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RESOLUTION

G.R. No. 81567 October 3, 1991 Umil vs. Ramos

PER CURIAM: Before the Court are separate motions filed by the petitioners in the above-entitled petitions, seeking reconsideration of the Court's decision promulgated on 9 July 1990 (the decision, for brevity) which dismissed the petitions, with the following dispositive part: WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs. The Court avails of this opportunity to clarify its ruling a begins with the statement that the decision did not rule as many misunderstood it to do that mere suspicion that one is Communist Party or New People's Army member is a valid ground for his arrest without warrant. Moreover, the decision merely applied long existing laws to the factual situations obtaining in the several petitions. Among these laws are th outlawing the Communist Party of the Philippines (CPP) similar organizations and penalizing membership therein be dealt with shortly). It is elementary, in this connection, if these laws no longer reflect the thinking or sentiment of the people, it is Congress as the elected representative of the people not the Court that should repeal, change or modify them. In their separate motions for reconsideration, petitioners, in sum, maintain: 1. That the assailed decision, in upholding the validity of the questioned arrests made without warrant, and in relying on the provisions of the Rules of Court, particularly Section 5 of Rule 113 (Arrest), disregards the fact that such arrests violated the constitutional rights of the persons arrested; 2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2 should be abandoned; 3. That the decision erred in considering the admissions made by the persons arrested as to their membership in the Communist Party of the Philippines/New People's Army, and their ownership of the unlicensed firearms, ammunitions and subversive documents found in their possession at the time of arrest, inasmuch as those confessions do not comply with the requirements on admissibility of extrajudicial admissions; 4. That the assailed decision is based on a misappreciation of facts; 5. That G.R. No. 81567 (the Umil case) should not be deemed moot and academic. We find no merit in the motions for reconsideration. It can not be overlooked that these are petitions for the issuance of the writ of habeas corpus, filed by petitioners under the Rules of Court. 3 The writ of habeas corpus exists as a speedy and effective remedy to relieve persons from unlawful restraint. 4 Therefore, the function of the special proceedings of habeas corpus is to inquire into the legality of one's detention, 5 so that if detention is illegal, the detainee may be ordered forthwit released. In the petitions at bar, to ascertain whether the detention petitioners was illegal or not, the Court before rendering decision dated 9 July 1990, looked into whether their questioned arrests without warrant were made in accordance with law. For, if the arrests were made in accordance with law, would follow that the detention resulting from such arrests also in accordance with law. There can be no dispute that, as a general rule, no peace officer or person has the power or authority to arrest anyo without a warrant of arrest, except in those cases express authorized by law. 6 The law expressly allowing arrests witho warrant is
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found in Section 5, Rule 113 of the Rules of Court which states the grounds upon which avalid arrest, without warrant, can be conducted. In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b) of the said Rule 113, which read: 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 he 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 arrest has committed it; and . . . (Emphasis supplied). The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No. 81567) without warrant is justified it can be said that, within the contemplation of Section 5 Rule 113, he (Dural) was committing an offense, when arrested because Dural was arrested for being a member of the New People's Army, an outlawed organization, where membership penalized, 7 and for subversion which, like rebellion is, under the doctrine ofGarcia vs. Enrile, 8 a continuing offense, thus: The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance (sic) on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. . . . Given the ideological content of membership in the CPP/NPA which includes armed struggle for the overthrow of organized government, Dural did not cease to be, or became less of a subversive, FOR PURPOSES OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes Hospital. Dural was identified as one of several persons who the day before his arrest, without warrant, at the St. Agnes Hospital, had shot two (2) CAPCOM policemen in their patrol car. That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA member) did not end there and then. Dural, given another opportunity, would have shot or would shoot other policemen anywhere as agents or representatives of organized government. It is in this sense that subversion like rebellion (or insurrection) is perceived here as a continuing offense. Unlike other so-called "common" offenses, i.e. adultery, murder, arson, etc., which generally end upon their commission, subversion and rebellion are anchored on an ideological base which compels the repetition of the same acts of lawlessness and violence until the overriding objective of overthrowing organized government is attained. Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting officers of his membership in the CPP/NPA. His arrest was based on "probable cause," as supported by actual facts that will be shown hereafter. Viewed from another but related perspective, it may also be said, under the facts of the Umil case, that the arrest of Dural falls under Section 5, paragraph (b), Rule 113 of the Rules of Court, which requires two (2) conditions for a valid arrestt without warrant: first, that the person to be arrested has just committed an offense, and second, that the arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested is the one who committed the offense. Section 5(b), Rule 113, it will be noted, refers to arrests without warrant, based on "personal knowledge of facts" acquired by the arresting officer or private person.

It has been ruled that "personal knowledge of facts," in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion 9 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. 10 A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. 11 These requisites were complied with in the Umil case and in the other cases at bar. In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St. Agnes Hospital, Roosevelt Avenue, Quezon City, to verify a confidential information which was received by their office, about a "sparrow man" (NPA member) who had been admitted to the said hospital with a gunshot wound; that the information further disclosed that the wounded man in the said hospital was among the five (5) male "sparrows" who murdered two (2) Capcom mobile patrols the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump along Macanining St., Bagong Barrio, Caloocan City; that based on the same information, the wounded man's name was listed by the hospital management as "Ronnie Javellon," twenty-two (22) years old of Block 10, Lot 4, South City Homes, Bian, Laguna. 12 Said confidential information received by the arresting officers, to the effect that an NPA member ("sparrow unit") was being treated for a gunshot wound in the named hospital, is deemed reasonable and with cause as it was based on actual facts and supported by circumstances sufficient to engender a belief that an NPA member was truly in the said hospital. The actual facts supported by circumstances are: first the day before, or on 31 January 1988, two (2) CAPCOM soldiers were actually killed in Bagong Bario, Caloocan City by five (5) "sparrows" including Dural; second a wounded person listed in the hospital records as "Ronnie Javellon" was actually then being treated in St. Agnes Hospital for a gunshot wound; third as the records of this case disclosed later, "Ronnie Javellon" and his address entered in the hospital records were fictitious and the wounded man was in reality Rolando Dural. In fine, the confidential information received by the arresting officers merited their immediate attention and action and, in fact, it was found to be true. Even the petitioners in their motion for reconsideration, 13 believe that the confidential information of the arresting officers to the effect that Dural was then being treated in St. Agnes Hospital was actually received from the attending doctor and hospital management in compliance with the directives of the law, 14 and, therefore, came from reliable sources. As to the condition that "probable cause" must also be coupled with acts done in good faith by the officers who make the arrest, the Court notes that the peace officers wno arrested Dural are deemed to have conducted the same in good faith, considering that law enforcers are presumed to regularly perform their official duties. The records show that the arresting officers did not appear to have been illmotivated in arresting Dural. 15 It is therefore clear that the arrest, without warrant, of Dural was made in compliance with the requirements of paragraphs (a) and (b) of Section 5, Rule 113. Parenthetically, it should be mentioned here that a few day after Dural's arrest, without warrant, an information charging double murder with assault against agents of persons in authority was filed against Dural in the Regional Trial Court of Caloocan City (Criminal Case No. C-30112). He was thus promptly placed under judicial
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custody (as distinguished fro custody of the arresting officers). On 31 August 1988, he wa convicted of the crime charged and sentenced to reclusion perpetua. The judgment of conviction is now on appeal before this Court in G.R. No. 84921. As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo Anonuevo and Ramon Casiple (G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No. 83162), their arrests, without warrant, are also justified. They were searched pursuant to search warrants issued by a court of law and were found wit unlicensed firearms, explosives and/or ammunition in their persons. They were, therefore, caught in flagrante delicto which justified their outright arrests without warrant, under Sec 5(a), Rule 113, Rules of Court. Parenthetically, it should be mentioned here that a few davs after their arrests without warrant, informations were filed in court against said petitioners, thereby placing them within judicial custody and disposition. Furthermore, Buenaobra mooted his own petition fo habeas corpus by announcing to this Court during the hearing of these petitions that he had chosen to remain in detention in the custody of the authorities. More specifically, the antecedent facts in the "in flagrante" cases are: 1. On 27 June 1988, the military agents received information imparted by a former NPA about the operations of the CPP and NPA in Metro Manila and that a certain house occupied by one Renato Constantine, located in the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila was being used as their safehouse; that in view of this information, the said house was placed under military surveillance and on 12 August 1988, pursuant to a search warrant duly issued by court, a search of the house was conducted; that when Renato Constantine was then confronted he could not produce any permit to possess the firearms, ammunitions, radio and other communications equipment, and he admitted that he was a ranking member of the CPP. 16 2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato Constantino in the evening of 12 August 1988, and admitted that he was an NPA courier and he had with him letters to Renato Constantine and other members of the rebel group. 3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest of Buenaobra who had in his possession papers leading to the whereabouts of Roque; 17 that, at the time of her arrest, the military agents found subversive documents and live ammunitions, and she admitted then that the documents belonged to her.18 4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without warrant on 13 August 1988, when they arrived at the said house of Renato Constantine in the evening of said date; that when the agents frisked them, subversive documents, and loaded guns were found in the latter's possession but failing to show a permit to possess them. 19 5. With regard to Vicky Ocaya, she was arrested, without warrant when she arrived (on 12 May 1988) at the premises ofthe house of one Benito Tiamzon who was believed to be the head of the CPP/NPA, and whose house was subject of a search warrant duly issued by the court. At the time of her arrest without warrant the agents of the PC-Intelligence and Investigation found ammunitions and subversive documents in the car of Ocaya. 20 It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the reason which compelled the military agents to make the arrests without warrant was the information given to the military authorities that two (2) safehouses (one occupied by Renato Constantine and the other by Benito Tiamzon) were being used by the CPP/NPA for their operations, with information as to their exact location and the names of Renato Constantine and Benito Tiamzon as residents or occupants thereof.

And at the time of the actual arrests, the following circumstances surrounded said arrests (of Roque, Buenaobra, Anonuevo and Casiple), which confirmed the belief of the military agents that the information they had received was true and the persons to be arrested were probably guilty of the commission of certain crimes: first: search warrant was duly issued to effect the search of the Constantine safehouse; second: found in the safehouse was a person named Renato Constantine, who admitted that he was a ranking member of the CPP, and found in his possession were unlicensed firearms and communications equipment; third: at the time of their arrests, in their possession were unlicensed firearms, ammunitions and/or subversive documents, and they admitted ownership thereof as well as their membership in the CPP/NPA. And then, shortly after their arrests, they were positively identified by their former comrades in the organization as CPP/NPA members. In view of these circumstances, the corresponding informations were filed in court against said arrested persons. The records also show that, as in the case of Dural, the arrests without warrant made by the military agents in the Constantino safehouse and later in the Amelia Roque house, do not appear to have been ill-motivated or irregularly performed. With all these facts and circumstances existing before, during and after the arrest of the afore-named persons (Dural, Buenaobra, Roque, Anonuevo, Casiple and Ocaya), no prudent an can say that it would have been better for the military agents not to have acted at all and made any arrest. That would have been an unpardonable neglect of official duty and a cause for disciplinary action against the peace officers involved. For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the hands of executive and judicial authorities upon whom devolves the duty to investigate the acts constituting the alleged violation of law and to prosecute and secure the punishment therefor. 21 An arrest is therefore in the nature of an administrative measure. The power to arrest without warrant is without limitation as long as the requirements of Section 5, Rule 113 are met. This rule is founded on an overwhelming public interest in peace and order in our communities. In ascertaining whether the arrest without warrant is conducted in accordance with the conditions set forth in Section 5, Rule 113, this Court determines not whether the persons arrested are indeed guilty of committing the crime for which they were arrested. 22 Not evidence of guilt, but "probable cause" is the reason that can validly compel the peace officers, in the performance of their duties and in the interest of public order, to conduct an arrest without warrant. 23 The courts should not expect of law-enforcers more than what the law requires of them. Under the conditions set forth in Section 5, Rule 113, particularly paragraph (b) thereof, even if the arrested persons are later found to be innocent and acquitted, the arresting officers are not liable. 24 But if they do not strictly comply with the said conditions, the arresting officers can be held liable for the crime of arbitrary detention, 25 for damages under Article 32 of the Civil Code 26 and/or for other administrative sanctions. In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on the basis of the attestation of certain witnesses: that about 5:00 o'clock in the afternoon of 22 November 1988, at the corner of Magsaysay Boulevard and Velencia St., Sta. Mesa, Manila, Espiritu spoke at a gathering of drivers and sympathizers, where he said, among other things: Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis supplied) and that the police authorities were present during the press conference held at the National Press Club (NPC) on 22 November 1988 where Espiritu called for a nationwide strike (of jeepney and bus drivers) on 23 November 1988. 28 Espiritu was arrested without warrant, not for subversion or any "continuing offense," but for
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uttering the above-quoted language which, in the perception of the arresting officers, was inciting to sedition. Many persons may differ as to the validity of such perception and regard the language as falling within free speech guaranteed by the Constitution. But, then, Espiritu had not lost the right to insist, during the pre-trial or trial on the merits, that he was just exercising his right to free speech regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing. In the balancing of authority and freedom, which obviously becomes difficult at times, the Court has, in this case, tilted the scale in favor of authority but only for purposes of the arrest (not conviction). Let it be noted that the Court has ordered the bail for Espiritu's release to be reduced from P60,000.00 to P10,000.00. Let it also be noted that supervening events have made the Espiritu case moot and academic. For Espiritu had before arraignment asked the court a quo for reinvestigation, the peace officers did not appear. Because of this development, the defense asked the court a quo at the resumption of the hearings to dismiss the case. Case against Espiritu (Criminal Case No. 88-68385) has been provisionally dismissed and his bail bond cancelled. In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December 1988, Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5:00 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing, was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents arrested Nazareno, without warrant, for investigation. 29 Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest fans under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II and the arrest had to be made promptly, even without warrant, (after the police were alerted) and despite the lapse of fourteen (14) days to prevent possible flight. As shown in the decision under consideration, this Court, in upholding the arrest without warrant of Nazareno noted several facts and events surrounding his arrest and detention, as follows: . . . on 3 January 1989 (or six (6) days after his arrest without warrant), an information charging Narciso Nazareno, Ramil Regala and two (2) others, with the killing of Romulo Bunye II was filed wit the Regional Trial Court of Makati, Metro Manila. The case is dock eted therein as Criminal Case No. 731. On 7 January 1989, Narciso Nazareno filed a motion to post bail but the motion was denied by the trial court in an order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial court. On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus, retumable to the Presiding Judge of the Regional Trial Court of Bifian, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and thereafter resolve the petition. At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Bian, Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents by reason of an information filed against him with the Regional Trial

Court of Makati, Metro Manila which liad taken cognizance of said case and had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably because of the strength of the evidence against him). This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the corresponding informations against them were filed in court. The arrests of Espiritu and Nazareno were based on probable cause and supported by factual circumstances. They complied with conditions set forth in Section 5(b) of Rule 113. They were not arbitrary or whimsical arrests. Parenthetically, it should be here stated that Nazareno has since been convicted by the court a quo for murder and sentenced to reclusion perpetua. He has appealed the judgment of conviction to the Court of Appeals where it is pending as of this date ( CA-G.R. No. still undocketed). Petitioners contend that the decision of 9 July 1990 ignored the contitution requisiteds for admissibility of an extrajudicial admission. In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30 that he was an NPA courier. On the other hand, in the case of Amelia Roque, she admitted 31 that the unlicensed firearms, ammunition and subversive documents found in her possession during her arrest, belonged to her. The Court, it is true, took into account the admissions of the arrested persons of their membership in the CPP/NPA, as well as their ownership of the unlicensed firearms, ammunitions and documents in their possession. But again, these admissions, as revealed by the records, strengthen the Court's perception that truly the grounds upon which the arresting officers based their arrests without warrant, are supported by probable cause, i.e. that the persons arrested were probably guilty of the commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court. To note these admissions, on the other hand, is not to rule that the persons arrested are already guilty of the offenses upon which their warrantless arrests were predicated. The task of determining the guilt or innocence of persons arrested without warrant is not proper in a petition for habeas corpus. It pertains to the trial of the case on the merits. As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan vs. Enrile should be abandoned, this Court finds no compelling reason at this time to disturb the same, particularly ln the light of prevailing conditions where national security and liability are still directly challenged perhaps with greater vigor from the communist rebels. What is important is that everv arrest without warrant be tested as to its legality via habeas corpus proceeding. This Court. will promptly look into and all other appropriate courts are enjoined to do the same the legality of the arrest without warrant so that if the conditions under Sec. 5 of Rule 113, Rules of Court, as elucidated in this Resolution, are not met, then the detainee shall forthwith be ordered released; but if such conditions are met, then the detainee shall not be made to languish in his detention but must be promptly tried to the end that he may be either acquitted or convicted, with the least delay, as warranted by the evidence. A Final Word This Resolution ends as it began, reiterating that mere suspicion of being a Communist Party member or a subversive is absolutely not a ground for the arrest without warrant of the suspect. The Court predicated the validity of the questioned arrests without warrant in these petitions, not on mere unsubstantiated suspicion, but on compliance with the conditions set forth in Section 5, Rule 113, Rules of Court, a long existing law, and which, for stress, are probable cause and good faith of the arresting peace officers, and, further, on the basis of, as the records show, the actual facts and circumstances supporting the arrests. More than the
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allure of popularity or palatability to some groups, what is important is that the Court be right. ACCORDINGLY, the motions for reconsideration of the decision dated 9 July 1990, are DENIED. This denial is FINAL. SO ORDERED. G.R. No. 74189 May 26, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO ENRILE Y VILLAROMAN and ROGELIO ABUGATAL Y MARQUEZ, accused-appellants. The Solicitor General for plaintiff-appellee. Felix O. Lodero, Jr. for accused-appellant. CRUZ, J.: Sentenced to life imprisonment and a fine of P30,000.00 for violation of the Dangerous Drugs Act, Antonio Enrile faults the Regional Trial Court of Quezon City for convicting him. 1 His co-accused, Rogelio Abugatal, was killed in an attempted jailbreak and this appeal is dismissed as to him. 2 We deal here only with Enrile. The evidence for the prosecution showed that at about half past six in the evening of October 25, 1985, a buy-bust team composed of Pat. Jaime Flores and Pat. Wilson Rances of the Quezon City Police Anti-Narcotics Unit was dispatched to entrap Rogelio Abugatal at Roosevelt Avenue in San Francisco Del Monte, Quezon City. The plan was made on the strength of a tip given by Renato Polines, a police informer, who was himself to pose as the buyer. 3 In their separate testimonies, 4 both policemen said that on the occasion they saw Polines hand over to Abugatal the marked money representing payment for the mock transaction. Abugatal left with the money and returned ten minutes later with a wrapped object which he gave Polines. The two policemen then approached Abugatal and placed him under arrest, at the same time confiscating the wrapped object. Subsequent laboratory examination revealed this to be marijuana with flowering tops weighing 22 grams. 5 The prosecution also showed that, upon providing Abugatal led the policemen to a house at 20 De Vera Street, also in San Francisco Del Monte, Quezon City, where he called out for Antonio Enrile. Enrile came out and met them at the gate. Abugatal pointed to Enrile as the source of the marijuana, whereupon the policemen immediately arrested and frisked him. They found in the right front pocket of his trousers the marked money earlier delivered to Abugatal, with Serial No. PJ966425. 6 At the police headquarters, Abugatal signed a sworn confession affirming the above narration. 7 Enrile refused to make any statement pending consultation with a lawyer. In his defense, Enrile testified that the marked money was "planted" on him by the police officers, who he said simply barged into his house without a warrant and arrested him. He stoutly denied any knowledge of the marijuana. He claimed that at the time of the alleged incident, he was attending, as a dental technician, to a patient whom he was fitting for dentures. 8 The supposed patient, Alicia Tiempo, corroborated him. 9 Enrile admitted that he had earlier been convicted of selling marijuana and that he had a pending application for probation. He suggested that this could be the reason the policemen sought to implicate him in the new charge and thus weaken his application. 10 Abugatal contradicted his earlier sworn statement and declared on the stand that he had not sold any marijuana to Polines. What really happened, he said, was that two

male teenagers approached him that evening and told him to buy marijuana, giving him P50.00 for the purpose. When he said he did not have any marijuana and did not know where to buy it, they forced him to go to Enrile's house and to give him the marked money. He did so because they had a knife. Enrile handed him a plastic bag which was later found to contain dried marijuana fruiting tops. 11 Judge Willelmo C. Fortun erred when he gave credence to the sworn statement of Abugatal, considering that it was made without compliance with the requisites of a custodial investigation, including the right to the assistance of counsel. The confession was clearly inadmissible. It did not follow the ruling of this Court in Morales v. Enrile, 12promulgated on April 26, 1983, as reiterated in People v. Galit, 13 promulgated on March 20, 1985, where Justice Hermogenes Concepcion laid down the correct procedure, thus: 7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory, in whole or in part, shall be inadmissible in evidence. The challenged decision of the trial court was promulgated on February 14, 1986, long after the above-cited decisions had become effective. Even under the old doctrine, in fact, it is doubtful if Abugatal's confession without the assistance of counsel could have been sustained. It was not enough then to inform the suspect of his constitutional rights. The trial court had to ascertain for itself that the accused clearly understood the import and consequences of his confession and had the intelligence and mental capacity to do so. 14 There is no showing in the record that this was done, short of the statement in the decision that Abugatal had been informed of his rights and had validly waived the assistance of counsel. If the sworn statement of Abugatal was inadmissible against him, much less was it admissible against Enrile. The prosecution rejected Abugatal's testimony that he was forced to go to Enrile's house and buy marijuana from him, insisting instead on the extrajudicial confession. With that confession outlawed and the testimony disowned by the prosecution itself, there is no evidence at all against Enrile to tie him with Abugatal. It was Abugatal who was allegedly caught red-handed by the policemen as he sold the marijuana to Polines. Enrile was not even at the scene of the entrapment at that time. Abugatal said he did lead the policemen to Enrile's house where he pointed to Enrile as the source of the marijuana. Even assuming this to be true, that circumstance alone did not justify Enrile's warrantless arrest and search. Under Rule 113, Section 5, of the Rules of Court, a peace officer or a private person may make a warrantless arrest only under any of the following circumstances : (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;.
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(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and. (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Paragraphs (a) and (b) are clearly inapplicable. Paragraph (b) is also not in point because the policemen who later arrested Enrile at his house had no personal knowledge that he was the source of marijuana. According to the policemen themselves, what happened was that they asked Abugatal who gave him the marijuana and were told it was Enrile. It was for this reason that they proceeded to Enrile's house and immediately arrested him. 15 What the policemen should have done was secure a search warrant on the basis of the information supplied by Abugatal, and then, with such authority, proceeded to search and, if the search was fruitful, arrest Enrile. They had no right to simply force themselves into his house on the bare (and subsequently disallowed) allegations of Abugatal and bundle Enrile off to the police station as if he had been caught in flagrante delicto. The discovery of the marked money on him did not mean he was caught in the act of selling marijuana. The marked money was not prohibited per se. Even if it were, that fact alone would not retroactively validate the warrantless search and seizure. The principle has been honored through the ages in all liberty-loving regimes that a man's house is his castle that not even the mighty monarch, with all its forces, may violate. There were measures available under the law to enable the authorities to search Enrile's house and to arrest him if he was found in possession of prohibited articles. The police did not employ these measures. What they did was simply intrude into Enrile's house and arrest him without the slightest heed to the injunctions of the Bill of Rights. By so doing, they were using the tactics of the police state, where the minions of the government place little value on human rights and individual liberties and are obssessed only with the maintenance of peace and punishment of crime. These are laudible objectives in any well-ordered society. But it should never be pursued at the cost of dismantling the intricate apparatus for the protection of the individual from overzealous law-enforcers who mistakenly believe that suspected criminals have forfeited the safeguards afforded them by the Constitution. Lawenforcers are not licensed to themselves break the law to apprehend and punish law-breakers. Such a practice only leads to further defiance of the law by those who have been denied its protection. In the light of the proven circumstances of this case, the Court is not convinced that there is enough evidence to establish Enrile's guilt beyond the shadow of doubt. The paucity of such evidence only strengthens the suspicion that the marked money was really "planted" on Enrile by the police officers who were probably worried that their earlier efforts in securing Enrile's conviction as a drug pusher would be thwarted by his application for probation. Whatever their motives, the fact is that Abugatal's sworn statement implicating Enrile is inadmissible against Enrile, and so is the marked money allegedly found on him as a result of the illegal search. The only remaining evidence against the appellant is Abugatal's testimony, but this has been questioned and discredited by the prosecution itself. Its case against Enrile is thus left without a leg to stand on and must therefore be dismissed. Law-enforcement authorities are admonished that mere enthusiasm in the discharge of their duties is not enough to build a case against a person charged with a crime.

They should build it with painstaking care, stone by stone of provable fact, and with constant regard for the rights of the accused, before they can hope to secure a conviction that can be sustained in a court of justice. WHEREFORE, the conviction of Antonio Enrile in the challenged decision is hereby SET ASIDE and REVERSED. The accused-appellant is ACQUITTED and shall be released immediately. It is so ordered. Grio-Aquino, Bellosillo and Quiason, JJ., concur. G.R. No. 95847-48. March 10, 1993. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GABRIEL GERENTE y BULLO, accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; LAWFUL WHEN ARRESTING OFFICER HAS PERSONAL KNOWLEDGE THAT THE PERSON TO BE ARRESTED HAS COMMITTED THE CRIME; CASE AT BAR. The policemen arrested Gerente only some three (3) hours after Gerente and his companions had killed Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime, they found the instruments of death: a piece of wood and a concrete hollow block which the killers had used to bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the happening to the policemen and pinpointed her neighbor, Gerente, as one of the killers. Under those circumstances, since the policemen had personal knowledge of the violent death of Blace and of facts indicating that Gerente and two others had killed him, they could lawfully arrest Gerente without a warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the law as his two companions did. 2. ID.; ID.; SEARCH AND SEIZURE; VALID EVEN WITHOUT A WARRANT WHEN MADE AS AN INCIDENT TO LAWFUL ARREST; RATIONALE. The search conducted on Gerente's person was likewise lawful because it was made as an incident to a valid arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court which provides: "Section 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." The frisk and search of appellant's person upon his arrest was a permissible precautionary measure of arresting officers to protect themselves, for the person who is about to be arrested may be armed and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual being arrested may be frisked for concealed weapons that may be used against the arresting officer and all unlawful articles found his person, or within his immediate control may be seized." 3. CRIMINAL LAW; CONSPIRACY; LIABILITY OF CONSPIRATORS; RULE; CASE AT BAR. There is no merit in appellant's allegation that the trial court erred in convicting him of having conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr. Valentin Bernales that the fracture on the back of the victim's skull could have been inflicted by one person only. what Dr. Bernales stated was a mere possibility that only one person dropped the concrete hollow block on the head of the victim, smashing it. That circumstance, even if true, does not absolve the other two co-conspirators in the murder of Blace for when there is a conspiracy to commit a crime, the act of one conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony of Edna Edwina Reyes, that she overheard the appellant and his companions conspire to kill Blace, that acting in
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concert, they attacked their victim with a piece of wood and a hollow block and caused his death. "When there is no evidence indicating that the principal witness for the prosecution was moved by improper motive, the presumption is that he was not so moved and his testimony is entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in giving full credit to Edna Reyes' testimony. 4. ID.; CIVIL INDEMNITY FOR DEATH; INCREASED TO P50,000.00. The Solicitor General correctly pointed out in the appellee's brief that the award of P30,000.00 as civil indemnity for the death of Clarito Blace should be increased to P50,000.00 in accordance with our ruling in People vs. Sison, 189 SCRA 643. DECISION GRIO-AQUINO, J p: This is an appeal from the decision of the Regional Trial Court of Valenzuela, Metro Manila, Branch 172, which found the appellant guilty of Violation of Section 8 of Republic Act 6425 (Dangerous Drugs Act of 1972) and sentenced him to suffer the penalty of imprisonment for a term of twelve (12) years and one (1) day, as minimum, to twenty (20) years, as maximum; and also found him guilty of Murder for which crime he was sentenced to suffer the penalty of reclusion perpetua. The dispositive portion of the appealed decision reads: "WHEREFORE, in view of the foregoing the Court finds the accused Gabriel Gerente in Criminal Case No. 10255-V-90 guilty beyond reasonable doubt of Violation of Section 8 of R.A. 6425 and hereby sentences him to suffer the penalty of imprisonment of twelve years and one day as minimum to twenty years as maximum, and a fine of twelve thousand, without subsidiary imprisonment in case of insolvency, and to pay the costs. "In Criminal Case No. 10256-V-90, the Court finds the accused Gabriel Gerente guilty beyond reasonable doubt of the crime of Murder, and there by (sic) no aggravating circumstances nor mitigating circumstances, is hereby sentenced to suffer the penalty of reclusion perpetua; to indemnify the heirs of the victim in the sum of P30,000.00, and in the amount of P17,609.00 as funeral expenses, without subsidiary imprisonment in case of insolvency, and to pay the costs. The accused Gabriel Gerente shall be credited with the full term of his preventive imprisonment." (p. 25, Rollo.) Appellant Gabriel Gerente y Bullo was charged with Violation of Section 8, Art. II of R.A. 6425, which was docketed as Criminal Case No. 10255-V-90 of the Regional Trial Court of Valenzuela, Metro Manila. The Information reads: "That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without justification, did then and there wilfully, unlawfully and feloniously have in his possession and control dried flowering tops wrapped in foil with markings and place in a transparent plastic bag which are considered prohibited drugs." (p. 2, Rollo.) The same accused, together with Totoy and Fredo Echigoren who are both at large, was charged with Murder in Criminal Case No. 10256-V-90 in an information of the same date and signed by the same Assistant Provincial Prosecutor, as follows: "That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused together with two (2) others who are still at large and against whom the preliminary investigation has not yet been terminated by the Office of the Provincial Prosecutor of Bulacan, conspiring, confederating together and mutually helping one another, armed with a piece of wood and hallow (sic) block and with intent to kill one Clarito B. Blace, did then and there wilfully, unlawfully and

feloniously, with evident premeditation and treachery, attack, assault and hit with the said piece of wood and hollow block the said Clarito B. Blace, hitting the latter on the different parts of his body, thereby inflicting serious physical injuries which directly caused the death of the said victim." (p. 3, Rollo.) Edna Edwina Reyes testified that at about 7:00 a.m. of April 30, 1990, appellant Gabriel Gerente, together with Fredo Echigoren and Totoy Echigoren, started drinking liquor and smoking marijuana in the house of the appellant which is about six (6) meters away from the house of the prosecution witness who was in her house on that day. She overheard the three men talking about their intention to kill Clarito Blace. She testified that she heard Fredo Echigoren saying, "Gabriel, papatayin natin si Clarito Blace," and Totoy Echigoren allegedly seconded Fredo's suggestion saying: "Papatayin natin 'yan mamaya." Appellant allegedly agreed: "Sigue, papatayin natin mamaya." (pp. 3-4, tsn, August 24, 1990.) Fredo and Totoy Echigoren and Gerente carried out their plan to kill Clarito Blace at about 2:00 p.m. of the same day. The prosecution witness, Edna Edwina Reyes, testified that she witnessed the killing. Fredo Echigoren struck the first blow against Clarito Blace, followed by Totoy Echigoren and Gabriel Gerente who hit him twice with a piece of wood in the head and when he fell, Totoy Echigoren dropped a hollow block on the victim's head. Thereafter, the three men dragged Blace to a place behind the house of Gerente. At about 4:00 p.m. of the same day, Patrolman Jaime Urrutia of the Valenzuela Police Station received a report from the Palo Police Detachment about a mauling incident. He went to the Valenzuela District Hospital where the victim was brought. He was informed by the hospital officials that the victim died on arrival. The cause of death was massive fracture of the skull caused by a hard and heavy object. Right away, Patrolman Urrutia, together with Police Corporal Romeo Lima and Patrolman Alex Umali, proceeded to Paseo de Blas where the mauling incident took place. There they found a piece of wood with blood stains, a hollow block and two roaches of marijuana. They were informed by the prosecution witness, Edna Edwina Reyes, that she saw the killing and she pointed to Gabriel Gerente as one of the three men who killed Clarito. The policemen proceeded to the house of the appellant who was then sleeping. They told him to come out of the house and they introduced themselves as policemen. Patrolman Urrutia frisked appellant and found a coin purse in his pocket which contained dried leaves wrapped in cigarette foil. The dried leaves were sent to the National Bureau of Investigation for examination. The Forensic Chemist found them to be marijuana. Only the appellant, Gabriel Gerente, was apprehended by the police. The other suspects, Fredo and Totoy Echigoren, are still at large. On May 2, 1990, two separate informations were filed by Assistant Provincial Prosecutor Benjamin Caraig against him for Violation of Section 8, Art. II, of R.A. 6425, and for Murder. When arraigned on May 16, 1990, the appellant pleaded not guilty to both charges. A joint trial of the two cases was held. On September 24, 1990, the trial court rendered a decision convicting him of Violation of Section 8 of R.A. 6425 and of Murder. In this appeal of the appellant, the following errors are ascribed to the trial court: 1. the court a quo gravely erred in admitting the marijuana leaves adduced in evidence by the prosecution; and 2. the court a quo gravely erred in convicting the accused-appellant of the crimes charged despite the absence of evidence required to prove his guilt beyond reasonable doubt.
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The appellant contends that the trial court erred in admitting the marijuana leaves as evidence in violation of his constitutional right not to be subjected to illegal search and seizure, for the dried marijuana leaves were seized from him in the course of a warrantless arrest by the police officers. We do not agree. The search of appellant's person and the seizure of the marijuana leaves in his possession were valid because they were incident to a lawful warrantless arrest. Paragraphs (a) and (b), Section 5, Rule 113 of the Revised Rules of Court provide: 'SECTION 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; . . .' The policemen arrested Gerente only some three (3) hours after Gerente and his companions had killed Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime, they found the instruments of death: a piece of wood and a concrete hollow block which the killers had used to bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the happening to the policemen and pinpointed her neighbor, Gerente, as one of the killers. Under those circumstances, since the policemen had personal knowledge of the violent death of Blace and of facts indicating that Gerente and two others had killed him, they could lawfully arrest Gerente without a warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the law as his two companions did. In Umil vs. Ramos, 187 SCRA 311, the arrest of the accused without a warrant was effected one (1) day after he had shot to death two Capcom soldiers. The arrest was held lawful by this Court upon the rationale stated by us in People vs. Malasugui, 63 Phil. 221, 228, thus: "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." The search conducted on Gerente's person was likewise lawful because it was made as an incident to a valid arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court which provides: "SECTION 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." The frisk and search of appellant's person upon his arrest was a permissible precautionary measure of arresting officers to protect themselves, for the person who is about to be arrested may be armed and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual being arrested may be frisked for concealed weapons that may be used against the arresting officer and all unlawful articles found in his person, or within his immediate control may be seized." There is no merit in appellant's allegation that the trial court erred in convicting him of having conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr. Valentin Bernales that the fracture on the back of the victim's skull could have been inflicted by one person only. What Dr. Bernales stated was a mere possibility that only one person dropped the concrete hollow block on the head of the victim, smashing it. That circumstance, even if true, does not absolve the other two co-conspirators in the murder of Blace

for when there is a conspiracy to commit a crime, the act of one conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony of Edna Edwina Reyes, that she overheard the appellant and his companions conspire to kill Blace, that acting in concert, they attacked their victim with a piece of wood and a hollow block and caused his death. "When there is no evidence indicating that the principal witness for the prosecution was moved by improper motive, the presumption is that he was not so moved and his testimony is entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in giving full credit to Edna Reyes' testimony. Appellant's failure to escape (because he was very drunk) is no indicium of his innocence. The Solicitor General correctly pointed out in the appellee's brief that the award of P30,000.00 as civil indemnity for the death of Clarito Blace should be increased to P50,000.00 in accordance with our ruling in People vs. Sison, 189 SCRA 643. WHEREFORE, the appealed decision is hereby AFFIRMED, with modification of the civil indemnity awarded to the heirs of the victim, Clarito Blace, which is hereby increased to P50,000.00. SO ORDERED. Cruz, Bellosillo and Quiason, JJ ., concur.

G.R. No. L-69401 June 23, 1987 RIZAL ALIH, petitioner, vs. MAJOR GENERAL DELFIN C. CASTRO, IN HIS CAPACITY AS COMMANDER SOUTHCOM AND REGIONAL UNIFIED COMMAND, REGION IX, ZAMBOANGA CITY, respondent. CRUZ, J.: On November 25, 1984, a contingent of more than two hundred Philippine marines and elements of the home defense forces raided the compound occupied by the petitioners at Gov. Alvarez street, Zamboanga City, in search of loose firearms, ammunition and other explosives. 1 The military operation was commonly known and dreaded as a "zona," which was not unlike the feared practice of the kempeitai during the Japanese Occupation of rounding up the people in a locality, arresting the persons fingered by a hooded informer, and executing them outright (although the last part is not included in the modern refinement). The initial reaction of the people inside the compound was to resist the invasion with a burst of gunfire. No one was hurt as presumably the purpose was merely to warn the intruders and deter them from entering. Unfortunately, as might be expected in incidents like this, the situation aggravated soon enough. The soldiers returned fire and a bloody shoot-out ensued, resulting in a number of casualties. 2 The besieged compound surrendered the following morning, and sixteen male occupants were arrested, later to be finger-printed, paraffin-tested and photographed over their objection. The military also inventoried and confiscated nine M16 rifles, one M14 rifle, nine rifle grenades, and several rounds of ammunition found in the premises. 3
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On December 21, 1984, the petitioners came to this Court in a petition for prohibition and mandamus with preliminary injunction and restraining order. Their purpose was to recover the articles seized from them, to prevent these from being used as evidence against them, and to challenge their finger-printing, photographing and paraffin-testing as violative of their right against selfincrimination. 4 The Court, treating the petition as an injunction suit with a prayer for the return of the articles alleged to have been illegally seized, referred it for hearing to Judge Omar U. Amin of the regional trial court, Zamboanga City. 5After receiving the testimonial and documentary evidence of the parties, he submitted the report and recommendations on which this opinion is based. 6 The petitioners demand the return of the arms and ammunition on the ground that they were taken without a search warrant as required by the Bill of Rights. This is confirmed by the said report and in fact admitted by the respondents, "but with avoidance. 7 Article IV, Section 3, of the 1973 Constitution, which was in force at the time of the incident in question, provided as follows: Sec. 3. 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 not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, 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. It was also declared in Article IV, Section 4(2) thatSec. 4(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. The respondents, while admitting the absence of the required such warrant, sought to justify their act on the ground that they were acting under superior orders. 8 There was also the suggestion that the measure was necessary because of the aggravation of the peace and order problem generated by the assassination of Mayor Cesar Climaco. 9 Superior orders" cannot, of course, countermand the Constitution. The fact that the petitioners were suspected of the Climaco killing did not excuse the constitutional short-cuts the respondents took. As eloquently affirmed by the U.S. Supreme Court in Ex parte Milligan: 10 The Constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. The precarious state of lawlessness in Zamboanga City at the time in question certainly did not excuse the non-observance of the constitutional guaranty against unreasonable searches and seizures. There was no state of hostilities in the area to justify, assuming it could, the repressions committed therein against the petitioners. It is so easy to say that the petitioners were outlaws and deserved the arbitrary treatment they received to take them into custody; but that is a criminal argument. It is also fallacious. Its obvious flaw lies in the conclusion that the petitioners were unquestionably guilty on the strength alone of unsubstantiated reports that they were stockpiling weapons. The record does not disclose that the petitioners were wanted criminals or fugitives from justice. At the time of the "zona," they were merely suspected of the mayor's

slaying and had not in fact even been investigated for it. As mere suspects, they were presumed innocent and not guilty as summarily pronounced by the military. Indeed, even if were assumed for the sake of argument that they were guilty, they would not have been any less entitled to the protection of the Constitution, which covers both the innocent and the guilty. This is not to say, of course, that the Constitution coddles criminals. What it does simply signify is that, lacking the shield of innocence, the guilty need the armor of the Constitution, to protect them, not from a deserved sentence, but from arbitrary punishment. Every person is entitled to due process. It is no exaggeration that the basest criminal, ranged against the rest of the people who would condemn him outright, is still, under the Bill of Rights, a majority of one. If the respondents did not actually disdain the Constitution when they made their illegal raid, they certainly gave every appearance of doing so. This is truly regrettable for it was incumbent on them, especially during those tense and tindery times, to encourage rather than undermine respect for the law, which it was their duty to uphold. In acting as they did, they also defied the precept that "civilian authority is at all times supreme over the military" so clearly proclaimed in the 1973 Constitution. 11 In the instant case, the respondents simply by-passed the civil courts, which had the authority to determine whether or not there was probable cause to search the petitioner's premises. Instead, they proceeded to make the raid without a search warrant on their own unauthorized determination of the petitioner's guilt. The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They knew where the petitioners were. They had every opportunity to get a search warrant before making the raid. If they were worried that the weapons inside the compound would be spirited away, they could have surrounded the premises in the meantime, as a preventive measure. There was absolutely no reason at all why they should disregard the orderly processes required by the Constitution and instead insist on arbitrarily forcing their way into the petitioner's premises with all the menace of a military invasion. Conceding that the search was truly warrantless, might not the search and seizure be nonetheless considered valid because it was incidental to a legal arrest? Surely not. If all the law enforcement authorities have to do is force their way into any house and then pick up anything they see there on the ground that the occupants are resisting arrest, then we might as well delete the Bill of Rights as a fussy redundancy. When the respondents could have easily obtained a search warrant from any of the TEN civil courts then open and functioning in Zamboanga City, 12 they instead simply barged into the beleaguered premises on the verbal order of their superior officers. One cannot just force his way into any man's house on the illegal orders of a superior, however lofty his rank. Indeed, even the humblest hovel is protected from official intrusion because of the ancient rule, revered in all free regimes, that a man's house is his castle. It may be frail; its roof may shake; the wind may enter; the rain may enter. But the King of England may not enter. All the forces of the Crown dare not cross the threshold of the ruined tenement. 13 If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime about to be committed, being committed, or just committed, what was that crime? There is no allegation in the record of such a justification. Parenthetically, it may be observed that under the Revised Rule 113, Section 5(b),
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the officer making the arrest must have personal knowledge of the ground therefor as stressed in the recent case of People v. Burgos. 14 If follows that as the search of the petitioners' premises was violative of the Constitution, all the firearms and ammunition taken from the raided compound are inadmissible in evidence in any of the proceedings against the petitioners. These articles are "fruits of the poisonous tree. 15 As Judge Learned Hand observed, "Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong, will the wrong be repressed. 16 Pending determination of the legality of such articles, however, they shall remain in custodia legis, subject to such appropriate disposition as the corresponding courts may decide. 17 The objection to the photographing, fingerprinting and paraffin-testing of the petitioners deserves slight comment. The prohibition against self-incrimination applies to testimonial compulsion only. As Justice Holmes put it in Holt v. United States, 18 "The prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." The fearful days of hamleting salvaging, "zona" and other dreaded operations should remain in the past, banished with the secret marshals and their covert license to kill without trial. We must be done with lawlessness in the name of law enforcement. Those who are supposed to uphold the law must not be the first to violate it. As Chief Justice Claudio Teehankee stressed in his concurring opinion in Lacanilao v. De Leon, 19 "It is time that the martial law regime's legacy of the law of force be discarded and that there be a return to the force and rule of law." All of us must exert efforts to make our country truly free and democratic, where every individual is entitled to the full protection of the Constitution and the Bill of Rights can stand as a stolid sentinel for all, the innocent as well as the guilty, including the basest of criminals. WHEREFORE, the search of the petitioners' premises on November 25, 1984, is hereby declared ILLEGAL and all the articles seized as a result thereof are inadmissible in evidence against the petitioners in any proceedings. However, the said articles shall remain in custodia legis pending the outcome of the criminal cases that have been or may later be filed against the petitioners. SO ORDERED. Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur. [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.[3] 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.
[7]

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.[11] About 8:00 later that evening, two men disembarked from a bus and helped each other carry a carton[12] 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.[15] 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.[21] The box yielded pieces of dried fish, beneath which were two bundles, one wrapped in a striped plastic bag[22] 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.[25] 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.[27] 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.[30] 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.
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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.[37] 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.[41] 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.[45] 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.[48] Simultaneously, another man was pointing a firearm at Dindo Bolong at the other side of the street, some eight meters from Tudtud.[49] 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.[54] The suspects were then taken to the police station where, they would later claim, they met each other for the first time.[55] 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.[59] 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.[60] 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.[62] 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.[69] 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:
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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.[73] 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.[78]

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 trisikad[84]sanction State intrusion. The same rule applies to crossing the street per se.[85] 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. Tangliben[88] (accused was acting suspiciously), People v. Malmstedt[89] (a bulge on the accuseds waist), and People v. de Guzman[90] (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 fromBurgos. 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.[98] 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
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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.[100] 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.[101] 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.[103] 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 onthe-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] pale[105] 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? .
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A Because of the information of his neighbor.[107] 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.[108] 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 time[110] 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 Antisubversion 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.[113] 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
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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.[115] 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 chairs[119] 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.[120] 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.[121] 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.[123] 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.[124] 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 inPeople 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.
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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. Bellosillo, (Chairman), Austria-Martinez, and Callejo, Sr., JJ., concur. Quisumbing, J., please see dissenting opinion. [G.R. No. 132662. May 10, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ENRIQUE HINDOY and BELLA B. NEGROSA, accused-appellants. DECISION DAVIDE, JR., C.J.: This is an appeal by accused-appellants Enrique Hindoy (hereafter ENRIQUE) and Bella B. Negrosa (hereafter BELLA) from the decision[1] of 10 November 1994 of the Regional Trial Court of Pasig City, Branch 68, in Criminal Case No. 2674-D and Criminal Case No. 2675-D, finding them guilty beyond reasonable doubt of the crime of violating Sections 4 and 8, Article II of Republic Act No. 6425, as amended by Section 13 of Republic Act No. 7659, and sentencing them in each case to suffer the penalty of reclusion perpetua, with the attending accessory penalties, and to pay the costs of the suit. In two separate informations dated 24 March 1994, ENRIQUE and BELLA were charged with violation of Section 8 and Section 4, Article II of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, which were respectively docketed as Criminal Case No. 2674-D and Criminal Case No. 2675D. The informations allege as follows: Criminal Case No. 2674-D That on or about the 18th day of March, 1994, in the Municipality of Mandaluyong, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the said accused, not being lawfully authorized to possess or otherwise use any prohibited [drug], did then and there willfully, unlawfully and knowingly have in their possession and under their custody and control 12.04 kilograms of compressed dried flowering tops which is a prohibited drug. Contrary to law.[2] Criminal Case No. 2675-D That on or about the 18th day of March, 1994, in the Municipality of Mandaluyong, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the said accused, without having been authorized by law, did then and there willfully, unlawfully and feloniously sell, deliver and give away to another 1.01 kilogram of compressed dried flowering tops (marijuana), a prohibited drug, in violation of the above-cited law. Contrary to law.[3] Based on the separate testimonies of PO3 Roberto Eugenio, SPO4 Jose Antiojo, SPO1 Bayani Prianes, and SPO1 Angel Cariaga, all of the Criminal Investigation Division of the Mandaluyong Police, at around 2 a.m. on 18 March 1994, a woman informant came to the station and reported that a certain Bella of 248 Sto. Rosario St., Mandaluyong, would be receiving a shipment of illegal drugs that day. On the strength of that information, Antiojo organized a team that would conduct a buybust operation. At around 3 a.m., the team, headed by Antiojo himself and guided by the woman informant, went to said address. Eugenio and Cariaga acted as

poseur-buyers, while SPO4 Rolando Cruz, SPO3 Antonio Nato, and Prianes served as backup. They knocked on the door and BELLAs live-in partner ENRIQUE opened it. Eugenio said, May bagong dating, kukuha kami (If theres new stuff, well get some), referring to marijuana. ENRIQUE answered, Meron (Yes, there is) so Eugenio gave him one P500.00 and five P100.00 marked bills. After counting the money, ENRIQUE asked BELLA to get the stuff. She complied and brought a brick of marijuana, with an estimated weight of one kilogram, which was wrapped in newspaper. ENRIQUE, in turn, handed it over to Eugenio. That was when they identified themselves as police officers. After giving the prearranged signal to the backup operatives, he and Cariaga entered the house then announced that they were going to conduct a search. Under a table, they found a bag made of abaca containing twelve more bricks of marijuana. The evidence was marked then turned over to Prianes, who transmitted the same to the NBI for chemical analysis.[4] During the post-operation investigation, however, ENRIQUE and BELLA were not assisted by counsel.[5] Julieta C. Flores, Forensic Chemist II at the National Bureau of Investigation, made a chemical analysis of the seized evidence. Her findings are contained in the Certification[6] dated 20 March 1994 that she prepared in connection with the case. She found the specimens submitted by SPO1 Prianes positive for marijuana. The evidence consisted of (a) one block of compressed dried flowering tops wrapped in newsprint paper weighing 1.01 kilograms; and (b) twelve blocks of compressed dried flowering tops with a combined weight of 12.04 kilograms, which were individually wrapped in newsprint paper and bundled in a white plastic bag, which, in turn, was placed in a green and white bag. ENRIQUE and BELLA denied the accusations and disclaimed the existence of the buy-bust operation. According to BELLA, ENRIQUE arrived at her apartment at around 10 p.m. on 17 March 1994 after spending four days at his aunts wake at Sapang Palay. He drank two bottles of beer then went to sleep. Past 11 p.m., a certain Marilyn knocked at her door and left a bag, which would be picked up at dawn by her neighbor Marites. [7] On cross-examination, however, she could not explain why she never asked Marilyn, a stranger as far as she was concerned, to just drop the bag at the place of Marites; neither did she inquire about its contents.[8] Around 3 a.m. on 18 March 1994, she was awakened by ENRIQUEs brother Renato, who was knocking loudly and asking her to open the door. This point was corroborated by Renato himself and a neighbor, Elino Corpes.[9] She added that when she opened the door, Antiojo entered the room, looking for three boxes of marijuana. A while later, he called his companions, Eugenio, Cariaga, and Prianes. She and ENRIQUE were handcuffed, then the police began searching the room. The police found the abaca bag left by Marilyn, which turned out to be filled with marijuana. The two were then taken to Antiojos office, but at 7 a.m., they were detained at the Mandaluyong Jail. At 11 a.m., a certain police officer named Sta. Maria tried to transfer them to Bicutan. The transfer was, however, rejected and their return to Mandaluyong was ordered, apparently because they were arrested without a warrant. BELLA then heard Sta. Maria say that they would justify the arrest by making it appear that it was a result of a buy-bust operation.[10] ENRIQUE essentially corroborated what BELLA said. He testified that he arrived at his girlfriend BELLAs house at around 10 p.m. on 17 March 1994 after attending the wake of his paternal aunt (whose name he cannot recall) at Sapang Palay. He drank two bottles of beer before sleeping and was awakened early in the morning by three policemen who immediately placed him in handcuffs. They started searching the room and found an abaca bag supposedly containing marijuana. During the police
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investigation, he was allegedly being forced to admit ownership of the marijuana so that his sentence could be lowered. He was taken to the CID detention cell and, around noon, was brought to the Bicutan Narcotics Unit. The police escorts, namely Prianes, a certain Sta. Maria, and the arresting officers, were apparently berated because they had no search and arrest warrants. Thus, they were transferred to the Eastern Police Department in Pasig, and in the morning, taken to Camp Crame where ENRIQUE was threatened, blindfolded, and strangled with his own belt. [11] In its decision[12]of 10 November 1994, the trial court decreed as follows: WHEREFORE, in view of the foregoing, the Court hereby renders judgment finding accused ENRIQUE HINDOY and BELLA NEGROSA GUILTY beyond reasonable doubt of the crimes charged, and hereby imposes the following sentence: 1. In Criminal Case No. 2674-D, applying the provisions of Sections 13 and 20 (should be 21) of Republic Act 7659, and considering the amount of marijuana seized, the penalty of RECLUSION PERPETUA and a fine of FIVE HUNDRED THOUSAND PESOS (P500,000.00); 2. In Criminal Case No. 2675-D, applying the aforementioned provisions of Republic Act 7659, and considering the amount of marijuana seized, the penalty of RECLUSION PERPETUA and a fine of FIVE HUNDRED THOUSAND PESOS (P500,000.00). The Dangerous Drugs Board is hereby ordered to send its representative armed with the proper authority to receive from this Court the subject marijuana for proper disposition within ten (10) days from receipt hereof. Costs against both accused. SO ORDERED. The trial court gave credence to the testimony of the police officers who conducted the buy-bust operation, as corroborated by forensics chemist Flores, and concluded that the circumstances present in these cases impressed upon the Court that, indeed, there was a negotiation conducted between the pushers and the poseurbuyers.[13] It also considered the sworn statement of BELLA where she said, Sa kagustuhan kong masuportahan ang aking mga anak sa una kong asawa na nasa mga magulang kong nasa probinsiya ay pumayag akong tanggapin na pag-iwanan ng nasabing bagay, (In my desire to support my children from my first marriage who are living with my parents in the province, I agreed to safe-keep the said object.)[14] ENRIQUE and BELLA, through counsel, filed their Notice of Appeal[15] on 9 January 1995 but lodged the same with the Court of Appeals. In its Resolution[16] of 20 June 1996, the Court of Appeals, in CA-G.R. CR No. 17394, dismissed the appeal for lack of jurisdiction, since their cases fall within the jurisdiction of the Supreme Court, as clearly stated in Section 5(d), Article VIII of the Constitution and pursuant to Supreme Court Circular No. 2-90, which does not allow transfers of appeals erroneously taken to the Supreme Court or to the Court of Appeals to whichever of these Tribunals has appropriate appellate jurisdiction. Sensing the urgency of rectifying such erroneous filing, BELLA wrote a letter [17] dated 8 October 1996 to the Supreme Court, praying that she be allowed to appeal her case to the Court. The case was docketed as UDK-12220. On 4 June 1997, Atty. Liwayway J. Nazal de los Santos of the Public Attorneys Office filed a Manifestation and Motion,[18] saying that BELLA has a meritorious reason to appeal her case and praying that her appeal be allowed to proceed in the name of substantial and compassionate justice. For its part, the Office of the Solicitor General, in its Comment[19] dated 10 September 1997, made the following observations: (1) the dismissal of BELLAs appeal was a result of her counsels inadvertence, hence, it was

a dismissal based purely on a technicality; (2) counsels error is not entirely implausible; and (3) BELLAs life and liberty were grievously at stake. Taking these submissions into consideration, the Court, in its Resolution[20] dated 22 October 1997, resolved to consider BELLAs appeal to the Court of Appeals as an appeal to this Court; set aside the 20 June 1996 Resolution of the Court of Appeals in CA-G.R. CR No. 17394, dismissing BELLAs appeal; and require the Court of Appeals to elevate the records of the case to the Supreme Court within twenty days from notice. On 4 March 1998, the Court resolved to docket the records of UDK-12220 as a regular appeal, which was docketed as G.R. No. 132662. After the parties had submitted their respective briefs, the Court consolidated these two cases and declared that its earlier Resolution of 22 October 1997 also benefits accusedappellant ENRIQUE. The dismissal of his appeal by the Court of Appeals was thus vacated.[21] In their consolidated brief, ENRIQUE and BELLA made the following assignment of errors: I THE TRIAL COURT ERRED IN FINDING THE SEARCH AND ARREST OF THE TWO (2) ACCUSED-APPELLANTS WITHOUT WARRANT TO FALL UNDER THE DOCTRINE OF WARRANTLESS SEARCH, AN INCIDENT TO A LAWFUL ARREST. II THE COURT A QUO COMMITTED A REVERSIBLE ERROR IN ADMITTING THE COMPRESSED MARIJUANA FLOWERING TOPS ADDUCED IN EVIDENCE BY THE PROSECUTION. In essence, ENRIQUE and BELLA maintain that they could not have committed the crimes charged in the informations because they were sleeping at the time said crimes were allegedly perpetrated. Consequently, the search conducted by the police officers was not incidental to a lawful warrantless arrest. The confiscated contraband was, therefore, inadmissible in evidence against them.[22] After poring over the evidence on record, we are fully convinced that the culpability of ENRIQUE and BELLA for the crimes charged was established beyond reasonable doubt. The testimony of witnesses for the prosecution was not only unwavering but consistent with usual police practice. Furthermore, they absolutely had no ill-motive to incriminate and testify against ENRIQUE and BELLA. It is doctrinally settled that the absence of evidence as to an improper motive strongly tends to sustain the conclusion that none existed and that the testimony is worthy of full faith and credit.
[23]

Moreover, being police officers, they are presumed to have performed their duties regularly, that they acted within the bounds of their authority, unless the contrary is shown.[24] No controverting fact was established by ENRIQUE and BELLA, so the testimony of the prosecution witnesses must be given full faith and credence. The main witness in this case is PO3 Eugenio, the poseur-buyer. His credibility as a witness was never impeached by the defense, and he was able to narrate in detailed fashion the events that eventually led to the apprehension and detention of ENRIQUE and BELLA. Thus, he stated: PROSECUTION: xxx Q: Mr. Witness, you in particular, what was your task? A: I was assigned as poseur buyer, mam. xxx Q: In what particular place in Sto. Rosario did you go? A: At No. 248 Sto. Rosario, mam.
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xxx Q: Whose house was that, if you know? A: House of the accused, mam. Q: Whose accused, there are two (2) accused? A: Enrique Hindoy and Bella Negrosa, mam. Q: Mr. Witness, upon arrival in the said place, what happened, if any? A: We knocked at the door, mam. Q: Were you allowed entry in the said house? A: When we knocked at the door, the two accused opened the door, mam. Q: Who among the accused opened the door? A: Enrique, mam. Q: What did you do in the said house? A: I told Enrique, May bagong dating, kukuha kami, and I gave the buy-bust money, mam. Q: Who among the two of you, you and SPO1 Angel Cariaga stated that kukuha kami? A: I, myself, mam. Q: What about Angel Cariaga, where was he at that time when you said kukuha kami. A: He was beside me, mam. Q: Upon knowing the fact that you will get or buy what was the reaction of Enrique? A: No reaction, mam. Q: Could you be more specific, Mr. Witness, when you stated kukuha kami, to what you are referring to? A: The stuff, mam. Q: What in particular? A: Marijuana, mam. Q: Did you inform this to Enrique that you will buy marijuana from him? A: No, mam. Q: What was the reason why you just stated kukuha kami? A: That is the common parlance in the practice, mam. xxx Q: You said that when you mentioned kukuha kami, accused Enrique Hindoy did not react, what did he do, if any? A: He counted the money, mam. Q: In your presence? A: Yes, mam. Q: After counting the money, what did he do next, if any? A: He requested Bella to get the stuff, mam. Q: Did Bella abide? A: Yes, mam. Q: And where did Bella go when you said that she abided? A: She was also inside the house, mam. Q: Was there a room or also [sic] in the living room? A: Theres no room nor living room, mam. Its only a small house. xxx Q: And when you said Bella took the stuff, was it given to you? A: She gave it to Enrique, mam. Q: And what did Enrique do with the stuff? A: He gave it to me, mam. xxx

Q: When Enrique gave you the block, what did you do if any? A: l looked at it, mam. Q: You mean you inspected the block? A: Yes, mam. Q: Where was it contained? A: It was wrapped in a newspaper, mam. Q: You said you inspected the stuff, what have you found out? A: Its a marijuana, mam. Q: More or less, how much is (sic) the contents of that one whole brick? A: One (1) brick is about a kilo, mam. Q: Upon knowing that it was actually a marijuana wrapped in a newspaper, what have you done, if any to that marijuana? A: I held it, mam. Q: What happened next, if any? A: Then I introduced myself as police officer, mam. Q: What about SPO1 Cariaga, what did he do? A: Together, we identified ourselves as police officers. Q: Upon identification of yourselves as police officers, what happened next, if any? A: We entered the house, mam. Q: The two of you entered the house? A: Yes, mam. Q: What other things have you done, if any? A: We looked for the place where the stuff are being kept, mam. xxx Q: You said that you started searching the place, what have you found out during that search, if any? A: We found one abaca bag, mam. Q: Where was that abaca bag located? A: Under the table, mam. Q: Under the table of whom? A: The table inside the house of the accused, mam. xxx Q: Upon inspection of the said bag, Mr. Witness, could you describe to the Court what have you found out? A: The bag contained another 12 bricks of marijuana.[25] The evidence for the prosecution fully proved beyond reasonable doubt the elements necessary to successfully prosecute a case for the illegal sale of a prohibited drug, namely, (a) identity of the buyer and the seller, the object, and the consideration; and (b) the delivery of the things sold and the payment therefor.[26] After chemical analysis by an NBI forensics expert, the thirteen (13) blocks of suspected marijuana, with a combined weight of 13.05 kilograms, which were found in and seized from the residence of BELLA, were determined to be genuine marijuana.[27] The identity of ENRIQUE and BELLA as the sellers and possessors of the seized marijuana cannot be doubted, for they were caught in flagrante delicto in a standard police buy-bust operation. Such positive identification prevails over their feeble denial and declaration that the abaca bag which contained twelve blocks of marijuana was only left to their custody by a certain Marlyn.[28] Moreover, under the circumstances, it was the duty of the police officers to conduct a more thorough search of the premises after a successful entrapment, then make the necessary arrest of the suspects and seizure of suspected contraband. The search, being incident to a lawful arrest, was valid notwithstanding the absence of a
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warrant. In fact, the warrantless search and seizure, as an incident to a suspects lawful arrest, may extend beyond the person of the one arrested to include the premises or surrounding under his immediate control.[29] It is true that under Section 2, Article III of the 1987 Constitution, The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purposes 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. It is equally true that any evidence obtained in violation of such right shall be inadmissible in evidence.[30] This right, however, is not without exceptions, as in instances of searches incidental to lawful arrests. Under paragraph (a), Section 5, Rule 113 of the Rules of Court, a peace officer may, without a warrant, arrest a person when in his presence the person to be arrested has committed, is actually committing, or is attempting to commit an offense. In the case at bar, upon consummation of the illicit sale, PO3 Eugenio introduced himself and SPO1 Cariaga as police officers. ENRIQUE and BELLA were apprised of their constitutional rights. Thereafter, the officers searched the room where BELLA supposedly got the first block of marijuana. There, they found an abaca bag under a folding table. Upon inspection, the bag yielded twelve more blocks of compressed marijuana inside a plastic bag.[31] The trial court, therefore, was correct in admitting all thirteen blocks of marijuana in evidence. Likewise, the trial court did not err when it convicted ENRIQUE and BELLA of illegal possession of prohibited drugs punishable under Section 8 of R.A. No. 6425, as amended. In People v. Lacerna,[32]possession of marijuana is absorbed in the sale thereof, except where the seller is further apprehended in possession of another quantity of the prohibited drugs not covered by or included in the sale and which are probably intended for some future dealings or use by the seller. The records, indeed, reveal that aside from selling one block of marijuana to the arresting officers, accused-appellants were also caught in possession of another 12.04 kilograms of marijuana in twelve individually wrapped blocks, hidden in a bag under a table in their house. Their possession thereof gives rise to a disputable presumption under Section 3[j], Rule 131 of the Rules of Court, that they were the owners of the same. Said provision states as follows: Sec. 3. Disputable Presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxx (j) xxx, that things which a person possesses, or exercises acts of ownership over, are owned by him; The uncorroborated assertion of ENRIQUE and BELLA that the abaca bag belongs to a certain Marlyn who left it in their care[33] amounts to a bare denial which, by itself, is insufficient to overcome this legal presumption. WHEREFORE, the decision of 10 November 1994 of the Regional Trial Court of Pasig City, Branch 68, in Criminal Case No. 2674-D and Criminal Case No. 2675-D, finding accused-appellants ENRIQUE HINDOY and BELLA B. NEGROSA guilty beyond reasonable doubt of violating Sections 8 and 4, Article II of Republic Act No. 6425, as amended by Section 13 of Republic Act No. 7659, and sentencing them in each case to suffer the penalty of reclusion perpetua with the attending accessory penalties, and to pay the costs of the suit, is hereby AFFIRMED in toto. Costs against accused-appellants. SO ORDERED.

Puno, Kapunan, and Pardo, JJ., concur. Ynares-Santiago, J., on official leave. [G.R. No. 141943-45. November 13 ,2002] THE PEOPLE OF THE PHILIPPINES, appellee, vs. DIOSDADO RECEPCION Y PALASO (deceased), FELIPE DELA CRUZ Y REYES, AUDIE DONA Y BINAN, ALFREDO BARACAS Y CONCEPCION, EDUARDO PALACPAC Y ROSALES, BERNARDO RANARA Y MORATALLA (at large), JOEMARI DELOS REYES Y CONCEPCION, DOMINADOR RECEPCION Y PALASO and ROBERT ALFONSO Y MARTIZANO, appellants. DECISION VITUG, J.: Five innocent men met their sudden death at a not-so-forlorn corner of Caloocan City when a group of malefactors, without apparent provocation or reason, had cast their terror on the early morning of 28 July 1999. Eight1 persons were charged with multiple murder, violation of Presidential Decree (P.D.) No. 1866,2 and robbery in band in three separate accusatory Informations that read: In Criminal Case No. 57208 That on or about 1:15 oclock a.m. of July 28, 1999 in Caloocan City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping each other, did then and there willfully, unlawfully and feloniously, with intent to kill, evident premeditation and treachery after posing as customers and armed with unlicensed handguns entered Sabungan Fastfood & Videoke and once inside, without any provocation from anyone suddenly, unexpectedly and in totally senseless and surprising act or rampage attacked, assaulted and shot five (5) customers, namely: Benjamin E. Valdez, Rodolfo O. Ortega, Augusto A. Billodo, Ruperto S. San Juan and Renato T. Cleofas, Sr., thereby hitting and mortally wounding the said five (5) persons causing their instantaneous death.3 In Criminal Case No. 57209 -That on or about 1:00 to 3:00 A.M. or thereabout, on July 28, 1999 in Caloocan City, Philippines, and within the jurisdiction of this Honorable court, the above-named accused had in their possession, custody and control the following firearms/handguns loaded with ammunitions to wit: a. One (1) Cal. 38 Armscor SN-760006; b. One (1) Cal. 38 Armscor SN-51 900; c. One (1) Cal. 38 Armscor SN-51952; d. One (1) Cal. 38 Squires Bingham SN-1095906; e. One (1) Pistol 9mm Noringco SN-861406966; f. Fifty-two (52) pcs. Cal. 38 live ammunitions; g. Twenty eight (28) pcs. 9 MM live ammunitions; h. Eight (8) pcs. Cal. 38 empty shells, without the necessary license or authority as required by law and which firearms were used in the commission of multiple murder (killing of five persons, namely: Benjamin E. Valdez, Rodolfo D. Ortega, Augusto A. Billodo, Ruperto S. San Juan and Renato T. Cleofas, Sr. at Sabungan Fastfood & Videoke, which is within the jurisdiction of this Honorable Court).4 In Criminal Case No. 57210 That on or about 1:15 A.M. on July 28, 1999 in Caloocan City, Philippines, and within the jurisdiction of this Honorable court, the above-named accused, acting in concert, conspiring, confederating and mutually helping one another, with intent of gain, by means of force, threats, violence or intimidation, and immediately after accused
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totally unprovoked and unexpected shooting rampage, which resulted in the death of several customers, did then and there willfully, unlawfully and feloniously, with the use of their unlicensed firearm, forcibly and violently take, divest, and carry away from LENY GATICA, FREDEBERT DADON, DENNIS SERRANO and RODEL FESARIT, the following cash and personal belongings, namely: a lady bracelet worth P3,500.00, three (3) men wristwatches worth P7,500.00 and the establishment earnings of P5,000.00, to the loss, damage and prejudice of the above-named owner/s.5 The indictees, when arraigned, pled not guilty to all the charges. The cases were tried jointly. The Version of the Prosecution Marie Flamiano was a waitress at Sabungan Fastfood and Videoke Pub, located along Samson Road, in Caloocan City. At about one-thirty on the morning of 28 July 1999, she was attending to customers when seven men, she identified to be Diosdado Recepcion, Alfredo Baracas, Joemari delos Reyes, Bernardo Ranara, Dominador Recepcion, Robert Alfonso and Audie Dona, entered the pub while one was tailing behind at the entrance. The men occupied table 12 and ordered beer from waitress Eliza Bautista. A few minutes later, three men from the group transferred to table 10. Just as Marie was approaching table 13 to get the microphone from a customer, one of the men stood up and fired his gun at another customer. Marie identified this gunman to be Alfredo Baracas. Eliza Bautista, the waitress who served the group, among them Diosdado Recepcion, Robert Alfonso, Audie Dona, Alfredo Baracas, Eduardo Palacpac, Joemari delos Reyes and Dominador Recepcion, saw another man pull out a gun and shot a customer, Rodolfo Ortega, while on his knees. The women later identified the gunman to be Diosdado Recepcion. Rosalia Juanica, a co-waitress who had meanwhile dashed out and hid at the nearby St. Joseph Store, saw Rodolfo Ortega, kneeling with both hands raised in plea, but one of the men, she likewise identified to be Diosdado Recepcion, fired his gun at pointblank range. Jojo Paraiso was with his co-security guards having a drinking spree when a group of armed men, started shooting. Some of the men shouted, dapa, but Jojos companion, Benjamin Valdez, unfortunately took a bullet shot before he could get the chance to heed the warning. Jojo identified the person who fired at Valdez to be Robert Alfonso. He hid under the table and could only watch the men gone berserk. The last of the gunmen who left the pub, still firing his gun, was Joemari delos Reyes. Jhosa Reyes, a waitress at the A & E Kitchenette just across the Sabungan, saw the gunmen and their cohorts scamper away after the shooting incident. She recognized three of the gunmen, Robert Alfonso, Joemari delos Reyes and Eduardo Palacpac, as being regular customers at the A & E Kitchenette. Shortly before the shooting, Alfonso, delos Reyes, Palacpac and another companion were drinking at the kitchenette but soon headed towards the alley near the pub. Found sprawled on the floor, when the shooting finally stopped, were the lifeless bodies of five men - Benjamin Valdez, Augusto Billodo, Renato Cleofas, Rodolfo Ortega and Ruperto San Juan. Ruben Labjata, a jeepney driver, was waiting for passengers at Dagohoy Street, Caloocan City, when he heard gunshots. He was about to leave with only a few passengers when, unexpectedly, three men arrived and ordered all the passengers to get off the vehicle. The men menacingly pointed their guns at Labjata and ordered him to drive. Moments later, five more men boarded his jeepney. Three of the men stayed with the driver at the front seat while the other five sat at the rear. The group directed Labjata to drive towards Monumento and then to EDSA. After

stopping briefly at Petron Station to refuel, the group proceeded to Quezon City. At a 7-11 convenience store in Tandang Sora, some of the men alighted from the vehicle. More gunshots were fired. Boarding once again the jeepney, the men told Labjata to go north until they finally reached, hours later, Paniqui, Tarlac. At Paniqui, the men debated on the drivers fate. After hearing one suggest that he should be killed (tumba), Labjata panicked and begged the group to spare him -maawa po kayo, may pamilya po ako. One of the men allowed him to go home with a warning that he should not report the incident to the police. In open court, he identified the malefactors to be Audie Dona, Alfredo Baracas, Diosdado Recepcion, Bernardo Ranara, Eduardo Palacpac, Dominador Recepcion, Joemari delos Reyes and Robert Alfonso. Conrado Marquez, a tricycle driver, was waiting for passengers along the highway of Paniqui, Tarlac, when he saw a group of men alight from a dirty jeepney. Four of the men rode in his tricycle, while the other four took two more tricycles. Marquez brought the group to Brgy. Coral, Ramos, Tarlac. Around lunchtime on 29 July 1999, the Bulacan Police invited Ruben Labjata for questioning. Taken by police authorities to Tarlac, he pointed to the exact place where the armed men got off from his vehicle. Conrado Marquez, likewise invited by the police for interrogation, readily informed the police of the place where he brought the men who hired his tricycle. The police promptly cordoned the area and the group, along with FO1 Felipe dela Cruz, surrendered after several calls by the police. Taken into custody were Felipe dela Cruz, Joemari delos Reyes, Audie Dona, Alfredo Baracas, Eduardo Palacpac, Bernardo Ranara, Robert Alfonso, and Dominador Recepcion. Diosdado Recepcion, then a special agent of the Narcotics Command, was intercepted at the national highway of Cuyapo, Nueva Ecija, on board a tricycle. At the Tarlac Police Station, Labjata identified his passengers, namely, Audie Dona, Alfredo Baracas, Diosdado Recepcion, Bernardo Ranara, Eduardo Palacpac, Dominador Recepcion, Joemari delos Reyes and Robert Alfonso. Diosdado Recepcion, Felipe dela Cruz, Audie Dona, Alfredo Baracas, Eduardo Palacpac, Bernardo Ranara, Joemari delos Reyes, Dominador Recepcion, and Roberto Alfonso were charged with multiple murder, violation of P.D. No. 1866, and robbery in band before the Regional Trial Court, National Capital Region, Branch 129, Caloocan City. The incident that occurred at the 7-11 convenience store also spawned several separate criminal informations (not involved in the instant cases under review). During the trial, Diosdado Recepcion died in an escape attempt, while accused Bernardo Ranara escaped and remained at large. The Version of the Defense The defense interposed alibi. According to Dominador Recepcion, he was, at the time of the reported shooting incident, fast asleep at Greenwoods Subdivision in Cainta, Rizal, where he was a construction worker. His co-workers were Eduardo Palacpac and Robert Alfonso. On the evening of 27 July 1999, the trio went to Pansi, Paniqui, Tarlac, to help Dominador Recepcions nephew, Joemari delos Reyes, find a job. It was after one oclock in the afternoon when Joemari brought them to the house of his cousin FO1 Felipe dela Cruz. Joemari delos Reyes testified that, on the afternoon of 28 July 1999, he was at home when his uncle Dominador Recepcion arrived with Robert Alfonso and Eduardo Palacpac. He brought his guests to the house of Felipe dela Cruz where they partook of beer. Felipe dela Cruz stated that on 28 July 1999, about one oclock in the afternoon, his father fetched him from a cousins house. When he arrived home, he was met by
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Joemari delos Reyes along with the latters companions, namely, Eduardo Palacpac, Robert Alfonso, and Dominador Recepcion. In the evening of the same day, about eight oclock, he invited his visitors to join him in attending a wake just a few meters away, and they stayed there until dawn. The following morning of 29 July 1999, policemen arrived and cordoned his house. He was arrested together with Joemari delos Reyes, Audie Dona and Alfredo Baracas. During a series of questioning at the Caloocan Police Station, dela Cruz insisted that he was attending a wake at the time the shooting incident occurred in Caloocan City. Audie Dona said that on 28 July 1999, he and his friend Alfredo Baracas, went to Pansi, Ramos, Tarlac, to visit his cousin Joemari delos Reyes and to get some fresh fish and vegetables. When he did not find Joemari at his house, he and Baracas proceeded to the place of dela Cruz where they were invited to join the group of Felipe dela Cruz, Joemari delos Reyes, Eduardo Palacpac, and Dominador Recepcion in a drinking spree. Dona and Baracas stayed until nine oclock in the evening when they repaired to the house of Joemari to spend the night. On 29 July 1999, he and Baracas went back to see dela Cruz but found Joemari still sleeping. The two dozed off while waiting for Joemari to wake up until they all found themselves surrounded by the police. When the trial was over and weighing the evidence before it, the court a quo found the several accused guilty in Criminal Case No. C-57208 for multiple murder but acquitted them in Criminal Case No. C-57209 for the charge of illegal possession of firearm and Criminal Case No. 57210 for robbery in band because of insufficiency of evidence. The trial court adjudged thusly: WHEREFORE, premises considered, this Court finds the following accused GUILTY beyond reasonable doubt of Multiple Murder in Criminal Case No. C-57208, as defined and penalized under Art. 248 of the Revised Penal Code, as amended by Section 6 of Rep. Act No. 7659: 1. Audie Dona 2. Alfredo Baracas 3. Bernardo Ranara (escaped) 4. Eduardo Palacpac 5. Dominador Recepcion 6. Joemari delos Reyes 7. Robert Alfonso Accordingly, the 7 above-named accused shall each serve the penalty of DEATH FIVE (5) TIMES OVER corresponding to the 5 victims they murdered. By way of civil liabilities, the 7 above-named accused shall jointly and severally pay the following amounts of money to the following complaining witnesses, without subsidiary imprisonment in case of insolvency: 1. Divina Ortega a) Death Indemnity P 50,000.00 b) Moral Damages 100,000.00 c) Funeral expense 20,000.00 TOTAL 170,000.00 2. Virginia Cleofas a) Death Indemnity P 50,000.00 b) Moral Damages 100,000.00 c) Funeral expense 20,000.00 TOTAL 170,000.00 3. Jocelyn Valdez a) Death Indemnity P 50,000.00 b) Moral Damages 100,000.00

c) Funeral expense 36,000.00 TOTAL 186,000.00 4. Estella Ablong San Juan a) Death Indemnity P 50,000.00 b) Moral Damages 100,000.00 c) Funeral expense 17,500.00 TOTAL 167,500.00 5. Heirs of Augusto Billodo a) Death Indemnity P 50,000.00 b) Moral Damages 100,000.00 TOTAL - 150,000.00 or the aggregate amount of P843,500.00. Considering that the accused Diosdado Recepcion is now deceased, he is hereby dropped from these cases, pursuant to Article 89 of the Revised Penal Code. Considering also that the accused Bernardo Ranara is now at large after having escaped on November 22, 1999, let an Order of Arrest be issued against him for the service of his sentence in Criminal Case No. C-57208 for Multiple Murder. As an Accessory to Multiple Murder under Article 19 of the Revised Penal Code, the accused FOl Felipe dela Cruz shall serve the indeterminate penalty of imprisonment from 10 years and 1 day of Prision Mayor, as minimum, to 17 years, 4 months and 1 day of Reclusion Temporal, as maximum, with all the accessory penalties under the law and shall pay the costs. Criminal Case No. C-57209 for Illegal Possession of Firearms is ordered dismissed, the filing thereof being unnecessary, pursuant to Section 1 of Rep. Act No. 8294. Criminal Case No. C-57210 for Robbery in Band is likewise ordered dismissed for insufficiency of evidence. The Branch Clerk of this Court shall now issue the corresponding Commitment Order to the Director, Bureau of Corrections, thru the City Jail Warden of Quezon City. Pursuant to Section 22 of Rep. Act 7659, the Branch Clerk shall elevate the complete records of this case to the Honorable Supreme Court within 20 days but not earlier than 15 days after this promulgation, for automatic review.6 The capital punishment having been imposed on herein appellants for the crime of multiple murder, the case was elevated to this Court for automatic review. In their brief, appellants ascribed to the trial court a number of alleged errors but, by and large, they focused on the issue of credibility of the witnesses and the imposition of the death penalty. Appellants argue that the witnesses presented by the prosecution have committed several inconsistencies, mainly on the identities of the gunmen, said to be well enough to discredit their testimony. The poor lighting condition of the pub, they claim, could have easily blurred the vision of the witnesses frustrating any clear identification of the assailants. The defense also belabors the finding of conspiracy and, in general, of their conviction by the trial court. In criminal cases, particularly where the capital punishment is imposed, this Court takes a most painstaking effort to ascertain the guilt or innocence of the convicted accused. Nevertheless, it has long been a standing rule that the findings on the credibility of witnesses by the trial court are hardly disturbed on appeal. The appellate court adheres to such deference in view of the vantage that a trial court enjoys in its reception of testimonial evidence, It is only when there evidently are matters of substance that have been overlooked that an appellate court would feel justified to ignore the evaluation and assessment made by the trial court on such
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evidence. Looking closely at the records, nothing significant is disclosed to warrant a reversal of the rule. Observe thusly Testimony of Eliza Bautista Q Miss Bautista, you said you are a waitress of Sabungan Fastfood and Videoke? A Yes, sir. Q And as such, one of your duties is to serve food, drinks or whatever to your customers? A Yes, sir. Fiscal Daosos Q Did you recall if you reported for work sometime at around 12 to 1:00 oclock midnight at Sabungan Fastfood on July 28, 1999? A Yes, sir. I was there, sir. xxx xxx xxx Fiscal Daosos Q Alright. You said you have 2 customers in the name of San Juan and Ortega. And then, you said also you pointed to the group of the accused and you said that they were [y]our last customers. Alright, more or less, what time did [these] new customers or last customers of yours arrived? A 1:15 a.m., sir. xxx xxx xxx Q Now, when you saw them entering the Sabungan Restaurant, what if any did you do being a waitress? A After they entered together, they ordered 7 beers. So, I served 7 beers and then occupied a table and after occupying the table, the 3 transferred to another table, sir. xxx xxx xxx Q Lets go back Miss Bautista to your last customers. You said that you served beer to 7 customers and you said they were your last and in fact, you just pointed them because they are here, is that correct? A Yes, sir. Interpreter Witness pointing to the accused. Fiscal Daosos Q Alright. How are you so sure that they were the last customers on that early morning of July 28, 1999 at around 1:20 in the morning? A Because I was the one serving them and I was able to talk to them, sir. Q Can you recall who among the 7 whom you talked with first? A That one, sir. Interpreter As witness pointing to the person who identified himself as Robert Alfonso when asked. Fiscal Daosos Q Was he also the one who ordered beer from you? A That one, sir. He was the one who ordered the 7 beers. Interpreter As witness pointing to the person who ordered 7 beers and identified himself as Audie Dona. xxx xxx xxx

Fiscal Daosos Q Is there anything unusual that happened? Court Answer. A I did not notice anything unusual when I served beer, sir. Because after I gave them a bottle of beer, after that they have put their beers on a glass, sir. xxx xxx xxx Q After pouring beer to their glass, what else happened? A Nothing happened, sir. They just sat [there]. Q Alright. You said that Ortega and San Juan [were] shot dead. Now, would you know or recall who shot Ortega and San Juan? A I know who shot Ortega. But I dont know who shot San Juan, sir. Q Alright, who shot Ortega? A That man, sir. Interpreter Witness pointing to a person who identified himself as Diosdado Recepcion when asked. xxx xxx xxx Fiscal Daosos Q Alright. We go back Miss Witness to the 7 customers that you served beer. Now, [these] 7 customers that you [said] became your last customer[s] that evening, would you be able to identify or recognize their faces if you see them again? A Yes, sir. xxx xxx xxx Court Teka, isa-isahin mo. Sige. Interpreter As witness pointing to Diosdado Recepcion, Alfredo Baracas, Audie Dona, Robert Alfonso, Eduardo Palacpac, Joemari delos Reyes, Dominador Recepcion. Fiscal Daosos Q Thank you Miss Witness. Alright, Miss Bautista, do you recall if all or anyone of these 7 customers that you have just identified were old or former customers of Sabungan Restaurant? A Not our former customers, sir.7 Testimony of Marie Flamiano Asst. Chief Pros. Mariano Ms. Witness, you said you are a waitress at Sabungan Restaurant, how long have you been a waitress thereat? A For 7 months, now, sir. Q Do you remember having reported for work on the evening of July 27, 1999? A Yes, sir. Q And what is your working hours at the Sabungan Restaurant? A From 6:00 p.m., sir. Q In the evening of July 27, 1999? A 6:00 p.m., sir. Q Up to what time? A Up to 2:00 a.m., sir. Q In the early morning of July 28, 1999 at about 1:20, do you recall of any unusual incident that occurred in Sabungan Restaurant?
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A Yes, sir. Q What was that incident? A They shot somebody, sir. Q Who shot somebody? A They are here in Court, sir. Q Whom did you see shooting somebody at that time? A Para silang walang awang namaril.. Atty. Ongteco Your Honor, the answer is irresponsive. Court Let it remain, just answer what is being asked of you. Asst. Chief Pros. Mariano You said that there were persons who shot individuals in Sabungan, how many were they? A Seven (7), sir. Q Now, if they are here in Court, will you be able to recognize them? A Yes, sir. Q Will you point to them if they are here in Court? Interpreter Witness is pointing to 7 male persons inside this Courtroom, who when asked their names, answered..Diosdado Recepcion, Alfredo Baracas, Joemari delos Reyes, Bernardo Ranara, Dominador Recepcion, Robert Alfonso and Audie Dona. Asst. Chief Pros. Mariano These 7 persons whom you identified, do you know what particular acts they did at the Sabungan incident? A They were shooting. xxx xxx xxx Q Aside from the fact that you saw them with guns, what else did you see? A I saw the dead person outside, that person was already kneeling and begging for life but they still killed that person. Q And do you know who shot that person who was already kneeling? A The first person I pointed out in Court. Q And you are referring to? A Diosdado Recepcion, sir.8 On cross-examination, this witness elaborated: Q And what could be your basis in pointing to Diosdado Recepcion as well as to accused Alfredo Baracas and the rest, when you did not see who shot whom? A Because I saw them, sir. Q How far were you from these two accused that I mentioned during the shooting incident? A About 7 to 8 meters, sir. Q At that time the shooting incident occurred, what was your duty, if ever? A Because it was almost our closing time, I was just sitting, I have nobody to serve. Q When these 7 persons entered, were there other customers in the establishment? A Yes, sir. xxx xxx xxx Q In other words, when you scampered outside, you did not see with particularity the accused shooting the victim, is that correct? A While I was running, I saw them, they were shooting the victims, sir.

Q You mean to tell me that during the time you were running outside, your head was turning back to where the accused were situated shooting? A Yes, sir. (Witness is pointing as to the direction of the door of the restaurant) Q With that distance you are pointing to, to the corner of this room, you could have not ascertain[ed] Mr. Diosdado Recepcion holding a gun and shooting at somebody, is that correct? A I saw him, sir. Q In fact in your testimony, you cannot identify whether it was a short gun or a long gun? A Yes, sir, I could not identify the kind of guns they were using. Q Because you became very scared, frightened and nervous that is why you scampered outside? A Yes, sir. Q And also because of that nervousness and fright that you experienced, you are in doubt whether it was really Diosdado Recepcion whom you saw? A I saw him sir. (Siya po). Q That incident on July 28, 1999 was the first time that you saw this person whom you pointed as Diosdado Recepcion, is that right? A Yes, sir. Q So, how can you be very sure that it was him who was holding a gun and shooting at somebody when you said that was the first time that you saw him and your distance was quite far and likewise you cannot determine or ascertain whether he was holding a long gun or short gun? A Because I saw them standing, sir. Q You mean to tell me that aside from Diosdado Recepcion, all the 7 accused were all standing? A Yes, sir, they were all standing. Q And you also would like to impress before this Court that all the 7 accused were holding a gun and were all standing and were all shooting at somebody? A I am not sure but all of them stood up and shot somebody.9 Testimony of Jojo Paraiso Q Now, on the said date, July 28, 1999 at around 1:30 in the morning, do you still remember your whereabouts? A Yes, sir. Q Where were you? A I was at Sabungan Restaurant, sir. Q Accordingly, you were on duty on said date, July 28, 1999. Why were you at Sabungan Fastfood? A I was already off-duty at that time, sir. Q Now, who were with you at Sabungan Restaurant, if any? A We were 5, sir. Q Please tell us their names or some of them? A Our Asst. OIC, Benjamin Valdez, Fisaret, Daniel Aycardo, Jimmy Serrano and myself, sir. Q Would I get from you that all these companions of yours were also security guards? A Yes, sir. Fiscal Bajar While you and your 4 other companions were inside the Sabungan Restaurant on July 28, 1999 at around 1:30 in the early morning, do you remember any unusual incident that happened inside or outside thereat? A Yes, sir.
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Q But before that, what were you and your other 4 companions doing at the Sabungan Restaurant on the wee-hours of July 28, 1999? A We were having a drinking spree, sir. Q What was that unusual incident that happened inside the Sabungan Restaurant? A A shooting incident suddenly took place and then we dropped ourselves on the ground because of that shooting incident, sir. Q But before that shooting incident, do you recall what particular place inside the Sabungan Restaurant were you seated? A Yes, sir. Q Where were you particularly seated? A Near the side of the Sabungan Fastfood and we were in front of the videoke machine, sir. Q When you said in front you were just very near? A Yes, sir. Q Now, [was] there any other persons inside the Sabungan Fastfood aside from you and your companions? A Yes, sir. Q How many, if you remember? A We were 9, sir. Court And aside from the 5 of them? A There were 9 customers in all in that restaurant, sir. Court Q Including you or excluding you? A Including me, sir. We were 9 customers. Fiscal Bajar Q How about the non-customers? A 7, sir. Q And what were [these] non-customers doing inside the Sabungan Restaurant? A They also ordered beer and they also posed as customers, sir. But they were not able to drink beer and when they ordered they already fired their guns, sir. Fiscal Bajar Q Now, where were [these] other non-customers who were ordering beers situated inside the Sabungan Restaurant in relation to where you were seated? A They positioned themselves at the center of the videoke machine but at first they were together and then they ordered, the 3 separated from the group, sir. Q And how far was your table from this table of the non-customers? A About 3 meters away from our table, sir. xxx xxx xxx Fiscal Bajar Q Okay. Now, after the group parted ways and the 3 occupied another table, what happened? A 3 minutes after, the 3 separated from the group and the shooting started, sir. Q And where did the shooting come from? A From the 3 persons who separated from the group, sir. Q Why did you say that it came from the 3 persons? A Because after hearing the first shot, I looked at that direction, sir. Q And were you able to see the firearms used in firing the shots? A I saw a light or spark that came out from the nozzle of the gun after I heard the shot, sir.

Q And to what direction does the firing directed or pointed to? A To the persons they shot, sir. Q Where were [these] persons firing located? A They were seated because they were also drinking, sir. Q In relation to where you were seated and drinking, where were these persons located? A They were at the side of the restaurant and near the table who fired the shots, sir. Q And how many table[s] were [occupied by these] persons and to where the firing was directed? A Only one (1), sir. xxx xxx xxx Fiscal Bajar Q Now, how many shots did you hear? A Many, sir. And I could not count it, sir. Q And how about you, what did you do when you heard this successive shots from the table of this 3 persons? A One of them shouted dapa, that is why I hid myself under the table, sir. Q Now, how about your other 4 companions, what did they do after you dropped yourself [on] the ground? A The other one who was shot remained seated in front of his table. But my other 3 companions docked on the table, sir. Q And what happened to that person who was shot? That [lone] person that according to you who was shot? A He died, sir. Q And after you have yuko, did you notice what happened next? A I looked outside, sir. And then I found out that my [companion was] shot and then the one beside him was shot next, sir. Q Now, where did this person who shot your companions come from because, according to you, you were looking outside? A That person who shot my companion was near the table of my other companion that was shot and the distance of my companion from the one who shot him was only about a meter away, sir. Q When you said companion who was shot, you referring to the one who transferred to another table? A Yes, sir. Our companion, sir. xxx xxx xxx Q So, after you saw your companions shot, what did you do, if any? A I remained there under the table but sometimes I would look and sometimes I would bow my head. Q And to whom were you looking at? A To our companions, sir. Q And do you remember how many times [you performed] that yuko, tingin, yuko, tingin? A Whenever I noticed that they were looking at me, I [would] look down or bow my head, sir. Court What do you mean they? A The one who [shot] my companions, your Honor. Fiscal Bajar
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Q And how far was this person who [shot] your companions from you who was looking at him and to the one who looked at you? A About 4 meters, sir. Q Now, if that person is in Court, would you be able to identify him? A Yes, sir. Q Please point to him if he is around? You [tap] his shoulder, if you want? A Yes, sir. This one, sir. Interpreter Witness tapped the shoulder of Robert Alfonso. xxx xxx xxx Q Could you recognize anyone of them? A The one who shot our companions and he was with the 4 persons in that table, sir. Q So, the question is if you have recognized anyone of the persons who remained in the table? A Yes, sir. The one who came out last after the shooting, sir. But when he came out he fired a gun. Q If that last person you saw was on their way out from the Sabungan Restaurant is in Court, can you point to him? Please step down and tap the shoulder if he is around? A Yes, sir. This one, sir. Interpreter As witness stepped down from the witness stand and tapped the shoulder of the accused Joemari Delos Reyes. xxx xxx xxx Q Now, please demonstrate to us how your companion was shot by Robert Alfonso? A Like this, sir. The accused was in the standing position when he fired [at] my companion at a distance of one (1) meter. And after shooting my companion, that gun man fired again at a man beside my companion, sir. Q And what was the position of your companion when he was fired upon? A He was seated, sir. Q And what was then your position when you saw your companion being shot? A I was under the table but I was looking at their direction, sir.10 On cross-examination, Paraiso continued: Q Mr. Witness, you said that the shooting incident happened at 1:30 in the early morning of July 28, 1999. What time did you start drinking at the Sabungan Restaurant? A About 12:45 a.m., sir. Q How many bottles of what were you drinking? A Beer, sir. Q How many bottles of beer have you already consumed? A During the shooting incident 2 bottles, sir. Q Now, according also to you it was the 3 men who separated from the larger group [who] transferred to another table? A Yes, sir. Q And it was after about 15 minutes that one of them started shooting? A Yes, sir. xxx xxx xxx

Q How did you position yourself when you hid yourself under the table? How did you position yourself? Did the table completely cover you? A The table completely covered me, sir. Q Could you say that you were not shot because you were not seen by the gunman? A Yes, sir. I know that they did not notice me there under the table, sir. Maybe if they noticed me that I was there under the table looking at them, maybe they would shoot me, sir. Q So, we can presume that you were not shot because you were not seen by the gunman? A Yes, sir. Q You were not seen because the table was about 3 x 3 ft. Do you mean to tell us Mr. Witness that 3 ft. x 3 ft. table was able to accommodate all 5 of you? A Yes, sir. Q Now, you were also not seen by the gunman because the table was covered by the table cloth? A No cover, sir. Q You felt that at that time that you present yourself under the table was not detected by the gunman because none of them noticed you under the table? A I know that I was [not] noticed by them, sir. Because they have noticed me under the table and they know that I was looking at them, they will shoot me, sir.11 Testimony of Jhosa Reyes Q In the early morning of July 28, 1999, do you remember of any unusual incident that happened at your place of work? A Yes, sir. Q What was that incident, if you can still recall? A There was a shooting incident, sir. Q Where was that shooting incident? A In Sabungan, sir, in front of the place where I work. Q How far is that Sabungan from your place of work? A Across the highway, sir. Q Do you know who were the persons who fired their guns at Sabungan? A Yes, sir. Q Why do you know these persons? A Because the persons who fired their guns were our customers first before they transferred to Sabungan, sir. Q How often do you see these persons at your dining place? A Twice, sir. Q When was the first time that you saw them? A Every week, sir. Q What were they doing when they [went] to your place? A They [drank], sir. Q How many are these persons, if your can remember? A Because the 3 persons used to go to our place but recently they were 4 already but the other one was not drinking, sir, just [went] back and forth. Q These customers whom you said were the ones who started shooting at Sabungan, who were these persons, if you know? A I was able to recognize Ricky, Edwin. Q Who else? I thought you said there were 4 of them. Court The question [was], who fired the gun? FISCAL MARIANO Q Who were these persons who fired the gun?
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Court Ricky, Edwin, sino pa? Witness Those are the only two but almost all of them, Your Honor. Fiscal Mariano If they are in Courtroom, will you be able to identify them? A Yes, sir. Q Please point them out. Atty. Ongteco May we request that the witness tell the Court who is Ricky, Edwin? Court Unahin si Ricky. Tumayo ang itinuro. Mr. dela Cruz Witness pointed to a person who when asked of his name, answered to the name of Robert Alfonso. Court Sino pa? Iyong bumaril, ha? Mr. dela Cruz Witness pointed to a person who when asked of his name answered to the name of Joemari delos Reyes. Court Sino pa? Mr. dela Cruz Witness pointed to a person who when asked of his name answered to the name of Eduardo Palacpac.12 Testimony of Ruben Labiata Q Mr. Labjata, will you tell this Honorable Court where were you in the early morning of July 28, 1999? A I was in Dagohoy with my jeepney waiting for passengers, sir. Q More or less, what time was that when you were with your jeep and waiting for passengers? A Between twelve and one a.m., sir. Q Do you recall, Mr. Labjata, of any unusual incident that occurred while waiting for passengers inside your jeepney? A While my jeep was parked there, I heard gunshots, sir. Q What else, if any, happened? A I was about to leave then and I have already passengers when some people suddenly arrived, sir. xxx xxx xxx Q Did you, if you did notice if the 3 men who ordered immediately to let your passengers get off the jeep, if they were armed? Atty. Ongteco The same objection. Court Same ruling, you are practically telling the witness that they were armed. Fiscal Daosos Q Alright, while the 3 ordered you, did you notice anything, if you did any? A They were armed with guns, sir. Q What kind of guns, are they long arms or short arms? A Short arms, sir.

xxx

xxx xxx Q Other than the 3 were there other persons who boarded your jeep? Atty. Ongteco Same objection. Court I will allow that. Atty. Ongteco But that is the same banana because according to the witness, the 3 persons ordered the other passengers of the jeep to alight. Court That was ordering the passengers to alight. The question now is, were there other persons who boarded your jeep. I will allow that. Answer that. Witness When they told me to start the jeep, there were some persons who boarded the jeep, sir. Fiscal Daosos Q Can you also tell the Honorable Court briefly what was the condition of this other group who also boarded? A They were also holding guns, sir. Q More or less, how many of them, the one[s] that boarded again? A When I start[ed] the engine or already driving the jeep I saw 8, sir. xxx xxx xxx Fiscal Daosos Q When you were ordered to go, what did you do, if any? A I drove the jeep and then we made a turn near the Monumento Circle and proceeded to Edsa, sir. Q While you were proceeding to Edsa, did you notice anything unusual again? A Yes, sir, I noticed something unusual because while they were conversing to each other, I heard somebody said that hindi ako ang bumaril. xxx xxx xxx Q From Petron Gas Station after you have gassed up, where did you go, if you went somewhere else? A We proceeded to the highway and then when we were already far from Petron, we made a left turn, sir. Q In what direction was this left [turn] going towards? A I am not familiar with that route, sir. Q By the way, who among the group ordered you to what direction you [were] going to? A The one on my left side, sir. Q At that point of time, did the group tell you where you [were] going? A I do not know where to go but they ordered me and I followed them. Q Now, as a jeepney driver from Bulacan, can you tell the Honorable Court to what direction or route you were going? A After making a left turn, we passed by a 711 store, sir. xxx xxx xxx Q While you were driving your jeep from Caloocan City to Tarlac, was there a time whether one of the group told you what to do?
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A Yes, sir. They poked a gun at me and told me to follow them whatever they wanted me to do, sir. xxx xxx xxx Q While you were so scared because you were ordered and you realized that you reached Paniqui, was there at any moment while driving your jeep that you [felt] that you might be killed by this armed men? Atty. Ongteco Leading. Fiscal Daosos I am asking for his feelings. Court Did you ever feel that you might be killed? I will allow it. Witness Because when we arrived [at] Tarlac, I heard one of them said tumba. xxx xxx xxx Court What did you do after hearing tumba? Witness may answer. Witness I told them, Sir, maawa naman po kayo. Fiscal Daosos Q To whom did you address your words? A I just said, Maawa naman po kayo, huwag ninyo po akong itumba because, I have a family. Q After you told the group of the accused that, Sir, huwag naman ninyo akong itumba, what else transpired? A One of them said, in behalf of your family, bubuhayin ka namin for the sake of your family. (Alang-alang sa pamilya mo). Q What else, if any, after one of them told you that for the sake of your family, we will not kill you. A They told me that after reaching Tarlac, I will return back and without turning my head and do not report to the police or else they will shoot me. Q So, after you received those orders, what did you do, if any? A When they alighted from the jeep, I did not look at them. Once they alighted, I proceeded or went back to Bulacan, sir. Q You said that after hearing their orders and reaching Paniqui, Tarlac, they went down. They alighted. Did all of them alight at the same time? A They alighted one after the other, sir. Q After they have alighted, what else if any transpired? A I left at a place where they alighted and then I went back to Bulacan, sir. xxx xxx xxx Q When did you see them again? A After they were arrested from their hideout, sir. Q Where exactly did you meet them at Paniqui, Tarlac? A At the Municipal Hall of Paniqui, Tarlac, sir. Q More or less, what time was that already? A About past eight in the morning, sir. Q You said that at around past eight, you saw the group again who commandeered your jeep. How did you know that they were the same persons who commandeered your jeep that early morning of July 28, 1999? A Because I was able to recognize the faces of the others, sir.

Q Mr. Witness, if you can see the faces of this group of persons who commandeered your jeep and who threatened to kill you and who ordered you to stop at Paniqui, Tarlac, and which you saw again the following day in the morning at Paniqui, Tarlac, would you be able to recognize their faces again if you will see these people? A Yes, sir. Q Now, will you please stand, Mr. Witness, and look around this courtroom and then point to the faces of those people whom you said commandeered your jeep in that early morning? Mr. Nestor dela Cruz The witness pointed to a man, who when asked of his name, answered to the name of Audie Dona. Fiscal Daosos Who else? Mr. dela Cruz The witness pointed to a man, who when asked of his name, answered to the name of Alfredo Baracas. Fiscal Daosos Who else? Mr. dela Cruz The witness pointed to a man, who when asked of his name, answered to the name of Diosdado Recepcion. Fiscal Daosos Who else? Mr. dela Cruz The witness pointed to a man, who when asked of his name, answered to the name of Bernardo Ranara. Fiscal Daosos Who else? Mr. dela Cruz The witness pointed to a man, who when asked of his name, answered to the name of Eduardo Palacpac. Fiscal Daosos Who else? Mr. dela Cruz The witness pointed to a man, who when asked of his name, answered to the name of Dominador Recepcion. Fiscal Daosos Who else? Mr. dela Cruz The witness pointed to a man, who when asked of his name, answered to the name of Joemari delos Reyes. Fiscal Daosos Who else? Mr. dela Cruz The witness pointed to a man, who when asked of his name, answered to the name of Robert Alfonso.13 The eyewitnesses categorically identified the malefactors. The alleged discrepancies in the testimony of the witnesses could easily be explained by the fact that they saw the incident from different angles of the shooting. The impact of events, as well as the unconscious working of the mind, it is said, could readily warp the human perception in varying ways and degrees. Empiric data is yet to be found in order to
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accurately measure the value of testimony of a witness other than its conformity to human behavior and the common experience of mankind.14 The defense of alibi proffered by appellants is much too weak against the positive identification made by the eyewitnesses. It is not enough for an alibi to prosper to prove that the person raising it has been somewhere else when the crime is committed; it must likewise be demonstrated that it would have been physically impossible for him to be at the scene of the crime. 15 Where there is the least chance to be present at the locus criminis, alibi will not hold much water.16 The bare evidence given by appellants to vouch their individual claims and establish alibi is far from being iron-clad against the possibility of their having been at the crime scene. Article 24817 of the Revised Penal Code, as amended by Republic Act (R.A.) No. 7659, makes a person guilty of murder if the killing is attended by, among other circumstances (but not here appurtenant), treachery or evident premeditation. An essence of treachery is not only the swiftness and the surprise in the attack upon an unsuspecting victim but also the attendance of two concurring conditions, i.e., that the malefactor must have employed means, method or manner of execution that would insure his safety from the retaliatory act of the victim, and such means, method or form of execution are consciously and deliberately adopted by the malefactor. The qualifying circumstance of evident premeditation, on the other hand, requires that the execution of the criminal act be preceded by cool thought and reflection upon a resolution to carry out the criminal intent during the space of time sufficient to arrive at a calm judgment.18 Evident premeditation needs proof of the time when the intent to commit the crime is engendered in the mind of the accused, the motive which gives rise to it, and the means which are beforehand selected to carry out that intent. All such facts and antecedents which make notorious the pre-existing design to accomplish the criminal purpose must be proven to the satisfaction of the court.19 A scrutiny of the facts in evidence would indicate a scanty showing of the requirements to qualify the senseless killing of the five victims, either by treachery or by evident premeditation, to murder. While the attack upon the victims could be described as being unexpected, somehow voiding any risk to the perpetrators thereof, there, is, however, insufficient evidence to indicate that the means adopted by the appellants have consciously been adopted. Mere suddenness of the attack is not enough to show treachery; it should also be shown that the mode of attack has knowingly been intended to accomplish the wicked intent.20 Neither would evident premeditation qualify the offense to murder in the absence of clear substantiation that the appellants have definitely resolved to commit the offense and have reflected on the means to bring about the execution following an appreciable length of time. The trial court, however, correctly appreciated conspiracy. The presence of conspiracy could be revealed by the acts done before, during and after the commission of the crime that made evident a joint purpose, concerted action and concurrence of sentiments.21 The several acts of appellants during and after the shooting rampage disclosed a unison of objectives. Not one tried to stop the other in the perpetration of the crime. All were clearly in it together, performing specific acts with such closeness and coordination as would unmistakably show a common scheme. The attendance of treachery would thus render it unnecessary for the prosecution to show who among the conspirators actually hit and killed their victims, each of them being equally liable with the other in the perpetration of the crime. Without proof of any circumstance that would qualify it, the killing could not amount to murder. Appellants should thus be held liable only for homicide for the death of

each of the victims. It was alleged in the accusatory information and shown in evidence that the crimes were indeed perpetrated with the use of unlicensed firearms. Pursuant to Republic Act 829422 (amending Presidential Decree No. 1866), which was already in effect when the killing spree occurred, if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. The trial court has convicted FOl Felipe dela Cruz as an accessory. This Court, however, finds no evidence to convict him as such accessory. Under Article 19 of the Revised Penal Code, the actual knowledge of the commission of the crime is an important element to being an encubridor, and the records are bereft of sound proof that dela Cruz has had knowledge of any or all of the nefarious deeds earlier committed by his guests. The arrest of appellants has been made in hot pursuit, an exception from the rule that warrantless arrests are illegal. In any event, appellants can no longer assail the illegality of their arrest since such a claim has not been brought up before or during the arraignment. The failure to timely move for the quashal of the Information on this basis operates as a waiver of the right to question the supposed irregularity of the arrest.23 The crime of homicide is punishable under Article 249 of the Revised Penal Code by reclusion temporal with a duration of 12 years and 1 day to 20 years. Applying the Indeterminate Sentence Law, the appellants may be held to suffer imprisonment, as minimum, of anywhere within the full range of prision mayor of from 6 years and 1 day to 12 years and, as maximum, to anywhere within the range of reclusion temporal in its maximum period, considering the attendance of the aggravating circumstance of use of an unlicensed firearm, of from 14 years, 8 months and 1 day to 20 years. The damages awarded by the trial court accord with prevailing jurisprudence except for the grant of P100,000.00 moral damages to the heirs of each of the victims which amount should be reduced to P50,000.00. WHEREFORE, the assailed judgment of the court a quo convicting appellants is AFFIRMED subject to the following MODIFICATIONS, to wit: Appellants Dominador Recepcion, Audie Dona, Alfredo Baracas, Eduardo Palacpac, Bernardo Ranara, Joemari delos Reyes and Robert Alfonso are all hereby found guilty of homicide, on five counts, and each of them shall suffer five imprisonment terms, each for the death of their five victims, of the indeterminate penalty of 9 years and 1 day of prision mayor, as minimum, to 16 years and 1 day of reclusion temporal in its maximum period, as maximum, and shall pay, jointly and severally, the sums adjudged by the trial court except that the P100,000.00 moral damages to each victim is reduced, correspondingly, to P50,000.00. Appellant Felipe dela Cruz is ACQUITTED for insufficiency of evidence. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, YnaresSantiago, Sandoval-Gutierrez, Carpio, Corona, Morales, Callejo, Sr., and Azcuna JJ., concur. Austria-Martinez, J., on leave. G.R. No. 77865 December 4, 1998 PEOPLE OF THE PHILIPPINES, appellee, vs. RAFAEL OLIVARES, JR. and DANILO ARELLANO, appellants. MARTINEZ, J.:
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Involved in this case is the crime of robbery with homicide committed during the season of yuletide. The facts as narrated in the People's brief are as follows: Prosecution witness Sgt. Eduardo Marcelo testified that he took the statements of appellant Rafael Olivares, Jr. and one Purisimo Macaoili and verbal investigation of appellant Danilo Arellano because the latter refused to give any statement. Prosecution witness Cpl. Tomas Juan of the Valenzuela Police Station V testified that in the morning of December 28, 1981, he was assigned by his station commander to follow-up the robbery with homicide that took place at Tanada Subdivision, Gen. T. De Leon, Valenzuela, Metro Manila. He learned from Patrolman Bote that a regular employee of the Cardinal Plastic Industries (where the crime was committed) had not yet reported for work. With that information, Cpl. Juan, accompanied by Pat. Rodriquez Acharon, and Reyes proceeded to the business establishment and were able to confirm from the workers that appellant Danilo Arellano failed to report for work since the commission of the crime, Melchor Salle (cousin of appellant Arellano) volunteered to bring them to Danilo Arellano, in a factory situated in San Juan, Metro Manila. Thereat, Melchor Salle was able to secure information from the "barkada" of appellant Arellano who turned out to be appellant Olivares, Jr. Appellant Olivares accompanied them to Broadway, Barangay Kristong Hari, Quezon City, where they found appellant Arellano. After being ask about the incident that took place at the Cardinal Plastic Industries, appellant Arellano readily admitted to the police authorities his participation in the commission of the crime. Thereafter, appellant Arellano was invited to the police station (pp. 4-9, TSN, November 3, 1982). On further direct examination, Cpl. Juan identified in open court the Sanyo cassettes, the tapes and the wristwatch they recovered from the place where appellant Arellano pointed to them. Said items were turned over to the police station (pp. TSN, Nov. 17, 1982). Prosecution witness Purisimo Macaoili testified that he found the dead body of Mr. Sy (Tiu Hui) in the morning of december 26, 1981 inside the building where the business establishment is situated. Mr. Sy was residing alone inside his room because at that time his wife was in Hongkong. Some of the workers also reside inside the business establishment. Mr. Macaoili also saw the dead body of the father of Mr. Sy (Zie Sing Piu) in the same building inside the establishment which was at that time registered as Foodman & Company, a candy manufacturer (now Cardinal Plastic Industries). The bodies of the victims were about eight (8) to ten (10) armslength apart. Thereafter, his companion Erning phoned Mr. Sy's brother who was then residing near Malacaang and informed him about the incident. Mr. Sy's brother arrived in the factory at around 6:30-o'clock in the morning and saw the bodies of the victims. The same brother asked for the assistance of the police who arrived at the scene of the crime and who conducted on-the-spot investigation. Later on and upon the direction of the police, the bodies of the victims were brought to the morgue. Mr. Macaoili did not notice any missing personal belongings of the victims at that time inside the building (pp. 4-13, TSN, Aug. 6, 1982). Further, Mr. Macaoili testified that he came to know that the wristwatch, the cassettes, and other personal items of the victims were missing when appellants were apprehended. He knew the cassette and the wristwatch because said items had been used by the victim, Tiu Heu. He knew appellant Arellano because he is his barriomate at Tuburan, Iloilo and was a laborer at Foodman Industries long before December 26, 1981. He also knew appellant Olivares, Jr. as they are also barriomates and worked somewhere in Quezon City. He testified that appellant Olivares, Jr. twice visited the factory before December 26, 1981 and he saw him two or three weeks before said date. He also saw appellant Arellano inside the compound of Foodman Industries on December 25, 1981. Appellant Arellano resides inside the compound of the factory

staying in the other room with other co-workers apart from the room of Mr. Macaoili and the members of his family. He stated that the wristwatch worn by victim Tiu Heu was mortgaged to the latter by the former's friend named Raul (pp. 5-11, TSN, August 20, 1982). Prosecution witness, Sgt. Eduardo Marcelo of the PNP, Valenzuela, Metro Manila testified that he conducted an investigation on the person of Rafael Olivares, Jr. at about 10:45 o'clock in the morning of December 29, 1981. Sgt. Marcelo apprised him of his constitutional rights. When informed, appellant Olivares, Jr. declined any assistance of a lawyer during the investigation considering that he will tell the truth about the incident. Mr. Melchor Salle and the chief of Sgt. Marcelo were present during the police investigations. Sgt. Marcelo prepared a statement (Exhibit B) signed by appellant Olivares, Jr. relative to the investigation (pp. 4-11, TSN, October 8, 1982). Prosecution witness Sika Chong testified that the victim Tiu Hu is his brother and other victim Zie Sing Piu is his father. On December 26, 1981, the victims were residing inside the factory situated at Gen. T. de Leon, Valenzuela, Metro Manila. Sika Chong did not witness the commission of the crime. He personally knew the two (2) radio cassettes belong to his father as said items were his birthday gifts sometime in 1977 (Exhibit C) and in 1980 (Exhibit D). He bought the cassettes (Sanyo brand) from a store at Cartimar. The small cassettes costs him P700.00 and the big radio at P800.00. Along with the said items, he also bought five (5) tapes (Exhibits E, E-1 to E-4) (pp. 5-14, TSN, March 4, 1983). Prosecution witness Ong Tian Lay testified that victim Zie Sing Piu is his father and victim Tiu Hu is his brother. The victims were at the time of thier death engaged in sago and plastic business. When they ceased operation in the sago business, they engaged in plastic manufacturing until the time of thier death. He spent more than P40,000.00 for the funeral expenses of the victims and although the total receipts from Funeraria Paz amounted only to P13,000.00, he also spent other expenses totalling P40,000.00 (pp. 3-8, TSN, April 22, 1983). On further direct examination, Ong Tian Lay testified that he saw the publication about the death of his father and brother at the police department of Valenzuela, Metro Manila. He was able to get a clipping of the publication (Exhibit F). He could not remember the names of the newspaper where the victims' death were published but could remember that the incident was published in at least three (3) newspapers, one (1) in the Chinese language and the two (2) in the English language (pp. 4-13, TSN, June 29, 1983). Prosecution witness Narciso Gador, factory worker of Cardinal Plastics, testified that the factory is owned by Ka Tiong Sy. He knew that the father of his employer is already dead as well his brother. He knew appellant Danilo Arellano because the latter is a former laborer of Cardinal Plastics. He only came to the person of appellant Olivares, Jr. after the incident. He saw appellants between the hours of 9:00 o'clock and 10:00 o:clock in the evening of December 25, 1981 inside the Delia's restaurant located at BBB, Valenzuela, Metro Manila. Narciso Gador and his companions arrived, they ordered beer while seated at another table. They left the restaurant between the hours of 9:00 o'clock and 10:00 o'clock in the evening of December 25, 1981 ahead of appellants. (pp. 3-6, TSN, June 15, 1983). Dr. Rodolfo Lizondra conducted the autopsy of the cadaver of the victims. He prepared a Necropsy Report on victim Tiu Heo Hu (Exhibits G, G-1, G-2) and similar report on victim Sy Sing Kiaw (Exhibits H-H-1 to H-3) (Decision, Jan. 30, 1987, p. 4. 1 * For the death of the two victims and the loss of some items, appellants were charge with the complex crime of "robbery with double homicide" under the following informations:
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That on or about the 26th day of December 1981, in the municipality of Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the said accused Rafael Olivarez, Jr. y Jaba and Danilo Arellano y Montinol, conspiring and confederating together and mutually helping each other, did then and there wilfully, unlawfully and feloniously, with intent of again and by means of force, violence and intimidation upon the persons of Tiu Hu and Zie Sing Piu alias "Sy Sing Kiaw" take, rob and carry away with them cash in the amount of P1,800.00 two (2) radio cassettes marked "Sanyo", one (1) wrist watch marked "Citron" and five (5) tape recorder cassettes, belongings to Tiu Hu, to the damage and prejudice of the latter in the sum of more than P1,800.00; and that by reason or on the occasion (sic) of the said robbery and for the purpose of enabling them to take, rob and carry away the said amount of P1,800.00, two (2) radio cassettes, one (1) wrist watch and five (5) tape recorder cassettes, the herein accused, in pursuance of their conspiracy, did then and there willfully, unlawfully and feloniously, with evidence (sic) premeditation and treachery and taking advantage of their superior strenght, attack, assault and use personal violence on the said Tiu Hu and Zie Sing Piu alias "Sy Sing Kiaw", thereby inflicting fatal physical injuries which directly caused the death of the said Tiu Hu and Sing Piu alias "Sy Sing Kiaw". That in the commission of the said crime, other aggravating circumstances of nocturnity and unlawful entry were present. 2 After the trial, the lower court rendered a decision dated Janaury 30, 1987 convicting appellants of the crime charged, sentence them to suffer the death penalty and to indemnify the victim' heirs. The dispositive portion of the trial court's decision reads: In view of the foregoing circumstancial evidence and not mainly on the basis of the extrajudicial confession, the Court finds both accused guilty beyond reasonable doubt of the crime of Robbery with Double Homicide and sentences them to suffer the penalty imposed by law is death on 2 counts, and to indemnify the heirs of the victim in the sum of P60.000.00 and to pay the cost. SO ORDERED. 3 On direct appeal to this Court, appellants, who are imprisoned, seek their acquittal on the ground that their guilt was not proven by the prosecution beyond reasonable doubt. Alternatively, they argued that in case their conviction is sustained, the death penalty should not be imposed on them in the light of the 1987 Constitution. In the course of the elevation of the records, the Court found that the transcript of stenographic notes (TSN) for the November 12, 1982 4 hearing was missing. When the whereabouts of the said TSN could not be traced despite diligent efforts and after disciplinary measures were imposed on some court personnel, the counsels of both parties were ordered to submit their respective manifestation if said TSN may be dispensed with or a retaking of the testimony of the witness should instead be made. 5 The Office of the Solicitor General (OSG) agreed to dispense with the TSN. 6 Counsel for appellants (Atty. Escolastico R. Viola), who failed to comply with the order, was penalized with fine and later ordered arrested byt this Court. 7 Thereafter, the Court appointed the Public Attorney's Office (PAO) to represent appellants. 8 The PAO made a similar manifestation as the OSG did with respect to the TSN. 9 Upon a thorough review of the records of the case, appellants' conviction cannot stand for reasons which were not discussed or even mentioned by appellants' appointed counsel. The PAO, as the duly designated government agency to represent and render legal services to pauper litigants who cannot hire their own counsel, should have exerted more effort on this case. Its pleadings filed before this court could hardly be considered as the product of an advocate who has the

responsibility to serve his client with competence and diligence. 10 The preparation of his case is a duty the lawyer owes not only to his client whose property, money and above all life and liberty he is bound to protect. It is also a duty he owes to himself, to his own integrity and self-respect at the bar. Nonetheless, the Court is not powerless to address and consider unassigned issues and relevant facts and law that may affect the merits and justifiable disposition of the case. Initially, the categorization by the prosecution of the crime of robbery with double homicide is erroneous because the word "homicide" in Article 294 of the Revised Penal Code (RPC) should be taken in its generic sense. 11absorbing not only acts which results in death (such as murder) but also all other acts producing anything short of death (such as physical injuries) committed during the robbery. 12 and regardless of the multiplicity of the victim which is only considered as an aggravating circumstances. 13 The indictable offense is still the complex crime of robbery with homicide (which is its proper nomenclature), the essential elements of which are: a.) the taking of personal property with the use of violence or intimidation against a person; b.) the property thus taken belongs to another; c.) the taking is characterized by intent to gain or animus lucrandi; d.) on the occasion of the robbery or by reason thereof, the crime of homicide which is therein used in a generic sense, was committed. 14 In this case, there were no eyewitnesses to the killing and robbery and; thus, no direct evidence points to appellants criminal liability. The prosecution's principal evidence against them is based solely on the testimony of the police officers who arrested, investigated and subsequently took their confession. Such evidence when juxtaposed with appellants' constitutional rights concerning arrests and the taking of confessions leads to a conclusion that they cannot he held liable fort the offense charged despite the inherent weakness of their defenses of denial and alibi, not because they are not guilty but because the evidence adduced against them are inadmissible to sustain a criminal conviction. First, appellants were arrested without a valid warrant of arrest and their arrest cannot even be justified under any of the recognized exceptions for a valid warrantless arrest mentioned in Section 6, (now section 5) Rule 113 of the Rules on Criminal Procedure, which prior to its amendment in 1998 15 provides: Arrest without warrant; when lawful. A peace officer or private person may, without a warrant, arrest a person: a) when the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence; b) when the offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it; c) when the person to be arrested is a prisoner who has escaped from a penal establishment or/place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. None of the foregoing exceptions for a valid warrantless arrest concurs herein. At the time appellants were apprehended, two days had already lapsed after the discovery of the crime they were not doing nor had just done any criminal act. Neither were they caught in flagrante delicto or had escaped from confinement. Probably aware of the illegality of the arrest they made the arresting officers testified that appellants were merely invited to the police precinct. Such invitation, however when construed in the light of the circumstances is actually in the nature of
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an arrest designed for the purpose of conducting an interrogation. 16 Mere invitation is covered by the proscription on a warrantless arrest because it is intended for no other reason than to conduct an investigation. Thus, pursuant to Section 4(2), Article IV of the 1973 Constitution which was in effect at that time, "any evidence" obtained in violation of their right under Section 3, Article IV (pertaining to invalid warrantless arrests) 17 "shall be inadmissible for any purpose in any proceeding." 18 By virtue of said constitutional protection any evidence obtained, including all the things and properties alleged to be stolen by appellants which were taken by the police from the place of the illegal arrest cannot be used as evidence for their conviction. In the same manner, all the products of those illegal arrest cannot be utilized to sustain any civil liability that they may have incurred by reason of their acts. This is the clear mandate of the Constitution when it provides that those illegally obtained evidence being "the fruits of the poisonous tree" are "inadmissible for any purpose in any proceeding". The foregoing constitutional protection on the inadmissibility of evidence (which are the product of an illegal search and arrest) known as the eclusionary rule, applies not only to criminal cases but even extends to civil, administrative and any other form of proceedings. No distinction is made by the Constitution; this Court ought not to distinguish. Even assuming arguendo that by entering a plea without first questioning the legality of their arrest, appellants are deemed to have waived any ojection concerning their arrest: 19 yet the extrajudicial confession of appellant Olivares, Jr. on which the prosecution relies, is likewise inadmissible in evidence. Under the Constitution, any person under investigation for the commission of an offense shall have the right, among other to have a counsel,20 which right can be validly waived. In this case, the said confession was obtained during custodial investigation but the confessant was not assisted by counsel. His manifestation to the investigating officer that he did not need the assistance of counsel does not constitute a valid waiver of his right within the contemplation of our criminal justice system. This notwithstanding the fact that the 1973 Constitution does not state that a waiver of the right to counsel to be valid must be made with the assistance or in the presence of counsel. Although this requisite concerning the presence of counsel before a waiver of the right to counsel can be validly made is enshrined only in the 1987 Constitution, which further requires that the waiver must also be in writing, 21 yet jurisprudence is replete even during the time of appellants arrest where it has been categorically ruled that a waiver of the constitutional right to counsel shall not be valid when the same is made without the presence or assistance of counsel. 22 Consequently, the valid waiver of the right to counsel during custodial investigation makes the uncounselled confession, whether verbal or nonverbal, 23 obtained in violation thereof as also "inadmissible in evidence" 24 under Section 20, Article IV of the 1973 Constitution 25 which provides: . . . . Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used aginst him. Any confession obtained in violation of this section shall be inadmissible in evidence. (emphasis supplied). Under the present laws, a confession to be admissible must be: 26 1.) express and categorical; 27 2.) given voluntarily, 28 and intelligently where the accused realizes the legal significance of his act; 29 3.) with assistance of competent and independent counsel; 30 4.) in writing; and in the language known to and understood by the confessant; 31 and

5 signed, or if the confessant does not know how to read and write thumbmarked by him.32 In this case, the absence of the third requisite above makes the confession inadmissible. The purpose of providing counsel to a person under custodial investigation is to curb the uncivilized practice of extracting confession even by the slightest coercion 33 as would lead the accused to admit something false. 34 What is sought to be avoided is the "evil of extorting from the very mouth of the person undergoing interrogation for the commission of an offense, the very evidence with which to prosecute and thereafter convict him. 35These constitutional guarantees have been made available to protect him from the inherently coercive psychological, if not physical atmosphere of such investigation. 36 In any case, said extrajudicial confession of one accused may not be utilized against a co-accused unless they are repeated in open court or when there is an opportunity to cross-examine the other on his extrajudicial statements. It is considered hearsay as against said accused under the rule on res enter alios acta rule, which ordains that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. 37 Aware of the abuses committed by some investigating and police agencies on a criminal suspect to get leadings confessions, information and evidence just so they can claim to have speedily resolved a crime and fulfilled their duty, all at the expense of the basic human rights guaranteed by the Constitution the Court cannot turn a blind eye by disregarding the constitutional rights accorded to every accused and tolerate official abuse. The presumption that a public officer had regularly performed his official duty, 38 which is only a matter of procedure, cannot prevail over the presumption of innocence stated in the highest law of the land the Constitution. As a contract between and among the people, the provisions of the Constitution cannot just be taken lightly. With the inadmissibility of the material circumstancial evidence which were premised on the likewise extrajudicial confession upon which both the prosecution and the lower court relied to sustain appellants' conviction the remaining circumstances cannot produce a logical conclusion to establish their guilt. In order to sustain a conviction based on circumstancial evidence, it is necessary that the same satisfies the following elements: 1. there is more than one circumstances; 2. the facts from which the inferences are derived are proven; and 3. the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 39 Simply put for circumstancial evidence to be sufficient to support a conviction, all circumstances must be consistent with each other consistent with the hypothesis that the accused is guilty, and at the same time incosistent with the hypothesis that he is innocent and with every other rational hypothesis except that the guilt. 40 The findings of the trial, to wit: Both accused are barriomates from Iloilo which means that there is a common factor for them to come together and act on a plan hatched by them during a drinking spree. It would not be remote for Melchor Sali who was questioned by the police and on whose statement the police made a start to investigate, would be a part of the plan to rob two or three weeks before the incident, because he is also a barriomate of the two accused. The truth of the testimony of Narciso Gador that both accused were seen by him on Christmas night at Delia's restaurant between 9:00 and 10:00 o'clock at night which is corroborated in the statement of Rafael Olivarez, Jr. is not remote and is more credible than the defense (sic) alibi of the Olivarez brothers that they were together sleeping in an employer's house. Another matter to consider was the failure of Danilo Arellano to report for work after the killing that was from
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December 26, 1981 until he was arrested. His having left his place of employment and residence without explanation is an evidence of flee from the scene of the crime. Flee without anyone pursuing is an indication of guilt. Another ciscumstantial evidence showing that the crime was perpretrated by both accused was the recovery of the radio cassettes, tapes and wrist watch by Cpl. Juan Tomas who testified that the place were recovered was pointed to by Danilo Arellano (TSN Nov. 17, 1982, p. 4). These stolen articles having been recently stolen and their whereabouts being known to Danilo Arellano raises the presumption that he was the one who took the same with intent to gain from their rightful owner. 41 cannot entirely be considered because some of the circumstancial evidence relied upon by the trial court were, at the risk of being repetitive, based on the inadmissible extrajudicial confession. The facts which became known only by virtue of the extrajudicial confession pertains to how the victims were killed, how appellants gained entrance into the premises, and how the alleged stolen properties were found in the house where one of them was arrested. Without the foregoing facts a combination of the remainder of the circumstancial evidence cannot sustain a conviction beyond the shadow of reasonable doubt: hence, the absence of the third requisite. Forthwith the prosecution failed to discharge its burden of proof and consequently to rebut with the required quantum of evidence 42 the presumption of innocence 43fundamentally enjoyed by both appellants. For it is a basic evidentiary rule in criminal law that the prosecution has the onus probandi of establishing the guilt of the accused. El incumbit probatio non qui negat. He who asserts not he who denies must prove. Likewise, it is settled that conviction must rest on the weakness of the defense but on the strength of the prosecution. 44 Accordingly, circumstancial evidence with has not been adequately established cannot, by itself, be the basis of conviction. 45 WHEREFORE, appellants' conviction is herein REVERSED and both are ACQUITTED for the crime charged. The person detaining them is ordered to IMMEDIATELY RELEASE appellants UNLESS they are held for some other lawful cause. SO ORDERED. Melo, Puno and Mendoza, JJ., concur. [G.R. No. 130805. April 27, 2004] PEOPLE OF THE PHILIPPINES, petitioner, vs. TOKOHISA KIMURA and AKIRA KIZAKI,[1] respondents. DECISION AUSTRIA-MARTINEZ, J.: Appellants Tomohisa Kimura and Akira Kizaki seek reversal of the decision [2] dated June 27, 1997 in Criminal Case No. 94-5606, rendered by the Regional Trial Court (Branch 66), Makati City, finding them guilty beyond reasonable doubt of violation of Section 4, Article II of Republic Act No. 6425, as amended by R.A. No. 7659, otherwise known as the Dangerous Drugs Act of 1972, and sentencing each of them to suffer the penalty of reclusion perpetua and to pay a fine of P500,000.00. The Information dated August 8, 1994 against the accused alleges: The undersigned State Prosecutor of the Department of Justice accuses TOMOHISA KIMURA and AKIRA KIZAKI of violation of Section 4, Article II of Republic Act 6425, as amended by R.A. 7659, otherwise known as the Dangerous Drugs Act of 1972, committed as follows: That on or about June 27, 1994 in Makati, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously

transport and deliver without lawful authority approximately 40,768 grams of Indian hemp (marijuana), a prohibited drug, in violation of the aforecited law. CONTRARY TO LAW. [3] Upon arraignment on October 10, 1994, the two accused, through counsel, entered their separate pleas of Not Guilty to the crime charged;[4] whereupon, the trial of the case ensued. The testimonies of the following prosecution witnesses, to wit: SPO4 Juan Baldovino, Jr.,[5] SPO1 Rolando Cabato,[6] SPO1 Edmundo Badua, Chief Inspector Nilo Anso, PO3 Alfredo Cadoy, SPO1 Manuel Delfin and Forensic Chemist, Police Inspector Sonia Ludovico, sought to establish the following facts: In the morning of June 27, 1994, Maj. Anso, head of Delta Group, Narcotics Command (NARCOM) I, North Metro District Command, Camp Karingal, Quezon City, received information from a confidential informant that a certain Koichi Kishi and Rey Plantilla were engaged in the selling of illegal drugs at the Cash and Carry Supermarket, Makati City.[7] Acting on said information, Maj. Anso organized a team composed of SPO4 Baldovino, Jr., SPO1 Cabato and PO3 Cadoy to conduct surveillance of the area.[8] A buy-bust operation was launched and PO3 Cadoy was designated to act as poseur-buyer and they prepared the buy-bust money consisting of one P500.00 bill and five pieces of P100.00 bill.[9] At around 3:00 in the afternoon of the same day, the team together with the informant arrived at the Cash and Carry Supermarket and conducted surveillance of the area.[10] Later, the informant was able to contact the targets who told him that they will be arriving at 8:00 in the evening at the parking area of the Cash and Carry Supermarket.[11] At around 8:00 in the evening, Koichi and Rey arrived and were met by PO3 Cadoy and the informant.[12] PO3 Cadoy gave the marked money worth P1,000.00 to Rey and Koichi who then handed him the shabu. PO3 Cadoy scratched his head as a pre-arranged signal of the consummation of the sale.[13] The operatives were about five meters from the suspects.[14] While the team was approaching, PO3 Cadoy held Koichi by the hand while Rey scampered away to the direction of the South Superhighway.[15] The team brought Koichi to a safe area within the Cash and Carry Supermarket and interrogated him. They learned from Koichi that his friends/suppliers will arrive the same evening to fetch him.[16] Several minutes later, a white Nissan Sentra car driven by appellant Kimura with his coappellant Kizaki seating at the passenger seat arrived at the parking area. Koichi pointed to them as the ones who will fetch him. Appellants remained inside the car for about ten to fifteen minutes.[17] Then, a certain Boy driving a stainless jeep, without a plate number, arrived and parked the jeep two to three parking spaces away from the Sentra car.[18] Boy approached the Sentra car and after a few minutes, appellants got out of their car. Appellant Kizaki went to the stainless jeep and sat at the passenger seat. Boy and appellant Kimura went to the rear of the Sentra car and opened its trunk.[19] Appellant Kimura got a package wrapped in a newspaper and gave it to Boy who walked back to his jeep.[20] While Maj. Anso and SPO4 Baldovino, Jr. were approaching to check what was inside the wrapped newspaper, appellant Kimura ran but was apprehended while Boy was able to board his jeep and together with appellant Kizaki who was seated at the passenger seat sped off towards South Superhighway.[21] The police operatives then inspected the contents of the trunk and found packages of marijuana.[22] They brought Koichi and appellant Kimura to the headquarters and turned over the seized marijuana to the investigator who made markings thereon.[23] Maj. Anso reported the escape of appellant Kizaki to their investigation section.[24] The seized packages which were contained in 3 sacks were brought to the PNP Crime Laboratory on June 29, 1994.[25] Forensic Chemist Sonia Sahagun-Ludovico
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testified that the contents of the sacks weighed 40,768 grams and were positive to the test of marijuana.[26] On June 29, 1994, appellant Kizaki while having dinner with his friends at the Nippon Ichi Restaurant located at Mabini, Malate, Manila[27] was arrested by another NARCOM group led by Maj. Jose F. Dayco.[28] Appellants defense is denial and alibi. In support thereof, both appellants were called to the witness stand. Appellant Kimuras testimony is as follows: In the afternoon of June 27, 1994, Kimura was in the house of his co-appellant Kizaki at Dian Street, Makati City, together with Koichi Kishi, Luis Carlos and a certain Sally and Boy.[29] In the evening of the said date, Kimura borrowed the car of Kizaki in order to get his (Kimuras) television from his house located in Evangelista Street, near the Cash and Carry Supermarket, and bring the same to a repair shop.[30] On their way to Kimuras house, Koichi requested Kimura to pass by Cash and Carry Supermarket because Koichi needed to meet a certain Rey who was borrowing money from him. Upon reaching Cash and Carry, Kimura parked the car about twenty meters from its entrance, then Koichi and Carlos alighted from the car and Koichi handed something to Rey.[31] Shortly thereafter, Koichi and Carlos were grabbed by two men from behind. Then four men approached the car and one guy ordered him to sit at the back and together with Koichi and Carlos, they were all brought to Camp Karingal allegedly for violating Sec. 4 of Republic Act No. 6425.[32] Kimura was asked questions about the address and business of Kizaki. Kimura denied that there was marijuana in the car on the night of June 27, 1994 but claims that he saw marijuana placed at the car trunk the following day at Camp Karingal. Kizaki was not with him at Cash and Carry on the night of June 27, 1994. There was no stainless jeep near the car on the same night. Carlos was released and was not charged because Kimuras girlfriend, Sally, served as Carlos guarantor. On the other hand, appellant Kizaki testified that on the date that the alleged crime was committed, he was in the company of his friends, Mr. and Mrs. Takeyama, his co-appellant Kimura, and his driver Boy and maid Joan at his house in Dian Street, Makati City;[33] that appellant Kimura borrowed his car on the night of June 27, 1994 to pick up Kimuras broken TV and bring it to the repair shop.[34] Appellant Kizakis alibi was corroborated by Rosario Quintia, his former housemaid, and his friend, Akiyoshi Takeyama, who both testified that they were at Kizakis house on the night of June 27, 1994 from 7:00 to 10:00 in the evening and never saw Kizaki leave the house.[35] Appellant Kizaki was arrested on June 29, 1994, two days after the Cash and Carry incident, in the Nippon Ichi Restaurant located at Mabini, Manila. He was having dinner with Lt. Col. Rodolfo Tan, Masami Y. Nishino, Anita Takeyama and Akiyoshi Takeyama. These witnesses executed a joint affidavit[36] and testified that while they were about to leave the restaurant, a man got near Kizaki and asked for his passport whom they thought was from the Immigration. Later, they learned that Kizaki was brought to Camp Karingal.[37] On June 27, 1997, the trial court rendered the herein assailed judgment, the dispositive portion of which reads: IN VIEW OF THE FOREGOING, judgment is hereby rendered finding accused Akira Kizaki and Tomohisa Kimura GUILTY beyond reasonable doubt for violation of Section 4 of Republic Act 6425, as amended by Republic Act 7659, and the Court hereby sentences them to suffer, taking into consideration the absence of mitigating or aggravating circumstances, the amount of marijuana seized from the accused which weigh 40,768 grams, the penalty of RECLUSION PERPETUA and to pay a fine of P500,000.00 each.

The Bureau of Immigration and Deportation is hereby ordered to deport Akira Kizaki and Tomohisa Kimura without further proceedings after the service of their sentence. Let the marijuana, the subject matter of this case be immediately forwarded to the Dangerous Drugs Board for proper disposition. SO ORDERED.[38] In convicting appellants, the trial court made the following findings: The settled jurisprudence is that alibi is inherently a weak defense. Like the defense of alibi, denial by the accused of the offense charged against him is also inherently a weak defense. It is also the settled jurisprudence that the defense of alibi and denial cannot prosper over the positive identification of the accused by the prosecution witnesses. For alibi to prosper, the accused must show that it was impossible for him to have been at the scene of the commission of the crime at the time of its commission. Akira testified that on the evening of June 27, 1994, he was in his house located at Dian Street corner Ampil Street, Makati City, Metro Manila, which is a walking distance to Cash and Carry Supermarket, the scene of the offense. It was not therefore impossible for accused Akira Kizaki to have been present at the scene of the crime at the time of its commission. Accused Kimura testified that on the evening of June 27, 1994, he was with his coaccused Kizaki at the Cash and Carry Supermarket but for another purpose, i.e., to meet Rey Plantilla who was borrowing money from him. In fine accused Kimura merely denied the offense charged against him, which is weak defense. Both accused, Kizaki and Kimura, were positively identified by prosecution witnesses SPO4 Baldomino, SPO1 Cabatu, Maj. Anso and PO3 Cadoy as the persons whom they arrested for drug trafficking in a buy-bust operation at the Cash and Carry Supermarket on June 27, 1994. Finally, although the evidence show that there is a doubt in the illegality of the arrest of accused Kimura by Major Dayco, the jurisprudence is that the illegality of warrantless arrest cannot deprive the state of its right to convict the guilty when all the facts on record point to their culpability.[39] Hence, this appeal before us. Appellants assert the following: I THE COURT A QUO GRAVELY ERRED IN DISREGARDING ACCUSED-APPELLANTS DEFENSE. II THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSEDAPPELLANTS HAD BEEN PROVEN BEYOND REASONABLE DOUBT. Appellants claim that although the defense of alibi and denial are weak, it is still the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt to support a judgment of conviction; that the trial court mainly relied on the weakness of the defense rather than on the strength of the evidence for the prosecution. They argue that appellant Kizakis claim that he was not at the Cash and Carry Supermarket on the night of June 27, 1994 was corroborated by three independent witnesses including appellant Kimura who testified that he was not with appellant Kizaki at Cash and Carry Supermarket on the said night. Appellants further question how the trial court could have been certain that the marijuana presented in court are the same articles confiscated from the appellants when the arresting officers did not place identifying marks on the confiscated items. Appellant Kizaki further contends that he was arrested two days after the alleged buy-bust operation without a valid warrant of arrest. He points out that although the trial court expressed doubts as to the legality of his arrest, it nevertheless convicted
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him of the crime charged, which is in violation of the Constitution. Kizaki argues that he could not have been caught in flagrante delicto to justify the warrantless arrest when he was arrested two days after the alleged Cash and Carry incident while he was only having dinner with his friends at a restaurant. In the appellees brief, the Solicitor General prays that the decision of the trial court finding appellants guilty as charged be affirmed. He argues that appellants were positively identified by four prosecution witnesses, all police officers, as among the three persons engaged in the transportation and delivery of about 40,768 grams of marijuana on June 27, 1994 at the Cash and Carry Supermarket; that the police operatives were able to seize the marijuana from the Sentra car they were using to transport the marijuana; that the marijuana introduced and offered at the trial were positively identified by the arresting officers as those seized from the car of the appellants; that the contention of appellant Kizaki that his warrantless arrest two days after the alleged incident, was unlawful, is legally inconsequential in this case considering that his conviction was not based on his arrest on June 29, 1994 but on his having participated in the transport and delivery of marijuana on June 27, 1994; that appellant Kizaki never questioned the validity of the warrantless arrest of his co-appellant Kimura on June 27, 1994, either before the trial court or before this Court; thus, any challenge against the search and seizure of the marijuana based on constitutional ground is deemed waived insofar as appellant Kizaki is concerned. We will first resolve the issue on the alleged warrantless arrest of appellant Kizaki. Appellant Kizaki assails the legality of his warrantless arrest. Indeed, SPO1 Delfin, one of those who arrested appellant Kizaki at the Nippon Ichi restaurant, admitted that they did not have a warrant of arrest when his group arrested Kizaki on the night of June 29, 1994. Rule 113, Section 5 of the Revised Rules of Criminal Procedure provides that a peace officer or a private person may, without a warrant, arrest a person only under the following circumstances: (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 alleged crime happened on June 27, 1994 and appellant Kizaki was arrested on June 29, 1994 or two days after the subject incident. At the time appellant Kizaki was arrested, he was at a restaurant having dinner with a group of friends, thus, he was not committing or attempting to commit a crime. Neither was he an escaped prisoner whose arrest could be effected even without a warrant. It bears stressing that none of the arresting officers of appellant Kizaki was present on the night of June 27 where appellant Kizaki allegedly sold and transported marijuana and escaped, thus the arresting officers had no personal knowledge of facts or circumstances that appellant Kizaki committed the crime. None of the exceptions enumerated above was present to justify appellant Kizakis warrantless arrest. However, notwithstanding the unjustified warrantless arrest of appellant Kizaki, the records show that he did not raise such question before he pleaded to the offense charged.[40] Neither did he move to quash the information on that ground before the trial court.[41] He thus waived objection to the illegality of his arrest.[42] Moreover, appellant Kizakis application for bail[43] which was denied by the trial court likewise

constitutes a waiver of his right to question whatever irregularities and defects which attended his arrest.[44] Nevertheless, we find the other claims of appellants meritorious. In all prosecutions for violation of the Dangerous Drugs Act, the existence of all dangerous drugs is a sine qua non for conviction. The dangerous drug is the very corpus delicti of the crime of violation of the Dangerous Drugs Act.[45] In People vs. Casimiro,[46] we acquitted appellant for failure of the prosecution to establish the identity of the prohibited drug which constitutes the corpus delicti and held: In People vs. Mapa, the accused-appellant was granted an acquittal after the prosecution failed to clarify whether the specimen submitted to the NBI for laboratory examination was the same one allegedly taken from the accused. In People vs. Dismuke, this Court ruled that the failure to prove that the specimen of marijuana examined by the forensic chemist was that seized from the accused was fatal to the prosecutions case. In People vs. Laxa, the policemen composing the buy-bust team failed to mark the confiscated marijuana immediately after the alleged apprehension of the accused-appellant. One policeman admitted that he marked the seized items only after seeing them for the first time in the police headquarters. It was held: This deviation from the standard procedure in the anti-narcotics operations produces doubts as to the origins of the marijuana. Were the allegedly confiscated from the scene of the crime the same ones which the investigator marked in the police headquarters? This question gives rise to surmises and speculations, and cannot prove beyond reasonable doubt the guilt of accused-appellant. In this case, the prosecution failed to prove the crucial first link in the chain of custody. The prosecution witnesses PO2 Supa, SPO2 Madlon and PO3 Piggangay admitted they did not write their initials on the brick of marijuana immediately after allegedly seizing from accused-appellant outside the grocery store but only did so in their headquarters. The narcotics field test, which initially identified the seized item as marijuana, was likewise not conducted at the scene of the crime, but only at the narcotics office. There is thus reasonable doubt as to whether the item allegedly seized from accused-appellant is the same brick of marijuana marked by the policemen in their headquarters and given by them to the crime laboratory for examination. After examining the evidence for the prosecution, and tested in the light of the Casimiro case, we find that the prosecution failed to establish the identity of the marijuana allegedly seized from appellants Kimura and Kizaki. Extant in the records were the admissions made by the police operatives of their failure to place any markings on the seized marijuana immediately after they had allegedly apprehended appellants, thus failing to prove that the marijuana presented in court was the very same marijuana seized from appellants. Maj. Anso, head of the police operatives, testified on cross-examination as follows: ATTY. BALICUD: With respect to the packages which you identified yesterday, before you showed that to your investigation section, did you make any markings thereat? WITNESS: None, sir. ATTY. BALICUD: Did any of your men place any markings at least to identify that that is the drugs confiscated by you at the Cash and Carry? WITNESS: What I know your honor, is that the investigation section is the one who will mark the evidence. COURT:You mean to say when you have already surrender(sic) the shabu(sic) to the investigation section that was the time when the investigator mark them?
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WITNESS: It is already their duty to mark them, your honor. ATTY. BALICUD: And did you see if any of those men in the investigation section did the corresponding markings? WITNESS: I did not already see sir.[47] The testimony of Maj. Anso was confirmed by SPO4 Baldovino, Jr. when the latter testified on cross-examination as follows: ATTY. SENSON: Q. When the packages contained in Exhibits B, C and D were recovered at the car, did you not make any markings on them, is that correct? WITNESS: A. That is true, sir.[48] SPO4 Baldovino, Jr. further clarified on his re-direct examination why no markings were made, thus: FISCAL MANABAT: Q. Why is it that no markings were made on these marijuana packages? WITNESS: We did not put markings there because after we confiscated those packages, there was a press conference conducted and after that we submitted it to PCCL or Philippine Crime Laboratory, sir.[49] The failure to establish the chain of custody of the evidence is further shown by the testimony of SPO1 Badua, the person assigned to bring the alleged seized marijuana to the PNP Crime Laboratory. His testimony is as follows: PROS. MANABAT: Do you recall your activities on that day, June 29, 1994? WITNESS: I was ordered to bring the marijuana to the Crime Laboratory. PROS. MANABAT: Who ordered you to bring the marijuana to the Crime Laboratory? WITNESS: Superintendent Eduardo Cario, sir. PROS. MANABAT: Where did this marijuana come from, if you know? WITNESS: In our office confiscated from Japanese nationals. PROS. MANABAT:Do you know the name of the Japanese nationals you are referring to? WITNESS; I do not know, sir. PROS. MANABAT: Can you describe this marijuana which you said you were required to bring to the PNP Crime Laboratory? WITNESS: They are contained in sacks, sir. COURT:How many sacks? WITNESS: Three (3), sir. PROS. MANABAT: What kind of sacks were these, can you recall? WITNESS: Rice sacks. PROS. MANABAT:nNow, if you see this marijuana you said you were required to bring to the PNP Crime Laboratory which you described as being contained in three (3) sacks, will you be able to identify these three (3) sacks of marijuana. WITNESS: Yes, sir. PROS. MANABAT: Now, I am showing to you SPO1 Badua, there are three (3) sacks (sic) here already deposited in Court, please examine these three (3) sacks carefully and tell us the relation of these three sacks to that marijuana contained in sacks which you said you were required to bring to PNP Crime Laboratory. WITNESS:These are the three sacks I brought. PROS. MANABAT:Now, you said that this marijuana was contained in three sacks, three rice sacks, will you please examine the sacks and tell us if these are the same sacks which you brought to the PNP Crime Laboratory? WITNESS:Yes, sir, these are the same sacks I brought. COURT:What made you so sure that these are the same sacks that you brought from your office to the Crime Laboratory? WITNESS: Because of the markings A, B, C. COURT:Who affixed those markings? WITNESS:The investigator, sir.

COURT: Did you see the investigator affixed those markings? WITNESS:Yes, sir. COURT:Who was the investigator? WITNESSS:SPO1 Delfin, sir. PROS. MANABAT:Now, what proof do you have that you actually brought these three sacks of marijuana which you identified to the PNP Crime Laboratory? WITNESS: There is a request for laboratory examination. PROS. MANABAT:Who prepared this request for laboratory examination of the marijuana? WITNESS: SPO1 Delfin.[50] And on cross-examination as follows: ATTY. BALICUD:Now, were you present when this request for laboratory examination was prepared? WITNESS:Yes, sir. ATTY. BALICUD:Who specifically typed the request? WITNESS:SPO1 Delfin, sir. ATTY. BALICUD:And this was made on June 28, 1994? WITNESS: Yes, sir. ATTY. BALICUD:And then about what time on June 28 was it prepared? WITNESS:Morning, sir. ATTY. BALICUD: But then this request was received already by the Crime Laboratory on June 29, 1994, where were the three sacks deposited from June 28 up to the time you picked it up on June 29 to be brought to the Crime Laboratory? WITNESS: It was deposited inside our supply room. ATTY. BALICUD: Why did you not deposit or deliver it immediately to the Crime Laboratory? WITNESS: We were still preparing the necessary papers. ATTY. BALICUD: What papers were still being prepared? WITNESS:Request for laboratory, medical, drug dependency. ATTY. BALICUD:Now, when the request for laboratory examination was made, did you already see the contents inside the sack? WITNESS: Yes, sir. ATTY. BALICUD:Why did you open the sacks? WITNESS:Yes, sir. ATTY. BALICUD: Who opened the sacks? WITNESS: The investigator. ATTY. BALICUD:So that they were placed in three sacks? WITNESS:Yes, sir. ATTY. BALICUD:And you opened each and every sack? WITNESS:Yes, sir. ATTY. BALICUD:You brought the same to the Crime Laboratory? WITNESS: Yes, sir. ATTY. BALICUD:Were there markings in the 3 sacks when the same were brought to the PNP Crime Laboratory? WITNESS:Yes, sir. A, B, C. ATTY. BALICUD:So that one sack is marked A, the other sack is B and the other is marked C. WITNESS: Yes, sir. ATTY. BALICUD: How about the contents of these three sacks, were they also marked when you brought the same to the PNP Crime Laboratory? WITNESS:Yes, sir, but it was marked at the Crime Laboratory already.
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ATTY. BALICUD:So, it is clear that when the alleged marijuana was brought to the PNP Crime Laboratory, there was no marking yet? WITNESS: Yes, sir. [51] While SPO1 Baduas testimony showed that it was investigator SPO1 Delfin who made the markings A, B, C on the three sacks containing the marijuana which he brought to the laboratory, nowhere in his testimony did he say that such markings were made on the night the appellants were arrested, i.e., on June 27, 1994. Investigator Delfin did not initial said markings nor did he testify affirming his markings. Moreover, although the three sacks of alleged marijuana were marked as A, B, C, the contents of these three sacks however had no markings when they were kept inside the supply room on June 28 since as Badua intimated, the contents of these three sacks were only marked when he brought the same to the PNP Crime Laboratory on June 29, 1994. The records of the case do not show that the police operatives complied with the procedure in the custody of seized prohibited and regulated drugs as embodied in the Dangerous Drugs Board Regulation No. 3 Series of 1979 amending Board Regulation No. 7 Series of 1974,[52] i.e., any apprehending team having initial custody and control of said drugs and/or paraphernalia, should immediately after seizure or confiscation, have the same physically inventoried and photographed in the presence of the accused, if there be any, and/or his representative, who shall be required to sign the copies of the inventory and be given a copy thereof. In this case, there was no inventory made in the crime scene despite the fact that Maj. Anso testified that he saw eighteen packages neatly wrapped in a newspaper but the inventory was made already in the headquarters. SPO1 Badua testified that the marijuana confiscated from appellant Kimura was contained in three sacks. Consequently, the failure of the NARCOM operatives to place markings on the alleged seized marijuana coupled with their failure to observe the procedure in the seizure and taking custody of said drug seriously bring to question the existence of the seized prohibited drug. It is not positively and convincingly clear that what was submitted for laboratory examination and presented in court was actually recovered from the appellants. Evidently, the prosecution has not proven the indispensable element of corpus delicti of the crime which failure produces a grevious doubt as to the guilt of the appellants. In criminal cases, proof beyond reasonable doubt is required to establish the guilt of the accused. Similarly, in establishing the corpus delicti, that unwavering exactitude is necessary. Every fact necessary to constitute the crime must be established by proof beyond reasonable doubt.[53] Although the defense raised by appellants Kimura and Kizaki were denial and alibi, respectively, which are inherently weak, we have repeatedly declared that the conviction of the accused must rest not on the weakness of the defense but on the strength of the prosecution.[54] The denial of appellant Kimura that he was caught in the Cash and Carry Supermarket delivering marijuana on the night of June 27, 1994 may be weak but the evidence for the prosecution is clearly even weaker. In People vs. Laxa,[55] we acquitted the appellant for failure of the prosecution to establish the identity of the prohibited drug which constitutes the corpus delicti, an essential requirement in a drug related case. In the present case, the prosecution also failed to indubitably show the identity of the marijuana which mere allegedly seized from appellants. The alibi of appellant Kizaki that he was in his house on the same night assumes weight and significance considering that the scenario depicted by the prosecution on

the alleged escape of appellant Kizaki at the Cash and Carry left much to speculations and surmises. The prosecution tried to show that appellant Kizaki who was on board the stainless jeep was able to escape even if the police operatives were only about five meters away from the jeep[56] which was heading to the entrance of the Cash and Carry along South Superhighway. It is quite difficult for us to accept its veracity considering that despite the short distance of the operatives from the jeep when it started to speed off, the operatives who were all armed with service revolvers[57] chased on foot the stainless jeep and did not even fire any warning shot to stop the driver and appellant Kizaki nor did they fire a shot at the tire of the jeep to immobilize it. The alibi of Kizaki found corroboration from his friend Akiyoshi Takeyama and appellant Kizakis former housemaid Rosaria Quintia that he was in his house and never left it on the night of the alleged delivery or transport of marijuana in Cash and Carry Supermarket. In fact, co-appellant Kimura testified that appellant Kizaki was not one of his companions in going to Cash and carry Supermarket on June 27, 1994.[58]Moreover, in the request for laboratory examination dated June 28, 1994, signed by P/CI Jose F. Dayco, Chief, Investigation Section, NMDU, NARCOM, the suspects named therein were only Koichi Kishi and Tomohisa Kimura.[59] Hence, the constitutional presumption of innocence has not been overcome by the prosecution. In fine, for failure of the prosecution to establish the guilt of both appellants beyond reasonable doubt, they must perforce be exonerated from criminal liability. WHEREFORE, the decision of the trial court in Criminal Case No. 94-5606 is hereby REVERSED and appellants Tomohisa Kimura and Akira Kizaki, are hereby ACQUITTED on ground of reasonable doubt. They are ordered immediately released from prison, unless they are being detained for some other lawful cause. The Director of Prisons is DIRECTED to inform this Court of the action taken hereon within five (5) days from receipt hereof. Let the PNP Director be furnished a copy of herein decision for the proper information and guidance of his police operatives. The marijuana is hereby ordered confiscated in favor of the government for its proper disposition under the law. Costs de oficio. SO ORDERED. G.R. No. 158211 August 31, 2004 ERNESTO J. SAN AGUSTIN, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CALLEJO, SR., J.: This is a petition for review on certiorari filed by Ernesto J. San Agustin of the Decision1 of the Court of Appeals in CA-G.R. SP No. 71925 dismissing his petition for certiorari. The Antecedents Luz Tan executed a notarized criminal complaint and filed the same with the National Bureau of Investigation (NBI) charging the petitioner, the Barangay Chairman of Barangay La Huerta, Paraaque City, with serious illegal detention alleging that the petitioner detained her husband Vicente Tan, on June 19, 2002, without lawful ground therefor.2 On June 25, 2002, the petitioner received a subpoena from Ferdinand M. Lavin, the Chief of the Anti-Organized Crime Division of the NBI, requiring him to appear before said office the next day, on June 26, 2002, in order to give his evidence in
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connection with said complaint and to bring with him the barangay logbook for June 19, 2002. The petitioner complied with the subpoena and presented himself at the NBI with the barangay logbook. However, the petitioner was placed under arrest and prevented from going back home. On June 27, 2002, the NBI Director transmitted to the Department of Justice the findings of the NBI on its investigation of the case: On June 19, 2002 at around 9:00 o'clock in the morning while Victim RICARDO TAN and Witness ANTONIO GERONIMO were selling their wares of kitchen utensils along the highway of La Huerta, Paraaque City, Victim TAN was mistaken as a "snatcher" by two tricycle drivers, namely, ROMEO C. ALCANTARA and JOSEFINO FERRER, JR. Victim was turned-over to Subject SAN AGUSTIN and other Subjects at the Barangay Hall of La Huerta, Paraaque City; witness GERONIMO followed them. GERONIMO witnessed that Victim was beaten by Subjects and locked-up at the Barangay jail so he decided to inform the wife of the Victim (Complainant) who was residing in San Pedro, Laguna. When Complainant went to the Barangay Hall on the same day and inquired on the whereabouts of his husband, two female clerks thereat denied having seen the Victim. Complainant was able to talk to Subject SAN AGUSTIN the following day but he also denied having seen Victim, worst Subject SAN AGUSTIN was furious and even shouted at them and brought out his knife. Up to date, Victim, never resurfaced nor his whereabouts located. Record at the NBI central file of Subject SAN AGUSTIN revealed that he has several cases of homicide, murder and multiple murder.3 The NBI Director stated that the basis for the arrest of the petitioner was: BASIS OF ARREST: Subject SAN AGUSTIN was subpoenaed to appear before the NBI-AOCD to controvert allegations filed against him for kidnapping by Ms. Luz Tan. He was enjoined to come with his Counsel and bring the logbook of the Barangay. When Subject appeared at the NBI, he presented at once the logbook of the Barangay. It was noted at the said logbook that there was no entry on June 19, 2002 that Victim RICARDO TAN was arrested or transmitted to any law enforcement agency or proper authority.4 State Prosecutor Elizabeth L. Berdal conducted an inquest investigation on June 27, 2002 and came out with a Resolution, on the same day, affirmed by the Assistant Chief State Prosecutor, finding probable cause against the petitioner for serious illegal detention under Article 267 of the Revised Penal Code.5 On June 28, 2002, an Information was filed before the Regional Trial Court of Paraaque City, charging the petitioner with kidnapping/serious illegal detention with no bail recommended. The case was raffled to Branch 258 of the court and docketed as Criminal Case No. 02-0759. On July 1, 2002, the petitioner filed a Motion to Quash the Information on the ground that he was illegally arrested and subjected to an inquest investigation; hence, he was deprived of his right to a preliminary investigation. He also prayed that he be released from detention and that, in the meantime, the NBI be ordered to refile the complaint against him withthe Office of the Paraaque City Prosecutor and for the latter to conduct a preliminary investigation. On July 4, 2002, the petitioner filed a Motion to Quash the Information, this time, on the ground that the facts alleged therein do not constitute the felony of kidnapping/serious illegal detention. He claimed that he was a barangay chairman when the private complainant was allegedly detained; hence, he should be charged only with arbitrary detention, the most severe penalty for which is reclusion temporal.

The prosecution opposed the petitioner's motion to quash the Information on the ground that when he detained the private complainant, he acted in his private capacity and not as a barangay chairman.6 On July 24, 2002, the RTC issued an Order directing the City Prosecutor to conduct a reinvestigation within a non-extendible period of forty-five (45) days.7 Assistant City Prosecutor Antonietta Pablo Medina was assigned to conduct the reinvestigation. The petitioner opposed the reinvestigation contending that the prosecutor should conduct a regular preliminary investigation since the inquest investigation was void. He refused to submit a counter-affidavit. On July 31, 2002, the petitioner filed a petition for certiorari with the Court of Appeals assailing the July 24, 2002 Order of the RTC. He raised in his petition the following issues: 1. Whether or not respondent Judge De Leon acted arbitrarily and in grave abuse of discretion in not granting petitioner's "Urgent Motion to Quash Information" dated 01 July 2002. 2. Whether or not respondent Judge De Leon acted arbitrarily and in grave abuse of discretion in not granting petitioner's "Urgent Motion to Quash On The Ground That The Facts Charged Do Not Constitute An Offense" dated 04 July 2002. 3. Whether or not respondent Judge De Leon acted arbitrarily and in grave abuse of discretion in not granting bail as a matter of right in favor of the petitioner. 4. Whether or not respondent Judge Jose S. Jacinto, Jr. of the Metropolitan Trial Court of Paraaque, Branch 77, can validly and legally proceed with the hearing of Criminal Case No. 02-2486.8 In the meantime, on August 27, 2002, the Assistant City Prosecutor came out with a Resolution finding probable cause of arbitrary detention against the petitioner and recommending that the Information for arbitrary detention and the Motion to Withdraw Information appended thereto be approved.9 The City Prosecutor opposed the said Resolution. On August 28, 2002, the Assistant City Prosecutor filed with the trial court a "Motion to Withdraw Information."10On August 30, 2002, the RTC issued an Order granting the motion and considered the Information withdrawn. On the same day, an Information was filed with the Metropolitan Trial Court (MeTC) docketed as Criminal Case No. 02-2486, charging the petitioner with arbitrary detention, viz: That on or about the 19th day of June 2002 and subsequent thereto, in the City of Paraaque, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being a Barangay Chairman of Brgy. La Huerta, Paraaque City, a public officer, committing the offense in relation to office, did then and there willfully, unlawfully and feloniously detain one RICARDO TAN, an act done as he well knew, arbitrary and without legal ground (sic). CONTRARY TO LAW.11 The case was raffled to Branch 77 of the court. The petitioner posted a cash bond of P3,000.00 for his provisional release without prejudice to the outcome of his petition in the Court of Appeals.12 On April 15, 2003, the Court of Appeals rendered its decision denying due course and dismissing the petition for certiorari of the petitioner. The petitioner filed the petition at bar contending that: 4.1 THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS COMMITTED BY JUDGE RAUL E. DE LEON WHEN HE DENIED PETITIONER'S "URGENT MOTION TO QUASH INFORMATION" DATED JULY 01, 2002. 4.2. THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS COMMITTED BY JUDGE RAUL E. DE LEON WHEN HE DENIED
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PETITIONER'S "URGENT MOTION TO QUASH ON THE GROUND THAT THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE" DATED 04 JULY 2002. 4.3. THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS COMMITED BY JUDGE RAUL E. DE LEON WHEN HE DENIED PETITIONER OF HIS CONSTITUTIONALLY-GUARANTEED RIGHT TO BAIL. 4.4. THE COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT JUDGE JOSE S. JACINTO OF THE METROPOLITAN TRIAL COURT OF PARAAQUE, BRANCH, (sic) CAN VALIDLY AND LEGALLY PROCEED WITH THE HEARINGS IN CRIMINAL CASE NO. 022486.13 The petitioner asserts that he was illegally arrested by the NBI; hence, he was entitled to a regular preliminary investigation, not merely to an inquest investigation. He contends that since the Information charging him with kidnapping/serious illegal detention was filed before the Regional Trial Court without affording him a preliminary investigation, the Information is void. The RTC, the petitioner avers, should have granted his motion to quash the Information and ordered the NBI to refile its complaint against him with the Office of the City Prosecutor of Paraaque for the appropriate preliminary investigation and that, in the meantime, the RTC should have ordered his release from detention. The petitioner posits that the RTC committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in denying his motion to quash the Information and directing the City Prosecutor to conduct a reinvestigation. On the other hand, since the Assistant City Prosecutor did not conduct a regular preliminary investigation before filing the Information for arbitrary detention against him with the MeTC, the Information is void. Hence, the MeTC should be ordered to quash the Information filed therein. In its Comment to the petition, the Office of the Solicitor General (OSG) contends that the petition for certiorari of the petitioner in the Court of Appeals and in this Court had become moot and academic by the withdrawal of the Information from the Regional Trial Court and filing of the Information for arbitrary detention against the petitioner in the MTC. The inquest investigation conducted by the State Prosecutor was valid because the petitioner refused to execute a waiver under Article 125 of the Revised Penal Code. The OSG asserts that the investigation conducted by the Assistant City Prosecutor, as directed by the RTC, was valid. The petitioner is estopped from assailing the Resolution of the Assistant City Prosecutor finding probable cause for arbitrary detention because of his failure to submit his counter-affidavit. The Court of Appeals ruled that the petitioner was unlawfully arrested; hence, he was entitled to preliminary investigation and release from detention subject to his appearance during the preliminary investigation. However, the Court of Appeals declared that the lack of preliminary investigation did not impair the validity of the Information filed with the RTC. Moreover, the Court of Appeals declared that the petitioner had already been granted a reinvestigation after which the Information filed with the RTC was withdrawn. Consequently, the appellate court further declared that the petition had been mooted by the withdrawal of the Information from the RTC and the filing of another Information in the MeTC for arbitrary detention. The appellate court also held that the RTC did not commit grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the assailed Order. It ruled that even if the reinvestigation conducted by the City Prosecutor is defective, the Information filed with the MeTC is valid because under the Revised Rules of Criminal Procedure, there is no need for a preliminary investigation for crimes cognizable by the Metropolitan Trial Court. The petition is partially granted.

We agree with the Court of Appeals that the petitioner was unlawfully arrested without a warrant of arrest against him for kidnapping/serious illegal detention. As correctly ruled by the Court of Appeals: Furthermore, warrantless arrest or the detention of petitioner in the instant case does not fall within the provision of Section 5, Rule 113, Revised Rules on Criminal Procedure, as amended, 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 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 while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule 112." considering that petitioner only went to the Office of the NBI to answer the subpoena it issued which was seven (7) days after the supposed turning over of the custody of Ricardo Tan to petitioner who was then the Barangay Chairman of La Huerta, Paraaque City, and his locking up in the barangay jail and, thereafter, he was already arrested and detained. Certainly, the "arresting" officers were not present within the meaning of Section 5(a) at the time when the supposed victim, Ricardo Tan, was turned over to petitioner. Neither could the "arrest" which was effected seven (7) days after the incident be seasonably regarded as "when the turning over and locking up in the Barangay jail had in fact just been committed within the meaning of Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts indicating that petitioner was the person to whom the custody of the victim Ricardo Tan was turned over and who locked up the latter in the Barangay jail. The information upon which the "arresting" officers acted upon had been derived from the statements made by the alleged eyewitnesses to the incident which information did not, however, constitute personal knowledge.14 Consequently, the petitioner is entitled to a preliminary investigation before an Information may be filed against him for said crime. The inquest investigation conducted by the State Prosecutor is void because under Rule 112, Section 7 of the Revised Rules on Criminal Procedure, an inquest investigation is proper only when the suspect is lawfully arrested without a warrant: SEC. 7. When accused lawfully arrested without warrant. When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest investigation has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person.15 We also agree with the Court of Appeals that the absence of a preliminary investigation does not affect the jurisdiction of the trial court but merely the regularity of the proceedings. It does not impair the validity of the Information or otherwise render it defective.16 Neither is it a ground to quash the Information or nullify the order of arrest issued against him or justify the release of the accused from detention.17 However, the trial court should suspend proceedings and order a
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preliminary investigation18 considering that the inquest investigation conducted by the State Prosecutor is null and void.19 In sum, then, the RTC committed grave abuse of its discretion amounting to excess or lack of jurisdiction in ordering the City Prosecutor to conduct a reinvestigation which is merely a review by the Prosecutor of his records and evidence instead of a preliminary investigation as provided for in Section 3, Rule 112 of the Revised Rules on Criminal Procedure. However, we do not agree with the ruling of the Court of Appeals that there was no need for the City Prosecutor to conduct a preliminary investigation since the crime charged under the Information filed with the MeTC was arbitrary detention under Article 124, paragraph 1 of the Revised Penal Code punishable by arresto mayor in its maximum period to prision correccional in its minimum period, which has a range of four months and one day to two years and four months. Whether or not there is a need for a preliminary investigation under Section 1 in relation to Section 9 of Rule 112 of the Revised Rules on Criminal Procedure depends upon the imposable penalty for the crime charged in the complaint filed with the City or Provincial Prosecutor's Office and not upon the imposable penalty for the crime found to have been committed by the respondent after a preliminary investigation. In this case, the crime charged in the complaint of the NBI filed in the Department of Justice was kidnapping/serious illegal detention, the imposable penalty for which is reclusion perpetua to death. IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The Order of the Regional Trial Court of Paraaque City, dated July 24, 2004, ordering the City Prosecutor to conduct a reinvestigation is SET ASIDE. The Regional Trial Court is directed to ORDER the City Prosecutor of Paraaque City to conduct a preliminary investigation as provided for in Section 3, Rule 112 of the Revised Rules on Criminal Procedure. In the meantime, the Metropolitan Trial Court of Paraaque City, Branch 77, is ordered to suspend the proceedings in Criminal Case No. 02-2486 pending the outcome of said preliminary investigation. SO ORDERED. [G.R. No. 121917. March 12, 1997] ROBIN CARIO PADILLA @ ROBINHOOD PADILLA, petitioner, vs. COURT OF APPEALS and PEOPLE of the PHILIPPINES, respondents. DECISION FRANCISCO, J.: On October 26, 1992, high-powered firearms with live ammunitions were found in the possession of petitioner Robin Padilla @ Robinhood Padilla, i.e.: "(1) One .357 Caliber revolver, Smith and Wesson, SN-32919 with six (6) live ammunitions; "(2) One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazine with ammunitions; "(3) One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8) ammunitions; and "(4) Six additional live double action ammunitions of .38 caliber revolver."[1] Petitioner was correspondingly charged on December 3, 1992, before the Regional Trial Court (RTC) of Angeles City with illegal possession of firearms and ammunitions under P.D. 1866[2]thru the following Information:[3] "That on or about the 26th day of October, 1992, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control one (1) M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazines with ammunitions, one (1) .357 caliber revolver

Smith and Wesson, SN-32919 with six (6) live ammunitions and one (1) .380 Pietro Beretta, SN-A35723Y with clip and eight (8) ammunitions, without having the necessary authority and permit to carry and possess the same. ALL CONTRARY TO LAW."[4] The lower court then ordered the arrest of petitioner,[5] but granted his application for bail.[6] During the arraignment on January 20, 1993, a plea of not guilty was entered for petitioner after he refused,[7] upon advice of counsel,[8] to make any plea. [9] Petitioner waived in writing his right to be present in any and all stages of the case.[10] After trial, Angeles City RTC Judge David Rosete rendered judgment dated April 25, 1994 convicting petitioner of the crime charged and sentenced him to an "indeterminate penalty from 17 years, 4 months and 1 day of reclusion temporal as minimum, to 21 years of reclusion perpetua, as maximum".[11] Petitioner filed his notice of appeal on April 28, 1994.[12] Pending the appeal in the respondent Court of Appeals,[13] the Solicitor-General, convinced that the conviction shows strong evidence of guilt, filed on December 2, 1994 a motion to cancel petitioner's bail bond. The resolution of this motion was incorporated in the now assailed respondent court's decision sustaining petitioner's conviction,[14] the dispositive portion of which reads: "WHEREFORE, the foregoing circumstances considered, the appealed decision is hereby AFFIRMED, and furthermore, the P200,000.00 bailbond posted by accusedappellant for his provisional liberty, FGU Insurance Corporation Bond No. JCR (2) 6523, is hereby cancelled. The Regional Trial Court, Branch 61, Angeles City, is directed to issue the Order of Arrest of accused-appellant and thereafter his transmittal to the National Bureau of Prisons thru the Philippine National Police where the said accused-appellant shall remain under confinement pending resolution of his appeal, should he appeal to the Supreme Court. This shall be immediately executory. The Regional Trial Court is further directed to submit a report of compliance herewith. SO ORDERED."[15] Petitioner received a copy of this decision on July 26, 1995.[16] On August 9, 1995 he filed a "motion for reconsideration (and to recall the warrant of arrest)"[17] but the same was denied by respondent court in its September 20, 1995 Resolution,[18] copy of which was received by petitioner on September 27, 1995. The next day, September 28, petitioner filed the instant petition for review on certiorari with application for bail[19] followed by two "supplemental petitions" filed by different counsels,[20] a "second supplemental petition"[21] and an urgent motion for the separate resolution of his application for bail. Again, the Solicitor-General[22] sought the denial of the application for bail, to which the Court agreed in a Resolution promulgated on July 31, 1996.[23] The Court also granted the Solicitor-General's motion to file a consolidated comment on the petitions and thereafter required the petitioner to file his reply.[24] However, after his vigorous resistance and success on the intramural of bail (both in the respondent court and this Court) and thorough exposition of petitioner's guilt in his 55-page Brief in the respondent court, the Solicitor-General now makes a complete turnabout by filing a "Manifestation In Lieu Of Comment" praying for petitioner's acquittal.[25] The People's detailed narration of facts, well-supported by evidence on record and given credence by respondent court, is as follows:[26] "At about 8:00 o'clock in the evening of October 26, 1992, Enrique Manarang and his compadre Danny Perez were inside the Manukan sa Highway Restaurant in Sto. Kristo, Angeles City where they took shelter from the heavy downpour (pp. 5-6, TSN, February 15, 1993) that had interrupted their ride on motorcycles (pp. 5-6, ibid.)
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along McArthur Highway (ibid). While inside the restaurant, Manarang noticed a vehicle, a Mitsubishi Pajero, running fast down the highway prompting him to remark that the vehicle might get into an accident considering the inclement weather. (p. 7, Ibid) In the local vernacular, he said thus: 'Ka bilis na, mumuran pa naman pota makaaksidente ya.' (p. 7, ibid). True enough, immediately after the vehicle had passed the restaurant, Manarang and Perez heard a screeching sound produced by the sudden and hard braking of a vehicle running very fast (pp. 78, ibid) followed by a sickening sound of the vehicle hitting something (p. 8, ibid). Danny Cruz, quite sure of what had happened, remarked 'oy ta na' signifying that Manarang had been right in his observation (pp. 8-9, ibid). "Manarang and Cruz went out to investigate and immediately saw the vehicle occupying the edge or shoulder of the highway giving it a slight tilt to its side (pp. 910, ibid). Manarang, being a member of both the Spectrum, a civic group and the Barangay Disaster Coordinating Council, decided to report the incident to the Philippine National Police of Angeles City (p. 10, ibid). He took out his radio and called the Viper, the radio controller of the Philippine National Police of Angeles City (p. 10, ibid). By the time Manarang completed the call, the vehicle had started to leave the place of the accident taking the general direction to the north (p. 11, ibid). "Manarang went to the location of the accident and found out that the vehicle had hit somebody (p. 11, ibid). "He asked Cruz to look after the victim while he went back to the restaurant, rode on his motorcycle and chased the vehicle (p. 11 ibid). During the chase he was able to make out the plate number of the vehicle as PMA 777 (p. 33, TSN, February 15, 1993). He called the Viper through the radio once again (p. 34, ibid) reporting that a vehicle heading north with plate number PMA 777 was involved in a hit and run accident (p. 20, TSN, June 8, 1993). The Viper, in the person of SPO2 Ruby Buan, upon receipt of the second radio call flashed the message to all units of PNP Angeles City with the order to apprehend the vehicle (p. 20, ibid). One of the units of the PNP Angeles City reached by the alarm was its Patrol Division at Jake Gonzales Street near the Traffic Division (pp. 5-7, TSN, February 23, 1993). SPO2 Juan C. Borja III and SPO2 Emerlito Miranda immediately borded a mobile patrol vehicle (Mobile No. 3) and positioned themselves near the south approach of Abacan bridge since it was the only passable way going to the north (pp. 8-9, ibid). It took them about ten (10) seconds to cover the distance between their office and the Abacan bridge (p. 9, ibid). "Another PNP mobile patrol vehicle that responded to the flash message from SPO2 Buan was Mobile No. 7 of the Pulongmaragal Detachment which was then conducting patrol along Don Juico Avenue (pp. 8-9, TSN, March 8, 1993). On board were SPO Ruben Mercado and SPO3 Tan and SPO2 Odejar (p. 8, ibid). SPO Ruben Mercado immediately told SPO3 Tan to proceed to the MacArthur Highway to intercept the vehicle with plate number PMA 777 (p. 10, ibid). "In the meantime, Manarang continued to chase the vehicle which figured in the hit and run incident, even passing through a flooded portion of the MacArthur Highway two (2) feet deep in front of the Iglesia ni Kristo church but he could not catch up with the same vehicle (pp. 11-12, February 15, 1993). When he saw that the car he was chasing went towards Magalang, he proceeded to Abacan bridge because he knew Pulongmaragal was not passable (pp. 12-14, ibid). When he reached the Abacan bridge, he found Mobile No. 3 and SPO2 Borja and SPO2 Miranda watching all vehicles coming their way (p. 10, TSN, February 23, 1993). He approached them and informed them that there was a hit and run incident (p. 10, ibid). Upon learning that the two police officers already knew about the incident, Manarang went back to where he came from (pp. 10-11; ibid). When Manarang was in front of Tina's

Restaurant, he saw the vehicle that had figured in the hit and run incident emerging from the corner adjoining Tina's Restaurant (p. 15, TSN, February 15, 1993). He saw that the license plate hanging in front of the vehicle bore the identifying number PMA 777 and he followed it (p. 15, ibid) towards the Abacan bridge. "Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda of Mobile No. 3 (p. 10, TSN, February 23, 1993). When the vehicle was about twelve (12) meters away from their position, the two police officers boarded their Mobile car, switched on the engine, operated the siren and strobe light and drove out to intercept the vehicle (p. 11, ibid). They cut into the path of the vehicle forcing it to stop (p. 11, ibid). "SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (P. 12, TSN, February 23, 1993). SPO2 Miranda went to the vehicle with plate number PMA 777 and instructed its driver to alight (p. 12, ibid). The driver rolled down the window and put his head out while raising both his hands. They recognized the driver as Robin C. Padilla, appellant in this case (p. 13, ibid). There was no one else with him inside the vehicle (p. 24). At that moment, Borja noticed that Manarang arrived and stopped his motorcycle behind the vehicle of appellant (p. 14, ibid). SPO2 Miranda told appellant to alight to which appellant complied. Appellant was wearing a short leather jacket (p. 16, TSN, March 8, 1993) such that when he alighted with both his hands raised, a gun (Exhibit 'C') tucked on the left side of his waist was revealed (p. 15, TSN, February 23, 1993), its butt protruding (p. 15, ibid). SPO2 Borja made the move to confiscate the gun but appellant held the former's hand alleging that the gun was covered by legal papers (p. 16, ibid). SPO2 Borja, however, insisted that if the gun really was covered by legal papers, it would have to be shown in the office (p. 16, ibid). After disarming appellant, SPO2 Borja told him about the hit and run incident which was angrily denied by appellant (p. 17, ibid). By that time, a crowd had formed at the place (p. 19, ibid). SPO2 Borja checked the cylinder of the gun and find six (6) live bullets inside (p. 20, ibid). "While SPO2 Borja and appellant were arguing, Mobile No. 7 with SPO Ruben Mercado, SPO3 Tan and SPO2 Odejar on board arrived (pp. 11-12, TSN, March 8, 1993). As the most senior police officer in the group, SPO Mercado took over the matter and informed appellant that he was being arrested for the hit and run incident (p. 13, ibid). He pointed out to appellant the fact that the plate number of his vehicle was dangling and the railing and the hood were dented (p. 12, ibid). Appellant, however, arrogantly denied his misdeed and, instead, played with the crowd by holding their hands with one hand and pointing to SPO3 Borja with his right hand saying 'iyan, kinuha ang baril ko' (pp. 13-15, ibid). Because appellant's jacket was short, his gesture exposed a long magazine of an armalite rifle tucked in appellant's back right pocket (p. 16, ibid). SPO Mercado saw this and so when appellant turned around as he was talking and proceeding to his vehicle, Mercado confiscated the magazine from appellant (pp. 1617, ibid). Suspecting that appellant could also be carrying a rifle inside the vehicle since he had a magazine, SPO2 Mercado prevented appellant from going back to his vehicle by opening himself the door of appellant's vehicle (16-17, ibid). He saw a baby armalite rifle (Exhibit D) lying horizontally at the front by the driver's seat. It had a long magazine filled with live bullets in a semi-automatic mode (pp. 1721, ibid). He asked appellant for the papers covering the rifle and appellant answered angrily that they were at his home (pp. 26-27, ibid). SPO Mercado modified the arrest of appellant by including as its ground illegal possession of firearms (p. 28, ibid). SPO Mercado then read to appellant his constitutional rights (pp. 28-29, ibid).
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"The police officers brought appellant to the Traffic Division at Jake Gonzales Boulevard (pp. 31-32, ibid) where appellant voluntarily surrendered a third firearm, a pietro berreta pistol (Exhibit 'L') with a single round in its chamber and a magazine (pp. 33-35, ibid) loaded with seven (7) other live bullets. Appellant also voluntarily surrendered a black bag containing two additional long magazines and one short magazine (Exhibits M, N, and O, pp. 36-37, ibid). After appellant had been interrogated by the Chief of the Traffic Division, he was transferred to the Police Investigation Division at Sto. Rosario Street beside the City Hall Building where he and the firearms and ammunitions were turned over to SPO2 Rene Jesus Gregorio (pp. 5-10, TSN, July 13, 1993). During the investigation, appellant admitted possession of the firearms stating that he used them for shooting (p. 14, ibid). He was not able to produce any permit to carry or memorandum receipt to cover the three firearms (pp. 16-18, TSN, January 25, 1994). "On November 28, 1992, a certification (Exhibit 'F') was issued by Captain, Senior Inspector Mario Espino, PNP, Chief, Record Branch of the Firearms and Explosives Office (pp. 7-8, TSN, March 4, 1993). The Certification stated that the three firearms confiscated from appellant, an M-16 Baby armalite rifle SN-RP 131280, a .357 caliber revolver Smith and Wesson SN 32919 and a .380 Pietro Beretta SN-A35720, were not registered in the name of Robin C. Padilla (p. 6, ibid). A second Certification dated December 11, 1992 issued by Captain Espino stated that the three firearms were not also registered in the name of Robinhood C. Padilla (p. 10, ibid)." Petitioner's defenses are as follows: (1) that his arrest was illegal and consequently, the firearms and ammunitions taken in the course thereof are inadmissible in evidence under the exclusionary rule; (2) that he is a confidential agent authorized, under a Mission Order and Memorandum Receipt, to carry the subject firearms; and (3) that the penalty for simple illegal possession constitutes excessive and cruel punishment proscribed by the 1987 Constitution. After a careful review of the records[27]of this case, the Court is convinced that petitioner's guilt of the crime charged stands on terra firma, notwithstanding the Solicitor-General's change of heart. Anent the first defense, petitioner questions the legality of his arrest. There is no dispute that no warrant was issued for the arrest of petitioner, but that per se did not make his apprehension at the Abacan bridge illegal. Warrantless arrests are sanctioned in the following instances:[28] "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. (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Paragraph (a) requires that the person be arrested (i) after he has committed or while he is actually committing or is at least attempting to commit an offense, (ii) in the presence of the arresting officer or private person.[29] Both elements concurred here, as it has been established that petitioner's vehicle figured in a hit and run - an offense committed in the "presence" of Manarang, a private person, who then sought to arrest petitioner. It must be stressed at this point that "presence" does not only require that the arresting person sees the offense, but also when he "hears the disturbance created thereby AND proceeds at once to the scene."[30] As testified

to by Manarang, he heard the screeching of tires followed by a thud, saw the sideswiped victim (balut vendor), reported the incident to the police and thereafter gave chase to the erring Pajero vehicle using his motorcycle in order to apprehend its driver. After having sent a radio report to the PNP for assistance, Manarang proceeded to the Abacan bridge where he found responding policemen SPO2 Borja and SPO2 Miranda already positioned near the bridge who effected the actual arrest of petitioner.[31] Petitioner would nonetheless insist on the illegality of his arrest by arguing that the policemen who actually arrested him were not at the scene of the hit and run.[32] We beg to disagree. That Manarang decided to seek the aid of the policemen (who admittedly were nowhere in the vicinity of the hit and run) in effecting petitioner's arrest, did not in any way affect the propriety of the apprehension. It was in fact the most prudent action Manarang could have taken rather than collaring petitioner by himself, inasmuch as policemen are unquestionably better trained and wellequipped in effecting an arrest of a suspect (like herein petitioner) who , in all probability, could have put up a degree of resistance which an untrained civilian may not be able to contain without endangering his own life. Moreover, it is a reality that curbing lawlessness gains more success when law enforcers function in collaboration with private citizens. It is precisely through this cooperation, that the offense herein involved fortunately did not become an additional entry to the long list of unreported and unsolved crimes. It is appropriate to state at this juncture that a suspect, like petitioner herein, cannot defeat the arrest which has been set in motion in a public place for want of a warrant as the police was confronted by an urgent need to render aid or take action. [33] The exigent circumstances of - hot pursuit, [34] a fleeing suspect, a moving vehicle, the public place and the raining nighttime - all created a situation in which speed is essential and delay improvident.[35] The Court acknowledges police authority to make the forcible stop since they had more than mere "reasonable and articulable" suspicion that the occupant of the vehicle has been engaged in criminal activity.[36] Moreover, when caught in flagrante delicto with possession of an unlicensed firearm (Smith & Wesson) and ammunition (M-16 magazine), petitioner's warrantless arrest was proper as he was again actually committing another offense (illegal possession of firearm and ammunitions) and this time in the presence of a peace officer.[37] Besides, the policemen's warrantless arrest of petitioner could likewise be justified under paragraph (b) as he had in fact just committed an offense. There was no supervening event or a considerable lapse of time between the hit and run and the actual apprehension. Moreover, after having stationed themselves at the Abacan bridge in response to Manarang's report, the policemen saw for themselves the fast approaching Pajero of petitioner,[38] its dangling plate number (PMA 777 as reported by Manarang), and the dented hood and railings thereof.[39] These formed part of the arresting police officer's personal knowledge of the facts indicating that petitioner's Pajero was indeed the vehicle involved in the hit and run incident. Verily then, the arresting police officers acted upon verified personal knowledge and not on unreliable hearsay information.[40] Furthermore, in accordance with settled jurisprudence, any objection, defect or irregularity attending an arrest must be made before the accused enters his plea. [41] Petitioner's belated challenge thereto aside from his failure to quash the information, his participation in the trial and by presenting his evidence, placed him in estoppel to assail the legality of his arrest.[42] Likewise, by applying for bail, petitioner patently waived such irregularities and defects.[43]
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We now go to the firearms and ammunitions seized from petitioner without a search warrant, the admissibility in evidence of which, we uphold. The five (5) well-settled instances when a warrantless search and seizure of property is valid,[44] are as follows: 1. warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court[45] and by prevailing jurisprudence[46], 2. Seizure of evidence in "plain view", the elements of which are:[47] (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 had 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.[48] 3. search of a moving vehicle.[49] 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.[50] 4. consented warrantless search, and 5. customs search. In conformity with respondent court's observation, it indeed appears that the authorities stumbled upon petitioner's firearms and ammunitions without even undertaking any active search which, as it is commonly understood, is a prying into hidden places for that which is concealed.[51] The seizure of the Smith & Wesson revolver and an M-16 rifle magazine was justified for they came within "plain view" of the policemen who inadvertently discovered the revolver and magazine tucked in petitioner's waist and back pocket respectively, when he raised his hands after alighting from his Pajero. The same justification applies to the confiscation of the M16 armalite rifle which was immediately apparent to the policemen as they took a casual glance at the Pajero and saw said rifle lying horizontally near the driver's seat.[52] Thus it has been held that: "(W)hen in pursuing an illegal action or in the commission of a criminal offense, the . . . police officers should happen to discover a criminal offense being committed by any person, they are not precluded from performing their duties as police officers for the apprehension of the guilty person and the taking of the corpus delicti."[53] "Objects whose possession are prohibited by law inadvertently found in plain view are subject to seizure even without a warrant."[54] With respect to the Berreta pistol and a black bag containing assorted magazines, petitioner voluntarily surrendered them to the police.[55] This latter gesture of petitioner indicated a waiver of his right against the alleged search and seizure[56], and that his failure to quash the information estopped him from assailing any purported defect.[57] Even assuming that the firearms and ammunitions were products of an active search done by the authorities on the person and vehicle of petitioner, their seizure without a search warrant nonetheless can still be justified under a search incidental to a lawful arrest (first instance). Once the lawful arrest was effected, the police may undertake a protective search[58] of the passenger compartment and containers in the vehicle[59] which are within petitioner's grabbing distance regardless of the nature of the offense.[60] This satisfied the two-tiered test of an incidental search: (i) the item to be searched (vehicle) was within the arrestee's custody or area of immediate control[61] and (ii) the search was contemporaneous with the arrest. [62] The products of that search are admissible evidence not excluded by the exclusionary rule. Another justification is a search of a moving vehicle (third

instance). In connection therewith, a warrantless search is constitutionally permissible when, as in this case, the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender (like herein petitioner with respect to the hit and run) or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense.[63] Anent his second defense, petitioner contends that he could not be convicted of violating P.D. 1866 because he is an appointed civilian agent authorized to possess and carry the subject firearms and ammunition as evidenced by a Mission Order[64] and Memorandum Receipt duly issued by PNP Supt. Rodialo Gumtang, the deputy commander of Task Force Aguila, Lianga, Surigao del Sur. The contention lacks merit. In crimes involving illegal possession of firearm, two requisites must be established, viz.: (1) the existence of the subject firearm and, (2) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess.[65] The first element is beyond dispute as the subject firearms and ammunitions[66] were seized from petitioner's possession via a valid warrantless search, identified and offered in evidence during trial. As to the second element, the same was convincingly proven by the prosecution. Indeed, petitioner's purported Mission Order and Memorandum Receipt are inferior in the face of the more formidable evidence for the prosecution as our meticulous review of the records reveals that the Mission Order and Memorandum Receipt were mere afterthoughts contrived and issued under suspicious circumstances. On this score, we lift from respondent court's incisive observation. Thus: "Appellant's contention is predicated on the assumption that the Memorandum Receipts and Mission Order were issued before the subject firearms were seized and confiscated from him by the police officers in Angeles City. That is not so. The evidence adduced indicate that the Memorandum Receipts and Mission Order were prepared and executed long after appellant had been apprehended on October 26, 1992. "Appellant, when apprehended, could not show any document as proof of his authority to possess and carry the subject firearms. During the preliminary investigation of the charge against him for illegal possession of firearms and ammunitions he could not, despite the ample time given him, present any proper document showing his authority. If he had, in actuality, the Memorandum Receipts and Missions Order, he could have produced those documents easily, if not at the time of apprehension, at least during the preliminary investigation. But neither appellant nor his counsel inform the prosecutor that appellant is authorized to possess and carry the subject firearms under Memorandum Receipt and Mission Order. At the initial presentation of his evidence in court, appellant could have produced these documents to belie the charged against him. Appellant did not. He did not even take the witness stand to explain his possession of the subject firearms. "Even in appellant's Demurrer to Evidence filed after the prosecution rested contain no allegation of a Memorandum Receipts and Mission Order authorizing appellant to possess and carry the subject firearms. "At the initial presentation of appellant's evidence, the witness cited was one James Neneng to whom a subpoena was issued. Superintendent Gumtang was not even mentioned. James Neneng appeared in court but was not presented by the defense. Subsequent hearings were reset until the defense found Superintendent Gumtang who appeared in court without subpoena on January 13, 1994."[67]
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The Court is baffled why petitioner failed to produce and present the Mission Order and Memorandum Receipt if they were really issued and existing before his apprehension. Petitioner's alternative excuses that the subject firearms were intended for theatrical purposes, or that they were owned by the Presidential Security Group, or that his Mission Order and Memorandum Receipt were left at home, further compound their irregularity. As to be reasonably expected, an accused claiming innocence, like herein petitioner, would grab the earliest opportunity to present the Mission Order and Memorandum Receipt in question and save himself from the long and agonizing public trial and spare him from proffering inconsistent excuses. In fact, the Mission Order itself, as well as the Letter-Directive of the AFP Chief of Staff, is explicit in providing that: "VIII. c. When a Mission Order is requested for verification by enforcement units/personnels such as PNP, Military Brigade and other Military Police Units of AFP, the Mission Order should be shown without resentment to avoid embarrassment and/or misunderstanding. "IX. d. Implicit to this Mission Order is the injunction that the confidential instruction will be carried out through all legal means and do not cover an actuation in violation of laws. In the latter event, this Mission Order is rendered inoperative in respect to such violation."[68] which directive petitioner failed to heed without cogent explanation. The authenticity and validity of the Mission Order and Memorandum Receipt, moreover, were ably controverted. Witness for the prosecution Police Supt. Durendes denied under oath his signature on the dorsal side of the Mission Order and declared further that he did not authorize anyone to sign in his behalf.[69] His surname thereon, we note, was glaringly misspelled as "Durembes."[70] In addition, only Unit Commanders and Chief of Offices have the authority to issue Mission Orders and Memorandum Receipts under the Guidelines on the Issuance of MOs, MRs, & PCFORs.[71] PNP Supt. Rodialo Gumtang who issued petitioner's Mission Order and Memorandum Receipt is neither a Unit Commander nor the Chief of Office, but a mere deputy commander. Having emanated from an unauthorized source, petitioner's Mission Order and Memorandum Receipt are infirm and lacking in force and effect. Besides, the Mission Order covers "Recom 1-12-Baguio City,"[72] areas outside Supt. Gumtang's area of responsibility thereby needing prior approval "by next higher Headquarters"[73] which is absent in this case. The Memorandum Receipt is also unsupported by a certification as required by the March 5, 1988 Memorandum of the Secretary of Defense which pertinently provides that: "No memorandum receipt shall be issued for a CCS firearms without corresponding certification from the corresponding Responsible Supply Officer of the appropriate AFP unit that such firearm has been officially taken up in that units property book, and that report of such action has been reported to higher AFP authority." Had petitioner's Memorandum Receipt been authentic, we see no reason why he cannot present the corresponding certification as well. What is even more peculiar is that petitioner's name, as certified to by the Director for Personnel of the PNP, does not even appear in the Plantilla of Non-Uniform Personnel or in the list of Civilian Agents or Employees of the PNP which could justify the issuance of a Mission Order, a fact admitted by petitioner's counsel.[74] The implementing rules of P.D. 1866 issued by the then PC-INP Chief and DirectorGeneral Lt. Gen. Fidel V. Ramos are clear and unambiguous, thus: "No Mission Order shall be issued to any civilian agent authorizing the same to carry firearms outside residence unless he/she is included in the regular plantilla of the government agency involved in law enforcement and is receiving regular compensation for the services he/she is rendering in the agency. Further, the

civilian agent must be included in a specific law enforcement/police/intelligence project proposal or special project which specifically required the use of firearms(s) to insure its accomplishment and that the project is duly approved at the PC Regional Command level or its equivalent level in other major services of the AFP, INP and NBI, or at higher levels of command."[75] Circular No. 1, dated January 6, 1986, of the then Ministry of Justice likewise provides as follows: "If mission orders are issued to civilians (not members of the uniformed service), they must be civilian agents included in the regular plantilla of the government agency involved in law enforcement and are receiving regular compensation for the service they are rendering." That petitioner's Mission Order and Memorandum Receipt were fabricated pieces of evidence is accentuated all the more by the testimony and certification of the Chief of the Records Branch of the firearms and Explosives Office of the PNP declaring that petitioner's confiscated firearms are not licensed or registered in the name of the petitioner.[76] Thus: "Q. In all these files that you have just mentioned Mr. Witness, what did you find, if any? "A. I found that a certain Robin C. Padilla is a licensed registered owner of one 9 mm pistol, Smith and Wesson with Serial No. TCT 8214 and the following firearms being asked whether it is registered or not, I did not find any records, the M-16 and the caliber .357 and the caliber .380 but there is a firearm with the same serial number which is the same as that licensed and/or registered in the name of one Albert Villanueva Fallorina. "Q. So in short, the only licensed firearms in the name of accused Robin C. Padilla is a pistol, Smith and Wesson, caliber 9 mm with Serial No. TCT 8214? "A. Yes, sir. "Q. And the firearms that were the subject of this case are not listed in the names of the accused in this case? "A. Yes, sir.[77] xxx xxx xxx And the certification which provides as follows: Republic of the Philippines Department of the Interior and Local Government GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE FIREARMS AND EXPLOSIVES OFFICE Camp Crame, Quezon City "PNPFEO5 28 November 1992 "C E R T I F I C A T I O N "TO WHOM IT MAY CONCERN: "THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon City is a licensed/registered holder of Pistol Smith and Wesson Cal 9mm with serial number TCT8214 covered by License No. RL M76C4476687. "Further certify that the following firearms are not registered with this Office per verification from available records on file this Office as of this date: M16 Baby Armalite SN-RP131120 Revolver Cal 357 SN-3219 Pistol Cal 380 Pietro Beretta SN-35723

"However, we have on file one Pistol Cal 380, Beretta with serial number 35723Y, licensed/registered to one Albert Villanueva Fallorina of 29 San Juan St., Capitol Pasig, MM under Re-Registered License. "This certification is issued pursuant to Subpoena from City of Angeles. "FOR THE CHIEF, FEO: (Sgd.) JOSE MARIO M. ESPINO Sr. Inspector, PNP Chief, Records Branch" [78] In several occasions, the Court has ruled that either the testimony of a representative of, or a certification from, the PNP Firearms and Explosives Office (FEO) attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of illegal possession of firearm. [79] In People vs. Tobias,[80] we reiterated that such certification is sufficient to show that a person has in fact no license. From the foregoing discussion, the fact that petitioner does not have the license or permit to possess was overwhelmingly proven by the prosecution. The certification may even be dispensed with in the light of the evidence[81] that an M-16 rifle and any short firearm higher than a .38 caliber pistol, akin to the confiscated firearms, cannot be licensed to a civilian,[82] as in the case of petitioner. The Court, therefore, entertains no doubt in affirming petitioner's conviction especially as we find no plausible reason, and none was presented, to depart from the factual findings of both the trial court and respondent court which, as a rule, are accorded by the Court with respect and finality.[83] Anent his third defense, petitioner faults respondent court "in applying P.D. 1866 in a democratic ambience (sic) and a non-subversive context" and adds that respondent court should have applied instead the previous laws on illegal possession of firearms since the reason for the penalty imposed under P.D. 1866 no longer exists.[84] He stresses that the penalty of 17 years and 4 months to 21 years for simple illegal possession of firearm is cruel and excessive in contravention of the Constitution.[85] The contentions do not merit serious consideration. The trial court and the respondent court are bound to apply the governing law at the time of appellant's commission of the offense for it is a rule that laws are repealed only by subsequent ones.[86] Indeed, it is the duty of judicial officers to respect and apply the law as it stands.[87] And until its repeal, respondent court can not be faulted for applying P.D. 1866 which abrogated the previous statutes adverted to by petitioner. Equally lacking in merit is appellant's allegation that the penalty for simple illegal possession is unconstitutional. The penalty for simple possession of firearm, it should be stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary to appellant's erroneous averment. The severity of a penalty does not ipso facto make the same cruel and excessive. "It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. 'The fact that the punishment authorized by the statute is severe does not make it cruel and unusual.' (24 C.J.S., 1187-1188). Expressed in other terms, it has been held that to come under the ban, the punishment must be 'flagrantly and plainly oppressive', 'wholly disproportionate to the nature of the offense as to shock the moral sense of the community' "[88] It is well-settled that as far as the constitutional prohibition goes, it is not so much the extent as the nature of the punishment that determines whether it is, or is not, cruel and unusual and that sentences of imprisonment, though perceived to be harsh, are not cruel or unusual if within statutory limits.[89]

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Moreover, every law has in its favor the presumption of constitutionality. The burden of proving the invalidity of the statute in question lies with the appellant which burden, we note, was not convincingly discharged. To justify nullification of the law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication,[90] as in this case. In fact, the constitutionality of P.D. 1866 has been upheld twice by this Court.[91] Just recently, the Court declared that "the pertinent laws on illegal possession of firearms [are not] contrary to anyprovision of the Constitution. . ."[92] Appellant's grievance on the wisdom of the prescribed penalty should not be addressed to us. Courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of Congress which enacts them and the Chief Executive who approves or vetoes them. The only function of the courts, we reiterate, is to interpret and apply the laws. With respect to the penalty imposed by the trial court as affirmed by respondent court (17 years 4 months and 1 day of reclusion temporal, as minimum, to 21 years of reclusion perpetua, as maximum), we reduce the same in line with the fairly recent case of People v. Lian[93] where the Court en banc provided that the indeterminate penalty imposable for simple illegal possession of firearm, without any mitigating or aggravating circumstance, should be within the range of ten (10) years and one (1) day to twelve years (12) of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day to twenty (20) of reclusion temporal, as maximum. This is discernible from the following explanation by the Court: "In the case at bar, no mitigating or aggravating circumstances have been alleged or proved, In accordance with the doctrine regarding special laws explained in People v. Simon,[94] although Presidential Decree No. 1866 is a special law, the penalties therein were taken from the Revised Penal Code, hence the rules in said Code for graduating by degrees or determining the proper period should be applied. Consequently, the penalty for the offense of simple illegal possession of firearm is the medium period of the complex penalty in said Section 1, that is, 18 years, 8 months and 1 day to 20 years. "This penalty, being that which is to be actually imposed in accordance with the rules therefor and not merely imposable as a general prescription under the law, shall be the maximum of the range of the indeterminate sentence. The minimum thereof shall be taken, as aforesaid, from any period of the penalty next lower in degree, which is, prision mayor in its maximum period to reclusion temporal in its medium period.[95] WHEREFORE, premises considered, the decision of the Court of Appeals sustaining petitioner's conviction by the lower court of the crime of simple illegal possession of firearms and ammunitions is AFFIRMED EXCEPT that petitioner's indeterminate penalty is MODIFIED to ten (10) years and one (1) day, as minimum, to eighteen (18) years, eight (8) months and one (1) day, as maximum. SO ORDERED Narvasa, C.J. (Chairman), Davide, Jr., Melo, and Panganiban, concur. G.R. No. 121917 July 31, 1996 ROBIN CARIO PADILLA, accused-appellant, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, plaintiff-appellees. RESOLUTION FRANCISCO, J.:p On appellant Robin C. Padilla's application for bail.
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In an information filed before the Regional Trial Court of Angeles City, appellant was charged with violation of P.D. No. 1866 for illegal possession of firearms punishable by reclusion temporal maximum to reclusion perpetua. 1Pending trial, appellant was released on bail. Thereafter, appellant was convicted as charged and meted an indeterminate penalty of 17 years 4 months and 1 day of reclusion temporal to 21 years of reclusion perpetua. He appealed to public respondent Court of Appeals, but judgment was rendered affirming his conviction. Respondent court cancelled his bailbond and ordered his arrest for confinement at the New Bilibid Prison. Appellant filed a motion for reconsideration but was denied. Dissatisfied, appellant is now before us by way of a petition for review on certiorari with an application for bail praying, among others, to be allowed to post bail for his temporary liberty. In his subsequent pleading, 1 appellant moved for the separate resolution of his bail application. The threshold issue is whether or not appellant is entitled to bail. Bail is either a matter of right, or of discretion. It is a matter of right when the offense charged is not punishable by death, reclusion perpetua or life imprisonment. 2 On the other hand, upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, bail becomes a matter of discretion. 3Similarly, if the court imposed a penalty of imprisonment exceeding six (6) years but not more than twenty (20) years then bail is a matter of discretion, except when any of the enumerated circumstances 4 under paragraph 3 of Section 5, Rule 114 is present then bail shall be denied. But when the accused is charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, and evidence of guilt strong, bail shall be denied, 5 as it is neither a matter of right nor of discretion. If the evidence, however, is not strong bail becomes a matter of right. 6 7 In People v. Nitcha , the Court, reiterating established jurisprudence, there said: . . . if an accused who is charged with a crime punishable by reclusion perpetua is convicted by the trial court and sentenced to suffer such a penalty, bail is neither a matter of right on the part of the accused nor of discretion on the part of the court. In such a situation, the court would not have only determined that the evidence of guilt is strong which would have been sufficient to deny bail even before conviction it would have likewise ruled that the accused's guilt has been proven beyond reasonable doubt. Bail must not then be granted to the accused during the pendency of his appeal from the judgment of conviction. Construing Section 3, Rule 114 of the 1985 Rules on Criminal Procedure, as amended, this Court, in the en banc Resolution of 15 October 1991 in People v.Ricardo Cortez, ruled that: Pursuant to the aforecited provision, an accused who is charged with a capital offense or an offense punishable by reclusion perpetua, shall no longer be entitled to bail as a matter of right even if he appeals the case to this Court since his conviction clearly imports that the evidence of his guilt of the offense charged is strong. 8 In this case, appellant was convicted of a crime punishable by reclusion perpetua. Applying the aforequoted rule, we find appellant not entitled to bail as his conviction clearly imports that the evidence of his guilt is strong. And contrary to appellant's asseveration, a summary hearing for his bail application for the sole purpose of determining whether or not evidence is strong is unnecessary. Indeed, the extensive trial before the lower court and the appeal before respondent court are more than sufficient in accomplishing the purpose for which a summary hearing for bail application is designed. Rule 114, Section 7 of the Rules of Court, moreover, is clear. Thus:

Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person charged with a capital offense, or an offense punishable by reclusion perpetuaor life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. Administrative Circular No. 2-92, in addition, applies in this case. The circular unequivocably provides that when an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail and after trial is convicted by the trial court of the offense charged, his bond shall be cancelled and the accused shall be placed in confinement pending resolution of his appeal. Appellant's application must, perforce, fail as he is no longer entitled to bail. Be that as it may, we are not unwilling to accommodate his request for an X-ray and Magnetic Resonance Imaging (MRI) at St. Luke's Hospital as follow-up examinations for his 1994 slipped-disc operation. It has been said that while justice is the first virtue of the court, yet admittedly, humanity is the second. Hence, petitioner's request for the badly needed X-ray and MRI examinations for which the New Bilibid Prison Hospital is inadequately equipped, as certified to by its Chief Officer, deserves attention. We recall that way back in 1946, we allowed in Dela Rama v.People's Court, 9 a precedent on which appellant now anchors his application, a prisoner to be released on bail when his continued detention would be injurious to his health. This trend, however, has changed with the development of times. Besides, appellant's situation is not akin to Dela Rama's factual milieu. While appellant now shall be denied bail, nevertheless, we cannot be indifferent to his medical needs. And by granting appellant's request, the Court is merely performing its supervisory powers over detainees to safeguard, among others, their proper accommodation and health pursuant to Section 25 of Rule 114 of the Rules of Court, as amended. ACCORDINGLY, the cancellation of appellant's bailbond by public respondent court is AFFIRMED and the instant application for bail is DENIED for lack of merit. Appellant's request for an X-ray and MRI examinations at St. Luke's Hospital is GRANTED which should be conducted at the first opportune time to be arranged by the Director of the New Bilibid Prison with the responsible officers of the hospital, provided that appellant shall be at all times subject to the security conditions imposed by the prison's director. The responsibility for the enforcement of the subject request, as well as the security of the appellant, devolves upon the Director of the New Bilibid Prison. Upon termination of the medical examinations, appellant shall be recommitted to prison without delay. As much as possible, any unnecessary publicity should be avoided. SO ORDERED. Narvasa, C.J., Davide, Jr., Melo and Panganiban, JJ., concur. [G.R. No. 123123. August 19, 1999] EDWIN CADUA, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. DECISION QUISUMBING, J.: On appeal by certiorari are the Decision[1] of the Court of Appeals in CA-G.R. No. 16312, promulgated on June 30, 1995, and the subsequent Resolution[2] dated December 15, 1995, denying petitioners motion for reconsideration. The appellate courts decision affirmed in toto the judgment of the Regional Trial Court of Quezon City in Criminal Case No. Q-92-27261,[3] which disposed of the case as follows:
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WHEREFORE, in view of the foregoing, this Court finds the accused Edwin Cadua guilty beyond reasonable doubt of the crime charge (sic) against him, and hereby sentences him to suffer an indeterminate penalty of 12 years 5 months and 10 days of Reclusion Temporal as Minimum to 17 years, 4 months and 1 day of Reclusion Temporal as Maximum, and to pay the cost. The accused is entitled to the benefits of the provision of Article 29 of the Revised Penal Code, as amended, provided he does not fall within the exceptions thereof. SO ORDERED.[4] This case stemmed from a charge for Illegal Possession of Firearms. The Information reads: The undersigned Assistant City Prosecutor accuses EDWIN CADUA Y QUINTAYO ov (sic) violation of PD 1866 (Illegal Possession of Firearms and Ammunitions), committed as follows: That on or about the 2nd day of January, 1992, in Quezon City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without any authority in law, did then and there wilfully, unlawfully and feloniously have in his possession and under his control and custody one (1) .38 cal. revolver Smith and Wesson paltik, brown finished and wooden handle with four (4) live ammunitions, without first having obtained the proper license therefor from the proper authorities. Contrary to law.[5] Assisted by counsel de oficio, petitioner was arraigned in open court, waived the reading of the Information, and entered a plea of not guilty.[6] As culled from the records, the following factual and procedural antecedents are pertinent to this appeal. In the evening of January 2, 1992, between 6:30 and 7:00 in the evening, PO3 Joselito Burdeos and companions, all assigned with the Central Police District in Quezon City, were aboard mobile unit 118 patrolling the vicinity of Fairview, Quezon City. Their tour of duty was from 3:00 p.m. to 11:00 p.m. While deployed, they received a radio dispatch requesting them to proceed to Lot 10 Block 14, Alden Street, North Fairview. Said dispatch was based on a report concerning an alleged holdup of complainants Lourdes Bulos and her daughter Bernadette, who were in need of police assistance.[7] At said address, police officers found both complainants who stated that the alleged holduppers had just fled. PO3 Burdeos asked where the robbery took place. Complainants replied that they were held up by two (2) men at the corner of Archer and Regalado Streets, near their house. The police officers also asked in what direction the alleged holduppers fled and what they were wearing. Then, the police officers requested the complainants to board the patrol unit in order to facilitate the search for the two (2) men.[8] As they were patrolling around the area, complainants informed the police officers that one of the suspects was dressed in jeans and a t-shirt while the other was dressed in a black top and black pants. The police officers then noticed two (2) men walking alongside the street and as the officers slowed down the mobile unit to get a closer look, the complainants identified the men as the alleged holduppers, one of which is the petitioner in this case. The police officers slowed down to a stop, alighted from the vehicle, and called out to the suspects. As Burdeos was approaching the suspects, he noticed that petitioner Cadua was about to pull something which was tucked at the right side of his waist. Burdeos promptly pointed his firearm at Cadua and warned him not to move. He then frisked Cadua and found in his possession a .38 caliber paltik revolver. PO3 Reynoso Bacnat then apprehended Caduas companion, who was later identified as Joselito Aguilar. In Aguilars possession was found a fan knife.[9]

Verification with the Firearms and Explosives Unit revealed that petitioner-accused Edwin Cadua is not a valid license holder of a .38 caliber paltik revolver.[10] Originally, Chief Inspector Herminigildo Faustino referred to the City Prosecutors Office for investigation the cases of Robbery, Violation of PD 1866 (Illegal Possession of Firearms) and Violation of PD 5121 (Concealment of a Deadly Weapon). [11] However, Assistant City Prosecutor Edgaro Paragua by resolution dated January 6, 1992, found only the case for Illegal Possession of Firearms warranting the filing of an Information. According to Prosecutor Paragua, during the investigation for robbery, complainants manifested their doubts as to the identity of the respondents, hence he set this matter for further investigation. As to the charge for Violation of City Ordinance 5121 against Aguilar, for concealment of a deadly weapon, it was found that there was sufficient evidence to warrant the filing of an Information against him. But, considering that said violation falls under the Rules of Summary Procedure, it could not be included in the Information[12] for alleged possession of firearms, which concerned only herein petitioner. On the same day that this Resolution by Prosecutor Paragua was released, the Information against petitioner was filed.[13] On arraignment, petitioner pleaded not guilty. Trial on the merits ensued, resulting in his conviction.[14] Petitioner seasonably appealed to the Court of Appeals, which affirmed the decision of the trial court. The CA ruled that the warrantless arrest of petitioner was based on probable cause and that the police officers had personal knowledge of the fact which led to his arrest. The subsequent search was therefore an incident to the arrest, making the firearm found in his possession admissible in evidence. Moreover, the CA stated that the positive declaration of prosecution witness Joselito Burdeos, that the .38 paltik revolver was found in petitioners possession, already proved one of the essential elements of the crime of Illegal Possession of Firearms.[15]The CA further held that: . . . As between the positive declaration of prosecution eyewitness and only the negative assertion of accused-appellant, the former deserves more credence and is entitled to greater evidentiary weight. (People vs. Regalario, 220 SCRA 368) Besides, courts generally give full faith and credence to testimony of police officers as they are presumed to have acted in the performance of official duty in a regular manner. (People vs. Cabisada, 226 SCRA 383) Moreover, accused-appellant has not imputed any ill motive on the said prosecution witnesses as to why they would testify against him, except to tell the truth. (People vs. Lizada, 225 SCRA 708)[16] Petitioner now comes before us on certiorari under Rule 45 of the Rules of Court, assigning the following errors: THE COURT OF APPEALS ERRED IN AFFIRMING THE CONVICTION AND NOT REVERSING THE SAME. THE COURT OF APPEALS ERRED IN RULING THAT THE PALTIK WAS RECOVERED IN AN INCIDENTAL SEARCH DURING A WARRANTLESS ARREST MADE BY THE POLICE OFFICERS, HENCE ADMISSIBLE IN EVIDENCE. THE COURT OF APPEALS ERRED IN BELIEVING THE TESTIMONY OF THE POLICE OFFICERS WHEN IT IS CLEAR THAT THE APPREHENSION OF THE ACCUSED WAS ILLEGAL AND THAT THE FILING OF THE CHARGES FOR ILLEGAL POSSESSION OF FIREARMS IS BUT AN AFTERTHOUGHT SINCE THE PRIVATE COMPLAINANT ADMITTED THAT THE ACCUSED CADUA WAS NOT THE HOLDUPPER. THE COURT OF APPEALS ERRED IN NOT ACQUITTING THE ACCUSED BASED ON REASONABLE DOUBT.[17] Discussion of petitioners assignment of errors may first be subsumed into one principal inquiry: whether or not his right to be protected from any unlawful
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warrantless arrest has been violated. According to petitioner, since his arrest is null and void, the search conducted by the police officers as an incident to his arrest is likewise defective. In support of his claim, petitioner seeks to invoke his constitutional right to be secure against unreasonable searches and seizures,[18] and the corresponding prohibition against admitting into evidence anything obtained in violation of such right.[19] Petitioner further claims that the police officers incorrectly premised their action on the instances provided for in warrantless arrests. He adds that since the complainants later on disclaimed petitioners identity as the holdupper and that no case of robbery was filed against him, any probable cause or personal knowledge thereof, alleged by the arresting officers, had been totally negated. Thus, petitioner now posits that, absent probable cause or personal knowledge by the arresting officers, the arrest and the incidental search are illegal; hence, the paltik they seized is inadmissible in evidence.[20] According to petitioner, despite lack of probable cause, he was still arrested because [k]nowing that the police officers committed a blunder they concocted a story that they were able to recover a paltik from the accused, so that even if the accused is freed from the robbery charge they can still keep him for alleged possession of firearms.[21] When police officers realized that they caught the wrong persons, they would not [have] to (sic) go home empty handed,[22] petitioner asserts. In order to bolster his claim of innocence, he cites findings on record which showed that he was negative for powder burns, although the paltik at the time of its confiscation was positive for gun powder residue.[23] Respondents, through the Office of the Solicitor General (OSG), maintain that the search was an incident to a lawful arrest. Ergo, they assert that the .38 paltik revolver recovered from petitioner is admissible in evidence. They add that petitioners denials cannot prevail over the positive testimony of PO3 Burdeos. The finding that petitioner was negative for powder burns is immaterial, according to respondents. Both the trial and appellate courts, according to respondents, found that at the time that petitioner was arrested, the police officers had probable cause to arrest him based on the information which was given by the complainants. Petitioner Cadua and his companion, Aguilar, were positively identified by both complainants (mother and daughter) as the perpetrators of the robbery even before the police officers alighted from the car to approach petitioner and his companion, according to respondents. When the police officers effected the arrest, they already had probable cause and personal knowledge that petitioner was a suspect in an offense just committed. As a logical consequence, according to respondents, the search incidental to the arrest is valid, and the revolver recovered admissible in evidence.
[24]

According to the Solicitor General, apart from the warrantless arrest covered under Section 5 (b), Rule 113 of the Rules of Court, wherein an offense has just been committed and the arresting person has personal knowledge of such offense, warrantless arrest is also provided for under paragraph (a) of the aforementioned section, that is, when in the presence of the arresting officer, the person is actually committing, or is attempting to commit, an offense. In this case, at the time petitioner was called by PO3 Burdeos, petitioner was actually committing an offense when he made an attempt to pull the revolver which was tucked in his waist, according to the respondents. Taking this circumstance into account, they add, the search and seizure are valid and lawful for being incidental to the warrantless arrest.[25]

Petitioners denial regarding possession of the .38 paltik revolver has no independent support nor corroboration, according to respondents. On this matter, the Solicitor General comments as follows: ... PO3 Burdeos clearly testified that he saw the .38 paltik revolver in the possession of petitioner when he arrested the latter. Thus, petitioners defense of denial, which is uncorroborated and self-serving negative evidence, cannot be given greater weight than the declaration of PO3 Burdeos who testified on affirmative matters (People vs. Ballagan, 247 SCRA 535). Moreover, no proof was shown that the arresting officers had improper or ill motive to testify falsely against petitioner. Accordingly, PO3 Burdeos testimony should be given full faith and credit (People vs. Gazmen, 247 SCRA 414). Besides, as an arresting officer who is dutybound to enforce the law, PO3 Burdeos is presumed to have regularly performed his official duty (Section 3 [m], Rule 131 of the Rules of Court; People vs. Basilgo, 235 SCRA 191; People vs. Pacleb, 217 SCRA 92).[26] Lastly, respondents refute petitioners arguments that the negative findings of gun powder residue should be taken to mean that he did not have possession of the gun. Whether or not petitioner fired the gun is not pertinent to the charge of illegal possession of firearms, respondents argue. It does not follow that just because a person is found negative for powder burns, he did not fire a gun, they add. They also cite the findings that even if one has just fired a gun, he may be negative for nitrates.[27] From a careful study of the records of this case, we find no cogent reason to disturb the findings by the trial court as affirmed by the appellate court. Petitioners declaration that the police officers trumped up a charge of illegal possession just so that they would not go home empty-handed is far from persuasive. Findings of the trial court as to the credibility of the testimonies of the prosecution and the lone testimony of the defense deserve, in our view, great weight. Jurisprudence has consistently held that, in the absence of any clear showing that the trial court overlooked, misunderstood or misapplied some facts or circumstances of weight or substance which could have affected the result of the case, its findings on the credibility of witnesses are entitled to the highest degree of respect and will not be disturbed on appeal.[28] Furthermore, the presumption of regularity in the performance of official duty[29] strengthens the foregoing doctrine on the credibility of witnesses. The uncorroborated claim of the accused that he had been framed[30] is, to our mind, self-serving as well as baseless. Considering the circumstances in this case, we find that there was sufficient reason to justify a warrantless arrest of petitioner for illegal possession of firearms. Section 5 of Rule 113 of the Rules of Court, provides that: Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraph (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7.
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The findings of the trial court, accepted by the appellate court, show the pertinence of paragraphs (a) and (b) of Section 5 abovecited. Through police dispatch to the scene of a crime report and in the presence of complainants, it was ascertained that a robbery had just been committed, and the arresting officers had personal knowledge that petitioner was directly implicated as a suspect. As explained by a respected authority on criminal procedure: It has been ruled that personal knowledge of facts, in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion. . . . Peace officers may pursue and arrest without warrant any person found in suspicious places or under suspicious circumstances reasonably tending to show that such person has committed, or is about to commit, any crime or breach of the peace. Probable cause for an arrest without warrant is such a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves as to warrant a reasonable man in believing the accused to be guilty. Besides reasonable ground of suspicion, action in good faith is another protective bulwark for the officer. Under such conditions, even if the suspected person is later found to be innocent, the peace officer is not liable. The cases hold that a peace officer might arrest and detain in prison for examination persons walking in the street at night whom there is reasonable ground to suspect of felony, although there is no proof of a felony having been committed; but the arrest would be illegal if the person so arrested was innocent and there were no reasonable grounds of suspicion to mislead the officer. The reason of the rule is apparent. Good people do not ordinarily lurk about the streets and uninhabited premises at midnight. Citizens must be protected from annoyance and crime. Prevention of crime is just as commendatory as the capture of criminals. Surely the officer must not be forced to await the commission of robbery or other felony. The rule is supported by the necessities of life.[31] Petitioner could not dispute that there was an initial report to the police concerning the robbery. A radio dispatch was then given to the arresting officers, who proceeded to Alden Street to verify the authenticity of the radio message. When they reached said place, they met up with the complainants who initiated the report about the robbery. Upon the officers invitation, both mother and daughter boarded the mobile unit to join them in conducting a search of the nearby area. The accused was spotted in the vicinity. Based on the reported statements of complainants, he was identified as a logical suspect in the offense just committed. Moreover, at that time that PO3 Burdeos called out to petitioner, the latter was on the act of drawing out his paltik revolver. Burdeos testimony on this matter reads: WITNESS:We alighted and approached and we noticed that there is something the accused is trying to hide and also trying to pull out. FISCAL:Was he able to pull that something? WITNESS:No. FISCAL:And, what was that? WITNESS:The .38 paltik. FISCAL:When you saw [that] what did you do . . . when you saw the accused pulling out that .38 paltik? WITNESS:I pointed [at] him my gun [then] shouted dont move or Ill shoot! [32] Nothing in petitioners testimony successfully rebuts Burdeos narration. Actual possession of an unlicensed firearm, which petitioner attempted to draw out, by itself, amounts to committing an offense in the presence of the arresting officer contemplated in paragraph (a), Section 5 of the abovementioned Rule.

The fact that the robbery case was never brought to trial does not mean that the legality of the arrest was tainted, for such arrest does not depend upon the indubitable existence of the crime.[33] It is not necessary that the crime should have been established as a fact in order to regard the detention as legal. The legality of apprehending the accused would not depend on the actual commission of the crime but upon the nature of the deed, where from such characterization it may reasonably be inferred by the officer or functionary to whom the law at the moment leaves the decision for the urgent purpose of suspending the liberty of the citizen. [34] Furthermore, the Court acknowledges that police authorities can stop a person forcibly when such action is based on something more than a mere reasonable and articulable suspicion that such a person has been engaged in criminal activity. [35] All told, the arresting officers reasonably acted upon personal knowledge at the time, and not on unreliable hearsay information,[36] to effect a lawful arrest. That the victims of the reported robbery failed to pursue a formal complaint is not decisive in this case. What is material is that the officers acted in response to the events which had just transpired and called for the appropriate police response. As to the element of personal knowledge, the officers could not be faulted. It is not correct to say they acted without observing standards of reasonableness and probable cause. They responded promptly to a legitimate complaint of the victims and they had a reasonable suspicion that the persons pointed out at the scene were the perpetrators of the offense. This in itself is sufficient justification for the officers to call the attention of the accused at that point in time when he was identified as a suspect by the complainants. The reason which prompted complainants to refrain from identifying the accused during the examination by the police regarding the robbery is not determinative of the resolution of the present case. It bears stressing that the case now before us is for the illegal possession of firearms, and not for the robbery. Petitioner proceeds from a wrong premise when, in support of his assigned errors, he argues that the arrest and the search should be considered invalid merely because the robbery charge was never formally filed and prosecuted. In Rabaja vs. Court of Appeals,[37] a Department of Environment and Natural Resources employee, Rabaja, was charged with and convicted of Illegal Possession of Firearms even though the private complainant whom he threatened eventually dropped the charges against him. The charge for illegal possession was pursued by the authorities. Petitioner avers that complainants admitted that accused was not the holdupper. [38] A perusal of the records shows no such admission. The resolution, issued by Assistant City Prosecutor Paragua in the robbery case, stated that no information could yet be filed because complainants manifested doubts as to the identity of their assailants.[39] The resolution should not be taken to mean an admission that petitioner Cadua had been totally ruled out as a suspect in the crime. If petitioner wanted to impress the Court that even on probable cause he could not be accosted, then that impression is inaccurate and wrong. On cross-examination, petitioner himself did not object to the question but admitted the fact that the complaint was withdrawn, but not for the reason that he was ruled out as the person who committed the offense.[40] Given the circumstances in this case, we are constrained to affirm the finding below that the warrantless arrest of petitioner is lawful. We also agree that the incidental search and subsequent seizure of the unlicensed firearm in question is likewise lawful and valid pursuant to Section 12, Rule 126 of the Rules of Court, to wit: 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.
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Noteworthy, among the exceptions to the necessity for a search warrant is the right of search and seizure as an incident to a lawful arrest. A lawful arrest may be made either while a crime is actually being committed, or soon after its commission. The right to search includes in these instances that of searching the person of one who is arrested, in order to find and seize things connected with the crime as its fruits or as the means for its commission.[41] When petitioner was searched contemporaneously with the arrest, the paltik was found in his possession, and seized. Such seizure cannot be considered unlawful nor unreasonable. Moreover, at that moment of search and seizure, there was in the mind of the arresting officer more than a mere suspicion that petitioner was armed. Petitioners movements clearly suggested the presence of a weapon tucked at the side of his waist. The fact that Burdeos made an immediate draw for his service revolver was an instinctive response to petitioners actions which, under the circumstances, indicated a high probability of an offensive attack with a lethal weapon. Petitioners counsel mistakenly relies on the case of People vs. Aminnudin.[42] In said case, Aminnudin was acquitted on the charge of illegally transporting marijuana because the Court found that the search could not be considered an incident to a lawful arrest considering that the circumstances did not come under the exceptions provided for by applicable law and the Rules of Court. It was therein held that the warrantless arrest and the subsequent search were illegal, hence the evidence thereby obtained was inadmissible. However, Aminnudin differs radically from the case now before us. In Aminnudin, [i]t is clear that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified. And from the information they had received they could have persuaded a judge that there was probable cause, indeed to justify the issuance of a warrant.[43] A situation involving a surveillance mission like that of Aminnudin could not compare to that of an unexpected crime of holdup-robbery. Police behavior in the latter case would necessitate a different course of action as well as different rules of engagement, compared to the former. In the case now before us, there is no supervening event, much less considerable amount of time between reaching the scene of the crime and the actual apprehension of the suspect. Furthermore, in accordance with settled jurisprudence, any objection, to the arrest, or question concerning the defect or irregularity attending an arrest must be made before the accused enters his plea.[44] The records in this case shows no such objection to the arrest, nor any question as to the irregularity of his arrest, raised by petitioner. Petitioners arrest having been found valid and the seizure of the firearms lawful, we now focus on the second issue for resolution, whether or not petitioner is liable for the offense of illegal possession of firearms? Here two elements must be proved: (a) positively, the existence of the subject firearm, and (b) negatively, the fact that the accused did not have a license or permit to possess the same.[45] We find both elements present in this case. First, testimony of witnesses on record affirms that the paltik revolver was taken from the person of petitioner at the time he was arrested. Further SPO1 Cesar Gabitan, of the Firearms and Explosive Unit, testified without contradiction that petitioner had no license or permit to possess the gun.[46] This Court has ruled in several cases that either the testimony of a representative of, or a certification from, the Philippine National Police- Firearms and Explosives Office (PNP-FEO) attesting

that a person is not a licensee of any firearm suffices to prove beyond reasonable doubt the second element of illegal possession of firearms.[47] Petitioners claim that since he was found negative for gun powder burns, he should be held innocent and acquitted of the charge, considering that the paltik at the time of its confiscation was positive for gun powder residue, does not quite add up logically. The appellate courts holding on the matter deflates petitioners defense: Neither do [w]e find accused-appellants assertion that he was negative for gun powder burns to be relevant in this case. Whether or not accused-appellant fired the gun in question does not erase his offense of illegally possessing the said gun. Besides, being negative of gunpowder burns does not necessarily mean that accused-appellant has not fired the gun. . . . xxx As stated by the trial court: On questioning by the Court, witness cited several factors wherein a person who has fired his firearm but was negative for nitrates; the type of caliber of the ammunition of the firearm itself; a new firearm or revolver type would be so close that nitrates could not escape from the bridge of the gun, whereas an old firearm where the mechanism is already a little bit loose, more nitrates appear on the subject who fired the gun; the direction of the wind if the subject is firing the firearm against the target, the nitrates will be blown away from the scene and so he would also be negative of nitrates; depending on the velocity of the wind, humidity of the area where the shooting happened; in a closed room or place and [where] there is no wind on or against the firearm, he could be positive for nitrates; whereas outside the room he would be negative and the less humid area the less fall of nitrates on the subject, and another possibility is if the subject is using something to cover his hand firing the gun it would be negative for nitrates and in using a .45 caliber gun, which has a close and tight compartment where the bullet is set and with the revolver type firearm which has an open chamber, the former has a greater possibility that he would be negative for nitrates.[48] The penalty imposed upon petitioner, however, deserves a review. At the time that he was convicted, the penalty for Illegal Possession of Firearms under Presidential Decree 1866 was reclusion temporal in its maximum period to reclusion perpetua. The trial court, as affirmed by the appellate court, imposed on petitioner the penalty of 12 years, 5 months and 10 days of reclusion temporal as minimum to 17 years, 4 months and 1 day of reclusion temporal as maximum.[49] In view of the enactment of Republic Act 8294 on June 6, 1997, certain provisions of P.D. 1866 have been amended. With the passage of the aforementioned law, the penalty for simple illegal possession of a low-powered firearm, such as paltik, has been reduced to prision correccional in its maximum period[50] and a fine of not less than fifteen thousand pesos (P15,000.00). Therefore following R.A. 8294, the penalty imposed on petitioner should now be lowered to benefit the petitioner. For the penalty provided for simple illegal possession in the amendment is lower than that provided for under the old law. Since the provision of R.A. 8294 is favorable to petitioner, it should have a retroactive effect, pursuant to Article 22 of the Revised Penal Code.[51] Moreover, in conjunction with the new law, we should also apply the doctrine laid down in People vs. Martin Simon[52] in relation to Section 1 of the Indeterminate Sentence Law.[53] Although Illegal Possession of Firearms is considered a special law, the penalty provided is taken from the range of penalties in the Revised Penal Code, thus, in relation to Section 1 of the Indeterminate Sentence Law, it is covered by the first clause of said section. Here applicable by analogy and extension is the holding in Simon:
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It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal Code, states that if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. We hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not taken from and is without reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may be said that the offense is punished under that law. (Emphasis Supplied)[54] Finally, consistent with the doctrine that an appeal in a criminal case throws the whole case open for review, we find that the appellate court may, in applying the new or amended law, additionally impose a fine which if unpaid will subject the convict to subsidiary imprisonment, pursuant to Article 39 of the Revised Penal Code.[55] Thus, here we find the imposition of a fine also in order. WHEREFORE, the decision of the Court of Appeals is AFFIRMED, with the MODIFICATION that petitioner is hereby SENTENCED to 2 years, 4 months, and 1 day of prision correccional medium as minimum, to 5 years, 4 months, and 20 days of prision correccional maximum as maximum, there being no aggravating and mitigating circumstances, plus a fine of P15,000.00 with subsidiary imprisonment should petitioner fail to pay. However, since petitioner has already served more than seven (7) years, (5) months in prison, which is now beyond the maximum principal penalty imposed at present for his offense, even if a subsidiary penalty for unpaid fine is included, he is hereby ordered RELEASED immediately, unless he is being held for any other lawful cause. SO ORDERED. G.R. No. 93239 March 18, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDISON SUCRO, accused-appellant. The Solicitor General for plaintiff-appellee. Fidencio S. Raz for accused-appellant. GUTIERREZ, JR., J.:p Edison Sucro was charged with and convicted of violation of Section 4, Article II of the Dangerous Drugs Act, under an Information which reads: That on or about the 21st day of March, 1989, in the evening, in the Poblacion, Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, acting as a pusher or broker in the business of selling, administering, delivery, giving away to another and/or distributing prohibited drugs, did then and there wilfully, unlawfully and feloniously and without authority of law have in his possession and control nineteen (19) pieces of marijuana cigarette sticks and four (4) tea bags of dried marijuana leaves which were confiscated from him by the police authorities of Kalibo, Aklan, shortly after having sold one tea bag of dried marijuana leaves to a customer. (Rollo, p. 9) Upon arraignment, the accused-appellant, assisted by counsel, entered a plea of "not guilty" to the offense charged. Trial ensued and a judgment of conviction was rendered, the pertinent portion of which reads: WHEREFORE, judgment is rendered finding the accused Edison Sucro guilty of the sale of prohibited drug under Section 4, Article II of the Dangerous Drug Act, as amended, and sentencing him to suffer the penalty of life imprisonment, and pay a

fine of P20,000, and costs. He shall be entitled to full credit in the service of his sentence with the period for which he has undergone preventive imprisonment to the date of promulgation of this judgment. All the items of marijuana confiscated in this case are declared forfeited in favor of the State. (Rollo, p. 41) From the foregoing judgment of conviction, accused-appellant interposes this appeal, assigning the following as errors allegedly committed by the court a quo, to wit: I THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE FOR THE PROSECUTION EXHIBITS "E"-"E-4", TEA BAGS OF ALLEGED MARIJUANA, TO BE THE CORPUS DELICTI; FURTHERMORE, THAT THE SAME WERE TAKEN WITHOUT THE REQUIRED WARRANT OF SEARCH AND ARREST SINCE THE ACCUSED WAS NOT IN THE ACT OF COMMITTING ANY OFFENSE AT THE TIME OF HIS ARREST. II THE LOWER COURT ERRED IN FINDING THE ACCUSED EDISON SUCRO GUILTY OF THE SALE OF PROHIBITED DRUGS UNDER SECTION 4, ARTICLE II, OF THE DANGEROUS DRUGS ACT AND SENTENCING HIM TO SUFFER A PENALTY OF LIFE IMPRISONMENT AND TO PAY A FINE OF P 20,000.00. (Appellant's Brief, p. 1) The antecedent facts of the case as summarized by the Solicitor General are as follows: On March 21, 1989, Pat. Roy Fulgencio, a member of the INP, Kalibo, Aklan, was instructed by P/Lt. Vicente Seraspi, Jr. (Station Commander of the INP Kalibo, Aklan) to monitor the activities of appellant Edison Sucro, because of information gathered by Seraspi that Sucro was selling marijuana. (p. 6, TSN, May 2,1989). As planned, at about 5:00 P.M. on said date, Pat. Fulgencio Positioned himself under the house of a certain Arlie Regalado at C. Quimpo Street. Adjacent to the house of Regalado, about 2 meters away, was a chapel. Thereafter, Pat. Fulgencio saw appellant enter the chapel, taking something which turned out later to be marijuana from the compartment of a cart found inside the chapel, and then return to the street where he handed the same to a buyer, Aldie Borromeo. After a while appellant went back to the chapel and again came out with marijuana which he gave to a group of persons. (pp. 6-8, 15-18, Ibid). It was at this instance that Pat. Fulgencio radioed P/Lt. Seraspi and reported the activity going on. P/Lt. Seraspi instructed Pat. Fulgencio to continue monitoring developments. At about 6:30 P.M., Pat. Fulgencio again called up Seraspi to report that a third buyer later Identified as Ronnie Macabante, was transacting with appellant. (pp. 18-19, Ibid) At that point, the team of P/Lt. Seraspi proceeded to the area and while the police officers were at the Youth Hostel at Maagma St., Pat. Fulgencio told P/Lt. Seraspi to intercept Macabante and appellant. P/Lt. Seraspi and his team caught up with Macabante at the crossing of Mabini and Maagma Sts. in front of the Aklan Medical Center. Upon seeing the police, Macabante threw something to the ground which turned out to be a tea bag of marijuana. (pp. 6-8, TSN, June 19, 1989) When confronted, Macabante readily admitted that he bought the same from appellant (Edison Sucro) in front of the chapel. (p. 6, TSN, May 24, 1989) The police team was able to overtake and arrest appellant at the corner of C. Quimpo and Veterans Sts. The police recovered 19 sticks and 4 teabags of marijuana from the cart inside the chapel and another teabag from Macabante, The teabags of marijuana were sent to the PC-INP Crime Laboratory Service, at Camp Delgado, Iloilo City for analysis. The specimens (Exhibits "G" to "G-18", Exhibits "E" to "E-4") were all found positive of marijuana. (pp. 47, TSN, Sept. 4, 1989)" (Appellee's Brief, pp. 3-6)

As can be seen from the facts, the issue hinges mainly on whether or not the arrest without warrant of the accused is lawful and consequently, whether or not the evidence resulting from such arrest is admissible. We rule in the affirmative. The accused-appellant contends that his arrest was illegal, being a violation of his rights granted under Section 2, Article III of the 1987 Constitution. He stresses that there was sufficient time for the police officers to apply for a search and arrest warrants considering that Fulgencio informed his Station Commander of the activities of the accused two days before March 21, 1989, the date of his arrest. This contention is without merit. Section 5, Rule 113 of the Rules on Criminal Procedure provides for the instances where arrest without warrant is considered lawful. The rule states: Arrest without warrant, when lawful. A peace officer or private person may, without warrant, arrest a person: (a) When in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; (Emphasis supplied) An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof. (U.S. v. Fortaleza, 12 Phil. 472 [1909]; and U.S. v. Samonte, 16 Phil. 516 [1910]) The records show that Fulgencio went to Arlie Regalado's house at C. Quimpo Street to monitor the activities of the accused who was earlier reported to be selling marijuana at a chapel two (2) meters away from Regalado's house. Fulgencio, within a distance of two meters saw Sucro conduct his nefarious activity. He saw Sucro talk to some persons, go inside the chapel, and return to them and exchange some things. These, Sucro did three times during the time that he was being monitored. Fulgencio would then relay the on-going transaction to P/Lt. Seraspi. Anent the second requirement, the fact that Macabante, when intercepted by the police, was caught throwing the marijuana stick and when confronted, readily admitted that he bought the same from accused-appellant clearly indicates that Sucro had just sold the marijuana stick to Macabante, and therefore, had just committed an illegal act of which the police officers had personal knowledge, being members of the team which monitored Sucro's nefarious activity. The court earlier indicated in the case of People v. Bati (G.R. No. 87429, August 27, 1990) that police officers have personal knowledge of the actual commission of the crime when it had earlier conducted surveillance activities of the accused. Thus, it stated: When Luciano and Caraan reached the place where the alleged transaction would take place and while positioned at a street comer, they saw appellant Regalado Bati and Warner Marquez by the side of the street about forty to fifty meters away from them (the public officers). They saw Marquez giving something to Bati, who, thereafter handed a wrapped object to Marquez who then inserted the object inside the front of his pants in front of his abdomen while Bati, on his part, placed the thing given to him inside his pocket. (p. 2) xxx xxx xxx . . . Both Patrolman Luciano and Caraan actually witnessed the same and their testimonies were based on their actual and personal knowledge of the events that

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took place leading to appellant's arrest. They may not have been within hearing distance, specially since conversation would expectedly be carried on in hushed tones, but they were certainly near enough to observe the movements of the appellant and the buyer. Moreover, these prosecution witnesses are all law enforcers and are, therefore, presumed to have regularly performed their duties in the absence of proof to the contrary (People v. Bati, supra citing People v. Agapito, G.R. No. 73786, October 12, 1987) The accused questions the failure of the police officers to secure a warrant considering that Fulgencio himself knew of Sucro's activities even prior to the former's joining the police force. Fulgencio reported Sucro's activities only three days before the incident. As the records reveal, Fulgencio and Sucro had known each other since their childhood years and that after Fulgencio joined the police force, he told the accusedappellant not to sell drugs in their locality. Hence, it is possible that because of this friendship, Fulgencio hesitated to report his childhood friend and merely advised him not to engage in such activity. However, because of reliable information given by some informants that selling was going on everyday, he was constrained to report the matter to the Station Commander. On the other hand, the failure of the police officers to secure a warrant stems from the fact that their knowledge acquired from the surveillance was insufficient to fulfill the requirements for the issuance of a search warrant. What is paramount is that probable cause existed. Thus, it has been held in the case of People v. Lo Ho Wing, et al. (G.R. No. 88017, January 21, 1991): In the instant case, it was firmly established from the factual findings of the trial court that the authorities had reasonable ground to believe that appellant would attempt to bring in contraband and transport it within the country. The belief was based on intelligence reports gathered from surveillance activities on the suspected syndicate, of which appellant was touted to be a member. Aside from this, they were also certain as to the expected date and time of arrival of the accused from China. But such knowledge was clearly insufficient to enable them to fulfill the requirements for the issuance of a search warrant. Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case. As the Solicitor General has pointed out: There are several instances when a warrantless search and seizure can be effected without necessarily being preceded by an arrest provided the same is effected on the basis of probable cause (e.g. stop and search without warrant at checkpoints). Between warrantless searches and seizures at checkpoints and in the case at bar the latter is more reasonable considering that unlike in the former, it was effected on the basis of probable cause. Under the circumstances (monitoring of transactions) there existed probable cause for the arresting officers, to arrest appellant who was in fact selling marijuana and to seize the contraband. That searches and seizures must be supported by a valid warrant is not an absolute rule (Manipon, Jr. v. Sandiganbayan, 143 SCRA 267 [1986]). Among the exceptions granted by law is a search incidental to a lawful arrest under Sec. 12, Rule 126 of the Rules on Criminal Procedure, which provides that a person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant. (People v. Castiller, G.R. No. 87783, August 6, 1990) The accused-appellant claims that the arrest having been done without warrant, it follows that the evidence obtained therefrom is inadmissible.
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As earlier discussed, there is nothing unlawful about the arrest considering its compliance with the requirements of a warrantless arrest. Ergo, the fruits obtained from such lawful arrest are admissible in evidence. Edison Sucro assails the trial court's reliance on the statement of Macabante whose reason for testifying could be merely to escape prosecution. We quote the trial court's finding as to the testimony of Macabante: The non-filing of a complaint against him for possession of marijuana may have been the reason of (sic) his willingness to testify in court against the accused. But this does not necessarily taint the evidence that proceeds from his lips. As explained by Lt. Seraspi, the best sources of information against drug pushers are usually their customers, especially if as in this case, there is no other direct evidence of the selling except the testimony of the buyer. We accept this observation as a realistic appraisal of a situation in which drug users are, and should be employed by law enforcement authorities to bolster the drive against pushers who are the real felons in our society. We have observed the demeanor of the witness in court, and found him to be straightforward, unhesitating, and spontaneous in his declarations, so that we are satisfied as to his intention and disposition to tell the truth (Rollo, p. 40) Time and again it has been held that the findings of the trial court are entitled to great weight and should not be disturbed on appeal unless it is shown that the trial court had overlooked certain facts of weight and importance, it being acknowledged. that the court below, having seen and heard the witnesses during the trial, is in a better position to evaluate their testimonies (People v. Umali, et al., G.R. No. 84450, February 4, 1991 citing People v. Alvarez, 163 SCRA 745 [1988]; People v. Dorado, 30 SCRA 53 [1969]; and People v. Espejo, 36 SCRA 400 [1970]). Furthermore, the testimony of Macabante was corroborated on material points by public officers Fulgencio and Seraspi. There is nothing in the record to suggest that the police officers were compelled by any motive than to accomplish their mission to capture a drug pusher in the execution of the crime, the presumption being that police officers perform their duties regularly in the absence of any evidence to the contrary (Rule 131, Sec. 3(m), Revised Rules on Evidence; People v. Castiller, supra citing People v. Natipravat, 145 SCRA 483 [1986]). The prosecution evidence was further bolstered by the findings of the Forensic Chemist that the items seized were all positive for marijuana. In contrast to the evidence presented by the prosecution, accused-appellant's defense is alibi which is unavailing considering that he was positively identified by Macabante to be the person from whom he bought marijuana. Sucro alleges that he could not have committed the crime since he was with his uncle and cousin distributing handbills for his Auntie's candidacy. The fact, however, remains that it does not preclude the possibility that he was present in the vicinity as established by his admission that he moved a lot and even had the occasion to meet Macabante on the street. It is well-settled that mere denials cannot prevail against the positive identification of the appellant as the seller of the prohibited substances. (People v. Khan, 161 SCRA 406 [1988]; and People v. Paco, 170 SCRA 681 [1989]) Premises considered, this Court is convinced that appellant Edison Sucro had indeed committed the offense charged. The trial court's decision must be upheld. WHEREFORE, the decision appealed from is hereby AFFIRMED. SO ORDERED. Fernan, C.J., Feliciano, Bidin and Davide, Jr., JJ., concur. G.R. No. 101837 February 11, 1992

ROLITO GO y TAMBUNTING, petitioner, vs. THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents. FELICIANO, J.: According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or "wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from his car, walked over and shot Maguan inside his car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting and there retrieved an empty shell and one round of live ammunition for a 9 mm caliber pistol. Verification at the Land Transportation Office showed that the car was registered to one Elsa Ang Go. The following day, the police returned to the scene of the shooting to find out where the suspect had come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and he positively identified him as the same person who had shot Maguan. Having established that the assailant was probably the petitioner, the police launched a manhunt for petitioner. On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The police forthwith detained him. An eyewitness to the shooting, who was at the police station at that time, positively identified petitioner as the gunman. That same day, the police promptly filed a complaint for frustrated homicide 2 against petitioner with the Office of the Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence of his lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such waiver. On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be filed in court, the victim, Eldon Maguan, died of his gunshot wound(s). Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an information for murder 3 before the Regional Trial Court. No bail was recommended. At the bottom of the information, the Prosecutor certified that no preliminary investigation had been conducted because the accused did not execute and sign a waiver of the provisions of Article 125 of the Revised Penal Code. In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an omnibus motion for immediate release and proper preliminary investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and that no preliminary investigation had been conducted before the information was filed. Petitioner also prayed that he be released on recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last
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page of the motion itself that he interposed no objection to petitioner being granted provisional liberty on a cash bond of P100,000.00. On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite action on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on the same date, approved the cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact released that same day. On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary investigation 8 and prayed that in the meantime all proceedings in the court be suspended. He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate release and preliminary investigation, which motion had been granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11 July 1991. Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary investigation. On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus motion for immediate release and preliminary investigation dated 11 July 1991 was treated as a petition for bail and set for hearing on 23 July 1991. On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court assailing the 17 July 1991 Order, contending that the information was null and void because no preliminary investigation had been previously conducted, in violation of his right to due process. Petitioner also moved for suspension of all proceedings in the case pending resolution by the Supreme Court of his petition; this motion was, however, denied by respondent Judge. On 23 July 1991, petitioner surrendered to the police. By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition and mandamus to the Court of Appeals. On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of petitioner on 23 August 1991. On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment. On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea of not guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11 On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view of public respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus prolonging his detention, he was entitled to be released on habeas corpus. On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition for certiorari, prohibition and mandamus, on the one hand, and the petition

for habeas corpus, upon the other, were subsequently consolidated in the Court of Appeals. The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain his arraignment on the ground that that motion had become moot and academic. On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first witness. On 23 September 1991, the Court of Appeals rendered a consolidated decision 14 dismissing the two (2) petitions, on the following grounds: a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and charged had been "freshly committed." His identity had been established through investigation. At the time he showed up at the police station, there had been an existing manhunt for him. During the confrontation at the San Juan Police Station, one witness positively identified petitioner as the culprit. b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived his right to preliminary investigation by not invoking it properly and seasonably under the Rules. c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial court had the inherent power to amend and control its processes so as to make them conformable to law and justice. d. Since there was a valid information for murder against petitioner and a valid commitment order (issued by the trial judge after petitioner surrendered to the authorities whereby petitioner was given to the custody of the Provincial Warden), the petition for habeas corpus could not be granted. On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity. On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the criminal case below until further orders from this Court. In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and second, whether petitioner had effectively waived his right to preliminary investigation. We consider these issues seriatim. In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had been validly arrested without warrant. Since petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly arrested six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17 where a majority of the Court upheld a warrantees arrest as valid although effected fourteen (14) days after the killing in connection with which Nazareno had been arrested. Accordingly, in the view of the Solicitor General, the provisions of Section 7, Rule 112 of the Rules of Court were applicable and because petitioner had declined to waive the provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the information for murder even without preliminary investigation. On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the police station six (6) days after the shooting which he had allegedly perpetrated. Thus, petitioner argues, the crime had not been "just committed" at the time that he was arrested. Moreover, none of the police officers
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who arrested him had been an eyewitness to the shooting of Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the Rules of Court which establishes the only exception to the right to preliminary investigation, could not apply in respect of petitioner. The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the warrantless arrests of petitioners made from one (1) to fourteen days after the actual commission of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses were subversion, membership in an outlawed organization like the New People's Army, etc. In the instant case, the offense for which petitioner was arrested was murder, an offense which was obviously commenced and completed at one definite location in time and space. No one had pretended that the fatal shooting of Maguan was a "continuing crime." Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows: Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may, without warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceed against in accordance with Rule 112, Section 7. Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably regarded as effected "when [the shooting had] in fact just been committed" within the meaning of Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts indicating that petitioner was the gunman who had shot Maguan. The information upon which the police acted had been derived from statements made by alleged eyewitnesses to the shooting one stated that petitioner was the gunman; another was able to take down the alleged gunman's car's plate number which turned out to be registered in petitioner's wife's name. That information did not, however, constitute "personal knowledge." 18 It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides: Sec. 7 When accused lawfully arrested without warrant. When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting office or person

However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception. If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied) is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine whether there was probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a preliminary investigation and that right should have been accorded him without any conditions. Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to be released forthwith subject only to his appearing at the preliminary investigation. Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note that petitioner had from the very beginning demanded that a preliminary investigation be conducted. As earlier pointed out, on the same day that the information for murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for immediate release and preliminary investigation. The Solicitor General contends that that omnibus motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner should accordingly be held to have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for murder had already been filed with the Regional Trial Court: it is not clear from the record whether petitioner was aware of this fact at the time his omnibus motion was actually filed with the Prosecutor. In Crespo v. Mogul, 19 this Court held: The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists to 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 quasijudicial discretion to determine whether or not a criminal case should be filed in
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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. xxx xxx xxx The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case [such] as 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. . . . 20 (Citations omitted; emphasis supplied) Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a re-investigation (Crespo v. Mogul involved a reinvestigation), and since the Prosecutor himself did file with the trial court, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in effect filed with the trial court. What was crystal clear was that petitioner did ask for a preliminary investigation on the very day that the information was filed without such preliminary investigation, and that the trial court was five (5) days later apprised of the desire of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be held to have been substantially complied with. We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. 21 The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him the full measure of his right to due process. The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case considering that he was already arraigned on 23 August 1991. The rule is that the right to preliminary investigation is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment.22 In the instant case, petitioner Go had vigorously insisted on his right to preliminary investigation before his arraignment. At the time of his arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition and mandamus precisely asking for a preliminary investigation before being forced to stand trial. Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his right to preliminary investigation. In People v. Selfaison, 23 we did hold that appellants there had waived their right to preliminary investigation because immediately after their arrest, they filed bail and proceeded to trial "without previously claiming that they did not have the benefit of

a preliminary investigation." 24 In the instant case, petitioner Go asked for release on recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary investigation before respondent Judge approved the cash bond posted by petitioner and ordered his release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one. We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation, while constituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of the trial court. 25 It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent Judge recalling his own order granting bail and requiring petitioner to surrender himself within forty-eight (48) hours from notice, was plainly arbitrary considering that no evidence at all and certainly no new or additional evidence had been submitted to respondent Judge that could have justified the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be released on bail as a matter of right. The final question which the Court must face is this: how does the fact that, in the instant case, trial on the merits has already commenced, the Prosecutor having already presented four (4) witnesses, impact upon, firstly, petitioner's right to a preliminary investigation and, secondly, petitioner's right to be released on bail? Does he continue to be entitled to have a preliminary investigation conducted in respect of the charge against him? Does petitioner remain entitled to be released on bail? Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a preliminary investigation although trial on the merits has already began. Trial on the merits should be suspended or held in abeyance and a preliminary investigation forthwith accorded to petitioner. 26 It is true that the Prosecutor might, in view of the evidence that he may at this time have on hand, conclude that probable cause exists; upon the other hand, the Prosecutor conceivably could reach the conclusion that the evidence on hand does not warrant a finding of probable cause. In any event, the constitutional point is that petitioner was not accorded what he was entitled to by way of procedural due process. 27 Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary investigation, with extraordinary haste, to the applause from the audience that filled the courtroom. If he submitted to arraignment at trial, petitioner did so "kicking and screaming," in a manner of speaking . During the proceedings held before the trial court on 23 August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made very clear petitioner's vigorous protest and objection to the arraignment precisely because of the denial of preliminary investigation. 28 So energetic and determined were petitioner's counsel's protests and objections that an obviously angered court and prosecutor dared him to withdraw or walkout, promising to replace him with counsel de oficio. During the trial, before the prosecution called its first witness, petitioner through counsel once again reiterated his objection to going to trial without preliminary investigation: petitioner's counsel made of record his "continuing objection." 29 Petitioner had promptly gone to the appellate court on certiorari and prohibition to challenge the lawfulness of the procedure he was being forced to undergo and the lawfulness of
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his detention. 30 If he did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it was because he was extremely loath to be represented by counsel de oficio selected by the trial judge, and to run the risk of being held to have waived also his right to use what is frequently the only test of truth in the judicial process. In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be released on bail as a matter of right. Should the evidence already of record concerning petitioner's guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective assessment of the evidence on record, to grant or deny the motion for cancellation of bail. To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary investigation and to bail were effectively obliterated by evidence subsequently admitted into the record would be to legitimize the deprivation of due process and to permit the Government to benefit from its own wrong or culpable omission and effectively to dilute important rights of accused persons well-nigh to the vanishing point. It may be that to require the State to accord petitioner his rights to a preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial exercise. But the Court is not compelled to speculate. And, in any case, it would not be idle ceremony; rather, it would be a celebration by the State of the rights and liberties of its own people and a re-affirmation of its obligation and determination to respect those rights and liberties. ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991 hereby REVERSED. The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary investigation of the charge of murder against petitioner Go, and to complete such preliminary investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits of the criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the preliminary investigation. Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful order that the trial court may issue, should the Office of the Provincial Prosecutor move for cancellation of bail at the conclusion of the preliminary investigation. No pronouncement as to costs. This Decision is immediately executory. SO ORDERED. Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur G.R. No. L-45950 June 20, 1938 LEONA PASION VIUDA DE GARCIA, petitioner, vs. DIEGO LOCSIN, Judge of First Instance of Tarlac, FELIX IMPERIAL, Provincial Fiscal of Tarlac, and the ANTI-USURY BOARD, respondents. Benigo S. Aquino and Marcial P. Lichauco for petitioner Adolfo N. Feliciano for the respondent Anti-Usury Board. Office of the Solicitor-General Tuason for other respondents. LAUREL, J.:

This is a petition for mandamus presented to secure the annulment of a search warrant and two orders of the respondent judge, and the restoration of certain documents alleged to have been illegally seized by an agent of the Anti-Usuary Board. It appears that on November 10, 1934, Mariano G. Almeda, an agent of the AntiUsuary Board, obtained from the justice of the peace of Tarlac, Tarlac, a search warrant(Exhibit B) commanding any officer of the law to search the person, house or store of the petitioner at Victoria, Tarlac, for "certain books, lists, chits, receipts, documents and other papers relating to her activities as usurer." The search warrant was issued upon an affidavit given by the said Almeda "that he has and there (is) just and probable cause to believe and he does believe that Leona Pasion de Garcia keeps and conceals in her house and store at Victoria, Tarlac, certain books, lists, chits, receipts, documents, and other papers relating to her activities as usurer, all of which is contrary to the statute in such cases made and provided." On the same date, the said Mariano G. Almeda, accompanied by a captain of the Philippine Constabulary, went to the office of the petitioner in Victoria, Tarlac and, after showing the search warrant to the petitioner's bookkeeper, Alfredo Salas, and, without the presence of the petitioner who was ill and confined at the time, proceeded with the execution thereof. Two packages of records and a locked filing cabinet containing several Papers and documents were seized by Almeda and a receipt therefor issued by him to Salas. The papers and documents seized were kept for a considerable length of time by the Anti-Usury Board and thereafter were turned over by it to the respondent fiscal who subsequently filed, in the Court of First Instance of Tarlac, six separate criminal cases against the herein petitioner for violation of the Anti-Usury Law. On several occasions, after seizure, the petitioner, through counsel, demanded from the respondent Anti-Usury Board the return of the documents seized. On January 7. and, by motion, on June 4, 1937, the legality of the search warrant was challenged by counsel for the petitioner in the six criminal cases and the devolution of the documents demanded. By resolution of October 5, 1937, the respondent Judge of First Instance denied the petitioner's motion of June 4 for the reason that though the search warrant was illegal, there was a waiver on the part of the petitioner. "En el caso presente," declared the respondent judge, "teniendo en cuenta que la acusada Por si o por medio de su representante, no presento protests alguna contra el registro de autos, at verificarse el mismo, o despues de un tiempo rezonable, el juzgado declare que la citada con su silencio y conducta, ha renunciado implicitanmente a su derecho a no ser sometido a un registro irrazonable, por lo que no le es pemitido quejarse despues, puesto que cualquier defecto queha adolecido lo expedicion de la orden de registro y su ejecucion, ha quidado implilcitamente subsanado." A motion for reconsideration was presented but was denied by order of January 3, 1938. Petitioner registered her exception. The resolution of October 5, 1937 and the order of January 3, 1938 are sought, together with the search warrant, Exhibit B, to be nullified in these proceedings. Paragraph 3, section 1 of the bill of right of our Constitution provides 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 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. Freedom from unreasonable searches and seizures is declared a popular right and for a search warrant to be valid, (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
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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 or things to be seized. These requirements are complemented by the Code of Criminal Procedure (G. O. No. 58), particularly with reference to the duration of the validity of the search warrant and the obligation of the officer seizing the property to deliver the same to the corresponding court (secs. 102-104). On more than one occasion, since the approval of the Constitution, we had emphasized the necessity of adherence to the constitutional requirements on this subject (Alvarez vs. Court of First Instance of Tayabas and Anti-Usury Board [1937], 35 Off. Gaz., 1183; People vs. Sy Juco [1937], G.R. No. 41957; Rodriguez vs. Villamiel [1937], G.R. No. 44328; and Molo vs. Yatco [1936], 35 Off. Gaz., 1935) and we do not deem it necessary to reiterate what has been said or observed in these cases. In the instant case the existence of probable cause was determined not by the judge himself but by the applicant. All that the judge did was to accept as true the affidavit made by agent Almeda. He did not decide for himself. It does not appear that he examined the applicant and his witnesses, if any. Even accepting the description of the properties to be seized to be sufficient and on the assumption that the receipt issued is sufficiently detailed within the meaning of the law, the properties seized were not delivered to the court which issued the warrant, as required by law. (See, secs. 95 and 104, G. O. No. 58.) instead, they were turned over to the respondent provincial fiscal and used by him in building up cases against the petitioner. Considering that at the time the warrant was issued there was no case pending against the petitioner, the averment that the warrant was issued primarily for exploration purposes is not without basis. The lower court is, therefore, correct in reaching the conclusion that the search warrant (Exhibit B) was illegally issued by the justice of the peace of Tarlac, Tarlac. The important question presented is whether upon the facts and under the circumstances of the present case, there has been a waiver by the petitioner of her constitutional immunity against unreasonable searches and seizures. While the Solicitor-General admits that, in the light of decisions of this court, the search warrant was illegally issued, he maintains "(1) that the petitioner had waived her constitutional right by her acquiescence after the search and seizure, and (2) that the application for the return of the documents illegally seized was made after an unreasonable length of time after the date of seizure." Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. (People vs. Kagui Malasugui, 34 Off. Gaz., pp. 2163, 2164; 56 C.J., pp. 1178, 1179; Cf. Rodriguez vs. Villamiel, supra.) The waiver may be either express or implied (67 C.J., p. 304). No express waiver has been made in the case before us. It is urged, however, that there has been a waiver by implication. It is well-settled that to constitute a waiver of a constitutional right, it must appear, first, that the right exists; secondly, that the persons involved had knowledge, either actual or constructive, of the existence of such right; and, lastly, that said person had an actual intention to relinquish the right. (67 C. J., 299.) It is true that the petitioner did not object to the legality of the search when it was made. She could not have objected because she was sick and was not present when the warrant was served upon Alfredo Salas. Certainly, the constitutional immunity from unreasonable searches and seizures, being a personal one, cannot be waived by anyone except the person whose rights are invaded or one who is expressly authorized to do so in his or her behalf. (56 C. J., p. 1183.) Of course, the petitioner came to know later of the seizure of some of her papers and documents. But this was precisely the reason

why she sent her attorneys to the office of the Anti-Usuary Board to demand the return of the documents seized. In any event, the failure on the part of the petitioner and her bookkeeper to resist or object to the execution of the warrant does not constitute an implied waiver of constitutional right. It is, as Judge Cooley observes, but a submission to the authority of the law. (Const. Lim., 8th ed., Vol., I, p. 630.) 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 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. (56 C.J., pp. 1180, 1181.) As a general proposition, it may be admitted that waiver may be the result of a failure to object within a reasonable time to a search and seizure illegally made. It must be observed, however, that the petitioner, on several occasions, and prior to the filing of criminal actions against her, had demanded verbally, through counsel, the return by the Anti-Usuary Board of the properties seized. This is admitted by Adolfo N. Feliciano, acting chief of the board, who said that the demand was refused simply because no habiamos terminado con nuestra investigacion. (T.s.n., pp. 2425.) On July 7, 1936, counsel for the petitioner wrote a letter to the Anti-Usuary Board demanding again the return of the documents withheld. And in connection with the criminal cases pending against the petitioner, similar demands were made on January 7, 1937 and on June 4, 1937. In the light of these circumstances, we find that the petitioner did not waive her constitutional right. The delay in making demand for the return of the documents seized is not such as to result in waiver by implication. In view of the foregoing, the writ prayed for is granted. The search warrant, Exhibit B, is hereby declared void and of no effect; the orders of October 5, 1937 and January 3, 1938 of the respondent judge are set aside; and the respondents AntiUsuary Board and the provincial fiscal of Tarlac or those acting in their behalf, are hereby ordered to return and restore to the petitioner all the properties, documents, papers and effects illegally seized from her, within forty-eight (48) hours from the time this decision becomes final. Without costs. So ordered. Avancea, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ., concur. [G.R. No. 99050, September 02, 1992] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. CONWAY B. OMAWENG, ACCUSED-APPELLANT. DAVIDE, JR., J.: DECISION

Accused Conway B. Omaweng was originally indicted for the violation of Section 4, Article II of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, in a criminal complaint filed with the Municipal Trial Court of Bontoc, Mountain Province on 12 September 1988.[1] Upon his failure to submit counter-affidavits despite the granting of an extension of time to do so, the court declared that he had waived his right to a preliminary investigation and, finding probable cause against the accused, ordered the elevation of the case to the proper court.[2] On 14 November 1988, the Office of the Provincial Fiscal of Mountain Province filed an Information charging the accused with the violation of Section 4, Article II of the Dangerous Drugs Act of 1972, as amended. The accusatory portion thereof reads:
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"That on or about September 12, 1988, at Dantay, Bontoc, Mountain Province, 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 dispatch in transit or transport in a Ford Fiera, owned and driven by him, 10 kilos of processed marijuana in powder form contained in 41 plastic bags of different sizes which were placed in a travelling bag destained (sic) and intended for delivery, disposition and sale in Sagada, Mountain Province, with full knowledge that said processed marijuana is (sic) prohibited drug or from which (sic) prohibited drug maybe manufactured. CONTRARY TO LAW."[3] The case was docketed as Criminal Case No. 713. After his motion for reinvestigation was denied by the Provincial Fiscal,[4] the accused entered a plea of not guilty during his arraignment on 20 June 1989. During the trial on the merits, the prosecution presented four (4) witnesses. The accused did not present any evidence other than portions of the Joint Clarificatory Sworn Statement, dated 23 December 1988, of prosecution witnesses Joseph Layong and David Fomocod. On 21 March 1991, the trial court promulgated its Judgment[5] convicting the accused of the crime of transporting prohibited drugs penalized under Section 4, Article II of R.A. No. 6425, as amended. The dispositive portion of the decision reads: "WHEREFORE, judgment is hereby rendered imposing upon the accused herein the penalty of life imprisonment and a fine of Twenty Five Thousand Pesos. Pursuant to Sec. 20, Art. IV of the aforecited special law, the drugs subject of the crime are ordered confiscated and forfeited in favor of the Government. Accordingly, it is further directed that such drugs so confiscated and forfeited be destroyed without delay per existing rules and regulations on the matter. Costs against the accused. SO ORDERED."[6] Hence, this appeal. In the Appellant's Brief, accused imputes upon the trial court the commission of the following errors: "I x x x IN CONVICTING THE ACCUSED DESPITE INSUFFICIENCY OF EVIDENCE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. II x x x IN NOT CONSIDERING THE JOINT CLARIFICATORY STATEMENT OF THE ARRESTING OFFICERS TO THE EFFECT THAT THE ACCUSED IS NOT THE OWNER OF THE PROHIBITED DRUG SUBJECT OF THIS CASE. III x x x IN NOT RULING THAT THE CONTRABAND SUBJECT OF THE INSTANT CASE IS INADMISSIBLE IN EVIDENCE FOR HAVING BEEN OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHT OF THE ACCUSED AGAINST UNREASONABLE SEARCH (sic) AND SEIZURE."[7] The appeal is without merit. The decision appealed from must be upheld. After a careful review and evaluation of the evidence, We find to have been fully proven the following facts as summarized by the Solicitor General in the Brief for the Appellee.[8] "In the morning of September 12, 1988, Joseph Layong, a PC constable with the Mt. Province PC Command at Bontoc, Mt. Province proceeded with other PC soldiers to Barrio Dantay, Bontoc and, per instruction of their officer, Capt. Eugene Martin, put up a checkpoint at the junction of the roads, one going to Sagada and the other

to Bontoc (TSN, November 9, 1989, pp. 3-4). They stopped and checked all vehicles that went through the checkpoint (TSN, April 5, 1990, p. 12). At about 9:15 A.M., Layong and his teammate, Constable David Osborne Famocod (sic), saw and flagged down a cream-colored Ford Fiera bearing Plate No. ABT-634 coming from the Bontoc Poblacion and headed towards Baguio (TSN, November 9, 1989, pp. 4-5, 8). The vehicle was driven by appellant and had no passengers (TSN, November 9, 1989, pp. 4-5). Layong and his companions asked permission to inspect the vehicle and appellant acceded to the request (TSN, November 9, 1989, pp. 4-5). When they peered into the rear of the vehicle, they saw a travelling bag which was partially covered by the rim of a spare tire under the passenger seat on the right side of the vehicle (TSN, November 9, 1989, pp. 6, 10, 11). Layong and his companions asked permission to see the contents of the bag (TSN, November 9, 1989, p. 6). Appellant consented to the request but told them that it only contained some clothes (TSN, November 9, 1989, p. 6). When Layong opened the bag, he found that it contained forty-one (41) plastic packets of different sizes containing pulverized substances (TSN, November 9, 1989, pp. 7, 9). Layong gave a packet to his team leader, constable David Osborne Fomocod, who, after sniffing the stuff concluded that it was marijuana (TSN, November 9, 1989, p. 16). The PC constables, together with appellant, boarded the latter's Ford Fiera and proceeded to the Bontoc poblacion to report the incident to the PC Headquarters (TSN, November 9, 1989, pp. 7-8). The prohibited drugs were surrendered to the evidence custodian, Sgt. Angel Pokling (TSN, November 9, 1989, pp. 7-8). Major Carlos Figueroa, a PC Forensic Chemist at Camp Dangwa, La Trinidad, Benguet, who has conducted more than 2500 professional examinations of marijuana, shabu and cocaine samples, conducted two chemistry examinations of the substance contained in the plastic packets taken from appellant and found them to be positive for hashish or marijuana (TSN, October 24, 1990, pp. 3, 5-81)."[9] Anent the first assigned error, the accused contends that the prosecution failed to prove that he is the owner of the marijuana found inside the travelling bag which he had in his vehicle, a Ford Fiera. Proof of ownership is immaterial. Accused was prosecuted for the dispatching in transit or transporting of prohibited drugs pursuant to Section 4, Article II of R.A. No. 6425, as amended. This section does not require that for one to be liable for participating in any of the proscribed transactions enumerated therein, he must be the owner of the prohibited drug. It simply reads: "SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. -- The penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand 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. If the victim of the offense is a minor or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed." This section penalizes the pusher, who need not be the owner of the prohibited drug. The law defines pusher as "any person who sells, administers, delivers, or gives away to another, on any terms whatsoever, or distributes, dispatches in transit or transports any dangerous drug or who acts as a broker in any of such transactions, in violation of this Act.[10] In People vs. Alfonso,[11] where the accused was charged with the unlawful transportation of marijuana under the aforesaid Section 4, this Court ruled that ownership is not a basic issue.
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The facts, as proven by the prosecution, establish beyond cavil that the accused was caught in the act of transporting the prohibited drug or, in other words, in flagrante delicto. That he knew fully well what he was doing is shown beyond moral certainty by the following circumstances: (a) the prohibited drug was found in a travelling bag, (b) he is the owner of the said bag, (c) he concealed the bag behind a spare tire, (d) he was travelling alone, and (e) the Ford Fiera in which he loaded the bag was under his absolute control; pursuant to Section 4, Rule 133 of the Rules of Court (on circumstantial evidence), the combination of all these circumstances is such as to produce a conviction beyond reasonable doubt. Such circumstances, unrebutted by strong and convincing evidence by the accused, even gave rise to the presumption that he is the owner of the prohibited drug.[12] The second assigned error is devoid of merit. The declaration in the joint clarificatory sworn statement executed by the apprehending officers, that the marijuana subject of the case was surreptitiously placed by an unknown person in the bag of the accused, is not supported by evidence. Said sworn statement cannot be used as a basis for exoneration because the very same officers who signed the same reiterated on the witness stand their statements in their original affidavit implicating the accused; both the criminal complaint before the Municipal Trial Court of Bontoc and the information in this case were based on this original affidavit. No probative value could be assigned to it not only because it was procured by the defense under questionable circumstances, but also because the affiants therein merely expressed their personal opinion. The trial court's correct exposition on this point, to which nothing more may be added, deserves to be quoted, thus: "From the portions of the Joint Clarificatory Sworn Statement of prosecution witnesses Layong and Fomocod cited (Exhs. "I" to "I-C"; p. 155, Record), the defense would want this Court to draw the inference that the accused Conway Omaweng is innocent as confirmed by no less than the persons who apprehended the suspect in flagranti (sic). In other words, that the said accused is not the owner of the contraband confiscated but someone else; that to (sic) mysterious individual placed the prohibited articles inside the travelling bag of the accused without the knowledge and consent of the latter; and that the identity of this shadowy third person is known by the PC/INP investigators. The isolated declarations, albeit under oath are much too asinine to be true and do not affect the credibilities of the witnesses -- affiants and the truth of their affirmations on the stand. As gleaned from parts of the record of the reinvestigation of this case conducted by the Provincial Fiscal (Exhs. "G" and "D"; pp. 158 and 161, Record), it appears that Layong and Fomocod were prevailed upon to affix their signatures to (sic) the document styled as Joint Clarificatory Sworn Statement by interested persons in a vain ploy to extricate the accused from the morass he got himself into. Testifying in open court, the same witnesses maintained the tenor of their original affidavit supporting the filing of the criminal complaint in the lower court (Exh. "C"; p. 2, Record). No additional information was elicited from said witnesses during their examination from which it can reasonably be deduced that a third person instead of the accused is the culprit and that the suspect is being framed-up for a crime he did not commit. Nonetheless, grantingarguendo that the declarations of Layong and Fomocod now the bone of contention, are on the level, the same are but mere opinions and conclusions without bases. Any which way, to believe that any person in his right mind owning several kilos of hot hashish worth tens of thousands of pesos would simply stash it away in the travelling bag of someone he has no previous agreement with is a mockery of common sense. And to think further that the PC/INP agents know of such fact yet they kept the vital information under confidential Status (whatever that means in police parlance) while an innocent person is

being prosecuted and practically in the shadow of the gallows for the offense would be stretching human credulity to the snapping point. By and large, the fact remains as the circumstances logically indicate that the accused Conway Omaweng has knowledge of the existence of the contraband inside his vehicle and he was caught red-handed transporting the hot stuff."[13] The third assignment of error hardly deserves any consideration. Accused was not subjected to any search which may be stigmatized as a violation of his Constitutional right against unreasonable searches and seizures.[14] If one had been made, this Court would be the first to condemn it "as the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the Court."[15] He willingly gave prior consent to the search and voluntarily agreed to have it conducted on his vehicle and travelling bag. Prosecution witness Joseph Layong testified thus: "PROSECUTOR AYOCHOK: Q When you and David Fomocod saw the travelling bag, what did you do? A When we saw that travelling bag, we asked the driver if we could see the contents. Q And what did or what was the reply of the driver, if there was any? A He said you can see the contents but those are only clothings (sic). Q When he said that, what did you do? A We asked him if we could open and see it. Q When you said that, what did he tell you? A He said you can see it. Q And when he said you can see and open it, what did you do? A When I went inside and opened the bag, I saw that it was not clothings (sic) that was contained in the bag. Q And when you saw that it was not clothings (sic), what did you do? A When I saw that the contents were not clothes, I took some of the contents and showed it to my companion Fomocod and when Fomocod smelled it, he said it was marijuana."[16] This testimony was not dented on cross-examination or rebutted by the accused for he chose not to testify on his own behalf. Thus, the accused waived his right against unreasonable searches and seizures. As this Court stated in People vs. Malasugui:[17] "x x x When one voluntarily submits to a search or consents to have it made of (sic) his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol. I, page 631.) The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly." Since in the course of the valid search forty-one (41) packages of drugs were found, it behooved the officers to seize the same; no warrant was necessary for such seizure. Besides, when said packages were identified by the prosecution witnesses and later on formally offered in evidence, the accused did not raise any objection whatsoever. Thus, in the accused's Comments And/Or Objections To Offer of Evidence,[18] We merely find the following: "EXHIBIT "A" The bag was not positively identified to be the same bag allegedly found inside the vehicle driven by the accused. The arresting officers failed to show any identifying marks; thus, said bag is an irrelevant evidence not admissible in court; "A-1" to "A-40" Objected to also as irrelevant as the 40 bags now being offered are not the same bags alleged in the information which is 41 bags. The prosecution
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failed to proved (sic) beyond reasonable doubt that Exhibit "A-1" to "A-40" are the same bags allegedly taken from inside Exhibit "A" because what is supposed to be inside the bag are 41 bags and not 40 bags." xx WHEREFORE, the decision of Branch 36 of the Regional Trial Court of Bontoc, Mountain Province of 21 March 1991 in Criminal Case No. 713 finding the accused CONWAY B. OMAWENG guilty beyond reasonable doubt of the crime charged, is hereby AFFIRMED. Costs against the accused. SO ORDERED. G.R. No. 76005. April 23, 1993. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODELIO C. EXALA, RESTITUTO B. BOCALAN and JAIME P. FERNANDEZ, accused, RESTITUTO B. BOCALAN, accused-appellant. The Solicitor General for plaintiff-appellee. Amador E. Mostajo and Presbiterio Velasco, Jr. for accused -appellant. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; "STOP-AND-SEARCH" AT A MILITARY OR POLICE CHECKPOINT, THE CONSTITUTIONALITY OF WHICH HAS BEEN UPHELD, IS ONE OF THE INSTANCES WHERE SEARCH AND SEIZURE CAN BE EFFECTED WITHOUT PRIOR ARREST OR WARRANT. There are indeed instances where search and seizure can be effected without necessarily being preceded by an arrest. An illustration would be the "stop-and-search" without a warrant at military or police checkpoints, the constitutionality of which has already been upheld by this Court. Vehicles are generally allowed to pass through these checkpoints after a routine inspection and answering a few questions. If vehicles are stopped and extensively searched it is because of some probable cause which justifies a reasonable belief of those manning the checkpoints that either the motorist is a law-offender or the contents of the vehicle are or have been instruments in the commission of an offense. However, lest it be misunderstood, this doctrine is not intended to do away with the general rule that no person shall be subjected to search of his person, personal effects and belongings, or his residence except by virtue of a search warrant or on the occasion of a lawful arrest. The case before Us is an incident to or an offshoot of a lawful "stop-and-search" at a military or police checkpoint. 2. ID.; ID.; THE RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE MAY BE WAIVED, AS IN THIS CASE. Their submissive stance after the discovery of the bag of marijuana, as well as the absence of any protest on their part when arrested, not only casts serious doubt on their professed innocence but also confirms their acquiescence to the search. Clearly then, there was waiver of the right against unreasonable search and seizure. In one case We held ". . . When one voluntarily submits to a search or consents to have it made of his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th Ed., Vol. I, p. 361). The right to be secure from unreasonable search and seizure may, like every right, be waived and such waiver may be made either expressly or impliedly." 3. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST MADE UPON DISCOVERY OF ACT OF DISPATCHING IN TRANSIT OR TRANSPORTING MARIJUANA IN VIOLATION OF SEC. 4, ART. II, R.A. 6425, AS AMENDED, IS LAWFUL AND REQUIRES NO WARRANT; AN INSTANCE OF WARRANTLESS ARREST UNDER SEC. 5, PAR. (A), RULE 113, 1985 RULES ON CRIMINAL PROCEDURE, AS AMENDED. The arrest of the three (3) accused was lawful because it was made upon the discovery of the prohibited drug in their possession. There was no need for a warrant; the arrest was made while a

crime was committed. This is one of the situations envisioned by Sec. 5, par. (a), of Rule 113 of the 1985 Rules on Criminal Procedure, as amended, when a warrantless arrest may be made. The accused were caught in the act of dispatching in transit or transporting marijuana, in violation of Sec. 4, Art. II, of R.A. 6425, as amended. 4. ID.; ID.; WEIGHT OF FACTUAL CONCLUSIONS BY TRIAL COURT RELATIVE TO CREDIBILITY OF WITNESSES; CASE AT BAR. Factual conclusions by the trial court relative to the credibility of witnesses are entitled to great respect and are generally sustained by the appellate court unless some material facts have been overlooked or misconstrued as to affect the result. There is none in this case on appeal. 5. ID.; EVIDENCE; OBJECTION ON THE LEGALITY OF SEARCH AND ADMISSIBILITY OF EVIDENCE OBTAINED IN THE COURSE OF SEARCH IS WAIVED WHEN NOT RAISED BEFORE THE TRIAL COURT, AND THE COURT IS BOUND TO ADMIT THE EVIDENCE. We turn to the legal question on the admissibility of the marijuana as evidence in the light of Bocalan's contention that it was seized without a valid search warrant. Since the search was conducted prior to the arrest, Bocalan argues that it was not incident to a lawful arrest. This issue was never raised in the proceedings below. Bocalan never objected to the admissibility of the evidence on the ground that the same was obtained in a warrantless search. Consequently, he is deemed to have waived his objection on the legality of the search and the admissibility of the evidence obtained in the course thereof. In view of such waiver, the court is bound to admit evidence. 6. CRIMINAL LAW; MATERIALITY OF OWNERSHIP OF PROHIBITED DRUG IN A PROSECUTION FOR VIOLATION OF SEC. 4, ART. II, R.A. 6425, AS AMENDED. Proof of ownership is immaterial where the accused is charged with the unlawful transportation of marijuana. Section 4, Art. II, of R.A. 6425, as amended, does not require that one be the owner of the prohibited drug before he can be prosecuted for dispatching in transit or transporting a prohibited drug. CRUZ, J., dissenting: 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; SEARCH AND SEIZURE AT AN ORDINARY CHECKPOINT IS ILLEGAL FOR LACK OF PROBABLE CAUSE AS ENVISIONED IN THE BILL OF RIGHTS. I do not agree that in the interest of peace and order, any or every vehicle may be stopped at any time by the authorities and searched without warrant on the chance that it may be carrying prohibited articles. That possibility is not the probable cause envisioned in the Bill of Rights. In the case of the ordinary checkpoint, there is not even any suspicion to justify the search. The search is made as a matter of course, either of all vehicles or at random. There is no showing that a crime is about to be committed, is actually being committed, or has just been committed and the searching officer has personal knowledge that the person being searched or arrested is the culprit . . . I realize that this view would result in the inadmissibility of the seized marijuana as evidence against the petitioner and in his inevitable acquittal. But as I have always maintained, we cannot retroactively validate an illegal search on the justification that, after all, the articles seized are illegal. DECISION BELLOSILLO, J p: The admissibility of the evidence seized from the accused at a checkpoint after being stopped for routine inspection is put to test in this appeal from the decision 1 of the Regional Trial Court of Cavite City finding inter alia accused-appellant Restituto B. Bocalan guilty beyond reasonable doubt of violating Sec. 4, Art. II, of R.A. 6425, as amended, otherwise known as "The Dangerous Drugs Act of 1972." On 2 November 1982, at about 8:15 in the evening, a private jeep driven by accused-appellant Restituto B. Bocalan was stopped at a police checkpoint in Cavite
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City for routine inspection regarding unlicensed firearms and other prohibited items. With Bocalan were his co-accused Jaime P. Fernandez and Rodelio C. Exala. Pfc. Ricardo Galang, a member of the inspection team, went near the jeep and asked the occupants if there were firearms inside. They answered in the negative. Pfc. Galang then proceeded to inspect the vehicle by beaming a flashlight inside. He noticed a black leather bag measuring about one (1) foot wide and two (2) feet long with its sides bulging. He asked what it contained. There was deadening silence. Nobody answered. Instead, the three (3) accused, Restituto B. Bocalan, Jaime P. Fernandez and Rodelio C. Exala, suddenly became fidgety. Suspicious, Pfc. Galang ordered the bag opened. He found what he excitedly described as "marijuana, marijuana, napakaraming marijuana!" At this juncture, the three (3) remained motionless in their seats and appeared petrified with fear. They were brought to the police station that same night for further investigation. 2 After laboratory examination, the bag was verified to contain more than two (2) kilos of Indian hemp otherwise known as marijuana. 3 Thereafter, Rodelio C. Exala, Restituto B. Bocalan and Jaime P. Fernandez were accordingly charged for violation of Sec. 4, Art. II, of R.A. 6425, as amended. After trial, Bocalan was held guilty as principal and sentenced to life imprisonment. A fine of P25,000.00 was also imposed. 4 The other two (2) were convicted as accomplices and received lighter penalties. Fernandez appealed to the Court of Appeals. Exala did not. Bocalan, whose punishment is reviewable only by this Court, is now before Us assailing his conviction; hence, We deal only with him in this appeal. Appellant Bocalan seeks exculpation by imputing ownership of the bag to Exala alone. 5 Bocalan claims that while on the way to Cavite City, he and Fernandez offered Exala a ride. Exala accepted the offer and requested Bocalan to make a detour to Salitran, Dasmarias, Cavite, where he was to pick up some clothes. They agreed and Exala got the bag which he kept beside him all the time until their apprehension at the checkpoint. 6 Bocalan further contends that the trial court erred in admitting the bag as evidence against him since it was obtained through a warrantless search. 7 The protestations of Bocalan are devoid of merit. We agree with the trial court that the conduct of Bocalan was not only unusual but also contrary to normal human experience. 8 He alleged that he knew Exala only by face and had no personal association with him; 9 yet, on that eventful day of 2 November 1982, he agreed to detour to Salitran which was some fifteen (15) to twenty (20) kilometers out of his way. Thus, his contention that it was Exala who owned the bag containing the marijuana is hardly credible. On the other hand, Exala declared that it was he who did not know the contents of the bag as it was already in the jeep when he boarded it. Exala asserted that it was either Bocalan or Fernandez who owned the bag. Exala swore that Bocalan and Fernandez offered him P5,000.00, later raised to P10,000.00, to take the blame alone, but he refused. 10 Proof of ownership is immaterial where the accused is charged with the unlawful transportation of marijuana. 11 Section 4, Art. II, of R.A. 6425, as amended, does not require that one be the owner of the prohibited drug before he can be prosecuted for dispatching in transit or transporting a prohibited drug. The law simply provides thus "Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand 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. If the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed." Nonetheless, there is substantial evidence to prove that Bocalan was directly involved in the unlawful dispatch in transit or transport of marijuana. The evidence of the prosecution, particularly the testimonies of Pfc. Ricardo Galang and Pat. Rosauro de Guzman, belies the defense of Bocalan and establishes beyond cavil that he was caught in flagrante delicto of transporting the prohibited drug; that he was the driver of the jeep owned by his father that carried the stuff; and, that he was in fact the owner of the bag. The trial court noted that Bocalan picked up Fernandez and Exala one after the other to accompany him to the place where the bag of marijuana was taken and to help him bring the marijuana to Cavite City. 12 Regardless of the degree of participation of Fernandez and Exala, Bocalan is correctly punished for his direct involvement in the crime. Such factual conclusions by the trial court relative to the credibility of witnesses are entitled to great respect and are generally sustained by the appellate court unless some material facts have been overlooked or misconstrued as to affect the result. 13 There is none in this case on appeal. We turn to the legal question on the admissibility of the marijuana as evidence in the light of Bocalan's contention that it was seized without a valid search warrant. Since the search was conducted prior to the arrest, Bocalan argues that it was not incident to a lawful arrest. This issue was never raised in the proceedings below. Bocalan never objected to the admissibility of the evidence on the ground that the same was obtained in a warrantless search. Consequently, he is deemed to have waived his objection on the legality of the search and the admissibility of the evidence obtained in the course thereof. 14 In view of such waiver, the court is bound to admit the evidence. 15 But even assuming arguendo that there was no waiver, still appellant's contention deserves scant consideration. There are indeed instances where search and seizure can be effected without necessarily being preceded by an arrest. 16 An illustration would be the "stop-andsearch" without a warrant at military or police checkpoints, the constitutionality of which has already been upheld by this Court. 17 Vehicles are generally allowed to pass through these checkpoints after a routine inspection and answering a few questions. If vehicles are stopped and extensively searched it is because of some probable cause which justifies a reasonable belief of those manning the checkpoints that either the motorist is a law-offender or the contents of the vehicle are or have been instruments in the commission of an offense. 18 However, lest it be misunderstood, this doctrine is not intended to do away with the general rule that no person shall be subjected to search of his person, personal effects and belongings, or his residence except of virtue of a search warrant or on the occasion of a lawful arrest. 19 The case before Us is an incident to or an offshoot of a lawful "stop-andsearch" at a military or police checkpoint. The checkpoint in the instant case was established in line with "Operational Bakal" the main object of which was to search for unlicensed firearms and other prohibited items in the possession of unauthorized persons passing through it. 20 When the jeep carrying the contraband passed through the checkpoint, it was flagged down and the occupants were asked routine questions. In the course thereof, Pfc. Galang noticed a black leather bag the sides of which were bulging. He asked what the contents of the bag were. None of the accused answered. At that moment, the demeanor of the accused changed; they became suspiciously quiet and nervous as
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if they were concealing something from Pfc. Galang. The accused clearly appeared to be in abject fear of being discovered. Such peculiar apprehensiveness if not restrained reaction of the accused, which did not appear normal, provided the probable cause justifying a more extensive search that led to the opening of the bag and the discovery of the prohibited stuff. Significantly, there was no sign of any protest or objection to the search. The accused remained silent even after their arrest. Their submissive stance after the discovery of the bag of marijuana, as well as the absence of any protest on their part when arrested, not only casts serious doubts on their professed innocence 21 but also confirms their acquiescence to the search. 22 Clearly then, there was waiver of the right against unreasonable search and seizure. 23 In one case 24 We held ". . . When one voluntarily submits to a search or consents to have it made of his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th Ed., Vol. I, p. 361). The right to be secure from unreasonable search and seizure may, like every right, be waived and such waiver may be made either expressly or impliedly" (emphasis supplied). The arrest of the three (3) accused was lawful because it was made upon the discovery of the prohibited drug in their possession. There was no need for a warrant; the arrest was made while a crime was committed. This is one of the situations envisioned by Sec. 5, par. (a), of Rule 113 of the 1985 Rules on Criminal Procedure, as amended, when a warrantless arrest may be made. 25 The accused were caught in the act of dispatching in transit or transporting marijuana, in violation of Sec. 4, Art. II, of R.A. 6425, as amended. The alleged contradiction between the sworn statements of Pfc. Galang and Pat. de Guzman was explained in their separate testimonies and, in any event, has been resolved by the trial court as a factual issue. We find no reason to reverse its findings. Anent the argument that the three (3) accused should not have been assigned different levels of liability, suffice it to say that whether a principal, co-principal or conspirator, accused-appellant would have been meted out the same penalty imposed by the trial court. WHEREFORE, there being no reversible error in the decision appealed from finding accused-appellant RESTITUTO B. BOCALAN guilty beyond reasonable doubt of the crime charged, the same is AFFIRMED, with costs against him. SO ORDERED G.R. No. 148825 December 27, 2002 PEOPLE OF THE PHILIPPINES, appellee, vs. SUSAN CANTON, appellant. DECISION DAVIDE, JR., C.J.: Appellant Susan Canton (hereafter SUSAN) was charged before the Regional Trial Court of Pasay City with the violation of Section 16 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended, under an Information1 whose accusatory portion reads as follows: That on February 12, 1998 at 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 has in her possession NINE HUNDRED NINETY EIGHT POINT TWO EIGHT HUNDRED ZERO NINE (998.2809) GRAMS of methamphetamine hydrochloride, a regulated drug, without the corresponding prescription or license. CONTRARY TO LAW.

The case was docketed as Criminal Case No. 98-0189 and raffled to Branch 110 of said court. SUSAN entered a plea of not guilty upon her arraignment. At the trial, the prosecution presented as witnesses Forensic Chemist Julieta Flores, lady frisker Mylene Cabunoc, and SPO4 Victorio de los Reyes. For its part, the defense presented SPO2 Jerome Cause as its witness and had prosecution witness Mylene Cabunoc recalled to be presented as hostile witness. It opted not to let SUSAN take the witness stand. The evidence for the prosecution established that on 12 February 1998, at about 1:30 p.m., SUSAN was at the Ninoy Aquino International Airport (NAIA), being a departing passenger bound for Saigon, Vietnam.2 When she passed through the metal detector booth, a beeping sound was emitted. Consequently, Mylene Cabunoc, a civilian employee of the National Action Committee on Hijacking and Terrorism (NACHT) and the frisker on duty at that time, called her attention, saying "Excuse me maam, can I search you?"3 Upon frisking SUSAN, Mylene felt something bulging at her abdominal area. Mylene inserted her hand under the skirt of SUSAN, pinched the package several times and noticed that the package contained what felt like rice granules.4 When Mylene passed her hand, she felt similar packages in front of SUSANs genital area and thighs. She asked SUSAN to bring out the packages, but the latter refused and said: "Money, money only." Mylene forthwith reported the matter to SPO4 Victorio de los Reyes, her supervisor on duty.5 SPO4 De los Reyes instructed Mylene to call Customs Examiner Lorna Jalac and bring SUSAN to a comfort room for a thorough physical examination. Upon further frisking in the ladies room, Mylene touched something in front of SUSANs sex organ. She directed SUSAN to remove her skirt, girdles and panty. SUSAN obliged. Mylene and Lorna discovered three packages individually wrapped and sealed in gray colored packing tape, which SUSAN voluntarily handed to them.6 The first was taken from SUSANs abdominal area; the second, from in front of her genital area; and the third, from her right thigh.7 Mylene turned over the packages to SPO4 De los Reyes.8 The latter forthwith informed his superior officer Police Superintendent Daniel Santos about the incident. Together with SUSAN, they brought the gray plastic packs to the customs examination table, opened the same and found that they contained white crystalline substances9 which, when submitted for laboratory examination, yielded positive results for methamphetamine hydrochloride or shabu, a regulated drug.10 For the defense, SPO2 Jerome Cause, an investigator of the First Regional Aviation Office, testified that no investigation was ever conducted on SUSAN.11 However, SUSAN signed a receipt of the following articles seized from her: (1) three bags of methamphetamine hydrochloride or shabu approximately 1,100 grams; (2) one American passport bearing Number 700389994; (3) one Continental Micronesia plane ticket with stock control number 0414381077; and (4) two panty girdles.12 He said that he informed SUSAN of her constitutional rights but admitted that she did not have a counsel when she signed the receipt. 13 Yet he told her that she had the option to sign or not to sign the receipt.14 When recalled as witness for the defense, Mylene merely reiterated the circumstances surrounding the arrest and search of SUSAN and the seizure of the prohibited items found on her person.15 After consideration of the evidence presented, the trial court rendered a decision16 finding SUSAN guilty beyond reasonable doubt of the offense of violation of Section 16 of Article III of Republic Act No. 6425, as amended, and sentencing her to suffer the penalty of reclusion perpetua and to pay a fine of P1 million.
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SUSAN filed a Motion for Reconsideration and/or New Trial,17 alleging therein that the trial judge erred in (1) giving weight to the medical certificate executed by a certain Dr. Ma. Bernadette Arcena because it was not presented in court nor marked or admitted, and is therefore hearsay evidence; (2) upholding the presumption of regularity in the performance of duty of police officers, since lady frisker Mylene Cabunoc is not even a police officer; (3) making statements which gave the impression that the burden of proof was shifted to the accused; and (4) deliberately ignoring the decisive issue of how the evidence was secured. SUSAN also assailed the propriety of the search and seizure without warrant on the ground that the seized items were not in plain view. Furthermore, alleging bias and prejudice on the part of the trial judge, SUSAN filed a motion to inhibit Judge Porfirio G. Macaraeg from resolving the Motion for Reconsideration and/or New Trial.18 After conducting a hearing on 24 November 2000 to resolve appellants Motion for Reconsideration and/or New Trial, as well as the Motion to Inhibit the Judge, the trial court issued an order19 on 26 November 2001 denying the motions. According to the trial judge (1) he explained to SUSANs counsel the effects of the filing of a motion for reconsideration, but the latter chose to magnify the judges statement which was uttered in jest; (2) SUSANs conviction was not based on the medical report which was not presented in court; (3) there was no violation of SUSANs constitutional rights because she was never interrogated during her detention without counsel; and (4) the specimens seized from her were found after a routine frisk at the airport and were therefore acquired legitimately pursuant to airport security procedures. Unsatisfied with the decision of the trial court, SUSAN seasonably appealed to us, imputing to the trial court the following errors: (1) in justifying the warrantless search against her based on the alleged existence of probable cause; (2) in holding that she was caught flagrante delicto and that the warrantless search was incidental to a lawful arrest; (3) in not ruling that the frisker went beyond the limits of the "Terry search" doctrine; (4) in not ruling that SUSAN was under custodial investigation without counsel; (5) in admitting to the records of the case the report of Dr. Ma. Bernadette Arcena, which was not testified on or offered in evidence, and using the same in determining her guilt; (6) in justifying under the rule on judicial notice its cognizance of the medical report that has not been offered in evidence; and (7) in applying the ruling in People v. Johnson.20 For assigned errors nos. 1 and 2, SUSAN asserts that the strip search conducted on her in the ladies room was constitutionally infirmed because it was not "incidental to an arrest." The arrest could not be said to have been made before the search because at the time of the strip search, the arresting officers could not have known what was inside the plastic containers hidden on her body, which were wrapped and sealed with gray tape. At that point then, they could not have determined whether SUSAN was actually committing a crime. The strip search was therefore nothing but a fishing expedition. Verily, it is erroneous to say that she was caught flagrante delicto and that the warrantless search was incidental to a lawful arrest. For assigned error no. 3, SUSAN maintains that, following the doctrine enunciated in Terry v. Ohio,21 such stop and frisk search should have been limited to the patting of her outer garments in order to determine whether she was armed or dangerous and therefore a threat to the security of the aircraft. For assigned error no. 4, SUSAN alleges that from the moment frisker Mylene felt a package at her abdominal area, started inquiring about the contents thereof, detained her, and decided to submit her to a strip search in the ladies room, she was under custodial investigation without counsel, which was violative of Section 12, Article III of the Constitution.

For assigned errors nos. 5 and 6, SUSAN assails the propriety of the admission of the medical report executed by Dr. Ma. Bernadette Arcena on the ground that it was neither testified on nor offered in evidence. Lastly, SUSAN questions the application of People v. Johnson22 because of its sweeping statement allowing searches and seizures of departing passengers in airports in view of the gravity of the safety interests involved. She stresses that the pertinent case should have been Katz v. United States,23 which upholds the Fourth Amendment of the United States of America that "protects people and not places." In its Appellants Brief, the Office of the Solicitor General (OSG) declares that SUSAN was found flagrante delicto in possession of a regulated drug without being authorized by law. Thus, the case falls squarely within the exception, being a warrantless search incidental to a lawful arrest. Moreover, SUSAN voluntarily submitted herself to the search and seizure when she allowed herself to be frisked and brought to the comfort room for further inspection by airport security personnel. It likewise maintains that the methamphetamine hydrochloride seized from SUSAN during the routine frisk at the airport was acquired legitimately pursuant to airport security procedures. Anent the admission of the medical certificate issued by Dr. Ma. Bernadette Arcena, the OSG argues that SUSANs conviction was not solely based on the questioned document but also on the fact that she was caught flagrante delicto in possession of a regulated drug without being authorized by law. Consequently, it supports SUSANs conviction but recommends the reduction of the fine from P1 million to P100,000. We affirm SUSANs conviction. We do not agree that the warrantless search and subsequent seizure of the regulated drugs, as well as the arrest of SUSAN, were violative of her constitutional rights. Sections 2 and 3(2) of Article III of the 1987 Constitution 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. Sec. 3. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. What constitutes a reasonable or unreasonable search in any particular case is a judicial question, determinable from a consideration of the circumstances involved. The rule is that the Constitution bars State intrusions to a person's body, personal effects or residence except if conducted by virtue of a valid search warrant issued in compliance with the procedure outlined in the Constitution and reiterated in the Rules of Court. 24 The interdiction against warrantless searches and seizures is not absolute. The recognized exceptions established by jurisprudence are (1) search of moving vehicles; (2) seizure in plain view; (3) customs searches; (4) waiver or consented searches; (5) stop and frisk situations (Terry search); and (6) search incidental to a lawful arrest.25 I. The search conducted on SUSAN was not incidental to a lawful arrest.
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We do not agree with the trial court and the OSG that the search and seizure conducted in this case were incidental to a lawful arrest. SUSANs arrest did not precede the search. When the metal detector alarmed while SUSAN was passing through it, the lady frisker on duty forthwith made a pat down search on the former. In the process, the latter felt a bulge on SUSANs abdomen. The strip search that followed was for the purpose of ascertaining what were the packages concealed on SUSANs body. If ever at the time SUSAN was deprived of her will and liberty, such restraint did not amount to an arrest. Under Section 1 of Rule 113 of the Revised Rules of Criminal Procedure, as amended, arrest is the "taking of a person into custody in order that he may be bound to answer for the commission of an offense."lawphi1.et As pointed out by the appellant, prior to the strip search in the ladies room, the airport security personnel had no knowledge yet of what were hidden on SUSANs body; hence, they did not know yet whether a crime was being committed. It was only after the strip search upon the discovery by the police officers of the white crystalline substances inside the packages, which they believed to be shabu, that SUSAN was arrested. The search cannot, therefore, be said to have been done incidental to a lawful arrest. In a search incidental to a lawful arrest, the law requires that there be first a lawful arrest before a search can be made; the process cannot be reversed.26 II. The scope of a search pursuant to airport security procedure is not confined only to search for weapons under the "Terry search" doctrine. The Terry search or the "stop and frisk" situation refers to a case where a police officer approaches a person who is acting suspiciously, for purposes of investigating possibly criminal behavior in line with the general interest of effective crime prevention and detection. To assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him, he could validly conduct a carefully limited search of the outer clothing of such person to discover weapons which might be used to assault him.27 In the present case, the search was made pursuant to routine airport security procedure, which is allowed under Section 9 of Republic Act No. 6235 reading as follows: SEC. 9. Every ticket issued to a passenger by the airline or air carrier concerned shall contain among others the following condition printed thereon: "Holder hereof and his hand-carried luggage(s) are subject to search for , and seizure of, prohibited materials or substances. Holder refusing to be searched shall not be allowed to board the aircraft," which shall constitute a part of the contract between the passenger and the air carrier. This constitutes another exception to the proscription against warrantless searches and seizures. As admitted by SUSAN and shown in Annex "D" of her Brief, the aforequoted provision is stated in the "Notice to All Passengers" located at the final security checkpoint at the departure lounge. From the said provision, it is clear that the search, unlike in the Terry search, is not limited to weapons. Passengers are also subject to search for prohibited materials or substances. In this case, after the metal detector alarmed SUSAN consented to be frisked, which resulted in the discovery of packages on her body. It was too late in the day for her to refuse to be further searched because the discovery of the packages whose contents felt like rice granules, coupled by her apprehensiveness and her obviously false statement that the packages contained only money, aroused the suspicion of the frisker that SUSAN was hiding something illegal. It must be repeated that R.A. No. 6235 authorizes search for prohibited materials or substances. To limit the action of the airport security personnel to simply refusing her entry into the aircraft

and sending her home (as suggested by appellant), and thereby depriving them of "the ability and facility to act accordingly, including to further search without warrant, in light of such circumstances, would be to sanction impotence and ineffectivity in law enforcement, to the detriment of society." 28 Thus, the strip search in the ladies room was justified under the circumstances. III. The ruling in People v. Johnson is applicable to the instant case. The case of People v. Johnson, which involves similar facts and issues, finds application to the present case. That case involves accused-appellant Leila Johnson, who was also a departing passenger bound for the United States via Continental Airlines CS-912. Olivia Ramirez was then the frisker on duty, whose task was to frisk departing passengers, employees and crew to check for weapons, bombs, prohibited drugs, contraband goods and explosives. When Olivia frisked Leila, the former felt something hard on the latters abdominal area. Upon inquiry, Leila explained that she needed to wear two panty girdles, as she had just undergone an operation as a result of an ectopic pregnancy. Not satisfied with the explanation, Olivia reported the matter to her superior, who then directed her to take Leila to the nearest womens room for inspection. In the comfort room, Leila was asked "to bring out the thing under her girdle." She acceded and brought out three plastic packs which contained a total of 580.2 grams of methamphetamine hydrochloride or shabu. This Court ruled that the packs of "methamphetamine hydrochloride" seized during the routine frisk at the airport was acquired legitimately pursuant to airport security procedures and are therefore admissible in evidence against Leila. Corollarily, her subsequent arrest, although likewise without warrant, was justified, since it was effected upon the discovery and recovery of shabu in her person flagrante delicto. The Court held in this wise: 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. Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nations 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. 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. SUSANs reliance on Katz v. U.S.29 is misplaced. The facts and circumstances of that case are entirely different from the case at bar. In that case, the accused was convicted in the United States District Court for the Southern District of California of transmitting wagering information by telephone. During the trial, the government was permitted, over the accuseds objection, to introduce evidence of accuseds end of telephone conversations, which was overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he placed his calls. The Court of Appeals for the Ninth Circuit affirmed the conviction. On certiorari, however, the Supreme Court of the United States of America reversed the decision, ruling that antecedent judicial
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authorization, which was not given in the instant case, was a constitutional precondition of the kind of electronic surveillance involved. It ruled that what a person knowingly exposes to the public, even in his own house or office, is not a subject the Fourth Amendment protection, but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. The maxim stare decisis et non quieta movere invokes adherence to precedents and mandates not to unsettle things which are established. When the court has once laid down a principle of law as applicable to a certain state of facts, it must adhere to that principle and apply it to all future cases where the facts are substantially the same.30 There being a disparity in the factual milieu of Katz v. U.S. and the instant case, we cannot apply to this case the ruling in Katz. IV. The appellant, having been caught flagrante delicto, was lawfully arrested without a warrant. Section 5, Rule 113 of the Rules of Court, as amended, 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 just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. The present case falls under paragraph (a) of the afore-quoted Section. The search conducted on SUSAN resulted in the discovery and recovery of three packages containing white crystalline substances, which upon examination yielded positive results for methamphetamine hydrochloride or shabu. As discussed earlier, such warrantless search and seizure were legal. Armed with the knowledge that SUSAN was committing a crime, the airport security personnel and police authorities were duty-bound to arrest her. As held in People v. Johnson, her subsequent arrest without a warrant was justified, since it was effected upon the discovery and recovery of shabu in her person flagrante delicto. V. The constitutional right to counsel afforded an accused under custodial investigation was not violated. Entrenched is the rule that the rights provided in Section 12, Article III of the Constitution may be invoked only when a person is under "custodial investigation" or is "in custody interrogation."31 Custodial investigation refers to the "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."32 This presupposes that he is suspected of having committed a crime and that the investigator is trying to elicit information or a confession from him.33 And the right to counsel attaches upon the start of such investigation.34 The objective is to prohibit "incommunicado" interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.35 In this case, as testified to by the lone witness for the defense, SPO2 Jerome Cause, no custodial investigation was conducted after SUSANs arrest. She affixed her

signature to the receipt of the articles seized from her, but before she did so, she was told that she had the option to sign or not to sign it. In any event, her signature to the packages was not relied upon by the prosecution to prove its case. Moreover, no statement was taken from her during her detention and used in evidence against her.36 Hence, her claim of violation of her right to counsel has no leg to stand on. VI. The admission of the medical report was erroneous. SUSAN assails, on the ground of violation of the hearsay rule, the admission of the medical report on the physical and medical examination conducted upon appellants request, which contained the following: On subsequent examinations, she was seen behaved and cooperative. She related that she was an illegitimate daughter, married, but divorced in 1995. She verbalized, "I gamble like an addict. I gambled since I was young and I lost control of myself when I played cards. When I lost control, I want my money back. I owe other people lots of money. I lost all the cash of my husband. This is the first time I carried shabu. I need the money." She denied having any morbid thoughts and perceptual disturbances. (Emphasis supplied). This argument is meritorious. The admission of the questioned document was erroneous because it was not properly identified. Nevertheless, even without the medical report, appellants conviction will stand, as the courts finding of guilt was not based on that document. VII. SUSANs conviction and the penalty imposed on her are correct. Having found the warrantless search and seizure conducted in this case to be valid, we do not hesitate to rule that that the three packages of shabu recovered from SUSAN are admissible in evidence against her. Supported by this evidence and the testimonies of the prosecution witnesses, her conviction must inevitably be sustained. Sections 16 and 20 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended, 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. SEC. 20. Application of Penalties, confiscation and Forfeiture of the Proceeds or Instruments 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 [are] in any of the following quantities: 3. 200 grams or more of shabu or methylamphetamine hydrochloride. There being no aggravating nor mitigating circumstance, the proper penalty is reclusion perpetua pursuant to Article 63(2) of the Revised Penal Code. As regards the fine, courts may fix any amount within the limits established by law. For possession of regulated drugs, the law fixes the range of the fine from P500,000 to P10 million. In view of the net weight of methamphetamine hydrochloride found in the possession of SUSAN, the trial courts imposition of fine in the amount of P1 million is well within the range prescribed by law. VIII. The other items seized from the appellant should be returned to her. Section 3 of Rule 126 of the Revised Rules of Criminal Procedure authorizes the confiscation of the following: SEC. 3. Personal property to be seized. A search warrant may be issued for the search and seizure of personal property:
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(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. , Clearly, the seizure of SUSANs passport, plane tickets, and girdles exceeded the limits of the afore-quoted provision. They, therefore, have to be returned to her.37 IN VIEW OF ALL THE FOREGOING, the judgment of the Regional Trial Court of Pasay City, Branch 110, in Criminal Case No. 98-0189 finding appellant SUSAN CANTON guilty beyond reasonable doubt of the violation of Section 16, Article III of the Dangerous Act of 1972 (Republic Act No. 6425), as amended, and sentencing her to suffer the penalty of reclusion perpetua and to pay a fine of One Million Pesos (P1,000,000) and the costs is hereby AFFIRMED. The appellants passport, plane tickets, and girdles are hereby ordered to be returned to her. Costs de oficio. SO ORDERED. G.R. No. 90640 March 29, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BONIFACIO BARROS, accused-appellant. The Solicitor General for plaintiff-appellee. Bartolome F. Macliing for accused-appellant. FELICIANO, J.: Bonifacio Barros was charged with violating Section 4 of R.A. No. 6425, as amended (known as the Dangerous Drugs Act of 1972), in an information which read as follows: That on or about September 6, 1987, from Chackchakan, Bontoc, Mountain Province, to Nacagang, Sabangan, Mountain Province, and within the jurisdiction of this Honorable Court, the above-named accused while being a passenger in a Dangwa Bus with Plate No. ABZ 242, destined for Baguio City, without lawful authority did then and there willfully, unlawfully and feloniously carry with him as part of his baggage and transport about four (4) kilos of dried marijuana which the accused intended for distribution and sale at Baguio City, knowing fully well that said marijuana is a prohibited drug or [a] source of [a] prohibited drug. Contrary to law. 1 After trial, the trial court convicted Bonifacio Barros of violation of Section 4 of R.A. No. 6425 as amended and sentenced him to suffer the penalty of reclusion perpetua 2 and to pay a fine of P20,000.00. Barros now appeals from the judgment of conviction and essentially asks this Court to determine Whether the [trial] court deprived [the] accused of his right to due process by: (1) ignoring manifest absence of the mandatory warrant in the arrest and search of the accused; (2) admitting confessions extracted from the accused after two hours of interrogation conducted by four (4) soldiers one after the other under intimidating circumstances; and (3) misappreciation of facts. 3 The relevant facts as found by the trial court and as set forth in the court's decision are as follows: That on September 6, 1987, M/Sgt. Francis Yag-as and S/Sgt. James Ayan, both members of the P.C. Mountain Province Command, rode the Dangwa Bus bearing Plate No. ABZ-242 bound for Sabangan, Mountain Province. Upon reaching

Chackchakan, Bontoc, Mountain Province, the bus stopped and both M/Sgt. Yag-as and S/Sgt. Ayan, who were seated at the back, saw accused carrying a carton, board the bus and seated himself on seat No. 18 after putting the carton under his seat. Thereafter, the bus continued and upon reaching Sabangan, M/Sgt. Yag-as and S/Sgt. Ayan before they alighted, it being their station, called C2C [Fernando] Bongyao to inspect the carton under seat No. 18. After C2C Bongyao inspected the carton, he found out that it contained marijuana and he asked the passengers [who] the owner of the carton [was] but nobody answered. Thereafter, C2C Bongyao alighted with the carton and S/Sgt. Ayan and C2C Bongyao invited the herein accused to the detachment for questioning as accused was the suspected owner of the carton containing marijuana. As both P.C. officers Yag-as and Ayan saw accused, Bonifacio Barros carrying that same carton when he boarded the bus at Chackchakan. That upon entering the detachment the carton was opened in the presence of accused and accused Bonifacio Barros was asked if he owned the carton of marijuana and accused denied [this]. That when accused denied ownership of the carton of marijuana, the P.C. officers called for the bus conductor who pinpointed to Bonifacio Barros as the owner of the carton of marijuana. That during the oral investigation of accused, he finally admitted ownership of the carton (Exhibit "B") containing [four] 4 paper-wrapped packages of dried marijuana. (Exhibits "B-1", "B2", "B-3" and "B-4"). . . . [A]fter he was orally investigated, [the accused] was brought to the Abatan General Hospital, Bauko, Mountain Province, for physical examination and a Medico Legal Certificate was issued (Exhibits "F" and "F-1"), indicating that accused suffered no physical injuries and that accused was probably under the influence of marijuana. That Dra. Danna Aleta inquired from accused Bonifacio Barros if he smoked marijuana and accused admitted having smoked marijuana. That after accused was medically examined, he was escorted by three members of the P.C. to the P.C. detachment at Tadian, Mountain Province, where the carton of marijuana (Exhibit "B") was also brought. That at Tadian, a seizure receipt was made together with a certification (Exhibit "C") pointing out to the fact that approximately 4 kilos of dried marijuana leaves were from accused Bonifacio Barros and which certification was signed by the accused (Exhibit "C-1") and subscribed before Judge Romualdo P. Awisan (Exhibit "C-2"). That in connection with the confiscation of the marijuana subject of the instant case and the apprehension of accused Bonifacio Barros, the P.C. officers who figured in this case namely M/Sgt. Yag-as and S/Sgt. Ayan and C2C Bongyao have correspondingly executed their sworn statements (Exhibits "A", "A-1", "A-2", "D", "D-1", "D-2"). . . . [S]amples of the marijuana were taken from each of the four packages marked Exhibits "B-1", "B-2", "B-3", and "B-4" and placed in four separate envelopes, following an order of the court to that effect and were hand-carried by Police Officer Jack Masilian to Camp Dangwa, La Trinidad, Benguet for laboratory test. That Capt. Carlos Figueroa, the Forensic Expert conducted two kinds of test on the four samples sent by the court and found them to be positive of marijuana as per his report No. D011-88. (Exhibits "I" and "I-1"). 4 The defense of the accused on the facts consisted of a simple denial of the ownership or possession of the carton box containing the four (4) kilos of marijuana. The trial court summarized the story of the accused in the following manner: That accused Bonifacio Barros since 1984 was employed at the Honeymoon Disco Pad, Baguio City. That on September 5, 1987, accused was sent by his Manager, Engineer Arsenio Cuanguey to Bontoc, Mountain Province, to get their records from one Billy Cuanguey at Chackchakan, Bontoc, Mountain Province. That upon arriving at Chackchakan, Bontoc, Mountain Province, accused looked for the residence of
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Billy Cuanguey and he was pointed to a house where someone was tending a store. That accused asked the man if Billy Cuanguey was there and the man answered that he did not know where Billy went. So accused asked the man if Billy left [in] his room the tapes and records and the man said he did not know. Thereafter, accused asked the man to stay over night in that house where Billy was staying as it was the instruction of his manager. That the following day, September 6, 1987, after taking breakfast, accused, was going back to Baguio. On that morning of September 6, 1987, accused Bonifacio Barros boarded the Dangwa Bus at Chackchakan, Bontoc, Mountain Province bound for Baguio City. That when the Dangwa Bus reached the P.C. Checkpoint, soldiers went inside the bus and checked the baggages. That a soldier fished out a carton under the seat of [the] accused and shouted who owns the carton but nobody answered. Thereafter, the soldier went down with the carton and moments later returned to the bus and called accused Bonifacio Barros to alight from the bus. That Mr. Barros was surprised why he was ordered to alight and accused took his baggage which consisted of a pasiking and went down the bus. That accused was led by the soldiers to a house where his pasiking was taken and his clothes removed and his wallet taken. Accused was made to accept ownership of the carton of marijuana but he refused. . . . [A]t 11:00 o'clock that same day, September 6, 1987, three soldiers escorted accused to the hospital and from the hospital, they proceeded to the Municipality of Tadian, Mountain Province. That upon reaching Tadian, accused was brought to the P.C. Camp and there he saw someone typing. Later, the soldiers allegedly presented to accused some papers which he was asked to sign but accused refused. That accused was threatened and if he refused to sign the papers that something will happen to him. That moments later, accused was threatened [by] a soldier [who] pointed a gun to him and told him to sign the paper and because of fear, he had to sign the document marked Exhibit "C." Thereafter, the soldiers allegedly threatened again accused and asked him to sign his name on the inside part of the cover of the carton of marijuana. Exhibit "X" for the court and Exhibit "B-5" for the prosecution. That after staying at Tadian for one night, accused was brought back to Sabangan and later transferred to the Bontoc Provincial Jail. 5 Turning to the legal defenses of the accused, we consider first his allegation that the police authorities had impermissibly extracted confessions from him after two (2) hours of interrogation, "under intimidating circumstances," by four (4) soldiers one after the other. The accused complains that he was not informed of his rights to remain silent and to counsel, that he had not waived his rights as an accused person, and that he had signed a confession involuntarily and without the assistance of counsel. He essentially contends that the confession is inadmissible as evidence against him. We find, however, that it is not necessary to pass upon the above contention of appellant Barros. For the trial court in reaching its judgment of conviction had not taken into consideration the statements which had been obtained from the appellant during the interrogation conducted by the police officers. The trial court, so far as can be determined from its decision, totally disregarded Exhibits "C", "E" and "B-5," the alleged uncounselled confessions. The trial court made very clear the bases of its conclusion that the accused was guilty beyond reasonable doubt of the offense charged; those bases did not include the alleged confessions: First M/Sgt. Francis Yag-as and S/Sgt. James Ayan testified that they saw the accused carrying the carton (Exhibit "B") when he boarded the bus at Chackchakan, Bontoc, Mountain Province. That the bus conductor pointed to accused at the checkpoint of Sabangan, Mountain Province. That accused is the owner of the carton (Exhibit "B"). That the carton (Exhibit "B") which contained four packages of dried

marijuana leaves (Exhibits "B-1", "B-2", "B-3" and "B-4") was fished out from under the seat of the accused which fact was admitted by the accused himself. Second That per testimony of Dra. Danna Aleta, she examined accused Bonifacio Barros and that he suffered no physical injuries that would show that the accused was in anyway maltreated by the police authorities, and this fact was also admitted by accused to the effect that he was never harmed by the police nor the soldiers. Dra. Aleta also found that the accused was under the influence of drug[s] and that the accused admitted [to] her that he, accused, smoked marijuana. This is clear evidence that accused is not only a pusher of marijuana but also a user of said prohibited drugs. (See Exhibits "F" and "F-1" and TSN Page 24 Orpecio). Third The samples taken from Exhibits "B-1", "B-2", "B-3" and "B-4" sent by the court for laboratory test at Camp Dangwa, La Trinidad, Benguet were all positive of marijuana per Report No. D-011-88 (Exhibits "I" and "I-1") of Captain Carlos Figueroa, forensical expert. Lastly, accused's testimony in his own behalf does not impress the court at it lacks the ring of truth. Besides, it is devoid of any corroboration. Our Supreme Court in this respect said: The weak and uncorroborated denial of the accused cannot prevail over the clear, positive and straightforward testimony of prosecution witnesses [sic]." (People vs. Acelajao, 148 SCRA 142)." 6 We turn, therefore, to the second legal defense asserted by appellant Barros i.e., that his constitutional right against unreasonable searches and seizures had been violated by the police authorities. The relevant constitutional provisions are found in Sections 2 and 3 [2], Article III of the 1987 Constitution which read as follows: 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 witness as he may produce, and particularly describing the place to be searched and the persons or things to be seized. Sec. 3. . . . (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. The general 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. 7 The evidence secured thereby i.e., the "fruits" of the search and seizure will be inadmissible in evidence "for any purpose in any proceeding. 8 The requirement that a judicial warrant must be obtained prior to the carrying out of a search and seizure is, however, not absolute. There are certain exceptions recognized in our law, one of which relates to the search of moving vehicles. 9 Peace officers may lawfully conduct searches of moving vehicles automobiles, trucks, etc. without need of a warrant, it not being practicable to secure a judicial warrant before searching a vehicle, since such vehicle can be quickly moved out of the locality or jurisdiction in which the warrant may be sought. 10 In carrying out warrantless searches of moving vehicles, however, peace officers are limited to routine checks, that is, the vehicles are neither really searched nor their occupants subjected to physical or body searches, the examination of the vehicles being limited to visual inspection. In Valmonte vs. De Villa, 11 the Court stated:
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[N]ot 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. Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, or simply looks into a vehicle, or flashes a light therein, these do not constitute unreasonable search. (Citations omitted) When, however, 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 the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense. 12 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; 13(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; 14 (3) Narcom agents were informed or "tipped off" by an undercover "deep penetration" agent that prohibited drugs be brought into the country on a particular airline flight on a given date;15 (4) Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province, had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian, because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so; 16 and (5) Narcom agents had received confidential information that a woman having the same physical appearance as that of the accused would be transporting marijuana. 17 In the case at bar, however, we have been unable to find in the record of this case any circumstance which constituted or could have reasonably constituted probable cause for the peace officers to search the carton box allegedly owned by appellant Barros. The carrying of such a box by appellant onto a passenger bus could not, by itself, have convinced M/Sgt. Francis Yag-as and S/Sgt. James Ayan either that the appellant was a law violator or the contents of the box were instruments or the subject matter or proceeds of some criminal offense. The carrying of carton boxes is a common practice among our people, especially those coming from the rural areas since such boxes constitute the most economical kind of luggage possible. The peace officers here involved had not received any information or "tip-off" from an informer; no such a "tip-off" was alleged by the police officers before or during the trial. The police officers also did not contend that they had detected the odor of dried marijuana, or appellant Barros had acted suspiciously in the course of boarding the bus and taking a seat during the trip to Sabangan, nor in the course of being asked whether he owned the carton box later ascertained to contain four (4) kilos of marijuana. The testimony of the law enforcement officers who had apprehended the accused (M/Sgt. Francis Yag-as and S/Sgt. James Ayan), and who had searched the box in his possession, (C2C Fernando Bongyao), simply did not suggest or indicate the presence of any such probable cause. M/Sgt. Francis Yag-as testified as follows: Direct Examination by Fiscal Moises Ayochok: xxx xxx xxx Q: On September 6, 1987, do you recall if you reported for duty? A: Yes, sir.

Q: And where did you go on the morning of September 6, 1987? A: I went to Sabangan, sir. Q: What transportation did you use? A: Dangwa Bus with Plate No. ABZ-242. Q: Where did you board the Dangwa Bus? A: At the Dangwa Terminal at Bontoc. Q: When you said you boarded the bus with Plate No. ABZ-242 which started for Baguio City from Bontoc, Mountain Province, and while it stopped at Chackchakan, Bontoc, Mountain Province, was there anything that happened? xxx xxx xxx A: When the bus stopped at Sitio Chackchakan, we saw a person carrying a baggage or carton and boarded the bus then took his seat, seat No. 18. Q: What was he carrying that time Mr. witness? A: A carton. Q: And where did he place that carton which he was carrying? A: In front of seat No. 18 where he sat. Q: You mean inside the bus? A: Yes. Q: And after this person boarded the bus at sitio Chackchakan and holding a carton and placed it in front of seat No. 18, what happened to the bus afterwards? A: It proceeded to Sabangan. Q: And at Sabangan, Mountain Province, what happened, if any? A: The bus stopped for the routinary checkpoint and inspection. Q: When they [were at] the routinary checkpoint, what happened? Atty. Sokoken: He did not say routinary checkpoint. He said routinary inspection. Fiscal Ayochok: We substitute the words inspection with checkpoint to satisfy the objection of counsel. Q: What happened when you stopped for the routinary inspection? A: We called C2C Bongyao a member of the detachment to inspect the baggage of the suspect and when C2C . Atty. Sokoken: We request that [the] witness answers the question that he testifies [to] not in the narrative way. Fiscal Ayochok: He is answering the question. Court: Let the witness finish. A: When Bongyao inspected the baggage of the suspect and he found out that it contained MJ. Q: What do you mean MJ? A: Marijuana. xxx xxx xxx 18 For his part, S/Sgt. James Ayan testified as follows: Direct Examination: xxx xxx xxx Q: And in the morning of September 6, 1987, do you recall where you were particularly in the afternoon? A: In the morning of September 6, 1987, we rode on a Dangwa bus [with Plate] No. ABZ-242 going to Sabangan. Q: You said we. Who was your companion that time?
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A: Master Sgt. Yag-as, sir. Q: And when this bus reached Chackchakan, Bontoc, Mountain Province, what did you see? A: We saw a civilian board the bus we were riding carrying a carton. Q: And where did this civilian who boarded the bus which you were riding on place that carton? A: He placed the carton under the seat of No. 18. Q: Inside the bus, Mr. witness? A: Inside the bus, sir. Q: And what about the passenger who boarded the bus carrying the carton baggage, where did he go? A: He sat facing the seat No. 18. Q: Between seat No. 18 and the seat seated by the civilian who brought the carton, where was the carton exactly located? A: As far as I know, sir, it was located just beneath seat No. 18. Q: When this bus which you rode on which the passenger carrying the carton luggage you saw reached Sabangan what happened there? A: When the bus reached Sabangan that we were riding, it was stopped for routinary inspection. Q: What happened next? A: We called C2C Bongyao to inspect the baggage that we have just seen at Chackchakan. Q: Did he inspect the baggage? A: Yes, sir. Q: And what was the contents of that baggage if there was any? A: It turned out that the contents of the baggage was MJ sir. Q: You mean marijuana? A: Yes, sir. xxx xxx xxx Cross Examination: xxx xxx xxx Q: You stated that on September 6, 1987, a Dangwa bus stopped at Sabangan, Mt. Province for purposes of military check-up, is that correct? A: Routinary inspection, sir. Q: But it was not you who entered the Dangwa bus for routinary check-up? A: We were there riding in the bus, sir, and we called C2C Bongyao to come. Q: So your purpose in riding inside the Dangwa bus was actually to see that person carrying this carton which is marked Exhibit "B"? A: No, sir, because I am a detachment commander at Sabangan and that is why I called one of my men, sir. Q: So that you have full knowledge that from Chackchakan, Bontoc, going to Sabangan, there is already marijuana being carried inside that bus? A: That is only our suspect [should be suspicion], sir. Q: Would you please tell this Honorable Court why you have not inspected it when you arrived at Alab? Why have you waited to reach Sabangan to inspect it? A: Because it is the checkpoint, sir, at Nacagang, Sabangan. Q: Are you now admitting that you do not have authority to inspect the baggage here in Bontoc? A: We just wanted it checked in Sabangan, sir. Q: Could you give us a very special reason why you have to wait in Sabangan? A: Because we are stationed in Sabangan and that is the checkpoint. Fiscal Ayochok:

Why argue with the witness? It is up for them to check it at the proper checkpoint. Court: Sustained. xxx xxx xxx 19 The testimony of C2C Fernando Bongyao is much briefer, but equally uninformative: Direct Examination: Q: On September 6, 1987, at around 9:30 a.m., do you recall having reported for duty at Nacagang, Sabangan, Mountain Province? A: Yes, sir. Q: And while you were on duty at Nacagang, Sabangan, was there anything unusual that happened that time? A: Yes, sir. Q: What was that Mr. witness? A: When we were on the checkpoint, the bus stopped bearing Plate No. ABZ-242. Q: When the bus stopped, what did you do? A: While on my way to check the bus, Master Sergeant Yag-as and Ayan called for me, sir, and they told me that a carton was placed under seat No. 18, sir. Q: And when you were told to inspect that carton under seat No. 18, did you inspect that carton? A: I inspected it, sir. Q: You said you inspected that carton, what did you do in inspecting that carton? A: I inserted my hand inside and when I removed my hand, it was a stuff of marijuana, sir. xxx xxx xxx 20 So far as the record itself is concerned, therefore, it would appear that there existed no circumstance which might reasonably have excited the suspicion of the two (2) police officers riding in the same bus as appellant Barros. They asked the police officers at the checkpoint at Sabangan to inspect the box allegedly carried by appellant Barros apparently on a mere guess that appellant Barros might be carrying something in the nature of contraband goods. There was, in other words, nothing to show that appellant Barros was then in the process of "actually committing" or "attempting to commit" a crime. 21 There was, moreover, nothing on the record that could have reasonably led the two (2) police officers to believe that "an offense [had] in fact just been committed" when appellant Barros boarded the bus at Chackchakan or when he was asked whether he owned the box here involved at the checkpoint in Sabangan. The two (2) police officers, according to the record, had no "personable knowledge of facts indicating that the person to be arrested (appellant Barros) had committed it." There was, in brief, no basis for a valid warrantless arrest. Accordingly, the search and seizure of the carton box was equally non-permissible and invalid. 22 The "fruits" of the invalid search and seizure i.e., the four (4) kilos of marijuana should therefore not have been admitted in evidence against appellant Barros. The Solicitor General, however, contends that appellant Barros had waived any irregularities which may have attended his arrest. Presumably, the Solicitor General also argues that appellant Barros has waived the non-admissibility of the carton (Exhibit "B") which contained four (4) packages of dried marijuana leaves (Exhibits "B-1", "B-2", "B-3" and "B-4"). The Solicitor General said: . . . [E]ven assuming in gratia argumenti that irregularities attended the arrest of appellant, still the same cannot be questioned at this late stage. Well-settled is the doctrine laid down in the case of Callanta vs. Villanueva (77 SCRA 377), and later reiterated in the more recent case of Bagcal vs. Villaraza (120 SCRA 525), that "posting of [a] bail bond constitutes waiver of any irregularity attending the arrest of
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a person and estops him from questioning its validity." Here, appellant had in fact posted the required bail to obtain his provisional liberty, albeit his application was subsequently denied (see TSN, Feb. 10, 1988, p. 65). Consistent with jurisprudence, therefore, he should be deemed to have waived any irregularity attending his arrest, if any there be, and cannot now be heard to assail the same. 23 It might be supposed that the non-admissibility of evidence secured through an invalid warrantless arrest or a warrantless search and seizure may be waived by an accused person. The a priori argument is that the invalidity of an unjustified warrantless arrest, or an arrest effected with a defective warrant of arrest may be waived by applying for and posting of bail for provisional liberty, so as to estop as accused from questioning the legality or constitutionality of his detention or the failure to accord him a preliminary investigation. We do not believe, however, that waiver of the latter (by, e.g., applying for and posting of bail) necessarily constitutes, or carries with it, waiver of the former an argument that the Solicitor General appears to be making impliedly. Waiver of the non-admissibility of the "fruits" of an invalid warrantless arrest and of a warrantless search and seizure is not casually to be presumed, if the constitutional right against unlawful searches and seizures is to retain its vitality for the protection of our people. In the case at bar, defense counsel had expressly objected on constitutional grounds to the admission of the carton box and the four (4) kilos of marijuana when these were formally offered in evidence by the prosecution. 24 We consider that appellant's objection to the admission of such evidence was made clearly and seasonably and that, under the circumstances, no intent to waive his rights under the premises can be reasonably inferred from his conduct before or during during the trial. In the dissenting opinion, my learned brother Melo, J. takes the view that appellant Barros had waived his rights by his "stoic deportment" consisting of failure to object to the search by the police authorities immediately after the opening of the carton box: . . . In point of fact, when the police authorities inspected the carton of marijuana and asked accused-appellant who owned the box, accused-appellant denied ownership of the box or carton and failed to even mutter the least bit of protest (p. 3, Decision). His demeanor should therefore be construed as implicit acquiescence to the search inasmuch as the objection thereto is vulnerable to express or implied waiver (People vs. Kagui Malasugui (63 Phil. 221 [1936]); 1 Bernas, Constitution of the Republic of the Philippines, First ed., 1987, p. 108). . . . . 25 It is submitted, with respect, that Kagui Malasugui is not applicable to the case at bar; rather it is People vs. Burgos, 26 promulgated fifty (50) years after Kaqui Malasuqui, that is applicable. In Burgos, this Court ruled that the accused is not to be presumed to have waived the unlawful search conducted on the occasion of his warrantless arrest "simply because he failed to object" . . . To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right (Pasion Vda. de Garcia vs. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein (Magoncia vs. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia vs. Locsin (supra): xxx xxx xxx . . . 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 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. (Citation omitted). We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights." (Johnson vs. Zerbts, 304 U.S. 458). 27 (Emphasis supplied) . Kagui Malasugui is not applicable to the instant case, because there the Court explicitly found that there was probable cause for the warrantless arrest of the accused and therefore, the warrantless search effected immediately thereafter was equally lawful. In Kagui Malasugui, a Chinese merchant was found lying on the ground with several nasty wounds in the head; one resulted in skull fracture and proved fatal. He died in the hospital to which he had been immediately brought by a policeman. Mr. Malasuqui became a suspect because when the victim was found, still alive, and upon being asked who had attacked him, laconically answered, "Kagui." On the same day, the accused Kagui Malasugui was arrested and a search of his person was conducted without objection from the accused. Before the body search of the accused was carried out, the accused voluntarily surrendered to the police authorities a couple of bracelets belonging to the deceased victim and when asked if he had anything else to surrender, he, in a trembling voice, answered in the negative. The police thereupon conducted a body search of the accused, without any objection from him; the search resulted in the production of additional personal effects belonging to the deceased victim. Under these circumstances, the Court ruled that: When one voluntarily submits to a search or consents to have it made of his person or premises, he is precluded from complaining later thereof. (Cooley, Constitutional Limitations, 8th ed., [V]ol. I, p. 631.) The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly. A propos my distinguished brother Melo, J.'s suggestion that the right against an unlawful warrantless search or arrest is personal and may not be invoked by the accused's counsel during trial, it is relevant to note that the law (the Rules of Court) specifies the proper time when objections to admission of evidence must be raised and that in the case at bar, a timely objection was made by appellant Barros. Finally, the accused's silence during the warrantless search should not be lightly taken as consent to that search, but rather construed as explained by the Court in Burgos, 28 and as pointed out by Mr. Justice Laurel, a "demonstration of regard for the supremacy of the law." It is, of course, possible that appellant Barros may in fact have been guilty of transporting the four (4) kilos of marijuana. His guilt must, however, be established by constitutional means. The non-admissibility of evidence secured through a disregard of the constitutional right of the accused against unreasonable searches and seizures is the sanction imposed by the Constitution for disregard of such right; the sanction is a powerful one, for it renders inutile the work done by the police officers, by the prosecutor and by the trial court. It is a sanction which this Court has no choice but to apply in the instant case. WHEREFORE, for all the foregoing, the decision of the Regional Trial Court, Branch 35, Bontoc, Mountain Province, in Criminal Case No. 687 is hereby REVERSED and SET ASIDE and appellant is hereby ACQUITTED of the crime charged, the evidence lawfully before the trial court not being sufficient to establish his guilt thereof beyond reasonable doubt. No costs. SO ORDERED.
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G.R. No. L-95630 June 18, 1992 SPOUSES LEOPOLDO and MA. LUISA VEROY, petitioners, vs. THE HON. WILLIAM L. LAYAGUE, Presiding Judge, Branch XIV, Regional Trial Court at Davao City; and BRIG. GEN. PANTALEON DUMLAO, Commanding General, PC-Criminal Investigation Service,respondents. PARAS, J.: This was originally a petition for certiorari, mandamus and prohibition under Rule 65 of the Rules of Court:certiorari, to review the Order of the respondent Judge dated October 2, 1990 denying herein petitioner's Motion for Hospital Confinement; mandamus, to compel respondent Judge to resolve petitioners' long pending motion for bail; and prohibition, to enjoin further proceedings on the ground that the legal basis therefore is unconstitutional for being violative of the due process and equal protection clauses of the Constitution. The facts of this case are as follows: Petitioners are husband and wife who owned and formerly resided at No. 13 Isidro St., Skyline Village. Catalunan Grande, Davao City. When petitioner Leopoldo Veroy was promoted to the position of Assistant Administrator of the Social Security System sometime in June, 1988, he and his family transferred to 130 K-8th St., East Kamias, Quezon City, where they are presently residing. The care and upkeep of their residence in Davao City was left to two (2) houseboys, Jimmy Favia and Eric Burgos, who had their assigned quarters at a portion of the premises. The Veroys would occasionally send money to Edna Soguilon for the salary of the said houseboys and other expenses for the upkeep of their house. While the Veroys had the keys to the interior of the house, only the key to the kitchen, where the circuit breakers were located, was entrusted to Edna Soguilon to give her access in case of an emergency. Hence, since 1988, the key to the master's bedroom as well as the keys to the children's rooms were retained by herein Petitioners so that neither Edna Soguilon nor the caretakers could enter the house. On April 12, 1990, Capt. Reynaldo Obrero of the Talomo Patrol Station, PC/INP, acting upon a directive issued by Metrodiscom Commander Col. Franco Calida, raided the house of herein petitioners in Davao City on information that the said residence was being used as a safehouse of rebel soldiers. They were able to enter the yard with the help of the caretakers but did not enter the house since the owner was not present and they did not have a search warrant. Petitioner Ma. Luisa was contacted by telephone in her Quezon City residence by Capt. Obrero to ask permission to search the house in Davao City as it was reportedly being used as a hideout and recruitment center of rebel soldiers. Petitioner Ma. Luisa Veroy responded that she is flying to Davao City to witness the search but relented if the search would not be conducted in the presence of Major Ernesto Macasaet, an officer of the PC/INP, Davao City and a long time family friend of the Veroys. The authority given by Ma. Luisa Veroy was relayed by Capt. Obrero to Major Macasaet who answered that Ma. Luisa Veroy has called him twice by telephone on the matter and that the permission was given on the condition that the search be conducted in his presence. The following day, Capt. Obrero and Major Macasaet met at the house of herein petitioners in Skyline Village to conduct the search pursuant to the authority granted by petitioner Ma. Luisa Veroy. The caretakers facilitated their entry into the yard, and using the key entrusted to Edna Soguilon, they were able to gain entrance into the kitchen. However, a locksmith by the name of George Badiang had to be employed to open the padlock of the door leading to the children's room. Capt. Obrero and Major Macasaet then entered the children's room and conducted the

search. Capt. Obrero recovered a .45 cal. handgun with a magazine containing seven (7) live bullets in a black clutch bag inside an unlocked drawer. Three (3) halffull jute sacks containing printed materials of RAM-SFP (samples of which were attached as Annexes "H" and "H-1" of the petition) (Rollo, pp. 49-55) were also found in the children's room. A search of the children's recreation and study area revealed a big travelling bag containing assorted polo shirts, men's brief, two (2) pieces polo barong and short sleeve striped gray polo. sweat shirt, two (2) pairs men's socks, a towel made in U.S.A., one blanket, a small black bag, Gandhi brand, containing a book entitled "Islamic Revolution Future Path of the Nation", a road map of the Philippines, a telescope, a plastic bag containing assorted medicines and religious pamphlets was found in the master's bedroom. Sgt. Leo Justalero was instructed by Capt. Obrero to make an inventory and receipt of the articles seized, in the house (Annex "F" of the Petition, Rollo, p. 48). Said receipt was signed by Eric Burgos, one of the caretakers, and George Badiang, the locksmith, as witnesses. Sgt. Justalero turned over the articles to Sgt. Rodolfo Urbano at the police station. The case was referred for preliminary investigation to Quezon City Assistant Prosecutor Rodolfo Ponferrada who was designated Acting Provincial Prosecutor for Davao City by the Department of Justice through Department Order No. 88 dated May 16, 1990. In a resolution dated August 6, 1990, Fiscal Ponferrada recommended the filing of an information against herein petitioners for Violation of Presidential Decree No. 1866 (Illegal Possession of Firearms and Ammunitions in Furtherance of Rebellion) (Annex "L" of the Petition, Rollo, p. 71). Hence, on August 8, 1990. an Information for the said offense was filed by the Office of the City Prosecutor of Davao City before the Regional Trial Court, 11th Judicial Region, Davao City, docketed as Criminal Case No. 20595-90 and entitled"People of the Philippines v. Atty. Leopoldo Veroy and Mrs. Maria Luisa Veroy" (Annex "K" of the Petition, Rollo, p. 70). No bail was recommended by the prosecution. The aforementioned resolution dated August 6, 1990 of Fiscal Ponferrada was received by the petitioners on August 13, 1990. On the same day, the latter filed a Motion for Bail before herein respondent Judge Layague which was denied on August 17, 1990 for being premature since at that time, petitioners had not yet been arrested. Despite the fact that the warrants for their arrest have not yet been served on them, herein petitioners voluntarily surrendered themselves to Brig. Gen. Pantaleon Dumlao, PC-CIS Chief, since it was the CIS that initiated the complaint. However, the latter refused to receive them on the ground that his office has not yet received copies of their warrants of arrest. In the meantime, on August 15, 1990, herein petitioners were admitted to the St. Luke's Hospital for various ailments brought about or aggravated by the stress and anxiety caused by the filing of the criminal complaint. On August 17, 1990, Brig. Gen. Dumlao granted their request that they be allowed to be confined at the hospital and placed under guard thereat. In an Indorsement dated August 20, 1990, the CIS through Capt. Benjamin de los Santos, made its return to the trial court informing the latter of the voluntary surrender of herein petitioners and the fact that they were under hospital confinement. Herein Petitioner reiterated their Motion for Bail. In an Order dated August 24, 1990 (Annex "M" of the Petition, Rollo, p. 74), the hearing for the Motion for Ball was set for August 31, 1990 to enable the prosecution to present evidence it opposition to said motion. The prosecution filed its written opposition (Annex "N" of the Petition, Rollo, p. 75) on August 28, 1990, arguing that the evidence of petitioners' guilt was strong and thereafter presented its evidence. On September 21, 1990, respondent Judge required the CIS to produce the bodies of herein petitioners on October 1, 1990 for arraignment (Annex "O" of the
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Petition, Rollo, p. 76). Upon their arraignment, herein Petitioners entered a plea of not guilty and filed an "Urgent Motion for Hospital Confinement" (Annex "OO" of the Petition Rollo, p. 77) which was denied by the court in its Order dated October 2, 1990 (Annex "P" of the Petition,Rollo, p. 80). It likewise ordered their commitment at the Davao City Rehabilitation Center, Ma-a, Davao City pending trial on the merits. Herein petitioners argued orally a motion for reconsideration which was opposed by the prosecution. At the conclusion thereof, the court a quo issued a second order annex "Q" of the Petition, Rollo, p. 83) denying then motion for reconsideration and as to the alternative prayer to reopen the motion for hospital confinement, set the continuance thereof to October 17, 1990. It was further ordered that the petitioners shall remain under the custody of the PC-CIS pending resolution of the case. Meanwhile, petitioners were returned to the St. Luke's Hospital where their physical condition remained erratic. On or about October 18, 1990, herein petitioners were informed that Brig. Gen. Dumlao had issued a directive for their transfer from the St. Luke's Hospital to Camp Crame on the basis of the October 2, 1990 Order (Annex "Q" of the Petition, Rollo, p. 83). Petitioners made representations that the tenor of the court order warranted maintenance of the status quo, i.e., they were to continue their hospital confinement. However, Brig, Gen. Dumlao informed them that unless otherwise restrained by the court, they would proceed with their transfer pursuant to the order of the trial court. Hence, this petition on October 25, 1990 this Court issued a Temporary Restraining Order, effective immediately and continuing until further orders from this Court, ordering: (a) respondent Hon. William L. Layague to refrain from further proceeding with petitioners' "Motion for Hospital Confinement" in Criminal Case No. 20595-90 entitled "People of the Philippines v. Leopoldo Veroy and Ma. Luisa Veroy"; and (b) respondent Brig. Gen. Pantaleon Dumlao to refrain from transferring petitioners from the St. Luke's Hospital (Rollo, pp. 84-A to 84-C). On November 2, 1990, respondent Judge issued an order denying petitioners' Motion for Bail (Annex "A" of the Second Supplemental Petition, Rollo, p. 133). Petitioners filed a Supplemental Petition on November 7, 1990 (Rollo, P. 105) and a Second Supplemental Petition on November 16, 1990 (Rollo, p. 120) which sought to review the order of the trial court dated November 2, 1990 denying their petition for bail. Acting on the Supplemental Petition filed by Petitioners and taking into consideration several factors such as: a) that the possibility that they will flee or evade the processes of the court is fairly remote; b) their poor medical condition; and c) the matters in their Second Supplemental Petition especially since the prosecution's evidence refers to constructive possession of the disputed firearms in Davao City through the two (2) caretakers while petitioners lived in Manila since 1988, this Court, on November 20, 1990, granted petitioners' provisional liberty and set the bail bond at P20,000.00 each (Rollo, p. 141). Petitioners posted a cash bond in the said amount on November 23, 1990 (Rollo, pp. 143-145). The petition was given due course on July 16, 1991 (Rollo, p. 211). Respondents adopted their Comment dated December 28, 1990 (Rollo, pp. 182-191) as their Memorandum while, petitioners filed their Memorandum on September 9, 1991 (Rollo, pp. 218-269). As submitted by the respondents, and accepted by petitioners, the petition for mandamus to compel respondent Judge to resolve petitioners' Motion for Bail, and the petition for certiorari to review the order of respondent judge initially denying their Motion for Hospital Confinement, were rendered moot and academic by the resolutions of this Court dated November 20, 1990 and October 25, 1990, respectively. What remains to be resolved is the petition for prohibition where petitioners raised the following issues:

1. Presidential Decree No. 1866, or at least the third paragraph of Section 1 thereof, is unconstitutional for being violative of the due process and equal protection clauses of the Constitution; 2. Presidential Decree No. 1866 has been repealed by Republic Act No. 6968; 3. Assuming the validity of Presidential Decree No. 1866 the respondent judge gravely abused his discretion in admitting in evidence certain articles which were clearly inadmissible for being violative of the prohibition against unreasonable searches and seizures. The issue of constitutionality of Presidential Decree No. 1866 has been laid to rest in the case of Misolas v. Panga, G.R. No. 83341, January 30, 1990 (181 SCRA 648), where this Court held that the declaration of unconstitutionality of the third paragraph of Section 1 of Presidential Decree No. 1866 is wanting in legal basis since it is neither a bill of attainder nor does it provide a possibility of a double jeopardy. Likewise, petitioners' contention that Republic Act 6968 has repealed Presidential Decree No. 1866 is bereft of merit. It is a cardinal rule of statutory construction that where the words and phrases of a statute are not obscure or ambiguous. its meaning and the intention of the legislature must be determined from the language employed, and where there is no ambiguity in the words, there is no room for construction (Provincial Board of Cebu v. Presiding Judge of Cebu, CFI, Br. IV, G.R. No. 34695, March 7, 1989 [171 SCRA 1]). A perusal of the aforementioned laws would reveal that the legislature provided for two (2) distinct offenses: (1) illegal possession of firearms under Presidential Decree No. 1866; and (2) rebellion, coup d' etat, sedition and disloyalty under Republic Act 6968; evidently involving different subjects which were not clearly shown to have eliminated the others. But petitioners contend that Section 1 of Presidential Decree No. 1866 is couched in general or vague terms. The terms "deal in", "acquire", "dispose" or "possess" are capable of various interpretations such that there is no definiteness as to whether or not the definition includes "constructive possession" or how the concept of constructive possession should be applied. Petitioners were not found in actual possession of the firearm and ammunitions. They were in Quezon City while the prohibited articles were found in Davao City. Yet they were being charged under Presidential Decree No. 1866 upon the sole circumstance that the house wherein the items were found belongs to them (Memorandum for Petitioners, Rollo, pp. 242244). Otherwise stated, other than their ownership of the house in Skyline Village, there was no other evidence whatsoever that herein petitioners possessed or had in their control the items seized (Ibid., pp. 248-250). Neither was it shown that they had the intention to possess the Firearms or to further rebellion (Ibid., P. 252). In a similar case, the revolver in question was found in appellant's store and the question arouse whether he had possession or custody of it within the meaning of the law. This Court held that: The animus possidendi must be proved in opium cases where the prohibited drug was found on the premises of the accused and the same rule is applicable to the possession of firearms. The appellant denied all knowledge of the existence of the revolver, and the Government's principal witness stated that there were a number of employees in the store. The only testimony which tends to show that the appellant had the possession or custody of this revolver is the inference drawn from the fact that it was found in his store, but we think that this inference is overcome by the positive testimony of the appellant, when considered with the fact that there were a number of employees in the store, who, of course, could have placed the revolver in
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the secret place where it was found without the knowledge of the appellant. At least there is a very serious doubt whether he knew of the existence of this revolver. In such case the doubt must be resolved in favor of the appellant. (U.S. v. Jose and Tan Bo., 34 Phil. 724 [1916]) But more importantly, petitioners question the admissibility in evidence of the articles seized in violation of their constitutional right against unreasonable search and seizure. Petitioners aver that while they concede that Capt. Obrero had permission from Ma. Luisa Veroy to break open the door of their residence, it was merely for the purpose of ascertaining thereat the presence of the alleged "rebel" soldiers. The permission did not include any authority to conduct a room to room search once inside the house. The items taken were, therefore, products of an illegal search, violative of their constitutional rights As such, they are inadmissible in evidence against them. The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures (Article III, Section 2 of the 1987 Constitution). However, the rule that searches and seizures must be supported by a valid warrant is not an absolute one. Among the recognized exceptions thereto are: (1) a search incidental to an arrest; (2) a search of a moving vehicle; and (3) seizure of evidence in plain view (People v. Lo Ho Wing, G.R. No. 88017, January 21, 1991 [193 SCRA 122]). None of these exceptions pertains to the case at bar. The reason for searching the house of herein petitioners is that it was reportedly being used as a hideout and recruitment center for rebel soldiers. While Capt. Obrero was able to enter the compound, he did not enter the house because he did not have a search warrant and the owners were not present. This shows that he himself recognized the need for a search warrant, hence, he did not persist in entering the house but rather contacted the Veroys to seek permission to enter the same. Permission was indeed granted by Ma. Luisa Veroy to enter the house but only to ascertain the presence of rebel soldiers. Under the circumstances it is undeniable that the police officers had ample time to procure a search warrant but did not. In a number of cases decided by this Court, (Guazon v. De Villa, supra.; People v. Aminnudin, G.R. No. L-74869, July 6, 1988 [163 SCRA 402]; Alih v. Castro, G.R. No. L69401, June 23, 1987 [151 SCRA 279]), warrantless searches were declared illegal because the officials conducting the search had every opportunity to secure a search Warrant. The objects seized, being products of illegal searches, were inadmissible in evidence in the criminal actions subsequently instituted against the accused-appellants (People v. Cendana, G.R. No. 84715, October 17, 1990 [190 SCRA 538]). Undeniably, the offense of illegal possession of firearms is malum prohibitum but it does not follow that the subject thereof is necessarily illegal per se. Motive is immaterial in mala prohibita but the subjects of this kind of offense may not be summarily seized simply because they are prohibited. A search warrant is still necessary. Hence, the rule having been violated and no exception being applicable, the articles seized were confiscated illegally and are therefore protected by the exclusionary principle. They cannot be used as evidence against the petitioners in the criminal action against them for illegal possession of firearms. (Roan v. Gonzales, 145 SCRA 689-690 [1986]). Besides, assuming that there was indeed a search warrant, still in mala prohibita, while there is no need of criminal intent, there must be knowledge that the same existed. Without the knowledge or voluntariness there is no crime. PREMISES CONSIDERED, the petition as granted and the criminal case against the petitioners for illegal possession of firearms is DISMISSED.

SO ORDERED. G.R. No. 123872 January 30, 1998 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUBEN MONTILLA y GATDULA, accused-appellant. REGALADO, J.: Accused-Appellant Ruben Montilla y Gatdula alias "Joy," was charged on August 22, 1994 for violating Section 4, Article II of the Dangerous Drugs Act of 1972, Republic Act No. 6425, as amended by Republic Act No. 7659, before the Regional Trial Court, Branch 90, of Dasmarias, Cavite in an information which alleges: That on or about the 20th day of June 1994, at Barangay Salitran, Municipality of Dasmarias, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there, willfully, unlawfully and feloniously, administer, transport, and deliver twenty-eight (28) kilos of dried marijuana leaves, which are considered prohibited drugs, in violation of the provisions of R.A. 6425 thereby causing damage and prejudice to the public interest. 1 The consequent arraignment conducted on September 14, 1994 elicited a plea of not guilty from appellant who was assisted therein by his counsel de parte. 2 Trial was held on scheduled dates thereafter, which culminated in a verdict of guilty in a decision of the trial court dated June 8, 1995 and which imposed the extreme penalty of death on appellant. He was further ordered to pay a fine in the amount of P500,000.00 and to pay the costs of the proceedings. 3 It appears from the evidence of the prosecution that appellant was apprehended at around 4:00 A.M. of June 20, 1994 near a waiting shed located at Barangay Salitran, Dasmarias, Cavite by SPO1 Concordio Talingting and SPO1 Armando Clarin, both members of the Cavite Philippine National Police Command based in Dasmarias. Appellant, according to the two officers, was caught transporting 28 marijuana bricks contained in a traveling bag and a carton box, which marijuana bricks had a total weight of 28 kilos. These two officers later asserted in court that they were aided by an informer in the arrest of appellant. That informer, according to Talingting and Clarin, had informed them the day before, or on June 19, 1994 at about 2:00 P.M., that a drug courier, whom said informer could recognize, would be arriving somewhere in Barangay Salitran, Dasmarias from Baguio City with an undetermined amount of marijuana. It was the same informer who pinpointed to the arresting officers the appellant when the latter alighted from a passenger jeepney on the aforestated day, hour, and place. 4 Upon the other hand, appellant disavowed ownership of the prohibited drugs. He claimed during the trial that while he indeed came all the way from Baguio City, he traveled to Dasmarias, Cavite with only some pocket money and without any luggage. His sole purpose in going there was to look up his cousin who had earlier offered a prospective job at a garment factory in said locality, after which he would return to Baguio City. He never got around to doing so as he was accosted by SPO1 Talingting and SPO1 Clarin at Barangay Salitran. He further averred that when he was interrogated at a house in Dasmarias, Cavite, he was never informed of his constitutional rights and was in fact even robbed of the P500.00 which he had with him. Melita Adaci, the cousin, corroborated appellant's testimony about the job offer in the garment factory where she reportedly worked as a supervisor, 5 although, as the trial court observed, she never presented any document to prove her alleged employment.
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In the present appellate review, appellant disputes the trial court's finding that he was legally caught in flagrantetransporting the prohibited drugs. This Court, after an objective and exhaustive review of the evidence on record, discerns no reversible error in the factual findings of the trial court. It finds unassailable the reliance of the lower court on the positive testimonies of the police officers to whom no ill motives can be attributed, and its rejection of appellant's fragile defense of denial which is evidently self-serving in nature. 1. Firstly, appellant asserts that the court a quo grossly erred in convicting him on the basis of insufficient evidence as no proof was proffered showing that he willfully, unlawfully, and feloniously administered, transported, and delivered 28 kilos of dried marijuana leaves, since the police officers "testified only on the alleged transporting of Marijuana from Baguio City to Cavite." Further, the failure of the prosecution to present in court the civilian informant is supposedly corrosive of the People's cause since, aside from impinging upon appellant's fundamental right to confront the witnesses against him, that informant was a vital personality in the operation who would have contradicted the hearsay and conflicting testimonies of the arresting officers on how appellant was collared by them. The pertinent provision of the penal law here involved, in Section 4 of Article II thereof, as amended, is as follows: Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty ofreclusion 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. Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed. Now, the offense ascribed to appellant is a violation of the Dangerous Drugs Act, some of the various modes of commission 6 being the sale, administration, delivery, distribution, and transportation of prohibited drugs as set forth in the epigraph of Section 4, Article II of said law. The text of Section 4 expands and extends its punitive scope to other acts besides those mentioned in its headnote by including these who 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," Section 4 could thus be violated by the commission of any of the acts specified therein, or a combination thereof, such as selling, administering, delivering, giving away, distributing, dispatching in transit or transporting, and the like. As already stated, appellant was charged with a violation of Section 4, the transgressive acts alleged therein and attributed to appellant being that he administered, delivered, and transported marijuana. The governing rule with respect to an offense which may be committed in any of the different modes provided by law is that an indictment would suffice if the offense is alleged to have been committed in one, two or more modes specified therein. This is so as allegations in the information of the various ways of committing the offense should be considered as a description of only one offense and the information cannot be dismissed on the ground of multifariousness. 7 In appellant's case, the prosecution adduced evidence clearly establishing that he transported marijuana from Baguio City to Cavite. By

that act alone of transporting the illicit drugs, appellant had already run afoul of that particular section of the statute, hence, appellant's asseverations must fail. The Court also disagrees with the contention of appellant that the civilian informer should have been produced in court considering that his testimony was "vital" and his presence in court was essential in order to give effect to or recognition of appellant's constitutional right to confront the witnesses arrayed by the State against him These assertions are, however, much too strained. Far from compromising the primacy of appellant's right to confrontation, the non-presentation of the informer in this instance was justified and cannot be faulted as error. For one the testimony of said informer would have been, at best, merely corroborative of the declarations of SPO1 Talingting and SPO1 Clarin before the trial court, which testimonies are not hearsay as both testified upon matters in which they had personally taken part. As such, the testimony of the informer could be dispensed with by the prosecution, 8 more so where what he would have corroborated are the narrations of law enforcers on whose performance of duties regularity is the prevailing legal presumption. Besides, informants are generally not presented in court because of the need to hide their identities and preserve their invaluable services to the police.9 Moreover, it is up to the prosecution whom to present in court as its witnesses, and not for the defense to dictate that course. 10 Finally, appellant could very well have resorted to the coercive process of subpoena to compel that eyewitness to appear before the court below, 11 but which remedy was not availed of by him. 2. Appellant contends that the marijuana bricks were confiscated in the course of an unlawful warrantless search and seizure. He calls the attention of the Court to the fact that as early as 2:00 P.M. of the preceding day, June 19, 1994, the police authorities had already been apprised by their so-called informer of appellant's impending arrival from Baguio City, hence those law enforcers had the opportunity to procure the requisite warrant. Their misfeasance should therefore invalidate the search for and seizure of the marijuana, as well as the arrest of appellant on the following dawn. Once again, the Court is not persuaded. Section 2, Article III of the Constitution lays down the general rule that a search and seizure must be carried out through or on the strength of a judicial warrant, absent which such search and seizure becomes "unreasonable" within the meaning of said constitutional provision. 12 Evidence secured on the occasion of such an unreasonable search and seizure is tainted and should be excluded for being the proverbial fruit of a poisonous tree. In the language of the fundamental law, it shall be inadmissible in evidence for any purpose in any proceeding. This exclusionary rule is not, however, an absolute and rigid proscription. Thus, (1) customs searches; 13 (2) searches of moving vehicles, 14 (3) seizure of evidence in plain view; 15 (4) consented searches; 16 (5) searches incidental to a lawful arrest; 17 and (6) "stop and frisk" measures 18 have been invariably recognized as the traditional exceptions. In appellant's case, it should be noted that the information relayed by the civilian informant to the law enforcers was that there would be delivery of marijuana at Barangay Salitran by a courier coming from Baguio City in the "early morning" of June 20, 1994. Even assuming that the policemen were not pressed for time, this would be beside the point for, under these circumstances, the information relayed was too sketchy and not detailed enough for the obtention of the corresponding arrest or search warrant. While there is an indication that the informant knew the courier, the records do not reveal that he knew him by name. While it is not required that the authorities should know the exact name of the subject of the warrant applied for, there is the additional problem that the informant
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did not know to whom the drugs would be delivered and at which particular part of the barangay there would be such delivery. Neither did this asset know the precise time of the suspect's arrival, or his means of transportation, the container or contrivance wherein the drugs were concealed and whether the same were arriving together with, or were begin brought by someone separately from, the courier. On such bare information, the police authorities could not have properly applied for a warrant, assuming that they could readily have access to a judge or a court that was still open by the time they could make preparations for applying therefor, and on which there is no evidence presented by the defense. In determining the opportunity for obtaining warrants, not only the intervening time is controlling but all the coincident and ambient circumstances should be considered, especially in rural areas. In fact, the police had to form a surveillance team and to lay down a dragnet at the possible entry points to Barangay Salitran at midnight of that day notwithstanding the tip regarding the "early morning" arrival of the courier. Their leader, SPO2 Cali, had to reconnoiter inside and around the barangay as backup, unsure as they were of the time when and the place in Barangay Salitran, where their suspect would show up, and how he would do so. On the other hand, that they nonetheless believed the informant is not surprising for, as both SPO1 Clarin and SPO1 Talingting recalled, he had proved to be a reliable source in past operations. Moreover, experience shows that although information gathered and passed on by these assets to law enforcers are vague and piecemeal, and not as neatly and completely packaged as one would expect from a professional spymaster, such tip-offs are sometimes successful as it proved to be in the apprehension of appellant. If the courts of justice are to be of understanding assistance to our law enforcement agencies, it is necessary to adopt a realistic appreciation of the physical and tactical problems of the latter, instead of critically viewing them from the placid and clinical environment of judicial chambers. 3. On the defense argument that the warrantless search conducted on appellant invalidates the evidence obtained from him, still the search on his belongings and the consequent confiscation of the illegal drugs as a result thereof was justified as a search incidental to a lawful arrest under Section 5(a), Rule 113 of the Rules of Court. Under the provision, a peace officers or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. A legitimate warrantless arrest, as above contemplated, necessarily cloaks the arresting police officer with authority to validly search and seize from the offender (1) dangerous weapons, and (2) those that may be used as proof of the commission of an offense. 19 On the other hand, the apprehending officer must have been spurred by probable cause in effecting an arrest which could be classified as one in cadence with the instances of permissible arrests set out in Section 5(a). 20 These instances have been applied to arrests carried out on persons caught in flagrante delicto. The conventional view is that probable cause, while largely a relative term the determination of which must be resolved according to the facts of each case, is understood as having reference to such facts and circumstances which could lead a reasonable, discreet, and prudent man to believe and conclude as to the commission of an offense, and that the objects sought in connection with the offense are in the place sought to be searched. 21 Parenthetically, if we may digress, it is time to observe that the evidentiary measure for the propriety of filing criminal charges and, correlatively, for effecting a warrantless arrest, has been reduced and liberalized. In the past, our statutory rules and jurisprudence required prima facie evidence, which was of a higher degree or quantum, 22 and was even used with dubiety as equivalent to "probable cause." Yet,

even in the American jurisdiction from which we derived the term and its concept, probable cause is understood to merely mean a reasonable ground for belief in the existence of facts warranting the proceedings complained of, 23 or an apparent state of facts found to exist upon reasonable inquiry which would induce a reasonably intelligent and prudent man to believe that the accused person had committed the crime. 24 Felicitously, those problems and confusing concepts were clarified and set aright, at least on the issue under discussion, by the 1985 amendment of the Rules of Court which provides in Rule 112 thereof that the quantum of evidence required in preliminary investigation is such evidence as suffices to "engender a well founded belief" as to the fact of the commission of a crime and the respondent's probable guilt thereof. 25 It has the same meaning as the related phraseology used in other parts of the same Rule, that is, the investigating fiscal "finds cause to hold the respondent for trial," or where "a probable cause exists." 26 It should, therefore, be in that sense, wherein the right to effect a warrantless arrest should be considered as legally authorized. In the case at bar, as soon as appellant had alighted from the passenger jeepney the informer at once indicated to the officers that their suspect was at hand by pointing to him from the waiting shed. SPO1 Clarin recounted that the informer told them that the marijuana was likely hidden inside the traveling bag and carton box which appellant was carrying at the time. The officers thus realized that he was their man even if he was simply carrying a seemingly innocent looking pair of luggage for personal effects. Accordingly, they approached appellant, introduced themselves as policemen, and requested him to open and show them the contents of the traveling bag, which appellant voluntarily and readily did. Upon cursory inspection by SPO1 Clarin, the bag yielded the prohibited drugs, so, without bothering to further search the box, they brought appellant and his luggage to their headquarter for questioning. 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 appellant's luggage. It would obviously have been irresponsible, if not 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. Furthermore, that appellant also consented to the search is borne out by the evidence. To repeat, when the officers approached appellant and introduced themselves as policemen, they asked him about the contents of his luggage, and after he replied that they contained personal effects, the officers asked him to open the traveling bag. Appellant readily acceded, presumably or in all likelihood resigned to the fact that the law had caught up with his criminal activities. When an individual
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voluntarily submits to a search or consents to have the same conducted upon his person or premises, he is precluded from later complaining thereof. After all, the right to be secure from unreasonable search may, like other rights, be waived either expressly or impliedly. 27 Thus, while it has been held that the silence of the accused during a warrantless search should not be taken to mean consent to the search but as a demonstration of that person's regard for the supremacy of the law, 28 the case of herein appellant is evidently different for, here, he 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. 29 4. Appellant likewise harps on the alleged failure of the prosecution to "legally, properly and adequately establish that the 28 bricks of marijuana allegedly confiscated from (him) were the same marijuana examined by the forensic chemist and presented in court." Indeed, the arresting officers did not identify in court the marijuana bricks seized from appellant since, in fact they did not have to do so. It should be noted that the prosecution presented in the court below and formally offered in evidence those 28 bricks of marijuana together with the traveling bag and the carton box in which the same were contained. The articles were properly marked as confiscated evidence and proper safeguards were taken to ensure that the marijuana turned over to the chemist for examination, and which subsequently proved positive as such, were the same drugs taken from appellant. The trial court, therefore, correctly admitted them in evidence, satisfied that the articles were indubitably no other than those taken from appellant. Complementarily, the corpus delicti was firmly established by SPO1 Clarin and SPO1 Talingting who categorically related that when they had ascertained that the contents of the traveling bag of appellant appeared to be marijuana, they forthwith asked him where he had come from, and the latter readily answered "Baguio City," thus confirming the veracity of the report of the informer. No other conclusion can therefore be derived than that appellant had transported the illicit drugs all the way to Cavite from Baguio City. Coupled with the presentation in court of the subject matter of the crime, the marijuana bricks which had tested positive as being indian hemp, the guilt of appellant for transporting the prohibited drugs in violation of the law is beyond doubt. Appellant questions the interrogation conducted by the police authorities, claiming that he was not allowed to communicate with anybody, and that he was not duly informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. Indeed, appellant has a point. The police authorities here could possibly have violated the provision of Republic Act No. 7438 30 which defines certain rights of persons arrested, detained, or under custodial investigation, as well as the duties of the arresting, detaining, and investigating officers, and providing corresponding penalties for violations thereof. Assuming the existence of such irregularities, however, the proceedings in the lower court will not necessarily be struck down. Firstly, appellant never admitted or confessed anything during his custodial investigation. Thus, no incriminatory evidence in the nature of a compelled or involuntary confession or admission was elicited from him which would otherwise have been inadmissible in evidence. Secondly and more importantly, the guilt of appellant was clearly established by other evidence adduced by the prosecution, particularly the testimonies of the arresting officers together with the documentary and object evidence which were formally offered and admitted in evidence in the court below. 5. The reversible error of the trial court lies in its imposition of the penalty of death on appellant. As amended by Republic Act No. 7659, Section 20, Article IV of the

Dangerous Drugs Act now provides inter alia that the penalty in Section 4 of Article II shall be applied if the dangerous drugs involved is, in the case of indian hemp or marijuana, 750 grams or more. In said Section 4, the transporting of prohibited drugs carries with it the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. Thus, the law prescribes a penalty composed of two indivisible penalties, reclusion perpetua and death. In the present case, Article 63 of the Revised Penal Code consequently provides the rules to be observed in the application of said penalties. As found by the trial court, there were neither mitigating nor aggravating circumstances attending appellant's violation of the law, hence the second paragraph of Article 63 must necessarily apply, in which case the lesser penalty of reclusion perpetua is the proper imposable penalty. Contrary to the pronouncement of the court a quo, it was never intended by the legislature that where the quantity of the dangerous drugs involved exceeds those stated in Section 20, the maximum penalty of death shall be imposed. Nowhere in the amendatory law is there a provision from which such a conclusion may be gleaned or deduced. On the contrary, this Court has already concluded that Republic Act No. 7659 did not amend Article 63 of the Revised Penal Code, 31 the rules wherein were observed although the cocaine subject of that case was also in excess of the quantity provided in Section 20. It is worth mentioning at this juncture that the law itself provides a specific penalty where the violation thereof is in its aggravated form as laid down in the second paragraph of Section 4 whereby, regardless of Section 20 of Article IV, if the victim is a minor, or should a prohibited drug involved in any offense in said section be the proximate cause of the death of a victim thereof, the maximum penalty shall be imposed. 32 While the minority or the death of the victim will increase the liability of the offender, these two facts do not constitute generic aggravating circumstances, as the law simply provides for the imposition of the single indivisible penalty of death if the offense is attended by either of such factual features. In that situation, obviously the rules on the graduation of penalties in Article 63 cannot apply. In herein appellant's case, there was neither a minor victim nor a consequent death of any victim. Hence, the basic rules in Article 63 of the Code govern. WHEREFORE, the judgment of the Regional Trial Court, Branch 90, of the Dasmarias, Cavite in Criminal Case No. 3401-94 is hereby MODIFIED in the sense that accused-appellant Ruben Montilla y Gatdula shall suffer the penalty of reclusion perpetua. In all other respects, the judgment of the trial court is hereby AFFIRMED, with costs against accused-appellant. SO ORDERED. G.R. No. L-69803 October 8, 1985 CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and WILLIE C. TOLENTINO, petitioners, vs. HON. ERNANI CRUZ PAO, Executive Judge, Regional Trial Court of Quezon City;, respondent. Jose W .Diokno, Joker P. Arroyo, Rene A. V. Sarmiento, Dan Malabonga and Cesar Maravilla for petitioners. MELENCIO-HERRERA, J.: The facts before the Court in these Certiorari, Prohibition, and mandamus proceedings will be briefly stated. The three petitioners will be referred to through their surnames of NOLASCO, AGUILAR-ROQUE and TOLENTINO.
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1. Prior to August 6, 1984 (hereinafter to be referred to without the year), AGUILARROQUE was one of the accused of Rebellion in Criminal Case No. MC-25-113 of Military Commission No. 25, both cases being entitled "People of the Philippines vs. Jose Ma. Sison, et al." She was then still at large. 2. At 11:30 A.M. on August 6th, AGUILAR-ROQUE and NOLASCO were arrested by a Constabulary Security Group (CSG) at the intersection of Mayon Street and P. Margall Street, Quezon City. The stated time is an allegation of petitioners, not denied by respondents. The record does not disclose that a warrant of arrest had previously beeen issued against NOLASCO. 3. At 12:00 N. on August 6th, elements of the CSG searched the premises at 239-B Mayon Street, Quezon City. The stated time is an allegation of petitioners, not specifically denied by respondents. In their COMMENT, however, respondents have alleged that the search was conducted "late on the same day"; that is late on august 6th. 4. On August 6th, at around 9:00 A.M., Lt. Col. Virgilio G. Saldajeno of the CSG, applied for a Search Warrant from respondent Hon. Ernani Cruz Pao, Executive Judge of the Regional Trial Court in Quezon City, to be served at No. 239-B Mayon Street, Quezon City, determined tyo be the leased residence of AGUILAR-ROQUE, after almost a month of "round the clock surveillance" of the premises as a "suspected underground house of the CPP/NPA." AGUILAR-ROQUE has been long wanted by the military for being a high ranking officer of the Communist Party of the Philippines, particularly connected with the MV Karagatan/Doa Andrea cases. In connection with the Search Warrant issued, the following may be stated: (a) The Search Warrant was issued in proceedings entitled "People of the Philippines vs. Mila Aguilar-Roque, Accused, Search Warrant No. 80- 84 for rebellion" (the SEARCH WARRANT CASE). Judge Panos Court was Branch 88. (b) It does not appear from the records before us that an application in writing was submitted by Lt. Col. Saldajeno to Judge Pao. (c) According to the record, Lt. Col. Saldajeno and his witness S/A Dionicio A. Lapus, were examined under oath by Judge Pao but only the deposition of S/A Lapus has been submitted to us. The latter deposed that to his personal knowledge, there were kept in the premises to be searched records, documents and other papers of the CPP/NPA and the National Democratic Front, including support money from foreign and local sources intended to be used for rebellion. 1 5. In connection with the search made at 12:00 N. of August 6th the following may be stated: (a) TOLENTINO was a person then in charge of the premises. He was arrested by the searching party presumably without a warrant of arrest. (b) The searching party seized 428 documents and written materials, 2 and additionally a portable typewriter, and 2 wooden boxes, making 431 items in all. 3 (c) According to the Return, submitted in the SEARCH WARRANT CASE on August 10th, 4 the search was made in the presence of Dra. Marciana Galang, owner of the premises, and of two (2) Barangay Tanods. No mention was made that TOLENTINO was present. The list of the 428 articles and documents attached to the Return was signed by the two Barangay Tanods, but not by Dra. Galang. 6. (a) On August 10th, the three petitioners, AGUILAR-ROQUE, NOLASCO and TOLENTINO, were charged before the Quezon City Fiscal's Office (the CITY FISCAL, for short) upon complaint filed by the CSG against petitioners for "Subversion/Rebellion and/or Conspiracy to Commit Rebellion/Subversion." (b) On August 13th, the CITY FISCAL filed an Information for Violation of Presidential Decree No. 33 (Illegal Possession of Subversive Documents) against petitioners

before Branch 42 of the Metropolitan Trial Court of Quezon City (the SUBVERSIVE DOCUMENTS CASE), respondent Judge Antonio P. Santos, presiding. (c) On August 16th, CSG filed a Motion for Reconsideration with the CITY FISCAL, praying that AGUILAR-ROQUE and NOLASCO be charged with Subversion. The Motion was denied on November 16th. 7. (a) On September 10th, the CSG submitted an Amended Return in the SEARCH WARRANT CASE praying, inter alia, that the CSG be allowed to retain the seized 431 documents and articles, in connection with cases that are presently pending against Mila Aguilar Roque before the Quezon City Fiscal's Office and the court. 5 (b) On September 28th, petitioners were required by Judge Pano to comment on the Amended Return, which AGUILAR-ROQUE did on October 18th, raising the issue of the inadmissibility of any evidence obtained pursuant to the Search Warrant. (c) On December 13, 1984, Judge Pao admitted the Amended Return and ruled that the seized documents "shall be subject to disposition of the tribunal trying the case against respondent." 8. (a) On December 12th, petitioners filed a Motion to Suppress in the SUBVERSIVE DOCUMENTS CASE, praying that such of the 431 items belonging to them be returned to them. It was claimed that the proceedings under the Search Warrant were unlawful. Judge Santos denied the Motion on January 7, 1985 on the ground that the validity of the Search Warrant has to be litigated in the SEARCH WARRANT CASE. He was apparently not aware of the Order of Judge Pao of December 13th issued in the SEARCH WARRANT CASE. Hence, this Petition for Certiorari, Prohibition and mandamus to annul and set aside the (1) Search Warrant issued by respondent RTC Judge Pao; (2) his Order admitting the Amended Return and granting the Motion to Retain Seized Items; and (3) Order of respondent MTC Judge Santos denying petitioners' Motion to Suppress. This Court, on February 12, 1985, issued a Temporary Restraining Order enjoining the respondents or their duly authorized representatives from introducing evidence obtained under the Search Warrant. The PETITIONERS principally assert that the Search Warrant is void because it is a general warrant since it does not sufficiently describe with particularity the things subject of the search and seizure, and that probable cause has not been properly established for lack of searching questions propounded to the applicant's witness. The respondents, represented by the Solicitor General, contend otherwise, adding that the questions raised cannot be entertained in this present petition without petitioners first moving for the quashal of the disputed Search Warrant with the issuing Judge. We find merit in the Petition. Section 3, Article IV of the Constitution, guarantees 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. It also specifically provides that no Search Warrant shall issue except upon probable cause to be determined by the Judge or such other responsible officer as may be authorized by law, 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. The disputed Search Warrant (No. 80-84) describes the personalities to be seized as follows: Documents, papers and other records of the Communist Party of the Phihppines/New Peoples Army and/or the National Democratic Front, such as Minutes of the Party Meetings, Plans of these groups, Programs, List of possible
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supporters, subversive books and instructions, manuals not otherwise available to the public, and support money from foreign or local sources. It is at once evident that the foregoing Search Warrant authorizes the seizure of personal properties vaguely described and not particularized. It is an all- embracing description which includes everything conceivable regarding the Communist Party of the Philippines and the National Democratic Front. It does not specify what the subversive books and instructions are; what the manuals not otherwise available to the public contain to make them subversive or to enable them to be used for the crime of rebellion. There is absent a definite guideline to the searching team as to what items might be lawfully seized thus giving the officers of the law discretion regarding what articles they should seize as, in fact, taken also were a portable typewriter and 2 wooden boxes. It is thus in the nature of a general warrant and infringes on the constitutional mandate requiring particular description of the things to be seized. In the recent rulings of this Court, search warrants of similar description were considered null and void for being too general. Thus: Subversive documents, pamphlets, leaflets, books, and other publications to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines. Light-a-Fire Movement and April 6 Movement. 6 The things to be seized under the warrant issued by respondent judge were described as 'subversive documents, propaganda materials, FAs, printing paraphernalia and all other subversive materials Such description hardly provided a definite guideline to the search team as to what articles might be lawfully seized thereunder. Said description is no different from if not worse than, the description found in the search warrants in "Burgos, et al. v. the Chief of Staff"which this Court declared null and void for being too general. 7 In the case at bar, the search warrant issued by respondent judge allowed the seizure of printed copies of the Philippine Times, manuscripts/drafts of articles for publication, newspaper dummies subversive documents, articles, etc., and even typewriters, duplicating machines, mimeographing and tape recording machines. Thus, the language used is so all embracing as to include all conceivable records and equipment of petitioner regardless of whether they are legal or illegal. The search warrant under consideration was in the nature of a general warrant which is constitutionally objectionable. 8 The lack of particularization is also evident in the examination of the witness presented by the applicant for Search Warrant. Q Mr. Dionicio Lapus, there is an application for search warrant filed by Lt. Col. Virgilio Saldajeno and the Court would like to know if you affirm the truth of your answer in this deposition? (The deposition instead) A Yes, sir, Q How long did it take you for the surveillance? A Almost a month, sir. Q Are you a lawyer, Mr. Lapus? A No, Your Honor, but I was a student of law. Q So, you are more or less familiar with the requisites of the application for search warrant? A Yes, Your Honor. Q How did you come to know of the person of Mila Aguilar-Roque? A Because of our day and night surveillance, Your Honor, there were so many suspicious persons with documents. Q What kind of documents do you refer to? A Documents related to the Communist Party of Philippines and New People's Army.

Q What else? A Conferences of the top ranking officials from the National Democratic Front, Organization of the Communist Party of the Philippines ... Q And may include what else? A Other papers and documents like Minutes of the Party Meetings, Plans of these groups, Programs, List of possible supporters, subversive books and instructions, manuals not otherwise available to the public and support money from foreign and local sources. 9 The foregoing questions propounded by respondent Executive Judge to the applicant's witness are not sufficiently searching to establish probable cause. The "probable cause" required to justify the issuance of a search warrant comprehends such facts and circumstances as will induce a cautious man to rely upon them and act in pursuant thereof. 10 Of the 8 questions asked, the 1st, 2nd and 4th pertain to Identity. The 3rd and 5th are leading not searching questions. The 6th, 7th and 8th refer to the description of the personalities to be seized, which is Identical to that in the Search Warrant and suffers from the same lack of particularity. The examination conducted was general in nature and merely repetitious of the deposition of said witness. Mere generalization will not suffice and does not satisfy the requirements of probable cause upon which a warrant may issue. 11 Respondents claim, however, that the proper forum for questioning the illegality of a Search Warrant is with the Court that issued it instead of this original, independent action to quash. The records show, however, that petitioners did raise that issue in the SEARCH WARRANT CASE in their Comment, dated October 18, 1984. In fact, they already questioned the admissibility of the evidence obtained under the Search Warrant, even during the inquest investigation on August 10, 1984. And in the SUBVERSIVE DOCUMENTS CASE, they filed a Motion to Suppress on December 12, 1984 claiming that the proceedings under the Search Warrant were unlawful. Substantially, therefore, while not denominated as a motion to quash, petitioners had questioned the legality of the Search Warrant. Parenthetically, it strikes the Court that the pendency of the SEARCH WARRANT CASE and of the SUBVERSIVE DOCUMENTS CASE before two different Courts is not conducive to an orderly administration of justice. It should be advisable that, whenever a Search Warrant has been issued by one Court, or Branch, and a criminal prosecution is initiated in another Court, or Branch, as a result of the service of the Search Warrant, the SEARCH WARRANT CASE should be consolidated with the criminal case for orderly procedure. The later criminal case is more substantial than the Search Warrant proceeding, and the Presiding Judge in the criminal case should have the right to act on petitions to exclude evidence unlawfully obtained. Notwithstanding the irregular issuance of the Search Warrant and although, ordinarily, the articles seized under an invalid search warrant should be returned, they cannot be ordered returned in the case at bar to AGUILAR-ROQUE. Some searches may be made without a warrant. Thus, Section 12, Rule 126, Rules of Court, explicitly provides: Section 12. Search without warrant of person arrested.A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense. The provision is declaratory in the sense that it is confined to the search, without a search warrant, of a person who had been arrested. It is also a general rule that, as an incident of an arrest, the place or premises where the arrest was made can also be search without a search warrant. In this latter case, "the extent and reasonableness of the search must be decided on its own facts and circumstances, and it has been stated that, in the application of general rules, there is some
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confusion in the decisions as to what constitutes the extent of the place or premises which may be searched. 12 "What must be considered is the balancing of the individual's right to privacy and the public's interest in the prevention of crime and the apprehension of criminals." 13 Considering that AGUILAR-ROQUE has been charged with Rebellion, which is a crime against public order; that the warrant for her arrest has not been served for a considerable period of time; that she was arrested within the general vicinity of her dwelling; and that the search of her dwelling was made within a half hour of her arrest, we are of the opinion that in her respect, the search at No. 239-B Mayon Street, Quezon City, did not need a search warrant; this, for possible effective results in the interest of public order. Such being the case, the personalities seized may be retained. by CSG, for possible introduction as evidence in the Rebellion Case, leaving it to AGUILAR-ROQUE to object to their relevance and to ask Special Military Commission No.1 to return to her any and all irrelevant documents and articles. WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by respondent Executive Judge Ernani Cruz Pao is hereby annulled and set aside, and the Temporary Restraining Order enjoining respondent from introducing evidence obtained pursuant to the Search Warrant in the Subversive Documents case hereby made permanent, the, personalities seized may be retained by the Constabulary Security Group for possible introduction as evidence in Criminal Case No. SMC-1-1, pending before Special Military commission No. 1, without prejudice to petitioner Mila Aguilar-Roque objecting to their relevance and asking said Commission to return to her any and all irrelevant documents and articles. SO ORDERED. G.R. No. 128222 June 17, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CHUA HO SAN TSAY HO SAN, accused-appellant. DAVIDE, JR., C.J.: Chua Ho San @ Tsay Ho San (hereafter CHUA) prays for his acquitttal and the reversal of the judgment of 10 February 1997 of the Regional Trial Court (RTC) of San Fernando, La Union, Branch 66, finding him guilty of transporting, without appropriate legal authority, the regulated substance methamphetamine hydrochloride, in violation of Section 15, 1 Article III of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972 as further amended by R.A. No. 7659, 2 and sentencing him to "die by lethal injection." In view thereof, the judgement was brought to this Court for automatic review pursuant to Article 47 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659. In response to reports of rampant smuggling of firearms and other contraband, Jim Lagasca Cid (hereafter CID), as Chief of Police of the Bacnotan Police Station, of La Union began patrolling the Bacnotan coastline with his officers. While monitoring the coastal area of Barangay Bulala on 29 March 1995, he intercepted a radio call at around 12:45 p.m. from Barangay Captain Juan Almoite (hereafter ALMOITE) of Barangay Tammocalao requesting police assistance regarding an unfamiliar speedboat the latter had spotted. According to ALMOITE, the vessel looked different from the boats ordinarily used by fisherfolk of the area and was poised to dock at Tammocalao shores. CID and six of his men led by his Chief Investigator, SPO1 Reynoso Badua (hereafter BADUA), proceeded forthwith to Tammocalao beach and there conferred with ALMOITE. CID then observed that the speedboat ferried a lone male passenger. As it was routine for CID to deploy his men in strategic places when

dealing with similar situations, he ordered his men to take up positions thirty meters from the coastline. When the speedboat landed, the male passenger alighted, and using both hands, carried what appeared a multicolored strawbag. He then walked towards the road. By this time, ALMOITE, CID and BADUA, the latter two conspicuous in their uniform and issued side-arms, became suspicious of the man as he suddenly changed direction and broke into a run upon seeing the approaching officers. BADUA, however, prevented the man from fleeing by holding on to his right arm. Although CID introduced themselves as police officers, the man appeared impassive. Speaking in English, CID then requested the man to open his bag, but he seem not to understand. CID thus tried speaking Tagalog, then Ilocano, but still to no avail. CID then resorted to what he termed "sign language;" he motioned with his hands for the man to open the bag. This time, the man apparently understood and acceded to the request. A search of the bag yielded several transparent plastic packets containing yellowish crystalline substances. CID then gestured to the man to close the bag, which he did. As CID wished to proceed to the police station, he signaled the man to follow, but the latter did not to comprehend. Hence, CID placed his arm around the shoulders of the man and escorted the latter to the police headquarters. At the police station, CID surmised, after having observed the facial features of the man, that he was probably Taiwanese. CID then "recited and informed the man of his constitutional rights" to remain silent, to have the assistance of a counsel, etc. Eliciting no response from the man, CID ordered his men to find a resident of the area who spoke Chinese to act as an enterpreter. In the meantime, BADUA opened the bag and counted twenty-nine (29) plastic packets containing yellowish crystalline substance which he and CID suspected was shabu. The interpreter, Mr. Go Ping Guan, finally arrived, through whom the man was "apprised of his constitutional rights." The police authorities were satisfied that the man and the interpreter perfectly understood each other despite their uncertainty as to what language was spoken. But when the policemen asked the man several questions, he retreated to his obstinate reticence and merely showed his I.D. with the name Chua Ho San printed thereon. CHUA's bag and its contents were sent to the PNP Crime Laboratory at Camp Diego Silang, Carlatan, San Fernando, La Union for laboratory examination. In the meantime, CHUA was detained at the Bacnotan Police Station.1wphi1.nt Later that same day, Police Chief Inspector and Forensic Chemist Theresa Ann Bugayong Cid of the Philippine National Police, Region I, received a letter request 3 from CID incidentally her husband to conduct a laboratory examination of twenty-nine (29) plastic packets placed inside a multicolored strawbag. In her Chemistry Report No. D-025-95, 4 she stated that her qualitative examination established the contents of the plastic packets, weighing 28.7 kilos, to be positive of methamphetamine hydrochloride or shabu, a regulated drug. CHUA was initially charged with illegal possession of methaphetamine hydrochloride before the RTC which docketed the case as Criminal Case No. 4037. However, pursuant to the recommendation of the Office of the Provincial Prosecutor, La Union, that the facts of the case could support an indictment for illegal transport of a regulated drug, the information was subsequently amended to allege that CHUA "willfully, unlawfully and feloniously transpor(ted) 28.7 kilos of [m]ethamphetamine [h]ydrochloride (shabu) without the necessary permit or authority to transport the same" in violation of Section 15, Article III of R.A. 6425 as amended by R.A. 7659. At his arraignment on 31 July 1995, CHUA entered a plea of not guilty. The RTC was satisfied that CHUA understood the amended information read to him in Fukien by the Fukien-speaking interpreter, Thelma Sales Go.
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Thereafter, the RTC exerted all efforts to obtain the services of a Taiwanese Interpreter through the auspices of the Department of Foreign Affairs. However, it was only after directing the request to the Taipei Economic and Cultural Office in the Philippines that interpreters were assigned to CHUA. Trial finally ensued. The State presented evidence tending to establish the above narration of facts which were culled chiefly from the testimony of CID, its first witness, and whose testimony, in turn, was substantially corroborated by witnesses BADUA and ALMOITE. Experts witness Theresa Ann Cid, confirmed the entries of her chemistry report in that the contents of the 29 plastic packets weighing 28.7 kilos sent to her for chemical analysis were pure, unadulterated methamphetamine hydrochloride or shabu. She also explained that they were unwashed, hence they appeared yellowish. For the defense, CHUA testified in his own behalf through interpreter Steven Yu. He disclosed that he hails from Taiwan and was employed in a shipbuilding and repairing company. On 21 March 1995, he was instructed by his employer Cho Chu Rong (hereafter RONG) to board the latter's 35-tonner ship which would embark for Nan Au Port, Mainland China where they would buy fish. Upon arrival at their destination, RONG left the ship, came back without the fish, but with two bags, the contents of which he never divulged to CHUA. RONG then showed to CHUA a document purportedly granting them authority to fish on Philippine waters. So they sailed towards the Philippines and reached Dagupan, Pangasinan on 29 March 1995. At around 10:30 a.m., they disembarked on a small speedboat with the two bags RONG brought with him from China. While, sailing, RONG made several phone calls using his mobile phone. CHUA heard RONG asked the person on the other side of the line if he could see the speedboat they were riding. Apparently, the person on shore could not see them so they cruised over the waters for about five hours more when finally, low on fuel and telephone battery, they decided to dock. CHUA anchored the boat while RONG carried the bags to shore. The tasks completed, RONG left to look for a telephone while CHUA rested and sat one and half (1 1/2) meters away from one bag. A child thereafter pointed out to him that one bag was missing much to RONG's dismay when he learned of it. When a crowd started to mill around them, the police arrived. CHUA then realized that RONG was nowhere to be found. The police immediately approached CHUA, and with nary any spoken word, only gestures and hand movements, they escorted him to the precinct where he was handcuffed and tied to a chair. Later, the police, led by an officer who CHUA guessed as the Chief of Police arrived with the motor engine of the speedboat and a bag. They presented the bag to him, opened it, inspected and weighed the contents, then proclaimed them as methaphetamine hydrochloride. CHUA denounced the prosecution's story as a distortion of the truth. He denied he was ever favored with an interpreter or informed of his "constitutional rights," particularly of his right to counsel. Consequently, his arrest was tainted with illegality and the methamphetamine hydrochloride found in the bag should have been regarded inadmissible as evidence. He also maintained that CID never graced the occasion of his setting foot for the first time at Tammocalao beach. BADUA certainly never prevented him from running away, as such thought failed to make an impression in his mind. Most significantly, he denied ownership and knowledge of the contents of the bag, emphasizing that RONG alone exercised dominion over the same. Elmer Parong, (hereafter PARONG) a Sangguniang Bayan member, recalled that on the date in question, he arrived at the beach with the police. He saw CHUA standing with a bag beside him. He also remembered hearing from the people congregating

at the beach that CHUA arrived with a companion and a certain policeman Anneb had chased the latter's car. He additionally claimed that when the crowd became unruly, the police decided to bring CHUA to police headquarters. There, the mayor took charge of the situation he opened CHUA's bag with the assistance of the police, he called for a forensic chemist surnamed CID to take a sample of the contents of the bag, and he ordered his officials to find an interpreter. Throughout the proceedings, photographers were busy taking pictures to document the event. Last to testify was Arsenio CRAIG, a farmer and resident of Tammocalao who narrated that he was standing with CHUA on the beach when two men and a lady arrived. They were about to get a bag situated near CHUA when they detected the arrival of the local police. They quickly disappeared. CRAIG then noticed ALMOITE and PARONG at the beach but not CID. In a decision promulgated on 10 February 1997, the RTC found that the prosecution successfully discharged its burden of proving that CHUA transported 28.7 kilos of methamphetamine hydrochloride without legal authority to do so. Invoking People v. Tagliben 5 as authority, the RTC characterized the search as incidental to a valid inflagrante delicto arrest, hence it allowed the admission of the methamphetamine hydrochloride as corpus delicti. The RTC also noted the futility of informing CHUA of his constitutional rights to remain silent, and to have competent and independent counsel preferably of his own choice, considering the language barrier and the observation that such irregularity was "rectified when accused was duly arraigned and . . . (afterwards) participated in the trial of this case." The RTC then disregarded the inconsistencies and contradictions in the testimonies of the prosecution witnesses as these referred to minor details which did not impair the credibility of the witnesses or tarnish the credence conferred on the testimonies thus delivered. The RTC also believed that CHUA conspired not only with his alleged employer RONG and the Captain of the 35-tonner vessel in the illegal trade of prohibited drugs on Philippine shores, but with several other members of an organized syndicate bent on perpetrating said illicit traffic. Such predilection was plainly evident in the dispositive portion, to wit: WHEREFORE, and in view of all the foregoing, as proven and established by convincing and satisfactory evidence that the accused had conspired and acted in concert with one Cho Chu Rong, not to mention Chen Ho Fa, the Skipper of the 35tonner ship they used in coming to the Country from China and Taiwan, this Court finds the accused Chua Ho San @ Tsay Ho San guilty beyond reasonable doubt of the offense of Violation of Sec. 15, Art. III of R.A. No. 6425, as amended by R.A. No. 7659 as charged in the Information, and considering the provisions of Sec. 20 of R.A. No. 7659 that the maximum penalty shall be imposed if the quantity sold/possessed/transported is "200 grams or more" in the case of Shabu, and considering, further that the quantity involved in this case is 28.7 kilograms which is far beyond the weight ceiling specified in said Act, coupled with the findings of conspiracy or that accused is a member of an organized syndicated crime group, this Court, having no other recourse but to impose the maximum penalty to accused, this Court hereby sentences the said accused Chua Ho San @ Tsay Ho San to die by lethal injection; to pay a fine of Ten Million Pesos (P10,000,000.00); and to pay the costs. The Court hereby orders Director Ricareido [sic] Sarmiento of the Philippine National Police to immediately form an investigating Committee to be composed by [sic] men of unimpeachable integrity, who will conduct an exhaustive investigation regarding this case to determine whether there was negligence or conspiracy in the escape of Cho Chu Rong and the two (2) or three (3) persons who approached the accused in the seashore of Tammocalao, Bacnotan, La Union, and attempted to take the
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remaining bag from accused, as well as the whereabouts of the other bag; and to furnish this Court a copy of the report/result of the said investigation in order to show compliance herewith sixty (60) days from receipt hereof. The confiscated 28.7 kilograms of Methaphetamine Hydrochloride or Shabu is ordered turned over immediately to the Dangerous Drugs Board for destruction in accordance with the law. The fiberglass boat with its motor engine is hereby ordered confiscated in favor of the government and to be turned over to the Philippine National Police, La Union Command, for use in their Bantay-Dagat operations against all illegal seaborne activities. SO ORDERED. 6 Before this Court, CHUA posits that the RTC erred in (1) admitting as competent evidence the 29 plastic packets of methamphetamine hydrochloride since they were indubitably "forbidden fruits;" (2) granting weight and credence to the testimonies of prosecution witnesses despite glaring inconsistencies on material points; and in (3) appreciating conspiracy between him and an organized syndicate in the illicit commerce of prohibited drugs since this was not alleged in the information. The Solicitor General traverses CHUA's contentions by asserting that: (1) the search was licitly conducted despite the absence of search and seizure warrants as circumstances immediately preceding to and comtemporaneous with the search necessitated and validated the police action; and (2) that there was an effective and valid waiver of CHUA's right against unreasonable searches and seizures since he consented to the search. We reverse the RTC. Enshrined in the Constitution is the inviolable right to privacy home and person. It explicitly ordains that people have the right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose. 7 Inseparable, and not merely corollary or incidental to said right and equally hallowed in and by the Constitution, is the exclusionary principle which decrees that any evidence obtained in violation of said right is inadmissible for any purpose in any proceedings. 8 The Cosntitutional proscription against unreasonable searches and seizures does not, of course, forestall reasonable searches and seizure. What constitutes a reasonable or even an unreasonable search in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved. 9Verily, the rule is, the Constitution bars State intrusions to a person's body, personal effects or residence except if conducted by virtue of a valid of a valid search warrant issued in compliance with the procedure outlined on the Constitution and reiterated in the Rules of Court; "otherwise such search and seizure become "unreasonable" within the meaning of the aforementioned constitutional provision." 10 This interdiction against warrantless searches and seizures, however, is not absolute and such warrantless searches and seizures have long been deemed permissible by jurisprudence 11 in instances of (1) search of moving vehicles, (2) seizure in plain view, (3) customs searches, (4) waiver or consent searches, (5) stop and frisk situations (Terry search), 12 and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuan to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid wararnt of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, and (3) arrests of escaped prisoners. 13 This Court is therefore tasked to determine whether the warrantless arrest, search and seizure conducted under the facts of the case at bar constitute a valid

exemption from the warrant requirement. Expectedly and quite understandably, the prosecution and the defense painted extremely divergent versions of the incident. But this Court is certain that CHUA was arrested and his bag searched without the benefit of a warrant. In cases of in fragrante delicto, arrests, a peace officer or a private person may without a warrant, arrest a person, when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. The arresting officer, therefore, must have personal knowledge of such facts 14 or as recent case law15 adverts to, personal knowledge of facts or circumstances convincingly indicative or constitutive of probable cause. The term probable cause had been understood to mean a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is charged. 16 Specifically with respect to arrests, it is such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 17 In People v. Montilla, 18 the Court acknowledged that "the evidentiary measure for the propriety of filing criminal charges, and correlatively, for effecting warrantless arrest, has been reduced and liberalized." Noting that the previous statutory and jurisprudential evidentiary standard was "prima facie evidence" and that it had been dubiously equated with probable cause, the Court explained: [F]elicitously, those problems and confusing concepts (referring to prima facie evidence and probable cause) were clarified and set aright, at least on the issue under discussion, by the 1985 amendment of the Rules of Court which provides in Rule 112 thereof that the quantum of evidence required in preliminary investigation is such evidence as suffices to "engender as well founded belief" as to the fact of the commission of the crime and the respondent's probable guilt thereof. It has the same meaning as the related phraseology used in other parts of the same Rule, that is, that the investigating fiscal "finds cause to hold the respondent for trial," or where "a probable cause exists." It should, therefore, be in that sense, wherein the right to effect a warrantless arrest should be considered as legally authorized." (emphasis supplied) 19 Guided by these principles, this Court finds that there are no facts on record reasonably suggestive or demonstrative of CHUA's participation in on going criminal enterprise that could have spurred police officers from conducting the obtrusive search. The RTC never took the pains of pointing to such facts, but predicated mainly its decision on the finding that was "accused was caught red-handed carrying the bagful of [s]habu when apprehended." In short, there is no probable cause. At least in People v. Tangliben, the Court agreed with the lower court's finding that compelling reasons (e.g., accused was acting suspiciously, on the spot identification by an informant that accused was transporting prohibitive drug, and the urgency of the situation) constitutive of probable cause impelled police officers from effecting an in flagrante delicto arrest. In the case at bar, the Solicitor General proposes that the following details are suggestive of probable cause persistent reports of rampant smuggling of firearm and other contraband articles, CHUA's watercraft differing in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas, CHUA's illegal entry into the Philippines (he lacked the necessary travel documents or visa), CHUA's suspicious behavior, i.e. he attempted to flee when he saw the police authorities, and the apparent ease by which CHUA can return to and navigate his speedboat with immediate dispatch towards the high seas, beyond the reach of Philippine laws.
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This Court, however, finds that these do not constitute "probable cause." None of the telltale clues, e.g., bag or package emanating the pungent odor of marijuana or other prohibited drug, 20 confidential report and/or positive identification by informers of courier(s) of prohibited drug and/or the time and place where they will transport/deliver the same, 21 suspicious demeanor or behavior 22 and suspicious bulge in the waist 23 accepted by this Court as sufficient to justify a warrantless arrest exists in this case. There was no classified information that a foreigner would disembark at Tammocalao beach bearing prohibited drug on the date in question. CHUA was not identified as a drug courier by a police informer or agent. The fact that the vessel that ferried him to shore bore no resemblance to the fishing boats of the area did not automatically mark him as in the process of perpetrating an offense. And despite claims by CID and BADUA that CHUA attempted to flee, ALMOITE testified that the latter was merely walking and oblivious to any attempt at conversation when the officers approached him. This cast serious doubt on the truthfulness of the claim, thus: Q: How far were you when the accused put the bag on his sholder? A: We were then very near him about three meters away from the male person carrying the bag. Q: To what direction was he facing when he put the bag on his shoulder? A: To the east direction. Q: In relation to you, where were you. A: With the company of Sgt. Reynoso and Maj. Cid we approached the accused and when Maj. Cid went near him, he spoke in Tagalong, English and Ilocano which accused did not understand because he did not respond. Q: When Maj. Cid was talking, what was the accused doing at that time? A: He was walking. Q: To what direction he was walking? A: He was walking to the east direction. (sic) Q: He was walking away from you or going near you? A: He was going away from us. That is why Sgt. Reynoso held the right arm of the accused. Q: Was Sgt. Badua able to hold the right arm of the accused? A: Yes sir and he stopped. 24 True, CHUA entered Philippine territory without a visa. This was not obvious to the police. But gossamer to the officers' sense perception and view were CHUA disembarking from a speedboat, CHUA walking casually towards the road, and CHUA carrying a multicolored strawbag. These acts did not convey any impression that he illegally entered Philippine shores. Neither were these overt manifestations of an ongoing felonious activity nor of CHUA's criminal behevior as clearly established in CID's testimony, thus: Q Was the accused committing a crime when you introduced yourselves: A No, sir. Q No, so there was no reason for you to approach the accused because he was not doing anything wrong? A No, sir, that is our objective, to approach the person and if ever or whatever assistance that we can give we will give. 25 The search cannot therefore be denominated as incidental to an arrest. While a contemporaneous search of a person arrested may be effected to deliver dangerous weapons or proofs or implements used in the commission of the crime and which search may extend to the area within his immediate control where he might gain possession of a weapon or evidence he can destroy, 26 a valid arrest must precede the search. The process cannot be reversed.

In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search. In this instance, the law requires that there be first a lawful arrest before a search can be made the process cannot be reversed. 27 To reiterate, the search was not incidental to an arrest. There was no warrant of arrest and the warrantless arrest did not fall under the exemptions allowed by the Rules of Court 28 as already shown. Fom all indications, the search was nothing but a fishing expedition. It is worth mentioning here that after introducing themselves, the police officcers immediately inquired about the contents of the bag. What else could have impelled the officers from displaying such inordinate interest in the bag but to ferret out evidence and discover if a felony had indeed been committed by CHUA in effect to "retroactively establish probable cause and validate an illegal search and seizure." The State then attempted to persuade this Court that there was a consented search, a legitimate waiver of the constitutional guarantee against obtrusive searches. It is fundamental, however, that to constitute a waiver, it must first appear that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right. 29 CHUA never exhibited that he knew, actually or constructively of his right against unreasonable searches or that he intentionally conceded the same. This can be inferred from the manner by which the search performed, thus: Q Together with your Chief Investigator, what was the first thing that you did when you approached him (CHUA)? A We introduced ourselves as police officers, sir. Q Okey, in the first place why did you introduce yourselves? A That is normal practice in our part, sir. xxx xxx xxx Q If it is possible. Okey (sic) now, after introducing yourselves what did you do? A He did not answer me and he did not utter any word, Q When he did not utter any word. What else did he do? A I asked again a question that if he can open his bag sir. Q And did he understand your question when you requested him to open his bag? A No, sir, there is no answer. Q No answer? A Yes, sir, no answer. Q And when there was no answer what did you do next? A I used sign language sir. Q Will you demonstrate to this Honorable Court how you demonstrated that sign language of opening the bag mr. (sic) witness? A I pointed to the zipper of the bag and then made an action like this sir. xxx xxx xxx SHERIFF: The witness demonstrating (sic) by pointing to the straw bag and then manifesting a sign to open the zipper of the straw bag moving his right hand from left to right or from the opening to the end of the zipper. COURT: From the start of the zipper where you open it up to the end of the zipper. Witness: Yes, sir, and then I made a motion like this. (The witness repeating the motion described on record.) COURT: Did you open that personally? WITNESS: A No, your honor.
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Q Now, mr. (sic) witness, why did you request the accused to open the bag? A Because it is our duty also to inspect his belongings sir. Q Why, why was it no, I reform my question your honor. Is it normal procedure for you to examine anybody or to request anybody to open his bag? A The fact that he was a foreigner, sir, it is also our duty to inspect the baggage, it is our routine duty of a police (sic), sir. Q Is that the normal duty of a police officer to request a person to open his bag? A yes, sir. Q Okey, (sic) you did not ask the accused, mr. (sic) witness, to open his bag? A No, sir. Q But you simply requested him to open the nag? A Yes, sir. 30 CHUA obviously failed to understand the events that overran and overwhelmed him. The police officers already introduced themselves to CHUA in three languages, but he remained completely deadpan. The police hence concluded that CHUA failed to comprehend the three languages. When CHUA failed to respond again to the police's request to open the bag, they resorted to what they called "sign language." They claimed that CHUA finally understood their hand motions and gestures. This Court disagrees. If CHUA could not understand what was orally articulated to him, how could he understand the police's "sign language." More importantly, it cannot logically be inferred from his alleged cognizance of the "sign language" that he deliberately, intelligently, and consciously waived his right against such an intrusive search. This Court is not unmindful of cases upholding the validity of consented warrantless searches and seizure. But in these cases, the police officers' request to search personnel effects was orally articulated to the accused and in such language that left no room for doubt that the latter fully understood what was requested. In some instances, the accused even verbally replied to the request demonstrating that he also understood the nature and consequences of such request. 31 It was eventually discovered that the bag contained the regulated subtance. But this is a trifling matter. If evidence obtained during an illegal search even if tending to confirm or actually confirming initial information or suspicion of felonious activity is absolutely considered inadmissible for any purpose in any proceeding, the same being the fruit of a poisonous trees 32 how much more of "forbidden fruits" which did not confirm any initial suspicion of criminal enterprise as in this case because the police admitted that they never harbored any initial suspicion. Casting aside the regulated substance as evidence, the remaining evidence on record are insufficient, feeble and ineffectual to sustain CHUA's conviction. Indeed, the likelihood of CHUA having actually transported methamphetamine hydrochloride cannot be quickly dispelled. But the constitutional guarantee against unreasonable searches and seizures cannot be so carelessly disregarded, as overzealous police officers are sometimes wont to do. Fealty to the Constitution and the rights it guarantees should be paramount in their minds, otherwise their good intentions will remain as such simply because they have blundered. "There are those who say that . . . 'the criminal is to go free because the constable has blundered.'. . . In some cases this will undoubtedly be the result. But . . . 'there is another consideration the imperative of judicial integrity . . . The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." 33 As to the averred glaring inconsistencies in the testimonies of the posecution witnesses, this Court considers them trivial as they refer to insignificant details which will not affect the outcome of the case. On a passing note, this Court calls the

attention of the trial court regarding its erroneous appreciation of conspiracy. This aggravating circumstance is without question unsupported by the records. Conspiracy was not included in the indictment nor raised in the pleadings or proceedings of the trial court. It is also fundamental that conspiracy must be proven just like any other criminal accusation, that is, independently and beyond reasonable doubt. 34 WHEREFORE, for all the foregoing, the decision of the Regional Trial Court, Branch 66, San Fernando, La Union in Criminal Case No. 4037 is hereby REVERSED and SET ASIDE and accused-appellant CHUA HO SAN @ TSAY HO SAN is hereby ACQUITTED of the crime charged, the evidence not being sufficient to establish his guilt beyond reasonable doubt. Costs de oficio. SO ORDERED. [G.R. No. 116001. March 14, 2001] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. LUISITO GO y KO alias KING LOUIE, Accused-Appellant. [G.R. No. 123943. March 14, 2001] LUISITO GO y CO, Petitioner, v. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondent. DECISION YNARES-SANTIAGO, J.: On October 22, 1992, at around 10:00 oclock in the evening, SPO1 Mauro Piamonte and SPO3 Candido Liquido, members of the Intelligence and Follow-up Unit of the Calamba Police, went to the police outpost at Crossing, Calamba, Laguna, to follow up an intelligence report that methamphetamine hydrochloride, or shabu, a regulated drug, was being supplied there. Police civilian agent Ronnie Panuringan arrived and reported to them that he saw accused-appellant Luisito Go, also known as King Louie, enter the Flamingo Disco House with two women. Panuringan said that he spotted a gun tucked in accused-appellants waist. Together, the three policemen proceeded to the Flamingo, which was located about a hundred meters away from the outpost. When they arrived at the Flamingo, the police officers informed the owner that they were conducting an Operation Bakal, whereby they search for illegally possessed firearms. The owner allowed them in and told a waiter to accompany them. They went up to the second floor of the disco. The waiter turned on the lights, and the police officers saw accused-appellant and his lady companions seated at a table. They identified themselves and asked accused-appellant to stand up. When the latter did so, the policemen saw the gun tucked in his waist. SPO1 Piamonte asked for the license of the gun, but accused-appellant was unable to produce any. Instead, accused-appellant brought out the drivers license of a certain Tan Antonio Lerios. SPO1 Piamonte confiscated the gun, which was later identified as a 9mm Walther P88, Serial Number 006784, with a magazine containing ten (10) rounds of live ammunition. Accused-appellant was invited to the police precinct for questioning. On the way out of the disco, accused-appellant asked permission to bring his car, which was parked outside. The police officers accompanied accused-appellant to his car, a Honda Civic with license plate number TCM-789. Through the windshield, SPO3 Liquido noticed a Philippine National Police identification card hanging from the rearview mirror. He asked accused-appellant if he was a member of the PNP, and he said no. The police officers asked accused-appellant for his drivers license and the registration papers of the vehicle, but he was unable to produce them.
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When accused-appellant opened the door, SPO3 Liquido took the ID card and found that the same belonged to SPO4 Zenaida Bagadiong. The police officers saw pieces of glass tooters and tin foils on the backseat and floor of the car. They asked accused-appellant why he had these items, but he did not say anything. Instead, accused-appellant suggested that they talk the matter over, and intimated that he had money. SPO3 Liquido replied that they should talk at the police headquarters. Accused-appellant took out an attach case from the car and opened it. There were two black clutch bags inside. Accused-appellant opened the first bag, which contained shiny white substance wrapped in cellophane. The second bag contained P120,000.00 in cash. The police officers brought accused-appellant to the police station. When they arrived at the precinct, they turned over the attach case together with the two black clutch bags to the investigator. The investigator found eight cellophane bags containing granules suspected to be shabu in one of the clutch bags. When the attach case was opened, the police officers found that it also contained three glass tooters, tin foils, an improvised burner, magazines and newspapers. [1 Consequently, two Informations were filed against accused-appellant before the Regional Trial Court of Calamba, Laguna, Branch 34. The first Information, which was docketed as Criminal Case No. 3308-92-C, charged accused-appellant with violation of Article III of R.A. 6452 (Dangerous Drugs Act), committed as follows: That on or about October 22, 1992 at Brgy. I, Crossing, Municipality of Calamba, province of Laguna, and within the jurisdiction of this Honorable Court, the abovenamed accused, not being authorized/permitted by law, did then and there wilfully, unlawfully and feloniously have in his possession, control and custody 750 grams of methamphetamine hydrochloride known as SHABU, a regulated drug, in violation of the above-stated law.[2 The other Information, docketed as Criminal Case No. 3309-92-C, charged accusedappellant with violation of P.D. 1866, committed as follows: That on or about October 22, 1992, at Flamingo Beerhouse, Crossing, Municipality of Calamba, Province of Laguna and within the jurisdiction of this Honorable Court, the accused above-named not being licensed or authorized by law, did then and there wilfully, unlawfully and feloniously have in his possession, custody and control one (1) caliber .9mm marked WALTHER with serial number 006784 with one (1) magazine loaded with ten (10) live ammunitions of same caliber, in violation of the aforementioned law.[3 After a joint trial, the lower court rendered judgment convicting accused-appellant in the two criminal cases, to wit: WHEREFORE, judgment is hereby rendered finding the accused in Criminal Case No. 3308-92-C, to be GUILTY beyond reasonable doubt of having in his possession of 750.39 grams of methamphetamine hydrochloride, a regulated drug. He is hereby sentenced to a penalty of imprisonment of six (6) years and one (1) day to twelve (12) years and a fine of TWELVE THOUSAND (P12,000.00) PESOS; and in Criminal Case No. 3309-92-C, the accused is also found GUILTY beyond reasonable doubt of the crime of Illegal Possession of Firearm, and is hereby sentenced to suffer an imprisonment of reclusion perpetua. Considering that the accused appears to be detained at the Makati Police Station, jailer, Makati Police Station is hereby ordered to commit the accused to the New Bilibid Prison, Bureau of Correction, Muntinlupa, Metro Manila. The bond posted by the accused in Criminal Cases No. 3308-92-C & 3309-92-C, are hereby ordered cancelled.[4

Accused-appellant appealed his conviction in Criminal Case No. 3309-92-C directly to this Court, considering that the penalty imposed was reclusion perpetua, which appeal was docketed as G.R. No. 116001. On the other hand, accused-appellant brought his appeal of the judgment in Criminal Case No. 3308-92-C before the Court of Appeals. [5In an Amended Decision dated February 21, 1996, the Court of Appeals affirmed accused-appellants conviction but modified the penalty imposed by the trial court by sentencing him, in addition to imprisonment of six (6) years and one (1) day to twelve (12) years, to pay a fine of six thousand pesos (P6,000.00), citing Section 8 of R.A. 6425, with subsidiary imprisonment in case of insolvency. [6 Hence, this petition for review, docketed as G.R. No. 123943. The two cases were consolidated. [7 Accused-appellant assails the validity of his arrest and his subsequent convictions for the two crimes. Both the trial court and the Court of Appeals found that the arrest and subsequent seizure were legal. A review of the records at bar shows no reason to depart therefrom. The constitutional proscription, that no person shall be arrested without any warrant of arrest having been issued prior thereto, [8 is not a hard-and-fast rule. The Rules of Court and jurisprudence recognize exceptional cases where an arrest may be effected without a warrant. [9 Among these are when, in the presence of a peace officer, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; or when an offense has in fact just been committed, and the arresting officer has personal knowledge of facts indicating that the person to be arrested has committed it. In the cases at bar, the police saw the gun tucked in appellants waist when he stood up. The gun was plainly visible. No search was conducted as none was necessary. Accused-appellant could not show any license for the firearm, whether at the time of his arrest or thereafter. Thus, he was in effect committing a crime in the presence of the police officers. No warrant of arrest was necessary in such a situation, it being one of the recognized exceptions under the Rules. As a consequence of appellants valid warrantless arrest, he may be lawfully searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant, as provided in Rule 126, Section 12. This is a valid search incidental to the lawful arrest. [10 The subsequent discovery in his car of drug paraphernalia and the crystalline substance, which was later identified as shabu, though in a distant place from where the illegal possession of firearm was committed, cannot be said to have been made during an illegal search. As such, the seized items do not fall within the exclusionary clause, which states that any evidence obtained in violation of the right against warrantless arrest cannot be used for any purposes in any proceeding. [11 Hence, not being fruits of the poisonous tree, so to speak, the objects found at the scene of the crime, such as the firearm, the shabu and the drug paraphernalia, can be used as evidence against appellant. Besides, it has been held that drugs discovered as a result of a consented search is admissible in evidence. [12 Under P.D. 1866, the essence of the crime is the accuseds lack of license or permit to carry or possess firearm, ammunition, or explosive. Possession by itself is not prohibited by law. [13 In prosecutions for illegal possession of firearm, the element of absence of license to possess the firearm may be established through the testimony of or a certification from a representative of the Firearms and Explosives Bureau [14of the Philippine National Police (FEB-PNP), attesting that a person is not a licensee of any firearm. [15 In this case, a representative of the FEB-PNP testified that accused-appellant was not a holder of any gun license. [16 Moreover, a
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certification [17to that effect was presented to corroborate his testimony. These pieces of evidence suffice to establish the second element of the offense of possession of unlicensed firearms. [18 However, in a vain attempt to exculpate himself, accused-appellant presented for the first time an alleged firearm license, which was described as Annex 2 of his petition. Accused-appellants counsel admitted that said document was not presented below for some reason. [19 Whatever those reasons are, he did not specify. The document, however, is dubious. It is too late in the day for accused-appellant to proffer this very vital piece of evidence which might exculpate him. First, the reception of evidence is best addressed to the trial court because it entails questions of fact. It should be emphasized that this Court is not a trier of facts. [20Second, the document marked as Annex 2 of the petition in G.R. No. 123943 is not the license referred to, but an order of the trial court resetting the date of arraignment. [21 Third, there is attached to the petition a firearm license [22 which is a mere photocopy and, as such, cannot be appreciated by this Court. Indeed, considering that this was the one piece of evidence which could spell accusedappellants acquittal of the unlicensed firearm charge, and assuming that, as shown in the face of the license, it was issued on October 7, 1992, there should be no reason for its non-production during the trial. Fourth, and most importantly, the genuineness of the purported license becomes all the more suspect in view of the Certification issued by the FEO-PNP that accused-appellant was not a licensed firearm holder. Anent the certification issued by the FEO-PNP to the effect that Luisito Go y Ko was not a licensed gun holder, accused-appellant claims that he was not the person alluded to therein because the correct spelling of his middle name is not Ko but Co. Whatever the correct spelling of his name is, the fact remains that he had no license on the day the gun was found in his possession. All that he could present then was a photocopy of his application for gun license, [23 which is not the equivalent of a license. Appellant testified that he presented a firearm license to the police, [24 but he could not produce that alleged license in court. If appellant was indeed a licensed gun holder and if that license existed on October 22, 1992, he could have easily presented it to the police when he was asked for his papers inside the disco, or if the alleged license was in his car, he could have easily shown it to them when they went to his car. Otherwise, he could have easily asked his lawyer or relative to bring the license to the police precinct when he was being investigated. Despite several opportunities to produce a license, he failed to do so. In fact, during trial, he never presented any such license. And on appeal, he could only submit for the first time and for unknown reasons an alleged photocopy of a purported license. The only plausible conclusion that can be drawn is that there was no such license in the first place. Hence, his guilt of illegal possession of firearm was duly established. Accused-appellants guilt for illegal possession of shabu has likewise been proven beyond reasonable doubt. The white crystalline substance found in his possession, upon laboratory examination, were positively identified as methamphetamine hydrochloride or shabu, a regulated drug. [25 The bulk of accused-appellants defense revolves around the factual findings of the trial court. It should be recalled that factual findings of the trial court, if supported by evidence on record, and particularly when affirmed by the appellate court, are binding on this Court. [26 As discussed above, the records substantiate the trial courts and the appellate courts findings as to accused-appellants culpability. There is no reason to depart from these findings as no significant facts and circumstances were shown to have been overlooked or disregarded which, if considered, would have altered the outcome of the case. [27 Moreover, questions as to credibility of

witness are matters best left to the appreciation of the trial court because of its unique opportunity of having observed that elusive and incommunicable evidence of the witness deportment on the stand while testifying, which opportunity is denied to the reviewing tribunal. [28 In the case at bar, the trial court found: The narration of the incident by the police is far more worthy of belief coming as it does from law enforcers who are presumed to have regularly performed their duties and were not demonstrated to have been unduly biased against the accused.[29 Similarly, the Court of Appeals held that: (T)he findings of fact of the trial court are generally respected by the appellate court, unless they are found to be clearly biased or arbitrary. We do not find any in these cases.[30 The crime of illegal possession of firearm, committed in 1992, regardless of whether the firearm is low powered or high powered, was punished with the penalty of reclusion perpetua to death, as provided in P.D. 1866. However, under R.A. No. 8294, which took effect on July 6, 1997, [31 the penalty was lowered to prision correcional in its maximum period and a fine of P30,000.00, if the firearm [32 is classified as low powered. In this case, the unlicensed firearm found in appellants possession was a 9mm Walther pistol, which under the amendatory law, is considered as low powered. Inasmuch as the new law imposes a reduced penalty and is, thus, more favorable to accused-appellant, the same may be given retroactive effect. [33 Therefore, accused-appellant is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to four (4) years, two (2) months and one (1) day ofprision correccional, as maximum, and a fine of P30,000.00. On the other hand, the crime of illegal possession of regulated drug, under the law in force at the time of the commission of the offense in this case, was punished by imprisonment of from six (6) years and one (1) day to twelve (12) years and a fine ranging from P6,000.00 to P12,000.00, [34 regardless of the amount of drugs involved. Hence, accused-appellant is sentenced to an indeterminate penalty of six (6) years and one (1) day, as minimum, to twelve (12) years, as maximum, and to pay a fine of P12,000.00. WHEREFORE , the decision of the trial court finding accused-appellant guilty beyond reasonable doubt of illegal possession of firearm is AFFIRMED, with the MODIFICATION that he is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day ofprision correccional, as minimum, to four (4) years, two (2) months and one (1) day of prision correccional, as maximum, and a fine of P30,000.00. The decision of the trial court finding accused-appellant guilty beyond reasonable doubt of illegal possession of 750.39 grams of shabu and drug paraphernalia, is likewise AFFIRMED with the MODIFICATION that he is sentenced to an indeterminate penalty of six (6) years and one (1) day, as minimum, to twelve (12) years, as maximum, and to pay a fine of P12,000.00. The shabu and subject drug paraphernalia seized from appellant shall be destroyed as provided by law. SO ORDERED [G.R. Nos. 138539-40. January 21, 2003] PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO C. ESTELLA, appellant. DECISION PANGANIBAN, J.: The Constitution bars the admission of evidence gathered in violation of the right against unreasonable search and seizure. In the present case, the illegal drug was searched for and found in a hut that has not been proven to be owned, controlled, or
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used by appellant for residential or any other purpose. Hence, he cannot be held guilty of illegal possession of the illegal drug found therein. The Case Antonio C. Estella appeals the August 25, 1998 Decision[1] of the Regional Trial Court (RTC) of Iba, Zambales (Branch 69) in Criminal Case No. RTC 2143-I. The trial court found him guilty of violating Section 8, Article II of RA 6425, as amended by RA 7659, and sentenced him to reclusion perpetua as follows: WHEREFORE, foregoing considered, in Criminal Case No. RTC 2143-I, accused Antonio C. Estella is found GUILTY beyond reasonable doubt for Violation of Section 8, Article II of R.A. 6425 as amended by R.A. 7659 and is sentenced to suffer the penalty of reclusion perpetua. The 8.320 kilograms of dried marijuana is ordered confiscated in favor of the government. The Sheriff is directed to deliver the subject marijuana to the Dangerous Drugs Board for its proper disposition. In Criminal Case No. RTC 2144-I, accused Antonio C. Estella is ACQUITTED and the Information dated 07 January 1997 filed against him for violation of P.D. 1866 is dismissed with costs de oficio. The .38 caliber revolver without serial number and four (4) live ammunitions, subject of the offense, are ordered delivered to any authorized representative of the Philippine National Police, Firearms and Explosives Division, Camp Crame, Quezon City.[2] The Information dated January 7, 1997, charged appellant thus: That on or about the 20th day of November, 1996 at about 11:15 oclock in the morning, at Purok Yakal, Barangay Baloganon, in the Municipality of Masinloc, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, said accused, did then and there, wil[l]fully, unlawfully and feloniously have in his possession, custody and control, [o]ne (1) tin can labeled CLASSIC containing twenty (20) small bricks of dried marijuana fruiting tops having a total weight of 589.270 grams each wrapped with a piece of reading material; [o]ne (1) tin can labeled CLASSIC containing dried marijuana fruiting tops weighing 41.126 grams; [t]wo (2) white sando plastic bag each containing one (1) [brick] of dried marijuana fruiting tops having a total weight of 1.710 kilograms each wrapped with a piece of newspaper; [o]ne (1) white sando plastic bag containing two (2) bricks of dried marijuana fruiting tops having a total weight of 1.820 kilograms each wrapped with a piece of newspaper, all in the total of 8.320 kilograms of dried marijuana, without any authority to possess the same.[3] After the Information had been read to him in Filipino, a language he fully understood,[4] appellant, assisted by his counsel de parte,[5] pleaded not guilty when arraigned on March 11, 1997. After due trial, the RTC convicted appellant of illegal possession of dangerous drugs (marijuana), but acquitted him of illegal possession of firearms. On November 4, 1998, his counsel filed a Notice of Appeal.[6] The Facts Version of the Prosecution In its Brief,[7] the Office of the Solicitor General (OSG) presents the prosecutions version of the facts as follows: Prior to November 20, 1996, Executive Judge Romulo Estrada of the Regional Trial Court of Zambales issued a warrant for the conduct of a search and seizure in the residence of appellant at Purok Yakal, Barangay Baloganon, Masinloc, Zambales. In the morning of November 20, 1996, Senior Police Officer 1 (SPO1) Antonio Bulor[o]n, then Intelligence and Investigation Officer, together with SPO1 Jose Arca and several other members of the Provincial Special Operation Group based in Burgos, San Marcelino, Zambales proceeded to Masinloc. They coordinated with the

members of the Philippine National Police (PNP) in Masinloc and sought the assistance of Barangay Captain Rey Barnachea of Baloganon, Masinloc for the enforcement of the search warrant. Barangay Captain Barnaceha accompanied the police officers to Purok Yakal, Barangay Baloganon, Masinloc, the place mentioned in the search warrant. On their way to Purok Yakal, SPO1 Buloron saw appellant sitting on a rocking chair located about two (2) meters away from a hut owned by Narding Estella, brother of appellant, and being rented by appellants live-in partner, named Eva. They approached appellant and introduced themselves as police officers. They showed appellant the search warrant and explained the contents to him. SPO1 Buloron asked appellant if indeed he had in his possession prohibited drug and if so, to surrender the same so he would deserve a lesser penalty. While inside the hut, appellant surrendered to the team two cans containing dried marijuana fruiting tops. One can contained twenty (20) bricks of fruiting tops. The team searched the hut in the presence of appellant and his live-in partner. They found a plastic container under the kitchen table, which contained four (4) big bricks of dried marijuana leaves and a .38 caliber revolver with four live ammunitions. The team seized the prohibited drug, the revolver and ammunitions. The team seized and signed a receipt for the seized items. Barangay Captain Barnachea and SPO1 Edgar Bermudez of the Masinloc Police Station also signed the receipt as witnesses. SPO1 Buloron and his companions arrested appellant and brought him to San Marcelino, Zambales. At their office in San Marcelino, Zambales, SPO1 Buloron and SPO1 Arca placed their markings on the seized items for purposes of identification. SPO1 Arca kept the seized items under his custody. The next day, SPO1 Buloron and SPO1 Arca brought the seized items to San Antonio, Zambales, where Police Senior Inspector Florencio Sahagun examined the suspected marijuana dried leaves. Inspector Sahagun prepared a certification of field test. On November 29, 1996, the suspected marijuana dried leaves were delivered to the PNP Crime Laboratory at Camp Olivas for further examination. Senior Inspector Daisy Babor, a forensic chemist, examined the suspected marijuana dried leaves and issued Chemistry Report No. D-768-96 stating that the specimens are positive for marijuana, a prohibited drug. Specimen A weighed 1.710 kilograms, while Specimen D weighed 1.820 kilograms.[8] (Citations omitted) Version of the Defense For his version of the facts, appellant merely reproduced the narration in the assailed RTC Decision as follows: Accused Antonio C. Estella [I]s married to Gloria Atrero Estella. They have three (3) children, namely: Carmen Estella (8 years old), Antonio Estella, Jr. (5 years old) and Roen Estella (3 years old). Since 1982, Antonio Estella has been [a] resident of Barangay Baloganon, Masinloc, Zambales. On 20 November 1996 between 10:30 oclock and 11:00 oclock in the morning, while accused was talking with his friends Rael Tapado and Victor de Leon at a vacant lot just outside the house of Camillo Torres and about 70 meters away from his house, a group of men approached them. The group introduced themselves as policemen and told them that they were looking for Antonio Estella because they have a search warrant issued against him. Accused identified himself to them. The policemen inquired from the accused as to where his house is located and accused told them that his house is located across the road. The police did not believe him and insisted that accuseds house (according to their asset) is that house located about 5-8 meters away from them. Accused told the policemen to inquire from the Barangay Captain Barnachea as to where his house is and heard the latter telling
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the policemen that his house is located near the Abokabar junk shop. After about half an hour, the policemen went inside the house nearby and when they came out, they had with them a bulk of plastic and had it shown to the accused. They photographed the accused and brought him to their office at San Marcelino, Zambales. Accused Antonio Estella was investigated a[t] San Marcelino, Zambales where he informed the police officers of the fact that the house they searched was occupied by Spouses Vicente and Fely Bakdangan. Accused denied having surrendered to policeman Buloron tin cans containing marijuana and likewise having any firearm. Miguel Buccat, who personally knew the accused for about ten (10) years, identified the house depicted on a photograph as that house belonging to the accused.[9] (Citations omitted) Ruling of the Trial Court In finding appellant guilty of violating the Dangerous Drugs Act, the court a quo relied heavily on the testimony of the prosecutions principal witness, Intelligence and Investigation Officer SPO1 Antonio Buloron. He was among the members of the police team that searched appellants alleged house. Since the defense failed to present proof of any intent on the part of SPO1 Buloron to falsely impute to appellant such a serious crime, the trial court accorded full faith and credence to the police officers testimony. Moreover, the RTC held that no less than the barangay captain of the place named in the search warrant led the police to the house. Thus, appellant could not deny that he owned it. As to the charge of illegal possession of firearms, the lower court ruled that the search warrant did not cover the seized firearm, making it inadmissible against appellant. He was thus acquitted of the charge. Hence, this recourse.[10] The Issues In his appeal, appellant assigns the following alleged errors for our consideration: A. The trial court erred in convicting the accused based on the conjectural and conflicting testimonies of the prosecution witnesses; B. The trial court gravely failed to consider the serious contradictions in the facts and evidences adduced by the prosecution; C. The trial court gravely erred in finding that the guilt of the accused-appellant for the crime charged has been prove[n] beyond reasonable doubt, instead of judgment of acquittal demanded by the constitutional presumption of innocence[.][11] Though not clearly articulated by appellant, the pivotal issue here is the legality of the police search undertaken in the hut where the subject marijuana was seized. The Courts Ruling The appeal is meritorious. Main Issue: Legality of the Search Undertaken Once again, this Court is confronted with a situation that involves a well-enshrined dogma in our Constitution: the inviolable right of the people to be secure in their persons and properties against unreasonable searches and seizures.[12] The exclusionary rule prescribed by Section 3(2), Article III of the Constitution, bars the admission of evidence obtained in violation of this right.[13] The conviction or the acquittal of appellant hinges primarily on the validity of the police officers search and seizure, as well as the admissibility of the evidence obtained by virtue thereof. Without that evidence, the prosecution would not be able to prove his guilt beyond reasonable doubt.

Ownership of the Subject House Appellant claims that the hut,[14] which was searched by the police and where the subject marijuana was recovered, does not belong to him. He points to another house[15] as his real residence. To support his claim, he presents a document[16] that shows that the subject hut was sold to his brother Leonardo C. Estella by one Odilon Eclarinal. The OSG, on the other hand, argues that just because appellant has another house in a place away from the hut that was searched does not necessarily mean that the hut is not occupied by him or under his full control.[17]The prosecution cites the testimony of Rey Barnachea, the barangay captain of that place, to show that the hut in question belongs to appellant. The only link that can be made between appellant and the subject hut is that it was bought by his brother Leonardo a.k.a. Narding Estella.[18] We cannot sustain the OSGs supposition that since it was being rented by the alleged live-in partner of appellant, it follows that he was also occupying it or was in full control of it. In the first place, other than SPO1 Bulorons uncorroborated testimony, no other evidence was presented by the prosecution to prove that the person renting the hut was indeed the live-in partner of appellant -- if he indeed had any. Moreover, the testimony of Barnachea serves to undermine, not advance, the position of the prosecution. We quote from his testimony: Q Do you know who is the owner of that house? A What I know is that Narding Estella bought that house, sir. Q Who is that Narding Estella? A The brother of Tony Estella, sir. Q And you know that that has been rent[ed] to people? A Yes, sir. Q Now, so far how many people [rented] that place or that house? A I do not have any information about that[,] sir. Q Why did you know that that place was rented? A Because when I asked Eva she replied that they [were] only renting that house, sir. Q How long has Eva been renting that house? A I do not have any information about that[,] sir. Q Do you know who was living with Eva? A No, sir. Q So, what you know is that Eva lives alone in that house? A Yes, sir. Q And you do not know anybody who is renting that house? A I have no information, sir. Q And you do not know if the accused was renting [it] or not? A I dont have any information, sir.[19] At most, the testimony shows that the subject hut was bought by Narding Estella and rented by someone named Eva. The attempt to make it appear that appellant occupied it, or that it was under his full control, is merely conjectural and speculative. We have often ruled that courts do not rely on evidence that arouses mere suspicion or conjecture.[20] To lead to conviction, evidence must do more than raise the mere possibility or even probability of guilt.[21] It must engender moral certainty. Neither do we find merit in the OSGs argument that appellant cannot deny ownership or control of the hut, since he was found in front of it, sitting on a rocking chair and drinking coffee.[22]Indeed, to uphold this proposition would be to stretch our imagination to the extreme.
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The OSG maintains that when appellant was shown the search warrant and asked about the existence of prohibited drug in his possession, appellant went inside the hut, took his stock of marijuana and turned it [over] to the police officers.[23] This, according to the prosecution, clearly showed that he was not only occupying the hut, but was in fact using it to store the prohibited drug.[24] It is well-settled that this Court is not precluded from assessing the probative value of witnesses testimonies on the basis of the transcript of stenographic notes (TSNs).
[25]

In the case at bar, we believe that the trial court erred in adopting the prosecutions dubious story. It failed to see patent inconsistencies in the prosecution witnesses testimonies about the search undertaken. A review of the TSNs shows that SPO1 Buloron, the prosecution's principal witness, testified that appellant had allegedly gone inside the hut; and that the latter had done so to get his stock of illegal drugs, which he turned over to the police. Ironically, Captain Barnachea, who was purposely presented by the prosecution to corroborate SPO1 Buloron's story, belied it when he testified thus: PROS. QUINTILLAN: Q When the police officer showed that search warrant what did Antonio Estella said, if any, if you hear[d]? A What I saw is that Tony Estella is sitting in the rocking chair outside the house drinking coffee, sir. Q And you saw him and then the search warrant was presented, isnt it? A Yes, sir. Q And when it was presented what did Tony Estella do? A What they did they show to Tony the search warrant and I also read the contents of the search warrant, sir. Q And when Tony was shown that search warrant what did he do immediately after being shown that search warrant? A He just [sat] and then he stood up, sir. Q And when he stood up what else did he do? A Nothing, sir. The NARCOM g[o]t inside the house, sir. Q And where did Antonio Estella go when the police entered the house? A He was just outside the house, sir. Q And how far is that house from Antonio Estella? INTERPRETER: Witness estimating the distance of about five (5) meters. COURT: Do the prosecution and defense agree to 5 meters? BOTH COUNSEL: Yes, Your Honor. PROS. QUINTILLAN: Q And when the police entered the house did not Tony go with them? A I did not notice, sir.[26] It is undisputed that even before arriving at the hut, the police officers were already being assisted by Barangay Captain Barnachea. Thus, it was highly improbable for him not to see personally appellants alleged voluntary surrender of the prohibited drug to the authorities. And yet, his testimony completely contradicted the policemens version of the events. He testified that appellant, after being served the search warrant, remained outside the hut and did nothing. In fact, the former categorically stated that when the police officers had gone inside the hut to conduct the search, appellant remained seated on a rocking chair outside.[27] Barnacheas statements sow doubts as to the veracity of SPO1 Bulorons claim that, after being

apprised of the contents of the search warrant, appellant voluntarily surrendered the prohibited drug to the police.[28] Apart from the testimony of Barnachea -- which contradicted rather than validated the story of SPO1 Buloron -- no other evidence was presented to corroborate the latters narration of the events. Without any independent or corroborative proof, it has little or no probative value at all. In a criminal prosecution, the court is always guided by evidence that is tangible, verifiable, and in harmony with the usual course of human experience -- not by mere conjecture or speculation.[29] While the guilty should not escape, the innocent should not suffer.[30] Search Incident to Lawful Arrest The OSG argues that [e]ven assuming that appellant was not the occupant of the hut, the fact remains that he voluntarily surrendered the marijuana to the police officers. After appellant had surrendered the prohibited stuff, the police had a right to arrest him even without a warrant and to conduct a search of the immediate vicinity of the arrestee for weapons and other unlawful objects as an incident to the lawful arrest.[31] The above argument assumes that the prosecution was able to prove that appellant had voluntarily surrendered the marijuana to the police officers. As earlier adverted to, there is no convincing proof that he indeed surrendered the prohibited drug, whether voluntarily or otherwise. In fact, the testimony of Prosecution Witness Barnachea clouds rather than clarifies the prosecutions story. Given this backdrop, the police authorities cannot claim that the search was incident to a lawful arrest. Such a search presupposes a lawful or valid arrest and can only be invoked through Section 5, Rule 113 of the Revised Rules on Criminal Procedure, which we quote: SEC. 5. Arrest without warrant; when lawful - A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 Rule 112. Never was it proven that appellant, who was the person to be arrested, was in possession of the subject prohibited drug during the search. It follows, therefore, that there was no way of knowing if he had committed or was actually committing an offense in the presence of the arresting officers. Without that knowledge, there could have been no search incident to a lawful arrest. Assuming arguendo that appellant was indeed committing an offense in the presence of the arresting officers, and that the arrest without a warrant was lawful, it still cannot be said that the search conducted was within the confines of the law. Searches and seizures incident to lawful arrests are governed by Section 12, Rule 126 of the Revised Rules of Criminal Procedure, which reads:

Section 12. 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. However, the scope of the search should be limited to the area within which the person to be arrested can reach for a weapon or for evidence that he or she can destroy.[32] The prevailing rule is that the arresting officer may take from the arrested individual any money or property found upon the latters person -- that which was used in the commission of the crime or was the fruit of the crime, or which may provide the prisoner with the means of committing violence or escaping, or which may be used in evidence in the trial of the case.[33] In the leading case Chimel v. California,[34] the Supreme Court of the United States of America laid down this rule: When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officers 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 arrestees person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestees person and the area within his immediate control construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself.[35] The purpose of the exception is to protect the arresting officer from being harmed by the person being 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.[36] In the case before us, searched was the entire hut, which cannot be said to have been within appellants immediate control. Thus, the search exceeded the bounds of that which may be considered to be incident to a lawful arrest. The Presence of the Accused or the Witnesses During the Search Having ruled that the prosecution failed to prove appellants ownership, control of or residence in the subject hut, we hold that the presence of appellant or of witnesses during the search now becomes moot and academic. Obviously, appellant need not have been present during the search if he was neither the owner nor the lawful occupant of the premises in question. Besides, as we have noted, the testimonies of the prosecution witnesses regarding these crucial circumstances were contradictory. They erode SPO1 Bulorons credibility as a prosecution witness and raise serious doubts concerning the prosecutions evidence. This Court is thus constrained to view his testimony with caution and care. With the failure of the prosecution to establish the propriety of the search undertaken -- during which the incriminating evidence was allegedly recovered -- we hold that the search was illegal. Without the badge of legality, any evidence obtained therein becomes ipso facto inadmissible. Objections to the

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Legality of the Search Finally, the OSG argues that appellant is deemed to have waived his right to object to the legality of the search and the admissibility of the evidence seized through that search because, during the trial, he did not raise these issues. On the contrary, during the trial, appellant constantly questioned the legality of the search. In fact, when SPO1 Buloron was presented as a prosecution witness, the formers counsel objected to the offer of the latters testimony on items allegedly confiscated during the search. Appellants counsel argued that these items, which consisted of the marijuana and the firearm, had been seized illegally and were therefore inadmissible.[37] Further, in his Comments and Objections to Formal Offer of Exhibits,[38] appellant once again questioned the legality of the search conducted by the police, a search that had yielded the evidence being used against him. Finally, on October 21, 1997, he filed a Demurrer to Evidence[39] reiterating his objection to the search and to the eventual use against him of the evidence procured therefrom. All told, without sufficient admissible evidence against appellant, the prosecution failed to establish his guilt with moral certainty. [40] Not only did its evidence fall short of the quantum of proof required for a conviction, it has also failed to present any evidence at all. Under our Bill of Rights, among the fundamental rights of the accused is to be presumed innocent until the contrary is proved.[41] To overcome such presumption, the prosecution must establish guilt beyond reasonable doubt. Our criminal justice system dictates that if the prosecution fails to do so, it becomes not only the right of the accused to be set free, but also the constitutional duty of the court to set them free.[42] This principle leaves this Court no option but to acquit Appellant Antonio C. Estella for insufficiency of evidence. WHEREFORE, the appealed Decision is SET ASIDE. Antonio C. Estella is ACQUITTED and ordered immediately RELEASED from custody, unless he is being held for some other lawful cause. The director of the Bureau of Corrections is ORDERED to implement this Decision forthwith and to INFORM this Court, within five (5) days from receipt hereof, of the date appellant was actually released from confinement. Costs de oficio. SO ORDERED. G.R. No. 89139 August 2, 1990 ROMEO POSADAS y ZAMORA, petitioner, vs. THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. Rudy G. Agravate for petitioner. GANCAYCO, J.: The validity of a warrantless search on the person of petitioner is put into issue in this case. On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab and Pat. Umbra Umpar, both members of the Integrated National Police (INP) of the Davao Metrodiscom assigned with the Intelligence Task Force, were conducting a surveillance along Magallanes Street, Davao City. While they were within the premises of the Rizal Memorial Colleges they spotted petitioner carrying a "buri" bag and they noticed him to be acting suspiciously. They approached the petitioner and identified themselves as members of the INP. Petitioner attempted to flee but his attempt to get away was thwarted by the two notwithstanding his resistance.
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They then checked the "buri" bag of the petitioner where they found one (1) caliber . 38 Smith & Wesson revolver with Serial No. 770196 1 two (2) rounds of live ammunition for a .38 caliber gun 2 a smoke (tear gas) grenade, 3and two (2) live ammunitions for a .22 caliber gun. 4 They brought the petitioner to the police station for further investigation. In the course of the same, the petitioner was asked to show the necessary license or authority to possess firearms and ammunitions found in his possession but he failed to do so. He was then taken to the Davao Metrodiscom office and the prohibited articles recovered from him were indorsed to M/Sgt. Didoy the officer then on duty. He was prosecuted for illegal possession of firearms and ammunitions in the Regional Trial Court of Davao City wherein after a plea of not guilty and trial on the merits a decision was rendered on October 8, 1987 finding petitioner guilty of the offense charged as follows: WHEREFORE, in view of all the foregoing, this Court , finds the accused guilty beyond reasonable doubt of the offense charged. It appearing that the accuse d was below eighteen (18) years old at the time of the commission of the offense (Art. 68, par. 2), he is hereby sentenced to an indeterminate penalty ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor to TWELVE (12) Years, FIVE (5) months and Eleven (11) days of Reclusion Temporal, and to pay the costs. The firearm, ammunitions and smoke grenade are forfeited in favor of the government and the Branch Clerk of Court is hereby directed to turn over said items to the Chief, Davao Metrodiscom, Davao City. 5 Not satisfied therewith the petitioner interposed an appeal to the Court of Appeals wherein in due course a decision was rendered on February 23, 1989 affirming in toto the appealed decision with costs against the petitioner. 6 Hence, the herein petition for review, the main thrust of which is that there being no lawful arrest or search and seizure, the items which were confiscated from the possession of the petitioner are inadmissible in evidence against him. The Solicitor General, in justifying the warrantless search of the buri bag then carried by the petitioner, argues that under Section 12, Rule 136 of the Rules of Court a person lawfully arrested may be searched for dangerous weapons or anything used as proof of a commission of an offense without a search warrant. It is further alleged that the arrest without a warrant of the petitioner was lawful under the circumstances. Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides 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 in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. (6a, 17a) From the foregoing provision of law it is clear that an arrest without a warrant may be effected by a peace officer or private person, among others, when in his presence the person to be arrested has committed, is actually committing, or is attempting to commit an offense; or when an offense has in fact just been

committed, and he has personal knowledge of the facts indicating that the person arrested has committed it. The Solicitor General argues that when the two policemen approached the petitioner, he was actually committing or had just committed the offense of illegal possession of firearms and ammunitions in the presence of the police officers and consequently the search and seizure of the contraband was incidental to the lawful arrest in accordance with Section 12, Rule 126 of the 1985 Rules on Criminal Procedure. We disagree. At the time the peace officers in this case identified themselves and apprehended the petitioner as he attempted to flee they did not know that he had committed, or was actually committing the offense of illegal possession of firearms and ammunitions. They just suspected that he was hiding something in the buri bag. They did now know what its contents were. The said circumstances did not justify an arrest without a warrant. However, there are many instances where a warrant and seizure can be effected without necessarily being preceded by an arrest, foremost of which is the "stop and search" without a search warrant at military or police checkpoints, the constitutionality or validity of which has been upheld by this Court in Valmonte vs. de Villa, 7 as follows: 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 light 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. Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, or simply looks into a vehicle or flashes a light therein, 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. (Emphasis supplied).
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Thus, as between a warrantless search and seizure conducted at military or police checkpoints and the search thereat in the case at bar, there is no question that, indeed, the latter is more reasonable considering that unlike in the former, it was effected on the basis of a probable cause. The probable cause is that when the petitioner acted suspiciously and attempted to flee with the buri bag there was a probable cause that he was concealing something illegal in the bag and it was the right and duty of the police officers to inspect the same. It is too much indeed to require the police officers to search the bag in the possession of the petitioner only after they shall have obtained a search warrant for the purpose. Such an exercise may prove to be useless, futile and much too late. In People vs. CFI of Rizal, 8 this Court held as follows: . . . In the ordinary cases where warrant is indispensably necessary, the mechanics prescribed by the Constitution and reiterated in the Rules of Court must be followed and satisfied. But We need not argue that there are exceptions. Thus in the extraordinary events where warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without warrant, what constitutes a reasonable or unreasonable search or seizure becomes 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. The Court reproduces with approval the following disquisition of the Solicitor General: The assailed search and seizure may still be justified as akin to a "stop and frisk" situation whose object is either to determine the identity of a suspicious individual or to maintain the status quo momentarily while the police officer seeks to obtain more information. This is illustrated in the case ofTerry vs. Ohio, 392 U.S. 1 (1968). In this case, two men repeatedly walked past a store window and returned to a spot where they apparently conferred with a third man. This aroused the suspicion of a police officer. To the experienced officer, the behaviour of the men indicated that they were sizing up the store for an armed robbery. When the police officer approached the men and asked them for their names, they mumbled a reply. Whereupon, the officer grabbed one of them, spun him around and frisked him. Finding a concealed weapon in one, he did the same to the other two and found another weapon. In the prosecution for the offense of carrying a concealed weapon, the defense of illegal search and seizure was put up. The United States Supreme Court held that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for the purpose of investigating possible criminal behaviour even though there is no probable cause to make an arrest." In such a situation, it is reasonable for an officer rather than simply to shrug his shoulder and allow a crime to occur, to stop a suspicious individual briefly in order to determine his identity or maintain thestatus quo while obtaining more information. . . . Clearly, the search in the case at bar can be sustained under the exceptions heretofore discussed, and hence, the constitutional guarantee against unreasonable searches and seizures has not been violated. 9 WHEREFORE, the petition is DENIED with costs against petitioner. SO ORDERED. G.R. No. 79965 May 25, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLO RODRIGUEZ y COTARIAN, accused-appellant.

The Solicitor General for plaintiff-appellee. Anthony V. Rosete for accused-appellant. QUIASON, J.: This is an appeal from the decision of the Regional Trial Court, Branch XVIII, Tabaco, Albay, in Criminal Case No. T-1374, finding appellant guilty beyond reasonable doubt of violating Section 4, Article II of the Dangerous Drugs Act of 1972 (R. A. No. 6425 as amended by B. P. No. 179). I The Information charged appellant as follows: That on or about the 21st day of June, 1984, at 3:30 o'clock (sic) in the afternoon, more or less, at the ground floor of the Tabaco Bus Terminal, Municipality of Tabaco, Province of Albay, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law or any government agency, did then and there willfully, unlawfully, feloniously and with deliberate intent to violate the law had in his possession and control dried Marijuana leaves and seeds, sell, deliver and distribute sticks of Marijuana (Rollo, p. 13). On May 7, 1985, appellant assisted by his counsel, pleaded not guilty to the information. On July 8, 1986, the trial court rendered its decision, finding appellant guilty beyond reasonable doubt of delivering, distributing and selling marijuana. The dispositive portion of the decision reads as follows: WHEREFORE, judgment is hereby issued, sentencing the accused, Pablo Rodriguez y Cotarian, to the penalty of life imprisonment, to pay a fine of P20,000.00 and with costs (Rollo, p. 32). Hence, this appeal. II The facts, as found by the trial court and presented by the Solicitor General, are as follows: On July 21, 1981, at about 3:00 o'clock (sic) in the afternoon, the Tabaco Police Station received a report from an unidentified telephone caller that somebody was selling marijuana inside the Wonder Dog Circus. Forthwith, Pats. Rogelio Gonzales and Benito Bongalos proceeded to the Wonder Dog Circus near the public market of Tabaco, to verify the report. Arriving at the place, they spotted appellant Pablo Rodriquez and Gregorio Abrera acting suspiciously. Abrera was putting marijuana inside his pocket (tsn., June 11, 1985, pp. 3-4). Accordingly, Pats. Gonzales and Bongalos approached appellant and Abrera and, after introducing themselves as police officers, placed the two under arrest. Pat. Gonzales found a small packet containing marijuana (Exhibit "B") inside the right side pocket of appellant's pants (tsn., June 11, 1985, pp. 4-5). Upon the other hand, Abrera voluntarily handed over a plastic tea bag containing marijuana (Exhibit "C") to Pat. Gonzales (tsn., October 15, 1985, pp. 6, 8). Appellant and Abrera were then brought to the police station where they, as well as the items confiscated from them, were turned over to Cpl. Santos Colarina, Chief Investigator of the Tabaco Police Station (tsn., June 11, 1985, p. 5). When investigated, Abrera voluntarily admitted having possessed the marijuana confiscated from him but pointed at appellant as the one who gave him the marijuana and blamed appellant for it (Exhibit "D"). Even as appellant heard Abrera making said statements, appellant kept silent and failed to react (tsn., October 15, 1988, p. 41).

Lt. Lorlie Arroyo, Forensic Chemist of the PC Crime Laboratory, Camp Bagong Ibalon, Legaspi City, conducted an examination on the items seized from the appellant and Abrera and found them to be positive of marijuana (tsn., May 7, 1985, pp. 11, 28). Consequently, appellant was charged with violating Section 4, Article II, of R. A. No. 6425, as amended. Abrera, upon the other hand, was not similarly charged presumably because he was a user. Anyway, it was allegedly the Station Commander of the Tabaco Police Station who opted not to press charges against Abrera (tsn., October 15, 1985, pp. 19-20)" (Brief for Plaintiff-Appellee, pp. 35; Rollo, p. 96). On the other hand, appellant gave the following version of the incident: . . . . On June 21, 1984 at about 3:30 o'clock in the afternoon, he and a certain Rogelio "Lilio" Cardano were at the "Wonder Dog Circus" at the bus terminal of Tabaco, Albay, as they were selling an amplifier. Suddenly, they were searched by Patrolman Gonzales and Bongalos, without any warrant, due to alleged information that they were selling marijuana (TSN, May 12, 1986, p. 4). But the policemen did not find any marijuana. Instead, they found in his bag three (3) fifty-peso bills (P150.00), the price of the amplifier, which was already in the possession of the buyer the owner of the circus (TSN, id., p. 5). Pat. Gonzales took the amount and returned it to the operator of the circus (TSN, id., p. 7). Subsequently, the accused and Abrera were brought to the Police Station, where the accused was locked-up and mauled inside the prison cell (TSN, id., p. 5). While in prison, the accused was approached by Pat. Gonzales, who told him that he also had marijuana for sale at P200.00 which he showed him (TSN, id., p. 7). The amplifier was brought to the police station and returned to the accused by investigator Colarina (TSN, id., pp. 78). The accused was detained for one-and-a- half months, while Abrera was not (TSN, id., p. 6) (Appellant's Brief, pp. 9-10). Appellant contends that the trial court erred in convicting him of the offense charged. He assigns the following errors: THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BASED ON THE CONJECTURAL AND CONFLICTING TESTIMONIES OF THE PROSECUTION. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BASED ON THE MARIJUANA SEIZED BY THE ARRESTING OFFICERS WITHOUT WARRANT. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BASED ON HIS SILENCE. THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE SWORN STATEMENT OF GREGORIO ABRERA, WHO DID NOT TAKE THE WITNESS STAND, DESPITE HAVING BEEN LISTED AS ONE OF THE PROSECUTION WITNESSES. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BASED ON THE PRESUMPTION THAT OFFICIAL DUTY HAS BEEN REGULARLY PERFORMED. III In his brief, the Solicitor General agreed with appellant's posture that the prosecution failed to establish the act of unlawfully selling, distributing and delivering marijuana as alleged in the Information (Brief for Plaintiff-Appellee, p. 7; Rollo, p. 96). But he claimed that the prosecution's evidence indubitably established that appellant, having been caught in flagrante delicto in possession of marijuana committed the crime of illegal possession of marijuana under Section 8, Article II of R.A. No. 6425, as amended (Brief for Plaintiff-Appellee, p. 9; Rollo, p. 96). We agree with the Solicitor General's assertion that the prosecution failed to establish that appellant sold, distributed and delivered marijuana. The records show that the two prosecution witnesses did not actually see appellant transact any business dealing with marijuana. On cross examination, Pat. Gonzales testified as follows: ATTY. GONZAGA:

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Q You mentioned of an investigation. There was actually no selling or transacting of marijuana. Is that right? A I did not see them actually transacting. However we saw them acting suspiciously. Q But you did not see Pablo Rodriguez giving any marijuana to Abrera? A I did not. But when we were getting near them (accused), they started to leave. (TSN, June 11, 1985, p. 10; Emphasis supplied). Pat. Gonzales, upon further questioning by the trial court, said that: COURT: Q But you did not see actually (sic) Rodriguez giving the marijuana to Abrera? A No, Your Honor, I did not (TSN, June 11, 1985, p. 10, Emphasis supplied). Pat. Bongalos also could not say whether appellant was selling, distributing or delivering marijuana to Abrera when he was placed under arrest. The person, who is in the best position to testify whether appellant sold marijuana or not, was Abrera, as he was the person whom appellant allegedly dealth with. We are placed at a quandary as to why Abrera was not prosecuted together with appellant nor was he made to testify for the prosecution when he was named as one of the its witnesses. As testified to by the prosecution witnesses, Abrera was not similarly charged with appellant because Abrera, when investigated, pointed to appellant as the person who gave him the marijuana. The reliance made by the police investigator on Abreras word is simply puzzling. We have held that ". . ., when a party has it in his possession or power to produce the best evidence of which the case in its nature is susceptible and withholds it, the fair presumption is that the evidence is withheld for some sinister motive and that its production would thwart his evil or fraudulent purpose (Ching Sui Yong v. Intermediate Appellate Court, 191 SCRA 187 [1990]. The sworn statement executed by Abrera, (Exh. D) pointing to appellant as the person who gave him a tinfoil of marijuana is inadmissible in evidence and has no probative value. The failure of the prosecution to present Abrera in court although he was named as one of the prosecution witnesses deprived the accused the opportunity to cross-examine his accuser. ". . . [C]ross-examination is an indispensable instrument of criminal justice to give substance and meaning to the constitutional right of the accused to confront the witnesses against him and to show that the presumption of innocence has remained steadfast and firm" (People v. Pido, 200 SCRA 45 [1991]). Having held that appellant is not guilty of the offense charged under Section 4, Article II of the Dangerous Drugs Act, we shall now dwell on the question whether appellant is guilty of possession of marijuana under Section 8, Article I of the same Act. After a careful review of the records and transcript of stenographic notes, we find that appellant should likewise be acquitted of the offense of possession of marijuana. Admittedly, Pat. Gonzales searched appellant without a warrant. It is contended however that the warrantless search was incidental to a lawful arrest. The arrest of appellant itself was also made without a warrant of arrest. In such a case, the arrest can be justified only if there was a crime committed in the presence of the arresting officers. The arresting officers went to the "Wonder Dog Circus" to verify a telephone call that a person with a knapsack had marijuana in his possession. Pat. Gonzales admitted that they arrested appellant because he acted suspiciously. Part of his testimony is reproduced as follows: ATTY. GONZAGA: (CROSS EXAMINATION)
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Q You said that at the premises of the Wonder Dogs circus, you saw the accused acting suspiciously. Is that right? A Yes, sir. Q But you were actually there? A Yes, sir. Q And you introduced yourselves as members of the INP? A Yes, sir. Q After which, you frisked Pablo Rodriquez? A Yes, sir. Q And in fact, you found inside his pocket this Exhibit "B". Is that right? A Yes, sir. Q You did the investigation per instruction from your police headquarters. Is that right? A Yes, sir. Q So you acted merely from the information thru the telephone and the suspicious acting of the accused. A Yes, sir. Pat. Bongalos also admitted that he did not personally know whether appellant was in possession of the prohibited drug. He testified as follows: FISCAL VILLAMIN: (Continuing) Q For what was he investigated of? A For the possession of marijuana. Q Why do you know that he was in possession of marijuana? A Because from (sic) the information received thru a telephone call that a person with a knapsack was in possession of marijuana" (TSN, October 15, 1985, p. 11; Emphasis supplied). There is no evidence to show that appellant was committing any crime at the time of his arrest. The testimony of Pat. Gonzales on the arrest of appellant is reproduced as follows: FISCAL VILLAMIN: (DIRECT EXAMINATION) Q How did you effect the apprehension? A While we were approaching the accused, we saw them putting something inside a bag. Q What did you do then? A We apprehended them. Q Whom did you apprehend? A Pablo Rodriquez and Abrera. Q What procedure did you observe in arresting Rodriquez? A Furnished with the necessary information, we arrested the accused while he was transacting marijuana. Q While making the arrest, what did you do? A I asked the accused what he was placing inside his pocket, and I found out that it was marijuana (TSN, June 11, 1985, p. 4; Emphasis supplied). To the question of the defense counsel as to whether he saw appellant selling marijuana, Pat. Gonzales answered: I did not see them actually transacting. However, we saw them acting suspiciously (TSN, June 11, 1985; p. 10). To the same question of the trial court, Pat. Gonzales answered: No, Your Honor, I did not (TSN, June 11, 1985, p. 10).

The cardinal rule is that no person may be subjected by the police to a search of his house, body or personal belonging except by virtue of a search warrant or on the occasion of a lawful arrest (People v. De la Cruz, 184 SCRA 416 [1990]). "If a person is searched without a warrant, or under circumstances other than those justifying an arrest without warrant in accordance with law, merely on suspicion that he is engaged in some felonious enterprise, and in order to discover if he has indeed committed a crime, it is not only the arrest which is illegal but also, the search on the occasion thereof as being "the fruit of the poisonous three" (Guazon v. De Villa, 181 SCRA 623 [1990]; People v. Aminnudin, 163 SCRA 402 [1988]; U.S. v. Santos, 36 Phil. 853 [1917]; U.S. v. Hachaw, 21 Phil. 514 [1912]). In that event, any evidence taken, even if confirmatory of the initial suspicion, is inadmissible "for any purpose in any proceeding" (Nolasco v. Pao, 147 SCRA 509 [1987]; People v. Burgos, 144 SCRA 1 [1986]). The marijuana supposedly confiscated from appellant is therefore inadmissible in evidence for having been taken in violation of his constitutional right against unreasonable searches and seizures. WHEREFORE, the Decision of the Regional Trial Court convicting appellant is REVERSED AND SET ASIDE. Appellant is ACQUITTED of the offense charged for failure of the prosecution to prove his guilt beyond reasonable doubt. SO ORDERED. G.R. No. L-63630 April 6, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MEDEL TANGLIBEN Y BERNARDINO, defendant-appellant. The Office of the Solicitor General for plaintiff-appellee. Katz N. Tierra for defendant-appellant. GUTIERREZ, JR., J.: This is an appeal from the decision of the Regional Trial Court, Branch 41, Third Judicial Region at San Fernando, Pampanga, Branch 41, finding appellant Medel Tangliben y Bernardino guilty beyond reasonable doubt of violating Section 4, Article II of Republic Act 6425 (Dangerous Drugs Act of 1972 as amended) and sentencing him to life imprisonment, to pay a fine of P20,000 and to pay the costs. The information filed against the appellant alleged: That on or about the 2nd day of March, 1982, in the municipality of San Fernando, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused MEDEL TANGLIBEN y BERNARDINO, knowing fully well that Marijuana is a prohibited drug, did then and there willfully, unlawfully and feloniously have his possession, control and custody one (1) bag of dried marijuana leaves with an approximate weight of one (1) kilo and to transport (sic) the same to Olongapo City, without authority of law to do so. (At p. 6, Rollo) The prosecution's evidence upon which the finding of guilt beyond reasonable doubt was based is narrated by the trial court as follows: It appears from the evidence presented by the prosecution that in the late evening of March 2, 1982, Patrolmen Silverio Quevedo and Romeo L. Punzalan of the San Fernando Police Station, together with Barangay Tanod Macario Sacdalan, were conducting surveillance mission at the Victory Liner Terminal compound located at Barangay San Nicolas, San Fernando, Pampanga; that the surveillance was aimed not only against persons who may commit misdemeanors at the said place but also on persons who may be engaging in the traffic of dangerous drugs based on informations supplied by informers; that it was around 9:30 in the evening that said Patrolmen noticed a person caring a traveling bag (Exhibit G) who was acting
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suspiciously and they confronted him; that the person was requested by Patrolmen Quevedo and Punzalan to open the red traveling bag but the person refused, only to accede later on when the patrolmen identified themselves; that found inside the bag were marijuana leaves (Exhibit B) wrapped in a plastic wrapper and weighing one kilo, more or less; that the person was asked of his name and the reason why he was at the said place and he gave his name as Medel Tangliben and explained that he was waiting for a ride to Olongapo City to deliver the marijuana leaves; that the accused was taken to the police headquarters at San Fernando, Pampanga, for further investigation; and that Pat. Silverio Quevedo submitted to his Station Commander his Investigator's Report (Exhibit F). It appears also from the prosecution's evidence that in the following morning or on March 3, 1982, Pat. Silverio Quevedo asked his co-policeman Pat. Roberto Quevedo, who happens to be his brother and who has had special training on narcotics, to conduct a field test on a little portion of the marijuana leaves and to have the remaining portion examined by the PCCL at Camp Olivas, San Fernando, Pampanga; that Pat. Roberto Quevedo conducted a field test (Exhibit H) on the marijuana leaves and found positive result for marijuana (Exhibit E); that the remaining bigger quantity of the marijuana leaves were taken to the PCCL at Camp Olivas by Pat. Roberto Quevedo that same day of March 3, 1982 (Exhibit A and A-1) and when examined, the same were also found to be marijuana (Exhibit C and C-1). (At pp. 910, Rollo) Only the accused testified in his defense. His testimony is narrated by the trial court as follows: The accused declared that he got married on October 25, 1981 and his wife begot a child on June 10, 1982; that he was formerly employed in the poultry farm of his uncle Alejandro Caluma in Antipolo, Rizal; that he is engaged in the business of selling poultry medicine and feeds, including chicks, and used to conduct his business at Taytay, Rizal; that he goes to Subic at times in connection with his business and whenever he is in Subic, he used to buy C-rations from one Nena Ballon and dispose the same in Manila; that he never left his residence at Antipolo, Rizal, on March 2, 1982; that on March 3, 1982, he went to Subic to collect a balance of P100.00 from a customer thereat and to buy C-rations; that he was able to meet Nena Ballon at 6:00 o'clock in the evening and he stayed in Nena's house up to 8:00 o'clock because he had a drinking spree with Nena's son; that he tried to catch the 8:00 o'clock trip to Manila from Olongapo City but he failed and was able to take the bus only by 9:00 o'clock that evening that it was a Victory Liner Bus that he rode and because he was tipsy, he did not notice that the bus was only bound for San Fernando, Pampanga; that upon alighting at the Victory Liner Compound at San Fernando, Pampanga he crossed the street to wait for a bus going to Manila; that while thus waiting for a bus, a man whom he came to know later as Pat. Punzalan, approached him and asked him if he has any residence certificate; that when he took out his wallet, Pat. Punzalan got the wallet and took all the money inside the wallet amounting to P545.00; that Pat. Punzalan told him that he'll be taken to the municipal building for verification as he may be an NPA member; that at the municipal building, he saw a policeman, identified by him later as Pat. Silverio Quevedo, sleeping but was awakened when he arrived that Pat. Quevedo took him upstairs and told him to take out everything from his pocket saying that the prisoners inside the jail may get the same from him; that inside his pocket was a fifty-peso bill and Pat. Quevedo took the same, telling him that it shall be returned to him but that it was never returned to him; that he was thereafter placed under detention and somebody told him that he is being charged with possession of marijuana and if he would like to be bailed out, somebody is willing to help him; and,

that when he was visited by his wife, he told his wife that Patrolman Silverio Quevedo took away all his money but he told his wife not to complain anymore as it would be useless. (Rollo, pp. 10-11) Appellant, through counsel de oficio Atty. Enrique Chan, raised the lone assignment of error in his appeal: THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT AND FINDING HIM GUILTY OF THE CRIME CHARGED ON INSUFFICIENT AND DOUBTFUL EVIDENCE. (At p. 48, Rollo) The Solicitor-General likewise filed his brief, basically reiterating ating the lower court's findings. However, before this Court had the chance to act on appeal, counsel de oficio Atty. Enrique Chan died. Thereafter, this court appointed a new counsel de oficio, Atty. Katz Tierra and pursuant thereto, the Deputy Clerk of Court, in behalf of the Clerk of Court, required the new counsel to file her appellant's brief. The latter complied and, in her brief, raised the following assignment of errors: I THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE PACKAGE OF MARIJUANA ALLEGEDLY SEIZED FROM DEFENDANT-APPELLANT AS IT WAS A PRODUCT OF AN UNLAWFUL SEARCH WITHOUT A WARRANT. II THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE ALLEGED PACKAGE OF MARIJUANA LEAVES AS THE LEAVES SUPPOSEDLY SEIZED FROM ACCUSED WHEN IT WAS NEVER AUTHENTICATED. III THE LOWER COURT ERRED IN NOT RULING THAT THE PROSECUTION FAILED TO PROVE THE GUILT OF DEFENDANT-APPELLANT. (At pp. 92-93, Rollo) It is contended that the marijuana allegedly seized from the accused was a product of an unlawful search without a warrant and is therefore inadmissible in evidence. This contention is devoid of merit. One of the exceptions to the general rule requiring a search warrant is a search incident to a lawful arrest. Thus, Section 12 of Rule 126 of the 1985 Rules on Criminal Procedure provides: Section 12. Search incident to a lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant. Meanwhile, Rule 113, Sec. 5(a) provides: . . . A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. Accused was caught in flagrante, since he was carrying marijuana at the time of his arrest. This case therefore falls squarely within the exception. The warrantless search was incident to a lawful arrest and is consequently valid. In the case of People v. Claudia, 160 SCRA 646, [1988] this Court, confronted with the same issue, held that: Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel did not need a warrant to arrest Claudio as the latter was caught in flagrante delicto. The warrantless search being an incident to a lawful arrest is in itself lawful. (Nolasco V. Pao, 147 SCRA 509). Therefore, there was no infirmity in the seizure of the 1.1 kilos of marijuana. We are not unmindful of the decision of this Court in People v. Amininudin, 163 SCRA 402 [1988]. In that case the PC officers had earlier received a tip from an informer that accused-appellant. was on board a vessel bound for Iloilo City and was carrying
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marijuana. Acting on this tip, they waited for him one evening, approached him as he descended from the gangplank, detained him and inspected the bag he was carrying. Said bag contained marijuana leaves. The Court held that the marijuana could not be admitted in evidence since it was seized illegally. The records show, however, that there were certain facts, not sing in the case before us, which led the Court to declare the seizure as invalid. As stated therein: The present case presented no such urgency From the conflicting declarations of the PC witnesses, it is clear that they had at react two days within which they could have obtained a warrant of arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that a "search warrant was not necessary." In contrast, the case before us presented urgency. Although the trial court's decision did not mention it, the transcript of stenographic notes reveals that there was an informer who pointed to the accused-appellant as carrying marijuana. (TSN, pp. 5253) Faced with such on-the-spot information, the police officers had to act quickly. There was not enough time to secure a search warrant. We cannot therefore apply the ruling in Aminnudinto the case at bar. To require search warrants during on-thespot apprehensions of drug pushers, illegal possessors of firearms, jueteng collectors, smugglers of contraband goods, robbers, etc. would make it extremely difficult, if not impossible to contain the crimes with which these persons are associated. Accused-appellant likewise asserts that the package of marijuana leaves supposedly seized from him was never authenticated and therefore should not have been admitted as evidence. He capitalizes on the fact that the marijuana package brought by patrolman Roberto Quevedo to the PC Crime Laboratory for examination did not contain a tag bearing the name of the accused. We rule, however, that since Patrolman Quevedo testified that he gave the marijuana package together with a letter-request for examination, and the forensic chemist Marilene Salangad likewise testified that she received the marijuana together with the letter-request and said letter-request bore the name of the accused, then the requirements of proper authentication of evidence were sufficiently complied with. The marijuana package examined by the forensic checklist was satisfactorily identified as the one seized from accused. Even assuming arguendo that the marijuana sent to the PC Crime Laboratory was not properly authenticated, still, we cannot discount the separate field test conducted by witness Roberto Quevedo which yielded positive results for marijuana. Lastly, the appellant claims that the evidence upon which he was convicted was insufficient and doubtful and that the prosecution failed to prove his guilt. In attacking the sufficiency of evidence, the appellant avers that the informer should have been presented before the lower court. We discard this argument as a futile attempt to revive an already settled issue. This Court has ruled in several cases that non-presentation of the informer, where his testimony would be merely corroborative or cumulative, is not fatal to the prosecution's case. (People v. Asio, G.R. No. 84960, September 1, 1989; (People v. Viola, G.R. No. 64262, March 16, 1989; People v. Capulong, 160 SCRA 533 [1988]; People v. Cerelegia, 147 SCRA 538).

As to doubtfulness of evidence, well-settled is the rule that findings of the trial court on the issue of credibility of witnesses and their testimonies are entitled to great respect and accorded the highest consideration by the appellate court. Since credibility is a matter that is peculiarly within the province of the trial judge, who had first hand opportunity to watch and observe the demeanor and behavior of witnesses both for the prosecution and the defense at the time of their testimony (People v. Tejada, G.R. No. 81520, February 21, 1989; People v. Turla, 167 SCRA 278), we find no reason to disturb the following findings: The testimony of prosecution witnesses Patrolmen Silverio Quevedo and Romeo Punzalan are positive and sufficiently clean to show the commission by the accused of the offense herein chatted. These prosecution witnesses have no motive to fabricate the facts and to foist a very serious offense against the accused. The knowledge on what these witnesses testified to were (sic) acquired by them in the official performance of their duties and then, (sic) being no showing that they are prejudiced against the accused, their testimonies deserve full credit. The testimonies of the afore-mentioned petitioner that what they found in the possession of the accused were marijuana leaves were corroborated by the examination findings conducted by Pat. October to Salangad of the PCCL, with station at camp Olivas, San Fernando, Pampanga (Exhibits C and C-1). (Rollo, p. 11) Moreover, if there is truth in the testimony of the accused to the effect that Pat. Punzalan got all the money from his wallet when he was accosted at the Victory Liner Terminal and was told just to keep quiet otherwise he will be "salvaged" why will Pat. Punzalan still bring the accused to the municipal Building for interrogation and/or verification? Would not Pat. Punzalan be exposing his identity to the accused? This is unnatural. And this is also true on the testimony to the accused that Pat. Silverio Quevedo got his fifty-peso bill arid never returned the same to him. If the policemen really got any money from the accused and that the marijuana leaves do not belong to the accused, why will the two policemen still produce in Court as evidence that expensive-looking traveling red bag (Exhibit G) taken from the accused and which contained the marijuana in question if the instant case is a mere fabrication? As already stated, all the evidence, oral and documentary, presented by the prosecution in this case were all based on personal knowledge acquired by the prosecution witnesses in the regular performance of their official duties and there is nothing in their testimonies to show that they are bias (sic) or that they have any prejudice against the herein accused. Between the testimonies of these prosecution witnesses and that of the uncorroborated and self-serving testimony of the accused, the former should prevail. (Rollo, p. 13) Likewise, the appellant chose to limit his defense to his own testimony. He could have availed himself through compulsory court processes of several witnesses to buttress his defense. Since not one other witness was presented nor was any justification for the non-appearance given, the inadequacy of his lone and uncorroborated testimony remains. It cannot prevail vis-a-vis the positive testimonies given by the prosecution witnesses. Moreover, the appellant's having jumped bail is akin to flight which, as correctly observed by the lower court, is an added circumstance tending to establish his guilt. We take exception, however, to the trial court's finding that: The dried marijuana leaves found in the possession of the accused weighs one (1) kilo, more or less. The intent to transport the same is clear from the testimony of Pat. Silverio Quevedo who declared, among other things, that when he confronted the accused that night, the latter told him that he (accused) is bringing the marijuana leaves to Olongapo City. Moreover, considering the quantity of the
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marijuana leaves found in the possession of the accused and the place he was arrested which is at San Fernando, Pampanga, a place where the accused is not residing, it can be said that the intent to transport the marijuana leaves has been clearly established. (Rollo, pp. 13-14) The alleged extrajudicial confession of the accused which, on the other hand, he categorically denied in court, that he is transporting the marijuana leaves to Olongapo City cannot be relied upon. Even assuming it to be true, the extrajudicial confession cannot be admitted because it does not appear in the records that the accused, during custodial investigation, was apprised of his rights to remain silent and to counsel and to be informed of such rights. In People v. Duero 104 SCRA 379 [1981], the Court pronounced that "inasmuch as the prosecution failed to prove that before Duero made his alleged oral confession he was informed of his rights to remain silent and to have counsel and because there is no proof that he knowingly and intelligently waived those rights, his confession is inadmissible in evidence. This ruling was reiterated in People v. Tolentino, 145 SCRA 597 [1986], where the Court added that: In effect, the Court not only abrogated the rule on presumption of regularity of official acts relative to admissibility of statements taken during in-custody interrogation but likewise dispelled any doubt as to the full adoption of the Miranda doctrine in this jurisdiction. It is now incumbent upon the prosecution to prove during a trial that prior to questioning, the confessant was warned of his constitutionally protected rights. The trial judge likewise found the marijuana to weigh one kilo, more or less, and from this finding extracted a clear intent to transport the marijuana leaves. It may be pointed out, however, that although the information stated the weight to be approximately one kilo, the forensic chemist who examined the marijuana leaves testified that the marijuana weighed only 600 grams Such amount is not a considerable quantity as to conclusively confer upon the accused an intent to transport the marijuana leaves. Nor can it be said that the intent to transport is clearly established from the fact that the accused was arrested at San Fernando, Pampanga, a place which is not his residence. Conviction of a crime with an extremely severe penalty must be based on evidence which is clearer and more convincing than the inferences in this case. What was therefore proved beyond reasonable doubt is not his intent to transport the marijuana leaves but his actual session. The offense committed by the appellant is possession of marijuana under Section 8 of Republic Act No. 6425 (Dangerous Drugs Act of 1972 as amended). WHEREFORE, the judgment of conviction by the trial court is hereby AFFIRMED but MODIFIED. The appellant is sentenced to suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and fine of Six Thousand (P6,000.00) Pesos. SO ORDERED. G.R. No. 80806 October 5, 1989 LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner, vs. THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents. William C. Arceno for petitioner. Casibang, Perello and De Dios for private respondent. SARMIENTO, J.:

The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision of the Court of Appeals, 1 rejecting his appeal from the decision of the Regional Trial Court, dismissing his complaint for injunctive relief. He invokes, in particular, the guaranty against unreasonable searches and seizures of the Constitution, as well as its prohibition against deprivation of property without due process of law. There is no controversy as to the facts. We quote: On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the City of Manila, Ramon D. Bagatsing, elements of the Special AntiNarcotics Group, Auxilliary Services Bureau, Western Police District, INP of the Metropolitan Police Force of Manila, seized and confiscated from dealers, distributors, newsstand owners and peddlers along Manila sidewalks, magazines, publications and other reading materials believed to be obscene, pornographic and indecent and later burned the seized materials in public at the University belt along C.M. Recto Avenue, Manila, in the presence of Mayor Bagatsing and several officers and members of various student organizations. Among the publications seized, and later burned, was "Pinoy Playboy" magazines published and co-edited by plaintiff Leo Pita. On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the writ of preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as superintendent of Western Police District of the City of Manila, seeking to enjoin and/or restrain said defendants and their agents from confiscating plaintiffs magazines or from otherwise preventing the sale or circulation thereof claiming that the magazine is a decent, artistic and educational magazine which is not per seobscene, and that the publication is protected by the Constitutional guarantees of freedom of speech and of the press. By order dated December 8, 1 983 the Court set the hearing on the petition for preliminary injunction on December 14,1983 and ordered the defendants to show cause not later than December 13, 1983 why the writ prayed for should not be granted. On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary restraining order. against indiscriminate seizure, confiscation and burning of plaintiff's "Pinoy Playboy" Magazines, pending hearing on the petition for preliminary injunction in view of Mayor Bagatsing's pronouncement to continue the Anti-Smut Campaign. The Court granted the temporary restraining order on December 14, 1983. In his Answer and Opposition filed on December 27,1983 defendant Mayor Bagatsing admitted the confiscation and burning of obscence reading materials on December 1 and 3, 1983, but claimed that the said materials were voluntarily surrendered by the vendors to the police authorities, and that the said confiscation and seizure was (sic) undertaken pursuant to P.D. No. 960, as amended by P.D. No. 969, which amended Article 201 of the Revised Penal Code. In opposing the plaintiffs application for a writ of preliminary injunction, defendant pointed out that in that anti- smut campaign conducted on December 1 and 3, 1983, the materials confiscated belonged to the magazine stand owners and peddlers who voluntarily surrendered their reading materials, and that the plaintiffs establishment was not raided. The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer. On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the writ of preliminary injunction, raising the issue as to "whether or not the defendants and/or their agents can without a court order confiscate or seize plaintiffs magazine before any judicial finding is made on whether said magazine is obscene or not". The restraining order issued on December 14,1983 having lapsed on January 3,1984, the plaintiff filed an urgent motion for issuance of another restraining order,
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which was opposed by defendant on the ground that issuance of a second restraining order would violate the Resolution of the Supreme Court dated January 11, 1983, providing for the Interim Rules Relative to the Implementation of Batas Pambansa Blg. 129, which provides that a temporary restraining order shall be effective only for twenty days from date of its issuance. On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in support of his opposition to the issuance of a writ of preliminary injunction. On January 11, 1984, the trial court issued an Order setting the case for hearing on January 16, 1984 "for the parties to adduce evidence on the question of whether the publication 'Pinoy Playboy Magazine alleged (sic) seized, confiscated and/or burned by the defendants, are obscence per se or not". On January 16, 1984, the Court issued an order granting plaintiffs motion to be given three days "to file a reply to defendants' opposition dated January 9, 1984, serving a copy thereof to the counsel for the defendants, who may file a rejoinder within the same period from receipt, after which the issue of Preliminary Injunction shall be resolved". Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed his Comment on plaintiff s supplemental Memorandum on January 20, 1984, and plaintiff filed his "Reply-Memorandum" to defendants' Comment on January 25, 1984. On February 3, 1984, the trial court promulgated the Order appealed from denying the motion for a writ of preliminary injunction, and dismissing the case for lack of merit. 2 The Appellate Court dismissed the appeal upon the grounds, among other things, as follows: We cannot quarrel with the basic postulate suggested by appellant that seizure of allegedly obscene publications or materials deserves close scrutiny because of the constitutional guarantee protecting the right to express oneself in print (Sec. 9, Art. IV), and the protection afforded by the constitution against unreasonable searches and seizure (Sec. 3, Art.IV). It must be equally conceded, however, that freedom of the press is not without restraint as the state has the right to protect society from pornographic literature that is offensive to public morals, as indeed we have laws punishing the author, publishers and sellers of obscene publications (Sec. I , Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969). Also well settled is the rule that the right against unreasonable searches and seizures recognizes certain exceptions, as when there is consent to the search or seizure, (People vs. Malesugui 63 Phil. 22) or search is an incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is conducted in a vehicle or movable structure (See Papa vs. Magno, 22 SCRA 857). 3 The petitioner now ascribes to the respondent court the following errors: 1. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the police officers could without any court warrant or order seize and confiscate petitioner's magazines on the basis simply of their determination that they are obscene. 2. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the trial court could dismiss the case on its merits without any hearing thereon when what was submitted to it for resolution was merely the application of petitioner for the writ of preliminary injunction. 4 The Court states at the outset that it is not the first time that it is being asked to pronounce what "obscene" means or what makes for an obscene or pornographic literature. Early on, in People vs. Kottinger, 5 the Court laid down the test, in determining the existence of obscenity, as follows: "whether the tendency of the

matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall." 6 "Another test," so Kottinger further declares, "is that which shocks the ordinary and common sense of men as an indecency. " 7 Kottinger hastened to say, however, that "[w]hether a picture is obscene or indecent must depend upon the circumstances of the case, 8 and that ultimately, the question is to be decided by the "judgment of the aggregate sense of the community reached by it." 9 Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing a problem that has grown increasingly complex over the years. Precisely, the question is: When does a publication have a corrupting tendency, or when can it be said to be offensive to human sensibilities? And obviously, it is to beg the question to say that a piece of literature has a corrupting influence because it is obscene, and vice-versa. Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would leave the final say to a hypothetical "community standard" whatever that is and that the question must supposedly be judged from case to case. About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under Article 201 of the Revised Penal Code. Go Pin, was also even hazier: ...We agree with counsel for appellant in part. If such pictures, sculptures and paintings are shown in art exhibit and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed. However, the pictures here in question were used not exactly for art's sake but rather for commercial purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so that the cause of art was of secondary or minor importance. Gain and profit would appear to have been the main, if not the exclusive consideration in their exhibition; and it would not be surprising if the persons who went to see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love for excitement, including the youth who because of their immaturity are not in a position to resist and shield themselves from the ill and perverting effects of these pictures. 11 xxx xxx xxx As the Court declared, the issue is a complicated one, in which the fine lines have neither been drawn nor divided. It is easier said than done to say, indeed, that if "the pictures here in question were used not exactly for art's sake but rather for commercial purposes," 12 the pictures are not entitled to any constitutional protection. It was People v. Padan y Alova , 13 however, that introduced to Philippine jurisprudence the "redeeming" element that should accompany the work, to save it from a valid prosecution. We quote: ...We have had occasion to consider offenses like the exhibition of still or moving pictures of women in the nude, which we have condemned for obscenity and as offensive to morals. In those cases, one might yet claim that there was involved the element of art; that connoisseurs of the same, and painters and sculptors might find inspiration in the showing of pictures in the nude, or the human body exhibited in sheer nakedness, as models in tableaux vivants. But an actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated
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obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of the land. ... 14 Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the exhibition was attended by "artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes," 15 could the same legitimately lay claim to "art"? For another, suppose that the exhibition was so presented that "connoisseurs of [art], and painters and sculptors might find inspiration," 16 in it, would it cease to be a case of obscenity? Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has permitted an ad lib of Ideas and "two-cents worths" among judges as to what is obscene and what is art. In a much later decision, Gonzalez v. Kalaw Katigbak, 17 the Court, following trends in the United States, adopted the test: "Whether to the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to prurient interest." 18 Kalaw-Katigbak represented a marked departure from Kottingerin the sense that it measured obscenity in terms of the "dominant theme" of the work, rather than isolated passages, which were central to Kottinger (although both cases are agreed that "contemporary community standards" are the final arbiters of what is "obscene"). Kalaw-Katigbak undertook moreover to make the determination of obscenity essentially a judicial question and as a consequence, to temper the wide discretionKottinger had given unto law enforcers. It is significant that in the United States, constitutional law on obscenity continues to journey from development to development, which, states one authoritative commentator (with ample sarcasm), has been as "unstable as it is unintelligible." 19 Memoirs v. Massachusettes, 20 a 1966 decision, which characterized obscenity as one "utterly without any redeeming social value," 21 marked yet another development. The latest word, however, is Miller v. California, 22 which expressly abandoned Massachusettes, and established "basic guidelines," 23 to wit: "(a) whether 'the average person, applying contemporary standards' would find the work, taken as a whole, appeals to the prurient interest . . .; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." 24 (A year later, the American Supreme Court decided Hamling v. United States 25 which repeated Miller, and Jenkins v. Georgia, 26 yet another reiteration of Miller. Jenkins, curiously, acquitted the producers of the motion picture, Carnal Knowledge, in the absence of "genitals" portrayed on screen, although the film highlighted contemporary American sexuality.) The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been attributed to the reluctance of the courts to recognize the constitutional dimension of the problem . 27 Apparently, the courts have assumed that "obscenity" is not included in the guaranty of free speech, an assumption that, as we averred, has allowed a climate of opinions among magistrates predicated upon arbitrary, if vague theories of what is acceptable to society. And "[t]here is little likelihood," says Tribe, "that this development has reached a state of rest, or that it will ever do so until the Court recognizes that obscene speech is speech nonetheless, although it is subject as in all speech to regulation in the interests of [society as a whole] but not in the interest of a uniform vision of how human sexuality should be regarded and portrayed." 28

In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of police power, to suppress smut provided it is smut. For obvious reasons, smut is not smut simply because one insists it is smut. So is it equally evident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization. What shocked our forebears, say, five decades ago, is not necessarily repulsive to the present generation. James Joyce and D.H. Lawrence were censored in the thirties yet their works are considered important literature today. 29 Goya's La Maja desnuda was once banned from public exhibition but now adorns the world's most prestigious museums. But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we said earlier, it is the divergent perceptions of men and women that have probably compounded the problem rather than resolved it. What the Court is impressing, plainly and simply, is that the question is not, and has not been, an easy one to answer, as it is far from being a settled matter. We share Tribe's disappointment over the discouraging trend in American decisional law on obscenity as well as his pessimism on whether or not an "acceptable" solution is in sight. In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect" definition of "obscenity", if that is possible, as evolving standards for proper police conduct faced with the problem, which, after all, is the plaint specifically raised in the petition. However, this much we have to say. Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not its protection. In free expression cases, this Court has consistently been on the side of the exercise of the right, barring a "clear and present danger" that would warrant State interference and action. 30 But, so we asserted in Reyes v. Bagatsing, 31 "the burden to show the existence of grave and imminent danger that would justify adverse action ... lies on the. . . authorit[ies]." 32 "There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and present danger." 33 "It is essential for the validity of ... previous restraint or censorship that the ... authority does not rely solely on his own appraisal of what the public welfare, peace or safety may require." 34 "To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present danger test." 35 The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only we may arrive at one-but rather as a serious attempt to put the question in its proper perspective, that is, as a genuine constitutional issue. It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due process and illegal search and seizure. As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the presumption is that the speech may validly be said. The burden is on the State to demonstrate the existence of a danger, a danger that must not only be: (1) clear but also, (2) present, to justify State action to stop the speech. Meanwhile, the Government must allow it (the speech). It has no choice. However, if it acts notwithstanding that (absence of evidence of a clear and present danger), it must come to terms with, and be held accountable for, due process. The Court is not convinced that the private respondents have shown the required proof to justify a ban and to warrant confiscation of the literature for which mandatory injunction had been sought below. First of all, they were not possessed of a lawful court order: (1) finding the said materials to be pornography, and (2) authorizing them to carry out a search and seizure, by way of a search warrant.
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The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the state has the right to protect society from pornographic literature that is offensive to public morals." 36 Neither do we. But it brings us back to square one: were the "literature" so confiscated "pornographic"? That we have laws punishing the author, publisher and sellers of obscence publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969)," 37 is also fine, but the question, again, is: Has the petitioner been found guilty under the statute? The fact that the former respondent Mayor's act was sanctioned by "police power" is no license to seize property in disregard of due process. In Philippine Service Exporters, Inc. v. Drilon, 38 We defined police power as "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare ." 39 Presidential Decrees Nos. 960 and 969 are, arguably, police power measures, but they are not, by themselves, authorities for high-handed acts. They do not exempt our law enforcers, in carrying out the decree of the twin presidential issuances (Mr. Marcos'), from the commandments of the Constitution, the right to due process of law and the right against unreasonable searches and seizures, specifically. Significantly, the Decrees themselves lay down procedures for implementation. We quote: 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 (Art. 201), RPC as amended) 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, sculptures, paintings or other materials and articles involved in the violation referred to in Section 1 (referring to Art. 201) hereof shall nevertheless be forfeited in favor of the government to be destroyed, after forfeiture proceedings conducted by the Chief of Constabulary. (c) The person aggrieved by the forfeiture action of the Chief of Constabulary may, within fifteen (15) days after his receipt of a copy of the decision, appeal the matter to the Secretary of National Defense for review. The decision of the Secretary of National Defense shall be final and unappealable. (Sec. 2, PD No, 960 as amended by PD No. 969.) Sec. 4. Additional Penalties. Additional penalties shall be imposed as follows: 1. In case the offender is a government official or employee who allows the violations of Section I hereof, the penalty as provided herein shall be imposed in the maximum period and, in addition, the accessory penalties provided for in the Revised Penal Code, as amended, shall likewise be imposed . 40 Under the Constitution, on the other hand: SEC. 3. 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 not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, 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. It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they become unreasonable and subject to challenge. In Burgos v. Chief of Staff, AFP, 43 We counter-minded the orders of the Regional Trial Court authorizing

the search of the premises of We Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a defective warrant. We have greater reason here to reprobate the questioned raid, in the complete absence of a warrant, valid or invalid. The fact that the instant case involves an obscenity rap makes it no different from Burgos, a political case, because, and as we have indicated, speech is speech, whether political or "obscene". The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules then prevailing), provide: SEC. 12. Search without warrant of personarrested. A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense. 44 but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the arrest must be on account of a crime committed. Here, no party has been charged, nor are such charges being readied against any party, under Article 201, as amended, of the Revised Penal Code. We reject outright the argument that "[t]here is no constitutional nor legal provision which would free the accused of all criminal responsibility because there had been no warrant," 45 and that "violation of penal law [must] be punished." 46 For starters, there is no "accused" here to speak of, who ought to be "punished". Second, to say that the respondent Mayor could have validly ordered the raid (as a result of an antismut campaign) without a lawful search warrant because, in his opinion, "violation of penal laws" has been committed, is to make the respondent Mayor judge, jury, and executioner rolled into one. And precisely, this is the very complaint of the petitioner. We make this resume. 1. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an obscenity rap is in order; 2. The authorities must convince the court that the materials sought to be seized are "obscene", and pose a clear and present danger of an evil substantive enough to warrant State interference and action; 3. The judge must determine whether or not the same are indeed "obscene:" the question is to be resolved on a case-to-case basis and on His Honor's sound discretion. 4. If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for; 5. The proper suit is then brought in the court under Article 201 of the Revised Penal Code; 6. Any conviction is subject to appeal. The appellate court may assess whether or not the properties seized are indeed "obscene". These do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against abuse of official power under the Civil Code" 47 or the Revised Penal code . 48 WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED and SET ASIDE. It appearing, however, that the magazines subject of the search and seizure ave been destroyed, the Court declines to grant affirmative relief. To that extent, the case is moot and academic. SO ORDERED. G.R.No. 74869 July 6, 1988 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. IDEL AMINNUDIN y AHNI, defendant-appellant. The Solicitor General for plaintiff-appellee.
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Herminio T. Llariza counsel de-officio for defendant-appellant. CRUZ, J.: The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found guilty of illegally transporting marijuana. The trial court, disbelieving him, held it was high time to put him away and sentenced him to life imprisonment plus a fine of P20,000.00. 1 Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him simply accosted him, inspected his bag and finding what looked liked marijuana leaves took him to their headquarters for investigation. The two bundles of suspect articles were confiscated from him and later taken to the NBI laboratory for examination. When they were verified as marijuana leaves, an information for violation of the Dangerous Drugs Act was filed against him. 2Later, the information was amended to include Farida Ali y Hassen, who had also been arrested with him that same evening and likewise investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn statement of the arresting officers absolving her after a 'thorough investigation." 5 The motion was granted, and trial proceeded only against the accused-appellant, who was eventually convicted . 6 According to the prosecution, the PC officers had earlier received a tip from one of their informers that the accused-appellant was on board a vessel bound for Iloilo City and was carrying marijuana. 7 He was Identified by name. 8 Acting on this tip, they waited for him in the evening of June 25, 1984, and approached him as he descended from the gangplank after the informer had pointed to him. 9 They detained him and inspected the bag he was carrying. It was found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, 10 who testified that she conducted microscopic, chemical and chromatographic tests on them. On the basis of this finding, the corresponding charge was then filed against Aminnudin. In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing consisting of a jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily arrested and immediately handcuffed. His bag was confiscated without a search warrant. At the PC headquarters, he was manhandled to force him to admit he was carrying the marijuana, the investigator hitting him with a piece of wood in the chest and arms even as he parried the blows while he was still handcuffed. 12 He insisted he did not even know what marijuana looked like and that his business was selling watches and sometimes cigarettes. 13 He also argued that the marijuana he was alleged to have been carrying was not properly Identified and could have been any of several bundles kept in the stock room of the PC headquarters. 14 The trial court was unconvinced, noting from its own examination of the accused that he claimed to have come to Iloilo City to sell watches but carried only two watches at the time, traveling from Jolo for that purpose and spending P107.00 for fare, not to mention his other expenses. 15 Aminnudin testified that he kept the two watches in a secret pocket below his belt but, strangely, they were not discovered when he was bodily searched by the arresting officers nor were they damaged as a result of his manhandling. 16 He also said he sold one of the watches for P400.00 and gave away the other, although the watches belonged not to him but to his cousin, 17 to a friend whose full name he said did not even know. 18 The trial court also rejected his allegations of maltreatment, observing that he had not sufficiently proved the injuries sustained by him. 19

There is no justification to reverse these factual findings, considering that it was the trial judge who had immediate access to the testimony of the witnesses and had the opportunity to weigh their credibility on the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush of face and dart of eyes, which may reveal the truth or expose the lie, are not described in the impersonal record. But the trial judge sees all of this, discovering for himself the truant fact amidst the falsities. The only exception we may make in this case is the trial court's conclusion that the accused-appellant was not really beaten up because he did not complain about it later nor did he submit to a medical examination. That is hardly fair or realistic. It is possible Aminnudin never had that opportunity as he was at that time under detention by the PC authorities and in fact has never been set free since he was arrested in 1984 and up to the present. No bail has been allowed for his release. There is one point that deserves closer examination, however, and it is Aminnudin's claim that he was arrested and searched without warrant, making the marijuana allegedly found in his possession inadmissible in evidence against him under the Bill of Rights. The decision did not even discuss this point. For his part, the Solicitor General dismissed this after an all-too-short argument that the arrest of Aminnudin was valid because it came under Rule 113, Section 6(b) of the Rules of Court on warrantless arrests. This made the search also valid as incidental to a lawful arrest. It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they had no warrant when they arrested Aminnudin and seized the bag he was carrying. Their only justification was the tip they had earlier received from a reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as to the time they received the tip, one saying it was two days before the arrest, 20 another two weeks 21 and a third "weeks before June 25." 22 On this matter, we may prefer the declaration of the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as follows: Q You mentioned an intelligence report, you mean with respect to the coming of Idel Aminnudin on June 25, 1984? A Yes, sir. Q When did you receive this intelligence report? A Two days before June 25, 1984 and it was supported by reliable sources. Q Were you informed of the coming of the Wilcon 9 and the possible trafficking of marijuana leaves on that date? A Yes, sir, two days before June 25, 1984 when we received this information from that particular informer, prior to June 25, 1984 we have already reports of the particular operation which was being participated by Idel Aminnudin. Q You said you received an intelligence report two days before June 25, 1984 with respect to the coming of Wilcon 9? A Yes, sir. Q Did you receive any other report aside from this intelligence report? A Well, I have received also other reports but not pertaining to the coming of Wilcon 9. For instance, report of illegal gambling operation. COURT: Q Previous to that particular information which you said two days before June 25, 1984, did you also receive daily report regarding the activities of Idel Aminnudin A Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin. Q What were those activities? A Purely marijuana trafficking. Q From whom did you get that information?
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A It came to my hand which was written in a required sheet of information, maybe for security reason and we cannot Identify the person. Q But you received it from your regular informer? A Yes, sir. ATTY. LLARIZA: Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is coming with drugs? A Marijuana, sir. Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana was received by you many days before you received the intelligence report in writing? A Not a report of the particular coming of Aminnudin but his activities. Q You only knew that he was coming on June 25,1984 two days before? A Yes, sir. Q You mean that before June 23, 1984 you did not know that minnudin was coming? A Before June 23,1984, I, in my capacity, did not know that he was coming but on June 23, 1984 that was the time when I received the information that he was coming. Regarding the reports on his activities, we have reports that he was already consummated the act of selling and shipping marijuana stuff. COURT: Q And as a result of that report, you put him under surveillance? A Yes, sir. Q In the intelligence report, only the name of Idel Aminnudin was mentioned? A Yes, sir. Q Are you sure of that? A On the 23rd he will be coming with the woman. Q So that even before you received the official report on June 23, 1984, you had already gathered information to the effect that Idel Aminnudin was coming to Iloilo on June 25, 1984? A Only on the 23rd of June. Q You did not try to secure a search warrant for the seizure or search of the subject mentioned in your intelligence report? A No, more. Q Why not? A Because we were very very sure that our operation will yield positive result. Q Is that your procedure that whenever it will yield positive result you do not need a search warrant anymore? A Search warrant is not necessary. 23 That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the PC. The Supreme Court cannot countenance such a statement. This is still a government of laws and not of men. The mandate of the Bill of Rights is clear: 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. In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal determination by him of the existence of probable cause. Contrary to the averments of the government, the accused-appellant was not

caught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the obtention of the warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are subject to warrantless searches and seizures for violation of the customs law because these vehicles may be quickly moved out of the locality or jurisdiction before the warrant can be secured. The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was Identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that a "search warrant was not necessary." In the many cases where this Court has sustained the warrantless arrest of violators of the Dangerous Drugs Act, it has always been shown that they were caught redhanded, as a result of what are popularly called "buy-bust" operations of the narcotics agents. 25 Rule 113 was clearly applicable because at the precise time of arrest the accused was in the act of selling the prohibited drug. In the case at bar, 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 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. Now that we have succeeded in restoring democracy in our country after fourteen years of the despised dictatorship, when any one could be picked up at will, detained without charges and punished without trial, we will have only ourselves to blame if that kind of arbitrariness is allowed to return, to once more flaunt its disdain of the Constitution and the individual liberties its Bill of Rights guarantees. While this is not to say that the accused-appellant is innocent, for indeed his very own words suggest that he is lying, that fact alone does not justify a finding that he is guilty. The constitutional presumption is that he is innocent, and he will be so declared even if his defense is weak as long as the prosecution is not strong enough to convict him. Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution must fall. That evidence cannot be admitted, and should never have been considered by the trial court for the simple fact is that the marijuana was seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase. The search was not an incident of a lawful arrest because there was no warrant of arrest and the warrantless arrest did not come under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also illegal and the evidence obtained thereby was inadmissible. 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
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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 rights 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. We find that with the exclusion of the illegally seized marijuana as evidence against the accused-appellant, his guilt has not been proved beyond reasonable doubt and he must therefore be discharged on the presumption that he is innocent. ACCORDINGLY, the decision of the trial court is REVERSED and the accusedappellant is ACQUITTED. It is so ordered. Narvasa, Gancayco and Medialdea, JJ., concur. 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 howeverreasonably conducted, the former should prevail.
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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. G.R. Nos. 136066-67 February 4, 2003 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BINAD SY CHUA, accused-appellant. DECISION YNARES-SANTIAGO, J.: Accused-appellant Binad Sy Chua was charged with violation of Section 16, Article III of R.A. 6425, as amended by R.A. 7659, and for Illegal Possession of ammunitions in two separate Informations which read as follows: Criminal Case No. 96-5071 That on or about the 21st day of September 1996, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession and under his control two (2) plastic bags containing Methamphetamine Hydrochloride (SHABU) weighing more or less two (2) kilos and one (1) small plastic bag containing Methamphetamine Hydrocloride weighing more or less fifteen (15) grams, which is a regulated drug, without any authority whatsoever. Criminal Case No. 96-5132 That on or about the 21st day of September 1996, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession and under his control twenty (20) pieces of live .22 cal. ammunitions, without first having obtained a license or permit to possess or carry the same. Accused-appellant pleaded "not guilty" on arraignment.1awphi1.nt The two cases were then jointly tried. The prosecution presented three (3) witnesses, all members of the police force of Angeles City. Their testimonies can be synthesized as follows: On September 21, 1996, at around 10:00 in the evening, SPO2 Mario Nulud and PO2 Emmeraldo Nunag received a report from their confidential informant that accusedappellant was about to deliver drugs that night at the Thunder Inn Hotel in Balibago, Angeles City. The informer further reported that accused-appellant distributes illegal drugs in different karaoke bars in Angeles City. On the basis of this lead, the PNP Chief of Angeles City, Col. Neopito Gutierrez, immediately formed a team of operatives composed of Major Bernardino, Insp. Tullao, Insp. Emmanuel Nunag, P02 Emmeraldo Nunag, SP01 Fernando Go, and some civilian assets, with SPO2 Mario Nulud, as team investigator. The group of SPO2 Nulud, PO2 Nunag and the civilian informer positioned themselves across McArthur Highway near Bali Hai Restaurant, fronting Thunder Inn Hotel. The other group acted as their back up. At around 11:45 in the evening, their informer pointed to a car driven by accusedappellant which just arrived and parked near the entrance of the Thunder Inn Hotel.

After accused-appellant alighted from the car carrying a sealed Zest-O juice box, SPO2 Nulud and PO2 Nunag hurriedly accosted him and introduced themselves as police officers. As accused-appellant pulled out his wallet, a small transparent plastic bag with a crystalline substance protruded from his right back pocket. Forthwith, SPO2 Nulud subjected him to a body search which yielded twenty (20) pieces of live .22 caliber firearm bullets from his left back pocket. When SPO2 Nunag peeked into the contents of the Zest-O box, he saw that it contained a crystalline substance. SPO2 Nulud instantly confiscated the small transparent plastic bag, the Zest-O juice box, the twenty (20) pieces of .22 caliber firearm bullets and the car used by accused-appellant. Afterwards, SPO2 Nulud and the other police operatives who arrived at the scene brought the confiscated items to the office of Col. Guttierez at the PNP Headquarters in Camp Pepito, Angeles City.3 When Col. Gutierrez opened the sealed Zest-O juice box, he found 2 big plastic bags containing crystalline substances. The initial field test conducted by SPO2 Danilo Cruz at the PNP Headquarters revealed that the siezed items contained shabu.4 Thereafter, SPO2 Nulud together with accused-appellant brought these items for further laboratory examination to the Crime Laboratory at Camp Olivas, San Fernando, Pampanga. After due testing, forensic chemist S/Insp. Daisy Babor concluded that the crystalline substances yielded positive results for shabu. The small plastic bag weighed 13.815 grams while the two big plastic bags weighed 1.942 kilograms of shabu.5 Accused-appellant vehemently denied the accusation against him and narrated a different version of the incident. Accused-appellant alleged that on the night in question, he was driving the car of his wife to follow her and his son to Manila. He felt sleepy, so he decided to take the old route along McArthur Highway. He stopped in front of a small store near Thunder Inn Hotel in Balibago, Angeles City to buy cigarettes and candies. While at the store, he noticed a man approach and examine the inside of his car. When he called the attention of the onlooker, the man immediately pulled out a .45 caliber gun and made him face his car with raised hands. The man later on identified himself as a policeman. During the course of the arrest, the policeman took out his wallet and instructed him to open his car. He refused, so the policeman took his car keys and proceeded to search his car. At this time, the police officers companions arrived at the scene in two cars. PO2 Nulud, who just arrived at the scene, pulled him away from his car in a nearby bank, while the others searched his car.1awphi1.nt Thereafter, he was brought to the Salakot Police Station and was held inside a bathroom for about fifteen minutes until Col. Guttierez arrived, who ordered his men to call the media. In the presence of reporters, Col. Guttierez opened the box and accused-appellant was made to hold the box while pictures were being taken.6 Wilfredo Lagman corroborated the story of the accused-appellant in its material points. He testified that he witnessed the incident while he was conducting a routine security check around the premises of the Guess Building, near Thunder Inn Hotel.7 On September 15, 1998 the Regional Trial Court of Angeles City, Branch 59, rendered a decision,8 the dispositive portion of which reads: WHEREFORE, the foregoing considered, judgement is hereby rendered as follows: 1. In Criminal Case No. 96-513 for Illegal Possession of Ammunitions, the accused is hereby acquitted of the crime charged for insufficiency of evidence. 2. In Criminal Case No. 96-507 for Illegal Possession of 1,955.815 grams of shabu, accused Binad Sy Chua is found GUILTY beyond reasonable doubt of the crime charge and is hereby sentenced to suffer the penalty of reclusion perpetua and to pay a fine of One Million (P1,000,000.00) Pesos. SO ORDERED.9
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Hence, the instant appeal where accused-appellant raised the following errors: THE TRIAL COURT ERRED GRAVELY IN ITS FOLLOWING FINDINGS: A. THE ARREST OF ACCUSED-APPELLANT BINAD SY CHUA WAS LAWFUL; B. THE SEARCH OF HIS PERSON AND THE SUBSEQUENT CONFISCATION OF SHABU ALLEGEDLY FOUND ON HIM WERE CONDUCTED IN A LAWFUL AND VALID MANNER; C. THE PROSECUTION EVIDENCE SUPPORTING THE CRIME CHARGED IS SUFICIENT TO PROVE THE GUILT OF THE ACCUSED-APPELLANT BEYOND REAONABLE DOUBT.10 Accused-appellant maintains that the warrantless arrest and search made by the police operatives was unlawful; that in the light of the testimony of SPO2 Nulud that prior to his arrest he has been under surveillance for two years, there was therefore no compelling reason for the haste within which the arresting officers sought to arrest and search him without a warrant; that the police officers had sufficient information about him and could have easily arrested him. Accused-appellant further argues that since his arrest was null an void, the drugs that were seized should likewise be inadmissible in evidence since they were obtained in violation of his constitutional rights against unreasonable search and seizures and arrest. Accused-appellants argument is impressed with merit. Although the trial courts evaluation of the credibility of witnesses and their testimonies is entitled to great respect and will not be disturbed on appeal, however, this rule is not a hard and fast one. It is a time-honored rule that the assessment of the trial court with regard to the credibility of witnesses deserves the utmost respect, if not finality, for the reason that the trial judge has the prerogative, denied to appellate judges, of observing the demeanor of the declarants in the course of their testimonies. The only exception is if there is a showing that the trial judge overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that would have affected the case.11 In the case at bar, there appears on record some facts of weight and substance that have been overlooked, misapprehended, or misapplied by the trial court which casts doubt on the guilt of accused-appellant. An appeal in a criminal case opens the whole case for review and this includes the review of the penalty and indemnity imposed by the trial court.12 We are clothed with ample authority to review matters, even those not raised on appeal, if we find that their consideration is necessary in arriving at a just disposition of the case. Every circumstance in favor of the accused shall be considered.13 This is in keeping with the constitutional mandate that every accused shall be presumed innocent unless his guilt is proven beyond reasonable doubt. First, with respect to the warrantless arrest and consequent search and seizure made upon accused-appellant, the court a quo made the following findings: Accused was searched and arrested while in possession of regulated drugs (shabu). A crime was actually being committed by the accused and he was caught in flagrante delicto. Thus, the search made upon his personal effects x x x allow a warrantless search incident to a lawful arrest. x x x x While it is true that the police officers were not armed with a search warrant when the search was made over the personal affects (sic) of the accused, however, under the circumstances of the case, there was sufficient probable cause for said officers to believe that accused was then and there committing a crime. xxxxxxxxx In the present case, the police received information that the accused will distribute illegal drugs that evening at the Thunder Inn Hotel and its vicinities. The police officer had to act quickly and there was no more time to secure a search warrant. The search is valid being akin to a "stop and frisk".14

A thorough review of the evidence on record belies the findings and conclusion of the trial court. It confused the two different concepts of a search incidental to a lawful arrest (in flagrante delicto) and of a "stop-and-frisk." In Malacat v. Court of Appeals,15 we distinguished the concepts of a "stop-and-frisk" and of a search incidental to a lawful arrest, to wit: 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. In this instance, the law requires that there first be arrest before a search can be madethe process cannot be reversed. At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence. xxxxxxxxx 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. Other notable points of Terry are that while probable cause is not required to conduct a "stop-and-frisk," it nevertheless holds that mere suspicion or a hunch will not validate a "stop-and-frisk". A genuine reason must exist, in light of the police officers experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer.16(Emphasis ours) In the case at bar, neither the in flagrante delicto nor the "stop and frisk" principles is applicable to justify the warrantless arrest and consequent search and seizure made by the police operatives on accused-appellant. In in flagrante delicto arrests, the accused is apprehended at the very moment he is committing or attempting to commit or has just committed an offense in the presence of the arresting officer. Emphasis should be laid on the fact that the law requires that the search be incidental to a lawful arrest. Therefore it is beyond cavil
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that a lawful arrest must precede the search of a person and his belongings.17 Accordingly, for this exception to apply two elements must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.18 We find the two aforementioned elements lacking in the case at bar. The record reveals that when accused-appellant arrived at the vicinity of Thunder Inn Hotel, he merely parked his car along the McArthur Highway, alighted from it and casually proceeded towards the entrance of the Hotel clutching a sealed Zest-O juice box. Accused-appellant did not act in a suspicious manner. For all intents and purposes, there was no overt manifestation that accused-appellant has just committed, is actually committing, or is attempting to commit a crime. However, notwithstanding the absence of any overt act strongly manifesting a violation of the law, the group of SPO2 Nulud "hurriedly accosted"19 accusedappellant and later on "introduced themselves as police officers."20Accusedappellant was arrested before the alleged drop-off of shabu was done. Probable cause in this case was more imagined than real. Thus, there could have been no in flagrante delicto arrest preceding the search, in light of the lack of an overt physical act on the part of accused-appellant that he had committed a crime, was committing a crime or was going to commit a crime. As applied to in flagrante delicto arrests, it has been held that "reliable information" alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante delicto arrest.21 Hence, in People v. Aminudin,22 we ruled that "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 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" (Emphasis supplied). The reliance of the prosecution in People v. Tangliben23 to justify the polices actions is misplaced. In the said case, based on the information supplied by informers, police officers conducted a surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga against persons who may commit misdemeanors and also on those who may be engaged in the traffic of dangerous drugs. At 9:30 in the evening, the policemen noticed a person carrying a red travelling bag who was acting suspiciously. They confronted him and requested him to open his bag but he refused. He acceded later on when the policemen identified themselves. Inside the bag were marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the activities of Tangliben on the night of his arrest. In the instant case, the apprehending policemen already had prior knowledge from the very same informant of accused-appellants activities. No less than SPO2 Mario Nulud, the team leader of the arresting operatives, admitted that their informant has been telling them about the activities of accused-appellant for two years prior to his actual arrest on September 21, 1996. An excerpt of the testimony of SPO2 Mario Nulud reveals the illegality of the arrest of accused-appellant as follows: Q. Did the civilian informer of yours mentioned to you the name of this chinese drug pusher? A. He is mentioning the name of Binad or Jojo Chua. Q. And he had been mentioning these names to you even before September 21, 1996?

A. Yes, sir. Q. How long did this civilian informant have been telling you about the activities of this chinese drug pusher reckoning in relation to September 21, 1996? A. That was about two years already. Q. Nothwithstanding his two years personal knowledge which you gained from the civilian informant that this chinese drug pusher have been engaged pushing drugs here in Angeles City, you did not think of applying for a search warrant for this chinese drug pusher? A. No, sir. xxxxxxxxx Q. When you accosted this Binad Chua, he was casually walking along the road near the Thunder Inn Hotel, is that right? A. He was pinpointed by the civilian informer that he is the chinese drug pusher that will deliver to him also. Q. My question Mr. Witness, is this Jojo Chua or Binad Chua the accused in this case he alighted with a Corolla car with plate number 999, I think, he just alighted when you saw him? A. Yes, sir. Q. From the car when he alighted, he casually walked towards near the entrance of the Thunder Inn Hotel? A. He was about to proceed towards Thunder Inn Hotel but he was pinpointed already by the civilian informer. Q. But he was just walking towards the entrance of the Thunder Inn Hotel? A. Yes, sir, he is about to enter Thunder Inn Hotel. xxxxxxxxx Q. While he was walking, then you and PO2 Nunag pounced on him as you used pounced on him in your affidavit? A. Yes, sir. xxxxxxxxx Q. And you pounced on Jojo Chua before you saw that alleged small plastic bag, is that correct? A. Yes, sir. Q. And after that you also confiscated this Zesto juice box? A. Yes, sir. xxxxxxxxx Q. But would you agree with me that not all crystalline substance is shabu? A. No, that is shabu and it is been a long time that we have been tailing the accused that he is really a drug pusher. Q. So you have been tailing this accused for quite a long time that you are very sure that what was brought by him was shabu? A. Yes, sir.24 The police operatives cannot feign ignorance of the alleged illegal activities of accused-appellant. Considering that the identity, address and activities of the suspected culprit was already ascertained two years previous to the actual arrest, there was indeed no reason why the police officers could not have obtained a judicial warrant before arresting accused-appellant and searching his person. Whatever information their civilian asset relayed to them hours before accusedappellants arrest was not a product of an "on-the-spot" tip which may excuse them from obtaining a warrant of arrest. Accordingly, the arresting teams contention that their arrest of accused-appellant was a product of an "on-the-spot" tip is untenable. In the same vein, there could be no valid "stop-and-frisk" in this case. A stop-andfrisk was defined as the act of a police officer to stop a citizen on the street,
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interrogate him, and pat him for weapon(s)25 or contraband. The police officer should properly introduce himself and make initial inquiries, approach and restrain a person who manifests unusual and suspicious conduct, in order to check the latters outer clothing for possibly concealed weapons.26 The apprehending police officer must have a genuine reason, in accordance with the police officers experience and the surrounding conditions, to warrant the belief that the person to be held has weapons (or contraband) concealed about him.27 It should therefore be emphasized that a search and seizure should precede the arrest for this principle to apply.28 This principle of "stop-and-frisk" search was invoked by the Court in Manalili v. Court of Appeals.29 In said case, the policemen chanced upon the accused who had reddish eyes, walking in a swaying manner, and who appeared to be high on drugs. Thus, we upheld the validity of the search as akin to a "stop-and-frisk." In People v. Solayao,30 we also found justifiable reason to "stop-and-frisk" the accused after considering the following circumstances: the drunken actuations of the accused and his companions, the fact that his companions fled when they saw the policemen, and the fact that the peace officers were precisely on an intelligence mission to verify reports that armed persons where roaming the vicinity. The foregoing circumstances do not obtain in the case at bar. There was no valid "stop-and-frisk" in the case of accused-appellant. To reiterate, accused-appellant was first arrested before the search and seizure of the alleged illegal items found in his possession. The apprehending police operative failed to make any initial inquiry into accused-appellants business in the vicinity or the contents of the Zest-O juice box he was carrying. The apprehending police officers only introduced themselves when they already had custody of accused-appellant. Besides, at the time of his arrest, accused-appellant did not exhibit manifest unusual and suspicious conduct reasonable enough to dispense with the procedure outlined by jurisprudence and the law. There was, therefore, no genuine reasonable ground for the immediacy of accused-appellants arrest. Obviously, the acts of the police operatives wholly depended on the information given to them by their confidential informant. Accordingly, before and during that time of the arrest, the arresting officers had no personal knowledge that accusedappellant had just committed, was committing, or was about to commit a crime. At any rate, even if the fact of delivery of the illegal drugs actually occurred, accused-appellants warrantless arrest and consequent search would still not be deemed a valid "stop-and frisk". For a valid "stop-and-frisk" the search and seizure must precede the arrest, which is not so in this case. Besides, as we have earlier emphasized, the information about the illegal activities of accused-appellant was not unknown to the apprehending officers. Hence, the search and seizure of the prohibited drugs cannot be deemed as a valid "stop-and-frisk". Neither can there be valid seizure in plain view on the basis of the seized items found in accused-appellants possession. First, there was no valid intrusion. Second, the evidence, i.e., the plastic bags found in the Zest-O juice box which contained crystalline substances later on identified as methamphetamine hydrochloride (shabu) and the 20 rounds of .22 caliber ammunition, were not inadvertently discovered. The police officers first arrested accused-appellant and intentionally searched his person and peeked into the sealed Zest-O juice box before they were able to see and later on ascertain that the crystalline substance was shabu. There was no clear showing that the sealed Zest-O juice box accused-appellant carried contained prohibited drugs. Neither were the small plastic bags which allegedly contained crystalline substance and the 20 rounds of .22 caliber ammunition visible. These prohibited substances were not in plain view of the arresting officers; hence, inadmissible for being the fruits of the poisonous tree.

In like manner, the search cannot be categorized as a search of a moving vehicle, a consented warrantless search, or a customs search. It cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any such showing.1a\^/phi1.net All told, the absence of ill-motive on the part of the arresting team cannot simply validate, much more cure, the illegality of the arrest and consequent warrantless search of accused-appellant. Neither can the presumption of regularity of performance of function be invoked by an officer in aid of the process when he undertakes to justify an encroachment of rights secured by the Constitution.31 In People v. Nubla,32 we clearly stated that: The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellants conviction because, first, the presumption is precisely just that a mere presumption. Once challenged by evidence, as in this case, xxx [it] cannot be regarded as binding truth. Second, the presumption of regularity in the performance of official functions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt. Furthermore, we entertain doubts whether the items allegedly seized from accusedappellant were the very same items presented at the trial of this case. The record shows that the initial field test where the items seized were identified as shabu, was only conducted at the PNP headquarters of Angeles City.33 The items were therefore not marked at the place where they were taken. In People v. Casimiro,34 we struck down with disbelief the reliability of the identity of the confiscated items since they were not marked at the place where they were seized, thus: The narcotics field test, which initially identified the seized item as marijuana, was likewise not conducted at the scene of the crime, but only at the narcotics office. There is thus reasonable doubt as to whether the item allegedly seized from accused-appellant is the same brick of marijuana marked by the policemen in their headquarters and given by them to the crime laboratory. The governments drive against illegal drugs needs the support of every citizen. But it should not undermine the fundamental rights of every citizen as enshrined in the Constitution. The constitutional guarantee against warrantless arrests and unreasonable searches and seizures cannot be so carelessly disregarded as overzealous police officers are sometimes wont to do. Fealty to the constitution and the rights it guarantees should be paramount in their minds, otherwise their good intentions will remain as such simply because they have blundered. The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.35 WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Angeles City, Branch 59, in Criminal Cases Nos. 96-507 and 96-513, convicting accused-appellant Binad Sy Chua of violation of Section 16, Article III, Republic Act No. 6425 and sentencing him to suffer the penalty of reclusion perpetua and to pay a fine of P1,000,000.00, is REVERSED and SET ASIDE. Accused-appellant Binad Sy Chua is ACQUITTED on the ground of reasonable doubt. Consequently, he is ordered forthwith released from custody, unless he is being lawfully held for another crime. SO ORDERED. G.R. No. 96177 January 27, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARI MUSA y HANTATALU, accused-appellant. The Solicitor General for plaintiff-appellee.
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Pablo L. Murillo for accused-appellant. ROMERO, J.: The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31, 1990, 1 of the Regional Trial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of selling marijuana in violation of Article II, Section 4 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972. The information filed on December 15, 1989 against the appellant reads: That on or about December 14, 1989, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there, wilfully, unlawfully and feloniously sell to one SGT. AMADO ANI, two (2) wrappers containing dried marijuana leaves, knowing the same to be a prohibited drug. CONTRARY TO LAW. 2 Upon his arraignment on January 11, 1990, the appellant pleaded not guilty. 3 At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the 9th Narcotics Command (NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy-bust operation made against the appellant; (2) T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of Zamboanga City, who was the NARCOM team leader of the buy-bust operation; and (3) Athena Elisa P. Anderson, the Document Examiner and Forensic Chemist of PC-INP Crime Laboratory of Regional Command (RECOM) 9. The evidence of the prosecution was summarized by the trial court as follows: Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus Belarga, leader of a NARCOTICS COMMAND (NARCOM) team based at Calarian, Zamboanga City, instructed Sgt. Amado Ani to conduct surveillance and test buy on a certain Mari Musa of Suterville, Zamboanga City. Information received from civilian informer was that this Mari Musa was engaged in selling marijuana in said place. So Sgt. Amado Ani, another NARCOM agent, proceeded to Suterville, in company with a NARCOM civilian informer, to the house of Mari Musa to which house the civilian informer had guided him. The same civilian informer had also described to him the appearance of Mari Musa. Amado Ani was able to buy one newspaper-wrapped dried marijuana (Exh. "E") for P10.00. Sgt. Ani returned to the NARCOM office and turned over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga inspected the stuff turned over to him and found it to be marijuana. The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt. Amado Ani was assigned as the poseur buyer for which purpose he was given P20.00 (with SN GA955883) by Belarga. The buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali Mihasun, Chief of Investigation Section, and for which Belarga signed a receipt (Exh. "L" & "L-l" ) The team under Sgt. Foncargas was assigned as back-up security. A prearranged signal was arranged consisting of Sgt. Ani's raising his right hand, after he had succeeded to buy the marijuana. The two NARCOM teams proceeded to the target site in two civilian vehicles. Belarga's team was composed of Sgt. Belarga, team leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong. Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest of the NARCOM group positioned themselves at strategic places about 90 to 100 meters from Mari Musa's house. T/Sgt. Belarga could see what went on between Ani and suspect Mari Musa from where he was. Ani approached Mari Musa, who came out of his house, and asked Ani what he wanted. Ani said he wanted some more stuff. Ani gave Mari Musa the P20.00 marked money. After receiving the money, Mari Musa went back to his house and came back and gave Amado Ani two

newspaper wrappers containing dried marijuana. Ani opened the two wrappers and inspected the contents. Convinced that the contents were marijuana, Ani walked back towards his companions and raised his right hand. The two NARCOM teams, riding the two civilian vehicles, sped towards Sgt. Ani. Ani joined Belarga's team and returned to the house. At the time Sgt. Ani first approached Mari Musa, there were four persons inside his house: Mari Musa, another boy, and two women, one of whom Ani and Belarga later came to know to be Mari Musa's wife. The second time, Ani with the NARCOM team returned to Mari Musa's house, the woman, who was later known as Mari Musa's wife, slipped away from the house. Sgt. Belarga frisked Mari Musa but could not find the P20.00 marked money with him. Mari Musa was then asked where the P20.00 was and he told the NARCOM team he has given the money to his wife (who had slipped away). Sgt. Belarga also found a plastic bag containing dried marijuana inside it somewhere in the kitchen. Mari Musa was then placed under arrest and brought to the NARCOM office. At Suterville, Sgt. Ani turned over to Sgt. Belarga the two newspaper-wrapped marijuana he had earlier bought from Mari Musa (Exhs. "C" & "D"). In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on, Mari Musa gave his true name Mari Musa. T/Sgt. Jesus Belarga turned over the two newspaper-wrapped marijuana (bought at the buy-bust), the one newspaperwrapped marijuana (bought at the test-buy) and the plastic bag containing more marijuana (which had been taken by Sgt. Lego inside the kitchen of Mari Musa) to the PC Crime Laboratory, Zamboanga City, for laboratory examination. The turnover of the marijuana specimen to the PC Crime Laboratory was by way of a letterrequest, dated December 14, 1989 (Exh. "B"), which was stamped "RECEIVED" by the PC Crime Laboratory (Exh. "B-1") on the same day. Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory, examined the marijuana specimens subjecting the same to her three tests. All submitted specimens she examined gave positive results for the presence of marijuana. Mrs. Anderson reported the results of her examination in her Chemistry Report D-100-89, dated December 14, 1989, (Exh. "J", "J-1", "J-2", "J-3", "J-4" and "J5"). Mrs. Anderson identified in court the two newspaper wrapped marijuana bought at the buy-bust on December 14, 1989, through her initial and the weight of each specimen written with red ink on each wrapper (Exhs. "C-1" and "D-1"). She also identified the one newspaper-wrapped marijuana bought at the test-buy on December 13, 1989, through her markings (Exh. "E-1"). Mrs. Anderson also identified her Chemistry Report (Exh. "J" & sub-markings.) T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through his initial, the words "buy-bust" and the words "December 14, 1989, 2:45 P.M." (written on Exhs. "C" and "D"). Belarga also identified the receipt of the P20 marked money (with SN GA955883) (Exh. "L"), dated December 14, 1989, and his signature thereon (Exh. "L-1"). He also identified the letter-request, dated December 14, 1989, addressed to the PC Crime Laboratory (Exh. "B") and his signature thereon (Exh. "B-2") and the stamp of the PC Crime Laboratory marked "RECEIVED" (Exh. "B-1"). 4 For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa; and (2) Ahara R. Musa, his wife. The trial court summarized the version of the defense, thus: [O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house at Suterville, Zamboanga City. With him were his wife, Ahara Musa, known as Ara, his one-year old child, a woman manicurist, and a male cousin named Abdul Musa.
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About 1:30 that afternoon, while he was being manicured at one hand, his wife was inside the one room of their house, putting their child to sleep. Three NARCOM agents, who introduced themselves as NARCOM agents, dressed in civilian clothes, got inside Mari Musa's house whose door was open. The NARCOM agents did not ask permission to enter the house but simply announced that they were NARCOM agents. The NARCOM agents searched Mari Musa's house and Mari Musa asked them if they had a search warrant. The NARCOM agents were just silent. The NARCOM agents found a red plastic bag whose contents, Mari Musa said, he did not know. He also did not know if the plastic bag belonged to his brother, Faisal, who was living with him, or his father, who was living in another house about ten arms-length away. Mari Musa, then, was handcuffed and when Mari Musa asked why, the NARCOM agents told him for clarification. Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at Calarian, Zamboanga City. Inside the NARCOM Office, Mari Musa was investigated by one NARCOM agent which investigation was reduced into writing. The writing or document was interpreted to Mari Musa in Tagalog. The document stated that the marijuana belonged to Mari Musa and Mari Musa was asked to sign it. But Mari Musa refused to sign because the marijuana did not belong to him. Mari Musa said he was not told that he was entitled to the assistance of counsel, although he himself told the NARCOM agents he wanted to be assisted by counsel. Mari Musa said four bullets were then placed between the fingers of his right hand and his fingers were pressed which felt very painful. The NARCOM agents boxed him and Mari Musa lost consciousness. While Mari Musa was maltreated, he said his wife was outside the NARCOM building. The very day he was arrested (on crossexamination Mari Musa said it was on the next day), Mari Musa was brought to the Fiscal's Office by three NARCOM agents. The fiscal asked him if the marijuana was owned by him and he said "not." After that single question, Mari Musa was brought to the City Jail. Mari Musa said he did not tell the fiscal that he had been maltreated by the NARCOM agents because he was afraid he might be maltreated in the fiscal's office. Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of marijuana to them; that he had received from them a P20.00 bill which he had given to his wife. He did not sell marijuana because he was afraid that was against the law and that the person selling marijuana was caught by the authorities; and he had a wife and a very small child to support. Mari Musa said he had not been arrested for selling marijuana before.5 After trial, the trial court rendered the assailed decision with the following disposition: WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable doubt of selling marijuana and pursuant to Sec. 4, Art II of Rep. Act No. 6425, he is sentenced to life imprisonment and to pay the fine of P20,000.00, the latter imposed without subsidiary imprisonment. 6 In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and impugns the credibility of the prosecution witnesses. The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1) prior to the buy-bust operation, neither Sgt. Ani nor the other NARCOM agents were personally known by the appellant or vice-versa; and (2) there was no witness to the alleged giving of the two wrappers of marijuana by the appellant to Sgt. Ani. Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he conducted a test-buy operation on the appellant whereby he bought one wrapper of marijuana for P15.00 from the latter. 7 He reported the successful

operation to T/Sgt. Belarga on the same day. 8 Whereupon, T/Sgt. Belarga conducted a conference to organize a buy-bust operation for the following day. 9 On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by T/Sgt. Belarga and a certain Sgt. Foncardas went to the place of operation, which was the appellant's house located in Laquian Compound, Suterville, Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga, whose other members were Sgts. Lego and Biong. 10 Sgt. Ani was given a marked P20.00 bill by T/Sgt. Belarga, which was to be used in the operation. Upon reaching the place, the NARCOM agents positioned themselves at strategic places. 11 Sgt. Ani approached the house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt. Ani asked him for some more marijuana. 12 Sgt. Ani gave him the marked P20.00 bill and the appellant went inside the house and brought back two paper wrappers containing marijuana which he handed to Sgt. Ani. 13 From his position, Sgt. Ani could see that there were other people in the house. 14 After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged signal of raising his right hand. 15 The NARCOM agents, accompanied by Sgt. Ani, went inside the house and made the arrest. The agents searched the appellant and unable to find the marked money, they asked him where it was. The appellant said that he gave it to his wife. 16 The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-bust operation, which resulted in the apprehension, prosecution and subsequent conviction of the appellant, to be direct, lucid and forthright. Being totally untainted by contradictions in any of the material points, it deserves credence. The contention that the appellant could not have transacted with Sgt. Ani because they do not know each other is without merit. The day before the buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of marijuana from the appellant. Through this previous transaction, Sgt. Ani was able to gain the appellant's confidence for the latter to sell more marijuana to Sgt. Ani the following day, during the buy-bust operation. Moreover, the Court has held that what matters is not an existing familiarity between the buyer and the seller, for quite often, the parties to the transaction may be strangers, but their agreement and the acts constituting the sale and delivery of the marijuana.17 The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the appellant to sell marijuana while his wife, cousin and manicurist were present. But the place of the commission of the crime of selling prohibited drugs has been held to be not crucial 18 and the presence of other people apart from the buyer and seller will not necessarily prevent the consummation of the illegal sale. As the Court observed in People v. Paco, 19 these factors may sometimes camouflage the commission of the crime. In the instant case, the fact that the other people inside the appellant's house are known to the appellant may have given him some assurance that these people will not report him to the authorities. The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt. Belarga. The appellant submits that since T/Sgt. Belarga admitted that he was about 90 meters away from Sgt. Ani and the appellant, he could not have possibly witnessed the sale. The appellant invokes People v. Ale 20 where the Court observed that from a distance of 10-15 meters, a policeman cannot distinguish between marijuana cigarette from ordinary ones by the type of rolling done on the cigarette sticks. And since T/Sgt. Belarga allegedly did not see the sale, the appellant contends that the uncorroborated testimony of Sgt. Ani can not stand as basis for his conviction.
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People v. Ale does not apply here because the policeman in that case testified that he and his companion were certain that the appellant therein handed marijuana cigarettes to the poseur-buyer based on the appearance of the cigarette sticks. The Court rejected this claim, stating that: This Court cannot give full credit to the testimonies of the prosecution witnesses marked as they are with contradictions and tainted with inaccuracies. Bian testified that they were able to tell that the four cigarettes were marijuana cigarettes because according to him, the rolling of ordinary cigarettes are different from those of marijuana cigarettes. (tsn, November 13, 1984, p. 10). It is however, incredible to believe that they could discern the type of rolling done on those cigarettes from the distance where they were observing the alleged sale of more or less 10 to 15 meters. 21 In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over marijuana to Sgt. Ani. What he said was that there was an exchange of certain articles between the two. The relevant portion of T/Sgt. Belarga's testimony reads: 22 Q Now, do you remember whether Sgt. Ani was able to reach the house of Mari Musa? A Yes, ma'am. Q After reaching Mari Musa, did you see what happened (sic)? A Yes, ma'am. Q Could you please tell us? A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt. Biong were boarded, I saw that Sgt. Ani proceeded to the house near the road and he was met by one person and later known as Mari Musa who was at the time wearing short pants and later on I saw that Sgt. Ani handed something to him, thereafter received by Mari Musa and went inside the house and came back later and handed something to Sgt. Ani. Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give to the former "something." Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received from the appellant was marijuana because of the distance, his testimony, nevertheless, corroborated the direct evidence, which the Court earlier ruled to be convincing, presented by Sgt. Ani on the following material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a surveillance and test-buy operation on the appellant at Suterville, Zamboanga City on December 13, 1989; 23 (2) later that same day, Sgt. Ani went back to their office and reported a successful operation and turned over to T/Sgt. Belarga one wrapper of marijuana; 24 (3) T/Sgt. Belarga then organized a team to conduct a buy-bust operation the following day; 25 (4) on December 14, 1989, T/Sgt. Belarga led a team of NARCOM agents who went to Suterville, Zamboanga City; 26 (5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be used in the buy-bust operation; 27 (6) upon the arrival of the NARCOM agents in Suterville, Zamboanga City, Sgt. Ani proceeded to the house of the appellant while some agents stayed in the vehicles and others positioned themselves in strategic places; 28 the appellant met Sgt. Ani and an exchange of articles took place. 29 The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani. Additionally, the Court has ruled that the fact that the police officers who accompanied the poseur-buyer were unable to see exactly what the appellant gave the poseur-buyer because of their distance or position will not be fatal to the prosecution's case 30 provided there exists other evidence, direct or circumstantial,

e.g., the testimony of the poseur-buyer, which is sufficient to prove the consummation of the sale of the prohibited drug The appellant next assails the seizure and admission as evidence of a plastic bag containing marijuana which the NARCOM agents found in the appellant's kitchen. It appears that after Sgt. Ani gave the pre-arranged signal to the other NARCOM agents, the latter moved in and arrested the appellant inside the house. They searched him to retrieve the marked money but didn't find it. Upon being questioned, the appellant said that he gave the marked money to his wife. 31 Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed what T/Sgt. Belarga described as a "cellophane colored white and stripe hanging at the corner of the kitchen." 32 They asked the appellant about its contents but failing to get a response, they opened it and found dried marijuana leaves. At the trial, the appellant questioned the admissibility of the plastic bag and the marijuana it contains but the trial court issued an Order ruling that these are admissible in evidence. 33 Built into the Constitution are guarantees on the freedom of every individual against unreasonable searches and seizures by providing in Article III, Section 2, the following: 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 witness he may produce, and particularly describing the place to be searched and the persons or things to be seized. Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v. Diokno, 34 declares inadmissible, any evidence obtained in violation of the freedom from unreasonable searches and seizures. 35 While a valid search warrant is generally necessary before a search and seizure may be effected, exceptions to this rule are recognized. Thus, in Alvero v. Dizon, 36 the Court stated that. "[t]he most important exception to the necessity for a search warrant is the right of search and seizure as an incident to a lawful arrest." 37 Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure incident to a lawful arrest, thus: 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. There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a search upon the person of the person arrested. As early as 1909, the Court has ruled that "[a]n officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or of escaping, or which may be used as evidence in the trial of the cause . . . " 38 Hence, in a buy-bust operation conducted to entrap a drug-pusher, the law enforcement agents may seize the marked money found on the person of the pusher immediately after the arrest even without arrest and search warrants. 39 In the case at bar, the NARCOM agents searched the person of the appellant after arresting him in his house but found nothing. They then searched the entire house and, in the kitchen, found and seized a plastic bag hanging in a corner.
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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 surroundings under his immediate control. 40 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. 41 In Ker v. California 42 police officers, without securing a search warrant but having information that the defendant husband was selling marijuana from his apartment, obtained from the building manager a passkey to defendants' apartment, and entered it. There they found the defendant husband in the living room. The defendant wife emerged from the kitchen, and one of the officers, after identifying himself, observed through the open doorway of the kitchen, a small scale atop the kitchen sink, upon which lay a brick-shaped package containing green leafy substance which he recognized as marijuana. The package of marijuana was used as evidence in prosecuting defendants for violation of the Narcotic Law. The admissibility of the package was challenged before the U.S. Supreme Court, which held, after observing that it was not unreasonable for the officer to walk to the doorway of the adjacent kitchen on seeing the defendant wife emerge therefrom, that "the discovery of the brick of marijuana did not constitute a search, since the officer merely saw what was placed before him in full view. 43 The U.S. Supreme Court ruled that the warrantless seizure of the marijuana was legal on the basis of the "plain view" doctrine and upheld the admissibility of the seized drugs as part of the prosecution's evidence. 44 The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. 45 Furthermore, the U.S. Supreme Court stated the following limitations on the application of the doctrine: 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. 46 It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine will not justify the seizure of the object where the incriminating nature of the object is not apparent from the "plain view" of the object. 47 Stated differently, 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. In the instant case, the appellant was arrested and his person searched in the living room. Failing to retrieve the marked money which they hoped to find, the NARCOM agents searched the whole house and found the plastic bag in the kitchen. The plastic bag was, therefore, not within their "plain view" when they arrested the appellant as to justify its seizure. The NARCOM agents had to move from one portion of the house to another before they sighted the plastic bag. Unlike Ker vs. California, where the police officer had reason to walk to the doorway of the adjacent kitchen

and from which position he saw the marijuana, the NARCOM agents in this case went from room to room with the obvious intention of fishing for more evidence. Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its contents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they opened it and found the marijuana. Unlike Ker v. California, where the marijuana was visible to the police officer's eyes, the NARCOM agents in this case could not have discovered the inculpatory nature of the contents of the bag had they not forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because it was within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag and not the marijuana. The incriminating nature of the contents of the plastic bag was not immediately apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly betrayed its contents, whether by its distinctive configuration, its transprarency, or otherwise, that its contents are obvious to an observer. 48 We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply and the marijuana contained in the plastic bag was seized illegally and cannot be presented in evidence pursuant to Article III, Section 3(2) of the Constitution. The exclusion of this particular evidence does not, however, diminish, in any way, the damaging effect of the other pieces of evidence presented by the prosecution to prove that the appellant sold marijuana, in violation of Article II, Section 4 of the Dangerous Drugs Act of 1972. We hold that by virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of marijuana sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the appellant of the crime charged has been proved beyond reasonable doubt. WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court AFFIRMED. SO ORDERED. [G.R. No. 120915. April 3, 1998] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROSA ARUTA y MENGUIN, accused-appellant. DECISION ROMERO, J.: With the pervasive proliferation of illegal drugs and its pernicious effects on our society, our law enforcers tend at times to overreach themselves in apprehending drug offenders to the extent of failing to observe well-entrenched constitutional guarantees against illegal searches and arrests. Consequently, drug offenders manage to evade the clutches of the law on mere technicalities. Accused-appellant Rosa Aruta y Menguin was arrested and charged with violating Section 4, Article II of Republic Act No. 6425 or the Dangerous Drugs Act. The information reads: That on or about the fourteenth (14th) day of December, 1988, in the City of Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, without being lawfully authorized, did then and there wilfully, unlawfully and knowingly engage in transporting approximately eight (8) kilos and five hundred (500) grams of dried marijuana packed in plastic bag marked Cash Katutak placed in a travelling bag, which are prohibited drugs. Upon arraignment, she pleaded not guilty. After trial on the merits, the Regional Trial Court of Olongapo City convicted and sentenced her to suffer the penalty of life imprisonment and to pay a fine of twenty thousand (P20,000.00) pesos.[1]
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The prosecution substantially relied on the testimonies of P/Lt. Ernesto Abello, Officer-in-Charge of the Narcotics Command (NARCOM) of Olongapo City and P/Lt. Jose Domingo. Based on their testimonies, the court a quo found the following: On December 13, 1988, P/Lt. Abello was tipped off by his informant, known only as Benjie, that a certain Aling Rosa would be arriving from Baguio City the following day, December 14, 1988, with a large volume of marijuana. Acting on said tip, P/Lt. Abello assembled a team composed of P/Lt. Jose Domingo, Sgt. Angel Sudiacal, Sgt. Oscar Imperial, Sgt. Danilo Santiago and Sgt. Efren Quirubin. Said team proceeded to West Bajac-Bajac, Olongapo City at around 4:00 in the afternoon of December 14, 1988 and deployed themselves near the Philippine National Bank (PNB) building along Rizal Avenue and the Caltex gasoline station. Dividing themselves into two groups, one group, made up of P/Lt. Abello, P/Lt. Domingo and the informant posted themselves near the PNB building while the other group waited near the Caltex gasoline station. While thus positioned, a Victory Liner Bus with body number 474 and the letters BGO printed on its front and back bumpers stopped in front of the PNB building at around 6:30 in the evening of the same day from where two females and a male got off. It was at this stage that the informant pointed out to the team Aling Rosa who was then carrying a travelling bag. Having ascertained that accused-appellant was Aling Rosa, the team approached her and introduced themselves as NARCOM agents. When P/Lt. Abello asked Aling Rosa about the contents of her bag, the latter handed it to the former. Upon inspection, the bag was found to contain dried marijuana leaves packed in a plastic bag marked Cash Katutak. The team confiscated the bag together with the Victory Liner bus ticket to which Lt. Domingo affixed his signature. Accusedappellant was then brought to the NARCOM office for investigation where a Receipt of Property Seized was prepared for the confiscated marijuana leaves. Upon examination of the seized marijuana specimen at the PC/INP Crime Laboratory, Camp Olivas, Pampanga, P/Maj. Marlene Salangad, a Forensic Chemist, prepared a Technical Report stating that said specimen yielded positive results for marijuana, a prohibited drug. After the presentation of the testimonies of the arresting officers and of the above technical report, the prosecution rested its case. Instead of presenting its evidence, the defense filed a Demurrer to Evidence alleging the illegality of the search and seizure of the items thereby violating accused-appellants constitutional right against unreasonable search and seizure as well as their inadmissibility in evidence. The said Demurrer to Evidence was, however, denied without the trial court ruling on the alleged illegality of the search and seizure and the inadmissibility in evidence of the items seized to avoid pre-judgment. Instead, the trial court continued to hear the case. In view of said denial, accused-appellant testified on her behalf. As expected, her version of the incident differed from that of the prosecution. She claimed that immediately prior to her arrest, she had just come from Choice Theater where she watched the movie Balweg. While about to cross the road, an old woman asked her help in carrying a shoulder bag. In the middle of the road, Lt. Abello and Lt. Domingo arrested her and asked her to go with them to the NARCOM Office. During investigation at said office, she disclaimed any knowledge as to the identity of the woman and averred that the old woman was nowhere to be found after she was arrested. Moreover, she added that no search warrant was shown to her by the arresting officers.

After the prosecution made a formal offer of evidence, the defense filed a Comment and/or Objection to Prosecutions Formal Offer of Evidence contesting the admissibility of the items seized as they were allegedly a product of an unreasonable search and seizure. Not convinced with her version of the incident, the Regional Trial Court of Olongapo City convicted accused-appellant of transporting eight (8) kilos and five hundred (500) grams of marijuana from Baguio City to Olongapo City in violation of Section 4, Article 11 of R.A. No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972 and sentenced her to life imprisonment and to pay a fine of twenty thousand (P20,000.00) pesos without subsidiary imprisonment in case of insolvency.
[2]

In this appeal, accused-appellant submits the following: 1. The trial court erred in holding that the NARCOM agents could not apply for a warrant for the search of a bus or a passenger who boarded a bus because one of the requirements for applying a search warrant is that the place to be searched must be specifically designated and described. 2. The trial court erred in holding or assuming that if a search warrant was applied for by the NARCOM agents, still no court would issue a search warrant for the reason that the same would be considered a general search warrant which may be quashed. 3. The trial court erred in not finding that the warrantless search resulting to the arrest of accused-appellant violated the latters constitutional rights. 4. The trial court erred in not holding that although the defense of denial is weak yet the evidence of the prosecution is even weaker. These submissions are impressed with merit. In People v. Ramos,[3] this Court held that a search may be conducted by law enforcers only on the strength of a search warrant validly issued by a judge as provided in Article III, Section 2 of the Constitution which provides: Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. This constitutional guarantee is not a blanket prohibition against all searches and seizures as it operates only against unreasonable searches and seizures. The plain import of the language of the Constitution, which in one sentence prohibits unreasonable searches and seizures and at the same time prescribes the requisites for a valid warrant, is that searches and seizures are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection accorded by the search and seizure clause is that between person and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest.[4] Further, articles which are the product of unreasonable searches and seizures are inadmissible as evidence pursuant to the doctrine pronounced in Stonehill v. Diokno. [5] This exclusionary rule was later enshrined in Article III, Section 3(2) of the Constitution, thus: Section 3(2). Any evidence obtained in violation of this or the preceding section shall be inadmissible in evidence for any purpose in any proceeding. From the foregoing, it can be said that the State cannot simply intrude indiscriminately into the houses, papers, effects, and most importantly, on the
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person of an individual. The constitutional provision guaranteed an impenetrable shield against unreasonable searches and seizures. As such, it protects the privacy and sanctity of the person himself against unlawful arrests and other forms of restraint.[6] Therewithal, the right of a person to be secured against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. A statute, rule or situation which allows exceptions to the requirement of a warrant of arrest or search warrant must perforce be strictly construed and their application limited only to cases specifically provided or allowed by law. To do otherwise is an infringement upon personal liberty and would set back a right so basic and deserving of full protection and vindication yet often violated.[7] The following cases are specifically provided or allowed by law: 1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court[8] and by prevailing jurisprudence; 2. Seizure of evidence in plain view, the elements of which 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 had 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 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;[9] 6. Stop and Frisk;[10] and 7. Exigent and Emergency Circumstances.[11] The above exceptions, however, should not become unbridled licenses for law enforcement officers to trample upon the constitutionally guaranteed and more fundamental right of persons against unreasonable search and seizures. The essential requisite of probable cause must still be satisfied before a warrantless search and seizure can be lawfully conducted. Although probable cause eludes exact and concrete definition, it generally signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is charged. It likewise refers to the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched.[12] It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our rules of evidence of which his knowledge is technically nil. Rather, he relies on the calculus of common sense which all reasonable men have in abundance. The same quantum of evidence is required in determining probable cause relative to search. Before a search warrant can be issued, it must be shown by substantial evidence that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched.[13] In searches and seizures effected without a warrant, it is necessary for probable cause to be present. Absent any probable cause, the article(s) seized could not be

admitted and used as evidence against the person arrested. Probable cause, in these cases, must only be based on reasonable ground of suspicion or belief that a crime has been committed or is about to be committed. In our jurisprudence, there are instances where information has become a sufficient probable cause to effect a warrantless search and seizure. In People v. Tangliben,[14] acting on information supplied by informers, police officers conducted a surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga against persons who may commit misdemeanors and also on those who may be engaging in the traffic of dangerous drugs. At 9:30 in the evening, the policemen noticed a person carrying a red travelling bag who was acting suspiciously. They confronted him and requested him to open his bag but he refused. He acceded later on when the policemen identified themselves. Inside the bag were marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the activities of Tangliben on the night of his arrest. In instant case, the apprehending officers already had prior knowledge from their informant regarding Arutas alleged activities. In Tangliben policemen were confronted with an on-the-spot tip. Moreover, the policemen knew that the Victory Liner compound is being used by drug traffickers as their business address. More significantly, Tangliben was acting suspiciously. His actuations and surrounding circumstances led the policemen to reasonably suspect that Tangliben is committing a crime. In instant case, there is no single indication that Aruta was acting suspiciously. In People v. Malmstedt,[15] the Narcom agents received reports that vehicles coming from Sagada were transporting marijuana. They likewise received information that a Caucasian coming from Sagada had prohibited drugs on his person. There was no reasonable time to obtain a search warrant, especially since the identity of the suspect could not be readily ascertained. Hisactuations also aroused the suspicion of the officers conducting the operation. The Court held that in light of such circumstances, to deprive the agents of the ability and facility to act promptly, including a search without a warrant, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society. Note, however, the glaring differences of Malmstedt to the instant case. In present case, the police officers had reasonable time within which to secure a search warrant. Second, Arutas identity was priorly ascertained. Third, Aruta was not acting suspiciously. Fourth, Malmstedt was searched aboard a moving vehicle, a legally accepted exception to the warrant requirement. Aruta, on the other hand, was searched while about to cross a street. In People v. Bagista,[16] the NARCOM officers had probable cause to stop and search all vehicles coming from the north to Acop, Tublay, Benguet in view of the confidential information they received from their regular informant that a woman having the same appearance as that of accused-appellant would be bringing marijuana from up north. They likewise had probable cause to search accusedappellants belongings since she fitted the description given by the NARCOM informant. Since there was a valid warrantless search by the NARCOM agents, any evidence obtained in the course of said search is admissible against accusedappellant. Again, this case differs from Aruta as this involves a search of a moving vehicle plus the fact that the police officers erected a checkpoint. Both are exceptions to the requirements of a search warrant. In Manalili v. Court of Appeals and People,[17] the policemen conducted a surveillance in an area of the Kalookan Cemetery based on information that drug addicts were roaming therein. Upon reaching the place, they chanced upon a man in
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front of the cemetery who appeared to be high on drugs. He was observed to have reddish eyes and to be walking in a swaying manner. Moreover, he appeared to be trying to avoid the policemen. When approached and asked what he was holding in his hands, he tried to resist. When he showed his wallet, it contained marijuana. The Court held that the policemen had sufficient reason to accost accused-appellant to determine if he was actually high on drugs due to his suspicious actuations, coupled with the fact that based on information, this area was a haven for drug addicts. In all the abovecited cases, there was information received which became the bases for conducting the warrantless search. Furthermore, additional factors and circumstances were present which, when taken together with the information, constituted probable causes which justified the warrantless searches and seizures in each of the cases. In the instant case, the determination of the absence or existence of probable cause necessitates a reexamination of the facts. The following have been established: (1) In the morning of December 13, 1988, the law enforcement officers received information from an informant named Benjie that a certain Aling Rosa would be leaving for Baguio City on December 14, 1988 and would be back in the afternoon of the same day carrying with her a large volume of marijuana; (2) At 6:30 in the evening of December 14, 1988, accused-appellant alighted from a Victory Liner Bus carrying a travelling bag even as the informant pointed her out to the law enforcement officers; (3) The law enforcement officers approached her and introduced themselves as NARCOM agents; (4) When asked by Lt. Abello about the contents of her travelling bag, she gave the same to him; (5) When they opened the same, they found dried marijuana leaves; (6) Accused-appellant was then brought to the NARCOM office for investigation. This case is similar to People v. Aminnudin where the police received information two days before the arrival of Aminnudin that the latter would be arriving from Iloilo on board the M/V Wilcon 9. His name was known, the vehicle was identified and the date of arrival was certain. From the information they had received, the police could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Instead of securing a warrant first, they proceeded to apprehend Aminnudin. When the case was brought before this Court, the arrest was held to be illegal; hence any item seized from Aminnudin could not be used against him. Another recent case is People v. Encinada where the police likewise received confidential information the day before at 4:00 in the afternoon from their informant that Encinada would be bringing in marijuana from Cebu City on board M/V Sweet Pearl at 7:00 in the morning of the following day. This intelligence information regarding the culprits identity, the particular crime he allegedly committed and his exact whereabouts could have been a basis of probable cause for the lawmen to secure a warrant. This Court held that in accordance with Administrative Circular No. 13 and Circular No. 19, series of 1987, the lawmen could have applied for a warrant even after court hours. The failure or neglect to secure one cannot serve as an excuse for violating Encinadas constitutional right. In the instant case, the NARCOM agents were admittedly not armed with a warrant of arrest. To legitimize the warrantless search and seizure of accused-appellants bag, accused-appellant must have been validly arrested under Section 5 of Rule 113 which provides inter alia: 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; xxx xxx xxx. Accused-appellant Aruta cannot be said to be committing a crime. Neither was she about to commit one nor had she just committed a crime. Accused-appellant was merely crossing the street and was not acting in any manner that would engender a reasonable ground for the NARCOM agents to suspect and conclude that she was committing a crime. It was only when the informant pointed to accused-appellant and identified her to the agents as the carrier of the marijuana that she was singled out as the suspect. The NARCOM agents would not have apprehended accusedappellant were it not for the furtive finger of the informant because, as clearly illustrated by the evidence on record, there was no reason whatsoever for them to suspect that accused-appellant was committing a crime, except for the pointing finger of the informant. This the Court could neither sanction nor tolerate as it is a clear violation of the constitutional guarantee against unreasonable search and seizure. Neither was there any semblance of any compliance with the rigid requirements of probable cause and warrantless arrests. Consequently, there was no legal basis for the NARCOM agents to effect a warrantless search of accused-appellants bag, there being no probable cause and the accused-appellant not having been lawfully arrested. Stated otherwise, the arrest being incipiently illegal, it logically follows that the subsequent search was similarly illegal, it being not incidental to a lawful arrest. The constitutional guarantee against unreasonable search and seizure must perforce operate in favor of accused-appellant. As such, the articles seized could not be used as evidence against accused-appellant for these are fruits of a poisoned tree and, therefore, must be rejected, pursuant to Article III, Sec. 3(2) of the Constitution. Emphasis is to be laid on the fact that the law requires that the search be incidental to a lawful arrest, in order that the search itself may likewise be considered legal. Therefore, it is beyond cavil that a lawful arrest must precede the search of a person and his belongings. Where a search is first undertaken, and an arrest effected based on evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law.[18] As previously discussed, the case in point is People v. Aminnudin[19] where, this Court observed that: x x x 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 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. In the absence of probable cause to effect a valid and legal warrantless arrest, the search and seizure of accused-appellants bag would also not be justified as seizure of evidence in plain view under the second exception. The marijuana was obviously not immediately apparent as shown by the fact that the NARCOM agents still had to request accused-appellant to open the bag to ascertain its contents. Neither would the search and seizure of accused-appellants bag be justified as a search of a moving vehicle. There was no moving vehicle to speak of in the instant case as accused-appellant was apprehended several minutes after alighting
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from the Victory Liner bus. In fact, she was accosted in the middle of the street and not while inside the vehicle. People v. Solayao,[20] applied the stop and frisk principle which has been adopted in Posadas v. Court of Appeals.[21] In said case, Solayao attempted to flee when he and his companions were accosted by government agents. In the instant case, there was no observable manifestation that could have aroused the suspicion of the NARCOM agents as to cause them to stop and frisk accused-appellant. To reiterate, accused-appellant was merely crossing the street when apprehended. Unlike in the abovementioned cases, accused-appellant never attempted to flee from the NARCOM agents when the latter identified themselves as such. Clearly, this is another indication of the paucity of probable cause that would sufficiently provoke a suspicion that accused-appellant was committing a crime. The warrantless search and seizure could not likewise be categorized under exigent and emergency circumstances, as applied in People v. De Gracia.[22] In said case, there were intelligence reports that the building was being used as headquarters by the RAM during a coup detat. A surveillance team was fired at by a group of armed men coming out of the building and the occupants of said building refused to open the door despite repeated requests. There were large quantities of explosives and ammunitions inside the building. Nearby courts were closed and general chaos and disorder prevailed. The existing circumstances sufficiently showed that a crime was being committed. In short, there was probable cause to effect a warrantless search of the building. The same could not be said in the instant case. The only other exception that could possibly legitimize the warrantless search and seizure would be consent given by the accused-appellant to the warrantless search as to amount to a waiverof her constitutional right. The Solicitor General argues that accused-appellant voluntarily submitted herself to search and inspection citing People v. Malasugui[23] where this Court ruled: When one voluntarily submits to a search or consents to have it made on his person or premises, he is precluded from complaining later thereof. (Cooley, Constitutional Limitations, 8th ed., [V]ol. I, p. 631.) The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly. In support of said argument, the Solicitor General cited the testimony of Lt. Abello, thus: Q When this informant by the name of alias Benjie pointed to Aling Rosa, what happened after that? A We followed her and introduced ourselves as NARCOM agents and confronted her with our informant and asked her what she was carrying and if we can see the bag she was carrying. Q What was her reaction? A She gave her bag to me. Q So what happened after she gave the bag to you? A I opened it and found out plastic bags of marijuana inside.[24] This Court cannot agree with the Solicitor Generals contention for the Malasugui case is inapplicable to the instant case. In said case, there was probable cause for the warrantless arrest thereby making the warrantless search effected immediately thereafter equally lawful.[25] On the contrary, the most essential element of probable cause, as expounded above in detail, is wanting in the instant case making the warrantless arrest unjustified and illegal. Accordingly, the search which accompanied the warrantless arrest was likewise unjustified and illegal. Thus, all the articles seized from the accused-appellant could not be used as evidence against her.

Aside from the inapplicability of the abovecited case, the act of herein accusedappellant in handing over her bag to the NARCOM agents could not be construed as voluntary submission or an implied acquiescence to the unreasonable search. The instant case is similar to People v. Encinada,[26] where this Court held: [T]he Republics counsel avers that appellant voluntarily handed the chairs containing the package of marijuana to the arresting officer and thus effectively waived his right against the warrantless search. This he gleaned from Bolonias testimony. Q: After Roel Encinada alighted from the motor tricycle, what happened next? A: I requested to him to see his chairs that he carried. Q: Are you referring to the two plastic chairs? A: Yes, sir. Q: By the way, when Roel Encinada agreed to allow you to examine the two chairs that he carried, what did you do next? A: I examined the chairs and I noticed that something inside in between the two chairs. We are not convinced. While in principle we agree that consent will validate an otherwise illegal search, we believe that appellant -- based on the transcript quoted above -did not voluntarily consent to Bolonias search of his belongings. Appellants silence should not be lightly taken as consent to such search. The implied acquiscence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee. Furthermore, considering that the search was conducted irregularly, i.e., without a warrant, we cannot appreciate consent based merely on the presumption of regularity of the performance of duty.(Emphasis supplied) Thus, accused-appellants lack of objection to the search is not tantamount to a waiver of her constitutional rights or a voluntary submission to the warrantless search. As this Court held inPeople v. Barros:[27] x x x [T]he accused is not to be presumed to have waived the unlawful search conducted on the occasion of his warrantless arrest simply because he failed to objectx x x. To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such right; and lastly, that said person had an actual intention to relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 698). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia v. Locsin (supra): xxx xxx xxx x x x 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. (Citation omitted). We apply the rule that: courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights.[28] (Emphasis supplied) To repeat, to constitute a waiver, there should be an actual intention to relinquish the right. As clearly illustrated in People v. Omaweng,[29] where prosecution witness Joseph Layong testified thus:
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PROSECUTOR AYOCHOK: QWhen you and David Fomocod saw the travelling bag, what did you do? A When we saw that travelling bag, we asked the driver if we could see the contents. QAnd what did or what was the reply of the driver, if there was any? AHe said you can see the contents but those are only clothings (sic). QWhen he said that, what did you do? AWe asked him if we could open and see it. QWhen you said that, what did he tell you? AHe said you can see it. QAnd when he said you can see and open it, what did you do? AWhen I went inside and opened the bag, I saw that it was not clothings (sic) that was contained in the bag. QAnd when you saw that it was not clothings (sic), what did you do? AWhen I saw that the contents were not clothes, I took some of the contents and showed it to my companion Fomocod and when Fomocod smelled it, he said it was marijuana.(Emphasis supplied) In the above-mentioned case, accused was not subjected to any search which may be stigmatized as a violation of his Constitutional right against unreasonable searches and seizures. If one had been made, this Court would be the first to condemn it as the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the Court. He willingly gave prior consent to the search and voluntarily agreed to have it conducted on his vehicle and traveling bag, which is not the case with Aruta. In an attempt to further justify the warrantless search, the Solicitor General next argues that the police officers would have encountered difficulty in securing a search warrant as it could be secured only if accused-appellants name was known, the vehicle identified and the date of its arrival certain, as in the Aminnudin case where the arresting officers had forty-eight hours within which to act. This argument is untenable. Article IV, Section 3 of the Constitution provides: x x x [N]o search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, 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. (Italics supplied) Search warrants to be valid must particularly describe the place to be searched and the persons or things to be seized. The purpose of this rule is to limit the things to be seized to those and only those, particularly described in the warrant so as 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.[30] Had the NARCOM agents only applied for a search warrant, they could have secured one without too much difficulty, contrary to the assertions of the Solicitor General. The person intended to be searched has been particularized and the thing to be seized specified. The time was also sufficiently ascertained to be in the afternoon of December 14, 1988. Aling Rosa turned out to be accused-appellant and the thing to be seized was marijuana. The vehicle was identified to be a Victory Liner bus. In fact, the NARCOM agents purposely positioned themselves near the spot where Victory Liner buses normally unload their passengers. Assuming that the NARCOM agents failed to particularize the vehicle, this would not in any way hinder them from securing a search warrant. The above particulars would have already sufficed. In any case, this Court has held that the police should particularly

describe the place to be searched and the person or things to be seized, wherever and whenever it is feasible.[31] (Emphasis supplied) While it may be argued that by entering a plea during arraignment and by actively participating in the trial, accused-appellant may be deemed to have waived objections to the illegality of the warrantless search and to the inadmissibility of the evidence obtained thereby, the same may not apply in the instant case for the following reasons: 1. The waiver would only apply to objections pertaining to the illegality of the arrest as her plea of not guilty and participation in the trial are indications of her voluntary submission to the courts jurisdiction.[32] The plea and active participation in the trial would not cure the illegality of the search and transform the inadmissible evidence into objects of proof. The waiver simply does not extend this far. 2. Granting that evidence obtained through a warrantless search becomes admissible upon failure to object thereto during the trial of the case, records show that accused-appellant filed a Demurrer to Evidence and objected and opposed the prosecutions Formal Offer of Evidence. It is apropos to quote the case of People v. Barros,[33] which stated: It might be supposed that the non-admissibility of evidence secured through an invalid warrantless arrest or a warrantless search and seizure may be waived by an accused person. The a priori argument is that the invalidity of an unjustified warrantless arrest, or an arrest effected with a defective warrant of arrest may be waived by applying for and posting of bail for provisional liberty, so as to estop an accused from questioning the legality or constitutionality of his detention or the failure to accord him a preliminary investigation. We do not believe, however, that waiver of the latter necessarily constitutes, or carries with it, waiver of the former-an argument that the Solicitor General appears to be making impliedly. Waiver of the non-admissibility of the fruits of an invalid warrantless arrest and of a warrantless search and seizure is not casually to be presumed, if the constitutional right against unlawful searches and seizures is to retain its vitality for the protection of our people. In the case at bar, defense counsel had expressly objected on constitutional grounds to the admission of the carton box and the four (4) kilos of marijuana when these were formally offered in evidence by the prosecution. We consider that appellants objection to the admission of such evidence was made clearly and seasonably and that, under the circumstances, no intent to waive his rights under the premises can be reasonably inferred from his conduct before or during the trial.(Emphasis supplied) In fine, there was really no excuse for the NARCOM agents not to procure a search warrant considering that they had more than twenty-four hours to do so. Obviously, this is again an instance of seizure of the fruit of the poisonous tree, hence illegal and inadmissible subsequently in evidence. The exclusion of such evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizure. The nonexclusionary rule is contrary to the letter and spirit of the prohibition against unreasonable searches and seizures.[34] While conceding that the officer making the unlawful search and seizure may be held criminally and civilly liable, the Stonehill case observed that most jurisdictions have realized that the exclusionary rule is the only practical means of enforcing the constitutional injunction against abuse. This approach is based on the justification made by Judge Learned Hand that only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong, will the wrong be repressed.[35]
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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.[36] 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.[37] WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch 73, Olongapo City, is hereby REVERSED and SET ASIDE. For lack of evidence to establish her guilt beyond reasonable doubt, accused-appellant ROSA ARUTA Y MENGUIN is hereby ACQUITTED and ordered RELEASED from confinement unless she is being held for some other legal grounds. No costs. SO ORDERED. 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, accusedappellant 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
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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, accusedappellant 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 accusedappellants. 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
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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 defense 28 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." 35If 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.
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As early as 1910, this Court has examined the conduct of law enforcers while apprehending the accused caught inflagrante 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, 66the 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 coprincipal. 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. 70Entrapment, 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,
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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 commonmodus 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.1wphi1.nt 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, 95or 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? xxx xxx xxx 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?
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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. xxx xxx xxx 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? xxx xxx xxx 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:
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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
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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 hand 125 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, co