estrada filed his Request to be Furnished with Copies of Counter-Affidavits of
the Other Respondents, Affidavits of New Witnesses and Other Filings (Request) in OMB-C-C-13-0313.
In his Request, Sen. Estrada asked for copies of the following documents:

(a) Affidavit of [co-respondent] Ruby Tuason (Tuason);

(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);
(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);
(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);
(e) Consolidated Reply of complainant NBI, if one had been filed; and
(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or
additional witnesses for the Complainants.6

Sen. Estrada’s request was made "[p]ursuant to the right of a respondent ‘to examine the evidence
submitted by the complainant which he may not have been furnished’ (Section 3[b], Rule 112 of the
Rules of Court) and to ‘have access to the evidence on record’ (Section 4[c], Rule II of the Rules of
Procedure of the Office of the Ombudsman)."7

On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-0313. The pertinent
portions of the assailed Order read:

This Office finds however finds [sic] that the foregoing provisions [pertaining to Section 3[b], Rule 112
of the Rules of Court and Section 4[c], Rule II of the Rules of Procedure of the Office of the
Ombudsman] do not entitle respondent [Sen. Estrada]to be furnished all the filings of the respondents.

Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:

(a) The complaintshall state the address of the respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well as other supporting documents to
establish probable cause …

x x x           x x x          x x x

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter affidavit and that of his
witnesses and other supporting documents relied upon for his defense. The counter affidavits
shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with
copies thereof furnished by him to the complainant.

Further to quote the rule in furnishing copies of affidavits to parties under the Rules of Procedure of
the Office of the Ombudsman [Section 4 of Rule II of Administrative Order No. 07 issued on April 10,
1990]:

a) If the complaint is not under oath or is based only on official reports, the investigating officer
shall require the complainant or supporting witnesses to execute affidavits to substantiate the
complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the
respondents to submit, within ten (10) days from receipt thereof, his counter-affidavits and
 controverting evidence with proof of service thereof on the complainant. The complainant may
file reply affidavits within ten (10) days after service of the counter-affidavits.

It can be gleaned from these aforecited provisions that this Office is required to furnish [Sen. Estrada] a
copy of the Complaint and its supporting affidavits and documents; and this Office complied with this
requirement when it furnished [Sen. Estrada] with the foregoing documents attached to the Orders to
File Counter-Affidavit dated 19 November 2013 and 25 November 2013.

It is to be noted that there is noprovision under this Office’s Rules of Procedure which entitles
respondent to be furnished all the filings by the other parties, e.g. the respondents. Ruby Tuason,
Dennis Cunanan, Gondelina G. Amata and Mario L. Relampagos themselves are all respondents in
these cases. Under the Rules of Court as well as the Rules of Procedure of the Office of the
Ombudsman, the respondents are only required to furnish their counter-affidavits and controverting
evidence to the complainant, and not to the other respondents.

To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary investigation
depend on the rights granted to him by law and these cannot be based on whatever rights he believes
[that] he is entitled to or those that may be derived from the phrase "due process of law." Thus, this
Office cannot grant his motion to be furnished with copies of all the filings by the other parties.
Nevertheless, he should be furnished a copy of the Reply of complainant NBI as he is entitled thereto
under the rules; however, as of this date, no Reply has been filed by complainant NBI.

WHEREFORE, respondent [Sen.] Estrada’s Request to be Furnished with Copies of Counter-Affidavits of

the Other Respondents, Affidavits of New Witnesses and Other Filingsis DENIED. He is nevertheless
entitled to be furnished a copy of the Reply if complainant opts to file such pleading. 8 (Emphases in the
original)

On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a Joint

Resolution9 which found probable cause to indict Sen. Estrada and his co-respondents with one count
of plunder and 11 counts of violation of Section 3(e) of RA No. 3019. Sen. Estrada filed a Motion for
Reconsideration (of the Joint Resolution dated 28 March 2014) dated 7 April 2014. Sen. Estrada prayed
for the issuance of a new resolution dismissing the charges against him. Without filing a Motion for
Reconsideration of the Ombudsman’s 27 March 2014 Order denying his Request, Sen. Estrada filed the
present Petition for Certiorari under Rule 65 and sought to annul and set aside the 27 March 2014
Order.

THE ARGUMENTS

Sen. Estrada raised the following grounds in his Petition:

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED ORDER DATED 27 MARCH 2014,
ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND VIOLATED SEN. ESTRADA'S CONSTITUTIONAL
RIGHT TO DUE PROCESS OF LAW.10 Sen. Estrada also claimed that under the circumstances, he has "no
appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, except through
this Petition."11 Sen. Estrada applied for the issuance of a temporary restraining order and/or writ of
preliminary injunction to restrain public respondents from conducting further proceedings in OMB-C-C-
13-0313 and OMB-C-C-13-0397. Finally, Sen. Estrada asked for a judgment declaring that (a) he has
been denied due process of law, and as a consequence thereof, (b) the Order dated 27 March 2014, as
well as the proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 subsequent to and affected bythe
issuance of the 27 March 2014 Order, are void. 12

On the same date, 7 May 2014, the Ombudsman issued in OMBC-C-13-0313 and OMB-C-C-13-0397 a
Joint Order furnishing Sen. Estrada with the counter-affidavits of Tuason, Cunanan, Amata,
Relampagos, Francisco Figura, Gregoria Buenaventura, and Alexis Sevidal, and directing him to
comment thereon within a non-extendible period of five days fromreceipt of the order.

On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend proceedings in OMB-
C-C-13-0313 and OMB-C-C-13-0397 because the denial of his Request to be furnished copies of
counter-affidavits of his co-respondents deprived him of his right to procedural due process, and he
has filed the present Petition before thisCourt. The Ombudsman denied Sen. Estrada’s motion to
suspend in an Order dated 15 May 2014. Sen. Estrada filed a motion for reconsideration of the Order
dated 15 May 2014 but his motion was denied in an Order dated 3 June 2014.

As of 2 June 2014,the date of filing of the Ombudsman’s Comment to the present Petition, Sen. Estrada
had not filed a comment on the counter-affidavits furnished to him. On 4 June 2014, the Ombudsman
issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 denying, among other motions filed by
the other respondents, Sen. Estrada’s motion for reconsideration dated 7 April 2014. The pertinent
portion of the 4 June 2014 Joint Order stated:

While it is true that Senator Estrada’s request for copies of Tuason, Cunanan, Amata, Relampagos,
Figura, Buenaventura and Sevidal’s affidavits was denied by Order dated 27 March 2014 and before the
promulgation of the assailed Joint Resolution, this Office thereafter reevaluated the request and
granted it byOrder dated 7 May 2014 granting his request. Copies of the requested counter-affidavits
were appended to the copy of the Order dated 7 May 2014 transmitted to Senator Estrada through
counsel.

This Office, in fact, held in abeyance the disposition of the motions for reconsideration in this
proceeding in light of its grant to Senator Estrada a period of five days from receipt of the 7 May 2014
Order to formally respond to the above-named co-respondents’ claims.

In view of the foregoing, this Office fails to see how Senator Estrada was deprived of his right to
procedural due process.13 (Emphasis supplied)

On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public respondents), through the
Officeof the Solicitor General, filed their Comment to the present Petition. The public respondents
argued that:

I. PETITIONER [SEN. ESTRADA] WAS NOTDENIED DUE PROCESS OF LAW.

II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.

A. LITIS PENDENTIA EXISTS IN THIS CASE.

B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY

COURSE OF LAW.
 III. PETITIONER IS NOTENTITLED TO A WRIT OF PRELIMINARY INJUNCTION AND/OR TEMPORARY
RESTRAINING ORDER.14

On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod stated that Sen.
Estrada’s resort to a Petition for Certiorari under Rule 65 is improper. Sen. Estrada should have either
filed a motion for reconsideration of the 27 March 2014 Order or incorporated the alleged irregularity
in his motion for reconsideration of the 28 March 2014 Joint Resolution. There was also no violation of
Sen. Estrada’s right to due process because there is no rule which mandates that a respondent such as
Sen. Estrada be furnished with copies of the submissions of his corespondents.

On 16 June 2014, Sen. Estrada filed his Reply to the public respondents’ Comment. Sen. Estrada
insisted that he was denied due process. Although Sen. Estrada received copies of the counter-
affidavits of Cunanan, Amata, Relampagos, Buenaventura, Figura, Sevidal, as well as one of Tuason’s
counter-affidavits, heclaimed that he was not given the following documents:

a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;

b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;

c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;

d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;

e) Counter-Affidavit of VictorRoman Cojamco Cacal dated 11 December 2013 (to the FIO
Complaint);

f) Counter-Affidavit of VictorRoman Cojamco Cacal dated 22 January 2014 (to the NBI
Complaint);

g) Two (2) counter-affidavits of Ma. Julie A. VillaralvoJohnson both dated 14 March 2014;

h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;

i) Counter-affidavit of Maria Ninez P. Guañizo dated 28 January 2014;

j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013; and

k) Counter-affidavit of Francisco B. Figura dated 08 January 2014. Sen. Estrada argues that the
Petition isnot rendered moot by the subsequent issuance of the 7 May 2014 Joint Order
because there is a recurring violation of his right to due process. Sen. Estrada also insists that
there is no forum shopping as the present Petition arose from an incident in the main
proceeding, and that he has no other plain, speedy, and adequate remedy in the ordinary
course of law. Finally, Sen. Estrada reiterates his application for the issuance of a temporary
restraining order and/or writ of preliminary injunction to restrain public respondents from
conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.

This Court’s Ruling

Considering the facts narrated above, the Ombudsman’s denial in its 27 March 2014 Order of Sen.
Estrada’s Request did not constitute grave abuse of discretion. Indeed, the denial did not violate Sen.
Estrada’s constitutional right to due process.

First. There is no law or rule which requires the Ombudsman to furnish a respondent with copies of the
counter-affidavits of his co-respondents.

We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal Procedure, as well as
Rule II of Administrative Order No. 7, Rules of Procedure of the Office of the Ombudsman, for ready
reference.

From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation

Section 3. Procedure. — The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well as other supporting documents to
establish probable cause. They shall be in such number of copies as there are respondents, plus
two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of who must certify thathe personally examined the
affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either
dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant
which he may not have been furnished and to copy them at his expense. If the evidence is
voluminous, the complainant may be required to specify those which he intends to present
against the respondent, and these shall be made available for examination or copying by the
respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for examination,
copying, or photographing at the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter-affidavit and that of his
witnesses and other supporting documents relied upon for his defense. The counter-affidavits
shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with
copies thereof furnished by him to the complainant. The respondent shall not be allowed to file
a motion to dismiss in lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-
affidavits within the ten (10) day period, the investigating officer shall resolve the complaint
based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a
party ora witness. The parties can be present at the hearing but without the right to examine or
 cross-examine. They may, however, submit to the investigating officer questions which may be
asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits and
other documents or from the expiration of the period for their submission. It shall be
terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether
or not there is sufficient ground to hold the respondent for trial. Section 4. Resolution of
investigating prosecutor and its review.— If the investigating prosecutor finds cause to hold the
respondent for trial, he shall prepare the resolution and information. He shall certify under oath
in the information that he, or as shown by the record, an authorized officer, has personally
examined the complainant and his witnesses; that there is reasonable ground to believe that a
crime has been committed and that the accused is probably guilty thereof; that the accused
was informed of the complaint and of the evidence submitted against him; and that he was
given an opportunity to submit controverting evidence. Otherwise, he shall recommend the
dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial
or city prosecutor or chief state prosecutor, or to the Ombudsman orhis deputy in cases of
offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall
act on the resolution within ten (10) days from their receipt thereof and shall immediately
inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior
written authority or approval of the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file
the information against the respondent, or direct any other assistant prosecutor or state prosecutor to
do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu
proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor
or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding
information without conducting another preliminary investigation, or to dismiss or move for dismissal
of the complaint or information with notice to the parties. The same rule shall apply in preliminary
investigations conducted by the officers of the Office of the Ombudsman. From the Rules of Procedure
of the Office of the Ombudsman, Administrative Order No. 7, Rule II: Procedure in Criminal Cases

Section 1. Grounds. — A criminal complaint may be brought for an offense in violation of R.A. 3019,as
amended, R.A. 1379, as amended, R.A. 6713, Title VII, Chapter II, Section 2 of the Revised Penal Code,
and for such other offenses committed by public officers and employees in relation to office.

Sec. 2. Evaluation. — Upon evaluating the complaint, the investigating officer shall recommend
whether it may be:
 a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or agency which has jurisdiction over the case;
d) forwarded to the appropriate office or official for fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.

Sec. 3. Preliminary investigation; who may conduct.— Preliminary investigation may be conducted by
any of the following:

1) Ombudsman Investigators;
2) Special Prosecuting Officers;
3) Deputized Prosecutors;
4) Investigating Officials authorized by law to conduct preliminary investigations; or
5) Lawyers in the government service, so designated by the Ombudsman.

Sec. 4. Procedure. — The preliminary investigation of cases falling under the jurisdiction of the
Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3,
Rule 112 of the Rules of Court, subject to the following provisions:

a) If the complaint is not under oath or is based only on official reports, the investigating officer
shall require the complainant or supporting witnesses to execute affidavits to substantiate the
complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the
respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on thecomplainant. The complainant may
file reply affidavits within ten (10) days after service of the counter-affidavits.

c) If the respondent does not file a counter-affidavit, the investigating officer may consider the
comment filed by him, if any, as his answer to the complaint. In any event, the respondent shall
have access to the evidence on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion
for a bill of particulars be entertained. If respondent desires any matter in the complainant’s
affidavit to be clarified, the particularization thereof may be done at the time of clarificatory
questioning in the manner provided in paragraph (f) of this section.

e) If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or
having been served, does not comply therewith, the complaint shall be deemed submitted for
resolution on the basis of the evidence on record.

f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts
material to the case which the investigating officer may need to be clarified on, he may conduct
a clarificatory hearing during which the parties shall be afforded the opportunity to be present
but without the right to examine or cross-examine the witness being questioned. Where the
appearance of the parties or witnesses is impracticable, the clarificatory questioning may be
conducted in writing, whereby the questions desired to be asked by the investigating officer or
 a party shall be reduced into writing and served on the witness concerned who shall be
required to answer the same in writing and under oath.

g) Upon the termination of the preliminary investigation, the investigating officer shall forward
the records of the case together with his resolution to the designated authorities for their
appropriate action thereon.

No information may be filed and no complaint may be dismissed without the written authority or
approval of the Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of the
proper Deputy Ombudsman in all other cases.

xxxx

Sec. 6. Notice to parties.— The parties shall be served with a copy of the resolution as finally approved
by the Ombudsman or by the proper Deputy Ombudsman.

Sec. 7. Motion for reconsideration.— a) Only one (1) motion for reconsideration or reinvestigation of
anapproved order or resolution shall be allowed, the same to be filed within fifteen (15) days from
notice thereof with the Office of the Ombudsman, or the proper deputy ombudsman as the case may
be.

xxxx

b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the corresponding
Information in court on the basis of the finding of probable cause in the resolution subject of the
motion. (Emphasis supplied)

Sen. Estrada claims that the denial of his Request for the counter affidavits of his co-respondents
violates his constitutional right to due process. Sen. Estrada, however, fails to specify a law or rule
which states that it is a compulsory requirement of due process in a preliminary investigation that the
Ombudsman furnish a respondent with the counter-affidavits of his co-respondents. Neither Section
3(b), Rule 112 of the Revised Rules of Criminal Procedure nor Section 4(c), Rule II of the Rules of
Procedure of the Office of the Ombudsman supports Sen. Estrada’s claim. What the Rules of Procedure
of the Office of the Ombudsman require is for the Ombudsman to furnish the respondent with a copy
of the complaint and the supporting affidavits and documents at the time the order to submit the
counter-affidavit is issued to the respondent. This is clear from Section 4(b), Rule II of the Rules of
Procedure of the Office of the Ombudsman when it states, "[a]fter such affidavits [of the complainant
and his witnesses] have been secured, the investigating officer shall issue an order, attaching thereto a
copy of the affidavits and other supporting documents, directing the respondent to submit, within ten
(10) days from receipt thereof, his counter-affidavits x x x." At this point, there is still no counter-
affidavit submitted by any respondent. Clearly, what Section 4(b) refers to are affidavits of the
complainant and his witnesses, not the affidavits of the co-respondents. Obviously, the counter-
affidavits of the co-respondents are not part of the supporting affidavits of the complainant. No grave
abuse of discretion can thus be attributed to the Ombudsman for the issuance of the 27 March 2014
Order which denied Sen. Estrada’s Request.

Although Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman provides that a
respondent "shall have access to the evidence on record," this provision should be construed in
relation to Section 4(a) and (b) of the same Rule, as well as to the Rules of Criminal Procedure. First,
Section 4(a) states that "theinvestigating officer shall require the complainant or supporting witnesses
to execute affidavits to substantiate the complaint." The "supporting witnesses" are the witnesses of
the complainant, and do not refer to the co-respondents.

Second, Section 4(b) states that "the investigating officer shall issue an order attaching thereto a copy
of the affidavits and all other supporting documents, directing the respondent" tosubmit his counter-
affidavit. The affidavits referred to in Section 4(b) are the affidavits mentioned in Section

4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits of the complainant and
his supporting witnesses. The provision in the immediately succeeding Section 4(c) of the same Rule II
that a respondent shall have "access to the evidence on record" does not stand alone, but should be
read in relation to the provisions of Section 4(a and b) of the same Rule II requiring the investigating
officer to furnish the respondent with the "affidavits and other supporting documents" submitted by
"the complainant or supporting witnesses." Thus, a respondent’s "access to evidence on record" in
Section 4(c), Rule II of the Ombudsman’s Rules of Procedure refers to the affidavits and supporting
documents of "the complainant or supporting witnesses" in Section 4(a) of the same Rule II.

Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that "[t]he
respondent shall have the right to examine the evidence submitted by the complainant which he may
not have been furnished and to copy them at his expense." A respondent’s right to examine refers only
to "the evidence submitted by the complainant."

Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule II of the
Ombudsman’s Rules of Procedure, there is no requirement whatsoever that the affidavits executed by
the corespondents should be furnished to a respondent. Justice Velasco’s dissent relies on the ruling in
Office of the Ombudsman v. Reyes (Reyes case),15 an administrative case, in which a different set of
rules of procedure and standards apply. Sen. Estrada’s Petition, in contrast, involves the preliminary
investigation stage in a criminal case. Rule III on the Procedure in Administrative Cases of the Rules of
Procedure of the Office of the Ombudsman applies in the Reyes case, while Rule II on the Procedure in
Criminal Cases of the Rules of Procedure of the Office of the Ombudsman applies in Sen. Estrada’s
Petition. In both cases, the Rules of Court apply in a suppletory character or by analogy. 16

In the Reyescase, the complainant Acero executed an affidavit against Reyes and Peñaloza, who were
both employees of the Land Transportation Office. Peñaloza submitted his counter-affidavit, as well as
those of his two witnesses. Reyes adopted his counter-affidavit in another case before the
Ombudsman as it involved the same parties and the same incident. None of the parties appeared
during the preliminary conference. Peñaloza waived his right to a formal investigation and was willing
to submit the case for resolution based on the evidence on record. Peñaloza also submitted a counter-
affidavit of his third witness. The Ombudsman found Reyes guilty of grave misconduct and dismissed
him from the service. On the other hand, Peñaloza was found guilty of simple misconduct and
penalized with suspension from office without pay for six months. This Court agreed with the Court of
Appeals’ finding that Reyes’ right to due process was indeed violated. This Court remanded the records
of the case to the Ombudsman, for two reasons: (1) Reyes should not have been meted the penalty of
dismissal from the service when the evidence was not substantial, and (2) there was disregard of
Reyes’ right to due process because he was not furnished a copy of the counter-affidavits of Peñaloza
and of Peñaloza’s three witnesses. In the Reyes case, failure to furnish a copy of the counter-affidavits
happened in the administrative proceedings on the merits, which resulted in Reyes’ dismissal from the
service. In Sen. Estrada’s Petition, the denial of his Request happened during the preliminary
investigation where the only issue is the existence of probable cause for the purpose of determining
whether an information should be filed, and does not prevent Sen. Estrada from requesting a copy of
the counter-affidavits of his co-respondents during the pre-trial or even during the trial.

We should remember to consider the differences in adjudicating cases, particularly an administrative

case and a criminal case:

Any lawyer worth his salt knows that quanta of proof and adjective rules vary depending on whether
the cases to which they are meant to apply are criminal, civil or administrative in character. In criminal
actions, proof beyond reasonable doubt is required for conviction;in civil actions and proceedings,
preponderance of evidence, as support for a judgment; and in administrative cases, substantial
evidence, as basis for adjudication. In criminal and civil actions, application of the Rules of Court is
called for, with more or less strictness. In administrative proceedings, however, the technical rules of
pleadingand procedure, and of evidence, are not strictly adhered to; they generally apply only
suppletorily; indeed, in agrarian disputes application of the Rules of Court is actually prohibited. 17

It should be underscored that the conduct of a preliminary investigation is only for the determination
of probable cause, and "probable cause merely implies probability of guilt and should be determined in
a summary manner. A preliminary investigation is not a part of the trial and it is only in a trial where an
accused can demand the full exercise of his rights, such as the right to confront and cross-examine his
accusers to establish his innocence."18 Thus, the rights of a respondent in a preliminary investigation
are limited to those granted by procedural law.

A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining

whether there is sufficient ground to engender a well founded belief that a crime cognizable by the
Regional Trial Court has been committed and that the respondent is probably guilty thereof, and
should be held for trial. The quantum of evidence now required in preliminary investigation is such
evidence sufficient to "engender a well founded belief" as tothe fact of the commission of a crime and
the respondent's probable guilt thereof. A preliminary investigation is not the occasion for the full and
exhaustive display of the parties’ evidence; it is for the presentation of such evidence only as may
engender a well-grounded belief that an offense has been committed and that the accused is probably
guilty thereof. We are in accord with the state prosecutor’s findings in the case at bar that there exists
prima facie evidence of petitioner’s involvement in the commission of the crime, it being sufficiently
supported by the evidence presented and the facts obtaining therein.

Likewise devoid of cogency is petitioner’s argument that the testimonies of Galarion and Hanopol are
inadmissible as to him since he was not granted the opportunity of cross-examination.

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-
examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court
expressly provides that the respondent shall only have the right to submit a counter-affidavit, to
examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to
propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be
present but without the right to examine or cross-examine. Thus, even if petitioner was not given the
opportunity to cross-examine Galarion and Hanopol atthe time they were presented to testify during
the separate trial of the case against Galarion and Roxas, he cannot assert any legal right to cross-
examine them at the preliminary investigation precisely because such right was never available to him.
The admissibility or inadmissibility of said testimonies should be ventilated before the trial court during
the trial proper and not in the preliminary investigation.
Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction and
control over the conduct of a preliminary investigation. If by its very nature a preliminary investigation
could be waived by the accused, we find no compelling justification for a strict application of the
evidentiary rules. In addition, considering that under Section 8, Rule 112 of the Rules of Court, the
record of the preliminary investigation does not form part of the record of the case in the Regional
Trial Court, then the testimonies of Galarion and Hanopol may not be admitted by the trial court if not
presented in evidence by the prosecuting fiscal. And, even if the prosecution does present such
testimonies, petitioner can always object thereto and the trial court can rule on the admissibility
thereof; or the petitioner can, during the trial, petition said court to compel the presentation of
Galarion and Hanopol for purposes of cross-examination. 19 (Emphasis supplied)

Furthermore, in citing the Reyes case, Justice Velasco’s dissent overlooked a vital portion of the Court
of Appeals’ reasoning. This Court quoted from the Court of Appeals’ decision: "x x x [A]dmissions made
by Peñaloza in his sworn statement are binding only on him. Res inter alios act a alteri nocere non
debet. The rights of a party cannot be prejudiced by an act, declaration or omission of another." In
OMB-C-C-13-0313 and OMB-C-C-13-0397, the admissions of Sen. Estrada’s co-respondents can in no
way prejudice Sen. Estrada. Even granting Justice Velasco’s argument that the 28 March 2014 Joint
Resolution in OMB-C-C-13-0313 and OMB-C-C-13-0397 20 mentioned the testimonies of Sen. Estrada’s
corespondents like Tuason and Cunanan, their testimonies were merely corroborative of the
testimonies of complainants’ witnesses Benhur Luy, Marina Sula, and Merlina Suñas and were not
mentioned in isolation from the testimonies of complainants’ witnesses.

Moreover, the sufficiency of the evidence put forward by the Ombudsman against Sen. Estrada to
establish its finding of probable cause in the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and
OMB-CC-13-0397 was judicially confirmed by the Sandiganbayan, when it examined the evidence,
found probable cause, and issued a warrant of arrest against Sen. Estrada on 23 June 2014.

We likewise take exception to Justice Brion’s assertion that "the due process standards that at the very
least should be considered in the conduct of a preliminary investigation are those that this Court first
articulated in Ang Tibay v. Court of Industrial Relations [Ang Tibay]." 21 Simply put, the Ang Tibay
guidelines for administrative cases do not apply to preliminary investigations in criminal cases. An
application of the Ang Tibay guidelines to preliminary investigations will have absurd and disastrous
consequences.

Ang Tibay enumerated the constitutional requirements of due process, which Ang Tibay described as
the "fundamental and essential requirements of due process in trials and investigations of an
administrative character."22 These requirements are "fundamental and essential" because without
these, there isno due process as mandated by the Constitution. These "fundamental and essential
requirements" cannot be taken away by legislation because theyare part of constitutional due process.
These "fundamental and essential requirements" are:

(1) The first of these rights is the right to a hearing, which includes the right of the party
interested or affected to present his own case and submit evidence in support thereof. x x x.

(2) Not only must the party be given an opportunity to present his case and adduce evidence
tending to establish the rights which he asserts but the tribunal must consider the evidence
presented. x x x.
 (3) "While the duty to deliberatedoes not impose the obligation to decide right, it does imply a
necessity which cannot be disregarded, namely, that of having something to support its
decision. A decision with absolutely nothing to support it is a nullity, x x x."

(4) Not only must there be some evidence to support a finding or conclusion, but the evidence
must be "substantial." "Substantial evidence is more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion." x x
x.

(5) The decision must be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected. x x x.

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own
independent consideration of the law and facts of the controversy, and not simply accept the
views of a subordinate in arriving at a decision. x x x.

(7) The Court of Industrial Relations should, in all controversial questions, render its decision in
sucha manner that the parties to the proceeding can know the various issues involved, and the
reasons for the decisions rendered. The performance of this duty is inseparable from the
authority conferred upon it.23

The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA 24 (GSIS): "what Ang Tibay failed
to explicitly state was, prescinding from the general principles governing due process, the requirement
of an impartial tribunalwhich, needless to say, dictates that one called upon to resolve a dispute may
not sit as judge and jury simultaneously, neither may he review his decision on appeal." 25 The GSIS
clarification affirms the non applicability of the Ang Tibay guidelines to preliminary investigations in
criminal cases: The investigating officer, which is the role that the Office of the Ombudsman plays in
the investigation and prosecution of government personnel, will never be the impartial tribunal
required in Ang Tibay, as amplified in GSIS. The purpose of the Office of the Ombudsman in conducting
a preliminary investigation, after conducting its own factfinding investigation, is to determine probable
cause for filing an information, and not to make a final adjudication of the rights and obligations of the
parties under the law, which is the purpose of the guidelines in Ang Tibay. The investigating officer
investigates, determines probable cause, and prosecutes the criminal case after filing the
corresponding information.

The purpose in determining probable cause is to make sure that the courts are not clogged with weak
cases that will only be dismissed, as well as to spare a person from the travails of a needless
prosecution.26 The Ombudsman and the prosecution service under the control and supervision of the
Secretary of the Department of Justice are inherently the fact-finder, investigator, hearing officer,
judge and jury of the respondent in preliminary investigations. Obviously, this procedure cannot
comply with Ang Tibay, as amplified in GSIS. However, there is nothing unconstitutional with this
procedure because this is merely an Executive function, a part of the law enforcement process leading
to trial in court where the requirements mandated in Ang Tibay, as amplified in GSIS, will apply. This
has been the procedure under the 1935, 1973 and 1987 Constitutions. To now rule that Ang Tibay, as
amplified in GSIS, should apply to preliminary investigations will mean that all past and present
preliminary investigations are in gross violation of constitutional due process.
Moreover, a person under preliminary investigation, as Sen. Estrada is in the present case when he
filed his Request, is not yet an accused person, and hence cannot demand the full exercise of the rights
of an accused person:

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime
has been committed and was committed by the suspects. Probable cause need not be based on clear
and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United
States, while probable cause demands more than "bare suspicion," it requires "less than evidence
which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand
trial. It is not a pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of probable cause,
wealso hold that the DOJ Panel did not gravely abuse its discretion in refusing to call the NBI witnesses
for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the
sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a
probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause
merely implies probability of guilt and should be determined in a summary manner. Preliminary
investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise
of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In
the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish
probable cause and clarificatory hearing was unnecessary. 27

Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v. Hernandez, 28 that the
"rights conferred upon accused persons to participate in preliminary investigations concerning
themselves depend upon the provisions of law by which such rights are specifically secured, rather
than upon the phrase ‘due process of law’." This reiterates Justice Jose P. Laurel’s oft-quoted
pronouncement in Hashim v. Boncan29 that "the right to a preliminary investigation is statutory, not
constitutional." In short, the rights of a respondent ina preliminary investigation are merely statutory
rights, not constitutional due process rights. An investigation to determine probable cause for the filing
of an information does not initiate a criminal action so as to trigger into operation Section 14(2), Article
III of the Constitution.30 It is the filing of a complaint or information in court that initiates a criminal
action.31

The rights to due process in administrative cases as prescribed in Ang Tibay,as amplified in GSIS, are
granted by the Constitution; hence, these rights cannot be taken away by merelegislation. On the other
hand, as repeatedly reiterated by this Court, the right to a preliminary investigation is merely a
statutory right,32 not part of the "fundamental and essential requirements" of due process as
prescribed in Ang Tibay and amplified in GSIS. Thus, a preliminary investigation can be taken away by
legislation. The constitutional right of an accused to confront the witnesses against him does not apply
in preliminary investigations; nor will the absence of a preliminary investigation be an infringement of
his right to confront the witnesses against him.33 A preliminary investigation may be done away with
entirely without infringing the constitutional right of an accused under the due process clause to a fair
trial.34

The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than the
evidenceneeded in a preliminary investigation to establish probable cause, or to establish the existence
of a prima facie case that would warrant the prosecution of a case. Ang Tibay refers to "substantial
evidence," while the establishment of probable cause needs "only more than ‘bare suspicion,’ or ‘less
than evidence which would justify . . . conviction’." In the United States, from where we borrowed the
concept of probable cause,35 the prevailing definition of probable cause is this:

In dealing with probable cause, however, as the very name implies, we deal with probabilities.These
are not technical; they are the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative
to what must be proved.

"The substance of all the definitions" of probable cause "is a reasonable ground for belief of guilt."
McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267 U. S. at 161.
And this "means less than evidence which would justify condemnation" or conviction, as Marshall, C. J.,
said for the Court more than a century ago in Locke v. United States, 7 Cranch 339, 348. Since
Marshall’s time, at any rate, it has come to mean more than bare suspicion: Probable cause exists
where "the facts and circumstances within their [the officers’] knowledge and of which they had
reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable
caution in the belief that" an offense has been or is being committed. Carroll v. United States, 267 U. S.
132, 162.

These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences
with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the
law in the community’s protection. Because many situations which confront officers in the course of
executing their duties are more or less ambiguous, room must be allowed for some mistakes on their
part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their
conclusions of probability. The rule of probable cause is a practical, non technical conception affording
the best compromise that has been found for accommodating these often opposing interests.
Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding
citizens at the mercy of the officers’ whim or caprice. 36

In the Philippines, there are four instances in the Revised Rules of Criminal Procedure where probable
cause is needed to be established:

(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine whether there is
sufficient ground to engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial. A preliminary investigation is
required before the filing of a complaint or information for an offense where the penalty
prescribed by law is at least four years, two months and one day without regard to the fine;

(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of arrest or a
commitment order, if the accused has already been arrested, shall be issued and that there is a
necessity of placing the respondent under immediate custody in order not to frustrate the ends
of justice;

(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a warrantless
arrest 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

(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be
issued, and only upon probable cause in connection with one specific offense to be determined
 personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the things
to be seized which may be anywhere in the Philippines.

In all these instances, the evidence necessary to establish probable cause is based only on the
likelihood, or probability, of guilt. Justice Brion, in the recent case of Unilever Philippines, Inc. v.
Tan37 (Unilever), stated:

The determination of probable cause needs only to rest on evidence showing that more likely than not,
a crime has been committed and there is enough reason to believe that it was committed by the
accused. It need not be based on clear and convincing evidence of guilt, neither on evidence
establishing absolute certainty of guilt. What is merely required is "probability of guilt." Its
determination, too, does not call for the application of rules or standards of proof that a judgment of
conviction requires after trial on the merits. Thus, in concluding that there is probable cause, it suffices
that it is believed that the act or omission complained of constitutes the very offense charged.

It is also important to stress that the determination of probable cause does not depend on the validity
or merits of a party’s accusation or defense or on the admissibility or veracity of testimonies
presented. As previously discussed, these matters are better ventilated during the trial proper of the
case. As held in Metropolitan Bank & Trust Company v. Gonzales:

Probable cause has been defined as the existence of such facts and circumstances as would excite the
belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was prosecuted. x x x. The term does not mean
"actual or positive cause" nor does it import absolute certainty. It is merely based on opinion and
reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is
sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission
complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence
of the prosecution in support of the charge. (Bold facing and italicization supplied)

Justice Brion’s pronouncement in Unilever that "the determination of probable cause does not depend
on the validity or merits of a party’s accusation or defense or on the admissibility or veracity of
testimonies presented" correctly recognizes the doctrine in the United States that the determination of
probable cause can rest partially, or even entirely, on hearsay evidence, as long as the person making
the hearsay statement is credible. In United States v. Ventresca,38 the United States Supreme Court
held:

While a warrant may issue only upon a finding of "probable cause," this Court has long held that "the
term ‘probable cause’ . . . means less than evidence which would justify condemnation," Locke v.
United States, 7 Cranch 339, 11 U.S. 348, and that a finding of "probable cause" may rest upon
evidence which is not legally competent in a criminal trial. Draper v. United States, 358 U.S. 307, 358
U.S. 311. As the Court stated in Brinegar v. United States, 338 U.S. 160, 173, "There is a large difference
between the two things tobe proved (guilt and probable cause), as well as between the tribunals which
determine them, and therefore a like difference in the quanta and modes of proof required to establish
them." Thus, hearsay may be the basis for issuance of the warrant "so long as there . . . [is] a
substantial basis for crediting the hearsay." Jones v. United States, supra, at 362 U.S. 272. And, in
Aguilar, we recognized that "an affidavit may be based on hearsay information and need not reflect the
direct personal observations of the affiant," so long as the magistrate is "informed of some of the
underlying circumstances" supporting the affiant’s conclusions and his belief that any informant
involved "whose identity need not be disclosed . . ." was "credible" or his information "reliable."
Aguilar v. Texas, supra, at 378 U.S. 114. (Emphasis supplied)

Thus, probable cause can be established with hearsay evidence, as long as there is substantial basis for
crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary
investigation because such investigation is merely preliminary, and does not finally adjudicate rights
and obligations of parties. However, in administrative cases, where rights and obligations are finally
adjudicated, what is required is "substantial evidence" which cannot rest entirely or even partially on
hearsay evidence. Substantial basis is not the same as substantial evidence because substantial
evidence excludes hearsay evidence while substantial basis can include hearsay evidence. To require
the application of Ang Tibay, as amplified in GSIS, in preliminary investigations will change the quantum
of evidence required in determining probable cause from evidence of likelihood or probability of guilt
to substantial evidence of guilt.

It is, moreover, necessary to distinguish between the constitutionally guaranteed rights of an accused
and the right to a preliminary investigation. To treat them the same will lead toabsurd and disastrous
consequences.

All pending criminal cases in all courts throughout the country will have to be remanded to the
preliminary investigation level because none of these will satisfy Ang Tibay, as amplified in GSIS.
Preliminary investigations are conducted by prosecutors, who are the same officials who will
determine probable cause and prosecute the cases in court. The prosecutor is hardly the impartial
tribunal contemplated in Ang Tibay, as amplified in GSIS. A reinvestigation by an investigating officer
outside of the prosecution service will be necessary if Ang Tibay, as amplified in GSIS, were to be
applied. This will require a new legislation. In the meantime, all pending criminal cases in all courts will
have to be remanded for reinvestigation, to proceed only when a new law is in place. To require Ang
Tibay, as amplified in GSIS, to apply to preliminary investigation will necessarily change the concept of
preliminary investigation as we know it now. Applying the constitutional due process in Ang Tibay, as
amplified in GSIS, to preliminary investigation will necessarily require the application of the rights of an
accused in Section 14(2), Article III of the 1987 Constitution. This means that the respondent can
demand an actual hearing and the right to cross-examine the witnesses against him, rights which are
not afforded at present toa respondent in a preliminary investigation.

The application of Ang Tibay, as amplified in GSIS, is not limited to those with pending preliminary
investigations but even to those convicted by final judgment and already serving their sentences. The
rule is well-settled that a judicial decision applies retroactively if it has a beneficial effect on a person
convicted by final judgment even if he is already serving his sentence, provided that he is not a habitual
criminal.39 This Court retains its control over a case "until the full satisfaction of the final judgment
conformably with established legal processes." 40 Applying Ang Tibay, as amplified in GSIS, to
preliminary investigations will result in thousands of prisoners, convicted by final judgment, being set
free from prison.

Second. Sen. Estrada’s present Petition for Certiorari is premature.

Justice Velasco’s dissent prefers thatSen. Estrada not "be subjected to the rigors of a criminal
prosecution incourt" because there is "a pending question regarding the Ombudsman’s grave abuse of
its discretion preceding the finding of a probable cause to indict him." Restated bluntly, Justice
Velasco’s dissent would like this Court to conclude that the mere filing of the present Petition for
Certiorari questioning the Ombudsman’s denial of Sen. Estrada’s Request should have, by itself, voided
all proceedings related to the present case.

Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen. Estrada’s Request,
the Ombudsman subsequently reconsidered its Order. On 7 May 2014, the same date that Sen. Estrada
filed the present Petition, the Ombudsman issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-
0397 that furnishedSen. Estrada with the counter-affidavits of Ruby Tuason, Dennis Cunanan,
Gondelina Amata, Mario Relampagos, Francisco Figura, Gregoria Buenaventura, and AlexisSevidal, and
directed him to comment within a non-extendible period of five days from receipt of said Order. Sen.
Estrada did not file any comment, as noted in the 4 June 2014 Joint Order of the Ombudsman.

On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen. Estrada’s Motion for
Reconsideration ofits 28 March 2014 Joint Resolution which found probable cause toindict Sen. Estrada
and his corespondents with one count of plunder and 11 counts of violation of Section 3(e), Republic
Act No. 3019. In this 4 June 2014 Joint Order, the Ombudsman stated that "[t]his Office, in fact, held in
abeyance the disposition of motions for reconsideration in this proceeding in light of its grant to
Senator Estrada a period of five days from receipt of the 7 May 2014 Order to formally respond to the
above-named respondents’ claims."

We underscore Sen. Estrada’s procedural omission. Sen. Estrada did not file any pleading, much less a
motion for reconsideration, to the 27 March 2014 Order inOMB-C-C-13-0313. Sen. Estrada immediately
proceeded to file this Petition for Certiorari before this Court. Sen. Estrada’s resort to a petitionfor
certiorari before this Court stands in stark contrast to his filing of his 7 April 2014 Motion for
Reconsideration of the 28 March 2014 Joint Resolution finding probable cause. The present Petition for
Certiorari is premature.

A motion for reconsideration allows the public respondent an opportunity to correct its factual and
legal errors. Sen. Estrada, however, failed to present a compelling reason that the present Petition falls
under the exceptions41 to the general rule that the filing of a motion for reconsideration is required
prior to the filing of a petition for certiorari. This Court has reiterated in numerous decisions that a
motion for reconsideration is mandatory before the filing of a petition for certiorari. 42

Justice Velasco’s dissent faults the majority for their refusal to apply the Reyes case to the present
Petition. Justice Velasco’s dissent insists that "this Court cannot neglect to emphasize that, despite the
variance in the quanta of evidence required, a uniform observance of the singular concept of due
process is indispensable in all proceedings."

As we try to follow Justice Velasco’s insistence, we direct Justice Velasco and those who join him in his
dissent to this Court’s ruling in Ruivivar v. Office of the Ombudsman (Ruivivar), 43 wherein we stated
that "[t]he law can no longer help one who had been given ample opportunity to be heard but who did
not take full advantage of the proffered chance."

The Ruivivar case, like the Reyes44 case, was also an administrative case before the Ombudsman. The
Ombudsman found petitioner Rachel Beatriz Ruivivar administratively liable for discourtesy in the
course of her official functions and imposed on her the penalty of reprimand. Petitioner filed a motion
for reconsideration of the decision on the ground that she was not furnished copies of the affidavits of
the private respondent’s witnesses. The Ombudsman subsequently ordered that petitioner be
furnished with copies of the counter-affidavits of private respondent’s witnesses, and that petitioner
should "file, within ten (10) days from receipt of this Order, such pleading which she may deem fit
under the circumstances." Petitioner received copies of the affidavits, and simply filed a manifestation
where she maintained that her receipt of the affidavits did not alter the deprivation of her right to due
process or cure the irregularity in the Ombudsman’s decision to penalize her.

In Ruivivar, petitioner received the affidavits of the private respondent’s witnesses afterthe
Ombudsman rendered a decision against her. We disposed of petitioner’s deprivation of due process
claim in this manner:

The CA Decision dismissed the petition for certiorari on the ground that the petitioner failed to exhaust
all the administrative remedies available to her before the Ombudsman. This ruling is legallycorrect as
exhaustion of administrative remedies is a requisite for the filing of a petition for certiorari. Other than
this legal significance, however, the ruling necessarily carries the direct and immediate implication that
the petitioner has been granted the opportunity to be heard and has refused to avail of this
opportunity; hence, she cannot claim denial of due process. In the words of the CA ruling itself:
"Petitioner was given the opportunity by public respondent to rebut the affidavits submitted by private
respondent. . . and had a speedy and adequate administrative remedy but she failed to avail thereof
for reasons only known to her."

For a fuller appreciation of our above conclusion, we clarify that although they are separate and
distinct concepts, exhaustion of administrative remedies and due process embody linked and related
principles. The "exhaustion" principle applies when the ruling court or tribunal is not given the
opportunity tore-examine its findings and conclusions because of an available opportunity that a party
seeking recourse against the court or the tribunal’s ruling omitted to take. Under the concept of "due
process," on the other hand, a violation occurs when a court or tribunal rules against a party without
giving him orher the opportunity to be heard. Thus, the exhaustion principle is based on the
perspective of the ruling court or tribunal, while due process is considered from the point of view of
the litigating party against whom a ruling was made. The commonality they share is in the
same"opportunity" that underlies both. In the context of the present case, the available opportunity to
consider and appreciate the petitioner’s counter-statement offacts was denied the Ombudsman;
hence, the petitioner is barred from seeking recourse at the CA because the ground she would invoke
was not considered at all at the Ombudsman level. At the same time, the petitioner – who had the
same opportunity to rebut the belatedly-furnished affidavits of the private respondent’s witnesses –
was not denied and cannot now claim denial of due process because she did not take advantage of the
opportunity opened to her at the Ombudsman level.

The records show that the petitioner duly filed a motion for reconsideration on due process grounds
(i.e., for the private respondent’s failure to furnish her copies of the affidavits of witnesses) and on
questions relating to the appreciation of the evidence on record. The Ombudsman acted on this
motion by issuing its Order of January 17, 2003 belatedly furnishing her with copies of the private
respondent’s witnesses, together with the "directive to file, within ten (10) days from receipt of this
Order, such pleading which she may deem fit under the circumstances."

Given this opportunity to act on the belatedly-furnished affidavits, the petitioner simply chose to file a
"Manifestation" where she took the position that "The order of the Ombudsman dated 17 January
2003 supplying her with the affidavits of the complainant does not cure the 04 November 2002 order,"
and on this basis prayed that the Ombudsman’s decision "be reconsidered and the complaint
dismissed for lack of merit."
For her part, the private respondent filed a Comment/Opposition to Motion for Reconsideration dated
27 January 2003 and prayed for the denial of the petitioner’s motion.

In the February 12, 2003 Order, the Ombudsman denied the petitioner’s motion for reconsideration
after finding no basis to alter or modify its ruling. Significantly, the Ombudsman fully discussed in this
Order the due process significance of the petitioner’s failure to adequately respond to the belatedly-
furnished affidavits. The Ombudsman said:

"Undoubtedly, the respondent herein has been furnished by this Office with copies of the affidavits,
which she claims she has not received. Furthermore, the respondent has been given the opportunity to
present her side relative thereto, however, she chose not to submit countervailing evidence
orargument. The respondent, therefore (sic), cannot claim denial of due process for purposes of
assailing the Decision issued in the present case. On this score, the Supreme Court held in the case of
People v. Acot, 232 SCRA 406, that "a party cannot feign denial of due process where he had the
opportunity to present his side". This becomes all the more important since, as correctly pointed out
by the complainant, the decision issued in the present case is deemed final and unappealable pursuant
to Section 27 of Republic Act 6770, and Section 7, Rule III of Administrative Order No. 07. Despite the
clear provisions of the law and the rules, the respondent herein was given the opportunity not
normally accorded, to present her side, but she opted not to do so which is evidently fatal to her
cause." [emphasis supplied].

Under these circumstances, we cannot help but recognize that the petitioner’s cause is a lost one, not
only for her failure to exhaust her available administrative remedy, but also on due process grounds.
The law can no longer help one who had been given ample opportunity to be heard but who did not
take full advantage of the proffered chance.45

Ruivivar applies with even greater force to the present Petition because here the affidavits of Sen.
Estrada’s co-respondents were furnished to him beforethe Ombudsman rendered her 4 June 2014
Joint Order. In Ruivivar, the affidavits were furnished after the Ombudsman issued a decision.

Justice Velasco’s dissent cites the cases of Tatad v. Sandiganbayan 46 (Tatad) and Duterte v.
Sandiganbayan47 (Duterte) in an attempt to prop up its stand. A careful reading of these cases,
however, would show that they do not stand on all fours with the present case. In Tatad, this Court
ruled that "the inordinate delay in terminating the preliminary investigation and filing the information
[by the Tanodbayan] in the present case is violative of the constitutionally guaranteed right of the
petitioner to due process and to a speedy disposition of the cases against him." 48 The Tanod bayan
took almost three years to terminate the preliminary investigation, despite Presidential Decree No.
911’s prescription of a ten-day period for the prosecutor to resolve a case under preliminary
investigation. We ruled similarly in Duterte, where the petitioners were merely asked to comment and
were not asked to file counter-affidavits as isthe proper procedure in a preliminary investigation.
Moreover, in Duterte, the Ombudsman took four years to terminate its preliminary investigation.

As we follow the reasoning in Justice Velasco’s dissent, it becomes more apparent that Sen. Estrada’s
present Petition for Certiorari is premature for lack of filing of a motion for reconsideration before the
Ombudsman. When the Ombudsman gave Sen. Estrada copies of the counter-affidavits and even
waited for the lapse of the given period for the filing of his comment, Sen. Estrada failed to avail of the
opportunity to be heard due to his own fault. Thus, Sen. Estrada’s failure cannot in any way be
construed as violation of due process by the Ombudsman, much less of grave abuse of discretion. Sen.
Estrada has not filed any comment, and still chooses not to.
Third. Sen. Estrada’s present Petition for Certiorari constitutes forum shopping and should be
summarily dismissed.

In his verification and certification of non-forum shopping in the present petition filed on 7 May 2014,
Sen. Estrada stated:

3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April 2014 in OMB-C-C-
13-0313 and OMB-CC-13-0397, raising as sole issuethe finding of probable cause in the Joint Resolution
dated 28 March 2014.

Such Motion for Reconsideration has yet to be resolved by the Office of the Ombudsman. 49 (Emphasis
supplied)

Sen. Estrada’s Motion for Reconsideration of the 28 March 2014 Joint Resolution prayed that the
Ombudsman reconsider and issue a new resolution dismissing the charges against him. However, in
this Motion for Reconsideration, Sen. Estrada assailed the Ombudsman’s 27 March 2014 Joint Order
denying his Request, and that such denial is a violation of his right to due process.

8. It is respectfully submitted that the Ombudsman violated the foregoing rule [Rule 112, Section 4 of
the Rules of Court] and principles. A reading of the Joint Resolution will reveal that various pieces of
evidence which Senator Estrada was not furnished with – hence, depriving him of the opportunity to
controvert the same – were heavily considered by the Ombudsman in finding probable cause to charge
him with Plunder and with violations of Section 3(e) of R.A. No. 3019.

xxxx

11. Notably, under dated 20 March 2014, Senator Estrada filed a "Request to be Furnished with Copies
of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings,"
pursuant to the right of a respondent "to examine the evidence submitted by the complainant which
he may not have been furnished" (Section 3[b], Rule 112 of the Rules of Court), and to "have access to
the evidence on record" (Section 4[c], Rule II of the Rules of Procedure of the Office of the
Ombudsman).

However, notwithstanding the gravity of the offenses leveled against Senator Estrada and the law’s
vigilance in protecting the rights of an accused, the Special Panel of Investigators, in an Order dated 27
March 2014, unceremoniously denied the request on the ground that "there is no provision under this
Office’s Rules of Procedure which entitles respondent to be furnished all the filings by the other parties
x x x x." (Order dated 27 March 2013, p. 3)

As such, Senator Estrada was not properly apprised of the evidence offered against him, which were
eventually made the bases of the Ombudsman’s finding of probable cause.50

The Ombudsman denied Sen. Estrada’s Motion for Reconsideration in its 4 June 2014 Joint Order.
Clearly, Sen. Estrada expressly raised in his Motion for Reconsideration with the Ombudsman the
violation of his right to due process, the same issue he is raising in this petition. In the verification and
certification of non-forum shopping attached to his petition docketed as G.R. Nos. 212761-62 filed on
23 June 2014, Sen. Estrada disclosed the pendency of the present petition, as well as those before the
Sandiganbayan for the determination of the existence of probable cause. In his petition in G.R. Nos.
212761-62, Sen. Estrada again mentioned the Ombudsman’s 27 March 2014 Joint Order denying his
Request.

17. Sen. Estrada was shocked not only at the Office of the Ombudsman’s finding of probable cause,
which he maintains is without legal or factual basis, but also thatsuch finding of probable cause was
premised on evidence not disclosed tohim, including those subject of his Request to be Furnished with
Copiesof Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings
dated 20 March 2014.

In particular, the Office of the Ombudsman used as basis for the Joint Resolution the following
documents –

i. Alexis G. Sevidal’s Counter-Affidavits dated 15 January and 24 February 2014;

ii. Dennis L. Cunanan’s Counter-Affidavits both dated 20 February 2014;

iii. Francisco B. Figura’s Counter-Affidavit dated 08 January 2014;

iv. Ruby Tuason’s Counter-Affidavits both dated 21 February 2014;

v. Gregoria G. Buenaventura’s Counter-Affidavit dated 06 March 2014; and

vi. Philippine Daily Inquirer Online Edition news article entitled "Benhur Luy upstages Napoles in
Senate Hearing" by Norman Bordadora and TJ Borgonio, published on 06 March 2014, none of
which were ever furnished Sen. Estrada prior to the issuance of the challenged Joint Resolution,
despite written request.

xxxx

II
THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT RESOLUTION DATED 28
MARCH 2014 AND CHALLENGED JOINT ORDER DATED 04 JUNE 2014, NOT ONLY ACTED WITHOUT OR
IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION, BUT ALSO VIOLATED SEN. ESTRADA’S CONSTITUTIONAL RIGHT TO DUE
PROCESS OF LAW AND TO EQUAL PROTECTION OF THE LAWS.

xxxx

2.17 x x x x

Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even arbitrarily limited
the filing of Sen. Estrada’s comment to the voluminous documents comprisingthe documents it
furnished Sen. Estrada to a "non-extendible" period offive (5) days, making it virtually impossible for
Sen. Estrada to adequately study the charges leveled against him and intelligently respond to them.
The Joint Order also failed to disclose the existence of other counter-affidavits and failed to furnish
Sen. Estrada copies of such counter-affidavits.51
Sen. Estrada has not been candid with this Court. His claim that the finding of probable cause was the
"sole issue" he raised before the Ombudsman in his Motion for Reconsideration dated 7 April 2014 is
obviously false.

Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsman’s 4 June 2014 Joint
Order which denied his motion for reconsideration of the 28 March 2014 Joint Resolution, Sen. Estrada
did not mention that the 4 June 2014 Joint Order stated that the Ombudsman "held in abeyance the
disposition of the motions for reconsideration in this proceeding in light of its grant to [Sen. Estrada] a
period of five days from receipt of the 7 May 2014 [Joint] Order to formally respond to the
abovenamed co-respondent’s claims."

Sen. Estrada claims that his rights were violated but he flouts the rules himself.

The rule against forum shopping is not limited tothe fulfillment of the requisites of litis pendentia. 52 To
determine whether a party violated the rule against forum shopping, the most important factor to ask
is whether the elements of litis pendentia are present, or whether a final judgment in one case will
amount to res judicatain another.53 Undergirding the principle of litis pendentia is the theory that a
party isnot allowed to vex another more than once regarding the same subject matter and for the
same cause of action. This theory is founded on the public policy that the same matter should not be
the subject of controversy in court more than once in order that possible conflicting judgments may be
avoided, for the sake of the stability in the rights and status of persons. 54

x x x [D]espite the fact that what the petitioners filed wasa petition for certiorari, a recourse that – in
the usual course and because of its nature and purpose – is not covered by the rule on forum shopping.
The exception from the forum shopping rule, however, is true only where a petition for certiorari is
properly or regularly invoked in the usual course; the exception does not apply when the relief sought,
through a petition for certiorari, is still pending with or has as yet to be decided by the respondent
court, tribunal or body exercising judicial or quasi-judicial body, e.g., a motion for reconsideration of
the order assailed via a petition for certiorari under Rule 65, as in the present case. This conclusion is
supported and strengthened by Section 1, Rule 65 of the Revised Rules of Court which provides that
the availability of a remedy in the ordinary course of law precludes the filing of a petition for certiorari;
under this rule, the petition’s dismissal is the necessary consequence if recourse to Rule 65 is
prematurely taken.

To be sure, the simultaneous remedies the petitioners sought could result in possible conflicting
rulings, or at the very least, to complicated situations, between the RTC and the Court of Appeals. An
extreme possible result is for the appellate court to confirm that the RTC decision is meritorious, yet
the RTC may at the same time reconsider its ruling and recall its order of dismissal. In this eventuality,
the result is the affirmation of the decision that the court a quo has backtracked on. Other
permutations depending on the rulings of the two courts and the timing of these rulings are possible.
In every case, our justice system suffers as this kind of sharp practice opens the system to the
possibility of manipulation; to uncertainties when conflict of rulings arise; and at least to vexation for
complications other than conflict of rulings. Thus, it matters not that ultimately the Court of Appeals
may completely agree with the RTC; what the rule on forum shopping addresses are the possibility and
the actuality of its harmful effects on our judicial system. 55

Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging violation of due process
by the Ombudsman even as his Motion for Reconsideration raising the very same issue remained
pending with the Ombudsman. This is plain and simple forum shopping, warranting outright dismissal
of this Petition.

SUMMARY

The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its supporting affidavits and
documents, fully complied with Sections 3 and 4 of Rule 112 of the Revised Rules of Criminal
Procedure, and Section 4, Rule II of the Rules of Procedure of the Office of the Ombudsman,
Administrative Order No. 7. Both the Revised Rules of Criminal Procedure and the Rules of Procedure
of the Office of the Ombudsman require the investigating officer to furnish the respondent with copies
of the affidavits of the complainant and affidavits of his supporting witnesses. Neither of these Rules
require the investigating officer to furnish the respondent with copies of the affidavits of his co-
respondents. The right of the respondent is only "to examine the evidence submitted by the
complainant," as expressly stated in Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure.
This Court has unequivocally ruled in Paderanga that "Section 3, Rule 112 of the Revised Rules of
Criminal Procedure expressly provides that the respondent shall only have the right to submit a
counter-affidavit, to examine all other evidence submitted by the complainant and, where the fiscal
sets a hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an
opportunity to be present but without the right to examine or cross-examine." Moreover, Section 4 (a,
b and c) of Rule II of the Ombudsman’s Rule of Procedure, read together, only require the investigating
officer to furnish the respondent with copies of the affidavits of the complainant and his supporting
witnesses.1âwphi1 There is no law or rule requiring the investigating officer to furnish the respondent
with copies of the affidavits of his co-respondents.

In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even furnished Sen.
Estrada with copies of the counter-affidavits of his co-respondents whom he specifically named, as well
as the counteraffidavits of some of other co-respondents. In the 4 June 2014 Joint Order, the
Ombudsman even held in abeyancethe disposition of the motions for reconsideration because the
Ombudsman granted Sen. Estrada five days from receipt of the 7 May 2014 Joint Order to formally
respond to the claims made by his co-respondents. The Ombudsman faithfully complied with the
existing Rules on preliminary investigation and even accommodated Sen. Estrada beyond what the
Rules required. Thus, the Ombudsman could not be faulted with grave abuse of discretion. Since this is
a Petition for Certiorari under Rule 65, the Petition fails in the absence of grave abuse of discretion on
the part of the Ombudsman.

The constitutional due process requirements mandated in Ang Tibay, as amplified in GSIS, are not
applicable to preliminary investigations which are creations of statutory law giving rise to mere
statutory rights. A law can abolish preliminary investigations without running afoul with the
constitutional requirements of dueprocess as prescribed in Ang Tibay, as amplified in GSIS. The present
procedures for preliminary investigations do not comply, and were never intended to comply, with Ang
Tibay, as amplified in GSIS. Preliminary investigations do not adjudicate with finality rights and
obligations of parties, while administrative investigations governed by Ang Tibay, as amplified in GSIS,
so adjudicate. Ang Tibay,as amplified in GSIS, requires substantial evidencefor a decision against the
respondent in the administrative case.In preliminary investigations, only likelihood or probability of
guiltis required. To apply Ang Tibay,as amplified in GSIS,to preliminary investigations will change the
quantum of evidence required to establish probable cause. The respondent in an administrative case
governed by Ang Tibay,as amplified in GSIS,has the right to an actual hearing and to cross-examine the
witnesses against him. In preliminary investigations, the respondent has no such rights.
Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the hearing officer must be
impartial and cannot be the fact-finder, investigator, and hearing officer atthe same time. In
preliminary investigations, the same public officer may be the investigator and hearing officer at the
same time, or the fact-finder, investigator and hearing officer may be under the control and
supervisionof the same public officer, like the Ombudsman or Secretary of Justice. This explains why
Ang Tibay, as amplified in GSIS, does not apply to preliminary investigations. To now declare that the
guidelines in Ang Tibay, as amplified in GSIS, are fundamental and essential requirements in
preliminary investigations will render all past and present preliminary investigations invalid for
violation of constitutional due process. This will mean remanding for reinvestigation all criminal cases
now pending in all courts throughout the country. No preliminary investigation can proceeduntil a new
law designates a public officer, outside of the prosecution service, to determine probable cause.
Moreover, those serving sentences by final judgment would have to be released from prison because
their conviction violated constitutional due process. Sen. Estrada did not file a Motion for
Reconsideration of the 27 March 2014 Order in OMB-C-C-13-0313 denying his Request, which is the
subject of the present Petition. He should have filed a Motion for R econsideration, in the same
manner that he filed a Motion for Reconsideration of the 15 May 2014 Order denying his motion to
suspend proceedings. The unquestioned rule in this jurisdiction is that certiorari will lie only if there is
no appeal or any other plain, speedy and adequate remedy in the ordinary course of law against the
acts of the public respondent.56 The plain, speedy and adequate remedy expressly provided by law is a
Motion for Reconsideration of the 27 March 2014 Order of the Ombudsman. Sen. Estrada's failure to
file a Motion for Reconsideration renders this Petition premature.

Sen. Estrada also raised in this Petition the same issue he raised in his Motion for Reconsideration of
the 28 March 2014 Joint Resolution of the Ombudsman finding probable cause. While his Motion for
Reconsideration of the 28 March 2014 Joint Resolution was pending, Sen. Estrada did not wait for the
resolution of the Ombudsman and instead proceeded to file the present Petition for Certiorari. The
Ombudsman issued a Joint Order on 4 June 2014 and specifically addressed the issue that Sen. Estrada
is raising in this Petition. Thus, Sen. Estrada's present Petition for Certiorari is not only premature, it
also constitutes forum shopping. WHEREFORE, we DISMISS the Petition for Certiorari in G.R. Nos.
212140-41.

SO ORDERED.
 SECOND DIVISION

G.R. No. 195956, March 11, 2015

ABS-CBN CORPORATION, Petitioner, v. FELIPE GOZON, GILBERTO R. DUAVIT, JR., MARISSA L. FLORES,

JESSICA A. SOHO, GRACE DELA PEÑA-REYES, JOHN OLIVER T. MANALASTAS, JOHN DOES AND JANE
DOES, Respondents.

DECISION

LEONEN, J.:

The main issue in this case is whether there is probable cause to charge respondents with infringement
under Republic Act No. 8293, otherwise known as the Intellectual Property Code. The resolution of this
issue requires clarification of the concept of "copyrightable material" in relation to material that is
rebroadcast live as a news story. We are also asked to rule on whether criminal prosecution for
infringement of copyrightable material, such as live rebroadcast, can be negated by good faith.

ABS-CBN Corporation (ABS-CBN) filed the Petition for Review on Certiorari 1 to assail the November 9,
2010 Decision2 and the March 3, 2011 Resolution3 of the Court of Appeals. The Court of Appeals
reinstated the Department of Justice Resolution dated August 1, 2005 that ordered the withdrawal of
the Information finding probable cause for respondents' violation of Sections 177 4 and 2115 of the
Intellectual Property Code.6 Respondents are officers and employees of GMA Network, Inc. (GMA-7).
They are: Felipe Gozon (Gozon), GMA-7 President; Gilberto R. Duavit, Jr. (Duavit, Jr.), Executive Vice-
President; Marissa L. Flores (Flores), Vice-President for News and Public Affairs; Jessica A. Soho (Soho),
Director for News; Grace Déla Peña-Reyes (Dela Peña-Reyes), Head of News and Public Affairs; John
Oliver Manalastas '(Manalastas), Program Manager; and others.

The controversy arose from GMA-7's news coverage on the homecoming of Filipino overseas worker
and hostage victim Angelo dela Cruz on July 22, 2004. As summarized by the Court of
Appeals:chanroblesvirtuallawlibrary
Overseas Filipino worker Angelo dela Cruz was kidnapped by Iraqi militants and as a condition for his
release, a demand was made for the withdrawal of Filipino troops in Iraq. After negotiations, he was
released by his captors and was scheduled to return to the country in the afternoon of 22 July 2004.
Occasioned by said homecoming and the public interest it generated, both . . . GMA Network, Inc. . . .
and [petitioner] made their respective broadcasts and coverage of the live event. 7
ABS-CBN "conducted live audio-video coverage of and broadcasted the arrival of Angelo dela Cruz at
the Ninoy Aquino International Airport (NAIA) and the subsequent press conference." 8 ABS-CBN
allowed Reuters Television Service (Reuters) to air the footages it had taken earlier under a special
embargo agreement.9

ABS-CBN alleged that under the special embargo agreement, any of the footages it took would be for
the "use of Renter's international subscribers only, and shall be considered and treated by Reuters
under 'embargo' against use by other subscribers in the Philippines. . . . [N]o other Philippine
subscriber of Reuters would be allowed to use ABS-CBN footage without the latter's consent." 10

GMA-7, to which Gozon, Duavit, Jr., Flores, Soho, Dela Peña-Reyes, and Manalastas are connected,
"assigned and stationed news reporters and technical men at the NAIA for its live broadcast and non-
live news coverage of the arrival of dela Cruz."11 GMA-7 subscribes to both Reuters and Cable News
Network (CNN). It received a live video feed of the coverage of Angelo dela Cruz's arrival from
Reuters.12

GMA-7 immediately carried the live newsfeed in its program "Flash Report," together with its live
broadcast.13 Allegedly, GMA-7 did not receive any notice or was not aware that Reuters was airing
footages of ABS-CBN.14 GMA-7's news control room staff saw neither the "No Access Philippines"
notice nor a notice that the video feed was under embargo in favor of ABS-CBN. 15

On August 13, 2004, ABS-CBN filed the Complaint for copyright infringement under Sections 177 16 and
21117 of the Intellectual Property Code.18

On December 3, 2004, Assistant City Prosecutor Dindo Venturanza issued the Resolution 19 finding
probable cause to indict Dela Peña-Reyes and Manalastas. 20 Consequently, the Information21 for
violation of the Intellectual Property Code was filed on December 17, 2004. It
reads:chanroblesvirtuallawlibrary
That on or about the 22nd of July 2004, in Quezon City, Philippines, the above-named accused,
conspiring together, confederating with and mutually helping each other, being the Head of News
Operations and the Program Manager, respectively, for the News and Public Affairs Department of
GMA Network, Inc., did then and there, willfully, unlawfully and feloniously use and broadcast the
footage of the arrival of Angelo [d]ela Cruz at the Ninoy Aquino International Airport of which ABS-CBN
holds the exclusive ownership and copyright by then and there using, airing, and broadcasting the said
footage in its news program "FLASH REPORT" without first obtaining the consent or authority of said
copyright owner, to their damage and prejudice.

Contrary to law.22
On January 4, 2005, respondents filed the Petition for Review before the Department of Justice. 23 In
the Resolution (Gonzalez Resolution) dated August 1, 2005, Department of Justice Secretary Raul M.
Gonzalez (Secretary Gonzalez) ruled in favor of respondents and held that good faith may be raised as
a defense in the case.24 The dispositive portion of the Resolution reads:chanroblesvirtuallawlibrary
WHEREFORE,  THE PETITION FOR REVIEW FILED BY GMA-7 in I.S. No. 04-10458 is considered
meritorious and is hereby GRANTED. This case is hereby Dismissed, the resolution of the City
Prosecutor of Quezon City is hereby reversed and the same is ordered to withdraw the information if
any and report action taken to this office within ten (10) days. 25 (Emphasis in the original)
Both parties moved for reconsideration of the Gonzalez Resolution.26

Meanwhile, on January 19, 2005, the trial court granted the Motion to Suspend Proceedings filed
earlier by Dela Peña-Reyes and Manalastas.27 The trial court Order reads:chanroblesvirtuallawlibrary
Perusing the motion, the court finds that a petition for review was filed with the Department of Justice
on January 5, 2005 as confirmed by the public prosecutor. Under Section 11 (c), Rule 116 of the Rules
of Criminal Procedure, once a petition for review is filed with the Department of Justice, a suspension
of the criminal proceedings may be allowed by the court.
Accordingly, to allow the Department of Justice the opportunity to act on said petition for review, let
the proceedings on this case be suspended for a period of sixty (60) days counted from January 5,
2005, the date the petition was filed with the Department of Justice. The arraignment of the accused
on February 1, 2005 is accordingly cancelled. Let the arraignment be rescheduled to March 8, 2005 at
8:30 a.m. The accused through counsel are notified in open court.

SO ORDERED.28
On June 29, 2010, Department of Justice Acting Secretary Alberto C. Agra (Secretary Agra) issued the
Resolution (Agra Resolution) that reversed the Gonzalez Resolution and found probable cause to
charge Dela Peña-Reyes and Manalastas for violation of the Intellectual Property Code. 29 Secretary
Agra also found probable cause to indict Gozon, Duavit, Jr., Flores, and Soho for the same
violation.30 He ruled that:chanroblesvirtuallawlibrary
[w]hile good faith may be a defense in copyright infringement, the same is a disputable presumption
that must be proven in a full-blown trial. Disputable presumptions may be contradicted and overcome
by other evidence. Thus, a full-blown trial is the proper venue where facts, issues and laws are
evaluated and considered. The very purpose of trial is to allow a party to present evidence to
overcome the disputable presumptions involved.31
The dispositive portion of the Agra Resolution provides:chanroblesvirtuallawlibrary
WHEREFORE, premises considered:

(a) The Motion for Reconsideration filed by appellees ABS-CBN Broadcasting Corporation (ABS-CBN) of

our Resolution promulgated on August 1, 2005 (Resolution No. 364, Series of 2005) and the Petition
for Review filed by complainant-appellant ABS-CBN in I.S. No. 04-10458 on April 10, 2006, are
GRANTED and the City Prosecutor of Quezon City is hereby ordered to file the necessary Information
for violation of Section 177 and 211 of Republic Act No. 8293 against GMA-7. Felipe L. Gozon, Gilberto
R. Duavit, Jr., Marissa L. Flores, Jessica A. Soho, Grace Dela Pena-Reyes, John Oliver T. Manalastas[.]

SO ORDERED.32 (Emphasis in the original)

Respondents assailed the Agra Resolution through the Petition for Certiorari with prayer for issuance of
a temporary restraining order and/or Writ of Preliminary Injunction on September 2, 2010 before the
Court of Appeals. In the Resolution dated September 13, 2010, the Court of Appeals granted the
temporary restraining order preventing the Department of Justice from enforcing the Agra
Resolution.33

On November 9, 2010, the Court of Appeals rendered the Decision granting the Petition and reversing
and setting aside the Agra Resolution.34 The Court of Appeals held that Secretary Agra committed
errors of jurisdiction in issuing the assailed Resolution.  Resolving the issue of copyright infringement,
the Court of Appeals said:chanroblesvirtuallawlibrary
Surely, private respondent has a copyright of its news coverage. Seemingly, for airing said video feed,
petitioner GMA is liable under the provisions of the Intellectual Property Code, which was enacted
purposely to protect copyright owners from infringement. However, it is an admitted fact that
petitioner GMA had only aired a five (5) second footage of the disputed live video feed that it had
received from Reuters and CNN as a subscriber. Indeed, petitioners had no notice of the right of
ownership of private respondent over the same. Without notice of the "No Access Philippines"
restriction of the live video feed, petitioner cannot he faulted for airing a live video feed from Reuters
and CNN.

Verily, as aptly opined by Secretary Gonzalez in his earlier Resolution, the act of petitioners in airing the
five (5) second footage was undeniably attended by good faith and it thus serves to exculpate them
from criminal liability under the Code.  While the Intellectual Properly Code is a special law, and thus
generally categorized as malum prohibitum, it bears to stress that the provisions of the Code itself do
not ipso facto penalize a person or entity for copyright infringement by the mere fact that one had used
a copyrighted work or material.

Certainly so, in the exercise of one's moral and economic or copyrights, the very provisions of Part IV of
the Intellectual Property Code provide for the scope and limitations on copyright protection under
Section 184 and in fact permit fair use of copyrighted work under Section 185. With the aforesaid
statutory limitations on one's economic and copyrights and the allowable instances where the other
persons can legally use a copyrighted work, criminal culpability clearly attaches only when the
infringement had been knowingly and intentionally committed.35 (Emphasis supplied)
The dispositive portion of the Decision reads:chanroblesvirtuallawlibrary
WHEREFORE, the foregoing considered, the instant petition is hereby GRANTED and the assailed
Resolution dated 29 June 2010 REVERSED and SET ASIDE. Accordingly, the earlier Resolution dated 1
August 2005, which ordered the withdrawal of the Information filed, if any, against the petitioners for
violation of Sections 177 and 211 of the Intellectual Property Code, is hereby REINSTATED. No costs.

SO ORDERED.36 (Emphasis in the original)

ABS-CBN's Motion for Reconsideration was denied.37 It then filed its Petition for Review before this
court assailing the Decision and Resolution of the Court of Appeals.38

The issues for this court's consideration are:

First, whether Secretary Agra committed errors of jurisdiction in the Resolution dated June 29, 2010
and, therefore, whether a petition for certiorari was the proper remedy in assailing that Resolution;

Second, whether news footage is copyrightable under the law;

Third, whether there was fair use of the broadcast material;

Fourth, whether lack of knowledge that a material is copyrighted is a defense against copyright
infringement;

Fifth, whether good faith is a defense in a criminal prosecution for violation of the Intellectual Property
Code; and

Lastly, whether the Court of Appeals was correct in overturning Secretary Agra's finding of probable
cause.cralawlawlibrary

The trial court granted respondents' Motion to Suspend Proceedings and deferred respondents Dela
Peña-Reyes and Manalastas' arraignment for 60 days in view of the Petition for Review filed before the
Department of Justice.

Rule 116, Section 11 (c) of the Rules of Criminal Procedure allows the suspension of the accused's
arraignment in certain circumstances only:chanroblesvirtuallawlibrary
SEC. 11.  Suspension of arraignment.-Upon motion by the proper party, the arraignment shall be
suspended in the following cases:

(a) The accused appears to be suffering from an unsound mental condition which effectively renders
him unable to fully understand the charge against him and to plead intelligently thereto.  In such case,
the court shall order his mental examination and, if necessary, his confinement for such purpose;

(b) There exists a prejudicial question; and

(c) A petition for review of the resolution of the prosecutor is pending at either the Department of
Justice, or the Office of the President; provided, that the period of suspension shall not exceed sixty (60)
days counted from the filing of the petition with the reviewing office. (12a) (Emphasis supplied)
In Samson v. Daway,39 this court acknowledged the applicability of Rule 116, Section (c) in a criminal
prosecution for infringement under the Intellectual Property Code. However, this court emphasized
the limits of the order of deferment under the Rule:

While the pendency of a petition for review is a ground for suspension of the arraignment, the . . .
provision limits the deferment of the arraignment to a period of 60 days reckoned from the filing of the
petition with the reviewing office. It follows, therefore, that after the expiration of said period, the trial
court is bound to arraign the accused or to deny the motion to defer arraignment.40

We clarify that the suspension of the arraignment should always be within the limits allowed by law.
In Crespo v. Judge Mogul,41 this court outlined the effects of filing an information before the trial court,
which includes initiating a criminal action and giving this court "authority to hear and determine the
case":42ChanRoblesVirtualawlibrary
The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima
facie case exists warranting the prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of said information sets in motion
the criminal action against the accused in Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for
appropriate action. While it is true that the fiscal has the quasi judicial discretion to determine whether
or not a criminal case should be filed in court or not, once the case had already been brought to Court
whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed
for the consideration of the Court, the only qualification is that the action of the Court must not impair
the substantial rights of the accused or the right of the People to due process of law.

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the
fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court,
the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on
the merits proceed for the proper determination of the case.

However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon
the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state
prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not
believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of
the case thereby defying the superior order of the Secretary of Justice.
The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is done
and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of
his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of
the prosecution to the Court to enable the Court to arrive at its own independent judgment as to
whether the accused should be convicted or acquitted. The fiscal should not shirk from the
responsibility of appearing for the People of the Philippines even under such circumstances much less
should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then
the entire proceedings will be null and void. The least that the fiscal should do is to continue to appear
for the prosecution although he may turn over the presentation of the evidence to the private
prosecutor but still under his direction and control.

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound
discretion of the Court. Although the fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in Court he cannot impose his opinion on the trial
court. The Court is the best and sole judge on what to do with the case before it. The determination of
the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the
fiscal should be addressed to the Court who has the option to grant or deny the same. It does not
matter if this is done before or after the arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the
investigation.43 (Emphasis supplied, citations omitted)
The doctrine in Crespo was reiterated in Mayor Balindong v. Court of Appeals,44 where this court
reminded the Department of Justice Secretary to refrain from entertaining petitions for review when
the case is already pending with this court:chanroblesvirtuallawlibrary
[I]n order to avoid a situation where the opinion of the Secretary of Justice who reviewed the action of
the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable,
refrain from entertaining a petition for review or appeal from the action of the fiscal, when the
complaint or information has already been filed in the Court. The matter should be left entirely for the
determination of the Court.45
The trial court should have proceeded with respondents Dela Peña-Reyes and Manalastas' arraignment
after the 60-day period from the filing of the Petition for Review before the Department of Justice on
March 8, 2005. It was only on September 13, 2010 that the temporary restraining order was issued by
the Court of Appeals. The trial court erred when it did not act on the criminal case during the interim
period. It had full control and direction of the case. As Judge Mogul reasoned in denying the motion to
dismiss in Crespo, failure to proceed with the arraignment "disregards the requirements of due process
[and] erodes the Court's independence and integrity."46

II
According to ABS-CBN, the Court of Appeals erred in finding that: a motion for reconsideration was not
necessary before a petition for certiorari could be filed; the Department of Justice Secretary committed
errors of jurisdiction since the Agra Resolution was issued within its authority and in accordance with
settled laws and jurisprudence; and respondents were not liable for copyright infringement.

In its assailed Decision, the Court of Appeals found that respondents committed a procedural error
when they failed to file a motion for reconsideration before filing the Petition for Certiorari. However,
the Court of Appeals held that a motion for reconsideration was unnecessary since the Agra Resolution
was a patent nullity and it would have been useless under the
circumstances:chanroblesvirtuallawlibrary
Given that a reading of the assailed Resolution and the instant records readily reveals errors -of
jurisdiction on the part of respondent Secretary, direct judicial recourse is warranted under the
circumstances. Aside from the fact that said Resolution is a patent nullity having been issued in grave
abuse of discretion amounting to lack or excess of jurisdiction, the filing of a motion for
reconsideration is evidently useless on account of the fact that the issues and arguments before this
Court have already been duly raised and accordingly delved into by respondent Secretary in his
disposition of the petition a quo.47 (Emphasis in the original)
In Elma v. Jacobi,48 this court ruled that a petition for certiorari under Rule 65 of the Rules of Court is
proper when assailing adverse resolutions of the Department of Justice stemming from the
determination of probable cause.49  However, grave abuse of discretion must be alleged.50

In Sanrio Company Limited v. Lim,51 this court stressed the prosecutor's role in determining probable
cause. Judicial review will only lie when it is shown that the prosecutor acted with grave abuse of
discretion amounting to lack or excess of jurisdiction:chanroblesvirtuallawlibrary
A prosecutor alone determines the sufficiency of evidence that will establish probable cause justifying
the filing of a criminal information against the respondent. By way of exception, however, judicial
review is allowed where respondent has clearly established that the prosecutor committed grave
abuse of discretion. Otherwise stated, such review is appropriate only when the prosecutor has
exercised his discretion in an arbitrary, capricious, whimsical or despotic manner by reason of passion
or personal hostility, patent and gross enough to amount to an evasion of a positive duty or virtual
refusal to perform a duty enjoined by law.52  (Citations omitted)
Grave abuse of discretion refers to:chanroblesvirtuallawlibrary
such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of
discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason
of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive
duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of law. 53
Resorting to certiorari requires that there be there be "no appeal, or any plain, speedy, and adequate
remedy in the ordinary course of law[,]"54 such as a motion for reconsideration. Generally, "a motion
for reconsideration is a condition sine qua non before a petition for certiorari may lie, its purpose being
to grant an opportunity for the [tribunal or officer] to correct any error attributed to it by a re-
examination of the legal and factual circumstances of the case." 55

However, exceptions to the rule exist:chanroblesvirtuallawlibrary

(a) where the order is a patent nullity, as where the Court a quo had no jurisdiction; (b) where the
questions raised in the certiorari proceeding have been duly raised and passed upon by the lower
court, or are the same as those raised and passed upon in the lower court; (c) where there is an urgent
necessity for the resolution of the question and any further delay would prejudice the interests of the
Government or of the petitioner or the subject matter of the action is perishable; (d) where, under the
circumstances, a motion for reconsideration would be useless; (e) where petitioner was deprived of
due process and there is extreme urgency for relief; (f) where, in a criminal case, relief from an order of
arrest is urgent and the granting of such relief by the trial Court is improbable; (g) where the
proceedings in the lower court are a nullity for lack of due process; (h) where the proceedings was ex
parte or in which the petitioner had no opportunity to object; and (i) where the issue raised is one
purely of law or where public interest is involved.56 (Emphasis in the original, citations omitted)
As argued by respondents, "[a] second motion for reconsideration would have been useless and futile
since the Department] [of] J[ustice] had already passed upon the same issues twice." 57 Equally pressing
under the circumstances was the need to resolve the matter, as the Information's filing would lead to
respondents' imminent arrest.58

Moreover, Department of Justice Department Circular No. 70 dated July 3, 2000, or the 2000 NPS Rules
on Appeal, provides that no second motion for reconsideration of the Department of Justice
Secretary's resolution shall be entertained:chanroblesvirtuallawlibrary
SECTION 13. Motion for reconsideration. The aggrieved party may file a motion for reconsideration
within a non-extendible period of ten (10) days from receipt of the resolution on appeal, furnishing the
adverse party and the Prosecution Office concerned with copies thereof and submitting proof of such
service. No second or further motion for reconsideration shall be entertained.
The Agra Resolution was the result of respondents' Motion for Reconsideration assailing the Gonzalez
Resolution. To file a motion for reconsideration of the Agra Resolution would be superfluous.
Respondents were, therefore, correct in filing the Petition for Certiorari of the Agra Resolution before
the Court of Appeals.cralawlawlibrary

III
The Court of Appeals ruled that Secretary Agra committed errors of jurisdiction, which then required
the grant of the writ of certiorari:chanroblesvirtuallawlibrary
So viewed, by ordering the filing of information without proof that probable cause exists to charge
petitioners with a crime, respondent Secretary clearly committed an error of jurisdiction thus
warranting the issuance of the writ of certiorari. Surely, probable cause cannot be had when the very
provisions of the statute exculpates criminal liability in cases classified as fair use of copyrighted
materials. The fact that they admittedly used the Reuters live video feed is not, as a matter of course,
tantamount to copyright infringement that would justify the filing of an information against the
petitioners.59
Error of jurisdiction must be distinguished from error of judgment:

A line must be drawn between errors of judgment and errors of jurisdiction. An error of judgment is
one which the court may commit in the exercise of its jurisdiction. An error of jurisdiction renders an
order or judgment void or voidable. Errors of jurisdiction are reviewable on certiorari; errors of
judgment, only by appeal.60

In People v. Hon. Sandiganbayan61:chanroblesvirtuallawlibrary

An error of judgment is one which the court may commit in the exercise of its jurisdiction. An error of
jurisdiction is one where the act complained of was issued by the court without or in excess of
jurisdiction, or with grave abuse of discretion, which is tantamount to lack or in excess of jurisdiction
and which error is correctible only by the extraordinary writ of certiorari. Certiorari will not be issued
to cure errors of the trial court in its appreciation of the evidence of the parties, or its conclusions
anchored on the said findings and its conclusions of law.62 (Emphasis supplied)
This court has adopted a deferential attitude towards review of the executive's finding of probable
cause.63 This is based "not only upon the respect for the investigatory and [prosecutorial] powers
granted by the Constitution to the executive department but upon practicality as well." 64 Review of the
Department of Justice Secretary's decision or resolution will be allowed only when grave abuse of
discretion is alleged:chanroblesvirtuallawlibrary
The full discretionary authority to determine probable cause in a preliminary investigation to ascertain
sufficient ground for the filing of information rests with the executive branch. Hence, judicial review of
the resolution of the Secretary of Justice is limited to a determination whether there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction. Courts cannot substitute the executive
branch's judgment.
.       .       .       .
It is only where the decision of the Justice Secretary is tainted with grave abuse of discretion amounting
to lack or excess of jurisdiction that the Court of Appeals may take cognizance of the case in a petition
for certiorari under Rule 65 of the Revised Rules of Civil Procedure. The Court of Appeals decision may
then be appealed to this Court by way of a petition for review on certiorari. 65 (Emphasis supplied,
citations omitted)
In this case, it must be shown that Secretary Agra exceeded his authority when he reversed the
findings of Secretary Gonzalez. This court must determine whether there is probable cause to file an
information for copyright infringement under the Intellectual Property Code.cralawlawlibrary

IV
Probable cause pertains to "such facts as are sufficient to engender a well-founded belief that a crime
has been committed and that respondent is probably guilty thereof." 66 Preliminary investigation is the
inquiry or proceeding to determine whether there is probable cause.67

In Webb v. De Leon,68 this court ruled that determination of probable cause during preliminary
investigation does not require trial-like evaluation of evidence since existence of probable cause does
not equate to guilt:chanroblesvirtuallawlibrary
It ought to be emphasized that in determining probable cause, the average man weighs facts and
circumstances without resorting to the calibrations of our technical rules of evidence of which his
knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have
an abundance.

.       .       .       .

. . . A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement
of guilt.69
In Reyes v. Pearlbank Securities, Inc.,70 finding probable cause is not equivalent to finding with moral
certainty that the accused committed the crime:

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime
has been committed by the suspects. It need not be based on clear and convincing evidence of guilt,
not on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence
establishing absolute certainty of guilt. In determining probable cause, the average man weighs facts
and circumstances without resorting to the calibrations of the rules of evidence of which he has no
technical knowledge. He relies on common sense.71

During preliminary investigation, a public prosecutor does not adjudicate on the parties' rights,
obligations, or liabilities.72

In the recent case of Estrada v. Office of the Ombudsman, et al,73 we reiterated Webb on the
determination of probable cause during preliminary investigation and traced the history of probable
cause as borrowed from American jurisprudence:chanroblesvirtuallawlibrary
The purpose in determining probable cause is to make sure that the courts are not clogged with weak
cases that will only be dismissed, as well as to spare a person from the travails of a needless
prosecution.
.       .       .       .
. . . In the United States, from where we borrowed the concept of probable cause, the prevailing
definition of probable cause is this:chanroblesvirtuallawlibrary
In dealing with probable cause, however, as the very name implies, we deal with probabilities. These
are not technical; they are the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative
to what must be proved.

"The substance of all the definitions" of probable cause "is a reasonable ground for belief of
guilt." McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267 U. S. at
161. And this "means less than evidence which would justify condemnation" or conviction, as Marshall,
C. J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339, 348. Since
Marshall's time, at any rate, it has come to mean more than bare suspicion: Probable cause exists
where "the facts and circumstances within their [the officers'] knowledge and of which they had
reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable
caution in the belief that" an offense has been or is being committed. Carroll v. United States, 267 U. S.
132, 162.

These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences
with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the
law in the community's protection. Because many situations which confront officers in the course of
executing their duties are more or less ambiguous, room must be allowed for some mistakes on their
part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their
conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording
the best compromise that has been found for accommodating these often opposing interests.
Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding
citizens at the mercy of the officers' whim or caprice.
In the Philippines, there are four instances in the Revised Rules of Criminal Procedure where probable
cause is needed to be established:

(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine whether there is
sufficient ground to engender a well-founded belief that a crime has been committed and
the respondent is probably guilty thereof, and should be held for trial. A preliminary
investigation is required before the filing of a complaint or information for an offense
where the penalty prescribed by law is at least four years, two months and one day
without regard to the fine;
(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of arrest or
a commitment order, if the accused has already been arrested, shall be issued and that
there is a necessity of placing the respondent under immediate custody in order not to
frustrate the ends of justice;
(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a warrantless
arrest 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
(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be
issued, and only upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to
be searched and the things to be seized which may be anywhere in the
Philippines.
In all these instances, the evidence necessary to establish probable cause is based only on the
likelihood, or probability, of guilt.74
Estrada also highlighted that a "[preliminary investigation is not part of the criminal action. It is merely
preparatory and may even be disposed of in certain situations." 75

To determine whether there is probable cause that respondents committed copyright infringement, a
review of the elements of the crime, including the existing facts, is required.cralawlawlibrary

V
ABS-CBN claims that news footage is subject to copyright and prohibited use of copyrighted material is
punishable under the Intellectual Property Code. It argues that the new footage is not a "newsworthy
event" but "merely an account of the arrival of Angelo dela Cruz in the Philippines — the latter being
the newsworthy event":76ChanRoblesVirtualawlibrary
To be clear, it is the event itself or the arrival of Angelo dela Cruz which is not copyrightable because
that is the newsworthy event. However, any footage created from the event itself, in this case the
arrival of Angelo dela Cruz, are intellectual creations which are copyrightable. Thus, the footage
created by ABS-CBN during the arrival of Angelo dela Cruz, which includes the statements of Dindo
Amparo, are copyrightable and protected by the laws on copyright. 77
On the other hand, respondents argue that ABS-CBN's news footage of Angelo dela Cruz's arrival is not
copyrightable or subject to protection:chanroblesvirtuallawlibrary
Certainly, the arrival of Angelo [d]ela Cruz, which aroused public attention and the consciousness of the
Filipino people with regard to their countrymen, OFWs working in foreign countries and how the
Philippine government responds to the issues concerning them, is "news". There is no ingenuity or
inventiveness added in the said news footage. The video footage of this "news" is not copyrightable by
any legal standard as facts of everyday life depicted in the news and items of press information is part
of the public domain.78 (Emphasis in the original)
The news footage is copyrightable.

The Intellectual Property Code is clear about the rights afforded to authors of various kinds of work.
Under the Code, "works are protected by the sole fact of their creation, irrespective of their mode or
form of expression, as well as of their content, quality and purpose." 79 These include "[audio-visual
works and cinematographic works and works produced by a process analogous to cinematography or
any process for making audiovisual recordings."80

Contrary to the old copyright law,81 the Intellectual Property Code does not require registration of the
work to fully recover in an infringement suit. Nevertheless, both copyright laws provide that copyright
for a work is acquired by an intellectual creator from the moment of creation. 82

It is true that under Section 175 of the Intellectual Property Code, "news of the day and other
miscellaneous facts having the character of mere items of press information" are considered
unprotected subject matter.83  However, the Code does not state that expression of the news of the
day, particularly when it underwent a creative process, is not entitled to protection.

An idea or event must be distinguished from the expression of that idea or event. An idea has been
likened to a ghost in that it "must be spoken to a little before it will explain itself." 84 It is a concept that
has eluded exact legal definition.85 To get a better grasp of the idea/expression dichotomy, the
etymology of the term "idea" is traced:chanroblesvirtuallawlibrary
The word "idea" is derived from a Greek term, meaning "a form, the look or appearance of a thing as
opposed to its reality, from idein, to see." In the Timaeus, Plato saw ideas as eternal paradigms,
independent objects to which the divine demiurge looks as patterns in forming the world. This was
later modified to the religious conception of ideas as the thoughts of God. "It is not a very long step to
extend the term 'idea' to cover patterns, blueprints, or plans in anyone's mind, not only in God's." The
word entered the French and English vernacular in the 1600s and possessed two meanings. The first
was the Platonic meaning of a perfect exemplar or paradigm. The second, which probably has its origin
with Descartes, is of a mental concept or image or, more broadly, any object of the mind when it is
active. Objects of thought may exist independently. The sun exists (probably) before and after you
think of it. But it is also possible to think of things that have never existed, such as a unicorn or
Pegasus. John Locke defined ideas very comprehensively, to include: all objects of the mind. Language
was a way of translating the invisible, hidden ideas that make up a person's thoughts into the external,
perceptible world of articulate sounds and visible written symbols that others can
understand.86 (Citations omitted)
There is no one legal definition of "idea" in this jurisdiction. The term "idea" is mentioned only once in
the Intellectual Property Code.87 In Joaquin, Jr. v. Drilon,88 a television format (i.e., a dating show
format) is not copyrightable under Section 2 of Presidential Decree No. 49; 89 it is a mere
concept:chanroblesvirtuallawlibrary
P.D. No. 49, §2, in enumerating what are subject to copyright, refers to finished works and not to
concepts. The copyright does not extend to an idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or
embodied in such work. Thus, the new INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES
provides:chanroblesvirtuallawlibrary
SEC. 175. Unprotected Subject Matter.—Notwithstanding the provisions of Sections 172 and 173, no
protection shall extend, under this law, to any idea, procedure, system, method or operation, concept,
principle, discovery or mere data as such, even if they are expressed, explained, illustrated or
embodied in a work; news of the day and other miscellaneous facts having the character of mere items
of press information; or any official text of a legislative, administrative or legal nature, as well as any
official translation thereof.
What then is the subject matter of petitioners' copyright? This Court is of the opinion that petitioner
BJPFs copyright covers audio-visual recordings of each episode of Rhoda and Me, as falling within the
class of works mentioned in P.D. 49, §2(M), to wit:chanroblesvirtuallawlibrary
Cinematographic works and works produced by a process analogous to cinematography or any process
for making audio-visual recordings;
The copyright does not extend to the general concept or format of its dating game show. Accordingly,
by the very nature of the subject of petitioner BJPI's copyright, the investigating prosecutor should
have the opportunity to compare the videotapes of the two shows.

Mere description by words of the general format of the two dating game shows is insufficient; the
presentation of the master videotape in evidence was indispensable to the determination of the
existence of probable cause. As aptly observed by respondent Secretary of Justice:

A television show includes more than mere words can describe because it involves a whole spectrum of
visuals and effects, video and audio, such that no similarity or dissimilarity may be found by merely
describing the general copyright/format of both dating game shows 90 (Emphasis supplied, citations
omitted)
Ideas can be either abstract or concrete.91 It is the concrete ideas that are generally referred to as
expression:chanroblesvirtuallawlibrary
The words "abstract" and "concrete" arise in many cases dealing with  the  idea/expression distinction. 
The Nichols court, for example, found that the defendant's film did not infringe the plaintiffs play
because it was "too generalized an abstraction from what plaintiff wrote . . . only a part of her ideas."
In Eichel v. Marcin, the court said that authors may exploit facts, experiences, field of thought, and
general ideas found in another's work, "provided they do not substantially copy a concrete form, in
which the circumstances and ideas have been developed, arranged, and put into shape." Judge Hand,
in National Comics Publications, Inc. v. Fawcett Publications, Inc. said that "no one infringes, unless he
descends so far into what is concrete as to invade. . . 'expression.'"

These cases seem to be distinguishing "abstract" ideas from "concrete" tangible embodiments of these
abstractions that may be termed expression. However, if the concrete form of a work means more
than the literal expression contained within it, it is difficult to determine what is meant by
"concrete." Webster's New Twentieth Century Dictionary of the English Language provides several
meanings for the word concrete. These include: "having a material, perceptible existence; of, belonging
to, or characterized by things or events that can be perceived by the senses; real; actual;" and
"referring to a particular; specific, not general or abstract." 92
In Pearl & Dean (Phil.), Incorporated v. Shoemart, Incorporated,93 this court, citing the American case
of Baker v. Selden, distinguished copyright from patents and illustrated how an idea or concept is
different from the expression of that idea:chanroblesvirtuallawlibrary
In the oft-cited case of Baker vs. Selden, the United States Supreme Court held that only the expression
of an idea is protected by copyright, not the idea itself. In that case, the plaintiff held the copyright of a
book which expounded on a new accounting system he had developed. The publication illustrated
blank forms of ledgers utilized in such a system. The defendant reproduced forms similar to those
illustrated in the plaintiffs copyrighted book. The US Supreme Court ruled
that:chanroblesvirtuallawlibrary
"There is no doubt that a work on the subject of book-keeping, though only explanatory of well known
systems, may be the subject of a copyright; but, then, it is claimed only as a book, x x x But there is a
clear distinction between the books, as such, and the art, which it is, intended to illustrate. The mere
statement of the proposition is so evident that it requires hardly any argument to support ii. The same
distinction may be predicated of every other art as well as that of bookkeeping.

A treatise on the composition and use of medicines, be they old or new; on the construction and use of
ploughs or watches or churns; or on the mixture and application of colors for painting or dyeing; or on
the mode of drawing lines to produce the effect of perspective, would be the subject of copyright; but
no one would contend that the copyright of the treatise would give the exclusive right to the art or
manufacture described therein. The copyright of the book, if not pirated from other works, would be
valid without regard to the novelty or want of novelty of its subject matter. The novelty of the art or
thing described or explained has nothing to do with the validity of the copyright. To give to the author
of the book an exclusive property in the art described therein, when no examination of its novelty has
ever been officially made, would be a surprise and a fraud upon the public. That is the province of
letters patent, not of copyright. The claim to an invention of discovery of an art or manufacture must
be subjected to the examination of the Patent Office before an exclusive right therein can be obtained;
and a patent from the government can only secure it.

The difference between the two things, letters patent and copyright, may be illustrated by reference to
the subjects just enumerated. Take the case of medicines. Certain mixtures are found to be of great
value in the healing art. If the discoverer writes and publishes a book on the subject (as regular
physicians generally do), he gains no exclusive right to the manufacture and sale of the medicine; he
gives that to the public. If he desires to acquire such exclusive right, he must obtain a patent for the
mixture as a new art, manufacture or composition of matter. He may copyright his book, if he pleases;
but that only secures to him the exclusive right of printing and publishing his book. So of all other
inventions or discoveries.

The copyright of a book on perspective, no matter how many drawings and illustrations it may contain,
gives no exclusive right to the modes of drawing described, though they may never have been known
or used before. By publishing the book without getting a patent for the art, the latter is given to the
public.

.    .    .    .

Now, whilst no one has a right to print or publish his book or any material part thereof, as a hook
intended to convey instruction in the art, any person may practice and use the, art itself which he has
described and illustrated therein. The use of the art is a totally different thing from a publication of the
book, explaining it. The copyright of a book on bookkeeping cannot secure the exclusive right to make,
sell and use account books prepared upon the plan set forth in such book. Whether the art might or
might not have been patented, is a question, which is not before us.  It was not patented, and is open
and free to the use of the public. And, of course, in using the art, the ruled lines and headings of
accounts must necessarily be used as incident to it.

The plausibility of the claim put forward by the complainant in this case arises from a confusion of
ideas produced by the peculiar nature of the art described in the books, which have been made the
subject of copyright. In describing the art, the illustrations and diagrams employed happened to
correspond more closely than usual with the actual work performed by the operator who uses the art.
x x x The description of the art in a book, though entitled to the benefit of copyright, lays no foundation
for an exclusive claim to the art itself. The object of the one is explanation; the object of the other is
use. The former may be secured by copyright. The latter can only be secured, if it can be secured at all,
by letters patent."94 (Emphasis supplied)
News or the event itself is not copyrightable. However, an event can be captured and presented in a
specific medium. As recognized by this court in Joaquin, television "involves a whole spectrum of
visuals and effects, video and audio."95 News coverage in television involves framing shots, using
images, graphics, and sound effects. It involves creative process and originality. Television news
footage is an expression of the news.

In the United States, a line of cases dwelt on the possibility of television newscasts to be
copyrighted.97 Most of these cases focused on private individuals' sale or resale of tapes of news
broadcasts. Conflicting decisions were rendered by its courts. Noteworthy, however, is the District
Court's pronouncement in Pacific & Southern Co. v. Duncan,98 which involves a News Monitoring
Service's videotaping and sale of WXIA-TVs news broadcasts:chanroblesvirtuallawlibrary
It is axiomatic that copyright protection does not extend to news "events" or the facts or ideas which
are the subject of news reports. Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1368 (5th Cir.
1981); Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 95 (2d Cir. 1977), cert,
denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978). But it is equally well-settled that copyright
protection does extend to the reports themselves, as distinguished from the substance of the
information contained in the reports.  Wainwright, 558 F.2d at 95; International News Service v.
Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918); see Chicago Record-Herald Co. v.
Tribune Assn., 275 F. 797 (7th Cir.1921); 1 Nimmer on Copyright § 2.11[B] (1983). Copyright protects
the manner of expression of news reports, "the particular form or collocation of words in which the
writer has communicated it" International News Service, 248 U.S. at 234, 39 S.Ct. at 70. Such
protection extends to electronic news reports as well as written reports. See 17 U.S.C. § 102(a) (5), (6),
and (7); see also Iowa State University Research Foundations, Inc. v. American Broadcasting Cos., 621
F.2d 57, 61 (2d Cir. 1980)." (Emphasis supplied)
The idea/expression dichotomy has long been subject to debate in the field of copyright law.
Abolishing the dichotomy has been proposed, in that non-protectibility of ideas should be re-
examined, if not stricken, from decisions and the law:chanroblesvirtuallawlibrary
If the underlying purpose of the copyright law is the dual one expressed by Lord Mansfield, the only
excuse for the continuance of the idea-expression test as a judicial standard for determining
protectibility would be that it was or could be a truly useful method of determining the proper balance
between the creator's right to profit from his work and the public's right that the "progress of the arts
not be retarded."

. . . [A]s used in the present-day context[,] the dichotomy has little or no relationship to the policy
which it should effectuate. Indeed, all too often the sweeping language of the courts regarding the
nonprotectibility of ideas gives the impression that this is of itself a policy of the law, instead of merely
a clumsy and outdated tool to achieve a much more basic end.100
The idea/expression dichotomy is a complex matter if one is trying to determine whether a certain
material is a copy of another.101 This dichotomy would be more relevant in determining, for instance,
whether a stage play was an infringement of an author's book involving the same characters and
setting. In this case, however, respondents admitted that the material under review — which is the
subject of the controversy — is an exact copy of the original. Respondents did not subject ABS-CBN's
footage to any editing of their own. The news footage did not undergo any transformation where there
is a need to track elements of the original.
Having established the protectible nature of news footage, we now discuss the concomitant rights
accorded to authors. The authors of a work are granted several rights in relation to it, including
copyright or economic rights:chanroblesvirtuallawlibrary
SECTION 177. Copyright or Economic Rights. — Subject to the provisions of Chapter VIII, copyright or
economic rights shall consist of the exclusive right to carry out, authorize or prevent the following
acts:chanroblesvirtuallawlibrary
177.1. Reproduction of the work or substantial portion of the work;
177.2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation of
the work;
177.3. The first public distribution of the original and each copy of the work by sale or other forms of
transfer of ownership;
177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied
in a sound recording, a computer program, a compilation of data and other materials or a
musical work in graphic form, irrespective of the ownership of the original or the copy which is
the subject of the rental; (n)
177.5. Public display of the original or a copy of the work;
177.6. Public performance of the work; and
177.7. Other communication to the public of the work. (Sec. 5, P. D. No. 49a) (Emphasis supplied)
Under Section 211 of the Intellectual Property Code, broadcasting organizations are granted a more
specific set of rights called related or neighboring rights:chanroblesvirtuallawlibrary
SECTION 211. Scope of Right. — Subject to the provisions of Section 212, broadcasting organizations
shall enjoy the exclusive right to carry out, authorize or prevent any of the following acts:
211.1. The rebroadcasting of their broadcasts;
211.2. The recording in any manner, including the making of films or the use of video tape, of their
broadcasts for the purpose of communication to the public of television broadcasts of the
same; and
211.3. The use of such records for fresh transmissions or for fresh recording. (Sec. 52, P.D. No. 49)
(Emphasis supplied)
Section 212 of the Code provides:

CHAPTER XV
LIMITATIONS ON PROTECTION

Section 212. Limitations on Rights. - Sections 203, 208 and 209 shall not apply where the acts referred
to in those Sections are related to:chanroblesvirtuallawlibrary
212.1. The use by a natural person exclusively for his own personal purposes;
212.2. Using short excerpts for reporting current events;
212.3. Use solely for the purpose of teaching or for scientific research; and
212.4. Fair use of the broadcast subject to the conditions under Section 185. (Sec. 44, P.D. No. 49a)
The Code defines what broadcasting is and who broadcasting organizations
include:chanroblesvirtuallawlibrary
202.7. "Broadcasting" means the transmission by wireless means for the public reception of sounds or
of images or of representations thereof;  such transmission by satellite is also "broadcasting" where
the means for decrypting are provided to the public by the broadcasting organization or with its
consent;

202.8. "Broadcasting organization" shall include a natural person or a juridical entity duly authorized to
engage in broadcasting[.]
Developments in technology, including the process of preserving once ephemeral works and
disseminating them, resulted in the need to provide a new kind of protection as distinguished from
copyright.102 The designation "neighboring rights" was abbreviated from the phrase "rights neighboring
to copyright."103  Neighboring or related rights are of equal importance with copyright as established in
the different conventions covering both kinds of rights.104

Several treaties deal with neighboring or related rights of copyright. 105 The most prominent of these is
the "International Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations" (Rome Convention).106

The Rome Convention protects the rights of broadcasting organizations in relation to their broadcasts.
Article XIII of the Rome Convention enumerates the minimum rights accorded to broadcasting
organizations:chanroblesvirtuallawlibrary
Article 13
Minimum Rights for Broadcasting Organizations

Broadcasting organisations shall enjoy the right to authorize or prohibit:

(a) the rebroadcasting of their broadcasts;

(b) the fixation of their broadcasts;
(c) the reproduction:
(i) of fixations, made without their consent, of their broadcasts;
(ii) of fixations, made in accordance with the provisions of Article 15, of their broadcasts, if the
 reproduction is made for purposes different from those referred to in those provisions;
(d) the communication to the public of their television broadcasts if such communication is made in
places accessible to the public against payment of an entrance fee; it shall be a matter for the
domestic law of the State where protection of this right is claimed to determine the conditions
under which it may be exercised.
With regard to the neighboring rights of a broadcasting organization in this jurisdiction, this court has
discussed the difference between broadcasting and rebroadcasting:chanroblesvirtuallawlibrary
Section 202.7 of the IP Code defines broadcasting as "the transmission by wireless means for the
public reception of sounds or of images or of representations thereof; such transmission by satellite is
also 'broadcasting' where the means for decrypting are provided to the public by the broadcasting
organization or with its consent."

On the other hand, rebroadcasting as defined in Article 3(g) of the International Convention for the
Protection of Performers, Producers of Phonograms and Broadcasting Organizations, otherwise known
as the 1961 Rome Convention, of which the Republic of the Philippines is a signatory, is "the
simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting
organization."

.     .     .     .

Under the Rome Convention, rebroadcasting is "the simultaneous broadcasting by one broadcasting
organization of the broadcast of another broadcasting organization." The Working Paper prepared by
the Secretariat of the Standing Committee on Copyright and Related Rights defines broadcasting
organizations as "entities that take the financial and editorial responsibility for the selection and
arrangement of, and investment in, the transmitted content."107 (Emphasis in the original, citations
omitted)
Broadcasting organizations are entitled to several rights and to the protection of these rights under the
Intellectual Property Code. Respondents' argument that the subject news footage is not copyrightable
is erroneous. The Court of Appeals, in its assailed Decision, correctly recognized the existence of ABS-
CBN's copyright over the news footage:chanroblesvirtuallawlibrary
Surely, private respondent has a copyright of its news coverage. Seemingly, for airing said video feed,
petitioner GMA is liable under the provisions of the Intellectual Property Code, which was enacted
purposely to protect copyright owners from infringement. 108
News as expressed in a video footage is entitled to copyright protection.   Broadcasting organizations
have not only copyright on but also neighboring rights over their broadcasts.  Copyrightability of a work
is different from fair use of a work for purposes of news reporting.cralawlawlibrary

VI
ABS-CBN assails the Court of Appeals' ruling that the footage shown by GMA-7 falls under the scope of
Section 212.2 and 212.4 of the Intellectual Property Code:chanroblesvirtuallawlibrary
The evidence on record, as well as the discussions above, show that the footage used by [respondents]
could hardly be characterized as a short excerpt, as it was aired over one and a half minutes.

Furthermore, the footage used does not fall under the contemplation of Section 212.2 of the
Intellectual Property Code. A plain reading of the provision would reveal that copyrighted material
referred to in Section 212 are short portions of an artist's performance under Section 203, or a
producer's sound recordings under Sections 208 and 209. Section 212 does not refer to actual use of
video footage of another as its own.
.    .    .    .

The Angelo dela Cruz footage does not fall under the rule on Section 212.4 of the Intellectual Property
Code on fair use of the broadcast.

In determining fair use, several factors are considered, including the nature of the copyrighted work,
and the amount and substantiality of the person used in relation to the copyrighted work as a whole.

In the business of television news reporting, the nature of the copyrighted work or the video footages,
are such that, footage created, must be a novelty to be a good report. Thus, when the . . . Angelo dela
Cruz footage was used by [respondents], the novelty of the footage was clearly affected.

Moreover, given that a substantial portion of the Angelo dela Cruz footage was utilized by GMA-7 for
its own, its use can hardly be classified as fair use.

Hence, [respondents] could not be considered as having used the Angelo dela Cruz [footage] following
the provisions on fair use.

It is also worthy to note that the Honorable Court of Appeals seem to contradict itself when it relied on
the provisions of fair use in its assailed rulings considering that it found that the Angelo dela Cruz
footage is not copyrightable, given that the fair use presupposes an existing copyright. Thus, it is
apparent that the findings of the Honorable Court of Appeals are erroneous and based on wrong
assumptions.109 (Underscoring in the original)
On the other hand, respondents counter that GMA-7's use of ABS-CBN's news footage falls under fair
use as defined in the Intellectual Property Code. Respondents, citing the Court of Appeals Decision,
argue that a strong statutory defense negates any finding of probable cause under the same statute. 
The Intellectual Property Code provides that fair use negates infringement.

Respondents point out that upon seeing ABS-CBN's reporter Dindo Amparo on the footage, GMA-7
immediately shut off the broadcast. Only five (5) seconds passed before the footage was cut. They
argue that this shows that GMA-7 had no prior knowledge of ABS-CBN's ownership of the footage or
was notified of it. They claim that the Angelo dela Cruz footage is considered a short excerpt of an
event's "news" footage and is covered by fair use.111

Copyright protection is not absolute.112  The Intellectual Property Code provides the limitations on
copyright:

CHAPTER VIII
LIMITATIONS ON COPYRIGHT
Section 184. Limitations on Copyright. - 184.1. Notwithstanding the provisions of Chapter V, the
following acts shall not constitute infringement of copyright:

.     .     .     .

184.2. The provisions of this section shall be interpreted in such a way as to allow the work to be used
in a manner which does not conflict with the normal exploitation of the work and does not
unreasonably prejudice the right holder's legitimate interests.
.     .     .     .cralawlawlibrary

CHAPTER XV
LIMITATIONS ON PROTECTION

Section 212. Limitations on Rights. - Sections 203, 208 and 209 shall not apply where the acts referred
to in those Sections are related to:

.     .     .     .

212.2. Using short excerpts for reporting current events;

212.4. Fair use of the broadcast subject to the conditions under Section 185. (Sec. 44, P.D. No. 49a)
(Emphasis supplied)
The determination of what constitutes fair use depends on several factors. Section 185 of the
Intellectual Property Code states:

SECTION 185. Fair Use of a Copyrighted Work. —

185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including
multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of
copyright. ... In determining whether the use made of a work in any particular case is fair use, the
factors to be considered shall include:chanroblesvirtuallawlibrary
a. The purpose and character of the use, including whether such use is of a
commercial nature or is for non-profit educational purposes;
b. The nature of the copyrighted work;
c. The amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
d. The effect of the use upon the potential market for or value of the
copyrighted work.
Respondents allege that the news footage was only five (5) seconds long, thus falling under fair use.
ABS-CBN belies this contention and argues that the footage aired for two (2) minutes and 40
seconds.113 According to the Court of Appeals, the parties admitted that only five (5) seconds of the
news footage was broadcasted by GMA-7.114

This court defined fair use as "a privilege to use the copyrighted material in a reasonable manner
without the consent of the copyright owner or as copying the theme or ideas rather than their
expression."115 Fair use is an exception to the copyright owner's monopoly of the use of the work to
avoid stifling "the very creativity which that law is designed to foster." 116

Determining fair use requires application of the four-factor test. Section 185 of the Intellectual
Property Code lists four (4) factors to determine if there was fair use of a copyrighted work:

a. The purpose and character of the use, including whether such use is of a commercial
nature or is for non-profit educational purposes;
b. The nature of the copyrighted work;
c. The amount and substantiality of the portion used in relation to the copyrighted work as
a whole; and
d. The effect of the use upon the potential market for or value of the copyrighted work.
First, the purpose and character of the use of the copyrighted material must fall under those listed in
Section 185, thus: "criticism, comment, news reporting, teaching including multiple copies for
classroom use, scholarship, research, and similar purposes." 117 The purpose and character requirement
is important in view of copyright's goal to promote creativity and encourage creation of works. Hence,
commercial use of the copyrighted work can be weighed against fair use.

The "transformative test" is generally used in reviewing the purpose and character of the usage of the
copyrighted work.118 This court must look into whether the copy of the work adds "new expression,
meaning or message" to transform it into something else.119 "Meta-use" can also occur without
necessarily transforming the copyrighted work used.120

Second, the nature of the copyrighted work is significant in deciding whether its use was fair. If the
nature of the work is more factual than creative, then fair use will be weighed in favor of the user.

Third, the amount and substantiality of the portion used is important to determine whether usage falls
under fair use. An exact reproduction of a copyrighted work, compared to a small portion of it, can
result in the conclusion that its use is not fair. There may also be cases where, though the entirety of
the copyrighted work is used without consent, its purpose determines that the usage is still fair.121 For
example, a parody using a substantial amount of copyrighted work may be permissible as fair use as
opposed to a copy of a work produced purely for economic gain.

Lastly, the effect of the use on the copyrighted work's market is also weighed for or against the user. If
this court finds that the use had or will have a negative impact on the copyrighted work's market, then
the use is deemed unfair.

The structure and nature of broadcasting as a business requires assigned values for each second of
broadcast or airtime. In most cases, broadcasting organizations generate revenue through sale of time
or timeslots to advertisers, which, in turn, is based on market share: 122ChanRoblesVirtualawlibrary
Once a news broadcast has been transmitted, the broadcast becomes relatively worthless to the
station. In the case of the aerial broadcasters, advertising sales generate most of the profits derived
from news reports. Advertising rates are, in turn, governed by market share. Market share is
determined by the number of people watching a show at any particular time, relative to total viewers
at that time. News is by nature time-limited, and so re-broadcasts are generally of little worth because
they draw few viewers. Newscasts compete for market share by presenting their news in an appealing
format that will capture a loyal audience. Hence, the primary reason for copyrighting newscasts by
broadcasters would seem to be to prevent competing stations from rebroadcasting current news from
the station with the best coverage of a particular news item, thus misappropriating a portion of the
market share.

Of course, in the real world there are exceptions to this perfect economic view.  However, there are
also many caveats with these exceptions. A common exception is that some stations rebroadcast the
news of others. The caveat is that generally, the two stations are not competing for market share. CNN,
for example, often makes news stories available to local broadcasters. First, the local broadcaster is
often not affiliated with a network (hence its need for more comprehensive programming), confining
any possible competition to a small geographical area. Second, the local broadcaster is not in
competition with CNN. Individuals who do not have cable TV (or a satellite dish with decoder) cannot
receive CNN; therefore there is no competition. . . .
Third, CNN sells the right of rebroadcast to the local stations. Ted Turner, owner of CNN, does not have
First Amendment freedom of access argument foremost on his mind. (Else he would give everyone free
cable TV so everyone could get CNN.) He is in the business for a profit. Giving away resources does not
a profit make.123 (Emphasis supplied)
The high value afforded to limited time periods is also seen in other media. In social media
site Instagram, users are allowed to post up to only 15 seconds of video. 124 In short-video sharing
website Vine,125 users are allowed a shorter period of six (6) seconds per post. The mobile application 1
Second Everyday takes it further by capturing and stitching one (1) second of video footage taken daily
over a span of a certain period.126

Whether the alleged five-second footage may be considered fair use is a matter of defense. We
emphasize that the case involves determination of probable cause at the preliminary investigation
stage. Raising the defense of fair use does not automatically mean that no infringement was
committed. The investigating prosecutor has full discretion to evaluate the facts, allegations, and
evidence during preliminary investigation. Defenses raised during preliminary investigation are subject
to further proof and evaluation before the trial court. Given the insufficiency of available evidence,
determination of whether the Angelo dela Cruz footage is subject to fair use is better left to the trial
court where the proceedings are currently pending.

GMA-7's rebroadcast of ABS-CBN's news footage without the latter's consent is not an issue. The mere
act of rebroadcasting without authority from the owner of the broadcast gives rise to the probability
that a crime was committed under the Intellectual Property Code.cralawlawlibrary

VII
Respondents cannot invoke the defense of good faith to argue that no probable cause exists.

Respondents argue that copyright infringement is malum in se, in that "[c]opying alone is not what is
being prohibited, but its injurious effect which consists in the lifting from the copyright owners' film or
materials, that were the result of the latter's creativity, work and productions and without authority,
reproduced, sold and circulated for commercial use to the detriment of the latter." 127

Infringement under the Intellectual Property Code is malum prohibitum. The Intellectual Property Code
is a special law. Copyright is a statutory creation:chanroblesvirtuallawlibrary
Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent right
granted by the statute, and not simply a pre-existing right regulated by the statute. Being a statutory
grant, the rights are only such as the statute confers, and may be obtained and enjoyed only with
respect to the subjects and by the persons, and on terms and conditions specified in the statute. 128
The general rule is that acts punished under a special law are malum prohibitum. 129 "An act which is
declared malum prohibitum, malice or criminal intent is completely immaterial."130

In contrast, crimes mala in se concern inherently immoral acts:chanroblesvirtuallawlibrary

Not every criminal act, however, involves moral turpitude. It is for this reason that "as to what crime
involves moral turpitude, is for the Supreme Court to determine". In resolving the foregoing question,
the Court is guided by one of the general rules that crimes mala in se involve moral turpitude, while
crimes mala prohibita do not, the rationale of which was set forth in "Zari v. Flores" to
wit:chanroblesvirtuallawlibrary
It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by
law or not.  It must not be merely mala prohibita, but the act itself must be inherently immoral. The
doing of the act itself, and not its prohibition by statute fixes the moral turpitude. Moral turpitude does
not, however, include such acts as are not of themselves immoral but whose illegality lies in their being
positively prohibited. (Emphasis supplied)
[These] guidelines nonetheless proved short of providing a clear-cut solution, for in International Rice
Research Institute v. NLRC, the Court admitted that it cannot always be ascertained whether moral
turpitude does or does not exist by merely classifying a crime as malum in se or as malum
prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude and there
are crimes which involve moral turpitude and are mala prohibita only. In the final analysis, whether or
not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the
circumstances surrounding the violation of the statue. 131 (Emphasis in the original)
"Implicit in the concept of mala in se is that of mens rea."132Mens rea is defined as "the nonphysical
element which, combined with the act of the accused, makes up the crime charged. Most frequently it
is the criminal intent, or the guilty mind[.]"133

Crimes mala in se presuppose that the person who did the felonious act had criminal intent to do so,
while crimes mala prohibita do not require knowledge or criminal intent:chanroblesvirtuallawlibrary
In the case of mala in se it is necessary, to constitute a punishable offense, for the person doing the act
to have knowledge of the nature of his act and to have a criminal intent; in the case of mala prohibita,
unless such words as "knowingly" and "willfully" are contained in the statute, neither knowledge nor
criminal intent is necessary. In other words, a person morally quite innocent and with every intention
of being a law-abiding citizen becomes a criminal, and liable to criminal penaltes, if he does an act
prohibited by these statutes.134 (Emphasis supplied)
Hence, "[i]ntent to commit the crime and intent to perpetrate the act must be distinguished. A person
may not have consciously intended to commit a crime; but he did intend to commit an act, and that act
is, by the very nature of things, the crime itself[.]" 135 When an act is prohibited by a special law, it is
considered injurious to public welfare, and the performance of the prohibited act is the crime itself. 136

Volition, or intent to commit the act, is different from criminal intent. Volition or voluntariness refers to
knowledge of the act being done. On the other hand, criminal intent — which is different from motive,
or the moving power for the commission of the crime137 — refers to the state of mind beyond
voluntariness. It is this intent that is being punished by crimes mala in se.

Unlike other jurisdictions that require intent for a criminal prosecution of copyright infringement, the
Philippines does not statutorily support good faith as a defense. Other jurisdictions provide in their
intellectual property codes or relevant laws that mens rea, whether express or implied, is an element
of criminal copyright infringement.138

In Canada, criminal offenses are categorized under three (3) kinds: "the full mens rea offence, meaning
the accused's actual or subjective state of mind has to be proved; strict liability offences where no
mens rea has to be proved but the accused can avoid liability if he can prove he took all reasonable
steps to avoid the particular event; [and] absolute liability offences where Parliament has made it clear
that guilt follows proof of the prescribed act only." 139 Because of the use of the word "knowingly" in
Canada's Copyright Act, it has been held that copyright infringement is a full mens rea offense.140

In the United States, willful intent is required for criminal copyright infringement. 141 Before the passage
of the No Electronic Theft Act, "civil copyright infringements were violations of criminal copyright laws
only if a defendant willfully infringed a copyright  'for purposes  of commercial  advantage or private
financial gain.'"142  However, the No Electronic Theft Act now allows criminal copyright infringement
without the requirement of commercial gain. The infringing act may or may not be for profit. 143

There is a difference, however, between the required liability in civil copyright infringement and that in
criminal copyright infringement in the United States. Civil copyright infringement does not require
culpability and employs a strict liability regime144 where "lack of intention to infringe is not a defense to
an action for infringement."145

In the Philippines, the Intellectual Property Code, as amended, provides for the prosecution of criminal
actions for the following violations of intellectual property rights: Repetition of Infringement of Patent
(Section 84); Utility Model (Section 108); Industrial Design (Section 119); Trademark Infringement
(Section 155 in relation to Section 170); Unfair Competition (Section 168 in relation to Section 170);
False Designations of Origin, False Description or Representation (Section 169.1 in relation to Section
170); infringement of copyright, moral rights, performers' rights, producers' rights, and broadcasting
rights (Section 177, 193, 203, 208 and 211 in relation to Section 217); and other violations of
intellectual property rights as may be defined by law.

The Intellectual Property Code requires strict liability for copyright infringement whether for a civil
action or a criminal prosecution; it does not require mens rea or culpa:146ChanRoblesVirtualawlibrary
SECTION 216. Remedies for Infringement. —

216.1. Any person infringing a right protected under this law shall be liable:
a. To an injunction restraining such infringement.  The court may also order the
defendant to desist from an infringement, among others, to prevent the entry
into the channels of commerce of imported goods that involve an infringement,
immediately after customs clearance of such goods.
b. Pay to the copyright proprietor or his assigns or heirs such actual damages,
including legal costs and other expenses, as he may have incurred due to the
infringement as well as the profits the infringer may have made due to such
infringement, and in proving profits the plaintiff shall be required to prove sales
only and the defendant shall be required   to prove every element of cost which
he claims, or, in lieu of actual damages and profits, such damages which to the
court shall appear to be just and shall not be regarded as penalty.
c. Deliver under oath, for impounding during the pendency of the action, upon such
terms and conditions as the court may  prescribe,  sales invoices and other
documents evidencing sales, all articles and their packaging alleged to infringe a
copyright and implements for making them.
d. Deliver under oath for destruction without any compensation all infringing copies
or devices, as well as all plates, molds, or other means for making such infringing
copies as the court may order.
e. Such other terms and conditions, including the payment of moral   and exemplary
damages, which the court may deem proper, wise and equitable and the
destruction of infringing copies of the work even in the event of acquittal in a
criminal case.
216.2. In an infringement action, the court shall also have the power to order the seizure and
impounding of any article which may serve as evidence in the court proceedings. (Sec. 28. P.D. No. 49a)

SECTION 217, Criminal Penalties. —

217.1. Any person infringing any right secured by provisions of Part IV of this Act or aiding or abetting
such infringement shall be guilty of a crime punishable by:

a. Imprisonment of one (1) year to three (3) years plus a fine ranging from Fifty
thousand pesos (P50,000) to One hundred fifty thousand pesos (P150,000) for
the first offense.

b. Imprisonment of three (3) years and one (1) day to six (6) years plus a fine
ranging from One hundred fifty thousand pesos (P150,000) to Five hundred
thousand pesos (P500,000) for the second offense.

c. Imprisonment of six (6) years and one (1) day to nine (9) years plus a fine ranging
from Five hundred  thousand pesos (P500,000) to One million five hundred
thousand pesos (P1,500,000) for the third and   subsequent offenses.

d. In all cases, subsidiary imprisonment in cases of insolvency.

217.2. In determining the number of years of imprisonment and the amount of fine, the court shall
consider the value of the infringing materials that the defendant has produced or manufactured and
the damage that the copyright owner has suffered by reason of the infringement.

217.3. Any person who at the time when copyright subsists in a work has in his possession an article
which he knows, or ought to know, to be an infringing copy of the work for the purpose of:
a. Selling, letting for hire, or by way of trade offering or exposing for sale, or
hire, the article;
b. Distributing the article for purpose of trade, or for any other purpose to an
extent that will prejudice the rights of the copyright owner in the work; or
c. Trade exhibit of the article in public, shall be guilty of an offense and shall be
liable on conviction to imprisonment and fine as above mentioned. (Sec. 29,
P.D. No. 49a) (Emphasis supplied)
The law is clear. Inasmuch as there is wisdom in prioritizing the flow and exchange of ideas as opposed
to rewarding the creator, it is the plain reading of the law in conjunction with the actions of the
legislature to which we defer. We have continuously "recognized the power of the legislature . . . to
forbid certain acts in a limited class of cases and to make their commission criminal without regard to
the intent of the doer. Such legislative enactments are based on the experience that repressive
measures which depend for their efficiency upon proof of the dealer's knowledge or of his intent are of
little use and rarely accomplish their purposes."147

Respondents argue that live broadcast of news requires a different treatment in terms of good faith,
intent, and knowledge to commit infringement. To argue this point, they rely on the differences of the
media used in Habana et al. v. Robles, Columbia Pictures v. Court of Appeals, and this
case:chanroblesvirtuallawlibrary
Petitioner ABS-CBN argues that lack of notice that the Angelo dela Cruz was under embargo is not a
defense in copyright infringement and cites the case of Columbia Pictures vs. Court of Appeals and
Habana et al. vs. Robles (310 SCRA 511). However, these cases refer to film and literary work where
obviously there is "copying" from an existing material so that the copier knew that he is copying from
an existing material not owned by him. But, how could respondents know that what they are "copying
was not [theirs]" when they were not copying but merely receiving live video feed from Reuters and
CNN which they aired? What they knew and what they aired was the Reuters live video feed and
the CNN feed which GMA-7 is authorized to carry in its news broadcast, it being a subscriber of these
companies[.]

It is apt to stress that the subject of the alleged copyright infringement is not a film or literary work
but live broadcast of news footage. In a film or literary work, the infringer is confronted face to face
with the material he is allegedly copying and therefore knows, or is presumed to know, that what he is
copying is owned by another. Upon the other hand, in live broadcast, the alleged infringer
is not confronted with the fact that the material he airs or re-broadcasts is owned by another, and
therefore, he cannot be charged of knowledge of ownership of the material by another. This specially
obtains in the Angelo dela Cruz news footage which GMA-7 received from Reuters and CNN. Reuters
and CNN were beaming live videos from the coverage which GMA-7 received as a subscriber and, in
the exercise of its rights as a subscriber, GMA-7 picked up the live video and simultaneously re-
broadcast it. In simultaneously broadcasting the live video footage of Reuters, GMA-7 did not copy the
video footage of petitioner ABS-CBN[.]148 (Emphasis in the original)
Respondents' arguments must fail.

Respondents are involved and experienced in the broadcasting business. They knew that there would
be consequences in carrying A.BS-CBN's footage in their broadcast. That is why GMA-7 allegedly cut
the feed from Reuters upon seeing ABS-CBN's logo and reporter. To admit a different treatment for
broadcasts would mean abandonment of a broadcasting organization's minimum rights, including
copyright on the broadcast material and the right against unauthorized re broadcast of copyrighted
material.  The nature of broadcast technology is precisely why related or neighboring rights were
created and developed.  Carving out an exception for live broadcasts would go against our
commitments under relevant international treaties and agreements, which provide for the same
minimum rights.149

Contrary to respondents' assertion, this court in Habana,150 reiterating the ruling in Columbia

Pictures,151 ruled that lack of knowledge of infringement is not a valid defense. Habana and Columbia
Pictures may have different factual scenarios from this case, but their rulings on copyright infringement
are analogous. In Habana, petitioners were the authors and copyright owners of English textbooks and
workbooks. The case was anchored on the protection of literary and artistic creations such as books.
In Columbia Pictures, video tapes of copyrighted films were the subject of the copyright infringement
suit.

In Habana, knowledge of the infringement is presumed when the infringer commits the prohibited
act:chanroblesvirtuallawlibrary
The essence of intellectual piracy should be essayed in conceptual terms in order to underscore its
gravity by an appropriate understanding thereof. Infringement of a copyright is a trespass on a private
domain owned and occupied by the owner of the copyright, and, therefore, protected by law, and
infringement of copyright, or piracy, which is a synonymous term in this connection, consists in the
doing by any person, without the consent of the owner of the copyright, of anything the sole right to
do which is conferred by statute on the owner of the copyright.

.    .    .    .

A copy of a piracy is an infringement of the original, and it is no defense that the pirate, in such cases,
did not know whether or not he was infringing any copyright; he at least knew that what he was
copying was not his, and he copied at his peril.
.    .    .    .

In cases of infringement, copying alone is not what is prohibited. The copying must produce an
"injurious effect". Here, the injury consists in that respondent Robles lifted from petitioners' book
materials that were the result of the latter's research work and compilation and misrepresented them
as her own. She circulated the book DEP for commercial use and did not acknowledge petitioners as
her source.152 (Emphasis supplied)
Habana and Columbia Pictures did not require knowledge of the infringement to constitute a violation
of the copyright. One does not need to know that he or she is copying a work without consent to
violate copyright law. Notice of fact of the embargo from Reuters or CNN is not material to find
probable cause that respondents committed infringement. Knowledge of infringement is only material
when the person is charged of aiding and abetting a copyright infringement under Section 217 of the
Intellectual Property Code.153

We look at the purpose of copyright in relation to criminal prosecutions requiring

willfulness:chanroblesvirtuallawlibrary
Most importantly, in defining the contours of what it means to willfully infringe copyright for purposes
of criminal liability, the courts should remember the ultimate aim of copyright. Copyright is not
primarily about providing the strongest possible protection for copyright owners so that they have the
highest possible incentive to create more works. The control given to copyright owners is only a means
to an end: the promotion of knowledge and learning. Achieving that underlying goal of copyright law
also requires access to copyrighted works and it requires permitting certain kinds of uses of
copyrighted works without the permission of the copyright owner. While a particular defendant may
appear to be deserving of criminal sanctions, the standard for determining willfulness should be set
with reference to the larger goals of copyright embodied in the Constitution and the history of
copyright in this country.154
In addition, "[t]he essence of intellectual piracy should be essayed in conceptual terms in order to
underscore its gravity by an appropriate understanding thereof. Infringement of a copyright is a
trespass on a private domain owned and occupied by the owner of the copyright, and, therefore,
protected by law, and infringement of copyright, or piracy, which is a synonymous term in this
connection, consists in the doing by any person, without the consent of the owner of the copyright, of
anything the sole right to do which is conferred by statute on the owner of the copyright." 155

Intellectual property rights, such as copyright and the neighboring right against rebroadcasting,
establish an artificial and limited monopoly to reward creativity. Without these legally enforceable
rights, creators will have extreme difficulty recovering their costs and capturing the surplus or profit of
their works as reflected in their markets. This, in turn, is based on the theory that the possibility of gain
due to creative work creates an incentive which may improve efficiency or simply enhance consumer
welfare or utility. More creativity redounds to the public good.

These, however, depend on the certainty of enforcement. Creativity, by its very nature, is vulnerable to
the free rider problem. It is easily replicated despite the costs to and efforts of the original creator. The
more useful the creation is in the market, the greater the propensity that it will be copied. The most
creative and inventive individuals are usually those who are unable to recover on their creations.

Arguments against strict liability presuppose that the Philippines has a social, historical, and economic
climate similar to those of Western jurisdictions. As it stands, there is a current need to strengthen
intellectual property protection.

Thus, unless clearly provided in the law, offenses involving infringement of copyright protections
should be considered malum prohibitum. It is the act of infringement, not the intent, which causes the
damage. To require or assume the need to prove intent defeats the purpose of intellectual property
protection.

Nevertheless, proof beyond reasonable doubt is still the standard for criminal prosecutions under the
Intellectual Property Code.cralawlawlibrary

VIII
Respondents argue that GMA-7's officers and employees cannot be held liable for infringement under
the Intellectual Property Code since it does not expressly provide direct liability of the corporate
officers. They explain that "(i) a corporation may be charged and prosecuted for a crime where the
penalty is fine or both imprisonment and fine, and if found guilty, may be fined; or (ii) a corporation
may commit a crime but if the statute prescribes the penalty therefore to be suffered by the corporate
officers, directors or employees or other persons, the latter shall be responsible for the offense." 156

Section 217 of the Intellectual Property Code states that "any person" may be found guilty of
infringement. It also imposes the penalty of both imprisonment and fine:chanroblesvirtuallawlibrary
Section 217. Criminal Penalties. - 217.1. Any person infringing any right secured by provisions of Part IV
of this Act or aiding or abetting such infringement shall be guilty of a crime punishable by:
(a) Imprisonment of one (1) year to three (3) years plus a fine ranging from Fifty thousand pesos
(P50,000) to One hundred fifty thousand pesos (P150,000) for the first offense.
(b) Imprisonment of three (3) years and one (1) day to six (6) years plus a fine ranging from One
hundred fifty thousand pesos (P150,000) to Five hundred thousand pesos (P500,000) for the
second offense.
(c) Imprisonment of six (6) years and one (1) day to nine (9) years plus a fine ranging from five
hundred thousand pesos (P500,000) to One million five hundred thousand pesos (P1,500,000) for
the third and subsequent offenses.
(d) In all cases, subsidiary imprisonment in cases of insolvency. (Emphasis supplied)
Corporations have separate and distinct personalities from their officers or directors. 157 This court has
ruled that corporate officers and/or agents may be held individually liable for a crime committed under
the Intellectual Property Code:158ChanRoblesVirtualawlibrary
Petitioners, being corporate officers and/or directors, through whose act, default or omission the
corporation commits a crime, may themselves be individually held answerable for the crime. . . . The
existence of the corporate entity does not shield from prosecution the corporate agent who knowingly
and intentionally caused the corporation to commit a crime. Thus, petitioners cannot hide behind the
cloak of the separate corporate personality of the corporation to escape criminal liability. A corporate
officer cannot protect himself behind a corporation where he is the actual, present and efficient
actor.159
However, the criminal liability of a. corporation's officers or employees stems from their active
participation in the commission of the wrongful act:chanroblesvirtuallawlibrary
The principle applies whether or not the crime requires the consciousness of wrongdoing. It applies to
those corporate agents who themselves commit the crime and to those, who, by virtue of their
managerial positions or other similar relation to the corporation, could be deemed responsible for its
commission, if by virtue of their relationship to the corporation, they had the power to prevent the act.
Moreover, all parties active in promoting a crime, whether agents or not, are principals. Whether such
officers or employees are benefited by their delictual acts is not a touchstone of their criminal liability.
Benefit is not an operative fact. 160 (Emphasis supplied)
An accused's participation in criminal acts involving violations of intellectual property rights is the
subject of allegation and proof. The showing that the accused did the acts or contributed in a
meaningful way in the commission of the infringements is certainly different from the argument of lack
of intent or good faith. Active participation requires a showing of overt physical acts or intention to
commit such acts. Intent or good faith, on the other hand, are inferences from acts proven to have
been or not been committed.

We find that the Department of Justice committed grave abuse of discretion when it resolved to file
the Information against respondents despite lack of proof of their actual participation in the alleged
crime.

Ordering the inclusion of respondents Gozon, GMA-7 President; Duavit, Jr., Executive Vice-President;
Flores, Vice-President for News and Public Affairs; and Soho, Director for News, as respondents,
Secretary Agra overturned the City Prosecutor's finding that only respondents Dela Peña-Reyes and
Manalastas are responsible for the crime charged due to their duties. 161 The Agra Resolution
reads:chanroblesvirtuallawlibrary
Thus, from the very nature of the offense and the penalty involved, it is necessary that GMA-7's
directors, officers, employees or other officers thereof responsible for the offense shall be charged and
penalized for violation of the Sections 177 and 211 of Republic Act No. 8293. In their complaint for
libel, respondents Felipe L Gozon, Gilberto R. Duavit, Jr., Marissa L. Flores, Jessica A. Soho, Grace Dela
Pena-Reyes, John Oliver T. Manalastas felt they were aggrieved because they were "in charge of the
management, operations and production of news and public affairs programs of the network" (GMA-
7). This is clearly an admission on respondents' part. Of course, respondents may argue they have no
intention to infringe the copyright of ABS-CBN; that they acted in good faith; and that they did not
directly cause the airing of the subject footage, but again this is preliminary investigation and what is
required is simply probable cause. Besides, these contentions can best be addressed in the course of
trial.162 (Citation omitted)
In contrast, the Office of the City Prosecutor, in the Resolution dated December 3, 2004, found that
respondents Gozon, Duavit, Jr., Flores, and Soho did not have active participation in the commission of
the crime charged:chanroblesvirtuallawlibrary
This Office, however, does not subscribe to the view that respondents Atty. Felipe Gozon, Gilberto
Duavit, Marissa Flores and Jessica Soho should be held liable for the said offense. Complainant failed to
present clear and convincing evidence that the said respondents conspired with Reyes and Manalastas.
No evidence was adduced to prove that these respondents had an active participation in the actual
commission of the copyright infringement or they exercised their moral ascendancy over Reyes and
Manalastas in airing the said footage. It must be stressed that, conspiracy must be established by
positive and conclusive evidence. It must be shown to exist as clearly and convincingly as the
commission of the offense itself.163 (Emphasis supplied, citations omitted)
The City Prosecutor found respondents Dela Peña-Reyes and Manalastas liable due to the nature of
their work and responsibilities. He found that:chanroblesvirtuallawlibrary
[t]his Office however finds respondents Grace Déla Peña-Reyes and John Oliver T. Manalastas liable for
copyright infringement penalized under Republic Act No. 8293. It is undisputed that complainant ABS-
CBN holds the exclusive ownership and copyright over the "Angelo [d]ela Cruz news footage". Hence,
any airing and re-broadcast of the said footage without any consent and authority from ABS-CBN will
be held as an infringement and violation of the intellectual property rights of the latter. Respondents
Grace Dela Peña-Reyes as the Head of the News Operation and John Oliver T. Manalastas as the
Program Manager cannot escape liability since the news control room was under their direct control
and supervision. Clearly, they must have been aware that the said footage coming from Reuters or CNN
has a "No Access Philippines" advisory or embargo thus cannot be re-broadcast. We find no merit to the
defense of ignorance interposed by the respondents. It is simply contrary to human experience and logic
that experienced employees of an established broadcasting network would be remiss in their duty in
ascertaining if the said footage has an embargo.164 (Emphasis supplied)
We agree with the findings as to respondents Dela Peña-Reyes and Manalastas. Both respondents
committed acts that promoted infringement of ABS-CBN's footage. We note that embargoes are
common occurrences in and between news agencies and/or broadcast organizations. 165  Under its
Operations Guide, Reuters has two (2) types of embargoes: transmission embargo and publication
embargo.166 Under ABS-CBN's service contract with Reuters, Reuters will embargo any content
contributed by ABS-CBN from other broadcast subscribers within the same geographical
location:chanroblesvirtuallawlibrary
4a. Contributed Content

You agree to supply us at our request with news and sports news stones broadcast on the Client
Service of up to three (3) minutes each for use in our Services on a non-exclusive basis and at a cost of
US$300.00 (Three Hundred United States Dollars) per story. In respect of such items we agree to
embargo them against use by other broadcast subscribers in the Territory and confirm we will observe
all other conditions of usage regarding Contributed Content, as specified in Section 2.5 of the Reuters
Business Principles for Television Services. For the purposes of clarification, any geographical restriction
imposed by you on your use of Contributed Content will not prevent us or our clients from including
such Contributed Content in online transmission services including the internet. We acknowledge
Contributed Content is your copyright and we will not acquire any intellectual property rights in the
Contributed Content.167 (Emphasis supplied)
Respondents Dela Peña-Reyes and Manalastas merely denied receiving the advisory sent by Reuters to
its clients, including GMA-7. As in the records, the advisory reads:chanroblesvirtuallawlibrary
ADVISORY - - +++LIVE COVER PLANS+++
PHILIPPINES: HOSTAGE RETURN

* *ATTENTION ALL CLIENTS**

PLEASE BE ADVISED OF THE FOLLOWING LIVE COVER PLANNED FOR THURSDAY, JULY 22:

.     .     .     .

SOURCE: ABS-CBN
TV AND WEB RESTRICTIONS: NO ACCESS PHILIPPINES.168
There is probable cause that respondents Dela Peña-Reyes and Manalastas directly committed
copyright infringement of ABS-CBN's news footage to warrant piercing of the corporate veil. They are
responsible in airing the embargoed Angelo dela Cruz footage. They could have prevented the act of
infringement had they been diligent in their functions as Head of News Operations and Program
Manager.

Secretary Agra, however, committed grave abuse of discretion when he ordered the filing of the
Information against all respondents despite the erroneous piercing of the corporate veil. Respondents
Gozon, Duavit, Jr., Flores, and Soho cannot be held liable for the criminal liability of the corporation.
Mere membership in the Board or being President per se does not mean knowledge, approval, and
participation in the act alleged as criminal. There must be a showing of active participation, not simply
a constructive one.

Under principles of criminal law, the principals of a crime are those "who take a direct part in the
execution of the act; [t]hose who directly force or induce others to commit it; [or] [t]hose who
cooperate in the commission of the offense by another act without which it would not have been
accomplished."169 There is conspiracy "when two or more persons come to an agreement concerning
the commission of a felony and decide to commit it":170ChanRoblesVirtualawlibrary
Conspiracy is not presumed. Like the physical acts constituting the crime itself, the elements of
conspiracy must be proven beyond reasonable doubt. While conspiracy need not be established by
direct evidence, for it may be inferred from the conduct of the accused before, during and after the
commission of the crime, all taken together, however, the evidence must be strong enough to show
the community of criminal design. For conspiracy to exist, it is essential that there must be a conscious
design to commit an offense. Conspiracy is the product of intentionality on the part of the cohorts.

It is necessary that a conspirator should have performed some overt act as a direct or indirect
contribution to the execution of the crime committed. The overt act may consist of active participation
in the actual commission of the crime itself or it may consist of moral assistance to his co-conspirators
by being present at the commission of the crime or by exerting moral ascendancy over the other co-
conspirators[.]171  (Emphasis supplied, citations omitted)
In sum, the trial court erred in failing to resume the proceedings after the designated period. The Court
of Appeals erred when it held that Secretary Agra committed errors of jurisdiction despite its own
pronouncement that ABS-CBN is the owner of the copyright on the news footage. News should be
differentiated from expression of the news, particularly when the issue involves rebroadcast of news
footage. The Court of Appeals also erroneously held that good faith, as. well as lack of knowledge of
infringement, is a defense against criminal prosecution for copyright and neighboring rights
infringement. In its current form, the Intellectual Property Code is malum prohibitum and prescribes a
strict liability for copyright infringement. Good faith, lack of knowledge of the copyright, or lack of
intent to infringe is not a defense against copyright infringement. Copyright, however, is subject to the
rules of fair use and will be judged on a case-to-case basis. Finding probable cause includes a
determination of the defendant's active participation, particularly when the corporate veil is pierced in
cases involving a corporation's criminal liability.cralawred

WHEREFORE, the Petition is partially GRANTED.  The Department of Justice Resolution dated June 29,
2010 ordering the filing of the Information is hereby REINSTATED as to respondents Grace Dela Peña-
Reyes and John Oliver T. Manalastas. Branch 93 of the Regional Trial Court of Quezon City is directed to
continue with the proceedings in Criminal Case No. Q-04-131533.

SO ORDERED.chanroblesvirtuallawlibrary

SECOND DIVISION
 G.R. No. 199371, February 03, 2016

PETRON LPG DEALERS ASSOCIATION AND TOTAL GAZ LPG DEALERS

ASSOCIATION, Petitioners, v. NENA C. ANG, ALISON C. SY, NELSON C. ANG, RENATO C. ANG, AND/OR
OCCUPANTS OF NATIONAL PETROLEUM CORPORATION, Respondents.

DECISION

DEL CASTILLO, J.:

Facts discovered during surveillance operations conducted by the authorities on the basis of
information and evidence provided by the complainants constitute personal knowledge which could
form the basis for the issuance of a search warrant.

This Petition for Review on Certiorari1 seeks to set aside the September 2, 2011 Decision2 of the Court
of Appeals (CA) in CA-G.R. CV No. 89220 and its November 17, 2011 Resolution 3 dismissing petitioners'
appeal and denying their Motion for Reconsideration, respectively.

Factual Antecedents

Petitioners Petron LPG Dealers Association and Total Gaz LPG Dealers Association, together with other
liquefied petroleum gas (LPG) associations, filed a letter-complaint 4 before the National Bureau of
Investigation-Ilocos Regional Office (NBI-IRO), requesting assistance in the surveillance, investigation,
apprehension and prosecution of respondents Nena C. Ang, Alison C. Sy, Nelson C. Ang, Renato C. Ang,
and National Petroleum Corporation (Nation Gas) for alleged illegal trading of LPG products and/or
underfilling, possession and/or sale of underfilled LPG products in violation of Sections 2 (a) and (c), in
relation to Sections 3 and 4 of Batas Pambansa Blg. 335 as amended by Presidential Decree No.
18656 (BP 33, as amended), which provide -

Section 2. Prohibited Acts. - The following acts are prohibited and penalized:

(a) Illegal trading in petroleum and/or petroleum products;

(b) x x x x

(c) Underdelivery or underfilling beyond authorized limits in the sale of petroleum products or
possession of underfilled liquefied petroleum gas cylinder for the purpose of sale, distribution,
transportation, exchange or barter;

xxxx

Sec. 3. Definition of terms, For the purpose of this Act, the following terms shall be construed to mean:

Illegal trading in petroleum and/or petroleum products -

xxxx

(C) Refilling of liquefied petroleum gas cylinders without authority from said Bureau, or refilling of
another company's or firm's cylinders without such company's or firm's written authorization;
xxxx

Sec. 4. Penalties. Any person who commits any act herein prohibited shall, upon conviction, be
punished with a fine of not less than twenty thousand pesos (P20,000) but not more than fifty
thousand pesos (P50,000), or imprisonment of at least two (2) years but not more than five (5) years,
or both, in the discretion of the court. In cases of second and subsequent conviction under this Act, the
penalty shall be both fine and imprisonment as provided herein. Furthermore, the petroleum and/or
petroleum products, subject matter of the illegal trading, adulteration, shortselling, hoarding,
overpricing or misuse, shall be forfeited in favor of the Government: Provided, That if the petroleum
and/or petroleum products have already been delivered and paid for, the offended party shall be
indemnified twice the amount paid, and if the seller who has not yet delivered has been fully paid, the
price received shall be returned to the buyer with an additional amount equivalent to such price; and
in addition, if the offender is an oil company, marketer, distributor, refiller, dealer, sub-dealer and
other retail outlets, or hauler, the cancellation of his license.

Trials of cases arising from this Act shall be terminated within .thirty (30) days after arraignment.

When the offender is a corporation, partnership, or other juridical person, the president, the general
manager, managing partner, or such other officer charged with the management of the business affairs
thereof, or employee responsible for the violation shall be criminally liable; in case the offender is an
alien, he shall be subject to deportation after serving the sentence.

If the offender is a government official or employee, he shall be perpetually disqualified from office.
In particular, respondents were alleged to be refilling Shellane, Gasul, Totalgaz, Starflame, and
Superkalan Gaz LPG cylinders and selling, distributing and transporting the same without the required
written authorization from the alleged respective owners of these cylinders - namely, Pilipinas Shell
Petroleum Corporation, Petron Gasul Corporation, Total (Philippines) Corporation, Caltex (Philippines)
Corporation (Caltex), and Superkalan Gaz Corporation.

Acting on the letter-complaint, the NBI-IRO - through its agent Marvin de Jemil (De Jemil) - conducted
surveillance and test-buy operations. Thus, on November 24, 2005, De Jemil and an undercover NBI
asset, Leonardo Antonio (Antonio), proceeded to the sales office of one of Nation Gas's alleged
customers in Vigan City, Barba Gas Marketing Center (Barba Gas) - a dealer of LPG and cylinders. De
Jemil and Antonio waited until a Barba Gas delivery truck was loaded with Starflame LPG cylinders. The
truck then left, with De Jemil's vehicle tailing behind. The truck proceeded to and entered a fenced
compound located in Magsingal, Ilocos Sur. The entrance to the compound contained a sign which
read "LPG Refilling Plant". De Jemil interviewed residents within the vicinity, and it was learned that
the compound belonged to or was occupied by Nation Gas.

De Jemil and Antonio waited at a distance. After about one hour, the Barba Gas truck emerged from
the compound. De Jemil then followed the truck back to the Barba Gas sales office at Jose Singson
street in Vigan, where the refilled Starflame LPG cylinders were unloaded. The two then proceeded to
the test-buy phase of the operation; with an empty eleven-kilogram (11 kg.) Starflame LPG tank in
hand, they went to Barba Gas and purchased one of the refilled Starflame LPG cylinders unloaded from
the truck. The Barba Gas employee took De Jemil's empty cylinder and replaced it with a filled one. De
Jemil paid P510.00 for the filled cylinder and received a dated receipt 7 for the purchase. Thereafter, the
filled Starflame LPG cylinder was examined, weighed, inspected, marked, and photographed.
Ruling of the Regional Trial Court

On December 7, 2005, the NBI, through De Jemil, filed two Applications for Search Warrant 8 to conduct
a search of the Magsingal LPG refilling plant. The applications were filed before the Regional Trial Court
(RTC) of Bauang, La Union. Judge Ferdinand A. Fe' of RTC Branch 67 propounded the required searching
questions, to which De Jemil and Antonio provided the answers.9 De Jemil further submitted a sketch
and vicinity/location map10 of the place to be searched; a December 6, 2005 Certification 11 or authority
to apply for a search warrant issued by his superior, Atty. Rustico Q. Vigilia, NBI-IRO Regional Director;
the receipt for the test-buy refilled Starflame LPG cylinder obtained from Barba Gas on November 24,
2005; written Certifications12 to the effect mat Nation Gas is not an authorized LPG refiller of Pilipinas
Shell Petroleum Corporation, Petron Gasul Corporation, Total (Philippines) Corporation, Caltex and,
Superkalan Gaz Corporation; corporate documents of Nation Gas obtained from the Securities and
Exchange Commission (SEC); and photographs13 of the Barba Gas delivery truck involved in the refilling
operation on November 24, 2005, unloading of the refilled LPG cylinders from the delivery truck after
coming from the Magsingal refilling plant, the refilled Starflame LPG cylinder purchased and obtained
from the test-buy, and the blank seal covering the test-buy refilled Starflame LPG cylinder - supporting
the allegation that the refilling was not authorized as the seal was not a Caltex Starflame seal.

The trial court issued Search Wan-ant Nos. 2005-59 and 2005-60, 14 which were served the following
day, or on December 8, 2005, at the Magsingal LPG refilling plant. Items specified in the search
warrants were seized and duly inventoried and receipted.15 Thereafter, a Consolidated Return of
Search Warrants16 was filed.

On February 7, 2006, respondents filed a Motion to Quash 17 Search Warrant Nos. 2005-59 and 2005-
60, arguing that the issuing court did not comply with the requirements for issuance of a valid search
warrant; that there is no probable cause to issue the subject search warrants, as the certifications
issued by the complainants - to the effect that Nation Gas was not an authorized refiller -was not
authenticated, the same being mere private documents which required authentication; that De Jemil
and Antonio have no personal knowledge of the charges, as well as the truthfulness and authenticity of
said certifications; that the issuing court should not have consolidated the two applications, but should
have considered them separately in order to arrive at an independent evaluation thereof; that the
seizure of Shellane, Gasul, Total Gaz, and Superkalan cylinders was unlawful since there is no specific
allegation and evidence of underfilling or illegal refilling - if at all, the inspection was limited to
determining if the cylinders were refilled with or without the authority of the complainants; that as a
result, the warrants issued were illegal general warrants; and that the warrants covered machinery and
equipment classified as real property.

On August 4, 2006, the issuing court released an Order18 quashing the subject warrants. It held that De
Jemil and Antonio had no personal knowledge that Nation Gas was not an authorized LPG refiller of the
complaining LPG companies/associations; that no member or representative of the complainants was
presented as witness to the search warrant applications; that there is no evidence of illegal refilling
since De Jemil and Antonio did not witness the supposed refilling of Barba Gas's Starflame LPG
cylinders - including the test-buy cylinder - by Nation Gas; that the certifications issued by the LPG
companies were hearsay and not based on personal knowledge, since the testimonies or depositions of
those who issued them were not taken and presented to the issuing court; that Caltex's certification
does not at all state that Nation Gas was an unauthorized refiller; and that the testimonies or
depositions of those who tested the Starflame cylinder -who merely issued a certification of test results
- were not taken and submitted to the court, thus rendering said certification mere hearsay. The
issuing court concluded that there is no probable cause to issue the subject warrants, and there is no
reasonable ground to believe that an offense has been committed by the respondents. It decreed,
thus:ChanRoblesVirtualawlibrary
WHEREFORE, premises considered, Search Warrants Nos. 2005-59 and 2005-60 are hereby ordered
QUASHED for lack of probable cause.

The objects seized by virtue thereof are declared inadmissible for any purpose. The applicant, NBI
Supervising Agent Marvin E. De Jemil, or any of his authorized representatives, who was authorized to
temporarily retain possession and custody of the seized goods/objects for safekeeping at the
warehouse located at Barangay Dilan, Urdaneta, Pangasinan, is ordered to immediately return all the
seized items to the respondents.

SO ORDERED.19chanroblesvirtuallawlibrary
Petitioners filed a Motion for Reconsideration;20 however, the same was denied in a January 11, 2006
Order.21chanroblesvirtuallawlibrary

Ruling of the Court of Appeals

Petitioners interposed an appeal before the CA. On September 2, 2011, the assailed Decision was
rendered denying petitioners' appeal. The appellate court held, as follows:ChanRoblesVirtualawlibrary
The appellants22 argue that aside from the testimony of De Jemil and Antonio, other documents were
presented at the time of the hearing on the application for Search Warrant No. 2005-59. They posit
that these are sufficient to establish probable cause and as such, there was no need for the
presentation of persons who certified that Nation was not authorized to refill the branded LPG
cylinders. They point out that probable cause is only concerned with probabilities and the standard for
its determination is only that of a reasonable prudent man. They stress that after the surveillances and
test-buy operations done by De Jemil and Antonio, the two already acquired personal knowledge of
the offenses committed by the respondents-appellees.23 It is claimed too that the RTC's finding, that
the certification did not state Nation was not authorized to refill, was a vain attempt to steer clear of
respondents-appellees' lack of authorization. It is alleged further that although De Jemil and Antonio
did not sign the inspection report detailing the weight of the LPG cylinder acquired during the test-buy
operations, they were physically present and actually involved in the weighing done, giving them
personal knowledge of the under filling by Nation. The appellants aver too that there is no proof that
those who weighed the acquired cylinder were employed by them.

xxxx

In reviewing what transpired below, the Court's 'task ... is not to conduct a de novo determination of
probable cause but only to determine whether there is substantial evidence in the records supporting
the Judge's decision.' This being the rule, the petition must fail.

The determination of probable cause for the issuance of a search warrant requires that the facts
surrounding the basis for the application must be within the personal knowledge of the applicant or his
witnesses. If this does not obtain, the finding of probable cause of a judge may be set aside and the
search warrant issued by him based on his finding may be quashed since 'the Judge must strictly
comply with the requirements of the Constitution and the statutory provisions.' The circumstances at
hand repeal that there is enough basis for the RTC to quash the Subject Warrants.
De Jemil and Antonio relied on sources furnished to them made by persons not presented as
witnesses. They, thus, testified as to the truth of facts they had no personal knowledge of. 'Search
warrants are not issued on loose, vague or doubtful basis of fact, nor on mere suspicion or belief.' For
instance, de Jemil testified as follows:ChanRoblesVirtualawlibrary
"Q You said that the gas tanks are under filled, is that correct?
A Yes, your Honor.
Q What you mean to convey is that the gas tanks do not contain the required gas to be put inside
the gas tanks required by law?
A Yes, your Honor.
Q How were you able to verify this?
A It was examined and inspected by the personnel of the LPG Dealers Association, your Honor.
xxx
Q Do you know who owns that refilling station in Magsingal?
xxx
A The Nation Petroleum Corporation, your Honor.
Q And you claimed that the refilling is being done in that refilling station...?
A Yes...
Q Why, is it an authorized refilling station for Caltex?
A No, your Honor.
Q ... [W]hat brand of LPG gas is it authorized to make refills?
A He [sic] was not authorized to refill branded LPG cylinders including Caltex LPG cylinders as well as
other branded LPG cylinders, your Honor.
xxx
Q Do you have a certification to show that it is not authorized as a refilling center?
A Yes, your Honor."
while a portion of Antonio's testimony goes:ChanRoblesVirtualawlibrary
Q What was the result of the test-buy?
A After [the] testing conducted by Mr. Kenneth Igoy and Mr. Alex Dosuhan of the LPG Dealers
Association, the examination turned out positive that the LPG cylinder subject of the test-buy was
under-filled and that the Nation Gas was also using [an] unauthorized seal..."
[From] their answers, [it could be gleaned that] De Jemil and Antonio had no personal knowledge that
the LPG acquired during the test-buy was underfilled and that Nation had no authorization. They may
have seen a truck carrying empty cylinders enter Nation's premises and exit after with alleged under-
filled cylinders but the requirement of the law is more precise. They should have had personal
knowledge that the cylinder concerned was under-filled and that Nation lacked authority. It cannot be
ignored that both De Jemil and Antonio did not see the subject cylinder being filled [nor] did they test
its weight personally. Furthermore, they were just furnished a certification that Nation did not have
any right to refill. Indeed, their respective sworn statements read in part as
follows:ChanRoblesVirtualawlibrary
'5. I likewise secured a Certification dated 27 August 2005 from Atty. Adarlo who confirmed that Nation
Gas is not one of those entities authorized to refill LPG cylinders bearing the brands of Pilipinas Shell
Petroleum Corporation, Petron Corporation, Total (Philippines) Corporation, Caltex Philippines, Inc.[,]
and Superkalan Gaz Corporation.'chanRoblesvirtualLawlibrary

-oXo-

'5. Pinagbigay-alam sa akin na ang Nation Gas ay walang pahintulot na nagkakarga ng mga Shellane,
Petron Gasul, Totalgaz, Caltex Starflame[,] at Superkalan Gaz na tangke ng LPG dahil ang Nation [G]as
ay Mndi pinahintulutan ng mga nabanggit na mga lehitimong kompanya.'
WHEREFORE, premises considered, the instant petition is DENIED.

SO ORDERED.24chanroblesvirtuallawlibrary
Petitioners filed a Motion for Reconsideration, 25 which was denied through the CA's second assailed
Resolution of November 17, 2011. Hence, the instant Petition.

In an August 28, 2013 Resolution,26 this Court resolved to give due course to the
Petition.chanRoblesvirtualLawlibrary

Issues
Petitioners allege that:ChanRoblesVirtualawlibrary
THE COURT OF APPEALS MADE A DECISION NOT IN ACCORD WITH THE REVISED RULES OF COURT AND
THE APPLICABLE DECISIONS OF THE HONORABLE COURT AS REGARDS THE DETERMINATION OF
PERSONAL KNOWLEDGE OF WITNESSES IN SEARCH WARRANT APPLICATIONS. CERTAINLY, THERE IS A
NEED TO REVERSE AND SET ASIDE THE RULING OF THE COURT OF APPEALS THAT NBI AGENT DE JEMIL
AND HIS WITNESSES HAD NO PERSONAL KNOWLEDGE THAT THE RESPONDENTS COMMITTED ILLEGAL
TRADING AND UNDERFILLING OF LIQUEFIED PETROLEUM GAS (LPG) PRODUCTS FOR THE PURPOSE OF
DETERMINING PROBABLE CAUSE IN SEARCH WARRANT APPLICATIONS.27chanroblesvirtuallawlibrary
Petitioners' Arguments

In their Petition and Reply28 seeking reversal of the assailed CA dispositions and a declaration of validity
as to the subject Search Warrants, petitioners essentially argue that in resolving the appeal, the
appellate court failed to consider that in search warrant applications, proof beyond reasonable doubt
is not required - rather, only probable cause is needed; that based on the evidence submitted with the
applications, such probable cause existed; that De Jemil and Antonio had personal knowledge of the
offenses being committed by the respondents, that is, they actually witnessed the illegal refilling and
underfilling of the subject test-buy LPG cylinder, as the same was examined and weighed in their
presence; that under Section 2(3) of BP 33, as amended, there is a presumption of underfilling when
the seal is broken, absent or removed; that while the complainants' witnesses were not introduced
into the proceedings, De Jemil and Antonio were nonetheless able to acquire personal knowledge of
respondents' illegal acts when they conducted their surveillance and test-buy operations; and that
personal knowledge acquired during surveillance and investigation conducted based on the tip of a
confidential informant satisfies the requirement of probable cause for the issuance of a search
warrant.29chanroblesvirtuallawlibrary

Respondent's Arguments

In their Comment30 seeking denial of the Petition, respondents claim that the Petition raises issues of
fact; that under the Rules of Criminal Procedure, the applicant for a search warrant and his witnesses
should have personal knowledge of facts in order to establish probable cause; that the issuing court
and the CA are unanimous in their findings that the applications for search warrant should be denied;
that De Jemil and Antonio have no personal knowledge mat the subject test-buy LPG cylinder was
refilled by respondents, as they did not enter the premises of the Magsingal LPG refilling plant; that
there is no truth to De Jemil and Antonio's claim that they actually examined and weighed the test-buy
LPG cylinder, as they admitted during the proceedings that it was the LPG dealers' association that
inspected and weighed the same; that the surveillance and test-buy operations failed to establish the
accusations leveled against respondents, and for this reason, the lack of personal knowledge by De
Jemil and Antonio and failure to present the complainants' witnesses were not
cured.chanRoblesvirtualLawlibrary

Our Ruling
The Court grants the Petition.

In Del Castillo v. People,31 the relevant principles governing the issuance of a search warrant were
discussed, as follows:ChanRoblesVirtualawlibrary
The requisites for the issuance of a search warrant are: (1) probable cause is present; (2) such probable
cause must be determined personally by the judge; (3) the judge must examine, in writing and under
oath or affirmation, the complainant and the witnesses he or she may produce; (4) the applicant and
the witnesses testify on the facts personally known to them; and (5) the warrant specifically describes
the place to be searched and the things to be seized. x x x Probable cause for a search warrant is
defined as such facts and circumstances which would lead a reasonably discreet and prudent man to
believe that an offense has been committed and that the objects sought in connection with the offense
are in the place sought to be searched. A finding of probable cause needs only to rest on evidence
showing that, more likely than not, a crime has been committed and that it was committed by the
accused. Probable cause demands more than bare suspicion; it requires less than evidence which
would justify conviction. The judge, in determining probable cause, is to consider the totality of the
circumstances made known to him and not by a fixed and rigid formula, and must employ a flexible,
totality of the circumstances standard. x x x32chanroblesvirtuallawlibrary
Petitioners claim that respondents are engaged in the illegal trading and refilling of Shellane, Gasul,
Totalgaz, Starflame, and Superkalan Gaz LPG cylinders, as they were not authorized dealers or refillers
of Pilipinas Shell Petroleum Corporation, Petron Gasul Corporation, Total (Philippines) Corporation,
Caltex, and Superkalan Gaz Corporation. Additionally, they accuse respondents of underfilling LPG
cylinders. To prove illegal trading and refilling, they presented written certifications to the effect that
Nation Gas was not an authorized LPG refiller of Pilipinas Shell Petroleum Corporation, Petron Gasul
Corporation, Total (Philippines) Corporation, Caltex, and Superkalan Gaz Corporation. And to prove
underfilling, they presented photographs as well as the results of an examination of the refilled
Starflame LPG cylinder obtained through De Jemil's test-buy.

The Court finds the evidence presented sufficient to prove probable cause; the issuing court and the CA
thus patently erred in quashing the search warrants. Where the findings of fact of the CA are premised
on the supposed absence of evidence and contradicted by the evidence on record, the same cannot
bind this Court.33chanroblesvirtuallawlibrary

In Ty v. NBI Supervising Agent De Jemil,34 the Court declared that what BP 33, as amended prohibits is
the refilling and underfilling of a branded LPG cylinder by a refiller who has no written authority from
the brand owner; this proceeds from the principle that the LPG brand owner is deemed owner as well
of the duly embossed, stamped and marked LPG cylinders, even if these are in the possession of its
customers or consumers. Such illegal refilling/underfilling may be proved by: 1) conduct of surveillance
operations; 2) the conduct of a test-buy; 3) written certifications from LPG companies such as Pilipinas
Shell Petroleum Corporation, Petron Gasul Corporation, and Total (Philippines) Corporation detailing
and listing the entities duly authorized to deal in or refill their respective LPG cylinders, and excluding a
particular LPG trader/refiller from the lists contained in said certifications; and 4) the written report
and findings on the test and examination of the test-buy cylinder. Thus, the Court
held:ChanRoblesVirtualawlibrary
Probable violation of Sec. 2 (a) of BP 33, as amended
First. The test-buy conducted on April 15, 2004 by the NBI agents, as attested to by their respective
affidavits, tends to show that Omni illegally refilled the eight branded LPG cylinders for PhP 1,582. This
is a clear violation of Sec. 2 (a), in relation to Sees. 3 (c) and 4 of BP 33, as amended. It must be noted
that the criminal complaints, as clearly shown in the complaint-affidavits of Agent De Jemil, are not
based solely on the seized items pursuant to the search warrants but also on the test-buy earlier
conducted by the NBI agents.

Second. The written certifications from Pilipinas Shell, Petron[,] and Total show that Omni has no
written authority to refill LPG cylinders, embossed, marked or stamped Shellane, Petron Gasul,
Totalgaz[,] and Superkalan Gaz. In fact, petitioners neither dispute this nor claim mat Omni has
authority to refill these branded LPG cylinders.

Third. Belying petitioners' contention, the seized items during the service of the search warrants tend
to show that Omni illegally refilled branded LPG cylinders without authority.

xxxx

As petitioners strongly argue, even if the branded LPG cylinders were indeed owned by customers,
such fact does not authorize Omni to refill these branded LPG cylinders without written authorization
from the brand owners Pilipinas Shell, Petron[,] and Total. In Yao, Sr. v. People, a case involving
criminal infringement of property rights under Sec. 1.55 of RA 8293, in affirming the courts a quo's
determination of the presence of probable cause, this Court held that from Sec. 155.1 of RA 8293 can
be gleaned that 'mere unauthorized use of a container bearing a registered trademark in connection
with the sale, distribution or advertising of goods or services which is likely to cause confusion, mistake
or deception among the buyers/consumers can be considered as trademark infringement. The Court
affirmed the presence of infringement involving the unauthorized sale of Gasul and Shellane LPG
cylinders and the unauthorized refilling of the same by Masagana Gas Corporation as duly attested to
and witnessed by NBI agents who conducted the surveillance and test-buys.

Similarly, in the instant case, the fact that Omni refilled various branded LPG cylinders even if owned by
its customers but without authority from brand owners Perron, Pilipinas Shell[,] and Total shows
palpable violation of BP 33, as amended. As aptly noted by the Court in Yao, Sr. v. People, only the duly
authorized dealers and refillers of Shellane, Petron Gasul and, by extension, Total may refill these
branded LPG cylinders. Our laws sought to deter the pernicious practices of unscrupulous
businessmen.

Fourth. The issue of ownership of the seized branded LPG cylinders is irrelevant and hence need no
belaboring. BP 33, as amended, does not require ownership of the branded LPG cylinders as a
condition sine qua non for the commission of offenses involving petroleum and petroleum products.
Verily, the offense of refilling a branded LPG cylinder without the written consent of the brand owner
constitutes the offense regardless of the buyer or possessor of the branded LPG cylinder.

After all, once a consumer buys a branded LPG cylinder from the brand owner or its authorized dealer,
said consumer is practically free to do what he pleases with the branded LPG cylinder. He can simply
store the cylinder once it is empty or he can even destroy it since he has paid a deposit for it which
answers for the loss or cost of the empty branded LPG cylinder. Given such fact, what the law
manifestly prohibits is the refilling of a branded LPG cylinder by a refiller who has no written authority
from the brand owner, Apropos, a refiller cannot and ought not to refill branded LPG cylinders if it has
no written authority from the brand owner.
Besides, persuasive are the opinions and pronouncements by the DOE: brand owners are deemed
owners of their duly embossed, stamped and marked LPG cylinders even if these are possessed by
customers or consumers. The Court recognizes this right pursuant to our laws, i.e., Intellectual Property
Code of the Philippines. Thus the issuance by the DOE [of] Circular No. 2000-05-007, the letter-opinion
dated December 9, 2004 of then DOE Secretary Vincent S. Perez addressed to Pilipinas Shell, the June
6, 2007 letter of then DOE Secretary Raphael P.M. Lotilla to the LPGIA, and DOE Department Circular
No. 2007-10-0007 on LPG Cylinder Ownership and Obligations Related Thereto issued on October 13,
2007 by DOE Secretary Angelo T. Reyes.

Fifth. The ownership of the seized branded LPG cylinders, allegedly owned by Omni customers as
petitioners adamantly profess, is of no consequence.

The law does not require that the property to be seized should'be owned by the person against whom
the search [warrant] is directed. Ownership, therefore, is of no consequence, and it is sufficient that
the person against whom the warrant is directed has control or possession of the property sought to
be seized. Petitioners cannot deny that the seized LPG cylinders were in the possession of Omni, found
as they were inside the Omni compound.

xxxx

Probable violation of Sec. 2 (c) of BP 33, as amended

Anent the alleged violation of Sec. 2 (c) in relation to Sec. 4 of BP 33, as amended, petitioners strongly
argue that there is no probable cause for said violation based upon an underfilling of a lone cylinder of
the eight branded LPG cylinders refilled during the test-buy. Besides, they point out that there was no
finding of underfilling in any of the filled LPG cylinders seized during the service of the search warrants.
Citing DOE's Bureau of Energy Utilization Circular No. 85-3-348, they maintain that some deviation is
allowed from the exact filled weight. Considering the fact that an isolated underfilling happened in so
many LPG cylinders filled, petitioners are of the view that such is due to .human or equipment error
and does not in any way constitute deliberate underfilling within the contemplation of the law.

Moreover, petitioners cast aspersion on the report and findings of LPG Inspector Navio of the LPGLA.
by assailing his independence for being a representative of the major petroleum companies and that
the inspection he conducted was made without the presence of any DOE representative or any
independent body having technical expertise in determining LPG cylinder underfilling beyond the
authorized quantity.

Again, we are not persuaded.

Contrary to petitioners' arguments, a single underfilling constitutes an offense under BP 33, as

amended by PD 1865, which clearly criminalizes these offenses. In Perez v. LPG Refillers Association of
the Philippines, Inc., the Court affirmed the validity of DOE Circular No. 2000-06-010 which provided
penalties on a per cylinder basis for each violation x x x.

xxxx

The Court made it clear that a violation, like underfilling, on a per cylinder basis falls within the phrase
of any act as mandated under Sec. 4 of BP 33, as amended. Ineluetably, the underfilling of one LPG
cylinder constitutes a clear violation of BP 33, as amended, The finding of underfilling by LPG Inspector
Navio of the LPGIA, as aptly noted by Manila Assistant City Prosecutor Catalo who conducted Ae
preliminary investigation, was indeed not controverted by petitioners.35chanroblesvirtuallawlibrary
An examination of petitioners' evidence in the instant case reveals that it is practically identical to that
presented in the Ty case. A complaint was filed with the NBI, which conducted surveillance and test-
buy operations; written certifications were submitted to the effect that the respondent was not an
authorized refiller of the LPG companies' branded cylinders; finally, an inspection of the test-buy
cylinder was conducted, and the results thereof embodied in a written document which was submitted
as evidence in the proceedings. Moreover, photographs taken indicate that Barba Gas was not an
exclusive dealer/distributor of Caltex Starflame cylinders and LPG products, and that the cylinders
involved - including the test-buy cylinder - belonged to Caltex, the same being stamped with its
Starflame mark.

Thus, applying Ty in its entirety to the present case, the Court finds that there exists probable cause for
the issuance of search warrants as applied for by petitioners. Probable cause for purposes of issuing a
search warrant refers to "such facts and circumstances which could lead a reasonably discreet and
prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s)
sought in connection with said offense or subject to seizure and destruction by law is in the place to be
searched."36 On the other hand, probable cause for purposes of filing a criminal information refers to
"such facts as are sufficient to engender a well-founded belief that a crime has been committed and
that respondents are probably guilty thereof. It is such set of facts and circumstances which would lead
a reasonably discreet and prudent man to believe mat the offense charged in the Information, or any
offense included therein, has been committed by the person sought to be arrested." 37 Thus,
while Ty refers to preliminary investigation proceedings, and the instant case is concerned with
applications for the issuance of search warrants, both are resolved based on the same degree of proof;
the pronouncement in Ty may therefore apply to the present controversy.

On the claim of lack of personal knowledge, the Court subscribes to petitioners' argument that facts
discovered during surveillance conducted by De Jemil and Antonio - on the basis of information and
evidence provided by petitioners - constitute personal knowledge which could form the basis for the
issuance of a search warrant. Indeed, as was declared in Cupcupin v. People,38 which petitioners cite,
the surveillance and investigation conducted by an agent of the NBI obtained from confidential
information supplied to him enabled him to gain personal knowledge of the illegal activities
complained of.

WHEREFORE, the Petition is GRANTED. The September 2, 2011 Decision and November 17, 2011
Resolution of the Court of Appeals in CA-G.R. CV No. 89220 are REVERSED and SET ASIDE. The validity
of Search Warrant Nos. 2005-59 and 2005-60 is SUSTAINED.

SO ORDERED.cralawlawlibrary

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 205800               September 10, 2014

MICROSOFT CORPORATION and ADOBE SYSTEMS INCORPORATED, Petitioners,
vs.
SAMIR FARAJALLAH, VIRGILIO D.C. HERCE, RACHEL P. FOLLOSCO, JESUSITO G. MORALLOS, and MA.
GERALDINE S. GARCIA (directors and officers of NEW FIELDS (ASIA PACIFIC), INC.), Respondents.

DECISION

CARPIO, Acting C.J.:

The Case

Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court which seeks
to reverse and set aside the Decision1 of the Court of Appeals (CA) dated 28 June 2012 in CA-G.R. SP
No. 116771 and the Resolution2 of the CA dated 30 January 2013. The Decision and Resolution
sustained the orders of the Regional Trial Court of Manila, Branch 21 (RTC) quashing Search Warrant
Nos. 10-15912 and 10-15913.

The Facts

Microsoft Corporation and Adobe Systems Incorporated (petitioners) are corporations organized and
existing under the laws of the United States. Microsoft Corporation is the owner of all rights including
copyright relating to all versions and editions of Microsoft software 3 and the corresponding user’s
manuals, and the registeredowner of the "Microsoft" "MS DOS" trademarks in the Philippines. Adobe

Systems Incorporatedis the owner of all rights including copyright relating to all versions and editions
of Adobe Software.4

Samir Farajallah, Virgilio D.C. Herce, Rachel P. Follosco, Jesusito G. Morallos and Ma. Geraldine S.
Garcia (respondents) are the directors and officers of New Fields (Asia Pacific), Inc., a domestic
corporation with principal office at Unit 1603, East Tower, PhilippineStock Exchange Center, Exchange
Road, Ortigas Center, Pasig City.

Petitioners claim that in September 2009, they were informed that New Fields was unlawfully
reproducing and using unlicensed versions of their software. Orion Support, Inc.(OSI) was engaged by
petitioners to assist in the verification of this information. Two OSI Market Researchers, Norma L.
Serrano (Serrano) and Michael A. Moradoz (Moradoz) were assigned to confirm the informant's tip.
Serrano and Moradoz were trained to detect unauthorized copies of Adobe and Microsoft software. 5

On 17 March 2010, counsel for petitioners filed a letter-complaint with the Chief of the Philippine
National Police Criminal Investigation and Detection Group. The case was assigned to Police Senior
Inspector Ernesto V. Padilla (Padilla).6

On 26 March 2010, Padilla, Serrano, and Moradoz went to the office of respondents. Using a legitimate
business pretext, they were able to use two computers owned by New Fields and obtained the
following information regarding the installed Microsoft and Adobe software:

First computer

Installed Software Product I.D./Serial Number

 Microsoft Windows XP Pro V2002 S₱2 55274-640-1582543-23775
Microsoft Office Word 2007 Enterprise 89388-707-0358973-65509

Edition 2007
Adobe Acrobat 8 Pro (1) 1118-1061-0904-4874-2027

Second computer
Installed Software Product I.D./Serial Number
Microsoft Windows XP Pro V2002 S₱2 55274-640-1582543-23442
Microsoft Office Word 2007 Enterprise 89388-707-0358973-65709

Edition 2007
Adobe Acrobat 8 Pro (1) 1118-1061-0904-4874-2027

Padilla was trained to distinguish original from counterfeit software, 7 and he saw the screens of the
computers used by the OSI staff, including the product I.D. Nos. of the installed software.

In their Joint Affidavit, Serrano and Moradoz stated that:

There are at least two (2) computers using common product identification and/or serial numbers of
MICROSOFT and ADOBE software. This is one indication that the software being used is unlicensed or
was illegally reproduced or copied. Based on the training we attended, all ADOBE and
MICROSOFTsoftware should only be installed in one computer, unless they avail of an Open Licese
Agreement from the software developer, which is not the case in NEW FIELDS. In this case, the first
three sets of numbers of the Product I.D. Nos. of the MICROSOFT Windows XP Pro operating System
software program installed in the two (2) computerunits we used, i.e., "55274-640-1582543-xxxxx",
were the same. We also observed that the first three sets of numbers of the Product I.D Nos. of the
MICROSOFT Office 2007 (Word) software in the two (2) computers we used, i.e., "89388-707-0358973-
xxxxx", were also the same. Ostensibly, this means that NEW FIELDS only used one (1) installer of the
MICROSOFT Windows XP operating system software and one (1) installer of the MICROSOFT Office
software program on two (2) computers. Based on our training, if the first three sets of numbers of the
Product I.D. Nos. of the MICROSOFT software installed are the same, it signifies that it came from one
installer. It does not matter [if] the last 5 digits of the Product I.D. Nos. are different because this is
computer-generated and therefore varies with every installation. Apart from the MICROSOFT software,
the serial numbers of the ADOBE software installed in the computer units we used were also the same,
signifying that NEW FIELDS only used one (1) installer of the ADOBE software program on two (2)
computers.8 (Emphasis supplied)

They also observed that New Fields had 90 computers in their office with Microsoft software, none of
which had the Certificate of Authenticity issued by Microsoft.

After being informed of the resultsof the investigation, petitioners then issued certifications that they
have not authorized New Fields to "copy, print, reproduce and/or publish unauthorized copies of
Microsoft and Adobe software products."9
An application for search warrants was filed by Padilla on 20 May 2010, before Judge Amor Reyes in
her capacity as Executive Judge of the RTC. Search Warrant Nos. 10-15912 and 10-15913 were issued
on the same date.10

The warrants were served on respondents on 24 May 2010. New Fields employees witnessed the
search conducted by the authorities. Several items were seized, including 17 CD installers and 83
computers containing unauthorized copies of Microsoft and/or Adobe software.

On 6 June 2010, New Fields filed a motion seeking to quash one of the two warrants served (Search
Warrant No. 10-15912).11 The motion was received by petitioners on 10 June 2010 and was set for
hearing on 11 June 2010. During the hearing on the motion, petitioners were allowed by the RTC to file
their Comment/Opposition on or before 21 June 2010.12

In their Comment/Opposition dated 21 June 2010,13 petitioners alleged that:

The Motion [to Quash] failed to comply with the mandatory 3-day notice rule under the Rules of Court.
Hence it is nothing but a worthless piece of paper.

xxxx

In this case, the Motion of Respondents was scheduled for hearing on 11 June 2010. However,
Respondents only furnished [petitioners] a copy of the Motion on 10 June 2010, or just1 day before the
scheduled hearing, which was in clear violation of the 3-day notice rule. 14

On 29 June 2010, the RTC issued an Order quashing both warrants and directing that "allthe items
seized from the respondents be returned x x x."15 According to the RTC, petitionersshould have
identified which specific computer had the pirated software.16 The RTC added that no criminal charge
has been filed yet, despite the fact that the seized items have been in petitioners’ possession for
several weeks since the warrants were issued. Lastly, the RTC dismissed the petitioners’ contention
that the threeday notice rule was not complied withbecause petitioners were already notified of the
motion personally.17

On 8 July 2010, petitioners receiveda copy of the Order, and Deputy Sheriff Edgardo Reyes of the RTC
alsoeffected the return of the seized items, in compliance with the RTC’s Order. 18 Petitioners filed an
Urgent Manifestation and Motion for the Issuance of a Status Quo Order on 8 July 2010 wherein they
alleged that: (1) they intend to file a Motion for Reconsideration of the Order; and (2) the Order was
not immediately executory.19 Respondents received a copy of the motion the day it was filed.

On 9 July 2010, respondents moved to expunge petitioners’ motion for reconsideration, saying that
petitioners failed to comply with the threeday notice rule. 20 The hearing on the motion was set on 13
July 2010. A copy of the motion was received by petitioners on 20 July 2010. 21

On 15 July 2010, petitioners filed a motion for reconsideration of the Order. 22 Respondents filed their
Comment/Opposition23 to the motion, which was received by petitioners on 12 August 2010. 24

The RTC denied petitioners’ motion for reconsideration in its Order dated 27 August 2010. 25 Petitioners
filed a petition for certiorari26 under Rule 65 on 8 November 2010 before the Court of Appeals.
Petitioners alleged that the RTC committed grave abuse of discretion in granting the Motion to Quash
despite: (1) respondents’ failure to comply with the three-day notice requirement; and (2) the
existence of probable cause, and personal knowledge of the warrant applicant.

The Ruling of the CA

The CA denied the petition for certiorari. The appellate court held that:

In the instant case, when the court a quoordered petitioners to submit their comment on the motion
toquash, it was, in effect, giving petitioners their day in court. Thus, while the [three]-day notice rule
was not strictly observed, its purpose was still satisfied when respondent judge did not immediately
rule on the motion giving petitioners x x x the opportunity to study and oppose the arguments stated in
the motion.27

Hence, this petition.

The Issue

The instant petition raisedonly one issue, to wit:

The Honorable Court of Appeals erred in ruling that Judge Amor Reyes of Branch 21, Regional Trial
Court of Manila did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing its Orders dated 29 June2010 and 27 August 2010, quashing Search Warrant Nos. 10-[1]5912
and 10-[1]5913 and directing the immediate release of the items seized pursuant to the said warrants,
despite the pendency of appellate proceedings.28

The Ruling of the Court

We rule that strict compliance with the three-day notice rule may be relaxed in this case. However, we
sustain petitioners’ contention that there was probable cause for issuance of a warrant, and the RTC
and CA should have upheld the validity of both warrants.

Compliance with the three-day notice rule

In Anama v. Court of Appeals,29 we ruled that the three-day notice rule is not absolute. The purpose of
the ruleis to safeguard the adverse party’s right to due process. Thus, if the adverse party was given a
reasonable opportunity to study the motion and oppose it, then strict compliance with the three-day
notice rule may be dispensed with.

As correctly pointed out by the CA:

In the instant case, when the court a quoordered petitioners to submit their comment on the motion
toquash, it was, in effect, giving petitioners their day in court. Thus, while the [three]-day notice rule
was not strictly observed, its purpose was still satisfied when respondent judge did not immediately
rule on the motion giving petitioners x x x the opportunity to study and oppose the arguments stated in
the motion.30

Existence of probable cause

Under Section 1 of Rule 45 of the Rules of Court, petitions for review by certiorari "shall raise only
questions of law." A question of fact exists when there is a doubt as to the truth of certain facts, and it
can only be resolved through a reexamination of the body of evidence.31

In Microsoft Corporation v. Maxicorp, Inc.,32 we ruled that the existence of probable cause is a question
of fact.33 In the same case, we also stated that:

Probable cause is dependent largely on the opinion and findings of the judge who conducted the
examination and who had the opportunity to question the applicant and his witnesses. For this reason,
the findings of the judge deserve great weight. The reviewing court should overturn such findings only
upon proof that the judge disregarded the facts before him or ignored the clear dictates of reason. 34

This Court is not a trier of facts. As a general rule, we defer to the lower courts’ appreciation and
evaluation of evidence.35 This general rule, however, is not absolute. We will review the factual findings
of the CA in any of the following instances:

(1) when the factual findings of the Court of Appeals and the trial court are contradictory;

(2) when the conclusion is a finding grounded entirely on speculation, surmises, or conjectures;
(3) when the inference made by the Court of Appeals from its findings of fact is manifestly
mistaken, absurd, or impossible;

(4) when there is a grave abuse of discretion in the appreciation of facts;

(5) when the Appellate Court, in making its findings, went beyond the issues of the case and
such findings are contrary to the admissions of both appellant and appellee;

(6) when the judgment of the Court of Appeals is premised on a misapprehension of facts;

(7) when the Court of Appeals failed to notice certain relevant facts which, if properly
considered, would justify a different conclusion;

(8) when the findings of fact are themselves conflicting;

(9) when the findings of fact are conclusions without citation of the specific evidence on which
they are based; and

(10) when the findings of fact of the Court of Appeals are premised on the absence of evidence
but such findings are contradicted by the evidence on record.36

In this case, we find reason to overturn the rulings of the RTC and CA, since there was grave abuse of
discretion in the appreciation of facts. The CA sustained the quashal of the warrant because the
witnesses had "no personal knowledge of the facts upon which the issuance of the warrants may be
justified,"37 and the applicants and the witnesses merely relied on the screen shots acquired from the
confidential informant.38

We disagree with the conclusions of the CA. The assailed CA Decision itself stated:
Initial hearsay information or tips from confidential informants could very well serve as basis for the
issuance of a search warrant, if followed up personally by the recipient and validated. 39 Looking at the
records, it is clear that Padilla and his companions were able to personally verify the tipof their
informant. In his Affidavit submitted to Judge Amor Reyes prior to the issuance of the warrant, Padilla
stated that:

At the time that I was inside the office premises of the NEW FIELDS, I saw the Product Keys or Product
Identification Numbers of the ADOBE and MICROSOFT computer software programs installed in some
of the computer units. Ms. Serrano and Mr. Moradoz were able to pull up these data since they were
allowed to use some of the computers of the target companies in line with the pretext that we used to
gain entry into NEW FIELDS. I actively read and attentively observed the information reflected from the
monitor display unit of the computers that Ms. Serrano and Mr. Moradoz were able to use. x x x. 40

As mentioned earlier, Padilla has been trained to distinguish illegally reproduced Adobe and Microsoft
software. Thus, in his Affidavit, he stated that:

xxxx

6. I suspect that the ADOBE and MICROSOFT computer software programs that are being used in the
premises of NEW FIELDS are unauthorized, illegal or unlicensed copies because of the following
reasons:

6.1. At least two (2) computer units are using a common Product Identification Number of MICROSOFT
and ADOBE software.1âwphi1 This is one indication that the software being used is unlicensed or was
illegally reproduced or copied. All ADOBE and MICROSOFT computer software programs should only be
used in one computer unit, unless they avail of an Open License Agreement from the computer
software developer, which [was not obtained by] NEW FIELDS. x x x.41

The evidence on record clearly shows that the applicant and witnesses were able to verify the
information obtained from their confidential source. The evidence likewise shows that there was
probable cause for the issuance of a search warrant. Thus, the requirement of personal knowledge of
the applicant and witnesses was clearly satisfied in this case.

WHEREFORE, the petition is GRANTED. The Decision dated 28 June 2012 and the Resolution dated 30
January 2013 of the Court of Appeals, uph0lding the 29 June 2010 and 27 August 2010 Orders of the
Regional Trial Court, are hereby REVERSED and SET ASIDE. Search Warrant Nos. 10-15912 and 10-
15913 are declared valid.

SO ORDERED.

SECOND DIVISION

G.R. No. 144037. September 26, 2003

 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. NOEL TUDTUD y PAYPA and DINDO
BOLONG y NARET, accused-appellants.

DECISION

Tinga, J.:

. It is desirable that criminals should be detected, and to that end that all available evidence should
be used. It also is desirable that the government should not itself foster and pay for other crimes,
when they are the means by which the evidence is to be obtained. If it pays its officers for having got
evidence by crime, I do not see why it may not as well pay them for getting it in the same way, and I
can attach no importance to protestations of disapproval if it knowingly accepts and pays and
announces that it will pay for the fruits. We have to choose, and for my part I think it a less evil that
some criminals should escape than that the government should play an ignoble part.

So wrote Justice Oliver Wendell Holmes in Olmstead v. U.S.1 On this occasion, this Court is made to
choose between letting suspected criminals escape or letting the government play an ignoble part.

Sometime during the months of July and August 1999, the Toril Police Station, Davao City received a
report from a civilian asset named Bobong Solier about a certain Noel Tudtud. 2 Solier related that his
neighbors have been complaining about Tudtud, who was allegedly responsible for the proliferation
of marijuana in their area.3cräläwvirtualibräry

Reacting to the report, PO1 Ronald Desierto, PO1 Ramil Floreta and their superior, SPO1
Villalonghan,4 all members of the Intelligence Section of the Toril Police Station, conducted
surveillance in Soliers neighborhood in Sapa, Toril, Davao City.5 For five days, they gathered
information and learned that Tudtud was involved in illegal drugs.6 According to his neighbors,
Tudtud was engaged in selling marijuana.7cräläwvirtualibräry

On August 1, 1999, Solier informed the police that Tudtud had headed to Cotabato and would be
back later that day with new stocks of marijuana.8 Solier described Tudtud as big-bodied and short,
and usually wore a hat.9 At around 4:00 in the afternoon that same day, a team composed of PO1
Desierto, PO1 Floreta and SPO1 Villalonghan posted themselves at the corner of Saipon and
McArthur Highway to await Tudtuds arrival.10 All wore civilian clothes.11cräläwvirtualibräry

About 8:00 later that evening, two men disembarked from a bus and helped each other carry a
carton12 marked King Flakes.13 Standing some five feet away from the men, PO1 Desierto and PO1
Floreta observed that one of the men fit Tudtuds description. 14 The same man also toted a plastic
bag.15cräläwvirtualibräry

PO1 Floreta and PO1 Desierto then approached the suspects and identified themselves as police
officers.16 PO1 Desierto informed them that the police had received information that stocks of illegal
drugs would be arriving that night.17 The man who resembled Tudtuds description denied that he
was carrying any drugs.18 PO1 Desierto asked him if he could see the contents of the box.19 Tudtud
obliged, saying, it was alright.20 Tudtud opened the box himself as his companion looked
on.21cräläwvirtualibräry

The box yielded pieces of dried fish, beneath which were two bundles, one wrapped in a striped
plastic bag22 and another in newspapers.23 PO1 Desierto asked Tudtud to unwrap the
packages.24 They contained what seemed to the police officers as marijuana
leaves.25cräläwvirtualibräry

The police thus arrested Tudtud and his companion, informed them of their rights and brought them
to the police station.26 The two did not resist.27cräläwvirtualibräry

The confiscated items were turned over to the Philippine National Police (PNP) Crime Laboratory for
examination.28 Forensic tests conducted by Police Chief Inspector Noemi Austero, forensic chemist of
the PNP Crime Laboratory, Region XI, on specimens taken from the confiscated items confirmed the
police officers suspicion. The plastic bag contained 3,200 grams of marijuana leaves while the
newspapers contained another 890 grams.29 Police Chief Inspector Austero reduced her findings in
her report, Physical Sciences Report No. D-220-99 dated 2 August 1999. 30cräläwvirtualibräry

Noel Tudtud and his companion, Dindo Bulong, were subsequently charged 31 before the Regional
Trial Court (RTC) of Davao City with illegal possession of prohibited drugs. 32 Upon arraignment, both
accused pleaded not guilty.33 The defense, however, reserved their right to question the validity of
their arrest and the seizure of the evidence against them. 34

Trial ensued thereafter.

The prosecution presented five witnesses, namely, arresting officers PO1 Desierto and PO1 Floreta,
their civilian informant Bobong Solier, forensic chemist Police Chief Inspector Noemi Austero, and
SPO3 Nicolas Algabre, exhibit custodian of the PNP Crime Laboratory. Said witnesses testified to the
foregoing narration of facts.

The accused, denying the charges against them, cried frame-up.

Noel Tudtud recalled that on August 1, 1999 he had gone to Kabacan, North Cotabato to sell pairs of
Levis pants, which was his sideline.35 At about 5:00 in the afternoon, he returned to Davao City by
bus.36 Upon reaching Toril, Tudtud, along with less than ten passengers, got down the
bus.37chanroblesvirtuallawlibrary

Suddenly, a man who identified himself as a police officer approached him, pointing a .38 caliber
revolver.38 The man told him not to run.39 Tudtud raised his arms and asked, Sir, what is this about?
40
 The man answered that he would like to inspect the plastic bag Tudtud was carrying, and
instructed Tudtud to open the bag, which revealed several pairs of Levis pants. 41cräläwvirtualibräry

The man then directed Tudtud to open a carton box some two meters away. 42 According to Tudtud,
the box was already there when he disembarked the bus. 43 Tudtud told the man the box was not his,
but proceeded to open it out of fear after the man again pointed his revolver at him.44 Tudtud
discovered pieces of dried fish, underneath which was something wrapped in
cellophane.45cräläwvirtualibräry

What is that? the man asked.46 Tudtud replied that he did not know.47 Without even unwrapping the
cellophane, the man said it was marijuana and abruptly handcuffed Tudtud. 48cräläwvirtualibräry

Simultaneously, another man was pointing a firearm at Dindo Bolong at the other side of the street,
some eight meters from Tudtud.49cräläwvirtualibräry
Bolong recounted that he was on his way to a relative in Daliao after attending a cousins wedding in
Hagonoy, Davao del Sur when he was accosted.50 After alighting the bus, Bolong crossed the
street.51 Someone then approached him and pointed a gun at him.52 The man ordered him not to
move and handcuffed him.53 Bolong asked why he was being arrested but the man just told him to go
with them.54cräläwvirtualibräry

The suspects were then taken to the police station where, they would later claim, they met each
other for the first time.55cräläwvirtualibräry

Assailing the credibility of informant Bobong Solier, the defense offered the testimonies of Felicia
Julaton,56 Branch 3 Clerk of Court, Claudio Bohevia,57 Branch 7 Clerk of Court, and Mercedita
Abunda,58 Branch 9 Utility Clerk, all of the Davao City Municipal Trial Circuit Court. They testified and
presented court documents showing that one Bobo or Bobong Ramirez was charged in their
respective branches with various crimes, specifically, light threats, less serious physical injuries and
robbery. The defense asserted that the Bobo or Bobong Ramirez accused in these cases is the same
person as the informant Bobong Solier.59cräläwvirtualibräry

Swayed by the prosecutions evidence beyond reasonable doubt, the RTC rendered judgment
convicting both accused as charged and sentencing them to suffer the penalty of reclusion
perpetua and to pay a fine of P500,000.00.60cräläwvirtualibräry

On appeal, Noel Tudtud and Dindo Bolong assign, among other errors, the admission in evidence of
the marijuana leaves, which they claim were seized in violation of their right against unreasonable
searches and seizures.

The right against unreasonable searches and seizures is secured by Section 2, Article III of the
Constitution, which states:

SEC. 2. The right of the people to be secured 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 places to be searched and the persons or
things to be seized.

The rule is that a search and seizure must be carried out through or with a judicial warrant;
otherwise, such search and seizure becomes unreasonable within the meaning of the above-quoted
constitutional provision, and any evidence secured thereby, will be inadmissible in evidence for any
purpose in any proceeding.61 Section 3 (2), Article III of the Constitution explicitly provides:

(2) Any evidence obtained in violation of the preceding section shall be inadmissible for any purpose
in any proceeding.

The proscription in Section 2, Article III, however, covers only unreasonable searches and seizures.
The following instances are not deemed unreasonable even in the absence of a warrant:

1. Warrantless search incidental to a lawful arrest. (Sec. 12, Rule 126 of the Rules of Court and
prevailing jurisprudence);
2. Search of evidence in plain view. The elements are: (a) a prior valid intrusion based on the valid
warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the
evidence was inadvertently discovered by the police who have the right to be where they are; (c) the
evidence must be immediately apparent; (d) plain view justified mere seizure of evidence without
further search;

3. Search of a moving vehicle. Highly regulated by the government, the vehicles inherent mobility
reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly
reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk; and

7. Exigent and emergency circumstances.62cräläwvirtualibräry

The RTC justified the warrantless search of appellants belongings under the first exception, as a
search incident to a lawful arrest. It cited as authorities this Courts rulings in People v.
Claudio,63 People v. Tangliben,64 People v. Montilla,65 and People v. Valdez.66 The Office of the
Solicitor General (OSG), in arguing for the affirmance of the appealed decision, invokes the cases
of People v. Maspil, Jr.,67 People v. Malmstedt,68 and People v. Bagista.69cräläwvirtualibräry

A search incidental to a lawful arrest is sanctioned by the Rules of Court. Prior to its revision in 2000,
Section 12,70 Rule 126 of said Rules read as follows:

SEC. 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous
weapons or anything which may be used as proof of the commission of an offense, without a search
warrant.

Section 5 (a), Rule 113 of the Rules, in turn, allows warrantless arrests:

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;

It is significant to note that the search in question preceded the arrest. Recent jurisprudence holds
that the arrest must precede the search; the process cannot be reversed. 71 Nevertheless, a search
substantially contemporaneous with an arrest can precede the arrest if the police have probable
cause to make the arrest at the outset of the search. 72 The question, therefore, is whether the police
in this case had probable cause to arrest appellants. Probable cause has been defined as:

an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when,
in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is
probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances
sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A
reasonable suspicion therefore must be founded on probable cause, coupled with good faith of the
peace officers making the arrest.73cräläwvirtualibräry

The long-standing rule in this jurisdiction, applied with a great degree of consistency, is that reliable
information alone is not sufficient to justify a warrantless arrest under Section 5 (a), Rule 113. The
rule requires, in addition, that the accused perform some overt act that would indicate that he has
committed, is actually committing, or is attempting to commit an offense.

In the leading case of People v. Burgos,74 this Court held that the officer arresting a person who has
just committed, is committing, or is about to commit an offense must have personal knowledge of
that fact. The offense must also be committed in his presence or within his view.75 In Burgos, the
authorities obtained information that the accused had forcibly recruited one Cesar Masamlok as
member of the New Peoples Army, threatening the latter with a firearm. Upon finding the accused,
the arresting team searched his house and discovered a gun as well as purportedly subversive
documents. This Court, in declaring then Section 6 (a), Rule 113 of the Rules of Court inapplicable,
ruled that:

There is no such personal knowledge in this case. Whatever knowledge was possessed by the
arresting officers, it came in its entirety from the information furnished by Cesar Masamlok. The
location of the firearm was given by the appellants wife.

At the time of the appellants arrest, he was not in actual possession of any firearm or subversive
document. Neither was he committing any act which could be described as subversive. He was, in
fact, plowing his field at the time of the arrest.

The right of a person to be secure against any unreasonable seizure of his body and any deprivation
of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the
requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the
situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the
Rule. We cannot liberally construe the rule on arrests without warrant or extend its application
beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set
back a basic right so often violated and so deserving of full protection. 76

Consequently, the items seized were held inadmissible, having been obtained in violation of the
accuseds constitutional rights against unreasonable searches and seizures.

In People v. Aminnudin,77 this Court likewise held the warrantless arrest and subsequent search of
appellant therein illegal, given the following circumstances:

the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown
that he was about to do so or that he had just done so. What he was doing was descending the
gangplank of the M/V Wilcon 9 and there was no outward indication that he called for his arrest. To
all appearances, he was like any of the other passengers innocently disembarking from the vessel. It
was only when the informer pointed to him as the carrier of the marijuana that he suddenly became
suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The
identification by the informer was the probable cause as determined by the officers (and not a judge)
that authorized them to pounce upon Aminnudin and immediately arrest him. 78cräläwvirtualibräry
Thus, notwithstanding tips from confidential informants and regardless of the fact that the search
yielded contraband, the mere act of looking from side to side while holding ones abdomen, 79 or of
standing on a corner with ones eyes moving very fast, looking at every person who came near, 80 does
not justify a warrantless arrest under said Section 5 (a). Neither does putting something in ones
pocket,81 handing over ones baggage,82 riding a motorcycle,83 nor does holding a bag on board
a trisikad84sanction State intrusion. The same rule applies to crossing the street per
se.85cräläwvirtualibräry

Personal knowledge was also required in the case of People v. Doria.86 Recently, in People v. Binad Sy
Chua,87 this Court declared invalid the arrest of the accused, who was walking towards a hotel
clutching a sealed Zest-O juice box. For the exception in Section 5 (a), Rule 113 to apply, this Court
ruled, two elements must concur: (1) the person to be arrested must execute an overt act indicating
he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt
act is done in the presence or within the view of the arresting officer. Reliable information alone is
insufficient.

In the following cases, the search was held to be incidental to a lawful arrest because of suspicious
circumstances: People v. Tangliben88 (accused was acting suspiciously), People v. Malmstedt89 (a
bulge on the accuseds waist), and People v. de Guzman90 (likewise a bulge on the waist of the
accused, who was wearing tight-fitting clothes).

There is, however, another set of jurisprudence that deems reliable information sufficient to justify a
search incident to a warrantless arrest under Section 5 (a), Rule 113, thus deviating from Burgos. To
this class of cases belong People v. Maspil, Jr.,91 People v. Bagista,92 People v. Balingan,93 People v.
Lising,94 People v. Montilla,95 People v. Valdez,96 and People v. Gonzales.97 In these cases, the
arresting authorities were acting on information regarding an offense but there were no overt acts or
suspicious circumstances that would indicate that the accused has committed, is actually
committing, or is attempting to commit the same. Significantly, these cases, except the last two,
come under some other exception to the rule against warrantless searches. Thus, Maspil, Jr. involved
a checkpoint search, Balingan was a search of a moving vehicle, Bagista was both,
and Lising and Montilla were consented searches.

Nevertheless, the great majority of cases conforms to the rule in Burgos, which, in turn, more
faithfully adheres to the letter of Section 5(a), Rule 113. Note the phrase in his presence therein,
connoting personal knowledge on the part of the arresting officer. The right of the accused to be
secure against any unreasonable searches on and seizure of his own body and any deprivation of his
liberty being a most basic and fundamental one, the statute or rule that allows exception to the
requirement of a warrant of arrest is strictly construed. Its application cannot be extended beyond
the cases specifically provided by law.98cräläwvirtualibräry

The cases invoked by the RTC and the OSG are, therefore, gravely misplaced. In Claudio,99 the
accused, who was seated aboard a bus in front of the arresting officer, put her bag behind the latter,
thus arousing the latters suspicion. In Tangliben and Malmstedt, the accused had also acted
suspiciously.

As noted earlier, Maspil, Jr., Bagista and Montilla were justified by other exceptions to the rule

against warrantless searches. Montilla, moreover, was not without its critics. There, majority of the
Court held:
Appellant insists that the mere fact of seeing a person carrying a traveling bag and a carton box
should not elicit the slightest suspicion of the commission of any crime since that is normal. But
precisely, it is in the ordinary nature of things that drugs being illegally transported are necessarily
hidden in containers and concealed from view. Thus, the officers could reasonably assume, and not
merely on a hollow suspicion since the informant was by their side and had so informed them, that
the drugs were in appellants luggage. It would obviously have been irresponsible, if now downright
absurd under the circumstances, to require the constable to adopt a wait and see attitude at the risk
of eventually losing the quarry.

Here, there were sufficient facts antecedent to the search and seizure that, at the point prior to the
search were already constitutive of probable cause, and which by themselves could properly create
in the minds of the officers a well-grounded and reasonable belief that appellant was in the act of
violating the law. The search yielded affirmance both of that probable cause and the actuality that
appellant was then actually committing a crime by illegally transporting prohibited drugs. With these
attendant facts, it is ineluctable that appellant was caught in flagrante delicto, hence his arrest and
the search of his belongings without the requisite warrant were both justified. 100cräläwvirtualibräry

While concurring with the majority, Mr. Justice Vitug reserved his vote on the discussion on the
warrantless search being incidental to a lawful arrest. Mr. Justice Panganiban, joined by Messrs.
Justices Melo and Puno, filed a Separate Opinion.

Although likewise concurring in the majoritys ruling that appellant consented to the inspection of his
baggage, Justice Panganiban disagreed with the conclusion that the warrantless search was
incidental to a lawful arrest. He argued that jurisprudence required personal knowledge on the part
of the officers making the in flagrante delicto arrest. In Montilla, the appellant did not exhibit any
overt act or strange conduct that would reasonably arouse in their minds suspicion that he was
embarking on some felonious enterprise.

Law and jurisprudence in fact require stricter grounds for valid arrests and searches without warrant
than for the issuance of warrants therefore. In the former, the arresting person must have actually
witnessed the crime being committed or attempted by the person sought to be arrested; or he must
have personal knowledge of facts indicating that the person to be arrested perpetrated the crime
that had just occurred. In the latter case, the judge simply determines personally from testimonies of
witnesses that there exists reasonable grounds to believe that a crime was committed by the
accused.

To say that reliable tips constitute probable cause for a warrantless arrest or search is in my opinion,
a dangerous precedent and places in great jeopardy the doctrines laid down in many decisions made
by this Court, in its effort to zealously guard and protect the sacred constitutional right against
unreasonable arrests, searches and seizures. Everyone would be practically at the mercy of so-called
informants, reminiscent of the makapilis during the Japanese occupation. Any one whom they point
out to a police officer as a possible violator of the law could then be subject to search and possible
arrest. This is placing limitless power upon informants who will no longer be required to affirm under
oath their accusations, for they can always delay their giving of tips in order to justify warrantless
arrests and searches. Even law enforcers can use this as an oppressive tool to conduct searches
without warrants, for they can always claim that they received raw intelligence information only on
the day or afternoon before. This would clearly be a circumvention of the legal requisites for validly
effecting an arrest or conducting a search and seizure. Indeed the majoritys ruling would open
loopholes that would allow unreasonable arrests, searches and seizures. 101cräläwvirtualibräry
Montilla would shortly find mention in Justice Panganibans concurring opinion in People v.
Doria, supra, where this Court ruled:

Accused-Appellant Gaddao was arrested solely on the basis of the alleged identification made by her
co-accused. PO3 Manlangit, however, declared in his direct examination that appellant Doria named
his co-accused in response to his (PO3 Manlangits) query as to where the marked money was.
Appellant Doria did not point to appellant Gaddao as his associate in the drug business, but as the
person with whom he left the marked bills. This identification does not necessarily lead to the
conclusion that appellant Gaddao conspired with her co-accused in pushing drugs. Appellant Doria
may have left the money in her house, with or without any conspiracy. Save for accused-appellant
Dorias word, the Narcom agents had no showing that the person who affected the warantless arrest
had, in his own right, knowledge of facts implicating the person arrested to the perpetration of a
criminal offense, the arrest is legally objectionable. 102 [Italics in the original.]

Expressing his accord with Mr. Justice Punos ponencia, Justice Panganiban said that Doria rightfully
brings the Court back to well-settled doctrines on warrantless arrests and searches, which have
seemingly been modified through an obiter in People v. Ruben Montilla.103cräläwvirtualibräry

Montilla, therefore, has been seemingly discredited insofar as it sanctions searches incidental to
lawful arrest under similar circumstances. At any rate, Montilla was a consented search. As will be
demonstrated later, the same could not be said of this case.

That leaves the prosecution with People v. Valdez, which, however, involved an on-the-spot
information. The urgency of the circumstances, an element not present in this case, prevented the
arresting officer therein from obtaining a warrant.

Appellants in this case were neither performing any overt act or acting in a suspicious manner that
would hint that a crime has been, was being, or was about to be, committed. If the arresting officers
testimonies are to be believed, appellants were merely helping each other carry a carton box.
Although appellant Tudtud did appear afraid and perspiring, 104 pale105 and trembling,106 this was only
after, not before, he was asked to open the said box.

In no sense can the knowledge of the herein arresting officers that appellant Tudtud was in
possession of marijuana be described as personal, having learned the same only from their
informant Solier. Solier, for his part, testified that he obtained his information only from his
neighbors and the friends of appellant Tudtud:

Q What was your basis in your report to the police that Tudtud is going to Cotabato and get stocks of
marijuana?

A Because of the protest of my neighbors who were saying who will be the person whou [sic] would
point to him because he had been giving trouble to the neighborhood because according to them
there are [sic] proliferation of marijuana in our place. That was the complained [sic] of our
neighbors.

Q Insofar as the accused Tudtud is concerned what was your basis in reporting him particularly?

A His friends were the once who told me about it.

Q For how long have you know [sic] this fact of alleged activity of Tudtud in proliferation of
marijuana?

A About a month.

Q Regarding the report that Tudtud went to Cotabato to get stocks of marijuana which led to his
apprehension sometime in the evening of August 1 and according to the report [which] is based on
your report my question is, how did you know that Tudtud will be bringing along with him marijuana
stocks on August 1, 1999?

A Because of the information of his neighbor.107cräläwvirtualibräry

In other words, Soliers information itself is hearsay. He did not even elaborate on how his neighbors
or Tudtuds friends acquired their information that Tudtud was responsible for the proliferation of
drugs in their neighborhood.

Indeed, it appears that PO1 Floreta himself doubted the reliablility of their informant. He testified on
cross-examination:

Q You mean to say that Bobot Solier, is not reliable?

A He is trustworthy.

Q Why [did] you not consider his information not reliable if he is reliable?

A (witness did not answer).

ATTY. CAETE:

Never mind, do not answer anymore. Thats all. 108cräläwvirtualibräry

The prosecution, on re-direct examination, did not attempt to extract any explanation from PO1
Floreta for his telling silence.

Confronted with such a dubious informant, the police perhaps felt it necessary to conduct their own
surveillance. This surveillance, it turns out, did not actually consist of staking out appellant Tudtud to
catch him in the act of plying his illegal trade, but of a mere gather[ing] of information from the
assets there.109 The police officers who conducted such surveillance did not identify who these assets
were or the basis of the latters information. Clearly, such information is also hearsay, not of personal
knowledge.

Neither were the arresting officers impelled by any urgency that would allow them to do away with
the requisite warrant, PO1 Desiertos assertions of lack of time110 notwithstanding. Records show that
the police had ample opportunity to apply for a warrant, having received Soliers information at
around 9:00 in the morning; Tudtud, however, was expected to arrive at around 6:00 in the evening
of the same day.111 In People v. Encinada, supra, the Court ruled that there was sufficient time to
procure a warrant where the police officers received at 4:00 in the afternoon an intelligence report
that the accused, who was supposedly carrying marijuana, would arrive the next morning at 7:00
a.m.:

Even if the information was received by Bolonia about 4:00 p.m. of May 20, 1992 at his house, there
was sufficient time to secure a warrant of arrest, as the M/V Sweet Pearl was not expected to dock
until 7:00 a.m. the following day. Administrative Circular No. 13 allows application for search warrants
even after office hours:

3. Raffling shall be strictly enforced, except only in case where an application for search warrant may
be filed directly with any judge whose jurisdiction the place to be searched is located, after office
hours, or during Saturdays, Sundays, and legal holidays, in which case the applicant is required to
certify under oath the urgency of the issuance thereof after office hours, or during Saturdays, Sundays
and legal holidays; . . ..

The same procedural dispatch finds validation and reiteration in Circular No. 19, series of 1987, entitled
Amended Guidelines and Procedures on Application for search warrants for Illegal Possession of
Firearms and Other Serious Crimes Filed in Metro Manila Courts and Other Courts with Multiple Salas:

This Court has received reports of delay while awaiting raffle, in acting on applications for search
warrants in the campaign against loose firearms and other serious crimes affecting peace and order.
There is a need for prompt action on such applications for search warrant. Accordingly, these amended
guidelines in the issuance of a search warrant are issued:

1. All applications for search warrants relating to violation of the Anti-subversion Act, crimes against
public order as defined in the Revised Penal Code, as amended, illegal possession of firearms and/or
ammunition and violations of the Dangerous Drugs Act of 1972, as amended, shall no longer be raffled
and shall immediately be taken cognizance of and acted upon by the Executive Judge of the Regional
Trial Court, Metropolitan Trial Court, and Municipal Trial Court under whose jurisdiction the place to be
searched is located.

2. In the absence of the Executive Judge, the Vice-Executive Judge shall take cognizance of

and personally act on the same. In the absence of the Executive Judge or Vice-Executive Judge, the
application may be taken cognizance of and acted upon by any judge of the Court where application is
filed.

3. Applications filed after office hours, during Saturdays, Sundays and holidays, shall likewise be taken
cognizance of and acted upon by any judge of the Court having jurisdiction of the place to be searched,
but in such cases the applicant shall certify and state the facts under oath, to the satisfaction of the
judge, that its issuance is urgent.

4. Any judge acting on such application shall immediately and without delay personally conduct the
examination of the applicant and his witnesses to prevent the possible leakage of information. He shall
observe the procedures, safeguards, and guidelines for the issuance of search warrants provided for in
this Courts Administrative Circular No. 13, dated October 1, 1985. 112 [Italics in the original.]
Given that the police had adequate time to obtain the warrant, PO1 Floretas testimony that the real
reason for their omission was their belief that they lacked sufficient basis to obtain the same assumes
greater significance. This was PO1 Floretas familiar refrain:

Q When Solier reported to you that fact, that Tudtud will be coming from Cotabato to get that (sic)
stocks, you did not go to court to get a search warrant on the basis of the report of Bobot Solier?
A No.
Q Why?
A Because we have no real basis to secure the search warrant.
Q When you have no real basis to secure a search warrant, you have also no real basis to search
Tudtud and Bulong at that time?
A Yes, sir.
.
Q And Bobot Solier told you that Tudtud, that he would already bring marijuana?
A Yes, sir.
Q And this was 9:00 a.m.?
A Yes, sir.
Q The arrival of Tudtud was expected at 6:00 p.m.?
A Yes, sir.
Q Toril is just 16 kilometers from Davao City?
A Yes, sir.
Q And the Office of the Regional Trial Court is only about 16 kilometers, is that correct?
A Yes, sir.
Q And it can be negotiated by thirty minutes by a jeep ride?
A Yes, sir.
Q And you can asked [sic] the assistance of any prosecutor to apply for the search warrant or the
prosecutor do [sic] not assist?
A They help.
Q But you did not come to Davao City, to asked [sic] for a search warrant?
A As I said, we do not have sufficient basis.113cräläwvirtualibräry

It may be conceded that the mere subjective conclusions of a police officer concerning the existence of
probable cause is not binding on [the courts] which must independently scrutinize the objective facts
to determine the existence of probable cause and that a court may also find probable cause in spite of
an officers judgment that none exists.114 However, the fact that the arresting officers felt that they did
not have sufficient basis to obtain a warrant, despite their own information-gathering efforts, raises
serious questions whether such surveillance actually yielded any pertinent information and even
whether they actually conducted any information-gathering at all, thereby eroding any claim to
personal knowledge.

Finally, there is an effective waiver of rights against unreasonable searches and seizures if the following
requisites are present:

1. It must appear that the rights exist;

2. The person involved had knowledge, actual or constructive, of the existence of such right;

3. Said person had an actual intention to relinquish the right. 115cräläwvirtualibräry

Here, the prosecution failed to establish the second and third requisites. Records disclose that when
the police officers introduced themselves as such and requested appellant that they see the contents
of the carton box supposedly containing the marijuana, appellant Tudtud said it was alright. He did not
resist and opened the box himself.

The fundamental law and jurisprudence require more than the presence of these circumstances to
constitute a valid waiver of the constitutional right against unreasonable searches and seizures. Courts
indulge every reasonable presumption against waiver of fundamental constitutional rights;
acquiescence in the loss of fundamental rights is not to be presumed.116 The fact that a person failed to
object to a search does not amount to permission thereto.

. As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do
not place the citizen in the position of either contesting an officers authority by force, or waiving his
constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a
consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the
law.117 [Underscoring supplied.]

Thus, even in cases where the accused voluntarily handed her bag 118 or the chairs119 containing
marijuana to the arresting officer, this Court held there was no valid consent to the search.

On the other hand, because a warrantless search is in derogation of a constitutional right, peace
officers who conduct it cannot invoke regularity in the performance of official functions and shift to the
accused the burden of proving that the search was unconsented.120cräläwvirtualibräry

In any case, any presumption in favor of regularity would be severely diminished by the allegation of
appellants in this case that the arresting officers pointed a gun at them before asking them to open the
subject box. Appellant Tudtud testified as follows:

Q This person who approached you according to you pointed something at you[.] [What] was that
something?
A A 38 cal. Revolver.
Q How did he point it at you?
A Like this (Witness demonstrating as if pointing with his two arms holding something towards
somebody).
Q This man[,] what did he tell you when he pointed a gun at you?
A He said do not run.
Q What did you do?
A I raised my hands and said Sir, what is this about?
Q Why did you call him Sir?
A I was afraid because when somebody is holding a gun, I am afraid.
Q Precisely, why did you address him as Sir?
A Because he was holding a gun and I believed that somebody who is carrying a gun is a policeman.
Q When you asked him what is this? What did he say?
A He said I would like to inspect what you are carrying.[]
Q What did you say when you were asked to open that carton box?
A I told him that is not mine.
Q What did this man say?
A He again pointed to me his revolver and again said to open.
Q What did you do?
A So I proceeded to open for fear of being shot.121cräläwvirtualibräry

Appellants implied acquiescence, if at all, could not have been more than mere passive conformity
given under coercive or intimidating circumstances and is, thus, considered no consent at all within the
purview of the constitutional guarantee.122 Consequently, appellants lack of objection to the search and
seizure is not tantamount to a waiver of his constitutional right or a voluntary submission to the
warrantless search and seizure.123cräläwvirtualibräry

As the search of appellants box does not come under the recognized exceptions to a valid warrantless
search, the marijuana leaves obtained thereby are inadmissible in evidence. And as there is no
evidence other than the hearsay testimony of the arresting officers and their informant, the conviction
of appellants cannot be sustained.

The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their
rights as human beings, democracy cannot survive and government becomes meaningless. This
explains why the Bill of Rights, contained as it is in Article III of the Constitution, occupies a position of
primacy in the fundamental law way above the articles on governmental power. 124cräläwvirtualibräry

The right against unreasonable search and seizure in turn is at the top of the hierarchy of rights, 125 next
only to, if not on the same plane as, the right to life, liberty and property, which is protected by the due
process clause.126 This is as it should be for, as stressed by a couple of noted freedom advocates, 127 the
right to personal security which, along with the right to privacy, is the foundation of the right against
unreasonable search and seizure includes the right to exist, and the right to enjoyment of life while
existing. Emphasizing such right, this Court declared in People v. Aruta:

Unreasonable searches and seizures are the menace against which the constitutional guarantees afford
full protection. While the power to search and seize may at times be necessary to the public welfare,
still it may be exercised and the law enforced without transgressing the constitutional rights of the
citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic
principles of government.

Those who are supposed to enforce the law are not justified in disregarding the rights of the individual
in the name of order. Order is too high a price to pay for the loss of liberty. As Justice Holmes declared:
I think it is less evil that some criminals escape than that the government should play an ignoble part. It
is simply not allowed in free society to violate a law to enforce another, especially if the law violated is
the Constitution itself.128

Thus, given a choice between letting suspected criminals escape or letting the government play an
ignoble part, the answer, to this Court, is clear and ineluctable.

WHEREFORE, the Decision of the Regional Trial Court of Davao City is REVERSED. Appellants Noel
Tudtud y Paypa and Dindo Bolong y Naret are hereby ACQUITTED for insufficiency of evidence. The
Director of the Bureau of Prisons is ordered to cause the immediate release of appellants from
confinement, unless they are being held for some other lawful cause, and to report to this Court
compliance herewith within five (5) days from receipt hereof.

SO ORDERED.
 THIRD DIVISION

G.R. No. 126379. June 26, 1998

PEOPLE OF THE PHILIPPINES, represented by Provincial Prosecutor FAUSTINO T.

CHIONG, Petitioner, v. COURT OF APPEALS, JUDGE CAESAR CASANOVA, Presiding Judge, Regional
Trial Court, Branch 80, Malolos, Bulacan, AZFAR HUSSAIN, MOHAMMAD SAGED, MUJAHID KHAN,
MOHAMMAD ASLAM, and MEHMOOD ALI, Respondents.

DECISION

NARVASA, C.J.:

In behalf of the People, the Solicitor General has perfected the appeal at bar under Rule 45 of the Rules
of Court from the Decision promulgated on September 11, 1996 of the Fourteenth Division of the Court
of Appeals.1 Said judgment dismissed the Peoples petition for certiorari to invalidate (i) the order of
Judge Caesar A Casanova of Branch 80 of the Regional Trial Court dated February 9 1996, 2 as well as (ii)
that dated May 28, 1996 denying the Peoples motion for reconsideration. 3 Those orders were handed
down in Criminal Case No. 43-M-96, a case of illegal possession of explosives after the accused had
been arraigned and entered a plea of not guilty to the charge. More particularly, the Order of February
9, 1996:

1) quashed a search warrant (No. 1068 [95]) issued by Judge Marciano I. Bacalla of Branch 216 of the
Regional Trial Court at Quezon City on December 15, 1995, 4

2) declared inadmissible for any purpose the items seized under the warrant, and

3) directed the turnover of the amount of U.S. $5,750.00 to the Court within five (5) days to be
released thereafter in favor of the lawful owner considering that said amount was not mentioned in
the Search Warrant."

The antecedents, culled from the records by the Appellate Court, are hereunder set out.

1. On December 14, 1995, S/Insp PNP James Brillantes applied for search warrant before Branch
261, RTC of Quezon City against Mr. Azfar Hussain, who had allegedly in his possession firearms
and explosives at Abigail Variety Store, Apt. 1207 Area F, Bagong Buhay Ave. Sapang Palay, San
Jose del Monte Bulacan.
2. The following day, December 15, 1995, Search Warrant No. 1068 (95) against Mr. Hussain
was issued not at Abigail Variety Store but at Apt. No. 1, immediately adjacent 9to0 Abigail
Variety Store resulting in the arrest of four (4) Pakistani nationals and in the seizure of their
personal belongings, papers and effects such as wallet, wrist watches, pair of shoes, jackets, t-
shirts, belts, sunglasses and travelling bags including cash amounting to $3,550.00
and P1,500.00 aside from US $5,175.00 (receipted) which were never mentioned in the
warrant. The sum of $5,175.00 was however returned to the respondents upon order of the
 court on respondents motion or request. Included allegedly are one piece of dynamite stick;
two pieces of plastic explosives C-4 type and one (1) fragmentation grenade. But without the
items described in the search warrant are: (a) three (3) Ingram machine pistols; (b) four (4)
gmm pistol; (c) blasting caps; (d) fuse; (e) assorted chemical ingredients for explosives; and (f)
assorted magazine assg and ammunitions.
3. On December 19, 1995, three days after the warrant was served, a return was made without
mentioning the personal belongings, papers and effects including cash belonging to the private
respondents. There was no showing that lawful occupants were made to witness the search.
4. On January 22,1996, private respondents upon arraignment, pleaded not guilty to the offense
charged; ** and on the same date, submitted their Extremely Urgent Motion (To Quash Search
Warrant and to Declare Evidence Obtained Inadmissible), dated January 15, 1996;
5. ** According to the private respondents in their pleading (consolidated comment on petition
for certiorari **): On January 29, 1996, an ocular inspection of the premises searched was
conducted by respondent Judge and the following facts had been established as contained in
the order dated January 30, 1996** to wit:
1) That the residence of all the accused is at Apartment No. 1 which is adjacent to the
Abigails Variety Store;
2) That there is no such number as 1207 found in the building as it is correspondingly
called only Apartment No. 1, 2, 3, and 4;
3) That Apartment No. 1 is separate from the Abigails Variety Store;
4) That there are no connecting doors that can pass from Abigails Variety Store to
Apartment No. 1;
5) That Abigails Variety Store and Apartment No. 1 have its own respective doors used
for ingress and egress.
That there being no objection on the said observation of the Court, let the same be
reduced on the records.
SO ORDERED.

6. On February 9, 1996, respondent Judge ** issued its order duly granting the motion to quash search
warrant **;5

7. On February 12, 1996, private respondents filed the concomitant motion to dismiss **;

8. On February 19, 1996, Asst. Provincial Prosecutor Rolando Bulan filed a motion for reconsideration
and supplemental motion on the order quashing the search warrant**;

9. On February 27, 1996 and March 12, 1996, private respondent filed opposition/comment and
supplemental opposition/comment on the motion for reconsideration **:

10. On May 28, 1996, respondent Judge ** issued its order denying the motion for reconsideration **;
(and on) June 11, 1996, private respondents filed extremely urgent reiterated motion to dismiss**.

Chiefly to nullify Judge Casanovas quashal Order of February 9, 1996 above referred to, the Solicitor
General forthwith commenced a special civil action of certiorari in the Court of Appeals. The action did
not prosper, however. As earlier mentioned, the Fourteenth Division of the Appellate Tribunal
promulgated judgment on September 11, 1996, dismissing the case for lack of merit.

The judgment was grounded on the following propositions, to wit:6

1. The place actually searched was different and distinct from the place described in the search
warrant. This fact was ascertained by the Trial Judge through an ocular inspection, the findings
wherein, not objected to by the People, were embodied in an order dated January 30, 1996. The place
searched, in which the accused (herein petitioners) were then residing, was Apartment No. 1. It is a
place other than and separate from, and in no way connected with, albeit and adjacent to, Abigails
Variety Store, the place stated in the search warrant.

2. The public prosecutors claim -- that the sketch submitted to Judge Bacalla relative to the application
for a search warrant, actually depicted the particular place to be searched -- was effectively confuted
by Judge Casanova who pointed out that said SKETCH was not dated, not signed by the person who
made it and not even mentioned in the Search Warrant by the Honorable Judge (Bacalla, who) instead
** directed them to search Abigail Variety Store Apartment 1207 ** in the Order ** dated December
15, 1995 -- this, too, being the address given in the Application for Search Warrant dated December 14,
1995 requested by P/SR INSP. Roger James Brillantes, the Team Leader. The untenability of the claim is
made more patent by the Peoples admission, during the hearing of its petition for certiorari in the
Court of Appeals, that said sketch was in truth not attached to the application for search
warrant ** (but) merely attached to the motion for reconsideration.7

Quoted with approval by the Appellate Court were the following observations of Judge Casanova
contained in his Order of May 28, 1996, viz.:8

(d)** ** it is very clear that the place searched is different from the place mentioned
in the Search Warrant, that is the reason why even P/SR. INSP Roger James Brillantes,
SPO1 Prisco Bella and SPO4 Cesar D. Santiago, who were all EDUCATED, CULTURED
and ADEPT to their tasks of being RAIDERS and who were all STATIONED IN BULACAN
were not even able to OPEN THEIR MOUTH to say in TAGALOG with Honorable Judge
who issued the Search Warrant the words KATABI, or KADIKIT or KASUNOD NG
ABIGAIL VARIETY STORE ang papasukin namin or if they happen to be an ENGLISH
speaking POLICEMEN, they were not able to open their mouth even to WHISPER the
ENGLISH WORDS RESIDE or ADJACENT or BEHIND or NEXT to ABIGAIL VARIETY STORE,
the place they are going to raid.**.

3. The search was not accomplished in the presence of the lawful occupants of the place (herein
private respondents) or any member of the family, said occupants being handcuffed and immobilized
in the living room at the time. The search was thus done in violation of the law. 9

4. The articles seized were not brought to the court within 48 hours as required by the warrant itself;
(i)n fact the return was done after 3 days or 77 hours from service, in violation of Section 11, Rule 126
of the Rules of Court.10

5. Judge Casanova correctly took cognizance of the motion to quash search warrant, pursuant to the
doctrinal tenets laid down in Nolasco vs. Pao (139 SCRA 152) which overhauled the previous ruling of
the Supreme Court in Templo vs. dela Cruz (60 SCRA 295). It is now the prevailing rule that whenever a
search warrant has been issued by one court or branch thereof and a criminal case is initiated in
another court or branch thereof as a result of the search of the warrant, that search warrant is deemed
consolidated with the criminal case for orderly procedure. The criminal case is more substantial than
the search warrant proceedings, and the presiding Judge in the criminal case has the right to rule on the
search warrant and to exclude evidence unlawfully obtained (Nolasco & Sans cases).

6. Grave abuseof discretion cannot be imputed to the respondent Judge, in light of Article III, Section 2
of the Constitution and Rule 126 of the Rules of Court.

7. The proper remedy against the challenged Order is an appeal, not the special civil aciton
of certiorari.

The Solicitor General now seeks reversal of the foregoing verdict ascribing to the Court of Appeals the
following errors, to wit:

1) sanctioning the lower Courts precipitate act of disregarding the proceedings before the issuing Court
and overturning the latters determination of probable cause and particularity of the place to be
searched;

2) sanctioning the lower Courts conclusion that the sketch was not attached to the application for
warrant despite the clear evidence ** to the contrary;

3) ignoring the very issues raised in the petition before it:

4) holding that the validity of an otherwise valid warrant could be diminished by the tardiness by which
the return is made;

5) hastly applying the general rule that certiorari cannot be made a substitute for appeal although the
circumstances attending the case at bar clearly fall within the exceptions to that rule; and

6) depriving petitioner of the opportunity to present evidence to prove the validity of the warrant
when the petition before it was abruptly resolved without informing petitioner thereof.

The whole case actually hinges on the question of whether or not a search warrant was validly issued
as regards the apartment in which private respondents were then actually residing, or more explicitly,
whether or not that particular apartment had been specifically described in the warrant.

The Government insists that the police officers who applied to the Quezon City RTC for the search
warrant had direct, personal knowledge of the place to be searched and the things to be seized. It
claims tha tone of said officers, infact, had been able to surreptitiously enter the place to be searched
prior to the search: this being the first of four (4) separate apartments behind the Abigail Variety Store;
and they were also the same police officers who eventually effected the search and seizure. They thus
had personal knowledge of the place to be searched and had the competence to make a sketch
thereof; they knew exactly what objects should be taken therefrom; and they had presented evidence
sufficient to establish probable cause. That may be so; but unfortunately, the place they had in mind
-- the first of four (4) separate apartment units (No. 1) at the rear of Abigail Variety Store -- was not
what the Judge who issued the warrant himself had in mind, and was not what was ultimately
described in the search warrant.
The discrepancy appears to have resulted from the officers own faulty depiction of the premises to be
searched. For in their application and in the affidavit thereto appended, they wrote down a description
of the place to be searched, which is exactly what the Judge reproduced in the search
warrant: premises located at Abigail Variety Store Apt 1207, Area-F, Bagong Buhay Avenue, Sapang
Palay, San Jose Del Monte, Bulacan. And the scope of the search was made more particular -- and more
restrictive -- by the Judges admonition in the warrant that the search be limited only to the premises
herein described.

Now, at the time of the application for a search warrant, there were at least five (5) distinct places in
the area involved: the store known as Abigails Variety Store, and four (4) separate and independent
residential apartment units. These are housed in a single structure and are contiguous to each other
although there are no connecting doors through which a person could pass from the interior of one to
any of the others. Each of the five (5) places is independent of the others, and may be entered only
through its individual front door. Admittedly, the police officers did not intend a search of all five (5)
places, but only one of the residential units at the rear of Abigails Variety Store: that immediately next
to the store (Number 1).

However, despite having personal and direct knowledge of the physical configuration of the store and
the apartments behind the store, the police officers failed to make Judge Bacalla understand the need
to pinpoint Apartment No. 1 in the warrant. Even after having received the warrant -- which directs
that the search be limited only to the premises herein described, Abigail Variety Store Apt 1207 -- thus
literally excluding the apartment units at the rear of the store -- they did not ask the Judge to correct
said description. They seem to have simply assumed that their own definite idea of the place to be
searched -- clearly indicated, according to them, in the sketch they claim to have submitted to Judge
Bacalla in support of their application -- was sufficient particularization of the general identification of
the place in the search warrant.

The Solicitor General argues that this assumption is sanctioned by Burgos, Sr. v. Chief of Staff,
AFP,11 allegedly to the effect that the executing officers prior knowledge as to the place intended in the
warrant is relevant, and he may, in case of any ambiguity in the warrant as to the place to be searched,
look to the affidavit in the official court file.

Burgos is inapplicable. That case concerned two (2) search warrants which, upon perusal, immediately
disclosed an obvious typographical error. The application in said case was for seizure of subversive
material allegedly concealed in two places: one at No. 19. Road 3, Project 6, Quezon City; and the
other, at "784 Units C & D. RMS Building, Quezon Avenue, Quezon City;" Two (2) warrants issued -- No.
20-82 [a] and No. 20-82 [b]). Objection was made to the execution of Warrant No. 20-82 (b) at 784
Units C & D, RMS Building, Quezon Avenue, Quezon City because both search warrants apparently
indicated the same address (No. 19, Road 3, Project 6, Quezon City) as the place where the supposedly
subversive material was hidden. This was error, of course but, as this Court there ruled, the error was
obviously typographical, for it was absurd to suppose that the Judge had issued two warrants for the
search of only one place. Adverting to the fact that the application for the search warrants specified
two (2) distinct addresses, and that in fact the address, 784 Units C&D, RMS Building, Quezon Avenue,
Quezon City appeared in the opening paragraph of Warrant 20-82 (b), this Court concluded that
evidently, this was the address the judge intended to be searched when he issued the second warrant
(No. 20-82 [b]); and to clear up the ambiguity caused by the obviously typographical error, the officer
executing the warrant could consult the records in the official court file.12cräläwvirtualibräry
The case at bar, however, does not deal with the correction of an obvious typographical erro involving
ambiguous descriptions of the place to be searched, as in Burgos, but the search of a place different
from that clearly and without ambiguity identified in the search warrant. In Burgos, the inconsistency
calling for clarification was immediately perceptible on the face of the warrants in question. In the
instant case, there is no ambiguity at all in the warrant. The ambiguity lies outside the instrument,
arising from the absence of a meeting of minds as to the place to be searched between the applicants
for the warrant and the Judge issuing the same; and what was done was to substitute for the place that
the judge had written down in the warrant, the premises that the executing officers had in their mind.
This should not have been done. It is neither fair nor licit to allow police officers to search a place
different from that stated in the warrant on the claim that the place actually searched -- although not
that specified in the warrant -- is exactly what they had in view when they applied for the warrant and
had demarcated in their supporting evidence. What is material in determining the validity of a search is
the place stated in the warrant itself, not what the applicants had in their thoughts, or had represented
in the proofs they submitted to the court issuing the warrant. Indeed, following the officers theory, in
the context of the facts of this case, all four (4) apartment units at the rear of Abigails Variety Store
would have been fair game for a search.

The place to be searched, as set out in the warrant, cannot be amplified or modified by the officers
own personal knowledge of the premises, or the evidence they adduced in support of their application
for the warrant. Such a change is proscribed by the Constitution which requires inter alia the search
warrant to particularly describe the place to be searched as well as the persons or things to be seized.
It would concede to police officers the power of choosing the place to be searched, even if not be that
delineated in the warrant. It would open wide the door to abuse of search process, and grant to
officers executing a search warrant that discretion which the Constitution has precisely removed from
them. The particularization of the description of the place to be searched may properly be done only
by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officers
conducting the search.

The Government faults Judge Casanova for having undertaken a review of Judge Bacallas finding of
probable cause, as if he were an appellate court. A perusal of the record however shows that all that
Judge Casanova did was merely to point out inconsistencies between Judge Bacalla' Order of
December 15, 1995 and the warrant itself, as regards the identities of the police officers examined by
Judge Bacalla.13 In Judge Casanovas view, said inconsistencies, being quite apparent in the record, put
in doubt the sufficiency of the determination of the facts on which the search warrant was founded.

The Government alleges that the officers had satisfactorily established probable cause before Judge
Bacalla for the issuance of a search warrant. While this may be conceded, the trouble is, to repeat, that
the place described in the search warrant -- which, of course, is the only place that may be legitimately
searched in virtue thereof -- was not that which the police officers who applied for the warrant had in
mind, with the result that what they actually subjected to search-and-seizure operations was a place
other than that stated in the warrant. In fine, while there was a search warrant more or less properly
issued as regards Abigails Variety Store, there was none for Apartment No. 1 -- the first of the four (4)
apartment units at the rear of said store, and precisely the place in which the private respondents were
then residing.

It bears stressing that under Section 2, Article III of the Constitution, providing that: 14

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 serched, and the things to be seized.,

it does not suffice, for a search warrant to be deemed valid, that it be based on probable cause,
personally determined by the judge after examination under oath, or affirmation of the complainant
and the witnesses he may produce; it is essential, too, that it particularly describe the place to be
searched,15 the manifest intention being that the search be confined strictly to the place so described.

There was therefore in this case an infringement of the constitutional requirement that a search
warrant particularly describe the place to be searched; and that infringement necessarily brought into
operation the concomitant provision that (a)ny evidence obtained in violation ** (inter alia of the
search-and-seizure provision) shall be inadmissible for any purpose in any
proceeding.16cräläwvirtualibräry

In light of what has just been discussed, it is needless to discuss such other points sought to be made
by the Office of the Solicitor General as whether or not (1) the sketch of the building housing the store
and the residential apartment units -- the place to be searched being plainly marked -- was in fact
attached to the application for the search warrant; or (2) the search had been conducted in the
presence of the occupants of the place (herein petitioners), among others; or (3) the validity of the
search warrant was diminished by the tardiness by which the return was made, or (4) the Court of
Appeals had improperly refused to receive evidence which ** (the People) had earlier been denied
opportunity to present before the trial court; or (5) the remedy of the special civil action of certiorari in
the Court of Appeals had been erroneously availed of. The resolution of these issues would not affect
the correctness of the conclusion that the search and seizure proceedings are void because the place
set forth in the search warrant is different from that which the officers actually searched, or the
speciousness of their argument that anyway, the premises searched were precisely what they had
described to the Judge, and originally and at all times had in mind.

Only one other matter merits treatment. The Solicitor Generals Office opines that where a search
warrant has been issued by the court other than the one trying the main criminal case, the proper
recourse of persons wishing to quash the warrant is to assail it before the issuing court and not before
that in which the criminal case involving the subject of the warrant is afterwards filed. 17 In support, it
cites the second of five (5) policy guidelines laid down by this Court in Malaloan v. Court of
Appeals18 concerning possible conflicts of jurisdiction (or, more accurately, in the exercise of
jurisdiction) where the criminal case is pending in one court and the search warrant is issued by
another court for the seizure of personal property intended to be used as evidence in said criminal
case. Said second guideline reads:19

2. When the latter court (referring to the court which does not try the main criminal case) issues the
search warrant, a motion to quash the same may be filed in and shall be resolved by said court,
without prejudice to any proper recourse to the appropriate higher court by the party aggrieved by the
resolution of the issuing court. All grounds and objections then available, existent or known shall be
raised in the original or subsequent proceedings for the quashal of the warrant, other they shall be
deemed waived.

The guidelines have been misconstrued. Where a search warrant is issued by one court and the
criminal action based on the results of the search is afterwards commenced in another court, it is not
the rule that a motion to quash the warrant (or to retrieve things thereunder seized) may be filed only
with the issuing Court. Such a motion may be filed for the first time for the first time in either the
issuing Court or that in which the criminal action is pending. However, the remedy is alternative, not
cumulative. The Court first taking cognizance of the motion does so to the exclusion of the other, and
the proceedings thereon are subject to the Omnibus Motion Rule and the rule against forum-shopping.
This is clearly stated in the third policy guidelines which indeed is what properly applies to the case at
bar, to wit:

3. Where no motion to quash the search warrant was filed in or resolved by the issuing court, the
interested party may move in the court where the criminal case is pending for the suppression as
evidence of the personal property seized under the warrant if the same is offered therein for said
purpose. Since two separate courts with different participations are involved in this situation, a motion
to quash a search warrant and a motion to supress evidence are alternative and not cummulative
remedies. In order to prevent forum shopping, a motion to quash shall consequently be governed by
the omnibus motion rule, provided however, that objections not available, existent or known during
the proceedings for the quashal of the warrant may be raised in the hearing of the motion to suppress.
The resolution of the court on the motion to suppress shall likewise be subject to any proper remedy in
the appopriate higher court.

In this case, the search warrant was applied for in, and issued by, Branch 216 of the Regional Trial
Court at Quezon City, and the return was made to said court. On the other hand, the criminal action in
connection with the explosives subject of the warrant was filed in Branch 80 of the Regional Trial Court
of Bulacan. In this situation, a motion to quash the search warrant, or for the return of the personal
property seized (not otherwise contraband) could have properly been presented in the QC RTC. No
such motion was ever filed. It was only after the criminal action had been commenced in the Bulacan
RTC that the motion to quash and to suppress evidence was submitted to the latter. The case thus falls
within guideline No. 3 above quoted in accordance with which the latter court must be deemed to
have acted within its competence.

WHEREFORE, the judgment of the Fourteenth Division of the Court of Appeals of September 11, 1996
-- which dismissed the Peoples petition for certiorari seeking nullification of the Orders of Branch 80 of
the Regional Trial Court dated February 9, 1996 and May 28, 1996 in the Criminal Case No. 43-M-96 --
is, for the reasons set out in the foregoing opinion, hereby AFFIRMED without pronouncement as to
costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 202666               September 29, 2014

RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID SUZARA, Petitioners,

vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN DOES, Respondents.

DECISION
VELASCO, JR., J.:

The individual's desire for privacy is never absolute, since participation in society is an equally powerful
desire. Thus each individual is continually engaged in a personal adjustment process in which he
balances the desire for privacy with the desire for disclosure and communication of himself to others,
in light of the environmental conditions and social norms set by the society in which he lives.

- Alan Westin, Privacy and Freedom (1967)

The Case

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, in relation to
Section 19 of A.M. No. 08-1-16-SC,1 otherwise known as the "Rule on the Writ of Habeas Data."
Petitioners herein assail the July 27, 2012 Decision 2 of the Regional Trial Court, Branch 14 in Cebu City
(RTC) in SP. Proc. No. 19251-CEB, which dismissed their habeas data petition.

The Facts

Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were, during the period
material, graduating high school students at St. Theresa's College (STC), Cebu City. Sometime in
January 2012, while changing into their swimsuits for a beach party they were about to attend, Julia
and Julienne, along with several others, took digital pictures of themselves clad only in their
undergarments. These pictures were then uploaded by Angela Lindsay Tan (Angela) on her
Facebook3 profile.

Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at STC’s high school
department, learned from her students that some seniors at STC posted pictures online, depicting
themselves from the waist up, dressed only in brassieres. Escudero then asked her students if they
knew who the girls in the photos are. In turn, they readily identified Julia, Julienne, and Chloe Lourdes
Taboada (Chloe), among others.

Using STC’s computers, Escudero’s students logged in to their respective personal Facebook accounts
and showed her photos of the identified students, which include: (a) Julia and Julienne drinking hard
liquor and smoking cigarettes inside a bar; and (b) Julia and Julienne along the streets of Cebu wearing
articles of clothing that show virtually the entirety of their black brassieres. What is more, Escudero’s
students claimed that there were times when access to or the availability of the identified students’
photos was not confined to the girls’ Facebook friends,4 but were, in fact, viewable by any Facebook
user.5

Upon discovery, Escudero reported the matter and, through one of her student’s Facebook page,
showed the photosto Kristine Rose Tigol (Tigol), STC’s Discipline-in-Charge, for appropriate action.
Thereafter, following an investigation, STC found the identified students to have deported themselves
in a manner proscribed by the school’s Student Handbook, to wit:

1. Possession of alcoholic drinks outside the school campus;

2. Engaging in immoral, indecent, obscene or lewd acts;

3. Smoking and drinking alcoholicbeverages in public places;

 4. Apparel that exposes the underwear;

5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains sexually suggestive
messages, language or symbols; and 6. Posing and uploading pictures on the Internet that entail
ample body exposure.

On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in question, reported,
as required, to the office of Sr. Celeste Ma. Purisima Pe (Sr. Purisima), STC’s high school principal and
ICM6 Directress. They claimed that during the meeting, they were castigated and verbally abused by
the STC officials present in the conference, including Assistant Principal Mussolini S. Yap (Yap),
Roswinda Jumiller, and Tigol. What is more, Sr. Purisima informed their parents the following day that,
as part of their penalty, they are barred from joining the commencement exercises scheduled on
March 30, 2012.

A week before graduation, or on March 23, 2012, Angela’s mother, Dr. Armenia M. Tan (Tan), filed a
Petition for Injunction and Damages before the RTC of Cebu City against STC, et al., docketed as Civil
Case No. CEB-38594.7 In it, Tan prayed that defendants therein be enjoined from implementing the
sanction that precluded Angela from joining the commencement exercises.

On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the mother of Julia, joined the fray as an
intervenor. On March 28, 2012, defendants inCivil Case No. CEB-38594 filed their memorandum,
containing printed copies of the photographs in issue as annexes. That same day, the RTC issued a
temporary restraining order (TRO) allowing the students to attend the graduation ceremony, to which
STC filed a motion for reconsideration.

Despite the issuance of the TRO,STC, nevertheless, barred the sanctioned students from participating
in the graduation rites, arguing that, on the date of the commencement exercises, its adverted motion
for reconsideration on the issuance ofthe TRO remained unresolved.

Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of Habeas Data,
docketed as SP. Proc. No. 19251-CEB8 on the basis of the following considerations:

1. The photos of their children in their undergarments (e.g., bra) were taken for posterity
before they changed into their swimsuits on the occasion of a birthday beach party;

2. The privacy setting of their children’s Facebook accounts was set at "Friends Only." They,
thus, have a reasonable expectation of privacy which must be respected.

3. Respondents, being involved in the field of education, knew or ought to have known of laws
that safeguard the right to privacy. Corollarily, respondents knew or ought to have known that
the girls, whose privacy has been invaded, are the victims in this case, and not the offenders.
Worse, after viewing the photos, the minors were called "immoral" and were punished
outright;

4. The photos accessed belong to the girls and, thus, cannot be used and reproduced without
their consent. Escudero, however, violated their rights by saving digital copies of the photos
 and by subsequently showing them to STC’s officials. Thus, the Facebook accounts of
petitioners’ children were intruded upon;

5. The intrusion into the Facebook accounts, as well as the copying of information, data, and
digital images happened at STC’s Computer Laboratory; and

6. All the data and digital images that were extracted were boldly broadcasted by respondents
through their memorandum submitted to the RTC in connection with Civil Case No. CEB-38594.
To petitioners, the interplay of the foregoing constitutes an invasion of their children’s privacy
and, thus, prayed that: (a) a writ of habeas databe issued; (b) respondents be ordered to
surrender and deposit with the court all soft and printed copies of the subjectdata before or at
the preliminary hearing; and (c) after trial, judgment be rendered declaring all information,
data, and digital images accessed, saved or stored, reproduced, spread and used, to have been
illegally obtained inviolation of the children’s right to privacy.

Finding the petition sufficient in form and substance, the RTC, through an Order dated July 5, 2012,
issued the writ of habeas data. Through the same Order, herein respondents were directed to file their
verified written return, together with the supporting affidavits, within five (5) working days from
service of the writ.

In time, respondents complied with the RTC’s directive and filed their verified written return, laying
down the following grounds for the denial of the petition, viz: (a) petitioners are not the proper parties
to file the petition; (b) petitioners are engaging in forum shopping; (c) the instant case is not one where
a writ of habeas data may issue;and (d) there can be no violation of their right to privacy as there is no
reasonable expectation of privacy on Facebook.

Ruling of the Regional Trial Court

On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas data. The dispositive
portion of the Decision pertinently states:

WHEREFORE, in view of the foregoing premises, the Petition is hereby DISMISSED.

The parties and media must observe the aforestated confidentiality.

xxxx

SO ORDERED.9

To the trial court, petitioners failed to prove the existence of an actual or threatened violation of the
minors’ right to privacy, one of the preconditions for the issuance of the writ of habeas data.
Moreover, the court a quoheld that the photos, having been uploaded on Facebook without
restrictions as to who may view them, lost their privacy in some way. Besides, the RTC noted, STC
gathered the photographs through legal means and for a legal purpose, that is, the implementation of
the school’s policies and rules on discipline.
Not satisfied with the outcome, petitioners now come before this Court pursuant to Section 19 of the
Rule on Habeas Data.10

The Issues

The main issue to be threshed out inthis case is whether or not a writ of habeas datashould be issued
given the factual milieu. Crucial in resolving the controversy, however, is the pivotal point of whether
or not there was indeed an actual or threatened violation of the right to privacy in the life, liberty, or
security of the minors involved in this case.

Our Ruling

We find no merit in the petition.

Procedural issues concerning the availability of the Writ of Habeas Data

The writ of habeas datais a remedy available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of a public official or employee, or of a
private individual or entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party. 11 It is an independent
and summary remedy designed to protect the image, privacy, honor, information, and freedom of
information of an individual, and to provide a forum to enforce one’s right to the truth and to
informational privacy. It seeks to protect a person’s right to control information regarding oneself,
particularly in instances in which such information is being collected through unlawful means in order
to achieve unlawful ends.12

In developing the writ of habeas data, the Court aimed to protect an individual’s right to informational
privacy, among others. A comparative law scholar has, in fact, defined habeas dataas "a procedure
designed to safeguard individual freedom from abuse in the information age." 13 The writ, however, will
not issue on the basis merely of an alleged unauthorized access to information about a
person.Availment of the writ requires the existence of a nexus between the right to privacy on the one
hand, and the right to life, liberty or security on the other.14 Thus, the existence of a person’s right to
informational privacy and a showing, at least by substantial evidence, of an actual or threatened
violation of the right to privacy in life, liberty or security of the victim are indispensable before the
privilege of the writ may be extended.15

Without an actionable entitlement in the first place to the right to informational privacy, a habeas
datapetition will not prosper. Viewed from the perspective of the case at bar,this requisite begs this
question: given the nature of an online social network (OSN)––(1) that it facilitates and promotes real-
time interaction among millions, if not billions, of users, sans the spatial barriers, 16 bridging the gap
created by physical space; and (2) that any information uploaded in OSNs leavesan indelible trace in
the provider’s databases, which are outside the control of the end-users––is there a right to
informational privacy in OSN activities of its users? Before addressing this point, We must first resolve
the procedural issues in this case.

a. The writ of habeas data is not only confined to cases of extralegal killings and enforced
disappearances
Contrary to respondents’ submission, the Writ of Habeas Datawas not enacted solely for the purpose
of complementing the Writ of Amparoin cases of extralegal killings and enforced disappearances.

Section 2 of the Rule on the Writ of Habeas Data provides:

Sec. 2. Who May File. – Any aggrieved party may file a petition for the writ of habeas data. However, in
cases of extralegal killings and enforced disappearances, the petition may be filed by:

(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children
and parents; or

(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth
civil degreeof consanguinity or affinity, in default of those mentioned in the preceding
paragraph. (emphasis supplied)

Had the framers of the Rule intended to narrow the operation of the writ only to cases of extralegal
killings or enforced disappearances, the above underscored portion of Section 2, reflecting a variance
of habeas data situations, would not have been made.

Habeas data, to stress, was designed "to safeguard individual freedom from abuse in the information
age."17 As such, it is erroneous to limit its applicability to extralegal killings and enforced
disappearances only. In fact, the annotations to the Rule preparedby the Committee on the Revision of
the Rules of Court, after explaining that the Writ of Habeas Data complements the Writ of Amparo,
pointed out that:

The writ of habeas data, however, can be availed of as an independent remedy to enforce one’s right
to privacy, more specifically the right to informational privacy. The remedies against the violation of
such right can include the updating, rectification, suppression or destruction of the database or
information or files in possession or in control of respondents. 18 (emphasis Ours) Clearly then, the
privilege of the Writ of Habeas Datamay also be availed of in cases outside of extralegal killings and
enforced disappearances.

b. Meaning of "engaged" in the gathering, collecting or storing of data or information

Respondents’ contention that the habeas data writ may not issue against STC, it not being an entity
engaged in the gathering, collecting or storing of data or information regarding the person, family,
home and correspondence of the aggrieved party, while valid to a point, is, nonetheless, erroneous.

To be sure, nothing in the Rule would suggest that the habeas data protection shall be available only
against abuses of a person or entity engaged in the businessof gathering, storing, and collecting of
data. As provided under Section 1 of the Rule:

Section 1. Habeas Data. – The writ of habeas datais a remedy available to any person whose right to
privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public
official or employee, or of a private individual or entity engaged in the gathering, collecting or storing
of data or information regarding the person, family, home and correspondence of the aggrieved party.
(emphasis Ours)
The provision, when taken in its proper context, as a whole, irresistibly conveys the idea that habeas
data is a protection against unlawful acts or omissions of public officials and of private individuals or
entities engaged in gathering, collecting, or storing data about the aggrieved party and his or her
correspondences, or about his or her family. Such individual or entity need not be in the business of
collecting or storing data.

To "engage" in something is different from undertaking a business endeavour. To "engage" means "to
do or take part in something."19 It does not necessarily mean that the activity must be done in pursuit
of a business. What matters is that the person or entity must be gathering, collecting or storing said
data or information about the aggrieved party or his or her family. Whether such undertaking carries
the element of regularity, as when one pursues a business, and is in the nature of a personal
endeavour, for any other reason or even for no reason at all, is immaterial and such will not prevent
the writ from getting to said person or entity.

To agree with respondents’ above argument, would mean unduly limiting the reach of the writ to a
very small group, i.e., private persons and entities whose business is data gathering and storage, and in
the process decreasing the effectiveness of the writ asan instrument designed to protect a right which
is easily violated in view of rapid advancements in the information and communications technology––a
right which a great majority of the users of technology themselves are not capable of protecting.

Having resolved the procedural aspect of the case, We now proceed to the core of the controversy.

The right to informational privacy on Facebook

a. The Right to Informational Privacy

The concept of privacyhas, through time, greatly evolved, with technological advancements having an
influential part therein. This evolution was briefly recounted in former Chief Justice Reynato S. Puno’s
speech, The Common Right to Privacy,20 where he explained the three strands of the right to privacy,
viz: (1) locational or situational privacy;21 (2) informational privacy; and (3) decisional privacy. 22 Of the
three, what is relevant to the case at bar is the right to informational privacy––usually defined as the
right of individuals to control information about themselves.23

With the availability of numerous avenues for information gathering and data sharing nowadays, not to
mention each system’s inherent vulnerability to attacks and intrusions, there is more reason that every
individual’s right to control said flow of information should be protected and that each individual
should have at least a reasonable expectation of privacy in cyberspace. Several commentators
regarding privacy and social networking sites, however, all agree that given the millions of OSN users,
"[i]n this [Social Networking] environment, privacy is no longer grounded in reasonable expectations,
but rather in some theoretical protocol better known as wishful thinking." 24

It is due to this notion that the Court saw the pressing need to provide for judicial remedies that would
allow a summary hearing of the unlawful use of data or information and to remedy possible violations
of the right to privacy.25 In the same vein, the South African High Court, in its Decision in the landmark
case, H v. W,26 promulgated on January30, 2013, recognized that "[t]he law has to take into account
the changing realities not only technologically but also socially or else it will lose credibility in the eyes
of the people. x x x It is imperative that the courts respond appropriately to changing times, acting
cautiously and with wisdom." Consistent with this, the Court, by developing what may be viewed as the
Philippine model of the writ of habeas data, in effect, recognized that, generally speaking, having an
expectation of informational privacy is not necessarily incompatible with engaging in cyberspace
activities, including those that occur in OSNs.

The question now though is up to whatextent is the right to privacy protected in OSNs? Bear in mind
that informational privacy involves personal information. At the same time, the very purpose of OSNs is
socializing––sharing a myriad of information,27 some of which would have otherwise remained
personal.

b. Facebook’s Privacy Tools: a response to the clamor for privacy in OSN activities

Briefly, the purpose of an OSN is precisely to give users the ability to interact and to stay connected to
other members of the same or different social media platform through the sharing of statuses, photos,
videos, among others, depending on the services provided by the site. It is akin to having a room filled
with millions of personal bulletin boards or "walls," the contents of which are under the control of each
and every user. In his or her bulletin board, a user/owner can post anything––from text, to pictures, to
music and videos––access to which would depend on whether he or she allows one, some or all of the
other users to see his or her posts. Since gaining popularity, the OSN phenomenon has paved the way
to the creation of various social networking sites, includingthe one involved in the case at bar,
www.facebook.com (Facebook), which, according to its developers, people use "to stay connected with
friends and family, to discover what’s going on in the world, and to share and express what matters to
them."28

Facebook connections are established through the process of "friending" another user. By sending a
"friend request," the user invites another to connect their accounts so that they can view any and all
"Public" and "Friends Only" posts of the other.Once the request is accepted, the link is established and
both users are permitted to view the other user’s "Public" or "Friends Only" posts, among others.
"Friending," therefore, allows the user to form or maintain one-to-one relationships with other users,
whereby the user gives his or her "Facebook friend" access to his or her profile and shares certain
information to the latter.29

To address concerns about privacy,30 but without defeating its purpose, Facebook was armed with
different privacy tools designed to regulate the accessibility of a user’s profile 31 as well as information
uploaded by the user. In H v. W,32 the South Gauteng High Court recognized this ability of the users to
"customize their privacy settings," but did so with this caveat: "Facebook states in its policies that,
although it makes every effort to protect a user’s information, these privacy settings are not
foolproof."33

For instance, a Facebook user canregulate the visibility and accessibility of digital images(photos),
posted on his or her personal bulletin or "wall," except for the user’sprofile picture and ID, by selecting
his or her desired privacy setting:

(a) Public - the default setting; every Facebook user can view the photo;
(b) Friends of Friends - only the user’s Facebook friends and their friends can view the photo;
(b) Friends - only the user’s Facebook friends can view the photo;
(c) Custom - the photo is made visible only to particular friends and/or networks of the
Facebook user; and
(d) Only Me - the digital image can be viewed only by the user.
The foregoing are privacy tools, available to Facebook users, designed to set up barriers to broaden or
limit the visibility of his or her specific profile content, statuses, and photos, among others, from
another user’s point of view. In other words, Facebook extends its users an avenue to make the
availability of their Facebook activities reflect their choice as to "when and to what extent to disclose
facts about [themselves] – and to put others in the position of receiving such confidences." 34 Ideally,
the selected setting will be based on one’s desire to interact with others, coupled with the opposing
need to withhold certain information as well as to regulate the spreading of his or her personal
information. Needless to say, as the privacy setting becomes more limiting, fewer Facebook users can
view that user’s particular post.

STC did not violate petitioners’ daughters’ right to privacy

Without these privacy settings, respondents’ contention that there is no reasonable expectation of
privacy in Facebook would, in context, be correct. However, such is not the case. It is through the
availability of said privacy tools that many OSN users are said to have a subjective expectation that only
those to whomthey grant access to their profile will view the information they post or upload thereto. 35

This, however, does not mean thatany Facebook user automatically has a protected expectation of
privacy inall of his or her Facebook activities.

Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that said
user, in this case the children of petitioners,manifest the intention to keepcertain posts private,
through the employment of measures to prevent access thereto or to limit its visibility. 36 And this
intention can materialize in cyberspace through the utilization of the OSN’s privacy tools. In other
words, utilization of these privacy tools is the manifestation,in cyber world, of the user’s invocation of
his or her right to informational privacy.37

Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny access to his or her
post orprofile detail should not be denied the informational privacy right which necessarily
accompanies said choice.38 Otherwise, using these privacy tools would be a feckless exercise, such that
if, for instance, a user uploads a photo or any personal information to his or her Facebook page and
sets its privacy level at "Only Me" or a custom list so that only the user or a chosen few can view it, said
photo would still be deemed public by the courts as if the user never chose to limit the photo’s visibility
and accessibility. Such position, if adopted, will not only strip these privacy tools of their function but it
would also disregard the very intention of the user to keep said photo or information within the
confines of his or her private space.

We must now determine the extent that the images in question were visible to other Facebook users
and whether the disclosure was confidential in nature. In other words, did the minors limit the
disclosure of the photos such that the images were kept within their zones of privacy? This
determination is necessary in resolving the issue of whether the minors carved out a zone of privacy
when the photos were uploaded to Facebook so that the images will be protected against
unauthorized access and disclosure.

Petitioners, in support of their thesis about their children’s privacy right being violated, insist that
Escudero intruded upon their children’s Facebook accounts, downloaded copies ofthe pictures and
showed said photos to Tigol. To them, this was a breach of the minors’ privacy since their Facebook
accounts, allegedly, were under "very private" or "Only Friends" setting safeguarded with a
password.39 Ultimately, they posit that their children’s disclosure was only limited since their profiles
were not open to public viewing. Therefore, according to them, people who are not their Facebook
friends, including respondents, are barred from accessing said post without their knowledge and
consent. Aspetitioner’s children testified, it was Angelawho uploaded the subjectphotos which were
only viewable by the five of them,40 although who these five are do not appear on the records.

Escudero, on the other hand, stated in her affidavit41 that "my students showed me some pictures of
girls cladin brassieres. This student [sic] of mine informed me that these are senior high school
[students] of STC, who are their friends in [F]acebook. x x x They then said [that] there are still many
other photos posted on the Facebook accounts of these girls. At the computer lab, these students then
logged into their Facebook account [sic], and accessed from there the various photographs x x x. They
even told me that there had been times when these photos were ‘public’ i.e., not confined to their
friends in Facebook."

In this regard, We cannot give muchweight to the minors’ testimonies for one key reason: failure to
question the students’ act of showing the photos to Tigol disproves their allegation that the photos
were viewable only by the five of them. Without any evidence to corroborate their statement that the
images were visible only to the five of them, and without their challenging Escudero’s claim that the
other students were able to view the photos, their statements are, at best, self-serving, thus deserving
scant consideration.42

It is well to note that not one of petitioners disputed Escudero’s sworn account that her students, who
are the minors’ Facebook "friends," showed her the photos using their own Facebook accounts. This
only goes to show that no special means to be able to viewthe allegedly private posts were ever
resorted to by Escudero’s students,43 and that it is reasonable to assume, therefore, that the photos
were, in reality, viewable either by (1) their Facebook friends, or (2) by the public at large.

Considering that the default setting for Facebook posts is"Public," it can be surmised that the
photographs in question were viewable to everyone on Facebook, absent any proof that petitioners’
children positively limited the disclosure of the photograph. If suchwere the case, they cannot invoke
the protection attached to the right to informational privacy. The ensuing pronouncement in US v.
Gines-Perez44 is most instructive:

[A] person who places a photograph on the Internet precisely intends to forsake and renounce all
privacy rights to such imagery, particularly under circumstances suchas here, where the Defendant did
not employ protective measures or devices that would have controlled access to the Web page or the
photograph itself.45

Also, United States v. Maxwell46 held that "[t]he more open the method of transmission is, the less
privacy one can reasonably expect. Messages sent to the public at large inthe chat room or e-mail that
is forwarded from correspondent to correspondent loses any semblance of privacy."

That the photos are viewable by "friends only" does not necessarily bolster the petitioners’ contention.
In this regard, the cyber community is agreed that the digital images under this setting still remain to
be outside the confines of the zones of privacy in view of the following:

(1) Facebook "allows the world to be more open and connected by giving its users the tools to
interact and share in any conceivable way;"47
(2) A good number of Facebook users "befriend" other users who are total strangers; 48
(3) The sheer number of "Friends" one user has, usually by the hundreds; and
 (4) A user’s Facebook friend can "share"49 the former’s post, or "tag"50 others who are not
Facebook friends with the former, despite its being visible only tohis or her own Facebook
friends.

It is well to emphasize at this point that setting a post’s or profile detail’s privacy to "Friends" is no
assurance that it can no longer be viewed by another user who is not Facebook friends with the source
of the content. The user’s own Facebook friend can share said content or tag his or her own Facebook
friend thereto, regardless of whether the user tagged by the latter is Facebook friends or not with the
former. Also, when the post is shared or when a person is tagged, the respective Facebook friends of
the person who shared the post or who was tagged can view the post, the privacy setting of which was
set at "Friends."

To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not Facebook friends. If C,
A’s Facebook friend, tags B in A’s post, which is set at "Friends," the initial audience of 100 (A’s own
Facebook friends) is dramatically increased to 300 (A’s 100 friends plus B’s 200 friends or the public,
depending upon B’s privacy setting). As a result, the audience who can view the post is effectively
expanded––and to a very large extent.

This, along with its other features and uses, is confirmation of Facebook’s proclivity towards user
interaction and socialization rather than seclusion or privacy, as it encourages broadcasting of
individual user posts. In fact, it has been said that OSNs have facilitated their users’ self-tribute,
thereby resulting into the "democratization of fame."51 Thus, it is suggested, that a profile, or even a
post, with visibility set at "Friends Only" cannot easily, more so automatically, be said to be "very
private," contrary to petitioners’ argument.

As applied, even assuming that the photos in issue are visible only to the sanctioned students’
Facebook friends, respondent STC can hardly be taken to task for the perceived privacy invasion since
it was the minors’ Facebook friends who showed the pictures to Tigol. Respondents were mere
recipients of what were posted. They did not resort to any unlawful means of gathering the
information as it was voluntarily given to them by persons who had legitimate access to the said posts.
Clearly, the fault, if any, lies with the friends of the minors. Curiously enough, however, neither the
minors nor their parents imputed any violation of privacy against the students who showed the images
to Escudero.

Furthermore, petitioners failed to prove their contention that respondents reproduced and
broadcasted the photographs. In fact, what petitioners attributed to respondents as an act of offensive
disclosure was no more than the actuality that respondents appended said photographs in their
memorandum submitted to the trial court in connection with Civil Case No. CEB-38594. 52 These are not
tantamount to a violation of the minor’s informational privacy rights, contrary to petitioners’ assertion.

In sum, there can be no quibbling that the images in question, or to be more precise, the photos of
minor students scantily clad, are personal in nature, likely to affect, if indiscriminately circulated, the
reputation of the minors enrolled in a conservative institution. However, the records are bereft of any
evidence, other than bare assertions that they utilized Facebook’s privacy settings to make the photos
visible only to them or to a select few. Without proof that they placed the photographs subject of this
case within the ambit of their protected zone of privacy, they cannot now insist that they have an
expectation of privacy with respect to the photographs in question.
Had it been proved that the access tothe pictures posted were limited to the original uploader, through
the "Me Only" privacy setting, or that the user’s contact list has been screened to limit access to a
select few, through the "Custom" setting, the result may have been different, for in such instances, the
intention to limit access to the particular post, instead of being broadcasted to the public at large or all
the user’s friends en masse, becomes more manifest and palpable.

On Cyber Responsibility

It has been said that "the best filter is the one between your children’s ears." 53 This means that self-
regulation on the part of OSN users and internet consumers ingeneral is the best means of avoiding
privacy rights violations.54 As a cyberspace communitymember, one has to be proactive in protecting
his or her own privacy.55 It is in this regard that many OSN users, especially minors, fail.Responsible
social networking or observance of the "netiquettes"56 on the part of teenagers has been the concern
of many due to the widespreadnotion that teenagers can sometimes go too far since they generally
lack the people skills or general wisdom to conduct themselves sensibly in a public forum. 57

Respondent STC is clearly aware of this and incorporating lessons on good cyber citizenship in its
curriculum to educate its students on proper online conduct may be mosttimely. Too, it is not only STC
but a number of schools and organizations have already deemed it important to include digital literacy
and good cyber citizenshipin their respective programs and curricula in view of the risks that the
children are exposed to every time they participate in online activities. 58 Furthermore, considering the
complexity of the cyber world and its pervasiveness,as well as the dangers that these children are
wittingly or unwittingly exposed to in view of their unsupervised activities in cyberspace, the
participation of the parents in disciplining and educating their children about being a good digital
citizen is encouraged by these institutions and organizations. In fact, it is believed that "to limit such
risks, there’s no substitute for parental involvement and supervision." 59

As such, STC cannot be faulted for being steadfast in its duty of teaching its students to beresponsible
in their dealings and activities in cyberspace, particularly in OSNs, whenit enforced the disciplinary
actions specified in the Student Handbook, absenta showing that, in the process, it violated the
students’ rights.

OSN users should be aware of the risks that they expose themselves to whenever they engage
incyberspace activities.1âwphi1 Accordingly, they should be cautious enough to control their privacy
and to exercise sound discretion regarding how much information about themselves they are willing to
give up. Internet consumers ought to be aware that, by entering or uploading any kind of data or
information online, they are automatically and inevitably making it permanently available online, the
perpetuation of which is outside the ambit of their control. Furthermore, and more importantly,
information, otherwise private, voluntarily surrendered by them can be opened, read, or copied by
third parties who may or may not be allowed access to such.

It is, thus, incumbent upon internet users to exercise due diligence in their online dealings and
activities and must not be negligent in protecting their rights. Equity serves the vigilant. Demanding
relief from the courts, as here, requires that claimants themselves take utmost care in safeguarding a
right which they allege to have been violated. These are indispensable. We cannot afford protection to
persons if they themselves did nothing to place the matter within the confines of their private zone.
OSN users must be mindful enough to learn the use of privacy tools, to use them if they desire to keep
the information private, and to keep track of changes in the available privacy settings, such as those of
Facebook, especially because Facebook is notorious for changing these settings and the site's layout
often.

In finding that respondent STC and its officials did not violate the minors' privacy rights, We find no
cogent reason to disturb the findings and case disposition of the court a quo.

In light of the foregoing, the Court need not belabor the other assigned errors.

WHEREFORE, premises considered, the petition is hereby DENIED. The Decision dated July 27, 2012 of
the Regional Trial Court, Branch 14 in Cebu City in SP. Proc. No. 19251-CEB is hereby AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

FIRST DIVISION

[G.R. No. 136292. January 15, 2002.]

RUDY CABALLES y TAIÑO, Petitioner, v. COURT OF APPEALS and PEOPLE OF THE

PHILIPPINES, Respondents.

DECISION
PUNO, J.:
This is an appeal by certiorari from the decision 1 of respondent Court of Appeals dated September 15,
1998 which affirmed the judgment rendered by the Regional Trial Court of Santa Cruz, Laguna, finding
herein petitioner, Rudy Caballes y Taiño, guilty beyond reasonable doubt of the crime of theft, and the
resolution 2 dated November 9, 1998 which denied petitioner’s motion for reconsideration.chanrob1es
virtua1 1aw 1ibrary

In an Information 3 dated October 16, 1989, petitioner was charged with the crime of theft committed
as follows:jgc:chanrobles.com.ph
"That on or about the 28th day of June, 1989, in the Municipality of Pagsanjan, and/or elsewhere in the
Province of Laguna, and within the jurisdiction of this Honorable Court, the above-named accused,
with intent of gain, and without the knowledge and consent of the owner thereof, the NATIONAL
POWER CORPORATION, did then and there wilfully, unlawfully and feloniously take, steal and carry
away about 630-kg of Aluminum Cable Conductors, valued at P27,450.00, belonging to and to the
damage and prejudice of said owner National Power Corp., in the aforesaid amount.

CONTRARY TO LAW."cralaw virtua1aw library

During the arraignment, petitioner pleaded not guilty and hence, trial on the merits ensued.

The facts are summarized by the appellate court as follows:jgc:chanrobles.com.ph

" [At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino Noceja and Pat. Alex de Castro, while on a
routine patrol in Barangay Sampalucan, Pagsanjan, Laguna, spotted a passenger jeep unusually covered
with "kakawati" leaves.

Suspecting that the jeep was loaded with smuggled goods, the two police officers flagged down the
vehicle. The jeep was driven by appellant. When asked what was loaded on the jeep, he did not
answer; he appeared pale and nervous.
With appellant’s consent, the police officers checked the cargo and they discovered bundles of 3.08
mm aluminum/galvanized conductor wires exclusively owned by National Power Corporation (NPC).
The conductor wires weighed 700 kilos and valued at P55,244.45. Noceja asked appellant where the
wires came from and appellant answered that they came from Cavinti, a town approximately 8
kilometers away from Sampalucan. Thereafter, appellant and the vehicle with the high-voltage wires
were brought to the Pagsanjan Police Station. Danilo Cabale took pictures of the appellant and the jeep
loaded with the wires which were turned over to the Police Station Commander of Pagsanjan, Laguna.
Appellant was incarcerated for 7 days in the Municipal jail.

In defense, appellant interposed denial and alibi. He testified that he is a driver and resident of
Pagsanjan, Laguna; a NARCOM civilian agent since January, 1988 although his identification card (ID)
has already expired. In the afternoon of June 28, 1989, while he was driving a passenger jeepney, he
was stopped by one Resty Fernandez who requested him to transport in his jeepney conductor wires
which were in Cavinti, Laguna. He told Resty to wait until he had finished his last trip for the day from
Santa Cruz, Laguna. On his way to Santa Cruz, Laguna, he dropped by the NARCOM headquarters and
informed his superior, Sgt. Callos, that something unlawful was going to happen. Sgt. Callos advised
him to proceed with the loading of the wires and that the former would act as back-up and intercept
the vehicle at the Sambat Patrol Base in Pagsanjan.

After receiving those instructions, he went back to see Resty. Although Resty had his own vehicle, its
tires were old so the cable wires were loaded in appellant’s jeep and covered with kakawati leaves. The
loading was done by about five (5) masked men. He was promised P1,000.00 for the job. Upon crossing
a bridge, the two vehicles separated but in his case, he was intercepted by Sgt. Noceja and Pat. De
Castro. When they discovered the cables, he told the police officers that the cables were loaded in his
jeep by the owner, Resty Fernandez. But despite his explanation, he was ordered to proceed to police
headquarters where he was interrogated. The police officers did not believe him and instead locked
him up in jail for a week." 4
On April 27, 1993, the court a quo rendered judgment 5 the dispositive portion of which
reads:jgc:chanrobles.com.ph

"WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of Theft of property
worth P55,244.45, the Court hereby sentences him to suffer imprisonment from TWO (2) [YEARS],
FOUR (4) MONTHS, and ONE (1) DAY of Prision Correccional, as minimum, to TEN (10) YEARS of Prision
Mayor, as maximum, to indemnify the complainant National Power Corporation in the amount of
P55,244.45, and to pay the costs."cralaw virtua1aw library

On appeal, the Court of Appeals affirmed the judgment of conviction but deleted the award for
damages on the ground that the stolen materials were recovered and modified the penalty imposed,
to wit:jgc:chanrobles.com.ph

"WHEREFORE, the appealed decision is hereby AFFIRMED with the modification that appellant RUDY
CABALLES is found guilty beyond reasonable doubt as principal in theft, defined and penalized under
Articles 308 and 309, par. 1, Revised Penal Code, and there being no modifying circumstances, he is
hereby meted an indeterminate penalty of Four (4) years, Nine (9) months and Eleven (11) days of
prision correccional, as minimum term, to Eight (8) years, Eight (8) months and one (1) day of prision
mayor, as maximum term. No civil indemnity and no costs." 6

Petitioner comes before us and raises the following issues:jgc:chanrobles.com.ph

"(a) Whether or not the constitutional right of petitioner was violated when the police officers
searched his vehicle and seized the wires found therein without a search warrant and when samples of
the wires and references to them were admitted in evidence as basis for his conviction;

(b) Whether or not respondent Court erred in rejecting petitioner’s defense that he was engaged in an
entrapment operation and in indulging in speculation and conjecture in rejecting said defense; and

(c) Whether or not the evidence of the prosecution failed to establish the guilt of petitioner beyond
reasonable doubt and thus failed to overcome the constitutional right of petitioner to presumption of
innocence."cralaw virtua1aw library

The conviction or acquittal of petitioner hinges primarily on the validity of the warrantless search and
seizure made by the police officers, and the admissibility of the evidence obtained by virtue thereof.

In holding that the warrantless search and seizure is valid, the trial court ruled
that:jgc:chanrobles.com.ph

"As his last straw of argument, the accused questions the constitutionality of the search and validity of
his arrest on the ground that no warrant was issued to that effect. The Court cannot again sustain such
view. In the case of People v. Lo Ho [Wing], G.R. No. 88017, January 21, 1991, it has been held that
‘considering that before a warrant can be obtained, the place, things and persons to be searched must
be described to the satisfaction of the issuing judge — a requirement which borders on the impossible
in the case of smuggling effected by the use of a moving vehicle that can transport contraband from
one place to another with impunity, a warrantless search of a moving vehicle is justified on grounds of
practicability.’ The doctrine is not of recent vintage. In the case of Valmonte v. de Villa, G.R. No. 83988,
May 24, 1990 (Resolution on Motion for Reconsideration, September 29, 1989), it was ruled that
‘automobiles because of their mobility may be searched without a warrant upon facts not justifying
warrantless search of a resident or office. . . . To hold that no criminal can, in any case, be arrested and
searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a
large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals,
facilitating their escape in many instances’ (Ibid.). In Umil v. Ramos, 187 SCRA 311, and People v. Ortiz,
191 SCRA 836, the Supreme Court held that a search may be made even without a warrant where the
accused is caught in flagrante. Under the circumstances, the police officers are not only authorized but
are also under obligation to arrest the accused even without a warrant." 7

Petitioner contends that the flagging down of his vehicle by police officers who were on routine patrol,
merely on "suspicion" that "it might contain smuggled goods," does not constitute probable cause that
will justify a warrantless search and seizure. He insists that, contrary to the findings of the trial court as
adopted by the appellate court, he did not give any consent, express or implied, to the search of the
vehicle. Perforce, any evidence obtained in violation of his right against unreasonable search and
seizure shall be deemed inadmissible.

Enshrined in our Constitution is the inviolable right of the people to be secure in their persons and
properties against unreasonable searches and seizures, as defined under Section 2, Article III thereof,
which reads:jgc:chanrobles.com.ph

"Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized."cralaw virtua1aw library

The exclusionary rule under Section 3(2), Article III of the Constitution bars the admission of evidence
obtained in violation of such right.

The constitutional proscription against warrantless searches and seizures is not absolute but admits of
certain exceptions, namely: (1) warrantless search incidental to a lawful arrest recognized under
Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; 8 (2) seizure of evidence in
plain view; 9 (3) search of moving vehicles; 10 (4) consented warrantless search; 11 (5) customs search;
(6) stop and frisk situations (Terry search); 12 and (7) exigent and emergency circumstances. 13

In cases where warrant is necessary, the steps prescribed by the Constitution and reiterated in the
Rules of Court must be complied with. In the exceptional events where warrant is not necessary to
effect a valid search or seizure, or when the latter cannot be performed except without a warrant,
what constitutes a reasonable or unreasonable search or seizure is purely a judicial question,
determinable from the uniqueness of the circumstances involved, including the purpose of the search
or seizure, the presence or absence of probable cause, the manner in which the search and seizure was
made, the place or thing searched and the character of the articles procured. 14

It is not controverted that the search and seizure conducted by the police officers in the case at bar
was not authorized by a search warrant. The main issue is whether the evidence taken from the
warrantless search is admissible against the appellant. Without said evidence, the prosecution cannot
prove the guilt of the appellant beyond reasonable doubt.

I. Search of moving vehicle

Highly regulated by the government, the vehicle’s inherent mobility reduces expectation of privacy
especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to
probable cause that the occupant committed a criminal activity. 15 Thus, the rules governing search
and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of
the search on the basis of practicality. This is so considering that before a warrant could be obtained,
the place, things and persons to be searched must be described to the satisfaction of the issuing judge
— a requirement which borders on the impossible in the case of smuggling effected by the use of a
moving vehicle that can transport contraband from one place to another with impunity. We might add
that a warrantless search of a moving vehicle is justified on the ground that it is not practicable to
secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which
the warrant must be sought. 16 Searches without warrant of automobiles is also allowed for the
purpose of preventing violations of smuggling or immigration laws, provided such searches are made at
borders or ‘constructive borders’ like checkpoints near the boundary lines of the State. 17

The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to
conduct indiscriminate searches without warrants if made within the interior of the territory and in the
absence of probable cause. 18 Still and all, the important thing is that there was probable cause to
conduct the warrantless search, which must still be present in such a case.

Although the term eludes exact definition, probable cause signifies a reasonable ground of suspicion
supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief that
the person accused is guilty of the offense with which he is charged; or the existence of such facts and
circumstances which could lead a reasonably discreet and prudent man to believe that an offense has
been committed and that the items, articles or objects sought in connection with said offense or
subject to seizure and destruction by law is in the place to be searched. 19 The required probable
cause that will justify a warrantless search and seizure is not determined by a fixed formula but is
resolved according to the facts of each case. 20

One such form of search of moving vehicles is the "stop-and-search" without warrant at military or
police checkpoints which has been declared to be not illegal per se, 21 for as long as it is warranted by
the exigencies of public order 22 and conducted in a way least intrusive to motorists. 23 A checkpoint
may either be a mere routine inspection or it may involve an extensive search.

Routine inspections are not regarded as violative of an individual’s right against unreasonable search.
The search which is normally permissible in this instance is limited to the following instances: (1) where
the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair
grounds; 24 (2) simply looks into a vehicle; 25 (3) flashes a light therein without opening the car’s
doors; 26 (4) where the occupants are not subjected to a physical or body search; 27 (5) where the
inspection of the vehicles is limited to a visual search or visual inspection; 28 and (6) where the routine
check is conducted in a fixed area. 29

None of the foregoing circumstances is obtaining in the case at bar. The police officers did not merely
conduct a visual search or visual inspection of herein petitioner’s vehicle. They had to reach inside the
vehicle, lift the kakawati leaves and look inside the sacks before they were able to see the cable wires.
It cannot be considered a simple routine check.

In the case of United States v. Pierre, 30 the Court held that the physical intrusion of a part of the body
of an agent into the vehicle goes beyond the area protected by the Fourth Amendment, to
wit:jgc:chanrobles.com.ph
"The Agent . . . stuck his head through the driver’s side window. The agent thus effected a physical
intrusion into the vehicle . . . [W]e are aware of no case holding that an officer did not conduct a search
when he physically intruded part of his body into a space in which the suspect had a reasonable
expectation of privacy. [The] Agent[s] . . . physical intrusion allowed him to see and to smell things he
could not see or smell from outside the vehicle . . . In doing so, his inspection went beyond that portion
of the vehicle which may be viewed from outside the vehicle by either inquisitive passersby or diligent
police officers, and into the area protected by the Fourth amendment, just as much as if he had stuck
his head inside the open window of a home:"

On the other hand, when a vehicle is stopped and subjected to an extensive search, such a warrantless
search would be constitutionally permissible only if the officers conducting the search have reasonable
or probable cause to believe, before the search, that either the motorist is a law-offender or they will
find the instrumentality or evidence pertaining to a crime in the vehicle to be searched. 31

This Court has in the past found probable cause to conduct without a judicial warrant an extensive
search of moving vehicles in situations where (1) there had emanated from a package the distinctive
smell of marijuana; (2) agents of the Narcotics Command ("Narcom") of the Philippine National Police
("PNP") had received a confidential report from informers that a sizeable volume of marijuana would
be transported along the route where the search was conducted; (3) Narcom agents had received
information that a Caucasian coming from Sagada, Mountain Province, had in his possession prohibited
drugs and when the Narcom agents confronted the accused Caucasian, because of a conspicuous bulge
in his waistline, he failed to present his passport and other identification papers when requested to do
so; (4) Narcom agents had received confidential information that a woman having the same physical
appearance as that of the accused would be transporting marijuana; 32 (5) the accused who were
riding a jeepney were stopped and searched by policemen who had earlier received confidential
reports that said accused would transport a large quantity of marijuana; and (6) where the moving
vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a
deep penetration agent or spy — one who participated in the drug smuggling activities of the syndicate
to which the accused belonged — that said accused were bringing prohibited drugs into the country.
33

In the case at bar, the vehicle of the petitioner was flagged down because the police officers who were
on routine patrol became suspicious when they saw that the back of the vehicle was covered with
kakawati leaves which, according to them, was unusual and uncommon.

Pat. Alex de Castro recounted the incident as follows:jgc:chanrobles.com.ph

"ATTY. SANTOS

Q Now on said date and time do you remember of any unusual incident while you were performing
your duty?

A Yes, sir, at that time and date myself and Police Sgt. Noceja were conducting patrol in the said place
when we spotted a suspicious jeepney so we stopped the jeepney and searched the load of the
jeepney and we found out (sic) these conductor wires.

Q You mentioned about the fact that when you saw the jeepney you became suspicious, why did you
become suspicious?
A Because the cargo was covered with leaves and branches, sir.

Q When you became suspicious upon seeing those leaves on top of the load what did you do next, if
any?

A We stopped the jeepney and searched the contents thereof, sir." 34

The testimony of Victorino Noceja did not fare any better:jgc:chanrobles.com.ph

"ATTY. SANTOS

Q When you saw the accused driving the said vehicle, what did you do?

A Because I saw that the vehicle being drawn by Caballes was covered by kakawati leaves, I became
suspicious since such vehicle should not be covered by those and I flagged him, sir." 35

We hold that the fact that the vehicle looked suspicious simply because it is not common for such to be
covered with kakawati leaves does not constitute "probable cause" as would justify the conduct of a
search without a warrant.

In People v. Chua Ho San, 36 we held that the fact that the watercraft used by the accused was
different in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas
coupled with the suspicious behavior of the accused when he attempted to flee from the police
authorities do not sufficiently establish probable cause. Thus:jgc:chanrobles.com.ph

"In the case at bar, the Solicitor General proposes that the following details are suggestive of probable
cause — persistent reports of rampant smuggling of firearm and other contraband articles, CHUA’s
watercraft differing in appearance from the usual fishing boats that commonly cruise over the
Bacnotan seas, CHUA’s illegal entry into the Philippines . . ., CHUA’s suspicious behavior, i.e., he
attempted to flee when he saw the police authorities, and the apparent ease by which CHUA can
return to and navigate his speedboat with immediate dispatch towards the high seas, beyond the
reach of Philippine laws.

This Court, however, finds that these do not constitute "probable cause." None of the telltale clues,
e.g., bag or package emanating the pungent odor of marijuana or other prohibited drug, confidential
report and/or positive identification by informers of courier of prohibited drug and/or the time and
place where they will transport/deliver the same, suspicious demeanor or behavior, and suspicious
bulge in the waist — accepted by this Court as sufficient to justify a warrantless arrest exists in this
case. There was no classified information that a foreigner would disembark at Tammocalao beach
bearing prohibited drug on the date in question. CHUA was not identified as a drug courier by a police
informer or agent. The fact that the vessel that ferried him to shore bore no resemblance to the fishing
boats of the area did not automatically mark him as in the process of perpetrating an offense. . . ."
(Emphasis supplied)

In addition, the police authorities do not claim to have received any confidential report or tipped
information that petitioner was carrying stolen cable wires in his vehicle which could otherwise have
sustained their suspicion. Our jurisprudence is replete with cases where tipped information has
become a sufficient probable cause to effect a warrantless search and seizure. 37 Unfortunately, none
exists in this case.

II. Plain view doctrine

It cannot likewise be said that the cable wires found in petitioner’s vehicle were in plain view, making
its warrantless seizure valid.

Jurisprudence is to the effect that an object is in plain view if the object itself is plainly exposed to
sight. Where the object seized was inside a closed package, the object itself is not in plain view and
therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether
by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the
contents are in plain view and may be seized. In other words, if the package is such that an
experienced observer could infer from its appearance that it contains the prohibited article, then the
article is deemed in plain view. It must be immediately apparent to the police that the items that they
observe may be evidence of a crime, contraband or otherwise subject to seizure. 38
It is clear from the records of this case that the cable wires were not exposed to sight because they
were placed in sacks 39 and covered with leaves. The articles were neither transparent nor
immediately apparent to the police authorities. They had no clue as to what was hidden underneath
the leaves and branches. As a matter of fact, they had to ask petitioner what was loaded in his vehicle.
In such a case, it has been held that the object is not in plain view which could have justified mere
seizure of the articles without further search. 40

III. Consented search

Petitioner contends that the statement of Sgt. Victorino Noceja that he checked the vehicle "with the
consent of the accused" is too vague to prove that petitioner consented to the search. He claims that
there is no specific statement as to how the consent was asked and how it was given, nor the specific
words spoken by petitioner indicating his alleged "consent." At most, there was only an implied
acquiescence, a mere passive conformity, which is no "consent" at all within the purview of the
constitutional guarantee.

Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right
which may be waived. The consent must be voluntary in order to validate an otherwise illegal
detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated
by any duress or coercion. 41 Hence, consent to a search is not to be lightly inferred, but must be
shown by clear and convincing evidence. 42 The question whether a consent to a search was in fact
voluntary is a question of fact to be determined from the totality of all the circumstances. 43 Relevant
to this determination are the following characteristics of the person giving consent and the
environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or
secluded location; (3) whether he objected to the search or passively looked on; 44 (4) the education
and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant’s
belief that no incriminating evidence will be found; 45 (7) the nature of the police questioning; (8) the
environment in which the questioning took place; and (9) the possibly vulnerable subjective state of
the person consenting. 46 It is the State which has the burden of proving, by clear and positive
testimony, that the necessary consent was obtained and that it was freely and voluntarily given. 47

In the case at bar, Sgt. Victorino Noceja testified on the manner in which the search was conducted in
this wise:jgc:chanrobles.com.ph
"WITNESS

Q On June 28, 1989, where were you?

A We were conducting patrol at the poblacion and some barangays, sir.

x       x       x

Q After conducting the patrol operation, do you remember of any unusual incident on said date and
time?

A Yes, sir.

Q What is that incident?

A While I was conducting my patrol at barangay Sampalucan, I saw Rudy Caballes driving a vehicle and
the vehicle contained aluminum wires, sir.
x       x       x

Q When you saw the accused driving the said vehicle, what did you do?

A Because I saw that the vehicle being driven by Caballes was covered by kakawati leaves, I became
suspicious since such vehicle should not be covered by those and I flagged him, sir.

Q Did the vehicle stop?

A Yes, sir, and after said vehicle stop[ped], I removed the cover of said vehicle and by so doing, I saw
the aluminum wires.

Q Before you saw the aluminum wires, did you talk to the accused?

A Yes, sir, I asked him what his load was.

Q What was the answer of Caballes?

A He did not answer and I observed him to be pale, "nagpapamutla" (sic), so I told him I will look at the
contents of his vehicle and he answered in the positive.

Q And after you saw for yourself the aluminum wires loaded on the jeep, what did you do?

A I asked him where those wires came from and he answered those came from the Cavinti area, sir."
48

This Court is not unmindful of cases upholding the validity of consented warrantless searches and
seizure. But in these cases, the police officers’ request to search personnel effects was orally
articulated to the accused and in such language that left no room for doubt that the latter fully
understood what was requested. In some instance, the accused even verbally replied to the request
demonstrating that he also understood the nature and consequences of such request. 49
In Asuncion v. Court of Appeals, 50 the apprehending officers sought the permission of petitioner to
search the car, to which the latter agreed. Petitioner therein himself freely gave his consent to said
search. In People v. Lacerna, 51 the appellants who were riding in a taxi were stopped by two
policemen who asked permission to search the vehicle and the appellants readily agreed. In upholding
the validity of the consented search, the Court held that appellant himself who was "urbanized in
mannerism and speech" expressly said that he was consenting to the search as he allegedly had
nothing to hide and had done nothing wrong. In People v. Cuizon, 52 the accused admitted that they
signed a written permission stating that they freely consented to the search of their luggage by the NBI
agents to determine if they were carrying shabu. In People v. Montilla, 53 it was held that the accused
spontaneously performed affirmative acts of volition by himself opening the bag without being forced
or intimidated to do so, which acts should properly be construed as a clear waiver of his right. In
People v. Omaweng, 54 the police officers asked the accused if they could see the contents of his bag
to which the accused said "you can see the contents but those are only clothings." Then the policemen
asked if they could open and see it, and accused answered "you can see it." The Court said there was a
valid consented search.

In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is
fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) that the
person involved had knowledge, either actual or constructive, of the existence of such right; and (3)
the said person had an actual intention to relinquish the right. 55

In the case at bar, the evidence is lacking that the petitioner intentionally surrendered his right against
unreasonable searches. The manner by which the two police officers allegedly obtained the consent of
petitioner for them to conduct the search leaves much to be desired. When petitioner’s vehicle was
flagged down, Sgt. Noceja approached petitioner and "told him I will look at the contents of his vehicle
and he answered in the positive." We are hard put to believe that by uttering those words, the police
officers were asking or requesting for permission that they be allowed to search the vehicle of
petitioner. For all intents and purposes, they were informing, nay, imposing upon herein petitioner that
they will search his vehicle. The "consent" given under intimidating or coercive circumstances is no
consent within the purview of the constitutional guaranty. In addition, in cases where this Court upheld
the validity of consented search, it will be noted that the police authorities expressly asked, in no
uncertain terms, for the consent of the accused to be searched. And the consent of the accused was
established by clear and positive proof. In the case of herein petitioner, the statements of the police
officers were not asking for his consent; they were declaring to him that they will look inside his
vehicle. Besides, it is doubtful whether permission was actually requested and granted because when
Sgt. Noceja was asked during his direct examination what he did when the vehicle of petitioner
stopped, he answered that he removed the cover of the vehicle and saw the aluminum wires. It was
only after he was asked a clarificatory question that he added that he told petitioner he will inspect the
vehicle. To our mind, this was more of an afterthought. Likewise, when Pat. de Castro was asked twice
in his direct examination what they did when they stopped the jeepney, his consistent answer was that
they searched the vehicle. He never testified that he asked petitioner for permission to conduct the
search. 56
Neither can petitioner’s passive submission be construed as an implied acquiescence to the
warrantless search. In People v. Barros, 57 appellant Barros, who was carrying a carton box, boarded a
bus where two policemen were riding. The policemen inspected the carton and found marijuana
inside. When asked who owned the box, appellant denied ownership of the box and failed to object to
the search. The Court there struck down the warrantless search as illegal and held that the accused is
not to be presumed to have waived the unlawful search conducted simply because he failed to object,
citing the ruling in the case of People v. Burgos, 58 to wit:jgc:chanrobles.com.ph
"As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do
not place the citizens in the position of either contesting an officer’s authority by force, or waiving his
constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a
consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the
law."cralaw virtua1aw library

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

WHEREFORE, the impugned decision is REVERSED and SET ASIDE, and accused Rudy Caballes is hereby
ACQUITTED of the crime charged. Cost de oficio.chanrob1es virtua1 1aw 1ibrary

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 199042               November 17, 2014

DANILO VILLANUEVA y ALCARAZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

SERENO, CJ:

We resolve the Petition1 filed by Danilo Villanueva y Alcaraz from the Decision2 dated 4 May 2011 and
Resolution3 dated 18 October 2011 issued by the Fourteenth Division of the Court of Appeals (CA) in
CA-G.R. C.R. No. 32582.

THE ANTECEDENT FACTS

Petitioner Danilo Villanueva was charged with violation of Section 11, Article II of Republic Act (R.A.)
No. 9165 or The Comprehensive Dangerous Drugs Act of 2002. The Information 4 reads:
That on or about the 15th day of June 2004 in Caloocan City, Metro Manila, and within the jurisdiction
of this Honorable Court, the above named accused, without being authorized by law, did then and
there, willfully, unlawfully and feloniously have in his possession, custody and control
METHAMPHETAMINE HYDROCHLORIDE (Shabu) weighing 0.63 gram knowing the same to [be a]
dangerous drug under the provisions of the above-cited law.

CONTRARY TO LAW.

On 15 July 2004, the accused, duly assisted by counsel de oficio, pleaded not guilty to the offense
charged.5

PROSECUTION’S VERSION

Four witnesses testified for the prosecution: (1) Police Senior Inspector (PSI) Albert Arturo, (2) Police
Officer (PO) 3 Jonathan Coralde, (3) PO2 Reynante Mananghaya, and (4) Senior Police Officer 1 (SPO1)
Antonio Asiones.6 Their testimonies reveal that a Complaint was filed by Brian Resco against Danilo
Villanueva for allegedly shooting the former along C-3 Road, Navotas City. After recording the incident
in the police blotter, PO3 Jonathan Coralde, SPO3 Enrique de Jesus, SPO2 Henry Martin and SPO1
Anthony Asiones, together with Resco, proceeded to the house of Villanueva. They informed
Villanueva about the Complaint lodged against him. They invited him to the police station. There, he
was subjected to a body search and, in the process, a plastic sachet of shabu was recovered from the
left pocket of his pants. PO3 Coralde marked the sachet with the initial "DAV 06-15-04", and PO2
Reynante Mananghaya brought it to the National Police District Scene of the Crime Operatives (NPD-
SOCO) for examination.7 DEFENSE’S VERSION

The accused testified that at the time of the incident, he was at home watching TV when PO3 Coralde,
along with three others, invited him to go with them to the police station. Informed that he had been
identified as responsible for shooting Resco, the accused was then frisked and detained at the police
station.8

RULING OF THE RTC

The Regional Trial Court (RTC) Branch 127 of Caloocan City, in its Decision 9 dated 6 April 2009,
convicted petitioner of the offense charged. The dispositive portion of the Decision reads:

WHEREFORE, premises considered, judgment is hereby rendered declaring accused DANILO

VILLANUEVA y ALCARAZ, GUILTY BEYOND REASONABLE DOUBT of the offense of Violation of Section
11, Article II,R.A. 9165. Henceforth, this Court hereby sentences him to suffer an imprisonment of
twelve (12) years and one (1) day as the minimum to seventeen (17) years and eight (8) months as the
maximum and to pay the fine of Three Hundred Thousand Pesos (₱300,000.00).

The drugs subject matter of this case is ordered confiscated and forfeited in favor of the government to
be dealt with in accordance with the law.

SO ORDERED.10

The CA reviewed the appeal, which hinged on one issue, viz:

 THE COURT A QUOGRAVELY ERRED IN NOT FINDING AS ILLEGAL THE ACCUSED-APPELLANT’S
WARRANTLESS ARREST AND SEARCH.11

RULING OF THE CA

On 4 May 2011, the CA affirmed the ruling of the lower court:

WHEREFORE, the appealed Decision dated April 6, 2009 of the Regional Trial Court, Branch 127,
Caloocan City in Criminal Case No. 70854 finding the accused-appellant guilty beyond reasonable doubt
is hereby AFFIRMED.

SO ORDERED.12

On 27 May 2011, petitioner filed a Motion for Reconsideration, 13 which the CA denied in a
Resolution14 dated 18 October 2011.

Hence, the instant Petition, which revolves around the following lone issue:

WHETHER THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE PETITIONER’S CONVICTION
FOR VIOLATION OF SECTION 11 OF REPUBLIC ACT NO. 9165 DESPITE THE ILLEGALITY OF THE ARREST
AND THE LAPSES ON THE PART OF THE POLICE OFFICERS IN THE HANDLING OF THE CONFISCATED
DRUG.15

Petitioner claims that his arrest does not fall within the purview of valid warrantless arrests, since it
took place on the day of the alleged shooting incident. Hence, to "invite" him to the precinct without
any warrant of arrest was illegal. The evidence obtained is, consequently, inadmissible. The Office of
the Solicitor General filed its Comment16 stating that the shabu confiscated from petitioner was
admissible in evidence against him; that the search conducted on him was valid; and that he cannot
raise the issue regarding the apprehending officers’ non-compliance with Section 21, Article II of R.A.
9165 for the first time on appeal.

OUR RULING
We find the instant appeal meritorious.

Accused-appellant is estopped from questioning the legality of his arrest.

Accused-appellant was arrested without a warrant. Section 5, Rule 113 of the Revised Rules of Criminal
Procedure, lays down the basic rules on lawful warrantless arrests either by a peace officer or a private
person, as follows:

Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a
warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it;
and
 (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.

The circumstances that transpired between accused-appellant and the arresting officer show none of
the above that would make the warrantless arrest lawful. Nevertheless, records reveal that accused-
appellant never objected to the irregularity of his arrest before his arraignment. He pleaded not guilty
upon arraignment. He actively participated in the trial of the case. Thus, he is considered as one who
had properly and voluntarily submitted himself to the jurisdiction of the trial court and waived his right
to question the validity of his arrest.17

The warrantless search conducted is not among those allowed by law.

A waiver of an illegal arrest, however, is not a waiver of an illegal search. 18 Records have established
that both the arrest and the search were made without a warrant. While the accused has already
waived his right to contest the legality of his arrest, he is not deemed to have equally waived his right
to contest the legality of the search.

Jurisprudence is replete with pronouncements on when a warrantless search can be

conducted.1âwphi1 These searches include: (1) search of a moving vehicle; (2) seizure in plain view; (3)
customs search; (4) waiver or consented search; (5) stop-and-frisk situation; (6) search incidental to a
lawful arrest and (7) exigent and emergency circumstance.19

The search made was not among the enumerated instances. Certainly, it was not of a moving vehicle, a
customs search, or a search incidental to a lawful arrest. There could not have been a seizure in plain
view as the seized item was allegedly found inside the left pocket of accused-appellant’s pants. Neither
was it a stop-and-frisk situation. While thistype may seemingly fall under the consented search
exception, we reiterate that "[c]onsent to a search is not to be lightly inferred, but shown by clear and
convincing evidence."20

Consent must also be voluntary inorder to validate an otherwise illegal search; that is, the consent
mustbe unequivocal, specific, intelligently given, and uncontaminated by any duress or coercion. 21 In
this case, petitioner was merely "ordered" to take out the contents of his pocket. The testimony of the
police officer on the matter is clear:

Q: And what did you do when you frisked a small plastic sachet?

A: When I felt something inside his pocket, I ordered him to bring out the thing which I felt.

Q. : And what did Danilo Villanueva do when you instructed him to bring out the contents of his
pocket?

A: He took out the contents of his pocket and I saw the plastic containing shabu. 22

The evidence obtained is not admissible.

Having been obtained through an unlawful search, the seized item is thus inadmissible in evidence
against accused-appellant. Obviously, this is an instance of seizure of the "fruit of the poisonous tree."
Hence, the confiscated item is inadmissible in evidence consonant with Article III, Section 3(2) of the
1987 Constitution: "Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding."23 Without the seized item, therefore, the conviction
of accused appellant cannot be sustained. This being the case, we see no more reason to discuss the
alleged lapses of the officers in the handling of the confiscated drug.

As a final word, we reiterate that "[ w ]hile this Court appreciates and encourages the efforts of law
enforcers to uphold the law and to preserve the peace and security of society, we nevertheless
admonish them to act with · deliberate care and within the parameters set by the Constitution and the
law. Truly, the end never justifies the means."24

WHEREFORE, premises considered, the assailed Decision dated 4 May 2011 and Resolution dated 18
October 2011 issued by the Fourteenth Division of the Court of Appeals in CA-G.R. C.R. No. 32582 are
SET ASIDE. Petitioner is hereby ACQUITTED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
[G.R. No. 190889 : January 10, 2011]
ELENITA C. FAJARDO, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.
DECISION

NACHURA, J.:

At bar is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking the reversal of
the February 10, 2009 Decision[1] of the Court of Appeals (CA), which affirmed with modification the
August 29, 2006 decision[2] of the Regional Trial Court (RTC), Branch 5, Kalibo, Aklan, finding petitioner
guilty of violating Presidential Decree (P.D.) No. 1866, as amended.cralaw

The facts:

Petitioner, Elenita Fajardo, and one Zaldy Valerio (Valerio) were charged with violation of P.D. No.
1866, as amended, before the RTC, Branch 5, Kalibo, Aklan, committed as follows:

That on or about the 28th day of August, 2002, in the morning, in Barangay Andagao, Municipality of
Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and mutually helping one another, without
authority of law, permit or license, did then and there, knowingly, willfully, unlawfully and feloniously
have in their possession, custody and control two (2) receivers of caliber .45 pistol, [M]odel [No.]
M1911A1 US with SN 763025 and Model [No.] M1911A1 US with defaced serial number, two (2)
pieces short magazine of M16 Armalite rifle, thirty-five (35) pieces live M16 ammunition 5.56 caliber
and fourteen (14) pieces live caliber .45 ammunition, which items were confiscated and recovered
from their possession during a search conducted by members of the Provincial Intelligence Special
Operation Group, Aklan Police Provincial Office, Kalibo, Aklan, by virtue of Search Warrant No. 01 (9) 03
issued by OIC Executive Judge Dean Telan of the Regional Trial Court of Aklan. [3]

When arraigned on March 25, 2004, both pleaded not guilty to the offense charged. [4] During pre-trial,
they agreed to the following stipulation of facts:

a. The search warrant subject of this case exists;

b. Accused Elenita Fajardo is the same person subject of the search warrant in this case
who is a resident of Sampaguita Road, Park Homes, Andagao, Kalibo, Aklan;
c. Accused Zaldy Valerio was in the house of Elenita Fajardo in the evening of August
27, 2002 but does not live therein;
d. Both accused were not duly licensed firearm holders;
e. The search warrant was served in the house of accused Elenita Fajardo in the
morning of August 28, 2002; and
f. The accused Elenita Fajardo and Valerio were not arrested immediately upon the
arrival of the military personnel despite the fact that the latter allegedly saw them in
possession of a firearm in the evening of August 27, 2002.[5]

As culled from the similar factual findings of the RTC and the CA,[6] these are the chain of events that
led to the filing of the information:
In the evening of August 27, 2002, members of the Provincial Intelligence Special Operations Group
(PISOG) were instructed by Provincial Director Police Superintendent Edgardo Mendoza (P/Supt.
Mendoza) to respond to the complaint of concerned citizens residing on Ilang-Ilang and Sampaguita
Roads, Park Homes III Subdivision, Barangay Andagao, Kalibo, Aklan, that armed men drinking liquor at
the residence of petitioner were indiscriminately firing guns.

Along with the members of the Aklan Police Provincial Office, the elements of the PISOG proceeded to
the area. Upon arrival thereat, they noticed that several persons scampered and ran in different
directions. The responding team saw Valerio holding two .45 caliber pistols. He fired shots at the
policemen before entering the house of petitioner.

Petitioner was seen tucking a .45 caliber handgun between her waist and the waistband of her shorts,
after which, she entered the house and locked the main door.

To prevent any violent commotion, the policemen desisted from entering petitioner's house but, in
order to deter Valerio from evading apprehension, they cordoned the perimeter of the house as they
waited for further instructions from P/Supt. Mendoza. A few minutes later, petitioner went out of the
house and negotiated for the pull-out of the police troops. No agreement materialized.

At around 2:00 a.m. and 4:00 a.m. of August 28, 2002, Senior Police Officer 2 Clemencio Nava (SPO2
Nava), who was posted at the back portion of the house, saw Valerio emerge twice on top of the house
and throw something. The discarded objects landed near the wall of petitioner's house and inside the
compound of a neighboring residence. SPO2 Nava, together with SPO1 Teodoro Neron and Jerome T.
Vega (Vega), radio announcer/reporter of RMN DYKR, as witness, recovered the discarded objects,
which turned out to be two (2) receivers of .45 caliber pistol, model no. M1911A1 US, with serial
number (SN) 763025, and model no. M1911A1 US, with a defaced serial number. The recovered items
were then surrendered to SPO1 Nathaniel A. Tan (SPO1 Tan), Group Investigator, who utilized them in
applying for and obtaining a search warrant.

The warrant was served on petitioner at 9:30 a.m. Together with

a barangay captain, barangay kagawad, and members of the media, as witnesses, the police team
proceeded to search petitioner's house.  The team found and was able to confiscate the following:

1. Two (2) pieces of Short Magazine of M16 Armalite Rifle;

2. Thirty five (35) pieces  of live M16 ammos 5.56 Caliber; and
3. Fourteen (14) pieces of live ammos of Caliber 45 pistol.

Since petitioner and Valerio failed to present any documents showing their authority to possess the
confiscated firearms and the two recovered receivers, a criminal information for violation of P.D. No.
1866, as amended by Republic Act (R.A.) No. 8294, was filed against them.

For their exoneration, petitioner and Valerio argued that the issuance of the search warrant was
defective because the allegation contained in the application filed and signed by SPO1 Tan was not
based on his personal knowledge. They quoted this pertinent portion of the application:

That this application was founded on confidential information received by the Provincial Director,
Police Supt. Edgardo Mendoza.[7]

They further asserted that the execution of the search warrant was infirm since petitioner, who was
inside the house at the time of the search, was not asked to accompany the policemen as they
explored the place, but was instead ordered to remain in the living room (sala).

Petitioner disowned the confiscated items. She refused to sign the inventory/receipt prepared by the
raiding team, because the items allegedly belonged to her brother, Benito Fajardo, a staff sergeant of
the Philippine Army.

Petitioner denied that she had a .45 caliber pistol tucked in her waistband when the raiding team
arrived. She averred that such situation was implausible because she was wearing garterized shorts
and a spaghetti-strapped hanging blouse.[8]

Ruling of the RTC

The RTC rejected the defenses advanced by accused, holding that the same were already denied in the
Orders dated December 31, 2002 and April 20, 2005, respectively denying the Motion to Quash Search
Warrant and Demurrer to Evidence. The said Orders were not appealed and have thus attained finality.
The RTC also ruled that petitioner and Valerio were estopped from assailing the legality of their arrest
since they participated in the trial by presenting evidence for their defense. Likewise, by applying for
bail, they have effectively waived such irregularities and defects.

In finding the accused liable for illegal possession of firearms, the RTC explained:

Zaldy Valerio, the bodyguard of Elenita Fajardo, is a former soldier, having served with the Philippine
Army prior to his separation from his service for going on absence without leave (AWOL). With his
military background, it is safe to conclude that Zaldy Valerio is familiar with and knowledgeable about
different types of firearms and ammunitions. As a former soldier, undoubtedly, he can assemble and
disassemble firearms.

It must not be de-emphasize[d] that the residence of Elenita Fajardo is definitely not an armory or
arsenal which are the usual depositories for firearms, explosives and ammunition. Granting arguendo
that those firearms and ammunition were left behind by Benito Fajardo, a member of the Philippine
army, the fact remains that it is a government property. If it is so, the residence of Elenita Fajardo is
not the proper place to store those items. The logical explanation is that those items are stolen
property.

xxxx

The rule is that ownership is not an essential element of illegal possession of firearms and ammunition.
What the law requires is merely possession which includes not only actual physical possession but also
constructive possession or the subjection of the thing to one's control and management. This has to be
so if the manifest intent of the law is to be effective. The same evils, the same perils to public security,
which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a
borrower. To accomplish the object of this law[,] the proprietary concept of the possession can have
no bearing whatsoever.

xxxx

x x x. [I]n order that one may be found guilty of a violation of the decree, it is sufficient that the
accused had no authority or license to possess a firearm, and that he intended to possess the same,
even if such possession was made in good faith and without criminal intent.

xxxx

To convict an accused for illegal possession of firearms and explosive under P.D. 1866, as amended,
two (2) essential elements must be indubitably established, viz.: (a) the existence of the subject firearm
ammunition or explosive which may be proved by the presentation of the subject firearm or explosive
or by the testimony of witnesses who saw accused in possession of the same, and (b) the negative fact
that the accused has no license or permit to own or possess the firearm, ammunition or explosive
which fact may be established by the testimony or certification of a representative of the PNP Firearms
and Explosives Unit that the accused has no license or permit to possess the subject firearm or
explosive (Exhibit G).
The judicial admission of the accused that they do not have permit or license on the two (2) receivers
of caliber .45 pistol, model M1911A1 US with SN 763025 and model M1911A1 of M16 Armalite rifle,
thirty-five (35) pieces live M16 ammunition, 5.56 caliber and fourteen (14) pieces live caliber .45
ammunition confiscated and recovered from their possession during the search conducted by
members of the PISOG, Aklan Police Provincial Office by virtue of Search Warrant No. 01 (9) 03 fall
under Section 4 of Rule 129 of the Revised Rules of Court. [9]

Consequently, petitioner and Valerio were convicted of illegal possession of firearms and
explosives, punishable under paragraph 2, Section 1 of P.D. No. 1866, as amended by R.A. No. 8294,
which provides:
The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00)
shall be imposed if the firearm is classified as high powered firearm which includes those with bores
bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser
calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum
and other firearms with firing capability of full automatic and by burst of two or three: Provided,
however, That no other crime was committed by the person arrested.

Both were sentenced to suffer the penalty of imprisonment of six (6) years and one (1) day to twelve
(12) years of prision mayor, and to pay a fine of P30,000.00.

On September 1, 2006, only petitioner filed a Motion for Reconsideration, which was denied in an
Order dated October 25, 2006. Petitioner then filed a Notice of Appeal with the CA.

Ruling of the CA

The CA concurred with the factual findings of the RTC, but disagreed with its conclusions of law, and
held that the search warrant was void based on the following observations:

[A]t the time of applying for a search warrant, SPO1 Nathaniel A. Tan did not have personal knowledge
of the fact that appellants had no license to possess firearms as required by law. For one, he failed to
make a categorical statement on that point during the application. Also, he failed to attach to the
application a certification to that effect from the Firearms and Explosives Office of the Philippine
National Police. x x x, this certification is the best evidence obtainable to prove that appellant indeed
has no license or permit to possess a firearm. There was also no explanation given why said
certification was not presented, or even deemed no longer necessary, during the application for the
warrant. Such vital evidence was simply ignored.[10]

Resultantly, all firearms and explosives seized inside petitioner's residence were declared inadmissible
in evidence. However, the 2 receivers recovered by the policemen outside the house of petitioner
before the warrant was served were admitted as evidence, pursuant to the plain view doctrine.

Accordingly, petitioner and Valerio were convicted of illegal possession of a part of a firearm,
punishable under paragraph 1, Section 1 of P.D. No. 1866, as amended. They were sentenced to an
indeterminate penalty of three (3) years, six (6) months, and twenty-one (21) days to five (5) years,
four (4) months, and twenty (20) days of prision correccional, and ordered to pay a P20,000.00 fine.

Petitioner moved for reconsideration,[11] but the motion was denied in the CA Resolution dated
December 3, 2009.[12] Hence, the present recourse.

At the onset, it must be emphasized that the information filed against petitioner and Valerio charged
duplicitous offenses contrary to Section 13 of Rule 110 of the Rules of Criminal Procedure, viz.:

Sec. 13.  Duplicity of offense. - A complaint or information must charge but one offense, except only in
those cases in which existing laws prescribe a single punishment for various offenses.

A reading of the information clearly shows that possession of the enumerated articles confiscated from
Valerio and petitioner are punishable under separate provisions of Section 1, P.D. No. 1866, as
amended by R.A. No. 8294.[13] Illegal possession of two (2) pieces of short magazine of M16 Armalite
rifle, thirty-five (35) pieces of live M16 ammunition 5.56 caliber, and fourteen (14) pieces of live
caliber .45 ammunition is punishable under paragraph 2 of the said section, viz.:

The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00)
shall be imposed if the firearm is classified as high powered firearm which includes those with bores
bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, 41, .44, .45 and also lesser
calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum
and other firearms with firing capability of full automatic and by burst of two or three: Provided,
however, That no other crime was committed by the person arrested. [14]

On the other hand, illegal possession of the two (2) receivers of a .45 caliber pistol, model no.
M1911A1 US, with SN 763025, and Model M1911A1 US, with a defaced serial number, is penalized
under paragraph 1, which states:

Sec. 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms or ammunition or

instruments used or intended to be used in the manufacture of firearms or ammunition. - The penalty of
prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos
(P15,000.00) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of
similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to
be used in the manufacture of any firearm or ammunition: Provided, That no other crime was
committed.[15]
This is the necessary consequence of the amendment introduced by R.A. No. 8294, which categorized
the kinds of firearms proscribed from being possessed without a license, according to their firing power
and caliber. R.A. No. 8294 likewise mandated different penalties for illegal possession of firearm
according to the above classification, unlike in the old P.D. No. 1866 which set a standard penalty for
the illegal possession of any kind of firearm. Section 1 of the old law reads:

Section 1.  Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms of
Ammunition. - The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be
imposed upon any person who shall unlawfully manufacture, deal in, acquire dispose, or possess any
firearms, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in
the manufacture of any firearm or ammunition.  (Emphasis ours.)

By virtue of such changes, an information for illegal possession of firearm should now particularly refer
to the paragraph of Section 1 under which the seized firearm is classified, and should there be
numerous guns confiscated, each must be sorted and then grouped according to the categories stated
in Section 1 of R.A. No. 8294, amending P.D. No. 1866. It will no longer suffice to lump all of the seized
firearms in one information, and   state Section 1, P.D. No. 1866 as the violated provision, as in the
instant case,[16] because different penalties are imposed by the law, depending on the caliber of the
weapon. To do so would result in duplicitous charges.

Ordinarily, an information that charges multiple offenses merits a quashal, but petitioner and Valerio
failed to raise this issue during arraignment. Their failure constitutes a waiver, and they could be
convicted of as many offenses as there were charged in the information. [17] This accords propriety to
the diverse convictions handed down by the courts a quo.
Further, the charge of illegal possession of firearms and ammunition under paragraph 2, Section 1 of
P.D. No. 1866, as amended by R.A. No. 8294, including the validity of the search warrant that led to
their confiscation, is now beyond the province of our review since, by virtue of the CA's Decision,
petitioner and Valerio have been effectively acquitted from the said charges. The present review is
consequently only with regard to the conviction for illegal possession of a part of a firearm.

The Issues

Petitioner insists on an acquittal and avers that the discovery of the two (2) receivers does not come
within the purview of the plain view doctrine. She argues that no valid intrusion was attendant and
that no evidence was adduced to prove that she was with Valerio when he threw the receivers.
Likewise absent is a positive showing that any of the two receivers recovered by the policemen
matched the .45 caliber pistol allegedly seen tucked in the waistband of her shorts when the police
elements arrived. Neither is there any proof that petitioner had knowledge of or consented to the
alleged throwing of the receivers.
Our Ruling

We find merit in the petition.

First, we rule on the admissibility of the receivers.  We hold that the receivers were seized in plain view,
hence, admissible.

No less than our Constitution recognizes the right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures. This right is encapsulated in Article III,
Section 2, of the Constitution, which states:

Sec.  2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

Complementing this provision is the exclusionary rule embodied in Section 3(2) of the same article -

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.

There are, however, several well-recognized exceptions to the foregoing rule.  Thus, evidence obtained
through a warrantless search and seizure may be admissible under any of the following circumstances:
(1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of
custom laws; (4) seizure of evidence in plain view; and (5) when the accused himself waives his right
against unreasonable searches and seizures.[18]

Under the plain view doctrine, objects falling in the "plain view" of an officer, who has a right to be in
the position to have that view, are subject to seizure and may be presented as evidence. [19] It applies
when the following requisites concur: (a) the law enforcement officer in search of the evidence has a
prior justification for an intrusion or is in a position from which he can view a particular area; (b) the
discovery of the evidence in plain view is inadvertent; and (c) it is immediately apparent to the officer
that the item he observes may be evidence of a crime, contraband, or otherwise subject to seizure. The
law enforcement officer must lawfully make an initial intrusion or properly be in a position from which
he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a
piece of evidence incriminating the accused. The object must be open to eye and hand, and its
discovery inadvertent.[20]

Tested against these standards, we find that the seizure of the two receivers of the .45 caliber pistol
outside petitioner's house falls within the purview of the plain view doctrine.
First, the presence of SPO2 Nava at the back of the house and of the other law enforcers around the
premises was justified by the fact that petitioner and Valerio were earlier seen respectively holding .45
caliber pistols before they ran inside the structure and sought refuge. The attendant circumstances and
the evasive actions of petitioner and Valerio when the law enforcers arrived engendered a reasonable
ground for the latter to believe that a crime was being committed. There was thus sufficient probable
cause for the policemen to cordon off the house as they waited for daybreak to apply for a search
warrant.

Secondly, from where he was situated, SPO2 Nava clearly saw, on two different instances, Valerio
emerge on top of the subject dwelling and throw suspicious objects. Lastly, considering the earlier
sighting of Valerio holding a pistol, SPO2 Nava had reasonable ground to believe that the things thrown
might be contraband items, or evidence of the offense they were then suspected of committing.
Indeed, when subsequently recovered, they turned out to be two (2) receivers of .45 caliber pistol.

The pertinent portions of SPO2 Nava's testimony are elucidating:

Q     When you arrived in that place, you saw policemen?

A     Yes, sir.
Q     What were they doing?
A     They were cordoning the house.
Q You said that you asked your assistant team leader Deluso about that incident. What did he tell you?
A     Deluso told me that a person ran inside the house carrying with him a gun.
Q     And this house you are referring to is the house which you mentioned is the police officers were
surrounding?
A     Yes, sir.
Q     Now, how  long did you stay in that place, Mr. Witness?
A     I stayed there when I arrived at past 10:00 o'clock up to 12:00 o'clock the following day.
Q     At about 2:00 o'clock in the early morning of August 28, 2002, can you recall where were you?
A     Yes, sir.
Q     Where were you?
A     I was at the back of the house that is being cordoned by the police.
Q     While you were at the back of this house, do you recall any unusual incident?
A Yes, sir.
Q     Can you tell the Honorable Court what was that incident?
A     Yes, sir. A person went out at the top of the house and threw something.
Q     And did you see the person who threw something out of this house?
A     Yes, sir.
xxxx
Q     Can you tell the Honorable Court who was that person who threw that something outside the
house?
A     It was Zaldy Valerio.
COURT:     (to witness)
Q     Before the incident, you know this person Zaldy Valerio?
A     Yes, sir.
Q     Why do you know him?
A     Because we were formerly members of the Armed Forces of the Philippines.
xxxx
PROS. PERALTA:
Q     When you saw something thrown out at the top of the house, did you do something if any?
A     I shouted to seek cover.
xxxx
Q     So, what else did you do if any after you shouted, "take cover?"
A     I took hold of a flashlight after five minutes and focused the beam of the flashlight on the place
where something was thrown.
Q     What did you see if any?
A     I saw there the lower [part] of the receiver of cal. 45.
xxxx
Q     Mr. Witness, at around 4:00 o'clock that early morning of August 28, 2002, do you recall another
unusual incident?
A     Yes, sir.
Q     And can you tell us what was that incident?
A     I saw a person throwing something there and the one that was thrown fell on top of the roof of
another house.
Q     And you saw that person who again threw something from the rooftop of the house?
A     Yes, sir.
Q     Did you recognize him?
A     Yes, sir.
Q     Who was that person?
A     Zaldy Valerio again.
xxxx
Q     Where were you when you saw this Zaldy Valerio thr[o]w something out of the house?
A     I was on the road in front of the house.
Q     Where was Zaldy Valerio when you saw him thr[o]w something out of the house?
A     He was on top of the house.
xxxx
Q     Later on, were you able to know what was that something thrown out?
A     Yes, sir.
Q     What was that?
A     Another lower receiver of a cal. 45.
xxxx
Q     And what did he tell you?
A     It [was] on the wall of another house and it [could] be seen right away.
xxxx
Q     What did you do if any?
A     We waited for the owner of the house to wake up.
xxxx
Q     Who opened the fence for you?
A     It was a lady who is the owner of the house.
Q     When you entered the premises of the house of the lady, what did you find?
A     We saw the lower receiver of this .45 cal. (sic) [21]

The ensuing recovery of the receivers may have been deliberate; nonetheless, their initial discovery
was indubitably inadvertent. It is not crucial that at initial sighting the seized contraband be identified
and known to be so. The law merely requires that the law enforcer observes that the seized
item may be evidence of a crime, contraband, or otherwise subject to seizure.

Hence, as correctly declared by the CA, the two receivers were admissible as evidence. The liability for
their possession, however, should fall only on Valerio and not on petitioner.

The foregoing disquisition notwithstanding, we find that petitioner is not liable for illegal possession of
part of a firearm.

In dissecting how and when liability for illegal possession of firearms attaches, the following
disquisitions in People v. De Gracia[22] are instructive:

The rule is that ownership is not an essential element of illegal possession of firearms and ammunition.
What the law requires is merely possession which includes not only actual physical possession but also
constructive possession or the subjection of the thing to one's control and management. This has to be
so if the manifest intent of the law is to be effective. The same evils, the same perils to public security,
which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a
borrower. To accomplish the object of this law the proprietary concept of the possession can have no
bearing whatsoever.
But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful
possession of firearms or must there be an intent to possess to constitute a violation of the law? This
query assumes significance since the offense of illegal possession of firearms is a malum
prohibitum punished by a special law, in which case good faith and absence of criminal intent are not
valid defenses.

When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is
sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to
commit the crime and intent to perpetrate the act must be distinguished. A person may not have
consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the
very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal
intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely
and consciously.

In the present case, a distinction should be made between criminal intent and intent to possess. While
mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a
firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of
the accused. Such intent to possess is, however, without regard to any other criminal or felonious
intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to
the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not
important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be
found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to
possess a firearm, and that he intended to possess the same, even if such possession was made in good
faith and without criminal intent.
Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot
be considered a violation of a statute prohibiting the possession of this kind of weapon, such as
Presidential Decree No. 1866. Thus, although there is physical or constructive possession, for as long as
the animus possidendi is absent, there is no offense committed.[23]

Certainly, illegal possession of firearms, or, in this case, part of a firearm, is committed when the holder
thereof:

(1) possesses a firearm or a part thereof

(2) lacks the authority or license to possess the firearm.[24]

We find that petitioner was neither in physical nor constructive possession of the subject receivers. The
testimony of SPO2 Nava clearly bared that he only saw Valerio on top of the house when the receivers
were thrown. None of the witnesses saw petitioner holding the receivers, before or during their
disposal.

At the very least, petitioner's possession of the receivers was merely incidental because Valerio, the
one in actual physical possession, was seen at the rooftop of petitioner's house. Absent any evidence
pointing to petitioner's participation, knowledge or consent in Valerio's actions, she cannot be held
liable for illegal possession of the receivers.

Petitioner's apparent liability for illegal possession of part of a firearm can only proceed from the
assumption that one of the thrown receivers matches the gun seen tucked in the waistband of her
shorts earlier that night. Unfortunately, the prosecution failed to convert such assumption into
concrete evidence.

Mere speculations and probabilities cannot substitute for proof required to establish the guilt of an
accused beyond reasonable doubt.  The rule is the same whether the offenses are punishable under
the Revised Penal Code, which are mala in se, or in crimes, which are malum prohibitum by virtue of
special law.[25] The quantum of proof required by law was not adequately met in this case in so far as
petitioner is concerned.
The gun allegedly seen tucked in petitioner's waistband was not identified with sufficient particularity;
as such, it is impossible to match the same with any of the seized receivers.  Moreover, SPO1 Tan
categorically stated that he saw Valerio holding two guns when he and the rest of the PISOG arrived in
petitioner's house. It is not unlikely then that the receivers later on discarded were components of the
two (2) pistols seen with Valerio.

These findings also debunk the allegation in the information that petitioner conspired with Valerio in
committing illegal possession of part of a firearm. There is no evidence indubitably proving that
petitioner participated in the decision to commit the criminal act committed by Valerio.

Hence, this Court is constrained to acquit petitioner on the ground of reasonable doubt. The
constitutional presumption of innocence in her favor was not adequately overcome by the evidence
adduced by the prosecution.

The CA correctly convicted Valerio with illegal possession of part of a firearm.

In illegal possession of a firearm, two (2) things must be shown to exist: (a) the existence of the subject
firearm; and (b) the fact that the accused who possessed the same does not have the corresponding
license for it.[26]

By analogy then, a successful conviction for illegal possession of part of a firearm must yield these
requisites:

(a) the existence of the part of the firearm; and

(b) the accused who possessed the same does not have the license for the firearm to which the seized
part/component corresponds.

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

elements of the crime. The subject receivers - one with the markings "United States Property" and the
other bearing Serial No. 763025 - were duly presented to the court as Exhibits E and E-1, respectively. 
They were also identified by SPO2 Nava as the firearm parts he retrieved af ter Valerio discarded them.
[27]
 His testimony was corroborated by DYKR radio announcer Vega, who witnessed the recovery of the
receivers.[28]

Anent the lack of authority, SPO1 Tan testified that, upon verification, it was ascertained that Valerio is
not a duly licensed/registered firearm holder of any type, kind, or caliber of firearms. [29] To substantiate
his statement, he submitted a certification[30] to that effect and identified the same in court.[31] The
testimony of SPO1 Tan, or the certification, would suffice to prove beyond reasonable doubt the
second element.[32]cralaw

WHEREFORE, premises considered, the February 10, 2009 Decision of the Court of Appeals is
hereby REVERSED with respect to petitioner Elenita Fajardo y Castro, who is hereby ACQUITTED on the
ground that her guilt was not proved beyond reasonable doubt.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

 G.R. No. 125299 January 22, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FLORENCIO DORIA y BOLADO and VIOLETA GADDAO y CATAMA @ "NENETH," accused-appellants.

PUNO, J.:
On December 7, 1995, accused-appellants Florencio Doria y Bolado and Violeta Gaddao y Catama @
"Neneth" were charged with violation of Section 4, in relation to Section 21 of the Dangerous Drugs Act
of 1972. 1 The information reads:

That on or about the 5th day of December, 1995 in the City of Mandaluyong,
Philippines, a place within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping and aiding one another and
without having been authorized by law, did, then and there willfully, unlawfully and
feloniously sell, administer, deliver and give away to another eleven (11) plastic bags of
suspected marijuana fruiting tops weighing 7,641.08 grams in violation of the above-
cited law.

CONTRARY TO LAW.2

The prosecution contends the offense was committed as follows: In November 1995, members of the
North Metropolitan District, Philippine National Police (PNP) Narcotics Command (Narcom), received
information from two (2) civilian informants (CI) that one "Jun" was engaged in illegal drug activities in
Mandaluyong City. The Narcom agents decided to entrap and arrest "Jun" in a buy-bust operation. As
arranged by one of the CI's, a meeting between the Narcom agents and "Jun" was scheduled on
December 5, 1995 at E. Jacinto Street in Mandaluyong City.

On December 5, 1995, at 6:00 in the morning, the CI went to the PNP Headquarters at EDSA,
Kamuning, Quezon City to prepare for the buy-bust operation. The Narcom agents formed Team Alpha
composed of P/Insp. Nolasco Cortes as team leader and PO3 Celso Manlangit, SPO1 Edmund Badua
and four (4) other policemen as members. P/Insp. Cortes designated P03 Manlangit as the poseur-
buyer and SPO1 Badua as his back-up, and the rest of the team as perimeter security. Superintendent
Pedro Alcantara, Chief of the North Metropolitan District PNP Narcom, gave the team P2, 000. 00 to
cover operational expenses. From this sum, PO3 Manlangit set aside P1,600.00 — a one thousand peso
bill and six (6) one hundred peso bills 3 — as money for the buy-bust operation. The market price of
one kilo of marijuana was then P1,600.00. P03 Manlangit marked the bills with his initials and listed
their serial numbers in the police blotter.4 The team rode in two cars and headed for the target area.

At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3 Manlangit as interested in
buying one (1) kilo of marijuana. P03 Manlangit handed "Jun" the marked bills worth P1,600.00. "Jun"
instructed P03 Manlangit to wait for him at the corner of Shaw Boulevard and Jacinto Street while he
got the marijuana from his associate.5 An hour later, "Jun" appeared at the agreed place where P03
Manlangit, the CI and the rest of the team were waiting. "Jun" took out from his bag an object
wrapped in plastic and gave it to P03 Manlangit. P03 Manlangit forthwith arrested "Jun" as SPO1
Badua rushed to help in the arrest. They frisked "Jun" but did not find the marked bills on him. Upon
inquiry, "Jun" revealed that he left the money at the house of his associate named "Neneth. 6 "Jun" led
the police team to "Neneth's" house nearby at Daang Bakal.

The team found the door of "Neneth's" house open and a woman inside. "Jun" identified the woman as
his associate.7 SPO1 Badua asked "Neneth" about the P1,600.00 as PO3 Manlangit looked over
"Neneth's" house. Standing by the door, PO3 Manlangit noticed a carton box under the dining table.
He saw that one of the box's flaps was open and inside the box was something wrapped in plastic. The
plastic wrapper and its contents appeared similar to the marijuana earlier "sold" to him by "Jun." His
suspicion aroused, PO3 Manlangit entered "Neneth's" house and took hold of the box. He peeked
inside the box and found that it contained ten (10) bricks of what appeared to be dried marijuana
leaves.

Simultaneous with the box's discovery, SPO1 Badua recovered the marked bills from "Neneth." 8 The
policemen arrested "Neneth." They took "Neneth" and "Jun," together with the box, its contents and
the marked bills and turned them over to the investigator at headquarters. It was only then that the
police learned that "Jun" is Florencio Doria y Bolado while "Neneth" is Violeta Gaddao y Catama. The
one (1) brick of dried marijuana leaves recovered from "Jun" plus the ten (10) bricks recovered from
"Neneth's" house were examined at the PNP Crime Laboratory. 9 The bricks, eleven (11) in all, were
found to be dried marijuana fruiting tops of various weights totalling 7,641.08 grams. 10

The prosecution story was denied by accused-appellants Florencio Doria and Violeta Gaddao. Florencio
Doria, a 33-year old carpenter, testified that on December 5, 1995, at 7:00 in the morning, he was at
the gate of his house reading a tabloid newspaper. Two men appeared and asked him if he knew a
certain "Totoy." There were many "Totoys" in their area and as the men questioning him were
strangers, accused-appellant denied knowing any "Totoy." The men took accused-appellant inside his
house and accused him of being a pusher in their community. When accused-appellant denied the
charge, the men led him to their car outside and ordered him to point out the house of "Totoy." For
five (5) minutes, accused-appellant stayed in the car. Thereafter, he gave in and took them to "Totoy's"
house.

Doria knocked on the door of "Totoy's" house but no one answered. One of the men, later identified as
P03 Manlangit, pushed open the door and he and his companions entered and looked around the
house for about three minutes. Accused-appellant Doria was left standing at the door. The policemen
came out of the house and they saw Violeta Gaddao carrying water from the well. He asked Violeta
where "Totoy" was but she replied he was not there. Curious onlookers and kibitzers were, by that
time, surrounding them. When Violeta entered her house, three men were already inside. Accused-
appellant Doria, then still at the door, overheard one of the men say that they found a carton box.
Turning towards them, Doria saw box on top of the table. The box was open and had something inside.
P03 Manlangit ordered him and Violeta to go outside the house and board the car. They were brought
to police headquarters where they were investigated.

Accused-appellant Doria further declared that his co-accused, Violeta Gaddao, is the wife of his
acquaintance, Totoy Gaddao. He said that he and Totoy Gaddao sometimes drank together at the
neighborhood store. This closeness, however, did not extend to Violeta, Totoy's wife. 11

Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that on December 5, 1995, she
was at her house at Daang Bakal, Mandaluyong City where she lived with her husband and five (5)
children, namely, Arvy, aged 10, Arjay, aged 8, the twins Raymond and Raynan, aged 5, and Jason, aged
3. That day, accused-appellant woke up at 5:30 in the morning and bought pan de sal for her children's
breakfast. Her husband, Totoy, a housepainter, had left for Pangasinan five days earlier. She woke her
children and bathed them. Her eldest son, Arvy, left for school at 6:45 A.M. Ten minutes later, she
carried her youngest son, Jayson, and accompanied Arjay to school. She left the twins at home leaving
the door open. After seeing Arjay off, she and Jayson remained standing in front of the school soaking
in the sun for about thirty minutes. Then they headed for home. Along the way, they passed the
artesian well to fetch water. She was pumping water when a man clad in short pants and denim jacket
suddenly appeared and grabbed her left wrist. The man pulled her and took her to her house. She
found out later that the man was P03 Manlangit.
Inside her house were her co-accused Doria and three (3) other persons. They asked her about a box
on top of the table. This was the first time she saw the box. The box was closed and tied with a piece of
green straw. The men opened the box and showed her its contents. She said she did not know anything
about the box and its contents.

Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio Doria was a friend of her
husband, and that her husband never returned to their house after he left for Pangasinan. She denied
the charge against her and Doria and the allegation that marked bills were found in her person. 12

After trial, the Regional Trial Court, Branch 156, Pasig City convicted the accused-appellants. The trial
court found the existence of an "organized/syndicated crime group" and sentenced both accused-
appellants to death and pay a fine of P500,000.00 each. The dispositive portion of the decision reads as
follows:

WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA
GADDAO y CATAMA @ "Neneth" having been established beyond reasonable doubt,
they are both
CONVICTED of the present charge against them.

According to the amendatory provisions of Sec. 13 of Republic Act No. 7659 which cover
violations of Sec. 4 of Republic Act No. 6425 and which was exhaustively discussed in
People v. Simon, 234 SCRA 555, the penalty imposable in this case is reclusion
perpetua to death and a fine ranging from five hundred thousand pesos to ten million
pesos. Taking into consideration, however, the provisions of Sec. 23, also of Republic Act
No. 7659 which explicitly state that:

The maximum penalty shall be imposed if the offense was committed by

any person who belongs to an organized/syndicated crime group.

An organized/syndicated crime group means a group of two or more

persons collaborating, confederating or mutually helping one another for
purposes of gain in the commission of any crime.

the Court is hereby constrained to sentence (hereby sentences) said FLORENCIO DORIA
y BOLADO @ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" to DEATH and to pay
a fine of Five Hundred Thousand Pesos (P500,000.00) each without subsidiary
imprisonment in case of insolvency and to pay the costs.

The confiscated marijuana bricks (7,641.08 grams) shall be turned over to the
Dangerous Drugs Board, NBI for destruction in accordance with law.

Let a Commitment Order be issued for the transfer of accused DORIA from the
Mandaluyong City Jail to the New Bilibid Prisons, Muntinlupa City and also for accused
GADDAO for her transfer to the Correctional Institute for Women, Mandaluyong City.

Let the entire records of this case be forwarded immediately to the Supreme Court for
mandatory review.

SO ORDERED. 13
Before this Court, accused-appellant Doria assigns two errors, thus:
I
THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE TESTIMONY OF THE
WITNESSES FOR THE PROSECUTION WHEN THEIR TESTIMONIES WERE SHOT WITH
DISCREPANCIES, INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE MARIJUANA
ALLEGEDLY TAKEN FROM APPELLANT WAS NOT POSITIVELY IDENTIFIED BY THE POSEUR-
BUYER.
II
THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE THE MARIJUANA
FRUITINGS FOUND INSIDE THE CARTON BOX AS THESE WERE OBTAINED THROUGH A
WARRANTLESS SEARCH AND DOES NOT COME WITHIN THE PLAIN VIEW DOCTRINE. 14
Accused-appellant Violeta Gaddao contends:
I
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY DESPITE THE INCREDIBILITY
OF THE POLICE VERSION OF THE MANNER THE ALLEGED BUY-BUST WAS CONDUCTED.
II
THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST MONEY CAME FROM ARE
INCONSISTENT WITH ONE ANOTHER AND ALSO REEKS WITH INCREDIBILITY.
III
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND SENTENCING HER TO
DEATH DESPITE THE MANIFESTLY IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS
OF THE POLICE AS TO HOW AND BY WHOM THE ALLEGED BUY-BUST MONEY WAS
RECOVERED FROM HER, WHICH IN CONSEQUENCE RESULTS IN THE EVIDENCE, OF
RETRIEVAL FROM HER OF THE SAME, NEBULOUS, AT BEST, NIL, AT WORST.
IV
THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF THE WARRANTLESS SEARCH
LEADING TO THE SEIZURE OF THE MARIJUANA ALLEGEDLY FOUND INSIDE THE HOUSE
OF ACCUSED-APPELLANT. 15

The assigned errors involve two principal issues: (1) the validity of the buy-bust operation in the
apprehension of accused-appellant Doria; and (2) the validity of the warrantless arrest of accused-
appellant Gaddao, the search of her person and house, and the admissibility of the pieces of evidence
obtained therefrom.

Accused-appellants were caught by the police in a buy-bust operation. A buy-bust operation is a form
of entrapment employed by peace officers as an effective way of apprehending a criminal in the act of
the commission of an offense.16 Entrapment has received judicial sanction when undertaken with due
regard to constitutional and legal safeguards.17

Entrapment was unknown in common law. It is a judicially created twentieth-century American

doctrine that evolved from the increasing use of informers and undercover agents in the detection of
crimes, particularly liquor and narcotics offenses.18 Entrapment sprouted from the doctrine of estoppel
and the public interest in the formulation and application of decent standards in the enforcement of
criminal law.19 It also took off from a spontaneous moral revulsion against using the powers of
government to beguile innocent but ductile persons into lapses that they might otherwise resist. 20

In the American jurisdiction, the term "entrapment" has a generally negative meaning because it is
understood as the inducement of one to commit a crime not contemplated by him, for the mere
purpose of instituting a criminal prosecution against him.21 The classic definition of entrapment is that
articulated by Justice Roberts in Sorrells v. United States,22 the first Supreme Court decision to
acknowledge the concept: "Entrapment is the conception and planning of an offense by an officer, and
his procurement of its commission by one who would not have perpetrated it except for the trickery,
percuasion or fraud of the officers."23 It consists of two (2) elements: (a) acts of percuasion, trickery, or
fraud carried out by law enforcement officers or the agents to induce a defendant to commit a crime;
and (b) the origin of the criminal design in the minds of the government officials rather than that of the
innocent defendant, such that the crime is the product of the creative activity of the law enforcement
officer.24

It is recognized that in every arrest, there is a certain amount of entrapment used to outwit the
persons violating or about to violate the law. Not every deception is forbidden. The type of entrapment
the law forbids is the inducing of another to violate the law, the "seduction" of an otherwise innocent
person into a criminal career.25 Where the criminal intent originates criminal in the mind of the
entrapping person and the accused is lured into the commission of the offense charged in order to
prosecute him, there is entrapment and no conviction may be had. 26 Where, however, the criminal
intent originates in the mind of the accused and the criminal offense is completed, the fact that a
person acting as a decoy for the state, or public officials furnished the accused an opportunity for
commission of the offense, or that the accused is aided in the commission of the crime in order to
secure the evidence necessary to prosecute him, there is no entrapment and the accused must be
convicted.27 The law tolerates the use of decoys and other artifices to catch a criminal.

Entrapment is recognized as a valid defense28 that can be raised by an accused and partakes of the
nature of a confession and avoidance.29 It is a positive defense. Initially, an accused has the burden of
providing sufficient evidence that the government induced him to commit the offense. Once
established, the burden shifts to the governmet to show otherwise.30 When entrapment is raised as a
defense, American federal courts and a majority of state courts use the "subjective" or "origin of
intent" test laid down in Sorrells v. United States 31 to determine whether entrapment actually
occurred. The focus of the inquiry is on the accused's predisposition to commit the offense charged, his
state of mind and inclination before his initial exposure to government agents. 32 All relevant facts such
as the accused's mental and character traits, his past offenses, activities, his eagerness in committing
the crime, his reputation, etc., are considered to assess his state of mind before the crime. 33 The
predisposition test emphasizes the accused's propensity to commit the offense rather than the officer's
misconduct 34 and reflects an attempt to draw a line between a "trap for the unwary innocent and the
trap for the unwary criminal."35 If the accused was found to have been ready and willing to commit the
offense at any favorable opportunity, the entrapment defense will fail even if a police agent used an
unduly persuasive inducement.36 Some states, however, have adopted the "objective" test. 37 This test
was first authoritatively laid down in the case of Grossman v. State 38 rendered by the Supreme Court
of Alaska. Several other states have subsequently adopted the test by judicial pronouncement or
legislation. Here, the court considers the nature of the police activity involved and the propriety of
police conduct.39 The inquiry is focused on the inducements used by government agents, on police
conduct, not on the accused and his predisposition to commit the crime. For the goal of the defense is
to deter unlawful police conduct.40 The test of entrapment is whether the conduct of the law
enforcement agent was likely to induce a normally law-abiding person, other than one who is ready
and willing, to commit the offense;41 for purposes of this test, it is presumed that a law-abiding person
would normally resist the temptation to commit a crime that is presented by the simple opportunity to
act unlawfully. 42 Official conduct that merely offers such an opportunity is permissible, but overbearing
conduct, such as badgering, cajoling or importuning,43 or appeals to sentiments such as pity, sympathy,
friendship or pleas of desperate illness, are not.44 Proponents of this test believe that courts must
refuse to convict an entrapped accused not because his conduct falls outside the legal norm but rather
because, even if his guilt has been established, the methods employed on behalf of the government to
bring about the crime "cannot be countenanced." To some extent, this reflects the notion that the
courts should not become tainted by condoning law enforcement improprieties. 45 Hence, the
transactions leading up to the offense, the interaction between the accused and law enforcement
officer and the accused's response to the officer's inducements, the gravity of the crime, and the
difficulty of detecting instances of its commission are considered in judging what the effect of the
officer's conduct would on a normal person.46

Both the "subjective" and "objective" approaches have been criticized and objected to. It is claimed
that the "subjective" test creates an "anything goes" rule, i.e, if the court determines that an accused
was predisposed to commit the crime charged, no level of police deceit, badgering or other unsavory
practices will be deemed impermissible.47 Delving into the accused's character and predisposition
obscures the more important task of judging police behavior and prejudices the accused more
generally. It ignores the possibility that no matter what his past crimes and general disposition were,
the accused might not have committed the particular crime unless confronted with inordinate
inducements.48 On the other extreme, the purely "objective" test eliminates entirely the need for
considering a particular accused's predisposition. His predisposition, at least if known by the police,
may have an important bearing upon the question of whether the conduct of the police and and their
agents was proper. 49 The undisputed fact that the accused was a dangerous and chronic offender or
that he was a shrewd and active member of a criminal syndicate at the time of his arrest is relegated to
irrelevancy.50

Objections to the two tests gave birth to hybrid approaches to entrapment. Some states in the United
States now combine both the "subjective" and "objective"51 In Cruz v. State,52 the Florida Supreme
Court declared that the permissibility of police conduct must first be determined. If this objective test
is satisfied, then the analysis turns to whether the accused was predisposed to commit the
crime.53 In Baca v. State,54 the New Mexico Supreme Court modified the state's entrapment analysis by
holding that "a criminal defendant may successfully assert a defense of entrapment, either by showing
lack of predisposition to commit the crime for which he is charged, or, that the police exceeded the
standards of proper investigation.55 The hybrid approaches combine and apply the "objective" and
"subjective" tests alternatively or concurrently.

As early as 1910, this Court has examined the conduct of law enforcers while apprehending the
accused caught in flagrante delicto. In United States v. Phelps,56 we acquitted the accused from the
offense of smoking opium after finding that the government employee, a BIR personnel, actually
induced him to commit the crime in order to prosecute him. Smith, the BIR agent, testified that Phelps'
apprehension came after he overheard Phelps in a saloon say that he liked smoking opium on some
occasions. Smith's testimony was disregarded. We accorded significance to the fact that it was Smith
who went to the accused three times to convince him to look for an opium den where both of them
could smoke this drug.57 The conduct of the BIR agent was condemned as "most
reprehensible."58 In People v. Abella,59 we acquitted the accused of the crime of selling explosives after
examining the testimony of the apprehending police officer who pretended to be a merchant. The
police officer offered "a tempting price, . . . a very high one" causing the accused to sell the explosives.
We found that there was inducement, "direct, persistent and effective" by the police officer and that
outside of his testimony, there was no evidence sufficient to convict the accused. 60 In People v. Lua
Chu and Uy Se Tieng, 61 we convicted the accused after finding that there was no inducement on the
part of the law enforcement officer. We stated that the Customs secret serviceman smoothed the way
for the introduction of opium from Hongkong to Cebu after the accused had already planned its
importation and ordered said drug. We ruled that the apprehending officer did not induce the accused
to import opium but merely entrapped him by pretending to have an understanding with the Collector
of Customs of Cebu to better assure the seizure of the prohibited drug and the arrest of the
surreptitious importers.62

It was also in the same case of People v. Lua Chu and Uy Se Tieng 63 we first laid down the distinction
between entrapment vis-a-vis instigation or inducement. Quoting 16 Corpus Juris,64 we held:

ENTRAPMENT AND INSTIGATION. — While it has been said that the practice of
entrapping persons into crime for the purpose of instituting criminal prosecutions is to
be deplored, and while instigation, as distinguished from mere entrapment, has often
been condemned and has sometimes been held to prevent the act from being criminal
or punishable, the general rule is that it is no defense to the perpetrator of a crime that
facilities for its commission were purposely placed in his way, or that the criminal act
was done at the 'decoy solicitation' of persons seeking to expose the criminal, or that
detectives feigning complicity in the act were present and apparently assisting in its
commission. Especially is this true in that class of cases where the offense is one of a
kind habitually committed, and the solicitation merely furnishes evidence of a course of
conduct. Mere deception by the detective will not shield defendant, if the offense was
committed by him, free from the influence or instigation of the detective. The fact that
an agent of an owner acts as a supposed confederate of a thief is no defense to the
latter in a prosecution for larceny, provided the original design was formed
independently of such agent; and where a person approached by the thief as his
confederate notifies the owner or the public authorities, and, being authorised by them
to do so, assists the thief in carrying out the plan, the larceny is nevertheless committed.
It is generally held that it is no defense to a prosecution for an illegal sale of liquor that
the purchase was made by a "spotter," detective, or hired informer; but there are cases
holding the contrary. 65

The distinction above-quoted was reiterated in two (2) decisions of the Court of Appeals. In People v.
Galicia,66 the appellate court declared that "there is a wide difference between entrapment and
instigation." The instigator practically induces the would-be accused into the commission of the offense
and himself becomes a co-principal. In entrapment, ways and means are resorted to by the peace
officer for the purpose of trapping and capturing the lawbreaker in the execution of his criminal
plan.67 In People v. Tan Tiong,68 the Court of Appeals further declared that "entrapment is no bar to the
prosecution and conviction of the lawbreaker.69

The pronouncement of the Court of Appeals in People v. Galicia was affirmed by this Court in People v.
Tiu Ua.70 Entrapment, we further held, is not contrary to public policy. It is instigation that is deemed
contrary to public policy and illegal.71

It can thus be seen that the concept of entrapment in the American jurisdiction is similar to instigation
or inducement in Philippine jurisprudence. Entrapment in the Philippines is not a defense available to
the accused. It is instigation that is a defense and is considered an absolutory cause. 72 To determine
whether there is a entrapment or instigation, our courts have mainly examined the conduct of the
apprehending officers, not the predisposition of the accused to commit the crime. The "objective" test
first applied in United States v. Phelps has been followed in a series of similar cases.73 Nevertheless,
adopting the "objective" approach has not precluded us from likewise applying the "subjective"
test. In People v. Boholst,74 we applied both tests by examining the conduct of the police officers in a
buy-bust operation and admitting evidence of the accused's membership with the notorious and
dreaded Sigue-Sigue Sputnik Gang. We also considered accused's previous his convictions of other
crimes 75 and held that his opprobrious past and membership with the dreaded gang strengthened the
state's evidence against him. Conversely, the evidence that the accused did not sell or smoke
marijuana and did not have any criminal record was likewise admitted in People v. Yutuc 76 thereby
sustaining his defense that led to his acquittal.

The distinction between entrapment and instigation has proven to be very material in anti-narcotics
operations. In recent years, it has become common practice for law enforcement officers and agents to
engage in buy-bust operations and other entrapment procedures in apprehending drug offenders.
Anti-narcotics laws, like anti-gambling laws are regulatory statutes. 77 They are rules of convenience
designed to secure a more orderly regulation of the affairs of society, and their violation gives rise to
crimes mala prohibita.78 They are not the traditional type of criminal law such as the law of murder,
rape, theft, arson, etc. that deal with crimes mala in se or those inherently wrongful and
immoral. 79 Laws defining crimes mala prohibita condemn behavior directed, not against particular
individuals, but against public order.80 Violation is deemed a wrong against society as a whole and is
generally unattended with any particular harm to a definite person. 81 These offenses are carried on in
secret and the violators resort to many devices and subterfuges to avoid detection. It is rare for any
member of the public, no matter how furiously he condemns acts mala prohibita, to be willing to assist
in the enforcement of the law. It is necessary, therefore, that government in detecting and punishing
violations of these laws, rely, not upon the voluntary action of aggrieved individuals, but upon the
diligence of its own officials. This means that the police must be present at the time the offenses are
committed either in an undercover capacity or through informants, spies or stool pigeons. 82

Though considered essential by the police in enforcing vice legislation, the confidential informant
system breeds abominable abuse. Frequently, a person who accepts payment from the police in the
apprehension of drug peddlers and gamblers also accept payment from these persons who deceive the
police. The informant himself maybe a drug addict, pickpocket, pimp, or other petty criminal. For
whatever noble purpose it serves, the spectacle that government is secretly mated with the
underworld and uses underworld characters to help maintain law and order is not an inspiring
one.83 Equally odious is the bitter reality of dealing with unscrupulous, corrupt and exploitative law
enforcers. Like the informant, unscrupulous law enforcers' motivations are legion — harassment,
extortion, vengeance, blackmail, or a desire to report an accomplishment to their superiors. This Court
has taken judicial notice of this ugly reality in a number of cases 84 where we observed that it is a
common modus operandi of corrupt law enforcers to prey on weak and hapless persons, particularly
unsuspecting provincial hicks.85 The use of shady underworld characters as informants, the relative
ease with which illegal drugs may be planted in the hands or property of trusting and ignorant persons,
and the imposed secrecy that inevitably shrouds all drug deals have compelled this Court to be extra-
vigilant in deciding drug cases.86 Criminal activity is such that stealth and strategy, although necessary
weapons in the arsenal of the police officer, become as objectionable police methods as the coerced
confession and the unlawful search. As well put by the Supreme Court of California in People v.
Barraza,87

[E]ntrapment is a facet of a broader problem. Along with illegal search and seizures,
wiretapping, false arrest, illegal detention and the third degree, it is a type of lawless
enforcement. They all spring from common motivations. Each is a substitute for skillful
and scientific investigation. Each is condoned by the sinister sophism that the end, when
dealing with known criminals of the 'criminal class,' justifies the employment of illegal
means. 88
It is thus imperative that the presumption, juris tantum, of regularity in the performance of official duty
by law enforcement agents raised by the Solicitor General be applied with studied restraint. This
presumption should not by itself prevail over the presumption of innocence and the constitutionally-
protected rights of the individual.89 It is the duty of courts to preserve the purity of their own temple
from the prostitution of the criminal law through lawless enforcement. 90 Courts should not allow
themselves to be used as an instrument of abuse and injustice lest an innocent person be made to
suffer the unusually severe penalties for drug offenses.91

We therefore stress that the "objective" test in buy-bust operations demands that the details of the
purported transaction must be clearly and adequately shown. This must start from the initial contact
between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the
consideration until the consummation of the sale by the delivery of the illegal drug subject of the
sale.92 The manner by which the initial contact was made, whether or not through an informant, the
offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug,
whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to
insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be
caught but not at all cost. At the same time, however, examining the conduct of the police should not
disable courts into ignoring the accused's predisposition to commit the crime. If there is overwhelming
evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must also be
considered. Courts should look at all factors to determine the predisposition of an accused to commit
an offense in so far as they are relevant to determine the validity of the defense of
inducement.1âwphi1.nêt

In the case at bar, the evidence shows that it was the confidential informant who initially contacted
accused-appellant Doria. At the pre-arranged meeting, the informant was accompanied by PO3
Manlangit who posed as the buyer of marijuana. P03 Manlangit handed the marked money to accused-
appellant Doria as advance payment for one (1) kilo of marijuana. Accused-appellant Doria was
apprehended when he later returned and handed the brick of marijuana to P03 Manlangit.

PO3 Manlangit testified in a frank, spontaneous, straightforward and categorical manner and his
credibility was not crumpled on cross-examination by defense counsel. Moreover, P03 Manlangit's
testimony was corroborated on its material points by SPO1 Badua, his back-up security. The non-
presentation of the confidential informant is not fatal to the prosecution. Informants are usually not
presented in court because of the need to hide their identity and preserve their invaluable service to
the police.93 It is well-settled that except when the appellant vehemently denies selling prohibited
drugs and there are material inconsistencies in the testimonies of the arresting officers, 94 or there are
reasons to believe that the arresting officers had motives to testify falsely against the appellant, 95 or
that only the informant was the poseur-buyer who actually witnessed the entire transaction, 96 the
testimony of the informant may be dispensed with as it will merely be corroborative of the
apprehending officers' eyewitness testimonies.97 There is no need to present the informant in court
where the sale was actually witnessed and adequately proved by prosecution witnesses. 98

The inconsistencies in P03 Manlangit's and SPO1 Badua's testimonies and the other police officers'
testimonies are minor and do not detract from the veracity and weight of the prosecution evidence.
The source of the money for the buy-bust operation is not a critical fact in the case at bar. It is enough
that the prosecution proved that money was paid to accused-appellant Doria in consideration of which
he sold and delivered the marijuana.
Contrary to accused-appellant Doria's claim, the one kilo of marijuana "sold" by him to PO3 Manlangit
was actually identified by PO3 Manlangit himself before the trial court. After appellants' apprehension,
the Narcom agents placed this one (1) brick of marijuana recovered from appellant Doria inside the
carton box lumping it together with the ten (10) bricks inside. This is why the carton box contained
eleven (11) bricks of marijuana when brought before the trial court. The one (1) brick recovered from
appellant Doria and each of the ten (10) bricks, however, were identified and marked in court. Thus:

ATTY. ARIAS, Counsel for Florencio Doria:

Mr. Police Officer, when you identified that box,. Tell the court, how were you
able to identify that box?

A This is the box that I brought to the crime laboratory which contained the
eleven pieces of marijuana brick we confiscated from the suspect, sir.

Q Please open it and show those eleven bricks.

PROSECUTOR Witness bringing out from the said box. . .

ATTY. VALDEZ, Counsel for Violeta Gaddao:

Your Honor, I must protest the line of questioning considering the fact that we
are now dealing with eleven items when the question posed to the witness was
what was handed to him by Jun?

COURT So be it.

ATTY. ARIAS May we make it of record that the witness is pulling out them after
item from the box showed to him and brought in front of him.

COURT Noted.

Q Now tell the court, how did you know that those are the eleven bricks?

x x x           x x x          x x x

A I have markings on these eleven bricks, sir.

Q Point to the court, where are those markings?

A Here, sir, my signature, my initials with the date, sir.

PROSECUTOR Witness showed a white wrapper and pointing to CLM and the
signature.

Q Whose signature is that?

ATTY. VALDEZ Your Honor, may we just limit the inquiry to the basic question of
the fiscal as to what was handed to him by the accused Jun, your Honor?
PROSECUTOR Your Honor, there is already a ruling by this Honorable Court, your
Honor, despite reconsideration.

COURT Let the prosecution do its own thing and leave the appreciation of what it
has done to the court.

ATTY. VALDEZ We submit, your Honor.

A This brick is the one that was handed to me by the suspect Jun, sir.

COURT Why do you know that that is the thing? Are you sure that is not "tikoy?"

A Yes, your Honor.

Q What makes you so sure?

A I am sure that this is the one, your Honor. This is the Exhibit "A" which I
marked before I brought it to the PCCL, your Honor.

Q What are you sure of?

A I am sure that this is the brick that was given to me by one alias Jun, sir.

Q What makes you so sure?

A Because I marked it with my own initials before giving it to the investigator and
before we brought it to the PCCL, your Honor.

x x x           x x x          x x x

PROSECUTOR May we request that a tag be placed on this white plastic bag and
this be marked as Exhibit "D?"

COURT Mark it as Exhibit "D."

Q To stress, who made the entries of this date, Exhibit "A" then the other letters
and figures on this plastic?

A This one, the signature, I made the signature, the date and the time and this
Exhibit "A."

Q How about this one?

A I don't know who made this marking, sir.

PROSECUTOR May it be of record that this was just entered this morning.

Q I am asking you about this "itim" and not the "asul."

 A This CLM, the date and the time and the Exhibit "A," I was the one who made
these markings, sir.

PROSECUTOR May we place on record that the one that was enclosed. . .

ATTY. ARIAS Your Honor, there are also entries included in that enclosure where
it appears D-394-95 also Exhibit "A," etc. etc., that was not pointed to by the
witness. I want to make it of record that there are other entries included in the
enclosure.

COURT Noted. The court saw it.

Q Now, and this alleged brick of marijuana with a piece of paper, with a
newspaper wrapping with a piece of paper inside which reads: "D-394-95, Exhibit
A, 970 grams SSL" be marked as our Exhibit "D-2?"

COURT Tag it. Mark it.

Q This particular exhibit that you identified, the wrapper and the contents was
given to you by whom?

A It was given to me by suspect Jun, sir.

Q Whereat?

A At the corner of Boulevard and Jacinto St., sir.

Q How about the other items that you were able to recover?

x x x           x x x          x x x

A These other marijuana bricks, because during our follow-up, because according
to Jun the money which I gave him was in the hands of Neneth and so we
proceeded to the house of Neneth, sir.

xxx xxx xxx 99

The first brick identified by P03 Manlangit was the brick of marijuana "given to [him] by suspect Jun" at
the corner of Boulevard and Jacinto Streets. This brick, including the newspaper and white plastic
wrapping were marked as Exhibits "D," "D-l," and "D-2" and described as weighing nine hundred
seventy (970) grams. 100

We also reject appellant's submission that the fact that P03 Manlangit and his team waited for almost
one hour for appellant Doria to give them the one kilo of marijuana after he "paid" P1,600.00 strains
credulity. Appellant cannot capitalize on the circumstance that the money and the marijuana in the
case at bar did not change hands under the usual "kaliwaan" system. There is no rule of law which
requires that in "buy-bust" operations there must be a simultaneous exchange of the marked money
and the prohibited drug between the poseur- buyer and the pusher. 101 Again, the decisive fact is that
the poseur-buyer received the marijuana from the accused-appellant. 102
We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless
arrests are allowed in three instances as provided by Section 5 of Rule 113 of the 1985 Rules on
Criminal Procedure, to wit:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may,
without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who 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.

xxx xxx xxx 103

Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he "has
committed, is actually committing, or is attempting to commit an offense." Appellant Doria was
caught in the act of committing an offense. When an accused is apprehended in flagrante
delicto as a result of a buy-bust operation, the police are not only authorized but duty-bound to
arrest him even without a warrant. 104

The warrantless arrest of appellant Gaddao, the search of her person and residence, and the seizure of
the box of marijuana and marked bills are different matters.

Our Constitution proscribes search and seizure without a judicial warrant and any evidence obtained
without such warrant is inadmissible for any purpose in any proceeding. 105 The rule is, however, not
absolute. Search and seizure may be made without a warrant and the evidence obtained therefrom
may be admissible in the following instances: 106 (1) search incident to a lawful arrest;107 (2) search of
a moving motor vehicle; 108 (3) search in violation of customs laws; 109 (4) seizure of evidence in plain
view; 110 (5) when the accused himself waives his right against unreasonable searches and seizures. 111

The prosecution admits that appellant Gaddao was arrested without a warrant of arrest and the search
and seizure of the box of marijuana and the marked bills were likewise made without a search warrant.
It is claimed, however, that the warrants were not necessary because the arrest was made in "hot
pursuit" and the search was an incident to her lawful arrest.

To be lawful, the warrantless arrest of appellant Gaddao must fall under any of the three (3) instances
enumerated in Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure as aforequoted. The
direct testimony of PO3 Manlangit, the arresting officer, however shows otherwise:

ATTY. VALDEZ, Counsel for appellant Gaddao:

We submit at this juncture, your Honor, that there will be no basis for that
question.
Q This particular exhibit that you identified, the wrapper and the contents was
given to you by whom?

A It was given to me by suspect Jun, sir.

Q Whereat?

A At the corner of Boulevard and Jacinto Street, sir.

Q How about, the other items that you were able to recover?

ATTY. VALDEZ: We submit at this juncture, your Honor, that there will be no
basis for that question.

COURT There is. Answer.

A These other marijuana bricks, because during our follow-up, because according
to Jun the money which I gave him was in the hands of Neneth and so we
proceeded to the house of Neneth, sir.

Q Whereat?

A At Daang Bakal near the crime scene at Shaw Boulevard, sir.

Q And what happened upon arrival thereat?

A We saw alias Neneth inside the house and we asked him to give us the buy-
bust money, sir.

Q You mentioned "him?"

A Her, sir. We asked her to give us the money, the marked money which Jun
gave her, sir.

Q And what happened?

A At this instance, it was SPO1 Badua who can testify regarding this buy-bust
money, sir.

xxx xxx xxx 112

SPO1 Badua testified on cross-examination that:

Q What was your intention in going to the house of Aling Neneth?

A To arrest her, sir.

Q But the fact is, Mr. Witness, when you reached the house of Aling Neneth,
Aling Neneth was there?
A Yes, sir.

Q As far as you can see, she was just inside her house?

A I saw her outside, sir.

Q She was fetching water as a matter of fact?

A She was 'sa bandang poso.'

Q Carrying a baby?

A No, sir.

Q At that particular time when you reached the house of Aling Neneth and saw
her outside the house, she was not committing any crime, she was just outside
the house?

A No, sir.

Q She was not about to commit any crime because she was just outside the
house doing her daily chores. Am I correct?

A I just saw her outside, sir.

Q And at that point in time you already wanted to arrest her. That is correct, is it
not?

A Yes, sir.

Q Now, if any memory of your testimony is correct, according to you SPO1

Manlangit approached her?

A PO3 Manlangit, sir.

Q You did not approach her because P03 Manlangit approached her?

A Yes, sir.

Q During all the time that this confrontation, arrest or whatever by SPO3
Manlangit was taking place, you were just in the side lines?

A I was just watching, sir.

Q So you were just an on-looker to what Manlangit was doing, because precisely
according to you your role in this buy-bust operation was as a back-up?

A Yes, sir.

Q Who got the alleged marijuana from inside the house of Mrs. Neneth?
A P03 Manlangit, sir.

Q Manlangit got the marijuana?

A Yes, sir.

Q And the money from Aling Neneth?

A I don't know, sir.

Q You did not even know who got the money from Aling Neneth?

PROSECUTOR:

There is no basis for this question, your Honor. Money, there 's no testimony on
that.

ATTY. VALDEZ:

I was asking him precisely.

PROSECUTOR:

No basis.

COURT:

Sustained.

Q Alright. I will ask you a question and I expect an honest answer. According to
the records, the amount of P1,600.00 was recovered from the person of Aling
Neneth. That's right?

A Yes, sir, the buy-bust money.

Q What you are now saying for certain and for the record is the fact that you
were not the one who retrieved the money from Aling Neneth, it was Manlangit
maybe?

A I saw it, sir.

Q It was Manlangit who got the money from Aling Neneth?

A The buy-bust money was recovered from the house of Aling Neneth, sir.

Q It was taken from the house of Aling Neneth, not from the person of Aling
Neneth. Is that what you are trying to tell the Court?

A No, sir.
 ATTY. VALDEZ:

I am through with this witness, your Honor. 113

Accused-appellant Gaddao was not caught red-handed during the buy-bust operation to give ground
for her arrest under Section 5 (a) of Rule 113. She was not committing any crime. Contrary to the
finding of the trial court, there was no occasion at all for appellant Gaddao to flee from the policemen
to justify her arrest in "hot pursuit."114 In fact, she was going about her daily chores when the
policemen pounced on her.

Neither could the arrest of appellant Gaddao be justified under the second instance of Rule 113.
"Personal knowledge" of facts in arrests without warrant under Section 5 (b) of Rule 113 must be
based upon "probable cause" which means an "actual belief or reasonable grounds of
suspicion."115 The grounds of suspicion are reasonable when, in the absence of actual belief of the
arresting officers, the suspicion that the person to be arrested is probably guilty of committing the
offense, is based an actual facts, i.e., supported by circumstances sufficiently strong in themselves to
create the probable cause of guilt of the person to be arrested. 116 A reasonable suspicion therefore
must be founded on probable cause, coupled with good faith on the part of the peace officers making
the arrest.117

Accused-appellant Gaddao was arrested solely on the basis of the alleged identification made by her
co-accused. PO3 Manlangit, however, declared in his direct examination that appellant Doria named
his co-accused in response to his (PO3 Manlangit's) query as to where the marked money
was.118 Appellant Doria did not point to appellant Gaddao as his associate in the drug business, but as
the person with whom he left the marked bills. This identification does not necessarily lead to the
conclusion that appellant Gaddao conspired with her co-accused in pushing drugs. Appellant Doria may
have left the money in her house,119 with or without her knowledge, with or without any conspiracy.
Save for accused-appellant Doria 's word, the Narcom agents had no reasonable grounds to believe
that she was engaged in drug pushing. If there is no showing that the person who effected the
warrantless arrest had, in his own right, knowledge of facts implicating the person arrested to the
perpetration of a criminal offense, the arrest is legally objectionable. 120

Since the warrantless arrest of accused-appellant Gaddao was illegal, it follows that the search of her
person and home and the subsequent seizure of the marked bills and marijuana cannot be deemed
legal as an incident to her arrest. This brings us to the question of whether the trial court correctly
found that the box of marijuana was in plain view, making its warrantless seizure valid.

Objects falling in plain view of an officer who has a right to be in the position to have that view are
subject to seizure even without a search warrant and maybe introduced in evidence. 121 The "plain
view" doctrine applies when the following requisites concur: (a) the law enforcement officer in search
of the evidence has a prior justification for an intrusion or is in a position from which he can view a
particular area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is immediately
apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise
subject to seizure.122 The law enforcement officer must lawfully make an initial intrusion or properly be
in a position from which he can particularly view the area. 123 In the course of such lawful intrusion, he
came inadvertently across a piece of evidence incriminating the accused. 124 The object must be open to
eye and
hand125 and its discovery inadvertent.126
It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty arises
when the object is inside a closed container. Where the object seized was inside a closed package, the
object itself is not in plain view and therefore cannot be seized without a warrant. However, if the
package proclaims its contents, whether by its distinctive configuration, its transparency, or if its
contents are obvious to an observer, then the contents are in plain view and may be seized. 127 In other
words, if the package is such that an experienced observer could infer from its appearance that it
contains the prohibited article, then the article is deemed in plain view. 128 It must be immediately
apparent to the police that the items that they observe may be evidence of a crime, contraband or
otherwise subject to seizure.129

PO3 Manlangit, the Narcom agent who found the box, testified on cross-examination as follows:

ATTY. VALDEZ:

So here we are. When you and Badua arrived, Aling Neneth was inside the
house?

A Yes, sir.

Q Badua demanded from Aling Neneth the buy-bust money?

A Yes, sir.

Q At that particular instance, you saw the carton?

A Yes, sir.

Q This carton, according to you was under a table?

A Yes, sir, dining table.

Q I noticed that this carton has a cover?

A Yes, sir.

Q I ask you were the flaps of the cover raised or closed?

A It was open, sir. Not like that.

COURT

Go down there. Show to the court.

INTERPRETER

Witness went down the witness stand and approached a carton box.

A Like this, sir.

PROSECUTOR
Can we describe it?

ATTY. VALDEZ

Yes.

PROSECUTOR

One flap is inside and the other flap is standing and with the contents visible.

COURT

Noted.

Q At this juncture, you went inside the house?

A Yes, sir.

Q And got hold of this carton?

A Yes, sir.

Q Did you mention anything to Aling Neneth?

A I asked her, what's this. . .

Q No, no. no. did you mention anything to Aling Neneth before getting the
carton?

A I think it was Badua who accosted Aling Neneth regarding the buy-bust money
and he asked "Sa iyo galing ang marijuanang ito, nasaan ang buy-bust money
namin?" sir.

Q Making reference to the marijuana that was given by alias Jun?

A Yes, sir.

Q When you proceeded to take hold of this carton, Aling Neneth was not yet
frisked, is it not [sic]?

A I just don't know if she was frisked already by Badua, sir.

Q Who got hold of this?

A I was the one, sir.

Q You were the one who got this?

A Yes, sir.
Q At that particular point in time, you did not know if the alleged buy-bust
money was already retrieved by Badua?

A Yes, sir.

Q You went inside the house?

A Yes, sir.

Q You did not have any search warrant?

A Yes, sir.

Q In fact, there was nothing yet as far as you were concerned to validate the fact
that Mrs. Gadao was in possession of the buy-bust money because according to
you, you did not know whether Badua already retrieved the buy-bust money
from her?

A Yes, sir.

Q How far was this from the door?

A Two and a half meters from the door, sir. It was in plain view.

Q Under the table according to you?

A Yes, sir, dining table.

Q Somewhere here?

A It's far, sir.

PROSECUTOR

May we request the witness to place it, where he saw it?

A Here, sir.

Q What you see is a carton?

A Yes, sir, with plastic.

Q Marked "Snow Time Ice Pop?

A Yes, sir.

Q With a piece of plastic visible on top of the carton?

A Yes, sir.
Q That is all that you saw?

A Yes, sir.

PROSECUTOR

For the record, your Honor. . .

Q You were only able to verify according to you . . .

PRESECUTOR

Panero, wait. Because I am objecting to the words a piece of plastic. By reading it

...

ATTY. VALDEZ

That's a piece of plastic.

PROSECUTOR

By reading it, it will connote . . . this is not a piece of plastic.

ATTY. VALDEZ

What is that? What can you say, Fiscal? I'm asking you?

PROSECUTOR

With due respect, what I am saying is, let's place the size of the plastic. A piece of
plastic may be big or a small one, for record purposes.

COURT

Leave that to the court.

PROSECUTOR

Leave that to the court.

Q The only reason according to you, you were able to . . . Look at this, no even
Superman . . . I withdraw that. Not even a man with very kin [sic] eyes can tell
the contents here. And according to the Court, it could be "tikoy," is it not [sic]?

A Yes, sir.

Q Siopao?

A Yes, sir.
 Q Canned goods?

A Yes, sir.

Q It could be ice cream because it says Snow Pop, Ice Pop?

A I presumed it was also marijuana because it may . . .

Q I am not asking you what your presumptions are. I'm asking you what it could
possibly be.

A It's the same plastic, sir.

ATTY. VALDEZ

I'm not even asking you that question so why are you voluntarily saying the
information. Let the prosecutor do that for you.

COURT

Continue. Next question.

xxx xxx xxx 130

P03 Manlangit and the police team were at appellant Gaddao's house because they were led
there by appellant Doria. The Narcom agents testified that they had no information on
appellant Gaddao until appellant Doria name her and led them to her.131 Standing by the door
of appellant Gaddao's house, P03 Manlangit had a view of the interior of said house. Two and a
half meters away was the dining table and underneath it was a carton box. The box was
partially open and revealed something wrapped in plastic.

In his direct examination, PO3 Manlangit said that he was sure that the contents of the box were
marijuana because he himself checked and marked the said contents. 132 On cross-examination,
however, he admitted that he merely presumed the contents to be marijuana because it had the same
plastic wrapping as the "buy-bust marijuana." A close scrutiny of the records reveals that the plastic
wrapper was not colorless and transparent as to clearly manifest its contents to a viewer. Each of the
ten (10) bricks of marijuana in the box was individually wrapped in old newspaper and placed inside
plastic bags — white, pink or blue in color.133 PO3 Manlangit himself admitted on cross-examination
that the contents of the box could be items other than marijuana. He did not know exactly what the
box contained that he had to ask appellant Gaddao about its contents.134 It was not immediately
apparent to PO3 Manlangit that the content of the box was marijuana. The marijuana was not in plain
view and its seizure without the requisite search warrant was in violation of the law and the
Constitution.135 It was fruit of the poisonous tree and should have been excluded and never considered
by the trial court.136

The fact that the box containing about six (6) kilos of marijuana 137 was found in the house of accused-
appellant Gaddao does not justify a finding that she herself is guilty of the crime charged. 138 Apropos is
our ruling in People v. Aminnudin,139 viz:
 The Court strongly supports the campaign of the government against drug addiction and
commends the efforts of our law enforcement officers against those who would inflict
this malediction upon our people, especially the susceptible youth. But as demanding as
this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for
the protection of the liberty of every individual in the realm, including the basest of
criminals. The Constitution covers with the mantle of its protection the innocent and the
guilty alike against any manner of high-handedness from the authorities, however
praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the right of
the individual in the name of order. Order is too high a price for the loss of liberty. As
Justice Holmes, again, said, 'I think it a less evil that some criminals should escape than
that the government should play an ignoble part.' It is simply not allowed in the free
society to violate a law to enforce another, especially if the law violated is the
Constitution itself. 140

Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as amended by Section 13 of
Republic Act No. 7659 punishes the "sale, administration, delivery, distribution and transportation of a
prohibited drug" with the penalty of reclusion perpetua to death and a fine ranging from P500,000.00
to P10 million, to wit:

Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited

Drugs. — The penalty of reclusion perpetua to death, and a fine ranging from five
hundred thousand pesos to ten million pesos shall be imposed upon any person who,
unless authorized by law, shall sell, administer, deliver, give away to another, distribute,
dispatch in transit or transport any prohibited drug, or shall act as a broker in any of
such transactions.

x x x           x x x          x x x

In every prosecution for illegal sale of dangerous drugs, what is material is the submission of
proof that the sale took place between the poseur-buyer and the seller thereof and the
presentation of the drug, i.e., the corpus delicti, as evidence in court.141 The prosecution has
clearly established the fact that in consideration of P1,600.00 which he received, accused-
appellant Doria sold and delivered nine hundred seventy (970) grams of marijuana to PO3
Manlangit, the poseur-buyer. The prosecution, however, has failed to prove that accused-
appellant Gaddao conspired with accused-appellant Doria in the sale of said drug. There being
no mitigating or aggravating circumstances, the lower penalty of reclusion perpetua must be
imposed.142

IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 156, Pasig City acting as a Special
Court in Criminal Case No. 3307-D is reversed and modified as follows:

1. Accused-appellant Florencio Doria y Bolado is sentenced to suffer the penalty of reclusion

perpetua and to pay a fine of five hundred thousand pesos (P500,000.00).

2. Accused-appellant Violeta Gaddao y Catama is acquitted.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
 G.R. No. 123595 December 12, 1997
SAMMY MALACAT y MANDAR, petitioner,
vs.
COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents.

DAVIDE, JR., J.:

In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial
Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating
Section 3 of Presidential Decree No. 1866, 2 as follows:

That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did
then and there willfully, unlawfully and knowingly keep, possess and/or acquire a hand
grenade, without first securing the necessary license and/or permit therefor from the
proper authorities.

At arraignment3 on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not
guilty.

At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A-1," and "A-
2," 4 while the prosecution admitted that the police authorities were not armed with a search warrant
nor warrant of arrest at the time they arrested petitioner. 5

At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo
Yu, the arresting officer; Josefino G. Serapio, the investigating officer; and Orlando Ramilo, who
examined the grenade.

Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police,
Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response
to bomb threats reported seven days earlier, he was on foot patrol with three other police officers (all
of them in uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza
Miranda. They chanced upon two groups of Muslim-looking men, with each group, comprised of three
to four men, posted at opposite sides of the corner of Quezon Boulevard near the Mercury Drug Store.
These men were acting suspiciously with "[t]heir eyes. . . moving very fast." 6

Yu and his companions positioned themselves at strategic points and observed both groups for about
thirty minutes. The police officers then approached one group of men, who then fled in different
directions. As the policemen gave chase, Yu caught up with and apprehended petitioner. Upon
searching petitioner, Yu found a fragmentation grenade tucked inside petitioner's "front waist
line." 7 Yu's companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38
caliber revolver was recovered. Petitioner and Casan were then brought to Police Station No. 3 where
Yu placed an "X" mark at the bottom of the grenade and thereafter gave it to his commander. 8

On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of
Muslims was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized
petitioner as the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2
others attempt to detonate a grenade. The attempt was aborted when Yu and other policemen chased
petitioner and his companions; however, the former were unable to catch any of the latter. Yu further
admitted that petitioner and Casan were merely standing on the corner of Quezon Boulevard when Yu
saw them on 27 August 1990. Although they were not creating a commotion, since they were
supposedly acting suspiciously, Yu and his companions approached them. Yu did not issue any receipt
for the grenade he allegedly recovered from petitioner.9

Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul
Casan were brought in by Sgt. Saquilla 10 for investigation. Forthwith, Serapio conducted the inquest of
the two suspects, informing them of their rights to remain silent and to be assisted by competent and
independent counsel. Despite Serapio's advice, petitioner and Casan manifested their willingness to
answer questions even without the assistance of a lawyer. Serapio then took petitioner's uncounselled
confession (Exh. "E"), there being no PAO lawyer available, wherein petitioner admitted possession of
the grenade. Thereafter, Serapio prepared the affidavit of arrest and booking sheet of petitioner and
Casan. Later, Serapio turned over the grenade to the Intelligence and Special Action Division (ISAD) of
the Explosive Ordinance Disposal Unit for examination. 11

On cross-examination, Serapio admitted that he took petitioner's confession knowing it was

inadmissible in evidence. 12

Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other
things, the examination of explosive devices, testified that on 22 March 1991, he received a request
dated 19 March 1991 from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade.
Ramilo then affixed an orange tag on the subject grenade detailing his name, the date and time he
received the specimen. During the preliminary examination of the grenade, he "[f]ound that [the]
major components consisting of [a] high filler and fuse assembly [were] all present," and concluded
that the grenade was "[l]ive and capable of exploding." On even date, he issued a certification stating
his findings, a copy of which he forwarded to Diotoy on 11 August 1991. 13

Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and
resided at the Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he
went to Plaza Miranda to catch a breath of fresh air. Shortly after, several policemen arrived and
ordered all males to stand aside. The policemen searched petitioner and two other men, but found
nothing in their possession. However, he was arrested with two others, brought to and detained at
Precinct No. 3, where he was accused of having shot a police officer. The officer showed the gunshot
wounds he allegedly sustained and shouted at petitioner "[i]to ang tama mo sa akin." This officer then
inserted the muzzle of his gun into petitioner's mouth and said, "[y]ou are the one who shot me."
Petitioner denied the charges and explained that he only recently arrived in Manila. However, several
other police officers mauled him, hitting him with benches and guns. Petitioner was once again
searched, but nothing was found on him. He saw the grenade only in court when it was presented. 14

The trial court ruled that the warrantless search and seizure of petitioner was akin to it a "stop and
frisk," where a "warrant and seizure can be effected without necessarily being preceded by an arrest"
and "whose object is either to maintain the status quo momentarily while the police officer seeks to
obtain more information." 15 Probable cause was not required as it was not certain that a crime had
been committed, however, the situation called for an investigation, hence to require probable cause
would have been "premature." 16 The RTC emphasized that Yu and his companions were "[c]onfronted
with an emergency, in which the delay necessary to obtain a warrant, threatens the destruction of
evidence" 17 and the officers "[h]ad to act in haste," as petitioner and his companions were acting
suspiciously, considering the time, place and "reported cases of bombing." Further, petitioner's group
suddenly ran away in different directions as they saw the arresting officers approach, thus "[i]t is
reasonable for an officer to conduct a limited search, the purpose of which is not necessarily to
discover evidence of a crime, but to allow the officer to pursue his investigation without fear of
violence." 18

The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful
arrest, and since petitioner "[l]ater voluntarily admitted such fact to the police investigator for the
purpose of bombing the Mercury Drug Store," concluded that sufficient evidence existed to establish
petitioner's guilt beyond reasonable doubt.

In its decision 19 dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus
found petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 186,
and sentenced him to suffer:

[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1)
DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS
OF RECLUSION PERPETUA, as maximum.

On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was appealing to this
Court. However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-
G.R. CR No. 15988 and issued a notice to file briefs. 21

In his Appellant's Brief 22 filed with the Court of Appeals, petitioner asserted that:

1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE
PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED
HANDGRENADE FROM HIM "WAS AN APPROPRIATE INCIDENT TO HIS
ARREST."

2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST

ACCUSED-APPELLANT THE HANDGRENADE ALLEGEDLY SEIZED FROM HIM
AS IT WAS A PRODUCT OF AN UNREASONABLE AND ILLEGAL SEARCH.

In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the
conditions provided for in Section 5 of Rule 113 of the Rules of Court, citing People vs. Mengote. 23 As
such, the search was illegal, and the hand grenade seized, inadmissible in evidence.

In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed
that its decision be affirmed in toto. 24

In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial court, noting, first, that
petitioner abandoned his original theory before the court a quo that the grenade was "planted" by the
police officers; and second, the factual finding of the trial court that the grenade was seized from
petitioner's possession was not raised as an issue. Further, respondent court focused on the
admissibility in evidence of Exhibit "D," the hand grenade seized from petitioner. Meeting the issue
squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was probable
cause for the arrest as petitioner was "attempting to commit an offense," thus:
 We are at a loss to understand how a man, who was in possession of a live grenade and
in the company of other suspicious character[s] with unlicensed firearm[s] lurking in
Plaza Miranda at a time when political tension ha[d] been enkindling a series of
terroristic activities, [can] claim that he was not attempting to commit an offense. We
need not mention that Plaza Miranda is historically notorious for being a favorite bomb
site especially during times of political upheaval. As the mere possession of an
unlicensed grenade is by itself an offense, Malacat's posture is simply too preposterous
to inspire belief.

In so doing, the Court of Appeals took into account petitioner's failure to rebut the testimony of the
prosecution witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the
fact that PO Yu chased petitioner two days prior to the latter's arrest, or on 27 August 1990; and that
petitioner and his companions acted suspiciously, the "accumulation" of which was more than
sufficient to convince a reasonable man that an offense was about to be committed. Moreover, the
Court of Appeals observed:

The police officers in such a volatile situation would be guilty of gross negligence and
dereliction of duty, not to mention of gross incompetence, if they [would] first wait for
Malacat to hurl the grenade, and kill several innocent persons while maiming numerous
others, before arriving at what would then be an assured but moot conclusion that
there was indeed probable cause for an arrest. We are in agreement with the lower
court in saying that the probable cause in such a situation should not be the kind of
proof necessary to convict, but rather the practical considerations of everyday life on
which a reasonable and prudent mind, and not legal technicians, will ordinarily act.

Finally, the Court of Appeals held that the rule laid down in People v. Mengote, 26 which petitioner
relied upon, was inapplicable in light of "[c]rucial differences," to wit:

[In Mengote] the police officers never received any intelligence report that someone [at]
the corner of a busy street [would] be in possession of a prohibited article. Here the
police officers were responding to a [sic] public clamor to put a check on the series of
terroristic bombings in the Metropolis, and, after receiving intelligence reports about a
bomb threat aimed at the vicinity of the historically notorious Plaza Miranda, they
conducted foot patrols for about seven days to observe suspicious movements in the
area. Furthermore, in Mengote, the police officers [had] no personal knowledge that the
person arrested has committed, is actually committing, or is attempting to commit an
offense. Here, PO3 Yu [had] personal knowledge of the fact that he chased Malacat in
Plaza Miranda two days before he finally succeeded in apprehending him.

Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following
errors:

1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE

TRIAL COURT THAT THE WARRANTIES ARREST OF PETITIONER WAS VALID
AND LEGAL.

2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING

IN PEOPLE VS. MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT
CASE.
 In support thereof, petitioner merely restates his arguments below regarding the validity of the
warrantless arrest and search, then disagrees with the finding of the Court of Appeals that he
was "attempting to commit a crime," as the evidence for the prosecution merely disclosed that
he was "standing at the corner of Plaza Miranda and Quezon Boulevard" with his eyes "moving
very fast" and "looking at every person that come (sic) nearer (sic) to them." Finally, petitioner
points out the factual similarities between his case and that of People v. Mengote to
demonstrate that the Court of Appeals miscomprehended the latter.

In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision..

For being impressed with merit, we resolved to give due course to the petition.

The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty
imposed by the trial court was:

[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY
OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS
OF RECLUSION PERPETUA, as maximum.

The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully
possess grenades is reclusion temporal in its maximum period to reclusion perpetua.

For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and
not the minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the
appeal therefrom should have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the
Judiciary Reorganization Act of 1980 (B.P. Blg. 129), 27 in relation to Section 17 of the Judiciary Act of
1948, 28 Section 5(2) of Article VIII of the Constitution 29 and Section 3(c) of Rule 122 of the Rules of
Court. 30 The term "life imprisonment" as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948,
and Section 3 of Rule 122 must be deemed to include reclusion perpetua in view of Section 5(2) of
Article VIII of the Constitution.

Petitioner's Notice of Appeal indicated that he was appealing from the trial court's decision to this
Court, yet the trial court transmitted the record to the Court of Appeals and the latter proceeded to
resolve the appeal.

We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction,
and consider the appeal as having been directly brought to us, with the petition for review as
petitioner's Brief for the Appellant, the comment thereon by the Office of the Solicitor General as the
Brief for the Appellee and the memoranda of the parties as their Supplemental Briefs.

Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to
establish petitioner's guilt with moral certainty.

First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized
from petitioner's possession. Notably, Yu did not identify, in court, the grenade he allegedly seized.
According to him, he turned it over to his commander after putting an "X" mark at its bottom; however,
the commander was not presented to corroborate this claim. On the other hand, the grenade
presented in court and identified by police officer Ramilo referred to what the latter received from Lt.
Eduardo Cabrera and police officer Diotoy not immediately after petitioner's arrest, but
nearly seven (7) months later, or on 19 March 1991; further, there was no evidence whatsoever that
what Ramilo received was the very same grenade seized from petitioner. In his testimony, Yu never
declared that the grenade passed on to Ramilo was the grenade the former confiscated from
petitioner. Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter
did not claim that the grenade he examined was that seized from petitioner. Plainly, the law
enforcement authorities failed to safeguard and preserve the chain of evidence so crucial in cases such
as these.

Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group
about to detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to
arrest them, then considering that Yu and his three fellow officers were in uniform and therefore easily
cognizable as police officers, it was then unnatural and against common experience that petitioner
simply stood there in proximity to the police officers. Note that Yu observed petitioner for thirty
minutes and must have been close enough to petitioner in order to discern petitioner's eyes "moving
very fast."

Finally, even assuming that petitioner admitted possession of the grenade during his custodial
investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken in
palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide as follows:

Sec. 12 (1). Any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.

xxx xxx xxx

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall
be inadmissible in evidence against him.

Serapio conducted the custodial investigation on petitioner the day following his arrest. No
lawyer was present and Serapio could not have requested a lawyer to assist petitioner as no
PAO lawyer was then available. Thus, even if petitioner consented to the investigation and
waived his rights to remain silent and to counsel, the waiver was invalid as it was not in writing,
neither was it executed in the presence of counsel.

Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of
petitioner were invalid, as will be discussed below.

The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly
effect the same. 31 The Constitutional prohibition against unreasonable arrests, searches and seizures
refers to those effected without a validly issued warrant, 32 subject to certain exceptions. As regards
valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court, which reads, in
part:

Sec. 5. — Arrest, without warrant; when lawful — A peace officer or a private person
may, without a warrant, arrest a person:
 (a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has
committed it; and

(c) When the person to be arrested is a prisoner who has escaped . . .

A warrantless arrest under the circumstances contemplated under Section 5(a) has been
denominated as one "in flagrante delicto," while that under Section 5(b) has been described as
a "hot pursuit" arrest.

Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2)
search of moving vehicles; (3) seizure of evidence in plain view; (4) consent searches; 33 (5) a search
incidental to a lawful arrest; 34 and (6) a "stop and frisk."35

In the instant petition, the trial court validated the warrantless search as a "stop and frisk" with "the
seizure of the grenade from the accused [as an appropriate incident to his arrest," hence necessitating
a brief discussion on the nature of these exceptions to the warrant requirement.

At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search
incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite
quantum of proof before they may be validly effected and in their allowable scope.

In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the
incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g.,
whether an arrest was merely used as a pretext for conducting a search. 36 In this instance, the law
requires that there first be a lawful arrest before a search can be made — the process cannot be
reversed.37 At bottom, assuming a valid arrest, the arresting officer may search the person of the
arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and
seize any money or property found which was used in the commission of the crime, or the fruit of the
crime, or that which may be used as evidence, or which might furnish the arrestee with the means of
escaping or committing violence. 38

Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in
light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act,
on the part of petitioner, indicating that a crime had just been committed, was being committed or was
going to be committed.

Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on
petitioner could not have been one incidental to a lawful arrest.

We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited
protective search of outer clothing for weapons," as laid down in Terry, thus:

We merely hold today that where a police officer observes unusual conduct which leads
him reasonably to conclude in light of his experience that criminal activity may be afoot
and that the persons with whom he is dealing may be armed and presently dangerous,
 where in the course of investigating this behavior he identifies himself as a policeman
and makes reasonable inquiries, and where nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own or others' safety, he is entitled for the
protection of himself and others in the area to conduct a carefully limited search of the
outer clothing of such persons in an attempt to discover weapons which might be used
to assault him. Such a search is a reasonable search under the Fourth Amendment . . . 39

Other notable points of Terry are that while probable cause is not required to conduct a "stop
and frisk," 40 it nevertheless holds that mere suspicion or a hunch will not validate a "stop and
frisk." A genuine reason must exist, in light of the police officer's experience and surrounding
conditions, to warrant the belief that the person detained has weapons concealed about
him. 41 Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective
crime prevention and detection, which underlies the recognition that a police officer may,
under appropriate circumstances and in an appropriate manner, approach a person for
purposes of investigating possible criminal behavior even without probable cause; and (2) the
more pressing interest of safety and self-preservation which permit the police officer to take
steps to assure himself that the person with whom he deals is not armed with a deadly weapon
that could unexpectedly and fatally be used against the police officer.

Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid:

First, we harbor grave doubts as to Yu's claim that petitioner was a member of the group which
attempted to bomb Plaza Miranda two days earlier. This claim is neither supported by any police
report or record nor corroborated by any other police officer who allegedly chased that group. Aside
from impairing Yu's credibility as a witness, this likewise diminishes the probability that a genuine
reason existed so as to arrest and search petitioner. If only to further tarnish the credibility of Yu's
testimony, contrary to his claim that petitioner and his companions had to be chased before being
apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5)
other police officers, petitioner and his companions were "immediately collared."

Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited
even mere suspicion other than that his eyes were "moving very fast" — an observation which leaves
us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m.,
thus presumably dusk. Petitioner and his companions were merely standing at the corner and were not
creating any commotion or trouble, as Yu explicitly declared on cross-examination:

Q And what were they doing?

A They were merely standing.

Q You are sure of that?

A Yes, sir.

Q And when you saw them standing, there were nothing or they did not
create any commotion.

A None, sir.
 Q Neither did you see them create commotion?

A None, sir.42

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a
deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was "discovered"
"inside the front waistline" of petitioner, and from all indications as to the distance between Yu and
petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have
been visible to Yu. In fact, as noted by the trial court:

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

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

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

Costs de oficio.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 83988 September 29, 1989
RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S RIGHTS
(ULAP), petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT COMMAND, respondents.

Ricardo C. Valmonte for himself and his co-petitioners.

PADILLA, J.:

This is a petition for prohibition with preliminary injunction and/or temporary restraining order,
seeking the declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional
and the dismantling and banning of the same or, in the alternative, to direct the respondents to
formulate guidelines in the implementation of checkpoints, for the protection of the people.

Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of the
Integrated Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner
Union of Lawyers and Advocates for People's Rights (ULAP) sues in its capacity as an association whose
members are all members of the IBP.

The factual background of the case is as follows:

On 20 January 1987, the National Capital Region District Command (NCRDC) was activated pursuant to
Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission of conducting
security operations within its area of responsibility and peripheral areas, for the purpose of
establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere
conducive to the social, economic and political development of the National Capital Region. 1 As part of
its duty to maintain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela,
Metro Manila.

Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela are
worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical
disposition of the military manning the checkpoints, considering that their cars and vehicles are being
subjected to regular searches and check-ups, especially at night or at dawn, without the benefit of a
search warrant and/or court order. Their alleged fear for their safety increased when, at dawn of 9 July
1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan, was gunned down
allegedly in cold blood by the members of the NCRDC manning the checkpoint along McArthur
Highway at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the checkpoint and
for continuing to speed off inspire of warning shots fired in the air. Petitioner Valmonte also claims
that, on several occasions, he had gone thru these checkpoints where he was stopped and his car
subjected to search/check-up without a court order or search warrant.

Petitioners further contend that the said checkpoints give the respondents a blanket authority to make
searches and/or seizures without search warrant or court order in violation of the Constitution; 2 and,
instances have occurred where a citizen, while not killed, had been harassed.

Petitioners' concern for their safety and apprehension at being harassed by the military manning the
checkpoints are not sufficient grounds to declare the checkpoints as per se illegal. No proof has been
presented before the Court to show that, in the course of their routine checks, the military indeed
committed specific violations of petitioners' right against unlawful search and seizure or other rights.

In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People's Right
(ULAP) vs. Integrated National Police, 3 it was held that individual petitioners who do not allege that
any of their rights were violated are not qualified to bring the action, as real parties in interest.

The constitutional right against unreasonable searches and seizures is a personal right invocable only
by those whose rights have been infringed, 4 or threatened to be infringed. What constitutes a
reasonable or unreasonable search and seizure in any particular case is purely a judicial question,
determinable from a consideration of the circumstances involved. 5

Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without
a search warrant by the military manning the checkpoints, without more, i.e., without stating the
details of the incidents which amount to a violation of his right against unlawful search and seizure, is
not sufficient to enable the Court to determine whether there was a violation of Valmonte's right
against unlawful search and seizure. Not all searches and seizures are prohibited. Those which are
reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is
to be resolved according to the facts of each case. 6

Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on
the public fair grounds, 7 or simply looks into a vehicle, 8 or flashes a light therein, 9 these do not
constitute unreasonable search.

The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be
considered as a security measure to enable the NCRDC to pursue its mission of establishing effective
territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also
be regarded as measures to thwart plots to destabilize the government, in the interest of public
security. In this connection, the Court may take judicial notice of the shift to urban centers and their
suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police and
military men by NPA "sparrow units," not to mention the abundance of unlicensed firearms and the
alarming rise in lawlessness and violence in such urban centers, not all of which are reported in media,
most likely brought about by deteriorating economic conditions — which all sum up to what one can
rightly consider, at the very least, as abnormal times. Between the inherent right of the state to protect
its existence and promote public welfare and an individual's right against a warrantless search which is
however reasonably conducted, the former should prevail.

True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the
same manner that all governmental power is susceptible of abuse. But, at the cost of occasional
inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal
times, when conducted within reasonable limits, are part of the price we pay for an orderly society and
a peaceful community.

Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and a
review and refinement of the rules in the conduct of the police and military manning the checkpoints
was ordered by the National Capital Regional Command Chief and the Metropolitan Police Director. 10

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

THIRD DIVISION

G.R. No. 141137               January 20, 2004

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
VICTOR DIAZ VINECARIO; ARNOLD ROBLE and GERLYN WATES, Appellants.
 DECISION

CARPIO-MORALES, J.:

From the Decision of July 20, 1999, as amended by Order of September 9, 1999, of the Regional Trial
Court of Davao City, Branch 16, finding appellants Victor Vinecario, Arnold Roble and Gerlyn Wates
guilty beyond reasonable doubt of violation of Article IV of Republic Act No. 6425 (Dangerous Drugs Act
of 1972, as amended by Republic Act No. 7659), and imposing upon them the penalty of reclusion
perpetua, they lodged the present appeal.

The Information dated April 25, 1995, filed against appellants reads as follows:

The undersigned accuses the above-named accused for VIOLATION OF SECTION 4, ARTICLE II IN
RELATION TO SECTION 21, ARTICLE IV OF R.A. 6425, committed as follows:

That on or about April 10, 1995 in the City of Davao, Philippines and within the jurisdiction of this
Honorable Court, the above-mentioned accused, conspiring, confederating and helping one another,
without being authorized by law, willfully, unlawfully and feloniously transported, delivered and
possessed 1.7 kilos dried marijuana leaves which are prohibited drugs.

CONTRARY TO LAW.1

Upon arraignment on September 11, 1995, appellants, duly assisted by counsel, pleaded not guilty to
the offense charged.

The facts as established by the prosecution are as follows:

On the night of April 10, 1995, at around 10:45 p.m., as about fifteen police officers were manning a
checkpoint at Ulas, Davao City pursuant to COMELEC Resolution No. 2735, otherwise known as the
COMELEC gun ban, a Honda TMX motorcycle with three men on board sped past them. 2 One of the
police officers blew his whistle3 and ordered them to return to the checkpoint.

Obliging, the three men aboard the motorcycle returned to the checkpoint. SPO1 Haydenburge Goc-
ong (SPO1 Goc-ong) of the 11th Regional Mobile Force 4th Company thereupon asked them why they
sped away to which appellant Victor Vinecario (Vinecario), who was seated behind appellant Arnold
Roble (Roble) and in front of appellant Gerlyn Wates (Wates) on the motorcycle, retorted that he is a
member of the army.4 When asked by the law enforcers to produce an identification card, he could not,
however, offer any. At this point, the police officers noticed that a big military backpack was slung over
the right shoulder of Vinecario who was observed, as were his co-appellants, to be afraid and acting
suspiciously.5 SPO1 Goc-ong thus asked Vinecario what the contents of the backpack were. Vinecario
answered that it merely contained a mat and proceeded to pass it to Wates, who in turn passed it to
Roble who, however, returned it to Vinecario.6

Suspecting that the backpack contained a bomb, SPO1 Goc-ong instructed his men to disperse,
following which he ordered Vinecario to open the bag. Vinecario did as ordered and as SPO1 Goc-ong
noticed something wrapped in paper, he told Vinecario to take the same out. Again Vinecario obliged,
albeit reiterating that it was only a mat.
SPO1 Goc-ong then touched the stuff wrapped in paper upon which Vinecario grabbed it, 7 resulting to
the tearing off of the paper wrapper. Soon the smell of marijuana wafted in the air.

Vinecario thereafter told SPO1 Goc-ong "let us talk about this,"8 but the latter ignored Vinecario and
instead called his Commanding Officer and reported to him that marijuana was found in Vinecario’s
possession.

On orders of the Commanding Officer, the other police officers brought appellants along with two
bundles of marijuana, the backpack and the motorcycle to the battalion office at Camp Catitipan in
Davao City and were turned over to one PO2 Cabalon, an investigator of Regional Mobile Force 11.
Before proceeding to said battalion office, however, the incident was blottered 9 by PO3 Edward
Morado at the Buhangin Police Station.10

On April 11, 1995, SPO1 Goc-ong, PO1 Vicente Carvajal (PO1 Carvajal) and PO1 Pual Padasay brought
the confiscated suspected marijuana to the camp’s crime laboratory for examination 11 which
determined it to weigh 1,700 grams12 and to be indeed positive therefor.13

As for appellants, their version of the incident follows:

Vinecario, then a member of the 25th Infantry Battalion of the 6th Infantry Division of the Philippine
army stationed at Pagakpak, Pantukan,14 approached motorcycle driver Wates at a terminal in Andile,
Mawab and requested him to bring him to his elder brother at Parang, Maguindanao for a fee of
P500.00 which he paid.15 The two thus proceeded to Carmen, Panabo where they picked up Roble to
alternate with Wates as driver, and at 8:00 a.m., the three left for Parang. 16

On reaching Parang at about 1:20 p.m., Vinecario borrowed P3,000.00 from his brother Teofanis to
shoulder the medical expenses of his son. At about 4:30 p.m., after partaking of snacks at Teofanis’
residence, appellants left for Davao City.

Along Parang Highway, Abdul Karim Datolarta, Vinecario’s former co-employee at Emerson Plywood
where he previously worked, blocked the motorcycle.17 Vinecario thus alighted from the motorcycle
and shook hands with Datolarta18 who asked where they were headed for and requested that he ride
with them. Vinecario turned Datolarta down as there was no longer any room in the motorcycle.
Datolarta then asked if he (Vinecario) could take his bag of clothes and bring it to his cousin, one Merly,
in Roxas, Tagum. Without examining its contents, Vinecario acquiesced, took Datolarta’s bag and left
with his co-appellants.19

On reaching Ulas in the evening of the same day, appellants, seeing that there was a checkpoint, 20 sped
past it. When they were about 50 to 60 meters away from the checkpoint, they heard a whistle,
prompting Wates to tap Vinecario, telling him that the whistle came from the checkpoint. Vinecario
then told Roble to go back to the checkpoint.

While at the checkpoint, five police officers approached appellants and instructed them to alight from
the motorcycle. One of the officers asked Vinecario who he was, and Vinecario identified himself as a
member of the Philippine National Police.21 The officer asked for identification and when Vinecario
could not produce any, the former got the backpack slung on Vinecario’s shoulder.

The same officer then asked Vinecario if they could open the bag, and as Vinecario acquiesced, two
officers opened the bag upon which they shouted that it contained marijuana. Vinecario then grabbed
the backpack to confirm if there was indeed marijuana. At that instant, the police officers held his
hands and brought him, together with the other appellants, to the Buhangin Police Station, and later to
Camp Catitipan.

At the camp, appellants were investigated by police officials without the assistance of counsel,
following which they were made to sign some documents which they were not allowed to read. 22

The trial court, by Decision of July 20, 1999, found appellants guilty as charged. The dispositive portion
of the decision reads, quoted verbatim:

WHEREFORE, finding the evidence of the prosecution, more than sufficient to prove the guilt of all
three accused beyond reasonable doubt of the offense charged, accused PFC Victor Vinecario, Arnold
Roble and Gerlyn Wates, pursuant to Sec. 4, Art. II in relation to Art. IV or (sic) Rep. Act 6425 as
amended by Rep. Act 7659, Sec. 20, par. 5 thereof, are jointly sentence (sic) to suffer the supreme
penalty of death by lethal injection, under Rep Act 8177 in the manner and procedure therein
provided, in relation to Sec. 24 of Rep. Act 7659, amending Art. 81 of the Revised Penal Code.

Finally pursuant to Rep. Act 7659 Sec. 22 the Branch Clerk of Court of RTC 16 Davao City, is ordered to
elevate the entire records of this case with the Clerk of Court, Supreme Court Manila, for the automatic
review of this Decision, after its promulgation.

SO ORDERED.23 (Underscoring supplied)

By Order of September 9, 1999, the trial court set aside its decision of July 20, 1999 and disposed as
follows, quoted verbatim:

Accordingly, all accused (sic) motion for reconsideration on this aspect, on the imposition of the
penalty against all accused, even if invoked only be accused Venecaio (sic) through his counsel de
officio, will apply to all accused since there exists conspiracy of all in the commission of the offense
charged.

Judgment of this court, dated July 20, 1999, is accordingly set aside and reconsidered, only insofar as
the imposition of the supreme penalty of death through lethal injection under Republic Act No. 8177, is
concerned.

All accused PFC Victor Venecario, Arnold Roble and Gerlyn Wates, are instead sentence (sic) to suffer
the penalty of reclusion perpetua, pursuant to Art. IV, Sec. 21, in relation to Art. IV of Republic Act No.
6425 as amended by Republic Act No. 7659, Sec. 20, par. 5 thereof, in accordance with Art. 63 of the
Revised Penal Code, as decided by the Supreme Court in the recent case of Peope (sic) vs. Ruben
Montilla G.R. No. 123872 dated January 30, 1998.

However, the findings of this court for the conviction of all aaccused (sic) of the offense charged, is (sic)
sustained. The corresponding motion (sic) for reconsideration of all accused through their counsel for
their acquittal of (sic) the offense charged, is denied, for lack of merit.

SO ORDERED.24 (Emphasis and Underscoring supplied)

The prosecution then filed a Motion for Reconsideration 25 dated September 14, 1995 of the above-
mentioned Order of the trial court, it arguing that the commission of the offense charged against
appellants was attended by an aggravating circumstance in that it was committed by an organized or
syndicated crime group, thus warranting the imposition of the death penalty.

In the meantime, Roble and Wates filed their Notice of Appeal26 on September 15, 1999. Vinecario
followed suit and filed his Notice of Appeal.27

The trial court, by Order dated September 22, 1999, denied the prosecution’s Motion.

In their brief, Roble and Wates assign the following errors:

1. THE TRIAL COURT’S OBSERVATION THAT APPELLANTS WATES AND ROBLE CONSPIRED WITH
VICTOR VINECARIO IN TRANSPORTING MARIJUANA FROM PARANG, MAGUINDANAO IS NOT
BORNE BY THE EVIDNECE (sic) ON RECORD AND SHOWS THAT THE TRIAL COURT GRAVELY
ERRED IN MISAPPREHENDING FACTS IF NOT A COMPLETE DISREGARD OF THE EVIDENCE, BOTH
DOCUMENTARY AND TESTIMONIAL.

2. THE TRIAL COURT GRAVELY ERRED IN FAILING TO AFFORD EVIDENTIARY WEIGHT TO THE
RECANTATION MADE BY POLICE OFFICERS HAYDENBURG GOC-ONG AND VICENTE CARVAJAL
THAT BOTH APPELLANTS WATES AND ROBLE WERE NOT NERVOUS AND APPREHENSIVE AT THE
TME (sic) OF THE OPENING OF THE MILITARY PACK CONTAINING MARIJUANA NEAR THE
CHECKPOINT.

3. THE TRIAL COURT GRAVELY ERRED IN NOT GIVING CREDENCE TO THE TESTIMONIES OF
APPELLANTS WATES AND ROBLE THAT THEY WERE MERELY HIRED BY VICTOR VINECARIO TO
BRING HIM TO PARANG, MAGUINDANAO FOR A FEE OF P500.00 WITH FREE FOOD AND
GASOLINE.

4. THE TRIAL COURT GRAVELY ERRED IN DECLARING THE RENTAL OF P500.00 WHICH
VINECARIO PAID TO THE OWNER OF THE [MOTORCYCLE] AS INADEQUATE BY TAKING JUDICIAL
NOTICE OF THE BUS FARE OF P268.00 FROM MACO, DAVAO PROVINCE TO SUN WAY CROSSING,
MAGUINDANAO DOWN TO PARANG, MAGUINDANAO. 28

Wates and Roble argue that there is no iota of evidence to prove that they acted with unity of purpose
and in the execution of any unlawful objective with Vinecario.29 They assert that they had no prior
knowledge of Vinecario’s plan to meet with a man who would give the backpack containing marijuana;
that prosecution witnesses SPO1 Goc-ong and PO1 Carvajal’s declaration that they (appellants Wates
and Roble) were not nervous, uneasy or apprehensive when the backpack was opened buttresses their
claim that they did not conspire with Vinecario; and that the prosecution’s theory of conspiracy was
merely based on the testimony of PO1 Carvajal that they acted nervously when the backpack was
ordered opened for inspection; that there was a "great variance" in the testimonies of SPO1 Goc-ong
and PO1 Carvajal in the direct examination and their testimonies on rebuttal as to the events that
transpired on April 10, 1995, thus casting serious doubts on the trial court’s findings of guilt.

On September 17, 2001, Vinecario filed an Urgent Motion to Withdraw Appeal, 30 stating that he is
"practically satisfied with the decision of the trial court"; that "he would not waste anymore the effort
of the honorable Supreme Court Justices in further reviewing his case"; and that as he was "driven by
the sincerest desire in renewing his life," he "irrevocably moves for the withdrawal of his appeal." On
even date, Roble and Wates likewise filed an Urgent Motion to Withdraw Appeal, 31 stating that they
admit the commission of the offense for which they were convicted; that they are satisfied with the
decision of the trial court; and that they are already serving the penalty for their offense and "realize
the overt admittance of guilt as the only vehicle in [their] gradual renewal."

By Resolution of November 27, 2001, this Court denied the Motions of appellants and directed
Vinecario to file his brief within forty-five days from notice of the resolution.

In a brief dated January 25, 2002, Vinecario attributes the following errors to the trial court:

I. THE COURT A QUO GRAVELY ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF
ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED 1,700 GRAMS OF MARIJUANA AS (sic)
VALID.

II. THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-
APPELLANT THE ALLEGED 1,700 GRAMS OF MARIJUANA AS IT WAS A PRODUCT OF AN ILLEGAL
SEARCH.

III. THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY
OF PROSECUTION WITNESSES AND IN GIVING THE POLICEMEN THE PRESUMPTION OF
REGULARITY IN THE PERFORMANCE OF DUTY DESPITE THE APPARENT IRREGULARITIES IN THE
MANNER OF ARRESTING THE ACCUSED-APPELLANT.

IV. THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-
APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.32

Vinecario argues that the prosecution failed to show that the search conducted by the police
officers was incident to a lawful arrest; that he could not have been deemed to have consented
to the search as any such consent was given under intimidating or coercive circumstances; and
that there existed no probable cause to justify the search and seizure of the backpack, hence,
the marijuana is inadmissible in evidence, it being a product of illegal search.

Vinecario adds that the police officers who arrested and investigated him failed to inform him of his
rights to remain silent and to have competent and independent counsel of his choice, thereby violating
Section 12(1), Article III of the Constitution.33

The rule is constitutionally enshrined that no search and seizure can lawfully be conducted without a
valid warrant issued by a competent judicial authority. Section 2, Article III of the Constitution so
ordains:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose, shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched, and the persons or
things to be seized.

And Section 3(2), Article III of the same Constitution mandates that any evidence obtained in violation
of the right of the people under Section 2 shall be inadmissible for any purpose in any proceeding.
The constitutional proscription against warrantless searches and seizures admits of certain exceptions,
however. Search and/or seizure may be made without a warrant and the evidence obtained therefrom
may be admissible in the following instances: (1) search incident to a lawful arrest; (2) search of a
moving motor vehicle; (3) search in violation of customs laws; (4) seizure of evidence in plain view; (5)
when the accused himself waives his right against unreasonable searches and seizures; and (6) stop-
and-frisk situations.34

Searches conducted in checkpoints are valid for as long as they are warranted by the exigencies of
public order and are conducted in a way least intrusive to motorists.35 For as long as the vehicle is
neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is
limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right
against unreasonable search.36

x x x [Checkpoints are not illegal per se. Thus, under exceptional circumstances, as where the survival
of organized government is on the balance, or where the lives and safety of the people are in grave
peril, checkpoints may be allowed and installed by the government.

xxx

No one can be compelled, under our libertarian system, to share with the present government its
ideological beliefs and practices, or commend its political, social and economic policies or performance.
But, at least, one must concede to it the basic right to defend itself from its enemies and, while in
power, to pursue its program of government intended for public welfare; and in the pursuit of those
objectives, the government has the equal right, under its police power, to select the reasonable means
and methods for best achieving them. The checkpoint is evidently one of such means it has selected.

Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorists’ right to "free
passage without interruption", but it cannot be denied that, as a rule, it involves only a brief detention
of travelers during which the vehicle’s occupants are required to answer a brief question or two. x x x

These routine checks, when conducted in a fixed area, are even less intrusive. As held by the U.S.
Supreme Court:

"Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential
interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise
as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped
elsewhere. Second checkpoint operations both appear to and actually involve less discretionary
enforcement activity. The regularized manner in which established checkpoints are operated is visible
evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve
the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by
official responsible for making overall decisions as to the most effective allocation of limited
enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint
where it bears arbitrarily or oppressively on motorists as a class, and since field officers may stop only
those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than
there was in the case of roving-patrol stops. Moreover, a claim that a particular exercise of discretion
in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review." 37

Judicial notice is taken of the existence of COMELEC Resolution No. 2735 imposing a gun ban during an
election period issued pursuant to Section 52(c) of the Omnibus Election Code (Batas Pambansa Blg.
881).38 The national and local elections in 1995 having been held on May 8, the present incident, which
occurred on April 10, 1995, was well within the election period.

Although the general rule is that motorists and their vehicles as well as pedestrians passing through
checkpoints may only be subjected to a routine inspection, vehicles may be stopped and extensively
searched when there is probable cause which justifies a reasonable belief of the men at the
checkpoints that either the motorist is a law offender or the contents of the vehicle are or have been
instruments of some offense.39

Probable cause has been defined as such facts and circumstances which could lead a reasonable,
discreet and prudent man to believe that an offense has been committed, and that the objects sought
in connection with the offense are in the place sought to be searched. The required probable cause
that will justify a warrantless search and seizure is not detemined by any fixed formula but is resolved
according to the facts of each case.

Warrantless search of the personal effects of an accused has been declared by this Court as valid,
because of existence of probable cause, where the smell of marijuana emanated from a plastic bag
owned by the accused, or where the accused was acting suspiciously, and attempted to
flee.40 (Emphasis supplied).

That probable cause existed to justify the search conducted by the police officers at the checkpoint is
gathered from the following testimony of SPO1 Goc-ong:

Q: You said you saw three on board a motorcycle what did your unit do when these three persons
approached?

A: We were waiting for them. When they arrived they stopped and speeded away.

Q: What was your reaction when you saw the motor speeding away?

A: One of my men blew his whistle ordering to (sic) return back (sic).

xxx

Q: When they returned back (sic) what happened?

A: When they returned back (sic) I asked them why they speeded away?

Q: What did they answer?

A: One of them said that he is a member of the army.

Q: If that person who said that he is a member of the army is in court, can you point to him?

A: (Witness went down from the witness stand and pointed to a man wearing yellow t-shirt who stood
up and when asked about his name answered that he is Victor Venecario).

xxx
Q: What was your reaction when Venecario failed to show any identification papers to show that he is
really a member of the army?

A: We saw his big backpack and asked him what was inside.

Q: Who was carrying that big backpack?

A: Venecario.

xxx

Q: You said you asked him what was (sic) the contents of that backpack, can you tell us why did you
(sic) ask him?

A: I asked about that because I observed them to be acting suspiciously as if they were afraid and
different reactions (sic).

Q: They were acting suspiciously?

A: Yes.

Q: That is what you have observed from their faces?

A: Yes, sir.

Q: What did Venecario do when you asked him about the contents of that backpack?

A: He said that it is a mat and passed it on to his companion.

Q: You said he passed it on to his companion, there were two (2) companions, to whom did he pass it
on?

A: He passed it on to Wates and Wates passed it on to Roble.

Q: What did Roble do when Wates passed it to him?

A: Roble returned it back (sic) to Venecario.

Q: So what was your reaction when you saw the three passing the bag from one person to another?

A: My suspicion was it was a bomb and ordered my men to scatter.

Q: Tell us why are you (sic) concerned about explosives was there any incident prior to that
checkpoint?

A: Election was past (sic) approaching and there was a threat that Davao City will be bombed.

Q: Prior to that was there any incident?

xxx
A: In Ipil, Zamboanga on April 4.

Q: If you recall when was that?

A: April 4 of the same year.

Q: You said the bag was passed to Venecario and you told your men to scatter, what happened next?

A: I ordered Venecario to open the backpack.

Q: What did Venecario do when you ordered him to open?

A: They opened the backpack..41

SPO1 Goc-ong’s testimony was corroborated by PO1 Vicente Carvajal:

Q: At about 10:45 in the evening of that date April 10, 1995 do you recall of any unusual incident while
you were conducting that checkpoint?

A: Yes, sir.

Q: What was that incident all about?

A: At that time, while we were conducting a checkpoint, we saw this motorcycle passing and flagged
them to stop and there were three (3) persons and one was manning and they briefly stopped but
speeded away.

xxx

Q: When these three (3) persons retured (sic) back (sic) what happened?

A: The one riding introduced himself as a member of the army.

xxx

Q: You said these three persons were nervous and one of them introduced himself as an army man,
what did you do?

A: I asked for an ID.

Q: Who among you asked for an ID?

A: Sgt. Goc-ong.

Q: Where were you at that time when Goc-ong asked for his ID?

A: I was behind him because I backed him up.

Q: What was the reaction of Venecario when he was asked to produce an ID?
A: He answered that he has no ID.

Q: What was the reaction of the group when Venecario failed to show any ID that he was an army
man?

A: Our other companion moved closer as security.

Q: Why?

A: We were on alert because on April 4 the one who attacked were (sic) in uniform.

Q: At that time what was Venecario wearing?

A: He was in camouflage and wearing sleepers (sic).

xxx

Q: After that what happened?

A: We were able to observe that he was carrying a bag.

Q: What was the reaction of Venecario when he was asked what was (sic) the contents of the bag?

A: He appeared to be hesitant and he said that it contained clothes.

Q: Before that what did Venecario do?

A: He placed it in (sic) his shoulder.

Q: What did he do with the backpack?

A: When asked he passed it to his other companions.

Q: What did Venecario when he passed it to his companion?

A: Venecario passed it to his companion and that companion passed it to his other companion.

Q: After this companion received the backpack from his companion what did he do?

A: He returned back (sic) to Venecario.

Q: They passed it from one person to another until it was returned to Venecario?

A: Yes, sir.

xxx

Q: You said that backpack was passed from one person to another and when he got hold of that
backpack what happened?
A: He opened the backpack.

Q: Who told him to open the backpack?

A: Sgt. Goc-ong.42

In light then of appellants’ speeding away after noticing the checkpoint and even after having been
flagged down by police officers, their suspicious and nervous gestures when interrogated on the
contents of the backpack which they passed to one another, and the reply of Vinecario, when asked
why he and his co-appellants sped away from the checkpoint, that he was a member of the Philippine
Army, apparently in an attempt to dissuade the policemen from proceeding with their inspection, there
existed probable cause to justify a reasonable belief on the part of the law enforcers that appellants
were offenders of the law or that the contents of the backpack were instruments of some offense.

As to Vinecario’s allegation that his constitutional rights were violated during the custodial
investigation conducted by the police officers, the same is relevant and material only when an
extrajudicial admission or confession extracted from an accused becomes the basis of his
conviction.43 In the case at bar, the trial court convicted appellants on the basis of the testimonies of
the prosecution witnesses, particularly those of SPO1 Haydenburge Goc-ong and PO1 Vicente Carvajal.

Finally, Vinecario harps on his defense of denial which he recounted as follows:

Q: After leaving the residence of your brother was there any unusual incident that took place?
A: Yes, sir.
Q: What was that?
A: The moment we arrived there there was a person who blocked us.
Q: Where?
A: Parang Highway.
Q: Coming here to Davao?
A: Yes.
Q: What happened after Crossing Parang?
A: There was a person who blocked us.
Q: A former companion of yours?
A: Yes.
Q: A former soldier?
A: No, sir.
Q: You said your former companion, am I correct?
A: Before I became a soldier, I worked in Emerson Plywood.
Q: So that person who flagged down you were (sic) your former companion?
A: Yes.
Q: You are familiar with him?
A: I know him very well.
Q: He was your close friend?
A: Yes.
Q: What is the name of that person who stopped you?
A: Abdul Karim Datolarta.
Q: He was alone when he stopped you?
A: Yes, sir.
Q: What happened when your friend Abdul Karin (sic) Datolarta stopped you?
A: When he stopped us, I immediately disembarked from the motor vehicle and shook hands with him.
Q: He was the one who stopped you or you were the one who told the driver to stop?
A: My friend.
Q: You immediately recognized the face of that friend of yours?
A: Not yet.
Q: What else happened aside from shaking hands and greeting?
A: He asked me where I was heading.
Q: What was your answer?
A: I told him that I am going back to Davao.
Q: What else did he tell you?
A: He told me if he can also ride with us.
Q: What did you tell him?
A: I told him we were already three.
Q: What happened next?
A: Since I refused he asked me if I could bring his bag and he mentioned the name of that cousin of his
in Tagum.
Q: He mentioned the name?
A: Yes, Merly.
Q: What is the family name?
A: He just mentioned Merly who is residing in Tagum.
Q: Where in Tagum?
A: Roxas, Tagum.
Q: What did you do when he asked you to bring that bag to his cousin in Tagum?
A: I asked him what was (sic) the contents?
Q: What did he answer you?
A: He answered clothes.
Q: What did you do?
A: Because were (sic) were in a hurry I slung it in (sic) my shoulder.
Q: You did not become suspicious?
A: No more because I trusted the person and I have an emergency to take (sic) that time. 44

Vinecario’s account - that in the evening of April 10, 1995, while he and his co-appellants were cruising
along the highway, a person whom he failed to recognize but who turned out to be an acquaintance,
Abdul Karim Datolarta, flagged down45 the motorcycle, and as requested by Datolarta, he readily
agreed to bring a backpack to Datolarta’s cousin without checking its contents - is incredible, contrary
to human experience, and taxes credulity. Datolarta was not even apprehended nor presented at the
trial, thus further eliciting serious doubts on Vinecario’s tale.

The defense of denial, like alibi, has invariably been viewed by the courts with disfavor for it can just as
easily be concocted and is a common and standard defense ploy in most prosecutions of the
Dangerous Drugs Act.46

The categorical and consistent testimonies, and the positive identification by prosecution witnesses
SPO1 Goc-ong and PO1 Carvajal, against whom no ill motive to falsely charge appellants was shown,
must thus then prevail over the unconvincing alibi and unsubstantiated denial of appellants.

As for the challenged finding by the trial court of conspiracy among appellants, the same fails.
Conspiracy exists when two or more persons come to an agreement concerning the commission of a
crime and decide to commit it.47 Where the acts of the accused collectively and individually
demonstrate the existence of a common design towards the accomplishment of the same unlawful
purpose, conspiracy is evident, and all the perpetrators will be liable as principals. 48 To exempt himself
from criminal liability, the conspirator must have performed an overt act to dissociate or detach
himself from the unlawful plan to commit the crime.49

In People v. Concepcion,50 this Court held:

x x x Proof of agreement need not rest on direct evidence as the same may be inferred from the
conduct of the parties indicating a common understanding among them with respect to the
commission of the offense. It is not necessary to show that two or more persons met together and
entered into an explicit agreement setting out the details of an unlawful scheme or the details by which
an illegal objective is to be carried out. It may be deduced from the mode and manner in which the
offense was perpetrated or inferred from the acts of the accused evincing a joint or common purpose
and design, concerted action and community of interest.

In the case at bar, as established by the evidence, appellants connived in unlawfully transporting the
subject marijuana. Roble, who was driving the motorcycle at Ulas, did not stop but instead sped away
upon seeing the checkpoint in a clear attempt to avoid inspection by the police officers. When asked as
to the contents of the backpack by SPO1 Goc-ong, appellants passed the same to one another,
indicating that they knew its contents. These circumstances manifest appellants’ concerted efforts and
cooperation towards the attainment of their criminal objective.

Wates and Roble assail the credibility of prosecution witnesses SPO1 Goc-ong and PO1 Carvajal, they
contending that these witnesses contradicted their testimonies-in-chief when they subsequently
testified on rebuttal that appellants were not nervous or apprehensive at all when they were being
inspected by the policemen.

It bears noting, however, that the alleged conflicting observations of SPO1 Goc-ong and PO1 Carvajal
referred to by Roble and Wates on their deportment pertain to different stages of the checkpoint
inspection as a scrutiny of the records reveals. Thus, in his direct examination, SPO1 Goc-ong testified
as follows:

Q: You said you asked him what was (sic) the contents of that backpack, can you tell us why did you
(sic) ask him?
A: I asked about that because I observed them to be acting suspiciously as if they were afraid and
different reactions (sic).
Q: They were acting suspiciously?
A: Yes.
Q: That is what you observed in their faces?
A: Yes, sir.51
PO1 Carvajal, on cross-examination, echoed Goc-ong’s observations on appellants’ deportment upon
returning to the checkpoint:
Q: You said when these three (3) suspects riding the motorcycle returned and stopped you said you
noticed one of them was nervous, did I get you right?
A: Yes, sir.
Q: Only one was nervous?
A: All of them.
Q: When you said they appeared to be nervous, could that mean that they were trembling?
A: Yes, sir.
Q: In fact they were pale, is that correct?
A: Yes.
Q: You noticed they were pale despite the fact that it was dark and it was 10:00 o’clock in the evening?
A: There was light.
Q: The place was well-lighted?
A: Yes, sir.52

On rebuttal, SPO1 Goc-ong stated that appellants were not anxious or apprehensive when he flagged
them down as they crossed the checkpoint.53

PO1 Carvajal, on the other hand, testified on rebuttal that Wates was not nervous as Vinecario’s
backpack was being opened.54

As to the other alleged discrepancies pointed out by Wates and Roble, the following arguments of the
Office of the Solicitor General, which are quoted with approval, should dispose of the same:

It is incorrect to suggest that just because SPO1 Goc-ong testified that other vehicles passed through
the checkpoint before the appellants arrived, the latter could not have sped away from the checkpoint.
SPO1 Goc-ong did not give any testimony that other vehicles were still at the checkpoint at the time
the appellants arrived. On the contrary, he testified there was no other vehicle ahead of the appellants
at the checkpoint when the latter arrived on their motorcycle (TSN, June 17, 1999, p.7).

It is also incorrect to suggest that appellants may not have noticed the checkpoint just because SPO1
Goc-ong made no mention of using reflectorized objects at the checkpoint. As described earlier in his
Brief, this witness explained that the checkpoint was visible because it had a sign board at the middle
of the road that read, "COMELEC GUN BAN" (TSN, June 17, 1999, pp. 6 and 8). There is no way for
appellants not to have noticed the checkpoint.55

In fine, appellants’ defenses fail in light of their clearly proven act of delivering or transporting
marijuana.

The evidence shows that accused-appellant was apprehended in the act of delivering or transporting
illegal drugs. "Transport" as used under the Dangerous Drugs Act is defined to mean: "to carry or
convey from one place to another." When accused-appellant used his vehicle to convey the package
containing marijuana to an unknown destination, his act was part of the process of transporting the
said prohibited substance. Inherent in the crime of transporting the prohibited drug is the use of a
motor vehicle. The very act of transporting a prohibited drug, like in the instant case, is a malum
prohibitum since it is punished as an offense under a special law. The mere commission of the act
constitutes the offense and is sufficient to validly charge and convict an individual committing the act,
regardless of criminal intent. Since the appellant was caught transporting marijuana, the crime
being mala prohibita, accused-appellant’s intent, motive, or knowledge, thereof need not be
shown.56 (Underscoring supplied)

A word on the penalty. As provided in Section 4 of the Dangerous Drugs Act, the penalty of reclusion
perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person who, unless authorized by law, shall transport any prohibited drug. Section
20, Article IV of the same act provides that the penalty imposed in Section 4 shall be applied if the
dangerous drug is, with respect to marijuana, 750 grams or more. In the case at bar, the marijuana
involved weighed 1,700 grams. Since the law prescribes two indivisible penalties, a resort to Article 63
of the Revised Penal Code57 is necessary. There being no mitigating nor aggravating circumstance that
attended the commission of the offense, the lesser penalty of reclusion perpetua was properly imposed
by the trial court. A fine of P500,000.00 should, however, been likewise imposed on the appellants in
solidum in accordance with the law.

WHEREFORE, the decision of the Regional Trial Court, Davao City, Branch 16, in Criminal Case No.
35233-95 finding appellants Victor Vinecario, Arnold Roble and Gerlyn Wates guilty beyond reasonable
doubt of illegally transporting marijuana under Section 4, Article II of Republic Act No. 6425, as
amended, is hereby AFFIRMED with MODIFICATION. As modified, appellants are sentenced to each
suffer the penalty of reclusion perpetua and solidarity pay a fine of P500,000.00.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 202692               November 12, 2014
EDMUND SYDECO y SIONZON, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VELASCO, JR., J.:

Assailed and sought to be set aside in this petition for review under Rule 45 are the December 28, 2011
Decision1 and July 18, 2012 Resolution2 of the Court of Appeals (CA) in CA-G.R. CR No. 33567. The
assailed issuances affirmed the decision3 of the Regional Trial Court (RTC) of Manila, Branch 12, in
Criminal Case Nos. 09-270107-08 which, in turn, affirmed that of the Metropolitan Trial Court (MeTC)
in Manila adjudging petitioner Edmund Sydeco (Sydeco) guilty of drunk driving and resisting arrest. 4

The factual backdrop:

On July 20, 2006, separate Informations, one for Violation of Section 56(f) of Republic Act No. (RA)
41365 and another, for Violation of Article 151 of the Revised Penal Code (RPC) 6 were filed against
petitioner Sydeco with the MeTC in Manila and eventually raffled to Branch 14 of that court. The
accusatory portions of the interrelated informations, docketed as Crim. Case No. 052527-CN for the
first offense and Crim. Case No. 052528-CN for the second, respectively read:

1. Crim. Case No. 052527-CN

That on or about June 11, 2006, in the City of Manila, Philippines, the said accused, being then the
driver and owner of a car, did then and there willfully and unlawfully, drive, manage and operate the
same along Roxas Blvd. cor. Quirino Avenue, Malate, in said city, while under the influence of liquor, in
violation of Section 56(f) of Republic Act 4136.

Contrary to law.

2. Crim. Case No. 052528-CN

That on or about June 11, 2006, in the City of Manila, Philippines, the said accused, did then and there
willfully and unlawfully resist and disobey P/INSP Manuel Aguilar, SPO2 Virgilio Paulino, SPO4 Efren
Bodino and PO3 Benedict Cruz III, bonafide member of the Philippine National Police, Malate Police
Station-9, duly qualified and appointed, and while in the actual performance of their official duties as
such police officers, by then and there resisting, shoving and pushing, the hands of said officers while
the latter was placing him under arrest for violation of Article 151 of the Revised Penal Code.

Contrary to law.

By Order of September 19, 2006, the MeTC classified the cases as falling under, thus to be governed by,
the Rule on Summary Procedure.

When arraigned, petitioner, as accused, pleaded "Not Guilty" to both charges.

During the trial of the two consolidated cases, the prosecution presented in evidence the oral
testimonies of SPO4 Efren Bodino (Bodino), 7 PO2 Emanuelle Parungao8 and Ms. Laura Delos
Santos,9 plus the documents each identified while in the witness box, among which was Exh. "A", with
sub-markings, the Joint Affidavit of Arrest10 executed by SPO2 Bodino and two other police officers. The
defense’s witnesses, on the other hand, consisted of Sydeco himself, his wife, Mildred, and Joenilo
Pano.

The prosecution’s version of the incident, as summarized in and/or as may be deduced from, the CA
decision now on appeal is as follows:

On or about June 11, 2006, P/Insp. Manuel Aguilar (Aguilar), SPO4 Bodino, PO3 Benedict Cruz III and
another officer were manning a checkpoint established along Roxas Boulevard corner Quirino Ave.,
Malate, Manila when, from about twenty (20) meters away, they spotted a swerving red Ford Ranger
pick up with plate number XAE-988. Petitioner was behind the wheel. The team members, all
inuniform, flagged the vehicle down and asked the petitioner to alightfrom the vehicle so he could take
a rest at the police station situated nearby,before he resumes driving. 11 Petitioner, who the policemen
claimed was smelling of liquor, denied being drunk and insisted he could manage to drive. Then in a
raised voice, petitioner started talking rudely to the policemen and in fact yelled at P/Insp. Aguilar
blurting: "P…g ina mo, bakit mo ako hinuhuli." Atthat remark, P/Insp. Aguilar, who earlier pointed out
to petitioner that his team had seen him swerving and driving under the influence of liquor, proceeded
to arrestpetitioner who put up resistance. Despite petitioner’s efforts to parry the hold on him, the
police eventually succeeded in subduing him who was then brought to the Ospital ng Maynila where
he was examined and found to be positive of alcoholic breath per the Medical Certificate issuedby that
hospital, marked as Exh. "F". Petitioner was then turned over to the Malate Police Station for
disposition.12 Petitioner, on the other hand, claimed tobe a victim in the incident in question, adding in
this regard that he has in fact filed criminal charges for physical injuries, robbery and arbitrary
detention against P/Insp. Aguilar et al. In his Counter-Affidavit 13 and his Complaint-Affidavit14 appended
thereto, petitioner averred that, in the early morning of June 12, 2006, he together with Joenilo Pano
and Josie Villanueva, cook and waitress, respectively, in his restaurant located along Macapagal Ave.,
Pasay City, were on the way home from on board his pick-up when signaled to stop by police officers at
the area immediately referred to above. Their flashlights trained on the inside of the vehicle and its
occupants, the policemen then asked the petitioner to open the vehicle’s door and alight for a body
and vehicle search, a directive he refused to heed owing to a previous extortion experience. Instead, he
opened the vehicle window, uttering, "plain view lang boss, plain view lang." Obviously irked by this
remark, one of the policemen, P/Insp. Aguilar, as it turnedout, then told the petitioner that he was
drunk, pointing to three cases of empty beer bottles in the trunk of the vehicle. Petitioner’s explanation
about being sober and that the empty bottles adverted to came from his restaurant was ignored as
P/Insp. Aguilar suddenly boxed him (petitioner) on the mouth and poked a gun at his head, at the same
time blurting, "P…g ina mo gusto mo tapusin na kita dito marami ka pang sinasabi." The officers then
pulled the petitioner out of the driver’s seat and pushed him into the police mobile car, whereupon he,
petitioner, asked his companions to call up his wife. The policemen then brought petitioner to the
Ospital ng Maynila where they succeeded in securing a medical certificate under the signature of one
Dr. Harvey Balucating depicting petitioner as positive of alcoholic breath, although he refused to be
examined and no alcohol breath examination was conducted. He was thereafter detained from 3:00
a.m.of June 12, 2006 and released in the afternoon of June 13, 2006. Before his release, however, he
was allowed to undergo actual medical examination where the resulting medical certificate indicated
that he has sustained physical injuries but negative for alcohol breath. Ten days later, petitioner filed
his Complaint-Affidavit against Dr. Balucating, P/Insp. Aguilar and the other police officers.

Petitioner also stated in his counter-affidavit that, under Sec. 29 of R.A. 4136, or the Land
Transportation and Traffic Code, the procedure for dealing with a traffic violation is not to place the
erring driver under arrest, but to confiscate his driver’s license.

On June 26, 2009, the MeTC rendered judgment finding petitioner guilty as charged, disposing as
follows:

WHEREFORE, premises considered, the prosecution having established the guilt of the accused beyond
reasonable doubt, his conviction of the offenses charges is hereby pronounced. Accordingly, he is
sentenced to:

1. Pay a fine of two hundred fifty pesos (₱250.00) for Criminal Case No. 052527-CN; and

2. Suffer imprisonment of straight penalty of three (3) months and pay a fine of two hundred
fifty pesos (₱250.00) for Criminal Case No. 052528-CN.

For lack of basis, no civil liability is adjudged.

The Branch Clerk of Court is directed to certify to the Land Transportation Office the result of this case,
stating further the data required under Section 5815 of Republic Act 4136.

Therefrom, petitioner appealed to the RTC on the main submissions that the MeTC erred in: 1)
according credit to the medical certificate issued by Dr. Balucating, although the records custodian of
Ospital ng Maynila was presented to testify thereon instead of the issuing physician, and 2) upholding
the veracity of the joint affidavit of arrest of P/INSP Manuel Aguilar, SPO4 Efren Bodino, and PO3
Benedict Cruz III, considering that only SPO4 Bodino appeared in court to testify.
By Decision16 dated February 22, 2010, the RTC affirmed the conviction of the petitioner, addressing
the first issue thus raised in the appeal in the following wise: Dr. Balucating’s failure to testify relative
to petitioner’s alcoholic breath, as indicatedin the medical certificate, is not fatal as such testimony
would only serve to corroborate the testimony on the matter of SPO4 Bodino, noting thatunder the
Rules of Court,17 observations of the police officers regarding the petitioner’s behavior would suffice to
support the conclusion of the latter’s drunken state on the day he was apprehended.18

Apropos the second issue, the RTC pointed out that the prosecution has the discretion as to how many
witnesses it needs to present before the trial court, the positive testimony of a single credible witness
as to the guilt of the accused being reasonable enough to warrant a conviction. The RTC cited
established jurisprudence19 enunciating the rule that preponderance is not necessarily with the
greatest number as "[W]itnesses are to be weighed, not numbered." Following the denial by the RTC of
his motion for reconsideration, petitioner went to the CA on a petition for review, the recourse
docketed as CA-G.R. CR No. 33567. By a Decision dated December 28, 2011, as would be reiterated in a
Resolution of July 18, 2012, the appellatecourt affirmed that of the RTC, thus:

WHEREFORE, the petition is DENIED. The assailed Decision dated February 22, 2010 of the RTC, Manila,
Branch 12, is AFFIRMED.

SO ORDERED.

Hence, this petition on the following stated issues:

I. The CA erred in upholding the presumption of regularity in the performance of duties by the
police officers; and

II. The CA erred in giving weight to the Medical Certificate issued by Dr. Harvey Balucating, in
the absence of his testimony before the Court.

The petition is meritorious.

Prefatory, the rule according great weight, even finality at times, to the trial court’s findings of fact
does hold sway when, as here, it appears in the record that facts and circumstancesof weight and
substance have been overlooked, misapprehended or misapplied in a case under appeal. 20 Corollary, it
is basic that an appeal in criminal prosecutions throws the whole case wide open for review, inclusive
of the matter of credibility and appreciation of evidence. 21` Peace officers and traffic enforcers,like
other public officials and employees are bound to discharge their duties with prudence, caution and
attention, which careful men usually exercise in the management of their own affairs. 22

In the case at bar, the men manning the checkpoint in the subject area and during the period material
appearednot to have performed their duties as required by law, or at least fell short of the norm
expected of peace officers. They spotted the petitioner’s purported swerving vehicle. They then
signaled him to stop which he obeyed. But they did not demand the presentation of the driver’s license
orissue any ticket or similar citation paper for traffic violation as required under the particular premises
by Sec. 29 of RA 4136, which specifically provides:

SECTION 29. Confiscation of Driver’s License. – Law enforcement and peace officers of other agencies
duly deputized by the Director shall, in apprehending a driver for any violation of this Act or any
regulations issued pursuant thereto, or of local traffic rules and regulations x x x confiscate the license
ofthe driver concerned and issue a receipt prescribed and issuedby the Bureau therefor which shall
authorize the driver to operate a motor vehicle for a period not exceeding seventy-two hours from the
time and date of issue of said receipt. The period so fixed in the receipt shall not be extended, and shall
become invalid thereafter.x x x (Emphasis added.) Instead of requiring the vehicle’s occupants to
answer one or two routinary questions out of respectto what the Court has, in Abenes v. Court of
Appeals,23 adverted to as the motorists’ right of "free passage without [intrusive] interruption," P/Insp.
Aguilar, et al. engaged petitioner in what appears to be an unnecessary conversation and when
utterances were made doubtless not to their liking, they ordered the latter to step out of the vehicle,
concluding after seeing three (3) empty cases of beer at the trunk of the vehicle that petitioner was
driving under the influence of alcohol. Then petitioner went on with his "plain view search" line. The
remark apparently pissed the police officers off no end as one of them immediately lashed at petitioner
and his companions as "mga lasing" (drunk) and to get out of the vehicle, an incongruous response to
an otherwise reasonable plea. Defense witness, Joenilo Pano, graphically described this particular
event in his sinumpaang salaysay, as follows:

x x x matapos kami huminto ay naglapitan sa amin ang mga pulis, nag flash light sa loob ng sasakyan at
sa aming mga mukha.

x x x isang pulis ang nag-utos sa aminna kami ay magsi-baba at buksan ang pintuan ng nasabing
sasakyan.

x x x dahil doon sinabi ni Kuya sa mga pulis, na hindi pwede iyon at pinigilan niya ako at ang aking
kasama kong waitress na bumaba.

x x x iginiit ni Kuya sa mga pulisang salitang "PLAIN VIEW LANG BOSS, PLAIN VIEW LANG" pero iyon
ayhindi nila pinansin. Sa halip as isang pulis ang nagsabi na "MGA LASING KAYO HETO MAY CASE PA
KAYO NG BEER".

x x x habang nagpapaliwanag si Kuya, isang pulis ang biglang kumuha ng susi ng sasakyan habang ang
isang pulis ang biglang sumuntok sa bibig ni Kuya, nagbunot ng baril at tinutukan sa ulo si Kuya.

x x x dahil doon ay nagmakaawa ako na wag barilin si Kuya subalit ako rin ay tinutukan ng baril. x x x na
matapos suntukin si Kuya aypinagtulungan siya ng mga pulis na ilabas sa sasakyan at nang mailabas
siyaay pinagtulakan siya ng mga pulis sa gilid ng kalsada habang hawak ang kanilang baril. 24

Pano’s above account ironicallyfinds in a way collaboration from the arresting officers themselves who
admitted that they originally had no intention to search the vehicle in question nor subject its
occupants to a body search. The officers wrote in their aforementioned joint affidavit:

xxxx

That we arrested the suspect, Edmund Sydeco y Siozon x x x for violation of RA 4136 (Driving under the
influence of liquor), and violation of Article 151 of the RPC (Resisting Arrest) x x x committed on or
about 3:30A.M., June 11, 2006 along x x x Malate, Manila. x x x He began to raise his voice and
converse with us rudely without considering that we are in uniform, on duty and performing our job.
P/INSP Manuel Aguilar pointed out that we saw him swerving and driving under the influence of liquor
that was why we are inviting him to our police station in which our intention was to make him rest for
a moment before he continue to drive. x x x (Emphasis added.)
In fine, at the time of his apprehension, or when he was signaled to stop, to be precise, petitioner has
not committed any crime or suspected of having committed one. "Swerving," as ordinarily
understood,refers to a movement wherein a vehicle shifts from a lane to another or to turn aside from
a direct course of action or movement.25 The act may become punishable when there is a sign
indicating that swerving is prohibited or where swerving partakes the nature ofreckless driving, a
concept defined under RA 4136, as:

SECTION 48. Reckless Driving. – Noperson shall operate a motor vehicle on any highway recklessly or
without reasonable caution considering the width, traffic, grades, crossing, curvatures, visibility and
other conditions of the highway and the conditions of the atmosphere and weather, or so as to
endanger the property or the safetyor rights of any person or so as to cause excessive or unreasonable
damage to the highway.

Swerving is not necessarily indicative of imprudent behavior let alone constitutive of reckless driving.
To constitute the offense of reckless driving, the act must be something more than a mere negligence
in the operation of a motor vehicle, and a willful and wantondisregard of the consequences is
required.26 Nothing in the records indicate that the area was a "no swerving or overtaking zone."
Moreover, the swerving incident, if this be the case, occurred at around 3:00 a.m. when the streets are
usually clear of moving vehicles and human traffic, and the danger to life, limb and property to third
persons is minimal. When the police officers stopped the petitioner’s car, they did not issue any ticket
for swerving as required under Section 29 of RA 4136. Instead, they inspected the vehicle, ordered the
petitioner and his companions to step down of their pick up and concluded that the petitioner was
then drunk mainly because of the cases of beer found at the trunk of the vehicle. On re-direct
examination, SPO4 Bodino testified:

Q: On that particular date, time and place … what exactly prompted you to arrest the accused (sic) the
charged in for Viol. of Section 56(f) of R.A. 4136?
A: Noong mag check-up kami, naamoynamin na amoy alak siya at yung sasakyan ay hindi maganda ang
takbo.
Q: Now you stated in your affidavit of arrest Mr. Witness that you spotted the vehicle of the accused
swerving, is that correct?
A: Yes, sir.
Q. Is that also the reason why you apprehended him?
A: Yes, sir.
Q: And what happened after Mr. Witness, when you approached the vehicle of the accused?
A: The accused was in a loud voice. He was asking, "Bakit daw siya pinahihinto?"
xxxx
Q: How do you describe the resistance Mr. Witness?
A: He refused to ride with usgoing to the hospital, Your Honor.

x x x x27

Going over the records, it is fairly clear that what triggered the confrontational stand-off between the
police team, on one hand, and petitioner on the other, was the latter’s refusal to get off of the vehicle
for a body and vehicle search juxtaposed by his insistence on a plain view search only. Petitioner’s twin
gestures cannot plausibly be considered as resisting a lawful order. 28 He may have sounded boorish or
spoken crudely at that time, but none of this would make him a criminal. It remains to stress that the
petitioner has not, when flagged down, committed a crime or performed an overt act warranting a
reasonable inference of criminal activity. He did not try to avoid the road block established. He came to
a full stop when so required to stop. The two key elements of resistance and serious disobedience
punished under Art. 151 of the RPC are: (1) That a person in authority or his agent is engaged in the
performance of official duty or gives a lawful order to the offender; and (2) That the offender resists or
seriously disobeys such person or his agent. 29

There can be no quibble that P/Insp. Aguilar and his apprehending team are persons in authority or
agents of a person in authority manning a legal checkpoint. But surely petitioner’s act of exercising
one’s right against unreasonable searches30 to be conducted in the middle of the night cannot, in
context, be equated to disobedience let alone resisting a lawful order in contemplation of Art. 151 of
the RPC. As has often been said, albeit expressed differently and under dissimilar circumstances, the
vitality of democracy lies not in the rights it guarantees, but in the courage of the people to assert and
use them whenever they are ignored or worse infringed. 31 Moreover, there is, to stress, nothing in RA
4136 that authorized the checkpoint-manning policemen to order petitioner and his companions to get
out of the vehicle for a vehicle and body search. And it bears to emphasize that there was no
reasonable suspicion of the occurrence of a crime that would allow what jurisprudence refers to as a
"stop and frisk" action. As SPO4 Bodino no less testified, the only reason why they asked petitioner to
get out of the vehicle was not because he has committed a crime, but because of their intention
toinvite him to Station 9 so he could rest before he resumes driving. But instead of a tactful invitation,
the apprehending officers, in an act indicative of overstepping of their duties, dragged the petitioner
out of the vehicle and, in the process of subduing him, pointed a gun and punched him on the face.
None of the police officers, to note, categorically denied the petitioner’s allegation aboutbeing
physically hurt before being brought to the Ospital ng Maynila to be tested for intoxication. What the
policemen claimed was that it took the three (3) of them to subdue the fifty-five year old petitioner.
Both actions were done in excess of their authority granted under RA 4136. They relied on the medical
certificate issued by Dr. Balucating attesting that petitioner showed no physical injuries. The medical
certificate was in fact challenged not only because the petitioner insisted at every turn that he was not
examined, but also because Dr. Balucating failed to testify as to its content. Ms. Delos Santos, the
medical record custodian ofthe Ospital ng Maynila, testified, but only to attest that the hospital has a
record of the certificate. The trial court, in its decision, merely stated:

At the outset, the records of the case show that the same were not testified upon by the doctor who
issued it.1âwphi1 Instead, the Records Custodian of the Ospital ng Maynila was presented by the
Prosecution to testify on the said documents.

However, although the doctor who examined the accused was unable to testify to affirm the contents
of the Medical Certificate he issued (re: that he was found to have an alcoholic breath), this court finds
that the observation of herein private complainants as to the accused’s behavior and condition after
the incident was sufficient.

Under Section 50 of Rule 130 of the Revised Rules of evidence:

The opinion of a witness for which proper basis is given, may be received in evidence regarding x x x x

The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a
person Under Section 15 of the Revised Rules on Summary Procedure, "at the trial, the affidavits
submitted by the parties shall constitute the direct testimonies of the witnesses who executed the
same."32
In sum, the MeTC, as echoed by RTC and CA later, did not rely on the medical certificate Dr. Balucating
issued on June 12, 2006 as to petitioner’s intoxicated state, as the former was not able to testify as to
its contents, but on the testimony of SPO4Bodino, on the assumption that he and his fellow police
officers were acting in the regular performance of their duties. It cannot be emphasized enough that
smelling of liquor/alcohol and be under the influence of liquor are differing concepts. Corollarily, it is
difficult to determine with legally acceptable certainty whether a person is drunk in contemplation of
Sec. 56(f) of RA 4136 penalizing the act of driving under the influence of alcohol. The legal situation has
of course changed with the approval in May 2013 of the Anti-Drunk and Drugged Driving Act of 2013
(RA 10586) which also penalizes driving under the influence of alcohol (DUIA), 33 a term defined under
its Sec. 3(e) as the "act of operating a motor vehicle while the driver’s blood alcohol concentration level
has, after being subjected to a breath analyzer test reached the level of intoxication as established
jointly by the [DOH], the NAPOLCOM] and the [DOTC]. And under Sec. 3(g) of the IRR of RA 10586, a
driver of a private motor vehicle with gross vehicle weight not exceeding 4,500 kilograms who has BAC
[blood alcohol concentration] of 0.05% or higher shall be conclusive proof that said driver isdriving
under the influence of alcohol. Viewed from the prism of RA 10586, petitioner cannot plausibly be
convicted of driving under the influence of alcohol for this obvious reason: he had not been tested
beyond reasonable doubt, let alone conclusively, for reaching during the period material the threshold
level of intoxication set under the law for DUIA, i.e., a BAC of 0.05% or over. Under Art. 22 of the
RPC,34 penal laws shall be given retroactive insofar asthey are favorable to the accused. Section 19 of
RA 10586 expressly modified Sec. 56(f) of RA 4136. Verily, even by force of Art. 22 ofthe RPC in relation
to Sec. 3(e) of RA 10586 alone, petitioner could very well be acquitted for the charge of driving under
the influence of alcohol, even if the supposed inculpatory act occurred in 2006.

Parenthetically, the Office of the City Prosecutor of Manila, per its Resolution 35 of November 21, 2006
found, on the strength of another physical examination from the same Ospital ng Maynila conducted
by Dr. Devega on the petitioner on the same day,June 12, but later hour, probable cause for slight
physical injuries against P/Insp. Aguilar et al. That finding to be sure tends to indicate that the police
indeed man handled the petitioner and belied, or at least cancelled out, the purported Dr. Balucating’s
finding as to petitioner’s true state.

The Court must underscore at this juncture that the petitioner, after the unfortunate incident, lost no
time incommencing the appropriate criminal charges against the police officers and Dr. Balucating,
whomhe accused of issuing Exh. "F" even without examining him. The element of immediacy in the
filing lends credence to petitioner’s profession of innocence, particularly of the charge of disobeying
lawful order or resisting arrest. Certainly not to be overlooked is the fact that petitioner,in so filing his
complaint, could not have possibly been inspired by improper motive, the police officers being
complete strangers to him and vice versa. Withal, unless he had a legitimate grievance, it is difficult to
accept the notion that petitioner would expose himself to harm’s way by filing a harassment criminal
suit against policemen.

Conviction must come only after it survives the test of reason. 36 It is thus required that every
circumstance favoring one’s innocence be duly taken into account. 37 Given the deviation of the police
officers from the standard and usual procedure in dealing with traffic violation by perceived drivers
under the influence of alcoholand executing an arrest, the blind reliance and simplistic invocation by
the trial court and the CA on the presumption of regularity in the conduct of police duty is clearly
misplaced. As stressed in People v. Ambrosio,38 the presumption of regularity is merely just that, a
presumption disputable by contrary proof and which when challenged by the evidence cannot be
regarded as binding truth. And to be sure, this presumption alone cannot preponderate over the
presumption of innocence that prevails if not overcome by proof that obliterates all doubts as to the
offender’s culpability. In the present case, the absence of conclusive proof being under the influence of
liquor while driving coupled with the forceful manner the police yanked petitioner out of his vehicle
argues against or at least cast doubt on the finding of guilt for drunken driving and resisting arrest.

In case of doubt as to the moral certainty of culpability, the balance tips in favor of innocence or at
least infavor of the milderform of criminal liability. This is as it should be. For, it is basic, almost
elementary, that the burden of proving the guiltof an accused lies on the prosecution which must rely
on the strength of its evidence and noton the weakness of the defense.

WHEREFORE, in light of all the foregoing, the appealed Decision and Resolution of the Court of Appeals
in CA-G.R. CR No. 33567 are hereby REVERSED and SET ASI:OE. Petitioner is hereby acquitted of the
crimes charged in Criminal Case No. 052527-CN and Criminal Case No. 052528-CN.

No pronouncement as to costs.

SECOND DIVISION
G.R. No. 138881               December 18, 2000

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LEILA JOHNSON Y REYES, accused-appellant.

DECISION

MENDOZA, J.:

This is an appeal from the decision,1 dated May 14, 1999, of the Regional Trial Court, Branch 110, Pasay
City, finding accused-appellant Leila Johnson y Reyesguilty of violation of §16 of R.A. No. 6425
(Dangerous Drugs Act), as amended by R.A. No. 7659, and sentencing her to suffer the penalty
of reclusion perpetua and to pay a fine of ₱500,000.00 and the costs of the suit.

The information against accused-appellant alleged:

That on June 26, 1998 inside the Ninoy Aquino International Airport, and within the jurisdiction of this
Honorable Court, the above-named Accused did then and there willfully, unlawfully and feloniously
possess three plastic bags of methamphetamine hydrochloride, a regulated drug, each bag weighing:

#1 ONE HUNDRED EIGHTY SEVEN POINT FIVE (187.5) grams;

#2ONE HUNDRED NINETY EIGHT POINT ZERO (198.0) grams; and

#3 ONE HUNDRED NINETY FOUR POINT SEVEN (194.7) grams, respectively,

or a total of FIVE HUNDRED EIGHTY POINT TWO (580.2) grams of methamphetamine hydrochloride.

That the above-named accused does not have the corresponding

license or prescription to possess or use said regulated drug.

CONTRARY TO LAW.2

Upon being arraigned, accused-appellant pleaded not guilty, 3 whereupon trial was held.

The prosecution presented four witnesses, namely, NBI Forensic Chemist George de Lara, SPO4
Reynaldo Embile, duty frisker Olivia Ramirez, and SPO1 Rizalina Bernal. The defense presented
accused-appellant who testified in her own behalf.

The facts are as follows:

Accused-appellant Leila Reyes Johnson was, at the time of the incident, 58 years old, a widow, and a
resident of Ocean Side, California, U.S.A. She is a former Filipino citizen who was naturalized as an
American on June 16, 1968 and had since been working as a registered nurse, taking care of geriatric
patients and those with Alzheimer’s disease, in convalescent homes in the United States. 4

On June 16, 1998, she arrived in the Philippines to visit her son’s family in Calamba, Laguna. She was
due to fly back to the United States on July 26. On July 25, she checked in at the Philippine Village Hotel
to avoid the traffic on the way to the Ninoy Aquino International Airport (NAIA) and checked out at
5:30 p.m. the next day, June 26, 1998.5

At around 7:30 p.m. of that day, Olivia Ramirez was on duty as a lady frisker at Gate 16 of the NAIA
departure area. Her duty was to frisk departing passengers, employees, and crew and check for
weapons, bombs, prohibited drugs, contraband goods, and explosives.6

When she frisked accused-appellant Leila Johnson, a departing passenger bound for the United States
via Continental Airlines CS-912, she felt something hard on the latter’s abdominal area. Upon inquiry,
Mrs. Johnson explained she needed to wear two panty girdles as she had just undergone an operation
as a result of an ectopic pregnancy.7

Not satisfied with the explanation, Ramirez reported the matter to her superior, SPO4 Reynaldo
Embile, saying "Sir, hindi po ako naniniwalang panty lang po iyon." ("Sir, I do not believe that it is just a
panty.") She was directed to take accused-appellant to the nearest women’s room for inspection.
Ramirez took accused-appellant to the rest room, accompanied by SPO1 Rizalina Bernal. Embile stayed
outside.8

Inside the women’s room, accused-appellant was asked again by Ramirez what the hard object on her
stomach was and accused-appellant gave the same answer she had previously given. Ramirez then
asked her "to bring out the thing under her girdle." Accused-appellant brought out three plastic packs,
which Ramirez then turned over to Embile, outside the women’s room. 9

The confiscated packs, marked as Exhibits C-1, C-2 and C-3, contained a total of 580.2 grams of a
substance which was found by NBI Chemist George de Lara to be methamphetamine hydrochloride or
"shabu."10
Embile took accused-appellant and the plastic packs to the 1st Regional Aviation and Security Office
(1st RASO) at the arrival area of the NAIA, where accused-appellant’s passport and ticket were taken
and her luggage opened. Pictures were taken and her personal belongings were itemized. 11

In her defense, accused-appellant alleged that she was standing in line at the last boarding gate when
she was approached by Embile and two female officers. She claimed she was handcuffed and taken to
the women’s room. There, she was asked to undress and was then subjected to a body search. She
insisted that nothing was found on her person. She was later taken to a room filled with boxes,
garbage, and a chair. Her passport and her purse containing $850.00 and some change were taken
from her, for which no receipt was issued to her. After two hours, she said, she was transferred to the
office of a certain Col. Castillo.12

After another two hours, Col. Castillo and about eight security guards came in and threw two white
packages on the table. They told her to admit that the packages were hers. But she denied knowledge
and ownership of the packages. She was detained at the 1st RASO office until noon of June 28, 1999
when she was taken before a fiscal for inquest.13 She claimed that throughout the period of her
detention, from the night of June 26 until June 28, she was never allowed to talk to counsel nor was
she allowed to call the U.S. Embassy or any of her relatives in the Philippines. 14

On May 14, 1999, the trial court rendered a decision, the dispositive portion of which reads: 15

WHEREFORE, judgment is hereby rendered finding the accused LEILA JOHNSON Y REYES, GUILTY
beyond reasonable doubt of the offense of Violation of Section 16 of Republic Act 6425 as amended
and hereby imposes on her the penalty of RECLUSION PERPETUA and condemns said accused to pay a
fine of FIVE HUNDRED THOUSAND PESOS (₱500,000.00) without subsidiary imprisonment in case of
insolvency and to pay the costs of suit.

The Methamphetamine Hydrochloride (shabu) having a total net weight of 580.2 grams (Exhibits "G",
"C-2" and "C-3") are hereby confiscated in favor of the government and the Branch Clerk of Court is
hereby ordered to cause the transportation thereof to the Dangerous Drugs Board for disposition in
accordance with law.

The accused shall be credited in full for the period of her detention at the City Jail of Pasay City during
the pendency of this case provided that she agreed in writing to abide by and comply strictly with the
rules and regulations of the City Jail.

SO ORDERED.

Accused-appellant contends that the trial court convicted her: (1) "despite failure of the prosecution in
proving the negative allegation in the information;" (2) "despite failure of the prosecution in proving
the quantity of methamphetamine hydrochloride;" (3) "despite violation of her constitutional rights;"
and (4) "when guilt was not proven beyond reasonable doubt."16

First. Accused-appellant claims that she was arrested and detained in gross violation of her
constitutional rights. She argues that the "shabu" confiscated from her is inadmissible against her
because she was forced to affix her signature on the plastic bags while she was detained at the 1st
RASO office, without the assistance of counsel and without having been informed of her constitutional
rights. Hence, she argues, the methamphetamine hydrochloride, or "shabu," should have been
excluded from the evidence.17

The contention has no merit. No statement, if any, was taken from accused-appellant during her
detention and used in evidence against her. There is, therefore, no basis for accused-appellant’s
invocation of Art. III, §12(1) and (3). On the other hand, what is involved in this case is an arrest in
flagrante delicto pursuant to a valid search made on her person.

The trial court held:

The constitutional right of the accused was not violated as she was never placed under custodial
investigation but was validly arrested without warrant pursuant to the provisions of Section 5, Rule 113
of the 1985 Rules of Criminal Procedure which provides:

Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a
warrant, arrest a person:

(a) when in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) when an offense has in fact just been committed, and he has personal knowledge of facts indicating
that the person to be arrested has committed it; and

(Underscoring supplied)

xxxx

A custodial investigation has been defined in People. v. Ayson 175 SCRA 230 as "the questioning
initiated by law enforcement officers after a person has been taken [in] custody or otherwise deprived
of his freedom in any significant way. This presupposes that he is suspected of having committed an
offense and that the investigator is trying to elicit information or [a] confession from him."

The circumstances surrounding the arrest of the accused above falls in either paragraph (a) or (b) of
the Rule above cited, hence the allegation that she has been subjected to custodial investigation is far
from being accurate.18

The methamphetamine hydrochloride seized from her during the routine frisk at the airport was
acquired legitimately pursuant to airport security procedures.

Persons may lose the protection of the search and seizure clause by exposure of their persons or
property to the public in a manner reflecting a lack of subjective expectation of privacy, which
expectation society is prepared to recognize as reasonable. 19 Such recognition is implicit in airport
security procedures. With increased concern over airplane hijacking and terrorism has come increased
security at the nation’s airports. Passengers attempting to board an aircraft routinely pass through
metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray
scans. Should these procedures suggest the presence of suspicious objects, physical searches are
conducted to determine what the objects are. There is little question that such searches are
reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the
reduced privacy expectations associated with airline travel.20 Indeed, travelers are often notified
through airport public address systems, signs, and notices in their airline tickets that they are subject to
search and, if any prohibited materials or substances are found, such would be subject to seizure.
These announcements place passengers on notice that ordinary constitutional protections against
warrantless searches and seizures do not apply to routine airport procedures.

The packs of methamphetamine hydrochloride having thus been obtained through a valid warrantless
search, they are admissible in evidence against the accused-appellant herein. Corollarily, her
subsequent arrest, although likewise without warrant, was justified since it was effected upon the
discovery and recovery of "shabu" in her person in flagrante delicto.

Anent her allegation that her signature on the said packs (Exhibits C-1, C-2 and C-3 herein) had been
obtained while she was in the custody of the airport authorities without the assistance of counsel, the
Solicitor General correctly points out that nowhere in the records is it indicated that accused-appellant
was required to affix her signature to the packs. In fact, only the signatures of Embile and Ramirez
thereon, along with their testimony to that effect, were presented by the prosecution in proving its
case.

There is, however, no justification for the confiscation of accused-appellant’s passport, airline ticket,
luggage, and other personal effects. The pictures taken during that time are also inadmissible, as are
the girdle taken from her, and her signature thereon. Rule 126, §2 of the Revised Rules of Criminal
Procedure authorizes the search and seizure only of the following:

Personal property to be seized. 3/4 A search warrant may be issued for the search and seizure of
personal property:

(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds or fruits of the offense; and
(c) Used or intended to be used as the means of committing an offense.

Accordingly, the above items seized from accused-appellant should be returned to her.

Second. Accused-appellant argues that the prosecution failed to fully ascertain the quantity of
methamphetamine hydrochloride to justify the imposition of the penalty of reclusion perpetua.

Section 20 of R.A. No. 6425, as amended by R.A. No. 7659, states:

Section 20 - Application Of Penalties, Confiscation And Forfeiture Of The Proceeds or Instrument Of The
Crime – The penalties for offenses under Section 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15
and 16 of Article III of this Act, shall be applied if the dangerous drugs involved is in any of the following
quantities:

1. 40 grams or more of opium;

2. 40 grams or more of morphine;

3. 200 grams or more of shabu, or methylamphetamine hydrochloride;

4. 40 grams or more of heroin;

 5. 750 grams or more of indian hemp of marijuana;

6. 50 grams of marijuana resin or marijuana resin oil;

7. 40 grams or more of cocaine or cocaine hydrochloride; or

8. In case of other dangerous drugs, the quantity of which is far beyond therapeutic
requirements as determined and promulgated by the Dangerous Drugs Board, after public
consultation/hearings conducted for the purpose.

Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range
from prision correccional to reclusion perpetua depending upon the quantity.

Under this provision, accused-appellant therefore stands to suffer the penalty of reclusion perpetua to
death for her possession of 580.2 grams of shabu.

Accused-appellant attempts to distinguish between a quantitative and a qualitative examination of the

substance contained in Exhibits C-1, C-2 and C-3. She argues that the examination conducted by the
NBI forensic chemist was a qualitative one which merely yielded positive findings for shabu, but failed
to establish its purity; hence, its exact quantity remains indeterminate and unproved.

This contention is likewise without merit.

The expert witness, George De Lara, stated that the tests conducted would have indicated the
presence of impurities if there were any. He testified:

PROS. VELASCO By mixing it twice, Mr. Witness, if there are any adulterants or impurities, it will be
discovered by just mixing it?

WITNESS If some drugs or additives were present, it will appear in a thin layer chromatographic
examination.

PROS. VELASCO Did other drugs or other additives appear Mr. Witness?

WITNESS In my thin layer chromatographic plate, it only appears one spot which resembles or the
same as the Methamphetamine Hydrochloride sample

....

PROS. VELASCO So, Mr. Witness, if there are any adulterants present in the chemicals you have
examined, in chemical examination, what color it will register, if any?

WITNESS In sample, it contained a potassium aluminum sulfate, it will not react with the reagent,
therefore it will not dissolve. In my examination, all the specimens reacted on the re-agents, sir.

PROS. VELASCO And what is potassium aluminum sulfate in layman’s term?

WITNESS It is only a tawas.

....

COURT In this particular case, did you find any aluminum sulfate or tawas in the specimen?

WITNESS None, your Honor.

....

ATTY. AGOOT I will cite an example, supposing ten grams of Methamphetamine Hydrochloride is mixed
with 200 grams of tawas, you will submit that to qualitative examination, what will be your findings,
negative or positive, Mr. Witness?

WITNESS It will give a positive result for Methamphetamine Hydrochloride.

ATTY. AGOOT That is qualitative examination.

WITNESS And also positive for aluminum sulfate.21

A qualitative determination relates to the identity of the material, whereas a quantitative analysis
requires the determination of the percentage combination of the components of a mixture. Hence, a
qualitative identification of a powder may reveal the presence of heroin and quinine, for instance,
whereas a quantitative analysis may conclude the presence of 10 percent heroin and 90 percent
quinine.22

De Lara testified that he used a chromatography test to determine the contents of Exhibits C-1, C-2 and
C-3. Chromatography is a means of separating and tentatively identifying the components of a mixture.
It is particularly useful for analyzing the multicomponent specimens that are frequently received in a
crime lab. For example, illicit drugs sold on the street may be diluted with practically any material that
is at the disposal of the drug dealer to increase the quantity of the product that is made available to
prospective customers. Hence, the task of identifying an illicit drug preparation would be an arduous
one without the aid of chromatographic methods to first separate the mixture into its components. 23

The testimony of De Lara established not only that the tests were thorough, but also that the
scientifically correct method of obtaining an accurate representative sample had been obtained. 24 At
any rate, as the Solicitor-General has pointed out, if accused-appellant was not satisfied with the
results, it would have been a simple matter for her to ask for an independent examination of the
substance by another chemist. This she did not do.

Third. Accused-appellant argues that the prosecution failed to prove the negative allegation in the
information that she did not have a license to possess or use methamphetamine hydrochloride or
"shabu."

Art. III of Republic Act No. 6425, as amended by Republic Act No. 7659 provides:

SEC. 16. Possession or Use of Regulated Drugs. - The penalty of reclusion perpetua to death and a fine
ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who
shall possess or use any regulated drug without the corresponding license or prescription, subject to
the provisions of Section 20 hereof.1âwphi1
Accused-appellant claims that possession or use of methamphetamine hydrochloride or "shabu,"a
regulated drug, is not unlawful unless the possessor or user does not have the required license or
prescription. She points out that since the prosecution failed to present any certification that she is not
authorized to possess or use regulated drugs, it therefore falls short of the quantum of proof needed
to sustain a conviction.

The contention has no merit.

The question raised in this case is similar to that raised in United States v. Chan Toco.25 The accused in
that case was charged with smoking opium without being duly registered. He demurred to the
information on the ground that it failed to allege that the use of opium had not been prescribed as a
medicine by a duly licensed and practicing physician.

This Court denied the motion and said:

The evident interest and purpose of the statute is to prohibit and to penalize generally the smoking of
opium in these Islands. But the legislator desired to withdraw from the operation of the statute a
limited class of smokers who smoked under the advice and by prescription of a licensed and practicing
physician . . . . Hence where one is charged with a violation of the general provisions of the Opium Law,
it is more logical as well as more practical and convenient, if he did in fact smoke opium under the
advice of a physician, that he should set up this fact by way of defense, than that the prosecution
should be called upon to prove that every smoker, charged with a violation of the law, does so without
such advice or prescription. Indeed, when it is considered that under the law any person may, in case
of need and at any time, procure the advice of a physician to use opium or some of its derivatives, and
that in the nature of things no public record of prescriptions of this kind is or can be required to be
kept, it is manifest that it would be wholly impracticable and absurd to impose on the prosecution the
burden of alleging and proving the fact that one using opium does so without the advice of a physician.
To prove beyond a reasonable doubt, in a particular case, that one using opium does so without the
advice or prescription of a physician would be in most cases a practical impossibility without the aid of
the defendant himself, while a defendant charged with the illegal use of opium should find little
difficulty in establishing the fact that he used it under the advice and on the prescription of a physician,
if in fact he did so.26

An accused person sometimes owes a duty to himself if not to the State. If he does not perform that
duty he may not always expect the State to perform it for him. If he fails to meet the obligation which
he owes to himself, when to meet it is an easy thing for him to do, he has no one but himself to blame.

Moreover, as correctly pointed out by the Solicitor General, there is nothing in R.A. No. 6425 or the
Dangerous Drugs Act, as amended, which requires the prosecution to present a certification that
accused-appellant has no license or permit to possess shabu. Mere possession of the prohibited
substance is a crime per se and the burden of proof is upon accused-appellant to show that she has a
license or permit under the law to possess the prohibited drug.

Fourth. Lastly, accused-appellant contends that the evidence presented by the prosecution is not
sufficient to support a finding that she is guilty of the crime charged.

This contention must likewise be rejected.

Credence was properly accorded to the testimonies of the prosecution witnesses, who are law
enforcers.1âwphi1 When police officers have no motive to testify falsely against the accused, courts
are inclined to uphold this presumption. In this case, no evidence has been presented to suggest any
improper motive on the part of the police enforcers in arresting accused-appellant. This Court accords
great respect to the findings of the trial court on the matter of credibility of the witnesses in the
absence of any palpable error or arbitrariness in its findings. 27

It is noteworthy that, aside from the denial of accused-appellant, no other witness was presented in
her behalf. Her denial cannot prevail over the positive testimonies of the prosecution witnesses. 28 As
has been held, denial as a rule is a weak form of defense, particularly when it is not substantiated by
clear and convincing evidence. The defense of denial or frame-up, like alibi, has been invariably viewed
by the courts with disfavor for it can just as easily be concocted and is a common and standard defense
ploy in most prosecutions for violation of the Dangerous Drugs Act. 29

The Court is convinced that the requirements of the law in order that a person may be validly charged
with and convicted of illegal possession of a dangerous drug in violation of R.A. No. 6425, as amended,
have been complied with by the prosecution in this case. The decision of the trial court must
accordingly be upheld.

As regards the fine imposed by the trial court, it has been held that courts may fix any amount within
the limits established by law.30 Considering that five hundred eighty point two (580.2) grams of shabu
were confiscated from accused-appellant, the fine imposed by the trial court may properly be reduced
to ₱50,000.00.

WHEREFORE, the decision of the Regional Trial Court of Pasay City, Branch 110, finding accused-
appellant guilty of violation of §16 of R.A. No. 6425, as amended, and imposing upon her the penalty
of reclusion perpetua is hereby AFFIRMED with the MODIFICATION that the fine imposed on accused-
appellant is reduced to ₱50,000.00. Costs against appellant.

The passport, airline ticket, luggage, girdle and other personal effects not yet returned to the accused-
appellant are hereby ordered returned to her.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION
G.R. No. 197788               February 29, 2012
RODEL LUZ y ONG, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES,1 Respondent.

DECISION

SERENO, J.:
This is a Petition for Review on Certiorari under Rule 45 seeking to set aside the Court of Appeals (CA)
Decision in CA-G.R. CR No. 32516 dated 18 February 2011 2 and Resolution dated 8 July 2011.

Statement of the Facts and of the Case

The facts, as found by the Regional Trial Court (RTC), which sustained the version of the prosecution,
are as follows:

PO2 Emmanuel L. Alteza, who was then assigned at the Sub-Station 1 of the Naga City Police Station as
a traffic enforcer, substantially testified that on March 10, 2003 at around 3:00 o’clock in the morning,
he saw the accused, who was coming from the direction of Panganiban Drive and going to Diversion
Road, Naga City, driving a motorcycle without a helmet; that this prompted him to flag down the
accused for violating a municipal ordinance which requires all motorcycle drivers to wear helmet (sic)
while driving said motor vehicle; that he invited the accused to come inside their sub-station since the
place where he flagged down the accused is almost in front of the said sub-station; that while he and
SPO1 Rayford Brillante were issuing a citation ticket for violation of municipal ordinance, he noticed
that the accused was uneasy and kept on getting something from his jacket; that he was alerted and
so, he told the accused to take out the contents of the pocket of his jacket as the latter may have a
weapon inside it; that the accused obliged and slowly put out the contents of the pocket of his jacket
which was a nickel-like tin or metal container about two (2) to three (3) inches in size, including two (2)
cellphones, one (1) pair of scissors and one (1) Swiss knife; that upon seeing the said container, he
asked the accused to open it; that after the accused opened the container, he noticed a cartoon cover
and something beneath it; and that upon his instruction, the accused spilled out the contents of the
container on the table which turned out to be four (4) plastic sachets, the two (2) of which were empty
while the other two (2) contained suspected shabu.3

Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a plea of "Not guilty" to the charge of
illegal possession of dangerous drugs. Pretrial was terminated on 24 September 2003, after which, trial
ensued.

During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic chemist testified for the
prosecution. On the other hand, petitioner testified for himself and raised the defense of planting of
evidence and extortion.

In its 19 February 2009 Decision,4 the RTC convicted petitioner of illegal possession of dangerous
drugs5 committed on 10 March 2003. It found the prosecution evidence sufficient to show that he had
been lawfully arrested for a traffic violation and then subjected to a valid search, which led to the
discovery on his person of two plastic sachets later found to contain shabu. The RTC also found his
defense of frame-up and extortion to be weak, self-serving and unsubstantiated. The dispositive
portion of its Decision held:

WHEREFORE, judgment is hereby rendered, finding accused RODEL LUZ y ONG GUILTY beyond
reasonable doubt for the crime of violation of Section 11, Article II of Republic Act No. 9165 and
sentencing him to suffer the indeterminate penalty of imprisonment ranging from twelve (12) years
and (1) day, as minimum, to thirteen (13) years, as maximum, and to pay a fine of Three Hundred
Thousand Pesos (₱ 300,000.00).

The subject shabu is hereby confiscated for turn over to the Philippine Drug Enforcement Agency for its
proper disposition and destruction in accordance with law.
SO ORDERED.6

Upon review, the CA affirmed the RTC’s Decision.

On 12 September 2011, petitioner filed under Rule 45 the instant Petition for Review on Certiorari
dated 1 September 2011. In a Resolution dated 12 October 2011, this Court required respondent to file
a comment on the Petition. On 4 January 2012, the latter filed its Comment dated 3 January 2012.

Petitioner raised the following grounds in support of his Petition:

(i) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT SHABU IS INVALID.

(ii) THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY OF THE POLICE

OFFICER CANNOT BE RELIED UPON IN THIS CASE.

(iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE ALLEGED SUBJECT SPECIMEN HAS BEEN
COMPROMISED.

(iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT PROVEN BEYOND THE REASONABLE
DOUBT (sic).7

Petitioner claims that there was no lawful search and seizure, because there was no lawful arrest. He
claims that the finding that there was a lawful arrest was erroneous, since he was not even issued a
citation ticket or charged with violation of the city ordinance. Even assuming there was a valid arrest,
he claims that he had never consented to the search conducted upon him.

On the other hand, finding that petitioner had been lawfully arrested, the RTC held thus:

It is beyond dispute that the accused was flagged down and apprehended in this case by Police Officers
Alteza and Brillante for violation of City Ordinance No. 98-012, an ordinance requiring the use of crash
helmet by motorcycle drivers and riders thereon in the City of Naga and prescribing penalties for
violation thereof. The accused himself admitted that he was not wearing a helmet at the time when he
was flagged down by the said police officers, albeit he had a helmet in his possession. Obviously, there
is legal basis on the part of the apprehending officers to flag down and arrest the accused because the
latter was actually committing a crime in their presence, that is, a violation of City Ordinance No. 98-
012. In other words, the accused, being caught in flagrante delicto violating the said Ordinance, he
could therefore be lawfully stopped or arrested by the apprehending officers. x x x. 8

We find the Petition to be impressed with merit, but not for the particular reasons alleged. In criminal
cases, an appeal throws the entire case wide open for review and the reviewing tribunal can correct
errors, though unassigned in the appealed judgment, or even reverse the trial court’s decision based
on grounds other than those that the parties raised as errors.9

First, there was no valid arrest of petitioner. When he was flagged down for committing a traffic
violation, he was not, ipso facto and solely for this reason, arrested.

Arrest is the taking of a person into custody in order that he or she may be bound to answer for the
commission of an offense.10 It is effected by an actual restraint of the person to be arrested or by that
person’s voluntary submission to the custody of the one making the arrest. 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.11

Under R.A. 4136, or the Land Transportation and Traffic Code, the general procedure for dealing with a
traffic violation is not the arrest of the offender, but the confiscation of the driver’s license of the
latter:

SECTION 29. Confiscation of Driver's License. — Law enforcement and peace officers of other agencies
duly deputized by the Director shall, in apprehending a driver for any violation of this Act or any
regulations issued pursuant thereto, or of local traffic rules and regulations not contrary to any
provisions of this Act, confiscate the license of the driver concerned and issue a receipt prescribed and
issued by the Bureau therefor which shall authorize the driver to operate a motor vehicle for a period
not exceeding seventy-two hours from the time and date of issue of said receipt. The period so fixed in
the receipt shall not be extended, and shall become invalid thereafter. Failure of the driver to settle his
case within fifteen days from the date of apprehension will be a ground for the suspension and/or
revocation of his license.

Similarly, the Philippine National Police (PNP) Operations Manual 12 provides the following procedure
for flagging down vehicles during the conduct of checkpoints:

SECTION 7. Procedure in Flagging Down or Accosting Vehicles While in Mobile Car. This rule is a general
concept and will not apply in hot pursuit operations. The mobile car crew shall undertake the
following, when applicable: x x x

m. If it concerns traffic violations, immediately issue a Traffic Citation Ticket (TCT) or Traffic Violation
Report (TVR). Never indulge in prolonged, unnecessary conversation or argument with the driver or
any of the vehicle’s occupants;

At the time that he was waiting for PO3 Alteza to write his citation ticket, petitioner could not be said
to have been "under arrest." There was no intention on the part of PO3 Alteza to arrest him, deprive
him of his liberty, or take him into custody. Prior to the issuance of the ticket, the period during which
petitioner was at the police station may be characterized merely as waiting time. In fact, as found by
the trial court, PO3 Alteza himself testified that the only reason they went to the police sub-station was
that petitioner had been flagged down "almost in front" of that place. Hence, it was only for the sake of
convenience that they were waiting there. There was no intention to take petitioner into custody.

In Berkemer v. McCarty,13 the United States (U.S.) Supreme Court discussed at length whether the
roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered
custodial interrogation. The Court held that, such questioning does not fall under custodial
interrogation, nor can it be considered a formal arrest, by virtue of the nature of the questioning, the
expectations of the motorist and the officer, and the length of time the procedure is conducted. It
ruled as follows:

It must be acknowledged at the outset that a traffic stop significantly curtails the "freedom of action"
of the driver and the passengers, if any, of the detained vehicle. Under the law of most States, it is a
crime either to ignore a policeman’s signal to stop one’s car or, once having stopped, to drive away
without permission. x x x
However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized by
respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but
only in those types of situations in which the concerns that powered the decision are implicated. Thus,
we must decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair
his free exercise of his privilege against self-incrimination to require that he be warned of his
constitutional rights.

Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced
"to speak where he would not otherwise do so freely," Miranda v. Arizona, 384 U. S., at 467. First,
detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast
majority of roadside detentions last only a few minutes. A motorist’s expectations, when he sees a
policeman’s light flashing behind him, are that he will be obliged to spend a short period of time
answering questions and waiting while the officer checks his license and registration, that he may then
be given a citation, but that in the end he most likely will be allowed to continue on his way. In this
respect, questioning incident to an ordinary traffic stop is quite different from stationhouse
interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning
will continue until he provides his interrogators the answers they seek. See id., at 451.

Second, circumstances associated with the typical traffic stop are not such that the motorist feels
completely at the mercy of the police. To be sure, the aura of authority surrounding an armed,
uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue
a citation, in combination, exert some pressure on the detainee to respond to questions. But other
aspects of the situation substantially offset these forces. Perhaps most importantly, the typical traffic
stop is public, at least to some degree. x x x

In both of these respects, the usual traffic stop is more analogous to a so-called "Terry stop," see Terry
v. Ohio, 392 U. S. 1 (1968), than to a formal arrest. x x x The comparatively nonthreatening character of
detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are
subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us
to hold that persons temporarily detained pursuant to such stops are not "in custody" for the purposes
of Miranda.

x x x           x x x          x x x

We are confident that the state of affairs projected by respondent will not come to pass. It is settled
that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action
is curtailed to a "degree associated with formal arrest." California v. Beheler, 463 U. S. 1121, 1125
(1983) (per curiam). If a motorist who has been detained pursuant to a traffic stop thereafter is
subjected to treatment that renders him "in custody" for practical purposes, he will be entitled to the
full panoply of protections prescribed by Miranda. See Oregon v. Mathiason, 429 U. S. 492, 495 (1977)
(per curiam). (Emphasis supplied.)

The U.S. Court in Berkemer thus ruled that, since the motorist therein was only subjected to modest
questions while still at the scene of the traffic stop, he was not at that moment placed under custody
(such that he should have been apprised of his Miranda rights), and neither can treatment of this sort
be fairly characterized as the functional equivalent of a formal arrest. Similarly, neither can petitioner
here be considered "under arrest" at the time that his traffic citation was being made.
It also appears that, according to City Ordinance No. 98-012, which was violated by petitioner, the
failure to wear a crash helmet while riding a motorcycle is penalized by a fine only. Under the Rules of
Court, a warrant of arrest need not be issued if the information or charge was filed for an offense
penalized by a fine only. It may be stated as a corollary that neither can a warrantless arrest be made
for such an offense.

This ruling does not imply that there can be no arrest for a traffic violation. Certainly, when there is an
intent on the part of the police officer to deprive the motorist of liberty, or to take the latter into
custody, the former may be deemed to have arrested the motorist. In this case, however, the officer’s
issuance (or intent to issue) a traffic citation ticket negates the possibility of an arrest for the same
violation.

Even if one were to work under the assumption that petitioner was deemed "arrested" upon being
flagged down for a traffic violation and while awaiting the issuance of his ticket, then the requirements
for a valid arrest were not complied with.

This Court has held that at the time a person is arrested, it shall be the duty of the arresting officer to
inform the latter of the reason for the arrest and must show that person the warrant of arrest, if any.
Persons shall be informed of their constitutional rights to remain silent and to counsel, and that any
statement they might make could be used against them.14 It may also be noted that in this case, these
constitutional requirements were complied with by the police officers only after petitioner had been
arrested for illegal possession of dangerous drugs.

In Berkemer, the U.S. Court also noted that the Miranda warnings must also be given to a person
apprehended due to a traffic violation:

The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or
trick captive suspects into confessing, to relieve the "inherently compelling pressures" "generated by
the custodial setting itself," "which work to undermine the individual’s will to resist," and as much as
possible to free courts from the task of scrutinizing individual cases to try to determine, after the fact,
whether particular confessions were voluntary. Those purposes are implicated as much by in-custody
questioning of persons suspected of misdemeanors as they are by questioning of persons suspected of
felonies.

If it were true that petitioner was already deemed "arrested" when he was flagged down for a traffic
violation and while he waiting for his ticket, then there would have been no need for him to be
arrested for a second time—after the police officers allegedly discovered the drugs—as he was already
in their custody.

Second, there being no valid arrest, the warrantless search that resulted from it was likewise illegal.

The following are the instances when a warrantless search is allowed: (i) a warrantless search
incidental to a lawful arrest; (ii) search of evidence in "plain view;" (iii) search of a moving vehicle; (iv)
consented warrantless search; (v) customs search; (vi) a "stop and frisk" search; and (vii) exigent and
emergency circumstances.15 None of the above-mentioned instances, especially a search incident to a
lawful arrest, are applicable to this case.
It must be noted that the evidence seized, although alleged to be inadvertently discovered, was not in
"plain view." It was actually concealed inside a metal container inside petitioner’s pocket. Clearly, the
evidence was not immediately apparent.16

Neither was there a consented warrantless search. Consent to a search is not to be lightly inferred, but
shown by clear and convincing evidence.17 It must be voluntary in order to validate an otherwise illegal
search; that is, the consent must be unequivocal, specific, intelligently given and uncontaminated by
any duress or coercion. While the prosecution claims that petitioner acceded to the instruction of PO3
Alteza, this alleged accession does not suffice to prove valid and intelligent consent. In fact, the RTC
found that petitioner was merely "told" to take out the contents of his pocket. 18

Whether consent to the search was in fact voluntary is a question of fact to be determined from the
totality of all the circumstances. Relevant to this determination are the following characteristics of the
person giving consent and the environment in which consent is given: (1) the age of the defendant; (2)
whether the defendant was in a public or a secluded location; (3) whether the defendant objected to
the search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence
of coercive police procedures; (6) the defendant’s belief that no incriminating evidence would be
found; (7) the nature of the police questioning; (8) the environment in which the questioning took
place; and (9) the possibly vulnerable subjective state of the person consenting. It is the State that has
the burden of proving, by clear and positive testimony, that the necessary consent was obtained, and
was freely and voluntarily given.19 In this case, all that was alleged was that petitioner was alone at the
police station at three in the morning, accompanied by several police officers. These circumstances
weigh heavily against a finding of valid consent to a warrantless search.

Neither does the search qualify under the "stop and frisk" rule. While the rule normally applies when a
police officer observes suspicious or unusual conduct, which may lead him to believe that a criminal act
may be afoot, the stop and frisk is merely a limited protective search of outer clothing for weapons. 20

In Knowles v. Iowa,21 the U.S. Supreme Court held that when a police officer stops a person for
speeding and correspondingly issues a citation instead of arresting the latter, this procedure does not
authorize the officer to conduct a full search of the car. The Court therein held that there was no
justification for a full-blown search when the officer does not arrest the motorist. Instead, police
officers may only conduct minimal intrusions, such as ordering the motorist to alight from the car or
doing a patdown:

In Robinson, supra, we noted the two historical rationales for the "search incident to arrest" exception:
(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve
evidence for later use at trial. x x x But neither of these underlying rationales for the search incident to
arrest exception is sufficient to justify the search in the present case.

We have recognized that the first rationale—officer safety—is "‘both legitimate and weighty,’" x x x
The threat to officer safety from issuing a traffic citation, however, is a good deal less than in the case
of a custodial arrest. In Robinson, we stated that a custodial arrest involves "danger to an officer"
because of "the extended exposure which follows the taking of a suspect into custody and transporting
him to the police station." 414 U. S., at 234-235. We recognized that "[t]he danger to the police officer
flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty, and not from the
grounds for arrest." Id., at 234, n. 5. A routine traffic stop, on the other hand, is a relatively brief
encounter and "is more analogous to a so-called ‘Terry stop’ . . . than to a formal arrest." Berkemer v.
McCarty, 468 U. S. 420, 439 (1984). See also Cupp v. Murphy, 412 U. S. 291, 296 (1973) ("Where there
is no formal arrest . . . a person might well be less hostile to the police and less likely to take
conspicuous, immediate steps to destroy incriminating evidence").

This is not to say that the concern for officer safety is absent in the case of a routine traffic
stop.1âwphi1 It plainly is not. See Mimms, supra, at 110; Wilson, supra, at 413-414. But while the
concern for officer safety in this context may justify the "minimal" additional intrusion of ordering a
driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion
attending a full fieldtype search. Even without the search authority Iowa urges, officers have other,
independent bases to search for weapons and protect themselves from danger. For example, they may
order out of a vehicle both the driver, Mimms, supra, at 111, and any passengers, Wilson, supra, at
414; perform a "patdown" of a driver and any passengers upon reasonable suspicion that they may be
armed and dangerous, Terry v. Ohio, 392 U. S. 1 (1968); conduct a "Terry patdown" of the passenger
compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain
immediate control of a weapon, Michigan v. Long, 463 U. S. 1032, 1049 (1983); and even conduct a full
search of the passenger compartment, including any containers therein, pursuant to a custodial arrest,
New York v. Belton, 453 U. S. 454, 460 (1981).

Nor has Iowa shown the second justification for the authority to search incident to arrest—the need to
discover and preserve evidence. Once Knowles was stopped for speeding and issued a citation, all the
evidence necessary to prosecute that offense had been obtained. No further evidence of excessive
speed was going to be found either on the person of the offender or in the passenger compartment of
the car. (Emphasis supplied.)

The foregoing considered, petitioner must be acquitted. While he may have failed to object to the
illegality of his arrest at the earliest opportunity, a waiver of an illegal warrantless arrest does not,
however, mean a waiver of the inadmissibility of evidence seized during the illegal warrantless arrest. 22

The Constitution guarantees the right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures.23 Any evidence obtained in violation of said right
shall be inadmissible for any purpose in any proceeding. While the power to search and seize may at
times be necessary to the public welfare, still it must be exercised and the law implemented without
contravening the constitutional rights of citizens, for the enforcement of no statute is of sufficient
importance to justify indifference to the basic principles of government. 24

The subject items seized during the illegal arrest are inadmissible. 25 The drugs are the very corpus
delicti of the crime of illegal possession of dangerous drugs. Thus, their inadmissibility precludes
conviction and calls for the acquittal of the accused.26

WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision of the Court of Appeals in CA-
G.R. CR No. 32516 affirming the judgment of conviction dated 19 February 2009 of the Regional Trial
Court, 5th Judicial Region, Naga City, Branch 21, in Criminal Case No. RTC 2003-0087, is hereby
REVERSED and SET ASIDE. Petitioner Rodel Luz y Ong is hereby ACQUITTED and ordered immediately
released from detention, unless his continued confinement is warranted by some other cause or
ground.

SO ORDERED.
 EN BANC
G.R. No. 104768               July 21, 2003
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
SANDIGANBAYAN, MAJOR GENERAL JOSEPHUS Q. RAMAS and ELIZABETH DIMAANO, Respondents.
DECISION
CARPIO, J.:

The Case

Before this Court is a petition for review on certiorari seeking to set aside the Resolutions of the
Sandiganbayan (First Division)1 dated 18 November 1991 and 25 March 1992 in Civil Case No. 0037. The
first Resolution dismissed petitioner’s Amended Complaint and ordered the return of the confiscated
items to respondent Elizabeth Dimaano, while the second Resolution denied petitioner’s Motion for
Reconsideration. Petitioner prays for the grant of the reliefs sought in its Amended Complaint, or in the
alternative, for the remand of this case to the Sandiganbayan (First Division) for further proceedings
allowing petitioner to complete the presentation of its evidence.

Antecedent Facts

Immediately upon her assumption to office following the successful EDSA Revolution, then President
Corazon C. Aquino issued Executive Order No. 1 ("EO No. 1") creating the Presidential Commission on
Good Government ("PCGG"). EO No. 1 primarily tasked the PCGG to recover all ill-gotten wealth of
former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close
associates. EO No. 1 vested the PCGG with the power "(a) to conduct investigation as may be necessary
in order to accomplish and carry out the purposes of this order" and the power "(h) to promulgate such
rules and regulations as may be necessary to carry out the purpose of this order." Accordingly, the
PCGG, through its then Chairman Jovito R. Salonga, created an AFP Anti-Graft Board ("AFP Board")
tasked to investigate reports of unexplained wealth and corrupt practices by AFP personnel, whether in
the active service or retired.2

Based on its mandate, the AFP Board investigated various reports of alleged unexplained wealth of
respondent Major General Josephus Q. Ramas ("Ramas"). On 27 July 1987, the AFP Board issued a
Resolution on its findings and recommendation on the reported unexplained wealth of Ramas. The
relevant part of the Resolution reads:

III. FINDINGS and EVALUATION:

Evidence in the record showed that respondent is the owner of a house and lot located at 15-Yakan St.,
La Vista, Quezon City. He is also the owner of a house and lot located in Cebu City. The lot has an area
of 3,327 square meters.
The value of the property located in Quezon City may be estimated modestly at ₱700,000.00.

The equipment/items and communication facilities which were found in the premises of Elizabeth
Dimaano and were confiscated by elements of the PC Command of Batangas were all covered by
invoice receipt in the name of CAPT. EFREN SALIDO, RSO Command Coy, MSC, PA. These items could
not have been in the possession of Elizabeth Dimaano if not given for her use by respondent
Commanding General of the Philippine Army.

Aside from the military equipment/items and communications equipment, the raiding team was also
able to confiscate money in the amount of ₱2,870,000.00 and $50,000 US Dollars in the house of
Elizabeth Dimaano on 3 March 1986.

Affidavits of members of the Military Security Unit, Military Security Command, Philippine Army,
stationed at Camp Eldridge, Los Baños, Laguna, disclosed that Elizabeth Dimaano is the mistress of
respondent. That respondent usually goes and stays and sleeps in the alleged house of Elizabeth
Dimaano in Barangay Tengga, Itaas, Batangas City and when he arrives, Elizabeth Dimaano embraces
and kisses respondent. That on February 25, 1986, a person who rode in a car went to the residence of
Elizabeth Dimaano with four (4) attache cases filled with money and owned by MGen Ramas.

Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible means of income
and is supported by respondent for she was formerly a mere secretary.

Taking in toto the evidence, Elizabeth Dimaano could not have used the military equipment/items
seized in her house on March 3, 1986 without the consent of respondent, he being the Commanding
General of the Philippine Army. It is also impossible for Elizabeth Dimaano to claim that she owns the
₱2,870,000.00 and $50,000 US Dollars for she had no visible source of income.

This money was never declared in the Statement of Assets and Liabilities of respondent. There was an
intention to cover the existence of these money because these are all ill-gotten and unexplained
wealth. Were it not for the affidavits of the members of the Military Security Unit assigned at Camp
Eldridge, Los Baños, Laguna, the existence and ownership of these money would have never been
known.

The Statement of Assets and Liabilities of respondent were also submitted for scrutiny and analysis by
the Board’s consultant. Although the amount of ₱2,870,000.00 and $50,000 US Dollars were not
included, still it was disclosed that respondent has an unexplained wealth of ₱104,134. 60.

IV. CONCLUSION:

In view of the foregoing, the Board finds that a prima facie case exists against respondent for ill-gotten
and unexplained wealth in the amount of ₱2,974,134.00 and $50,000 US Dollars.

V. RECOMMENDATION:

Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried for
violation of RA 3019, as amended, otherwise known as "Anti-Graft and Corrupt Practices Act" and RA
1379, as amended, otherwise known as "The Act for the Forfeiture of Unlawfully Acquired Property." 3
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under Republic Act No. 1379 ("RA No.
1379") 4 against Ramas.

Before Ramas could answer the petition, then Solicitor General Francisco I. Chavez filed an Amended
Complaint naming the Republic of the Philippines ("petitioner"), represented by the PCGG, as plaintiff
and Ramas as defendant. The Amended Complaint also impleaded Elizabeth Dimaano ("Dimaano") as
co-defendant.

The Amended Complaint alleged that Ramas was the Commanding General of the Philippine Army until
1986. On the other hand, Dimaano was a confidential agent of the Military Security Unit, Philippine
Army, assigned as a clerk-typist at the office of Ramas from 1 January 1978 to February 1979. The
Amended Complaint further alleged that Ramas "acquired funds, assets and properties manifestly out
of proportion to his salary as an army officer and his other income from legitimately acquired property
by taking undue advantage of his public office and/or using his power, authority and influence as such
officer of the Armed Forces of the Philippines and as a subordinate and close associate of the deposed
President Ferdinand Marcos."5

The Amended Complaint also alleged that the AFP Board, after a previous inquiry, found reasonable
ground to believe that respondents have violated RA No. 1379. 6 The Amended Complaint prayed for,
among others, the forfeiture of respondents’ properties, funds and equipment in favor of the State.

Ramas filed an Answer with Special and/or Affirmative Defenses and Compulsory Counterclaim to the
Amended Complaint. In his Answer, Ramas contended that his property consisted only of a residential
house at La Vista Subdivision, Quezon City, valued at ₱700,000, which was not out of proportion to his
salary and other legitimate income. He denied ownership of any mansion in Cebu City and the cash,
communications equipment and other items confiscated from the house of Dimaano.

Dimaano filed her own Answer to the Amended Complaint. Admitting her employment as a clerk-typist
in the office of Ramas from January-November 1978 only, Dimaano claimed ownership of the monies,
communications equipment, jewelry and land titles taken from her house by the Philippine
Constabulary raiding team.

After termination of the pre-trial,7 the court set the case for trial on the merits on 9-11 November
1988.

On 9 November 1988, petitioner asked for a deferment of the hearing due to its lack of preparation for
trial and the absence of witnesses and vital documents to support its case. The court reset the hearing
to 17 and 18 April 1989.

On 13 April 1989, petitioner filed a motion for leave to amend the complaint in order "to charge the
delinquent properties with being subject to forfeiture as having been unlawfully acquired by defendant
Dimaano alone x x x."8

Nevertheless, in an order dated 17 April 1989, the Sandiganbayan proceeded with petitioner’s
presentation of evidence on the ground that the motion for leave to amend complaint did not state
when petitioner would file the amended complaint. The Sandiganbayan further stated that the subject
matter of the amended complaint was on its face vague and not related to the existing complaint. The
Sandiganbayan also held that due to the time that the case had been pending in court, petitioner
should proceed to present its evidence.
After presenting only three witnesses, petitioner asked for a postponement of the trial.

On 28 September 1989, during the continuation of the trial, petitioner manifested its inability to
proceed to trial because of the absence of other witnesses or lack of further evidence to present.
Instead, petitioner reiterated its motion to amend the complaint to conform to the evidence already
presented or to change the averments to show that Dimaano alone unlawfully acquired the monies or
properties subject of the forfeiture.

The Sandiganbayan noted that petitioner had already delayed the case for over a year mainly because
of its many postponements. Moreover, petitioner would want the case to revert to its preliminary
stage when in fact the case had long been ready for trial. The Sandiganbayan ordered petitioner to
prepare for presentation of its additional evidence, if any.

During the trial on 23 March 1990, petitioner again admitted its inability to present further evidence.
Giving petitioner one more chance to present further evidence or to amend the complaint to conform
to its evidence, the Sandiganbayan reset the trial to 18 May 1990. The Sandiganbayan, however, hinted
that the re-setting was without prejudice to any action that private respondents might take under the
circumstances.

However, on 18 May 1990, petitioner again expressed its inability to proceed to trial because it had no
further evidence to present. Again, in the interest of justice, the Sandiganbayan granted petitioner 60
days within which to file an appropriate pleading. The Sandiganbayan, however, warned petitioner that
failure to act would constrain the court to take drastic action.

Private respondents then filed their motions to dismiss based on Republic v. Migrino. 9 The Court held in
Migrino that the PCGG does not have jurisdiction to investigate and prosecute military officers by
reason of mere position held without a showing that they are "subordinates" of former President
Marcos.

On 18 November 1991, the Sandiganbayan rendered a resolution, the dispositive portion of which
states:

WHEREFORE, judgment is hereby rendered dismissing the Amended Complaint, without

pronouncement as to costs. The counterclaims are likewise dismissed for lack of merit, but the
confiscated sum of money, communications equipment, jewelry and land titles are ordered returned to
Elizabeth Dimaano.

The records of this case are hereby remanded and referred to the Hon. Ombudsman, who has primary
jurisdiction over the forfeiture cases under R.A. No. 1379, for such appropriate action as the evidence
warrants. This case is also referred to the Commissioner of the Bureau of Internal Revenue for a
determination of any tax liability of respondent Elizabeth Dimaano in connection herewith.

SO ORDERED.

On 4 December 1991, petitioner filed its Motion for Reconsideration.

In answer to the Motion for Reconsideration, private respondents filed a Joint Comment/Opposition to
which petitioner filed its Reply on 10 January 1992.
On 25 March 1992, the Sandiganbayan rendered a Resolution denying the Motion for Reconsideration.

Ruling of the Sandiganbayan

The Sandiganbayan dismissed the Amended Complaint on the following grounds:

(1.) The actions taken by the PCGG are not in accordance with the rulings of the Supreme Court
in Cruz, Jr. v. Sandiganbayan10 and Republic v. Migrino11 which involve the same issues.
(2.) No previous inquiry similar to preliminary investigations in criminal cases was conducted
against Ramas and Dimaano.
(3.) The evidence adduced against Ramas does not constitute a prima facie case against him.
(4.) There was an illegal search and seizure of the items confiscated.

The Issues

Petitioner raises the following issues:

A. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT PETITIONER’S EVIDENCE

CANNOT MAKE A CASE FOR FORFEITURE AND THAT THERE WAS NO SHOWING OF CONSPIRACY,
COLLUSION OR RELATIONSHIP BY CONSANGUINITY OR AFFINITY BY AND BETWEEN
RESPONDENT RAMAS AND RESPONDENT DIMAANO NOTWITHSTANDING THE FACT THAT SUCH
CONCLUSIONS WERE CLEARLY UNFOUNDED AND PREMATURE, HAVING BEEN RENDERED PRIOR
TO THE COMPLETION OF THE PRESENTATION OF THE EVIDENCE OF THE PETITIONER.

B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE ACTIONS TAKEN BY THE
PETITIONER, INCLUDING THE FILING OF THE ORIGINAL COMPLAINT AND THE AMENDED
COMPLAINT, SHOULD BE STRUCK OUT IN LINE WITH THE RULINGS OF THE SUPREME COURT IN
CRUZ, JR. v. SANDIGANBAYAN, 194 SCRA 474 AND REPUBLIC v. MIGRINO, 189 SCRA 289,
NOTWITHSTANDING THE FACT THAT:

1. The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v. Migrino, supra, are
clearly not applicable to this case;

2. Any procedural defect in the institution of the complaint in Civil Case No. 0037 was
cured and/or waived by respondents with the filing of their respective answers with
counterclaim; and

3. The separate motions to dismiss were evidently improper considering that they were
filed after commencement of the presentation of the evidence of the petitioner and
even before the latter was allowed to formally offer its evidence and rest its case;

C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE ARTICLES AND THINGS SUCH
AS SUMS OF MONEY, COMMUNICATIONS EQUIPMENT, JEWELRY AND LAND TITLES
CONFISCATED FROM THE HOUSE OF RESPONDENT DIMAANO WERE ILLEGALLY SEIZED AND
THEREFORE EXCLUDED AS EVIDENCE.12

The Court’s Ruling

First Issue: PCGG’s Jurisdiction to Investigate Private Respondents

This case involves a revisiting of an old issue already decided by this Court in Cruz, Jr. v.
Sandiganbayan13 and Republic v. Migrino.14

The primary issue for resolution is whether the PCGG has the jurisdiction to investigate and cause the
filing of a forfeiture petition against Ramas and Dimaano for unexplained wealth under RA No. 1379.

We hold that PCGG has no such jurisdiction.

The PCGG created the AFP Board to investigate the unexplained wealth and corrupt practices of AFP
personnel, whether in the active service or retired.15 The PCGG tasked the AFP Board to make the
necessary recommendations to appropriate government agencies on the action to be taken based on
its findings.16 The PCGG gave this task to the AFP Board pursuant to the PCGG’s power under Section 3
of EO No. 1 "to conduct investigation as may be necessary in order to accomplish and to carry out the
purposes of this order." EO No. 1 gave the PCGG specific responsibilities, to wit:

SEC. 2. The Commission shall be charged with the task of assisting the President in regard to the
following matters:

(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his
immediate family, relatives, subordinates and close associates, whether located in the Philippines or
abroad, including the takeover and sequestration of all business enterprises and entities owned or
controlled by them, during his administration, directly or through nominees, by taking undue
advantage of their public office and/ or using their powers, authority, influence, connections or
relationship.

(b) The investigation of such cases of graft and corruption as the President may assign to the
Commission from time to time.

x x x.

The PCGG, through the AFP Board, can only investigate the unexplained wealth and corrupt practices
of AFP personnel who fall under either of the two categories mentioned in Section 2 of EO No. 1. These
are: (1) AFP personnel who have accumulated ill-gotten wealth during the administration of former
President Marcos by being the latter’s immediate family, relative, subordinate or close associate,
taking undue advantage of their public office or using their powers, influence x x x; 17 or (2) AFP
personnel involved in other cases of graft and corruption provided the President assigns their cases to
the PCGG.18

Petitioner, however, does not claim that the President assigned Ramas’ case to the PCGG. Therefore,
Ramas’ case should fall under the first category of AFP personnel before the PCGG could exercise its
jurisdiction over him. Petitioner argues that Ramas was undoubtedly a subordinate of former President
Marcos because of his position as the Commanding General of the Philippine Army. Petitioner claims
that Ramas’ position enabled him to receive orders directly from his commander-in-chief, undeniably
making him a subordinate of former President Marcos.

We hold that Ramas was not a "subordinate" of former President Marcos in the sense contemplated
under EO No. 1 and its amendments.
Mere position held by a military officer does not automatically make him a "subordinate" as this term
is used in EO Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed close association with former
President Marcos. Migrino discussed this issue in this wise:

A close reading of EO No. 1 and related executive orders will readily show what is contemplated within
the term ‘subordinate.’ The Whereas Clauses of EO No. 1 express the urgent need to recover the ill-
gotten wealth amassed by former President Ferdinand E. Marcos, his immediate family, relatives, and
close associates both here and abroad.

EO No. 2 freezes ‘all assets and properties in the Philippines in which former President Marcos and/or
his wife, Mrs. Imelda Marcos, their close relatives, subordinates, business associates, dummies, agents,
or nominees have any interest or participation.’

Applying the rule in statutory construction known as ejusdem generis that is-

‘[W]here general words follow an enumeration of persons or things by words of a particular and
specific meaning, such general words are not to be construed in their widest extent, but are to be held
as applying only to persons or things of the same kind or class as those specifically mentioned [Smith,
Bell & Co, Ltd. vs. Register of Deeds of Davao, 96 Phil. 53, 58, citing Black on Interpretation of Laws,
2nd Ed., 203].’

[T]he term "subordinate" as used in EO Nos. 1 & 2 refers to one who enjoys a close association with
former President Marcos and/or his wife, similar to the immediate family member, relative, and close
associate in EO No. 1 and the close relative, business associate, dummy, agent, or nominee in EO No. 2.

xxx

It does not suffice, as in this case, that the respondent is or was a government official or employee
during the administration of former President Marcos. There must be a prima facie showing that the
respondent unlawfully accumulated wealth by virtue of his close association or relation with former
Pres. Marcos and/or his wife. (Emphasis supplied)

Ramas’ position alone as Commanding General of the Philippine Army with the rank of Major
General19 does not suffice to make him a "subordinate" of former President Marcos for purposes of EO
No. 1 and its amendments. The PCGG has to provide a prima facie showing that Ramas was a close
associate of former President Marcos, in the same manner that business associates, dummies, agents
or nominees of former President Marcos were close to him. Such close association is manifested either
by Ramas’ complicity with former President Marcos in the accumulation of ill-gotten wealth by the
deposed President or by former President Marcos’ acquiescence in Ramas’ own accumulation of ill-
gotten wealth if any.

This, the PCGG failed to do.

Petitioner’s attempt to differentiate the instant case from Migrino does not convince us. Petitioner
argues that unlike in Migrino, the AFP Board Resolution in the instant case states that the AFP Board
conducted the investigation pursuant to EO Nos. 1, 2, 14 and 14-A in relation to RA No. 1379.
Petitioner asserts that there is a presumption that the PCGG was acting within its jurisdiction of
investigating crony-related cases of graft and corruption and that Ramas was truly a subordinate of the
former President. However, the same AFP Board Resolution belies this contention. Although the
Resolution begins with such statement, it ends with the following recommendation:

V. RECOMMENDATION:

Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried for
violation of RA 3019, as amended, otherwise known as "Anti-Graft and Corrupt Practices Act" and RA
1379, as amended, otherwise known as "The Act for the Forfeiture of Unlawfully Acquired Property." 20

Thus, although the PCGG sought to investigate and prosecute private respondents under EO Nos. 1, 2,
14 and 14-A, the result yielded a finding of violation of Republic Acts Nos. 3019 and 1379 without any
relation to EO Nos. 1, 2, 14 and 14-A. This absence of relation to EO No. 1 and its amendments proves
fatal to petitioner’s case. EO No. 1 created the PCGG for a specific and limited purpose, and necessarily
its powers must be construed to address such specific and limited purpose.

Moreover, the resolution of the AFP Board and even the Amended Complaint do not show that the
properties Ramas allegedly owned were accumulated by him in his capacity as a "subordinate" of his
commander-in-chief. Petitioner merely enumerated the properties Ramas allegedly owned and
suggested that these properties were disproportionate to his salary and other legitimate income
without showing that Ramas amassed them because of his close association with former President
Marcos. Petitioner, in fact, admits that the AFP Board resolution does not contain a finding that Ramas
accumulated his wealth because of his close association with former President Marcos, thus:

10. While it is true that the resolution of the Anti-Graft Board of the New Armed Forces of the
Philippines did not categorically find a prima facie evidence showing that respondent Ramas
unlawfully accumulated wealth by virtue of his close association or relation with former President
Marcos and/or his wife, it is submitted that such omission was not fatal. The resolution of the Anti-
Graft Board should be read in the context of the law creating the same and the objective of the
investigation which was, as stated in the above, pursuant to Republic Act Nos. 3019 and 1379 in
relation to Executive Order Nos. 1, 2, 14 and 14-a;21 (Emphasis supplied)

Such omission is fatal. Petitioner forgets that it is precisely a prima facie showing that the ill-gotten
wealth was accumulated by a "subordinate" of former President Marcos that vests jurisdiction on
PCGG. EO No. 122 clearly premises the creation of the PCGG on the urgent need to recover all ill-gotten
wealth amassed by former President Marcos, his immediate family, relatives, subordinates and close
associates. Therefore, to say that such omission was not fatal is clearly contrary to the intent behind
the creation of the PCGG.

In Cruz, Jr. v. Sandiganbayan,23 the Court outlined the cases that fall under the jurisdiction of the PCGG
pursuant to EO Nos. 1, 2,24 14,25 14-A:26

A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation with Sections 1, 2 and 3 of
Executive Order No. 14, shows what the authority of the respondent PCGG to investigate and
prosecute covers:

(a) the investigation and prosecution of the civil action for the recovery of ill-gotten wealth
under Republic Act No. 1379, accumulated by former President Marcos, his immediate family,
relatives, subordinates and close associates, whether located in the Philippines or abroad,
including the take-over or sequestration of all business enterprises and entities owned or
 controlled by them, during his administration, directly or through his nominees, by taking
undue advantage of their public office and/or using their powers, authority and influence,
connections or relationships; and

(b) the investigation and prosecution of such offenses committed in the acquisition of said ill-
gotten wealth as contemplated under Section 2(a) of Executive Order No. 1.

However, other violations of the Anti-Graft and Corrupt Practices Act not otherwise falling under the
foregoing categories, require a previous authority of the President for the respondent PCGG to
investigate and prosecute in accordance with Section 2 (b) of Executive Order No. 1. Otherwise,
jurisdiction over such cases is vested in the Ombudsman and other duly authorized investigating
agencies such as the provincial and city prosecutors, their assistants, the Chief State Prosecutor and
his assistants and the state prosecutors. (Emphasis supplied)

The proper government agencies, and not the PCGG, should investigate and prosecute forfeiture
petitions not falling under EO No. 1 and its amendments. The preliminary investigation of unexplained
wealth amassed on or before 25 February 1986 falls under the jurisdiction of the Ombudsman, while
the authority to file the corresponding forfeiture petition rests with the Solicitor General. 27 The
Ombudsman Act or Republic Act No. 6770 ("RA No. 6770") vests in the Ombudsman the power to
conduct preliminary investigation and to file forfeiture proceedings involving unexplained wealth
amassed after 25 February 1986.28

After the pronouncements of the Court in Cruz, the PCGG still pursued this case despite the absence of
a prima facie finding that Ramas was a "subordinate" of former President Marcos. The petition for
forfeiture filed with the Sandiganbayan should be dismissed for lack of authority by the PCGG to
investigate respondents since there is no prima facie showing that EO No. 1 and its amendments apply
to respondents. The AFP Board Resolution and even the Amended Complaint state that there are
violations of RA Nos. 3019 and 1379. Thus, the PCGG should have recommended Ramas’ case to the
Ombudsman who has jurisdiction to conduct the preliminary investigation of ordinary unexplained
wealth and graft cases. As stated in Migrino:

[But] in view of the patent lack of authority of the PCGG to investigate and cause the prosecution of
private respondent for violation of Rep. Acts Nos. 3019 and 1379, the PCGG must also be enjoined
from proceeding with the case, without prejudice to any action that may be taken by the proper
prosecutory agency. The rule of law mandates that an agency of government be allowed to exercise
only the powers granted to it.

Petitioner’s argument that private respondents have waived any defect in the filing of the forfeiture
petition by submitting their respective Answers with counterclaim deserves no merit as well.

Petitioner has no jurisdiction over private respondents. Thus, there is no jurisdiction to waive in the
first place. The PCGG cannot exercise investigative or prosecutorial powers never granted to it. PCGG’s
powers are specific and limited. Unless given additional assignment by the President, PCGG’s sole task
is only to recover the ill-gotten wealth of the Marcoses, their relatives and cronies. 29 Without these
elements, the PCGG cannot claim jurisdiction over a case.

Private respondents questioned the authority and jurisdiction of the PCGG to investigate and
prosecute their cases by filing their Motion to Dismiss as soon as they learned of the pronouncement
of the Court in Migrino. This case was decided on 30 August 1990, which explains why private
respondents only filed their Motion to Dismiss on 8 October 1990. Nevertheless, we have held that the
parties may raise lack of jurisdiction at any stage of the proceeding. 30 Thus, we hold that there was no
waiver of jurisdiction in this case. Jurisdiction is vested by law and not by the parties to an action. 31

Consequently, the petition should be dismissed for lack of jurisdiction by the PCGG to conduct the
preliminary investigation. The Ombudsman may still conduct the proper preliminary investigation for
violation of RA No. 1379, and if warranted, the Solicitor General may file the forfeiture petition with
the Sandiganbayan.32 The right of the State to forfeit unexplained wealth under RA No. 1379 is not
subject to prescription, laches or estoppel.33

Second Issue: Propriety of Dismissal of Case

Before Completion of Presentation of Evidence

Petitioner also contends that the Sandiganbayan erred in dismissing the case before completion of the
presentation of petitioner’s evidence.

We disagree.

Based on the findings of the Sandiganbayan and the records of this case, we find that petitioner has
only itself to blame for non-completion of the presentation of its evidence. First, this case has been
pending for four years before the Sandiganbayan dismissed it. Petitioner filed its Amended Complaint
on 11 August 1987, and only began to present its evidence on 17 April 1989. Petitioner had almost two
years to prepare its evidence. However, despite this sufficient time, petitioner still delayed the
presentation of the rest of its evidence by filing numerous motions for postponements and extensions.
Even before the date set for the presentation of its evidence, petitioner filed, on 13 April 1989, a
Motion for Leave to Amend the Complaint.34 The motion sought "to charge the delinquent properties
(which comprise most of petitioner’s evidence) with being subject to forfeiture as having been
unlawfully acquired by defendant Dimaano alone x x x."

The Sandiganbayan, however, refused to defer the presentation of petitioner’s evidence since
petitioner did not state when it would file the amended complaint. On 18 April 1989, the
Sandiganbayan set the continuation of the presentation of evidence on 28-29 September and 9-11
October 1989, giving petitioner ample time to prepare its evidence. Still, on 28 September 1989,
petitioner manifested its inability to proceed with the presentation of its evidence. The Sandiganbayan
issued an Order expressing its view on the matter, to wit:

The Court has gone through extended inquiry and a narration of the above events because this case
has been ready for trial for over a year and much of the delay hereon has been due to the inability of
the government to produce on scheduled dates for pre-trial and for trial documents and witnesses,
allegedly upon the failure of the military to supply them for the preparation of the presentation of
evidence thereon. Of equal interest is the fact that this Court has been held to task in public about its
alleged failure to move cases such as this one beyond the preliminary stage, when, in view of the
developments such as those of today, this Court is now faced with a situation where a case already in
progress will revert back to the preliminary stage, despite a five-month pause where appropriate
action could have been undertaken by the plaintiff Republic.35

On 9 October 1989, the PCGG manifested in court that it was conducting a preliminary investigation on
the unexplained wealth of private respondents as mandated by RA No. 1379. 36 The PCGG prayed for an
additional four months to conduct the preliminary investigation. The Sandiganbayan granted this
request and scheduled the presentation of evidence on 26-29 March 1990. However, on the scheduled
date, petitioner failed to inform the court of the result of the preliminary investigation the PCGG
supposedly conducted. Again, the Sandiganbayan gave petitioner until 18 May 1990 to continue with
the presentation of its evidence and to inform the court of "what lies ahead insofar as the status of the
case is concerned x x x."37 Still on the date set, petitioner failed to present its evidence. Finally, on 11
July 1990, petitioner filed its Re-Amended Complaint. 38 The Sandiganbayan correctly observed that a
case already pending for years would revert to its preliminary stage if the court were to accept the Re-
Amended Complaint.

Based on these circumstances, obviously petitioner has only itself to blame for failure to complete the
presentation of its evidence. The Sandiganbayan gave petitioner more than sufficient time to finish the
presentation of its evidence. The Sandiganbayan overlooked petitioner’s delays and yet petitioner
ended the long-string of delays with the filing of a Re-Amended Complaint, which would only prolong
even more the disposition of the case.

Moreover, the pronouncements of the Court in Migrino and Cruz prompted the Sandiganbayan to
dismiss the case since the PCGG has no jurisdiction to investigate and prosecute the case against
private respondents. This alone would have been sufficient legal basis for the Sandiganbayan to dismiss
the forfeiture case against private respondents.

Thus, we hold that the Sandiganbayan did not err in dismissing the case before completion of the
presentation of petitioner’s evidence.

Third Issue: Legality of the Search and Seizure

Petitioner claims that the Sandiganbayan erred in declaring the properties confiscated from Dimaano’s
house as illegally seized and therefore inadmissible in evidence. This issue bears a significant effect on
petitioner’s case since these properties comprise most of petitioner’s evidence against private
respondents. Petitioner will not have much evidence to support its case against private respondents if
these properties are inadmissible in evidence.

On 3 March 1986, the Constabulary raiding team served at Dimaano’s residence a search warrant
captioned "Illegal Possession of Firearms and Ammunition." Dimaano was not present during the raid
but Dimaano’s cousins witnessed the raid. The raiding team seized the items detailed in the seizure
receipt together with other items not included in the search warrant. The raiding team seized these
items: one baby armalite rifle with two magazines; 40 rounds of 5.56 ammunition; one pistol,
caliber .45; communications equipment, cash consisting of ₱2,870,000 and US$50,000, jewelry, and
land titles.

Petitioner wants the Court to take judicial notice that the raiding team conducted the search and
seizure "on March 3, 1986 or five days after the successful EDSA revolution." 39 Petitioner argues that a
revolutionary government was operative at that time by virtue of Proclamation No. 1 announcing that
President Aquino and Vice President Laurel were "taking power in the name and by the will of the
Filipino people."40 Petitioner asserts that the revolutionary government effectively withheld the
operation of the 1973 Constitution which guaranteed private respondents’ exclusionary right.

Moreover, petitioner argues that the exclusionary right arising from an illegal search applies only
beginning 2 February 1987, the date of ratification of the 1987 Constitution. Petitioner contends that
all rights under the Bill of Rights had already reverted to its embryonic stage at the time of the search.
Therefore, the government may confiscate the monies and items taken from Dimaano and use the
same in evidence against her since at the time of their seizure, private respondents did not enjoy any
constitutional right.

Petitioner is partly right in its arguments.

The EDSA Revolution took place on 23-25 February 1986. As succinctly stated in President Aquino’s
Proclamation No. 3 dated 25 March 1986, the EDSA Revolution was "done in defiance of the provisions
of the 1973 Constitution."41 The resulting government was indisputably a revolutionary government
bound by no constitution or legal limitations except treaty obligations that the revolutionary
government, as the de jure government in the Philippines, assumed under international law.

The correct issues are: (1) whether the revolutionary government was bound by the Bill of Rights of the
1973 Constitution during the interregnum, that is, after the actual and effective take-over of power by
the revolutionary government following the cessation of resistance by loyalist forces up to 24 March
1986 (immediately before the adoption of the Provisional Constitution); and (2) whether the protection
accorded to individuals under the International Covenant on Civil and Political Rights ("Covenant") and
the Universal Declaration of Human Rights ("Declaration") remained in effect during the interregnum.

We hold that the Bill of Rights under the 1973 Constitution was not operative during the interregnum.
However, we rule that the protection accorded to individuals under the Covenant and the Declaration
remained in effect during the interregnum.

During the interregnum, the directives and orders of the revolutionary government were the supreme
law because no constitution limited the extent and scope of such directives and orders. With the
abrogation of the 1973 Constitution by the successful revolution, there was no municipal law higher
than the directives and orders of the revolutionary government. Thus, during the interregnum, a
person could not invoke any exclusionary right under a Bill of Rights because there was neither a
constitution nor a Bill of Rights during the interregnum. As the Court explained in Letter of Associate
Justice Reynato S. Puno:42

A revolution has been defined as "the complete overthrow of the established government in any
country or state by those who were previously subject to it" or as "a sudden, radical and fundamental
change in the government or political system, usually effected with violence or at least some acts of
violence." In Kelsen's book, General Theory of Law and State, it is defined as that which "occurs
whenever the legal order of a community is nullified and replaced by a new order . . . a way not
prescribed by the first order itself."

It was through the February 1986 revolution, a relatively peaceful one, and more popularly known as
the "people power revolution" that the Filipino people tore themselves away from an existing regime.
This revolution also saw the unprecedented rise to power of the Aquino government.

From the natural law point of view, the right of revolution has been defined as "an inherent right of a
people to cast out their rulers, change their policy or effect radical reforms in their system of
government or institutions by force or a general uprising when the legal and constitutional methods of
making such change have proved inadequate or are so obstructed as to be unavailable." It has been
said that "the locus of positive law-making power lies with the people of the state" and from there is
derived "the right of the people to abolish, to reform and to alter any existing form of government
without regard to the existing constitution."
xxx

It is widely known that Mrs. Aquino’s rise to the presidency was not due to constitutional processes;
in fact, it was achieved in violation of the provisions of the 1973 Constitution as a Batasang
Pambansa resolution had earlier declared Mr. Marcos as the winner in the 1986 presidential
election. Thus it can be said that the organization of Mrs. Aquino’s Government which was met by little
resistance and her control of the state evidenced by the appointment of the Cabinet and other key
officers of the administration, the departure of the Marcos Cabinet officials, revamp of the Judiciary
and the Military signaled the point where the legal system then in effect, had ceased to be obeyed by
the Filipino. (Emphasis supplied)

To hold that the Bill of Rights under the 1973 Constitution remained operative during the interregnum
would render void all sequestration orders issued by the Philippine Commission on Good Government
("PCGG") before the adoption of the Freedom Constitution. The sequestration orders, which direct the
freezing and even the take-over of private property by mere executive issuance without judicial action,
would violate the due process and search and seizure clauses of the Bill of Rights.

During the interregnum, the government in power was concededly a revolutionary government bound
by no constitution. No one could validly question the sequestration orders as violative of the Bill of
Rights because there was no Bill of Rights during the interregnum. However, upon the adoption of the
Freedom Constitution, the sequestered companies assailed the sequestration orders as contrary to the
Bill of Rights of the Freedom Constitution.

In Bataan Shipyard & Engineering Co. Inc. vs. Presidential Commission on Good
Government,43 petitioner Baseco, while conceding there was no Bill of Rights during the interregnum,
questioned the continued validity of the sequestration orders upon adoption of the Freedom
Constitution in view of the due process clause in its Bill of Rights. The Court ruled that the Freedom
Constitution, and later the 1987 Constitution, expressly recognized the validity of sequestration orders,
thus:

If any doubt should still persist in the face of the foregoing considerations as to the validity and
propriety of sequestration, freeze and takeover orders, it should be dispelled by the fact that these
particular remedies and the authority of the PCGG to issue them have received constitutional
approbation and sanction. As already mentioned, the Provisional or "Freedom" Constitution recognizes
the power and duty of the President to enact "measures to achieve the mandate of the people to . . .
(r)ecover ill-gotten properties amassed by the leaders and supporters of the previous regime and
protect the interest of the people through orders of sequestration or freezing of assets or accounts."
And as also already adverted to, Section 26, Article XVIII of the 1987 Constitution treats of, and ratifies
the "authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25,
1986."

The framers of both the Freedom Constitution and the 1987 Constitution were fully aware that the
sequestration orders would clash with the Bill of Rights. Thus, the framers of both constitutions had to
include specific language recognizing the validity of the sequestration orders. The following discourse
by Commissioner Joaquin G. Bernas during the deliberations of the Constitutional Commission is
instructive:

FR. BERNAS: Madam President, there is something schizophrenic about the arguments in defense of
the present amendment.
For instance, I have carefully studied Minister Salonga’s lecture in the Gregorio Araneta University
Foundation, of which all of us have been given a copy. On the one hand, he argues that everything the
Commission is doing is traditionally legal. This is repeated by Commissioner Romulo also. Minister
Salonga spends a major portion of his lecture developing that argument. On the other hand, almost as
an afterthought, he says that in the end what matters are the results and not the legal niceties, thus
suggesting that the PCGG should be allowed to make some legal shortcuts, another word for niceties or
exceptions.

Now, if everything the PCGG is doing is legal, why is it asking the CONCOM for special protection? The
answer is clear. What they are doing will not stand the test of ordinary due process, hence they are
asking for protection, for exceptions. Grandes malos, grandes remedios, fine, as the saying stands, but
let us not say grandes malos, grande y malos remedios. That is not an allowable extrapolation. Hence,
we should not give the exceptions asked for, and let me elaborate and give three reasons:

First, the whole point of the February Revolution and of the work of the CONCOM is to hasten
constitutional normalization. Very much at the heart of the constitutional normalization is the full
effectivity of the Bill of Rights. We cannot, in one breath, ask for constitutional normalization and at
the same time ask for a temporary halt to the full functioning of what is at the heart of
constitutionalism. That would be hypocritical; that would be a repetition of Marcosian protestation of
due process and rule of law. The New Society word for that is "backsliding." It is tragic when we begin
to backslide even before we get there.

Second, this is really a corollary of the first. Habits tend to become ingrained. The committee report
asks for extraordinary exceptions from the Bill of Rights for six months after the convening of Congress,
and Congress may even extend this longer.

Good deeds repeated ripen into virtue; bad deeds repeated become vice. What the committee report
is asking for is that we should allow the new government to acquire the vice of disregarding the Bill of
Rights.

Vices, once they become ingrained, become difficult to shed. The practitioners of the vice begin to
think that they have a vested right to its practice, and they will fight tooth and nail to keep the
franchise. That would be an unhealthy way of consolidating the gains of a democratic revolution.

Third, the argument that what matters are the results and not the legal niceties is an argument that is
very disturbing. When it comes from a staunch Christian like Commissioner Salonga, a Minister, and
repeated verbatim by another staunch Christian like Commissioner Tingson, it becomes doubly
disturbing and even discombobulating. The argument makes the PCGG an auctioneer, placing the Bill of
Rights on the auction block. If the price is right, the search and seizure clause will be sold. "Open your
Swiss bank account to us and we will award you the search and seizure clause. You can keep it in your
private safe."

Alternatively, the argument looks on the present government as hostage to the hoarders of hidden
wealth. The hoarders will release the hidden health if the ransom price is paid and the ransom price is
the Bill of Rights, specifically the due process in the search and seizure clauses. So, there is something
positively revolving about either argument. The Bill of Rights is not for sale to the highest bidder nor
can it be used to ransom captive dollars. This nation will survive and grow strong, only if it would
become convinced of the values enshrined in the Constitution of a price that is beyond monetary
estimation.
For these reasons, the honorable course for the Constitutional Commission is to delete all of Section 8
of the committee report and allow the new Constitution to take effect in full vigor. If Section 8 is
deleted, the PCGG has two options. First, it can pursue the Salonga and the Romulo argument — that
what the PCGG has been doing has been completely within the pale of the law. If sustained, the PCGG
can go on and should be able to go on, even without the support of Section 8. If not sustained,
however, the PCGG has only one honorable option, it must bow to the majesty of the Bill of Rights.

The PCGG extrapolation of the law is defended by staunch Christians. Let me conclude with what
another Christian replied when asked to toy around with the law. From his prison cell, Thomas More
said, "I'll give the devil benefit of law for my nation’s safety sake." I ask the Commission to give the
devil benefit of law for our nation’s sake. And we should delete Section 8.

Thank you, Madam President. (Emphasis supplied)

Despite the impassioned plea by Commissioner Bernas against the amendment excepting
sequestration orders from the Bill of Rights, the Constitutional Commission still adopted the
amendment as Section 26,44 Article XVIII of the 1987 Constitution. The framers of the Constitution were
fully aware that absent Section 26, sequestration orders would not stand the test of due process under
the Bill of Rights.

Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force during the interregnum,
absent a constitutional provision excepting sequestration orders from such Bill of Rights, would clearly
render all sequestration orders void during the interregnum. Nevertheless, even during the
interregnum the Filipino people continued to enjoy, under the Covenant and the Declaration, almost
the same rights found in the Bill of Rights of the 1973 Constitution.

The revolutionary government, after installing itself as the de jure government, assumed responsibility
for the State’s good faith compliance with the Covenant to which the Philippines is a signatory. Article
2(1) of the Covenant requires each signatory State "to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights 45 recognized in the present Covenant." Under Article
17(1) of the Covenant, the revolutionary government had the duty to insure that "[n]o one shall be
subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence."

The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2) that "[n]o one
shall be arbitrarily deprived of his property." Although the signatories to the Declaration did not intend
it as a legally binding document, being only a declaration, the Court has interpreted the Declaration as
part of the generally accepted principles of international law and binding on the State. 46 Thus, the
revolutionary government was also obligated under international law to observe the rights 47 of
individuals under the Declaration.

The revolutionary government did not repudiate the Covenant or the Declaration during the
interregnum. Whether the revolutionary government could have repudiated all its obligations under
the Covenant or the Declaration is another matter and is not the issue here. Suffice it to say that the
Court considers the Declaration as part of customary international law, and that Filipinos as human
beings are proper subjects of the rules of international law laid down in the Covenant. The fact is the
revolutionary government did not repudiate the Covenant or the Declaration in the same way it
repudiated the 1973 Constitution. As the de jure government, the revolutionary government could not
escape responsibility for the State’s good faith compliance with its treaty obligations under
international law.
It was only upon the adoption of the Provisional Constitution on 25 March 1986 that the directives and
orders of the revolutionary government became subject to a higher municipal law that, if contravened,
rendered such directives and orders void. The Provisional Constitution adopted verbatim the Bill of
Rights of the 1973 Constitution.48 The Provisional Constitution served as a self-limitation by the
revolutionary government to avoid abuses of the absolute powers entrusted to it by the people.

During the interregnum when no constitution or Bill of Rights existed, directives and orders issued by
government officers were valid so long as these officers did not exceed the authority granted them by
the revolutionary government. The directives and orders should not have also violated the Covenant or
the Declaration. In this case, the revolutionary government presumptively sanctioned the warrant since
the revolutionary government did not repudiate it. The warrant, issued by a judge upon proper
application, specified the items to be searched and seized. The warrant is thus valid with respect to the
items specifically described in the warrant.

However, the Constabulary raiding team seized items not included in the warrant. As admitted by
petitioner’s witnesses, the raiding team confiscated items not included in the warrant, thus:

Direct Examination of Capt. Rodolfo Sebastian

AJ AMORES
Q. According to the search warrant, you are supposed to seize only for weapons. What else, aside from
the weapons, were seized from the house of Miss Elizabeth Dimaano?
A. The communications equipment, money in Philippine currency and US dollars, some jewelries, land
titles, sir.
Q. Now, the search warrant speaks only of weapons to be seized from the house of Elizabeth Dimaano.
Do you know the reason why your team also seized other properties not mentioned in said search
warrant?
A. During the conversation right after the conduct of said raid, I was informed that the reason why they
also brought the other items not included in the search warrant was because the money and other
jewelries were contained in attaché cases and cartons with markings "Sony Trinitron", and I think three
(3) vaults or steel safes. Believing that the attaché cases and the steel safes were containing firearms,
they forced open these containers only to find out that they contained money.
xxx
Q. You said you found money instead of weapons, do you know the reason why your team seized this
money instead of weapons?
A. I think the overall team leader and the other two officers assisting him decided to bring along also
the money because at that time it was already dark and they felt most secured if they will bring that
because they might be suspected also of taking money out of those items, your Honor. 49
Cross-examination
Atty. Banaag
Q. Were you present when the search warrant in connection with this case was applied before the
Municipal Trial Court of Batangas, Branch 1?
A. Yes, sir.
Q. And the search warrant applied for by you was for the search and seizure of five (5) baby armalite
rifles M-16 and five (5) boxes of ammunition?
A. Yes, sir.
xxx
AJ AMORES
Q. Before you applied for a search warrant, did you conduct surveillance in the house of Miss Elizabeth
Dimaano?
A. The Intelligence Operatives conducted surveillance together with the MSU elements, your Honor.
Q. And this party believed there were weapons deposited in the house of Miss Elizabeth Dimaano?
A. Yes, your Honor.
Q. And they so swore before the Municipal Trial Judge?
A. Yes, your Honor.
Q. But they did not mention to you, the applicant for the search warrant, any other properties or
contraband which could be found in the residence of Miss Elizabeth Dimaano?
A. They just gave us still unconfirmed report about some hidden items, for instance, the
communications equipment and money. However, I did not include that in the application for search
warrant considering that we have not established concrete evidence about that. So when…
Q. So that when you applied for search warrant, you had reason to believe that only weapons were in
the house of Miss Elizabeth Dimaano?
A. Yes, your Honor.50
xxx
Q. You stated that a .45 caliber pistol was seized along with one armalite rifle M-16 and how many
ammunition?
A. Forty, sir.
Q. And this became the subject of your complaint with the issuing Court, with the fiscal’s office who
charged Elizabeth Dimaano for Illegal Possession of Firearms and Ammunition?
A. Yes, sir.
Q. Do you know what happened to that case?
A. I think it was dismissed, sir.
Q. In the fiscal’s office?
A. Yes, sir.
Q. Because the armalite rifle you seized, as well as the .45 caliber pistol had a Memorandum Receipt in
the name of Felino Melegrito, is that not correct?
A. I think that was the reason, sir.
Q. There were other articles seized which were not included in the search warrant, like for instance,
jewelries. Why did you seize the jewelries?
A. I think it was the decision of the overall team leader and his assistant to bring along also the
jewelries and other items, sir. I do not really know where it was taken but they brought along also
these articles. I do not really know their reason for bringing the same, but I just learned that these
were taken because they might get lost if they will just leave this behind.
xxx
Q. How about the money seized by your raiding team, they were not also included in the search
warrant?
A. Yes sir, but I believe they were also taken considering that the money was discovered to be
contained in attaché cases.1âwphi1 These attaché cases were suspected to be containing pistols or
other high powered firearms, but in the course of the search the contents turned out to be money. So
the team leader also decided to take this considering that they believed that if they will just leave the
money behind, it might get lost also.
Q. That holds true also with respect to the other articles that were seized by your raiding team, like
Transfer Certificates of Title of lands?
A. Yes, sir. I think they were contained in one of the vaults that were opened. 51

It is obvious from the testimony of Captain Sebastian that the warrant did not include the monies,
communications equipment, jewelry and land titles that the raiding team confiscated. The search
warrant did not particularly describe these items and the raiding team confiscated them on its own
authority. The raiding team had no legal basis to seize these items without showing that these items
could be the subject of warrantless search and seizure.52 Clearly, the raiding team exceeded its
authority when it seized these items.

The seizure of these items was therefore void, and unless these items are contraband per se, 53 and they
are not, they must be returned to the person from whom the raiding seized them. However, we do not
declare that such person is the lawful owner of these items, merely that the search and seizure warrant
could not be used as basis to seize and withhold these items from the possessor. We thus hold that
these items should be returned immediately to Dimaano.

WHEREFORE, the petition for certiorari is DISMISSED. The questioned Resolutions of the
Sandiganbayan dated 18 November 1991 and 25 March 1992 in Civil Case No. 0037, remanding the
records of this case to the Ombudsman for such appropriate action as the evidence may warrant, and
referring this case to the Commissioner of the Bureau of Internal Revenue for a determination of any
tax liability of respondent Elizabeth Dimaano, are AFFIRMED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 164815               September 3, 2009

SR. INSP. JERRY C. VALEROSO, Petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.

RESOLUTION

NACHURA, J.:

For resolution is the Letter-Appeal1 of Senior Inspector (Sr. Insp.) Jerry C. Valeroso (Valeroso) praying
that our February 22, 2008 Decision2 and June 30, 2008 Resolution3 be set aside and a new one be
entered acquitting him of the crime of illegal possession of firearm and ammunition.

The facts are briefly stated as follows:

Valeroso was charged with violation of Presidential Decree No. 1866, committed as follows:

That on or about the 10th day of July, 1996, in Quezon City, Philippines, the said accused without any
authority of law, did then and there willfully, unlawfully and knowingly have in his/her possession and
under his/her custody and control

One (1) cal. 38 "Charter Arms" revolver bearing serial no. 52315 with five (5) live ammo.
without first having secured the necessary license/permit issued by the proper authorities.

CONTRARY TO LAW.4

When arraigned, Valeroso pleaded "not guilty."5 Trial on the merits ensued.

During trial, the prosecution presented two witnesses: Senior Police Officer (SPO)2 Antonio Disuanco
(Disuanco) of the Criminal Investigation Division of the Central Police District Command; and Epifanio
Deriquito (Deriquito), Records Verifier of the Firearms and Explosives Division in Camp Crame. Their
testimonies are summarized as follows:

On July 10, 1996, at around 9:30 a.m., Disuanco received a Dispatch Order from the desk officer
directing him and three (3) other policemen to serve a Warrant of Arrest, issued by Judge Ignacio
Salvador, against Valeroso for a case of kidnapping with ransom. 6

After a briefing, the team conducted the necessary surveillance on Valeroso checking his hideouts in
Cavite, Caloocan, and Bulacan. Eventually, the team members proceeded to the Integrated National
Police (INP) Central Police Station in Culiat, Quezon City, where they saw Valeroso about to board a
tricyle. Disuanco and his team approached Valeroso. They put him under arrest, informed him of his
constitutional rights, and bodily searched him. They found a Charter Arms revolver, bearing Serial No.
52315, with five (5) pieces of live ammunition, tucked in his waist. 7

Valeroso was then brought to the police station for questioning. Upon verification in the Firearms and
Explosives Division in Camp Crame, Deriquito presented a certification 8 that the subject firearm was
not issued to Valeroso, but was licensed in the name of a certain Raul Palencia Salvatierra of Sampaloc,
Manila.9

On the other hand, Valeroso, SPO3 Agustin R. Timbol, Jr. (Timbol), and Adrian Yuson testified for the
defense. Their testimonies are summarized as follows:

On July 10, 1996, Valeroso was sleeping inside a room in the boarding house of his children located at
Sagana Homes, Barangay New Era, Quezon City. He was awakened by four (4) heavily armed men in
civilian attire who pointed their guns at him and pulled him out of the room.10 The raiding team tied his
hands and placed him near the faucet (outside the room) then went back inside, searched and
ransacked the room. Moments later, an operative came out of the room and exclaimed, "Hoy, may
nakuha akong baril sa loob!"11

Disuanco informed Valeroso that there was a standing warrant for his arrest. However, the raiding
team was not armed with a search warrant.12

Timbol testified that he issued to Valeroso a Memorandum Receipt13 dated July 1, 1993 covering the
subject firearm and its ammunition, upon the verbal instruction of Col. Angelito Moreno. 14

On May 6, 1998, the Regional Trial Court (RTC), Branch 97, Quezon City, convicted Valeroso as charged
and sentenced him to suffer the indeterminate penalty of four (4) years, two (2) months and one (1)
day, as minimum, to six (6) years, as maximum. The gun subject of the case was further ordered
confiscated in favor of the government.15
On appeal, the Court of Appeals (CA) affirmed16 the RTC decision but the minimum term of the
indeterminate penalty was lowered to four (4) years and two (2) months.

On petition for review, we affirmed17 in full the CA decision. Valeroso filed a Motion for
Reconsideration18 which was denied with finality19 on June 30, 2008.

Valeroso is again before us through this Letter-Appeal20 imploring this Court to once more take a
contemplative reflection and deliberation on the case, focusing on his breached constitutional rights
against unreasonable search and seizure.21

Meanwhile, as the Office of the Solicitor General (OSG) failed to timely file its Comment on Valeroso’s
Motion for Reconsideration, it instead filed a Manifestation in Lieu of Comment. 22

In its Manifestation, the OSG changed its previous position and now recommends Valeroso’s acquittal.
After a second look at the evidence presented, the OSG considers the testimonies of the witnesses for
the defense more credible and thus concludes that Valeroso was arrested in a boarding house. More
importantly, the OSG agrees with Valeroso that the subject firearm was obtained by the police officers
in violation of Valeroso’s constitutional right against illegal search and seizure, and should thus be
excluded from the evidence for the prosecution. Lastly, assuming that the subject firearm was
admissible in evidence, still, Valeroso could not be convicted of the crime, since he was able to
establish his authority to possess the gun through the Memorandum Receipt issued by his superiors.

After considering anew Valeroso’s arguments through his Letter-Appeal, together with the OSG’s
position recommending his acquittal, and keeping in mind that substantial rights must ultimately reign
supreme over technicalities, this Court is swayed to reconsider. 23

The Letter-Appeal is actually in the nature of a second motion for reconsideration. While a second
motion for reconsideration is, as a general rule, a prohibited pleading, it is within the sound discretion
of the Court to admit the same, provided it is filed with prior leave whenever substantive justice may
be better served thereby.24

This is not the first time that this Court is suspending its own rules or excepting a particular case from
the operation of the rules. In De Guzman v. Sandiganbayan, 25 despite the denial of De Guzman’s
motion for reconsideration, we still entertained his Omnibus Motion, which was actually a second
motion for reconsideration. Eventually, we reconsidered our earlier decision and remanded the case to
the Sandiganbayan for reception and appreciation of petitioner’s evidence. In that case, we said that if
we would not compassionately bend backwards and flex technicalities, petitioner would surely
experience the disgrace and misery of incarceration for a crime which he might not have committed
after all.26 Also in Astorga v. People,27 on a second motion for reconsideration, we set aside our earlier
decision, re-examined the records of the case, then finally acquitted Benito Astorga of the crime of
Arbitrary Detention on the ground of reasonable doubt. And in Sta. Rosa Realty Development
Corporation v. Amante,28 by virtue of the January 13, 2004 En Banc Resolution, the Court authorized
the Special First Division to suspend the Rules, so as to allow it to consider and resolve respondent’s
second motion for reconsideration after the motion was heard on oral arguments. After a re-
examination of the merits of the case, we granted the second motion for reconsideration and set aside
our earlier decision.

Clearly, suspension of the rules of procedure, to pave the way for the re-examination of the findings of
fact and conclusions of law earlier made, is not without basis.
We would like to stress that rules of procedure are merely tools designed to facilitate the attainment of
justice. They are conceived and promulgated to effectively aid the courts in the dispensation of justice.
Courts are not slaves to or robots of technical rules, shorn of judicial discretion. In rendering justice,
courts have always been, as they ought to be, conscientiously guided by the norm that, on the balance,
technicalities take a backseat to substantive rights, and not the other way around. Thus, if the
application of the Rules would tend to frustrate rather than to promote justice, it would always be
within our power to suspend the rules or except a particular case from its operation. 29

Now on the substantive aspect.

The Court notes that the version of the prosecution, as to where Valeroso was arrested, is different
from the version of the defense. The prosecution claims that Valeroso was arrested near the INP
Central Police Station in Culiat, Quezon City, while he was about to board a tricycle. After placing
Valeroso under arrest, the arresting officers bodily searched him, and they found the subject firearm
and ammunition. The defense, on the other hand, insists that he was arrested inside the boarding
house of his children. After serving the warrant of arrest (allegedly for kidnapping with ransom), some
of the police officers searched the boarding house and forcibly opened a cabinet where they
discovered the subject firearm.

After a thorough re-examination of the records and consideration of the joint appeal for acquittal by
Valeroso and the OSG, we find that we must give more credence to the version of the defense.

Valeroso’s appeal for acquittal focuses on his constitutional right against unreasonable search and
seizure alleged to have been violated by the arresting police officers; and if so, would render the
confiscated firearm and ammunition inadmissible in evidence against him.

The right against unreasonable searches and seizures is secured by Section 2, Article III of the
Constitution which states:

SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

From this constitutional provision, it can readily be gleaned that, as a general rule, the procurement of
a warrant is required before a law enforcer can validly search or seize the person, house, papers, or
effects of any individual.30

To underscore the significance the law attaches to the fundamental right of an individual against
unreasonable searches and seizures, the Constitution succinctly declares in Article III, Section 3(2), that
"any evidence obtained in violation of this or the preceding section shall be inadmissible in evidence
for any purpose in any proceeding."31

The above proscription is not, however, absolute. The following are the well-recognized instances
where searches and seizures are allowed even without a valid warrant:

1. Warrantless search incidental to a lawful arrest;

 2. [Seizure] of evidence in "plain view." The elements are: a) a prior valid intrusion based on the
valid warrantless arrest in which the police are legally present in the pursuit of their official
duties; b) the evidence was inadvertently discovered by the police who have the right to be
where they are; c) the evidence must be immediately apparent; and d) "plain view" justified
mere seizure of evidence without further search;

3. Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent
mobility reduces expectation of privacy especially when its transit in public thoroughfares
furnishes a highly reasonable suspicion amounting to probable cause that the occupant
committed a criminal activity;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk;

7. Exigent and emergency circumstances.32

8. Search of vessels and aircraft; [and]

9. Inspection of buildings and other premises for the enforcement of fire, sanitary and building
regulations.33

In the exceptional instances where a warrant is not necessary to effect a valid search or seizure, what
constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable
from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the
presence or absence of probable cause, the manner in which the search and seizure was made, the
place or thing searched, and the character of the articles procured. 34

In light of the enumerated exceptions, and applying the test of reasonableness laid down above, is the
warrantless search and seizure of the firearm and ammunition valid?

We answer in the negative.

For one, the warrantless search could not be justified as an incident to a lawful arrest. Searches and
seizures incident to lawful arrests are governed by Section 13, Rule 126 of the Rules of Court, which
reads:

SEC. 13. Search incident to lawful arrest. – A person lawfully arrested may be searched for dangerous
weapons or anything which may have been used or constitute proof in the commission of an offense
without a search warrant.

We would like to stress that the scope of the warrantless search is not without limitations. In People v.
Leangsiri,35 People v. Cubcubin, Jr.,36 and People v. Estella,37 we had the occasion to lay down the
parameters of a valid warrantless search and seizure as an incident to a lawful arrest.

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order
to remove any weapon that the latter might 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. 38

Moreover, in lawful arrests, it becomes both the duty and the right of the apprehending officers to
conduct a warrantless search not only on the person of the suspect, but also in the permissible area
within the latter’s reach.39 Otherwise stated, a valid arrest allows the seizure of evidence or dangerous
weapons either on the person of the one arrested or within the area of his immediate control. 40 The
phrase "within the area of his immediate control" means the area from within which he might gain
possession of a weapon or destructible evidence.41 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.42

In the present case, Valeroso was arrested by virtue of a warrant of arrest allegedly for kidnapping with
ransom. At that time, Valeroso was sleeping inside the boarding house of his children. He was
awakened by the arresting officers who were heavily armed. They pulled him out of the room, placed
him beside the faucet outside the room, tied his hands, and then put him under the care of
Disuanco.43 The other police officers remained inside the room and ransacked the locked
cabinet44 where they found the subject firearm and ammunition.45 With such discovery, Valeroso was
charged with illegal possession of firearm and ammunition.

From the foregoing narration of facts, we can readily conclude that the arresting officers served the
warrant of arrest without any resistance from Valeroso. They placed him immediately under their
control by pulling him out of the bed, and bringing him out of the room with his hands tied. To be sure,
the cabinet which, according to Valeroso, was locked, could no longer be considered as an "area within
his immediate control" because there was no way for him to take any weapon or to destroy any
evidence that could be used against him.

The arresting officers would have been justified in searching the person of Valeroso, as well as the
tables or drawers in front of him, for any concealed weapon that might be used against the former. But
under the circumstances obtaining, there was no comparable justification to search through all the
desk drawers and cabinets or the other closed or concealed areas in that room itself. 46

It is worthy to note that the purpose of the exception (warrantless search as an incident to a lawful
arrest) is to protect the arresting officer from being harmed by the person arrested, who might be
armed with a concealed weapon, and to prevent the latter from destroying evidence within reach. The
exception, therefore, should not be strained beyond what is needed to serve its purpose. 47 In the case
before us, search was made in the locked cabinet which cannot be said to have been within Valeroso’s
immediate control. Thus, the search exceeded the bounds of what may be considered as an incident to
a lawful arrest.48

Nor can the warrantless search in this case be justified under the "plain view doctrine."

The "plain view doctrine" may not be used to launch unbridled searches and indiscriminate seizures or
to extend a general exploratory search made solely to find evidence of defendant’s guilt. The doctrine
is usually applied where a police officer is not searching for evidence against the accused, but
nonetheless inadvertently comes across an incriminating object.49

As enunciated in People v. Cubcubin, Jr.50 and People v. Leangsiri:51

What the "plain view" cases have in common is that the police officer in each of them had a prior
justification for an intrusion in the course of which[,] he came inadvertently across a piece of evidence
incriminating the accused. The doctrine serves to supplement the prior justification – whether it be a
warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate
reason for being present unconnected with a search directed against the accused – and permits the
warrantless seizure. Of course, the extension of the original justification is legitimate only where it is
immediately apparent to the police that they have evidence before them; the "plain view" doctrine
may not be used to extend a general exploratory search from one object to another until something
incriminating at last emerges.52

Indeed, the police officers were inside the boarding house of Valeroso’s children, because they were
supposed to serve a warrant of arrest issued against Valeroso. In other words, the police officers had a
prior justification for the intrusion. Consequently, any evidence that they would inadvertently discover
may be used against Valeroso. However, in this case, the police officers did not just accidentally
discover the subject firearm and ammunition; they actually searched for evidence against Valeroso.

Clearly, the search made was illegal, a violation of Valeroso’s right against unreasonable search and
seizure. Consequently, the evidence obtained in violation of said right is inadmissible in evidence
against him.1avvphi1

Unreasonable searches and seizures are the menace against which the constitutional guarantees afford
full protection. While the power to search and seize may at times be necessary for public welfare, still
it may be exercised and the law enforced without transgressing the constitutional rights of the citizens,
for no enforcement of any statute is of sufficient importance to justify indifference to the basic
principles of government. Those who are supposed to enforce the law are not justified in disregarding
the rights of an individual in the name of order. Order is too high a price to pay for the loss of liberty. 53

Because a warrantless search is in derogation of a constitutional right, peace officers who conduct it
cannot invoke regularity in the performance of official functions.54

The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their
rights as human beings, democracy cannot survive and government becomes meaningless. This
explains why the Bill of Rights, contained as it is in Article III of the Constitution, occupies a position of
primacy in the fundamental law way above the articles on governmental power. 55

Without the illegally seized firearm, Valeroso’s conviction cannot stand. There is simply no sufficient
evidence to convict him.56 All told, the guilt of Valeroso was not proven beyond reasonable doubt
measured by the required moral certainty for conviction. The evidence presented by the prosecution
was not enough to overcome the presumption of innocence as constitutionally ordained. Indeed, it
would be better to set free ten men who might probably be guilty of the crime charged than to convict
one innocent man for a crime he did not commit.57

With the foregoing disquisition, there is no more need to discuss the other issues raised by Valeroso.

One final note. The Court values liberty and will always insist on the observance of basic constitutional
rights as a condition sine qua non against the awesome investigative and prosecutory powers of the
government.58
WHEREFORE, in view of the foregoing, the February 22, 2008 Decision and June 30, 2008 Resolution
are RECONSIDERED and SET ASIDE. Sr. Insp. Jerry Valeroso is hereby ACQUITTED of illegal possession of
firearm and ammunition.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 98060 January 27, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SATURNINA SALAZAR y PALANAS, accused-appellant.

PANGANIBAN, J.:

As her defense in this appeal, appellant alleges violation of her constitutional rights against warrantless
search and seizure, and to counsel during custodial investigations. However, the search, being merely
an incident of a legitimate buy-bust operation against illegal drugs, needed no warrant. And while her
right to counsel during the custodial investigation was indeed violated, there were other evidence
sufficient to warrant her conviction beyond reasonable doubt.

This appeal seeks the reversal of the Decision1 in Criminal Case No. 925 of the Regional Trial Court of
Oroquieta City, Branch 13, finding appellant Saturnina Salazar y Palanas guilty beyond reasonable
doubt of violation of Section 4, Article II of Republic Act No. 6425 Dangerous Drugs Act of 1972), as
amended by Presidential Decree No. 1675, and imposing upon her the penalty of life imprisonment
and payment of P20,000.00 as fine, with costs.

The Facts

According to the Prosecution

Appellant was tried under an Information2 the accusatory portion of which reads:3

That on or about the 23rd day of August 1988, at 1:35 o'clock in the afternoon, more or
less, in Barangay Poblacion II, Oroquieta City, Philippines, and within the jurisdiction of
this Honorable Court, the said accused did then and there and without authority of law,
wilfully, unlawfully and feloniously sell, deliver and give away five (5) marijuana sticks to
a NARCOM Agent posing as a buyer in consideration of the amount of Five Peso (P5.00)
 marked bill with Serial No. FJ526501; and, as a result of the said Buy-Bust operation,
confiscated from the control and possession of the accused were six (6) marijuana sticks
and five (5) grams, more or less, of dried marijuana leaves in addition to the five (5)
marijuana sticks aforestated.

Contrary to law.

On arraignment, appellant, assisted by counsel pleaded not guilty to the crime charged 4 The
prosecution presented Sgt. Jim Cubillan, Cpl. Emilio de Guzman, and Forensic Chemist Bernabe Arenga
and various evidence proving the following facts:

After being informed of the activities of drug pushers in Oroquieta City, Sgt. Cubillan and Cpl. de
Guzman of the Narcotics Command (NARCOM) of the Philippine Constabulary (PC), left Ozamis City on
August 23, 1988, for the former city. Upon their arrival at noon, they were met by the police informer
who accompanied them to the place where a pusher operated. Near the City Hall, the informer pointed
to them the residence-cum-store of appellant and thereafter left the two constabulary operatives.

Right then and there, Sgt Cubillan took a five-peso bill with Serial No. FJ526501 from his billfold,
marked it with his initials and handed it to Cpl. de Guzman. The latter then went to the store and told
the woman seated on the windowsill that he wanted "to score"5 ("mag-score nga ako").6 The woman
nodded. After indicating that he wanted five (5) sticks of marijuana, Cpl. de Guzman asked her if what
she was about to give him was "genuine" and gave her the five-peso bill. After the woman gave him
five sticks of marijuana, Cpl. de Guzman unwrapped one stick. He smelled its contents and at the same
time noticed the seeds therein. He then placed the contraband in his pocket, showed his identification
card to the woman and told her that he was a NARCOM agent.7

At that moment, Sgt. Cubillan approached the two. He had positioned himself at the back of the store,
around four or five meters away from Cpl. de Guzman and the woman. 8 He and Cpl. de Guzman
arrested the woman, whom they later learned to be Saturnina "Nena" :Salazar. They recovered from
appellant the P5.00-bill. Upon being informed by Cpl. de Guzman that appellant had taken the five
marijuana sticks from a plastic container on the table inside the store, Sgt. Cubillan took the container
which had six (6) more marijuana sticks and around five (5) grams of dried marijuana leaves. 9

The NARCOM agents took appellant to the local PC headquarters. On board a motorcar, Sgt. Cubillan
asked her if she knew of other pushers in the vicinity. She pointed to the place of Josephine Bayotas.
When they passed by Bayotas' residence, the two PC operatives also arrested her. 10

At the PC headquarters in Camp Naranjo, Sgt. Cubillan interrogated appellant while Cpl. de Guzman
took her bio-data.11 Her fingerprints were also taken.12 Thereafter, Cpl. de Guzman made her sign her
bio-data and the paper containing her fingerprints. It was Sgt. Cubillan who instructed her to sign the
piece of bond paper which was used to wrap the marijuana sticks before they were submitted to the
laboratory for examination.13

For their part, Sgt. Cubillan and Cpl. de Guzman executed a joint affidavit to support the complaint that
was to be filed against appellant.14 The confiscated and dried leaves were turned over to Sgt.
Dominador Bejuega who sent the specimen to the National Bureau of Investigation (NBI) in Cagayan de
Oro City. NBI Forensic Chemist Bernabe Arenga, who conducted the examination, executed a
Certification, dated August 29, 1988, (Exh. D)15 Stating that the laboratory examinations conducted on
the eleven (11) confiscated cigarette sticks and the "crushed dried stalks and flowering tops suspected
to be marijuana" yielded "positive results for marijuana." 16 He also submitted Dangerous Drugs Report
No. DDM-88-107 (Exh. E) finding:17

Cross weight of specimens 15.3280 grams

Microscopic, chemical and chromatographic examinations conducted on the above-

mentioned specimens gave POSITIVE RESULTS for MARIHUANA.

According to the Defense

The defense presented Jeanife Mission, appellant's 12-year-old daughter, to testify on the manner by
which the arrest was conducted by the NARCOM agents. According to Jeanife, at around 1:35 p.m. on
August 23, 1988, she was at home with her mother. Jeanife was watching their sari-sari store in front
of their house as her mother took a nap. Two persons arrived and went inside their house. One of
them ransacked their things. When her mother woke up, she was held by one of the two persons and
taken to the sala. Jeanife failed to hear their conversation, but she saw the two persons take her
mother away. It was at the jail when she next saw her mother.18

In her own defense, Nena Salazar testified that at around 1:30 p.m. of August 23, 1988, she was
sleeping in the only bedroom of their house which was separated from the sala by a bamboo divider.
When she heard someone "doing something" in the sala, she stood up to see what the matter was, but
she was met by a big fellow who, by the identification .card he showed her, was named Jimmy Cubillan.
She also identified the other person as de Guzman by his ID card.

Cubillan held her left hand. She tried to untangle herself from Cubillan's hold and asked him, "why do
you hold my hand, sir" Cubillan said, "This is (a) raid, we are looking for something." He did not,
however, show any search warrant, but he asked her where she had placed the marijuana that she was
allegedly selling. She denied selling the contraband as she was still on probation after she had been
convicted of selling marijuana in 1986.19

Because Cubillan could not find marijuana in her house, he pulled out his pistol and told her
threateningly that should she refuse to tell him where the marijuana was, he would "salvage" her. The
two persons brought her to the PC headquarters where she was investigated by Cubillan. She was not
informed of her right to counsel nor her right to remain silent. However, she kept silent, not answering
any of Cubillan's questions. Later, they held her right hand and forced her to sign something. They also
asked her to affix her thumbmark to a piece of paper, telling her that she could refuse to do so only if
she would divulge to them the names of drug pushers in the area. She just signed and affixed her
thumbmark to a piece of paper the contents of which she was not even allowed to read. By then, it was
almost midnight. The following day, she was brought to the city jail. Bayotas was also arrested, but she
was already in the PC headquarters when she (appellant) was brought there. 20

As stated earlier, Saturnina "Nena" Salazar was convicted of the crime charged. Thus, the case was
disposed in this wise:21
 WHEREFORE, finding the accused Saturnina Salazar guilty beyond reasonable doubt of
selling a prohibited drug without being authorized by law, she is hereby sentenced to
life imprisonment and to pay a fine of P20,000.00.

Costs against accused.

SO ORDERED.

Through her counsel, she interposed the instant appeal.22

After the parties had filed their respective briefs, appellant, through the Public Attorney's Office, filed
an urgent manifestation and motion stating that since she was found in possession of five (5) grams of
dried marijuana leaves and eleven (11) sticks of marijuana which, at .02 gram per stick, would all sum
up to less than 6 grams only and therefore would involve a penalty of only six (6) years, her appeal
should be referred to the Court of Appeals for review. As legal basis therefor, she cited the Decision
in People vs. Simon23 and the August 15, 1994 Resolution in G.R. No. 113360, People vs. Margarita
Joseco y Magbanua, where the total weight of the subject illegal drugs was 400 grams. 24 However, in
the Resolution of March 27, 1995, the Court merely noted the said urgent manifestation and
motion.25 Hence, notwithstanding the insignificant amount of marijuana involved, the Court itself shall
consider this case.26 After all, the penalty actually imposed by the trial court was life imprisonment.

Ruling of the Trial Court

The trial court gave full faith and credence to the testimonies of the prosecution witnesses. On the
other hand, it found that the defense was unable to sufficiently rebut the presumption of regularity in
the government witnesses' performance of their duty, finding it hard to believe that the NARCOM
agents brought her to their headquarters to force her into divulging the identity of other drugs pushers
in the area and that the case against her was only a "trumped-up charge". Appellant's defense
consisting of denials did not overcome the positive testimony of the prosecution witnesses.

Assignment of Errors

Appellant alleges in this appeal that the trial court gravely erred in (a) convicting her of the crime
charged despite the unreasonable and unlawful search and seizure conducted by the NARCOM agents;
(b) disregarding her constitutional right to presumption of innocence, and (c) finding her guilty beyond
reasonable doubt of the offense charged.

The Court's Ruling

Appellant's Guilt Sufficiently Proven

Section 4, Article II of R.A. 6425 provides:

Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited

Drugs. — The penalty of reclusion perpetua to death and a fine ranging from five
hundred thousand pesos to ten million pesos shall be imposed upon any person who,
unless authorized by law, shall sell, administer, deliver, give away to another, distribute,
dispatch in transit or transport any prohibited drug, or shall act as a broker in any of
such transactions.
 x x x           x x x          x x x

Indispensable in every prosecution for illegal sale of marijuana, a prohibited drug, is the submission of
proof that the sale of the illicit drug took place between the poseur-buyer and the seller thereof,
coupled with the presentation of the corpus delicti as evidence in court.27 The element of sale must be
unequivocally established in order to sustain a conviction.

This is precisely the import of the testimony of Cpl. de Guzman when he said: 28

Q And what was your purpose in coming to Oroquieta City?

A We came here because we were informed by our informant that there
were drung (sic) pushers here.
x x x           x x x          x x x
Q And after you met your informant in Oroquieta City what happened
next?
A He accompanied us to the store of the pusher.
x x x           x x x          x x x
Q And what happened when you reached the place where the pusher
was?
A When he pointed to us the alleged drug pusher we talked with Sgt.
Cubillan who got a marked money and I posed as a buyer.
Q Did you approach the store pointed to you by your informant?
A Yes.
Q And what happened at the store (sic) of the alleged pusher?
A I went to the store and talked to the owner that I wanted to buy
marijuana.
Q How exactly did you tell the owner of the store?
A I said I wanted to score.

COURT:

Q Do you know what is the meaning of score?

A That is the term used by the users so that they will not be identified.
Q And what did the suspected pusher say?
A She nodded.
x x x           x x x          x x x

FISCAL RAMOS:

Q What happened after she gave you the five sticks of marijuana?
A I bought five sticks of marijuana and I asked her if this is genuine and I
gave the money. I opened one stick, I smelled and saw that there were
seeds inside. I placed it in my pocket and then I showed my ID and I
identified (sic) myself as a NARCOM agent.
Q What made you conclude that the 5 cigarette sticks which the alleged
pusher gave you were marijuana cigarettes?
A I learned that from my training and schooling.
Q What happened after you identified yourself as a NARCOM agent?
A Sgt. Cubillan came near and he arrested her.
 Q What happened after that?
A I informed Sgt. Cubillan that the container from where the marijuana
was (sic) taken is on the table and in it were 6 sticks and 5 grams of dried
leaves.
Q What did Sgt. Cubillan do when you pointed to the container?
A He took it and looked inside.
Q And what happened after that?
A We brought her to the PC.

Sgt. Cubillan corroborated Cpl. de Guzman's account testifying that:

Q And what did you do upon (sic) being informed that there is a pusher in
Oroquieta City?
A I asked him to accompany me to where is (sic) pusher is.
Q Did your informant lead you to where the pusher was?
A Yes.
Q And what happened thereat?
A He led us and pointed to a woman inside a store and said that she is a
pusher.
x x x           x x x          x x x
Q And after your informant pointed to you a particular woman inside a
store as a pusher what step if any did you take?
A I and Cpl. de Guzman decided to conduct a buy bust operation .
Q Please explain who (sic) that is done?
A That is entrapment by the use of marked money.
Q And from whom will this marked money came from?
A From me.
Q And who will be the buyer in that buy bust operation?
A Cpl. de Guzman.
Q And so you conducted a buy bust operation against the woman with
Cpl. de Guzman as the buyer, what happened next?
A I got a P5.00 bill in my folder and signed my signature thereon and gave
it to Cpl. de Guzman to buy marijuana.
Q How much was the money?
A P5.00.
x x x           x x x          x x x

FISCAL RAMOS:

Q What happened next after you gave this P5.00 bill to Cpl. de Guzman?
A He went to the store.
Q And how about you, where were you?
A I was just outside at the back of the store.
Q And did you see what happened after Cpl. de Guzman went to the
store?
 A Cpl. de Guzman talked to the woman.
Q Did you hear their conversation?
A No, because she has a low voice.
Q What else did you see?
A I saw that the woman gave something to Cpl. de Guzman.
Q And what did Cpl. de Guzman do after receiving that something given
by the woman?
A He looked at it and examined it and smelled it.
Q And what happened next after Cpl. de Guzman examined and smelled
that something given by the woman?
A Cpl. de Guzman showed an ID and when I saw him do that I went near
him.
Q What happened after you went near him?
A We arrested her.
Q And will you please tell us why you arrested that woman?
A We arrested her because our Narcom agent bought marijuana fromher
(sic) and after that we arrested her.
x x x           x x x          x x x
A We arrested her because she sold a suspected marijuana cigarette.
Q How many suspected marijuana cigarettes were sold to Cpl. de
Guzman?
A Five sticks.
Q Were you able to recover those five sticks of suspected marijuana
cigarettes?
A These were delivered to Cpl. de Guzman and those five; suspected
sticks of marijuana were in the possession of Cpl. de Guzman.
Q What else if any were you able to recover from the woman?
A The marked money, P5.00 bill, and also Cpl. de Guzman told me that
the marijuana was taken by the woman from the table in a plastic
container.
Q And this table were (sic) the plastic container was placed from where
the five suspected marijuana cigarettes were taken, where was it
located?
A Inside the store.
Q And what did you do after you were informed by de Guzman that the
five suspected marijuana cigarettes : were taken from the plastic
container?
A I got the plastic container and I saw six sticks of suspected marijuana
cigarettes and five grams of dried j marijuana leaves.
x x x           x x x          x x x
Q What did you do after confiscating from the woman the 6 suspected
marijuana cigarettes and 5 grams more or less dried marijuana leaves in
addition to the five rolled suspected marijuana cigarettes, what
happened next?
A I brought the suspect to the PC headquarters at Camp Naranjo. 29

Combined with the findings of Forensic Chemist Arenga that the cigarette sticks confiscated from
appellant were marijuana, the corpus delicti of the crime had thus been established with certainty and
conclusiveness.
 Search Warrant Unnecessary

In alleging that the NARCOM agents conducted an unlawful search and seizure in her house, appellant
contends that, because said agents had known of alleged drug-pushing activities in Oroquieta City, they
should have obtained a search warrant before intruding into her residence. Appellant's contention is
devoid of merit as the necessity of acquiring a search warrant has not been proven in this case.

In going to Oroquieta City on the strength of reports of drug-pushing activities, the NARCOM agents did
not know of the identity of the alleged pushers.30 When they conducted the buy-bust operation, it was
precisely for the purpose of entrapping and identifying the culprit. A buy-bust operation has been
considered as an effective mode of apprehending drug pushers. If carried out with due regard to
constitutional and legal safeguards, a buy-bust operation deserves judicial sanction. 31

Because the drug pusher had been caught in flagrante delicto, the arresting officers were duty-bound
to apprehend the culprit immediately and to search her for anything which may be used as proof of the
commission of the crime.32 The search, being an incident of a lawful arrest, needed no warrant for its
validity. In fact, in People vs. Figueroa, 33 this Court said:

The warrantless search and seizure, as an incident to a suspect's lawful arrest, may
extend beyond the person of the one arrested to include the premises or surrounding
under his immediate control. Objects in the "plain view" of an officer who has the right
to be in the position to have that view are subject to seizure and may be presented as
evidence.

Hence, appellant may not successfully claim the right against a warrantless search, 34 even as
regards the plastic container with dried marijuana leaves which was found on the table in her
house/store. Contrary to appellant's contention, the contraband seized from her, having been
obtained as a result of the buy-bust operation to which the defense failed to impute any
irregularity, was correctly admitted in evidence.

Informer's Testimony Merely Corrobarative

Neither is her right to confront witnesses against her affected by the prosecution's failure to present
the informer who pointed to her as a drug pusher. The presentation of an informant in an illegal drugs
case is not essential for conviction nor is it indispensable for a successful prosecution because his
testimony would be merely corroborative and cumulative.35 In a case involving the sale of illegal drugs,
what should be proven beyond reasonable doubt is the fact of the sale itself. Hence, like the non-
presentation of the marked money used in buying the contraband, the non-presentation of the
informer on the witness stand would not necessarily create a hiatus in the prosecutions' evidence. 36

Appellant's claim that she was threatened by the NARCOM agents is self-serving. That her daughter
corroborated that portion of appellant's account did not make her claim credible. The trial court, which
was in a better position than this Court in determining the issue of credibility, unequivocally said: 37

The Court finds that the defense has not sufficiently rebutted the presumption of
regularity in the government witnesses' performance of duty. Jennife (sic) Mission, for
the defense, sought refuge from cross-examination by resorting to evasive "I don't
knows" and her demeanor on the stand did not inspire this Court's faith in her
testimony. Accused herself claimed that she has stopped selling marijuana after being
 charged in 1986, for which she is now under probation, but she had no satisfactory
explanation as to why she was brought to PC headquarters despite the fact that the
Narcom agents did not find any contraband in her house. The Court finds it hard to
believe that the Narcom agents brought her to headquarters only for the purpose of
forcing her to divulge the names of drug pushers in the city, failing in which they would
hie her off to court on trumped-up charges.

It should be added that, according to appellant, she recognized the NARCOM agents by the 5" x 7"
identification cards they pulled from their shirts, which they showed her. 38 It is simply contrary to
human experience for an officer of the law to exhibit his identification card if his intention in arresting
an offender is to commit mischief.

Violation of Appellant's Right to Counsel

We find appellant's claim that she was not informed of her right to counsel during custodial
investigation to be correct. Moreover, the NARCOM agent's admission that they made her sign and
thumbmark the bond paper which they used to wrap the marijuana found in her possession was
violative of her constitutional right to counsel. While the bond paper does not appear to have been
considered as a pivotal piece of evidence against appellant, such act of the NARCOM agents is worth
noting if only to provide guidance to law enforcement operatives. In People vs. Simon,39 where the
accused was made to sign the booking sheet and arrest report stating that he was arrested for selling
two tea bags of suspected marijuana and the receipt for the seized property, the Court said:

. . . Appellant's conformance to these documents are declarations against interest and

tacit admissions of the crime charged. They were obtained in violation of his right as a
person under custodial investigation for the commission of an offense, there being
nothing in the records to show that he was assisted by counsel. Although appellant
manifested during the custodial investigation that he waived his right to counsel, the
waiver was not made in writing and in the presence of counsel, hence whatever
incriminatory admission or confession may be extracted from him, either verbally or in
writing, is not allowable in evidence. Besides, the arrest report is self-serving and
hearsay and can easily be concocted to implicate a suspect.

Prosecution's Other Evidence

Sufficient for Conviction

As in the Simon case, where the non-admission of certain pieces of evidence did not weaken the
prosecution's case, there is proof beyond reasonable doubt of the consummation of the sale of
marijuana by appellant to a NARCOM agent. Hence, the presumption of innocence in her favor has
been sufficiently overturned in accordance with law. Her contention that a mother-of-five like her
would not resort to selling illegal drugs in such a small amount as the marijuana involved in this case, is
belied by her own admission that when she committed the crime, she was still on probation for having
been caught in another occasion selling marijuana in 1986.40
Neither could the location of her residence and store behind the DSWD office and near the city jail as
well as the fact that she did not know Cpl. de Guzman deter her from committing the offense. In People
vs. Simon,41 the Court noted that

. . . (D)rug-pushing, when done on a small scale as in this case, belongs to that class of
crimes that may be committed at any time and in any place. It is not contrary to human
experience for a drug pusher to sell to a total stranger, for what matters is not an
existing familiarity between the buyer and seller but their agreement and the acts
constituting the sale and delivery of the marijuana leaves. . . .

Appellant's contention that she could not have taken the risk of selling the five (5) marijuana sticks for
only five pesos and therefore the contraband was "planted," is totally baseless. She herself did not
bring out this alleged irregularity in the performance of the NARCOM agents' duty at the witness stand.
On the other hand, the testimony of the two (2) peace officers carried with it the presumption of
regularity in the performance of official functions.42

Appellant claims that the prosecution evidence is weak because Sgt. Cubillan was allegedly caught lying
on the witness stand. She alleges that the prevarication of said witness was reflected by his testimony
that after arresting appellant, they proceeded to the PC headquarters. Later, he testified that they still
dropped by Bayotas' residence to arrest her. This alleged change in testimony which was explained by
the witness himself,43 is too inconsequential to dent the prosecution's compelling evidence on the fact
of sale of illegal drugs.

The Court also finds too preposterous to merit scrutiny appellant's contention that in convicting her,
the trial court relied on her previous conviction for violation of the Dangerous Drugs Law. Her being
under probation was not alleged in the Information. It was brought out in the trial where she herself
admitted that she was on probation when she committed the offense in this case. However, while the
trial court mentioned that fact in the Decision of March 1, 1991, it based its findings on evidence
presented by both the prosecution and the defense and not on the fact that appellant was a
probationer convicted of engaging in the abominable trade of illegal drugs when she committed the
offense.

The Proper Penalty

As in all other cases decided by the Court after the effectivity of Republic Act. No. 7659 on December
31, 1993, the beneficial provisions of said law shall be applied to this case although the offense was
committed prior thereto. Because the marijuana recovered from appellant was less that 750 grams,
the penalty imposable upon her shall, under the ruling in the Simon case, range from prision
correccional to reclusion temporal or more specifically the penalty of prision correccional, considering
that the marijuana involved was less that 250 grams.

No mitigating circumstances have been proven in this case. In regard to aggravating circumstances, the
prosecutor volunteered at the start of the trial that appellant was then on probation. Appellant herself
admitted that she was on probation when she was arrested by Sgt. Cubillan and Cpl. de Guzman. 44

As such, the circumstance of quasi-recidivism should ideally aggravate her offense considering that she
committed the felony after having been convicted by final judgment and before serving
sentence.45 That she was on probation would not erase the fact of her conviction even though service
of her sentence was suspended. However, for its appreciation as an aggravating circumstance, quasi-
recidivism must be proven by records of the previous sentence. 46 As this Court stated in People
vs, Capillas 47, the evidence (or the lack of it) must prevail over appellant's admission that she was a
probationer when she committed the crime.

Consequently, under Art. 64 (1) of the Revised Penal Code which provides that in the absence of
mitigating and aggravating circumstances the medium period of the penalty shall be imposed, the
penalty should be the medium period of prision correccional.48 There being no circumstance to
disqualify appellant from availment of the benefits of the Indeterminate Sentience law, the same must
be applied.

Prescinding from the foregoing, this Court is convinced that the guilt of appellant has been sufficiently
proven beyond reasonable doubt by the evidence on record.

WHEREFORE, the appealed Decision convicting appellant Saturnina Salazar y Palanas of the crime of
violation of Section 4, Article II of Republic Act. No 6425, as amended, is hereby AFFIRMED subject to
the MODIFICATION that appellant shall suffer the indeterminate sentence of four (4) months of arresto
mayor as minimum penalty to four (4) years and two (2) months of prision correccional as maximum
penalty.

Considering that appellant has been detained for the maximum penalty herein imposed, her
IMMEDIATE RELEASE from custody, unless she is being held for other valid reasons, is hereby ordered.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 203335               February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO
SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,
BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA,
CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE
PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and
DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.

x-----------------------x
G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE,

JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT
OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU
OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND
TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN,
MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE
NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno
Simeon Aquino III, LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.
x-----------------------x
G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG,
Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan,
FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis
Party-List, LANA R. LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P.
GUTIERREZ, and JULIUS GARCIA MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA,
JR., Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN
PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR.,
LEILA DE LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive
Director of the Information and Communications Technology Office, NONNATUS CAESAR R. ROJAS,
Director of the National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the
Philippine National Police, MANUEL A. ROXAS II, Secretary of the Department of the Interior and
Local Government, Respondents.

x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J.
SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights
Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in
her capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The CHIEF of the Philippine National Police, The
DIRECTOR of the National Bureau of Investigation (all of the Executive Department of
Government), Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI),
CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA
QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE e-
PETITION http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF
THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,
THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND
INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.
x-----------------------x
G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, Respondents.
x-----------------------x
G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD
ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ;
MAUREEN A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F.
CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and
PINOY EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the
Philippines; SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his capacity
as Senate President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in
his capacity as Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his
capacity as Executive Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice; HON.
LOUIS NAPOLEON C. CASAMBRE, in his capacity as Executive Director, Information and
Communications Technology Office; HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director,
National Bureau of Investigation; and P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief,
Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of the
Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary; HON. LEILA
M. DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his
official capacity as Executive Director, Information and Communications Technology Office;
NONNATUS CAESAR R. ROJAS, in his official capacity as Director of the National Bureau of
Investigation; and DIRECTOR GENERAL NICANOR A. BARTOLOME, in his official capacity as Chief of
the Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,

vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his
capacity as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL
BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER
GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR
IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.

x-----------------------x
G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE FOR

MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S.
Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A.
CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO
VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO,
ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE
INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,
THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE
OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents.

DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the
Cybercrime Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer,
a person can connect to the internet, a system that links him to other computers and enable him,
among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for
research, study, amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general public
or for special audiences like associates, classmates, or friends and read postings from them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock
exchanges, trade houses, credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing
individual accesses to and uses of the internet. The cyberspace is a boon to the need of the current
generation for greater information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to use cyberspace
technology for mischiefs and crimes. One of them can, for instance, avail himself of the system to
unjustly ruin the reputation of another or bully the latter by posting defamatory statements against
him that people can read.

And because linking with the internet opens up a user to communications from others, the ill-
motivated can use the cyberspace for committing theft by hacking into or surreptitiously accessing his
bank account or credit card or defrauding him through false representations. The wicked can use the
cyberspace, too, for illicit trafficking in sex or for exposing to pornography guileless children who have
access to the internet. For this reason, the government has a legitimate right to regulate the use of
cyberspace and contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer
systems and networks of indispensable or highly useful institutions as well as to the laptop or
computer programs and memories of innocent individuals. They accomplish this by sending electronic
viruses or virtual dynamites that destroy those computer systems, networks, programs, and memories.
The government certainly has the duty and the right to prevent these tomfooleries from happening
and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable
cyberspace activities violate certain of their constitutional rights. The government of course asserts
that the law merely seeks to reasonably put order into cyberspace activities, punish wrongdoings, and
prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court
extended the original 120-day temporary restraining order (TRO) that it earlier issued on October 9,
2012, enjoining respondent government agencies from implementing the cybercrime law until further
orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard
certain acts as crimes and impose penalties for their commission as well as provisions that would
enable the government to track down and penalize violators. These provisions are:

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and
u. Section 26(a) on CICC’s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC
on the crime of libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that
interfere with the fundamental rights of the people and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional construct, 1 useful
in determining the constitutionality of laws that tend to target a class of things or persons. According
to this standard, a legislative classification that impermissibly interferes with the exercise of
fundamental right or operates to the peculiar class disadvantage of a suspect class is presumed
unconstitutional. The burden is on the government to prove that the classification is necessary to
achieve a compelling state interest and that it is the least restrictive means to protect such
interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealing with the
regulation of speech, gender, or race as well as other fundamental rights, as expansion from its earlier
applications to equal protection.3

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the
strict scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is
essentially a condemnable act – accessing the computer system of another without right. It is a
universally condemned conduct.4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals
who employ tools and techniques used by criminal hackers but would neither damage the target
systems nor steal information. Ethical hackers evaluate the target system’s security and report back to
the owners the vulnerabilities they found in it and give instructions for how these can be remedied.
Ethical hackers are the equivalent of independent auditors who come into an organization to verify its
bookkeeping records.5

Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the
extent of the search, the methods to be used, and the systems to be tested. This is referred to as the
"get out of jail free card."6 Since the ethical hacker does his job with prior permission from the client,
such permission would insulate him from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
 xxxx

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic data message, without right, including the
introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data
interference, it intrudes into the area of protected speech and expression, creating a chilling and
deterrent effect on these guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby
invading the area of protected freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at
all. It simply punishes what essentially is a form of vandalism, 8 the act of willfully destroying without
right the things that belong to others, in this case their computer data, electronic document, or
electronic data message. Such act has no connection to guaranteed freedoms. There is no freedom to
destroy other people’s computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem
effect9 or the fear of possible prosecution that hangs on the heads of citizens who are minded to step
beyond the boundaries of what is proper. But to prevent the State from legislating criminal laws
because they instill such kind of fear is to render the state powerless in addressing and penalizing
socially harmful conduct.10 Here, the chilling effect that results in paralysis is an illusion since Section
4(a)(3) clearly describes the evil that it seeks to punish and creates no tendency to intimidate the free
exercise of one’s constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no
set of circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit, mislead,
destroy the reputation, and deprive others from registering the same, if such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of
a personal name; and
 (iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause 12 in that,
not being narrowly tailored, it will cause a user using his real name to suffer the same fate as those
who use aliases or take the name of another in satire, parody, or any other literary device. For
example, supposing there exists a well known billionaire-philanthropist named "Julio Gandolfo," the
law would punish for cyber-squatting both the person who registers such name because he claims it to
be his pseudo-name and another who registers the name because it happens to be his real name.
Petitioners claim that, considering the substantial distinction between the two, the law should
recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or
use it as a pseudo-name for it is the evil purpose for which he uses the name that the law condemns.
The law is reasonable in penalizing him for acquiring the domain name in bad faith to profit, mislead,
destroy reputation, or deprive others who are not ill-motivated of the rightful opportunity of
registering the same. The challenge to the constitutionality of Section 4(a)(6) on ground of denial of
equal protection is baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information belonging to another, whether natural or juridical,
without right: Provided: that if no damage has yet been caused, the penalty imposable shall be one (1)
degree lower.

Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy
and correspondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet
of the right protected by the guarantee against unreasonable searches and seizures. 13 But the Court
acknowledged its existence as early as 1968 in Morfe v. Mutuc, 14 it ruled that the right to privacy exists
independently of its identification with liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The
Court explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v.
Senator Gordon"15 the relevance of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with customary legal process. The meticulous
regard we accord to these zones arises not only from our conviction that the right to privacy is a
"constitutional right" and "the right most valued by civilized men," but also from our adherence to the
Universal Declaration of Human Rights which mandates that, "no one shall be subjected to arbitrary
interference with his privacy" and "everyone has the right to the protection of the law against such
interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searches16 and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.17 In assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion.18

The usual identifying information regarding a person includes his name, his citizenship, his residence
address, his contact number, his place and date of birth, the name of his spouse if any, his occupation,
and similar data.19 The law punishes those who acquire or use such identifying information without
right, implicitly to cause damage. Petitioners simply fail to show how government effort to curb
computer-related identity theft violates the right to privacy and correspondence as well as the right to
due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since
the specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what
this section regulates are specific actions: the acquisition, use, misuse or deletion of personal
identifying data of another. There is no fundamental right to acquire another’s personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would
be hindered from accessing the unrestricted user account of a person in the news to secure
information about him that could be published. But this is not the essence of identity theft that the law
seeks to prohibit and punish. Evidently, the theft of identity information must be intended for an
illegitimate purpose. Moreover, acquiring and disseminating information made public by the user
himself cannot be regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt acts
of the offender, and it may be presumed from the furtive taking of useful property pertaining to
another, unless special circumstances reveal a different intent on the part of the perpetrator. 20 As such,
the press, whether in quest of news reporting or social investigation, has nothing to fear since a special
circumstance is present to negate intent to gain which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under
this Act:

xxxx
(c) Content-related Offenses:

(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of any
lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or
consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution. 21 They
express fear that private communications of sexual character between husband and wife or consenting
adults, which are not regarded as crimes under the penal code, would now be regarded as crimes
when done "for favor" in cyberspace. In common usage, the term "favor" includes "gracious kindness,"
"a special privilege or right granted or conceded," or "a token of love (as a ribbon) usually worn
conspicuously."22 This meaning given to the term "favor" embraces socially tolerated trysts. The law as
written would invite law enforcement agencies into the bedrooms of married couples or consenting
individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime
Prevention Act give a proper perspective on the issue. These deliberations show a lack of intent to
penalize a "private showing x x x between and among two private persons x x x although that may be a
form of obscenity to some."23 The understanding of those who drew up the cybercrime law is that the
element of "engaging in a business" is necessary to constitute the illegal cybersex. 24 The Act actually
seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration.
This includes interactive prostitution and pornography, i.e., by webcam.25

The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel.
Article 201 of the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-
Trafficking in Persons Act of 2003 penalizes those who "maintain or hire a person to engage in
prostitution or pornography."26 The law defines prostitution as any act, transaction, scheme, or design
involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for
money, profit, or any other consideration.27

The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve
no other purpose than satisfy the market for violence, lust, or pornography. 29 The Court weighed the
property rights of individuals against the public welfare. Private property, if containing pornographic
materials, may be forfeited and destroyed. Likewise, engaging in sexual acts privately through internet
connection, perceived by some as a right, has to be balanced with the mandate of the State to
eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of
obscenity.30 The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction
that makes it apply only to persons engaged in the business of maintaining, controlling, or operating,
directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of a
computer system as Congress has intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:
 xxxx
(c) Content-related Offenses:
xxxx

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No.
9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided,
That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act
No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of 2009 31 (ACPA)
to cover identical activities in cyberspace. In theory, nothing prevents the government from invoking
the ACPA when prosecuting persons who commit child pornography using a computer system.
Actually, ACPA’s definition of child pornography already embraces the use of "electronic, mechanical,
digital, optical, magnetic or any other means." Notably, no one has questioned this ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in
cyberspace. But no one can complain since the intensity or duration of penalty is a legislative
prerogative and there is rational basis for such higher penalty. 32 The potential for uncontrolled
proliferation of a particular piece of child pornography when uploaded in the cyberspace is
incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce,
direct, manufacture or create any form of child pornography" 33 clearly relates to the prosecution of
persons who aid and abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a
person who merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally
liable for producing child pornography but one who formulates the idea on his laptop would be.
Further, if the author bounces off his ideas on Twitter, anyone who replies to the tweet could be
considered aiding and abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be discussed
elsewhere below. For now the Court must hold that the constitutionality of Section 4(c)(2) is not
successfully challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:
xxxx
(c) Content-related Offenses:
xxxx

(3) Unsolicited Commercial Communications. – The transmission of commercial electronic

communication with the use of computer system which seeks to advertise, sell, or offer for sale
products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

 (ii) The primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way
for the recipient to reject receipt of further commercial electronic messages (opt-out)
from the same source;

(bb) The commercial electronic communication does not purposely disguise the source
of the electronic message; and

(cc) The commercial electronic communication does not purposely include misleading
information in any part of the message in order to induce the recipients to read the
message.

The above penalizes the transmission of unsolicited commercial communications, also known as
"spam." The term "spam" surfaced in early internet chat rooms and interactive fantasy games. One
who repeats the same sentence or comment was said to be making a "spam." The term referred to a
Monty Python’s Flying Circus scene in which actors would keep saying "Spam, Spam, Spam, and Spam"
when reading options from a menu.35

The Government, represented by the Solicitor General, points out that unsolicited commercial
communications or spams are a nuisance that wastes the storage and network capacities of internet
service providers, reduces the efficiency of commerce and technology, and interferes with the owner’s
peaceful enjoyment of his property. Transmitting spams amounts to trespass to one’s privacy since the
person sending out spams enters the recipient’s domain without prior permission. The OSG contends
that commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people, before the arrival of the age of computers, have already
been receiving such unsolicited ads by mail. These have never been outlawed as nuisance since people
might have interest in such ads. What matters is that the recipient has the option of not opening or
reading these mail ads. That is true with spams. Their recipients always have the option to delete or
not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even
unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech
which is not accorded the same level of protection as that given to other constitutionally guaranteed
forms of expression but is nonetheless entitled to protection.36 The State cannot rob him of this right
without violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements
are legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section
4(c)(4) of the Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who
is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even
if it be true, if no good intention and justifiable motive for making it is shown, except in the following
cases:

1. A private communication made by any person to another in the performance of any legal,
moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial,
legislative or other official proceedings which are not of confidential nature, or of any
statement, report or speech delivered in said proceedings, or of any other act performed by
public officers in the exercise of their functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition,
or any similar means, shall be punished by prision correccional in its minimum and medium periods or
a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by
the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the
provisions of the RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable
under this Act:
xxxx
(c) Content-related Offenses:
xxxx

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code,
as amended, committed through a computer system or any other similar means which may be devised
in the future.

Petitioners lament that libel provisions of the penal code 37 and, in effect, the libel provisions of the
cybercrime law carry with them the requirement of "presumed malice" even when the latest
jurisprudence already replaces it with the higher standard of "actual malice" as a basis for
conviction.38 Petitioners argue that inferring "presumed malice" from the accused’s defamatory
statement by virtue of Article 354 of the penal code infringes on his constitutionally guaranteed
freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence requiring "actual malice" could easily be overturned
as the Court has done in Fermin v. People39 even where the offended parties happened to be public
figures.
The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person defamed; and (d) existence of malice. 40

There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with
the knowledge that it is false or with reckless disregard of whether it was false or not. 42 The reckless
disregard standard used here requires a high degree of awareness of probable falsity. There must be
sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as to
the truth of the statement he published. Gross or even extreme negligence is not sufficient to establish
actual malice.43

The prosecution bears the burden of proving the presence of actual malice in instances where such
element is required to establish guilt. The defense of absence of actual malice, even when the
statement turns out to be false, is available where the offended party is a public official or a public
figure, as in the cases of Vasquez (a barangay official) and Borjal (the Executive Director, First National
Conference on Land Transportation). Since the penal code and implicitly, the cybercrime law, mainly
target libel against private persons, the Court recognizes that these laws imply a stricter standard of
"malice" to convict the author of a defamatory statement where the offended party is a public figure.
Society’s interest and the maintenance of good government demand a full discussion of public affairs. 44

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the
higher standard of actual malice or malice in fact when it found Cristinelli Fermin guilty of committing
libel against complainants who were public figures. Actually, the Court found the presence of malice in
fact in that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations
against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that
there was no malice on her part. Verily, not only was there malice in law, the article being malicious in
itself, but there was also malice in fact, as there was motive to talk ill against complainants during the
electoral campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public
figures in the above case, cinema and television personalities, when it modified the penalty of
imprisonment to just a fine of ₱6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of
malice. The law explicitly presumes its existence (malice in law) from the defamatory character of the
assailed statement.45 For his defense, the accused must show that he has a justifiable reason for the
defamatory statement even if it was in fact true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the
country’s obligations under the International Covenant of Civil and Political Rights (ICCPR). They point
out that in Adonis v. Republic of the Philippines,47 the United Nations Human Rights Committee
(UNHRC) cited its General Comment 34 to the effect that penal defamation laws should include the
defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute an
all-encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the
condition that the accused has been prompted in making the statement by good motives and for
justifiable ends. Thus:
Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in
evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that
it was published with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted,
unless the imputation shall have been made against Government employees with respect to facts
related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It
simply suggested that defamation laws be crafted with care to ensure that they do not stifle freedom
of expression.48 Indeed, the ICCPR states that although everyone should enjoy freedom of expression,
its exercise carries with it special duties and responsibilities. Free speech is not absolute. It is subject to
certain restrictions, as may be necessary and as may be provided by law. 49

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that
the government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is
actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes
it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes "similar means" for
committing libel.

But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the
libelous statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal
code provisions on libel were enacted. The culture associated with internet media is distinct from that
of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style. 50 In a sense,
they are a world apart in terms of quickness of the reader’s reaction to defamatory statements posted
in cyberspace, facilitated by one-click reply options offered by the networking site as well as by the
speed with which such reactions are disseminated down the line to other internet users. Whether
these reactions to defamatory statement posted on the internet constitute aiding and abetting libel,
acts that Section 5 of the cybercrime law punishes, is another matter that the Court will deal with next
in relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids
in the commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit
any of the offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who
willfully abets or aids in the commission or attempts to commit any of the offenses enumerated as
cybercrimes. It suffers from overbreadth, creating a chilling and deterrent effect on protected
expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding
and abetting sufficiently protects the freedom of expression of "netizens," the multitude that avail
themselves of the services of the internet. He points out that existing laws and jurisprudence
sufficiently delineate the meaning of "aiding or abetting" a crime as to protect the innocent. The
Solicitor General argues that plain, ordinary, and common usage is at times sufficient to guide law
enforcement agencies in enforcing the law.51 The legislature is not required to define every single word
contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a person
aids or abets another in destroying a forest,52 smuggling merchandise into the country,53 or interfering
in the peaceful picketing of laborers,54 his action is essentially physical and so is susceptible to easy
assessment as criminal in character. These forms of aiding or abetting lend themselves to the tests of
common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat
blurred. The idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and
unchallenged dogmas of cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the
internet within a year, translating to about 31 million users. 55 Based on a recent survey, the Philippines
ranks 6th in the top 10 most engaged countries for social networking. 56 Social networking sites build
social relations among people who, for example, share interests, activities, backgrounds, or real-life
connections.57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people
with shared interests use Facebook to get in touch.58 Users register at this site, create a personal profile
or an open book of who they are, add other users as friends, and exchange messages, including
automatic notifications when they update their profile.59 A user can post a statement, a photo, or a
video on Facebook, which can be made visible to anyone, depending on the user’s privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone on
Facebook can react to the posting, clicking any of several buttons of preferences on the program’s
screen such as "Like," "Comment," or "Share." "Like" signifies that the reader likes the posting while
"Comment" enables him to post online his feelings or views about the same, such as "This is great!"
When a Facebook user "Shares" a posting, the original "posting" will appear on his own Facebook
profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its
users to send and read short text-based messages of up to 140 characters. These are known as
"Tweets." Microblogging is the practice of posting small pieces of digital content—which could be in
the form of text, pictures, links, short videos, or other media—on the internet. Instead of friends, a
Twitter user has "Followers," those who subscribe to this particular user’s posts, enabling them to read
the same, and "Following," those whom this particular user is subscribed to, enabling him to read their
posts. Like Facebook, a Twitter user can make his tweets available only to his Followers, or to the
general public. If a post is available to the public, any Twitter user can "Retweet" a given posting.
Retweeting is just reposting or republishing another person’s tweet without the need of copying and
pasting it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the
blog service provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the
internet café that may have provided the computer used for posting the blog; e) the person who
makes a favorable comment on the blog; and f) the person who posts a link to the blog site. 60 Now,
suppose Maria (a blogger) maintains a blog on WordPress.com (blog service provider). She needs the
internet to access her blog so she subscribes to Sun Broadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married public official has
an illicit affair with a movie star. Linda, one of Maria’s friends who sees this post, comments online,
"Yes, this is so true! They are so immoral." Maria’s original post is then multiplied by her friends and
the latter’s friends, and down the line to friends of friends almost ad infinitum. Nena, who is a stranger
to both Maria and Linda, comes across this blog, finds it interesting and so shares the link to this
apparently defamatory blog on her Twitter account. Nena’s "Followers" then "Retweet" the link to that
blog site.

Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and posts
this on her Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making
Comments on the assailed posting. A lot of them even press the Share button, resulting in the further
spread of the original posting into tens, hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting"
on it, or "Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if
Nestor places on the office bulletin board a small poster that says, "Armand is a thief!," he could
certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be
libel since he did not author the poster. If Arthur, passing by and noticing the poster, writes on it,
"Correct!," would that be libel? No, for he merely expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world is a
crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader
and his Friends or Followers, availing themselves of any of the "Like," "Comment," and "Share"
reactions, be guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions of
thoughts, when will one be liable for aiding or abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment
and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their
response to the original posting. Will they be liable for aiding or abetting? And, considering the
inherent impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the
criminal charge to be filed in court, who will make a choice as to who should go to jail for the outbreak
of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole
when applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account
its unique circumstances and culture, such law will tend to create a chilling effect on the millions that
use this new medium of communication in violation of their constitutionally-guaranteed right to
freedom of expression.
The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union, 61 a
case involving the constitutionality of the Communications Decency Act of 1996. The law prohibited (1)
the knowing transmission, by means of a telecommunications device, of

"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use
of an interactive computer service to send to a specific person or persons under 18 years of age or to
display in a manner available to a person under 18 years of age communications that, in context, depict
or describe, in terms "patently offensive" as measured by contemporary community standards, sexual
or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment’s guarantee of freedom
of speech for being overbroad. The U.S. Supreme Court agreed and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter of
special concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness
of such a regulation raises special U.S. Const. amend. I concerns because of its obvious chilling effect on
free speech. Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a
criminal conviction, the CDA threatens violators with penalties including up to two years in prison for
each act of violation. The severity of criminal sanctions may well cause speakers to remain silent rather
than communicate even arguably unlawful words, ideas, and images. As a practical matter, this
increased deterrent effect, coupled with the risk of discriminatory enforcement of vague regulations,
poses greater U.S. Const. amend. I concerns than those implicated by certain civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of censoring
speech that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the
statute, it unquestionably silences some speakers whose messages would be entitled to constitutional
protection. That danger provides further reason for insisting that the statute not be overly broad. The
CDA’s burden on protected speech cannot be justified if it could be avoided by a more carefully drafted
statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous
statements can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes
hand in hand with cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild
to disastrous reactions. Still, a governmental purpose, which seeks to regulate the use of this
cyberspace communication technology to protect a person’s reputation and peace of mind, cannot
adopt means that will unnecessarily and broadly sweep, invading the area of protected freedoms. 62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet
users will suppress otherwise robust discussion of public issues. Democracy will be threatened and
with it, all liberties. Penal laws should provide reasonably clear guidelines for law enforcement officials
and triers of facts to prevent arbitrary and discriminatory enforcement. 63 The terms "aiding or
abetting" constitute broad sweep that generates chilling effect on those who express themselves
through cyberspace posts, comments, and other messages.64 Hence, Section 5 of the cybercrime law
that punishes "aiding or abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the
void-for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully
delineated. As Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the Court on the inapplicability of the overbreadth and
vagueness doctrines to penal statutes as appropriate only insofar as these doctrines are used to mount
‘facial’ challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise
any constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards,
overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts
a violation of his own rights. It prohibits one from assailing the constitutionality of the statute based
solely on the violation of the rights of third persons not before the court. This rule is also known as the
prohibition against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no violation of his own rights under the assailed statute
where it involves free speech on grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes from
statutes violating free speech. A person who does not know whether his speech constitutes a crime
under an overbroad or vague law may simply restrain himself from speaking in order to avoid being
charged of a crime. The overbroad or vague law thus chills him into silence. 67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is

inevitable that any government threat of punishment regarding certain uses of the medium creates a
chilling effect on the constitutionally-protected freedom of expression of the great masses that use it.
In this case, the particularly complex web of interaction on social media websites would give law
enforcers such latitude that they could arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by
liking it? Netizens are not given "fair notice" or warning as to what is criminal conduct and what is
lawful conduct. When a case is filed, how will the court ascertain whether or not one netizen’s
comment aided and abetted a cybercrime while another comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether
new defamatory story against Armand like "He beats his wife and children," then that should be
considered an original posting published on the internet. Both the penal code and the cybercrime law
clearly punish authors of defamatory publications. Make no mistake, libel destroys reputations that
society values. Allowed to cascade in the internet, it will destroy relationships and, under certain
circumstances, will generate enmity and tension between social or economic groups, races, or
religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child
pornography and facilitates the completion of transactions involving the dissemination of child
pornography," does this make Google and its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the American law on child pornography that the
Cybercrimes law lacks—the exemption of a provider or notably a plain user of interactive computer
service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of
any information provided by another information content provider and cannot be held civilly liable for
any action voluntarily taken in good faith to restrict access to or availability of material that the
provider or user considers to be obscene...whether or not such material is constitutionally protected. 69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether
wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child
pornography? When a user downloads the Facebook mobile application, the user may give consent to
Facebook to access his contact details. In this way, certain information is forwarded to third parties and
unsolicited commercial communication could be disseminated on the basis of this information. 70 As the
source of this information, is the user aiding the distribution of this communication? The legislature
needs to address this clearly to relieve users of annoying fear of possible criminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the
part of internet users because of its obvious chilling effect on the freedom of expression, especially
since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way.
What is more, as the petitioners point out, formal crimes such as libel are not punishable unless
consummated.71 In the absence of legislation tracing the interaction of netizens and their level of
responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3)
on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand
scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted
to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on
Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section
4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-
related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex.
None of these offenses borders on the exercise of the freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not
objectionable. A hacker may for instance have done all that is necessary to illegally access another
party’s computer system but the security employed by the system’s lawful owner could frustrate his
effort. Another hacker may have gained access to usernames and passwords of others but fail to use
these because the system supervisor is alerted.72 If Section 5 that punishes any person who willfully
attempts to commit this specific offense is not upheld, the owner of the username and password could
not file a complaint against him for attempted hacking. But this is not right. The hacker should not be
freed from liability simply because of the vigilance of a lawful owner or his supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent. 73 While this
may be true with respect to cybercrimes that tend to sneak past the area of free expression, any
attempt to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section
4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)
(1) as well as the actors aiding and abetting the commission of such acts can be identified with some
reasonable certainty through adroit tracking of their works. Absent concrete proof of the same, the
innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if
committed by, through and with the use of information and communications technologies shall be
covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one
(1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as
the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance.
As the Solicitor General points out, there exists a substantial distinction between crimes committed
through the use of information and communications technology and similar crimes committed using
other means. In using the technology in question, the offender often evades identification and is able
to reach far more victims or cause greater harm. The distinction, therefore, creates a basis for higher
penalties for cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any
liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of
acts may be prosecuted and penalized simultaneously under two laws, a special law and the Revised
Penal Code. When two different laws define two crimes, prior jeopardy as to one does not bar
prosecution of the other although both offenses arise from the same fact, if each crime involves some
important act which is not an essential element of the other.74 With the exception of the crimes of
online libel and online child pornography, the Court would rather leave the determination of the
correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be
libelous, is again posted online or vice versa, that identical material cannot be the subject of two
separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the
other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact
one and the same offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4) is not a
new crime but is one already punished under Article 353. Section 4(c)(4) merely establishes the
computer system as another means of publication.75 Charging the offender under both laws would be a
blatant violation of the proscription against double jeopardy.76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA’s
scope so as to include identical activities in cyberspace. As previously discussed, ACPA’s definition of
child pornography in fact already covers the use of "electronic, mechanical, digital, optical, magnetic or
any other means." Thus, charging the offender under both Section 4(c)(2) and ACPA would likewise be
tantamount to a violation of the constitutional prohibition against double jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a)
and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two
hundred thousand pesos (Ph₱200,000.00) up to a maximum amount commensurate to the damage
incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with
imprisonment of prision mayor or a fine of not more than Five hundred thousand pesos
(Ph₱500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion
temporal or a fine of at least Five hundred thousand pesos (Ph₱500,000.00) up to maximum amount
commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be
punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) but not exceeding One million pesos (Ph₱1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be
punished with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography
Act of 2009:" Provided, That the penalty to be imposed shall be one (1) degree higher than that
provided for in Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished
with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (Ph₱50,000.00) but not
exceeding Two hundred fifty thousand pesos (Ph₱250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with
imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine of at
least One hundred thousand pesos (Ph₱100,000.00) but not exceeding Five hundred thousand pesos
(Ph₱500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the
Confidentiality, Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related
Offenses; 4(a)(5) on Misuse of Devices; when the crime punishable under 4(a) is committed against
critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited
Commercial Communications; and Section 5 on Aiding or Abetting, and Attempt in the Commission of
Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here
the legislature prescribed a measure of severe penalties for what it regards as deleterious cybercrimes.
They appear proportionate to the evil sought to be punished. The power to determine penalties for
offenses is not diluted or improperly wielded simply because at some prior time the act or omission
was but an element of another offense or might just have been connected with another crime. 77 Judges
and magistrates can only interpret and apply them and have no authority to modify or revise their
range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body. 78

Section 12 of the Cybercrime Law

Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be
authorized to collect or record by technical or electronic means traffic data in real-time associated with
specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or
type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or
recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application
and the examination under oath or affirmation of the applicant and the witnesses he may produce and
the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be committed; (2) that there
are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of
any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no
other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in
real time as tending to curtail civil liberties or provide opportunities for official abuse. They claim that
data showing where digital messages come from, what kind they are, and where they are destined
need not be incriminating to their senders or recipients before they are to be protected. Petitioners
invoke the right of every individual to privacy and to be protected from government snooping into the
messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may
require the disclosure of matters normally considered private but then only upon showing that such
requirement has a rational relation to the purpose of the law,79 that there is a compelling State interest
behind the law, and that the provision itself is narrowly drawn. 80 In assessing regulations affecting
privacy rights, courts should balance the legitimate concerns of the State against constitutional
guarantees.81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to
put order to the tremendous activities in cyberspace for public good. 82 To do this, it is within the realm
of reason that the government should be able to monitor traffic data to enhance its ability to combat
all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to
provide law enforcement authorities with the power they need for spotting, preventing, and
investigating crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief
Justice Sereno points out, the Budapest Convention on Cybercrimes requires signatory countries to
adopt legislative measures to empower state authorities to collect or record "traffic data, in real time,
associated with specified communications."83 And this is precisely what Section 12 does. It empowers
law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been committed,
adequate for fighting cybercrimes and, therefore, real-time data is superfluous for that purpose?
Evidently, it is not. Those who commit the crimes of accessing a computer system without
right,84 transmitting viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or
consideration;86 and producing child pornography87 could easily evade detection and prosecution by
simply moving the physical location of their computers or laptops from day to day. In this digital age,
the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places
that provide free internet services, and from unregistered mobile internet connectors. Criminals using
cellphones under pre-paid arrangements and with unregistered SIM cards do not have listed addresses
and can neither be located nor identified. There are many ways the cyber criminals can quickly erase
their tracks. Those who peddle child pornography could use relays of computers to mislead law
enforcement authorities regarding their places of operations. Evidently, it is only real-time traffic data
collection or recording and a subsequent recourse to court-issued search and seizure warrant that can
succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide
ample safeguards against crossing legal boundaries and invading the people’s right to privacy. The
concern is understandable. Indeed, the Court recognizes in Morfe v. Mutuc 88 that certain constitutional
guarantees work together to create zones of privacy wherein governmental powers may not intrude,
and that there exists an independent constitutional right of privacy. Such right to be left alone has
been regarded as the beginning of all freedoms.89

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy
into two categories: decisional privacy and informational privacy. Decisional privacy involves the right
to independence in making certain important decisions, while informational privacy refers to the
interest in avoiding disclosure of personal matters. It is the latter right—the right to informational
privacy—that those who oppose government collection or recording of traffic data in real-time seek to
protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the
right to live freely without surveillance and intrusion. 91 In determining whether or not a matter is
entitled to the right to privacy, this Court has laid down a two-fold test. The first is a subjective test,
where one claiming the right must have an actual or legitimate expectation of privacy over a certain
matter. The second is an objective test, where his or her expectation of privacy must be one society is
prepared to accept as objectively reasonable.92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a
particular person or group, petitioners’ challenge to Section 12 applies to all information and
communications technology (ICT) users, meaning the large segment of the population who use all sorts
of electronic devices to communicate with one another. Consequently, the expectation of privacy is to
be measured from the general public’s point of view. Without reasonable expectation of privacy, the
right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a
service provider, must of necessity disclose to the latter, a third person, the traffic data needed for
connecting him to the recipient ICT user. For example, an ICT user who writes a text message intended
for another ICT user must furnish his service provider with his cellphone number and the cellphone
number of his recipient, accompanying the message sent. It is this information that creates the traffic
data. Transmitting communications is akin to putting a letter in an envelope properly addressed,
sealing it closed, and sending it through the postal service. Those who post letters have no
expectations that no one will read the information appearing outside the envelope.
Computer data—messages of all kinds—travel across the internet in packets and in a way that may be
likened to parcels of letters or things that are sent through the posts. When data is sent from any one
source, the content is broken up into packets and around each of these packets is a wrapper or header.
This header contains the traffic data: information that tells computers where the packet originated,
what kind of data is in the packet (SMS, voice call, video, internet chat messages, email, online
browsing data, etc.), where the packet is going, and how the packet fits together with other
packets.93 The difference is that traffic data sent through the internet at times across the ocean do not
disclose the actual names and addresses (residential or office) of the sender and the recipient, only
their coded internet protocol (IP) addresses. The packets travel from one computer system to another
where their contents are pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages and
uncover the identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service provider’s
communication’s system will put his voice message into packets and send them to the other person’s
cellphone where they are refitted together and heard. The latter’s spoken reply is sent to the caller in
the same way. To be connected by the service provider, the sender reveals his cellphone number to
the service provider when he puts his call through. He also reveals the cellphone number to the person
he calls. The other ways of communicating electronically follow the same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that
telephone users in the ‘70s must realize that they necessarily convey phone numbers to the telephone
company in order to complete a call. That Court ruled that even if there is an expectation that phone
numbers one dials should remain private, such expectation is not one that society is prepared to
recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with one
another over cyberspace except through some service providers to whom they must submit certain
traffic data that are needed for a successful cyberspace communication. The conveyance of this data
takes them out of the private sphere, making the expectation to privacy in regard to them an
expectation that society is not prepared to recognize as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic
data are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can
then be used to create profiles of the persons under surveillance. With enough traffic data, analysts
may be able to determine a person’s close associations, religious views, political affiliations, even
sexual preferences. Such information is likely beyond what the public may expect to be disclosed, and
clearly falls within matters protected by the right to privacy. But has the procedure that Section 12 of
the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical
or electronic means traffic data in real-time. Petitioners point out that the phrase "due cause" has no
precedent in law or jurisprudence and that whether there is due cause or not is left to the discretion of
the police. Replying to this, the Solicitor General asserts that Congress is not required to define the
meaning of every word it uses in drafting the law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the
cybercrime law, dealing with a novel situation, fails to hint at the meaning it intends for the phrase
"due cause." The Solicitor General suggests that "due cause" should mean "just reason or motive" and
"adherence to a lawful procedure." But the Court cannot draw this meaning since Section 12 does not
even bother to relate the collection of data to the probable commission of a particular crime. It just
says, "with due cause," thus justifying a general gathering of data. It is akin to the use of a general
search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law
enforcement agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be
used to build up a case against an identified suspect? Can the data be used to prevent cybercrimes
from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint.
While it says that traffic data collection should not disclose identities or content data, such restraint is
but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their
hands from looking into the identity of their sender or receiver and what the data contains. This will
unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad
elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified
communications." But this supposed limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target communications. The power is virtually limitless,
enabling law enforcement authorities to engage in "fishing expedition," choosing whatever specified
communication they want. This evidently threatens the right of individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real
time" because it is not possible to get a court warrant that would authorize the search of what is akin
to a "moving vehicle." But warrantless search is associated with a police officer’s determination of
probable cause that a crime has been committed, that there is no opportunity for getting a warrant,
and that unless the search is immediately carried out, the thing to be searched stands to be removed.
These preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to
internet users and that the procedure envisioned by the law could be better served by providing for
more robust safeguards. His bare assurance that law enforcement authorities will not abuse the
provisions of Section 12 is of course not enough. The grant of the power to track cyberspace
communications in real time and determine their sources and destinations must be narrowly drawn to
preclude abuses.95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness
doctrine and the overbreadth doctrine. These doctrines however, have been consistently held by this
Court to apply only to free speech cases. But Section 12 on its own neither regulates nor punishes any
type of speech. Therefore, such analysis is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to
monitor individuals and place them under surveillance in ways that have previously been impractical or
even impossible. "All the forces of a technological age x x x operate to narrow the area of privacy and
facilitate intrusions into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian society." 96 The Court must
ensure that laws seeking to take advantage of these technologies be written with specificity and
definiteness as to ensure respect for the rights that the Constitution guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information
relating to communication services provided by a service provider shall be preserved for a minimum
period of six (6) months from the date of the transaction. Content data shall be similarly preserved for
six (6) months from the date of receipt of the order from law enforcement authorities requiring its
preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided,
That once computer data preserved, transmitted or stored by a service provider is used as evidence in
a case, the mere furnishing to such service provider of the transmittal document to the Office of the
Prosecutor shall be deemed a notification to preserve the computer data until the termination of the
case.

The service provider ordered to preserve computer data shall keep confidential the order and its
compliance.

Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to
property. They liken the data preservation order that law enforcement authorities are to issue as a
form of garnishment of personal property in civil forfeiture proceedings. Such order prevents internet
users from accessing and disposing of traffic data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or
recipients and are to be considered private communications. But it is not clear that a service provider
has an obligation to indefinitely keep a copy of the same as they pass its system for the benefit of
users. By virtue of Section 13, however, the law now requires service providers to keep traffic data and
subscriber information relating to communication services for at least six months from the date of the
transaction and those relating to content data for at least six months from receipt of the order for their
preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so
minded. The service provider has never assumed responsibility for their loss or deletion while in its
keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on
orders of law enforcement authorities are not made inaccessible to users by reason of the issuance of
such orders. The process of preserving data will not unduly hamper the normal transmission or use of
the same.

Section 14 of the Cybercrime Law

Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant,
shall issue an order requiring any person or service provider to disclose or submit subscriber’s
information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours
from receipt of the order in relation to a valid complaint officially docketed and assigned for
investigation and the disclosure is necessary and relevant for the purpose of investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’
objection is that the issuance of subpoenas is a judicial function. But it is well-settled that the power to
issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function
usually lodged in the hands of law enforcers to enable them to carry out their executive functions. The
prescribed procedure for disclosure would not constitute an unlawful search or seizure nor would it
violate the privacy of communications and correspondence. Disclosure can be made only after judicial
intervention.

Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is
properly issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data storage medium; and
(e) To render inaccessible or remove those computer data in the accessed computer or
computer and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about
the functioning of the computer system and the measures to protect and preserve the computer data
therein to provide, as is reasonable, the necessary information, to enable the undertaking of the
search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the
computer data storage medium and to make a return thereon but in no case for a period longer than
thirty (30) days from date of approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure
procedures. On its face, however, Section 15 merely enumerates the duties of law enforcement
authorities that would ensure the proper collection, preservation, and use of computer system or data
that have been seized by virtue of a court warrant. The exercise of these duties do not pose any threat
on the rights of the person from whom they were taken. Section 15 does not appear to supersede
existing search and seizure rules but merely supplements them.
Section 17 of the Cybercrime Law

Section 17 provides:

Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13
and 15, service providers and law enforcement authorities, as the case may be, shall immediately and
completely destroy the computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination, destroyed
or deleted upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to
clear up the service provider’s storage systems and prevent overload. It would also ensure that
investigations are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous preservation or
examination violates the user’s right against deprivation of property without due process of law. But,
as already stated, it is unclear that the user has a demandable right to require the service provider to
have that copy of the data saved indefinitely for him in its storage system. If he wanted them
preserved, he should have saved them in his computer when he generated the data or received it. He
could also request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found
to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to
such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself
that Section 19 indeed violates the freedom and right mentioned.

Computer data99 may refer to entire programs or lines of code, including malware, as well as files that
contain texts, images, audio, or video recordings. Without having to go into a lengthy discussion of
property rights in the digital space, it is indisputable that computer data, produced or created by their
writers or authors may constitute personal property. Consequently, they are protected from
unreasonable searches and seizures, whether while stored in their personal computers or in the service
provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable. Further, it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes and places the computer
data under its control and disposition without a warrant. The Department of Justice order cannot
substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates as a
restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are
protected. Legislature may, within constitutional bounds, declare certain kinds of expression as illegal.
But for an executive officer to seize content alleged to be unprotected without any judicial warrant, it
is not enough for him to be of the opinion that such content violates some law, for to do so would
make him judge, jury, and executioner all rolled into one.100

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on speech. Restraints on free speech are
generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine, the
balancing of interest test, and the clear and present danger rule.101 Section 19, however, merely
requires that the data to be blocked be found prima facie in violation of any provision of the
cybercrime law. Taking Section 6 into consideration, this can actually be made to apply in relation to
any penal provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional
guarantees to freedom of expression and against unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the
orders from law enforcement authorities shall be punished as a violation of Presidential Decree No.
1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred
thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by
law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere
failure to comply constitutes a legislative finding of guilt, without regard to situations where non-
compliance would be reasonable or valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.)
1829,102 Section 20 necessarily incorporates elements of the offense which are defined therein. If
Congress had intended for Section 20 to constitute an offense in and of itself, it would not have had to
make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes,
frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal
cases by committing any of the following acts:

x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully."
There must still be a judicial determination of guilt, during which, as the Solicitor General assumes,
defense and justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it
applies to the provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty (30)
days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation
and Coordinating Center (CICC), under the administrative supervision of the Office of the President, for
policy coordination among concerned agencies and for the formulation and enforcement of the
national cybersecurity plan.

Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time
commission of cybercrime offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime
Investigation and Coordinating Center (CICC) the power to formulate a national cybersecurity plan
without any sufficient standards or parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has adopted
two tests: the completeness test and the sufficient standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it.1avvphi1 The second test mandates
adequate guidelines or limitations in the law to determine the boundaries of the delegate’s authority
and prevent the delegation from running riot.103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a
national cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training,
best practices, assurance and technologies that can be used to protect cyber environment and
organization and user’s assets.104 This definition serves as the parameters within which CICC should
work in formulating the cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent
and combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at both
the domestic and international levels, and by providing arrangements for fast and reliable international
cooperation."105 This policy is clearly adopted in the interest of law and order, which has been
considered as sufficient standard.106 Hence, Sections 24 and 26(a) are likewise valid.

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial
communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and
 c. Section 19 of the same Act that authorizes the Department of Justice to restrict or
block access to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the
internet in bad faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying
information belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or
sexual activity for favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under the
Revised Penal Code are committed with the use of information and communications
technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to

preserve traffic data and subscriber information as well as specified content data for six
months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued

warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data
under a court-issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data after
the expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime

investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center

(CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

 1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the
original author of the post; but VOID and UNCONSTITUTIONAL with respect to others who
simply receive the post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as
VA L I D and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)
(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1)
on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL
with respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial
Communications, and 4(c)(4) on online Libel.1âwphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that
authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to
actual cases, WITH THE EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act
10175 and Article 353 of the Revised Penal Code constitutes a violation of the proscription
against double jeopardy; as well as

2. Child pornography committed online as to which, charging the offender under both Section
4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009
also constitutes a violation of the same proscription, and, in respect to these, is VOID and
UNCONSTITUTIONAL.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. 157870             November 3, 2008
SOCIAL JUSTICE SOCIETY (SJS), petitioner
vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), respondents.
x-----------------------------------------------x
G.R. No. 158633             November 3, 2008
ATTY. MANUEL J. LASERNA, JR., petitioner
vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, respondents.
x-----------------------------------------------x
G.R. No. 161658             November 3, 2008
AQUILINO Q. PIMENTEL, JR., petitioner
vs.
COMMISSION ON ELECTIONS, respondents.
DECISION
VELASCO, JR., J.:

In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise
known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug
testing of candidates for public office, students of secondary and tertiary schools, officers and
employees of public and private offices, and persons charged before the prosecutor's office with
certain offenses, among other personalities, is put in issue.

As far as pertinent, the challenged section reads as follows:

SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any government
forensic laboratories or by any of the drug testing laboratories accredited and monitored by the
DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among
others, two (2) testing methods, the screening test which will determine the positive result as
well as the type of drug used and the confirmatory test which will confirm a positive screening
test. x x x The following shall be subjected to undergo drug testing:

xxxx

(c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools
shall, pursuant to the related rules and regulations as contained in the school's student
handbook and with notice to the parents, undergo a random drug testing x x x;

(d) Officers and employees of public and private offices. - Officers and employees of public and
private offices, whether domestic or overseas, shall be subjected to undergo a random drug
test as contained in the company's work rules and regulations, x x x for purposes of reducing
the risk in the workplace. Any officer or employee found positive for use of dangerous drugs
shall be dealt with administratively which shall be a ground for suspension or termination,
subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil
Service Law;

xxxx

(f) All persons charged before the prosecutor's office with a criminal offense having an
imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a
mandatory drug test;

(g) All candidates for public office whether appointed or elected both in the national or local
government shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs
use shall be subject to the provisions of Section 15 of this Act.

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486,
prescribing the rules and regulations on the mandatory drug testing of candidates for public office in
connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of
the said resolution read as follows:
 WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

SEC. 36. Authorized Drug Testing. - x x x

xxxx

(g) All candidates for public office x x x both in the national or local government shall undergo a
mandatory drug test.

WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and
employees must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the
quality of candidates they are electing and they will be assured that only those who can serve
with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x.

NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the
Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election
laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on
the conduct of mandatory drug testing to candidates for public office[:]

SECTION 1. Coverage. - All candidates for public office, both national and local, in the May 10,
2004 Synchronized National and Local Elections shall undergo mandatory drug test in
government forensic laboratories or any drug testing laboratories monitored and accredited by
the Department of Health.

SEC. 3. x x x

On March 25, 2004, in addition to the drug certificates filed with their respective offices, the
Comelec Offices and employees concerned shall submit to the Law Department two (2)
separate lists of candidates. The first list shall consist of those candidates who complied with
the mandatory drug test while the second list shall consist of those candidates who failed to
comply x x x.

SEC. 4. Preparation and publication of names of candidates. - Before the start of the campaign
period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist
of those candidates who complied with the mandatory drug test while the second list shall
consist of those candidates who failed to comply with said drug test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate. - No
person elected to any public office shall enter upon the duties of his office until he has
undergone mandatory drug test and filed with the offices enumerated under Section 2 hereof
the drug test certificate herein required. (Emphasis supplied.)

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re - election in the
May 10, 2004 elections,1 filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1)
to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being
unconstitutional in that they impose a qualification for candidates for senators in addition to those
already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing
Resolution No. 6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states:

SECTION 3. No person shall be a Senator unless he is a natural - born citizen of the Philippines,
and, on the day of the election, is at least thirty - five years of age, able to read and write, a
registered voter, and a resident of the Philippines for not less than two years immediately
preceding the day of the election.

According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to
be a candidate for, elected to, and be a member of the Senate. He says that both the Congress and
COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other
candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for
senator must first be certified as drug free. He adds that there is no provision in the Constitution
authorizing the Congress or COMELEC to expand the qualification requirements of candidates for
senator.

G.R. No. 157870 (Social Justice Society v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political
party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency
(PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are
constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when
they give unbridled discretion to schools and employers to determine the manner of drug testing. For
another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a
student or an employee deemed undesirable. And for a third, a person's constitutional right against
unreasonable searches is also breached by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari
and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as
unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable
search and seizure, and the right against self - incrimination, and for being contrary to the due process
and equal protection guarantees.

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the matter of the standing of
petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to
allege any incident amounting to a violation of the constitutional rights mentioned in their separate
petitions.2

It is basic that the power of judicial review can only be exercised in connection with a bona
fide controversy which involves the statute sought to be reviewed.3 But even with the presence of an
actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional
question is brought before it by a party having the requisite standing to challenge it. 4 To have standing,
one must establish that he or she has suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and
the injury is likely to be redressed by a favorable action. 5

The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non - traditional
plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as
when the matter is of transcendental importance, of overarching significance to society, or of
paramount public interest.6 There is no doubt that Pimentel, as senator of the Philippines and
candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial
interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS
and Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental
importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165.

The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for
candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates
for senator in addition to those laid down by the Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these
paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the
equal protection clause? Or do they constitute undue delegation of legislative power?

Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)

In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally
impose an additional qualification on candidates for senator. He points out that, subject to the
provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid
down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4)
age, and (5) residency. Beyond these stated qualification

requirements, candidates for senator need not possess any other qualification to run for senator and
be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise
modify these qualification standards, as it cannot disregard, evade, or weaken the force of a
constitutional mandate,7 or alter or enlarge the Constitution.

Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby
declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the
Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which
all laws must conform; no act shall be valid if it conflicts with the Constitution. 8 In the discharge of their
defined functions, the three departments of government have no choice but to yield obedience to the
commands of the Constitution. Whatever limits it imposes must be observed. 9
Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early
as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative
power in the following wise:

Someone has said that the powers of the legislative department of the Government, like the
boundaries of the ocean, are unlimited. In constitutional governments, however, as well as
governments acting under delegated authority, the powers of each of the departments x x x are
limited and confined within the four walls of the constitution or the charter, and each
department can only exercise such powers as are necessarily implied from the given powers.
The Constitution is the shore of legislative authority against which the waves of legislative
enactment may dash, but over which it cannot leap.10

Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional
limitations which circumscribe both the exercise of the power itself and the allowable subjects of
legislation.11 The substantive constitutional limitations are chiefly found in the Bill of Rights 12 and other
provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for
senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or
promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates
for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for
senator to meet such additional qualification, the COMELEC, to be sure, is also without such power.
The right of a citizen in the democratic process of election should not be defeated by unwarranted
impositions of requirement not otherwise specified in the Constitution. 13

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively
enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As
couched, said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal - drug
clean, obviously as a pre - condition to the validity of a certificate of candidacy for senator or, with like
effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator - elect. The
COMELEC resolution completes the chain with the proviso that "[n]o person elected to any public
office shall enter upon the duties of his office until he has undergone mandatory drug test." Viewed,
therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add
another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in
the Senate. Whether or not the drug - free bar set up under the challenged provision is to be hurdled
before or after election is really of no moment, as getting elected would be of little value if one cannot
assume office for non - compliance with the drug - testing requirement.

It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does
not expressly state that non - compliance with the drug test imposition is a disqualifying factor or
would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug
test requirement is optional. But the particular section of the law, without exception, made drug -
testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer
the adverse consequences for not adhering to the statutory command. And since the provision deals
with candidates for public office, it stands to reason that the adverse consequence adverted to can
only refer to and revolve around the election and the assumption of public office of the candidates.
Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon
without meaning and effect whatsoever.
While it is anti - climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer
enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections
and the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems
it appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is
rooted on its having infringed the constitutional provision defining the qualification or eligibility
requirements for one aspiring to run for and serve as senator.

SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level
students and public and private employees, while mandatory, is a random and suspicionless
arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of
[the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory
purpose, per the policy - declaration portion of the law, can be achieved via the pursuit by the state of
"an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x
through an integrated system of planning, implementation and enforcement of anti - drug abuse
policies, programs and projects."14 The primary legislative intent is not criminal prosecution, as those
found positive for illegal drug use as a result of this random testing are not necessarily treated as
criminals. They may even be exempt from criminal liability should the illegal drug user consent to
undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point:

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and

Rehabilitation. - A drug dependent or any person who violates Section 15 of this Act may, by
himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for
treatment and rehabilitation of the drug dependency. Upon such application, the Board shall
bring forth the matter to the Court which shall order that the applicant be examined for drug
dependency. If the examination x x x results in the certification that the applicant is a drug
dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a
Center designated by the Board x x x.

xxxx

Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. - A drug
dependent under the voluntary submission program, who is finally discharged from
confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to
the following conditions:

xxxx

School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and
addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by
intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low
rate.15

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected
by the guarantee against unreasonable search and seizure16 under Sec. 2, Art. III17 of the Constitution.
But while the right to privacy has long come into its own, this case appears to be the first time that the
validity of a state - decreed search or intrusion through the medium of mandatory random drug testing
among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in
these proceedings is veritably one of first impression.

US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug
testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton
(Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al.
v. Earls, et al. (Board of Education),18 both fairly pertinent US Supreme Court - decided cases involving
the constitutionality of governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their
respective institutions following the discovery of frequent drug use by school athletes. After
consultation with the parents, they required random urinalysis drug testing for the school's athletes.
James Acton, a high school student, was denied participation in the football program after he refused
to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing
policy violated, inter alia, the Fourth Amendment19 of the US Constitution.

The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the
following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding
their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy
rights than non - athletes since the former observe communal undress before and after sports events;
(4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of
school supervision and regulation; (5) requiring urine samples does not invade a student's privacy since
a student need not undress for this kind of drug testing; and (6) there is need for the drug testing
because of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the
policy constituted reasonable search under the Fourth 20 and 14th Amendments and declared the
random drug - testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test
for high school students desiring to join extra - curricular activities. Lindsay Earls, a member of the
show choir, marching band, and academic team declined to undergo a drug test and averred that the
drug - testing policy made to apply to non - athletes violated the Fourth and 14th Amendments. As
Earls argued, unlike athletes who routinely undergo physical examinations and undress before their
peers in locker rooms, non - athletes are entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non -
athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made
no distinction between a non - athlete and an athlete. It ratiocinated that schools and teachers act in
place of the parents with a similar interest and duty of safeguarding the health of the students. And in
holding that the school could implement its random drug - testing policy, the Court hinted that such a
test was a kind of search in which even a reasonable parent might need to engage.

In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are:
(1) schools and their administrators stand in loco parentis with respect to their students; (2) minor
students have contextually fewer rights than an adult, and are subject to the custody and supervision
of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard
the health and well - being of their students and may adopt such measures as may reasonably be
necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for
admission that are fair, just, and non-discriminatory.

Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of
RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional.
Indeed, it is within the prerogative of educational institutions to require, as a condition for admission,
compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is
not absolute; it is subject to fair, reasonable, and equitable requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens
the well - being of the people,21 particularly the youth and school children who usually end up as
victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random
drug testing of students in secondary and tertiary schools is not only acceptable but may even be
necessary if the safety and interest of the student population, doubtless a legitimate concern of the
government, are to be promoted and protected. To borrow from Vernonia, "[d]eterring drug use by
our Nation's schoolchildren is as important as enhancing efficient enforcement of the Nation's laws
against the importation of drugs"; the necessity for the State to act is magnified by the fact that the
effects of a drug - infested school are visited not just upon the users, but upon the entire student body
and faculty.22 Needless to stress, the random testing scheme provided under the law argues against the
idea that the testing aims to incriminate unsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory but random drug test
prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable,
albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than
saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an
unwarranted intrusion of the individual right to privacy," 23 has failed to show how the mandatory,
random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy
and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the
Constitution.24 Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not
merit serious consideration. Consider what he wrote without elaboration:

The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the
constitutionality of mandatory drug tests in the school and the workplaces. The US courts have
been consistent in their rulings that the mandatory drug tests violate a citizen's constitutional
right to privacy and right against unreasonable search and seizure. They are quoted extensively
hereinbelow.25

The essence of privacy is the right to be left alone.26 In context, the right to privacy means the right to
be free from unwarranted exploitation of one's person or from intrusion into one's private activities in
such a way as to cause humiliation to a person's ordinary sensibilities. 27 And while there has been
general agreement as to the basic function of the guarantee against unwarranted search, "translation
of the abstract prohibition against ‘unreasonable searches and seizures' into workable broad guidelines
for the decision of particular cases is a difficult task," to borrow from C. Camara v. Municipal
Court.28 Authorities are agreed though that the right to privacy yields to certain paramount rights of
the public and defers to the state's exercise of police power.29

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held,
"reasonableness" is the touchstone of the validity of a government search or intrusion. 30 And whether
a search at issue hews to the reasonableness standard is judged by the balancing of the government -
mandated intrusion on the individual's privacy interest against the promotion of some compelling state
interest.31 In the criminal context, reasonableness requires showing of probable cause to be personally
determined by a judge. Given that the drug - testing policy for employees--and students for that
matter--under RA 9165 is in the nature of administrative search needing what was referred to
in Vernonia as "swift and informal disciplinary procedures," the probable - cause standard is not
required or even practicable. Be that as it may, the review should focus on the reasonableness of the
challenged administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon
which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution,
intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy
expectation of the employees and the reasonableness of drug testing requirement. The employees'
privacy interest in an office is to a large extent circumscribed by the company's work policies, the
collective bargaining agreement, if any, entered into by management and the bargaining unit, and the
inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy
expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon
such privacy has been upheld.

Just as defining as the first factor is the character of the intrusion authorized by the challenged law.
Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated
in Ople v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"? 32

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing
rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a
situation that would unduly embarrass the employees or place them under a humiliating experience.
While every officer and employee in a private establishment is under the law deemed forewarned that
he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug
testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be
tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing
ingredient by providing that the employees concerned shall be subjected to "random drug test as
contained in the company's work rules and regulations x x x for purposes of reducing the risk in the
work place."

For another, the random drug testing shall be undertaken under conditions calculated to protect as
much as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies
that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory
test, doubtless to ensure as much as possible the trustworthiness of the results. But the more
important consideration lies in the fact that the test shall be conducted by trained professionals in
access - controlled laboratories monitored by the Department of Health (DOH) to safeguard against
results tampering and to ensure an accurate chain of custody. 33 In addition, the IRR issued by the DOH
provides that access to the drug results shall be on the "need to know" basis; 34 that the "drug test
result and the records shall be [kept] confidential subject to the usual accepted practices to protect the
confidentiality of the test results."35 Notably, RA 9165 does not oblige the employer concerned to
report to the prosecuting agencies any information or evidence relating to the violation of
the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All
told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper
safeguards, particularly against embarrassing leakages of test results, and is relatively minimal.
To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus
protect the well - being of the citizens, especially the youth, from the deleterious effects of dangerous
drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely
pursuing a national drug abuse policy in the workplace via a mandatory random drug test. 36 To the
Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override
the individual's privacy interest under the premises. The Court can consider that the illegal drug
menace cuts across gender, age group, and social - economic lines. And it may not be amiss to state
that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an
investor's dream were it not for the illegal and immoral components of any of such activities. The drug
problem has hardly abated since the martial law public execution of a notorious drug trafficker. The
state can no longer assume a laid back stance with respect to this modern - day scourge. Drug
enforcement agencies perceive a mandatory random drug test to be an effective way of preventing
and deterring drug use among employees in private offices, the threat of detection by random testing
being higher than other modes. The Court holds that the chosen method is a reasonable and enough
means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the
employees, the compelling state concern likely to be met by the search, and the well - defined limits
set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the
challenged drug test requirement is, under the limited context of the case, reasonable and, ergo,
constitutional.

Like their counterparts in the private sector, government officials and employees also labor under
reasonable supervision and restrictions imposed by the Civil Service law and other laws on public
officers, all enacted to promote a high standard of ethics in the public service. 37 And if RA 9165 passes
the norm of reasonableness for private employees, the more reason that it should pass the test for civil
servants, who, by constitutional command, are required to be accountable at all times to the people
and to serve them with utmost responsibility and efficiency. 38

Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation
of power hardly commends itself for concurrence. Contrary to its position, the provision in question is
not so extensively drawn as to give unbridled options to schools and employers to determine the
manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and
tertiary schools and officers/employees of public/private offices should be conducted. It enumerates
the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance
with the school rules as contained in the student handbook and with notice to parents. On the part of
officers/employees, the testing shall take into account the company's work rules. In either case, the
random procedure shall be observed, meaning that the persons to be subjected to drug test shall be
picked by chance or in an unplanned way. And in all cases, safeguards against misusing and
compromising the confidentiality of the test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH,
Department of the Interior and Local Government, Department of Education, and Department of Labor
and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the
participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA
9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to
determine how often, under what conditions, and where the drug tests shall be conducted.
The validity of delegating legislative power is now a quiet area in the constitutional landscape. 39 In the
face of the increasing complexity of the task of the government and the increasing inability of the
legislature to cope directly with the many problems demanding its attention, resort to delegation of
power, or entrusting to administrative agencies the power of subordinate legislation, has become
imperative, as here.

Laserna Petition (Constitutionality of Sec. 36[c], [d],

[f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for
mandatory drug testing for persons accused of crimes. In the case of students, the constitutional
viability of the mandatory, random, and suspicionless drug testing for students emanates primarily
from the waiver by the students of their right to privacy when they seek entry to the school, and from
their voluntarily submitting their persons to the parental authority of school authorities. In the case of
private and public employees, the constitutional soundness of the mandatory, random, and
suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutor's
office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative
concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons
charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or
suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made
defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion.
When persons suspected of committing a crime are charged, they are singled out and are impleaded
against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's
office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily
consent to the procedure, let alone waive their right to privacy. 40 To impose mandatory drug testing on
the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary
to the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy
guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably
forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec.
36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY
GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165
CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are,
accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs.

SO ORDERED.