TOPIC: Warrantless Searches and Seizures Flagrante
Delicto
[G.R. No. 148825. December 27, 2002]
PEOPLE OF THE PHILIPPINES, appellee, vs. SUSAN
CANTON, appellant.
FACTS: Appellant Susan Canton (hereafter SUSAN)
was charged before the Regional Trial Court of Pasay City
with the violation of Section 16 of Article III of the
Dangerous Drugs Act of 1972 (Republic Act No. 6425), as
amended, under an Information[1] whose accusatory portion
reads as follows:
That on February 12, 1998 at the Ninoy Aquino
International Airport, and within the jurisdiction of this
Honorable Court, the above named accused did then and
there willfully, unlawfully and feloniously has in her
possession NINE HUNDRED NINETY EIGHT POINT TWO
EIGHT HUNDRED ZERO NINE (998.2809) GRAMS of
methamphetamine hydrochloride, a regulated drug, without
the corresponding prescription or license.
CONTRARY TO LAW.
The case was docketed as Criminal Case No. 98-
0189 and raffled to Branch 110 of said court.
SUSAN entered a plea of not guilty upon her
arraignment.
At the trial, the prosecution presented as witnesses
Forensic Chemist Julieta Flores, lady frisker Mylene
Cabunoc, and SPO4 Victorio de los Reyes.
For its part, the defense presented SPO2 Jerome
Cause as its witness and had prosecution witness Mylene
Cabunoc recalled to be presented as hostile witness. It
opted not to let SUSAN take the witness stand.
The evidence for the prosecution established that on
12 February 1998, at about 1:30 p.m., SUSAN was at the
Ninoy Aquino International Airport (NAIA), being a
departing passenger bound for Saigon, Vietnam.[2] When
she passed through the metal detector booth, a beeping
sound was emitted. Consequently, Mylene Cabunoc, a
civilian employee of the National Action Committee on
Hijacking and Terrorism (NACHT) and the frisker on duty at
that time, called her attention, saying Excuse me maam,
can I search you?[3] Upon frisking SUSAN, Mylene felt
something bulging at her abdominal area. Mylene inserted
her hand under the skirt of SUSAN, pinched the package
several times and noticed that the package contained what
felt like rice granules.[4] When Mylene passed her hand, she
felt similar packages in front of SUSANs genital area and
thighs. She asked SUSAN to bring out the packages, but
the latter refused and said: Money, money only. Mylene
forthwith reported the matter to SPO4 Victorio de los
Reyes, her supervisor on duty.[5]
SPO4 De los Reyes instructed Mylene to call
Customs Examiner Lorna Jalac and bring SUSAN to a
comfort room for a thorough physical examination. Upon
further frisking in the ladies room, Mylene touched
something in front of SUSANs sex organ. She directed
SUSAN to remove her skirt, girdles and panty. SUSAN
obliged. Mylene and Lorna discovered three packages
individually wrapped and sealed in gray colored packing
tape, which SUSAN voluntarily handed to them. [6] The first
was taken from SUSANs abdominal area; the second, from
in front of her genital area; and the third, from her right
thigh.[7] Mylene turned over the packages to SPO4 De los
Reyes.[8] The latter forthwith informed his superior officer
Police Superintendent Daniel Santos about the
incident. Together with SUSAN, they brought the gray
plastic packs to the customs examination table, opened the
same and found that they contained white crystalline
substances[9] which, when submitted for laboratory
examination, yielded positive results for methamphetamine
hydrochloride or shabu, a regulated drug.[10]
For the defense, SPO2 Jerome Cause, an investigator of
the First Regional Aviation Office, testified that no
investigation was ever conducted on SUSAN.[11] However,
SUSAN signed a receipt of the following articles seized
from her: (1) three bags of methamphetamine
hydrochloride or shabu approximately 1,100 grams; (2) one
American passport bearing Number 700389994; (3) one
1
Continental Micronesia plane ticket with stock control
number 0414381077; and (4) two panty girdles.[12] He said
that he informed SUSAN of her constitutional rights but
admitted that she did not have a counsel when she signed
the receipt.[13] Yet he told her that she had the option to sign
or not to sign the receipt.[14]
DEFENDANTS CONTENTION:
For assigned errors nos. 1 and 2, SUSAN asserts that
the strip search conducted on her in the ladies room was
constitutionally infirmed because it was not incidental to an
arrest. The arrest could not be said to have been made
before the search because at the time of the strip search,
the arresting officers could not have known what was inside
the plastic containers hidden on her body, which were
wrapped and sealed with gray tape. At that point then, they
could not have determined whether SUSAN was actually
committing a crime. The strip search was therefore nothing
but a fishing expedition. Verily, it is erroneous to say that
she was caught flagrante delicto and that the warrantless
search was incidental to a lawful arrest.
For assigned error no. 3, SUSAN maintains that,
following the doctrine enunciated in Terry v. Ohio,[21] such
stop and frisk search should have been limited to the
patting of her outer garments in order to determine whether
she was armed or dangerous and therefore a threat to the
security of the aircraft.
For assigned error no. 4, SUSAN alleges that from
the moment frisker Mylene felt a package at her abdominal
area, started inquiring about the contents thereof, detained
her, and decided to submit her to a strip search in the
ladies room, she was under custodial investigation without
counsel, which was violative of Section 12, Article III of the
Constitution.
For assigned errors nos. 5 and 6, SUSAN assails the
propriety of the admission of the medical report executed
by Dr. Ma. Bernadette Arcena on the ground that it was
neither testified on nor offered in evidence.
Lastly, SUSAN questions the application of People v.
Johnson[22] because of its sweeping statement allowing
searches and seizures of departing passengers in airports
in view of the gravity of the safety interests involved. She
stresses that the pertinent case should have been Katz v.
United States,[23] which upholds the Fourth Amendment of
the United States of America that protects people and not
places.
ISSUE:
WON the search and seizures of the packages
violates the constitutional right of the accused
WON the arrest without warrant of the accused is
valid
HELD:
a) NO. The Terry search or the stop and frisk
situation refers to a case where a police officer
approaches a person who is acting suspiciously,
for purposes of investigating possibly criminal
behavior in line with the general interest of
effective crime prevention and detection. To
assure himself that the person with whom he is
dealing is not armed with a weapon that could
unexpectedly and fatally be used against him, he
could validly conduct a carefully limited search of
the outer clothing of such person to discover
weapons which might be used to assault him.[27]
In the present case, the search was made
pursuant to routine airport security procedure,
which is allowed under Section 9 of Republic Act
No. 6235 reading as follows:
SEC. 9. Every ticket issued to a passenger by the
airline or air carrier concerned shall contain
among others the following condition printed
thereon: Holder hereof and his hand-carried
luggage(s) are subject to search for , and seizure
of, prohibited materials or substances. Holder
refusing to be searched shall not be allowed to
board the aircraft, which shall constitute a part of
the contract between the passenger and the air
carrier.
This constitutes another exception to the
proscription against warrantless searches and
seizures. As admitted by SUSAN and shown in
Annex D of her Brief, the afore-quoted provision is
stated in the Notice to All Passengers located at
the final security checkpoint at the departure
lounge. From the said provision, it is clear that the
search, unlike in the Terry search, is not limited to
weapons.Passengers are also subject to search
for prohibited materials or substances.
In this case, after the metal detector alarmed
SUSAN consented to be frisked, which resulted in
the discovery of packages on her body. It was too
late in the day for her to refuse to be further
searched because the discovery of the packages
whose contents felt like rice granules, coupled by
her apprehensiveness and her obviously false
statement that the packages contained only
money, aroused the suspicion of the frisker that
SUSAN was hiding something illegal. It must be
repeated that R.A. No. 6235 authorizes search for
prohibited materials or substances. To limit the
action of the airport security personnel to simply
refusing her entry into the aircraft and sending her
home (as suggested by appellant), and thereby
depriving them of the ability and facility to act
accordingly, including to further search without
warrant, in light of such circumstances, would be
to sanction impotence and ineffectivity in law
enforcement, to the detriment of society.[28] Thus,
the strip search in the ladies room was justified
under the circumstances.
The case of People v. Johnson, which
involves similar facts and issues, finds application
to the present case. That case involves accused-
appellant Leila Johnson, who was also a departing
passenger bound for the United States via
Continental Airlines CS-912. Olivia Ramirez was
then the frisker on duty, whose task was to frisk
departing passengers, employees and crew to
check for weapons, bombs, prohibited drugs,
contraband goods and explosives. When Olivia
frisked Leila, the former felt something hard on the
latters abdominal area. Upon inquiry, Leila
explained that she needed to wear two panty
girdles, as she had just undergone an operation
as a result of an ectopic pregnancy. Not satisfied
with the explanation, Olivia reported the matter to
her superior, who then directed her to take Leila to
the nearest womens room for inspection. In the
comfort room, Leila was asked to bring out the
thing under her girdle. She acceded and brought
out three plastic packs which contained a total of
580.2 grams of methamphetamine hydrochloride
or shabu. This Court ruled that the packs of
methamphetamine hydrochloride seized during
the routine frisk at the airport was acquired
legitimately pursuant to airport security
procedures and are therefore admissible in
evidence against Leila. Corollarily, her subsequent
arrest, although likewise without warrant, was
justified, since it was effected upon the discovery
and recovery of shabu in her person flagrante
delicto. The Court held in this wise:
Persons may lose the protection of the
search and seizure clause by exposure of
their persons or property to the public in a
manner reflecting a lack of subjective
expectation of privacy, which expectation
society is prepared to recognize as
reasonable. Such recognition is implicit in
airport security procedures. With increased
concern over airplane hijacking and terrorism
has come increased security at the nations
airports. Passengers attempting to board an
aircraft routinely pass through metal
detectors; their carry-on baggage as well as
checked luggage are routinely subjected to
x-ray scans. Should these procedures
suggest the presence of suspicious objects,
2
physical searches are conducted to
determine what the objects are. There is little
question that such searches are reasonable,
given their minimal intrusiveness, the gravity
of the safety interests involved, and the
reduced privacy expectations associated
with airline travel. Indeed, travelers are often
notified through airport public address
systems, signs, and notices in their airline
tickets that they are subject to search and, if
any prohibited materials or substances are
found, such would be subject to
seizure. These announcements place
passengers on notice that ordinary
constitutional protections against warrantless
searches and seizures do not apply to
routine airport procedures.
b) YES. The appellant, having been caught flagrante
delicto, was lawfully arrested without a warrant.
Section 5, Rule 113 of the Rules of Court, as
amended, provides: (a) When, in his presence,
the person to be arrested has committed, is
actually committing, or is attempting to commit an
offense;
(b) When an offense has just been committed and
he has probable cause to believe based on
personal knowledge of facts or circumstances that
the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or is
temporarily confined while his case is pending, or
has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b)
above, the person arrested without a warrant shall
be forthwith delivered to the nearest police station
or jail and shall be proceeded against in
accordance with section 7 of Rule 112.
The present case falls under paragraph (a)
of the afore-quoted Section. The search
conducted on SUSAN resulted in the discovery
and recovery of three packages containing white
crystalline substances, which upon examination
yielded positive results for methamphetamine
hydrochloride or shabu. As discussed earlier, such
warrantless search and seizure were legal. Armed
with the knowledge that SUSAN was committing a
crime, the airport security personnel and police
authorities were duty-bound to arrest her. As held
in People v. Johnson, her subsequent arrest
without a warrant was justified, since it was
effected upon the discovery and recovery
of shabu in her person flagrante delicto.
TOPIC: Warrantless Searches and Seizures Flagrante
Delicto
[G.R. No. 99050. September 2, 1992.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v.
CONWAY B. OMAWENG, Accused-Appellant.
FACTS: Accused Conway B. Omaweng was originally
indicted for the violation of Section 4, Article II of Republic
Act No. 6425, otherwise known as the Dangerous Drugs
Act of 1972, as amended, in a criminal complaint filed with
the Municipal Trial Court of Bontoc, Mountain Province on
12 September 1988. 1 Upon his failure to submit counter-
affidavits despite the granting of an extension of time to do
so, the court declared that he had waived his right to a
preliminary investigation and, finding probable cause
against the accused, ordered the elevation of the case to
the proper court. 2
"In the morning of September 12, 1988, Joseph Layong, a
PC constable with the Mt. Province PC Command at
Bontoc, Mt. Province proceeded with other PC soldiers to
Barrio Dantay, Bontoc and, per instruction of their officer,
Capt. Eugene Martin, put up a checkpoint at the junction of
the roads, one going to Sagada and the other to Bontoc
(TSN, November 9, 1989, pp. 3-4). They stopped and
checked all vehicles that went through the checkpoint
(TSN, April 5, 1990, p. 12).
At about 9:15 A.M., Layong and his teammate, Constable
David Osborne Famocod (sic), saw and flagged down a
cream-colored Ford Fiera bearing Plate No. ABT-634
coming from the Bontoc Poblacion and headed towards
Baguio (TSN, November 9, 1989, pp. 4-5, 8). The vehicle
was driven by appellant and had no passengers (TSN,
November 9, 1989, pp. 4-5).
Layong and his companions asked permission to inspect
the vehicle and appellant acceded to the request. (TSN,
November 9, 1989, pp. 4-5). When they peered into the
rear of the vehicle, they saw a travelling bag which was
partially covered by the rim of a spare tire under the
passenger seat on the right side of the vehicle (TSN,
November 9, 1989, pp. 6, 10, 11)
Layong and his companions asked permission to see the
contents of the bag (TSN, November 9, 1989, p. 6).
Appellant consented to the request but told them that it only
contained some clothes (TSN, November 9, 1989, p. 6).
When Layong opened the bag, he found that it contained
forty-one (41) plastic packets of different sizes containing
pulverized substances (TSN, November 9, 1989, pp. 7, 9).
Layong gave a packet to his team leader, constable David
Osborne Fomocod, who, after sniffing the stuff concluded
that it was marijuana (TSN, November 9, 1989, p. 16).
The PC constables, together with appellant, boarded the
latters Ford Fiera and proceeded to the Bontoc poblacion
to report the incident to the PC Headquarters (TSN,
November 9, 1989, pp. 7-8) The prohibited drugs were
surrendered to the evidence custodian, Sgt. Angel Pokling
(TSN, November 9, 1989, pp. 7-8).
Major Carlos Figueroa, a PC Forensic Chemist at Camp
Dangwa, La Trinidad, Benguet, who has conducted more
than 2500 professional examinations of marijuana, shabu
and cocaine samples, conducted two chemistry
examinations of the substance contained in the plastic
packets taken from appellant and found them to be positive
for hashish or marijuana (TSN, October 24, 1990, pp. 3, 5-
81)."
ISSUE:
1) WON the conviction of the accused beyond
reasonable doubt is correct despite the fact that it
was not proven that the accused is the owner of
marijuana
2) WON the contraband subject of the instant case is
inadmissible in evidence for having been obtained
in violation of the constitutional right of the
accused against unreasonable search and
seizures
HELD:
1) YES. Anent the first assigned error, the accused
contends that the prosecution failed to prove that
he is the owner of the marijuana found inside the
travelling bag which he had in his vehicle, a Ford
Fiera Proof of ownership is immaterial. Accused
was prosecuted for the dispatching in transit or
transporting of prohibited drugs pursuant to
Section 4, Article II of R.A. No. 6425, as amended.
This section does not require that for one to be
liable for participating in any of the proscribed
transactions enumerated therein, he must be the
owner of the prohibited drug. It simply reads:
"SEC. 4. Sale, Administration, Delivery,
Distribution and Transportation of Prohibited
Drugs. The penalty of life imprisonment to
death and a fine ranging from twenty thousand to
thirty thousand pesos shall be imposed upon any
person who, unless authorized by law, shall sell,
administer, deliver, give away to another,
distribute, dispatch in transit or transport any
prohibited drug, or shall act as a broker in any of
such transactions. If the victim of the offense is a
3
minor, or should a prohibited drug involved in any
offense under this Section be the proximate cause
of the death of a victim thereof, the maximum
penalty herein provided shall be imposed."
The facts, as proven by the prosecution, establish
beyond cavil that the accused was caught in the
act of transporting the prohibited drug or, in other
words, in flagrante delicto. That he knew fully well
what he was doing is shown beyond moral
certainty by the following circumstances: (a) the
prohibited drug was found in a travelling bag, (b)
he is the owner of the said bag, (c) he concealed
the bag behind a spare tire, (d) he was travelling
alone, and (e) the Ford Fiera in which he loaded
the bag was under his absolute control, pursuant
to Section 4, Rule 133 of the Rules of Court (on
circumstantial evidence), the combination of all
these circumstances is such as to produce a
conviction beyond reasonable doubt. Such
circumstances, unrebutted by strong and
convincing evidence by the accused, even gave
rise to the presumption that he is the owner of the
prohibited drug.
2) NO.
The third assignment of error hardly deserves any
consideration Accused was not subjected to any
search which may be stigmatized as a violation of
his Constitutional right against unreasonable
searches and seizures. 14 If one had been made,
this Court would be the first to condemn it "as the
protection of the citizen and the maintenance of
his constitutional rights is one of the highest duties
and privileges of the Court." 15 He willingly gave
prior consent to the search and voluntarily agreed
to have it conducted on his vehicle and travelling
bag. Prosecution witness Joseph Layong testified
thus:
"PROSECUTOR AYOCHOK:
Q When you and David Fomocod saw the
travelling bag, what did you do?
A When we saw that travelling bag, we asked the
driver if we could see the contents.
Q And what did or what was the reply of the driver,
if there was any?
A He said you can see the contents but those are
only clothings (sic).
Q When he said that, what did you do?
A We asked him if we could open and see it.
Q When you said that, what did he tell you?
A He said you can see it.
Thus, the accused waived his right against
unreasonable searches and seizures As this Court
stated in People v. Malasugui: 17
". . . When one voluntarily submits to a search or
consents to have it made of (sic) his person or
premises, he is precluded from later complaining
thereof (Cooley, Constitutional Limitations, 8th ed.,
vol. I, page 631.) The right to be secure from
unreasonable search may, like every right, be
waived and such waiver may be made either
expressly or impliedly."
Since in the course of the valid search forty-one
(41) packages of drugs were found, it behooved
the officers to seize the same; no warrant was
necessary for such seizure. Besides, when said
packages were identified by the prosecution
witnesses and later on formally offered in
 evidence, the accused did not raise any objection
whatsoever.
TOPIC: Warrantless Searches and Seizures Flagrante
Delicto
[Lumagpas ako ng 3 pages dito sa digest na to sobrag
daming diniscuss ni SC dito sa case na to.]
[G.R. Nos. 136066-67. February 4, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
BINAD SY CHUA, accused-appellant.
FACTS:Accused-appellant Binad Sy Chua was
charged with violation of Section 16, Article III of R.A. 6425,
as amended by R.A. 7659, and for Illegal Possession of
ammunitions in two separate Informations which read as
follows:
Criminal Case No. 96-507[1]
That on or about the 21st day of September 1996, in the
City of Angeles, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously have in his
possession and under his control two (2) plastic bags
containing Methamphetamine Hydrochloride (SHABU)
weighing more or less two (2) kilos and one (1) small
plastic bag containing Methamphetamine Hydrocloride
weighing more or less fifteen (15) grams, which is a
regulated drug, without any authority whatsoever.
Criminal Case No. 96-513[2]
That on or about the 21st day of September 1996, in the
City of Angeles, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously have in his
possession and under his control twenty (20) pieces of
live .22 cal. ammunitions, without first having obtained a
license or permit to possess or carry the same.
Accused-appellant pleaded not guilty on
arraignment. The two cases were then jointly tried.
The prosecution presented three (3) witnesses, all
members of the police force of Angeles City. Their
testimonies can be synthesized as follows:
On September 21, 1996, at around 10:00 in the
evening, SPO2 Mario Nulud and PO2 Emmeraldo Nunag
received a report from their confidential informant that
accused-appellant was about to deliver drugs that night at
the Thunder Inn Hotel in Balibago, Angeles City. The
informer further reported that accused-appellant distributes
illegal drugs in different karaoke bars in Angeles City. On
the basis of this lead, the PNP Chief of Angeles City, Col.
Neopito Gutierrez, immediately formed a team of
operatives composed of Major Bernardino, Insp. Tullao,
Insp. Emmanuel Nunag, P02 Emmeraldo Nunag, SP01
Fernando Go, and some civilian assets, with SPO2 Mario
Nulud, as team investigator. The group of SPO2 Nulud,
PO2 Nunag and the civilian informer positioned themselves
across McArthur Highway near Bali Hai Restaurant,
fronting Thunder Inn Hotel. The other group acted as their
back up.
At around 11:45 in the evening, their informer pointed
to a car driven by accused-appellant which just arrived and
parked near the entrance of the Thunder Inn Hotel. After
accused-appellant alighted from the car carrying a sealed
Zest-O juice box, SPO2 Nulud and PO2 Nunag hurriedly
accosted him and introduced themselves as police officers.
As accused-appellant pulled out his wallet, a small
transparent plastic bag with a crystalline substance
protruded from his right back pocket. Forthwith, SPO2
Nulud subjected him to a body search which yielded twenty
(20) pieces of live .22 caliber firearm bullets from his left
back pocket. When SPO2 Nunag peeked into the contents
of the Zest-O box, he saw that it contained a crystalline
substance. SPO2 Nulud instantly confiscated the small
transparent plastic bag, the Zest-O juice box, the twenty
(20) pieces of .22 caliber firearm bullets and the car used
by accused-appellant. Afterwards, SPO2 Nulud and the
other police operatives who arrived at the scene brought
the confiscated items to the office of Col. Guttierez at the
PNP Headquarters in Camp Pepito, Angeles City.[3]
When Col. Gutierrez opened the sealed Zest-O juice box,
he found 2 big plastic bags containing crystalline
substances. The initial field test conducted by SPO2 Danilo
4
Cruz at the PNP Headquarters revealed that the siezed
items contained shabu.[4] Thereafter, SPO2 Nulud together
with accused-appellant brought these items for further
laboratory examination to the Crime Laboratory at Camp
Olivas, San Fernando, Pampanga. After due testing,
forensic chemist S/Insp. Daisy Babor concluded that the
crystalline substances yielded positive results for shabu.
The small plastic bag weighed 13.815 grams while the two
big plastic bags weighed 1.942 kilograms of shabu.
Accused-appellant maintains that the warrantless arrest
and search made by the police operatives was unlawful;
that in the light of the testimony of SPO2 Nulud that prior to
his arrest he has been under surveillance for two years,
there was therefore no compelling reason for the haste
within which the arresting officers sought to arrest and
search him without a warrant; that the police officers had
sufficient information about him and could have easily
arrested him. Accused-appellant further argues that since
his arrest was null an void, the drugs that were seized
should likewise be inadmissible in evidence since they
were obtained in violation of his constitutional rights against
unreasonable search and seizures and arrest.
ISSUE: WON the arrest of the accused-appellant is lawful
HELD: NO. Although the trial courts evaluation of the
credibility of witnesses and their testimonies is entitled to
great respect and will not be disturbed on appeal, however,
this rule is not a hard and fast one.
It is a time-honored rule that the assessment of the trial
court with regard to the credibility of witnesses deserves
the utmost respect, if not finality, for the reason that the trial
judge has the prerogative, denied to appellate judges, of
observing the demeanor of the declarants in the course of
their testimonies. The only exception is if there is a showing
that the trial judge overlooked, misunderstood, or
misapplied some fact or circumstance of weight and
substance that would have affected the case.[11]
In the case at bar, there appears on record some
facts of weight and substance that have been overlooked,
misapprehended, or misapplied by the trial court which
casts doubt on the guilt of accused-appellant. An appeal in
a criminal case opens the whole case for review and this
includes the review of the penalty and indemnity imposed
by the trial court.[12] We are clothed with ample authority to
review matters, even those not raised on appeal, if we find
that their consideration is necessary in arriving at a just
disposition of the case. Every circumstance in favor of the
accused shall be considered.[13] This is in keeping with the
constitutional mandate that every accused shall be
presumed innocent unless his guilt is proven beyond
reasonable doubt.
First, with respect to the warrantless arrest and
consequent search and seizure made upon accused-
appellant, the court a quo made the following findings:
Accused was searched and arrested while in possession of
regulated drugs (shabu). A crime was actually being
committed by the accused and he was caught in flagrante
delicto. Thus, the search made upon his personal effects x
x x allow a warrantless search incident to a lawful arrest. x
xxx
While it is true that the police officers were not armed with a
search warrant when the search was made over the
personal affects (sic) of the accused, however, under the
circumstances of the case, there was sufficient probable
cause for said officers to believe that accused was then
and there committing a crime.
xxxxxxxxx
In the present case, the police received information that the
accused will distribute illegal drugs that evening at the
Thunder Inn Hotel and its vicinities. The police officer had
to act quickly and there was no more time to secure a
search warrant. The search is valid being akin to a stop
and frisk.[14]
A thorough review of the evidence on record belies
the findings and conclusion of the trial court. It confused the
two different concepts of a search incidental to a lawful
arrest (in flagrante delicto) and of a stop-and-frisk.
In Malacat v. Court of Appeals,[15] we distinguished the
concepts of a stop-and-frisk and of a search incidental to a
lawful arrest, to wit:
At the outset, we note that the trial court confused the
concepts of a stop-and-frisk and of a search incidental to a
lawful arrest. These two types of warrantless searches
differ in terms of the requisite quantum of proof before they
may be validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent
arrest determines the validity of the incidental search,
the legality of the arrest is questioned in a large majority of
these cases, e.g., whether an arrest was merely used as a
pretext for conducting a search. In this instance, the law
requires that there first be arrest before a search can
be madethe process cannot be reversed. At bottom,
assuming a valid arrest, the arresting officer may search
the person of the arrestee and the area within which the
latter may reach for a weapon or for evidence to destroy,
and seize any money or property found which was used in
the commission of the crime, or the fruit of the crime, or
that which may be used as evidence, or which might
furnish the arrestee with the means of escaping or
committing violence.
xxxxxxxxx
We now proceed to the justification for and allowable scope
of a stop-and-frisk as a limited protective search of outer
clothing for weapons, as laid down in Terry, thus:
We merely hold today that where a police officer
observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may
be afoot and that the persons with whom he is dealing may
be armed and presently dangerous, where in the course
of investigating this behavior he identifies himself as a
policeman and makes reasonable inquiries, and where
nothing in the initial stages of the encounter serves to
dispel his reasonable fear for his own or others safety, he is
entitled for the protection of himself and others in the area
to conduct a carefully limited search of the outer clothing of
such persons in an attempt to discover weapons which
might be used to assault him. Such a search is a
reasonable search under the Fourth amendment.
Other notable points of Terry are that while probable cause
is not required to conduct a stop-and-frisk, it nevertheless
holds that mere suspicion or a hunch will not validate a
stop-and-frisk. A genuine reason must exist, in light of
the police officers experience and surrounding
conditions, to warrant the belief that the person
detained has weapons concealed about him. Finally, a
stop-and-frisk serves a two-fold interest: (1) the general
interest of effective crime prevention and detection, which
underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner,
approach a person for purposes of investigating possible
criminal behavior even without probable cause; and (2) the
more pressing interest of safety and self-preservation
which permit the police officer to take steps to assure
himself that the person with whom he deals is not armed
with a deadly weapon that could unexpectedly and fatally
be used against the police officer.[16] (Emphasis ours)
In the case at bar, neither the in flagrante delicto nor
the stop and frisk principles is applicable to justify the
warrantless arrest and consequent search and seizure
made by the police operatives on accused-appellant.
In in flagrante delicto arrests, the accused is
apprehended at the very moment he is committing or
attempting to commit or has just committed an offense in
the presence of the arresting officer. Emphasis should be
laid on the fact that the law requires that the search be
incidental to a lawful arrest. Therefore it is beyond cavil that
a lawful arrest must precede the search of a person and his
belongings.[17] Accordingly, for this exception to apply two
elements must concur: (1) the person to be arrested must
execute an overt act indicating that he has just committed,
is actually committing, or is attempting to commit a crime;
and (2) such overt act is done in the presence or within the
view of the arresting officer.[18]
We find the two aforementioned elements lacking in
the case at bar. The record reveals that when accused-
appellant arrived at the vicinity of Thunder Inn Hotel, he
merely parked his car along the McArthur Highway, alighted
from it and casually proceeded towards the entrance of the
Hotel clutching a sealed Zest-O juice box. Accused-
appellant did not act in a suspicious manner. For all intents
and purposes, there was no overt manifestation that
accused-appellant has just committed, is actually
committing, or is attempting to commit a crime.
5
However, notwithstanding the absence of any overt
act strongly manifesting a violation of the law, the group of
SPO2 Nulud hurriedly accosted[19] accused-appellant and
later on introduced themselves as police officers.
[20]
Accused-appellant was arrested before the alleged drop-
off of shabu was done. Probable cause in this case was
more imagined than real. Thus, there could have been
no in flagrante delicto arrest preceding the search, in light
of the lack of an overt physical act on the part of accused-
appellant that he had committed a crime, was committing a
crime or was going to commit a crime. As applied to in
flagrante delicto arrests, it has been held that reliable
information alone, absent any overt act indicative of a
felonious enterprise in the presence and within the view of
the arresting officers, is not sufficient to constitute probable
cause that would justify an in flagrante delicto arrest.
[21]
Hence, in People v. Aminudin,[22] we ruled that
the accused-appellant was not, at the moment of his
arrest, committing a crime nor was it shown that he
was about to do so or that he had just done so. What
he was doing was descending the gangplank of the M/V
Wilcon 9 and there was no outward indication that called
for his arrest. To all appearances, he was like any of the
other passengers innocently disembarking from the
vessel. It was only when the informer pointed to him as
the carrier of the marijuana that he suddenly became
suspect and so subject to apprehension (Emphasis
supplied).
The reliance of the prosecution in People v.
Tangliben[23] to justify the polices actions is misplaced. In
the said case, based on the information supplied by
informers, police officers conducted a surveillance at the
Victory Liner Terminal compound in San Fernando,
Pampanga against persons who may commit
misdemeanors and also on those who may be engaged in
the traffic of dangerous drugs. At 9:30 in the evening, the
policemen noticed a person carrying a red travelling bag
who was acting suspiciously. They confronted him and
requested him to open his bag but he refused. He acceded
later on when the policemen identified themselves. Inside
the bag were marijuana leaves wrapped in a plastic
wrapper. The police officers only knew of the activities
of Tangliben on the night of his arrest.
In the instant case, the apprehending policemen already
had prior knowledge from the very same informant of
accused-appellants activities. No less than SPO2 Mario
Nulud, the team leader of the arresting operatives, admitted
that their informant has been telling them about the
activities of accused-appellant for two years prior to his
actual arrest on September 21, 1996.
The police operatives cannot feign ignorance of the
alleged illegal activities of accused-appellant. Considering
that the identity, address and activities of the suspected
culprit was already ascertained two years previous to the
actual arrest, there was indeed no reason why the police
officers could not have obtained a judicial warrant before
arresting accused-appellant and searching his person.
Whatever information their civilian asset relayed to them
hours before accused-appellants arrest was not a product
of an on-the-spot tip which may excuse them from
obtaining a warrant of arrest. Accordingly, the arresting
teams contention that their arrest of accused-appellant was
a product of an on-the-spot tip is untenable.
In the same vein, there could be no valid stop-and-
frisk in this case. A stop-and-frisk was defined as the act of
a police officer to stop a citizen on the street, interrogate
him, and pat him for weapon(s)[25] or contraband. The police
officer should properly introduce himself and make initial
inquiries, approach and restrain a person who manifests
unusual and suspicious conduct, in order to check the
latters outer clothing for possibly concealed weapons.
[26]
The apprehending police officer must have a genuine
reason, in accordance with the police officers experience
and the surrounding conditions, to warrant the belief that
the person to be held has weapons (or contraband)
concealed about him.[27] It should therefore be emphasized
that a search and seizure should precede the arrest for this
principle to apply.[28]
This principle of stop-and-frisk search was invoked by
the Court in Manalili v. Court of Appeals.[29] In said case, the
policemen chanced upon the accused who had reddish
eyes, walking in a swaying manner, and who appeared to
be high on drugs. Thus, we upheld the validity of the
search as akin to a stop-and-frisk. In People v. Solayao,
[30]
we also found justifiable reason to stop-and-frisk the
accused after considering the following circumstances: the
drunken actuations of the accused and his companions, the
fact that his companions fled when they saw the policemen,
and the fact that the peace officers were precisely on an
intelligence mission to verify reports that armed persons
where roaming the vicinity.
The foregoing circumstances do not obtain in the
case at bar. There was no valid stop-and-frisk in the case of
accused-appellant. To reiterate, accused-appellant was first
arrested before the search and seizure of the alleged illegal
items found in his possession. The apprehending police
operative failed to make any initial inquiry into accused-
appellants business in the vicinity or the contents of the
Zest-O juice box he was carrying. The apprehending police
officers only introduced themselves when they already had
custody of accused-appellant. Besides, at the time of his
arrest, accused-appellant did not exhibit manifest unusual
and suspicious conduct reasonable enough to dispense
with the procedure outlined by jurisprudence and the law.
There was, therefore, no genuine reasonable ground for
the immediacy of accused-appellants arrest.
Obviously, the acts of the police operatives wholly
depended on the information given to them by their
confidential informant. Accordingly, before and during that
time of the arrest, the arresting officers had no personal
knowledge that accused-appellant had just committed, was
committing, or was about to commit a crime.
At any rate, even if the fact of delivery of the illegal
drugs actually occurred, accused-appellants warrantless
arrest and consequent search would still not be deemed a
valid stop-and frisk. For a valid stop-and-frisk the search
and seizure must precede the arrest, which is not so in this
case. Besides, as we have earlier emphasized, the
information about the illegal activities of accused-appellant
was not unknown to the apprehending officers. Hence, the
search and seizure of the prohibited drugs cannot be
deemed as a valid stop-and-frisk.
Neither can there be valid seizure in plain view on the
basis of the seized items found in accused-appellants
possession. First, there was no valid
intrusion. Second, the evidence, i.e., the plastic bags
found in the Zest-O juice box which contained
crystalline substances later on identified as
methamphetamine hydrochloride (shabu) and the 20
rounds of .22 caliber ammunition, were not
inadvertently discovered. The police officers first
arrested accused-appellant and intentionally searched
his person and peeked into the sealed Zest-O juice box
before they were able to see and later on ascertain that
the crystalline substance was shabu. There was no
clear showing that the sealed Zest-O juice box
accused-appellant carried contained prohibited drugs.
Neither were the small plastic bags which allegedly
contained crystalline substance and the 20 rounds of .
22 caliber ammunition visible. These prohibited
substances were not in plain view of the arresting
officers; hence, inadmissible for being the fruits of the
poisonous tree.
TOPIC: Warrantless Searches and Seizures Flagrante
Delicto
[G.R. No. 113447. October 9, 1997]
ALAIN MANALILI y DIZON, petitioner, vs. COURT OF
APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
FACTS:At about 2:10 oclock in the afternoon of April 11,
1988, policemen from the Anti-Narcotics Unit of the
Kalookan City Police Station were conducting a
surveillance along A. Mabini street, Kalookan City, in front
of the Kalookan City Cemetery. The policemen were Pat.
Romeo Espiritu and Pat. Anger Lumabas and a driver
named Arnold Enriquez was driving a Tamaraw vehicle
which was the official car of the Police Station of Kalookan
City. The surveillance was being made because of
6
information that drug addicts were roaming the area in front
of the Kalookan City Cemetery.
Upon reaching the Kalookan City Cemetery, the policemen
alighted from their vehicle. They then chanced upon a male
person in front of the cemetery who appeared high on
drugs. The male person was observed to have reddish
eyes and to be walking in a swaying manner. When this
male person tried to avoid the policemen, the latter
approached him and introduced themselves as police
officers. The policemen then asked the male person what
he was holding in his hands. The male person tried to
resist. Pat. Romeo Espiritu asked the male person if he
could see what said male person had in his hands. The
latter showed the wallet and allowed Pat. Romeo Espiritu to
examine the same. Pat. Espiritu took the wallet and
examined it. He found suspected crushed marijuana
residue inside. He kept the wallet and its marijuana
contents.
The male person was then brought to the Anti-Narcotics
Unit of the Kalookan City Police Headquarters and was
turned over to Cpl. Wilfredo Tamondong for
investigation. Pat. Espiritu also turned over to Cpl.
Tamondong the confiscated wallet and its suspected
marijuana contents. The man turned out to be the accused
ALAIN MANALILI y DIZON.
Upon receipt of the confiscated suspected marijuana
residue from Pat. Espiritu, Cpl. Tamondong wrapped the
same with a white sheet of paper on which he wrote
Evidence A 4/11/88 Alain Manalili. The white sheet of paper
was marked as Exhibit E-3. The residue was originally
wrapped in a smaller sheet of folded paper. (Exhibit E-4).
Cpl. Tamondong next prepared a referral slip addressed to
the NBI Forensic Chemistry Section requesting a chemical
analysis of the subject marijuana residue (Exhibit D). Cpl.
Tamondong thereafter prepared a Joint Affidavit of the
apprehending policemen (Exhibit A). Pat. Angel Lumabas
handcarried the referral slip (Exhibit D) to the National
Bureau of Investigation (NBI), including the subject
marijuana residue for chemical analysis. The signature of
Pat. Lumabas appears on the left bottom corner of Exhibit
D.
The Forensic Chemistry Section of the NBI received the
aforesaid referral slip and the subject marijuana residue at
7:40 oclock in the evening of April 11, 1988 as shown on
the stamped portion of Exhibit D.
It was NBI Aida Pascual who conducted the
microscopic and chemical examinations of the specimen
which she identified. (Exhibit E)[13] Mrs. Pascual referred to
the subject specimen as crushed marijuana leaves in her
Certification dated April 11, 1988 (Exhibit F).[14] These
crushed marijuana leaves gave positive results for
marijuana, according to the Certificate.
Mrs. Pascual also conducted a chromatographic
examination of the specimen. In this examination, she also
found that the crushed marijuana leaves gave positive
results for marijuana. She then prepared a Final Report of
her examinations (Exhibit G).
After conducting the examinations, Ms. Pascual placed the
specimen in a white letter-envelope and sealed it. (Exhibit
E). She then wrote identification notes on this letter-
envelope. (Exhibit E-1).
Pat. Lumabas carried the Certification marked as Exhibit F
from the NBI Forensic Chemistry Section to Cpl.
Tamondong. Upon receipt thereof, Cpl. Tamondong
prepared a referral slip addressed to the City Fiscal of
Kalookan City. (Exhibit C)
On rebuttal, Pat. Espiritu testified that appellant was not
riding a tricycle but was walking in front of the cemetery
when he was apprehended.[15]
On appeal, Respondent Court found no proof that the
decision of the trial court was based on speculations,
surmises or conjectures. On the alleged serious
discrepancies in the testimonies of the arresting officers,
the appellate court ruled that the said inconsistencies were
insubstantial to impair the essential veracity of the
narration. It further found petitioners contention -- that he
could not be convicted of illegal possession of marijuana
residue -- to be without merit, because the forensic chemist
reported that what she examined were marijuana leaves.

ISSUE: WON the search and arrest of the accused is valid
HELD: YES. Petitioner protests the admission of the
marijuana leaves found in his possession, contending that
they were products of an illegal search. The Solicitor
General, in his Comment, dated July 5, 1994, which was
adopted as memorandum for respondent, counters that the
inadmissibility of the marijuana leaves was waived because
petitioner never raised this issue in the proceedings below
nor did he object to their admissibility in evidence. He adds
that, even assuming arguendo that there was no waiver,
the search was legal because it was incidental to a
warrantless arrest under Section 5 (a), Rule 113 of the
Rules of Court.
We disagree with petitioner and hold that the search
was valid, being akin to a stop-and-frisk. In the landmark
case of Terry vs. Ohio,[18] a stop-and-frisk was defined as
the vernacular designation of the right of a police officer to
stop a citizen on the street, interrogate him, and pat him for
weapon(s):
x x x (W)here a police officer observes an unusual conduct
which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating
this behavior he identified himself as a policeman and
makes reasonable inquiries, and where nothing in the initial
stages of the encounter serves to dispel his reasonable
fear for his own or others safety, he is entitled for the
protection of himself and others in the area to conduct a
carefully limited search of the outer clothing of such
persons in an attempt to discover weapons which might be
used to assault him. Such a search is a reasonable search
under the Fourth Amendment, and any weapon seized may
properly be introduced in evidence against the person from
whom they were taken.[19]
In allowing such a search, the United States Supreme
Court held that the interest of effective crime prevention
and detection allows a police officer to approach a person,
in appropriate circumstances and manner, for purposes of
investigating possible criminal behavior even though there
is insufficient probable cause to make an actual arrest. This
was the legitimate investigative function which Officer
McFadden discharged in that case, when he approached
petitioner and his companion whom he observed to have
hovered alternately about a street corner for an extended
period of time, while not waiting for anyone; paused to
stare in the same store window roughly 24 times; and
conferred with a third person. It would have been sloppy
police work for an officer of 30 years experience to have
failed to investigate this behavior further.
In admitting in evidence two guns seized during the
stop-and-frisk, the US Supreme Court held that what
justified the limited search was the more immediate interest
of the police officer in taking steps to assure himself that
the person with whom he was dealing was not armed with
a weapon that could unexpectedly and fatally be used
against him.
It did not, however, abandon the rule that the police
must, whenever practicable, obtain advance judicial
approval of searches and seizures through the warrant
procedure, excused only by exigent circumstances.
In Philippine jurisprudence, the general rule is that a
search and seizure must be validated by a previously
secured judicial warrant; otherwise, such search and
seizure is unconstitutional and subject to challenge.
[20]
Section 2, Article III of the 1987 Constitution, gives this
guarantee:
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.
7
Any evidence obtained in violation of the mentioned
provision is legally inadmissible in evidence as a fruit of the
poisonous tree, falling under the exclusionary rule:
SEC. 3. x x x
(2) Any evidence obtained in violation of x x x the
preceding section shall be inadmissible for any purpose in
any proceeding.
This right, however, is not absolute.[21] The recent
case of People vs. Lacerna enumerated five recognized
exceptions to the rule against warrantless search and
seizure, viz.: (1) search incidental to a lawful arrest, (2)
search of moving vehicles, (3) seizure in plain view, (4)
customs search, and (5) waiver by the accused themselves
of their right against unreasonable search and seizure.
[22]
In People vs. Encinada,[23] the Court further explained
that [i]n these cases, the search and seizure may be made
only with probable cause as the essential
requirement. Although the term eludes exact definition,
probable cause for a search is, at best, defined as a
reasonable ground of suspicion, supported by
circumstances sufficiently strong in themselves to warrant a
cautious man in the belief that the person accused is guilty
of the offense with which he is charged; or the existence of
such facts and circumstances which could lead a
reasonably discreet and prudent man to believe that an
offense has been committed and that the item(s), article(s)
or object(s) sought in connection with said offense or
subject to seizure and destruction by law is in the place to
be searched.
Stop-and-frisk has already been adopted as another
exception to the general rule against a search without a
warrant. In Posadas vs. Court of Appeals ,[24] the Court held
that there are many instances where a search and seizure
can be effected without necessarily being preceded by an
arrest, one of which is stop-and-frisk. In said case,
members of the Integrated National Police of Davao
stopped petitioner, who was carrying a buri bag and acting
suspiciously. They found inside petitioners bag one .38-cal.
revolver with two rounds of live ammunition, two live
ammunitions for a .22-cal. gun and a tear gas grenade. In
upholding the legality of the search, the Court said that to
require the police officers to search the bag only after they
had obtained a search warrant might prove to be useless,
futile and much too late under the circumstances. In such a
situation, it was reasonable for a police officer to stop a
suspicious individual briefly in order to determine his
identity or to maintain the status quo while obtaining more
information, rather than to simply shrug his shoulders and
allow a crime to occur.
In the case at hand, Patrolman Espiritu and his
companions observed during their surveillance that
appellant had red eyes and was wobbling like a drunk
along the Caloocan City Cemetery, which according to
police information was a popular hangout of drug
addicts. From his experience as a member of the Anti-
Narcotics Unit of the Caloocan City Police, such suspicious
behavior was characteristic of drug addicts who were
high. The policemen therefore had sufficient reason to stop
petitioner to investigate if he was actually high on
drugs. During such investigation, they found marijuana in
petitioners possession:[25]
Furthermore, we concur with the Solicitor Generals
contention that petitioner effectively waived the
inadmissibility of any evidence illegally obtained when he
failed to raise this issue or to object thereto during the
trial. A valid waiver of a right, more particularly of the
constitutional right against unreasonable search, requires
the concurrence of the following requirements: (1) the right
to be waived existed; (2) the person waiving it had
knowledge, actual or constructive, thereof; and (3) he or
she had an actual intention to relinquish the right.
[26]
Otherwise, the Courts will indulge every reasonable
presumption against waiver of fundamental safeguards and
will not deduce acquiescence from the failure to exercise
this elementary right. In the present case, however,
petitioner is deemed to have waived such right for his
failure to raise its violation before the trial court. In petitions
under Rule 45, as distinguished from an ordinary appeal of
criminal cases where the whole case is opened for review,
the appeal is generally limited to the errors assigned by
petitioner. Issues not raised below cannot be pleaded for
the first time on appeal.[27]
TOPIC: Warrantless Searches and Seizures Flagrante
Delicto
G.R. No. 91107 June 19, 1991
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MIKAEL MALMSTEDT, *defendant-appellant.
FACTS: In an information dated 15 June 1989, accused-
appellant Mikael Malmstedt (hereinafter referred to as the
accused) was charged before the Regional Trial Court
(RTC) of La Trinidad, Benguet, Branch 10, in Criminal Case
No. 89-CR-0663, for violation of Section 4, Art. II of
Republic Act 6425, as amended, otherwise known as the
Dangerous Drugs Act of 1972, as amended. The factual
background of the case is as follows:
Accused Mikael Malmstedt, a Swedish national, entered
the Philippines for the third time in December 1988 as a
tourist. He had visited the country sometime in 1982 and
1985.
In the evening of 7 May 1989, accused left for Baguio City.
Upon his arrival thereat in the morning of the following day,
he took a bus to Sagada and stayed in that place for two
(2) days.
At around 7:00 o'clock in the morning of 11 May 1989,
accused went to the Nangonogan bus stop in Sagada to
catch the first available trip to Baguio City. From Baguio
City, accused planned to take a late afternoon trip to
Angeles City, then proceed to Manila to catch his flight out
of the country, scheduled on 13 May 1989. From Sagada,
accused took a Skyline bus with body number 8005 and
Plate number AVC 902.1
At about 8: 00 o'clock in the morning of that same day (11
May 1989), Captain Alen Vasco, the Commanding Officer
of the First Regional Command (NARCOM) stationed at
Camp Dangwa, ordered his men to set up a temporary
checkpoint at Kilometer 14, Acop, Tublay, Mountain
Province, for the purpose of checking all vehicles coming
from the Cordillera Region. The order to establish a
checkpoint in the said area was prompted by persistent
reports that vehicles coming from Sagada were
transporting marijuana and other prohibited drugs.
Moreover, information was received by the Commanding
Officer of NARCOM, that same morning, that a Caucasian
coming from Sagada had in his possession prohibited
drugs.2
The group composed of seven (7) NARCOM officers, in
coordination with Tublay Police Station, set up a checkpoint
at the designated area at about 10:00 o'clock in the
morning and inspected all vehicles coming from the
Cordillera Region.
At about 1:30 o'clock in the afternoon, the bus where
accused was riding was stopped. Sgt. Fider and CIC
Galutan boarded the bus and announced that they were
members of the NARCOM and that they would conduct an
inspection. The two (2) NARCOM officers started their
inspection from the front going towards the rear of the bus.
Accused who was the sole foreigner riding the bus was
seated at the rear thereof.
During the inspection, CIC Galutan noticed a bulge on
accused's waist. Suspecting the bulge on accused's waist
to be a gun, the officer asked for accused's passport and
other identification papers. When accused failed to comply,
the officer required him to bring out whatever it was that
was bulging on his waist. The bulging object turned out to
be a pouch bag and when accused opened the same bag,
as ordered, the officer noticed four (4) suspicious-looking
objects wrapped in brown packing tape, prompting the
officer to open one of the wrapped objects. The wrapped
objects turned out to contain hashish, a derivative of
marijuana.
Thereafter, accused was invited outside the bus for
questioning. But before he alighted from the bus, accused
stopped to get two (2) travelling bags from the luggage
carrier.
Upon stepping out of the bus, the officers got the bags and
opened them. A teddy bear was found in each bag. Feeling
the teddy bears, the officer noticed that there were bulges
inside the same which did not feel like foam stuffing. It was
only after the officers had opened the bags that accused
finally presented his passport.
8
Accused was then brought to the headquarters of the
NARCOM at Camp Dangwa, La Trinidad, Benguet for
further investigation. At the investigation room, the officers
opened the teddy bears and they were found to also
contain hashish. Representative samples were taken from
the hashish found among the personal effects of accused
and the same were brought to the PC Crime Laboratory for
chemical analysis.
In the chemistry report, it was established that the objects
examined were hashish. a prohibited drug which is a
derivative of marijuana. Thus, an information was filed
against accused for violation of the Dangerous Drugs Act.
ISSUE: WON search of the accused personal effects was
illegal because it was made without a search warrant and,
therefore, the prohibited drugs which were discovered
during the illegal search are not admissible as evidence
against him
HELD: The Constitution guarantees the right of the people
to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures.5 However,
where the search is made pursuant to a lawful arrest, there
is no need to obtain a search warrant.
Accused was searched and arrested while transporting
prohibited drugs (hashish). A crime was actually being
committed by the accused and he was caught in flagrante
delicto. Thus, the search made upon his personal effects
falls squarely under paragraph (1) of Rule 112 Section 5 of
the Rules of Court, which allow a warrantless search
incident to a lawful arrest.7
While it is true that the NARCOM officers were not armed
with a search warrant when the search was made over the
personal effects of accused, however, under the
circumstances of the case, there was sufficient probable
cause for said officers to believe that accused was then
and there committing a crime.
Probable cause has been defined as such facts and
circumstances which could lead a reasonable, discreet and
prudent man to believe that an offense has been
committed, and that the objects sought in connection with
the offense are in the place sought to be searched. 8 The
required probable cause that will justify a warrantless
search and seizure is not determined by any fixed formula
but is resolved according to the facts of each case.9
Warrantless search of the personal effects of an accused
has been declared by this Court as valid, because of
existence of probable cause, where the smell of marijuana
emanated from a plastic bag owned by the accused, 10 or
where the accused was acting suspiciously,11 and
attempted to flee.12
Aside from the persistent reports received by the NARCOM
that vehicles coming from Sagada were transporting
marijuana and other prohibited drugs, their Commanding
Officer also received information that a Caucasian coming
from Sagada on that particular day had prohibited drugs in
his possession. Said information was received by the
Commanding Officer of NARCOM the very same morning
that accused came down by bus from Sagada on his way
to Baguio City.
When NARCOM received the information, a few hours
before the apprehension of herein accused, that a
Caucasian travelling from Sagada to Baguio City was
carrying with him prohibited drugs, there was no time to
obtain a search warrant. In the Tangliben case,13 the police
authorities conducted a surveillance at the Victory Liner
Terminal located at Bgy. San Nicolas, San Fernando
Pampanga, against persons engaged in the traffic of
dangerous drugs, based on information supplied by some
informers. Accused Tangliben who was acting suspiciously
and pointed out by an informer was apprehended and
searched by the police authorities. It was held that when
faced with on-the-spot information, the police officers had
to act quickly and there was no time to secure a search
warrant.
It must be observed that, at first, the NARCOM officers
merely conducted a routine check of the bus (where
accused was riding) and the passengers therein, and no
extensive search was initially made. It was only when one
of the officers noticed a bulge on the waist of accused,
during the course of the inspection, that accused was
required to present his passport. The failure of accused to
present his identification papers, when ordered to do so,
only managed to arouse the suspicion of the officer that
accused was trying to hide his identity. For is it not a
regular norm for an innocent man, who has nothing to hide
from the authorities, to readily present his identification
papers when required to do so?
The receipt of information by NARCOM that a Caucasian
coming from Sagada had prohibited drugs in his
possession, plus the suspicious failure of the accused to
produce his passport, taken together as a whole, led the
NARCOM officers to reasonably believe that the accused
was trying to hide something illegal from the authorities.
From these circumstances arose a probable cause which
justified the warrantless search that was made on the
personal effects of the accused. In other words, the acts of
the NARCOM officers in requiring the accused to open his
pouch bag and in opening one of the wrapped objects
found inside said bag (which was discovered to contain
hashish) as well as the two (2) travelling bags containing
two (2) teddy bears with hashish stuffed inside them, were
prompted by accused's own attempt to hide his identity by
refusing to present his passport, and by the information
received by the NARCOM that a Caucasian coming from
Sagada had prohibited drugs in his possession. To deprive
the NARCOM agents of the ability and facility to act
accordingly, including, to search even without warrant, in
the light of such circumstances, would be to sanction
impotence and ineffectiveness in law enforcement, to the
detriment of society.
[G.R. No. 128222. June 17, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
CHUA HO SAN @ TSAY HO SAN, accused-appellant.
FACTS:
In response to reports of rampant smuggling of
firearms and other contraband, Jim Lagasca Cid (hereafter
CID), as Chief of Police of the Bacnotan Police Station, of
La Union began patrolling the Bacnotan coastline with his
officers. While monitoring the coastal area of Barangay
Bulala on 29 March 1995, he intercepted a radio call at
around 12:45 p.m. from Barangay Captain Juan Almoite
(hereafter ALMOITE) of Barangay Tammocalao requesting
police assistance regarding an unfamiliar speedboat the
latter had spotted. According to ALMOITE, the vessel
looked different from the boats ordinarily used by fisherfolk
of the area and was poised to dock at Tammocalao shores.
CID and six of his men led by his Chief Investigator, SPO1
Reynoso Badua (hereafter BADUA), proceeded forthwith to
Tammocalao beach and there conferred with ALMOITE.
CID then observed that the speedboat ferried a lone male
passenger. As it was routine for CID to deploy his men in
strategic places when dealing with similar situations, he
ordered his men to take up positions thirty meters from the
coastline. When the speedboat landed, the male passenger
alighted, and using both hands, carried what appeared a
multicolored strawbag. He then walked towards the road.
By this time, ALMOITE, CID and BADUA, the latter two
conspicuous in their uniform and issued side-arms, became
suspicious of the man as he suddenly changed direction
and broke into a run upon seeing the approaching officers.
BADUA, however, prevented the man from fleeing by
holding on to his right arm. Although CID introduced
themselves as police officers, the man appeared
impassive. Speaking in English, CID then requested the
man to open his bag, but he seemed not to understand.
CID thus tried speaking Tagalog, then Ilocano, but still to no
avail. CID then resorted to what he termed sign language;
he motioned with his hands for the man to open the bag.
This time, the man apparently understood and acceded to
the request. A search of the bag yielded several
transparent plastic packets containing yellowish crystalline
substances.CID then gestured to the man to close the bag,
which he did. As CID wished to proceed to the police
station, he signaled the man to follow, but the latter did not
to comprehend. Hence, CID placed his arm around the
shoulders of the man and escorted the latter to the police
headquarters.
At the police station, CID surmised, after having
observed the facial features of the man, that he was
probably Taiwanese. CID then "recited and informed the
man of his constitutional rights" to remain silent, to have the
assistance of a counsel, etc. Eliciting no response from the
man, CID ordered his men to find a resident of the area
9
who spoke Chinese to act as an interpreter. In the
meantime, BADUA opened the bag and counted twenty-
nine (29) plastic packets containing yellowish crystalline
substances which he and CID suspected was shabu. The
interpreter, Mr. Go Ping Guan, finally arrived, through
whom the man was "apprised of his constitutional rights."
The police authorities were satisfied that the man and the
interpreter perfectly understood each other despite their
uncertainty as to what language was spoken. But when the
policemen asked the man several questions, he retreated
to his obstinate reticence and merely showed his I.D. with
the name Chua Ho San printed thereon. CHUA's bag and
its contents were sent to the PNP Crime Laboratory at
Camp Diego Silang, Carlatan, San Fernando, La Union for
laboratory examination. In the meantime, CHUA was
detained at the Bacnotan Police Station.
CHUA was initially charged with illegal possession
of methamphetamine hydrochloridebefore the RTC which
docketed the case as Criminal Case No. 4037. However,
pursuant to the recommendation of the Office of the
Provincial Prosecutor of San Fernando, La Union, that the
facts of the case could support an indictment for illegal
transport of a regulated drug, the information was
subsequently amended to allege that CHUA "willfully,
unlawfully and feloniously transpor(ted) 28.7 kilos of
[m]ethamphetamine [h]ydrochloride (shabu) without the
necessary permit or authority to transport the same" in
violation of Section 15, Article III of R.A. 6425 as amended
by R.A. 7659.
CHUA denounced the prosecutions story as a
distortion of the truth. He denied he was ever favored with
an interpreter or informed of his "constitutional rights,"
particularly of his right to counsel. Consequently, his arrest
was tainted with illegality and the methamphetamine
hydrochloride found in the bag should have been regarded
inadmissible as evidence. He also maintained that CID
never graced the occasion of his setting foot for the first
time at Tammocalao beach. BADUA certainly never
prevented him from running away, as such thought failed to
make an impression in his mind. Most significantly, he
denied ownership and knowledge of the contents of the
bag, emphasizing that RONG alone exercised dominion
over the same.
In a decision promulgated on 10 February 1997, the
RTC found that the prosecution successfully discharged its
burden of proving that CHUA transported 28.7 kilos of
methamphetamine hydrochloride without legal authority to
do so. Invoking People v. Tagliben as authority, the RTC
characterized the search as incidental to a valid in flagrante
delicto arrest, hence it allowed the admission of the
methamphetamine hydrochloride as corpus delicti. The
RTC also noted the futility of informing CHUA of his
constitutional rights to remain silent, and to have competent
and independent counsel preferably of his own choice,
considering the language barrier and the observation that
such irregularity was rectified when accused was duly
arraigned and (afterwards) participated in the trial of this
case. The RTC then disregarded the inconsistencies and
contradictions in the testimonies of the prosecution
witnesses as these referred to minor details which did not
impair the credibility of the witnesses or tarnish the
credence conferred on the testimonies thus delivered.
ISSUE: WON it is a valid searches and seizures.
HELD: NO.
We reverse the RTC.
In cases of inflagrante 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. The term probable cause had been
understood to mean a reasonable ground of suspicion
supported by circumstances sufficiently strong in
themselves to warrant a cautious mans belief that the
person accused is guilty of the offense with which he is
charged. Specifically with respect to arrests, it is such facts
and circumstances which would lead a reasonably discreet
and prudent man to believe that an offense has been
committed by the person sought to be arrested. In People
v. Montilla, the Court acknowledged that the evidentiary
measure for the propriety of filing criminal charges, and
correlatively, for effecting warrantless arrest, has been
reduced and liberalized. Noting that the previous statutory
and jurisprudential evidentiary standard was "prima facie
evidence" and that it had been dubiously equated with
probable cause.
Guided by these principles, this Court finds that
there are no facts on record reasonably suggestive or
demonstrative of CHUAs participation in an ongoing
criminal enterprise that could have spurred police officers
from conducting the obtrusive search. The RTC never took
the pains of pointing to such facts, but predicated mainly its
decision on the finding that "accused was caught red-
handed carrying the bagful of [s]habu when apprehended.
In short, there is no probable cause. At least in People
v.Tangliben, the Court agreed with the lower court's finding
that compelling reasons (e.g., accused was acting
suspiciously, on the spot identification by an informant that
accused was transporting prohibitive drug, and the urgency
of the situation) constitutive of probable cause impelled
police officers from effecting an in flagrante delicto arrest.
In the case at bar, the Solicitor General proposes that the
following details are suggestive of probable cause --
persistent reports of rampant smuggling of firearm and
other contraband articles, CHUA's watercraft differing in
appearance from the usual fishing boats that commonly
cruise over the Bacnotan seas, CHUAs illegal entry into the
Philippines (he lacked the necessary travel documents or
visa), CHUAs suspicious behavior, i.e. he attempted to flee
when he saw the police authorities, and the apparent ease
by which CHUA can return to and navigate his speedboat
with immediate dispatch towards the high seas, beyond the
reach of Philippine laws.
This Court, however, finds that these do not
constitute probable cause. None of the telltale clues, e.g.,
bag or package emanating the pungent odor of marijuana
or other prohibited drug, confidential report and/or positive
identification by informers of courier(s) of prohibited drug
and/or the time and place where they will transport/deliver
the same, suspicious demeanor or behavior and suspicious
bulge in the waist-- accepted by this Court as sufficient to
justify a warrantless arrest exists in this case. There was no
classified information that a foreigner would disembark at
Tammocalao beach bearing prohibited drug on the date in
question. CHUA was not identified as a drug courier by a
police informer or agent. The fact that the vessel that
ferried him to shore bore no resemblance to the fishing
boats of the area did not automatically mark him as in the
process of perpetrating an offense. And despite claims by
CID and BADUA that CHUA attempted to flee, ALMOITE
testified that the latter was merely walking and oblivious to
any attempt at conversation when the officers approached
him.
True, CHUA entered Philippine territory without a
visa. This was not obvious to the police. But gossamer to
the officers sense perception and view were CHUA
disembarking from a speedboat, CHUA walking casually
towards the road, and CHUA carrying a multicolored
strawbag. These acts did not convey any impression that
he illegally entered Philippine shores.Neither were these
overt manifestations of an ongoing felonious activity nor of
CHUAs criminal behavior as clearly established in CIDs
testimony.
To reiterate, the search was not incidental to an
arrest. There was no warrant of arrest and the warrantless
arrest did not fall under the exemptions allowed by the
Rules of Court as already shown. From all indications, the
search was nothing but a fishing expedition. It is worth
mentioning here that after introducing themselves, the
police officers immediately inquired about the contents of
the bag. What else could have impelled the officers from
displaying such inordinate interest in the bag but to ferret
out evidence and discover if a felony had indeed been
committed by CHUA -- in effect to "retroactively establish
probable cause and validate an illegal search and seizure."
The State then attempted to persuade this Court
that there was a consented search, a legitimate waiver of
the constitutional guarantee against obtrusive searches. It
is fundamental, however, that to constitute a waiver, it must
first appear that the right exists; secondly, that the person
involved had knowledge, actual or constructive, of the
existence of such a right; and lastly, that said person had
an actual intention to relinquish the right. CHUA never
10
exhibited that he knew, actually or constructively of his right
against unreasonable searches or that he intentionally
conceded the same. This can be inferred from the manner
by which the search was performed.
CHUA obviously failed to understand the events that
overran and overwhelmed him. The police officers already
introduced themselves to CHUA in three languages, but he
remained completely deadpan. The police hence
concluded that CHUA failed to comprehend the three
languages. When CHUA failed to respond again to the
polices request to open the bag, they resorted to what they
called sign language. They claimed that CHUA finally
understood their hand motions and gestures. This Court
disagrees. If CHUA could not understand what was orally
articulated to him, how could he understand the polices
sign language. More importantly, it cannot logically be
inferred from his alleged cognizance of the sign language
that he deliberately, intelligently, and consciously waived
his right against such an intrusive search. This Court is not
unmindful of cases upholding the validity of consented
warrantless searches and seizure. But in these cases, the
police officers' request to search personnel effects was
orally articulated to the accused and in such language that
left no room for doubt that the latter fully understood what
was requested. In some instances, the accused even
verbally replied to the request demonstrating that he also
understood the nature and consequences of such request.
It was eventually discovered that the bag contained
the regulated substance. But this is a trifling matter. If
evidence obtained during an illegal search even if tending
to confirm or actually confirming initial information or
suspicion of felonious activity is absolutely considered
inadmissible for any purpose in any proceeding, the same
being the fruit of a poisonous tree how much more of
"forbidden fruits" which did not confirm any initial suspicion
of criminal enterprise as in this case - because the police
admitted that they never harbored any initial suspicion.
Casting aside the regulated substance as evidence, the
remaining evidence on record are insufficient, feeble and
ineffectual to sustain CHUAs conviction.
[G.R. No. 120431. April 1, 1998]
RODOLFO ESPANO, accused-petitioner, vs. COURT OF
APPEALS and PEOPLE OF THE PHILIPPINES,
respondents.
FACTS:
The evidence for the prosecution, based on the testimony
of Pat. Romeo Pagilagan, shows that on July 14, 1991, at
about 12:30 a.m., he and other police officers, namely, Pat.
Wilfredo Aquino, Simplicio Rivera, and Erlindo Lumboy of
the Western Police District (WPD), Narcotics Division went
to Zamora and Pandacan Streets, Manila to confirm reports
of drug pushing in the area. They saw petitioner selling
something to another person. After the alleged buyer left,
they approached petitioner, identified themselves as
policemen, and frisked him. The search yielded two plastic
cellophane tea bags of marijuana. When asked if he had
more marijuana, he replied that there was more in his
house. The policemen went to his residence where they
found ten more cellophane tea bags of marijuana.
Petitioner was brought to the police headquarters where he
was charged with possession of prohibited drugs. On July
24, 1991, petitioner posted bail and the trial court issued
his order of release on July 29, 1991.
By way of defense, petitioner testified that on said evening,
he was sleeping in his house and was awakened only
when the policemen handcuffed him. He alleged that the
policemen were looking for his brother-in-law Lauro, and
when they could not find the latter, he was instead brought
to the police station for investigation and later indicted for
possession of prohibited drugs. His wife Myrna
corroborated his story.
The trial court rejected petitioners defense as a mere
afterthought and found the version of the prosecution more
credible and trustworthy.
Thus, on August 14, 1992, the trial court rendered a
decision, convicting petitioner of the crime charged, the
dispositive portion of which reads:
Petitioner appealed the decision to the Court of Appeals.
The appellate court, however, affirmed the decision of the
trial court in toto.
Hence, this petition.
Petitioner contends that the trial and appellate courts erred
in convicting him on the basis of the following: (a) the
pieces of evidence seized were inadmissible; (b) the
superiority of his constitutional right to be presumed
innocent over the doctrine of presumption of regularity; (c)
he was denied the constitutional right of confrontation and
to compulsory process; and (d) his conviction was based
on evidence which was irrelevant and not properly
identified.
ISSUE: WON it is a valid searches and seizures.
HELD: YES.
After a careful examination of the records of the case, this
Court finds no compelling reason sufficient to reverse the
decisions of the trial and appellate courts.
Lastly, the issue on the admissibility of the marijuana
seized should likewise be ruled upon. Rule 113 Section
5(a) of the Rules of Court provides:
A peace officer or a private person may, without a warrant,
arrest a person:
a. when, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense;
x x x x x x x x x.
Petitioners arrest falls squarely under the aforecited rule.
He was caught in flagranti as a result of a buy-bust
operation conducted by police officers on the basis of
information received regarding the illegal trade of drugs
within the area of Zamora and Pandacan Streets, Manila.
The police officer saw petitioner handing over something to
an alleged buyer. After the buyer left, they searched him
and discovered two cellophanes of marijuana. His arrest
was, therefore, lawful and the two cellophane bags of
marijuana seized were admissible in evidence, being the
fruits of the crime.
As for the ten cellophane bags of marijuana found at
petitioners residence, however, the same are inadmissible
in evidence.
The 1987 Constitution guarantees freedom against
unreasonable searches and seizures under Article III,
Section 2 which provides:
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.
An exception to the said rule is a warrantless search
incidental to a lawful arrest for dangerous weapons or
anything which may be used as proof of the commission of
an offense. It may extend beyond the person of the one
arrested to include the premises or surroundings under his
immediate control. In this case, the ten cellophane bags of
marijuana seized at petitioners house after his arrest at
Pandacan and Zamora Streets do not fall under the said
exceptions.
The articles seized from petitioner during his arrest were
valid under the doctrine of search made incidental to a
lawful arrest. The warrantless search made in his house,
however, which yielded ten cellophane bags of marijuana
became unlawful since the police officers were not armed
with a search warrant at the time. Moreover, it was beyond
the reach and control of petitioner.G.R. No. 80806 October
5, 1989
LEO PITA doing business under the name and style of
PINOY PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and
NARCISO CABRERA, respondents.
FACTS:
On December 1 and 3, 1983, pursuing an Anti-Smut
Campaign initiated by the Mayor of the City of Manila,
Ramon D. Bagatsing, elements of the Special Anti-
Narcotics Group, Auxilliary Services Bureau, Western
Police District, INP of the Metropolitan Police Force of
Manila, seized and confiscated from dealers, distributors,
newsstand owners and peddlers along Manila sidewalks,
magazines, publications and other reading materials
believed to be obscene, pornographic and indecent and
later burned the seized materials in public at the University
belt along C.M. Recto Avenue, Manila, in the presence of
Mayor Bagatsing and several officers and members of
11
various student organizations.
Among the publications seized, and later burned, was
"Pinoy Playboy" magazines published and co-edited by
plaintiff Leo Pita.
In his Answer and Opposition filed on December 27,1983
defendant Mayor Bagatsing admitted the confiscation and
burning of obscence reading materials on December 1 and
3, 1983, but claimed that the said materials were voluntarily
surrendered by the vendors to the police authorities, and
that the said confiscation and seizure was (sic) undertaken
pursuant to P.D. No. 960, as amended by P.D. No. 969,
which amended Article 201 of the Revised Penal Code. In
opposing the plaintiffs application for a writ of preliminary
injunction, defendant pointed out that in that anti- smut
campaign conducted on December 1 and 3, 1983, the
materials confiscated belonged to the magazine stand
owners and peddlers who voluntarily surrendered their
reading materials, and that the plaintiffs establishment was
not raided.
On February 3, 1984, the trial court promulgated the Order
appealed from denying the motion for a writ of preliminary
injunction, and dismissing the case for lack of merit. 2
The Appellate Court dismissed the appeal upon the
grounds, among other things, as follows:
We cannot quarrel with the basic postulate suggested by
appellant that seizure of allegedly obscene publications or
materials deserves close scrutiny because of the
constitutional guarantee protecting the right to express
oneself in print (Sec. 9, Art. IV), and the protection afforded
by the constitution against unreasonable searches and
seizure (Sec. 3, Art.IV). It must be equally conceded,
however, that freedom of the press is not without restraint
as the state has the right to protect society from
pornographic literature that is offensive to public morals, as
indeed we have laws punishing the author, publishers and
sellers of obscene publications (Sec. I , Art. 201, Revised
Penal Code, as amended by P.D. No. 960 and P.D. No.
969). Also well settled is the rule that the right against
unreasonable searches and seizures recognizes certain
exceptions, as when there is consent to the search or
seizure, (People vs. Malesugui 63 Phil. 22) or search is an
incident to an arrest, (People vs. Veloso, 48 Phil. 169;
Alvero vs. Dizon, 76 Phil. 637) or is conducted in a vehicle
or movable structure (See Papa vs. Magno, 22 SCRA 857).
3
The petitioner now ascribes to the respondent court the
following errors:
1. The Court of Appeals erred in affirming the decision of
the trial court and, in effect, holding that the police officers
could without any court warrant or order seize and
confiscate petitioner's magazines on the basis simply of
their determination that they are obscene.
ISSUE: WON it is a valid searches and seizures.
HELD: NO.
It is also significant that in his petition, the petitioner asserts
constitutional issues, mainly, due process and illegal search
and seizure.
As we so strongly stressed in Bagatsing, a case involving
the delivery of a political speech, the presumption is that
the speech may validly be said. The burden is on the State
to demonstrate the existence of a danger, a danger that
must not only be: (1) clear but also, (2) present, to justify
State action to stop the speech. Meanwhile, the
Government must allow it (the speech). It has no choice.
However, if it acts notwithstanding that (absence of
evidence of a clear and present danger), it must come to
terms with, and be held accountable for, due process.
The Court is not convinced that the private respondents
have shown the required proof to justify a ban and to
warrant confiscation of the literature for which mandatory
injunction had been sought below. First of all, they were not
possessed of a lawful court order: (1) finding the said
materials to be pornography, and (2) authorizing them to
carry out a search and seizure, by way of a search warrant.
The fact that the former respondent Mayor's act was
sanctioned by "police power" is no license to seize property
in disregard of due process. In Philippine Service
Exporters, Inc. v. Drilon, 38 We defined police power as
"state authority to enact legislation that may interfere with
personal liberty or property in order to promote the general
welfare ." 39 Presidential Decrees Nos. 960 and 969 are,
arguably, police power measures, but they are not, by
themselves, authorities for high-handed acts. They do not
exempt our law enforcers, in carrying out the decree of the
twin presidential issuances (Mr. Marcos'), from the
commandments of the Constitution, the right to due
process of law and the right against unreasonable
searches and seizures, specifically. Significantly, the
Decrees themselves lay down procedures for
implementation. We quote:
Sec. 2. Disposition of the Prohibited Articles. The
disposition of the literature, films, prints, engravings,
sculptures, paintings, or other materials involved in the
violation referred to in Section 1 hereof (Art. 201), RPC as
amended) shall be governed by the following rules:
(a) Upon conviction of the offender, to be forfeited in favor
of the Government to be destroyed.
(b) Where the criminal case against any violator of this
decree results in an acquittal, the obscene/immoral
literature, films, prints, engravings, sculptures, paintings or
other materials and articles involved in the violation
referred to in Section 1 (referring to Art. 201) hereof shall
nevertheless be forfeited in favor of the government to be
destroyed, after forfeiture proceedings conducted by the
Chief of Constabulary.
Under the Constitution, on the other hand:
SEC. 3. The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any
purpose shall not be violated, and no search warrant or
warrant of arrest shall issue except upon probable cause to
be determined by the judge, or such other responsible
officer as may be authorized by law, after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the
place to be searched, and the persons or things to be
seized.
It is basic that searches and seizures may be done only
through a judicial warrant, otherwise, they become
unreasonable and subject to challenge. In Burgos v. Chief
of Staff,AFP, 43 We counter-minded the orders of the
Regional Trial Court authorizing the search of the premises
of We Forum and Metropolitan Mail, two Metro Manila
dailies, by reason of a defective warrant. We have greater
reason here to reprobate the questioned raid, in the
complete absence of a warrant, valid or invalid. The fact
that the instant case involves an obscenity rap makes it no
different from Burgos, a political case, because, and as we
have indicated, speech is speech, whether political or
"obscene".
The Court is not ruling out warrantless searches, as the
Rules of Court (1964 rev.) (the Rules then prevailing),
provide:
SEC. 12. Search without warrant of person arrested. A
person charged with an offense may be searched for
dangerous weapons or anything which may be used as
proof of the commission of the offense. 44
but as the provision itself suggests, the search must have
been an incident to a lawful arrest, and the arrest must be
on account of a crime committed. Here, no party has been
charged, nor are such charges being readied against any
party, under Article 201, as amended, of the Revised Penal
Code.
We reject outright the argument that "[t]here is no
constitutional nor legal provision which would free the
accused of all criminal responsibility because there had
been no warrant,"45 and that "violation of penal law [must]
be punished."46 For starters, there is no "accused" here to
speak of, who ought to be "punished". Second, to say that
the respondent Mayor could have validly ordered the raid
(as a result of an anti-smut campaign) without a lawful
search warrant because, in his opinion, "violation of penal
laws" has been committed, is to make the respondent
Mayor judge, jury, and executioner rolled into one. And
precisely, this is the very complaint of the petitioner.
WHEREFORE, the petition is GRANTED. The decision of
the respondent court is REVERSED and SET ASIDE. It
appearing, however, that the magazines subject of the
search and seizure ave been destroyed, the Court declines
to grant affirmative relief. To that extent, the case is moot
and academic.
G.R. No. L-25434 July 25, 1975
HONORABLE ARSENIO N. ROLDAN, JR., in his
capacity as Acting Commissioner, Philippine Fisheries
Commission, and THE PHILIPPINE NAVY, petitioners,
12
vs.
HONORABLE FRANCISCO ARCA, as Presiding Judge
of the Court of First Instance of Manila (Branch 1) and
MORABE, DE GUZMAN & COMPANY, respondents.
FACTS:
On July 20, 1965, petitioner Fisheries Commissioner
requested the Philippine Navy to apprehend vessels Tony
Lex VI and Tony Lex III, also respectively called Srta.
Winnie and Srta. Agnes, for alleged violations of some
provisions of the Fisheries Act and the rules and
regulations promulgated thereunder.
On August 5 or 6, 1965, the two fishing boats were actually
seized for illegal fishing with dynamite. Fish caught with
dynamite and sticks of dynamite were then found aboard
the two vessels.
On September 30, 1965, there were filed in the court of
First Instance of Palawan a couple of informations, one
against the crew members of Tony Lex III, and another
against the crew members of Tony Lex VI both for
violations of Act No. 4003, as amended by Commonwealth
Acts Nos. 462, 659 and 1088, i.e., for illegal fishing with the
use of dynamite. On the same day, the Fiscal filed an ex
parte motion to hold the boats in custody as instruments
and therefore evidence of the crime (p. 54, rec.), and
cabled the Fisheries Commissioner to detain the vessels
(p. 56, rec.).
On October 2 and 4, likewise, the Court of First Instance of
Palawan ordered the Philippine Navy to take the boats in
custody.
On October 2, 1965, respondent company filed a complaint
with application for preliminary mandatory injunction,
docketed as Civil Case No. 62799 with the Court of First
Instance of Manila against herein petitioners. Among
others, it was alleged that at the time of the seizure of the
fishing boats in issue, the same were engaged in legitimate
fishing operations off the coast of Palawan; that by virtue of
the offer of compromise dated September 13, 1965 by
respondent company to the Secretary of Agriculture and
Natural Resources, the numerous violations of the Fishery
Laws, if any, by the crew members of the vessels were
settled.
On October 9, 1965, petitioners, represented by the
Solicitor General, opposed the above-mentioned complaint,
alleging among others, that: (1) the issuance of the writ
would disrupt the status quo of the parties and would
render nugatory any decision of the respondent court
favorable to the defendant; (2) that the vessels, being
instruments of a crime in criminal cases Nos. 3416 and
3417 filed with the Court of First Instance of Palawan, the
release of the vessels sans the corresponding order from
the above-mentioned court would deprive the same of its
authority to dispose of the vessels in the criminal cases and
the Provincial Fiscal would not be able to utilize said
vessels as evidence in the prosecution of said cases; (3)
that as petitioners herein were in possession of one of the
vessels in point, they cannot now be deprived of the legal
custody thereof by reason of the dismissal of Civil Case
No. 56701; (4) that petitioner Fisheries Commissioner has
the power to seize and detain the vessels pursuant to
Section 5 of Republic Act No. 3215 in relation to Sections
903 and 2210 of the Revised Tariff and Customs Code; (5)
that respondents herein have not exhausted administrative
remedies before coming to court; (6) that the compromise
agreement approved by the Secretary of Agriculture and
Natural Resources and indorsed to the Fisheries
Commissioner is never a bar to the prosecution of the
crime perpetrated by the crew members of the vessels
belonging to respondent company.
On October 18, 1965, herein petitioners, as defendants in
said Civil Case No. 62799, filed their answer to the
complaint with affirmative defenses, reiterating the grounds
in their opposition to the issuance of a writ of preliminary
mandatory injunction and adding that herein private
respondent admitted committing the last violation when it
offered in its letter dated September 21, 1965 to the Acting
Commissioner of Fisheries, to compromise said last
violation (Exh. 12, pp. 60-61, rec.).
On said day, October 18, 1965, the respondent Judge
issued the challenged order granting the issuance of the
writ of preliminary mandatory injunction and issued the
preliminary writ upon the filing by private respondent of a
bond of P5,000.00 for the release of the two vessels (pp.
95-102, rec.).
On October 19, 1965, herein petitioners filed a motion for
reconsideration of the order issuing the preliminary writ on
October 18, 1965 on the ground, among others, that on
October 18, 1965 the Philippine Navy received from the
Palawan Court of First Instance two orders dated October 2
and 4, 1965 requiring the Philippine Navy to hold the
fishing boats in custody and directing that the said vessels
should not be released until further orders from the Court,
and that the bond of P5,000.00 is grossly insufficient to
cover the Government's losses in case the two vessels,
which are worth P495,000.00, are placed beyond the reach
of the Government, thus frustrating their forfeiture as
instruments of the crime (pp. 103-109, rec.).
On November 23, 1965, respondent Judge denied the said
motion for reconsideration (p. 110, rec.).
ISSUE: WON it is a valid searches and seizures.
HELD: YES.
WE rule that the respondent Judge of the Manila Court of
First Instance acted without jurisdiction and with grave
abuse of discretion when he issued on October 18, 1965
the order directing the issuance of a writ of preliminary
mandatory injunction and when he refused to reconsider
the same.
III
Herein petitioners can validly direct and/or effect the
seizure of the vessels of private respondent for illegal
fishing by the use of dynamite and without the requisite
licenses.
Search and seizure without search warrant of vessels and
air crafts for violations of the customs laws have been the
traditional exception to the constitutional requirement of a
search warrant, because the vessel can be quickly moved
out of the locality or jurisdiction in which the search warrant
must be sought before such warrant could be secured;
hence it is not practicable to require a search warrant
before such search or seizure can be constitutionally
effected (Papa vs. Mago, L-27360, Feb. 28, 1968, 22
SCRA 857, 871-74; Magoncia vs. Palacio, 80 Phil. 770,
774; Caroll vs. U.S. 267, pp. 132, 149, 158; Justice
Fernando, The Bill of Rights, 1972 ed., p. 225; Gonzales,
Philippine Constitutional Law, 1966 ed., p. 300).
The same exception should apply to seizures of fishing
vessels breaching our fishery laws. They are usually
equipped with powerful motors that enable them to elude
pursuing ships of the Philippine Navy or Coast Guard.
Another exception to the constitutional requirement of a
search warrant for a valid search and seizure, is a search
or seizure as an incident to a lawful arrest (Alvero vs.
Dizon, 76 Phil. 637; Justice Fernando, The Bill of Rights,
1972 ed., p. 224). Under our Rules of Court, a police officer
or a private individual may, without a warrant, arrest a
person (a) who has committed, is actually committing or is
about to commit an offense in his presence; (b) who is
reasonably believed to have committed an offense which
has been actually committed; or (c) who is a prisoner who
has escaped from confinement while serving a final
judgment or from temporary detention during the pendency
of his case or while being transferred from one confinement
to another (Sec. 6, Rule 113, Revised Rules of Court). In
the case at bar, the members of the crew of the two vessels
were caught inflagrante illegally fishing with dynamite and
without the requisite license. Thus their apprehension
without a warrant of arrest while committing a crime is
lawful. Consequently, the seizure of the vessel, its
equipment and dynamites therein was equally valid as an
incident to a lawful arrest.
WHEREFORE, THE PETITION IS HEREBY GRANTED
AND THE ORDER OF RESPONDENT JUDGE DATED
OCTOBER 18, 1965, THE WRIT OF PRELIMINARY
MANDATORY INJUNCTION ISSUED THEREUNDER AND
THE ORDER DATED NOVEMBER 23, 1965, ARE
HEREBY SET ASIDE AS NULL AND VOID, WITH COSTS
AGAINST PRIVATE RESPONDENT.
G.R. No. 83988 September 29, 1989
RICARDO C. VALMONTE AND UNION OF LAWYERS
AND ADVOCATES FOR PEOPLE'S RIGHTS (ULAP),
petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL
REGION DISTRICT COMMAND, respondents.
FACTS:
On 20 January 1987, the National Capital Region District
13
Command (NCRDC) was activated pursuant to Letter of
Instruction 02/87 of the Philippine General Headquarters,
AFP, with the mission of conducting security operations
within its area of responsibility and peripheral areas, for the
purpose of establishing an effective territorial defense,
maintaining peace and order, and providing an atmosphere
conducive to the social, economic and political
development of the National Capital Region. 1 As part of its
duty to maintain peace and order, the NCRDC installed
checkpoints in various parts of Valenzuela, Metro Manila.
Petitioners aver that, because of the installation of said
checkpoints, the residents of Valenzuela are worried of
being harassed and of their safety being placed at the
arbitrary, capricious and whimsical disposition of the
military manning the checkpoints, considering that their
cars and vehicles are being subjected to regular searches
and check-ups, especially at night or at dawn, without the
benefit of a search warrant and/or court order. Their alleged
fear for their safety increased when, at dawn of 9 July
1988, Benjamin Parpon, a supply officer of the Municipality
of Valenzuela, Bulacan, was gunned down allegedly in cold
blood by the members of the NCRDC manning the
checkpoint along McArthur Highway at Malinta, Valenzuela,
for ignoring and/or refusing to submit himself to the
checkpoint and for continuing to speed off inspire of
warning shots fired in the air. Petitioner Valmonte also
claims that, on several occasions, he had gone thru these
checkpoints where he was stopped and his car subjected
to search/check-up without a court order or search warrant.
Petitioners further contend that the said checkpoints give
the respondents a blanket authority to make searches
and/or seizures without search warrant or court order in
violation of the Constitution;2and, instances have occurred
where a citizen, while not killed, had been harassed.
ISSUE: WON it is a valid searches and seizures.
HELD: YES.
Petitioners' concern for their safety and apprehension at
being harassed by the military manning the checkpoints are
not sufficient grounds to declare the checkpoints as per se
illegal. No proof has been presented before the Court to
show that, in the course of their routine checks, the military
indeed committed specific violations of petitioners' right
against unlawful search and seizure or other rights.
In a case filed by the same petitioner organization, Union of
Lawyers and Advocates for People's Right (ULAP) vs.
Integrated National Police, 3it was held that individual
petitioners who do not allege that any of their rights were
violated are not qualified to bring the action, as real parties
in interest.
The constitutional right against unreasonable searches and
seizures is a personal right invocable only by those whose
rights have been infringed, 4 or threatened to be infringed.
What constitutes a reasonable or unreasonable search and
seizure in any particular case is purely a judicial question,
determinable from a consideration of the circumstances
involved.
Petitioner Valmonte's general allegation to the effect that he
had been stopped and searched without a search warrant
by the military manning the checkpoints, without more, i.e.,
without stating the details of the incidents which amount to
a violation of his right against unlawful search and seizure,
is not sufficient to enable the Court to determine whether
there was a violation of Valmonte's right against unlawful
search and seizure. Not all searches and seizures are
prohibited. Those which are reasonable are not forbidden.
A reasonable search is not to be determined by any fixed
formula but is to be resolved according to the facts of each
case. 6
The setting up of the questioned checkpoints in Valenzuela
(and probably in other areas) may be considered as a
security measure to enable the NCRDC to pursue its
mission of establishing effective territorial defense and
maintaining peace and order for the benefit of the public.
Checkpoints may also be regarded as measures to thwart
plots to destabilize the government, in the interest of public
security. In this connection, the Court may take judicial
notice of the shift to urban centers and their suburbs of the
insurgency movement, so clearly reflected in the increased
killings in cities of police and military men by NPA "sparrow
units," not to mention the abundance of unlicensed firearms
and the alarming rise in lawlessness and violence in such
urban centers, not all of which are reported in media, most
likely brought about by deteriorating economic conditions
 which all sum up to what one can rightly consider, at the
very least, as abnormal times. Between the inherent right of
the state to protect its existence and promote public welfare
and an individual's right against a warrantless search which
is however reasonably conducted, the former should
prevail.
G.R. No. 136292 January 15, 2002
RUDY CABALLES y TAIO, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
FACTS:
"[At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino
Noceja and Pat. Alex de Castro, while on a routine patrol in
Barangay Sampalucan, Pagsanjan, Laguna, spotted a
passenger jeep unusually covered with "kakawati" leaves.
Suspecting that the jeep was loaded with smuggled goods,
the two police officers flagged down the vehicle. The jeep
was driven by appellant. When asked what was loaded on
the jeep, he did not answer; he appeared pale and
nervous.
With appellant's consent, the police officers checked the
cargo and they discovered bundles of 3.08 mm
aluminum/galvanized conductor wires exclusively owned by
National Power Corporation (NPC). The conductor wires
weighed 700 kilos and valued at P55, 244.45. Noceja
asked appellant where the wires came from and appellant
answered that they came from Cavinti, a town
approximately 8 kilometers away from Sampalucan.
Thereafter, appellant and the vehicle with the high-voltage
wires were brought to the Pagsanjan Police Station. Danilo
Cabale took pictures of the appellant and the jeep loaded
with the wires which were turned over to the Police Station
Commander of Pagsanjan, Laguna. Appellant was
incarcerated for 7 days in the Municipal jail.
On April 27, 1993, the court a quo rendered judgment5 the
dispositive portion of which reads:
"WHEREFORE, finding the accused guilty beyond
reasonable doubt of the crime of Theft of property worth
P55,244.45, the Court hereby sentences him to suffer
imprisonment from TWO (2) [YEARS], FOUR (4) MONTHS,
and ONE (1) DAY of Prision Correccional, as minimum, to
TEN (10) YEARS of Prision Mayor, as maximum, to
indemnify the complainant National Power Corporation in
the amount of P55, 244.45, and to pay the costs."
On appeal, the Court of Appeals affirmed the judgment of
conviction but deleted the award for damages on the
ground that the stolen materials were recovered and
modified the penalty imposed.
Petitioner comes before us and raises the following issues:
"(a) Whether or not the constitutional right of petitioner was
violated when the police officers searched his vehicle and
seized the wires found therein without a search warrant
and when samples of the wires and references to them
were admitted in evidence as basis for his conviction;
Petitioner contends that the flagging down of his vehicle by
police officers who were on routine patrol, merely on
"suspicion" that "it might contain smuggled goods," does
not constitute probable cause that will justify a warrantless
search and seizure. He insists that, contrary to the findings
of the trial court as adopted by the appellate court, he did
not give any consent, express or implied, to the search of
the vehicle. Perforce, any evidence obtained in violation of
his right against unreasonable search and seizure shall be
deemed inadmissible.
ISSUE: Whether the evidence taken from the warrantless
search is admissible against the appellant.
HELD: NO.
I. Search of moving vehicle
Highly regulated by the government, the vehicle's inherent
mobility reduces expectation of privacy especially when its
transit in public thoroughfares furnishes a highly
reasonable suspicion amounting to probable cause that the
occupant committed a criminal activity.15 Thus, the rules
governing search and seizure have over the years been
steadily liberalized whenever a moving vehicle is the object
of the search on the basis of practicality. This is so
considering that before a warrant could be obtained, the
place, things and persons to be searched must be
described to the satisfaction of the issuing judge a
requirement which borders on the impossible in the case of
smuggling effected by the use of a moving vehicle that can
14
transport contraband from one place to another with
impunity. We might add that a warrantless search of a
moving vehicle is justified on the ground that it is not
practicable to secure a warrant because the vehicle can be
quickly moved out of the locality or jurisdiction in which the
warrant must be sought.16 Searches without warrant of
automobiles is also allowed for the purpose of preventing
violations of smuggling or immigration laws, provided such
searches are made at borders or 'constructive borders' like
checkpoints near the boundary lines of the State.17
The mere mobility of these vehicles, however, does not
give the police officers unlimited discretion to conduct
indiscriminate searches without warrants if made within the
interior of the territory and in the absence of probable
cause.18 Still and all, the important thing is that there was
probable cause to conduct the warrantless search, which
must still be present in such a case.
Although the term eludes exact definition, probable cause
signifies a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a
cautious man's belief that the person accused is guilty of
the offense with which he is charged; or the existence of
such facts and circumstances which could lead a
reasonably discreet and prudent man to believe that an
offense has been committed and that the items, articles or
objects sought in connection with said offense or subject to
seizure and destruction by law is in the place to be
searched.19 The required probable cause that will justify a
warrantless search and seizure is not determined by a fixed
formula but is resolved according to the facts of each
case.20
Routine inspections are not regarded as violative of an
individual's right against unreasonable search. The search
which is normally permissible in this instance is limited to
the following instances: (1) where the officer merely draws
aside the curtain of a vacant vehicle which is parked on the
public fair grounds;24 (2) simply looks into a vehicle; 25 (3)
flashes a light therein without opening the car's doors; 26 (4)
where the occupants are not subjected to a physical or
body search;27 (5) where the inspection of the vehicles is
limited to a visual search or visual inspection; 28 and (6)
where the routine check is conducted in a fixed area.29
None of the foregoing circumstances is obtaining in the
case at bar. The police officers did not merely conduct a
visual search or visual inspection of herein petitioner's
vehicle. They had to reach inside the vehicle, lift the
kakawati leaves and look inside the sacks before they were
able to see the cable wires. It cannot be considered a
simple routine check.
In the case at bar, the vehicle of the petitioner was flagged
down because the police officers who were on routine
patrol became suspicious when they saw that the back of
the vehicle was covered with kakawati leaves which,
according to them, was unusual and uncommon.
We hold that the fact that the vehicle looked suspicious
simply because it is not common for such to be covered
with kakawati leaves does not constitute "probable cause"
as would justify the conduct of a search without a warrant.
In addition, the police authorities do not claim to have
received any confidential report or tipped information that
petitioner was carrying stolen cable wires in his vehicle
which could otherwise have sustained their suspicion. Our
jurisprudence is replete with cases where tipped
information has become a sufficient probable cause to
effect a warrantless search and seizure.37 Unfortunately,
none exists in this case.
II. Plain view doctrine
It cannot likewise be said that the cable wires found in
petitioner's vehicle were in plain view, making its
warrantless seizure valid.
It is clear from the records of this case that the cable wires
were not exposed to sight because they were placed in
sacks39 and covered with leaves. The articles were neither
transparent nor immediately apparent to the police
authorities. They had no clue as to what was hidden
underneath the leaves and branches. As a matter of fact,
they had to ask petitioner what was loaded in his vehicle. In
such a case, it has been held that the object is not in plain
view which could have justified mere seizure of the articles
without further search.40
III. Consented search
Petitioner contends that the statement of Sgt. Victorino
Noceja that he checked the vehicle "with the consent of the
accused" is too vague to prove that petitioner consented to
the search. He claims that there is no specific statement as
to how the consent was asked and how it was given, nor
the specific words spoken by petitioner indicating his
alleged "consent." At most, there was only an implied
acquiescence, a mere passive conformity, which is no
"consent" at all within the purview of the constitutional
guarantee.
In the case at bar, Sgt. Victorino Noceja testified on the
manner in which the search was conducted in this wise:
In case of consented searches or waiver of the
constitutional guarantee against obtrusive searches, it is
fundamental that to constitute a waiver, it must first
appear that (1) the right exists; (2) that the person involved
had knowledge, either actual or constructive, of the
existence of such right; and (3) the said person had an
actual intention to relinquish the right.55
In the case at bar, the evidence is lacking that the
petitioner intentionally surrendered his right against
unreasonable searches. The manner by which the two
police officers allegedly obtained the consent of petitioner
for them to conduct the search leaves much to be desired.
When petitioner's vehicle was flagged down, Sgt. Noceja
approached petitioner and "told him I will look at the
contents of his vehicle and he answered in the
positive." We are hard put to believe that by uttering those
words, the police officers were asking or requesting for
permission that they be allowed to search the vehicle of
petitioner. For all intents and purposes, they were
informing, nay, imposing upon herein petitioner that they
will search his vehicle. The "consent" given under
intimidating or coercive circumstances is no consent within
the purview of the constitutional guaranty. In addition, in
cases where this Court upheld the validity of consented
search, it will be noted that the police authorities expressly
asked, in no uncertain terms, for the consent of the
accused to be searched. And the consent of the accused
was established by clear and positive proof. In the case of
herein petitioner, the statements of the police officers were
not asking for his consent; they were declaring to him
that they will look inside his vehicle. Besides, it is doubtful
whether permission was actually requested and granted
because when Sgt. Noceja was asked during his direct
examination what he did when the vehicle of petitioner
stopped, he answered that he removed the cover of the
vehicle and saw the aluminum wires. It was only after he
was asked a clarificatory question that he added that he
told petitioner he will inspect the vehicle. To our mind, this
was more of an afterthought. Likewise, when Pat. de
Castro was asked twice in his direct examination what they
did when they stopped the jeepney, his consistent answer
was that they searched the vehicle. He never testified that
he asked petitioner for permission to conduct the search.56
Neither can petitioner's passive submission be construed
as an implied acquiescence to the warrantless search. In
People vs. Barros,57appellant Barros, who was carrying a
carton box, boarded a bus where two policemen were
riding. The policemen inspected the carton and found
marijuana inside. When asked who owned the box,
appellant denied ownership of the box and failed to object
to the search. The Court there struck down the warrantless
search as illegal and held that the accused is not to be
presumed to have waived the unlawful search conducted
simply because he failed to object, citing the ruling in the
case of People vs. Burgos.
WHEREFORE, the impugned decision is REVERSED and
SET ASIDE, and accused Rudy Caballes is hereby
ACQUITTED of the crime charged. Cost de oficio.
[G.R. No. 136860. January 20, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
AGPANGA LIBNAO y KITTEN and ROSITA NUNGA y
VALENCIA, accused.
AGPANGA LIBNAO y KITTEN, accused-appellant.
FACTS:
It appears from the evidence adduced by the prosecution
that in August of 1996, intelligence operatives of the
Philippine National Police (PNP) stationed in Tarlac, Tarlac
began conducting surveillance operation on suspected
drug dealers in the area. They learned from their asset that
a certain woman from Tajiri, Tarlac and a companion from
Baguio City were transporting illegal drugs once a month in
15
big bulks.
On October 19, 1996, at about 10 oclock in the evening,
Chief Inspector Benjamin Arceo, Tarlac Police Chief, held a
briefing in connection with a tip which his office received
that the two drug pushers, riding in a tricycle, would be
making a delivery that night. An hour later, the Police Alert
Team installed a checkpoint in Barangay Salapungan to
apprehend the suspects. Witness SPO1 Marlon Gamotea,
PO3 Florante Ferrer and SPO3 Roberto Aquino were
assigned to man the checkpoint.
At about 1:00 oclock in the morning of the following day,
SPO1 Gamotea and PO3 Ferrer flagged down a passing
tricycle. It had two female passengers seated inside, who
were later identified as the appellant Agpanga Libnao and
her co-accused Rosita Nunga. In front of them was a black
bag. Suspicious of the black bag and the twos uneasy
behavior when asked about its ownership and content, the
officers invited them to Kabayan Center No.2 located at the
same barangay. They brought with them the black bag.
Upon reaching the center, PO3 Ferrer fetched Barangay
Captain Roy Pascual to witness the opening of the black
bag. In the meantime, the two women and the bag were
turned over to the investigator on duty, SPO3 Arthur
Antonio. As soon as the barangay captain arrived, the black
bag was opened in the presence of the appellant, her co-
accused and personnel of the center. Found inside it were
eight bricks of leaves sealed in plastic bags and covered
with newspaper. The leaves were suspected to be
marijuana.
After trial, the court convicted appellant and her co-
accused Rosita Nunga.
Aggrieved by the verdict, appellant interposed the present
appeal. In her brief, she assigned the following errors:
1. The Honorable Regional Trial Court failed to appreciate
the contention of the defense that the right of accused
against illegal and unwarranted arrest and search was
violated by the police officers who arrested both accused.
ISSUE: WON it is a valid searches and seizures.
HELD: YES.
We are not persuaded by these contentions; hence, the
appeal must be dismissed.
In arguing that her arrest was unlawful, appellant
capitalizes on the absence of a warrant for her arrest. She
contends that at the time she was apprehended by the
police officers, she was not committing any offense but was
merely riding a tricycle. In the same manner, she impugns
the search made on her belongings as illegal as it was
done without a valid warrant or under circumstances when
warrantless search is permissible. Consequently, any
evidence obtained therein is inadmissible against her.
These arguments fail to impress. The general rule is that a
search may be conducted by law enforcers only on the
strength of a search warrant validly issued by a judge as
provided in Article III, Section 2 of the 1987 Constitution.
Be that as it may, the requirement that a judicial warrant
must be obtained prior to the carrying out of a search and
seizure is not absolute. There are certain familiar
exceptions to the rule, one of which relates to search of
moving vehicles. Warrantless search and seizure of moving
vehicles are allowed in recognition of the impracticability of
securing a warrant under said circumstances as the vehicle
can be quickly moved out of the locality or jurisdiction in
which the warrant may be sought. Peace officers in such
cases, however, are limited to routine checks where the
examination of the vehicle is limited to visual inspection.
When a vehicle is stopped and subjected to an extensive
search, such would be constitutionally permissible only if
the officers made it upon probable cause, i.e., upon a
belief, reasonably arising out of circumstances known to
the seizing officer, that an automobile or other vehicle
contains as item, article or object which by law is subject to
seizure and destruction.
The warrantless search in the case at bench is not
bereft of a probable cause.The Tarlac Police Intelligence
Division had been conducting surveillance operation for
three months in the area. The surveillanceyielded the
information that once a month, appellant and her co-
accused Rosita Nunga transport drugs in big bulks. At
10:00 pm of October 19, 1996, the police received a tip that
the two will be transporting drugs that night riding a tricycle.
Surely, the two were intercepted three hours later, riding a
tricycle and carrying a suspicious-looking black bag, which
possibly contained the drugs in bulk. When they were
asked who owned it and what its content was, both became
uneasy. Under these circumstances, the warrantless
search and seizure of appellants bag was not illegal.
It is also clear that at the time she was apprehended, she
was committing a criminal offense. She was making a
delivery or transporting prohibited drugs in violation of
Article II, Section 4 of R.A. No. 6425. Under the Rules of
Court, one of the instances a police officer is permitted to
carry out a warrantless arrest is when the person to be
arrested is caught committing a crime in flagrante delicto,
thus:
Section 5. Arrest without Warrant; when lawful. - A peace
officer or a private person may, without warrant, arrest a
person:
(a) When in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense;
IN VIEW WHEREOF, the instant appeal is DENIED. The
decision of the trial court finding appellant guilty
beyond reasonable doubt of the offense of violation of
Article II, Section 4 of R.A. No. 6425 in relation to R.A.
No. 7659, and sentencing her to an imprisonment of
reclusion perpetua and to pay a fine of two million
pesos is hereby AFFIRMED.
TOPIC: Instances of Warrantless Searches
G.R. No. 97143 October 2, 1995
TOPIC: Instances of Warrantless Searches
G.R. No. 96177 January 27, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARI MUSA y HANTATALU, accused-appellant.
FACTS: The appellant, Mari Musa, seeks, in this appeal,
the reversal of the decision, dated August 31, 1990, 1 of the
Regional Trial Court (RTC) of Zamboanga City, Branch XII,
finding him guilty of selling marijuana in violation of Article
II, Section 4 of Republic Act No. 6425, as amended,
otherwise known as the Dangerous Drugs Act of 1972.
The information filed on December 15, 1989 against the
appellant reads:
That on or about December 14, 1989, in the
City of Zamboanga, Philippines, and within the
jurisdiction of this Honorable Court, the
above-named accused, not being authorized
by law, did then and there, wilfully, unlawfully
and feloniously sell to one SGT. AMADO ANI,
two (2) wrappers containing dried marijuana
leaves, knowing the same to be a prohibited
drug.
Upon his arraignment on January 11, 1990, the appellant
pleaded not guilty. Prosecution evidence shows that in the
morning of December 13, 1989, T/Sgt. Jesus Belarga,
leader of a NARCOTICS COMMAND (NARCOM) team
based at Calarian, Zamboanga City, instructed Sgt. Amado
Ani to conduct surveillance and test buy on a certain Mari
Musa of Suterville, Zamboanga City. Information received
from civilian informer was that this Mari Musa was
engaged in selling marijuana in said place. So Sgt.
Amado Ani, another NARCOM agent, proceeded to
Suterville, in company with a NARCOM civilian informer, to
the house of Mari Musa to which house the civilian informer
had guided him. The same civilian informer had also
described to him the appearance of Mari Musa. Amado Ani
was able to buy one newspaper-wrapped dried marijuana
for P10.00. Sgt. Ani returned to the NARCOM office and
turned over the newspaper-wrapped marijuana to T/Sgt.
Jesus Belarga. Sgt. Belarga inspected the stuff turned over
to him and found it to be marijuana. The next day,
December 14, 1989, about 1:30 P.M., a buy-bust was
planned. Sgt. Amado Ani was assigned as the poseur
buyer for which purpose he was given P20.00 by Belarga.
The buy-bust money had been taken by T/Sgt. Jesus
Belarga from M/Sgt. Noh Sali Mihasun, Chief of
Investigation Section, and for which Belarga signed a
receipt. The team under Sgt. Foncargas was assigned as
back-up security. A pre-arranged signal was arranged
consisting of Sgt. Ani's raising his right hand, after he had
succeeded to buy the marijuana. The two NARCOM teams
proceeded to the target site in two civilian vehicles.
Belarga's team was composed of Sgt. Belarga, team
leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt.
Biong. Arriving at the target site, Sgt. Ani proceeded to the
16
house of Mari Musa, while the rest of the NARCOM group
positioned themselves at strategic places about 90 to 100
meters from Mari Musa's house. T/Sgt. Belarga could see
what went on between Ani and suspect Mari Musa from
where he was. Ani approached Mari Musa, who came out
of his house, and asked Ani what he wanted. Ani said he
wanted some more stuff. Ani gave Mari Musa the P20.00
marked money. After receiving the money, Mari Musa went
back to his house and came back and gave Amado Ani two
newspaper wrappers containing dried marijuana. Ani
opened the two wrappers and inspected the contents.
Convinced that the contents were marijuana, Ani walked
back towards his companions and raised his right hand.
The two NARCOM teams, riding the two civilian vehicles,
sped towards Sgt. Ani. Ani joined Belarga's team and
returned to the house. At the time Sgt. Ani first approached
Mari Musa, there were four persons inside his house: Mari
Musa, another boy, and two women, one of whom Ani and
Belarga later came to know to be Mari Musa's wife. The
second time, Ani with the NARCOM team returned to Mari
Musa's house, the woman, who was later known as Mari
Musa's wife, slipped away from the house. Sgt. Belarga
frisked Mari Musa but could not find the P20.00 marked
money with him. Mari Musa was then asked where the
P20.00 was and he told the NARCOM team he has given
the money to his wife (who had slipped away). Sgt. Belarga
also found a plastic bag containing dried marijuana inside it
somewhere in the kitchen. Mari Musa was then placed
under arrest and brought to the NARCOM office. At
Suterville, Sgt. Ani turned over to Sgt. Belarga the two
newspaper-wrapped marijuana he had earlier bought from
Mari Musa. In the NARCOM office, Mari Musa first gave his
name as Hussin Musa. Later on, Mari Musa gave his true
name Mari Musa. T/Sgt. Jesus Belarga turned over the
two newspaper-wrapped marijuana (bought at the buy-
bust), the one newspaper-wrapped marijuana (bought at
the test-buy) and the plastic bag containing more marijuana
(which had been taken by Sgt. Lego inside the kitchen of
Mari Musa) to the PC Crime Laboratory, Zamboanga City,
for laboratory examination. The turnover of the marijuana
specimen to the PC Crime Laboratory was by way of a
letter-request, dated December 14, 1989, which was
stamped "RECEIVED" by the PC Crime Laboratory on the
same day. Mrs. Athena Elisa P. Anderson, the Forensic
Chemist of the PC Crime Laboratory, examined the
marijuana specimens subjecting the same to her three
tests. All submitted specimens she examined gave positive
results for the presence of marijuana. Mrs. Anderson
reported the results of her examination in her Chemistry
Report D-100-89, dated December 14, 1989. Mrs.
Anderson identified in court the two newspaper wrapped
marijuana bought at the buy-bust on December 14, 1989,
through her initial and the weight of each specimen written
with red ink on each wrapper. She also identified the one
newspaper-wrapped marijuana bought at the test-buy on
December 13, 1989, through her markings. Mrs. Anderson
also identified her Chemistry Report. T. Sgt. Belarga
identified the two buy-bust newspaper wrapped marijuana
through his initial, the words "buy-bust" and the words
"December 14, 1989, 2:45 P.M." Belarga also identified the
receipt of the P20 marked money, dated December 14,
1989, and his signature thereon. He also identified the
letter-request, dated December 14, 1989, addressed to the
PC Crime Laboratory and his signature thereon and the
stamp of the PC Crime Laboratory marked "RECEIVED".
The trial court summarized the version of the defense,
thus: [O]n December 14, 1989, at about 1:30 in the
afternoon, Mari Musa was in his house at Suterville,
Zamboanga City. With him were his wife, Ahara Musa,
known as Ara, his one-year old child, a woman manicurist,
and a male cousin named Abdul Musa. About 1:30 that
afternoon, while he was being manicured at one hand, his
wife was inside the one room of their house, putting their
child to sleep. Three NARCOM agents, who introduced
themselves as NARCOM agents, dressed in civilian
clothes, got inside Mari Musa's house whose door was
open. The NARCOM agents did not ask permission to enter
the house but simply announced that they were NARCOM
agents. The NARCOM agents searched Mari Musa's house
and Mari Musa asked them if they had a search warrant.
The NARCOM agents were just silent. The NARCOM
agents found a red plastic bag whose contents, Mari Musa
said, he did not know. He also did not know if the plastic
bag belonged to his brother, Faisal, who was living with
him, or his father, who was living in another house about
ten arms-length away. Mari Musa, then, was handcuffed
and when Mari Musa asked why, the NARCOM agents told
him for clarification.
Mari Musa was brought in a pick-up, his wife joining him to
the NARCOM Office at Calarian, Zamboanga City. Inside
the NARCOM Office, Mari Musa was investigated by one
NARCOM agent which investigation was reduced into
writing. The writing or document was interpreted to Mari
Musa in Tagalog. The document stated that the marijuana
belonged to Mari Musa and Mari Musa was asked to sign it.
But Mari Musa refused to sign because the marijuana did
not belong to him. Mari Musa said he was not told that he
was entitled to the assistance of counsel, although he
himself told the NARCOM agents he wanted to be assisted
by counsel.
Mari Musa said four bullets were then placed between the
fingers of his right hand and his fingers were pressed which
felt very painful. The NARCOM agents boxed him and Mari
Musa lost consciousness. While Mari Musa was
maltreated, he said his wife was outside the NARCOM
building. The very day he was arrested (on cross-
examination Mari Musa said it was on the next day), Mari
Musa was brought to the Fiscal's Office by three NARCOM
agents. The fiscal asked him if the marijuana was owned by
him and he said "not." After that single question, Mari Musa
was brought to the City Jail. Mari Musa said he did not tell
the fiscal that he had been maltreated by the NARCOM
agents because he was afraid he might be maltreated in
the fiscal's office.
Mari Musa denied the NARCOM agents' charge that he
had sold two wrappers of marijuana to them; that he had
received from them a P20.00 bill which he had given to his
wife. He did not sell marijuana because he was afraid that
was against the law and that the person selling marijuana
was caught by the authorities; and he had a wife and a very
small child to support. Mari Musa said he had not been
arrested for selling marijuana before. 5
After trial, the trial court rendered the assailed decision with
the following disposition:
WHEREFORE, finding accused Mari Musa y
Hantatalu guilty beyond reasonable doubt of selling
marijuana and pursuant to Sec. 4, Art II of Rep. Act
No. 6425, he is sentenced to life imprisonment and
to pay the fine of P20,000.00, the latter imposed
without subsidiary imprisonment. 6
In this appeal, the appellant contends that his guilt was
not proved beyond reasonable doubt and impugns the
credibility of the prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the
poseur-buyer, is not credible because: (1) prior to the buy-
bust operation, neither Sgt. Ani nor the other NARCOM
agents were personally known by the appellant or vice-
versa; and (2) there was no witness to the alleged giving of
the two wrappers of marijuana by the appellant to Sgt. Ani.
Sgt. Ani testified that on December 13, 1989, upon
instruction by T/Sgt. Jesus Belarga, he conducted a test-
buy operation on the appellant whereby he bought one
wrapper of marijuana for P15.00 from the latter. 7 He
reported the successful operation to T/Sgt. Belarga on the
same day. 8 Whereupon, T/Sgt. Belarga conducted a
conference to organize a buy-bust operation for the
following day. 9
On December 14, 1989, at 1:30 p.m., two NARCOM teams
in separate vehicles headed by T/Sgt. Belarga and a
certain Sgt. Foncardas went to the place of operation,
which was the appellant's house located in Laquian
Compound, Suterville, Zamboanga City. Sgt. Ani was with
the team of T/Sgt. Belarga, whose other members were
Sgts. Lego and Biong. 10 Sgt. Ani was given a marked
P20.00 bill by T/Sgt. Belarga, which was to be used in the
operation.
Upon reaching the place, the NARCOM agents positioned
themselves at strategic places. 11 Sgt. Ani approached the
house. Outside the house, the appellant asked Sgt. Ani
what he wanted. Sgt. Ani asked him for some more
marijuana.12 Sgt. Ani gave him the marked P20.00 bill and
the appellant went inside the house and brought back two
paper wrappers containing marijuana which he handed to
Sgt. Ani. 13 From his position, Sgt. Ani could see that there
were other people in the house. 14
17
After the exchange, Sgt. Ani approached the other
NARCOM agents and made the pre-arranged signal of
raising his right hand. 15 The NARCOM agents,
accompanied by Sgt. Ani, went inside the house and made
the arrest. The agents searched the appellant and unable
to find the marked money, they asked him where it was.
The appellant said that he gave it to his wife.
The Court, after a careful reading of the record, finds the
testimony of Sgt. Ani regarding the buy-bust operation,
which resulted in the apprehension, prosecution and
subsequent conviction of the appellant, to be direct, lucid
and forthright. Being totally untainted by contradictions in
any of the material points, it deserves credence.
The contention that the appellant could not have transacted
with Sgt. Ani because they do not know each other is
without merit.
The appellant, besides assailing Sgt. Ani's credibility, also
questions the credibility of T/Sgt. Belarga. The appellant
submits that since T/Sgt. Belarga admitted that he was
about 90 meters away from Sgt. Ani and the appellant, he
could not have possibly witnessed the sale.
People v. Ale does not apply here because the policeman
in that case testified that he and his companion were
certain that the appellant therein handed marijuana
cigarettes to the poseur-buyer based on the appearance of
the cigarette sticks.
In the case at bar, however, T/Sgt. Belarga did not
positively claim that he saw the appellant hand over
marijuana to Sgt. Ani. What he said was that there was an
exchange of certain articles between the two.
Contrary to the contention of the appellant, it was not
impossible for T/Sgt. Belarga to have seen, from a distance
of 90-100 meters, Sgt. Ani hand to the appellant
"something" and for the latter to give to the former
"something."
Notwithstanding the fact that T/Sgt. Belarga could not have
been certain that what Sgt. Ani received from the appellant
was marijuana because of the distance, his testimony,
nevertheless, corroborated the direct evidence, which the
Court earlier ruled to be convincing.
The appellant next assails the seizure and admission
as evidence of a plastic bag containing marijuana
which the NARCOM agents found in the appellant's
kitchen. It appears that after Sgt. Ani gave the pre-
arranged signal to the other NARCOM agents, the latter
moved in and arrested the appellant inside the house. They
searched him to retrieve the marked money but didn't find
it. Upon being questioned, the appellant said that he gave
the marked money to his wife. 31 Thereafter, T/Sgt. Belarga
and Sgt. Lego went to the kitchen and noticed what T/Sgt.
Belarga described as a "cellophane colored white and
stripe hanging at the corner of the kitchen." 32 They asked
the appellant about its contents but failing to get a
response, they opened it and found dried marijuana leaves.
At the trial, the appellant questioned the admissibility of the
plastic bag and the marijuana it contains but the trial court
issued an Order ruling that these are admissible in
evidence. 33
Built into the Constitution are guarantees on the freedom of
every individual against unreasonable searches and
seizures by providing in Article III, Section 2, the following:
The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination
under oath or affirmation of the complainant and the
witness he may produce, and particularly describing the
place to be searched and the persons or things to be
seized.
Furthermore, the Constitution, in conformity with the
doctrine laid down in Stonehill v. Diokno, 34 declares
inadmissible, any evidence obtained in violation of the
freedom from unreasonable searches and seizures. 35
While a valid search warrant is generally necessary before
a search and seizure may be effected, exceptions to this
rule are recognized. Thus, in Alvero v. Dizon, 36 the Court
stated that. "[t]he most important exception to the necessity
for a search warrant is the right of search and seizure as an
incident to a lawful arrest." 37
Rule 126, Section 12 of the Rules of Court expressly
authorizes a warrantless search and seizure incident to a
lawful arrest, thus:
Sec. 12. Search incident to lawful arrest. A person
lawfully arrested may be searched for dangerous weapons
or anything which may be used as proof of the commission
of an offense, without a search warrant.
There is no doubt that the warrantless search incidental to
a lawful arrest authorizes the arresting officer to make a
search upon the person of the person arrested. As early as
1909, the Court has ruled that "[a]n officer making an arrest
may take from the person arrested any money or property
found upon his person which was used in the commission
of the crime or was the fruit of the crime or which might
furnish the prisoner with the means of committing violence
or of escaping, or which may be used as evidence in the
trial of the cause . . . " 38 Hence, in a buy-bust operation
conducted to entrap a drug-pusher, the law enforcement
agents may seize the marked money found on the person
of the pusher immediately after the arrest even without
arrest and search warrants. 39
In the case at bar, the NARCOM agents searched the
person of the appellant after arresting him in his house but
found nothing. They then searched the entire house and, in
the kitchen, found and seized a plastic bag hanging in a
corner.
The warrantless search and seizure, as an incident to a
suspect's lawful arrest, may extend beyond the person of
the one arrested to include the premises or surroundings
under his immediate control. 40 Objects in the "plain view" of
an officer who has the right to be in the position to have
that view are subject to seizure and may be presented as
evidence. 41
The "plain view" doctrine may not, however, be used to
launch unbridled searches and indiscriminate seizures
nor to extend a general exploratory search made solely
to find evidence of defendant's guilt. The "plain view"
doctrine is usually applied where a police officer is not
searching for evidence against the accused, but
nonetheless inadvertently comes across an incriminating
object. 45 Furthermore, the U.S. Supreme Court stated the
following limitations on the application of the doctrine:
What the "plain view" cases have in common is that
the police officer in each of them had a prior
justification for an intrusion in the course of which he
came inadvertently across a piece of evidence
incriminating the accused. The doctrine serves to
supplement the prior justification whether it be a warrant
for another object, hot pursuit, search incident to lawful
arrest, or some other legitimate reason for being present
unconnected with a search directed against the accused
and permits the warrantless seizure. Of course, the
extension of the original justification is legitimate only
where it is immediately apparent to the police that they
have evidence before them; the "plain view" doctrine may
not be used to extend a general exploratory search from
one object to another until something incriminating at last
emerges. 46
It has also been suggested that even if an object is
observed in "plain view," the "plain view" doctrine will not
justify the seizure of the object where the incriminating
nature of the object is not apparent from the "plain view" of
the object. 47 Stated differently, it must be immediately
apparent to the police that the items that they observe may
be evidence of a crime, contraband, or otherwise subject to
seizure.
In the instant case, the appellant was arrested and his
person searched in the living room. Failing to retrieve the
marked money which they hoped to find, the NARCOM
agents searched the whole house and found the plastic
bag in the kitchen. The plastic bag was, therefore, not
within their "plain view" when they arrested the appellant as
to justify its seizure. The NARCOM agents had to move
from one portion of the house to another before they
sighted the plastic bag. Unlike Ker vs. California, where the
police officer had reason to walk to the doorway of the
adjacent kitchen and from which position he saw the
marijuana, the NARCOM agents in this case went from
room to room with the obvious intention of fishing for more
evidence.
Moreover, when the NARCOM agents saw the plastic bag
hanging in one corner of the kitchen, they had no clue as to
its contents. They had to ask the appellant what the bag
18
contained. When the appellant refused to respond, they
opened it and found the marijuana. Unlike Ker v. California,
where the marijuana was visible to the police officer's eyes,
the NARCOM agents in this case could not have
discovered the inculpatory nature of the contents of the bag
had they not forcibly opened it. Even assuming then, that
the NARCOM agents inadvertently came across the plastic
bag because it was within their "plain view," what may be
said to be the object in their "plain view" was just the plastic
bag and not the marijuana. The incriminating nature of the
contents of the plastic bag was not immediately apparent
from the "plain view" of said object. It cannot be claimed
that the plastic bag clearly betrayed its contents, whether
by its distinctive configuration, its transprarency, or
otherwise, that its contents are obvious to an observer. 48
ISSUE: W/N the plain view doctrine is applicable in the
case at bar.
HELD: NO. We, therefore, hold that under the
circumstances of the case, the "plain view" doctrine does
not apply and the marijuana contained in the plastic bag
was seized illegally and cannot be presented in evidence
pursuant to Article III, Section 3(2) of the Constitution.
The exclusion of this particular evidence does not,
however, diminish, in any way, the damaging effect of the
other pieces of evidence presented by the prosecution to
prove that the appellant sold marijuana, in violation of
Article II, Section 4 of the Dangerous Drugs Act of 1972.
We hold that by virtue of the testimonies of Sgt. Ani
and T/Sgt. Belarga and the two wrappings of marijuana
sold by the appellant to Sgt. Ani, among other pieces
of evidence, the guilt of the appellant of the crime
charged has been proved beyond reasonable doubt.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ARTURO FIGUEROA, accused-appellant.
FACTS: Arturo Figueroa was charged with Illegal
Possession of Firearm and Ammunition in an information
that read:
The undersigned Assistant City
Prosecutor accuses ARTURO
FIGUEROA of the crime of Illegal
Possession of the Firearm and
Ammunition, committed as follows:
That on or about the 10th day of
November 1989 at San Francisco
Subdivision, Brgy. San Juan, Municipality
of Gen. Trias, Province of Cavite,
Philippines and within the jurisdiction of
this Honorable Court, the above-named
accused, did, then and there, wilfully,
unlawfully and feloniously have in his
possession and control one (1) pistol cal.
45 with defaced serial number with one
magazine and seven (7) live
ammunitions for the said firearm without
first having obtained the necessary
permit or license from competent
authority to possess the same. 1
When arraigned, the accused entered a plea of "Not
Guilty," thereupon, trial ensued.
It would appear that on 10 November 1989, at around
seven o'clock in the morning, Captain Lodivino Rosario, the
Executive Officer of the 215th PC Company, and his men
arrived at the residence of accused Arturo Figueroa at
Barangay San Juan, San Francisco Subdivision, General
Trias, Cavite, to serve a warrant for his arrest issued by the
Regional Trial Court of Makati, Branch 56, in Criminal Case
No. 411 and Criminal Case No. 412 (for the crime of Illegal
Possession of Ammunitions and for Violation of Section 16,
Art. III, Republic Act 6425). While serving the warrant of
arrest, the officers noticed, strewn around, aluminum foil
packages of different sizes in the sala. Suspecting thus the
presence of "shabu" in the premises, the arresting officers
requested appellant, as well as his brother and sister, to
acquiesce to a search of the house. The search yielded a .
45 caliber pistol, a magazine, seven live ammunitions, and
a match box containing an aluminum foil package with
"shabu." Confronted, Figueroa denied ownership of the
items. An inventory was conducted by the PC team,
attested to by Barangay Captain Bigornia, of the seized
items.
The accused, besides assailing the credibility of the
witnesses for the prosecution, questioned the
admissibility in evidence of the firearm and rounds of
ammunition which, he claims, were discovered and
taken during a warrantless search.
On 30 October 1990, the trial court rendered a decision
finding the accused Arturo Figueroa guilty.
From the judgment, the decretal portion of which reads
WHEREFORE, the Court finds the
accused guilty beyond reasonable doubt
of the crime charged and is hereby
sentenced to suffer the penalty
of reclusion perpetua (life imprisonment)
and to pay the costs.
The firearm and ammunitions are
confiscated and forfeited in favor of the
government.
Capt. Lodivino Rosario, Executive
Officer, 215th PC Coy, is hereby ordered
to return to Arturo Figueroa the
motorcycle with Motor Engine
No. KIE 073574 taken from the house of
the Figueroas on November 10, 1989. 2
this appeal is interposed by Arturo Figueroa (a)
reiterating his argument against the admissibility
against him of evidence seized following a
warrantless search and (b) challenging anew the
credibility of the prosecution witnesses.
ISSUE: W/N the firearm and rounds of ammunition are
admissible as evidence.
HELD: YES. The appeal cannot be sustained. The .45
caliber pistol, magazine and rounds of ammunition
were not unlawfully obtained. While we might concede
difficulty in readily accepting the statement of the
prosecution that the search was conducted with
consent freely given by appellant and members of his
household, it should be pointed out, in any case, that the
search and seizure was done admittedly on the occasion of
a lawful arrest. 3
A significant exception from the necessity for a search
warrant is when the search and seizure is effected as
an incident to a lawful arrest 4 and so, in People
vs. Musa, 5 this Court elaborated; thus
The warrantless search and seizure, as
an incident to a suspect's lawful arrest,
may extend beyond the person of the
one arrested to include the premises or
surrounding under his immediate control.
Objects in the "plain view" of an officer
who has the right to be in the position to
have that view are subject to seizure and
may be presented as evidence.
Appellant faults the trial court for giving credence to
the testimony given by witnesses for the prosecution
despite what he claims to be inconsistencies in their
declarations. Appellant particularly calls attention to the
assertion of prosecution witness Sgt. Atas, to the effect that
appellant was with a companion inside a room when
arrested and that the seized firearm was found under
the cushion of the bed, against the statement of Capt.
Rosario, another prosecution witness, that appellant
was alone when arrested and that the gun was found under
appellant's bed. We do not consider these discrepancies to
be so major as to warrant a complete rejection of their
questioned testimony. It is not unnatural for witnesses of
the same incident to somehow perceive differently and to
thereby vary in their respective accounts of the event. 6 The
contradiction of witnesses on minor details is nothing
unusual and should be expected. 7 We see no cogent
reason for not according due respect to the findings of the
trial court on the credibility of the witnesses.
Finally, it is claimed that appellant was just "framed-up."
The conduct of the appellant following his arrest would
belie this allegation. Appellant himself admitted that he
failed to complain about this matter when he was
apprehended. Neither did he report the so-called "planting
of the gun" to the police authorities nor did he bring it up
before the Metropolitan Trial Judge when he appeared for
preliminary investigation. In fact, it would seem that the
only time appellant mentioned the alleged "frame-up" was
when he testified at the trial of this case. No plausible
reason was given by appellant that would have prompted
police authorities to falsely impute a serious crime against
him. Absent a strong showing to the contrary, we must
19
accept the presumption of regularity in the
performance of official duty. 8
WHEREFORE, the appealed decision is AFFIRMED in
toto. Costs against accused-appellant.
SO ORDERED.
TOPIC: Exclusionary Rule
[G.R. No. 98060. January 27, 1997.]
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. SATURNINA SALAZAR y
PALANAS, accused-appellant.
FACTS: As her defense in this appeal, appellant alleges
violation of her constitutional rights against
warrantless search and seizure, and to counsel during
custodial investigations. However, the search, being
merely an incident of a legitimate buy-bust operation
against illegal drugs, needed no warrant. And while her
right to counsel during the custodial investigation was
indeed violated, there were other evidence sufficient to
warrant her conviction beyond reasonable doubt.
This appeal seeks the reversal of the Decision 1 in Criminal
Case No. 925 of the Regional Trial Court of Oroquieta City,
Branch 13, finding appellant Saturnina Salazar y Palanas
guilty beyond reasonable doubt of violation of Section 4,
Article II of Republic Act No. 6425 (Dangerous Drugs Act of
1972), as amended by Presidential DecreeNo. 1675, and
imposing upon her the penalty of life imprisonment and
payment of P20,000.00 as fine, with costs.
The Facts According to the Prosecution
Appellant was tried under an Information 2 the accusatory
portion of which reads:
"'That on or about the 23rd day of August 1988, at
1:35 o'clock in the afternoon, more or less, in
Barangay Poblacion II, Oroquieta City, Philippines,
and within the jurisdiction of this Honorable Court,
the said accused did then and there and without
authority of law, wilfully, unlawfully and feloniously
sell, deliver and give away five (5) marijuana
sticks to a NARCOM Agent posing as a buyer in
consideration of the amount of Five Peso (P25.00)
marked bill with Serial No. FJ526501; and, as a
result of the said Buy-Bust operation, confiscated
from the control and possession of the accused
were six (6) marijuana sticks and five (5) grams,
more or less, of dried marijuana leaves in addition
to the five (5) marijuana sticks aforestated.'
On arraignment, appellant, assisted by counsel pleaded not
guilty to the crime charged. 4 The prosecution presented
Sgt. Jim Cubillan, Cpl. Emilio de Guzman, and Forensic
Chemist Bernabe Arenga and various evidence proving the
following facts:
After being informed of the activities of drug pushers in
Oroquieta City, Sgt. Cubillan and Cpl. de Guzman of the
Narcotics Command (NARCOM) of the Philippine
Constabulary (PC), left Ozamis City on August 23, 1988,
for the former city. Upon their arrival at noon, they were met
by the police informer who accompanied them to the place
where a pusher operated. Near the City Hall, the informer
pointed to them the residence-cum-store of appellant and
thereafter left the two constabulary operatives.
Right then and there, Sgt. Cubillan took a five-peso bill with
Serial No. FJ526501 from his billfold, marked it with his
initials and handed it to Cpl. de Guzman. The latter then
went to the store and told the woman seated on the
windowsill that he wanted "to score" 5 ("mag-score nga
ako"). 6 The woman nodded. After indicating that he
wanted five (5) sticks of marijuana, Cpl. de Guzman asked
her if what she was about to give him was "genuine" and
gave her the five-peso bill. After the woman gave him five
sticks of marijuana, Cpl. de Guzman unwrapped one stick.
He smelled its contents and at the same time noticed the
seeds therein. He then placed the contraband in his pocket,
showed his identification card to the woman and told her
that he was a NARCOM agent. 7
At that moment, Sgt. Cubillan approached the two. He had
positioned himself at the back of the store, around four or
five meters away from Cpl. de Guzman and the
woman. 8 He and Cpl. de Guzman arrested the woman,
whom they later learned to be Saturnina "Nena" Salazar.
They recovered from appellant the P5.00-bill. Upon being
informed by Cpl. de Guzman that appellant had taken the
five marijuana sticks from a plastic container on the table
inside the store, Sgt. Cubillan took the container which had
six (6) more marijuana sticks and around five (5) grams of
dried marijuana leaves. 9
The NARCOM agents took appellant to the local PC
headquarters. On board a motorcar, Sgt. Cubillan asked
her if she knew of other pushers in the vicinity. She pointed
to the place of Josephine Bayotas. When they passed by
Bayotas' residence, the two PC operatives also arrested
her. 10
At the PC headquarters in Camp Naranjo, Sgt. Cubillan
interrogated appellant while Cpl. de Guzman took her bio-
data. 11 Her fingerprints were also taken. 12 Thereafter,
Cpl. de Guzman made her sign her bio-data and the paper
containing her fingerprints. It was Sgt. Cubillan who
instructed her to sign the piece of bond paper which was
used to wrap the marijuana sticks before they were
submitted to the laboratory for examination. 13
For their part, Sgt. Cubillan and Cpl. de Guzman executed
a joint affidavit to support the complaint that was to be filed
against appellant. 14
The confiscated and dried leaves were turned over to Sgt.
Dominador Berjuega who sent the specimen to the
National Bureau of Investigation (NBI in Cagayan de Oro
City. NBI Forensic Chemist Bernabe Arenga, who
conducted the examination, executed a Certification, dated
August 29, 1988, (Exh. D) 15 stating that the laboratory
examinations conducted on the eleven (11) confiscated
cigarette sticks and the "crushed dried stalks and flowering
tops suspected to be marijuana" yielded "positive results
for marijuana." 16 He also submitted Dangerous Drugs
Report No. DDM-88-107 (Exh. E) finding: 17
"Cross weight of specimens . . .
15.3280 grams
Microscopic, chemical and
chromatographic examinations
conducted on the above-mentioned
specimens gave POSITIVE RESULTS
for MARIJUANA."
According to the Defense
The defense presented Jeanife Mission, appellant's 12-
year-old daughter, to testify on the manner by which the
arrest was conducted by the NARCOM agents. According
to Jeanife, at around 1:35 p.m. on August 23, 1988, she
was at home with her mother. Jeanife was watching their
sari-sari store in front of their house as her mother took a
nap. Two persons arrived and went inside their house. One
of them ransacked their things. When her mother woke up,
she was held by one of the two persons and taken to the
sala. Jeanife failed to hear their conversation, but she saw
the two persons take her mother away. It was at the jail
when she next saw her mother. (Di ko na isasama yung
ibang nangyari, yan na pinaka summary ng defense. Puro
Denial lang naman yan at di din tinanggap ng trial court)
As stated earlier, Saturnina "Nena" Salazar was convicted
of the crime charged.
Through her counsel, she interposed the instant
appeal.
After the parties had filed their respective briefs, appellant,
through the Public Attorney's Office, filed an urgent
manifestation and motion stating that since she was found
in possession of five (5) grams of dried marijuana leaves
and eleven (11) sticks of marijuana which, at .02 gram per
stick, would all sum up to less than 6 grams only and
therefore would involve a penalty of only six (6) years, her
appeal should be referred to the Court of Appeals for
review. As legal basis therefor, she cited the Decision
in People vs. Simon 23 and the August 15, 1994 Resolution
in G.R. No. 113360, People vs. Margarita Joseco y
Magbanua, where the total weight of the subject illegal
drugs was 400 grams. 24 However, in the Resolution of
March 27, 1995, the Court merely noted the said urgent
manifestation and motion. 25 Hence, notwithstanding the
insignificant amount of marijuana involved, the Court
itself shall consider this case. 26 After all, the penalty
actually imposed by the trial court was life imprisonment.
Ruling of the Trial Court
The trial court gave full faith and credence to the
testimonies of the prosecution witnesses. On the other
hand, it found that the defense was unable to sufficiently
20
rebut the presumption of regularity in the government
witnesses' performance of their duty, finding it hard to
believe that the NARCOM agents brought her to their
headquarters to force her into divulging the identity of other
drugs pushers in the area and that the case against her
was only a "trumped-up charge". Appellant's defense
consisting of denials did not overcome the positive
testimony of the prosecution witnesses.
The Court's Ruling
Appellant's Guilt Sufficiently Proven
Section 4, Article II of R.A. 6425 provides:
"SEC. 4. Sale, Administration, Delivery,
Distribution and Transportation of Prohibited
Drugs. The penalty of reclusion perpetua to
death and a fine ranging from five hundred
thousand pesos to ten million pesos shall be
imposed upon any person who, unless authorized
by law, shall sell, administer, deliver, give away to
another, distribute, dispatch in transit or transport
any prohibited drug, or shall act as a broker in any
of such transactions.
xxx xxx xxx"
Indispensable in every prosecution for illegal sale of
marijuana, a prohibited drug, is the submission of proof that
the sale of the illicit drug took place between the poseur-
buyer and the seller thereof, coupled with the presentation
of the corpus delicti as evidence in court. 27 The element
of sale must be unequivocally established in order to
sustain a conviction.
This is the import of the testimony of Cpl. de Guzman
COURT:
Q Do you know what is the meaning of score?
A That is the term used by the users so that they
will not be identified.
Q And what did the suspected pusher say?
A She nodded.
xxx xxx xxx
Q What made you conclude that the 5 cigarette
sticks which the alleged pusher gave you were
marijuana cigarettes?
A I learned that from my training and schooling.
xxx xxx xxx
Q And will you please tell us why you arrested that
woman?
A We arrested her because our Narcom agent
bought marijuana from her (sic) and after that we
arrested her.
xxx xxx xxx
A We arrested her because she sold a suspected
marijuana cigarette.
Q And this table were (sic) the plastic container
was placed from where the five suspected
marijuana cigarettes were taken, where was it
located?
A Inside the store.
Q And what did you do after you were informed by
de Guzman that the five suspected marijuana
cigarettes were taken from the plastic container?
A I got the plastic container and I saw six sticks of
suspected marijuana cigarettes and five grams of
dried marijuana leaves.
xxx xxx xxx
Tinanggal ko uit yung Q&A parts na kasama na sa
facts sa taas ^
Combined with the findings of Forensic Chemist Arenga
that the cigarette sticks confiscated from appellant were
marijuana, the corpus delicti of the crime had thus been
established with certainty and conclusiveness.
Search Warrant Unnecessary
In alleging that the NARCOM agents conducted an
unlawful search and seizure in her house, appellant
contends that, because said agents had known of alleged
drug-pushing activities in Oroquieta City, they should have
obtained a search warrant before intruding into her
residence. Appellant's contention is devoid of merit as
the necessity of acquiring a search warrant has not
been proven in this case.
In going to Oroquieta City on the strength of reports of
drug-pushing activities, the NARCOM agents did not know
of the identity of the alleged pushers. 30 When they
conducted the buy-bust operation, it was precisely for the
purpose of entrapping and identifying the culprit. A buy-bust
operation has been considered as an effective mode of
apprehending drug pushers. If carried out with due regard
to constitutional and legal safeguards, a buy-bust operation
deserves judicial sanction. 31
Because the drug pusher had been caught in flagrante
delicto, the arresting officers were duty-bound to
apprehend the culprit immediately and to search her for
anything which may be used as proof of the commission of
the crime. 32 The search, being an incident of a lawful
arrest, needed no warrant for its validity.
Hence, appellant may not successfully claim the right
against a warrantless search, 34 even as regards the
plastic container with dried marijuana leaves which
was found on the table in her house/store. Contrary to
appellant's contention, the contraband seized from her,
having been obtained as a result of the buy-bust operation
to which the defense failed to impute any irregularity, was
correctly admitted in evidence.
Informer's Testimony Merely Corroborative
Neither is her right to confront witnesses against her
affected by the prosecution's failure to present the informer
who pointed to her as a drug pusher. The presentation of
an informant in an illegal drugs case is not essential for
conviction nor is it indispensable for a successful
prosecution because his testimony would be merely
corroborative and cumulative. 35 In a case involving the
sale of illegal drugs, what should be proven beyond
reasonable doubt is the fact of the sale itself. Hence, like
the non-presentation of the marked money used in buying
the contraband, the non-presentation of the informer on the
witness stand would not necessarily create a hiatus in the
prosecutions' evidence.
(insert: sinaktan daw siya and all pero di ito inadmit ng
court kasi self-serving)
Prosecution's Other Evidence
Sufficient for Conviction
As in the Simon case, where the non-admission of certain
pieces of evidence did not weaken the prosecution's case,
there is proof beyond reasonable doubt of the
consummation of the sale of marijuana by appellant to a
NARCOM agent. Hence, the presumption of innocence in
her favor has been sufficiently overturned in accordance
with law. Her contention that a mother-of-five like her would
not resort to selling illegal drugs in such a small amount as
the marijuana involved in this case, is belied by her own
admission that when she committed the crime, she was still
on probation for having been caught in another occasion
selling marijuana in 1986. 40
Neither could the location of her residence and store
behind the DSWD office and near the city jail as well as the
fact that she did not know Cpl. de Guzman deter her from
committing the offense.
Appellant's contention that she could not have taken the
risk of selling the five (5) marijuana sticks for only five
pesos and therefore the contraband was "planted," is totally
baseless. She herself did not bring out this alleged
irregularity in the performance of the NARCOM agents'
duty at the witness stand. On the other hand, the testimony
of the two (2) peace officers carried with it the presumption
of regularity in the performance of official functions. 42
Appellant claims that the prosecution evidence is weak
because Sgt. Cubillan was allegedly caught lying on the
witness stand. She alleges that the prevarication of said
witness was reflected by his testimony that after arresting
appellant, they proceeded to the PC headquarters. Later,
he testified that they still dropped by Bayotas' residence to
arrest her. This alleged change in testimony which was
explained by the witness himself, 43 is too inconsequential
to dent the prosecution's compelling evidence on the fact of
sale of illegal drugs.
The Court also finds too preposterous to merit scrutiny
appellant's contention that in convicting her, the trial court
relied on her previous conviction for violation of
theDangerous Drugs Law. Her being under probation was
not alleged in the Information. It was brought out in the trial
where she herself admitted that she was on probation
when she committed the offense in this case. However,
while the trial court mentioned that fact in the Decision of
March 1, 1991, it based its findings on evidence presented
by both the prosecution and the defense and not on the
21
fact that appellant was a probationer convicted of engaging
in the abominable trade of illegal drugs when she
committed the offense.
The Proper Penalty
There being no circumstance to disqualify appellant from
availment of the benefits of the Indeterminate Sentence
law, the same must be applied.
Prescinding from the foregoing, this Court is convinced that
the guilt of appellant has been sufficiently proven beyond
reasonable doubt by the evidence on record.
WHEREFORE, the appealed Decision convicting appellant
Saturnina Salazar y Palanas of the crime of violation of
Section 4, Article II of Republic Act. No. 6425, as amended,
is hereby AFFIRMED subject to the MODIFICATION that
appellant shall suffer the indeterminate sentence of four (4)
months of arresto mayor as minimum penalty to four (4)
years and two (2) months of prision correccional as
maximum penalty.
Considering that appellant has been detained for the
maximum penalty herein imposed, her IMMEDIATE
RELEASE from custody, unless she is being held for other
valid reasons, is hereby ordered.
SO ORDERED.
#34 TOPIC: Exclusionary Rule
G.R. No. L-69401 June 23, 1987
RIZAL ALIH, NASIM ALIH, AISAN ALIH, MIJAL ALIH,
OMAR ALIH, EDRIS MUKSAN, MULSIDI WARADIL,
BILLY ASMAD RAMSID ASALI, BANDING USMAN,
ANGGANG HADANI, WARMIKHAN HAPA, GABRAL
JIKIRI, ALLAN TAN, MUJAHIRIN MARAJUKI, KENNEDY
GONZALES, URDUJA ALIH, MERLA ALIH, and
NURAISA ALIH VDA DE FEROLINO, petitioners,
vs.
MAJOR GENERAL DELFIN C. CASTRO, IN HIS
CAPACITY AS COMMANDER SOUTHCOM AND
REGIONAL UNIFIED COMMAND, REGION IX,
ZAMBOANGA CITY, COLONEL ERNESTO CALUPIG, IN
HIS CAPACITY AS COMMANDING OFFICER OF THE
SPECIAL FORCES GROUP (AIRBORNE) AND
INTERNAL DEFENSE COMMAND, OTHERWISE KNOWN
AS IdC MAJOR ARNOLD BLANCO IN HIS CAPACITY AS
COMMANDING OFFICER OF THE PHILIPPINE
MARINES AND 1ST LIEUTENANT DARWIN GUERRA IN
HIS CAPACITY AS ACTS SUPERVISOR, INTERNAL
DEFENSE COMMAND, ARMED FORCES OF THE
PHILIPPINES, respondents.
FACTS: On November 25, 1984, a contingent of more than
two hundred Philippine marines and elements of the home
defense forces raided the compound occupied by the
petitioners at Gov. Alvarez street, Zamboanga City, in
search of loose firearms, ammunition and other
explosives. 1
The military operation was commonly known and dreaded
as a "zona," which was not unlike the feared practice of
the kempeitai during the Japanese Occupation of rounding
up the people in a locality, arresting the persons fingered by
a hooded informer, and executing them outright (although
the last part is not included in the modern refinement).
The initial reaction of the people inside the compound was
to resist the invasion with a burst of gunfire. No one was
hurt as presumably the purpose was merely to warn the
intruders and deter them from entering. Unfortunately, as
might be expected in incidents like this, the situation
aggravated soon enough. The soldiers returned fire and a
bloody shoot-out ensued, resulting in a number of
casualties. 2
The besieged compound surrendered the following
morning, and sixteen male occupants were arrested, later
to be finger-printed, paraffin-tested and photographed over
their objection. The military also inventoried and
confiscated nine M16 rifles, one M14 rifle, nine rifle
grenades, and several rounds of ammunition found in the
premises. 3
On December 21, 1984, the petitioners came to this Court
in a petition for prohibition and mandamus with preliminary
injunction and restraining order. Their purpose was to
recover the articles seized from them, to prevent these
from being used as evidence against them, and to
challenge their finger-printing, photographing and paraffin-
testing as violative of their right against self-incrimination.4
The Court, treating the petition as an injunction suit with a
prayer for the return of the articles alleged to have been
illegally seized, referred it for hearing to Judge Omar U.
Amin of the regional trial court, Zamboanga City. 5After
receiving the testimonial and documentary evidence of the
parties, he submitted the report and recommendations on
which this opinion is based. 6
The petitioners demand the return of the arms and
ammunition on the ground that they were taken without a
search warrant as required by the Bill of Rights. This is
confirmed by the said report and in fact admitted by the
respondents, "but with avoidance. 7
Article IV, Section 3, of the 1973 Constitution, which was
in force at the time of the incident in question, provided as
follows:
Sec. 3. The right of the people to be secure in
their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall
issue except upon probable cause to be
determined by the judge, or such other
responsible officer as may be authorized by law,
after examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched, and the persons or things to be seized.
It was also declared in Article IV, Section 4(2) that-
Sec. 4(2) Any evidence obtained in violation of this
or the preceding section shall be inadmissible for
any purpose in any proceeding.
The respondents, while admitting the absence of the
required such warrant, sought to justify their act on the
ground that they were acting under superior orders. 8 There
was also the suggestion that the measure was necessary
because of the aggravation of the peace and order problem
generated by the assassination of Mayor Cesar Climaco. 9
Superior orders" cannot, of course, countermand
the Constitution. The fact that the petitioners were
suspected of the Climaco killing did not excuse
the constitutional short-cuts the respondents took.
As eloquently affirmed by the U.S. Supreme Court
in Ex parte Milligan: 10
The Constitution is a law for rulers and people,
equally in war and in peace, and covers with the
shield of its protection all classes of men, at all
times and under all circumstances. No doctrine,
involving more pernicious consequences, was
ever invented by the wit of man than that any of its
provisions can be suspended during any of the
great exigencies of government.
ISSUE: Whether or not the acts of the respondents are
violative of the Bill of Rights.
HELD: YES. The precarious state of lawlessness in
Zamboanga City at the time in question certainly did not
excuse the non-observance of the constitutional guaranty
against unreasonable searches and seizures. There was
no state of hostilities in the area to justify, assuming it
could, the repressions committed therein against the
petitioners.
It is so easy to say that the petitioners were outlaws and
deserved the arbitrary treatment they received to take them
into custody; but that is a criminal argument. It is also
fallacious. Its obvious flaw lies in the conclusion that the
petitioners were unquestionably guilty on the strength alone
of unsubstantiated reports that they were stockpiling
weapons.
The record does not disclose that the petitioners were
wanted criminals or fugitives from justice. At the time of
the "zona," they were merely suspected of the mayor's
slaying and had not in fact even been investigated for it. As
mere suspects, they were presumed innocent and not
guilty as summarily pronounced by the military.
Indeed, even if were assumed for the sake of argument
that they were guilty, they would not have been any less
entitled to the protection of the Constitution, which covers
both the innocent and the guilty. This is not to say, of
course, that the Constitution coddles criminals. What it
does simply signify is that, lacking the shield of innocence,
the guilty need the armor of the Constitution, to protect
them, not from a deserved sentence, but from arbitrary
punishment. Every person is entitled to due process. It is
no exaggeration that the basest criminal, ranged against
22
the rest of the people who would condemn him outright, is
still, under the Bill of Rights, a majority of one.
If the respondents did not actually disdain the Constitution
when they made their illegal raid, they certainly gave every
appearance of doing so. This is truly regrettable for it was
incumbent on them, especially during those tense and
tindery times, to encourage rather than undermine respect
for the law, which it was their duty to uphold.
In acting as they did, they also defied the precept that
"civilian authority is at all times supreme over the military"
so clearly proclaimed in the 1973 Constitution. 11 In the
instant case, the respondents simply by-passed the civil
courts, which had the authority to determine whether or not
there was probable cause to search the petitioner's
premises. Instead, they proceeded to make the raid without
a search warrant on their own unauthorized determination
of the petitioner's guilt.
The respondents cannot even plead the urgency of the raid
because it was in fact not urgent. They knew where the
petitioners were. They had every opportunity to get a
search warrant before making the raid. If they were worried
that the weapons inside the compound would be spirited
away, they could have surrounded the premises in the
meantime, as a preventive measure. There was absolutely
no reason at all why they should disregard the orderly
processes required by the Constitution and instead insist
on arbitrarily forcing their way into the petitioner's premises
with all the menace of a military invasion.
Conceding that the search was truly warrantless, might not
the search and seizure be nonetheless considered valid
because it was incidental to a legal arrest? Surely not. If all
the law enforcement authorities have to do is force their
way into any house and then pick up anything they see
there on the ground that the occupants are resisting arrest,
then we might as well delete the Bill of Rights as a fussy
redundancy.
When the respondents could have easily obtained a search
warrant from any of the TEN civil courts then open and
functioning in Zamboanga City, 12 they instead simply
barged into the beleaguered premises on the verbal order
of their superior officers. One cannot just force his way into
any man's house on the illegal orders of a superior,
however lofty his rank. Indeed, even the humblest hovel is
protected from official intrusion because of the ancient rule,
revered in all free regimes, that a man's house is his castle.
It may be frail; its roof may shake; the wind may
enter; the rain may enter. But the King of England
may not enter. All the forces of the Crown dare not
cross the threshold of the ruined tenement. 13
If the arrest was made under Rule 113, Section 5, of the
Rules of Court in connection with a crime about to be
committed, being committed, or just committed, what was
that crime? There is no allegation in the record of such a
justification. Parenthetically, it may be observed that under
the Revised Rule 113, Section 5(b), the officer making the
arrest must have personal knowledge of the ground
therefor as stressed in the recent case of People v.
Burgos. 14
It follows that as the search of the petitioners'
premises was violative of the Constitution, all the
firearms and ammunition taken from the raided
compound are inadmissible in evidence in any of the
proceedings against the petitioners. These articles are
"fruits of the poisonous tree. 15 As Judge Learned Hand
observed, "Only in case the prosecution which itself
controls the seizing officials, knows that it cannot profit by
their wrong, will the wrong be repressed. 16 Pending
determination of the legality of such articles, however, they
shall remain in custodia legis, subject to such appropriate
disposition as the corresponding courts may decide. 17
The objection to the photographing, fingerprinting and
paraffin-testing of the petitioners deserves slight comment.
The prohibition against self-incrimination applies to
testimonial compulsion only. As Justice Holmes put it in
Holt v. United States, 18 "The prohibition of compelling a
man in a criminal court to be a witness against himself is a
prohibition of the use of physical or moral compulsion to
extort communications from him, not an exclusion of his
body as evidence when it may be material."
The fearful days of hamleting salvaging, "zona" and other
dreaded operations should remain in the past, banished
with the secret marshals and their covert license to kill
without trial. We must be done with lawlessness in the
name of law enforcement. Those who are supposed to
uphold the law must not be the first to violate it. As Chief
Justice Claudio Teehankee stressed in his concurring
opinion in Lacanilao v. De Leon, 19 "It is time that the martial
law regime's legacy of the law of force be discarded and
that there be a return to the force and rule of law."
All of us must exert efforts to make our country truly free
and democratic, where every individual is entitled to the full
protection of the Constitution and the Bill of Rights can
stand as a stolid sentinel for all, the innocent as well as the
guilty, including the basest of criminals.
WHEREFORE, the search of the petitioners' premises on
November 25, 1984, is hereby declared ILLEGAL and all
the articles seized as a result thereof are inadmissible in
evidence against the petitioners in any proceedings.
However, the said articles shall remain in custodia
legis pending the outcome of the criminal cases that have
been or may later be filed against the petitioners.
SO ORDERED.
TOPIC: Privacy of Communication and Correspondence
G.R. No. 93833 September 28, 1995
SOCORRO D. RAMIREZ, petitioner,
vs.
HONORABLE COURT OF APPEALS, and ESTER S.
GARCIA, respondents.
FACTS: A civil case damages was filed by petitioner
Socorro D. Ramirez in the Regional Trial Court of Quezon
City alleging that the private respondent, Ester S. Garcia, in
a confrontation in the latter's office, allegedly vexed,
insulted and humiliated her in a "hostile and furious mood"
and in a manner offensive to petitioner's dignity and
personality," contrary to morals, good customs and public
policy."
In support of her claim, petitioner produced a verbatim
transcript of the event and sought moral damages,
attorney's fees and other expenses of litigation in the
amount of P610,000.00. The transcript on which the civil
case was based was culled from a tape recording of the
confrontation made by petitioner.The transcript reads as
follows:
Plaintiff Soccoro D. Ramirez (Chuchi) Good
Afternoon M'am.
Defendant Ester S. Garcia (ESG)
Anobaangnangyarisa 'yo, nakalimotkana kung
paanokanapuntarito, porke member kana,
magsumbongka kung anoanggagawinkosa 'yo.
CHUCHI Kasi, naka duty ako noon.
ESG Taposiniwan no. (Sic)
CHUCHI Hindi m'am,
peroilanbesesnanilaakongbinalikan,
sabingganoon
ESG Ito and (sic) masasabikosa 'yo, ayaw
kung (sic) mag explain ka, kasihanggang 10:00
p.m., kinabukasanhindikanapumasok.
Ngayonakoangbabaliksa 'yo, nag-aaplykasa
States, nag-aaplykasa review mo, kung
kakailanganinang certification mo,
kalimutanmonakasihindikasa akin makakahingi.
CHUCHI Hindi M'am. Kasianganokotalaga
noon i-cocontinueko up to 10:00 p.m.
ESG Bastoska, nakalimutanmona kung
paanokapumasokditosa hotel. Magsumbongkasa
Union kung gusto mo. Nakalimutanmona kung
paanokanakapasokdito "Do you think that on
your own makakapasokka kung hindiako.
Panunumbyoyannakita (Sinusumbatannakita).
CHUCHI ItutuloykonaM'amsanaang duty ko.
ESG
Kasoilangbesesnaakongbinabalikandoonngmga
no (sic) ko. Nakalimutanmonaba kung
paanokapumasoksa hotel, kung on your own
merit alamkonaman kung gaanoka "kabobo" mo.
Maramiang nag-aaplyalamkonghindikapapasa.
CHUCHI Kumuha kami ng exam noon.
ESG Oo, perohindikapapasa.
CHUCHI Eh, bakitakoangnakuhaniDr. Tamayo
ESG Kukuninkakasiako.
CHUCHI Eh, di sana
ESG Huwag mong ipagmalakina may
utakkakasiwalakangutak.
Akalamobamakukuhakaditokunghindiako.
CHUCHI Mag-eexplainako.
23
ESG Huwagna, hindiako mag-papa-explain sa
'yo, makaalalaka kung paanoka puma-rito.
"Putang-ina" sasabi-sabihinmokamag-
anakngnanay at tataymoangmgamagulangko.
Walanaakongpakialam, dahilnanditokasaloob,
nasalabaskapuwedekanghindipumasok,
okeyyannasaloobkaumaliskadoon.
CHUCHI KasiM'am, binbalikanakongmgataga
Union.
ESG Nandiyannarinako, perohuwag mong
kalimutannahindikamakakapasok kung hindiako.
Kung hindimokinikilalayanokeylangsa akin,
dahiltaposkana.
CHUCHI Ina-anokom'amnautangnaloob.
ESG Huwagnalang, hindimoutangnaloob, kasi
kung bagasa no, nilapastanganmoako.
CHUCHI Paanokitanilapastanganan?
ESG Mabuti pa lumabaskana. Hindi
naakomakikipagusapsa 'yo.
Lumabaskana.Magsumbongka.
As a result of petitioner's recording of the event and
alleging that the said act of secretly taping the confrontation
was illegal, private respondent filed a criminal case before
the Regional Trial Court of Pasay City for violation of
Republic Act 4200, entitled "An Act to prohibit and
penalize wire tapping and other related violations of
private communication, and other purposes."
Upon arraignment, in lieu of a plea, petitioner filed a Motion
to Quash the Information on the ground that the facts
charged do not constitute an offense, particularly a violation
of R.A. 4200. In an order May 3, 1989, the trial court
granted, agreeing with petitioner that 1) the facts charged
do not constitute an offense under R.A. 4200; and that 2)
the violation punished by R.A. 4200 refers to a the
taping of a communication by a person other than a
participant to the communication.
RespondentCA promulgated its assailed Decision declaring
the trial court's order of May 3, 1989 null and void, and
holding that:
[T]he allegations sufficiently constitute an
offense punishable under Section 1 of
R.A. 4200. In thus quashing the
information based on the ground that the
facts alleged do not constitute an
offense, the respondent judge acted in
grave abuse of discretion correctible by
certiorari. 5
Petitioner vigorously argues, as her "main and principal
issue"that the applicable provision of Republic Act 4200
does not apply to the taping of a private conversation by
one of the parties to the conversation. She contends that
the provision merely refers to the unauthorized taping of a
private conversation by a party other than those involved in
the communication.In relation to this, petitioner avers that
the substance or content of the conversation must be
alleged in the Information, otherwise the facts charged
would not constitute a violation of R.A. 4200.Finally,
petitioner argues that R.A. 4200 penalizes the taping of a
"private communication," not a "private conversation"
and that consequently, her act of secretly taping her
conversation with private respondent was not illegal
under the said act.
ISSUE: W/N the Anti-Wiretapping Act applies in recordings
by one of the parties in the conversation
HELD: YES. First, legislative intent is determined
principally from the language of a statute.Section 1 of
R.A. 4200 entitled, "An Act to Prohibit and Penalized Wire
Tapping and Other Related Violations of Private
Communication and Other Purposes," provides:
Sec. 1. It shall be unlawful for any
person, not being authorized by all the
parties to any private communication or
spoken word, to tap any wire or cable, or
by using any other device or
arrangement, to secretly overhear,
intercept, or record such communication
or spoken word by using a device
commonly known as a dictaphone or
dictagraph or detectaphone or walkie-
talkie or tape recorder, or however
otherwise described.
The aforestated provision clearly and unequivocally
makes it illegal for any person, not authorized by all
the parties to any private communication to secretly
record such communication by means of a tape
recorder. The law makes no distinction as to whether the
party sought to be penalized by the statute ought to be a
party other than or different from those involved in the
private communication. The statute's intent to penalize all
persons unauthorized to make such recording is
underscored by the use of the qualifier "any".
Consequently, as respondent Court of Appeals correctly
concluded, "even a (person) privy to a communication who
records his private conversation with another without the
knowledge of the latter (will) qualify as a violator" under this
provision of R.A. 4200.
The unambiguity of the express words of the provision,
taken together with the above-quoted deliberations from
the Congressional Record, therefore plainly supports the
view held by the respondent court that the provision seeks
to penalize even those privy to the private communications.
Where the law makes no distinctions, one does not
distinguish.
Second, the nature of the conversations is immaterial
to a violation of the statute. The substance of the same
need not be specifically alleged in the information. What
R.A. 4200 penalizes are the acts of secretly overhearing,
intercepting or recording private communications by means
of the devices enumerated therein. The mere allegation
that an individual made a secret recording of a private
communication by means of a tape recorder would suffice
to constitute an offense under Section 1 of R.A. 4200.
Finally, petitioner's contention that the phrase "private
communication" in Section 1 of R.A. 4200 does not include
"private conversations"narrows the ordinary meaning of
the word "communication" to a point of absurdity. The
word communicate comes from the latin word
communicare, meaning "to share or to impart." In its
ordinary signification, communication connotes the act of
sharing or imparting signification, communication connotes
the act of sharing or imparting, as in a conversation, or
signifies the "process by which meanings or thoughts are
shared between individuals through a common system of
TOPIC: Privacy of Communication and
Correspondence
G.R. No. L-69809 October 16, 1986
EDGARDO A. GAANAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF
THE PHILIPPINES, respondents.
FACTS: This petition for certiorari asks for an
interpretation of Republic Act No. 4200, otherwise known
as the Anti-Wiretapping Act.
In the morning of October 22, 1975, complainant
Atty. Tito Pintor and his client Manuel Montebon
were in the living room of complainant's residence
discussing the terms for the withdrawal of the
complaint for direct assault which they filed with
the Office of the City Fiscal of Cebu against
Leonardo Laconico. After they had decided on the
proposed conditions, complainant made a
telephone call to Laconico.
That same morning, Laconico telephoned
appellant, who is a lawyer, to come to his office
and advise him on the settlement of the direct
24
symbols (as language signs or gestures)" These definitions
are broad enough to include verbal or non-verbal, written or
expressive communications of "meanings or thoughts"
which are likely to include the emotionally-charged
exchange, on February 22, 1988, between petitioner and
private respondent, in the privacy of the latter's office. Any
doubts about the legislative body's meaning of the phrase
"private communication" are, furthermore, put to rest by the
fact that the terms "conversation" and "communication"
were interchangeably used by Senator Taada in his
Explanatory Note to the bill quoted below:
It has been said that innocent people have nothing
to fear from their conversations being overheard.
But this statement ignores the usual nature of
conversations as well the undeniable fact that
most, if not all, civilized people have some
aspects of their lives they do not wish to expose.
Free conversations are often characterized by
exaggerations, obscenity, agreeable falsehoods,
and the expression of anti-social desires of views
not intended to be taken seriously. The right to the
privacy of communication, among others, has
expressly been assured by our Constitution.
Needless to state here, the framers of our
Constitution must have recognized the nature of
conversations between individuals and the
significance of man's spiritual nature, of his
feelings and of his intellect. They must have
known that part of the pleasures and satisfactions
of life are to be found in the unaudited, and free
exchange of communication between individuals
free from every unjustifiable intrusion by
whatever means.
In Gaanan vs. Intermediate Appellate Court,a case
which dealt with the issue of telephone wiretapping, we
held that the use of a telephone extension for the purpose
of overhearing a private conversation without authorization
did not violate R.A. 4200 because a telephone extension
devise was neither among those "device(s) or
arrangement(s)" enumerated therein, following the principle
that "penal statutes must be construed strictly in favor of
the accused." 20The instant case turns on a different note,
because the applicable facts and circumstances pointing to
a violation of R.A. 4200 suffer from no ambiguity, and the
statute itself explicitly mentions the unauthorized
"recording" of private communications with the use of tape-
recorders as among the acts punishable.
WHEREFORE, because the law, as applied to the case at
bench is clear and unambiguous and leaves us with no
discretion, the instant petition is hereby DENIED. The
decision appealed from is AFFIRMED. Costs against
petitioner.
SO ORDERED.
assault case because his regular lawyer, Atty.
Leon Gonzaga, went on a business trip. According
to the request, appellant went to the office of
Laconico where he was briefed about the
problem.
When complainant called up, Laconico
requested appellant to secretly listen to the
telephone conversation through a telephone
extension so as to hear personally the
proposed conditions for the settlement.
Appellant heard complainant enumerate the
following conditions for withdrawal of the
complaint for direct assault.
(a) the P5,000.00 was no longer acceptable, and
that the figure had been increased to P8,000.00. A
breakdown of the P8,000.00 had been made
together with other demands, to wit: (a) P5,000.00
no longer for the teacher Manuel Montebon, but
for Atty. Pintor himself in persuading his client to
withdraw the case for Direct Assault against Atty.
Laconico before the Cebu City Fiscal's Office;
 (b) Public apology to be made by Atty. Laconico
before the students of Don Bosco Technical High
School;
(c) Pl,000.00 to be given to the Don Bosco Faculty
club;
(d) transfer of son of Atty. Laconico to another
school or another section of Don Bosco Technical
High School;
(e) Affidavit of desistance by Atty. Laconico on the
Maltreatment case earlier filed against Manuel
Montebon at the Cebu City Fiscal's Office,
whereas Montebon's affidavit of desistance on the
Direct Assault Case against Atty. Laconico to be
filed later;
(f) Allow Manuel Montebon to continue teaching at
the Don Bosco Technical School;
(g) Not to divulge the truth about the settlement of
the Direct Assault Case to the mass media;
(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn,
August 26, 1981, pp. 47-48).
Twenty minutes later, complainant called up again
to ask Laconico if he was agreeable to the
conditions. Laconico answered 'Yes'. Complainant
then told Laconico to wait for instructions on
where to deliver the money. Complainant called
up again and instructed Laconico to give the
money to his wife at the office of the then
Department of Public Highways. Laconico who
earlier alerted his friend Colonel Zulueta of the
Criminal Investigation Service of the Philippine
Constabulary, insisted that complainant himself
should receive the money. When he received the
money at the Igloo Restaurant, complainant was
arrested by agents of the Philippine Constabulary.
Appellant executed on the following day an
affidavit stating that he heard complainant
demand P8,000.00 for the withdrawal of the case
for direct assault. Laconico attached the affidavit
of appellant to the complainant for
robbery/extortion which he filed against
complainant. Since appellant listened to the
telephone conversation without complainant's
consent, complainant charged appellant and
Laconico with violation of the Anti-Wiretapping
Act.
After trial on the merits, the lower court found both Gaanan
and Laconico guilty of violating Section 1 of Republic Act
No. 4200.Petitioner appealed to the appellate court. The
Intermediate Appellate Court affirmed the decision of the
trial court, holding that the communication between the
complainant and accused Laconico was private in
nature and, therefore, covered by Rep. Act No. 4200;
that the petitioner overheard such communication
without the knowledge and consent of the
complainant; and that the extension telephone which
was used by the petitioner to overhear the telephone
conversation between complainant and Laconico is
covered in the term "device' as provided in Rep. Act
No. 4200.
The petitioner assails the decision of the appellate court
and raises the following issues; (a) whether or not the
telephone conversation between the complainant and
accused Laconico was private in nature; (b) whether or not
an extension telephone is covered by the term "device or
arrangement" under Rep. Act No. 4200; (c) whether or not
the petitioner had authority to listen or overhear said
telephone conversation and (d) whether or not Rep. Act No.
4200 is ambiguous and, therefore, should be construed in
favor of the petitioner.
Section 1 of Rep. Act No. 4200 provides:
Section 1. It shall be unlawful for any
person, not being authorized by all the
parties to any private communication or
spoken word, to tap any wire or cable or
by using any other device or
arrangement, to secretly overhear,
intercept, or record such communication
or spoken word by using a device
commonly known as a dictaphone or
dictagraph or detectaphone or walkie-
talkie or tape-recorder, or however
otherwise described:
25
It shall be unlawful for any person, be he
a participant or not in the act or acts
penalized in the next preceeding
sentence, to knowingly possess any tape
record, wire record, disc record, or any
other such record, or copies thereof, of
any communication or spoken word
secured either before or after the
effective date of this Act in the manner
prohibited by this law; or to replay the
same for any other person or persons; or
to communicate the contents thereof,
either verbally or in writing, or to furnish
transcriptions thereof, whether complete
or partial, to any other person: Provided,
that the use of such record or any copies
thereof as evidence in any civil, criminal
investigation or trial of offenses
mentioned in Section 3 hereof, shall not
be covered by this prohibition.
ISSUE: W/N an extension telephone is among the
prohibited devices in Section 1 of the Act, such that its use
to overhear a private conversation would constitute
unlawful interception of communications between the two
parties using a telephone line.
HELD: YES. There is no question that the telephone
conversation between complainant Atty. Pintor and accused
Atty. Laconico was "private" in the sense that the words
uttered were made between one person and another as
distinguished from words between a speaker and a public.
It is also undisputed that only one of the parties gave the
petitioner the authority to listen to and overhear the caller's
message with the use of an extension telephone line.
Obviously, complainant Pintor, a member of the Philippine
bar, would not have discussed the alleged demand for an
P8,000.00 consideration in order to have his client
withdraw a direct assault charge against Atty. Laconico filed
with the Cebu City Fiscal's Office if he knew that another
lawyer was also listening.
Because of technical problems caused by the sensitive
nature of electronic equipment and the extra heavy loads
which telephone cables are made to carry in certain areas,
telephone users often encounter what are called "crossed
lines". An unwary citizen who happens to pick up his
telephone and who overhears the details of a crime might
hesitate to inform police authorities if he knows that he
could be accused under Rep. Act 4200 of using his own
telephone to secretly overhear the private communications
of the would be criminals.
The main issue in the resolution of this petition,
however, revolves around the meaning of the phrase
"any other device or arrangement." Is an extension of a
telephone unit such a device or arrangement as would
subject the user to imprisonment ranging from six
months to six years with the accessory penalty of perpetual
absolute disqualification for a public officer or deportation
for an alien? Private secretaries with extension lines to their
bosses' telephones are sometimes asked to use answering
or recording devices to record business conversations
between a boss and another businessman. Would
transcribing a recorded message for the use of the boss be
a proscribed offense? or for that matter, would a "party line"
be a device or arrangement under the law?
The petitioner contends that telephones or extension
telephones are not included in the enumeration of
"commonly known" listening or recording devices, nor
do they belong to the same class of enumerated
electronic devices contemplated by law. He maintains
that in 1964, when Senate Bill No. 9 (later Rep. Act No.
4200) was being considered in the Senate, telephones and
extension telephones were already widely used
instruments, probably the most popularly known
communication device.
Whether or not listening over a telephone party line would
be punishable was discussed on the floor of the Senate.
Yet, when the bill was finalized into a statute, no mention
was made of telephones in the enumeration of devices
"commonly known as a dictaphone or dictagraph,
detectaphone or walkie talkie or tape recorder or however
otherwise described." The omission was not a mere
oversight. Telephone party lines were intentionally deleted
from the provisions of the Act.
The respondent People argue that an extension
telephone is embraced and covered by the term
"device" within the context of the aforementioned law
because it is not a part or portion of a complete set of a
telephone apparatus. It is a separate device and distinct
set of a movable apparatus consisting of a wire and a set of
telephone receiver not forming part of a main telephone set
which can be detached or removed and can be transferred
away from one place to another and to be plugged or
attached to a main telephone line to get the desired
communication corning from the other party or end.
The law refers to a "tap" of a wire or cable or the use of a
"device or arrangement" for the purpose of secretly
overhearing, intercepting, or recording the communication.
There must be either a physical interruption through a
wiretap or the deliberate installation of a device or
arrangement in order to overhear, intercept, or record the
spoken words.
An extension telephone cannot be placed in the same
category as a dictaphone, dictagraph or the other
devices enumerated in Section 1 of RA No. 4200 as the
use thereof cannot be considered as "tapping" the wire
or cable of a telephone line. The telephone extension in
this case was not installed for that purpose. It just
happened to be there for ordinary office use. It is a rule in
statutory construction that in order to determine the true
intent of the legislature, the particular clauses and phrases
of the statute should not be taken as detached and isolated
expressions, but the whole and every part thereof must be
considered in fixing the meaning of any of its parts.
Hence, the phrase "device or arrangement" in Section 1 of
RA No. 4200, although not exclusive to that enumerated
therein, should be construed to comprehend instruments of
the same or similar nature, that is, instruments the use of
which would be tantamount to tapping the main line of a
telephone. It refers to instruments whose installation or
presence cannot be presumed by the party or parties being
overheard because, by their very nature, they are not of
common usage and their purpose is precisely for tapping,
intercepting or recording a telephone conversation.An
extension telephone is an instrument which is very
common especially now when the extended unit does not
have to be connected by wire to the main telephone but
can be moved from place ' to place within a radius of a
kilometer or more. A person should safely presume that the
party he is calling at the other end of the line probably has
an extension telephone and he runs the risk of a third party
listening as in the case of a party line or a telephone unit
26
which shares its line with another. The conduct of the party
would differ in no way if instead of repeating the message
he held out his hand-set so that another could hear out of it
and that there is no distinction between that sort of action
and permitting an outsider to use an extension telephone
for the same purpose.
Furthermore, it is a general rule that penal statutes must be
construed strictly in favor of the accused. Thus, in case of
doubt as in the case at bar, the penal statute must be
construed as not including an extension telephone. In
the case of People v. Purisima, 86 SCRA 542, 562, we
explained that:
American jurisprudence sets down the
reason for this rule to be the tenderness
of the law of the rights of individuals; the
object is to establish a certain rule by
conformity to which mankind would be
safe, and the discretion of the court
limited. The purpose is not to enable a
guilty person to escape punishment
through a technicality but to provide a
precise definition of forbidden acts."
We also ruled that on the construction or interpretation of a
legislative measure, the primary rule is to search for and
determine the intent and spirit of the law. Not only did our
lawmakers not contemplate the inclusion of an extension
telephone as a prohibited device or arrangement" but of
greater importance, they were more concerned with
penalizing the act of recording than the act of merely
listening to a telephone conversation.It can be readily
seen that our lawmakers intended to discourage,
through punishment, persons such as government
authorities or representatives of organized groups
from installing devices in order to gather evidence for
use in court or to intimidate, blackmail or gain some
unwarranted advantage over the telephone users.
Consequently, the mere act of listening, in order to be
punishable must strictly be with the use of the
enumerated devices in RA No. 4200 or others of similar
nature. We are of the view that an extension telephone is
not among such devices or arrangements.
WHEREFORE, the petition is GRANTED. The decision of
the then Intermediate Appellate Court dated August 16,
1984 is ANNULLED and SET ASIDE. The petitioner is
hereby ACQUITTED of the crime of violation of Rep. Act
No. 4200, otherwise known as the Anti-Wiretapping Act.
SO ORDERED.
TOPIC: Privacy of Communication and
Correspondence
G.R. No. 107383 February 20, 1996
CECILIA ZULUETA, petitioner,
vs.
COURT OF APPEALS and ALFREDO MARTIN,
respondents.
FACTS:This is a petition to review the decision of the
Court of Appeals, affirming the decision of the Regional
Trial Court of Manila which ordered petitioner to return
documents and papers taken by her from private
respondent's clinic without the latter's knowledge and
consent.
Petitioner Cecilia Zulueta is the wife of private respondent
Alfredo Martin. On March 26, 1982, petitioner entered the
clinic of her husband, a doctor of medicine, and in the
presence of her mother, a driver and private respondent's
secretary, forcibly opened the drawers and cabinet in
her husband's clinic and took 157 documents
consisting of private correspondence between Dr.
Martin and his alleged paramours, greetings cards,
cancelled checks, diaries, Dr. Martin's passport, and
photographs. The documents and papers were seized for
use in evidence in a case for legal separation and for
disqualification from the practice of medicine which
petitioner had filed against her husband.
Dr. Martin brought this action below for recovery of the
documents and papers and for damages against
petitioner. TheRegional Trial Court of Manila rendered
judgment for private respondent, Dr. Alfredo Martin,
declaring him "the capital/exclusive owner of the
properties described in paragraph 3 of plaintiff's Complaint
or those further described in the Motion to Return and
Suppress" and ordering Cecilia Zulueta and any person
acting in her behalf to immediately return the properties
to Dr. Martin and to pay him P5,000.00, as nominal
damages; P5,000.00, as moral damages and attorney's
fees; and to pay the costs of the suit. The writ of
preliminary injunction earlier issued was made final and
petitioner Cecilia Zulueta and her attorneys and
representatives were enjoined from "using or
submitting/admitting as evidence" the documents and
papers in question. The Court of Appeals affirmed the
decision of the Regional Trial Court.In appealing from the
decision of the Court of Appeals affirming the trial court's
decision, petitioner's only ground is that in Alfredo Martin
v. Alfonso Felix, Jr., this Court ruled that the documents
and papers were admissible in evidence and, therefore,
their use by petitioner's attorney, Alfonso Felix did not
constitute malpractice or gross misconduct.
ISSUE: W/N the injunction declaring the privacy of
communication and correspondence to be inviolable apply
even to the spouse of the aggrieved party
HELD:YES. The Court of Appeals erred in affirming the
trial courts decision. Petitioner's contention has no merit.
Indeed the documents and papers in question are
inadmissible in evidence. The constitutional injunction
declaring "the privacy of communication and
correspondence [to be] inviolable" is no less applicable
simply because it is the wife (who thinks herself aggrieved
by her husband's infidelity) who is the party against whom
the constitutional provision is to be enforced. The only
exception to the prohibition in the Constitution is if
there is a "lawful order [from a] court or when public
safety or order requires otherwise, as prescribed by
law."Any violation of this provision renders the evidence
obtained inadmissible "for any purpose in any
proceeding."
The intimacies between husband and wife do not
justify any one of them in breaking the drawers and
cabinets of the other and in ransacking them for any
telltale evidence of marital infidelity. A person, by
contracting marriage, does not shed his/her integrity
or his right to privacy as an individual and the
constitutional protection is ever available to him or to
her.
The law insures absolute freedom of communication
between the spouses by making it privileged. Neither
27
husband nor wife may testify for or against the other
without the consent of the affected spouse while the
marriage subsists. Neither may be examined without the
consent of the other as to any communication received in
confidence by one from the other during the marriage,
save for specified exceptions. But one thing is freedom of
communication; quite another is a compulsion for each
one to share what one knows with the other. And this has
nothing to do with the duty of fidelity that each owes to the
other.
WHEREFORE, the petition for review is DENIED for lack
of merit.
SO ORDERED.
[other issue]
The case against Atty. Felix, Jr. was for disbarment.
Among other things, private respondent, Dr. Alfredo
Martin, as complainant in that case, charged that in using
the documents in evidence, Atty. Felix, Jr. committed
malpractice or gross misconduct because of the injunctive
order of the trial court. In dismissing the complaint against
Atty. Felix, Jr., this Court took note of the following defense
of Atty. Felix; Jr. which it found to be "impressed with
merit:"
On the alleged malpractice or gross misconduct
of respondent [Alfonso Felix, Jr.], he maintains
that:
When respondent refiled Cecilia's case for legal
separation before the Pasig Regional Trial Court,
there was admittedly an order of the Manila
Regional Trial Court prohibiting Cecilia from using
the documents Annex "A-1 to J-7." On
September 6, 1983, however having appealed
the said order to this Court on a petition for
certiorari, this Court issued a restraining order on
aforesaid date which order temporarily set aside
the order of the trial court. Hence, during the
enforceability of this Court's order, respondent's
request for petitioner to admit the genuineness
and authenticity of the subject annexes cannot be
looked upon as malpractice. Notably, petitioner
Dr. Martin finally admitted the truth and
authenticity of the questioned annexes, At that
point in time, would it have been malpractice for
respondent to use petitioner's admission as
evidence against him in the legal separation case
pending in the Regional Trial Court of Makati?
Respondent submits it is not malpractice.
Significantly, petitioner's admission was done not
thru his counsel but by Dr. Martin himself under
oath, such verified admission constitutes an
affidavit, and, therefore, receivable in evidence
against him. Petitioner became bound by his
admission. For Cecilia to avail herself of her
husband's admission and use the same in her
action for legal separation cannot be treated as
malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative
case amounts to no more than a declaration that his use
of the documents and papers for the purpose of securing
Dr. Martin's admission as to their genuiness and
authenticity did not constitute a violation of the injunctive
order of the trial court. By no means does the decision in
that case establish the admissibility of the documents and
papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was
acquitted of the charge of violating the writ of preliminary
injunction issued by the trial court, it was only because, at
the time he used the documents and papers, enforcement
of the order of the trial court was temporarily restrained by
this Court. The TRO issued by this Court was eventually
lifted as the petition for certiorari filed by petitioner against
the trial court's order was dismissed and, therefore, the
prohibition against the further use of the documents and
papers became effective again.