You are on page 1of 2

Exceptions Stop and Frisk



An information was filed with the RTC of Mandaluyong, Branch 213, against Alvin Comerciante ("Comerciante"). He was
found to have in possession two (2) heat-sealed transparent plastic sachets with shabu which the police acquired after he
was frisked after the police spotted him (from a distance of ten [10] meters) standing and showing "improper and
unpleasant movements" together with Erick Dasilla ("Dasilla"), with one of them passing a plastic sachet to the other. The
RTC convicted him of the crime of Illegal Possession of Dangerous Drugs. Accordingly, Comerciante appealed with the
Court of Appeals but the CA merely re-affirmed the decision of the RTC. On appeal with the Supreme Court, it was held
that the search conducted on Comerciante was illegal as "improper and unpleasant movements" cannot be considered as
probable cause, hence, the warrantless arrest was unlawful. Considering the foregoing, the evidence acquired from such
search is inadmissible (Fruit of the Poisonous Tree Doctrine). Hence, the SC acquitted Comerciante and exonerated him
from all criminal liability.

Exclusionary Rule
To protect people from unreasonable searches and seizures, Section 3(2), Article III of the Constitution provides
an exclusionary rule which instructs that evidence obtained and confiscated during unreasonable searches and
seizures are deemed tainted and should be excluded for being the fruit of a poisonous tree. Such pieces of
evidence are therefore inadmissible.
The law requires that there first be a lawful arrest before a search can be made and this process cannot be done
in the reverse.
While the stop and frisk is an instance wherein a warrantless is allowed, the same cannot be done without
probable cause based on the circumstances.
For a warrantless arrest to operate the following elements must be met:
o Person arrested must execute an overt act indicating that he has just committed, is actually committing
or is attempting to commit a crime; and
o Such act is done in the presence or within the view of the arresting officer (there is personal knowledge
on the part of the officer).

Alvin Comerciante (accused) [Commerciante]
Erick Dasilla (person Comerciante was standing with, was eventually acquitted before Comerciante) [Dasilla]
Agent Eduardo Radan (Agent of NARCOTICS Group) [Agent Radan]
PO3 Bienvy Calag II (arresting officer) [PO3 Calag]

1. 30 July 2003 Agent Radan and PO3 Calag were on a motorcycle patrolling the area on their way to visit their friend.
a. On the way to visit their friend
b. Cruising at a speed of 30 KM/HR along Private Rode, Mandaluyong
c. Spotted at a distance of ten (10) meters, two (2) men in front of a jeepney
d. Men were identified as: Comerciante and Dasilla
i. Men were standing and showing "improper and unpleasant movements"
ii. One of them was handing plastic sachets to the other
e. At five (5) meters, PO3 Calag introduced himself as a police officer and arrested the two men, confiscating
two small plastic sachets containing shabu.
2. After the prosecution rested its case, Dasilla filed a demurrer to evidence subsequently granted by the RTC, which
resulted to Dasilla's acquittal.
3. Comerciante failed to file his own demurrer and the RTC considered this as him waiving his right to do so and ordered
him to present his evidence
4. Comerciante averred, in his defense, that:
a. PO3 Calag was looking for "Barok" a notorious drug pusher.
b. That after being arrested, they were asked money in exchange for their release.
c. When they failed to meet the demand, they were brought to another police station and underwent inquest

5. The RTC ruled on 29 July 2009 that Comerciante was guilty of violating Section 11, Article II of RA 9165
a. RTC ruled that PO3 Calag conducted a valid warrantless search since the officer saw Comerciante in plain
view carrying the sachets.
b. Sentenced to twelve (12) years and one (1) day to twenty (20) years
c. Ordered to pay the fine of Php 300,000.
6. Comerciante appealed to the CA but the CA affirmed his conviction on 20 October 2011.
7. With the denial of his Motion for Reconsideration, Comerciante filed a Rule 45 petition with the Supreme Court.


1. Whether or not the CA correctily affirmed Comerciante's conviction. No. The evidence against Comerciante is
inadmissible as it was procured through an unlawful search (fruit of the poisonous tree doctrine). The same
should result in his acquittal.
a. The OSG's argument, on behalf of the People of the Philippines, was that the warrantless arrest was valid
pursuant to the stop and frisk rule, and hence Comerciante's conviction should be upheld.
b. However, the SC held that:
i. There was no lawful arrest.
ii. Because it is highly implausible that PO3 Calag, even assuming that he has perfect vision, would be
able to identify from 10 meters, while moving at a speed of 30 km/hr on the motorcycle, miniscule
amounts of shabu inside two (2) very small plastic sachets as held by Comerciante.
iii. There is no overt act that could be properly attributed to Comerciante as to rouse suspicion in the
mind of PO3 Calag that the former had just committed, was currently committing, or was about to
commit a crime.
iv. The acts of standing around with a companion handing over something cannot be considered as a
criminal act.
c. Hence, there being no lawful arrest, the evidence procured is inadmissible, being a fruit of the poisonous tree.

WHEREFORE, the petition is GRANTED. Accordingly, the Decision dated October 20, 2011 and the Resolution dated
February 29, 2013 of the Court of Appeals in C.A.-G.R. CR No. 32813 are hereby REVERSED and SET ASIDE.
Accordingly, petitioner Alvin Comerciante y. Gonzales is hereby ACQUITTED of the crime violating Section 11, Article II of
Republic Act No. 9165. The Director of the Bureau of Corrections is ordered to cause his immediate release, unless he is
being lawfully held for any other reason.


Evidence obtained through unlawful seizures should be excluded as evidence because it is "the only practical means of
enforcing the constitutional injunction against unreasonable searches and seizures." (People v. Cogaed, 731 SCRA 427