[G.R. No. 119000.

July 28, 1997]

ROSA

UY, petitioner, vs.

COURT
APPEALS and PEOPLE
OF
PHILIPPINES, respondents.

OF
THE

DECISION
BELLOSILLO, J.:
This is an appeal by certiorari from the decision
of respondent Court of Appeals [1] which affirmed in
toto the decision of the Regional Trial Court of Manila,
Br. 32,[2] finding the accused ROSA UY guilty of
violating B.P. Blg. 22 in Crim. Cases Nos. 84-32335 to
84-32340, inclusive, and acquitting her of estafa
under Art. 315, par. 2 (a), of the Revised Penal Code
in Crim. Case No. 84-32334.
Rosa Uy was employed as an accountant in Don
Tim Shipping Company owned by the husband of
complaining witness Consolacion Leong. During
Rosas employment she was regarded by the Leongs
as an efficient and hardworking employee. On 15
March 1982, a few months before she was to give
birth, Rosa resigned. In the meantime, she helped
her husband manage their lumber business. The
friendly relations between Rosa and Consolacion
continued. The two later agreed to form a
partnership with Consolacion to contribute additional
capital for the expansion of Rosas lumber business
and the latter as industrial partner. Various sums of
money amounting to P500,000.00 were claimed to
have been given by Consolacion for the business;
however, because of the trust they had for each
other, no receipt was ever issued.
Thereafter a lumber store with warehouse was
constructed in Bulacan, Bulacan, with the funds
contributed by Consolacion evidenced by various
receipts. But, unfortunately, the friendship between
Consolacion and Rosa turned sour when the
partnership documents were never processed. As a
result, Consolacion asked for the return of her
investment but the checks issued by Rosa for the
purpose were dishonored for insufficiency of funds.

The preceding events prompted Consolacion to

file a complaint for estafa and for violation of the
Bouncing Checks Law before the Regional Trial Court
of Manila.
On 10 December 1984 an Information
for estafa[3] and several other Informations [4] for
violation of B.P. Blg. 22 were filed against
petitioner. The
offenses
were
subsequently
consolidated and tried jointly.
Through Consolacion Leong and Alexander D.
Bangit the prosecution tried to establish that
petitioner Rosa Uy employed deceit in obtaining the
amount of P500,000.00 from complainant with
respect to Crim. Case No. 84-32334. As regards Crim.
Cases Nos. 84-32335 to 84-32340, Alexander D.
Bangit, manager of the Commercial Bank of Manila,
Malabon Branch, where Rosa Uy maintained an
account, testified on the following transactions with
respect to the six (6) checks referred to in Crim.
Cases Nos. 84-32335 to 84-32840 which were
dishonored:

(Exh. F)
(4) 068601 16
December
Insufficient Fund

1983 Drawn

Against

(DAIF)/Payment Stopped
(Exh. E)
(5) 043122 3 January 1984 Drawn Against Insufficient
Fund
(DAIF)/Payment Stopped
(Exh. A)
(6) 068660 24
January
Insufficient Fund

1984 Drawn

Against

(DAIF)/Payment Stopped
(Exh. I)

CHECK
NO. DATE PRESENTED REASON
DISHONOR
(1) 068604 16
December
Insufficient Fund

FOR

1983 Drawn

Against

1983 Drawn

Against

(DAIF)/Payment Stopped
(Exh. G)
(2) 068605 16
December
Insufficient Fund

For her part, petitioner and her witnesses

Fernando Abad and Antonio Sy maintained that no
misrepresentation was committed and that the funds
were utilized to construct the building in Bulacan,
Bulacan. With respect to the issuance of the subject
checks, petitioner did not deny their existence but
averred that these were issued to evidence the
investment of complainant in the proposed
partnership between them.
After a joint trial, the Manila Regional Trial Court
acquitted petitioner of estafa but convicted her of the
charges under B.P. Bldg. 22.[5]

(DAIF)/Payment Stopped
On appeal, respondent appellate court affirmed
the decision of the trial court.

(Exh. H)
(3) 068603 16
December
Insufficient Fund
(DAIF)/Payment Stopped

1983 Drawn

Against

Petitioner now raises the following issues before

us in this petition for review on certiorari: (a) whether
the RTC of Manila acquired jurisdiction over the
violations of the Bouncing Checks Law, and (b)
whether the checks had been issued on account or
for value.[6]
As regards the first issue, petitioner contends
that the trial court never acquired jurisdiction over
the offenses under B.P. Blg. 22 and that assuming for
the sake of argument that she raised the matter of
jurisdiction only upon appeal to respondent appellate
court, still she cannot be estopped from questioning
the jurisdiction of the trial court.
It is a fundamental rule that for jurisdiction to
be acquired by courts in criminal cases the offense
should have been committed or any one of its
essential ingredients took place within the territorial
jurisdiction of the court. Territorial jurisdiction in
criminal cases is the territory where the court has
jurisdiction to take cognizance or to try the offense
allegedly committed therein by the accused. Thus, it
cannot take jurisdiction over a person charged with
an offense allegedly committed outside of that
limited territory.[7] Furthermore, the jurisdiction of a
court over the criminal case is determined by the
allegations in the complaint or information. [8] And
once it is so shown, the court may validly take
cognizance of the case. However, if the evidence
adduced during the trial show that the offense was
committed somewhere else, the court should dismiss
the action for want of jurisdiction.[9]
In the case at bar, the complaint for estafa and
the various charges under B.P. Blg. 22 were jointly
tried
before
the
Regional
Trial
Court
of
Manila. Petitioner challenges the jurisdiction of the
lower court stating that none of the essential
elements constitutive of violation of B.P. Blg. 22 was
shown to have been committed in the City of
Manila. She maintains that the evidence presented
established that (a) complainant was a resident of
Makati; (b) petitioner was a resident of Caloocan City;
(c) the place of business of the alleged partnership
was located in Malabon; (d) the drawee bank was
located in Malabon; and, (e) the checks were all
deposited for collection in Makati. Taken altogether,
petitioner concludes that the said evidence would

only show that none of the essential elements of B.P.

Blg. 22 occurred in Manila. Respondent People of the
Philippines through the Solicitor General on the one
hand argues that even if there is no showing of any
evidence that the essential ingredients took place or
the offense was committed in Manila, what is critical
is the fact that the court acquired jurisdiction over
the estafa case because the same is the principal or
main case and that the cases for violations of the
Bouncing Checks Law are merely incidental to
the estafa case.
We disagree with respondent. The crimes
of estafa and violation of the Bouncing Checks Law
are two (2) different offenses having different
elements and, necessarily, for a court to acquire
jurisdiction each of the essential ingredients of each
crime has to be satisfied.
In the crime of estafa, deceit and damage are
essential elements of the offense and have to be
established with satisfactory proof to warrant
conviction.[10] For violation of the Bouncing Checks
Law, on the other hand, the elements of deceit and
damage are neither essential nor required. Rather,
the elements of B.P. Blg. 22 are (a) the making,
drawing and issuance of any check to apply to
account or for value; (b) the maker, drawer or issuer
knows at the time of issuance that he does not have
sufficient funds in or credit with the drawee bank for
the payment of such check in full upon its
presentment; and, (c) the check is subsequently
dishonored by the drawee bank for insufficiency of
funds or credit or would have been dishonored for
the same reason had not the drawer, without valid
reason, ordered the bank to stop payment. [11] Hence,
it is incorrect for respondent People to conclude that
in as much as the Regional Trial Court of Manila
acquired jurisdiction over the estafa case then it also
acquired jurisdiction over the violations of B.P. Blg.
22. The crime of estafa and the violation of B.P. Blg.
22 have to be treated as separate offenses and
therefore the essential ingredients of each offense
have to be satisfied.
In this regard, the records clearly indicate that
business dealings were conducted in a restaurant in
Manila where sums of money were given to
petitioner; hence, the acquisition of jurisdiction by

the lower court over the estafa case. The various

charges for violation of B.P. Blg. 22 however are on a
different plain. There is no scintilla of evidence to
show that jurisdiction over the violation of B.P. Bldg.
22 had been acquired. On the contrary, all that the
evidence shows is that complainant is a resident of
Makati; that petitioner is a resident of Caloocan City;
that the principal place of business of the alleged
partnership is located in Malabon; that the drawee
bank is likewise located in Malabon and that all the
subject checks were deposited for collection in
Makati. Verily, no proof has been offered that the
checks were issued, delivered, dishonored or
knowledge of insufficiency of funds occurred in
Manila, which are essential elements necessary for
the Manila Court to acquire jurisdiction over the
offense.
Upon the contention of respondent that
knowledge on the part of the maker or drawer of the
check of the insufficiency of his funds is by itself a
continuing eventuality whether the accused be within
one territory or another, the same is still without
merit. It may be true that B.P. Blg. 22 is a transitory
or continuing offense and such being the case the
theory is that a person indicted with a transitory
offense may be validly tried in any jurisdiction where
the offense was in part committed. We note however
that knowledge by the maker or drawer of the fact
that he has no sufficient funds to cover the check or
of having sufficient funds is simultaneous to the
issuance of the instrument. We again find no iota of
proof on the records that at the time of issue,
petitioner or complainant was in Manila. As such,
there would be no basis in upholding the jurisdiction
of the trial court over the offense.
In an attempt to salvage the issue that the RTC
of Manila had jurisdiction over the violations of B.P.
Blg. 22, respondent relies on the doctrine of
jurisdiction by estoppel.Respondent posits that it
took some five (5) years of trial before petitioner
raised the issue of jurisdiction.
The Revised Rules on Criminal Procedure, under
Rule 117, Sec. 3, provides that the accused may
move to quash the complaint or information on any
of the following grounds: x x x (b) that the court
trying the case has no jurisdiction over the offense

charged or
over
the
person
of
the
accused. Moreover, under Sec. 8 of the same Rule it
is provided that the failure of the accused to assert
any ground of a motion to quash before he pleads to
the complaint or information, either because he did
not file a motion to quash or failed to allege the same
in said motion, shall be deemed a waiver of the
grounds of a motion to quash, except the grounds of
x x x lack of jurisdiction over the offense charged x x
x as provided for in paragraph x x x (b) x x x of
Section 3 of this Rule.[12]
After a careful perusal of the records, it is
crystal clear that petitioner timely questioned the
jurisdiction of the court in a memorandum [13] before
the Regional Trial Court and thereafter in succeeding
pleadings. On this finding alone, we cannot
countenance the inadvertence committed by the
court. Clearly, from the above-quoted law, we can
see that even if a party fails to file a motion to quash,
he may still question the jurisdiction of the court
later on. Moreover, these objections may be raised or
considered motu propio by the court at any stage of
the proceedings or on appeal.[14]
Assuming arguendo that there was a belated
attempt to question the jurisdiction of the court and
hence,
on
the
basis
of
the Tijam
v.
Sibonghanoy case[15] in which respondent seeks
refuge, the petitioner should be estopped. We
nonetheless
find
the
jurisprudence
of
the
Sibonghanoy case not in point.
In Calimlim v. Ramirez,[16] the Court held that
the ruling in the Sibonghanoy case is an exception to
the general rule that the lack of jurisdiction of a court
may be raised at any stage of the proceedings, even
on appeal. The Court stated further that Tijam v.
Sibonghanoy is an exceptional case because of the
presence of laches. The Court said:
A rule that had been settled by unquestioned
acceptance and upheld in decisions so numerous to
cite is that the jurisdiction of a court over the subject
matter of the action is a matter of law and may not
be conferred by consent or agreement of the
parties. The lack of jurisdiction of a court may be
raised at any stage of the proceedings, even on
appeal. This doctrine has been qualified by recent

pronouncements which stemmed principally from the

ruling in the cited case of Sibonghanoy. It is to be
regretted, however, that the holding in said case had
been applied to situations which were obviously not
contemplated therein. The exceptional circumstance
involved
in Sibonghanoy which
justified
the
departure from the accepted concept of nonwaivability of objection to jurisdiction has been
ignored and, instead a blanket doctrine had been
repeatedly upheld that rendered the supposed ruling
in Sibonhanoy not as the exception, but rather the
general rule, virtually overthrowing altogether the
time-honored principle that the issue of jurisdiction is
not lost by waiver or by estoppel.[17]
In Sibonghanoy, the defense of lack of
jurisdiction of the court that rendered the questioned
ruling was held to be barred by laches. It was ruled
that the lack of jurisdiction having been raised for the
first time in a motion to dismiss filed almost fifteen
(15) years after the questioned ruling had been
rendered, such a plea may no longer be raised for
being barred by laches. As defined in said case,
laches is failure or neglect for an unreasonable and
unexplained length of time, to do that which, by
exercising due diligence, could or should have been
done earlier; it is the negligence or omission to
assert a right within a reasonable time, warranting a
presumption that the party entitled to assert has
abandoned it or declined to assert it.[18]
The circumstances of the present case are very
different from Tijam v. Sibonghanoy. No judgment
has yet been rendered by the trial court in this
case. As a matter of fact, as soon as the accused
discovered the jurisdictional defect, she did not fail or
neglect to file the appropriate motion to
dismiss. They questioned the jurisdiction of the trial
court in a memorandum before the lower
court. Hence, finding the pivotal element of laches to
be absent, we hold that the ruling in Tijam v.
Sibonghanoy does
not
control
the
present
controversy. Instead, the general rule that the
question of jurisdiction of a court may be raised at
any stage of the proceedings must apply. Petitioner is
therefore
not estopped from
questioning
the
jurisdiction of the trial court.[19]

WHEREFORE, finding the Regional Trial Court

of Manila, Br. 32, to have no jurisdiction over Crim.
Case Nos. 84-32335 to 8432340, inclusive, the
assailed decision of respondent Court of Appeals
affirming the decision of the trial court dated 24
September
1991
is
REVERSED
and
SET
ASIDE, without prejudice to the filing of appropriate
charges against petitioner with the court of
competent jurisdiction when warranted.
SO ORDERED
Padilla, (Chairman), and Vitug, JJ., concur.
Kapunan, and Hermosisima, Jr., JJ., on leave.
[G.R. No. 116463. June 10, 2003]
REPUBLIC OF THE PHILIPPINES thru the
DEPARTMENT OF PUBLIC WORKS and
HIGHWAYS
(DPWH), petitioner, vs.
COURT
OF
APPEALS,
HON.
AMANDA VALERA-CABIGAO
in
her
capacity as Presiding Judge of the
Regional Trial Court, Branch 73,
Malabon, Metro Manila, and NAVOTAS
INDUSTRIAL
CORPORATION, respondents.
DECISION
CARPIO, J.:
The Case
Before this Court is a Petition for Review of the
Decision[1] of the Court of Appeals dated 18 July
1994, in CA-G.R. CV No. 33094.[2] The Court of
Appeals affirmed the Order of the Regional Trial Court
of Malabon (Malabon trial court) which denied the
motion of petitioner to consolidate Civil Case No.
1153-MN pending before it with Criminal Cases Nos.
16889-16900 filed with the Sandiganbayan. This
petition seeks to restrain permanently the Malabon
trial court from further hearing Civil Case No. 1153MN and to dismiss the case.

The Antecedent Facts

Private
respondent
Navotas
Industrial
Corporation (NIC) is a corporation engaged in
dredging operations throughout the Philippines. On
27 November 1985, then Public Works and Highways
Minister Jesus Hipolito requested former President
Ferdinand E. Marcos to release P800 million to
finance the immediate implementation of dredging,
flood control and related projects in Metro Manila,
Bulacan, Pampanga and Leyte. Of the total funds
approved for release, P615 million went to the
National Capital Region of the Ministry [3] of Public
Works and Highways (DPWH).
The DPWH allocated the P615 million to several
projects covered by twenty-one contracts. The DPWH
awarded
one
of
the
contractors,
NIC, P194,454,000.00 worth of dredging work in four
contracts for completion within 350 calendar days.
NIC alleges that the dredging work proceeded
pursuant to specific work schedules and plan
approved
by
DPWH. NIC
contends
that
it
accomplished 95.06 percent of the required total
volume of work or P184,847,970.00 worth of services
based on an alleged evaluation by DPWH. However,
NIC maintains that DPWH paid only 79.22 percent of
the
accomplished
work,
leaving
a
balance
of P30,799,676.00.
On 20 September 1988, NIC filed a complaint
for sum of money with the Malabon trial court
against the Republic of the Philippines, thru the
DPWH. The case, docketed as Civil Case No. 1153MN, was raffled to Branch 73 of the court, presided
by Judge Amanda Valera-Cabigao.
In its Answer, petitioner contends that NIC is
not entitled to the amount claimed. Soon after the
February 1986 Revolution, DPWH created a factfinding committee to audit the flood control projects
in the National Capital Region, Bulacan, Pampanga
and Leyte. Then DPWH Minister Rogaciano Mercado,
who replaced Minister Jesus Hipolito, ordered the
suspension of all projects funded by special budget
released or issued before the snap elections on

February 1986, pending inventory and evaluation of

these projects.
Petitioner contends that upon verification and
investigation, the DPWH fact-finding committee
discovered that the dredging contracts of NIC with
DPWH were null and void.Petitioner claims that NIC
worked on the project five or six months before the
award of the dredging contracts to NIC. The contracts
of NIC were awarded without any public bidding.
Moreover, DPWH discovered that NIC, through its
corporate officers, connived with some DPWH
officials in falsifying certain public documents to
make it appear that NIC had completed a major
portion of the project, when no dredging work was
actually performed. The scheme enabled NIC to
collect from DPWH P146,962,072.47 as payment for
work allegedly accomplished. Petitioner thus filed a
counterclaim for the return of the P146,962,072.47
plus interest and exemplary damages of P100
million.

No. 1153-MN with Criminal Cases Nos. 16889-16900

in the Sandiganbayan.Petitioner argued that the civil
case for collection and the criminal cases arose from
the same incidents and involve the same facts. Thus,
these cases should be consolidated as mandated by
Section 4(b) of Presidential Decree No. 1606, as
amended.
On 18 June 1993, the Malabon trial court issued
a Resolution denying petitioners Motion for
Consolidation. Thereafter, petitioner filed a Motion for
Reconsideration which the Malabon trial court denied
on 7 November 1993.
On 19 January 1994, petitioner filed a Petition
for Certiorari, Prohibition and Mandamus with the
Court of Appeals docketed as CA-G.R. CV No.
33094. In a Decision dated 18 July 1994, the Court of
Appeals dismissed the petition. On 12 September
1994, petitioner filed with the Court this petition for
review.

On 14 July 1986, the DPWH fact-finding

committee filed with the Office of the Tanodbayan [4] a
case for estafa thru falsification of public documents
and for violation of Republic Act No. 3019 against
former
Minister
Hipolito. Other
DPWH
officials[5] involved
in
awarding
the
dredging
contracts to NIC, as well as Cipriano Bautista,
[6]
president
of
NIC,
were
also
named
respondents. The charges[7] were for four counts
corresponding to the four contracts that DPWH
entered into with NIC. The case was docketed as TBP
Case No. 86-01163.

On 26 September 1994, the Court resolved to

issue the temporary restraining order prayed for by
petitioner. Consequently, the Malabon trial court
desisted from hearing further Civil Case No. 1153MN.

However, it was only on 17 June 1991 that

former Ombudsman Conrado Vasquez approved the
resolution of the Office of the Special Prosecutor
finding probable cause for estafa thru falsification of
public documents and for violation of Section 3 (e)
and (g)[8] of RA No. 3019. Subsequently, the
Ombudsman filed the corresponding Informations
with the First Division of the Sandiganbayan against
all the respondents in TBP Case No. 86-01163. The
cases were docketed as Criminal Cases Nos. 1688916900.

It is clear that in the same manner that the RTC

would have no jurisdiction relative to violations of
Republic Act Nos. 3019, as amended, and 1379,
neither could the Sandiganbayan acquire jurisdiction
over collection of sum of money, the latter not
involving recovery of civil liability arising from the
offense
charged. More
specifically,
the
said
Sandiganbayan would have no power whatsoever to
order the defendant in the civil case (the Republic of
the Philippines thru the DPWH) to pay the private
respondent the amount of P30,799,676.00 claimed
by the latter. One of the averred purposes then of
consolidation (to avoid multiplicity of suits) could not
be realized. A civil action would still have to be

On 14 April 1993, petitioner filed before the

Malabon trial court a Motion to Consolidate Civil Case

The Ruling of the Court of Appeals

In dismissing the petition for Certiorari,
Prohibition and Mandamus filed by petitioner, the
Court of Appeals ruled as follows:

instituted by the private respondent to recover the

amount allegedly due.
The Issues
I.
WHETHER THE PETITION WAS FILED
ON TIME.
II.
WHETHER THE COURT OF
APPEALS
ERRED
IN
NOT
ORDERING
THE
CONSOLIDATION OF CIVIL CASE
NO. 1153-MN WITH CRIMINAL
CASES NOS. 16889-16900 WITH
THE
SANDIGANBAYAN
AS
REQUIRED BY SECTION 4(B) OF
P.D. 1606.[9]
The Ruling of the Court

We do not agree.
NIC harps on the fact that the petition was sent
by registered mail only on 12 September 1994, when
the last day for filing was on 11 September
1994. NIC, however, overlooked one significant
fact. The last day for filing, 11 September 1994, fell
on a Sunday.
Based on Section 1,[10] Rule 22 of the Rules of
Court, and as applied in several cases,[11] where the
last day for doing any act required or permitted by
law falls on a Saturday, a Sunday, or a legal holiday
in the place where the court sits, the time shall not
run until the next working day. Thus, petitioner filed
on time its petition on 12 September 1994, the next
working day, following the last day for filing which
fell on a Sunday.
Second Issue: Consolidation of the Cases
The main issue before us is whether Civil Case
No. 1153-MN pending with the Malabon trial court
should be consolidated with Criminal Cases Nos.
16889-16900 filed with the Sandiganbayan.

The petition is devoid of merit.

First Issue: Timeliness of the filing of the
petition
We first resolve a minor issue raised by NIC
regarding the timeliness of the filing of this petition.
In its Comment, NIC seeks the dismissal of the
petition on the ground that it was not served on
time. Petitioner admittedly filed two motions for
extension of time, each for fifteen days. The last day
for filing the second motion for extension was on 11
September 1994. NIC, however, asserts that a copy
of the petition was sent by registered mail to its
counsel only on 12 September 1994 or a day after
the last day for filing.
NIC, believing that this petition was filed out of
time, now asks the Court to consider the instant
petition as not having been filed, making the
Resolution of the Court of Appeals final and
executory.

Petitioner argues that the civil case for

collection of sum of money and the criminal cases for
estafa thru falsification of public documents and for
violation of RA No. 3019 arose from the same
transaction and involve similar questions of fact and
law. Petitioner claims that all these cases pertain to
only one issue, that is, whether NIC performed
dredging
work.
Petitioner
argues
that
a
determination in the civil case that NIC performed
dredging work will entitle NIC to the balance of the
contract price. Similarly, petitioner claims that the
criminal cases also involve the same issue since
petitioner charges that the accused connived in
falsifying documents and in fraudulently collecting
payments for non-existing dredging work. In sum,
petitioner asserts that since the issues in all these
cases are the same, the parties will have to present
the same evidence. Therefore, the consolidation of
these cases is in order.
We do not agree.

Consolidation is a matter of discretion with the

court. Consolidation becomes a matter of right only
when the cases sought to be consolidated involve
similar questions of fact and law, provided certain
requirements are met. The purpose of consolidation
is to avoid multiplicity of suits, prevent delay, clear
congested dockets, simplify the work of the trial
court, and save unnecessary expense.[12]
We cannot order the consolidation of the civil
case for collection with the criminal cases for two
reasons. First, the Sandiganbayan has no jurisdiction
over the collection case.Second, the Rules of Court
do not allow the filing of a counterclaim or a thirdparty complaint in a criminal case.
First, the Sandiganbayan was created as a
special court to hear graft cases against government
officials of a particular salary grade for violations of
specific laws.[13] Presidential Decree No. 1606,
[14]
as amended by Republic
Act No. 8249,[15] outlines the Sandiganbayans
jurisdiction as follows:
Sec. 4. Jurisdiction. The Sandiganbayan shall exercise
exclusive original jurisdiction in all cases involving:
A. Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code,
where one or more of the accused are officials
occupying the following positions in the government,
whether in a permanent, acting or interim capacity,
at the time of the commission of the offense:
(1) Officials of the executive branch
occupying the positions of regional
director and higher, otherwise
classified as Grade '27' and higher,
of the Compensation and Position
Classification Act of 1989 (Republic
Act No. 6758), specifically including:
xxx

B. Other offenses or felonies whether simple or

complexed with other crimes committed by the
public officials and employees mentioned in
subsection a of this section in relation to their office.
C. Civil and criminal cases filed pursuant to and in
connection with Executive Order Nos. 1, 2, 14 and
14-A, issued in 1986.
In cases where none of the accused are occupying
positions corresponding to Salary Grade '27' or
higher, as prescribed in the said Republic Act No.
6758, or military and PNP officers mentioned above,
exclusive original jurisdiction thereof shall be vested
in the proper regional trial court, metropolitan trial
court, municipal trial court, and municipal circuit trial
court, as the case may be, pursuant to their
respective jurisdictions as provided in Batas
Pambansa Blg. 129, as amended.
The
Sandiganbayan
shall
exercise
exclusive
appellate
jurisdiction
over
final
judgments,
resolutions or order of regional trial courts whether in
the exercise of their own original jurisdiction or of
their appellate jurisdiction as herein provided.
xxx
In case private individuals are charged as coprincipals, accomplices or accessories with the public
officers or employees, including those employed in
government-owned or controlled corporations, they
shall be tried jointly with said public officers and
employees in the proper courts which shall exercise
exclusive jurisdiction over them.

of its claim. Thus, the avowed purpose of

consolidation which is to avoid multiplicity of suits
will not be achieved.
Petitioner invokes Naguiat v. Intermediate
Appellate Court[16] in claiming that a civil action not
arising from the offense charged may be
consolidated
with
the
criminal
action.Indeed, Naguiat allowed the consolidation of
the criminal case with a civil case arising ex
contractu.
In
consolidating
the
two
cases, Naguiat relied on Canos v. Peralta[17] where
the Court consolidated a civil action for the recovery
of wage differential with a criminal action for
violation of the Minimum Wage Law. Canos, however,
made an important qualification before a court may
order the consolidation of cases. Canos held that:
A court may order several actions pending before it
to be tried together where they arise from the same
act, event or transaction, involve the same or like
issues, and depend largely or substantially on the
same evidence, provided that the court has
jurisdiction over the cases to be consolidated x
x x. (Emphasis supplied)
Thus, an essential requisite of consolidation is
that the court must have jurisdiction over all the
cases
consolidated
before
it.
Since
the
Sandiganbayan does not have jurisdiction over the
collection case, the same cannot be consolidated
with the criminal cases even if these cases involve
similar questions of fact and law. Obviously,
consolidation of the collection case with the criminal
cases will be a useless and empty formality since the
Sandiganbayan, being devoid of jurisdiction over the
collection case, cannot act on it.

x x x.
The law does not include civil cases for
collection of sum of money among the cases falling
under the jurisdiction of the Sandiganbayan. If we
consolidate the collection case in the Malabon trial
court with the criminal cases, the Sandiganbayan will
have no jurisdiction to hear and decide the collection
case. Even if NIC proves it is entitled to payment, the
Sandiganbayan will have no jurisdiction to award any
money judgment to NIC. NIC will still have to file a
separate case in the regular court for the collection

Second, we cannot order the consolidation of

the civil action filed by NIC with the criminal cases in
the Sandiganbayan because the civil case amounts
to a counterclaim or a third-party complaint in a
criminal case. While NIC, as a corporate entity, is not
an accused in the criminal cases, a consolidation of
NICs collection case with the criminal cases will have
the same effect of a counterclaim or a third-party
complaint against petitioner and DPWH. In such case,
the rule against counterclaims and third-party

complaints in criminal cases may be applied by

analogy.
Section 1, Rule 111 of the 2000 Rules on
Criminal Procedure expressly requires the accused to
litigate his counterclaim separately from the criminal
action.
SECTION 1. Institution of criminal and civil actions.(a) xxx
No counterclaim, cross-claim or third-party
complaint may be filed by the accused in the
criminal case, but any cause of action which
could have been the subject thereof may be
litigated in a separate civil action. (Emphasis
supplied)
This paragraph was incorporated in the 2000 Rules of
Criminal Procedure to address the lacuna mentioned
in Cabaero v. Cantos[18] where the Court noted the
absence of clear-cut rules governing the prosecution
of impliedly instituted civil action and the necessary
consequences and implications thereof.[19] In the
same vein, the Court in Cabaero clarified that:
[T]he counterclaim of the accused cannot be tried
together with the criminal case because, as already
discussed, it will unnecessarily complicate and
confuse the criminal proceedings. Thus, the trial
court should confine itself to the criminal aspect and
the possible civil liability of the accused arising out of
the crime. The counterclaim (and cross-claim or third
party complaint, if any) should be set aside or
refused cognizance without prejudice to their filing in
separate proceedings at the proper time.
Thus, a counterclaim in a criminal case must be
litigated separately to avoid complication and
confusion in the resolution of the criminal cases. This
is the rationale behind Section 1 of Rule 111. The
same rationale applies to NICs collection case
against petitioner and DPWH. Thus, NICs collection
case must be litigated separately before the Malabon
trial court to avoid confusion in resolving the criminal
cases with the Sandiganbayan.

Petitioner lodged its own counterclaim to the

collection case filed with the Malabon trial court,
praying for the return of the payment DPWH made to
NIC arising from the dredging contracts. However,
petitioners counterclaim is deemed abandoned by
virtue of Section 4 of PD No. 1606, as amended.
[20]
The last paragraph of Section 4 of PD No. 1606, as
amended, provides that:
Any provision of law or Rules of Court to the contrary
notwithstanding, the criminal action and the
corresponding civil action for the recovery of civil
liability shall at all times be simultaneously instituted
with, and jointly determined in, the same proceeding
by the Sandiganbayan or the appropriate courts, the
filing of the criminal action being deemed to
necessarily carry with it the filing of the civil action,
and no right to reserve the filing of such civil action
separately from the criminal action shall be
recognized: Provided, however, That where the
civil
action
had
heretofore
been
filed
separately but judgment therein has not yet
been rendered, and the criminal case is
hereafter filed with the Sandiganbayan or the
appropriate court, said civil action shall be
transferred to the Sandiganbayan or the
appropriate court, as the case may be, for
consolidation and joint determination with the
criminal action, otherwise the separate civil
action shall be deemed abandoned. (Emphasis
supplied)
Petitioners counterclaim in the civil case
pending with the Malabon trial court for the return of
the amount DPWH paid NIC is an action to recover
civil liability ex delicto. However, this action to
recover civil liability ex delicto is by operation of law
included in the criminal cases filed with the
Sandiganbayan. By mandate of RA No. 8249, the
counterclaim filed earlier in the separate civil action
with the Malabon trial court shall be deemed
abandoned.
The only question left is whether NICs civil case
before the Malabon trial court for collection of sum of
money can proceed independently of the criminal
cases filed with the Sandiganbayan. NICs collection
case for unpaid services from its dredging contracts
with DPWH obviously does not fall under Articles 32,

33 or 34 (on Human Relations) of the Civil Code.

Neither does it fall under Article 2176 (on quasidelict) of the Civil Code. Under Section 3 of Rule 111,
civil actions falling under Articles 32, 33, 34 or 2176
may proceed independently and separately from the
criminal case. However, NIC cannot invoke any of
these articles.

must first be resolved before any civil action based

on
the
contract
can
proceed.
Only
the
Sandiganbayan has the jurisdiction to decide
whether the act of entering into such contract is a
crime, where the salary grade of one of the accused
is grade 27 or higher,[23] as in Criminal Cases Nos.
16889-16900 filed with the Sandiganbayan.

The only other possibility is for NICs civil action

to fall under Article 31 of the Civil Code which
provides:

Article 31 speaks of a civil action based on an

obligation not arising from the act x x x complained
of as a felony. This clearly means that the
obligation must arise from an act not
constituting a crime. In the instant case, the act
purporting to create the obligation is assailed as a
crime in itself. That act, which is prohibited by law, is
the entering into dredging contracts that are
manifestly and grossly disadvantageous to the
government.[24] A contract executed against the
provisions of prohibitory laws is void.[25] If the
dredging contracts are declared illegal, then no valid
obligation
can
arise
from
such
contracts. Consequently, no civil action based on
such contracts can proceed independently of the
criminal action.

Art. 31. When the civil action is based on an

obligation not arising from the act or omission
complained of as a felony, such civil action may
proceed independently of the criminal proceedings
and regardless of the result of the latter.
An example of a case falling under Article 31 is a civil
action to recover the proceeds of sale of goods
covered by a trust receipt. Such civil action can
proceed independently of the criminal action for
violation of the trust receipt law. [21] In such a case,
the validity of the contract, on which the civil action
is based, is not at issue. What is at issue is the
violation of an obligation arising from a valid contract
- the trust receipt.
However, when the civil action is based on a
purported contract that is assailed as illegal per se,
as when the execution of the contract is alleged to
violate the Anti-Graft and Corrupt Practices Act,
Article 31 does not apply. In such a situation, the
contract if proven illegal cannot create any valid
obligation that can be the basis of a cause of action
in a civil case. Under Article 1409[22] of the Civil Code,
a contract whose cause, object or purpose is contrary
to law, or a contract that is expressly prohibited or
declared void by law, is void from the very beginning.
No party to such void contract can claim any right
under such contract or enforce any of its provisions.
Under Section 3 (g) of the Anti-Graft and
Corrupt Practices Act, entering into a contract that is
manifestly and grossly disadvantageous to the
government is declared to be unlawful. If the act of
entering into the contract is assailed as a crime in
itself, then the issue of whether the contract is illegal

In contrast, where the civil action is based on a

contract that can remain valid even if its violation
may constitute a crime, the civil action can proceed
independently. Thus, in estafa thru violation of the
trust receipt law, the violation of the trust receipt
constitutes a crime. However, the trust receipt itself
remains valid, allowing a civil action based on the
trust receipt to proceed independently of the criminal
case.
Clearly, NICs civil case before the Malabon trial
court does not fall under Article 31 of the Civil
Code. This calls then for the application of the second
paragraph of Section 2 of Rule 111 which states that
if the criminal action is filed after the said civil action
has already been instituted, the latter shall be
suspended in whatever stage it may be found before
judgment on the merits. Consequently, the civil case
for collection pending in the Malabon trial court must
be suspended until after the termination of the
criminal cases filed with the Sandiganbayan.
The suspension of the civil case for collection of
sum of money will avoid the possibility of conflicting

decisions between the Sandiganbayan and the

Malabon trial court on the validity of NICs dredging
contracts. If the Sandiganbayan declares the
dredging contracts illegal and void ab initio, and such
declaration becomes final, then NICs civil case for
collection of sum of money will have no legal leg to
stand on. However, if the Sandiganbayan finds the
dredging contracts valid, then NICs collection case
before the Malabon trial court can then proceed to
trial.
WHEREFORE, the petition is DENIED and the
Decision of the Court of Appeals dated 18 July 1994
is AFFIRMED with MODIFICATION. The counterclaim of
petitioner in Civil Case No. 1153-MN pending with the
Regional Trial Court of Malabon, Branch 73, is
deemed abandoned. The Regional Trial Court of
Malabon, Branch 73, is ordered to suspend the trial
of Civil Case No. 1153-MN until the termination of
Criminal Cases Nos. 16889-16900 filed with the
Sandiganbayan.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, YnaresSantiago, and Azcuna, JJ., concur.
[G.R. No. 133917. February 19, 2001]
PEOPLE

OF
THE
PHILIPPINES, plaintiffappellee,
vs. NASARIO
MOLINA
y
MANAMAT @ BOBONG and GREGORIO
MULA y MALAGURA @ BOBOY, accusedappellants.

DECISION
YNARES-SANTIAGO, J.:
To sanction disrespect and disregard for the
Constitution in the name of protecting the society
from lawbreakers is to make the government itself
lawless and to subvert those values upon which our
ultimate freedom and liberty depend.[1]
For automatic review is the Decision [2] of the
Regional Trial Court of Davao City, Branch 17, in

Criminal Case No. 37,264-96, finding accusedappellants Nasario Molina y Manamat alias Bobong
and Gregorio Mula y Malagura alias Boboy, guilty
beyond reasonable doubt of violation of Section 8,
[3]
of the Dangerous Drugs Act of 1972 (Republic Act
No. 6425), as amended by Republic Act No. 7659,
[4]
and sentencing them to suffer the supreme penalty
of death.
The
reads:

information

against

accused-appellants

That on or about August 8, 1996, in the City of

Davao, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, in
conspiracy with each other, did then and there
willfully, unlawfully and feloniously was found in their
possession 946.9 grams of dried marijuana which are
prohibited.
CONTRARY TO LAW.[5]
Upon arraignment on September 4, 1996,
accused-appellants pleaded not guilty to the
accusation against them.[6] Trial ensued, wherein the
prosecution presented Police Superintendent Eriel
Mallorca, SPO1 Leonardo Y. Pamplona, Jr., and SPO1
Marino S. Paguidopon, Jr. as witnesses.
The antecedent facts are as follows:
Sometime in June 1996, SPO1 Marino
Paguidopon, then a member of the Philippine
National Police detailed at Precinct No. 3, Matina,
Davao City, received an information regarding the
presence of an alleged marijuana pusher in Davao
City.[7] The first time he came to see the said
marijuana pusher in person was during the first week
of July 1996. SPO1 Paguidopon was then with his
informer when a motorcycle passed by. His informer
pointed to the motorcycle driver, accused-appellant
Mula, as the pusher. As to accused-appellant Molina,
SPO1 Paguidopon had no occasion to see him before
the arrest.Moreover, the names and addresses of the
accused-appellants came to the knowledge of SPO1
Paguidopon only after they were arrested.[8]

At about 7:30 in the morning of August 8, 1996,

SPO1 Paguidopon received an information that the
alleged pusher will be passing at NHA, Ma-a, Davao
City any time that morning.[9] Consequently, at
around 8:00 A.M. of the same day, he called for
assistance at the PNP, Precinct No. 3, Matina, Davao
City, which immediately dispatched the team of
SPO4 Dionisio Cloribel (team leader), SPO2
Paguidopon (brother of SPO1 Marino Paguidopon),
and SPO1 Pamplona, to proceed to the house of SPO1
Marino Paguidopon where they would wait for the
alleged pusher to pass by.[10]
At around 9:30 in the morning of August 8,
1996, while the team were positioned in the house of
SPO1 Paguidopon, a trisikad carrying the accusedappellants passed by. At that instance, SPO1
Paguidopon pointed to the accused-appellants as the
pushers. Thereupon, the team boarded their vehicle
and overtook the trisikad.[11] SPO1 Paguidopon was
left in his house, thirty meters from where the
accused-appellants were accosted.[12]
The police officers then ordered the trisikad to
stop. At that point, accused-appellant Mula who was
holding a black bag handed the same to accusedappellant Molina. Subsequently, SPO1 Pamplona
introduced himself as a police officer and asked
accused-appellant Molina to open the bag. [13] Molina
replied, Boss, if possible we will settle this.[14] SPO1
Pamplona insisted on opening the bag, which
revealed dried marijuana leaves inside. Thereafter,
accused-appellants Mula and Molina were handcuffed
by the police officers.[15]
On December 6, 1996, accused-appellants,
through counsel, jointly filed a Demurrer to Evidence,
contending that the marijuana allegedly seized from
them is inadmissible as evidence for having been
obtained in violation of their constitutional right
against unreasonable searches and seizures. [16] The
demurrer was denied by the trial court.[17] A motion
for reconsideration was filed by accused-appellants,
but this was likewise denied. Accused-appellants
waived presentation of evidence and opted to file a
joint memorandum.

On April 25, 1997, the trial court rendered the

assailed decision,[18] the decretal portion of which
reads:
WHEREFORE, finding the evidence of the prosecution
alone without any evidence from both accused who
waived presentation of their own evidence through
their counsels, more than sufficient to prove the guilt
of both accused of the offense charged beyond
reasonable doubt, pursuant to Sec. 20, sub. par. 5 of
Republic Act 7659, accused NASARIO MOLINA and
GREGORIO MULA, are sentenced to suffer a SUPREME
PENALTY OF DEATH through lethal injection under
Republic Act 8176, to be effected and implemented
as therein provided for by law, in relation to Sec. 24
of Rep. Act 7659.
The Branch Clerk of Court of this court, is ordered to
immediately elevate the entire records of this case
with the Clerk of Court of the Supreme Court, Manila,
for the automatic review of their case by the
Supreme Court and its appropriate action as the case
may be.
SO ORDERED.[19]
Pursuant to Article 47 of the Revised Penal Code
and Rule 122, Section 10 of the Rules of Court, the
case was elevated to this Court on automatic
review. Accused-appellants contend:
I.
THAT THE MARIJUANA IS INADMISSIBLE IN
EVIDENCE FOR HAVING BEEN SEIZED IN
VIOLATION OF APPELLANTS CONSTITUTIONAL
RIGHTS AGAINST UNREASONABLE SEARCHES
AND SEIZURES;
II.
THAT ASSUMING IT IS ADMISSIBLE IN EVIDENCE,
THE GOVERNMENT HAS NOT OTHERWISE
PROVED THEIR GUILT BEYOND REASONABLE
DOUBT; AND
III.

THAT, FINALLY, ASSUMING THEIR GUILT HAS

BEEN PROVED BEYOND REASONABLE DOUBT,
THE IMPOSABLE PENALTY FOR VIOLATION OF
SEC. 8 OF RA No. 7659(sic), IN THE ABSENCE
OF ANY AGGRAVATING CIRCUMSTANCE, IS LIFE
IMPRISONMENT, NOT DEATH.[20]
The Solicitor General filed a Manifestation and
Motion (In Lieu of Brief), wherein he prayed for the
acquittal of both accused-appellants.
The fundamental law of the land mandates that
searches and seizures be carried out in a reasonable
fashion, that is, by virtue or on the strength of a
search warrant predicated upon the existence of a
probable cause. The pertinent provision of the
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.[21]
Complementary to the foregoing provision is
the exclusionary rule enshrined under Article III,
Section 3, paragraph 2, which bolsters and solidifies
the protection against unreasonable searches and
seizures.[22] Thus:
Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any
purpose in any proceeding.
Without this rule, the right to privacy would be
a form of words, valueless and undeserving of
mention in a perpetual charter of inestimable human
liberties; so too, without this rule, the freedom from
state invasions of privacy would be so ephemeral
and so neatly severed from its conceptual nexus with
the freedom from all brutish means of coercing

evidence as not to merit this Courts high regard as a

freedom implicit in the concept of ordered liberty. [23]
The
foregoing
constitutional
proscription,
however, is not without exceptions. Search and
seizure may be made without a warrant and the
evidence obtained therefrom may be admissible in
the following instances: (1) search incident to a
lawful arrest; (2) search of a moving motor vehicle;
(3) search in violation of customs laws; (4) seizure of
evidence in plain view; (5) when the accused himself
waives his right against unreasonable searches and
seizures;[24] and (6) stop and frisk situations (Terry
search).[25]
The first exception (search incidental to a lawful
arrest) includes a valid warrantless search and
seizure pursuant to an equally valid warrantless
arrest which must precede the 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.[26] As a rule, an arrest is
considered legitimate if effected with a valid warrant
of arrest. The Rules of Court, however, recognizes
permissible warrantless arrests. Thus, 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 (arrest in flagrante
delicto); (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 (arrest effected in hot pursuit); and (c)
when the person to be arrested is a prisoner who has
escaped from a penal establishment or a 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 (arrest of escaped prisoners).[27]
In the case at bar, the court a quo anchored its
judgment of conviction on a finding that the
warrantless arrest of accused-appellants, and the
subsequent search conducted by the peace officers,
are valid because accused-appellants were caught in
flagrante delicto in possession of prohibited drugs.
[28]
This brings us to the issue of whether or not the
warrantless arrest, search and seizure in the present

case fall within the recognized exceptions to the

warrant requirement.
In People v. Chua Ho San,[29] the Court held that
in cases of in flagrante delicto arrests, a peace officer
or a private person may, without a warrant, arrest a
person when, in his presence, the person to be
arrested has committed, is actually committing, or is
attempting to commit an offense. The arresting
officer, therefore, must have personal knowledge of
such fact or, as recent case law adverts to, personal
knowledge of facts or circumstances convincingly
indicative or constitutive of probable cause. As
discussed in People v. Doria,[30] probable cause
means 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
on the part of the peace officers making the arrest.
As applied to in flagrante delicto arrests, it is
settled that reliable information alone, absent any
overt act indicative of a felonious enterprise in the
presence and within the view of the arresting
officers, are not sufficient to constitute probable
cause
that
would
justify
an in
flagrante
delicto arrest. Thus, in People v. Aminnudin,[31] it was
held 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.
Likewise, in People v. Mengote,[32] the Court did
not consider eyes... darting from side to side ...
[while] holding ... [ones] abdomen, in a crowded
street at 11:30 in the morning, as overt acts and

circumstances sufficient to arouse suspicion and

indicative of probable cause. According to the Court,
[b]y no stretch of the imagination could it have been
inferred from these acts that an offense had just
been committed, or was actually being committed, or
was at least being attempted in [the arresting
officers] presence. So also, in People v. Encinada,
[33]
the Court ruled that no probable cause is
gleanable from the act of riding a motorela while
holding two plastic baby chairs.
Then, too, in Malacat v. Court of Appeals,[34] the
trial court concluded that petitioner was attempting
to commit a crime as he was standing at the corner
of Plaza Miranda and Quezon Boulevard with his eyes
moving very fast and looking at every person that
come (sic) nearer (sic) to them.[35] In declaring the
warrantless arrest therein illegal, the Court said:
Here, there could have been no valid in flagrante
delicto ... arrest preceding the search in light of the
lack of personal knowledge on the part of Yu, the
arresting officer, or an overt physical act, on the part
of petitioner, indicating that a crime had just been
committed, was being committed or was going to be
committed.[36]
It went on to state that Second, there was nothing in petitioners behavior or
conduct which could have reasonably elicited even
mere suspicion other than that his eyes were moving
very fast - an observation which leaves us
incredulous since Yu and his teammates were
nowhere near petitioner and it was already 6:30
p.m., thus presumably dusk. Petitioner and his
companions were merely standing at the corner and
were not creating any commotion or trouble...
Third, there was at all no ground, probable or
otherwise, to believe that petitioner was armed with
a deadly weapon. None was visible to Yu, for as he
admitted, the alleged grenade was discovered inside
the front waistline of petitioner, and from all
indications as to the distance between Yu and
petitioner, any telltale bulge, assuming that
petitioner was indeed hiding a grenade, could not
have been visible to Yu.[37]

Clearly, to constitute a valid in flagrante

delicto arrest, two requisites 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.[38]
In the case at bar, accused-appellants
manifested no outward indication that would justify
their arrest. In holding a bag on board a trisikad,
accused-appellants could not be said to be
committing, attempting to commit or have
committed a crime. It matters not that accusedappellant Molina responded Boss, if possible we will
settle this to the request of SPO1 Pamplona to open
the bag. Such response which allegedly reinforced
the suspicion of the arresting officers that accusedappellants were committing a crime, is an equivocal
statement which standing alone will not constitute
probable cause to effect an inflagrante delicto
arrest. Note that were it not for SPO1 Marino
Paguidopon (who did not participate in the arrest but
merely pointed accused-appellants to the arresting
officers), accused-appellants could not be the subject
of any suspicion, reasonable or otherwise.
While SPO1 Paguidopon claimed that he and his
informer conducted a surveillance of accusedappellant Mula, SPO1 Paguidopon, however, admitted
that he only learned Mulas name and address after
the arrest. What is more, it is doubtful if SPO1
Paguidopon indeed recognized accused-appellant
Mula. It is worthy to note that, before the arrest, he
was able to see Mula in person only once, pinpointed
to him by his informer while they were on the side of
the road. These circumstances could not have
afforded SPO1 Paguidopon a closer look at accusedappellant Mula, considering that the latter was then
driving a motorcycle when SPO1 Paguidopon caught
a glimpse of him. With respect to accused-appellant
Molina, SPO1 Paguidopon admitted that he had never
seen him before the arrest.
This belies the claim of SPO1 Pamplona that he
knew the name of accused-appellants even before
the arrest, to wit -

Q- When you said that certain Mula handed a

black bag to another person and how did
you know that it was Mula who handed the
black bag to another person?
A- Because I have already information from
Paguidopon, regarding Mula and Molina,
when they pass by through the street near
the residence of Paguidopon. He told that
the one who is big one that is Gregorio Mula
and the thin one is Nazario Molina[39]
The aforecited testimony of SPO1 Pamplona,
therefore, is entirely baseless. SPO1 Pamplona could
not have learned the name of accused-appellants
from SPO1 Paguipodon because Paguipodon himself,
who allegedly conducted the surveillance, was not
even aware of accused-appellants name and address
prior to the arrest.
Evidently, SPO1 Paguidopon, who acted as
informer of the arresting officers, more so the
arresting officers themselves, could not have been
certain of accused-appellants identity, and were,
from all indications, merely fishing for evidence at
the time of the arrest.
Compared to People v. Encinada, the arresting
officer in the said case knew appellant Encinada even
before the arrest because of the latters illegal
gambling activities, thus, lending at least a
semblance of validity on the arrest effected by the
peace officers. Nevertheless, the Court declared in
said case that the warrantless arrest and the
consequent search were illegal, holding that [t]he
prosecutions evidence did not show any suspicious
behavior when the appellant disembarked from the
ship or while he rode the motorela. No act or fact
demonstrating a felonious enterprise could be
ascribed to appellant under such bare circumstances.

considered no consent at all within the purview of the

constitutional guarantee.[41]
Withal, the Court holds that the arrest of
accused-appellants does not fall under the
exceptions allowed by the rules. Hence, the search
conducted
on
their
person
was
likewise
illegal. Consequently, the marijuana seized by the
peace officers could not be admitted as evidence
against accused-appellants, and the Court is thus,
left with no choice but to find in favor of accusedappellants.
While the Court strongly supports the campaign
of the government against drug addiction and
commends the efforts of our law-enforcement
officers towards this drive, all efforts for the
achievement of a drug-free society must not
encroach on the fundamental rights and liberties of
individuals as guaranteed in the Bill of Rights, which
protection extends even to the basest of criminals.
WHEREFORE, the Decision of the Regional Trial
Court of Davao City, Branch 17, in Criminal Case No.
37, 264-96, is REVERSED and SET ASIDE. For lack of
evidence to establish their guilt beyond reasonable
doubt,
accused-appellants
Nasario
Molina
y
Manamat alias Bobong
and
Gregorio
Mula
y
Malagura alias Boboy, are ACQUITTED and ordered
RELEASED from confinement unless they are validly
detained for other offenses. No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Panganiban, Quisumbing, Pardo,
Buena, Gonzaga-Reyes, De Leon, Jr., and SandovalGutierrez, JJ., concur.

and DINDO BOLONG y NARET, accusedappellants.

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]

[40]

Moreover, it could not be said that accusedappellants waived their right against unreasonable
searches and seizure. Implied acquiescence to the
search, if there was any, could not have been more
than mere passive conformity given under
intimidating or coercive circumstances and is thus

[G.R. No. 144037. September 26, 2003]

PEOPLE

OF
THE
PHILIPPINES, plaintiffappellee, vs. NOEL TUDTUD y PAYPA

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.

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 ofreclusion 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:

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:

1. Warrantless search incidental to a lawful arrest.

(Sec. 12, Rule 126 of the Rules of Court and
prevailing jurisprudence);

SEC. 5. Arrest without warrant; when lawful. A peace

officer or a private person may, without a warrant,
arrest a person:

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;

(a) When, in his presence, the person to be arrested

has committed, is actually committing, or is
attempting to commit an offense;

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 inPeople 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:

.
It is significant to note that the search in
question preceded the arrest. Recent jurisprudence
holds that the arrest must precede the search; the
process cannot be reversed.[71]Nevertheless, a search
substantially contemporaneous with an arrest can
precede the arrest if the police have probable cause
to make the arrest at the outset of the search. [72] The
question, therefore, is whether the police in this case
had probable cause to arrest appellants. Probable
cause has been defined as:
an actual belief or reasonable grounds of
suspicion. The grounds of suspicion are reasonable
when, in the absence of actual belief of the arresting
officers, the suspicion that the person to be arrested
is probably guilty of committing the offense, is based
on actual facts, i.e., supported by circumstances
sufficiently strong in themselves to create the
probable cause of guilt of the person to be
arrested. A reasonable suspicion therefore must be
founded on probable cause, coupled with good faith
of the peace officers making the arrest.[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.
[74]

In the leading case of People v. Burgos,

this
Court held that the officer arresting a person who has
just committed, is committing, or is about to commit
an offense must havepersonal 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.

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.

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]

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]

[78]

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.

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.

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).

Appellant insists that the mere fact of seeing a

person carrying a traveling bag and a carton box
should not elicit the slightest suspicion of the
commission of any crime since that is normal. But
precisely, it is in the ordinary nature of things that
drugs being illegally transported are necessarily
hidden in containers and concealed from view. Thus,
the officers could reasonably assume, and not merely
on a hollow suspicion since the informant was by
their side and had so informed them, that the drugs
were in appellants luggage. It would obviously have
been irresponsible, if now downright absurd under
the circumstances, to require the constable to adopt
a wait and see attitude at the risk of eventually
losing the quarry.

There is, however, another set of jurisprudence

that deems reliable information sufficient to justify a
search incident to a warrantless arrest under Section
5 (a), Rule 113, thus deviating from Burgos. To this
class of cases belong People v. Maspil, Jr.,[91] People v.
Bagista,[92] People v. Balingan,[93] People v. Lising,
[94]
People
v.
Montilla,[95] People
v.
Valdez,
[96]
and People v. Gonzales.[97] In these cases, the
arresting authorities were acting on information
regarding an offense but there were no overt acts or

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:

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. InMontilla, 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 coaccused. 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 wellsettled 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 on-the-spot

information. The urgency of the circumstances, an

element not present in this case, prevented the
arresting officer therein from obtaining a warrant.
Appellants in this case were neither performing
any overt act or acting in a suspicious manner that
would hint that a crime has been, was being, or was
about to be, committed. If the arresting officers
testimonies are to be believed, appellants were
merely helping each other carry a carton
box. Although appellant Tudtud did appear afraid and
perspiring,[104]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?
.
A Because of the
neighbor.[107]

information

of

his

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
anymore. Thats all.[108]

answer

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
knowledge.

is

also

hearsay,

not

of

personal

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 Anti-subversion Act, crimes against
public order as defined in the Revised Penal Code, as
amended, illegal possession of firearms and/or

ammunition and violations of the Dangerous Drugs

Act of 1972, as amended, shall no longer be raffled
and shall immediately be taken cognizance of and
acted upon by the Executive Judge of the Regional
Trial Court, Metropolitan Trial Court, and Municipal
Trial Court under whose jurisdiction the place to be
searched is located.
2. In the absence of the Executive Judge, the ViceExecutive
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 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 informationgathering 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.

Q When you asked him what is this? What

did he say?

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]

Q What did you say when you were asked

to open that carton box?

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.

A He said I would like to inspect what you

are carrying.[]

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 in People v. Aruta:
Unreasonable searches and seizures are the menace
against which the constitutional guarantees afford
full protection. While the power to search and seize
may at times be necessary to the public welfare, still
it may be exercised and the law enforced without
transgressing the constitutional rights of the citizens,
for the enforcement of no statute is of sufficient
importance to justify indifference to the basic
principles of government.
Those who are supposed to enforce the law are not
justified in disregarding the rights of the individual in
the name of order. Order is too high a price to pay for
the loss of liberty. As Justice Holmes declared: I think
it is less evil that some criminals escape than that
the government should play an ignoble part. It is

simply not allowed in free society to violate a law to

enforce another, especially if the law violated is the
Constitution itself.[128]
Thus, given a choice between letting suspected
criminals escape or letting the government play an
ignoble part, the answer, to this Court, is clear and
ineluctable.
WHEREFORE, the Decision of the Regional Trial
Court of Davao City is REVERSED. Appellants Noel
Tudtud y Paypa and Dindo Bolong y Naret are hereby
ACQUITTED for insufficiency of evidence. The
Director of the Bureau of Prisons is ordered to cause
the
immediate
release
of
appellants
from
confinement, unless they are being held for some
other lawful cause, and to report to this Court
compliance herewith within five (5) days from receipt
hereof.
SO ORDERED.

Bellosillo,
(Chairman),
Martinez, and Callejo, Sr., JJ., concur.

Austria-

Quisumbing, J., please see dissenting opinion.